text:
    Soldiers’ Orphans’ Home of St. Louis, Pl’ff, v. Russell Sage et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed January, 1895.)

    Pleading — Demurrer.
    A failure to designate a defendant, sued in a representative capacity, by his title as such, does not render the complaint demurrable.
    Demurreé to the complaint

      W H. Delancey, L. J. Morrison and Charles P. Daly, for pl’ff; Edward C. James, for def’t George J. Gould.
   Beekman, J.

The complaint charges that Jay Gould and Russell Sage have misappropriated 30,000 shares of the Denver Pacific Railway & Telegraph Company conveyed to them intrust by the Kansas Pacific Railway Company as collateral security for the payment of certain bonds known as “Kansas Pacific Consolidated Bonds.” The conveyance was by deed of trust made by the Kansas Pacific Railway Company to Jay Gould and Russell Sage, as trustees, on May 1, 1879. The complaint contains a very full specification of the manner in which the alleged breach of trust was accomplished, but which it is unnecessary to set out for the purpose of deciding the only question raised by the demurrer. The action is brought by the plaintiff, as owner of a portion of the consolidated bonds, on its own behalf and on behalf of other holders of such bonds, to compel restitution to the trust estate of the value of the converted securities, and for the removal of the trustees. The parties defendant are Russell Sage and George J. Gould individually, and Edwin Gould, George J. Gould, Howard Gould, and Helen M. Gould as executors and executrix of the last will of Jay Gould, deceased. It appears from the complaint that Jay Gould died subsequently to the acts complained of, and the defendant executors are charged as his legal representatives,’ under appropriate allegations. The defendant George J. Gould was substituted as trustee under the deed of trust above mentioned upon the decease of Jay Gould, and was therefore made a defendant by a separate and further designation in the summons, for two reasons appearing on the face of the complaint : First, because, being such trustee, he had refused to take any action to recover for the benefit of the trust the proceeds of the misappropriation; and, second, because he was disqualified to act as trustee by reason of personal interests adverse to the trust. The relief asked for in the complaint is:

“ That the defendants may be decreed to account for the proceeds of the trust stock taken from the trust, and for all premiums, dividends, interest, and profits for which they are legally accountable; that the defendants Bussell Sage and George J. Gould may be removed from the trusteeship of the consolidated mortgage of the Kansas Pacific Bailway Company ; that the defendants may be enjoined from interfering with any of the trust property conveyed by the consolidated mortgage or belonging to the bondholders thereunder, and that a receiver be appointed of such property ; and that the plaintiff may have such other or further relief as the circumstances of the case may require and to this honorable court may seem just.”

The defendant George J. Gould now demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action against him individually. The point of the demurrer is best illustrated by the statement that if the words “as trustee, &c.,” had been added to his name in the summons, the demurrer would not have been interposed. As is stated by his counsel in the brief submitted, “ It is because the plaintiff has not made him a party as a trustee, but individually, and has failed to state a cause of action against him individually, that Mr. Gould demurs. He is entitled at the outset to know in exactly what capacity the plaintiff sues him.” The point which is thus raised is a highly technical one, and does not commend itself to the court as deserving more recognition than the strict letter of the law may demand. There can be no doubt that in such an action as this the trustees are necessary parties. It is also plain upon the face of the complaint that George J. Gould has been charged as such by appropriate allegations. It is also evident that the pleader has not in fact or in intent charged or sought to charge him in respect to any matters of individual concern, or that any recovery could be had against him other than his exclusion from any further administration of the trust. The capacity, then, in which he is sued, appears upon the face of the complaint to be a representative one. He is impleaded as trustee, and cannot be held to to any responsibility in the action except in that relation. But he claims that while this may be true he has not been described in the summons or in the caption of the complaint “ as trustee,” bat that, on the contrary, the word “ individually ” follows his name in both places; that he has therefore been brought into the action only for the purpose of charging him in a personal, and not in a representative, capacity, and that, finding the complaint to be one affecting him only in the latter respect, there is no cause of action against him in reference to which he can be considered a party to the suit. I do not think this position to be a tenable one. In the first place, a demurrer does not run to the summons or to the caption of the complaint. It is confined to the allegations of the complaint We may look to the summons in considering the question of capacity in which the parties are sued, but it is not controlling, and where the allegations of the complaint clearly charge the defendant in one capacity, and in that capacity only, the complaint should control and override any contradictory description in the summons. The object of the summons is to bring the individual into court, where, in contemplation of law, he remains, to be dealt with upon a'determination of the issues raised by whatever pleadings may be interposed, and in respect to whatever matters the plaintiff may tender an issue. The summons itself refers to the complaint as the reason for its own existence, and notifies the defendant that it is in respect to that he has been made a party, and that it is to that he is expected to plead. The avowed object of the Codes of Practice which have existed in this state for nearly fifty years has been to free the administration of justice from technicalities which impeded the speedy decision of -causes upon their merits. Prior to the adoption of the Code of Civil Procedure, the summons existed in two forms, — one for use where the cause of action was for a money demand on contract, and the other where different relief was sought. But the present Code has abolished these distinctions, and a single form of summons only is permissible, more in harmony with its true function of simply bringing the parties into court. When this is done, the purpose for which it exists has been fully accomplished. The complaint then becomes the subject of scrutiny, and accordingly as the issue it tenders relates to matters concerning the defendant in a representative capacity or individually is he to be regarded as having been sued in one capacity or the other. This, 1 think, is fairly to be deduced from the cases; at least I do not think it can be claimed that as a whole they are inconsistent with such a conclusion. Beers v. Shannon, 78 N. Y. 292 ; Stilwell v. Carpenter, 62 id. 639, fully reported in 2 Abb. N. C. 238. In both of these cases Judge Folger writes the opinion. The case of Beers v. Shannon was an action by an executor on a bond made to his testator. The words following the plaintiff’s name in the summons were “executor, etc.,” not “as executor, etc.” In his opinion the learned judge says (page 297):

“ The first point made by the defendant is this: that the action is not brought by the plaintiff in a character representative of the deceased obligee. This is based mainly upon the omission of the word ‘as’ between the name of the plaintiff John L. Beers and the description of him, ‘executor of, etc., of John Beers, deceased,’ in the-title of the summons and in the body of the summons, and in the title to the complaint. It is true that without that word in that position it has been sometimes held that the addition to the name of the party is but a descriptio personae, and does not give to him other than a personal or individual character in'the action. But it has been held, on the other hand, that, though there be naught in the title of the process or the complaint to give a representative character to the plaintiff, the frame and averments and scope of the complaint may be such as to affix to him such character and standing in the litigation. Stilwell v. Carpenter, 62 ÍT. Y. 639, reported in full 2 Abb. N". C. 238. In the case in hand the averments of the complaint are such that the defendant had full notice of the questions to be tried; that there was a definite issue presented for trial; that the judgment might show what was determined by it; and that any other question dependent upon the character in which the plaintiff sued could be readily presented. It was plain from the complaint that the cause of action, if any, devolved upon plaintiff, as a representative of the deceased obligee, by the creation of a representative relation by the will.”

I do not,think that the fact that the question arose in reference to a plaintiff who was supporting the status which he claimed to have assumed when he voluntarily came into court affords any substantial ground for distinguishing this case on principle. The decision really seems to rest upon the proposition that the allegations of the complaint are paramount in determining the relation, whether personal or representative, in which the parties stand to the action, and that the test of the capacity in which a party sues or is sued is to be found in the complaint. The learned counsel for the defendant plaims that the present case is controlled by Austin v. Monro, 47 N. Y. 360, and he rests the strength of his position upon that case as a precedent. The case in question was an action brought in terms against the defendants as executors; the complaint set up a contract with them as such, and the prayer-for relief was a recovery from the assets of the estate. The whole purpose and intent of the pleader was to charge the defendants in their representative capacity only. The defendants demurred, and the demurrer was sustained, it being evident that, whatever claim the plaintiff might have against the defendants individually, he had none against the estate they represented. It was argued in support of the complaint that, at least, it presented a cause of action against the defendants individually, and should therefore be upheld. In sustaining the demurrer the court says:

“The form of the complaint and the substantive averments therein, as well as the -form of the judgment demanded, characterize the action as against the defendants in their representative capacity, and not against them individually."

It is true that the court also refers to the use of the words “as executors, etc.,” which followed the names of the defendants in the title of the action, as also indicating the character in which they were sued, but the context of the opinion shows that the complaint itself was considered to be the substantial test in the solution of the question, and I am therefore led to consider this case rather as supporting than as in conflict with the general principle which I have already stated. The complaint in the case at bar is not one having a double aspect. It presents and suggents only one cause of action in respect to the defendant George J. Gould, — a cause of action which can exist only against him in his representative capacity as trustee. Whatever judgment may ultimately be rendered in the action will be one either in his favor or against him in relation only to the trust estate. In other words, the judgment so rendered will have precisely the same effect as if the words “as trustee” had followed his name in the summons and title of the complaint. The case of Landon v. Townshend, 112 N. Y. 93: 20 St. Rep. 223, which has been referred to by counsel, does not affect the question under consideration. The circumstances of the case were peculiar, and the court also calls attention to the fact that neither the complaint nor the summons made any reference to the official character of the defendant. In conclusion, I do not wish to be understood as commending the method which the plaintiff has adopted in characterizing this defendant in the summons. The proper practice is to designate a defendant sued in a representative capacity by his title as such, but the failure to do this does not of itself lay the complaint open to attack on demurrer. I am of the opinion that the objection to the complaint in this case is not well taken.

