text:
    Abram T. Kerr, Albert D. Kerr and Horace C. Green, Resp’ts, v. Zacharias Dildine, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    1. Injunction order—Grounds for granting—Code Civil Procedure, §§ 603, 604, 628.
    Plaintiffs were judgment creditors of defendant E. P. K., and levied an execution upon goods covered by a chattel mortgage made by K. to defendant Z. D. This action was brought in aid of the' execution, and an injunction order was granted restraining Z. D. from selling the property. Upon an appeal from an order denying a motion to dissolve the injunction: Held, that to justify the granting of an injunction order it must appear by the complaint that plaintiff is entitled to judgment restraining the commission or continuance of an act. the commission or continuance of which during the pendency of the action would be an injury to the plaintiff (Code Civil Pro., § 603) or by affidavit that during its pendency defendant is doing, procuring or suffering to be done, or threatens, or "is about to do, or to procure or suffer to be done, an act in violation of plaintiff’s rights respecting the subject of the action and tending to render the judgment ineffectual. § 604. That while the application under section 604 does not require a complaint, yet if it is founded in whole or in part upon it verified, the inquiry is properly involved whether upon the facts alleged it appears that plaintiff is entitled to judgment. That when the injunction order has been granted without tlie aid of the complaint, such question may be presented and considered upon a motion !o vacate after the complaint appears in the action and founded upon, it, section 628; and unless it appears that plaintiff is entitled upon the facts alleged and stated on his part, to judgment for some relief in the action, the injunction is not supported.
    2. Chattel mortgage—Construction of provision in.
    A mortgage, bearing date February 13, 1886, was made by K. to Z. D. upon the goods in question to secure payment of $1,540, payable in monthly installments of fifty dollars, and interest on the whole sum unpaid till April 13, 1886, when the full amount of the balance should come due. That on April 13, 1886, Z. D. took the property into his possession, pursuant to the power given him by the terms and apparent legal effect of his mortgage. The complaint allege- that after defendant had taken possession of the property, the execution issued April 19, 1886, upon their judgment against the mortgagor was levied upon the goods, and that, notwithstanding Z. D. is about to sell them on his mortgage. It also alleges that in May, 1884, Z. D. sold his stock of goods and fixtures in his store to K. for $4,000, and took from him a purchase mortgage thereon for $2,500. That, among other things, it was thereby provided that the mortgagor should have the privilege of selling all the property, except the fixtures, for cash and on credit for a reasonable time, the mortgagor to receive and apply on the mortgage debt the entire proceeds, cash and credit, of such sale, that lie might use a part of said proceeds to replenish this stock with other goods of like character and value, and the proceeds of the stock so bought also to be applied in payment of the mortgage debt and the property so substituted to be placed by renewals once in sixty days of the mortgage instead of that which the property was sold to procure. That the mortgagor did make to the mortgagee a renewal mort gage at the expiration of each sixty days thereafter, each of which was immediately filed in the town clerk’s office, and that the last renewal was the before mentioned mortgage of February 13, 1886. Held, that the provisions of the mortgage did not render it fraudulent per se against the creditors of the mortgagor, that in making the sales the mortgagor stood in the relation of agent to the mortgagee, and might be so treated as against creditors of the former.
    3. Execution—Action in aid of—When not maintainable.

      Held, that the action in aid of the execution could not be supported un" less the mortgage was fraudulent as against creditors of the mortgagor, or unless the mortgage had been paid, as otherwise the mortgagee having taken was in lawful possession of the property before and at the time of levy of the execution, and there was no leviable interest which could be charged by such levy, or by which the lien of the execution could be supported.

      4. Judgment creditor’s action to reach equitable interests—Return OF EXECUTION UNSATISFIED, CONDITION rREC,EDENT.

      He d, that to support an action to reach equitable interests or assets, which are not the subject, of levy and sale by execution, the remedy at law by its ordinary process must first be exhausted. That this could only he evidenced by the return of an execution unsatisfied, which for the pur- ■ poses of such equitable remedy is a condition precedent.
    Appeal from order of Erie Special Term denying motion to dissolve an injunction.
    De Merville Page, for app’lts; John C. Collins, for resp’t.
   Bradley, J.

The plaintiffs were judgment creditors of the defendant, Edward P. Karr, and levied an execution upon a stock of goods, which were covered by a chattel mortgage made by Karr to the defendant Dildine. This action is brought in aid of the execution, and the injunction in question was granted to restrain the defendant Dildine from selling the property. His motion to dissolve the injunction was denied, and he appeals. To justify the granting of an injunction order it must appear by the complaint that the plaintiff is entitled to a judgment restraining the commission or continuance of an act the commission or continuance of which, during the pendency of the action, would be an injury to the plaintiff (Code Civ. Pro. § 603), or by affidavit, that during its pendency the defendant is doing, procuring, or suffering to be done, or threatens, or is about to do, or to procure, or suffer to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual. Id., 604. The application, under section 603, depends upon the nature of the action, and requires for its support a "complaint by which it must appear that the plaintiff: is entitled to a judgment giving the restraining relief. McHenry v. Jewett, 90 N. Y., 58; Roosevelt v. Edson, 19 J. & S., 227.

And while the application, provided for by section 604, does not require a complaint, yet if it is founded in whole or in part upon it verified, the' inquiry is properly involved whether, upon the facts alleged, it appears that the plaintiff is entitled to judgment.

And when the injunction has been granted without the aid of the complaint such question may be presented and considered upon a motion to vacate, after the complaint appears in the action and founded upon it. Id., § 628.

And unless it appear that the plaintiff is entitled upon the facts alleged, and stated on his part, to judgment for some relief in the action, the injunction is not supported. Buffalo Grape Sugar Co. v. Alberger, 22 Hun, 349.

It appears that a mortgage bearing date, February 13, 1886, was made by Karr to the defendant Dildine upon the goods in question,, to secure the payment of $1,540, payable in monthly payments of fifty dollars each, and interest on the whole sum unpaid, until April 13, 1886, when the full amount of the balance should become due. And that on April 12, 1886, the defendant Dildine took the property into his possession pursuant to the power given him by the terms and apparent legal effect of his mortgage. The complaint alleged that after the defendant had taken possession of the property, the execution issued April 19, 1886, upon their judgment against the mortgagor was levied upon the goods, and that notwithstanding the levy, the defendant Dildine has advertised for sale, .and is about to sell the property on his mortgage.

It is also alleged that in May, 1884, Dildine sold his stock of goods and fixtures in store to Karr for $4,000, and took from him a mortgage on the property for $2,500 of the purchase money, that amongst other things the chattel mortgage provided that the “ mortgagor has the privilege of selling all of said property except the fixtures for cash and on credit on reasonable time and to good responsible parties on time and credit, the mortgagor to apply on the mortgage, and to receive and apply the entire proceeds of said sales, both cash and credit upon the debt secured by the mortgage, to have the privilege and may use a part of the proceeds of the sales of said property to replenish this stock with other goods of like character and value, the stock so purchased and substituted in the place and stead of those which were sold to procure in, and the proceeds of the sales of the stock so bought to replenish, also to be a part, and received and applied in the payment upon the debt which this mortgage is given to secure, and this substituted property to be placed by renewals once in sixty' days of the mortgage in the room and stead of those which the property was sold to procure,” that the moitgagor did make to the mortgagee a renewal mortgage at the expiration of each sixty days thereafter, which was immediately filed in the town clerk’s office; that each of them contained like provisions, and that the last renewal was the mortgage before mentioned of date February 13, 1886.

Assuming, as we must upon the affidavits, that the debt secured by the original mortgage was a valid one and the security taken in good faith, the provisions referred to of the mortgage did not render it fraudulent per se as against the creditors of the mortgagor. The relation given to the mortgagor and taken by him was that of agency for the mortgagee in making the sales, and may be so treated as against the creditors of the former.- Conkling v. Shelley, 28 N. Y., 360; Brackett v. Harvey, 91 id., 214.

The plaintiffs further allege, upon information (derived from Iiarr) and belief, that during the time Karr carried on business, he bought and sold large quantities of goods, on which he made large profits, and that his sales the past year amounted to about $10,000; that a large portion of the proceeds of such sales were neither applied in payment of the mortgage or used to purchase other goods to replenish the stock, but that such profits and proceeds of sales were applied to the personal use and benefit of the mortgagor, and that the mortgagee knew that he so used and disposed of a portion of the profits for his own personal benefit, and agreed and consented thereto.” And the statement of this fact is repeated in the affidavit of the plaintiff’s attorney, as upon information derived from Karr.

