author: Smith, P. J.:

text:
    OTIS KNAPP, as Administrator, etc., of RILEY KNAPP, Deceased, Respondent, v. JEREMIAH FOWLER, Appellant.

      Rescission of contract of- sale, for fra/ud or mistake — power of a referee to allow amendments to a complaint — Code of Civil Procedure, sec. 1018 — when a trans-

    > action constitutes a sale and not an exchange of property — presumption that evei'y person knows the law.
    This action was brought by the plaintiff’s intestate to rescind a conveyance of real estate made by him to the defendant. The real estate was sold January-18, 1881, at the price of $3,000, the vendor taking in payment thereof a bond and mortgage for that amount, given to the defendant by one Brown, the whole principal sum secured thereby being then unpaid, together with some interest, which latter amount was paid by the intestate to the defendant. The complaint alleged that the intestate was induced to take the said bond and mortgage by certain false representations fraudulently made by the defendant, respecting the pecuniary responsibility of the mortgagor and the property owned by him and the value of the mortgaged property. The referee found the misrepresentations to have been substantially as alleged, but found that they were not fraudulently made, but that the defendant as well as the intestate believed them to be true when made, and that there was a mutual mistake of facts which entitled the intestate to a rescission. Instead of ordering a judgment to that effect, he made a report allowing the intestate to amend, subject to the approval of the court, ánd ordered a conditional judgment in his favor.
    This report was set aside by the General Term, and the case sent back to the referee for an unconditional determination. The parties having appeared before the referee, he allowed the plaintiff to amend the complaint so as to base his action on mistake instead oí on fraud, received such evidence as was offered, and ordered a judgment in the plaintiff’s favor. >

      Meld, that the referee had power to allow tile plaintiff to amend the complaint, and that he did not err in allowing the amendment to be made under the circumstances of this case.
    That the legal effect of the transaction upon which the action was brought, so far as the rights of the parties in respect to a rescission of the contract were concerned, was.precisely the same, whéther the defendant’s misrepresentations were made honestly or dishonestly.
    That the failure of the plaintiff to explain why he alleged fraud, and omitted to claim relief on the ground of mistake until after his defeat -on the issue tendered by him, did not render the allowance of the amendment improper. The old chancery rules requiring such an explanation to be given, have been done away with.
    It was claimed that the intestate was guilty of negligence in failing to examine the records in the county clerk’s office, which would have shown that an execution issued upon a judgment recovered against Brown, the mortgagor, had been returned unsatisfied a few months before the sale.

      Meld, that as it appeared that the defendant had asserted in positive terms that Brown was good, and that the mortgage was “good as gold,” it did not lie in his mouth to say that'the intestate was required, in the exercise of due diligence, to make such an examination of the records.
    That the agreement was for a sale and not for an exchange of specific articles of personal property, and that as the bond and mortgage were taken in payment of the purchase-price of the land, a misrepresentation or mistake as to their valúe, authorized a rescission of the contract.
    The defendant claimed that he, being satisfied that the plaintiff could not succeed on the ground of fraud, suffered the property covered by the Brown mortgage to be sold upon the foreclosure of a prior mortgage, before the plaintiff moved to amend his complaint, and that the application should have been denied for that reason.

      Meld, that the claim was untenable, because :

      Mrst. It appeared that prior to the said sale the defendant’s attorney and his son had been told by the referee that he had concluded to decide for the plaintiff upon the ground of mistake.

      Second. That as the defendant knew that a mutual mistake existed in his case, and as- every person is presumed to know the law, he was chargeable with knowledge of the fact that a judgment could properly be rendered against him upon that ground.
    Appeal from a judgment in favor of .the plaintiff, entered on the report of a referee.

      John Ounneen, for the appellant.

      George Bullard, for the respondent.
   Smith, P. J.:

The action is brought to rescind a conveyance of real estate made by the plaintiff’s intestate, Riley Knapp, to the defendant. The action was begun in the name of Riley Knapp, and he having died since the trial, the present plaintiff has been substituted in his place.

The real estate was sold 18th January, 1881, at the price of $3,000, and the vendor took in payment a bond and mortgage executed to the defendant by Luther Brown for v$3,000, dated 6th of May, 1876, payable seven years.from date with interest, annually, on which was unpaid at the time when it was transferred to the intestate the whole principal sum and $157.33 interest, for which latter sum the intestate gave his note to the defendant, which he afterwards paid.

The original complaint alleged that the intestate was induced to take said bond and mortgage by certain false representations, fraudulently made by the defendant, respecting the pecuniary responsibility of the mortgagor and the property owned by him, and the value of the property covered by the mortgage. The referee found the misrepresentations substantially as alleged, but instead of ■ finding that they were made fraudulently, he found that the defendant, as well as the intestate, believed them to be true when made, and that there was a mutual mistake of facts, and on that ground he held that the intestate was entitled to a rescission.

Instead, however, of ordering a judgment to that effect, he reported that the plaintiff was entitled to amend his complaint by conforming it to the facts found as above stated, upon terms specified in the report, provided that on application to the court, on notice, such amendment should be approved and confirmed, and if confirmed in the same or a modified form, the plaintiff should then be entitled to enter a judgment rescinding the sale on the terms stated in the report, but no judgment was directed in case the report should not be confirmed.

Upon that report the plaintiff moved at Special Term, on notice, to confirm the report and 'for leave to amend the complaint by alleging a mutual mistake instead of fraud. The motion to confirm was denied, but the motion to amend was granted on payment of costs, and a new trial was ordered before another referee. The defendant appealed from that order and the General Term reversed it and sent the case back to the referee to determine the same ■unconditionally, and to order such judgment as he should deem proper after a further hearing. (26 Hun, 200.)

In pursuance of that order the parties voluntarily appeared, before the referee, who then, after hearing both sides, permitted the plaintiff to amend his complaint in the particulars above stated, which he did accordingly. • Thereupon the referee heard such further proofs as the parties offered, and made his report by which he found a mutual mistake, as alleged in the amended complaint, and held that the plaintiff was entitled to a judgment of rescission'on that ground. From that judgment this appeal is taken.

The counsel for the appellant contends that ^the referee erred in hearing and determining the motion for leave to amend, inasmuch as the cause had then been submitted and the issue decided, and his jurisdiction of the parties and of the cause was exhausted. That position is faulty in assuming that the referee had determined the issue as directed by the order of reference. He had made simply a conditional disposition of the cause upon which no judgment could be entered, and the effect of the order of the General Term remitting the case to him was to continue his powers as a referee in full force.

"We entertain no doubt that the amendment was one which the referee had power to permit to be made. The power of a referee in that respect, upon the trial, is now co-extensive with that of the court (Code of Civil Proc., § 1018j, and the court may allow any amendment of a pleading by conforming it to the proof which does not change substantially the claim or defense. (Id., § 723). In this case the claim for relief is not changed, and the legal effect of the transaction upon which the suit is brought (so far as the rights of the parties in respect to a rescission of the contract are concerned) is precisely the same whether the defendant’s misrepresentations were made honestly or dishonestly. ‘ The original complaint averred in substance that the plaintiff acted under a mistake by alleging that he relied upon the misrepresentations made by the defendant, and was induced by them to act. That fact entitled him to a rescission whether the defendant, in making the misrepresentations, participated in the mistake or intended to de'ceive. When the defendant testified, as he did, that he supposed the mortgage was first class,” that lie “ traded on that basis,” and that he and the plaintiff had the same idea about it,” he established the fact of a mutual mistake, and the right of the plaintiff to the relief demanded in his complaint was clear.

It would be a reproach to the administration of justice to hold that the liberal power of amendment recognized by the Code does not extend to such a case. The prime object of a pleading is to inform the adverse party of the claim made against him. That being done, he may object to proof of a substantially different claim. And if, under the issue made, competent evidence is received, which presents another issue not made by the pleadings, it cannot be used upon the latter issue, against the adverse party, even if he does not object to its reception. (Williams v. The Mechanics cmd Trader's Fire Ins. Co., 54 N. Y., 577; Bruce v. Burr, 67 id., 237.) But where the adverse party, himself, gives evidence of a fact not alleged in the pleading, which establishes a right to the identical relief claimed against him, neither justice nor common sense requires that he shall be heard to object that the evidence cannot be used for that purpose. We think the case is eminently one for the exercise of the power of amendment {Smith v. MacTcin, 4 Lans., 41), and that if the learned ' referee had, in the first instance, directed an amendment of the complaint to conform it to the proof, and thereupon had ordered an absolute judgment for the relief asked, upon the ground of mistake, his action would have been warranted.

These views do not conflict with any adjudged case to which our attention has been called. Most of the cases cited by the appellant’s counsel were actions at law in which it was held that under a complaint in tort the plaintiff could not recover on contract, or vice versa. Those cases have no application to the one in hand.

The appellant’s counsel insists that the plaintiff not having explained why he alleged fraud, and omitted to claim relief on the ground of mistake till after his defeat on the issue tendered by him, the amendment should not have been allowed. The counsel relies upon certain rules of practice of the old Court of Chancery. It was held by the chancellor that the plaintiff would not be allowed to amend his bill, after replication, without leave granted on proof showing the materiality of the amendment and the reason why it was not stated before (Thorn v. Germand, 4 Johns. Ch., 363), or to amend so as to make a new case after proofs closed. (Dodd v. Astor, 2 Barb. Ch., 395.) But those rules. have been done away and the practice in regard to amendments is now a matter of discretion, depending upon the circumstances of each case within the limitations prescribed.by the Code. .

