text:
    Addison J. Lyon, App’lt, v. Van V. Morgan et al., Resp'ts.

      (Supreme Court. General Term, Fourth Department,

      Filed May 13, 1892.)

    Pabtitioit—Estoppel.
    In an action for partition, it appeared that plaintiff held a sheriff’s deed recorded January 28, 1890, of an undivided one-fourth of a sixteen acre tract of land, having purchased the interest of one S. who hold the record title to the same in 1888, when the judgment was entered against him; that in 1883, J., the father of ¡5., who owned the rest of the sixteen acre tract, desired to procure a loan upon it and other lands adjacent; S. was questioned as to his interest in the sixteen acres and denied having any, and relying upon this the loan was consummated and a mortgage taken on the sixteen acres and other lands and recorded. After the docketing of the judgment against S. an action was commenced to foreclose the mortgage, judgment entered and the property sold to M., who received a referee’s deed, which was recorded February 20, 1890. Neither the judgment creditor, S. or the plaintiff were made parties to the foreclosure. Held, that S’s denial of ownership did not estop plaintiff from asserting his legal title to the land in question.
    Appeal from a judgment entered in Broome county upon a decision of the special term dismissing the plaintiff’s complaint upon the merits, with costs. Action for partition of real estate, consisting of sixteen acres of land in the village of Fort Dickinson.
    Plaintiff alleges lie is the “ owner in fee simple and is the holder .and is in possession of the equal undivided one-fourth of all that tract or parcel of land, situate in the town of Binghamton, county of Broome and state of New York, containing about sixteen acres of land.”
    The answer denies the ownership, and alleges the fee to be and right of possession in William A. Morgan, and also alleges that “ November 23, 1883, one Joseph Carman, being in possession of and claiming to be the actual owner in fee of premises described in the complaint, executed and delivered to one Albert Smith as guardian of the property of Frank Albert Smith, his bond to secure the payment of the sum of $10,000, and as collateral security to the payment thereof, at the same time he and his wife duly executed, acknowledged and delivered to said Smith a mortgage upon said premises and other lands.”
    And that the mortgage was taken “ upon the faith and belief of said Smith that said Joseph Carman was the sole owner of the lands described in tlie complaint, and the other lands described in said mortgage, and that his title was not encumbered or subject to any lien, and the said Joseph Carman at the time affirming that he was the owner of said lands in fee, and that they were not encumbered, which said Smith believed to be true and knew nothing to the contrary.”
    The answer also alleges “ That Silas N. Carman, the person through and under whom plaintiff claims to have received title, and whom the plaintiff alleged was the actual owner of the premises described in the complaint, at the time said loan was lent, and said bond and mortgage were executed and delivered was present and knew of said loan of money, and heard the affirmation of said Joseph Carman that he was owner in fee of said lands, and knew that said money was- lent and advanced on the belief that he was such owner, and he, said Silas N. Carman, at that time asserted no title or interest in said premises or claim thereto, but on the contrary expressly stated that he neither had nor claimed to have any right, title or interest in and to said premises, and consented and requested that said Smith, as such guardian, loan said $10,000 taking as security said bond and mortgage. Wherefore defendant alleges that plaintiff and his predecessor in title, said Silas N. Carman, is estopped and barred from asserting any title or interest in said premises as against answering defendants, and this defendant’s title is superior and paramount to that of plaintiff or his predecessor,’’
    The answer alleges the foreclosure of the mortgage, and that William A. Morgan became the purchaser of the premises for $6,800, and became the owner in fee of the said premises and every part thereof.
    The trial court found that “ Joseph Carman became the owner of an undivided three-fourths of said sixteen acres * * *" and was such owner on the 23d day of November, 1883.”
    Also found “ Silas N. Carman became the owner of the remaining undivided one-fourth of said 16 acres * * * and was such on the 23d day of November, 1883.” •
    Also found that “ On the 23d day of November, 1883, the said Joseph Carman applied to one Albert E. Smith, as general guardian of Frank Albert Smith, a minor, through the latter’s agent William E. Taylor, for a loan of ten thousand dollars ($10,000) to be secured by a mortgage on said 16 acres with other lands. Said application was made by Joseph Carman in person, and he was accompanied at the time by said Silas N. Carman. At the time of the making of said application said Taylor, acting as agent as aforesaid, inquired of said Silas N. Carman if he had any interest in the said lands including the said 16 acres, and Silas replied that he had not any such interest. Joseph Carman also at that time stated that he owned the whole of said premises, which statement said Silas N. Carman did not contradict in any way. Said William E. Taylor, as agent for said guardian aforesaid, upon the date last mentioned, loaned to said Joseph Carman the sum aforesaid, and said Joseph Carman, to secure the same, on that day executed, acknowledged and delivered to the said Taylor acting for said guardian, a mortgage, in and whereby he granted to said guardian, his successors and assigns, said 16 acres with other lands, which grant was given as security for the payment of the sum aforesaid, and interest thereon. Said loan was made and mortgage taken and accepted by said Taylor on behalf of said guardian, relying upon the aforesaid statement of Silas N. Carman, and he acted and depended on said statement in so doing.”
    From the evidence it appears that a foreclosure of the mortgage was commenced about December 1,1888, and a judgment of foreclosure was entered in December, 1889, and a sale thereunder was made by the referee February 11, 1890, and William A. Morgan became the purchaser upon a bid of $6,800, and took the usual referee’s deed. William A. Morgan gave back a mortgage to the defendant Waterman, as guardian of Frank Albert Smith (he having become such guardian), in the sum of $5,000.
    Silas N. Carman was not made a party to the foreclosure action ; nor was Addison J. Lyon, the plaintiff, made a party to the foreclosure action.

      The First National Bank of Binghamton on the 16th day of .June, 1888, recovered a judgment against Silas N. Carman upon a promissory note made by him for $650, and against Wilson Culver, Charles H. Culver and Addison J. Lyon (the plaintiff here), who were endorsers upon such note. An execution was issued upon that judgment on the 16th day of June, 1888, to the sheriff of Broome county, who, having received the full amount of the execution October, 1888, returned the same satisfied October 2-1, 1888. By the sheriff’s certificate of sale it appears that on the 21th day of October under the execution he sold to Addison J. Lyon for $762.95 all the interest, right and title of Silas N. Car-man in and to the undivided one-fourtli part of said sixtecen acres. The certificate was recorded January 3, 1889, and on the 25th day of January, 1890, the sheriff executed to Addison J. Lyon a conveyance of the equal undivided one-fourth part of the sixteen acres of land, which was recorded January 26, 1890.
    The special term found as conclusions of law: “(1) That Silas N. Carman and his privies and successors in "interest, including the plaintiff herein, are held and estopped by his acts set forth in the fifth finding of facts, and by the matters set forth in the sixth and seventh findings of fact, from claiming any interest in said sixteen acres as against sai'd mortgagee, his privies, successors in interest, including the defendant Morgan and the defendant Waterman. (2) That the defendants Morgan and Waterman are entitled to a judgment dismissing the complaint upon the merits, with two bills of costs.”
    The court also found that Silas N. Carman, after the death of Abram Bavier, which occurred in January, 1871, “ entered into possession of said premises, with the other joint owners, and so continued in possession until possession was taken by Addison J. Lyon, the plaintiff in this case, as hereinbefore stated.”
    It was also found “there is no evidence that said Lyon prior to his taking said deed from the sheriff ever had any notice that said Silas N. Caiman had stated to said Albert E. Smith, guardian, or to said Waterman or to any person, that Joseph Carman owned the whole title, or that he, said Silas, had no part of the title.”
    It was also found “ there is no evidence that said William A. Morgan was informed of the representations made by said Silas N. Carman at the time of the loan of the said $10,000, or that he bid off said premises on the mortgage sale relying upon any representations made by said Silas N. Carman.”
    The court declined to find “ that Addison J. Lyon, the plaintiff, is the owner in fee of the equal undivided one-fourth of said premises.”
    Exceptions were taken to the findings of fact and to the refusals to find.