The demurrer is overruled, with costs, with leave to the defendant to answer within twenty days, on payment of costs.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    Helen S. Bridge, Pl’ff, v. National Life Association, Def't.

      (Supreme Court, St. Lawrence Special Term,

      Filed March, 1895.)

    Insurance — Life—False statement.
    A false statement which, the insured, under the mistaken belief that he is obliged to make such statement in order to re-instate the policy, makes, while the policy is in force, as to his then state of health, does not avoid it.
    Action on a life insurance policy.

      John C. Keeler, for pl’ff; W. A. Sutherland, for def’t.
   Russell, J.

The defendant seeks to destroy the value of a life insurance policy payable to the widow of the deceased, Charles B. Bridge, for $2,000, because the deceased, during the pendency of the policy, and after many payments had been made on it, signed a false statement as to the then condition of his health, under the mistaken belief that he was obliged to make a statement to reinstate the policy. The only question to be seriously considered is whether such a false statement avoids a policy regularly in force at the time it was made. The policy was issued to the deceased on the 13th day of July, 1892. It called for bimonthly payments. Those payments were regularly made up to the death of the intestate, on the 5th of May, 1894. Such payments were made by check forwarded from Canton, N. Y., to the company at Hartford, Conn., in pursuance of notices regularly made by the general manager of the defendant, which contained these two clauses: “ Make all checks and post-office orders payable to the National Life Association.” i- We inclose you an envelope directed to the company, which you are at liberty to use in remitting.” On the 27th day of November, 1893, the father of the deceased mailed the payment becoming due December 1st by a check on the St. Lawrence County Bank at Canton, which check included the payment due on December 1st upon a policy issued to such father. The defendant collected the money on this check, but at what time it deposited the check does not appear. By the natural course of mail a letter deposited in the postoffice at Canton would reach Hartford, Conn., as early as the second day after, so that the presumption is that this check arrived at the office of the defendant on Wednesday, the 29th of November, 1893. Whether it was there overlooked or mislaid does not appear from the evidence. There is no proof in the case that the check was not received on or about December 1st, except so far as the statement of the deceased in signing a paper forwarded by the defendant on the 2d of December, 1893, may raise some presumption. The defendant gave no evidence that the letter was not received at its office before December 1st, nor was the envelope which might bear the stamp of the postoffice at Hartford, showing the date of the receipt, produced by the defendant, or its loss accounted for. Nor is there any proof that the company sent any notice to the father that his premium due the same day, and paid by the same check, was not received in time. On the 2d of December, 1893, the defendant mailed to the deceased a notice that the premium due the 1st day of December was not received until after that date. Such notice was sent bjr the general manager, with the view before him of the date of the check and of the letter inclosing it, if we may presume that one was written, and the postmark upon the envelope as to the time of actual receipt. The statement is upon a printed form, headed at the office of the National Life Association, and the notice says that the premium was not received “here” until after December 1st. Upon receipt of that notice, the deceased, under date of the 5th of December, 1893. signed a printed form, warranting his soundness of health and freedom from disease, and returned it to the general manager of the defendant. The statements in that printed form, signed by the deceased, were false in fact. Whether the deceased knew that the hemorrhage was from his lungs makes no difference in law. He was not in sound health, and at that time was suffering under a disease which a few months later caused his death. The proof shows that the body of the check was filled out by the deceased, and was then signed by the father, who took it and mailed it. There is no evidence that the father, however, communicated the time of the mailing to the son, so that it is possible the deceased may have supposed the check to have been delayed in sending. However this may be, it is clear that the deceased supposed that his check did not reach Hartford until the day after it was due, — a fact of which he could have no knowledge except from the statement of the defendant. Acting under this mistaken belief, or under the mistaken supposition that his payment was not good, even though timely made, it was not received and actually taken from the envelope on or before the 1st day of December, the deceased made the statement which he was under no legal obligation whatever to make. It was, therefore, so far as the relations of the parties are concerned, the same as if midway between payments the defendant had required the deceased to certify that he was in sound health, under the assertion that it would not recognize the obligation of the policy unless he did. The statement so made on the part of the deceased was gratuituous, and of no legal or binding force. I can readily see why a statement made by an assured, either under a fire or a life policy, bearing materially upon the risk, should be valid as a defense if it were false, where there is a reserved right on the part of the company to alter its relations with the deceased. If a company has the power to cancel, or the the power to terminate by notice, or the right to require statements, by the contract between the parties, then the assertion that it will exercise that power is a sufficient consideration to justify a reliance upon a statement affecting the value of the risk voluntarily made by the assured. Such a statement leads the insurance company, presumptively, to a different course of action than it might otherwise take. It suspends its power of revocation, whether it had actually taken any action towards the cancellation or not. But where the relations of the parties, as in a life insurance policy, consist on the one part of an obligation to pay the premiums demanded, and on the other side to continue the risk of insuring the life which is daily growing more hazardous as life advances in age, those relations may not be terminated by either party, as against the other party, by the exercise of any option, except for the one cause of failure to perform. In the case at bar the deceased had up to the 1st day of December to mail that check. Primeau v. Association, 77 Hun, 418; 60 St. Rep. 41; affirmed, 144 N. Y. 716. If mailed the latter part of the day on December 1st, it could not have been received by the defendant in time to write the letter of December 2d, sending the notice of nonpayment, and the alleged contract for reinstatement. Assuming, therefore, that the writer of that letter, acting for the defendant, was proceeding in entire good faith, he was also mistaken in supposing that he had a right to cancel a contract for the nonpayment of a premium legally made on the 1st of December, if not before; and, doubtless, if he supposed, from the delay in opening the letter in the home office of two or three days, that it had not been actually mailed prior to December 1st, still in sending such a letter as he did to the deceased he was mistaken in the law in exacting the requirement of a new warranty, and therefore did what he otherwise would not have done. Judgment goes for the plaintiff for the amount due upon the policy, which, after deducting the amounts chargeable “ for certain liens provided for by the policy, is $1,850, with interest from August 23,1894, with costs to the plaintiff.

Ordered accordingly.


author: McCarthy, J.

text:
    Patrick Dunn et al., Resp’ts, v. Charles Wehle, App’lt.

      (New York City Court, General Term,

      Filed April 16, 1895.)

    Pleading — Complaint—Jubisdiction.
    The city court is without jurisdiction, where the complaint shows on its face a necessity for equitable relief.
    Appeal from an order discontinuing the action without costs. The complaint is as follows:
    The plaintiffs above named, bv John Whalen, their attorney, complaining of the above-named defendants, allege and aver: First. That on or about the 23d day of February, 1894, these plaintiffs,

      by Charles Wehle, the defendant above named, an attorney practicing in the courts of this state, and retained by them to conduct a certain action against the president and directors of the Phoenix Assurance Company of London, obtained a judgment against said company for the sum of $1,793.73, to which judgment the plaintiffs hereby refer, and make a part of this their complaint, when the same shall be produced and proved. Second. That on or about said date, viz. 23d day of February, 1894, the defendant herein requested these plaintiffs to sign and execute an instrument in writing, a'nd which he represented to them to be an authority to the defendant to collect and receive the amount of said judgment from the company aforesaid. Third. That the defendant herein, by means of representations, false and calculated to deceive these'plaintiffs, induced the said Patrick Dunn to sign and execute said instrument; that said Ann Dunn, one of the plaintiffs herein,
    _ absolutely refused to sign or execute the said instrument. Fourth. Upon information and belief, that upon the same day last aforesaid there was filed in the office of the clerk of the city court of New York an instrument purporting to be signed and acknowledged by both the plaintiffs above named, assigning said judgment, in consideration of eight hundred dollars, to the defendant herein, at that time the attorney for these plaintiffs. Fifth. That said instrument in writing was and is, by virtue of such false representations, and nonexecution by the said Ann Dunn, null, void, and of no effect Sixth. Upon information and belief that thereafter, and on or about the 12th day of March, 1894, said defendant received from said Phcenix Assurance Company of London the sum of $1,400 in payment and satisfaction of said judgment recovered as aforesaid; and a satisfaction piece was thereupon executed by the defendant herein, and delivered to said company or its attorneys, and was thereupon executed by the defendant herein, and delivered to said company or its attorneys, and was thereupon, and on March 12, 1894, filed in the office of the clerk of the city of New York. Seventh. That thereafter, and before this action was commenced, the plaintiffs herein duly demanded from the defendant herein payment of the money so recovered, with which demand the defendant refused to comply, and that no part thereof has been paid, except the sum of twenty-five dollars. Eighth.
    That there is now justly due and owing to these plaintiffs the sum of $1,793.73, with interest, less the sum of $25 paid as aforesaid. Wherefore the plaintiffs herein demand judgment: First. That
    the alleged assignment aforesaid be declared fraudulent and void and of no effect, and that the same be set aside. Second. That plaintiffs herein recover the sum of $1,793.73, less the sum of $25 paid as aforesaid, together with interest and the costs and disbursements of this action, or for such other, further and different order, judgment, or relief in the premises as to the court may seem just and proper.

      Charles Wehle, in pro. per.; John Whalen, for resp’ts.
   McCarthy, J.

It seems to me clear that the want of jurisdiction in this case appears on the face of the complaint plaintiff can claim any money judgment, he must apply to a court of equity, as appears by the demand of the complaint for judgment, to wit: “ First. That the alleged assignment aforessid be declared fraudulent and void and of no effect, and that the same be set aside.” The court has no power to grant such relief, and the order to discontinue without costs was properly allowed.

