author: Earl, Ch. J.

text:
    The People ex rel. The Savings Bank of New London, App’lt, v. Michael Coleman et al. Com’rs, Resp’ts.

      (Court of Appeals,

      Filed October 4, 1892.

    Taxes—Foreign savings bank—Holding stock in New Yobk bank.
    Assessors took the total value of all the assets of a foreign savings bank holding shares of stock of a New York National Bank, deducted all its liabilities and ascertained that it had a surplus. From this they deducted all its property not taxable anywhere, and all taxable elsewhere, and real estate and cash held by it, and found a final surplus in excess of the value of the stock in the New York bank, and assessed it for such stock. Held, no error; that the shares of stock assessed were part of the bank’s surplus.
    Appeal from judgment of the supreme court, general term, first department, affirming order affirming decision of tax commissioners.

      George Richards, for app’lt; George S. Coleman, for resp’ts.

       Affirming 45 St. Rep., 136.

   Earl, Ch. J.

—This is a proceeding by certiorari to review an assessment of the relator, a Connecticut corporation, on shares of stock owned by it in certain banks located in the city of New York. There is no dispute about the ownership by it of the 1 stock. It claims exemption from the assessment mainly because it is a savings bank, and also because if allowed the proper deductions for its liabilities nothing would remain for taxation.

It cannot claim exemption here on account of any laws of the state of Connecticut, as they have no operation here. We will assume that it is entitled to all the exemptions and regulations of the assessment and tax laws of this state, and that it must be treated precisely as if it were a domestic corporation, and yet we reach the conclusion that the assessment complained of was properly made.

The general rule is that all property within this state is liable to taxation, and when a claim of exemption is made it must clearly appear and the party claiming it must be able to point to some provision of law plainly giving the exemption.

It is provided in § 1, title 1, chapter 13, of part 1 of the Revised Statutes as follows: “All lands and all personal estate within this state, whether owned by individuals or by corporations, shall be liable to taxation, subject to the exemptions hereinafter specified.” And among the exemptions afterwards specified is “ the personal estate of every incorporated company not made liable to taxation on its capital in the fourth title of this chapter.” In order to claim this exemption a corporation must have a capital not liable to taxation as such, and so we decided in Catlin v. Trustees of Trinity College, 113 N. Y., 133; 22 St. Rep., 189. There we held that the words “ Incorporated Company ” were intended to designate only such business and stock corporations as by chapter 13 are, under special circumstances, exempted from taxation on their capital, and do not embrace corporations not having a capital. The reasoning by which that conclusion was reached need not be repeated here. Nothing is left to be said by the-opinion there pronounced. Therefore, looking at the Revised Statutes alone, there is nothing upon which the relator can base the exemption claimed.

The Revised Statutes neither exempted the bank nor the depositors therein. But there could not be double taxation. If that had been attempted some way would have been found to defeat it, as that would be against public policy, the purpose of the laws and natural justice. While the legislature may constitutionally impose double taxation, its purpose to do so can never be inferred, but must plainly appear. The bank. is in some sense a trustee of the depositors and takes their money and invests it and pays them the net interest which it earns; and it cannot be supposed that there is any system of laws under which taxation can at the same time be imposed upon a trustee and the beneficiary in respect of the same property. Providence Savings Institute v. Gardiner, 4 R. I., 484; Nashua Savings Bank v. City of Nashua, 46 N. H., 389, 398.

The system for the taxation of savings banks and their depositors under the Eevised Statutes was undoubtedly imperfect.. It may be that either the bank or the depositors could be taxed,, and undoubtedly it would have been most appropriate to select the bank for taxation.

Thus the law remained until 1857, when the act, chap. 456,. “ in relation to the assessment of taxes on incorporated companies” was passed, the fourth section of which is as follows:. . “ The deposits in any bank for savings which are due to depositors,. and the accumulations in any life insurance company organized under the laws of this state, so far as the said accumulations are held for the exclusive benefit of the assured, shall not be liable to' taxation other than the real estate and stocks which may be owned by such bank or company and which are now liable to taxation under the laws of the state.” How, what does that section mean, and what did the legislature intend to accomplish by it? The whole act deals with “ incorporated companies.” So the title indicates. The section plainly intended either to exempt depositors from taxation upon their deposits, or to exempt the-banks from taxation upon such deposits. We think the legislature found the confusion existing in the laws as to the taxation of such deposits, and that the taxation might be imposed upon the banks where they were located, or upon the depositors where they resided, neither the banks nor the depositors having any exemption, and it intended to exempt the banks from taxation upon such deposits to which they were then liable. That it was providing for the exemption of the banks as to the deposits is made probable by the circumstances that in the same section, consisting of but one sentence, it provided for the exemption of life insurance companies from taxation upon their accumulations held for the benefit of persons insured, and that the real estate and certain stocks owned by the corporations are expressly left liable to taxation as before. There is no language indicating that it was meant to exempt the depositors from taxation upon their deposits. If, as claimed by the relator, the banks are exempted from taxation under the Eevised Statutes, and, as claimed by others, the depositors are exempted from taxation on their deposits under this section, then an increasing amount of personal property in this state, now amounting to more than $600,000,000, will entirely escape taxation. There is certainly no public policy which dictates the entire exemption of this enormous amount of property, and the intention to exempt it before the exemption can be" allowed should be found plainly expressed in some statute, and we do not find it. The depositors are taxable upon their deposits as they are upon other personal property, and the banks are exempt to the extent specified in the section.

The exemption was only to the extent of the deposits due to depositors. ■ The surplus held by savings banks not being due to depositors, and therefore not taxable against them, was left where it was before, liable to taxation against the banks. But it was found that the banks escaped taxation upon the surplus by investing it in government bonds which were exempt from taxation, and hence, in 1866, the legislature, in § 7 of the act, chapter 761, provided for the taxation of the banks on their “ privileges and franchises ” to an amount not. exceeding the gross sum of their surplus. In 1867 this section was amended so as to allow a deduction from the surplus of the amount thereof invested in United States securities. Chapter 861. In 1875, by § 56 of chapter 371, the legislature repealed the acts of 1866 and 1867, and thus the law was again restored to the condition in which it was left by the act of 1857; and so the law remained until 1882, when, by chapter 402, the act of 1875 was repealed. It may be that this repeal of the act of 1875 restored the acts of 1866 and 1867. It is, however, not now necessary to determine whether it "did or not, as those acts providing for the taxation of the privileges and franchises of savings banks manifestly could have no application to foreign savings banks.

Ho other statutes have come to our attention which bear upon the exemption of savings banks and their depositors from taxation, and our conclusion is that the only exemption which the banks can claim is under the act of 1857, and that that exempts only the deposits due to their depositors, and not their surplus, and that, hence there is room for the operation of the provisions of law which impose taxation upon the shares of bank stock. These provisions are found in § 5219 of the Be vised Statutes of the United States, and in the laws of this state, § 312, chapter 12 of the act, chapter 409 of the Laws of 1882. In the latter act it is provided that the stockholders in every bank, state or national, shall be assessed and taxed on the value of their shares of stock at the place where the bank is located; that such shares shall be \ assessed like other taxable personal property owned by individuals and with like deductions. Section 312 is mandatory. It provides that the stockholders “shall be assessed and taxed.” It may, at least plausibly if not well, be claimed that a corporation owning bank shares may be taxed.upon them, although generally exempt from taxation as to its other personal property. Bank of Redemption v. Boston, 125 U. S., 60.

But we need not go so far in this case, because if these shares are part of the surplus of this bank, and the proper deductions have been allowed, it has no ground of complaint. The assessors determined upon sufficient and indeed undisputed evidence that they were part of the surplus, and we cannot perceive how it can be well disputed that every deduction which the bank could properly claim was made. The assessors took the total value of all its assets, and from that deducted all its liabilities, and thus ascertained that it had a surplus of over $900,000. From this surplus they-'deducted all its property not taxable anywhere, all its property taxable elsewhere, all real estate and cash held by it, and thus reached a final surplus largely in excess of the assessment made against the bank. It is impossible to perceive what, other deductions the assessors should have made, and the learned counsel for the bank has called to our attention no other.

But he claims that the bank was entitled to a deduction of its liabilities from the assessment as made. The bank was not en.titled to the deduction of liabilities twice. When the assessors in making an assessment of personal property ascertain the amount of the owner’s liabilities and make all the deductions on account thereof to which he is entitled and assess him for the balance thus obtained, he' cannot then again claim against the assessment thus made another deduction of his liabilities, and thus entirely wipe out the assessment. Assessors may assess an owner for the whole amount of his personal property, and then allow him deductions on account of his liabilities when he appears and claims it, or they may allow him the deductions when they make the .assessment, and then he has no grievance to complain of.

Our conclusion, therefore, after a careful consideration of the " learned and ingenious brief of the counsel for the bank is that the assessment against it was properly made, and that it has no just ground to-complain of the amount thereof; and the order appealed from should therefore be affirmed, with costs.