      Edward K. Ciarle, for app’lt; George Bowen, for resp’t Morgan;

      J). S. Richards, for resp’t Waterman.
   Hardin, P. J.

Appellant claims to be the owner of an undivided one-fourth part of the parcel of land known as about sixteen acres described in the complaint. He holds a deed from the sheriff which was recorded in Broome county on the 28th day of January, 1890, having purchased the interest alleged to be in Silas N. Carman on the 16th day of June, 1888, on which latter date a judgment in favor of the First National Bank of Binghamton was docketed against Silas N. Carman for $668.58 damages, and $24.03 costs. According to the evidence and to the findings of fact made, on the 16th day of June, 1888, when the judgment was docketed, Silas N. Carman held the record title to the one undivided fourth part of the premises described in the complaint. The proceedings for .the sale of that interest upon the judgment; the purchase by the plaintiff; the certificate delivered to him and the deed received by him seem to be regular in form and suffi • cient to pass the formal, legal title to the plaintiff. Plaintiff’s bid at the sale was $762.95; and he seems to have paid $57.61 expenses of the sale. However, the respondents claim to defeat then title of the plaintiff by reason of an alleged estoppel.

It appears that on the 23d of November, 1883, Joseph Carman, the father of Silas, desired to make a loan of $10,000 upon certain other lands adjacent to the sixteen acres, and that in the negotiations and applications for the loan Silas joined his father, and upon being questioned as to his interest in the sixteen acres “ denied having any such interest or claim, and acting and relying upon this information and not knowing anything to the contrary the loan was consummated and a (mortgage taken on the sixteen acres as well as others to secure the $10,000 loan.” The mortgage was recorded. After the docketing of the judgment already mentioned an action to foreclose the mortgage was commenced on the 1st of December, 1888, and the proceedings were had in the action usual in such cases, resulting in a judgment in foreclosure, and upon such judgment a sale was made on the 11th dajr of February, 1890. Silas N. Carman was not made a party to that, foreclosure; nor was the bank, the judgment creditor, nor the plaintiff in this action. At the mortgage foreclosure sale on the 11th of February, 1890, the defendant, William A. Morgan, bid off the premises and recéived a deed from the referee conducting the sale, which was recorded February 20, 1890. If he had, (it. the time of making his bid, made a diligent search of the record he would have -discovered the record title to have been in Silas. N. Carman at the time the bank recovered the judgment against him on the 16th day of June, 1888, and that the premises had been sold, sheriff’s certificate given, and that no redemption had taken place, and that a sheriff’s deed had been delivered and recorded carrying the formal, legal title to the plaintiff. The trial judge has found that, “ There is no evidence that said William A. Morgan was informed of the representations made by said Silas N. Carman at the time of the loan of the said $10,000, or that he bid off said mortgage premises on the mortgage sale relying upon any representations made by said Silas N. Carman.”

He has also found that at the time the loan was made upon the mortgage, inquiry was made of Silas N. Carman if he had any interest in the sixteen acres and that he “replied that he had not any such interest. Joseph Carman, also, at that time stated that he owned the whole of said premises, which statement said Silas 1ST. Carman did not contradict in any way.”

lie also found: “ Said loan was made and mortgage taken and accepted by said Taylor on behalf of said guardian, relying upon the aforesaid statement of Silas 1ST. Carman, and he acted and depended on said statement in so doing.”

As a conclusion of law the special term found: “ That Silas M. •Carmon, and his privies and successors in interest, including the plaintiff herein, are held and estopped by his acts set forth in the fifth finding of facts, and by the matters set forth in the sixth and seventh findings of fact, from claiming any interest in said sixteen acres as against said mortgagee, his privies, successors in interest, including the defendant Morgan and defendant Waterman; ” and thereupon he ordered the complaint dismissed, with costs. Seasonable exceptions were taken to the findings, and to the refusals to find.

If the parties taking the mortgage had been vigilant in search- ' ing the record for the title or any encumbrance upon the sixteen acres, they would have learned that the title of one undivided fourth was in Silas FT- Carman. So, too, if the party foreclosing the mortgage had, at the commencement of such suit, to wit: the 1st of December, 1888, after learning of the title of one undivided fourth being in Silas FT. Carman, searched the record they would have discovered a judgment against him, as the bank judgment was recovered on the 16th day of June, 1888. So that it may be observed that diligence at the time of the loan, diligence at the time of the commencement of the action, diligence pending the foreclosure action and prior to the sale, which was in February, 1890, in the mortgage suit, would have disclosed the record title and the facts and circumstances now relied upon by the plaintiff. However, it is insisted in behalf of the respondents that the estoppel is efficient, and precludes the plaintiff from asserting legal title to the undivided fourth in the sixteen acres. We think otherwise. In Thompson v. Simpson, 128 N. Y., 270; 40 St. Rep., 164, the doctrine of estoppel as applicable to real estate is very extensively considered, and its effect upon transactions in respect to the real estate; it is there said: “ The doctrine of equitable estoppel, when invoked to bar the legal title to land, should be cautiously applied, and only when the grounds for its application are clearly and satisfactorily established.” In Trenton Banking Company v. Duncan, 86 N. Y., 230, it was said: “ The party setting up the estoppel must be free from the imputation of loches in acting upon the belief of ownership by one who has no right.”

When the representations were made by Silas 1ST. Carman, the parties were negotiating for a loan to he secured by a lien upon real estate; they were not negotiating for the title. A mortgage was executed which simply gave a lien upon the real estate owned by Joseph Carman, and it was then assumed by the lender, and such assumption was justified by the representation made by Silas, that Joseph was capable of creating a lien upon the whole sixteen acres ; giving lull force and effect to the representation and binding Silas Carman by reason thereof to the full force and effect of the mortgage lion, it may be said that only a mortgage lien was created. Joseph did not undertake to convey the title to the sixteen acres, and the effect of the representation made by Silas simply induced the lender to take a lien upon the-premises. If it be assumed that the full force of the representation is to be given to the mortgagee and those holding under him, still the mortgagee and those holding under him only acquired, in virtue of the representations, a lien upon the premises. Il: Silas M. had joined in the mortgage, certainly he would have been a necessary party to the foreclosure ; he would have had a right of redemption; and if full force is given to his representation it only secures to the mortgagee and those claiming under him the right, to enforce a lien upon the undivided fourth of the sixteen acres» Silas M. Carman, as before observed, was not made a party to the foreclosure suit; nor was his judgment creditor made a party, nor was the purchaser at the execution sale upon the judgment against him made a party, and so far as the equity of redemption which remained in Silas was concerned, it never has been cut off. Silas, notwithstanding the representation made by him which induced the party to take a lien, was entitled to redeem the mortgage ; his judgment creditor was entitled to redeem and the purchaser at the execution sale was entitled to redeem. Hence it-follows that the plaintiff has never been divested of the legal title which he acquired per force of the judgment, execution, sheriff’s certificate and sheriff’s deed. It seems that the doctrine of estoppel was carried too far when the conclusion was reached at the special term that the plaintiff had no standing to maintain partition.