Order is therefore affirmed, with costs. •


author: Per Curiam.

text:
    Stephen H. Sturges, Resp’t, v. Isaac B. Newcombe et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    Pleading — Amendment.
    The complaint on a note, which the answer avers was usurious, may be amended so as to state that it was given in renewal of a note, not tainted with usury.
    Appeal from an order, allowing an amendment to the complaint.
    The original complaint was as follows :
    (1) That at the times hereinafter mentioned the defendants were partners doing business in the city of Mew York under the firm name of I. B. Mewcombe & Co. (2) That heretofore the said defendants, under their firm name, made and delivered their promissory note in writing, dated the 24th day of June, 1893, at Mew York, and thereby promised to pay to the plaintiff or his order one hundred thousand dollars ($100,000) in gold, of present weight and fineness, thirty days after said date, with interest at six per cent, per annum. (3) That payment of said note has been duly demanded, and that no part thereof has been paid, except the sum of thirteen hundred and eighty-seven and 50 /100 dollars ($1,387,50) on the 28th day of July, 1893; nine hundred and thirty seven and 50 | 10Ó dollars ($937.50) on the 31st day of July, 1893 ; eighty dollars ($80) on the 8th day of August, 1893; eleven hundred dollars ($1,100) on the 10th day of August, 1893. Wherefore, the plaintiff demands judgment against the said defendants for the said sum of one hundred thousand dollars, with interest from the 24th day of June, 1893, less the snm of thirty-five hundred and five dollars ($3,505) paid as aforesaid ; and the plaintiff also demands judgment, with costs of this action.
    Defendants, by their amended answer to the original complaint, alleged that the note sued on was usurious. Thereupon plaintiff applied for and obtained leave to serve an amended complaint, as follows;
    (1) The defendants at all the times hereinafter mentioned were copartners doing business as bankers in the city of Mew York under the firm name of I. B. Mewcombe & Go. (2) On the 25th day of May, 1893, the plaintiff, upon the request of the defendants, loaned and advanced to the defendants the, sum of one hundred thousand dollars, which sum the defendants then promised to repay to the plaintiff on the 24th day of June, 1893, with interest thereon at the rate of six per cent, from the said 25th day of May, 1893. Thereupon, and in consideration of the said loan, and as evidence of the same, the defendants made and delivered to the plaintiff the promissory note of defendants, bearing date the said 25th day of May, 1893, in and by which the defendants promised to pay to Sturges & Roby, thirty days after date, without grace, the sum of one hundred thousand dollars in gold coin of the then present weight and fineness, with interest. thereon at the rate of six per cent, per annum from the said 25th day of May, 1893. The said promissory note was by its terms made payable to Sturges & Roby, who were a firm and copartnership of attorneys at law, and who received the said note for and in behalf of, and upon the request of, the plaintiff; but the sa'me was delivered to them and recived by them solely for the plaintiff, and was both indorsed and delivered to the plaintiff prior to the 24th day of June, 1893. (3) Thereafter, and on or about the 24th day of Jnne, 1893, the defendants requested this plaintiff to extend the time of payment of the said loan, and thereupon it was agreed between the plaintiff: and these defendants that the time of payment of the said loan should be extended from the 24th day of June, 1893, until the 24th day of July, 1893; and thereupon, and on the said 24th day of June, 1893, and in consideration and as evidence of the said loan, the defendants duly made delivered to the plaintiff the promissory note of them (the defendants), dated the 24th day of June, 1893, in and by which the defendants promised to pay to the plaintiff, thirty days after the date of the said last-mentioned noté, the sum of one hundred thousand dollars in gold coin of the then present standard .of weight and fineness, with interest thereon at the rate of six per cent, from the said 24th day of June, 1893. In consideration of the delivery of the said last-mentioned note to the plaintiff, this plaintiff surrendered to the defendants possession of the said note bearing date the 25th day of May, 1893. The plaintiff now holds and owns the said note dated as aforesaid the 24th day of June, 1893. (4) No payment has been made by the defendants upon the said loan or promissory note hereinafter set forth, except only that the defendants paid to the plaintiff interest upon one hundred thousand dollars included in the said note dated the 25th day of May, 1893, for the period of thirty days, being the sum of five hundred dollars, and except that prior to the service of this complaint the plaintiff has received the proceeds of sale of certain securities held by him as and for security for the payment of the said loan and the said promissory notes, and for any other indebtedness due or to become due by the defendants to the plaintiff, and other sums of money, in all amounting to the sum of eight-nine thousand three hundred and fifty eight and 75-100 dollars, and no more. This sumh as been duly credited by the plaintiff upon the amount due upon the said indebtedness and the said promissory notes and there remains due and unpaid from the defendants to the plaintiff thereon the sum of eleven thousand nine hundred and sixty-six 25-100 dollars (11,966.25), with interest thereon from September 13, 1893. Wherefore, the plaintiff demands, judgment against the defendants for the sum of eleven thousand and nine hundred and sixty-six 25-100 dollars ($11,966.25), with interest thereon from, the 13th day of September, 1893, together with the costs of this action.

      Treadwell v. Cleveland, for appl’ts; Sturgis & Roby, for resp’t.
   Per Curiam.

It was not a valid objection to the order appealed from, made at special term, that it permitted an amendment that substituted a cause of action different from the one averred in the complaint Deyo v. Morss, 144 N. Y. 216; 63 St Rep. 80. The peculiarities of the litigation placed it within the discretion of the court to determine whether or not there were loches on the part of the plaintiff which should defeat his application to amend.

Order affirmed, with ten dollar costs, and disbursements to be taxed.


text:
    Joseph Steinert, Resp’t, v. Metropolitan Elevated Railway Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    Damages — Elevated Railway.
    In ascertaining a present value in an action against an elevated railway for damages, the reasonable certainties of the future, with other elements, fix the present value.
    Appeal from a judgment in favor of plaintiff.

      Julien T. Davies and Brainard Tolles, for app’lts; W. W. Badger, for resp’t.
   Per Curiam.

An objection made by appellants to the judgment is that the judge, in estimating the fee value of the easements taken, included the effect of noise and vibration upon that value. This does not appear from any finding or conclusion. The assertion of it depends upon reasoning from the whole case. It is said whereas the damage in the past was adjudged to be at the rate of about sixty dollars a year, and the proportion of yearly rent to the fee value was proved to be about one-tenth of it, the finding that the fee value of the easements taken was $1,200 was founded upon an excessive valuation of the fee. The argument is that, as the past rental damage was sixty dollars yearly, the fee damage could not be more than $600. Upon this it is said that, to reach the conclusion that the fee damage was $1,200, the injury from noise and vibration must have been added. This conclusion is not necessarily correct. The two valuations did not regard the same times nor the same circumstances. Valuations are not always continuous. Increase or decrease of values is often sudden. In ascertaining a present value, the reasonable certainties of the future fix, with other elements, the present value. As in finding past damage, so in fee damage, it is competent to inquire if in the future, having in view the reasonable certainties of the future, the value of the future.would be more or less if the railroad was absent, This is a matter of fact, as is the amount of the difference, if any there would be. On this matter the court found for the plaintiff, and the appellants have not shown that there was error in the finding. The plaintiff is not primarily bound to show that the finding is incorrect. It is enough if he show that the defendants have not established error. Such error has not appeared in the evidence or facts.

Judgment affirmed, with costs.


author: Ingraham, J.

text:
    James Roosevelt, as Trustee, etc., Pl’ff, v. Land and River Improvement Company et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed March 22, 1895.)

    1. Trusts — Investment in individual name.
    Where a trustee, with the consent of his co-trustee, invests trust moneys in bonds and mortgages, such bonds and mortgages when executed, though taken in his name individually, instead in the name of himself and his co-trustee as trustees, become the property of the trust estate, and a court of equity, at any time, upon the request of any one interested, will compel such holder to convey them to the trustees as a part of the estate.
    2. Same — Estoppel.
    A trustee, who negligently permits his co-trustee to take in his own name bonds and mortgages purchased with the trust funds, is estoppel from disputing the validity of an assignment of them by such co-trustee as collateral security for a loan procured by him.
    3. Same.
    The person or corporation, for whose benefit the trustee has wrongfully pledged the trust property, may be compelled to make a payment sufficient to release the pledgee’s lien.
    Action by trustee to recover possession of bonds and mortgages as part of the trust estate.

      Tracy, Boardman & Platt, for pl’ff; Sullivan & Cromwell, for def’t assignee; Alfred J. Taylor, for def’t Central Trust Company ; C. E. Miller, for def’t Williams; L. A. Ward, for def’t Bank of Commerce.
   Ingraham, J.

This case several novel and difficult questions, and I have given to it much thought. The main principles to be applied in the disposition of most of the questions presented are, however, well settled, and it is only because of the peculiar circumstances which exist, and the ingenuity with which Weeks endeavored to cover up his frauds, that render the disposition of the questions troublesome.

The defendant, the Land & River Improvement Company, takes the broad ground that no cause of action is shown, and that the plaintiff is unable to bring his case within a recognized principle of equity. A short statement of the case will, I think, show that all the facts necessary to entitle the plaintiff to relief, under well-settled principles of equity, are present, and that the only difficulty is in determining to just what relief plaintiff is entitled. The plaintiff and Weeks were trustees under the will of William E. Howland, and as such had in their possession, as part of the trust estate, certain securities. Weeks suggested to the plaintiff, his cotrustee, that as these securities were selling at a considerable premium, it -would be advantageous to dispose of them, and to invest the proceeds in bonds and mortgages. To that the plaintiff assented, and Weeks sold the securities and received the proceeds. Subsequently Weeks proposed to plaintiff to invest the sum of $45,000, a part of the proceeds, in three of these bonds secured by mortgages on property in the city of New York, known as the “ Danziger bonds and mortgages,” and plaintiff, after an examination of the value of the property, assented. These loans were duly made, and the money paid to Danziger by Weeks; he, however, taking the bonds and mortgages in his own name instead of to himself and the plaintiff as trustees. Subsequently Weeks produced these bonds and mortgages as the property of the trust estate, and showed them to plaintiff, although plaintiff’s attention was not called to the fact that they were in Weeks’ individual name. These facts are substantially undisputed, and I think show conclusively that these bonds and mortgages became, at that time, securities in which the trust estate was invested.