The appellant’s counsel attacks the judgment on the merits upon several grounds. He insists that the 'plaintiff’s intestate was prer eluded from recovering by his negligence. This position is based upon the fact that the records of the county clerk’s office furnished evidence of Brown’s insolvency, an execution upon a judgment against him having been returned unsatisfied a few months before the sale, and the plaintiff by examining the records might have ascertained that fact. It does not lie in the mouth of the defendant to say that the intestate was required, in the exercise of due diligence, to consult the records for the purpose of ascertaining Brown’s pecuniary condition. The evidence on the part of the plaintiff tends to show that the defendant asserted in.positive terms that Brown was “good” and that the mortgage was “good as gold.” Contributory negligence will defeat an action based on negligence, and there may be cases where clear negligence on the part of a purchaser, to inform himself as to the quality or condition of the thing purchased, will constitute a defense to an action against the vendor for fraud (Long v. Warren, 68 N Y., 431); but we are not aware of any adjudication in this State in which that rule has been applied to a case of misrepresentation and mistake. On the contrary, there are numerous cases in the books in which a mutual mistake, or a mistake on the one part and fraud on the other, has been relieved against, where the party seeking relief fell into the mistake by omitting to read a written instrument which' was at hand and might have been examined by him. (Welles v. Yates, 44 N. Y., 525; Botsford v. McLean, 45 Barb., 478; affirmed by Court of Appeals, May, 1870; Rider v. Powell, 28 N. Y., 310; Kilmer v. Smith, 77 id., 226; Albany City Savings Institution v. Burdick, 87 id., 40.) The cases cited by the appellant’s counsel are inapplicable to the case in hand. In Penny v. Martin (4 Johns. Ch., 566) the bill was dismissed because the embarrassment from which the plaintiffs sought to be relieved was the result of their ignorance founded on negligence, and not on “ accident, mistake, misrepresentation or fraud.” In Marvin v. Bennett (26 Wend., 169) the plaintiff alleged that the defendant had misrepresented the quantity of a piece of land sold and conveyed by him to the plaintiff. The trial judge held that there was neither fraud or mistake, but that the vendee took the risk as to the quantity of the land, and his decision was affirmed. In Stettheimer. v. Killip) (75 N. Y., 282), it was found that there was neither fraud or mistake, but merely a dispute as to the amount of the profits made by. the firm, each party having a full opportunity of knowing the facts. In Grymes v. Sanders (93 U. S., 55), it was said there was no mutual mistake, and the opinion was expressed that in case of mistake, the party complaining must have exercised at least ordinary diligence. In Whittemore v. Farrington (76 N. Y., 452) there was neither fraud or misrepresentation. We are of the opinion that the position of the appellant’s counsel, that the plaintiff is precluded from recovering in this case, by negligence on the part of his intestate cannot be maintained.

It is contended by the appellant’s counsel that there can be no. recovery, for the reason that the transaction was an exchange of one property for another, in which the intestate received what he bargained for. The intestate sold his land at the price of $3,000, and the bon<j and mortgage were turned out to and received by him as equivalent to $3,000 in money, he paying back the apparent difference. Both parties supposed the securities were worth the sum at which they were rated, and the defendant so represented them. The intestate relied upon those representations, and did not take the securities at his own risk. These facts distinguish the case from'the one' supposed by Comstock, J., as the basis of the opinion expressed by him in Des Arts v. Leggett (16 N. Y., 582, 589), and bring it within the rule laid down in Leger v. Bonnaffe (2 Barb., 480), cited approvingly in Roberts v. Fisher (43 N. Y., 159); see, also, Roget v. Merritt (2 Caines’ R., 117); Lightbody v. Ontario Bank (11 Wend., 1), and Benedict v. Field (16 N. Y., 595).

Again, it is urged that the mistake was as to an extrinsic fact, and for that reason the suit cannot be maintained. If we understand the argument of the counsel on this point, it is that as the bond and mortgage turned' out were the identical securities for which the intestate bargained, there was no mistake as to any fact intrinsic to the contract, and Brown’s ability to pay was an extrinsic fact. But the goodness of the securities was a fact asserted by the defendant, and believed by the plaintiff upon such assertion, and if the plaintiff had not supposed it to exist, he would not have accepted the bond and mortgage. If the argument of the appellant’s counsel is sound, it would apply with equal force to the case of a payment in counterfeit bank notes or the notes of an insolvent. The only case cited by the appellant’s counsel, Dambmann v. Schulting (75 N. Y., 55), is distinguishable from this. There was no misrepresentation, and the creditor who executed the release of his debt, on receiving fifty per cent thereof, made no inquiries as to the then pecuniary condition of his debtor. It seems that subsequently to the time when the plaintiff had been informed of the defendant’s circumstances the pecuniary condition of the defendant had improved, and the plaintiff testified that if he had known the defendant’s financial condition he would not have executed the release. The court held that as the release executed was just what was intended, and the sum paid was the sum agreed upon, there Was no mistake of any intrinsic fact essential to the contract or involved therein, and that although the plaintiff’s action might have been influenced by the defendant’s financial condition, if he had known it, yet such condition was an extrinsic fact, and for that reason relief could not be granted on the ground of mistake. It was held that the debtor was in no way responsible for the ignorance of the creditor, and was under no legal or equitable obligation to disclose the facts as to his pecuniary circumstances. The precise ground upon which he was held to be exempt from such obligation was very distinctly stated when the ease was before the court upon a subsequent appeal. (85 N. Y., 622.) If the $5,000 had been paid in worthless securities, which the debtor represented to be good» the case would have been analogous to this in'its facts. The cases cited by Mr. Justice Earl in Dambmann’s case, as illustrations of mistakes respecting intrinsic facts essential to contracts against which courts of equity will relieve, are more nearly analogous to this than is the principal case.

Again, it is urged that the plaintiff should fail by reason of laches. There was no laches on the part of the intestate. He promptly offered to rescind on learning that the bond and mortgage were worthless, and on being refused he brought suit without unreasonable delay. The defendant complains that he, being satisfied that the plaintiff could not succeed on the ground of fraud, suffered the property coyered by the Brown mortgage to be sold upon a prior mortgage, before the plaintiff moved to. amend his . complaint. But the affidavits read on the part of the defendant in opposition to the motion to amend, show that shortly prior to the mortgage sale, the defendant’s attorney, and also his son, who was active in the defendant’s behalf in the whole transaction, had been informed by the referee, in reply to a request for information in that respect, that he had concluded to decide in favor of the plaintiff upon the ground of mistake. Besides, the defendant knew that the fact of a mutual mistake existed in the case, and that it appeared from his own testimony on the trial, and as every man is presumed to know the law, he is chargeable with knowledge that 'judgment ' could properly be rendered against him on that ground.

The objection urged to the testimony of the witness Weaver, as to the statement made to him by the defendant’s witness Benjamin Fowler, is not available to the appellant, for the reason that the objection and exception noted in the appeal book do not appear to have been taken until after' the testimony was out. The matter is of but little moment, as the testimony, unless it was wholly collateral, tended to discredit the witness by contradicting him, the foundation having been laid for it. Besides, the only fact which the testimony tended to establish was that Brown was represented to the intestate, to be good, in the negotiations which led to the sale, and that fact was satisfactorily established by other evidence, so that the testimony in question, if improper, was harmless.

The testimony offered by the defendant to show that the foreclosure of the prior mortgage on the Brown property was gotten up by Brown and his son in fraud of Brown’s creditors was properly excluded. That issue could not be tried in. this action.

Our conclusion is that the judgment should be affirmed, with costs.

Hardin and Barker, JJ., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    HENRY R. PIERSON, as Receiver of the NEW YORK STATE LIFE INSURANCE COMPANY, Plaintiff, v. JOHN D. SAFFORD and Others, Defendants.

      Attorney — lien of, upon Ms clients eause of action — Code of Civil Procedure sec. 66 — what claim does not constitute a “counter-claim.”

    In an action of ejectment brought to recover the possession of land and damages for the withholding thereof, the defendant pleaded a “ counter-claim to the damages demanded,” consisting of taxes paid and improvements and repairs made to the premises, the amount of which he sought to set off in extinguishment or reduction of the plaintiff’s claim for damages.

      Held, that as this claim did not constitute a cause of action, but could only be applied to reduce the damages which the plaintiff might recover (Code of Civil Procedure, § 1531), it did not constitute a “counter-claim” within the meaning of that term, as used in section 66 of the said Code, giving the attorney of the defendant a lien thereon, and preventing the parties from settling the action without his consent.
    Appeal by Homer Weston, the defendants’ attorney, from an order of tbe Onondaga Special Term denying his motion to set aside the settlement made by the parties, and the order of discontinuance ;herein, and for leave to continue the action to .judgment for the purpose of perfecting his own rights herein.

      Homer Weston, appellant, in person.

      Goodelle c& Nottingham, for plaintiff and defendants.
   Smith, P. J.:

On reading the. appeal book, we are satisfied with the conclusion of the learned judge at Special Term that the defendant John D. Safford is solvent and able pecuniarily to respond to the appellant for whatever compensation he may be entitled to as the attorney of the defendants in this action, and also that the settlement ‘complained of was not made collusively or witli intent to defraud the appellant. The settlement was made before judgment.

Such being the facts, the appellant has no footing which gives him a right to set aside the settlement and continue the action for the purpose of collecting his costs, unless the case is within the pro. visions of the Code which give an attorney a lien upon the cause of action before judgment. Those provisions are contained in section 66 of the Code of Civil Procedure, as amended in 1879, and are as follows: “ From the commencement of an action or the service of an answer containing a counter-claim, the attorney who appears for a party has a lien upon his client’s cause of action or counter-claim which attaches to a verdict, report, decision or judgment in his client’s favor and the proceeds thereof in whosesoever hands they may come; and cannot be affected by any settlement between the parties before or after judgment.”