It is also alleged in the complaint that $700 or $800 of debts exist for goods sold by him on credit, during the time he carried on the business, which Dildine refuses to apply on the mortgage debt; that about $1,500 of the amount of the goods in question were purchased by the mortgagor on credit; and upon information and belief, that he is insolvent and has no other property out of which to satisfy the plaintiff’s judgment.

This action in aid of the outstanding execution cannot be supported unless the mortgage is fraudulent as against creditors of the mortgagor, or unless the mortgage debt has been paid, as otherwise the mortgagee, having taken, was in the lawful possession of the property before and at the time of the levy of the execution, and there was then no leviable interest which could be charged by such levy, or by which the lien of the execution could be supported. Mattison v. Baucus, 1 N. Y., 295; Hall v. Sampson, 35 id., 274.

There is no direct allegation or statement in the complaint, or in any affidavit, that the mortgage was taken with any intent to defraud the creditors of the mortgagor; and after a careful examination of the verified complaints on which the injunction was granted, and the supplementary affidavit used in opposition to the motion to vacate it, we think that sufficient does not appear to justify the inference of any understanding when the mortgage was made, that the mortgagor should be at liberty to appropriate to his own use and purposes any of the proceeds of the. mortgaged property, and the conclusion is required that the mortgage was valid in its inception as against creditors. The fact of such an understanding must be made to appear by a statement of facts which fairly establish or justify an inference to that effect. Brackett v. Harvey, 91 N. Y., 214. In Southard v. Benner (72 N. Y., 424), and Potts v. Hart (99 id., 168), there was no authority vested in the mortgagor to sell the property and apply the proceeds on the mortgage.

And no relation of agency as against the creditors of the mortgagor, between him and the mortgagee in that respect.

And in the latter case, Judge Earl, speaking for the whole court, remarked, that no just inference could be drawn that the mortgagees expected the mortgagor ‘‘to apply the proceeds of their sales upon their mortgage. ” There is no allegation, nor is it claimed that the mortgage was fully paid. It follows that for the purposes of the remedy of his creditors the interest of' the mortgagor was merely equitable at the time of the levy.

The allegation of the complaint is that Karr had an equitable interest in the property. And they, amongst other relief, ask the direction that the proceeds of sales made by the mortgagor of the mortgaged property, of which no application has already been made, be applied upon the mortgage debt.

They also allege that the property has a value much in excess of the amount due on the mortgage. The facts as alleged by the plaintiffs seem to go in support of an equitable remedy and relief. But to support an action to reach equitable interests or assets which are not the subject of levy and sale by execution, the remedy at law by its ordinary process must be first exhausted. This can be evidenced only by the return of execution unsatisfied, which for the purposes of such equitable remedy is a condition precedent. Estes v. Wilcox, 67 N. Y., 264; Adee v. Bigler, 81 id., 349. These views lead to the conclusion that the order should be reversed, and the motion to vacate the injunction order granted.

Angle and Childs, J J., concur.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Frank Landers, Resp’t, v. The Watertown Fire Insurance Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    Insurance (pire)—Recitals in policy—How par notice to insured.
    In an action to recover the amount of an insurance on property destroyed hy fire, the policy contained a provision that all statements and representations contained in any written or verbal application, survey, plan or description of property therein insured shall he taken and deemed to he warranties.’’ The only reference to the application in the policy which would indicate in any way that it was in writing was the expression “hearing even date herewith.” Held, that there was no sufficient notice to the im sured that there was a rvritten application on file in the company’s office so as to make it his duty to inform himself of its contents; that he was justified in supposing it had reference to his oral application, he not having signed or authorized any one to sign a written application for him.
    Appeal from a judgment entered upon the verdict of a jury at the Chenango circuit and from an order denying, motion for a new trial.

      A. H. Sawyer, for app’lt; Penrie and Wales, for resp’t.
   Haight, J.

This action was brought to recover the amount of a policy of insurance issued by the defendant upon a dwelling house in Aitón, N. Y., which had been destroyed by fire. The defenses relied upon are:

First. That the building burned was not the building-mentioned in the application and survey, and insured by the policy issued.

Second. That at the time of issuing the policy the assured held a policy upon the building destroyed in the Glens Falls Insurance company, which was then in full force and effect, and which was not disclosed to the defendant at the time of making such insurance and that by reason thereof the policy issued never took effect as a valid policy upon the building destroyed.

Upon the first question, it is claimed that the court erred in not granting the defendant’s motion for a nonsuit, and that the verdict is against the weight of evidence. Upon this branch of the case the evidence on behalf of the plaintiff is, in substance, as follows: Thomas Landers testified that in the spring of 1873 he saw Mr. Cannon at the village of Afton; at the lower end of the village; that Miss Emmons, was with Landers in a buggy; that Mr. Cannon came across the road on foot and said, “Your policy on the mill house is about expired,” and wanted to know if I did not want it renewed; I said Mr. Northrop, of Sidney, had that business, and he said he had run away or left the country, and he had his papers and was doing the business; I said I believed the policy was in the Glens Falls, and I thought the company was a good one, and I thought it would be as well to put it there again; he said he had not that company, but had another just as good, and that was the Watertown Fire; I do not recollect anything more taking place; he said he would see me again; to the best of my recollection I saw him again afterwards at my house; I think the fore part of June; he came there in regard to insuring this building, and we had some talk; he finally agreed to insure it; it was discussed whether the building was two-story or a story- and-a-half; I think he said the old policy was a story-and-a-half and he thought it should be a two-story house; and he gave his opinion that it was a square two-story house, and that it should be put in the policy so; and it was put in so; he said he would send a policy by mail, and the policy after-wards came to me by mail.” Mrs. Landers, Frank Landers and Miss Emmons gave evidence tending to corroborate the testimony of Mr. Landers.

The testimony of Cannon on behalf of the defense is to the effect that be was going to Aft on by Mr. Landers house, and that when he came in front of the house he saw Landers doing something across the road in the wagon house. That he stopped and said to Landers, “You have a policy of $800 that is about expiring in the Glens Falls Insurance company; which house is it on? That this was in 1873, about the first of August, and while Cannon sat there in the buggy, Landers pointed across the road and said, “That is the house that stands in the yard.” The house so pointed out by Landers was a story and a half tenant house sixteen by twenty-four, with a wing sixteen by twenty-four, having two chimneys. It was standing in the same yard with Landers dwelling house, about sixty feet northerly therefrom, with a barn in the rear of the dwelling. Cannon further testified that he made a diagram of the premises while sitting in the buggy in the presence of Landers, and that the description was given in answer to his question, which he took down in his memorandum, book. That he went home and subsequently drew the application with a diagram, and signed Landers name thereto, and forwarded the same to the company, who subsequently forwarded by mail to Landers the policy in question. It will thus be observed that there is a sharp conflict between the testimony of these witnesses. Landers and Miss Emmons testify that the conversation took place in the village of Afton whilst they were riding in a buggy, and that Cannon came across the street on foot, and that that conversation pertained to the mill house, so-called; whilst Can-Ron’s testimony is to an occasion in front of Landers residence, and he was in a buggy, and that the conversation related to the tenant house near the Landers dwelling. This evidence was submitted to the jury, and the jury having; found in favor of the plaintiff, we must assume that it believed the testimony given on behalf of the plaintiff. It' further appeared from the undisputed evidence in the case that upon the other side of the highway, and some half a mile distant from the dwelling house, the plaintiff had a steam mill, and fifty-one icet therefrom was a house twenty by thirty feet, with sixteen-feet posts, two story high, which -was known and called the mill house, which was the house destroyed by fire, and that Landers had the mill house insured in the Glens Falls Insurance company for $800, and that the policy would expire May 1, 1874; that upon this tenant house, near his dwelling, he also had an insurance in the Glens Falls Insurance company for $800, expiring July 1, 1873. It further appeared that in ¿he summer of 1874, Landers procured another insurance policy for $800 upon the tenant house near his dwelling. Alt of these insurance policies ran for the term of three years.