I do not think it is necessary to consider the question as to the extent to which courts of equity have followed trust funds, where the trustee has appropriated them to his own use, for it is clear that the investment by Weeks of the money of the Howland estate in the three Danziger bonds and mortgages was an express investment of the funds of the Howland estate in these mortgages for the benefit of the trust. When Weeks paid the money to Danziger he had in his possession money belonging to the estate to an amount exceeding the amount of the investment, and, under the agreement between himself and his coexecutor, Mr. Roosevelt, it was understood that the money was to be invested in these specific mortgages as part of the trust estate. Upon his payment of that sum of money to Danziger he appropriated the sum paid to Danziger as an investment of a portion of the Hovrland trust estate, and the securities in which that money then became invested became a portion of that estate. The fact that the bonds and mortgages were taken in his name individually, instead of in the name of himself and his cotrustee as trustees, could make no difference, as between himself invividually and the beneficiaries of the Howland estate. He had in his hands money of the How-land estate to invest. With the consent of his cotrustee, he invested that money in these bonds and mortgages; and the bonds and mortgages when executed became securities in which the trust fund had been invested, and a part of the estate, and a court of equity, at any time, upon the request of any one interested in the estate, would have compelled Weeks to convey those bonds and mortgages to the trustees as part of that estate.

There is no evidence to show that the money of any other estate, or any other trust fund, contributed directly or indirectly, in any way, to this investment, or that any third party had acquired any interest in these securities. And thus these mortgages in question became, as between Weeks and those interested in the How-land estate, securities of the estate, to which the estate became at once entitled. The assigns of Weeks succeeded to the interest of Weeks at the time of the assignment» It was immaterial, therefore, whether or not the money paid by Weeks to Danziger can. be traced directly to any specific moneys that Weeks had received as trustee of the Howland estate. He had money of that estate in his 'possession, and acting at trustee, with the assent of his co-trustee, he appropriated money in his possession to investments for the benefit of the estate; and, when he had appropriated that money for that purpose, it became then money of the estate, and the securities in which it was invested became, the securities of the estate, irrespective of the form in which the money was invested or the persons in whom the legal title to the securities was placed. The only way in which the title of those securities could be divested from the estate would be a transfer by Weeks to a person who acquired an interest in them, without knowledge of the fact that they were securities of the estate for a valuable consideration. The authorities amply sustain this conclusion.

The precise condition was stated by the court of appeals as an example in the case of Van Alen v. Bank, 52 N. Y. 1, as follows:

“My agent collects $100 rent for me, and puts the bills in one pocket, and takes the same amount from another pocket and deposits it, and notifies me. Are my rights gone by the change of the money? I think not. Stripped of unsubstantial forms, the case presented is that of a person delivering stock or bonds to an agent for sale, with directions to deposit the proceeds in a bank to-the credit of the agent, but to keep it in that way for him, and the agent follows the directions. Can there be a doubt as to the ownership of the money as between the agent and the principal? Clearly not. Suppose the principal had directed the agent to loan-the money on a note or mortgage, would not the security belong to the prinóipal? The bank'defendant, upon receiving the deposit, became the debtor ostensibly to the depositor, but equitably to the real owner.”

That is just what happened in this case. Weeks had received the money of his principal, the trust estate. He had undertaken to invest that money in these specific bonds and mortgages. He did invest that money, and took back the mortgages as the securities of the investment. It can make no difference whether that money was the identical bills received by Weeks from the sale of securities of the trust estate in Weeks’ hands, or other money of Weeks that he had appropriated as the money of-the trust estate,, he having received the proceeds of the other securities belonging to the estate, and at the time of the investment having them in his possession. The same principle was reaffirmed and applied in Baker v. Bank, 100 N. Y. 31, where the court say:

“ Conceding that Wilson & Bro. used the specific proceeds for their own purposes, and their identity was lost, yet when they made up the amounts so used, and deposited them in the trust account, the amounts so deposited were impressed with the trust in favor of the principals, and became substituted for the original proceeds and subject to the same equities.”

These four Danziger bonds and mortgages, therefore, being the property of the trust estate held by Weeks as trustee as securities; of the estate, it becomes necessary to determine what interest, if any, any other parties have acquired in them. The fact that these bonds and mortgages were not negotiable securities must not be lost sight of. They were non-negotiable choses in action, and it is an elementary principle that a purchaser of a chose in action nonnegotiable takes it subject to the equities between the original parties, and the assignor can give no better title than he himself has. Thus, in the case of Davis v. Bechstein, 69 N. Y. 442, it was held that where a bond and mortgage were given as collateral for the payment of a note of $2,000, which the mortgagee had agreed to have discounted, but which agreement he had failed to perform, and he had subsequently transferred the bond and mortgage to a third party for value, it gave no title to the bond and mortgage. The court said:

“ It is very clear that the bond and mortgage in his hands were of no value, and that he could not have enforced them, and the defendant, when he purchased, occupied no better position. Riley could not sell any better title than he had, which was none, and the defendant could not acquire, by the purchase from him, any better title."

Weeks, individually, was not the owner of these bonds and mortgages. He had no power to sell them, and apply the proceeds to his own use, or pledge them as security for engagements or obligations of his own. He had, it is true, wrongfully, in violation of his trust, taken the securities in his own name as an individual, and had thus wrongfully created himself the apparent absolute owner of the bonds and mortgages. But that was done without the knowledge of his cotrustee, and by reason of the power that he had, being the attorney for the trust estate as well as one of the trustees.

There is, however, an exception to the principle stated in the cases before referred to, which is illustrated in the case of McNeil v. Bank, 46 N. Y. 328, and a series of cases that have followed that decision. In thart case the rule is stated as follows :

“It must be conceded that, as a general rule applicable to property other than negotiable securities, the vendor or pledgor can convey no greater right or title than he has. But this is truism, predicable of a simple transfer from one party to another where no other element intervenes. It does not interfere with the well-established principle that where the true owner holds out another, or allows him to appear, as the owner of, or as having full power of disposition over, the property, and innocent third parties are thus led into dealing with such apparent owner, they will be protected. Their rights in such cases do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which, through negligence or mistaken confidence, he caused or allowed to appear to be vested in the party making the conveyance.”

In that case the plaintiff delivered to and left with his brokers a certificate of certain shares of stock, having indorsed thereon a form of assignment, expressed to be made “for value received," and an irrevocable power to make all necessary transfers. The name of the transferee and attorney and the date were left blank. This document was signed by the plaintiff. And it was held that in that case the plaintiff had conferred upon his brokers the apparent ownership of the property, and was estopped from denying such ownership as to third parties, who were thus led into dealing with the apparent owner. And the same principle applies to a bond and mortgage or other non-negotiable choses in action. In the case of Bush v. Lathrop, 22 N. Y. 537, the question as to the right of a transferee of a bond and mortgage was before the court. In that case the plaintiff was the owner of a bond and mortgage to secure the sum of $1,400. Being indebted to one Preston in the sum of $268,20, he gave him his promissory note for that amount, and assigned the bond and mortgage to him as 'security for the payment of the note. The assignment was written on the back of the mortgage, expressed a consideration of $268.20, and was absolute in its terms. Preston assigned the bond and mortgage to one Smith by an absolute assignment, and Smith assigned the bond and mortgage to the defendant, who paid therefor the amount due upon the mortgage, without notice of plaintiff’s title or interest The action was brought to compel the defendant to transfer the bond and mortgage to the plaintiff, and the question, as stated by Denio, J. in delivering the opinion of the court, was “whether the right which passed by the assignment was subject to the equities of Noble’s representatives to redeem the mortgage by .paying the amount for which it had been pledged to Preston.” Tne court applied the rule that the purchaser takes only the interest which his assignor had to part with, and that the defendant was bound to assign the bond and mortgage to the plaintiff, and account for the money that he had received as interest on the mortgage, upon being paid the amount of the note and interest.

The same question was subsequently presented to the court of appeals in the case of Moore v. Bank, 55 N. Y. 46, and Bush v. Lathrop was overruled so far as it holds that, where the owner of 'a non-negotiable chose in action confers upon another an apparent absolute ownership, a person dealing with the apparent owner will be protected, and it was held that there is no distinction between shares of stock and any other non-negotiable chose in action. Applying the principle established in the case of McNeil v. Bank, supra, to a bond or other obligation for the payment of money, J udge Grover stated the reason of the rule as follows :

“Where one, known to be the owner of shares or chattels, delivers to another the scrip or possession of the chattels, together with an absolute written transfer of all his title thereto, he thereby enables him to hold himself out as owner, and as such obtain credit upon and make sales of the property ; and if, after he had so done, the owner was permitted to come in and assert his title against those dealing upon the faith of these appearances, the dishonest might combine and practice the grossest frauds. Another reason is that it presents a proper case for the application of the legal maxim that, where one of two innocent parties must sustain a loss from the fraud of a third, such loss shall fall upon the one, if either, whose act has enabled such fraud to be committed. All these reasons, it is obvious, apply with all their force to choses in action. Why should the owner of a horse or of bank shares, who has given to another an absolute written transfer of all his right thereto for some purpose other than that of passing the title, be precluded, as against a bona fide purchaser from such person, from asserting his title, while, under the same state of facts, he may reclaim such purchaser a bond and mortgage, or a certificate of indebtedness like the one in question ?”