The question arises-whether the appellant’s clients have a counterclaim in this action to which his lien as an attorney can attach. The action is ejectment. The plaintiff, in his complaint, demands judgment for the possession of the premises described therein and damages for withholding the same. Section 1531 of the Code of Civil Procedure provides that in an action of ejectment, “where permanent improvements have been made in good faith' by the defendant, or those under whom he claims, while holding under color of title adversely to the plaintiff, the value thereof must be allowed to the defendant in reduction of the damages of the plaintiff, but not beyond the amount of those damages.” Under that section, one of the defendants has set up in her answer what the pleader has termed a “ counter-claim to the damages demanded ”' in the complaint, consisting of taxes paid and improvements and repairs made on the premises, to be set off in extinguishment or reduction of any claim for damages which the plaintiff may recover in the action.

We think the answer does not present a counter-claim, within the meaning of section 66, to which the lien of the attorney can attach. A cause of action is essential to constitute a counter-claim as defined by the Code. (Sec. 501). Here is no cause of action and no claim which is or can be the subject of affirmative relief. The claim set up is only available to meet or reduce any claim for damages which the plaintiff may recover, and if the plaintiff makes no claim for damages at the trial, or establishes Done, the claim set up by the defendant goes for naught. . In no event can there be an affirmative recovery by the defendant, and consequently there is nothing involved in the action upon which the defendant’s attorney can have a lien for costs.

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

Hardin and Barker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    JOHN W. STEBBINS, Respondent, v. DWIGHT B. COWLES, Appellant.

      Reference of an action, invoicing a long account, brought by an attorney against hit client — when it may be ordered— County Cowrt — orders made by it, under iit discretionary powers, are not renewable by the General Term of the Supreme Cowrt, as they would be if made at a Special Term of that cowrt.

    Where, in an action brought in a County Court by an attorney, to recover for professional services rendered to his client, the court decides, after a partial trial, that all the items of his account, and their nature and value, must be proved, and directs the action to be referred, the order of reference, being discretionary with the County Court, cannot be reviewed by this court upon appeal.
    This rule does not apply to a review by the General Term of the Supreme Court of the decisions of a Special Term thereof, they being part of the same court; but the County Court, being an independent tribunal, this court cannot interfere with the exercise of its discretionary powers. ■
    Appeal from au order of the Monroe County Court, directing that the action be referred for trial.

      W. Henry Dams, for the appellant.

      John W. Stebbins, respondent, in person.
   Smith, P. J.:

The action is brought to recover for services as an attorney and counselor-at-law. The complaint contains a single count alleging such services generally, and the bill of particulars furnished by the plaintiff specifies numerous items, extending through a period of four years, including services rendered in four separate suits. The answer admitted generally that the plaintiff performed professional services for defendant .“ during the time and as stated in the complaint,” but with that exception denied the complaint and alleged payment, and that the services were performed negligently. The plaintiff having moved for a reference, the defendant admitted that the items of plaintiff’s bill of particulars were correctly stated as to their number and date and character of service, but not as to their value, and thereupon the motion was denied. Subsequently the cause came on for trial before the County Court, and the plaintiff having proceeded in part with his proof, and offered evidence as to value, which was objected to by the defendant, the court decided that all the items of the account, their nature and value must be proved, and ordered a reference. From that order this appeal is taken.

We think the appeal cannot be maintained. -The action was one which the County Court had power to refer in its discretion. The numerous items of the account were not so fully and distinctly admitted as to preclude the necessity of giving evidence of their nature as well as their value, as seems to have been demonstrated by the partial trial of the cause. The facts warranted the conclusion of the court below that the trial involved the examination of a long' account. The order being discretionary we cannot review it. The decisions of one tribunal, resting in discretion, are not reviewable by another. (Wavel v. Wiles, 24 N. Y., 635; Tanner v. Marsh, 53 Barb., 438.) That rule does not apply to a review by the General' Term of this Court, of the decisions of the Special Term, they being parts of the same Court. But the County Court being an independent tribunal, this Court cannot interfere with the exercise of its discretionary powers.

The counsel for the appellant cites cases in which a reference of an attorney’s account has been refused. No case has gone so far as to deny the power to refer in such a case; they all rest upon circumstances of discretion (Martin v. The Windsor Hotel Company, 10 Hun, 304), or upon the ground that the action did not involve a long account. (Felt v. Tiffany, 11 id., 62.)

The appeal should be dismissed, with ten dollars costs and disbursements.

HaRdiN and Barrer, JJ., concurred. .

Order affirmed, with ten dollars costs and disbursements.


author: SMITH, P. J.:

text:
    LEVI J. PEASE, Plaintiff, v. GEORGE F. BARNETT, Executor, etc., of AZUBAH CARPENTER, Deceased, Defendant.

      Evidence — what testimony is inadmissible as-relating to a personal ti'ansaction with a deceased person —Oode of Civil Procedure, sea. 839 — Bes gestee — what evidence is admissible as constituting a parrt of it.

    This action was brought by the plaintiff upon a bond given to him by one Carpenter and Azubah, his wife, against the executor of Azubah. It was defended upon the ground that the bond was, after its execution, altered by the insertion of a clause binding the separate estate of the wife. Upon the trial the plaintiff was called as a witness in his own behalf, and testified that he was not present when the bond was signed, but that he saw it in the hands of his attorney, after it was drawn and shortly before it was executed, and that it then contained the clause in question as it appeared upon the bond.

      Meld, that the evidence was inadmissible under section 839 of the Code of Civil 'Procedure, as relating to a personal transaction with the deceased.

      Meld, further, that this section also prevented the plaintiff from testifying respecting conversations between himself and his attorney, prior to the execution of the bond, which tended to show that it contained the said clause.
    The testimony of the attorney as to such conversation was admissible as a part of the res gesta.

    Motion by tbe defendant for a new trial on exceptions taken at tbe Monroe Circuit, and ordered to be beard at tbe General Term in tbe first instance, after a verdict bad been directed in favor of tbe plaintiff.
    ' Stull dc Bennett, for tbe plaintiff.

      J. I). Decker, for tbe defendant.
   SMITH, P. J.:

Tbe action is upon a bond for tbe payment of money, executed by Davis Carpenter and Azubab, bis wife, tbe defendant’s testatrix, to tbe plaintiff. Tbe bond, which was produced at tbe trial, appeared on its face to have been altered by tbe insertion of a clause binding Mrs. Carpenter’s separate estate, and ■ tbe question litigated at the trial was whether tbe alteration was made before or after tbe bond was executed by her.

Tbe plaintiff was called as a witness in his own behalf, and testified in substance that ne was not present when the bond was signed, but that he saw it in the hands of his attorney after it was drawn,, and shortly before it was executed, and that it then contained the clause in question, as it appeared at the trial. The testimony was objected to as incompetent under section 829 of the Code of Civil Procedure, and the exception to its reception presents the principal question in the case.

We think its reception was error. The statement of the plaintiff that shortly before the bond was signed it contained the clause in question, went to the very marrow of the issue, and, if believed by the jury, left no room to doubt that the alteration was made-before the testatrix signed the instrument. It was as pertinent and convincing as if he had testified that the clause in question was in the instrument when the testatrix signed it. Had she been living at the time of the trial she might have contradicted the plaintiff on that point,, and the permitting him to testify concerning it, she being dead, gave him an advantage which the statute does not allow, unless the plaintiff’s counsel is right in his contention that the testimony did not relate to a personal transaction or communication between the witness and the deceased. That contention is based upon the fact that the witness and the deceased did not meet, personally, the plaintiff having been represented in the transaction by his attorney, Mr. Fuller, who superintended the drawing of the bond and its execution. But the attorney acted under the immediate direction of the plaintiff, who was cognizant at the time of all the steps taken in the transaction. In these circumstances, the giving of the bond was, we think, a personal transaction between the obligors and the obligee, within the meaning of the statute, so-far as to prevent the obligee from giving testimony against the representative of the deceased obligor, tending to show what was the wording of the bond at the time of its execution. Suppose he had been called to prove the contents of a lost letter which he had dictated, and caused his clerk to write and deliver to the deceased, we do not think he would have been competent for that purpose; and yet in that case there would have been no transaction or communication between him and the deceased which could be called “personal” in a literal sense. In Hadsall v. Scott (26 Hun, 617), and Lansing v. Hadsall (Id., 619), we held that the surviving party to a written agreement that bad been lost was not competent to testify to its contents as against the executors of the other party to the agreement. (See 2 Abb. N. C., 9, note.) Milligan, Administrator, v. Robinson (16 N. Y. W. Dig., 96) was an action by the administrator of one Grirvan against Robinson and Roof, to recover certain canal boats which had belonged to Grirvan and the defendant Robinson, and which the defendants claimed had been sold to Roof by a bill of sale executed by Grirvan and Robinson which was lost. Roof was permitted to testify on behalf of the defendants to the delivery to him by Robinson of the bill of sale, and to testify to its contents and to the signature of Girvan. This was held error, although it did not appear that Roof and Girvan had ever met or had any personal transaction or communication in the matter, other than the execution and delivery of the bill of sale in the circumstances above stated.

The learned counsel for the plaintiff relies upon the case of Hill v. Heermans, decided in this department (22 Hun, 456) and affirmed by the Court of Appeals, sub. nom. (Wadsworth, Admr., v. Heermans, 85 N. Y., 639.) It will be seen on reading the facts of that case, as reported in the books above cited, and also in 17 Hun, 412, where the same case was before us on the first appeal, that there is a clear distinction between that case and this. The inquiry, which was the subject of that decision, did not involve any personal transaction between the witness Hill and the deceased party, Fellows. It called simply for a description of the bonds at the time when Hill deposited them in the safe. No agreement between him and Fellows was made or contemplated at that time. Fellows’ subsequent act of inserting his own name in the blank left in the indorsement was independent of any act done by Hill. In short, the proof did not relate to any transaction or communication had between them, through the intervention of - an agent or otherwise.