The policy in question was number 5,001. It insured Thomas Landers, of Afton, in the county of Chenango, state of New York, against loss or damage by fire or lightning to the amount of $800, on the following property, “as described in the application and survey bearing even date herewith, and which is hereby referred to as forming apart of this policy, viz., $800.00 on his two-story dwelling house, Afton, N. Y.” The mill house being a two-story dwelling located in Afton, answers to the description given in the policy, but when we refer to the application and diagram introduced in ■ evidence, we find that it describes the tenant house located near the Lander’s dwelling, with the exception that it is described as a two-story house, when it is in fact but a story and a half. The question is thus presented as to which of these buildings it was intended to insure. There can be but little doubt that Landers understood and believed that this policy was issued upon the mill house, for subsequently and in 1874, other insurance was procured upon the tenant house. Neither of these policies permitted further insurance, and if both had been issued upon the tenant house, double insurance was effected, upon that house, making both void, and the mill house was left without any insurance. By the terms of the policy the application was made a part thereof, and if the application was authorized by Landers, he doubtless must be bound by it. The question as to whether or not he did authorize this application was submitted to the jury by the trial court, and the jury by its verdict has found that he did not. The evidence upon this branch of the case is that to which we have already referred, and is ample to sustain the verdict in this regard. It is conceded that Landers never signed the application or diagram forwarded to the company; that he never saw or knew its contents until after the loss had occurred. Cannon did not testify that he even showed him the pencil memorandum and sketch that he made while sitting in the buggy, so that in case the jury believed the testimony of Landers as to the talk in reference to the mill house, we think it properly found that this application was not authorized. But it is claimed further, that even though Landers did not execute the application, or know its contents, still the policy received by him referred thereto, and was notice to him that there was an application and survey, and that it thus became his duty to inform himself in reference to the contents thereof. Whilst this rule may prevail under some circumstances, we are not prepared to indorse it as applicable to the case under consideration.

True, Landers said that he expected Cannon would make some application to the company for a policy. Cannon was the agent of the company to solicit for the company. He had had his talk with Cannon in reference to the policy, the amount and the description of the property, discussion having taken place as to how the house should be described. The company recognized and received verbal application as appears from the policy itself, wherein it provides, that: “ all statements and representations contained in any written or verbal application, survey, plan or description of the property therein insured, shall be taken and deemed to be warranties,” etc. Landers had made no written application, he had made a verbal one, and the verbal application included the description of the building and he might well have understood the application referred to in the policy as being the application made by him. The policy does not state that the application was in writing; the only inference to that effect is the expression: “ Bearing even date herewith; ” but this expression might properly have been used in a case where the application was oral, and the policy was issued or dated back to the date on which the oral application was made. It was not sufficient standing alone to charge Landers with notice that there was a written application on file in the company’s office, upon which the company had issued its policy, when he knew that he had not signed or authorized any one to sign a written application for him.

Again, it is claimed that there was a mutual misunderstanding between the parties as to the building which was to be insured; that their minds never met on that subject and consequently that there was no contract. But there is nothing in the evidence to sustain this claim. If the evidence of Cannon is to be taken as true, then the understanding and agreement was that the tenant-house was to be insured. If, however, the testimony of Landers is to be taken as true, then it was understood and agreed that the mill house should be insured. We do not deem it necessary to determine whether or not Cannon acted in good faith. If he intentionally forwarded to the company an application with a wrong description of the premises, then it would be perpetrating a fraud upon Landers, or if through carelessness and mistake he forwarded to the company an erroneous description, it was the mistake of the defendent, for which the plaintiff ought not to suffer.

Again, the policy contained the provision that: “If the insured shall have or shall hereafter make any other insurance on the property hereby insured, not indorsed thereon or consented to by this company, or its agent in writing, this policy shall be void. ” It is a conceded fact that at the time this policy was issued there was other insurance upon the building in the Glens Falls Insurance Company to the amount of $800, expiring May 1, 1874. The policy in suit would therefore be void unless the defendant accepted the insurance with full knowledge of the existence of the insurance in the Glens Falls Company under such circumstances as to estop it from claiming the benefit of this provision. Van Schoick v. Niagara Fire Insurance Company, 68 N. Y., 434; Richmond v. Niagara Fire Insurance Company, 79 id., 230.

Upon the question of knowledge we have the testimony of Landers, in which Cannon stated to him that Northrup, who had been the agent of the Glens Falls company, and had effected the prior insurance, had left the country, and that he (Cannon) had his papers and was doing the business, and that Landers’ policy on the mill house had about expired. Cannon himself testified that he had the books of Northrup, and that it contained the entries: “Thomas Landers, Glens Falls; number of policy, 197; property, Afton; $800.00; premium, $4.80; expiring 1st of July, 1873.” “Thomas Landers, Glens Falls Insurance Company; number, 351; farm property in Afton; $800.00; premium, $4.80; rate, 60 cents; expiring the 1st of May, 1874.”

To be sure there is a conflict in the evidence upon the question, but there was enough to make it a question for the jury.

We are consequently of the opinion that the judgment and order should be affirmed.

So ordered.

Bradley and Childs, JJ., concur.


text:
    People ex rel. David Cronk v. Dwight Weld, as Commissioner of Highways of the Town of Cohocton, and William E. Adair, as Town Clerk, etc., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    1. Highways—Certiorari—Return conclusive as to facts—How corrected if defective.
    Where a writ of certiorari was issued to review the proceedings of the commissioners of highways and town clerk of the town of Cohocton in laying out a highway in said town- Held, that the return to the writ is conclusive as to the facts and cannot he contradicted; that if it is defective, the court may direct a further return; if it is false, the relator’s remedy is hy action.
    2. Same—When party estopped from raising question of irregularity.
    Where the return stated as a fact that the relator appeared hy his agent; that at the drawing of the jury it was mutually agreed between the applicants and the relator that iio one should be allowed to act as juror that was not satisfactory to both parties; that the jury was so drawn by consent of the applicants and the relator: Held, that the relator was estopped from raising the question of irregularity on a review on certiorari and had waived his right so to do.
    3. Jury—What does not amount to improper conduct.
    Where the jury, who had to pass upon the necessity of the highway had to travel on foot a long distance to view the lands through which the highway was proposed, were four miles from any hotel and had had no dinner, although it was two o’clock in the afternoon, and a general invitation was given by one Marsh, who signed the application for the highway in the presence of the relator and other parties interested, to the jurors to take dinner at his house, which was accepted, but no discussion took place at the dinner-table in reference to the proposed highway. There was no evidence of any improper motive on the part of Marsh in giving the invitation or that any prejudice resulted to the relator in consequence thereof. Held, that there was no reason for annulling the proceedings.
    4. Practice—Who entitled to be party in certiorari to review proceedings to lay out highways.
    Where it appeared that the relator in certiorari, to review the proceedings of commissioners of highways to lay out a highway, was not the owner of the lands claimed to be owned by him, but that said land was owned by another: Held, that he was not aggrieved and that he had no standing in court.
    Certiorari to review the proceedings of the commissioners of highways and town clerk of the town of Cohocton, in the county of Steuben, in laying out a highway in said town.

      Searl & Larkin, for relator; J. F. Parkhursi, for resp’ts.
   Haight, J.

The return of the respondents is in substance as follows: That on or before the 12th day of September, 1885, application was duly made to the commissioner of highways of the town of Cohocton, to lay out a road in said town, which was particularly described in the application signed by Darwin Marsh and eight others, all of whom were persons hable to be assessed for highway labor in said town; notice was in due form of law given to the town clerk and highway commissioner for the drawing of a jury of twelve freeholders to examine the grounds through which the highway was proposed to be laid, the jury to be drawn on the 12th day of September, 1885, at ten o’clock A. M., at the office of the town clerk; that the notices were in due form regularly served and posted according to law; that on- the day and at the time and place named in the notices, the town clerk, commissioner of highways and F. C Fowler, one of the justices of the peace of the town, appeared and then and there proceeded to draw the jury; that the relator David Cronk, then and there appeared by John P. Cronk, his agent; that the town clerk proceeded to draw such jury in the presence of the commissioner of highways and justice of the peace, and after the names of two or three jurors had been drawn without objection, the name of Eleazor Bently was drawn, and one of the applicants Darwin Marsh, objected because Bently had been an opposing candidate against him for office in the previous year and he had understood that Bently had said he would oppose him in anything he wanted and Marsh objected to Bently’s serving on the jury on that account; that John P. Cronk ■ made no objections to his being put aside, and another juror was drawn in his place; soon afterwards, the name of Harrison Briglin was drawn and John P. Cronk objected to him, and Briglin was put aside because he was one of the applicants for the road; that the name of James A. Chatman was then drawn as a juror and he was objected to by Mr. Bice Moulton, who owns part of the land tnrough which the proposed road is laid, on the ground that Chatman was one of the applicants for the road, and his name was put aside; that Cyrus Stone was then drawn as a juror and objection was made to him by some one, but by whom the respondents cannot remember, that he was not a freeholder, and his name was put aside. They further return that at the drawing of the jury it was mutually agreed between the applicants and David Cronk, by John P. Cronk, that no one should be allowed to act as a juror that was not satisfactory to both parties; that the jury was so drawn by consent of the applicants and the relator in the manner herein-before stated. They further return that, in pursuance of a summons, the jurors appeared at the time and place therein mentioned, together with the highway commissioner and F. C. Fowler, a justice of the peace, and that David Cronk appeared, and before swearing the jury, the justice announced that if any one had any objection to the-jury, or any of them, or their proceeding to view the proposed road, it should there be made known, and no objection was made to the jury, or any of them, whereupon the jurors were then and there sworn, and then proceeded to-an examination of the proposed road. That after examining the proposed route of the highway, three successive ballots were taken by the jurors, each of which resulted In five votes against the proposed road and seven in favor of it; thereupon one of the jurors, Hiram Rynders, proposed that they should adjourn and make an examination of the county line and Pine Hill road, and meet at Van Piper’s hotel afterwards, pursuant to adjournment. It was at that time about two o’clock in the afternoon, and the jurors had. had no dinner. They had come to the place of meeting on foot and were about four miles distant from any hotel The jurors were then invited to take dinner at the house of Marsh and did so, and immediately after dinner started to view the county line and Pine Hill road, and by agreement afterwards convened at Van Piper’s hotel where they unanimously voted that the proposed new road was necessary, and thereupon duly signed a certificate to that effect; they further returned that there was no discussion about the proposed road while dining at the house of Marsh, and that after the jurors had finished their dinner some of them offered to pay for the same, but whether or not the same was paid for by any of them the respondents are unable to return; they further return that David Cronk, by JohnP, Cronk, was during all of the time present with the jurors— from the- time when they were swo.rn to the time of their final decision, except while they were deliberating and balloting; they further return that David Cronk is not aggrieved by the decision; that he has no interest therein; that the lands claimed by him are owned by JohnP. Cronk; that all of the matters in respect to the drawing of the jury and the subsequent proceedings up to the time of the final decision were, in all respects, done with the approval and •consent of all of said relator and applicants.