Finch, J., concurs; and Andrews, Peckham, Gray, O’Brien .and Maynard, JJ., concur in result on the ground that the shares of stock assessed were part of the bank’s surplus, and they •express no opinion as to the taxation of depositors on account of .their deposits in savings banks.


source: Caselaw Access Project

author: Cullen, J.

license: Public Domain

text:
    Lillie S. Taylor, Resp’t, v. The Granite State Provident Association, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Service—¡Foreign corporation.
    One who has acted for a foreign corporation in making loans for it, claiming to be its manager and cashier, which acts have been adopted by the corporation, is sufficiently connected with such corporation to authorize service upon him of process against the corporation. It is not necessary that he should have had entire control or charge of the business of such corporation to render such service effectual.
    Appeal from order denying motion to vacate a judgment against the defendant, based upon service of a summons upon one John M. Townsend as manager of the defendant.
    The moving affidavits averred that Townsend had no connection with defendant except as attorney in prosecuting a law suit.
    The answering affidavits stated as follows:
    Lillie S. Taylor, being duly sworn, says: I am the plaintiff in the above-entitled action. The purpose of the action is to set aside a mortgage executed by this plaintiff and her husband to •the defendant, the Granite State Provident Association. Deponent says that she knows John M. Townsend. That on or about the second day of December, 1889, he called at her house, in the city of Poughkeepsie, and informed her that he was the representative .and acting for the Granite State Provident Association, and that such association would loan to her and her husband the sum of $1,200, the same to be paid by instalments of $16 a month, until the whole amount thereof, principal and interest, was paid and satisfied ; and that the company would take a mortgage upon the lot of land named in the complaint in this action as security for such loan. That such money was to be used for the purpose of erecting a house on said lot of land. That she then and there-agreed to the same, when the said Townsend produced a paper writing that he declared to be a mortgage for $1,200, to secure the loan by the said Granite State Provident Association, upon the terms and conditions above stated. That relying upon the statements of said Townsend, and without reading or knowing the contents of said papeh, except by such statements, she then and there signed said paper, and acknowledged the same before said Townsend. That thereupon said Townsend took and carried the said paper away. That said paper bears date December 2, 1889. Deponent further says that afterwards, and on or about December 6, 1889, the said John M. Townsend again called upon her at her bouse in the city of Poughkeepsie, and had there with him another paper which he desired her to sign and acknowledge before him; he at the same time stating to deponent that the second paper was only to carry out the first and to secure the Granite State Provident Association for the loan of the said $1,200. That relying upon such statement, and without reading or knowing the contents of said second paper, she did then and there sign the same, and acknowledged it before said Townsend, fully believing that he was acting honestly for and in behalf of said association, and not otherwise. That thereupon said Townsend took and carried said second paper away. Deponent further says that at the time of the execution of said papers no money was paid to her or her husband by the said association. That immediately or very soon thereafter she and her husband contracted with various parties to perform labor and furnish material to be bestowed and used in building a house on said lot named in the mortgage given to Townsend as aforesaid.
    That such parties did perform labor and furnish material with the agreement and understanding that they should be paid therefor out of the $1,200 that the Granite State Provident Association had agreed to loan on the security aforesaid. That thereupon the said John M. Townsend, claiming to be the agent and.cashier of said association and acting for it, did pay by checks, which checks were from time to time indorsed by deponent and her husband to various parties who had performed labor and furnished materials in the building of said house. In this way nearly all of the $1,200 was paid. That such payments continued for a long time after making and signing the papera, and until the completion of the house, the said Townsend at all times claiming to be the representative and acting for the said association. Deponent afterwards, with her husband, paid to the said association, in pursuance with the agreement made with Townsend to pay $16 a month, in the aggregate, the sum of $224. That the said association, by itself or agents, accepted the payments so made of $16 a month. Deponent further says that at the end of that time she first learned that, in fact, the Granite State Provident Association had not loaned her or her husband a single dollar. That the paper she had executed on the 2d day of Decernber, 1889, and which paper she had been told by Townsend was a mortgage to secure the payment of $1,200 to the said association in monthly instalments of $16 a month, was in fact a mortgage of $1,200 to William H. Frank and Valentine Frank, Jr., conditional to pay that sum at the end of five years, with six per cent., payable semi-annually, and that the Franks had, in fact, furnished the entire amount of the loan. That the second paper, bearing date of the 6th day of December, 1889, and which this action was brought to annul and set aside, was given to the association, and had no reference to the loan of the $1,200 p was wholly without consideration; was obtained by false representations and void. That thereupon she refused to make any further payments to said association, the Franks having a good and valid mortgage for the whole amount of the loan. Deponent further says that at no time has she had any relation with any person in the transaction of the business other than John M. Townsend. That he made the contract representing himself as the agent or representative of the company. That the papers were all executed before him. That he paid all the money, claiming to act as such representative, and at no time has said association notified her that he was not acting - as a lawful agent. Deponent says that the association did accept the mortgage procured as aforesaid by said Townsend, did take and accept payments of $16 a month by virtue of the same, and did on or about the 19th day of November, 1891, commence an action against this deponent, through John M. Townsend, to foreclose the very mortgage that he had procured, and had acted as the agent in all things relating thereto of the association from the beginning. Deponent further says that she has read the affidavits of John M. Townsend, Edward Hassett, and Joseph 0. Moore, used on the motion herein, and that each and all of them are wholly false in the statement that John M. Townsend never acted as the managing agent or cashier of the Granite State Provident Association, except as attorney of record in the action commenced on or about November 19, 1891. Deponent further says that the affidavit of said John M. Townsend, wherein he says that he never •acted in any capacity whatever than as attorney of record in an •action now pending in the Dutchess county court for foreclosure of a mortgage given by Andrus L. Taylor and Lillie S. Taylor, to said Granite State Provident Association, is and must be knowingly, wilfully, and maliciously false. Deponent further .says that John M. Townsend having acted as the cashier, director, or managing agent of the association in the beginning, and the association having adopted his acts and undertaken to avail itself of any benefits thereof, and having continued such recognition by directing him to carry out the purpose in the management of the business undertaken as attorney or otherwise, in view of the purpose and intention of the statute, makes him the managing agent of the association within this state, upon whom a summons may be properly and legally served. Deponent further says that she has been thus informed and believes the same to be true, and that such construction would promote equity and justice, and tend to prevent a foreign corporation, through rapacious and unscrupulous attorneys, from carrying out to consummation a planned .and premeditated fraud.
    Andrus L. Taylor, being duly sworn, says that he is one of the above named defendants, and the husband of plaintiff herein. That the only money ever had upon any mortgage named in the pleadings in this action was the sum of $1,200. That, at the time of obtaining said money, he supposed and was led to believe, by statements made by John Townsend, that said $1,200 was the money of the Granite State Provident Association, and .so believed for a long time thereafter. That said money was obtained for the purpose of building a house on said lot mentioned in this action. That after the making of the mortgages he contracted with parties for erecting a house on said lot. That various persons did labor and furnished material in the erection of said house. That the said John Townsend, representing himself to be and acting as the agent of the Granite State Provident Association, acted as cashier' for them in making all the payments to the various persons performing labor or furnishing material in the construction of said house. That after the same was completed, and after the workmen and others had been paid by said Townsend, there remained a small amount of the $1,200 unexpended, which said balance was then paid to deponent by said Townsend. Deponent further says that he has read the affidavit of said Townsend made on this motion, wherein he says that he never had any ■connection whatever with the Granite State Provident Association, of Manchester, IST. H., except as attorney of record in an action now pending in the Dutchess county court for foreclosure of a mortgage given by Andrus L. Taylor and Lillie S. Taylor to said Granite State Provident Association, and the further statement, made by said Townsend, that at the time of the service of the summons upon him in this action he never was and never acted as an agent, managing agent, or cashier of the Granite State Provident Association, nor in any capacity than as an attorney of record, as above stated, and that such statements of said John M. Townsend are wholly false. Deponent says that the mortgages were produced by and executed before said Townsend, and the entire business, from the beginning, done and transacted by and through said Townsend. Deponent further says that, in the action mentioned by the said Townsend, in which he appears as the attorney for the Granite State Provident Association, said Townsend swore to the complaint. That therein he states “ that the grounds of deponent’s belief as to all matters not stated upon his knowledge are conversations with and admissions made by the defendant Andrus L. Taylor, in reference to the cause of action set forth in the complaint herein.” Deponent says that he did have, at different times, conversations with the said Townsend, after the making of the mortgages, in respect to the same, and that at each and all of them he represented himself to be the agent or cashier of said association, and was acting as such. That such conversations and acts of Townsend were before he appeared as the attorney of record in the action named in his affidavit. Deponent further says that the statement made in the affidavit of said Townsend, wherein he says, “I have never had any of the relations to said corporation mentioned in § 482 of the Code of Civil Procedure,” is wholly false. That he did act as the agent of said company, from the beginning, and as cashier thereof, in all dealings with this deponent (and the plaintiff in this action) had with'such association, and at no time has said or done anything disclosing that such relations had ceased to exist.
    Edward Wallin, being duly sworn, says that he is about 49 years of age; that he is a mason, and doing business as such, and has done so for about 22 years. I know Andrus L. Taylor and Lillie S. Taylor, his wife. About two years ago they contracted with me. to do the mason work on a house about to be constructed by them in the city of Poughkeepsie, on a lot of land in Mansion street. I contracted to do the work for $280. There was a written contract between us. By virtue of it, I was to be paid in three payments, as the work progressed. The contract was executed in the office of John M. Townsend, in the city of Poughkeepsie. The payments were to be made by said John M. Townsend. Townsend informed me that the money was to come from the Granite State Provident Association, and that he was acting for it. He said he wanted all bills in order to satisfy the association that all was right before paying the money. John M. Townsend paid me all the money by check. Lillie S. Taylor and her husband indorsed the checks, and I did the same. Townsend said the indorsements were for the purpose of showing the association how the money was expended. Townsend said he was acting for the company, and I had dealings with no person representing the company, except Townsend. There was but one house upon which I did work, and it is the same mentioned in these proceedings. At no time did I hear or know that the money being paid by Townsend came from William H. or Valentine Frank, Jr., but, from all that was said and done by Townsend, was led to believe, and did believe, that the money was being advanced by the Granite State Provident Association to Lillie S. Taylor and Andrus L. Taylor, and, from all that I heard and knew at the time, I fully believe that both Lillie S. Taylor and Andrus L. Taylor believed that the money was so advanced by said association.
    Nelson D. Baker, being duly sworn, says that he knows of the Granite State Provident Association, and has had business with the association continually since on or about the 15th day of August, 1889. I know that during much of the time John M. Townsend has been acting as the agent of the company in matters relating to the general business of said company in this county. That the deponent had a small loan from the said company. That in matters growing out of it, relating to the payment of money, he was instructed by the officers of the company to apply to said Townsend for directions and instructions regarding the conduct of the business. After receiving instructions from .the company to do so, I did see Townsend, and he did act for and as the agent of said association in matters relating to the loan of money, payments, and its business generally in this county. I know that the business that he did in my case for said company was of the same nature of that of Lillie S. Taylor. There was no suit pending, and the business he was doing for the company was not as attorney in .any pending action.
    Seth' H. Pierce, being duly sworn, says that he knows John M. Townsend. That his business is the manufacture of sash, blinds and doors in the city of Poughkeepsie. That some two years ago his firm, Brooks & Pierce, furnished material to Andrus L. Taylor and his wife, this plaintiff, for building a house in the city of Poughkeepsie, in Mansion street (the same house mentioned in this action), to the amount of about one hundred and ninety dollars. That they received the pay therefor by checks of John M. Townsend, it being stated and understood that he was acting for the Granite State Provident Association, and that the money paid by him was loaned to this plaintiff and her husband by said association. The last payment was made by John M. Townsend personally, he bringing the check to our place of business, at number 40 South Water street, Poughkeepsie.