In the case of Greene v. Warnick, 64 N. Y. 224, it was held that while Bush v. Lathrop was overruled by Moore v. Bank, so far as that a bona fide purchaser for value of a non negotiable chose in action from one upon whom the owner has, by assignment, conferred the apparent absolute ownership, where the purchase is made upon the faith of such apparent ownership, obtains a valid title as against the real owner, who is estopped from asserting ,a title in hostility thereto, it was not disturbed so far as it held that the assignee took the instrument, not only subject to all the equities between the parties thereto, but subject, also, to all the equities which a third person could enforce against the assignor, except so far as the assignor was estopped from asserting his title against the bona fide purchaser from one upon whom he had conferred apparent ownership and apparent absolute authority to convey. In that case it was held that in such a case the estoppel can only operate against the party whose act created it, and cannot affect the right or equities of other persons. And in Schaefer v. Reilly, 50 N. Y. 61, it was held that one who takes an assignment of a mortgage takes it subject, not only to any latent equities that existed in favor of the mortgagor, but also subject to the like equities in favor of third persons ; and Bush v. Lathrop, supra, is there cited as a just exposition of the law.

The case of Greene v. Warnick, supra, is instructive upon the question here presented. In that case two mortgages were given upon a piece of property under an agreement between the mortgagees that the said mortgagees should be and were equal liens in all respects upon the premises. One mortgage was recorded fifteen min utes ahead of the other mortgage. The mortgagee of the first recorded mortgage, for a valuable consideration, assigned and transferred to the defendant the mortgage in question, who received it without knowledge of the agreement between the mortgagees, and relying upon the fact that it was first recorded, and therefore that he was entitled to a preference over the other mortgagee. The court held that the recording act did not give to the holder of the mortgage first recorded the right to a preference, and that the assignee of the mortgage took it subject to the agreement between the mortgagees.

The rule is thus established, that when one takes an assignment of a mortgage he takes it subject to all equities that existed in favor of the mortgagor or in favor of third persons, unless the person seeking to enforce the equity has been estopped from asserting his title against a bona fide purchaser forvalue, without notice.

We now come to the question as to whether any facts have been proved that estopped this plaintiff, as trustee of the beneficiaries under the Howland will, from asserting the title of the Howland estate to the bonds and mortgages in question. The first question is presented by the claim of the defendant Williams, to whom Weeks assigned these bonds and mortgages as collateral security for the loan of certain railroad bonds borrowed for the purpose of raising money for the defendant the Land & River Improvement Company, a corporation of which Weeks was president, and of which Williams was director. It is quite important to keep distinctly before us the fact that these bonds and mortgages were the property of the estate, in which, the money of the estate had been invested, the title to which had been taken by Weeks in bis own name wrongfully, and without the knowledge of his co-trustee or of the beneficaries. Weeks, thus holding these mortgages as trustee, went to Williams, and Williams testifies as to the conversation as follows:

“He stated that the Land & River Improvement Company required some money for the immediate wants of the company. He said that he had no bankable collaterals, but had some good mortgages, which he was willing to give to me, provided I would loan bankable collaterals. He said he wanted it probably ninety days or less. I, in that conversation, agreed with him to furnish those certain securities, receiving from him as collateral the mortgages that he had designated to me as the three Danziger mortgages on property in New York City, in Seventy-First street, somewheres east of Second avenue. He went to his office, and drew assignments of the mortgages, and returned to my office. In the meantime I had obtained these securities. He returned the same day, and brought in these assignments. He handed the bonds and mortgages and assignments to me.”

Williams then delivered the bonds to Weeks, and received from Weeks the three bonds and mortgages, with assignments to Williams, executed by Weeks, and at the same time Weeks executed and delivered to Williams the following receipt:

“Northern Pacific Railroad Company,
“General Office, 35 Wall Street.
“ James B. Williams, Vice-President.
New York, Dec. 12, 1892.
“ Received from James B. Williams, as a loan, thirty thousand dollars of the consolidated five per cent, mortgage bonds of the Northern Pacific R. R. Co., Nos. 18,707 to 18,733, inclusive, and 18,735 to 18,737, inclusive, and also eighteen thousand dollars Northern Pacific & Montana R. R. Co. first mortgage bonds, Nos. 4,967 to 4,974, inclusive, and 4,989, inclusive. Said bonds to be returned to said Williams within ninety days from date, and as collateral security for said loans three bonds and mortgages for fifteen thousand dollars each, made by Max Danziger to Francis
H. Weeks, all dated November 2, 1895, have been assigned by-said Francis H. Weeks to said Williams.
“ Land & River Improvement Co.,
“(Seal of the Company.) By F. H. Weeks, Pres’t

Weeks subsequently used bonds obtained from Williams as security for a loan from the defendant (the Bank of Commerce) of $30,000, which was paid by Weeks to the company, $5,000 of which was subsequently repaid to the bank by Weeks. The remaining $25,000 is still unpaid and due from Weeks to the bank, the bank holding as collateral security for that loan the bonds received by Weeks from Williams. The evidence is that those bonds have so depreciated in value that they are worth much less than the amount due upon the loan. The contract made between Weeks and Williams was not a contract that Weeks made individually, and as between himself and Williams the bonds delivered by Williams were not delivered to Weeks individually, but were delivered to the Land & River Improvement Company. It was the Land & River Improvement Company that received the bonds, and it was the Land & River Improvement Company that agreed to return the bonds to Williams within ninety days from the date of the agreement. In that agreement was recited the fact that Weeks individually had assigned to Williams these three bonds and mortgages as collateral security for the performance by the Land & River Improvement Company of its agreement to return the bonds borrowed for Williams within ninety days.

I have come to the conclusion that the Howland estate is estopped from claiming these bonds and mortgages as against the rights of Williams. Weeks and the plaintiff were the trustees of the Howland estate, representing the estate, and the only ones that could act for it. By the express act of one trustee, without objection from the other, the apparent title to those bonds and mortgages had been vested in Weeks individually, giving to him the apparent absolute ownership of the bonds and mortgages. The fact that the plaintiff did not know that Weeks had obtained the apparent legal title to these bonds and mortgages was occasioned by his own neglect in failing to make a proper examination, he trusted entirely in the integrity of his co-trustee. But, certainly, the fact of such neglect cannot take from Williams the rights that he has acquired in consequence of the apparent ownership with which such neglect allowed Weeks to clothe himself. It is clear that Williams delivered his bonds to.the Land & River Improvement Company on the faith of his right to hold these three bonds and mortgages as collateral security for the return of the bonds, and I think he is entitled to hold the bonds and mortgages as collateral security for the compliance by the Land & River Improvement Company with its agreement with him for the return of the bonds. Williams’ agreement with Weeks, however, -did not vest in him the ownership of the bonds and mortgages. The legal title to them was transferred to Williams, and he held them as collateral security for the performance of the agreement of the Land & River Improvement Company to return the bonds. The equitable title, however, was in the Howland estate; and in this action the bonds and mortgages are the property of the How-land estate, subject to the right of Williams to hold the same as security for the performance by the Land & River Improvement Company of its contract. These bonds and mortgages thus being the property of the trust estate, having been fraudulently diverted by one of its trustees, a court of equity has jurisdiction to follow the trust property in the hands of any person to whom it shall come, and to recover it for the estate, and require those persons whose duty it is to deliver it to the trustees for the benefit of the trust estate to so deliver it; and that is the judgment that the -plaintiff asks here, and it is that judgment to which I think the plaintiff is entitled.

The question is then presented as to how these bonds and mortgages are to be obtained for the trust estate. As before stated, Weeks, in his contract with Williams, was not acting in his individual capacity. He applied to Williams, as president of the Land & River Improvement Company, to obtain for that company security upon which he could borrow money for the benefit of the company. It was the company that borrowed from Williams these securities, and it is as security for the compliance by the company with its contract to return the securities that Williams holds these bonds and mortgages. It is the company that has failed in its agreement with Williams, and it is the company, therefore, that has converted these bonds to its own use. We are not concerned with the dispute between Weeks and the company; nor is it material that Weeks has robbed the company of the amount of its loan. As between the plaintiff, Williams, and the company, it is the company that is in default on its agreement to return the bonds and mortgages; and the only way by which the plaintiff can recover its bonds and mortgages is for the company to make good its default to Williams, and so release the securities that Williams held as collateral for the performance by the company of its obligation to Williams. It was thus the company that appropriated the plaintiff’s bonds to its own use, and while Weeks committed the fraud upon the estate of which he was trustee, in delivering the bonds to Williams, as between the estate and the company I can see no reason why the estate is not entitled to hold the company liable for its portion of the property of the estate which it had it converted to its own use; and I can see no reason why the qourt has not power in this action, with all the parties before it, to direct such a judgment as will restore to the plaintiff its security by compelling the party in default to so perform its contract as to release the bonds and mortgages from the lien of Williams to which he was entitled under the agreement between himself and the company. The plaintiff has nothing to do with the defendant the Bank of Commerce, nor is the Bank of Commerce entitled in this.action to recover the amount of its loan from any one. Williams having demanded his securities from Weeks after the expiration of ninety days, and Weeks having failed to return them, Williams was entitled to the damages that he sustained because of the failure of Weeks or the corporation to fulfill its agreement ; and there is no obligation on his part to receive these bonds, their value having greatly depreciated, as a compliance with the' covenant of the company to return them at the expiration of the ninety days from the date of the agreement.