If the foregoing views are correct, it follows that not only the testimony above referred to, but also so much of the testimony of Pease respecting conversations between him and his attorney, prior to the execution of the bond, as tended to show that the bond contained the married woman clause at the time of its execution, was improperly received. But the testimony of the attorney on the same subject was competent, we think, as a part of the res gestee.

We have examined tbe other exceptions taken and argued by tbe counsel for tbe defendant, and are of tbe opinion tbat they point to no error.

There should be a new trial, costs to abide tbe event.

Habdin and Barrer, JJ., concurred.

New trial granted, costs to abide event.


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    In the Matter of the Final Accounting of REUBEN LEFFINGWELL, as Administrator, etc., of JAMES B. LITTLEFIELD, Deceased.

      Surrogate — power of, to order a ‘¡•eference— referee's report — becomes absolute unless exceptions wre filed thereto as required by General Buie No. 30 — Code of Civil Procedure, sec. 2546, 17.
    Wliere, in pursuance of the power conferred upon him by section 2546 of the Code of Civil Procedure, a surrogate appoints a referee to examine an account rendered, and to hear and determine all questions arising upon the settlement thereof, which he himself has power tó determine, and to make a report thereon, subject to confirmation by the surrogate, the rules of the Supreme. Court are, by section 17 of the said Code, made applicable to such a reference and the report of the referee becomes absolute, and- stands as in all things confirmed, unless exceptions thereto are filed and served within eight days after service of notice of the filing of .the report.
    Where no exceptions have been taken and filed, the surrogate has no alternative but to confirm the report.
    Appeal by tbe administrator from a decree of tbe surrogate of Jefferson county, confirming tbe report of a referee appointed by said court to examine tbe accounts of tbe said administrator and report thereon, and ordering tbe said administrator to pay a certain sum therein specified to Mary E. Westcott, tbe respondent herein.

      A. H. Sawyer, for Reuben Leffingwell, administrator, appellant.

      McQo/rtim, A Williams, for Mary E. Wescott, respondent.
   Smith, P. J.:

Tbe principal questions argued by tbe appellant’s counsel relate to certain claims of. tbe administrator which were disallowed by tbe referee, and to a charge made against him for property which it is alleged was set apart to the minor children of the intestate. The respondent’s counsel insists that none of the questions referred to are brought up for review by the appeal in this case, inasmuch as the appellant omitted to except to the report of the reféree in due season, and thereby the report became absolute. As the proceeding in which the decree appealed from was entered was begun subsequently to the 1st day of September, 1880, it is controlled by the provisions of chapter 14 of the Code of Civil Procedure, so far as they are applicable.

Section 2546, contained in that chapter, authorizes the surrogate, in a proceeding of the nature of the one before us, to appoint a referee to “ examine an account rendered; to hear, and determine all questions arising upon the settlement of such an account, which the surrogate has power to determine, and to make a report thereon, subject, however, to confirmation by the surrogate.” By the terms of the order of reference entered in this case, the account of the administrator and the exceptions filed thereto were sent to' the referee “to examine and report thereon,” and to bring in the evidence taken by him. The order also provided that the report might be brought on for confirmation upon eight days’ notice. Under that order the referee proceeded to a hearing and determination of all questions raised by either party upon the settlement of the account. As the questions thus determined were such as the surrogate might, have decided if the hearing had been before him, we would be inclined to hold, were it necessary to the decision of the case, that the action of the referee in hearing and determining such questions was warranted by the order. But- without deciding that question, it is clear that if there was any error in that respect, it was waived, no objection having been taken on that ground before either the referee or the surrogate. The decree of the surrogate, therefore, properly recites that the account and objections thereto were referred to the referee to examine and report thereon, and to “ hear and determine^ all disputed matters relating to the questions raised ”■ thereby, and the reference is to be regarded as having had that scope for the purposes of the present discussion.

The report of the referee and the evidence taken by him were filed on the first day of November, 1881, and two days afterwards a copy of the report, with notice of filing,- was served on Un attorney for the administrator. On the 3d of December, 1881, the matter was brought before the surrogate upon the referee’s report, and the evidence, on due notice', and the decree appealed from was made on that day. No exceptions were served or filed, so far as the appeal book shows, until the 23d of January, 1882, when the attorney for the administrator filed a paper purporting to contain exceptions to the report of the referee and also to the decree of the surrogate.

¥e think those exceptions were too late, and were ineffectual for any purpose. By section 2546 a referee appointed under its provisions has'the same power as a referee appointed by this court for the trial of an issue of fact in an action; ‘and the provisions of the Code applicable to a reference by this court, apply to a reference made as prescribed in said section, “ so far as they can be applied in substance, without regard to the form of the proceeding.” Not only the provisions of the Code, but also the general rules of this court are, applied to such a reference, so far as they are applicable. By section 17 of the Code those rules are binding upon all-courts of record except the court for the trial of impeachments and the court of appeals ; and by section 2 the Surrogate’s Court is made a court of record. Bule 30 provides that in references other' than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the report of the referee shall be filed with the testimony, and the report shall become absolute and stand as in all things confirmed, unless exceptions thereto are filed and served within eight days after service of notice of the filing of the same. The rulé adopts the practice which prevailed in the court of chancery in respect to proceedings before a master -in cases of accounting (Ketchum v. Clark, 22 Barb., 319), and the provisions of section 2546, already referred to, clearly indicate the intention of the legislature to assimilate references in the Surrogate’s Court to those in this court, so far as the same can be done.

No exception having been taken to the referee’s report, when confirmation was moved for before the surrogate, that officer had no alternative but to direct an order for confirmation to be entered, and no question as to the correctness of the report having been raised before bim, tbe appeal from bis decree brings up no question for review.

For these reasons tbe appeal should be dismissed, with costs.

Hardin and Barker, JJ., concurred.

Appeal dismissed, with costs.


text:
    SOPHRONIA A. GETMAN, as Executrix, etc., of JOHN H. McMAHON, Deceased, Respondent, v. LANY McMAHON, Appellant.

      Legacy — when it is specific and not general — nghts of a legatee for life of specific articles of personal propm'iy — when security need not he given.

    The plaintiff’s testator devised and bequeathed to his wife, after all his lawful debts were paid and discharged, the use, income and occupation of all his real estate, in lieu of dower, for and during her natural life; apd from and after her decease he gave and devised the use, income -and occupation thereof to his daughter, for and during her life; and from and after her death he gave and devised all his real estate to her children and lineal heirs. He also made a bequest in favor of his wife; as follows: “ I also further give and bequeath to my wife Lany McMahon, the use and control of all my personal property whatsoever, on the farm and in the house, at the time of my decease, and for her to have, to use and enjoy the same for her comfort and'support for and during the time of her natural life. After my wife Lany McMahon’s decease, whatever of my personal property may then be left, I give and bequeath said personal property to my daughter Sophronia A. Getman.” The will contained no general residuary clause.

      Reid, that the gift of the personal property was a specific and not a general legacy.
    That the widow should give to the plaintiff, the executrix and daughter of her deceased husband, an inventory of the articles bequeathed, stating that they' were in her possession, under such bequest; and that at her death they, or so many or so much of them as should not have been consumed by a reasonable and proper use, were to be delivered to the plaintiff.
    That as there was no proof of danger that the articles would be wasted or otherwise lost to the remainderman, the widow should not be required to give security.
    Appeal from a judgment, entered upon tbe trial of this action by ■tbe court without a jury.

      The action, was brought to obtain a construction of certain portions of the will of the plaintiff’s testator and father.
    The will contained the following, among other'pro visions:

      First. After all my lawful debts are paid and discharged, I give, devise and bequeath to my wife, Lany McMahon, the use, income and occupation of all my real estate whatsoever, for her to have in lieu of dower, for her support and maintenance, and comfort for and during her natural life.
    * * * *

      Third. After my wife’s decease, I give, devise and bequeath to my daughter, Sophronia A. Getman, the use, income' and occupation of all my real estate whatsoever 'and for her to have, hold and occupy for and during her natural life.

      Fourth. After my daughter Sophronia A. Getman’s decease, I give and devise all of my real estate of every name and nature whatsoever to the children and lineal heirs of my daughter, Sophronia A. Getman, and for said children to share and share alike and for them to have and to hold the same absolute and forever.

      Fifth. I also further give and bequeath to my wife, Lany McMahon, the use and control of all my personal property whatsoever on the farm and in the house at the time of my decease, and for her to have to use and enjoy the same for her comfort and support, for and during the time of her natural life.

      Sixth. After my wife Lany McMahon’s decease, whatever of my personal property may then be left I give and bequeath said personal property to my daughter Sophronia A. Getman, and for her to have and hold the sapne forever.

      Wayland F. Ford, for the appellant.

      Dorvñn de Brown, for the respondent.
   Smith, P. J.:

The principal question is whether the gift of personal property to the wife of the testator, contained in the fifth clause of his will, is a specific legacy. The words are: “ I also further give and bequeath to my wife Lany McMahon the use and control of all my personal property whatsoever on the farm and in the house at the time of my decease and for her to have to use and enjoy the s^me for her comfort and support for and during the time of her natural life.” We incline to the opinion that the legacy, being limited to the testator’s property at a particular place, is to be regarded as specific and not general. A residuary disposition of “all” the testator’s “real and personal estate m Jamaica ” has' been held to be specific. (Murray v. Nisbett, 5 Ves., 149.) So also a bequest of “ all my personal éstate at W.” (Sayer v. Sayer, 2 Vern. Ch., 688.) And a bequest of all the testator’s right, interest and 'property, in thirty shares in the Bank of the United States of America. (Walton v. Walton, 7 Johns. Ch., 258.) In Twining v. Powell (2 Collyer, 222) there was a devise of the house in Camden place and all there to M. for life and after her death to T. Held, that M. was entitled to the use of the specific personal property, and to use up the consumable articles. A general legacy has been defined as one which does not necessitate delivering any particular thing or paying money out of any particular portion of the estate; but a specific legacy is the converse of this. (Schouler’s Exrs. and Admrs., 461.)