      Edward Hassett, for app’lt; J. V. W. Doty, for resp’t.
   Cullen, J.

—It was not necessary that Mr. Townsend, the person on whom service was made, should have had entire control or charge of the defendant’s business. “If he sustained sufficient character and rank to render it reasonably certain that the corporation would be apprised of the service, the requirement of the statute is answered.” Barrett v. Telephone Co., 56 Hun, 430; 31 St. Rep., 465; Palmer v. Penn. Co., 35 Hun, 370.

The affidavits on which the motion to set aside the judgment was based averred that Townsend had no connection with the defendant . other than as an attorney prosecuting for it a lawsuit. But the answering affidavits showed beyond question that his agency for the defendant was of a far more extensive character, a character sufficiently extensive, in our judgment, to uphold the service.

The affidavits presented by defendant on the motion to re-settle the order denying defendant s application are not properly before us on the appeal from the original order. Ho leave was asked or obtained to present additional affidavits. The defendant risked the fate of its application on the original papers and should abide the result.

The order denying defendant’s motion to set aside the judgment and the order denying its application to re-settle order should be affirmed, with ten dollars costs of each appeal and disbursements.

Dykman, J., concurs; Barnard, P. J., not sitting.


author: Dykman, J.

text:
    Alice Crocker et al., Resp’ts, v. Ervin G. Gollner et al., Impl’d, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Judicial sale—Motion to compel completion oe purchase.
    T. purchased certain property at foreclosure sale. Upon examination of the title he found a Us pendens on the premises, filed by L. in an action, to enjoin the mortgagee from erecting a flat upon it in violation of an. agreement between them, and that the court of appeals had rendered a decision in L.’s favor, and therefore T. declined to complete his purchase. Plaintiffs and defendant moved to compel him so to do. Pending such, motion L. bought plaintiffs’ mortgage and rights and caused them to withdraw their motion, whereupon the court refused to compel T. to complete^ the purchase. Held, no error; that L. was entitled to acquire plaintiffs’ mortgage to prevent the abrogation of his easement, and a sale having-been had, which, if carried out, would destroy it, the purchaser, being willing to forego his contract, would not be compelled to complete it at the instance of the defendant, who, by the sale, would avoid his contract, with L.
    £. Same—Pbotbction of basement—Loches.
    In such case L. could not be charged with loches in not having acquired: plaintiffs’ mortgage earlier, because up to the time he did acquire it the-judgment of the lower court that he had no easement stood unreversed,, so that had he sought to compel such assignment he would have failed.
    Appeal by the defendants Grollner and wife from order denying motion to compel purchaser at foreclosure sale to complete his purchase.
    Prior to the commencement of this action to foreclose a purchase money mortgage, an action had been brought against defendant Grollner by one Lester A. Lewis to restrain him from building an apartment house in violation of an agreement made with Lewis, and others, in which action Lewis was unsuccessful and appealed. After the present action was commenced the court ' of appeals reversed the judgment in the prior action, and the purchaser at the foreclosure, finding that a lis pendens had been filed and that the title had been refused by a title company, refused to complete his purchase. Pending a motion to compel such completion Lewis and the others who were interested in the restrictive agreement bought the mortgage in suit and served notice of withdrawal of the motion so far as the plaintiffs wére concerned. .
    The opinion at special term was as follows:
    Cullen, J.—That the purchaser would acquire under the foreclosure and sale a perfect title I have no doubt. The mortgage foreclosed is for the purchase money of the lands, and, of course, is paramount to any incumbrance that the acts or contracts of the grantor Grollner can have imposed on the lands. But this is not decisive of the application. -Defendant Lewis, in whose favor it is claimed Grollner created an easement or restriction upon the-mortgaged premises, has now acquired the mortgage in suit The-affidavits aver that all the liens, except the purchase money mortgage, accrued after the filing of the lis pendens in the action brought by Lewis to enforce the agreement made by Grollner. Lewis’ equities are therefore superior to those of all the other parties to the action except the plaintiffs, and the equities of the plaintiffs extend only to the right to have their mortgage paid. Lewis, therefore, was entitled to acquire plaintiffs’ mortgage to prevent the abrogation of his easement, and to have the sale made subject to his easement. Had this been done before the sale his rights would have been clear. A sale has been had. If carried out, Lewis’ easement is destroyed. But the purchaser is willing ta forego his contract. The plaintiffs, having assigned their mortgage, withdrew their application to compel the purchaser to complete the purchase. The only party who seeks to enforce the sale is the defendant Grollner, who, by the sale, avoids his contract with Lewis. He certainly has no equity in his claim, nor can the defendant Lewis be properly charged with loches in not having acquired plaintiffs’ mortgage earlier. While the trial courts found the fact that Grollner had made the agreement restrictive of the use of the mortgaged lands, it was held that such an agreement could not be enforced. Had Lewis sought in this action to compel an assignment of the' plaintiffs’ mortgage, he would have failed because of the judgment in the other action that he had no interest or easement in the lands. It was not till the judgments of the court of appeals reversing the judgment below that Lewis could assert his rights. Then he promptly acquired the paramount mortgage. Under these circumstances, it seems to me unjust to carry out the sale.
    Motion denied, with ten dollars costs.

      Alfred R. Page, for app’lts; Wm. C. Beecher, for pl’ffs-resp’ts; Rufus T. Griggs, for resp’t Lewis; Brewster Kissam, for resp’t Tinsley, purchaser.
   Dykman, J.

—This is an appeal from an order of the special term denying a motion to compel a purchaser at a foreclosure sale of real property to complete his purchase.

The appeal is destitute of merit, and the order should be affirmed on the opinion of the court at special term, with ten dollars costs and disbursements.

Barnard, P. J., concurs; Cullen, J., not sitting.


author: Barnard, P. J.

text:
    William Smerling, App’lt, v. Wilson P. Foss, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Venue—Change oe—Action on contract.
    In an action for wages, claimed on a contract made in R. county for employment in that county, the defendant claiming that the contract was to be entered into only on condition that the plaintiff would inform himself as to the operation of the business, which he f liled to do, and also alleging incompetency and abandonment of the work by plaintiff, Held, that the place of trial was properly changed to R. county.
    Appeal by plaintiff from an order of the Kings county special term, changing the place of trial to Rockland county.

      J. Edward Swanstrom, for app’lt; Irving Browne, for resp’t.
   Barnard, P. J.

—The contract for the employment of the defendant by the plaintiff is stated to have been made at Haverstraw, Rockland county. The place where the work of the employment was to be done was at Haverstraw. These are two controlling reasons in cases involving the place of trial of issue upon the contract. The agreement is not admitted, but is claimed by the defendant to have been entered into by him upon a condition that plaintiff would inform himself as to the operation and details of the business, which he failed to do. The answer also alleges incompetency to do the work of the employment; that he was disobedient and finally abandoned the work. The place of trial wa& properly changed to Eockland county.

Order affirmed, with costs and disbursements.

Dykman and Cullen, JJ., concur.


text:
    Henry W. Sage et al., App’lts, v. Andrew Culver et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Depositions—Examination before trial.
    Plaintiffs, stockholders in a railroad company, brought an action against, tbe president and treasurer for an accounting and discovery of the application and disposition of the funds of the company by defendants, alleging that they owned a large majority of the stock and had the exclusive control thereof, but alleging no improper conduct on their part. Held, that plaintiffs were not entitled to an order for the examination of defendants before trial, for they, acting under the directions of the board of directors, are not trustees who deal with themselves.
    Appeal by plaintiffs from an order of Kings county special term vacating an order for the examination of defendants before-trial.

      William C. DeWitt, for app’lts; Wingate & Cullen (George W. Wingate, of counsel), for resp’ts.
   Barnard, P. J.

—The plaintiffs are stockholders in the Prospect Park & Coney Island Bailroad Company. The defendant Culver is the president thereof, and the defendant Washington i& the treasurer. The plaintiffs have commenced an action to obtain an accounting of the affairs of the defendants’ company, and an accounting and discovery of the application and disposition of the funds of the company by the defendants Culver and Washington. The plaintiffs obtained an order for the examination of the defendants to enable the plaintiffs to frame their complaint This order was subsequently vacated upon notice, and this appeal is from the order vacating the same. No case was made for the order for the examination of the defendants. No facts are alleged, which show a cause to exist. The defendants Culver and Washington are stated to have owned a large majority of the stock,, and by virtue of their ownership have had exclusive control of the affairs of the company. No statement is made that either Culver, Washington or the company have done any wrong to the-plaintiffs. They are officers of a company, and are not as such, so long as they act under the directions of the board of directors, trustees who deal with themselves. They are the servants of the company, and may take what is due them by order of the trustees, especially when the allegation is not directly made that the defendant trustees have received money without right, or that the company had refused to assert its claim for redress for the common injury.