I do not understand in this action that Williams has served a copy of his answer upon the defendant the Land & River Improvement Company, or that he demands judgment for the full amount of his claim against that company. All that this judgment can require is that the Land & River Improvement Company pay to Williams a sum sufficient to release these bonds and mortgages, the property of the plaintiff. The exact value of these bonds and mortgages has now been ascertained by the mortgagors having paid into court the amount due upon the mortgages, so that, upon the payment by the Land & River Improvement Company to Williams of the amount that has been paid into court, Williams’ right to these bonds and mortgages will end, and the amount in court, standing in place of the bonds and mortgages, which are the property of the plaintiff, will then belong to plaintiff, and can be paid over to him.

It is hardly necessary to discuss the claims of the three other-defendants who claim these Danziger bonds and mortgages. It is sufficient to say that in neither instance did the facts appear that would justify me in finding that the plaintiff was estopped from claiming that the estate of which he is trustee is the owner of these bonds, and mortgages. Mo money of either of these estates, has been proved to have been applied to the purchase of these bonds and mortgages, nor did either of the estates become bona fide holders for value of them. The most that can be said is that Weeks represented to the beneficiaries that he had invested the property of the estate in these securities, and that they relied upon his representation. These representations were false, and were known by Weeks to be false when he made them, and no estoppel can arise in favor of one estate against another because of a representation made which the legal representatives of both estates knew to be false at the time it was made. I think there should be judgment directing the defendant the Land & River Improvement Company to pay to Williams the amount of the Danziger bonds and mortgages that have been paid into co.urt, and that, upon this payment being made to Williams, then the money now in court, being the proceeds of the Danziger bonds and mortgages, be paid over to plainliff, the plaintiff and Williams to have costs against the Land & River Improvement Company. The Bank of Commerce was made a party defendant as the holder of the bonds delivered by Williams to the Land & River Improvement Company, but, as judgment is neither asked for nor granted against it, the complaint can .be dismissed as to the bank,with costs to be" paid out of the fund in court.

Ordered accordingly.


author: Lawrence, J.

text:
    American Distributing Company, Pl’ff, v. Distilling and Cattle Feeding Company, Def’t.

      (Supreme Court, New York Special Term,,

      Filed February 18, 1895.)

    Attachment — Examination.
    A person, who is required to give a certificate under section 650 of the Code, cannot put an end to the examination by denying the defendant’s title to the goods, or by simply saying that he was not indebted to the defendant, against whom the attachment was issued.
    Motion by third person to vacate an order directing .him to appear and be examined.

      Holcomb, Martin & Weil, for the motion; Vanderpoel, Cuming & Goodwin, opposed.
   Lawrence, J.

In this case I am of the opinion that the motion to vacate the order directing Lawrence H. Quinn to appear and be examined, under section 650 of the Code of Civil Procedure, should be denied, with costs, on the ground that the certificate given by him to the sheriff is not sufficient to exempt him from such examination. It has frequently been held that a person required to give a certificate under the above section of the Code could not put an end to the examination by denying the defendant’s title to the goods, or by simply saying that he was not indebted to the defendant, against whom the attachment was issued. See Rutter v. Boyd, 3 Abb. N. C. 6 ; Manufacturing Co. v. Gotthold, 1 Civ. Proc. R. 367; Baxter v. Railway Co., 4 Hun, 630; Seligman v. Folk, 13 Civ. Proc. R. 77. The last two' cases were decided by the general term of this department, and, so far as I am aware, have never been reversed. Order signed.


author: Beach, J.

text:
    St. Louis Stamping Company, Pl’ff, v. Elwood S. Piper, Def’t.

      (Supreme Court, New York Special Term,

      Filed April, 1895.)

    Trade-marks — Expiration op patent.
    The designation “granite,” applied to kitchen ware manufactured under a patent, becomes public property upon the expiration of the patent, and may be used by the public thereafter in connection with the article.
    Motion to continue a preliminary injunction.
    In 1874 the plaintiff commenced the manufacture of gray mottled enameled ironware. In 1876 a patent was issued for the process of making this enamel. The plaintiff applied to its goods the name “ Granite Ironware,” and under that name they became known to the public throughout the country. The plaintiff has now established a city known as Granite City, opposite St. Louis, where about 1,500 men are employed, and salaries of about $75,-000 per month are paid. The defendant, having purchased goods from another manufacturer, advertised them for sale as “granite-ware,” and thereupon this motion was made to enjoin the use of that name in connection with the ware, the plaintiff claiming a common-law trade-mark in the name.

      Briesen & Knauth, for pl’ff; Samuel Untermyer, for def’t.
   Beach, J.

The term “ granite ” was doubtless susceptible of use by the plaintiffs as an appropriate common-law trade-mark for goods of their manufacture. The difficulty, however, in the way of granting the injunction prayed for pendente, lite, arises from the fact of their having so designated the ware, for many years of manufacture by them, under the protection of letters patent which expired in 1898. Then the designation of “granite” became public property, as well as the ware covered by the patent. That they may have taken out other letters, still unexpired, in my opinion, does not prolong the monopoly of the name, but only gives protection as to the specific parts of the manufactured article covered by them. The legal principle above stated is supported by a long line of adjudicated cases. The defendant’s advertisement in no way tended to deceive the public, by inducing buyers to believe the merchandise was manufactured by the plaintiffs. The words of the learned court in Selchow v. Baker, 93 N. Y. 59, seems most apt:

“ And where the patent expires, or in foreign countries, where the patent has no force, there is no piracy in making or selling the article under the name by which it has become generally known. This name has become the proper description of the article, as indicating that it is made according to the patented invention, and is not the trade-mark of any particular manufacturer. The patentee relies for his protection upon his patent, and cannot, by calling the name of his patent a trade-mark, protect his monopoly after the patent has expired, or where it has no force.”

Motion to continue injunction denied, with $10 costs, and existing writ vacated.


text:
    Maria H. N. Bartlett, as Executrix, etc., Pl'ff, v. William W. Goodrich, as Assignee, etc., et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed April, 1895.)

    Insurance — Life—Assets.
    Where a member of a firm, who has contributed all the capital, took out policies on his life and paid the premiums out of the firm funds at a time when the firm was solvent and there was a large balance to his credit on the books of the firm, the proceeds of the policies, though premiums may have been paid out of the apparent assets of the firm after it had become insolvent, are the individual assets of the insured as between his individual and the firm creditors.
    Action on life insurance policies.

      Frederic A. Ward, George W. Wingate, and Nichols & Bacon, for pl’ff ; William G. Choate and John A. Deady, for deft Goodrich, assignee.
   Russell, J.

The question to be solved in this case is whether the individual creditors of Edward B. Bartlett, deceased, or the co-partnership creditors of his firm, shall receive the proceeds of insurances upon Bartlett’s life to the amount of about $80,000, or whether those insurances shall be paid to the partnership creditors of the . deceased, Henry E. Nitchie and Albert 0. Woodruff. These insurance moneys were collected by the plaintiff, as executrix of the' deceased, but are now held by the defendant Goodrich, as assignee of the firm and the individual partners, paid over l)y the widow to the assignee upon his advice, he standing in the relation of counsel to her, having been also counsel for her deceased husband. The advice of Mr. Goodrich to the exec.utrix was beyond doubt honestly given, that the money belonged to the trustee of the firm, instead of to the trustee of the deceased partner, and all technical objections as to the right of recovery upon the merits are waived if, in fact and in law, the widow should have retained the Snoney to pay out to the creditors of her deceased husband in the due course of the execution of her trust as executrix. This sum of $80,000 is the balance remaining from insurance moneys bollected by the executrix to the amount of $100,000, after deducting the premiums paid,out of the apparent assets of the firm during the life of the deceased, and which premiums were repaid to the assignee, Goodrich, by Mrs. Bartlett after she received the insurance moneys of $100,000 ; the assignee at that time advising the return of the premiums, and not claiming the insurance fund.

The firm of E. B. Bartlett & Co., composed of Bartlett, Woodruff, and Hitchie, was formed on the 1st day of May, 1885, by a written agreement, to carry on the business in Brooklyn of warehousing and storage, by which Bartlett was to receive fifty-eight, Wood-ruff twenty-eight, and Hitchie fourteen per cent, of the profits. All of the capital was contributed by Bartlett, Woodruff and Hitchie furnishing no capital whatever during the course of the partnership. This partnership was continued in various ways until the death of Bartlett, which took place on the 24th day of May, 1894, and shortly afterwards, on the 7th of June, 1894, Woodruff and Hitchie made a general assignment for the 1 enefit of creditors, as surviving partners and also individually, to the defendant Goodrich. March 1, 1887, Bartlett took out three life policies in the Equitable Company for $25,000 each, one in the State Mutual for $10,000, and one in the Berkshire Life Company for $15,000. On the 7th of March, 1887, he executed five assignments, covering the policies to' Woodruff and Hitchie, in equal shares to each, if the partnership should be in existence when the policy became a claim, and the sha,re of either not then surviving to revert to the legal representatives of the insured, and, in case of the dissolution of the copartnership, the whole became payable to the legal representatives of the insured. On the 15th day of July, 1890, Hitchie and Woodruff reassigned to Bartlett those insurance policies, except one of the $25,000 policies in the Equitable Company, which had been surrendered, and a paid-up policy taken for $3,750, payable to Woodruff and Hitchie, which policy was collected by them after Bartlett’s death. On the 1st of March, 1890, Bartlett took out another policy in the Equitable for $25,000, which was never assigned by him to any one, and which was payable to his executors, administrators, or assigns. ' On the death of Edward R. Bartlett, the legal title to the funds arising from the-$100,000 of life insurance policies confessedly appeared to be in the executrix. Is there in this case sufficient evidence that the real title or the equitable title was in the copartnership so that the copartnership creditors may claim the benefit, to the exclusion of the individual creditors of Bartlett, both estates being beyond doubt insolvent ?