In Ackley v. Dygert, 33 Barb., 176, it was said : “A person cannot be divested of his property by being ignored. He has a right to a day in court before that power can be rightfully exerted.” The extent of estoppel depends upon equitable considerations, see 2 Pom. Eq., § 813; Campbell v. Nichols, 33 N. J. L., 81, and therefore each case is governed largely by its own particular circumstances. It cannot be successfully asserted that the-mortgagee, in parting with his money upon the representation that was made to him, which is now insisted upon by way of estoppel, acquired any more than a lien upon the premises. For the purpose of acquiring a lien, the mortgagee may be said to have relied upon the representation. If he is considered as the holder of a lien upon the property, he is allowed all that equitably he can claim he acquired by reason of the representation that was made at the time of the loan. It seems reasonable that before such a lien should ripen, a party succeeding to the legal, title of Silas through the instrumentality of the bank judgment, the execution thereon, the sale, certificate of sale, failure to redeem, the deed given in pursuance of the sale, should be given an opportunity to protect his right by requiring the mortgagee to-resort to the other property embraced in the mortgage first, and only resorting to the property acquired by the plaintiff for the purpose of recovering any sum necessary to liquidate in full the lien thus acquired. It does not seem appropriate at this time to fully consider and determine all the equities the defendant may be entitled to assert, inasmuch as the evidence upon a new trial may differ from that before us in the present case. We forbear further comment, having reached the conclusion that the technical, legal title of Silas N. Carman did not pass from him by virtue of the mortgage, but remained in him and was acquired by the plaintiff in virtue of the deed which he placed upon record before the foreclosure sale and the deed given thereafter, which was ■subsequently recorded.

tf these views are correct, the judgment of the special term should be reversed and a new trial ordered, with costs to abide the event

J udgment reversed and a new trial ordered, with costs to abide the event

Merwin, J., concurs; Martin, J., not voting.


source: Caselaw Access Project

author: Hardin, P. J.

license: Public Domain

text:
    Annie B. Winkler, an Infant, Resp’t. v. I. Belle Schlager, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    Married women—Liability on contract for services.
    Defendant, a married woman residing with her husband, wrote several letters to plaintiff in which she stated her needs and wants in respect to a servant girl and the duties which would be imposed upon plaintiff if she entered into the service proposed. Defendant’s husband having been made aware of the negotiations sent plaintiff his mileage book, with directions when to come. Held, that the referee erred in holding that the wife and not the husband was liable for the services of plaintiff.
    Appeal from a judgment entered in Broome county, on the report of a referee appointed by the county court of that county, in favor of the plaintiff for $68.20 damages, and $94.90 costs.
    In the complaint it is alleged “ That on or about May 13, 1889, the plaintiff and defendant entered into an agreement whereby the plaintiff undertook and agreed to render her services to the defendant as nurse maid and second girl from about said date for a period of eight months continuously; in consideration whereof the defendant agreed to so employ the plaintiff during said period and to pay her for her services at the rate of ten dollars each month. That the plaintiff entered upon her employment under said agreement and duly discharged all the duties thereof until about June 21, 1889, up to which time she received of defendant the sum of ton dollars, when she was discharged by the defendant without any fault on her, this plaintiff’s, part, and that she has been ever since and still is ready to perform such agreement on her part, and at the time of such discharge she offered to perform said agreement on her part in full, but the defendant then refused and still refuses to allow her to do so or to pay her therefor, to her damage of seventy dollars.”
    The answer admits the payment of ten dollars, and alleges payment “for any and all services rendered.” She also sets up as a defense “ That at the time of the making of the supposed contract, the defendant was the wife of Charles Schlager, and said contract was not made in or about the carrying on of any trade or business by her and did not relate to and was not for the benefit of her separate estate, and is not a charge thereon.”
    The referee finds “ That on and prior to May 9, 1889, the said plaintiff came from Catskill, Greene county, H.Y., and entered into a contract with the said defendant, whereby the said plaintiff agreed to render services for the defendant ‘ as nurse girl, to do her own washing and ironing, keep the parlor and defendant’s room in order, and take care of baby,’ for the term of eight months at least, and to commence working May 13, 1889, at the price of ten dollars per month; - * * * the said defendant agreed to-pay said plaintiff for such services ten dollar’s per month for said term, and the plaintiff had no knowledge that defendant was acting as agent for any person in making such contract.”
    The referee also found “ That the defendant, I. Belle Schlager;, was for several years, and prior to June 7, 1889, a married woman, residing with her husband Charles Schlager, at 87 Chenango street, in the city of Binghamton, H. Y., and was supported by him, as a member of his family, and attending to the household duties of her home; and also was not engaged in any trade or business, and had no separate estate; and that on said June 7, 1889, her said husband died.”
    He also found that the plaintiff “ entered upon the discharge of her duties under said contract May 13, 1889, and she was paid by said defendant for one month’s services June 14, 1889, and she-continued working for said defendant under said contract until June 21, 1889, when the said defendant, without any just and sufficient cause, discharged the said plaintiff from any other or further services under said contract.”
    The referee also found “ that the said plaintiff was ready and willing to render the services for the defendant, as she had agreed to do under said contract, during the term for which she was employed, and was ready and willing to work during said term, but. did not find the same kind of employment, but did other work during said term, for which she received the sum of eight dollars.” As a conclusion of law the referee found “that the contract, mentioned in the finding of fact herein marked second is a good and valid contract, and was binding upon the defendant, and that upon the discharge of the plaintiff from services under said contract, the said defendant became liable to the plaintiff for damages.”
    Also, “ that upon the evidence given upon the trial of this action, the plaintiff is entitled to recover from the defendant.”
    Upon the request of the defendant the referee found “ that the-said letters written by the defendant contained all the stipulations, and agreement made by defendant in regard to hiring the plaintiff, except on May 9th, 1889, defendant told plaintiff to commence work May 13, 1889.”
    The referee also found “that said letters were written by defendant at the dictation and request of the husband, the said Charles Schlager.”