The order should therefore be affirmed, with costs and disbursements.

Dykman, J., concurs; Cullen, J., not sitting.


text:
    The People ex rel. Eckerson et al., App’lts, v. The Board of Trustees of the Village of Haverstraw, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Highways—Laying out bo ad—Damages—Juey to assess.
    The act under which the village of Haverstraw was created authorized the trustees to “ cause a jury of six freeholders to be. summoned to determine and award” damages for laying out a road. Held, that the trustees might direct the sheriff to summon a jury of six freeholders, or the trus • tees might name the freeholders and direct an officer to summon them, or might direct an officer to summon six freeholders without naming any particular persons.

      2. Same—Evidence.
    In such case, evidence showing what part of the road had been used as a highway before the order was made laying out the road is admissible, the landowner being entitled to pay for such part of his land as was taken by the order.
    3. Same—Order—Description.
    An order laying out a road which gives the center line accurately, and specifies the width as twenty-five feet on each side of such line, is sufficient.
    Certiorari to review the action of the board of trustees of Haverstraw in laying out a road within the village.

      C. Frost, for app’lts; Alonzo Wheeler (Wm. McCauley, Jr., of counsel), for resp’t.
   Barnard, P. J.

—The order laying out the road in question was legal. The center line of the road was accurately given, and the width of twenty-five feet on each side of said center line. This was sufficient. People v. Com’rs, 13 Wend., 310.

The jury to assess the damages were properly obtained. The act under which the village of Haverstraw was created authorizes the trustees to “ cause a jury of six freeholders to be summoned to determine and award such damages.” This provision is so general that it may be executed in several ways. The trustees might ■direct the sheriff of the county to summon a jury of six freeholders, or the trustees might name the freeholders and direct an officer to summon them, or the order might direct an officer to summon six freeholders without naming any particular persons. The last order was made by the trustees. The general law. in respect to opening roads by commissioners of highways authorizes the commissioners to apply to any two justices of the peace of the town, who issue their warrant to a constable of some other town to summon twelve freeholders, from which panel a jury of six is to be drawn to assess the damages. Chap. 291, Laws of 1870, title 7, § 4.

This act makes the trustees commissioners of highways for the village, and requires the trustees to cause the jury to be summoned, but reduces the number to six. There are no village justices of the peace. The village act provides for an appeal to the county judge and a rehearing before three freeholders of the county, but not residents of the village. The trustees are substituted for the justice to issue the precept, and the constable is to summon the jury of six freeholders in analogy with the proceedings in ordinary cases of laying out roads in towns.

The objection to the proof taken before the jury as to what-part of this road had been used as a highway before the order was-made, was unfounded. The land owner was to be paid for such part of his land as was taken by the order, and the only way possible by which this was to be ascertained, was by proof. Such proof is justified by the case of Baldwin v. City of Buffalo, 35 N. Y., 375_

_ _ It was unimportant whether or not the president of the trustees-directed a fence to be built along a part of the premises in dispute. The other objections to evidence are based upon the assumption that when a road is laid out and a part of it was a highway before, evidence addressed to the ascertainment of the value of' the land taken is inadmissible. This point has already beem considered.

The order and proceedings should be affirmed, with costs.

Cullen, J., concurs.


author: Landon, J.

text:
    Louis Fleischmann, Resp’t, v. Lippman Toplitz, App’lt.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. Landlord and tenant—Expense op removing, debris after fire— Termination of lease by fire.
    A stable occupied by plaintiff was destroyed by fire, which also consumed' a number of his horses. By the lease he was required to surrender the premises in good order and repair, etc., and also, at his own expense, to comply with the rules, orders and regulations of the department of buildings and board of health. Notice having been given to defendant to remove the debris, he sent the notice to plaintiff and called his attention to the clause referred to, and said,in a letter, “If it will be decided that I have to pay for it, I will do so cheerfully.” Plaintiff procured the work to be done, completing it August 1, to which time he had paid the rent, his only occupation of the premises after the fire being for the purpose of removing the dead horses and making salvage. On August 9th he notified defendant that the watchman had been withdrawn. In an action for the money expended by plaintiff, Held, that the few days that plaintiff spent, in removing the dead bodies of the horses and his own damaged property did not mislead the defendant; that the latter accepted the surrender, and the court could not, under the circumstances, hold as a matter of law that plaintiff had elected to continue his tenancy, or had in fact continued it.
    2. Same—Laws 1860, chap. 345.
    The lease being terminated by the statute, the plaintiff was not, apart, from the terms of his lease, obliged to remove the dead bodies of the horses, and the damage to the real estate and the burden cast upon it by the fire-must be borne by the landlord and not by the tenant.
    3. Same—Evidence.
    After defendant had read from plaintiff’s letter of August 9th, the plaintiff was allowed to read from the same to the effect that the bill inclosed was for extra help hired pursuant to defendant’s directions. Held, admissible, as it was of a nature to elicit a reply from defendant, and none-was made.
    (Vann, J„ dissents.)
    Appeal by defendant from a judgment of the general term, first department, upon the verdict for the plaintiff directed by the-trial court, and upon the exceptions directed to be heard in the-first instance at the general term.
    The action was to recover for money expended by the plaintiff in removing the debris and carcasses of dead horses from premises-on West Thirtieth street, Mew York city, immediately after a fire which occurred July 25, 1877, and destroyed the stables upon the premises and caused the death of thirty-seven horses which were therein at the time. The defendant was the owner of the premises ; the plaintiff was his tenant under a written lease for the term of five years from Mov. J, 1872. The lease contained the clause-that the plaintiff “ at his own proper cost, charge and expense, will comply with all the rules, orders and requirements of the department of buildings of the city of Mew York, and the board of health of said city.” Immediately after the fire a notice was-served upon the defendant by the board of health requiring him to remove the debris. The defendant sent the notice to the plaintiff in á letter which, after referring to the order, proceeded: “ In my lease with you it is specially provided that you have to comply with the reauirements of the board of health. The work must be done at once, and I would therefore request you not to delay a moment. If it will be decided that I have to pay for it, I will do so cheerfully.”
    The plaintiff immediately procured the work to be done. It consisted of throwing aside and piling up the bricks and other debris, so as to uncover the dead horses, and then taking them away. The expense of the work upon the debris, necessary to be done to uncover the dead horses, and make ready for their removal, was $465.50, and the expense of removing them was $83.40. The work was completed July 31. Plaintiff had paid the rent up to August 1. He paid none afterwards, and his only occupation of the premises after the fire was for the purpose of removing the dead horses and making some salvage of damaged property belonging to him. The plaintiff, August 9th, sent to the defendant the bills for the expense of the work upon the debris, and for the removal of the" dead horses. This letter stated: “ Since all the property belonging to us that could be reached has been removed, our watchman has been withdrawn.”
    At the close of plaintiff’s testimony the defendant moved for a non-suit upon the ground that the plaintiff by the terms of the lease was bound to obey all the orders of the board of health and, therefore, to remove the dead horses and the debris incident to such removal, and apart from the lease was bound to do so. This motion was denied, and after some evidence on the part of the-defendant to the effect that the plaintiff, prior to the letter of August 9th, gave the defendant no notice of "his intention to quit the-premises, and that the only promise of the defendant was to pay if he should be liable, the defendant’s counsel moved for a non-suit upon the whole testimony, which was denied. The defendant’s counsel then asked to go to the jury, and requested the court to charge, that if the plaintiff did not notify the defendant prior to the 9th of August that he intended to surrender the premises, the lease did not terminate till then. The court denied defendant’s request to go to the jury. Defendant’s counsel renewed his request to go to the jury and asked the court to charge that if the plaintiff remained in possession of the premises after August 1st, he did not quit and surrender them to defendant within the meaning of chapter 345, Laws 1860, and that that being so, the defendant was entitled to a verdict. The court again refused; and the defendant then moved that the court direct a verdict in his favor. This motion was denied. The court, upon motion of plaintiff’s counsel, then directed a verdict in plaintiff’s favor for the whole amount claimed. The defendant’s counsel duly excepted to the several refusals and rulings.
    The general term held that the plaintiff ought to pay for the removal of the carcasses of his dead horses, and the defendant for the labor upon the other debris, and directed judgment accordingly.

      E. T. Brackett, for app’lt; A. J. Dittenhoefer, for resp’t.

       Affirming 32 St. Rep., 546.

   Landon, J.

—The defendant’s motions for a non-suit were properly denied. They were based upon the assumption, which we think was untenable as a matter of law, that the relation of landlord and tenant continued between the parties, after the destruction of the buildings by fire, until the plaintiff gave notice of his intention to surrender the leasehold premises, or at least until he did surrender them.

His requests to go to the jury were coupled with the same assumptions of law, and he thereupon asked the instruction that if the plaintiff did not give the notice of his intention to surrender the premises until the 9th of August, or remained in possession of the premises until that date, the plaintiff was not entitled to a verdict.

The facts in these respects were as assumed by the defendant, but we think the law was not.