Several of the questions raised were recently considered by us in the case of The People, etc., ex rel. Downey v_ Dains (38 Hun, 43), and we do not deem a further discussion of them necessary; but the return is conclusive as to the facts and can not be contradicted. If it is defective, the court may direct a further return; if it is false, the relator’s remedy is by action. Haines v. Judges of Westchester, 20 Wend., 625; Wood on Mandamus and Certiorari, 202; Code, § 2135.

The respondents have returned as a fact that the relator, David Cronk, appeared by John P. Cronk, his agent; that at the drawing of the jury it was mutually agreed between, the applicants and the relator, that no one should foe allowed to act as a juror that was not satisfactory to both, parties; that the jury was so drawn by consent of the applicants and the relator. If so, then we fail to see why the relator is not estopped from now raising the question of irregularity, or why he has not waived his right so to do.

As we have seen, the respondents have also returned that all of the proceedings of the jury up to the time of the final decision were in all respects done with the approval and consent of the relator; if so, their dining at the house of Marsh was with his approval and consent, and for the same reason he would hoav be estopped from raising any question in reference to their conduct in so doing, or be deemed to have waived the irregularity, if any.

But again, proceedings of this character are never conducted with the same formality or strictness as in the trial of actions. The jury in this case had to travel on foot a long distance to view the lands through which the highway was proposed; they were four miles distant from any hotel. It was two o’clock in the afternoon, and they had had no dinner. Tiie invitation appears to have been general, made in the presence of the relator and other parties interested. No discussion took place at the dinner table in reference to the proposed highway. There is no evidence of any improper motive on the part of Marsh in giving the invitation, or that any prejudice resulted to the relator in consequence thereof, and consequently we do not think that the proceeding -should be annulled for this reason. Gale v. N. Y. C. and H. H. R. Co., 13 Hun, 1.

But again, as w.e have seen the respondents have returned that the relator is not aggrieved; that he is not the owner of the lands; that they are owned by John P. Oronk. If so, he has no standing in court.

The proceeding should .be confirmed and the writ dismissed with fifty dollars costs.

Bradley and Childs, JJ., concur.


text:
    John Simpson, Resp’t, v. Bank of Commerce, impl’d, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    1. Mortgage—Equities between parties—When purchaser protected -—Indicia of title.
    The rule that the purchaser of a non-negotiable chose in action takes it subject to all the equities existing between the original parties thereto does not hold where a party has, by his own voluntary act, placed the indicia of title in another and the purchaser in good faith for value from, the latter will be protected. •
    2 Same—When one estopped from questioning title.
    Where an action was brought to have the unpaid purchase price of certain real estate made a lien prior to defendant bank’s claim, and the evidence showed that the plaintiff was at a certain time owner in fee of the land in question, and the defendant Bliss occupied the land as his tenant; that the plaintiff entered into an agreement with said Bliss to sell and convey to him the land for $1,000, and executed a deed to Bliss, which the plaintiff left with one Betts (an attorney), to fix a loan for Bliss, and when the loan was made Betts was to get the money for him. The deed was not to be delivered until the money was paid. But Betts loaned the deed to Bliss to show to the bank, impleaded herein, and Bliss, after arranging for the loan, left the deed at the county clerk’s office to be recorded. Subsequently Betts made an abstract of title for Bliss, putting thereon the conveyance from the plaintiff to Bliss and the record thereof, which abstract was given to the bank, and subsequently took” the certificate of acknowledgment of Bliss and wife to the mortgage given to the bank. Yield, that through the act of plaintiff and his agent Betts, Bliss was invested with the indicia of title to the premises, and was given the power to procure the deed to be recorded, to deceive the bank and procure a loan upon the premises That plaintiff was estopped from questioning the title of the bank
    Appeal from a judgment entered upon the decision of the Erie special term and also from an order denying motion to vacate judgment for irregularity.

      M. A. Whitney, for app’lt; B. S. Farrington, for resp’t.
   Haight, J.

This action was brought to have the unpaid purchase-price of the real estate described in the complaint made a lien thereon prior to the appellant’s claim.

The facts as found by the trial court are in substance as follow:

That on the 31st day of Januay, 1883, the plaintiff was the owner in fee of the land in question and the defendant, Joseph A. Bliss, occupied the land as his tenant; that on that day the plaintiff entered into an agreement with the defendant Bliss to sell and convey to him the land for the sum of $1,000; that a deed was made and executed by the plaintiff to Bliss and by agreement was delivered to Benjamin F. Betts to be delivered to Bliss, when Bliss should pay the $1,000; that Bliss never paid the $1,000, but by false and fraudulent representations made to Betts obtained the possession of the deed without the knowledge of the plaintiff and caused the same to be recorded in the office of the clerk of Erie county; that thereafter and on the 19th of March, 1883, Bliss executed and delivered to the defendant, the Bank of Commerce, a mortgage on the premises for $20,000, as a collateral and continuing security for the payment of all indebtedness that Bliss was owing the bank; that thereafter the mortgage was ■ foreclosed and the property bid in by the bank; that at the time of taking the mortgage the bank had no knowledge that Bliss had obtained the possession of the deed of the premises by fraud, or that the consideration had not been paid to the plaintiff.

The defendant excepted to the finding that the deed was obtained by false and fraudulent representations, and requested the court to find that the plaintiff.placed the deed in the hands of Betts, with authority to make use of the same in procuring a loan upon the property therein described in the name and interest of the grantee, as a means of raising the $1,000 purchase money, to be paid the plaintiff when so obtained; and that after the recording of the deed, and on or about March 1, 1883, Bliss furnished and presented to the bank an abstract of title of the lands and premises described in the complaint, which was made by and in the handwriting of Betts, whitih set forth the deed from the plaintiff to Bliss, and the recording thereof, as aforesaid; and that Bliss then and there made application to the bank for an extension of time, and for renewals of divers pieces of commercial paper, upon which he was liable, as maker or indorser, and which had been heretofore discounted for his benefit, and were held by the bank, which amounted in the aggregate to several thousand dollars; and also for further loans and discounts, for which he then and there proposed to give the bank security by way of mortgage upon the land, all of which was assented to by the bank. That on the first day of March, 1883, the Bank of Commerce caused a mortgage tobe drawn up and prepared, dated on that day, upon the lands described in the complaint, for Bliss and wife to execute as collateral and continuing security to the bank for the payment of all promissory notes or bills of exchange which then had been, or which should thereafter be made, drawn, endorsed or accepted by Bliss, and which had heretofore been, or should at any time be discounted by the bank for his benefit, as the same should become due and payable, and also for the payment upon demand of any and all overdrafts, balances of account or sums of money which should at any time be due or owing by him to the bank upon any account whatever, and a mortgage was thereafter, and on the 19th day of March, 1883, executed by Bliss and wife, and a certificate of acknowledgment thereof was made by the said B. F. Betts as. notary public. That after the making and delivery of the mortgage by Bliss to the Bank of Commerce, and prior to April 15, 1883, and in good faith, relying upon the security afforded thereby, and without notice of any claim whatever of the plaintiff for or on account of the unpaid purchase price of the lands and premises, or any question of title thereto in the said Bliss, at any time prior thereto, the Bank of Commerce, at the request and for the benefit of Bliss, discounted divers promissory notes, made by or endorsed by Bliss, amounting in the aggregate to $30,000 and upwards, and advanced the proceeds thereof to Bliss, and advanced to Bliss in money more than sufficient to pay the purchase price of the land in question.