Other provisions of the will indicate the intention of the testator that his wife should have the use of the articles given in specie. She was given the use, for life, of all the testator’s real estate, including the house and farm referred to; and the personal property in question, being on the farm or in the house, may be presumed, without resort to extrinsic evidence, to consist in part of household furniture, and in part of such property as would bo used in connection with the farm. The parol evidence shows it was of-that nature. Besides, the testator directed that his sister should have a home and support on the farm; or, if she should become dissatisfied with that arrangement, and choose to live elsewhere, that then the wife should pay a specific sum annually for her support. As the use of the personal property was necessary to the occupancy of the house as a residence, and to the profitable use of the farm, the intention that the wife should have the use of the specific articles, in order to enable her to meet the burden imposed upon her by the terms of the will, seems clear. (Hill v. Hill, 2 Lans., 43.)

The intention that the wife should have the use of the said articles, m specie, even although some of them are such as would be consumed in the using, is further evinced by the sixth clause of the will, which gives to the testator’s daughter, at the death of his wife, whatever of his personal property “may then be left.” The plaintiffs counsel call our attention to the fact that similar words received a different construction in the case of Livingston v. Murray (68 N. Y., 485, 490). But that construction was adopted in view of various other important provisions óf the will in that case, which do not exist here.

The counsel for the respondent urge that the construction above suggested leaves the testator intestate as to any property not found on the farm or in the house at the time of his death. It is true courts are adverse, in general, to an interpretation of a will which will produce intestacy as to any part of the estate; but in 'this case the supposed intestacy would not divert any part of the testator’s property from the course which he intended it to take, inasmuch as the sole heir and next of kin is the remainderman named in the will. Besides, if the testator did in fact leave personal property, which was not on the farm or in the house at the time of his death, that fact renders more clear his intention to make the gift to his wife specific.

It is also urged that if the legacy is interpreted as specific, it is ■ repugnant to the direction in the first clause of the will for the payment of debts. There is no repugnancy. The bequest to the wife is subject to the payment of debts, funeral .expenses and expenses of administration, and if, after exhausting such of the personal property as is not specifically given, any portion of the debts and expenses remain unpaid, it may be satisfied out of the articles the Use of which is given specifically to the wife.

On the whole we are of the opinion that the defendant is entitled to the reasonable use of the property in question, in sypeoie, during her life, subject to the payment of the debts and funeral expenses of the testator and expenses of administration, and Such as shall remain at her death will belong to the plaintiff.

And the defendant should give to the plaintiff an inventory of the articles bequeathed, stating that they are in her possession under such bequest, and that at her death they, or so many or so much of them as shall not be consumed by a reasonable and proper use, are to be delivered up to the plaintiff. But as there is no proof of danger that the articles will be wasted or otherwise lost to the remainderman, the defendant should not be required to give security. (Covenhoven v. Shuler, 2 Paige, 122, 132.)

In case tbe bequest in question had been held to be general, the plaintiff, as sole executrix, would have been entitled to the possession of the property, and charged with the trust of selling the same and investing the proceeds, and paying the income to the life tenant. The question of construction is one that admits of debate. The learned judge, at Special Term, decided it in favor of the plaintiff. The case is therefore a proper one in which to apply to the court for a construction of the will, and the plaintiff as well as the defendant is entitled to her costs, to be paid out of the estate.

The judgment appealed from should be reversed, and judgment ordered in accordance with the foregoing opinion.

If counsel differ as to the form of the judgment, it may be .settled before Presiding Justice Smith, on five days notice.

Hardin and Barker, JJ., concurred.

Judgment appealed from reversed, and judgment ordered in accordance with the opinion herein, costs of both parties payable put of the estate.


text:
    GEORGE A. GERMAIN and Others, Respondents, v. THE BROOKLYN LIFE INSURANCE COMPANY OF NEW YORK, Appellant.

      Policy of life insurance — the breach of a condition must be pleaded and proved by the defendant in an action thereon.

    This action was brought upon a policy of life insurance issued by the defendant, which contained a condition to the effect that if the assured should die by his own hand or act, whether sane or insane, the company should not be liable for an amount greater than the reserve of the said policy. The answer set up a breach of this condition as a defense. The defendant’s counsel contended that the burden of proof was on the plaintiffs to show that the defendant did not die by his own hand, and that in case they failed so to do, they could only recover the amount of the reserve.

      Held, that the court properly refused so to charge ; that it rested upon the defendant to plead and prove the breach of the condition.
    Appeal from a judgment in favor of the plaintiffs, entered on a verdict rendered at the Erie Circuit.

      John G. Milbwrn, for the appellant.

      George Wadsworth, for the respondents.
   Smith, P. J.:

The action is on a policy of insurance, issued by the defendant upon the life of Charles Germain, the father of the plaintiffs, to the amount of $3,000. The policy contained a condition, to the effect that if the assured should die by his own hand or act, whether sane or insane, the company should not be liable for “ an amount greater than the reserve for 'said policy, computed by the New' York standard,” which amount, with the interest • thereon, was stipulated at the trial to be the sum of $295.01. The answer of the defendant set up that condition, and alleged as a defense to the action that the insured died by his own hand or act. Evidence was given in support of that defence; and evidence was also given tending to contradict that given by the defendant, and tending to prove that the deceased came to his death by accident and not otherwise.

The appellant’s counsel contends that the burden of' proof was on the plaintiff to show that the deceased did not die by his own act or hand, otherwise there could be no recovery, except for the sum of $295.01, and that the court erred in not so charging as requested, and also in charging that the onus was on the defendant of proving that the deceased committed suicide.

Ye think the contention cannot be maintained. The complaint contained no allegation as to the cause of the death of the assured, and need not have contained any. (Murray v. New Work Life Insurance Company, 85 N. Y., 236.) The fact of suicide was alleged in “the answer as an affirmative defense,' as must have been done, to enable the defendant to avail itself of it. As the burden of alleging that defense was on the defendant, so also was the burden of proving it. (Jones v. Brooklyn Life Insurance Company, 61 N. Y., 79; Van Valkenburgh v. American Popular Life Insurance Company, 9 Hun, 583; S. C. affirmed, 70 N. Y., 605.) As it does not appear from the appeal book that there was any evidence tending to show that the deceased was insane, it follows that if he had killed himself intentionally, such self-killing would have been felonious. To hold that it was incumbent on the plaintiffs to show that the assured was not guilty of the crime of self-murder, would amount to a reversal of the legal presumption which regards every man as innocent till he is proved guilty.

The judgment should be affirmed.

Hardin, J., concurred; Barker, J., not sitting.

Judgment affirmed.


author: • Smith, P. J.

text:
    MARY DRAKE Respondent, v. CHRISTIAN WILKIE, Executor, etc., of CHAUNCEY LOVELACE, Deceased, Appellant.

      Statute of limitations —effect of the Imitations prescribed by the Gode of Oiml Procedure upon causes of action existing at the time of its adoption — a legacy must be demanded, before an action will lie therefor — 2 B. 8., 114, sec. 9 ; Gode of Gwil Procedure, secs. 1819,410, 414 — when the statute only runs from the time the party had actual knowledge of his rights.

    April 5,1872, the defendant’s testator died, leaving a will by which he bequeathed to the plaintiff a legacy of $400, with interest to commence one year after his death. The plaintiff, who resided in Missouri, claimed to have been informed by the executor, the defendant, that the deceased had left her a legacy of $300, payable at a future time, for which he would then give her $280 ; that relying upon this statement she accepted the said sum and gave him a receipt for $800. In February, 1881, she was first informed of the amount of the legacy left to her, and in June, 1881, she commenced proceedings in the Surrogate’s Court to compel the payment of the balance due her thereon. The executor had never filed any inventory, nor had he had his account judicially settled.

      Held, that although prior to the adoption of the Code of Civil Procedure there was no statute of limitations applicable, in express terms, to such proceedings in' a Surrogate’s Court, yet, as the plaintiff then had a concurrent remedy by action at law, the statutory limitation applicable to the latter was also applicable to the former proceeding.
    That as the plaintiff’s right of action was not barred by the statutes in force at the time of the adoption of the first part of the Code of Civil Procedure, September 1, 1877, and as it did not fall within any of the exceptions specified in section 414 thereof, it was thereafter governed by the rules therein prescribed.
    That as section 9 of 2 Revised Statutes, 114, giving a right of action for a legacy, and section 1819 of the Code of Civil Procedure, which took the place of the said section of the Revised Statutes upon its repeal by chapter 245 of 1880, required a demand for the legacy to be made upon the executor-before any action could be brought therefor, the limitation applicable to the cause of action thereby given was prescribed'by section 410 of the said Code.
    That as this case fell within the first of the exceptions -specified in the said section, and as by it the time is to be computed only from the time when the person having the right to make the demand has actual knowledge of the facts upon which that right depends, the statute did not begin to run against the plaintiff’s cause of action until February, 1881. '
    That as the plaintiff had a right to maintain an action at law to recover the legacy at the time these proceedings were instituted in the Surrogate’s Court, they were not barred by the, statute of limitations.
    Subdivision 3 of section 414 of the Code of Civil Procedure was not intended to deprive any cause of action of the remedial provisions of the new pode in respect to the limitation of actions, to which it would be entitled otherwise. Houses. Agate (3 Redf. Sur. R., 307), criticised and distinguished.
    Appeal from a decree of tbe surrogate of Genesee county, requiring the appellant, as executors, etc., of Chauncey Lovelace, deceased, to pay to the respondent the balance of a legacy alleged to be due her under the will of said testator, together with the costs of the proceeding prosecuted for the purpose of compelling such payment.