The statute, chap. 345, Laws of 1860, dissolved the relation of landlord and tenant between the parties unless the plaintiff elected that it should continue. Smith v. Kerr, 108 N. Y., 31; 13 St. Rep., 115; Johnson v. Oppenheim, 55 N. Y., 280. The tenant’s election to continue the relation no doubt could be inferred from circumstances. The act, however, does not 'require the tenant to serve the landlord with notice that he intends to quit and surrender; it provides that upon the destruction of the building without fault of the tenant, the latter “ may thereupon quit and surrender possession of the leasehold premises.” If he does -this as soon as it is reasonable for him to do it under the circumstances, he does it soon enough. Here, the destruction of ■the buildings was complete. The plaintiff’s term as tenant would expire in less than four months. His rent was paid until August 1st. The defendant requested the plaintiff to execute the order of the board of health; in effect without prejudice to the question of liability. It was proper that the plaintiff should rescue such of his damaged property from the wreck as was worth the labor. The defendant did not ask from him any expression of his purpose respecting the continuance of his tenancy. It is inferable from the circumstances that the defendant regarded it impossible for the plaintiff to continue the tenancy. The few days that he spent in removing the dead bodies of the horses and his own damaged property did not mislead the defendant nor prejudice his interests. The defendant accepted the surrender. The court could not under these circumstances hold as a matter of law that the plaintiff had elected to continue his tenancy, or had in fact continued it. His occupation subsequent to the fire was not necessarily under the lease, but so far as it was necessary for the removal of the dead bodies of the horses it was. upon the request of the plaintiff; and for the remaining time, it might have been found to have been upon the implied request of the plaintiff for time sufficient to remove his own property, and if so, and if any liability was thereby incurred, it was for use and occupation. Austin v. Field, 7 Abb., N. S., 29. But the defendant did not request to submit to the jury the question whether plaintiff elected to continue under the lease, or failed to surrender the premises pursuant to the statute, but asked an instruction that the plaintiff could not recover because he did not notify the defendant until August 9th that he intended to surrender, and also because he remained in possession after July 31st and also up to August 9th, neither of which requests was tenable.

The defendant also moved for a nonsuit because, as he assumed, the plaintiff was bound to remove the dead bodies of the horses, not only under the terms of the lease which bound him to obey the orders of the board of health, but also apart from the terms of the lease as the owner of such dead bodies.

If the lease was terminated by the statute upon the destruction of the buildings, it is clear that the plaintiff, as tenant and as between himself and his landlord, was not bound by its terms to perform any act in respect to the premises which the fire made necessary to be performed. Such performance could not be made until after the relation of landlord and tenant had ceased. Mor would the tenant in such case, apart from the terms of the lease, be obliged to remove the dead bodies of the horses. The act of 1860, in case of a dissolution of the relation of landlord and tenant under-it, enables the tenant to quit and surrender the' premises, and discharges him from liability for rent for the unexpired term. Manifestly the damage to the real estate and the burden cast upon it by the fire must in such case be borne by the landlord and not by the' tenant. The tenant is free to depart from the untenantable premises; the landlord resumes possession of his premises in the condition the fire has left them.

The defendant after the denial of his motions and requests above considered moved the court to direct a verdict for the defendant. For the reasons already considered this motion was properly de.niecl. Mo request which it was proper for the court to grant, being made to submit any question of fact to the jury, the court, did not err in assuming that the defendant did not desire to go to' the jury upon any question of fact touching the plaintiff’s intention to continue the tenancy, or election to do so, and hence did. not err in deciding upon the evidence that the plaintiff had no such intention, nor made such election, and thereupon directing , & verdict for the plaintiff.

A question of the admissibility of evidence is presented. After •defendant read from plaintiff’s letter of August 9th the extract •quoted above with respect to the removal of his property and withdrawal of his watchman, the- plaintiff was permitted to read from the same letter an extract to the effect that the bill enclosed in the letter was for extra help hired pursuant to defendant’s directions and instructions. This’ was the bill for $465.50. While this part of plaintiff’s letter did not relate to the same subject as the part read by defendant, and did not modify or explain it, Rouse v. Whited, 25 N. Y., 170; People v. Beach, 87 id., 508; Grattan v. Metropolitan Life Ins. Co., 92 id., 274, yet as it was of a nature to elicit a reply from the defendant and none was made, it was admissible upon the latter ground.

As no error of the trial court requires a reversal, and as the general term modified the judgment in defendant's favor, and the plaintiff does not appeal, the judgment of the general term must be affirmed, with costs.

All concur, except Vann, J., dissenting.


author: Follett, Ch. J.

text:
    Charles T. Mitchell et al., Resp’ts, v. Mary A. W. Thorne, App’lt.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. Pleading—Demurrer to complaint.
    In an action to restrain defendant from desecrating a burial lot reserved in a deed from plaintiffs’ ancestor, and for damages, it did not appear on the face of the complaint that the father of the plaintiffs and his brothers and sisters, or any of them, left heirs other than the plaintiffs. Meld, that a demurrer to the complaint, on the ground of a defect of parties, would not lie.
    2. Same—Defect of parties—Desecration of burial lot.
    The allegation that the plaintiffs have succeeded to the interest of their father was a sufficient averment of title to authorize them to maintain an action to restrain the destruction of a burial ground and the closing of the way thereto, or to recover damages for the injuries committed, without alleging that plaintiffs have succeeded to the interests of all the tenants in common of whom their father was one.
    Appeal from a judgment of the general term of the supreme court of the second department, which reversed a judgment sustaining the defendant’s demurrer to the complaint, entered on a decision of the special term.

      John M. Perry, for app’lt; A. N. Weller, for resp’ts.

       Affirming 32 St. Rep., 958.

   Follett, Ch. J.

—It is alleged in the complaint that the father ■of the plaintiffs, together with his brothers and sisters, owned as tenants in common a farm of two hundred acres, a small portion -of which had been laid out and enclosed as a family burial ground, wherein the ancestors and collateral relatives of the plaintiffs have been buried from time to time, and their graves marked by the usual mounds and appropriate memorial stones.

It is further alleged that these tenants conveyed the farm to E. "Y. W. Thorne, by a deed which contains the following language: Excepting and reserving the right of interment in the ground laid off for that purpose in the land hereby conveyed, and also a right of way to the same, to all the grantors of this deed, and to their heir or heirs forever.”

It is further alleged : “ That plaintiff’s said father and all the grantors in said deed to the said E. Y. W. Thorne are now deceased, and the easement or right of family interment or. burial reserved in said farm or land has descended to plaintiffs as heirs-at-law of the grantors in said deed.” .

It is also averred that the defendant is the owner and in possession of the farm, subject to said reservation and exception under mesne conveyances, deriving her title ultimately from said E Y. W. Thorne, and that she has removed a part of the fence enclosing the burial ground, destroyed some of the grave stones marking the graves of the ancestors and relatives of the plaintiffs, graded away the mounds of the graves and obliterated all traces of them, and refuses a right of way to the plaintiffs to and from said ground, and threatens by grading and leveling it to destroy said burial place.

The plaintiffs demand a judgment restraining the defendant from removing the gravestones, grading the grounds, destroying and obliterating the graves, and also for damages.

To this complaint the defendant demurred on the grounds : (1) That the complaint does not state facts sufficient to constitute a -cause of action. (2) That there is a defect of parties, because it is not alleged that all of the heirs of all of the grantors, in whose favor the reservation hereinbefore mentioned was made, are plaintiffs or defendants.

The second ground of demurrer, requiring but little considera.tion, may well be first determined.

When a demurrer to a complaint is based on the sixth ground specified in the 488th section of the Code of Civil Procedure, “ that there is a defect in parties plaintiff or defendant,” the particular defect relied on must be pointed out specifically by the demurrer. Code Civ. Pro., § 490. Dodge v. Colby, 108 N. Y., 453; 13 St. Rep., 848; Story’s Eq. Pldg., §§ 236, 238, 543.

The only defect under this sub-division pointed out by the demurrer is: “That the heirs at law of the father of the plaintiffs and of the other grantors in the deed to E Y. W. Thorne, mentioned in the complaint, are not, except the plaintiffs herein themselves, made parties plaintiff nor parties defendant.” The answer to this ground of demurrer is that it does not appear on the face of the complaint that the father of the plaintiffs and his brothers and sisters, or any one of them, left heirs other than the plaintiffs. A demurrer to a complaint can be interposed only for objections appearing on its face. Code Civ. Pro., § 488; Haines v. Hollister, 64 N. Y., 1; Story’s Eq. Pldg., §§ 236, 238, 543.

The first ground of demurrer remains to be considered. It has been decided many times, and frequently asserted by text writers, that the heirs of a decedent at whose grave a monument has been erected, or the person who rightfully erected it, can recover damages from one who wrongfully injures or' removes it, or by an injunction may restrain one who, without right, threatens to injure or remove it, and this, though the title to the ground wherein the grave is be not in the plaintiff but in another. Frances v. Ley, Cro. Jac., 866; Corven v. Pym, 12 Repts., 105; Spooner v. Brewster, 10 Moore, 494; S. C., 3 Bing., 136; S. C., 2 C. & P., 34; Matter of Brick Presbyterian Church, 3 Edw. Ch., 155-168; Matthews v. Jeffrey, L. R., 6 Q. B. Div., 290; Pierce v. Swan Point Cemetery, 10 R. I., 227; Beatty v. Kurtz, 2 Peters, 566; Snyder v. Snyder, 60 How., 368; 1 Rolle Abr., 625; 4 Bac. Abr., Title, Heir and Ancestor, 613; 2 Comyn’s Dig., Title, Cemetery, 305; 1 Coke Lit., 18 b; Coke 3d Inst, 202 et seq.; 2 Black Com., 428; 2 Steph. Com. (8th ed.), 220; 1 Will. Ex. (7th Am. Ed.), 792; Ferrard’s Fix., 202.