These requests to find were refused and the defendant’s counsel duly excepted.

The evidence upon the trial is undisputed. The plaintiff testified that when he executed the deed to Bliss that he left it with Betts to fix a loan for Bliss, and when the loan was made, Betts was to get the money for him. That the deed was not to be delivered until the money was paid. Betts, who was sworn as a witness for the plaintiff, testified that the deed was left with him for the purpose of procuring a loan for Bliss, and when procured he was to receive the $1,000 and deliver the deed. He further testified that he was endeavoring to procure a loan for Bliss upon the property. That he met him by appointment in the city of Buffalo, and that Bliss said to him that he thought he could do better with the Bank of Commerce; said he could get the money to pay from them, and a line of discounts that would be worth more to him than the $10,000 Betts proposed to loan. That he wished Betts would let him take the deed to show to the Bank of Commerce; that thereupon the witness let him take the deed, and that was the last that he ever saw it. It further appeared that Bliss took the deed to the Bank of Commerce, arranged for the loan, and then left the deed at the county clerk’s office to be recorded. That subsequently, and about the first of March, Betts made for Bliss an abstract of title, putting thereon the conveyance from the plaintiff to Bliss, and the record thereof, and subsequently, and on the nineteenth of March, took the certificate of acknowledgement of Bliss and wife to the mortgage given to the bank. It further appeared that the abstract of title so prepared by Betts was delivered to the attorney of the bank, who examined the same and recommended the loan.

Whilst there were no false statements made by Bliss to procure the possession of the deed, after procuring it for the purpose of showing the bank, he took it to the clerk’s office and caused the same to be recorded, and in doing so violated the arrangement by which he procured it, and perpetrated a fraud upon the plaintiff. As to the requests to find, to which we have alluded, they were all in accordance with the undisputed evidence given, and should have been ■ found.

The question thus presented is, whether or not the plaintiff can recover, when the possession of the deed was obtained from him under the circumstances disclosed.

In the case of The Commercial Bank of Buffalo v. Kortright (22 Wend., 348), one Barker was the owner of a certificate of one hundred shares of the stock of the bank. He sent the certificate of stock, together with his promissory note for $10,000, to one Bartow, to obtain a loan. Before transmitting the stock, he endorsed his name upon it. Bartow, instead of making a loan to Barker upon the security so transmitted to him, •• negotiated a loan from Kortright, the plaintiff, of $25,000, and then absconded. It was held that the plaintiff, having made the $25,000 loan in good faith, was protected and had the right to hold the stock until the money was repaid to him.

Senator Ver Planck, in delivering the opinion of the court, says: “Bartow was entrusted with the usual external indicia of the right of disposing' of the property. On the faith of these external indicia Kortright lent $25,000 upon the aggregate security of this and other stocks. If the law should now hold this transaction to be void, it would indeed, as Judge Story says, operate as a fraud upon the unsuspecting confidence of the other party.”

In the case of McNeil v. The Tenth National Bank of the City of New York (46 N, Y., 325), the plaintiff was the owner of 134 shares of the stock of the First National Bank of St. Johnsville, the certificate of which he delivered to his stock brokers to secure any balance of account. Upon the certificate was endorsed a blank assignment and power of attorney to transfer, signed by the plaintiff, purporting on its face to have been executed for value received. Plaintiff’s indebtedness on the account was $3,000. His brokers, without authority and without his knowledge, pledged the stock, with other securities, to the defendant to secure an advance to themselves of $45,000. It was held that the defendant was entitled to hold the stock for the payment of the amount of the advance.

In the case of Moore v. The Metropolitan National Bank (55 N. Y., 41), the action was to restrain the defendant from disposing of a certificate of indebtednesss of the state of New York for $10,000, issued by the New Capitol Commissioners, which had been assigned to one Miller, who had transferred the same to the defendant, upon the ground that the assignment to Miller was induced by fraud. The defendant was a bona fide purchaser of Miller for value. It was held that the plaintiff, having conferred the apparent ownership upon Miller and the purchase of' the defendant having been made upon the faith of such apparent ownership, the defendant obtained a valid title as against the plaintiff, and that the plaintiff was estopped from asserting his title.

In the case of Simpson v. Del Hoyo (94 N. Y., 189), the action was to foreclose a mortgage upon real estate. Mrs. Del Hoyo, the defendant, was induced by the fraud of Henry M. Lowenstein, to convey real estate to his daughter, Rosa H. Lowenstein, who executed a mortgage thereon to her father. The mortgage in his hands was void. It was, however, subsequently assigned to the plaintiff, who acting in good faith, with no knowledge of the fraud, paid value for the same. The answer of the defendant alleged the. fraud under which the mortgage was procured. It was held to be no defense as against a purchaser of a mortgage in good faith and for value. See, also, Paddon v. Taylor, 44 N. Y., 371; Smart v. Bement, 4 Abb. Ct. Ap. Dec., 253; Griffith v. Griffith, 9 Paige, 315, 318; Bumpus v. Platner, 1 Johns. Ch., 212; Jarvis v. Rogers, 13 Mass., 105; Blight v. Schenck, 10 Pa. St., 285.

It is a general and familiar rule that the purchaser of a non-negotiable chose in action takes it subject to all the equities existing between the original parties thereto. But this rule, as we have seen, has its exceptions, and the exception is, where a party has, by his own voluntary act, placed the indicia of title in another, the purchaser in good faith, for value, will be protected.

In the case under consideration, Simpson, of his own voluntary act, executed the deed to Bliss; he delivered it to Betts to be delivered to Bliss upon receiving $1,000. It was understood by him that Betts was to aid Lliss in making a loan. For that purpose Betts let Bliss take the deed to the Bank of Commerce. Thus, through the act of Simpson and of his agent, Betts, Bliss was invested with the indicia of title to the premises. He was given the power to purcure the deed to be recorded, to deceive the bank and procure a loan upon the premises. It consequently appears to us that the plaintiff is estopped from questioning the title of the bank.

It is contended that this case is distinguishable from the case of Simpson v. Del Hoyo, for the reason that there was no delivery of the deed; but in that case the deed was procured through fraud and in this case, as the court has found the delivery of the deed was procured through fraud. We see no reason why the rule in the one case should not be applied in the other.

The motion to vacate the judgment on the ground of irregularity was properly disposed of and that order should be affirmed, without costs.

As to the judgment, it shomd be reversed and a new trial granted, costs to abide event.

Bradley, J., concurs.


author: Barker, J.

text:
    Emma S. Gordon, Resp’t, v. George W. Barney et al., as Ex’rs of George W. Barney, Dec’d.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    1. Evidence—Objection to—By who mat be interposed.
    This action was brought to recover possession of persona, property. Plaintiff inter-married with A. J. G., who died in 1882, before the commencement of this action. The property in question consists of cattle, ; horses, etc., which belonged to A. J. G., and was most of it in use upon' the farm upon which plaintiff and A. J. G. resided, and of which she was .owner in fee. Both parties claim title under the husband, plaintiff’s title to a part of the property being founded on an instrument in writing called a bill, of sale, and bearing date August, 1877, which was in the same month filed in the town clerk’s office in the town where the mortgagor then resided. As to another portion, plaintiff’s title is based upon a paroi gift to her by her husband. In April, 1882, the property being in use on the premises in which A. J. G. then resided, he executed and delivered to R. & M. a mortgage on the same to secure his individual debt to them. The original defendant., G. W. B., seized the property as agent of R. & M., and in the original answer set up their title as his justification. On the trial plaintiff, as a witness in her own behalf to support her title to the property, was permitted to testify to the negotiation between herself and husband which resulted in the giving of the bill of sale and the consideration upon which it was based, and the time and manner in which it was paid over to her husband, and also as to the gift of some of the property by her husband to herself, for the recovery of which she had judgment. This evidence was objected to by defendant upon the ground that it involved a personal transaction as well as a communication between the witness and a deceased person, in which she was interested and was incompetent under Code of Civil Procedure, section 829. Exception was taken to the overruling of the objection. Held, that the original defendant, who acted as agent of II. & St. in seizing the property, could interpose any objection to the competency of this evidence, which they could have interposed had they been sued and sought to be charged with the acts of their authorized agent, and that any evidence which would have been incompetent against the.original defendant, was also incompetent against the defendants, who were his personal representatives, and had been substituted in Ins place since his death. ■
    2. Same—Conversion—When title in third person may be set up—To WHOM OBJECTION TO EVIDENCE UNDER CODE ClV. PltO., § 829, UNAVAILABLE.
    Held, that a party charged with conversion of the personal property of another, might set up as a matter of defense that the title to the property was in a third person, if he could connect himself with such title, and that he might do this by showing that he acted as servant or agent of the owner in seizing the property, and that in such case the provisions of Code of Civil Procedure, section 829 are available to the servant or agent.
    3: Same—Code Civ. Pro., § 829—What testimony incompetent.