      Ho also found. “ that plaintiff had-no knowledge that the letters were dictated.”
    He declined to find “ that the defendant wrote the said letters, and proposed hiring the plaintiff as the agent of her husband.”
    He found “ that the said Charles Schlager replied to the proposition of the plaintiff, and stated when she should commence her services; that he enclosed his mileage book on the Delaware & Hudson R R., that she could use the mileage book to pay her fare from Albany to Binghamton.”
    He also found “ that the plaintiff came to Binghamton, paying her fare from Albany to Binghamton with said mileage book.”
    He also found “ that the plaintiff entered into said agreement, and undertook said services, knowing that the defendant was a married woman, residing with her husband, and that the services were to be performed in the family of said husband.”
    Also, “ that the plaintiff commenced work on the 13th day of May, and labored in the family of the said Charles Schlager, caring for his children as nurse, and performing the duties oí a domestic, until June 21st, following."
    He refused to find “that the plaintiff has not shown an intention on the part of the defendant to become bound personally to pay the wages, or to charge herself therefor.”
    He also refused to find “ that the alleged contract was for services to be performed for the husband, Charles Schlager.”
    He also refused to find “ that the services actually rendered were for the said Charles Schlager.”
    He also refused to find that “ the alleged agreement was not the defendant’s contract.”
    He also refused to find “ the alleged obligation was not created by her, in or about to carry on a separate trade or business, or for the benefit of a separate estate.”
    He also refused to find as conclusion of law “ that upon the evidence in this case the plaintiff cannot recover in this action.” He also refused to find “ that the evidence does not show or establish a liability on the part of the defendant to the plaintiff within the limits of resposibility on the part of married women.” Also, “that any contract of the defendant was made as the agent of her husband, who is alone liable thereon.”
    He also refused to find “ that the defendant, being the agent of her husband, is not liable upon the alleged contract.”
    He also refused to find “ that the alleged contract having been for services in the family of the husband and for his benefit, the plaintiff was bound to assume that the defendant was acting as the wife or agent of her husband, and the defendant cannot be held liable thereon.”
    He also refused to find “ that, as the wife of Charles Schlager, the defendant was authorized to hire necessary servants for the family, and as she was apparently pursuing the authority given her, she is not liable upon the contract.”
    He also refused to find “ that the natural and legal presumption is that the agreement of the defendant was made in properly and naturally conducting the affairs of the family."

      Also, “ that the marital duties of the husband required him to pay for the services of the plaintiff, and any agreement on the part of the defendant to pay the same is void.”
    He also refused to find “ that the alleged agreement having been for services to be rendered the husband, Charles Schlager, any agreement on the part of the defendant to pay the plaintiff therefor was void for want of consideration.”
    Proper exceptions were taken to the findings as made and to the refusals to find as requested.

      Albert H. Sewell, for app’lt; T. B. & L. M. Merchant, for resp’t
   Hardin, P. J.

Defendant’s first letter to the plaintiff was dated March 13, 1889, and her second letter addressed to the plaintiff was dated April 30; the letters stated somewhat minutely the needs and wants of the defendant in respect to a servant girl and the duties that would be imposed upon the plaintiff if she entered into the service proposed. It appears in the testimony of the plaintiff, as a witness, that the husband of the defendant, having been made aware of the negotiations had by his wife with the plaintiff, communicated with the plaintiff. Plaintiff testifies, viz: "He, Mr. Schlager, sent me his mileage book in May, about the 7th, a few days before I started.; he sent it with a letter; I have not the letter. Last saw the letter in May, 1889, at Catskill; have not seen it since; do not know where it is. * * * He said I shouldn’t be in a hurry about coming, that they won’t quite settled yet; he said book was enclosed for my fare from' Albany to Binghamton, which I could use; I think of nothing else; I did use it from Albany to Binghamton ; that was the first said about fare by either party; I used it and came on May 9 ; at that time Mr. Schlager was living at 87 Chenango street with the defendant, his -wife; * * * I understood he had occupied the premises for some months before I came; he said in the letter they were cleaning house; he did not say when they would be ready for me, or when they would be through cleaning house;. Mr. Schlager had one child, two years old ; a portion of my duties was to take care of that child, and the other duties were in his family about the house.” We think it was incumbent upon the plaintiff to show that her employment was by the defendant and not by the husband. We think the evidence indicates that the defendant was acting as the agent of her husband in writing the letters to the plaintiff, and her services were engaged for and in behalf of the husband. From the testimony of the plaintiff in respect to the letter received from the husband, together with the other facts and circumstances disclosed in the evidence, it is quilo apparent that the plaintiff understood that her services were requested in the household of the husband and for his benefit; the services to be rendered were for the benefit of the husband therefore.

'In Smith v. Allen, 1 Lans., 105, Johnson, J., says; "Goods purchased by the wife upon credit for family use are the goods of the husband, and the husband, and not the wife, is liable to pay or them, unless there is some special ageement between the parties, by which they are sold to the wife for her exclusive use, and upon the credit of her separate property, and not upon the credit of the husband.”

In Kegney v. Ovens, 18 St. Rep., 482, it was held, viz.: “If the party dealing with the wife knows she is a married woman living with her husband and the order is of a character to indicate that it is for the benefit of her husband’s family, he is hound to presume that she is acting for her husband and cannot hold her personally liable unless she expressly agrees to become so.”

In Dickinson v. Ensign, 31 St. Rep., 651, it appeared that the articles were charged to the defendant on the plaintiff's books and that the plaintiff from time to time rendered statements of the account to the defendant, who examined, corrected them and made payments thereon, and “ the referee found that defendant directed that the articles should be charged to her.” The case differs essentially from the one before us and does not aid the contention of the plaintiff.

In Cutter v. Morris, 26 St. Rep., 508; S. C., 116 N. Y., 310, it appeared the services were rendered by an architect for the benefit of the separate estate of a married woman, and she knew at the time, and was consulted at length about them; and upon a, review of all the evidence given in the case, the court of appeals (second division), reached the conclusion that upon the whole evidence “as the services in question were rendered for the benefit of the separate estate of the defendant and she knew at the time,” a question of fact was presented which “ should have been submitted to the jury.” We see nothing in that case which aids the plaintiff.

In Von Mullen v, Fuhrmann, 56 Hun, 402; 31 St. Rep., 739, the referee found that the groceries “ were sold by the plaintiff and delivered to the said testatrix, at her request and for her benefit and on her sole responsibility, and that during such time she was the owner of real property in her own right.” The evidence before us in this case would not support a similar finding of fact, and the findings made by the referee do not come up to the finding in the case from which the quotation is made.

Although the enabling act of 1884, Oh. 381, Laws of 1884, authorizes a married woman to enter into a contract, as explained in Dickerson v. Rogers, 114 N. Y., 408; 23 St. Rep., 750, and although since the passage of that act she is bound by her contracts, we think the act does not give the plaintiff the right of recovery in this case; the important and pivotal question is whether the employment was the employment of the husband or of this defendant. Tiemeyer v. Turnquist, 85 N. Y., 516. Upon the whole evidence we think the contract of employment claimed in the case was with the husband, and that the evidence fails to disclose an intention on the part of the defendant, the wife, to become personally liable upon the contract for the servant’s services to be performed in the family of the husband. Whitford v. Laidler, 94 N. Y., 145; Strong v. Moul, 22 St. Rep., 762. We are of the opinion that the referee fell into an error in holding that the wife and not the husband was liable upon the alleged contract made for the services of the plaintiff. We are therefore of the opinion that the judgment should be reversed upon the law and facts.