      A. J. Lorish and M. 21. Peck, for the appellant.

      H. B. Gone, for the respondent.
   • Smith, P. J.

Chauncey Lovelace died 5th April, 1872, leaving a will dated 15th December, 1863, which was proved and recorded in the office of the surrogate of the county of Genesee, by which he bequeathed to the respondent the sum of $100, in the words following, to wit: “ I give and bequeath to said Mary Drake * * * the sum of four hundred dollars, with interest, to commence in one year after the day of my death, and provided she shall die before she shall inherit the sum of four hundred -dollars, then in that case the said four hundred dollars shall be paid by my said executor to the said Mary Drake’s children, to be equally divided between them, share and share alike.”

Mary Drake was an adopted child of the -testator, he having no child of his own. She had married several years before his death, and at the date of his will she resided with her husband in the State of Missouri, and has lived there ever since.

The respondent testified that she received a letter from the executor, or at least a letter written in his name, advising her that she-had a legaey of $300 under the testator’s will, payable at a future time, and proposing that if she would throw off twenty dollars, he would pay her $280 and advance the money; that she, confiding in such statement, replied, accepting the proposition ; and that she afterwards received the $280 and sent her receipt for $300. The executor testified that he never wrote a letter, or caused one to be written, to the respondent, but the fact was admitted on his part before the surrogate, that on or about 30th October, 1872, the executor sent, or caused to be sent, to the respondent a draft or check for $280, as payment upon said legacy, with request to acknowledge the receipt of the same, and that the .same was received by her, and her receipt for $300 was returned therefor. According to the testimony of the respondent (which was not controverted on that' point), she was not informed of the true amount of the legacy until February, 1881. The executor had sufficient assets to pay all bequests in full. He never filed an inventory, and there has been no judicial settlement, or other proceeding, respecting said estate, other than the present ’ proceeding, which was commenced 28th June, 1881.

It appeared, before the surrogate, that in January, 1869, the testator sent to the respondent $100 at her request,'which the executor claims was intended as a payment of the legacy, pro tanto, or at least as a loan. The surrogate held that it was neither an ademptiqn nor a loan, but was a gift, and on a review of the evidence, we see no reason to differ with him on that point.

It is also contended by the learned counsel for the appellant, that the claim of the respondent, is barred'by the statute of limitations. Prior to the Code of Civil Procedure, there was no statute of limitations which applied, in express terms, to a proceeding like the one before us. Put by statute the'respondent had a concurrent remedy by action at law, and the general rule is undisputed, that where there is a legal, as well as an equitable remedy, in respect to the same subject matter, the latter is subject to the same statutory limitation as the former. The real question, therefore, is whether the respondent’s legal remedy was barred before she commenced this proceeding.

A right of action to recover a legacy did not exist at common law; it was given by statute. The Revised Statutes, in defining the cases in which such an action would lie, provided, among other tilings, that it might be brought “ after reasonable demand made.” (2 R. S., 114, § 9.) If the proper construction of the statute were that such demand was a prerequisite to the cause of action, the six years’ limitation would not have run against the respondent, for the reason that 'no demand was made until a few weeks before this proceeding was begun. But there are numerous cases in the books, decided since the Revised Statutes took effect, and prior to the present Code, where actions a,t law, or proceedings before a surrogate to enforce payment of a legacy, have been held barred by the six years’ statute, irrespective of the question whether a demand had been made or not. (Am. Bible Soc. v. Hebard, 51 Barb., 552; S. C. affirmed, 41 N. Y., 619.) Those cases probably proceeded upon the ground that the object of the statute, in requiring a demand before suit, was to protect the executor against costs and not to subject him to stale demands, and doubtless that is the true construction. So that although, by the terms .of the section, a demand -and refusal are essential to the right of action, yet the omission of. the claimant to make demand does not prevent the running of - the statute of limitations. Upon the same ground it has been held that although an attorney-at-law is not, in general, liable to an action for moneys collected by him, until after demand, yet the action must be brought within six years after his receipt of the money, or it will be barred, notwithstanding no demand has been made. This was held expressly in Stafford v. Richardson (15 Wend., 302). There are'other cases to the like effect, and some, not in entire harmony with them, collated in Mr. Throop’s note to section 410 of the Code of Civil Procedure. That section, as explained in the note,.was designed to settle the question to which the cases above referred to relate. It contains the following provisions, to wit: “Sec. 410. Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time, within which the action must be commenced, must be computed from the time when the right to make the demand is complete; except in one of the following cases: (1.) Where the right grows out of the'receipt or detention of money or property, by an agent, trustee, attorney or other person acting in a fiduciary capacity, the time must be computed from the time when the person, having the right to make the demand, has actual knowledge of the facts upon which that right depends.” The remainder of the section does not affect the question under consideration.

That section took effect September 1, 1877, before the expiration of six years after the time when the legacy in question was payable, by the terms of the will, and it seems to apply to actions given by section 9 of the Revised Statutes. For, by the provisions of that section, as we have seen, a demand is necessary to the right of action, although the statute of limitations would begin to run without a demand; and the words “ trustee,” “ or other per son in a fiduciary capacity,” as used in section 410 of the Code, include an executor.

Section 9 of the Revised Statutes was repealed by chapter 245 of the Laws of 1880, and section 1819 of the Code of Civil Procedure, which took effect the 1st day of September, 1880, was substituted for it. That section is as follows: “ Sec. 1819. If after the expiration of one year from the granting of letters testamentary, or letters of administration, an executor or administrator refuses, upon demand, to pay a legacy or distributive share, the person entitled thereto may maintain such an action against him as the case requires. But for the purpose of computing the time within which such an action must be commenced, the cause of action is deemed to accrue when the executor’s or administrator’s account is judicially settled, and not before..” Mr. Throop’s note to this section states that it was prepared to change the rule with respect to the statute of limitations, laid down in the case of the American Bible Society v. Hebard (supra). That section was in force when this proceeding was commenced, and it, as well as section 9 of the Revised Statutes, makes a demand and refusal a prerequisite to a cause of action, so that if the respondent had brought an action at law for her legacy, under either section, when she commenced this proceeding, it would have been controlled by section 410.

By section 414 of the Code of Civil Procedtire, the provisions of the fourth chapter of said Code, including section 410, apply, and constitute the only rules of limitation applicable to a special proceeding as well as a civil action, unless' the same falls within one of the exceptions specified in said section 414. The only one of those exceptions which it is necessary to consider, is that contained in the third subdivision of said section'. That subdivision applies to a case arising subsequently to the first day of July, 1848, in which a person is not' only entitled to commence, but actually commences, an action or special proceeding, before the expiration of two years after said act took effect. In every such case,, the effect of the subdivision is, that the provisions of law which were applicable to such case immediately before the Code of Civil Procedure took effect, continue to be so applicable, notwithstanding their repeal. The purpose of that subdivision, as we read it, was to preserve for two-years after the Code took effect, causes of action which otherwise would have been cut off by various provisions of the Code shortening the period theretofore allowed for the bringing of certain actions therein specified. New provisions, having that effect, are found in section 382 subdivision 6, in each of the subdivisions of section 383 and in section 384; and perhaps there are others. Causes of action falling within either of those provisions were kept alive for two years by the third subdivision of section 414, on a compliance with its conditions; but"we think that subdivision was not designed to deprive any cause of action of the remedial provisions of the new-Code in respect to the limitation of actions, to which it would be entitled otherwise. As the present proceeding was not commenced within two years after the new Code took effect, it is not within the letter of the subdivision ; and if we are right in our construction, it is not within its intent, and the case is governed by section 410.

The learned counsel for the appellant cites Cole v. Terpenning(25 Hun, 482); House v. Agate (3 Redf. Sur. R., 307; McClellan’s Sur. Pr. [2d ed.], 557, 579; and Redf. Sur. Pr. [2d ed.], 585), in support of his position that section 410 does not apply to this-case. Gole v. Terpenning is in harmony with the views above expressed. It holds, merely, that a petition in the Surrogate’s Court to compel an executor to pay a legacy must be filed within the time-in which actions of a similar character are required to be .commenced, in courts of common law or equity. House v. Agate, decided by the experienced surrogate of Westchester county, in November, 1877, was to the same effect. It held, also, in accordance with what we have already said, that the omission of the-legatee to make a demand does not prevent the running of the statute of limitations. The case went further, and held that section 410 of tbe Code of Civil Procedure did not apply to tbe case, for two reasons: (1.) That the legatees had knowledge of the facts upon which their right to make a demand depended, more than six years before they made their application to compel the executor to pay; and (2), that no demand was necessary to enable them to maintain the application. The case was properly decided upon the first ground stated, but, with all due respect, the latter reason assigned by the learned surrogate seems to us irrelevant. The real question was not whether a demand was' necessary to maintain the proceeding before the surrogate, but it was whether the applicants were barred of their concurrent remedy by action at law ; and as to that remedy a demand was necessary, as we have seen already. A better reason for holding that section 410 was not applicable to the proceeding which the surrogate had before him was, that tbe proceeding was begun in June, 1877, before the section took effect. Mr. Redfield, in his valuable treatise on the “ Law and Practice of Surrogates’ Courts” (p. 585), has been led into an error, as we conceive, by the case of House v. Agate, in saying as he does, upon its authority, that “inasmuch as a demand is not necessary to entitle a legatee or distributee to maintain an action or proceeding for his legacy or share, the time cannot be computed from the time when the claimant has actual knowledge of the facts.” As we have seen, the provisions of the fourth chapter of the Code of Civil Procedure expressly apply, and constitute the only rules of limitation applicable to a civil action or special proceeding, except in the cases specified in section 414. And a proceeding before a surrogate to compel payment of a legacy is treated by the new Code as a special proceeding. (Sees. 2717-2726, 2516, 2517.) The evident intention of tbe Code is to apply a uniform statutory rule of limitation to all concurrent remedies relating to the same subject-matter, whether by action at law or in equity, or by special proceeding, and it is unreasonable to suppose that tbe law makers intended that a legatee seeking payment of his legacy should be barred by lapse of time from seeking relief in the Surrogate’s Court, when at the same time a remedy is open to him by action in the courts of law.