But this rule of law is not quite applicable to this case as stated in the complaint, for it is not alleged that the plaintiffs are the heirs of any of the persons whose graves or monuments have been destroyed, nor is it averred that they are heirs of any of the persons buried in that yard.

The wordancestor ” is an ambiguous one, broad enough to include, but not necessarily including, parents, grand-parents, and all persons in the ascending line, as far as relationship can be traced. Descendant ” is an antonym of “ ancestor,” but is not a synonym of heir.” It is plain that the allegation that the ancestors of the plaintiffs are buried in this yard is not equivalent to an allegation that the plaintiffs’ parents were there buried,, or that the plaintiffs are the heirs of the persons there buried. No one is the heir of all of his ancestors.

The rights of the heirs of the grantors to protect the graves and. monuments in the ground reserved are not to be solely ascertained and limited by the rules defining the rights of heirs of persons buried in church yards and incorporated cemeteries, but must be ascertained from the words of the clause in the deed, aided by the general rules relating to burial places.

The right of the tenants in common, and of their heirs, is called in the grant an “ exception ” and a “• reservation,” the scrivener not seeming to have understood that the words as used are inconsistent. By an exception some portion of the subject of the1 grant is excluded from the conveyance, and the title to_ the part so excepted remains in the grantor by virtue of his original title. A reservation creates a new right out of the subject of the grant, 'and is originated by the conveyance. Stockwell v. Couillard, 129 Mass., 230; Langdon v. Mayor, 6 Abb. N. C., 314; 1 Wash. R. P. (4th ed.), 432; 1 Dart’s V. & P. (6th ed.), 612.

It is recited that ground had then been laid off for interments,, and a right of way to and from this ground, with the right to bury therein, is “ excepted ” and “ reserved ” to the grantors and their heirs forever. The right to bury carries with it the right to do so according to the usual custom in the neighborhood, and would undoubtedly carry with it the right of making mounds over and erecting stones and monuments at the graves. The right to make such erections would carry with it the right to protect them from spoliation. The language assumes the existence of a burial ground, and the grantors had the right to protect the graves and monuments which existed at the date of the grant, or which were made during their lives, and their heirs having succeeded to their rights, may protect the graves and monuments now existing.

It is urged that the allegation that the plaintiffs are the children of one of the heirs of the tenants in common, all of whom are alleged to be dead, is not sufficient to show that they have succeeded to the title, because (1) it is not alleged that their father and his co-tenants (plaintiffs’ uncles and aunts) died intestate ; (2) it is not alleged that the uncles and aunts left no ancestors, descendants or collateral relatives entitled to take as heirs before or with the plaintiffs.

An allegation that A. died seized of certain realty, leaving B, C and D, his children, is a sufficient allegation of title, and if established by evidence makes a prima facie case of ownership of the realty by the three children. As to realty, intestacy, not testacy, is presumed. Duke of Cumberland v. Graves, 9 Barb., 596-606; Delafield v. Parish, 25 N. Y., 9-35; Baxter v. Bradbury, 20 Me., 260; Lyon v. Kain, 36 Ill., 368; 3 Wash R. P., 4th ed., 18; Abb. Tr. Ev., 109.

That the plaintiffs are the heirs of their father, one of the tenants in common, is sufficiently alleged, but sufficient facts are not alleged to establish their title by heirship to the interest in the burial place of which their uncles and aunts died seized. To show the heirship of a claimant he must prove his descent from the person last seized, when he claims as lineal heir, or the descent of himself and the person last seized, from some common ancestor, or at least from two brothers or sisters. If he claims collaterally, he must establish the extinction of all those lines of descent which would be entitled to succeed before him. Emerson v. White, 29 N. H., 482; Richards v. Richards, 15 East, 294; Roe v. Lord, 2 W. Black, 1099; 1 Saund. Pl. & Ev., 457; 1 Chitty Gen. Pl., 276, et seq; Adams Eject., 4 Am. ed., 324; Tyler’s Eject, 485; 3 Wash. R. P., 4th ed., 18; Abb. Tr. Ev., 85.

The situation requires an answer to the question whether the. allegation that the plaintiffs have succeeded to the interest of their father is a sufficient averment of title to authorize them to maintain an action to restrain the destruction of the burial ground, and the closing the way thereto, or to recover damages for the injuries committed, without alleging that the plaintiffs have succeeded to the interests of all of the tenants in common.

If the facts stated in a complaint are sufficient to constitute a cause of action, whether legal or equitable, the complaint is not demurrable on the ground that it does not state sufficient facts, because the judgment demanded is inconsistent with the cause of action stated, nor because both legal and equitable relief are demanded when plaintiff is entitled to bat one. Emery v. Pease, 20 N. Y., 62; Williams v. Slote, 70 id., 601; Wetmore v. Porter, 92 id., 76.

All of the rights of the heirs of the grantors in this yard are not individual ones, enjoyable and enforceable by each solely for his own benefit, but many of them are held in common by all of the heirs,' and among those so held are the right of way and the right to maintain the yard for the purpose for which it was laid out, and to protect it from destruction. Any one or more of the persons interested in these rights, held in common, may maintain an action to prevent, by an injunction, the destruction or interruption of such rights. Murray v. Hay, 1 Barb. Ch., 59; Cadigan v. Brown, 120 Mass., 493; Story’s Eq. Pldgs., §§ 286b, 537, 537a.

It is not necessary that such an action be brought by one, nor °by all of the persons interested. The damages sustained by each óf the plaintiffs, if any, cannot be recovered in this action, but if it shall appear on the trial that all of the heirs are parties plaintiff, any damages arising from an injury to their common interests may be recovered.

The judgment should be affirmed, with costs, and the defendant have leave to withdraw her demurrer and answer, upon payment of costs within twenty days.

All concur.


author: Bradley, J.

text:
    James C. French, App’lt, v. Samuel T. Dauchy et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Bond—Receiver.
    One B. was appointed receiver in an action for dissolution of a copartnership, and gave a bond. He incurred liabilities in the performance of his duties, and thereafter died insolvent, and an administratrix of his_ estate was appointed. Held, that an action could not be maintained against -the sureties on his bond until there had been a settlement of the receiver’s, accounts.
    Appeal from order of the general term of the supreme court in the first judicial department, sustaining the defendants’ exceptions, setting aside a verdict directed for the plaintiff and granting a new trial.
    In 1876 the defendant, Greorge K. Dauchy, having been a mem-, ber of a 'firm composed of himself and the plaintiff herein, brought an action against the latter for the dissolution of the co-partnership and for the appointment of a receiver, etc. One A. DeWittBaldwin was appointed such receiver, and he with the defendants Samuel T. Dauchy and -Joseph W. Nicholas, as his sureties, made a bond having the condition that if Baldwin should faithfully discharge the duties of his trust as such receiver the obligation should be void, otherwise in force.
    The receiver died in 1880, having received from the proceeds ■of the partnership property $842.65. The evidence tends to prove that he was insolvent at the time of his death, soon after which letters of administration were issued to his widow, Mary E. Baldwin. The receiver rendered no account, nor did he pay over the moneys which came to his hands as such.
    That action was terminated in 1884 by judgment which directed Dauchy to pay to French a sum found due him upon the accounting between them.
    This action was commenced in 1888, and George K. Dauchy was made defendant because he refused to join as plaintiff. He-answered and alleged that he procured the defendant Samuel T.. Dauchy to become surety for the receiver and undertook to indemnify him. And the trial court directed a verdict for the plaintiff for one:half the amount of the moneys which had come to the hands of the receiver (less his fees and twenty-five dollars paid by him to his attorney) and interest from the time of his death.

      Edward D. McCarthy, for app’lt; S. B. Brownell, for resp’ts.

       Affirming 32 St. Rep., 544.

   Bradley, J.

—-The right of the plaintiff to maintain the action is challenged because no proceedings had been taken to require the administratrix, etc., of the receiver to render an account of ¿he trust and for the omission to make her a party defendant. This is in form an action at (áw upon the bond and was tried as-, •such. It is not seen how the administratrix in an action of that, character could properly be joined as a defendant, although she-might in equity be called upon to account for the trust assumed by her intestate as receiver.

In Cuddeback v. Kent, 5 Paige, 92, it was held that a. guardian and his sureties might be joined as defendants in an action in equity and relief be awarded for breach of the trust of the former,, and thus avoid circuity of action or multiplicity of suits.

And in Carow v. Mowatt, 2 Edw., 57, a bill was filed against the personal representative of the deceased administrator and his-sureties for the purpose of establishing devastavit by the administrator, to make it good so far as his assets would do so, and, charge the deficiency upon his sureties in the bond. It was there-held that the bill for such purpose could be sustained. It is, however, the general rule that the liability of. sureties in such cases on their obligation is at law only, and that preliminarily to-the action the settlement of the account of the trustee is essential. Stilwell v. Mills, 19 John., 304. And in Salisbury v. Van Hoesen, 3 Hill, 77, the views of the chancellor in Cuddebach v. Kent and"; the doctrine of that case were disapproved; and it was there held' that the bond could not be prosecuted before proceedings for an account were had against the guardian; and that where he has died without rendering an account, like proceedings should first be had against his personal representatives. This was the doctrine of Perkins v. Stimmel, 114 N. Y., 359; 23 St. Rep., 657. And it is in accord with the rule declared in Hood v. Hood, 85 N. Y., 561, where Carow v. Mowatt was criticized.