> Judgment reversed on the law and facts and a new trial ordered, with costs to abide the event.

Martin and Merwin, JJ., concur.


author: Hardin", P. J.

text:
    The People, Resp’ts, v. Elmer J. Bosworth, App’lt.

      Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    1, Burglary—Corroboration of accomplice—Charge.
    Defendant was indicted for burglary in the third degree. On the trial one K. testified that A. and he committed the crime, and that the defendant counseled and induced the crime. The court charged that “ there is testimony of witnesses other than K., which, if tme, might tend to connect the defendant with the commission of the crime, hut whether such testimony is true or if you believe it to be true, whether it is sufficient to connect defendant with the commission of the crime here charged, I submit as questions of fact. It is not necessary that the evidence corroborative of that of an accomplice should be sufficient to show the commission of the crime or to connect the defendant with it; it is sufficient if it tends to connect him with it.” Held, that the charge was proper.

      2. Same—Sufficiency of indictment.
    An indictment for burglary in the third degree of one who counseled and procured the doing of the crime, alleged that the person so counseled feloniously, willfully and burglariously did break and enter the building of B. with an intent to commit a crime therein, and with an intent feloniously, wilfully and unlawfully to steal, take and carry away therefrom the goods, chattels and personal property in said building then and there being, whereby the said defendant did become a principal in the commission of the said offense, and he, the said defendant, did then and there feloniously break and enter the building of said B. with an intent to commit a crime therein, and with an intent to steal, etc. Held, sufficient to uphold the charge of the crime of burglary in the third degree.

      Z. Criminal Law—Indictment—Second offense.
    Sections 688, 689, Penal Code, relating to second offenses, are valid, and it is proper to allege in an indictment the evidence which would establish that the crime charged is a second offense.

      4. Evidence—Res gestae.
    The acts and declarations of a party about the time of the commission of the crime with which he is charged are evidence agamst him.
    •5. Same—Wife of accomplice.
    K., as a witness for the People, testified that he was a party to the crime and under indictment for it. After he had testified, his wife was called as a witness, and the objection made that she was an incompetent witness. Held, that she was a competent witness.
    ■6. Same.
    One F., in behalf of the defense, testified as to a conversation held with K., defendant’s accomplice, and t.he time of the same. Thereafter IC. was recalled by the prosecution and permitted to testify as to the time of the conversation referred to by F. Held, proper to fix the date of the conversation.
    Appeal from a judgment of conviction of the crime of burglary in the third degree rendered against appellant by the court of sessions held at the city of Binghamton, county of Broome, on the 13th day of July, 1891; also from an order of said court denying a motion made in behalf of the defendant in arrest of judgment entered July 13, 1891. Also an appeal from the order of said court of sessions made July 13, 1891, which denies a motion made in behalf of the defendant for a new trial on a case and exceptions, made and settled on the ground that the verdict is contrary to law, and that the verdict is against the evidence, and on .the exceptions taken on the trial, and also from the judgment “ adjudging the defendant to be guilty of the crime of burglary in the third degree, and adjudging that he be sentenced to the state prison at Auburn for the term of five years and three mouths," which was entered in the Broome county clerk’s office August 18, 1891. The indictment charged that the appellant on the 19th day of October, 1890, at the town of Dickenson, “feloniously, willfully and burglariously did counsel, command, induce or procure one Archie Adams, feloniously and burglariously then and there to break and enter the building of one S. Melvine Baird, with an intent to commit a crime therein, and with an intent feloniously, willfully and unlawfully to steal, take and carry away therefrom the goods, chattels and personal property in said building then and there being; and the said Archie Adams in pursuance of the said counsel, command,.inducement or procurement of said Bosworth, did then and there feloniously, willfully and burglariously break and enter the building of the said Baird with an intent to commit a crime therein and with an intent feloniously, willfully and unlawfully to steal, take and carry away therefrom the goods, chattels and personal property in said building then and there being; whereby the said Elmer Bosworth did become a principal in the commission of said offense, and he, the said Bosworth, then and there feloniously, willfully and burglariously did break and enter the building of said Baird with an intent to commit a crime therein, and with an intent feloniously, willfully and unlawfully to steal, take and carry away therefrom the .goods, chattels and personal property in said building then and there being, contrary to the statute in such case made and provided.”

      A. D. Wales, for app'lt; W. D. Painter, dist. atty., for resp’ts.
   Hardin", P. J.

It was proper to charge in the indictment the ■defendant as a principal. Section 29 of the Penal Code provides as follows: “A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal” The theory of the prosecution is that the defendant directly or indirectly counseled, commanded, induced or procured Archie Adams and Thomas ICehoe to commit the crime charged in the indictment, The verdict of the jury is to the effect that the defendant is guilty as principal. See People v. Kief, 34 St. Rep., 528; S. C. affirmed, 37 id., 478; People v. Bliven, 112 N. Y., 79; 20 St. Rep., 486.

Thomas Kehoe was called as a witness, and testified that Adams and he committed the crime; and he also “implicated" the defendant; and he states that the defendant counseled and induced the crime.

In People v. Williams, 29 Hun, 522, we had occasion to say • “ The testimony of an accomplice is not sufficient to convict of a crime,’’ and to quote § 399 of the Code of Criminal Procedure, which is as follows: “A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.’’ When the People rested, the defendant moved for his discharge, among other grounds, that the People had “failed to connect the defendant with the commission of the offense charged in the manner required by § 399 of the Code of Criminal Procedure.” In response to the motion, the court observed : “ The People have proven a series of conversations and circumstances from which I assume they will argue it does corroborate Kehoe and connect the defendant with the transaction ; you will undoubtedly argue that it does not; and whether it does, and if it does, it is sufficient to convict him of the crime, is a question of fact for the jury.; the court cannot take it away from them, and the motion must be denied.” The defendant took an exception to the ruling.

In the course of the charge the learned county judge said : “There should be some fact testified to entirely independent of the evidence of the accomplice which taken by itself leads to the inference not only that, a crime has been committed, but that the defendant is implicated in it. I charge you, in this connection, that there is testimony of witnesses other than Thomas Kehoe, which, if true, might tend to connect the defendant with the commission of the crime, but whether such testimony is true, or, if you believe it to be true, whether it is sufficient to connect the defendant with the commission of the crime here charged, I submit as questions of fact to you under the rule which I have just laid 'down. In this connection I say to you that it is not necessary that the corroborative evidence itself should be sufficient to show the commission of the crime or to connect the defendant with it; it is sufficient if it tends to connect the defendant with the commission of the crime.”

.The defendant took an exception to that portion of the charge. After a careful reading of the evidence and reflection thereupon, giving full force and effect to all the testimony and circumstances revealed, we are of the opinion that the court of sessions committed no error in refusing to direct a verdict for the defendant or in the language used in the charge. We are of the opinion that the evidence tended to corroborate Kehoe, and besides his evidence the prosecution produced “ such other evidence as tends to connect the defendant with the commission of the crime."