      Held, that the testimony was incompetent, under Code Civil Procedure, section 829.
    Appeal from, a judgment entered upon the report of a referee in an action of replevin finding the title of the property in and awarding possession thereof to the plaintiff. The original defendant was George W. Barney, who died since the commencement of this action, and the present defendants are the executors of his last will and testament. The property was seized at the commencement of this action and delivered to the plaintiff who retained the possession. The form of judgment is that the plaintiffs have and retain possession of the personal property described in the complaint and recover costs which were taxed at $159.94. A further statement of the case is set forth in the opinion of the court.

      Baggett & Norton, for app’lts; F. C. Peck, for resp’t.
   Barker, J.

The plaintiff intermarried with Addison J. Gordon, who died in 1882, before the commencement of this action. The property in controversy consists of cattle, horses, farm utensils and household furniture. For the

Eeriod of eight years prior to his dea¿h the plaintiff and her usband lived and resided together upon the farm of which the plaintiff was the owner in fee. Most of the property in question was in use on the farm and in the house; the husband being the owner of the same, both parties claim title under him. The plaintiff’s title to a portion of the property is founded upon an instrument in writing called a bill of sale and bearing date August, 1877, which was in the same month filed in the town clerk’s office in the town which the mortgagor then resided. As to the furniture, the plaintiff's alleged title is based upon a paroi gift of the same to her by her husband. In April, 1882, the property in dispute being in use on the premises and in the dwelling-house thereon in which the said Addison J. Gordon then resided, he executed and delivered to Boot & Marshall a mortgage- on the same to secure an individual indebtedness which he owed them. The original defendant, George W. Barney, seized the property as the agent of the mortgagees, Boot & Marshall, as the referee has found, and in the original answer he set up their title and his justification for seizing and removing the property.

On the trial the plaintiff was a witness in her own behalf in support of her alleged title to the property, and she was permitted to testify to the negotiations which she had with her husband which resulted in the giving of the bill of sale and the consideration upon which it was based and the time and manner in which it was paid over to her husband. She was allowed also to testify as to the gift of some of the property by her husband to herself, of some of the articles of household furniture, for the recovery of which she had judgment. To the reception of this evidence the defendants, in due time, objected, upon the ground, among others, that it involved a personal transaction as well as a communication between the witness and a deceased person in which she interested, and was incompetent under the provisions of section 829. The objection was overruled and the defendant excepted. The original defendant, who acted as the agent of Boot & Marshall in seizing the property, could interpose any objection to the competency of this evidence which they could have interposed had they been sued and sought to be charged with the acts of their authorized agent. Any evidence which would have been incompetent as against the original defendants was also incompetent as against the defendants who are his personal representatives and who have been substituted in his place since his death. Such evidence was incompetent and prohibited by the provisions of section 829 of the Code of Civil Procedure. The provision is, that a party or a person .'interested in the event of an action shall not be examined osa witness in his own behalf or interest against “the executor, administrator or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through, or under a deceased person or lunatic, by assignment or otherwise, concerning a personal transaction-or communication between the witness and the deceased person.” The original defendant, the agent of the mortgagees, was a person who derived his right and interest in the property through the mortgagor, who was then deceased. His principals derived their title of Addison J. Gordon, and the plaintiff claimed title through the same source. It is a general rule of evidence that a party charged with the tortious conversion of the personal property of another may set up as matter of defense that the title to the property is in a third person, if he can connect himself' with such title. This he may do by showing that he acted, as the servant or agent of the owner in seizing the property. The provisions of section 829 are available to the servant or agent of the owner in an. action where he interposes the-defense that the property belonged to his principal and that his interference therewith was done by his authority and direction. The present section is broader than the language of the Old Code, and under its provisions there-was some authority for the plaintiff’s position that the defendant could not interpose the objection that the plaintiff was disqualified from testifying in her own behalf to a conversation with a deceased person who was the former owner of the property. Old Code, § 399. The original defendant had an interest in the property within the sense and meaning of -the statute, although he was not the absolute owner. Being the agent of the mortgagees, it was his duty to protect and preserve the property for their benefit. Although it does not appear by the record that Boot & Marshall are defending this suit and are concluded by the judgment, we think the defendant could properly raise the objection that the evidence was incompetent against him.

In Pope v. Allen (90 N. Y., 298), a similar question was. presented, and is an authority in support of the views expressed.

The respondent contends that when the objection to the-evidence was made it did not appear that tide defendant, claimed any title to or interest in the property under Addison J. Gordon, deceased, and that there was no error in receiving the evidence for that reason. 'As the referee declared when he overruled the objection, that it did not appear that the defendant claimed under Gordon,, we have-concluded to pass the question without discussion,' and consider the other points made by the appellants.

A portion of the property, described in the complaint, consisting of one horse and one colt, and some other property, admitted to be of the value of more than §150, to which the plaintiff claimed title by virtue of the bill of sale, was acquired by Gordon long after that instrument was executed, and was embraced in the chattel mortgage under which the defendant claims title. The plaintiff, osa, witness, admitted that the horses embraced in the bill of sale, from her husband to herself, had been sold and disposed of with her consent, but claims that there was an arrangement made when the property was sold that other horses should be purchased to supply the place of those that were sold. The bill of sale describes the property, as “one pair of chestnut colored horses, one black mare and colt, one double carriage, * * * belonging to me, and now* in my possession, and on a farm belonging to Emma S. Gordon. ” As it is conceded by the plaintiff, that the most valuable part of the property embraced in the mortgage to Root & Marshall was purchased by her husband as his property,- she has failed to show a sale and. transfer of the same to herself, so as to pass the title, nor does she contend in her evidence that the horses were the subject of a gift, as was"the furniture and some other articles of-property.- I think the plaintiff failed to establish any title to the horse and colt, and some other articles of personal -property, and by her own admission, as a witness, it is made to appear that the title was jn Root & Marshall under their mortgage. The arrangement which she made with her husband that property which she should thereafter purchase should go to supply the place of that which had been sold, was not effective to transfer the title to herself as soon as the same was purchased by him; that could only be done by some subsequent arrangement, in the nature of a bargain and sale, sufficient to transfer the title. There is nothing tending to show that there was any subsequent transfer of the mare and colt to the plaintiff, for she admitted, as a witness, on the trial, that the first she saw of them was after the death of her husband, and that she did not know from whom or when he purchased them. Fol. 38 and 39. Nor is there the least evidence indicating that in making the purchases Gordon used the money belonging to his wife, or that he in any manner acted as her agent.

I think that the exception taken by the appellants to the finding of the referee, that the plaintiff was the owner of all the property described in the complaint, was well tfor the reason that it is not only contrary to the weight of evidence, but without evidence to support the same as to the items of property mentioned.

The contention of the respondent that as the Root & Marshall mortgage was given for a pre-existing indebtedness, and for that reason they are not in a position to question the transfer of the property to the plaintiff, by her husband, has no application to the case as it now stands, for if Gordon was the owner of the property at the time of the execution of the chattel mortgage, they acquired a perfect title to the same as against the plaintiff, who, as the proof shows, had acquired no interest in the items of property mentioned. If the plaintiff had established a title in form to the property by gift or sale, then the point would have been presented for consideration.

_As I think there should be a new trial for the reason indicated, it is unnecessary to pass upon the question whether the plaintiff showed a title to the property which she claims by gift from her husband, as upon another trial the proofs upon that issue may be materially different.

Judgment reversed; new trial granted before another referee, with costs to abide the event.

All concur.


author: Smith, P. J.

text:
    Speed McIntyre, Resp’t, v. Don Pedro Allen, App’lt.