But it is suggested that in cases relating to the personal representatives of deceased persons and guardians the condition of the bonds and the proceedings are regulated by statute, and that as it, is not so as to receiverships, a different rule resting upon the coimmon law preval Is. It is true that while the testamentary disposition of estates is of very great antiquity, the manner of execution of testaments and of the administration of estates of testators and intestates is in this state and quite generally regulated by statute ; and the conferring upon surrogates the power to appoint guardians and take their account, etc., the whole subject of which before then was within the jurisdiction of the court of chancery, is also dependent upon the statute ; and by it the proceedings are also in the main regulated. They are quite in harmony with the proceedings as the}7 were conducted prior to the time the present .statutory regulations were perfected. And so far as relates to those which are the subject of controversy in the present action, t .they were analogous to those applicable to cases of receivers and the prosecution of their bonds.

The latter were matters of practice of the court of equity within which was the jurisdiction over the subject. And that practice was to make the prosecution of the bond of the receiver depend upon an accounting against him had in equity. Dawson v. Raynes, 2 Russ., 466; Ludgater v. Channell, 15 Sim., 479; 8 Mac. & G., 175. In the latter case the receiver had died and the question arose upon petition for leave to sue his personal, representatives and sureties, or that his personal representatives be directed to pass the accounts in respect to the trust estate. The petition was founded on a report of the receiver’s accounts by the master to the effect that a balance exceeding £6,000 remained due. The specified sum was paid. The petition was dismissed by the vice chancellor; and on review the chancellor, without deciding whether the sureties should pay or the administratrix be called upon to' account in that form of proceeding, held that the prayer of the petition for leave to sue the sureties should be granted. For the purposes of that relief the petition was founded in part at least upon the fact that an unascertained balance was found due by the master’s report The chancellor there said substantially that where a receiver absconds it becomes impracticable to ascertain what is due from him, and there may be other cases presenting like difficulties in that respect. And in Hood v. Hood, Judge Rapallo remarked: “Assuming that in a case where the statutory remedies upon the bond cannot be pursued a court of equity can interpose and establish a breach in some other manner, and give a remedy against the sureties without any order for the prosecution of the bond, all the authorities which have been cited agree that special circumstances must be ■shown establishing the necessity for the interposition of a court of equity, and that if the legal remedies can be pursued, they ¡alone can be resorted to.”

The Ludgater case is not necessarily an authority in support of the plaintiff's action. It cannot be said that the leave granted would have been there given if it had not appeared from the master’s report that there remained some balance due from the receiver ; and the chancellor was careful to add that the right to recover against the sureties without an accounting by the personal representative was not decided.

Although the conditions of such bonds are usually broader than the one in question, and contain a provision for a report or an accounting, yet the omission of it does not have the effect in such case to qualify the rule of practice applicable to the proceedings preliminary to the prosecution of the obligation. The sureties are properly chargeable for no greater amount than that which' their principal is liable to pay; and it is deemed quite essential that his accounting should be had to ascertain what, if any, charges and expenses of the trust he may be entitled to have: allowed to him by way of abatement of the amount due from him.In the present case evidence was offered tending to prove that the' receiver had incurred certain expenses in the execution of the¡ trust. And in proceedings against the administratrix for an accounting those questions- could be disposed of, and the amount or balance actually due from him at the time of his death ascertained or in such manner represented as to furnish the foundation for an action on default of its payment. Mo reason appears why such accounting could not and should not have been had preliminarily to the action against the sureties. And for that reason-the order should be affirmed and judgment absolute directed against the, plaintiff.

Order affirmed, and judgment absolute rendered against plaintiff, with costs.

All concur.


text:
    Ella A. Sabin, App’lt, v. Andrew S. Phinney, Impl’d, Resp’t.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. Benefit societies—Ancient Order United Workmen—Policy made: PAYABLE TO ONE RAVINS NO INSURABLE INTEREST.
    Under the statute and by-laws of the A. O. U. W., a member of that corporation can legally direct the sum to become due at his death to be paid to a stranger having no insurable interest in his life.
    2. Same.
    The relation between the A. O. U. W. and a member gives the latter the' right of change of beneficiary with or without reason, with the absolute-right of the member to substitute a new one at any moment.
    3. Same.
    Where the wife never paid any part of the expenses incident to the membership of her husband in the A. O. U. W., nor of her membership in another society, and no pecuniary consideration can be raised in her favor, she does not by the certificate in which she is named as beneficiary, and its delivery to her, acquire a vested interest in the sum payable thereunder, of which she could not be deprived without her consent.
    Appeal from a judgment of the general term of the supreme' court of the fifth department, which affirmed, without costs, a judgment dismissing the complaint on the merits, with costs, entered on the report of a referee.
    March 20, 1877, the Grand Lodge of the Ancient Order of United Workmen of the State of Mew York was incorporated by chapter 74 of the laws of that year. This statute authorized the corporation to create subordinate lodges and accumulate funds for the benefit of members. The fourth section of the act provides r.

      “ See. 4.. Such beneficiary fund as may be ordained suitable by said corporation may be set apart and provided to be paid over to the families, heirs or representatives of deceased or disabled members, or to such person or persons as such deceased member may, while living, have directed; and the collecting, management and disbursement of the same, as well as the person or persons to whom, and the manner and time in which the same shall be paid, on the death of a member, shall be regulated and controlled by the rules and by-laws of the corporation. * *
    Among the by-laws of the corporation was the following :
    “ Sec. 17. Any member holding a beneficiary certificate desiring at any time to make a new direction as to its payment, may< do so by authorizing such change in writing on the back of his ■certificate in the form prescribed, attested by the recorder with the seal of the lodge attached, and by the payment to the Grand Lodge of the sum of fifty cents; but no change or direction shall be valid or have any binding force or effect until it shall have been reported to the grand recorder, the old certificate, if practicable, filed with him- and a new beneficiary certificate issued thereon, and said new beneficiary certificate shall be numbered the same as the old ■certificate.”
    Prior to March 22, 1879, a subordinate lodge was organized at Hornellsville, N. Y, and designated as George Washington Lodge N o. 132, of which John C. Sabin became a member, and on the 24th of March, 1879, received a certificate, of which the following is a copy:
    41 No. 9513. $2,000
    “ The Grand Lodge of the Ancient Order of United Workmen of the State of New York :
    “ This certificate, issued by the authority of the Grand Lodge of the Ancient Order of United Workmen of the State of New York, witnesseth: That John G. Sabin, a master workman degree member of George Washington Lodge No. 132, of said order, located at Hornellsville, in thg state of New York, is entitled to all the rights and privileges of membership in the Ancient Order of United Workmen, and to participate in the beneficiary fund of the order to the amount of $2,000.00, which sum shall, at his death, be paid to Ella A. Sabin.
    “ This certificate is issued upon the express condition that said John C. Sabin shall, in every particular, while a member of said order, comply with all the laws and rules and requirements thereof.
    “ In witness whereof, the Grand Lodge of the Ancient Order of United Workmen of the State of New York, has caused this to be signed by its grand master workman and grand recorder, and the seal thereof to be attached this 22d day of March, one thousand eight hundred and seventy-nine.
    (Seal of Grand Lodge.)
    “ Attest. J. C. Armstrong, Grand Eecorder.

    “ E. M. Clark, Grand Master Workman.

      “ We, the undersigned master workman and recorder of George Washington Lodge Xo. 132, do hereby countersign this certificate and attach the seal of this lodge hereto,' rendering the same valid and in full force, this 24th day of March, 1879.
    (Seal of George Washington Lodge.)
    “Attest. O. D. Crandall, Recorder.

    “D. F. Cridler, Master Workman.''

    Ella A. Sabin, mentioned in the certificate, was the wife of John C. Sabin. August 8, 1882, Ella A. Sabin became a member of the Bath Mutual Endowment Co., and procured a certificate therefrom, payable to John C. Sabin in case of her death. The first mentioned certificate was delivered by the husband to the wife, and the second certificate by the wife to the husband, each intending by the certificates so issued and delivered to provide for the survivor.
    In May, 1883, the husband and wife separated by mutual consent and thereafter nevfer lived together. The husband paid the dues on both memberships or certificates until he and his wife separated. About the time of their separation the wife took possession of the certificate upon her life, and the husband of the certificate upon his life. The husband took the certificate issued upon his life without the consent of the wife, and she the certificate issued on her life without his consent. Afterwards John C. Sabin resolved not to keep said certificate in force for the benefit of his wife, and so informed the respondent, but at the same time, expressed the desire to remain a member of the lodge. It was' then agreed between Sabin and Phinney, who were in no wise related, that Phinney should pay all subsequent dues, and that a new certificate sliould be issued payable to him on the death of Sabin. To accomplish this Sabin executed the following endorsement upon the certificate, and delivered it to Phinney:
    “ I, John 0. Sabin, to whom the within certificate was issued, do hereby revoke my former direction as to the payment of the beneficiary fund due at my death, and now authorize and direct said payment to be made to A. S. Phinney, or his heirs, bearing relationship to myself of "x" * * .
    “ Witness my hand and seal this 10th day of July, 1883.
    [seal.] • “John 0. Sabin.”
    And the same was attested as follows:
    “Attest: George C. Platt, Recorder.

    (“Seal George Washington Lodge.”)
    The original certificate, with the aforesaid endorsement, was by Phinney delivered to the officers of the grand lodge, who can-celled it, and July 20, 1883, issued a new one precisely like the one set forth, except it was payable to Andrew S. Phinney instead of Ella A. Sabin. After receiving this certificate Phinney paid all dues on it. At some time in 1883, Ella A. Sabin surrendered the certificate which was issued upon her life payable to her husband, and received a new one payable to her legal representatives. John C. Sabin was employed on a railroad train, and in September, 1883, he was injured by an accident, and on the 13th of October following he died intestate. The appellant and respondent each claims to be entitled to the fund payable by the terms of the certificate.
    The grand lodge does not contest its liability and has paid the amount into court.

      D. M. Page, for app’lt; G. N. Orcutt, for resp’t.

       Affirming 28 St. Rep., 45.

   Follett, Ch. J.