In People v. Hooghkerk, 96 N. Y, 149, the court, in giving construction to § 399 of the Code of Crim. Pro., holds that “it does not require that the whole case shall be proved outside of the testimony of the accomplice, but simply requires evidence from an independent source of some material fact tending to show not only that the crime has been committed, but that the defendant was implicated in it.”

In People v. Everhardt, 104 N. Y., 591; 5 St. Rep., 793, it was said that the section was complied with “ if there is some other evidence fairly tending to connect the defendant with the commission of the crime charged, so that the conviction will not rest entirely upon the evidence of the accomplice. The question as to whether the evidence is sufficient corroboration is for the determination of a jury.”

In People v. Elliott, 106 N. Y., 292; 8 St. Rep., 703, is was said: “It is not necessary that the corroborative evidence of itself should be sufficient to show the commission of the crime, or to connect the defendant with it. It is sufficient if it tends to •connect the defendant with the commission of the crime. * * * The court, before it should submit the case to the jury, should be satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of a crime, and when there is, then it is for the jury to determine whether the ■corroboration is sufficient to satisfy them of the defendant’s guilt. ”

(2) It is insisted in behalf of the appellant that There is an absolute failure to prove the crime of burglary in the third degree with which the prisoner stands charged and of which he was convicted.” The indictment alleges that the defendant “ feloniously, willfully and burglariously did break and enter the building of the said Baird with an intent to commit a crime therein, and with an intent feloniously, willfully and unlawfully to steal, take and carry away therefrom the goods, chattels and personal property in said building then and there being; whereby the said Elmer Bosworth did become a principal in the commission of the said offense, and he, the said Bosworth, then and there feloniously, willfully and burglariously did break and enter the building of .said Baird with an intent to commit a crime therein, and with an intent feloniously, willfully and unlawfully to steal, take and carry away therefrom the goods, chattels and personal property in said building then and there being, contrary to the statute in such case made and provided, and against the peace of the People of the state of New York and their dignity.” We think the language .sufficient to uphold the charge of the crime of burglary in the third degree. Section 498 of the Penal Code provides that, “ A person who, either (1) with intent to commit a crime therein, breaks and enters a building or a room or any part of a building x x x js guilty of burglary in the third degree.”

Larceny is defined in § 528 of the Penal Code, where it is provided that “ A person, who, with intent to deprive or defraud the true owner of his property or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, either (1) takes from the possession of the true owner * * * or secretes, withholds or appropriates to his own use or that of •any person other than the true owner any money, personal pr iperty * * * steals such property and is guilty of larceny.” The jury were warranted by the evidence in finding that the horse was taken “ From the possession of the true owner * * * with intent to deprive ” the owner thereof, and that the horse was secreted with like intent. In People v. Dumar, 106 N. Y., 508; 11 St. Rep., 19, in speaking of § 528 of the Penal Code the court .said, “We find * * * certain acts enumerated, either one of which performed by any person with intent to defraud the true owner of his property or of its use or benefit, or to appropriate the same to the use of the taker, or of any other person, makes him guilty of larceny and he, in the language of the Code,, steals such property. The crime is committed when with that intent a person either, first, takes such property from the possession of the true owner or of any other person, etc.” In Harrison v. The People, 50 N. Y., 518, it was held “ To constitute the offense of larceny there must be a taking of the goods from the power or control of the owner. A temporary possession, however, by the thief, though but for a moment, is sufficient.”

In Peoples. Pollock, 51 Hun, 615; 22 St. Rep., 64, the court in commenting upon § 528 of the Penal Code, and the requirements thereof, said “ To constitute guilt there must be evidence of intent to deprive or defraud the owner, and the-jury jnust find such criminal intent as a fact upon the evidence before a conviction can be had.”

In the case before us the court in its charge to the jury, after calling their attention to the statute as to burglary, said, the-offense alleged was that “ of breaking and entering the building on the night in question with the intention of committing a crime.” There was no request to make the charge more definite or specific.

In support of the learned counsel’s argument in behalf of the appellant, citation is made to The People v. Woodward, 31 Hun, 57. In that case the defendant was convicted of grand larceny, having taken a horse from the stable of one Jewell, and killed and buried it in a pit. There was a request that the court charge-that “ There must be an intent on the part of the taker to reap some advantage or benefit from the taking; ” and it is stated in the course of the opinion, viz.: “ Thus the court neglected and refused to point out the essential ingredient of the crime of grand larceny, whereby the defendant may have been convicted of a felony, while the facts and the charge were equally applicable to a misdemeanor.” Ho such request and refusal is found in the case before us. If it be assumed that the killing of a domestic animal is malicious mischief, as held in People v. Smith, 5 Cowen, 258, and a crime, Loomis v. Edgerton, 19 Wend., 419, and that the same is a violation of § 654 of the Penal Code, it might be said with some plausibility that commencement or inception of the crime took place when the horse was taken from his stall in,the barn; however, that question was not agitated at the trial or presented, either by a motion at the time the People rested, nor at. the close of the evidence, nor was the court requested to charge upon that subject, and therefore we forbear any further comment thereon.

In People v. Richards, 5 N. Y. Crim., 364; S. C., 44 Hun, 283; 7 St. Rep., 657, it was said in the opinion “It is not needful to a conviction that an intent to steal or an intent to commit a felony,’ shall be shown, provided the intent to commit any other crime is averred and established.” Although that case was reversed as appears, 108 N. Y., 137; 13 St. Rep. 515, it was upon another ground, to wit: “ That the building, erection or enclosure ” was not embraced within § 496 of the Penal Code, it being observed in the course of the opinion, page 497, viz.: “We simply intend to decide this case and no other; ” and “ when we come to examine the indictment and the proof giving a description of the structure we come to the belief that it was really nothing more than a grave above ground.” We are of the opinion that the indictment sufficiently alleged facts constituting burglary, and that the evidence warranted a finding of the essential facts constituting the crime of burglary in the third degree.

(3) It seems to have been held that a prior conviction to- be available in increasing punishment for a second offense must be alleged in the indictment. People v. Youngs, 1 Caines, 37, decided in 1803; People v. Price, 6 N. Y. Crim., 141.

In People v. Stanley, 47 Cal. 113; S. C., 17 Am., 401, it was held that “A statute providing that a person shall be subjected to an increased punishment upon conviction for a second offense is not in violation of a constitutional provision that no person shall be twice put in jeopardy for the same offense ; ” the opinion in that case cites 9 Grratt., 742, in which it was held that a similar statute in Virginia was not unconstitutional; and the opinion, also cites 2 Pick., 170; and 2 Mete., 413, as cases approving of a similar statute.

In Gibson v. People, 5 Hun, 542, the indictment set out a former conviction, and in the course of the opinion of Her win, J., delivered in that case, it was said: “ The charge in the indictment should be so alleged as to be intelligible in its legal requisites, and inform the defendant of what he has to meet; ” and in Wood v. The People, 53 N. Y., 511, it was said: “ The discharge in one of the ways mentioned in the statute is as material and necessary to constitute the offense as the prior conviction.

“ The facts of the imprisonment upon the prior conviction, and the manner of the discharge must, therefore, be alleged and proved.” Wood v. The People was referred to approvingly in Phelps v. The People, 72 N. Y., 355.