      (Supreme Court, General Term., Fifth Department,

      Filed January, 1887)
    1. Constitutional law—Local , laws—What may be included in as GERMANE TO THE TITLE—CONSTITUTION, ART. 3, § 16—LAWS 1883, chap. 309, § 2.
    Section 2, of chapter 309, of the Laws of 1883, vests the surrogate of the county of Steuben with “ all powers conferred by law upon the county judge at chambers or out of court," and the act is entitled “ An act to provide for the election of a surrogate separate from the county judge of the county of Steuben, and to fix the salary of said surrogate and also the salary of the county judge of said county, hereafter to be elected. Held, that the action of the legislature, in conferring such powers, was within its authority and was not the introduction of matter foreign to the general subject stated in the title of a local bill. See article 3, section 16, of State Constitution. That where the title of a local bill expresses a general object, all matters fairly and reasonably connected with it, and all measures which will, or may, facilitate its accomplishment are proper to be incorporated in the act and are germane to the title.
    3. Practice in Steuben county—Supplementary proceedings—Surrogate MAY ISSUE ORDER IN SUPPLEMENTARY PROCEEDINGS—CODE ClV. Pro., § 2434.
    Where an execution was issued upon a judgment rendered in a justice’s court, which had been docketed in the office of the county clerk of Steuben county, and the provisions of the Code of Civil Procedure, section 1307, were complied with. Held, that the surrogate of Steuben county might entertertain supplementary proceedings at chambers under the Code of Civil Procedure, section 2434, as amended by Laws of 1883, chapter 309.
    Appeal from an order of the Steuben County Court . denying a motion to vacate an order granted by the surrogate of said county, acting as county judge, directing the defendant to appear and be examined in proceedings supplementary to execution.

      Leslie W. Wellington, for app’lt; Edwin C. English, for resp’t.
   Smith, P. J.

The power of the surrogate to make the order sought to be vacated is questioned by the appellant. Section 2, of chapter 309 of the laws of 1883, if valid, vests the surrogate of the county of Steuben with “all powers conferred by law upon the county judge, at chambers or out of court.”

The appellant’s counsel contends that that section, being contained in a local bill, relates to a subject not expressed in the title and so is void under section 16 of the third article of the constitution. The act is entitled, “An act to provide for the election of a surrogate, separate from the county judge of the county of Steuben, and to fix the salary of said surrogate, and also the salary of the county judge of said county, hereafter to be elected.”

The first section of the act provides that after the first day of January, 1884, there shall be an officer to perform the duties of surrogate of said county, separate from the county judge, who shall be denominated the surrogate of the county; the second section authorizes such officer to exercise, within the county, the powers of the county judge already referred to; the third provides for his election and his term of office; and the fourth and last section fixes the salary of the surrogate and of the county judge.

The subject of the act is the creation of a separate officer to be known as the surrogate of the county. The prescribing of the powers, with which he was to be vested, is incidental to the main subject, and not a separate subject. In that respect it is like the provision fixing his compensation. The circumstance that the powers conferred by section 2 are in addition to the usual powers of surrogates, has no bearing upon the question. The action of the legislature in conferring such powers, was within its authority, and was not the introduction of a matter foreign to the general subject stated in the title.

It has been held frequently that where the title of a local bill expresses a general object, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act and are germane to the title.- Matter of petition of Knaust, 101 N. Y., 188, per Danforth, J., p. 194, and cases there cited; Cole v. The State of New York, 102 N. Y., 48, 58, 1 N. Y. State R, 354. In the case before us, it was not' necessary to resort to a separate bill to define the powers of the newly created officer.

The Case of Blodgett (89 N. Y., 392), cited by the appellant’s counsel was put upon the ground that the act there considered was limited by its title to ‘1 regulating and grading the Eighth avenue,” in the city of New York, and that the provisions contained in the act authorizing the grading of other streets intersecting with the avenue, were not germane to the subject expressed in the title. The opinion in that case was delivered by the same judge who wrote in the subsequent case of Knaust, (sup.), and it is manifest that in the judgment of the court of appeals the two cases are distinguishable.

We think the rule followed in the Matter of the petition of Knaust, and other like cases is applicable to the case in hand, and that the second section of the act of 1883 is valid.

The appellant’s counsel contends that even if the second section of the act is valid the surrogate was not authorized thereby to entertain supplementary proceedings, and as he is not one of the officers mentioned in section 2434 of the Code, his order was a nullity. The second section of the act gives to the surrogate “all the powers conferred bylaw upon the county judge, at chambers or out of court.” Among the officers mentioned in section 2434, before whom supplementary proceedings may be instituted, is “a judge of the court, out of which, * * * the execution was issued.” The execution in the present case was issued upon a judgment rendered in a justice’s court, which had been docketed in the office of the county clerk on filing a transcript. The judgment was thenceforth to be deemed a judgment of the county court and to be enforced accordingly, (Code, § 3017), and the execution to be issued thereon by the county clerk, “was to be in the same form, and executed in the same manner, as an execution issued upon a judgment of the county court,” (sec. 3043) except as provided in section 1367 of the Code. Those provisions were complied with in the present case. The case was therefore one in which the county judge of Steuben might have entertained supplementary proceedings at chambers, and consequently the like power was conferred upon the surrogate by the general words of section 2 of the act. That section was pro tanto, an amendment of section 2434 of the Code.

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

Barker, Haight and Bradley, JJ., concur.


author: Bradley, J.

text:
    Thaddeus Munson, App’lt, v. Melvin Curtis, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887)

    Costs —Code Civ. Pro. § 3070—Laws 1885, Chap. 523—Code Civ. Pro. § 3353.
    Where an action was commenced in a justices’ court and from the judgment rendered therein an appeal was taken to the county court, and a new trial had there, intermediate the dale of the appeal and the trial of the action in the county com t, the amendment to Code Civ Pro £ 3070, by Laws 1885, chap 522, went into effect. On an appeal irom the taxation of costs in the county court, held, that the section us amended must govern as to costs. That there is no vested right to uurecovcred costs and no want of legislative power to impose or deny costs in actions, or to impair the force during their pendency of any statute on the subject of costs. That Code Civ. Pro § 3353 docs not embrace unearned costs.
    Appeal by the plaintiff from an order of Ontario county court setting aside the taxation of the plaintiff’s costs, and directing the allowance and taxation of the defendant’s costs.

      L. C. Hall, for app’lt; Spencer Gooding, for resp’t.
   Bradley, J.

In October, 1882, this action was commenced in justices court, where the plaintiff recovered $55.31 besides costs, from which appeal was taken by the defendant to the county court of Ontario county for a new trial, which was had there in June, 1886, and a verdict of $11.91 rendered for the plaintiff. Both parties presented bills of costs for adjustment and insertion in the judgment, to the clerk, who allowed and taxed the plaintiff’s costs.

On the defendant’s motion for retaxation the county court set aside the allowance of the plaintiff’s costs, and directed those of the defendant to be taxed and inserted in the judgment. From this order the plaintiff appeals. And the question arises as to the effect of the amendment of section 3070 of the Code of Civil Procedure, by Laws of 1885, chapter 522, upon the right to costs in the action. As the recovery in the justices court was reduced more than ten dollars by that of the county court, the defendant would have been entitled to costs, under the statute, as it was at the time the appeal was taken to the county court.

The amendment of that section was passed June 13, 1885, and took effect the third day of July following, and by it the modification was such that if neither party within fifteen days after the service of notice of appeal served an offer to allow judgment, etc., the party recovering in the county court is entitled to costs. Before this change of the statute by such amendment, the time to make the offer provided for by it had elapsed, and compliance in that respect for protection in the matter of costs could not be had. It is, therefore, contended by the defendant’s counsel that the provisions of the amendment of section 3070 are not applicable and do not govern the right to costs in this action. And that such right is within the saving purpose of section 3352, which provides that nothing contained in any provision of the Code, should render ineffectual, or impair any proceeding in an action taken pursuant to law or any other lawful act done or right lawfully accrued or established before the provisions of it take effect, unless the contrary is expressly declared. And that for the purpose of avoiding such result, etc., the statutes in force on the day before such provisions take effect are deemed to remain in force notwithstanding their repeal.

The propriety and purpose of the provisions of that section are apparent, and they cannot be construed to embrace the situation presented here. The considerations involved in the saving provisions of that statute had in view the support of proceedings lawfully taken and rights lawfully accrued or established.

The right of review' furnished by a statute under which it is taken is one of the rights saved by the section, but no right to costs had accrued to either party at the time this amendment to the statute w:as made. The allowance of costs by one party against another to an action is wholly statutory, and is dependent upon the statute existing at the time the right to costs under it accrues. Supervisors v. Briggs, 3 Denio, 173. There is no vested right to unrecovered costs, and there is no want of legislative power to impose or deny costs in actions, or to impair the force during their pendency of any statute on the subject of costs. No question can arise upon the construction and import of this amendment of 1885, furnished by its terms. There is no opportunity to say that the legislative intention was that its terms should be so qualified as not to apply to appeals then pending. While such may have been a suitable qualification so as to obviate any prejudice from inability to render all of its provisions available in such cases, that consideration does not go to the question of legislative power, or to the legal effect of the statute, although it might, in giving it construction, if its terms permitted one -which would protect the situation of the parties, as it was at the time of the amendment, so as to conform their rights to that furnished by the then existing statute.