The defendant Goodrich relies upon the fact of the original assignment of four of the policies to Woodruff and Nitchie, upon the fact of the premiums being paid out of the assets of the firm and credited to a special insurance account, and upon various declarations of Bartlett, made mainly prior to the reassignments to him, as evidence that Bartlett held the policies, even after the reassignment to him, and the new policy taken from the Equitable, as trustee for the benefit of the firm. The claim is an equitable one, to be judged of by equitable considerations. In July, 1890, it does not appear that the firm was insolvent, and it may .be presumed that the disastrous panic of 1893 brought about the insolvency which existed at the time of the death of Edward B. Bartlett. Therefore, when the reassignment was made, there was no equity whatever on the part of the copartnership creditors which prevented the valid transfer of those policies back to the insured himself, and the facts disclose ample reason on his part for desiring the title to be solely in himself. He contributed all of the capital which the firm had, and from a period soon after the date of taking out the policies his credit balance on the books of the firm ranged from $174,695.89, in 1888, to $197,955, at the date of his death in 1894. The balance struck after the reassignments, on the books of the company, showed his credit balance to be $172,900, and at that date Woodruff’s debit balance was $49,-000, and Nitchie’s $4,122.Woodruffs debit balance ranged during the period mentioned — from 1887 to 1894 — from $33,500 to $58, 000 and Nitchie’s from $10,500 to $4,825. Had Bartlett died at the date of the reassignments, and his estate been charged with $100,-000 collected and all of the premiums paid, a large balance would still have been left in his favor, and the other partners would still be largely indebted to the firm. The same result would have been attained had such charges been made at the time Bartlett died, on the 24th day of May, 1894. There never was, then, a time during the existence of the policies that the deceased was not entitled to demand the amount they called for over and above the amount of premiums, so far as any equities existed between him and the surviving partners. Nor does the continued payment of the premiums out of the apparent assets of the firm change this result as between these three individuals. He was entitled to draw the amount of those premiums, according to his accounts with the firm, and the fact that they were not charged to him, but kept in a special insurance account, does not overthrow the equities arising, for the matter of mere bookkeeping cannot destroy the substance of a transaction, Does the insolvency of the firm alter the equities so that a claim, which could not be successfully maintained hy the partners, if solvent, to the proceeds of the insurance policies, would be changed in its equitable force by insolvency of the firm ? How can the copartnership creditors derive a superior equity as against other innocent losers, who stand as creditors of the individual whose death created a loss to them of a personal capacity on the part of the debtor to continue his power to accumulate property, and by which loss the fund springs into being now contended for? It is also urged by the counsel for the assignee that various declarations of Bartlett show an intent on his part that the insurance fund should be for the benefit of the partnership, and that the drawing of the premiums from the nominal assets of the firm after the assignments partially shows a continued evidence of such intent. But the matter of intent is not determinative, except so far as it is consummated by action, where contract rights are affected. The continued payments of the premiums in the manner stated does not of itself constitute the insured a trustee for the firm where the payments were upon policies of his own life, and where the continued status of the accounts between him and the other partners showed iiis right to draw the amount of the premiums from the assets of the firm. Especially is this the case where four of the policies, originally payable under certain circumstances to the two other partners, had been reassigned absolutely to himself, and in the other policy the other partners never had any legal interest. I am of the opinion that the various circumstances attending the carrying of the policies of life insurance referred to do not change the ownership apparently existing in the executrix at thentime of the death of Edward B. Bartlett. It is unnecessary for me to consider the question of the right of the executrix to the premiums paid over to the assignee, for no claim is here made for those premiums. The surviving partners could not have claimed the estate should pay, had the copartnership remained solvent, in adjusting the equities between the three members of the firm ; but I understand the counsel for the executrix do not ask their repayment.

Judgment, therefore, is directed for the plaintiff for the repayment of the amount of the insurance moneys, less the premiums, with costs to the plaintiffs and to the defendant Goodrich, payable out of the fund.


author: Bartlett, J.

text:
    Marie A. Jahn, Pl’ff, v. A. Patrick J. Gleason, Def’t. August Roediger, Pl’ff, v. Same, Def’t. Wilhelmina Messuik, Pl’ff, v. Same, Def’t.

      (Supreme Court, Queens Special Term,

      Filed February, 1895.)

    Trusts — Receiver.
    A receiver occupies a position Which prohibits him from buying the trust property for himself from those who do not know that he is the purchaser, and the vendors are at liberty to avoid the sale upon repayment to him of the amounts which they have received from him.
    Action to set aside certain deeds on the ground of fraud.
    The premises in question were owned by Louis Roediger, who died in 1889, leaving among his heirs Marie A. Jahn, August Roediger and Wilhelmina M.essuik. A suit was instituted for partition of the property among the several heirs, and defendant herein was appointed receiver pendente lite, with power to collect the rents, but no further proceedings appear to have been had in such suit. Afterwards tile premises were conveyed by the owners to one Brassell, who was acting secretly as agent for defendant, and who conveyed the property to defendant.

      H. Randolph Anderson, for pl’ffs Jahn and Roediger; Geo. W. Stephens, for def’ts.
   Bartlett, J.

These cases would have been disposed of long since if counsel had not delayed so long in submitting their briefs, the last of which I did not receive until late in December last. The formal decisions filed herewith, under section 1022 of the Code, as amended last year, contain a sufficient statement of the facts. The evidence leaves no doubt whatever in my mind of the correctness of the conclusion that the defendant Gleason was really the purchaser of the city hall property in Long Island City, which he held at the time as receiver in the partition suit. The proof seems to me equally plain that the consideration paid to each of these plaintiffs was utterly inadequate. If there was no other evidence as to the value of the property, the fact that $1,000 was paid to the widow for her right of dower, is enough to indicate that the same purchaser was obtaining the fee at far less than it was really worth when he paid the heirs at the rate of less than $700 for their combined interests. It is manifest that the receiver occupied a position which prohibited him from buying the property for himself from those who did not know he was the purchaser. The rule which he violated is clearly stated by Chancellor Walworth in the case of Van Epps v. Van Epps, 9 Paige, 237, where he says:

“ The rule of equity which prohibits purchases by parties placed in a situation of trust or confidence with reference to the subject of purchase is not confined to trustees or others who hold the legal title to the property to be sold; nor is it confined to a particular class of persons, such as guardians, trustees or solicitors. But it is a rule which applies universally to all who come within its principle, which principle is that no party can be permitted to purchase an interest in property, and hold it for his own benefit., where he has a duty to perform in relation to such property which is inconsistent with the character of a purchaser on his own account, and for his individual use.”

Mow, there is a plain conflict here between the interest of Mr. Gleason, as an intending purchaser of this property from the heirs, and his duties as a receiver of the property in the partition suiu As receiver, he was bound to get as much rent as possible. As an intending purchaser, it was his interest to have the receipts for rent fall off so that the apparent value of the property might diminish, and the owners be induced to sell at a lower price. As receiver, he was bound to manage the property, as a whole, in such a way as to maintain, and, if possible, increase its value, real and apparent. As an intending purchaser, it was his interest to manage it in such a way as to decrease its apparent value until it passed into his own hands. The equitable principle to which I have referred clearly applies to a person situated as he was, and under such circumstances the vendors, who have sold their interests for far less than the property was actually worth, are at liberty to avoid the sale upon repaying to the purchaser the amounts which they have received from him.

In the brief for the defendants it is argued that the form of each complaint is such that no relief can be granted, in the absence of a finding of actual fraud, on the ground that Mr. Gleason was disqualified to purchase by reason of his'position as receiver. I think, however, that the allegations of the complaint in each case are quite sufficient to sustain a judgment in favor of the plaintiff upon the ground stated in the former decision. Each complaint expressly alleges the appointment of Mr. Gleason as receiver. There should be judgment for the plaintiffs'setting aside the deeds conveying their respective interests to the defendant Bras-sell, upon the payment by them to the defendant Gleason of the amounts which they, respectively, received, Plaintiffs must also have their costs.


author: Sedgwick, C. J.

text:
    A. L. & J. J. Reynolds Company, Resp’t, v. Frederick N. Dreyer, App’lt.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    1. Injunction — Bbeach on covenant.
    Where an efnploye enters into an agreement at the time of his employment that he would not, within six months after the termination of his contract of employment, engage in business in competition with his employer within ten miles of the city of New York where the latter was carrying on his business, an injunction will lie to restrain the employe from violating
    . such agreement.
    3. Same.
    A deposit of money by the employe with the employer, to be retained, in case of breach, as liquidated damages, does not take away the right to enjoin the violation of the agreement.
    Appeal from an order granting injunction pendente lite.

      Howe & Hummel, for app’lt; Richard L. Sweezy, for resp’t.
   Sedgwick, C. J.

The plaintiff was engaged in the city of New York and its suburbs, in business as a wholesale dealer in cheese, butteq and groceries; its sales being mainly effected through the medium of salesmen driving over established routes, and supplying goods to grocers doing business in the line of such routes. The defendant entered into the employment of the plaintiff’s predecessor as one of its salesmen, driving a wagon over plaintiff’s routes; and the defendant contracted with the company, among other things, “that he would not, within the period of six months after his employment in said business should cease, directly or indirectly, engage in business in. the city of New York, or within a radius of ten miles from said city, in competition with his said employer, either on his own account or as a servant or employe of others.” The defendant afterwards was duly discharged from plaintiff’s employment Since the discharge the defendant had driven ahorse and wagon, carrying supplies oT the same kind that plaintiff does business in, soliciting customers of the plaintiff on the same routes that he formerly used. The order below enjoined the defendant from continuing this practice.