In the People v. Cook, 45 Hun, 37; 9 St. Rep., 412, in referring to a statement in an indictment, it was said “it is to be deemed a first offense unless the contrary is charged.” We are of the opinion that §§ 688 and 689 of the Penal Code relating to second offenses are valid, and that it was proper to allege in the indictment the evidence which would establish that the crime charged in the indictment was a second offense, and to give proof thereof upon the trial. People v. Price, 53 Hun, 185; 24 St. Rep., 934; S. C., affirmed 119 N. Y., 650; 29 St. Rep., 993.

In People v. Raymond, 96 N. Y., 38, it was said that “the first offense is not made an element of, or included in the second, but is simply a fact in the past history of the criminal, to be taken into consideration in prescribing punishment therefor;” and in the opinion in that cage it was said, “the language of the Code makes no reference to second offenses of the same character or grade with the first. It contains no such limitation, and we think none should be intended. Its reason was obviously independent' of any such similarity. That the accused has already been convicted of a felony, or an attempt to commit one, or of a 1 petit larceny,’ shows that punishment has done him no good; that no reformation was effected; that he is a persistent criminal, towards whom mercy is misplaced; and by reason of this character of the man, thus shown by his conduct, greater severity of punishment is prescribed. The reason is the same whether both crimes are of similar character, or of the same grade or not. Both are crimes, and the perpetration of the second, however different, shows such a persistence in evil, such a continued criminality, as to justify and make prudent a severer penalty than should be inflicted upon the first offender-. If we adopted the construction sought, a prisoner-might have been convicted, of many felonies, and yet by judicious changes from one to another, or running up or down the different grades, escape entirely the penalty of a second offense.”

Sections 688 and 689 provide for additional burdens upon offenders,-and are not affected by the provision in § 714 of the Penal Code, permitting persons convicted of any crime to be competent witnesses in any civil or criminal cause.

(4.) After Fannie Keough had detailed a conversation which she held with the defendant the next day after the alleged offense, she was asked the following question: “ Q. Now 1 ask her how he appeared ? This was objected to as improper and incompetent; she is not competent to give any evidence of that'kind.” In response, the court observed: “ I think she ought to state what he did and said.” Thereupon the question was put to her: “ Q. You may state what he didjor said, if anything?” The objections were renewed, and the witness answered: “ He walked the floor, and he was very nervous.” Thereupon the counsel for the prisoner objected to and moved .to strike it out, “ and if it were shown it would have no sort of bearing upon this case.”

The court observed : “It may stand.” And thereupon the defendant duly excepted. The motion to strike out was too broad. In People v. Wentworth, 4 N. Y. Crim., 207, we held that “ where a part only of an answer is irresponsive a motion should be made specifically to strike out the irresponsive portion.” The following question was then put to the witness, viz: “ Q. Gro on ? A. He drank a good deal. Objected to as improper, irrelevant and incompetent. Objection overruled and defendant duly excepted. A. He was lying in bed part of the time, then he would get up and walk the floor. Same objection, ruling and exception.”

In Lindsay v. People, 63 N. Y., 154, Allen, J., says: “The question to the witness Moore as to the conduct of the accused about the time of the alleged murder was not objectionable. The acts and declaration's of a party are evidence against him, and whether they tend to fix a crime upon him is for the jury.” We think the exceptions are unavailing.

(5) Thomas Keough, who was concerned in the commission of the offense, was called, as á witness in behalf of the People, and testified in effect “ that he was a party to this crime and is under indictment for it;” and it was conceded he was under indictment for it. After he had testified, his wife, Fannie Keough, was called as a witness, and after she was sworn the defendant’s counsel was permitted to ask preliminary questions of her, and after it appeared that she was the wife of Thomas Keough it was objected that she was an incompetent witness. The objection was overruled and defendant took an exception. We think she was a competent witness. Haskins v. The People, 16 N. Y., 344.

Chapter 182 of the Laws of 1876 provided that “ All persons jointly indicted shall, upon the trial of either, be competent witnesses for each other the same as if not included in the same indictment ;” and in People v. Dowling, 84 N. Y., 484, it was held error to refuse the “ testimony of Myron Dowling, though he stood jointly indicted with the defendant in error;” and § 715 of the Penal Code provides that “ The husband or wife of a person indicted or accused of a crime is in all cases a competent witness on the examination or trial of such person.”

'People v. Petmeclcy, 2 FT. Y. Grim., 458, is an authority for holding that the wife of the defendant may be called as a witness against him in virtue of § 715 of the Penal Code, though she may not be compelled to disclose any confidential communication passing between herself and her husband during their marriage.

In Wixson v. People, 5 Parker, 127, it was' said: If it was proper to allow Lockwood to be sworn (an accomplice), of course it was no error to admit his wife. She would not have been competent had her husband been incompetent as an accomplice.” Upon the trial of the People v. Lindsay, supra, Vader, an accomplice, was sworn as a witness.for the prosecution, and she gave evidence tending to corroborate her husband. The conviction was affirmed by this court, 5 Hun, 104, and by the court of appeals, 63 N. Y., 143.

(6.) In behalf of the defense, A. P. Fish, an attorney, who had. been employed to defend Keough before a justice, was called as a witness, and he testified that on .the forenoon of October 20th, Monday, Mrs. Keough called at his office and asked him to appear for Keough, and that on that evening he went up to Bosworth’s house, and in Bosworth’s private sitting room had an interview with Bosworth, who was lying in bed or on the bed, and that he there arranged to see Keough in the morning, “and tell him to keep still” He also testified “Bosworth did not have anything to say on the subject of keeping his mouth shut; I said it myself; Bosworth was lying there in bed.” At a subsequent stage of the case Fish was called for further cross-examination,- in which he stated that he saw Keough at the jail Tuesday forenoon; and he also testified: “I did not ask him at that time who was at the bottom of it; I did later in the week, but not then ; I only saw him once Tuesday; he did not tell me at the time that Bosworth was at the bottom of it." In the course of his re-direct examination^ in response to the counsel of the defendant, he stated: “It was Friday forenoon the first he ever told me anything like that Bosworth was at the bottom of it” Thereafter Thomas Keough was recalled for the People, and - testified: “ I saw Mr. Fish at the jail Tuesday morning, and had a conversation with him.” Against the objection and exception of the defendant, he was permitted to testify that the conversation referred to by Fish occurred on Tuesday morning. We think it was proper to fix the date of the conversation.

Appellant has called our attention to other exceptions taken during the progress of the trial, which have been examined, and we are not satisfied that any of them present error which ca’ls for a reversal. People v. Gonzalez, 35 N. Y., 49; § 542 Code Crim. Pro.

We think the verdict of the jury should stand and defendant serve out his sentence and the judgment upon the verdict remain.

Judgment and order of the court of sessions of Broome county affirmed, and the clerk directed to enter judgment and remit certified copy thereof with the return and decision of this court to the court of sessions of Broome county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure.