—The appellant insists that the cancellation of the first certificate which was payable to her, and the substitution of the second which was payable to the respondent, was void for two reasons.

1. That the respondent had no insurable interest in the life of John 0. Sabin.

2. That she, the wife, acquired by virtue of the first certificate and its delivery to her a vested right to the sum payable on her husband’s death of which she could not be deprived without her consent.

The statute under which the corporation was organized expressly provides that the funds “may beset apart and provided to be paid over to the families, heirs or representatives of deceased or disabled members, or to such person or persons as such deceased member may, while living, have directed." The by-laws of the corporation impose no limitation on the persons to whom certificates should be payable. It was held in Massey v. Mutual Relief Society of Rochester, 102 N. Y., 523; 2 St. Rep., 487, that there being no restriction in the act under which the society was incorporated against making a certificate payable to a person in no wise related to the member, that a certificate issued to a stranger was not void as a wager policy. In that case the certificate was issued in favor of a person not related to the member, and who was nota member of the society, but in the case at bar the certificate was issued in favor of a member of the order. Under the statute and by-laws a member of this corporation can legally direct the sum to become due at his death to be paid to a stranger having no insurable interest in his life. Niblack on M. B. Societies, § 178.

Did the plaintiff by the certificate and its delivery to her acquire a vested interest in the sum payable thereunder, of which she could not be deprived without her consent ? It is to be observed that the wife never paid any part of the expenses incident to the membership of her husband in this society, nor of her membership in the society to which she belonged, and no pecuniary consideration can be raised in her favor. The statute under which the corporation was organized, its by-laws, together with the application for, and the certificate of membership constituted the contract which existed between the member and the society, which instruments construed together measure the rights of these litigants. Hellenberg v. Dist. No. 1, 94 N. Y., 580; Sanger v. Rothschild, 123 id., 577; 34 St. Rep., 258; Niblack on M. B. Societies, § 166.

The relation which existed between Sabin and the society subjected him to certain burdens and entitled him to certain benefits during the continuance of his membership, and if he died while in good standing in the order his appointee became entitled to a certain sum. This relation could be terminated at any time, at the will of the member and the appointee was changeable from time to time as he might elect. If we choose to term this relation a contract and it was established by agreement, the contract gave the right of change of the beneficiary with or without reason. Any person who became an appointee in such a certificate took the position subject to the absolute right of the member to substitute a new one at any moment. The rights acquired by the member, by virtue of this relation, did not amount to a chose in action. He had no interest in the society that was assignable or transferable until some right of action had accrued _ The appointee had no vested interest in the sum which might in a contingency become payable on death of the member. Hellenberg v. Dist. No. 1, supra; Sanger v. Rothschild, supra; Bown v. Catholic Mutual Benefit Assn., 33 Hun, 263; Boasberg v. Cronan, 30 St. Rep., 483.

It being settled that an appointee under such a contract has no vested interest in the sum, the position taken by the plaintiff in this case becomes utterly untenable.

The judgment should be affirmed, with costs.

All concur, except Bradley, J., not sitting, and Haight, J., not voting.


author: Brown, J.

text:
    The City of Buffalo, Resp’t, v. Mary R. Balcom et al., App’lts.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. Mortgage—By owner to redeem land from tax sale.
    Where land has been sold for taxes and bought in by the city, and the latter in consideration of a mortgage upon the property given by such owner cancels the certificates of sale, such mortgage is valid.
    2. Same—Estoppel.
    Even if the city had not the legal capacity to take and enforce such a security, a devisee of the mortgaged property or a creditor of the devisee could not assail the validity of the transaction, as they would have no more right to do so than the mortgagor had.
    AlPPEAL from a judgment of the general term of the superior court of the city of Buffalo, affirming a judgment entered on a decision of the special term.

      Adelbert Moot, for app’lts; Philip A. Laing, for resp’t.
   Brown, J.

—This action was brought to foreclose a mortgage upon real estate in the city of Buffalo. Certain taxes which had been imposed by the plaintiff upon the lands of "the mortgagor. Philo A. Balcom, remaining unpaid, said lands were sold, and at the sale in default of bidders struck off to the city, "and certificates of sale issued to it pursuant to the charter. The consideration of the mortgage and the bond accompanying it was the cancellation of such certificates.

The question presented is whether the mortgage is valid.

The appellant contends that as the purpose of the contract was tio secure the payment of a tax, it was not within the legal capacity of the city to take, hold and enforce such a security, and ■that the contract as to the plaintiff is ultra vires and contrary to public policy.

Assuming all that the learned counsel has said upon the general policy of permitting a municipal corporation to accept anything but money in the payment of taxes, and the embarrassment which would follow from the general adoption of any other •course, I fail to see how the state, by whose favor the municipality exists, or the people who reside within the limits of the •city, have any interest in arresting the operation of the contract in suit, and the recovery of the money equitably due upon it. If there has been, in respect to this contract, any wrong action on the part of the common council, any undue favor to the mortgagor, or any misappropriation of the funds of the city, the surest and most effectual way of righting the wrong done is to enforce .the mortgage, and thus to the extent of the value of the security restore the money to the treasury of the city.

But the act of taking the bond and mortgage in suit was not illegal. There is no provision of law which forbids it. The land mortgaged had been sold to pay the tax imposed upon it, and in default of bidders was struck off to the city, and it received and held the certificate of sale.

We may assume the proceedings in relation to the levy of the tax and the sale were in compliance with the charter, as if they were otherwise; it rested with the appellants to show it. The certificate of sale, after failure on the part of the owners to redeem, was to be followed by a “ declaration of sale,” which the charter made evidence of the purchaser’s title.

Whether the city, at the time of taking the mortgage, was entitled to receive the declaration of sale, and under it possession ■of the property, is of no importance. The certificate itself was made assignable, and the only act requisite to obtain the declaration of sale was service on the owners of notice to redeem. Such rights as the city had in the property it could therefore sell, and in so doing there was nothing to prevent its dealing with the owners of the land. It could sell the certificate to any one, and we are not referred to any provision of the charter which required it to sell for cash only, and certainly there is no rule of general policy which required it to do so. The general public interest was the only rule which was .to guide the common council, and in all other respects it could sell and convey the same as an individual. Brooklyn Park Comrs., v. Armstrong, 45 N. Y., 234; Kings Co. Ins. Co., v. Stevens, 101 N. Y., 411

The common council could therefore sell these certificates to the owner of the land, and receive from him such security for the payment of the' purchase price as in the exercise of good faith and good judgment it should deem for the best interests of the city. Such, was in substance, the transaction in this case. The certificates of sale were cancelled, and the land freed from the tax re-' stored to the owner, and the city received the mortgage to secure payment of that which was due to it. No one has assailed the good faith of the transaction, and no statute forbids it, and we think the transaction was one within the power of the city, and must be upheld. But assuming that the city had not the legal capacity to take and enforce such a security, that either from the general nature of the transaction, or from the particular stage of the proceedings instituted to collect the tax it was an agreement beyond its power to make and enter into, still we are of the opinion that the appellant cannot question its validity.

The appellants are a devisee of the mortgaged property under the will of the mortgagor and a judgment creditor of the devisee. Both of them claim through the mortgagor, and their right to assail the validity of the transaction is such as he had and no more.

The effect of the mortgage was to extend the time within which. Balcom could discharge the indebtedness arising from the imposition of the tax, and hence conferred a material benefit upon him, and that benefit he and the appellants have had and enjoyed; and the case is, therefore, a proper one for the application of the rule that one who has had the full benefit of a contract cannot be permitted in an action founded upon it to question its validity. A court of equity is always reluctant to decree a forfeiture, and under circumstances such as are disclosed in this action the plea of ultra vires does not address itself favorably to the mind of the court.

It has been said that this plea should not prevail when it would not promote justice, but on the contrary would accomplish a wrong, and such clearly would be the result of its application in this case, as the mortgaged property would escape payment of its share of the tax, and the burden from which it would be relieved would fall upon the other taxable property in the city.

Silver Lake Bank v. North, 4 Johns. Ch., 370, was an action to foreclose a mortgage. One of the defenses interposed was that the plaintiff by its charter was authorized to take mortgages for debts previously contracted only and that the mortgage in suit was taken concurrently with the loan. With reference to this defense, Chancellor Kent held that the prohibition in the charter did not make void a mortgage given to secure the payment of money so lent, nor prevent the bank from enforcing such a mortgage ; and if the corporation in its business transaction should pass the exact line of its power, it would rather belong to the government to exact a forfeiture of its charter than for the court to decide in a collateral way a question of misuser by setting aside a just and bona fide contract. The same rule has been applied by the supreme court of the United States in its decisions under the National Banking Act. Nat. Bank v. Matthews, 98 U. S., 621; Id. v. Whitney, 103 id., 99. And under the statute of this state authorizing suits by taxpayers to prevent waste of the public funds, ample power exists to restrain any abuse in this direction of municipal power.

The rule which denies to a party benefited by a contract the right to question, its validity is founded upon estoppel, and that doctrine has been so frequently applied to defeat the plea of ultra vires that there is no occasion now to attempt its further discussion or state the reason for its application.

It has been carefully considered in the following cases : Whitney Arms Co. v. Barlow, 63 N. Y., 62; Rider Life Raft Co. v. Roach, 97 id., 378; Starin v. Edson, 112 id., 206; 20 St. Rep., 898; Mayor v. Sonneborn, 113 N. Y., 423; 22 St. Rep., 988; Mayor v. Huntington, 114 N. Y., 631; 23 St. Rep., 912; R. & B. R. R. Co. v. Proctor, 29 Vt., 93; Davis v. Old Colony R. R. Co., 131 Mass., 258, and this case falls within the rules there decided.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.