There was no legal authority for the defendant to serve an offer before the amendment, and none was furnished by that to him to make the offer there provided for. As applied to this action the statute required the payment by the defendant of the costs of the plaintiff if the latter recovered any sum whatever in the county court. It may seem a hardship to be charged with the consequences of omission to do that which he is not by the statute permitted to do, but relief from this situation is not found in the construction of the statute. Nor can we adopt the view of the court below that this section as amended was not applicable t© this case, and, therefore, the right to costs was dependent upon sections 3228, 3229, which entitled the defendant t© costs, because the plaintiffs recovery was less than $50. And in support of that are cited Snyder v. Hughes (27 Hun, 373), and Quick v. Nixon (27 Hun, 592). So far as they are authority it was held that when the statute regulating costs on appeals from justice’s court to county court cannot be applicable to a case presented, the right to costs will be governed by the general provisions of sections 3228 and 3229. That is not this case. During the time of the pendency of this action there has been continuously a statute providing for costs of such appeals to the county court and for the recovery of them. And the intermediate amendment does not defeat its application to this case, and, therefore, the operation of sections 3228 and 3229 upon the rights of the parties in this action to costs is defeated. The governing statute entitled the plaintiff to costs.

This is the view taken by the court in the Fourth department in Sheehan v. Buller (24 N. Y. Week. Dig., 168), which we think was correctly decided.

These views require the conclusion that the order should be reversed and the motion for retaxation denied.

Haight, Angle and Childs, JJ., concur.


text:
    Calvin P. Brown, as Assignee, etc., Resp’t, v. Benjamin F. Pease, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    1. Bills and notes—Note given to indemnify trustee against loss— Proof of loss.
    Where, upon the death of one of two executors under a certain will, an order was made appointing one V. trustee under said will, and directing that the funds be paid over to said V. All the funds were paid over as directed except $1,000, which P. was allowed to retain upon his giving his note for that amount to V. to indemnify him against loss, and P. agreeing to pay a certain legacy amounting to that sum to his son when it, became due, P. failed to pay said legacy, and V was compelled to pay it pursuant to a decree made by the surrogate. And the note and other property having been assigned' by V. for the benefit of creditors, suit was brought by the assignee against P. Held, that it was competent for V.’s assignee to prove that V. had been compelled by the decree of a competent court to pay such legacy with his own means, thus establishing a complete cause of action upon the indemnity.
    2. Same—Pleading—What complaint ?hould aver.

      Held, that the fact that the note was executed as. an indemnity, and the fact of the loss covered by the indemnity should be set out in the complaint instead of counting on the note alone.
    3. Same—How held—When designation may not be proved.

      Held, that the trust was satisfied by his payment of the amount due to the legatee, and the loss thereby occasioned, was sustained by.V. individually; that the fact that he was described in the note as trustee, etc., is incompetent, being a mere designation of the person.
    Appeal from a judgment entered on the report of a referee.

      I. D. Smith, for app’lt; F. L. Brown, for resp’t.
   Smith, P. J.

The recovery in this action is upon a promissory note made by defendant, of which the following is a copy: “On the twenty-sixth day of July, one thousand eight hundred and eighty-three, for value received, I promise to pay Garret Van Sickle, trustee under the last will and testament of Simeon Pease, deceased, one thousand three hundred and fifty dollars, with use. Dated, Trumansburgh, April 1, 1882.

(Signed.) “B. F. Pease.”

The referee found, upon satisfactory evidence, that in November, 1884, Van Sickle, the payee named in the note, assigned all his property, in trust for the benefit of hiiy creditors, to the plaintiff, and that the plaintiff, as such assignee, is the owner and holder of said note.

The referee also found that Simeon Pease, late of Tompkins county, died, leaving a will wherein Henry D. Barto and the defendant were named executors and trustees; which trusts they accepted, the will having been admitted to probate; that, by said will, the testator bequeathed to his grandson, Simeon Pease, a son of the defendant, the sum of one thousand dollars, to be paid to him. on his attaining the age of twenty-one years; that, in 1872, said executors had a final accounting before the surrogate of Tompkins county, whereby there was found to be in their hands the sum of over six thousand dollars out of which the said legacy was to be paid when due; that Barto died in 1873, having said > of upwards of six thousand dollars in his possession; that soon after his death Van Sickle was, by an order of this court, appointed executor or trustee of the estate of said deceased, in the place of Barto; that afterwards the representatives of Barto paid said sum of six thousand dollars and upwards to Van Sickle and the defendant who gave their joint receipt therefor; that Van Sickle, at the same time and in the presence of the defendant, took manual possession and control of said money and retained the same thereafter, except the sum #f one thousand dollars, which was delivered to defendant by Van Sickle on defendant’s promise that he would secure Van Sickle therefor by a mortgage on real estr.te; that afterwards, and on April 1, 1876, the defendant in lieu of a mortgage on real estate, delivered to Van Sickle his promissory note for one thousand dollars, payable “to the order of Garret Van Sickle, trustee under the last will and testament of bimeon Pease, deceased,” and upon which note Van Sickle made an endorsement of one year’s interest, April 6, 1877, the same having been paid; that Van Sickle held said note till April, 1882, when defendant gave to Van Sickle a new note in liou of the old one for the amount of the principal of the old note and the interest that had accrued thereon since 1st of April, 1877, which new note was made payable 26th July, 1883, the date when said legatee, Simeon Pease, would attain his majority, and which is the note in suit.

The referee also found that after said legatee became of age he instituted proceedings in the surrogate’s court of Tompkins county, which resulted in a decree of said court ordering Van Sickle and the defendant to pay said Simeon Pease on account of his said legacy the sum $1,078.33, for principal, interest, costs and disbursements; that Van Sickle thereupon paid said last mentioned sum to said Simeon Pease in pursuance of said decree; that all of the facts above stated, except the assignment from Van Sickle to the plaintiff, were in substance found by said surrogate in said proceeding; that the findings of said surrogate were put in evidence on the trial of this action, and the facts therein stated were assumed by the respective parties hereto to have been established in this action, and that the said promissory note was given by defendant to Van Sickle to indemnify Van Sickle against loss by reason of the payment or delivery to the defendant of said $1,000.

The referee concluded that the plaintiff, as the assignee of Van Sickle, is entitled to recover the sum which Van Sickle was compelled, by the surrogate’s decree, to pay to the legatee, with interest thereon from the time of such payment, and he ordered judgment therefor.

U| an the facts > *wd, as above stated, the right to recover seems clear.. Teat note being sworn to have been given for the indemnify of Van Sickle against loss by reason of his leaving in' the hands of the defendant the fund with which his son’s legacy was to be paid, it was competent for the plaintiff to prove that Van Sickle had been compelled by the decree of a competent court to pay such legacy with his own means, thus establishing a complete cause of action upon the indemnity. That cause of action passed to the plaintiff under the general assignment executed by Van Sickle to him. It might have been well for the pleader to set out in the complaint the fact that the note was executed as an indemnity, and the fact of the loss covered by the indemnity instead of counting upon the note alone. P: J, as wre understand the printed case, the fact that the note was given for that purpose, and the further fact of the surrogate’s decree appeared upon the defendaift’s showing, and the plaintiff was then allowed, properly, as we think, to show payment by Van Sickle of the amount decreed to be due to the legatee. If necessary to sustain the judgment, the complaint may now be amended to conform to the proof.

The cause of action against the defendant, which Van Sickle had when he executed his assignment, was possessed by him in his individual character, and not as trustee or executor. The trust was satisfied by his payment of the amount due to the legatee, and the loss thereby occasioned was sustained by him individually. The fact that he was described in the note as trustee, etc., is incompetent. Such description was a mere designation of the person.

The defendant cannot, in this action, question the validity of the order appointing Van Sickle trustee or executor, or his right to have possession and control of the trust funds. The defendant, by his acts in reference to the estate, and his dealings with Van Sickle, recognized the validity of the appointment, and the right of Van Sickle to take charge of the funds, and he is concluded thereby, so far as the questions involved in the present action are concerned.

These views meet the positions taken by the» appellant’s counsel, with a single exception. He contends that the finding of the referee, that the note in suit was given as an indemnity is unsupported by the evidence. That finding-appears to us to be well sustained by the findings of the surrogate, which appear by the case to have been put in evidence by the defendant, and the facts stated therein to have been assumed by the parties to be established in this action.

The judgment should be affirmed.

Barker, Haight and Bradley, JJ., concur.