There is an objection that an injunction will not be granted because the services of the defendant were not unique, special, or extraordinary; premising by saying that this applies to a case where, at the time the injunction is asked, the services are claimed by the plaintiff in the action in his business. It appears that the plaintiff here asks for no service, and does ask that the defendant shall perform his promise not to compete with it or take away its customers. This objection must be overruled.

Another objection is that the plaintiff took an agreement that $300 deposited with it should be liquidated damages for any breach by defendant. This objection is invalidated by Diamond Match Co. v. Roeber, 106 N. Y. 473 ; 11 St. Rep. 47.

The recital of the order to show cause sufficiently states the grounds of the order of injunction. An order to show cause why the injunction should not be continued, accompanied by an injunction, may be made ex parte, and it need not be shown by the papers that there is reason for a notice of less than eight days. The order is affirmed, with $10 costs and disbursements.


author: Freedman, J.

text:
    Edward S. Bamberger, as Receiver, etc., Resp’t, v. Charles B. Fillebrown et al., Impleaded, etc., App’lts.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    Equity — Jurisdiction.
    A court of equity has jurisdiction to entertain an action brought by a receiver in a creditor action to have priorities determined after conflicting claims has been made against the same fund remaining in his hands after a final judgment.'
    Appeal from an order overruling a demurrer and from a final judgment entered thereon.
    In an action in the superior court brought by Joseph Sawyer against Morris Lowenthal and others, plaintiff was appointed receiver of defendants’ property. In a subsequent action in the same court against the same parties, by defendants Fillebrown and Stevens, the receivership was extended to the action brought by them. Afterwards the receivership was extended by the supreme court in an action brought in that court bv Jeremiah Marston against the same parties. There were not sufficient assets remaining in the hands of the receiver to pay the claims of the creditors, and he brings this action to determine priorities. The complaint alleged the foregoing facts. Defendants Fillebrown and Stevens demurred to the complaint: (1) On the ground that the court had no jurisdiction ; (2) that the receiver is an officer of the supreme court, and, as such, has no legal capacity to sue defendants by reason of claims made by them against funds in his bands as receiver of the superior court; (3) that the reis a misjoinder of parties plaintiff by the receiver bringing this action against defendants in his capacity as receiver of both courts; (4) that there is a misjoinder of parties defendant, in that the interest of defendant Marston' is conflicting, and that he had no interest in the subject-matter of the action until its final disposition by the superior court; (5) that the complaint does not state facts sufficient to constitute a cause of action.

      A. H. Berrick, for app’lts ; Stiefel & Lauer, for resp’t.
   Freedman, J.

Upon the facts alleged in the complaint, which stand admitted by demurrer, there is no misjoinder of parties-plaintiff, and the court has jurisdiction of the subject-matter of the action, and the plaintiff has set forth a sufficient cause of action. This is an action brought by a receiver in a creditors’ action to have priorities determined after conflicting claims had been made against the same fund remaining in his hands after final judgment. The jurisdiction of a court of equity to entertain such an action is-firmly established. It is no answer to say that the same result might be reached by motion. This is always doubtful, for, even if the power should exist in a particular case to pass upon conflicting claims in a summary way, yet, if a conflict as to the facts should be presented by the affidavits of the different parties in interest, the exercise of the power may be declined, and the parties left to their remedy by actiion. The judgment and order should be affirmed, with costs.

All concur.


author: Bischoff, J.

text:
    Charles A. Winch, Resp’t, v. Third Avenue Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed May 6, 1895.)

    Negligence — Contributory.
    A driver is guilty of contributory negligence in neglecting to look for approaching danger while driving slowly for the distance of fifty feet in. plain view of the track before attempting to cross.
    Appeal from a judgment rendered by the court without a jury.
    Plaintiff’s ice cart, proceeding down town upon the tracks of the defendant, was overtaken and collided with by one of defendant’s cars, and was damaged to an extent for which recovery was sought and obtained in this action. The facts were that plaintiff’s driver, coming to Third avenue after proceeding in an easterly direction along the south side of Thirty-Sixth street, turned the cart into the avenue at a walk, and proceeded fifty feet on the westerly side, when an obstruction made it expedient for him to turn in upon the defendant’s track. The wagon was not fully upon the-track when the collision occurred. Plaintiff’s servant, according to his testimony, had looked for approaching cars at the intersection of the street before turning into Third avenue, and had seen no car, but did not look again prior to the collision. The appeal is rested upon the plaintiff’s evidence, defendant having called no-witnesses in the court below.

      Henry L. Scheuerman, for app’lt; Browne & Sheehan, for resp’t.
   Bischoff, J.

The testimony given with regard to the force of the impact between the vehicles justifies the inference that the defendant’s car was proceeding at a high rate of speed immediately prior to the collision. After plaintiff’s servant had looked for are proaching danger at the intersection of the streets, he turned his cart into Third avenue, at a walk, and in the same manner proceeded for a distance of fifty feet before turning in upon the track, and had nearly brought the cart completely upon it when collided with by the car. There is fairly room for an assumption, then, that at the time when he looked up and down the track, as asserted, the car was not sufficiently near to call for notice as an element of danger; and hence his testimony that he did so look, and saw no car, may be credited, taking it in its natural sense. Strictly speaking, it would be well-nigh impossible for one to look up and down the tracks of a street railway, actively operated upon a straight track of the extent of the line of this defendant at the location where the matters in suit occurred, and fail to see a car at some point; but to await such a situation of extreme safely is not the duty of one attempting to cross a track in a city street. But if the car had actually come from a point where its presence was no source of danger to plaintiff’s cart when his servant looked up and down the track, to a point where it became a destructive agent, during the time in which he proceeded at a walk, while turning the corner and driving fifty feet along Third avenue at the same gait, before turning in upon the track, then Ms failure to look again for danger at the point where he so turned in was in disregard of his legal duty, and contributory negligence is apparent from the admitted fact that he did. not look at that time.

The judgment must be reversed, and since, upon the admitted facts, plaintiff could not succeed on a second trial, the complaint should be dismissed.


author: Giegerich, J.

text:
    Israel O. Blake, Resp’t, v. Herman Bolte, App’lt.

      (New York Common Pleas, General Term,

      Filed May 6, 1895.)

    Appeal — Appealable order.
    An order of the city court in supplementary proceedings, directing payment by a judgment debtor is appealable to the general term of the court of common pleas.
    Reargument.

      James P. Niemann, for app’lt; Philip Carpenter (Jonathan C. Ross, of counsel), for resp’t.
   Giegerich, J.

Defendant, a judgment debtor, appealed to this court from an order of the general term of the city court of Hew York affirming an order made in supplementary proceedings whereby it was directed that he “ pay the sheriff the amount of the judgment against him, and, in default thereof, that a precept of commitment issue.” Upon that appeal we affirmed the order in so far as it directed payment to the sheriff, and reversed so much of it as authorized the commitment. Blake v. Bolte, 10 Misc. 333. The record shows that the appellant appeared in the court below in active opposition to the granting of the order, and our determination proceeded upon the merits. A motion for reargument was granted, in order that a point of law not raised upon the appeal, to wit, the question whether that portion of the order which directed payment to the sheriff was appealable to this court, might be considered; the appellant contending that, if no appeal could lie from so much of the order, its total invalidity would result from our reversal of the remaining portion. Without discussing this last aspect of the situation, we are clearly of the opinion that the order was appealable in its entirety.

An appeal lies to this court from an order of the city court of New York, after actual determination by the general term, which affects a substantial,right (Code Civ. Proc. § 3191, subd. 3); and such an order is appealable when made “ upon summary application after judgment.” Peetsch v. Quinn, 66 St. Rep.-. An order directing payment by a judgment debtor is an order “ affecting a substantial right,” and so has been held to be appealable to the general term of the supreme court when made in a case origin.ating in a justice’s court. Code Civ. Proc. § 1342; Code Proc. § 344; Crounse v. Whipple, 34 How. Pr. 333. An appeal lies to the court of appeals from “a final order, affecting a substantial right, made * * * upon summary application in an action after judgment” (Code Civ. Proc. § 190, subd. 3; Code Proc. § 11, subd. 3); and, such being the rule, an order similar to that before us was held appealable in Locke v. Mabbett, *41 N. Y. 460, where it was said by Davis, C. J.:

“ The order is absolute, and compliance can be enforced against her as for a contempt. I am clearly of the opinion,- therefore, that she can be heard in opposition to the order.”

The case of Wolf v. Buttner, 6 Misc. Rep. 119; 57 St. Rep. 861, cited by appellant, is certainly not opposed to our conclusion. The order in that case was held to be in its nature appealable, but the decision turned upon the fact of the defendant’s default of appearance. Such an element was not in this case. Neither upon principle nor authority was the defendant required to disobey the absolute direction in this order, and suffer the resulting penalty, to the end that he might be heard upon appeal. Locke v. Mabbett, supra. By its terms, the Matter was closed, and it is not to be viewed as interlocutory. Wolf v. Buttner, supra; Whitfield v. Railroad Co., 31 St. Rep. 285.

It results from these views that our original determination is to, remain undisturbed. The order appealed from should therefore be affirmed in part, and reversed in part, in accordance with the opinion heretofore filed, with costs of reargument and printing disbursements to respondent.