I have not had access to the edition of McClellan’s treatise, cited ■by the appellant’s counsel.

Our conclusion is, that at the time when this proceeding was commenced the respondent had a right of action at law under the statute to recover the unpaid balance of her legacy, which was not then barred by lapse of time, inasmuch as six years had not elapsed from the time when she had actual knowledge of the facts upon which her right to make a demand of payment depended; and that being the case, the present proceeding is not barred by the statute of limitations.

There are no other questions in the case requiring comment.

The decree should be affirmed, with costs.

Hardin and Haight, JJ., concurred.

Decree of surrogate affirmed, with costs.


author: Hardin, J.:

text:
    In the Matter of the Application of LUCY COLEMAN, for an order Directing the Board of Supervisors of Orleans County to Refund a Tax.

      Taxation —power of t7ie county judge to relieve from, an illegal and, unjust assessment where Ihe applicant had made oath, before the assessors, that he •had no personal prope/rty —1871, chap. 695.
    The petitioner applied to the county judge of Orleans county for an order directing the board of supervisors to refund to her the amount of a tax which she had been compelled to pay. She alleged that she had been assessed for $6,800 for personal property; that she appeared before the assessors ,on grievance day and made oath that she had no personal property subject to assessment or taxation, and that there was no evidence to- contradict her statement. The county judge dismissed the petition upon the ground that he had no jurisdiction in the premises.

      Held,, error.
    Appeal from an order of the County Court of Orleans county, entered March 13, 1882, refusing an order directing the return of a tax of forty-seven dollars and eighty-seven cents, which order was denied, for want of jurisdiction to hear and decide the matter. The petitioner alleged that she was assessed for $6,800 for personal property, by the assessors of the town of Clarendon, in said county, in the year 1880, and that she paid the tax thereon of some forty-two dollars. That on grievance day she made an oath before the assessors that she had no personal property subject to assessment or taxation, and that there was no evidence to contradict her statement, except the statement of one of the assessors, who said he had seen two mortgages purporting to belong to her. That she did not own the said mortgages, nor any' interest therein. The tax collector certified that he collected of her, upon such assessment, forty-seven dollars and ninety-seven cents. Affidavits were read in opposition to her application in the County Court,; but they were not considered by the General Term, as the County Court held it had no jurisdiction in the premises, and denied the application.

      John, Cumneen, for the petitioner, appellant.

      Signor ds Wage, for supervisors, respondents.
   Hardin, J.:

Chapter 695 of Laws of 1871, in section 5, confers power upon the board of supervisors, upon the order of' “ the County Court, made on the application of the person aggrieved,” to refund “ any tax illegally or improperly assessed, or levied.” If the petitioner had no personal property in 1880 she was illegally or improperly assessed,” and the tax was “illegally and improperly” levied upon, her, and therefore her case is brought within the terms of the act of 1871. In Boardman v. Board of Supervisors of Tompkins County (85 N. Y., 360), it was held that a person who had been improperly assessed in Tompkins county, upon personal property owned by a resident in Monroe county, was properly allowed an order directing the tax to be refunded, and an order of the General Term reversing an order of the County Coiirt was reversed. ~We must follow the rule laid down in that case, and we therefore hold that the County Court of Orleans county had jurisdiction, and it was its duty-to pass upon the merits involved in the case made by the petitioner before it, and its refusal to do so, “ for want of jurisdiction,” was error. ' If the facts be as averred by the petitioner she was not liable to assessment and taxation for the $6,800 of personal property included in her assessment, and 'the determination oí* the assessors does not stand in the way of relieving her (In the Matter of Catholic Protectory, 77 N. Y., 342; Williams v. Board of Supervisors, 78 id., 563; Boardman v. Supervisors, supra.)

We must reverse the order of the County Court for the error spoken of.

Order of the County Court of Orleans county reversed, with ten dollars costs ■ and disbursements, and proceedings remitted to that court with directions to proceed and hear the application upon the merits:

Smith, P. J., and Barker, J., concurred.

Order of County Court reversed, with costs.


text:
    WILLIAM H. HILLS, Respondent, v. THE PEEKSKILL SAVINGS BANK, Appellant, and Another.

      Practice — writ of distringas — power of the court to compel a corporation to answer for a contempt.

    Where a corporation has failed and refused to comply with the terms of a) judgment recovered against it, the Supreme Court, at Special Term, has power to make an order directing a writ of distringas to issue, compelling the corporation to appear and answer as to the contempt alleged to have been committed by it.
    Appeal from an order made at a Special Term authorizing a writ-of distringas to issue, to compel the defendant corporation to appear and answer for a contempt alleged to have been committed by it.
    On the 11th day of September, 1882, the plaintiff obtained a judgment,' by the fourth paragraph of which the defendant was required, within thirty days after service upon it of a copy of the judgment, to deliver to the clerk of the' county of Wyoming certain bonds and coupons purporting to be issued by the town of Attica to be canceled, and directing that the same shall be canceled in the manner specified. On the 29th day of September, 1882, a copy of the judgment was duly served upon the defendant, the’ Peekskill Bank. The bonds and coupons not having been delivered in accordance therewith, on the 14th day of November, 1882, the clerk appointed an attorney in fact to demand of and receive from the defendant the bank the bonds and coupons, in pursuance of the-judgment, and on the 16th day of December, 1882, such attorney, in pursuance of that power, demanded of the bank the surrender of the bonds and coupons as provided- in the judgment, with which demand the defendant declined to comply. Upon these facts the Special Term, on the 28th of January, 1883, made an order that a writ of distringas should issue in the usual form for not obeying the judgment, unless the defendant bank, within sixty days after service of a-copy of the order, procure an order 'of this court upon the usual notice, staying the plaintiff’s proceedings pending the appeal which had been taken by it in the action. In opposition to the motion it was urged by the counsel for the defendant that the judgment was wrong; that the bank had parted with the bonds pending the action, and that it had appealed from the judgment.

      L. B. Hayes and 1. S. Johnson, for the appellant.

      W. F. Cogswell, for the respondent.
   Hardin, J.:

Whether the defendant has been guilty of the alleged contempt need not be conclusively determined when an application is made for a writ of distringas. When a decree or judgment is pronounced aga-inst a corporation, which it refuses to obey, the party who avers that the corporation is in contempt may have the writ of distn'ingas to bring it before the court, and after that, if no satisfactory answer is given to the alleged contempt, the court may order a sequestration, to enforce the performance of the decree or order of the court. (1 Barb. Ch. Pr., 443.)

Section 14 of the Code of Civil Procedure defines what contempts may be punished civilly, and enumerates cases in which the remedy applies. In the eighth subdivision thereof it is declared that such power exists “ in any other case. where an attachment or any other proceeding to punish for a contempt has been usually adopted and practiced in a court of record to enforce a civil remedy .of a party to an action * * * or to protect the right of a party.”

When the contumacious party is brought before the court, the practice in certain cases is prescribed by title 3 of chapter 17 of the Code of Civil Procedure. We are of opinion that the Special Term did not exceed its power and discretion in regard to the application before it.

Order affirmed, with ten dollars costs andv disbursements.

Smith, P. J., and Barker, J., concurred. •

So ordered.


author: Hardin, J.*:

text:
    In the Matter of the Proposed VILLAGE OF ELBA.

      Villages — incorporation of — what resident population they must contain — review of the proceedings by a county judge —by the General Term — 1870, chap. 291, as amended by chap. 92 of 1873.
    Chapter 291 of 1870, regulating the incorporation of villages, provides (tit. 1, § 1) that “ any part of any town or towns not in any incorporated village containing a resident population of not less than three hundred persons, and if it shall jnclude in its boundaries a, territory of more than one square mile in extent containing a resident population of not less than three hundred persons in each and every additional square mile> of territory included within such boundaries, may be incorporated. ”

      Held, that whenever the territory to be included in the boundaries of a proposed village exceeds one square mile in extent, the additional territory to be included therein must have at least three hundred persons residing within it. .
    That- where the territory of the proposed village consisted of about one and a-quarter square miles, and the population residing within it consisted of four hundred and twenty-seven persons, the village could not be incorporated under the act.
    Where a majority of such persons have voted in favor of organizing a village, as prescribed in the act, the county judge may, upon an appeal being taken as prescribed therein, set aside the election.

      Quaere, as to whether an order so made by him is appealable to the General Term of this court.
    Appeals from two oi’ders made by the county judge of Genesee county, in proceedings to incorporate a village.
    Certain residents of tbe town of Elba,, in Genesee county, N. Y., for the purpose of incorporating “The'Village of Elba,” under' the village act of 1870, having complied with the requirements of the said act preliminary to the lawful holding of such election, an election was held on the 2d daj- of December, 1882, to determine the question of the incorporation of such territory.
    At such election 106 votes were cast, sixty being in favor and forty-six against such incorporation. The certificate of election was filed in the Genesee county clerk’s office. Afterwards, Alva U. Willis appealed to the county judge of Genesee county to have such election annulled and set aside, and another election ordered to determine the question of tlm incorporation of such territory.
    At the hearing on the appeal ii was proven that the number of inhabitants within the territory to be ihcorporated was 427, and ■ .that there were about one and a-quarter square miles of land embraced in it.
    On the 28th day of December, 1882, the county judge made three several orders in the matter.

      Number 1. Declaring the election appealed from illegal, by reason that there is not th'e requisite population resident within the territory embraced in the proposed village to authorize such election to be'held.

      Number 2. Orders another election to be held to determine the said question of incorporation as authoriked and required by law.

      Number 3. Directs repayment to the appellant of the $100 deposited by him on the appeal.
    From orders numbers one and three this appeal is brought.

      W. G. Watson and George Bowen, for the appellants, persons desiring to incorporate said village.

      Myron H. Peelc, Jr., for the respondents, opposed.
   Hardin, J.*:

Territory included within the proposed village is about one square mile and a quarter. Population, 427. Majority of votes were for the proposed village. Was the election legal ?

By section 1 of 1 Revised Statutes (7th ed.), 884, it is provided that any part of any town or towns nothin any incorporated village containing a resident population of not less than three hundred persons, and if it shall include in its boundaries a territory of more them one square mile in extent, containing a resident population of not less than three hundred persons in each, and every additional square mile of territory meluded within such boundaries may be incorporated as a village under ^he provisions of this act, by complying therewith.” If the territory was one square mile then a population of 300 would be sufficient to .comply with the provision quoted. Thus, a territory, having that number may be incorporated. Thus the other provision is general, and provides for “ additional square miles of territory,” to be included within the boundaries of the proposed village. But the statute declares, that “ each additional square mile, containing a resident population of not less than three hundred persons,” * * * may be incorporated. The statute provides a mode, and that mode and the requirements of the statute must be complied with, or the statute cannot be availed of. We are not to give it any more minute provisions than we find written in its language. We incline to the opinion that whenever the territory exceeds one square mile, each additional territory must have at least 300 persons within its bounds. We therefore agree with the conclusion reached by the county judge. Section 11 of of the act (ch. 291, tit. l,Lawsol 1870) provides that a petition may be presented to the county judge, “specifying the irregularities in and objections to such election.”- Also, that “ his decision as to the legality or illegality of such election shall be rendered.” If the construction we have given the statute be correct, it would seem to follow that the election was illegal, and that the proceedings had prior thereto, based upon a contra construction, wei*e irregular and illegal inasmuch as they did not conform to the statute. Though such irregularities or departure from the statute might be reached by a certiorari, yet it is obvious that it was the intention of - the legislature, by section 11, to provide for taking the “ irregularities and objections ” arising, in the early proceedings, before a county judge summarily. We think it was proper for him to declare an election held under such irregular proceedings invalid, upon the appeal taken to him. The order declaring the election held illegal should be affirmed. It may be obseiwed that we have not deemed it necessary to pass upon the question raised by counsel, as to whether the order was appealable, as upon the merits we have reached^ the conclusion that it is right. Order affirmed, with ten dollars costs and disbursements, to be paid by appellants.

Order directing the return of money deposited also affirmed, without costs.

Smith, P. J., and Barker, J., concurred.

Order affirmed, with ten dollars costs and disbursements. Order directing the return of the money deposited affirmed, without costs.


author: Hardin, P. J.:

text:
    In the Matter of the Estate of WILLIAM BEDFORD, Deceased. JAMES A. POOL, Administrator, etc., Appellant.

      Surrogate — report of a referee upon the accounting of an administrator — receptions thereto — duty of the surrogate to consider the same in detail.

    An administrator having applied for a judicial settlement of liis accounts, certain objections thereto were filed by the widow and certain of the creditors and parties in interest. Thereupon the surrogate “ ordered that said account and objections be referred to John E. Pound, as referee, to examine the same and to make report thereon to this court.” The referee, after taking evidence and hearing objections, made a report passing upon .the facts and the'questions raised before him. To this report exceptions were taken and served. Upon a motion for the confirmation of the report, the surrogate refused to consider the exceptions taken to the referee’s report and the question thereby raised, and confirmed the report.

      Meld, error.
    That before passing upon the report in question he should have considered the rulings made by the referee, on the exceptions taken to the report, in detail.

      Quaere, whether it would have been the duty of the surrogate to do so had the order of reference conferred power upon the referee, " to hear and determine all questions arising upon the settlement of the accounts.”
    Appeal by tbe administrator from a decree judicially settling the accounts of said administrator, entered October, 1882, by the surrogate of Niagara county, and from each and every part thereof, and from an intermediate order of September 25, 1882, confirming the report of John E. Pound, Esq., referee.
    James A. Poole, administrator, filed his account with the surrogate and asked for citations and for a settlement. Certain creditors, heirs and the widow, filed objections thereto. Thereupon the surrogate ordered that said account and objections be referred to John E. Pound, Esq., as referee, “ to examine the same and to make report thereon "to this court.”
    The referee made a report, after taking' evidence and hearing objections made by the parties. ITe made findings of fact upon evidence received, and as to the various questions arising on the hearing. Exceptions to the referee’s report, both as to his findings of fact and law, were made and served. A motion was then made by the objectors upon said report and exceptions for the confirmation of said report, and the motion was brought on before the surrogate. Tiie counsel for the administrator requested the surrogate to rule upon the several objections and exceptions of said administrator to the admission and exclusion of evidence upon the hearing before said referee, and upon the several exceptions filed by said administrator to said report. The surrogate declined so to rule and said administrator duly excepted.
    The surrogate then made an order confirming the said report, and also made the decree from which the appeal is taken.

      Volney Simpson, J. D. Qasleell and Levi L. Bowen, for James A. Pool, administrator, appellant.

      A. K. Potter, for creditors, respondents.
   Hardin, P. J.:

In terms the order of reference made by the surrogate was to examine the “ accounts and objections, and to make report thereon to the surrogate.”

Power to make such a reference is conferred upon the surrogate by section 2546 of the Code of Oivii Procedure. The oi’der did not in terms confer power upon the referee “ to hear and determine all questions arising upon the settlement of such an account.” As to all questions which the surrogate had power to determine, such a reference might have been authorized by the surrogate.

In such a case it would have been the duty of the referee to make report thereon, “ subject, however, to confirmation by the surrogate, ” under the order of reference to “ examine ” and to report therein to the Surrogate’s Court. The surrogate had the power, and it was his duty, to examine the evidence and the report thereof, and to consider the exceptions filed to the report, and.to determine questions presented thereby for his review and consideration.

Such was the practice under the Revised Statutes in respect to reports made by a referee in cases of rejected claims referred under the statutes. Such was the practice in respect to proceedings had before an auditor. (Boughton v. Flint, 74 N. Y., 476.) When the surrogate refused to consider and rule upon “the several objections and exceptions, ” we think he fell into an error. He had control of the proceedings, and before passing upon the report in gross, should have considered the rulings m&de by the referee, and the exception? taken to his report in detail. (Code of Civil Pro., § 2546.) We need not consider what would have been the duty of the surrogate had the order in terms conferred power upon the referee “ to hear and determine all questions arising upon the settlement ” of the account.

Inasmuch as the surrogate has not passed upon the exceptions taken, and refused to do so, and an exception was taken to his refusal, we think the order made by him cannot stand. It should be reversed together with the decree based thereon, and the proceedings be remitted to the surrogate of Niagara county, with instruction to proceed to examine and rule upon the several exceptions presented to him by the parties. Costs of this appeal should be allowed to the appellant, payable out of the fund. ' ,

Order and decree reversed, and proceedings remitted to the surrogate with directions to proceed, costs to appellant payable out of the fund.

Barker and Dwight, JJ., concurred.

Order and decree of the surrogate of Niagara county reversed, with costs to appellant, and proceedings remittedi to surrogate, with instructions to proceed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. THOMAS PHILLIPS and IMPORTERS’ TEA COMPANY, Respondents.

      Order of arrest under Code of Ovoil Procedure, sec. 549, subd. 3 — cannot be granted in an action-to recovei1 prop&rty, forfeited because used for lottery purposes — Penal Code, sec. 332.
    Subdivision 3 of section 549 of the Code of Civil Procedure, authorizing the granting of an order of arrest in an action brought to recover money, funds, credits or property, held or owned by the State, or for or on behalf of a public or governmental interest, * * * which the defendant has without right obtained, received, converted or disposed of, does not authorize such an order to be granted in an action brought by the people to recover property which is alleged'to have been forfeited to the State by reason of the defendant’s having offered the same for sale or distribution, in violation of the provisions-of the Penal Code against lotteries.

      . Appeal from an order of the Erie Special Term, vacating an order of arrest.

      E■hoard W. Hatch, district attorney, for the appellant.

      Fullerton da Hazel, for the respondents.
   Smith, P. J.:

The order of arrest was granted upon proof that the property, for the recovery of which, or the proceeds thereof, the action is -brought, was offered for sale "or distribution by the defendants in violation of the provisions of the Penal Code against lotteries, and on that ground it was claimed- that such property was forfeited to the State. (Penal Code, § 332.) The only title which the plaintiffs claim to the property in suit is through such alleged forfeiture.

The plaintiffs claim that the order of arrest was authorized by subdivision 3 of section 549 of the Code of Civil Procedure. We do not think the claim can b.e maintained.

•That provision is taken from chapter 28 of the Laws of 18L5, which, as is well known, was adopted in consequence of the enor- ' tnous peculations at that time complained of, and was intended to give a remedy in like cases. It - applies to cases where funds or other property belonging to the public, have come into the hands or control of a wrong-doer, and does not apply to an action brought, as this is, for the double purpose of declaring property in the lawful possession of the defendant to be forfeited to the State, and directing it to be transferred to the possession of the plaintiff, by virtue of such forfeiture.

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

Hardin and Parker, JJ., concurred.

So ordered.