Martin and Merwin, JJ., concur.


text:
    Martha E. Seymour, Resp’t, v. The Spring Forest Cemetery Association et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    Trustees—Accounting.
    A cemelery association purchased land and issued bonds in payment therefor, the sellers being the trustees of the association. In an action against the association and its trustees, by a bondholder, for an accounting, the validity of the bonds was contested on the ground that trustees cannot speculate with corpoiate property or deal with it as their own, or use it to promote their individual interests in buying or selling trust property. The corporation went into possession of the land, sold and conveyed the same, and to a large extent received the proceeds of such sales. Held, that the defendants were not in a position to avail themselves of the defense, for at the time of the purchase the owners had the absolute fee and had no trust duties towards the real estate.
    In March, 1890, upon a stipulation, an order was entered referring the issues to Hon. F. R. Gilbert, to hear and determine. November, 1890, Erasmus D. Robinson died, and the parties stipulated that the action proceed without bringing in his representative. April 17, 1891, the referee made his report. On the 18th of June, 1891, at a special term an order was granted that an interlocutory judgment be entered, and “ the form of said decree or judgment be and hereby is settled in the form hereunto annexed and the same hereby directed to be entered in the clerk’s office of Broome county.” At- the conclusion of the formal parts of the judgment it was provided, viz: “That on the coming in of the report of the referee herein appointed, this court may and shall make such further and other orders, judgment or decrees as shall be necessary to fully carry out and enforce this judgment”

      In the interlocutory judgment authorized by the special term, it was provided “ That Stratton S. Knox, Esq., of Cortland, K Y., be and hereby is appointed a referee to take and state the accounts as herein provided; that said- defendants account before said referee for all the receipts arising from the sale of lots and the sale of timber, from July 1, 1878, to July 1, 1889, and that said referee proceed with diligence to take such account and report to this court * * * and said defendants are required to appear before said referee, from time to time as he may direct, and submit to examination under oath before said referee ; ” and it contained the further language, to wit: “ That should it appear on said accounting that any of the monies received by the defendant corporation, and which should have been paid on said bonds, have been misappropriated' by said defendants, then that said plaintiff may have a personal judgment against said defendants, Tracy R. Morgan, Job M. Congdon, Benjamin Devoe, Edward B. Stephens, Alonzo C. Matthews, Harris G. Rodgers, Robert Brown and Cyrus Strong for the same with execution, so that plaintiff shall suffer no loss.” The defendants appeal “ From the order of the special term "* "* * on the 30th day of Juno, 1891, settling the form of the judgment or decree herein and from each and every part of said order. The said defendants also appeal from the judgment, decree or interlocutory judgment entered herein in favor of the plaintiff and against the defendants, in the clerk’s office in the county of Broome, on the 30th day of June, 1891, which judgment among other things awards the sum of $1,-445.88 as costs to the plaintiff herein.”
    A case and exceptions containing all the evidence was settled on the 11th day of January, 1892, by the referee.
    January 12, 1892, the appellants served a notice of motion, to be heard at the February term of this court, “ for a rule or order of the court granting a new trial herein and for such other and further relief as may be just, with costs.”

      A. D. Wales and &. L. Sessions, forapp’lts; M K. Ciarle, for resp’t.
   Hardin, P. J.

Plaintiff in her complaint sets out several bonds alleged to have been issued by the corporation defendant of which she has become the owner and “entitled to all the moneys and rights secured by said bonds ; ” and she alleges that no accounting has been rendered to the holders of the bonds of the income and receipts of the Spring Forest Cemetery Association since July 1, 1878, although a demand has often been made therefor in behalf of the owners of the bonds; and she alleges that Erasmus D. Robinson, Tracy R Morgan, Job N. Congdon, Benjamin Devoe, Edward B. Stephens, Alonzo C. Matthews, Harris G. Rodgers, Robert Brown and Cyrus Strong, “ claim to be and are acting as trustees of the said The Spring Forest Cemetery Association ; that they have the custody of all the money and property of the said The Spring Forest Cemetery Association; - * * "*

that only a very small portion of the moneys received by the said The Spring Forest Cemetery Association has been paid on said bonds since July 1, 1878; that a large sum of money, but what amount plaintiff is unable to state, further than that it is between five thousand and twenty-five thousand dollars, at the time this complaint is made, has been received by the defendants which is applicable and should be applied on said bonds; that said defendants neglect and refuse to make any account whatever; refuse to recognize the validity of said bonds and refuse to make 'any payment on said bonds, although such account and payment have often been demanded.” In the prayer of the complaint she asks for “ An accounting by defendants of all the receipts of the said The Spring Forest Cemetery Association since July 1, 1878; that the amount applicable to said bonds may be ascertained, deducting all payments made on said bonds since July 1, 1878, and that plaintiff be paid the net amount applicable on said bonds with interest on the sums withheld from the time the payments withheld should have been applied ; and the plaintiff further demands that defendants, Erasmus D. Eobinson, Tracy E. Morgan, Job N". Congdon, Benjamin Devoe, Edward B. Stephens, Alonzo C. Matthews, Harris Gr. Eodgers, Eobert Brown and Cyrus Strong, be held personally liable for the payments so withheld and be adjudged to pay the same ; and plaintiff asks for such other and further relief as shall be just”

Among other things set up in the answer by way of defense, it is alleged “ That said alleged, bonds were made and signed without any authority or right of either said association or of its trus-. tees or officers to make or issue the same, and contrary to law, and against public policy; that said alleged bonds were not the acts or obligations of said association, and said association was not and is not bound or obligated thereby, and said alleged bonds were unauthorized, illegal, ultra vires and void.” The referee found as conclusions of law, viz:

First. That the plaintiff is the owner of $21,000 of the bonds issued by the defendant corporation, and entitled to all monies, principal and interest remaining unpaid thereon.

Second. That the bonds constitute a valid and legal indebtedness in favor of the plaintiff against the corporation defendant, “ having been given as the consideration for tlie title of the lands known as the Spring Forest Cemetery and the improvements thereon, and the time and money expended.”

Third. That the plaintiff is entitled to an accounting by the defendants of all the receipts from the proceeds of sales of lots since July 1st, 1878, and the amounts applicable to the payment of the said bonds ascertained and stated, and that there should be deducted from said sum all payments made on said bonds since July 1st, 1878, and that the plaintiff be paid the net sum applicable to the payment of the said bonds, with interest on the same from the time said payments were withheld, “ and that there should be an accounting between the plaintiff and the defendants for the purpose of ascertaining and stating the exact amount that remains unpaid on said bonds, namely, the $21,000 principal and interest on the 1st day of July, 1889, the time when this action was commenced."

Fourth. To a decree stating the balance due, and “directing said proceeds after deducting all payments on said bonds to be applied in payment of said bonds, principal and interest, and directing that all such proceeds thereafter received be applied in payment of said bonds, by applying upon the Doubleday bonds fifty per cent, of all said receipts, and upon the balance of said bonds seventy-five per cent, of all said receipts, until the entire balance thereof, principal and interest, is paid according to the terms and provisions of said bonds.”

Fifth. That the plaintiff is not entitled to a judgment against the defendants Erasmus D. Robinson, Tracy R. Morgan, Job JSf. Congdon, Benjamin Devoe, E. B. Stephens, Alonzo 0. Matthews, Harris Rodgers, Robert Brown and Cyrus Strong “for having mis appropriated the funds so received by them unless upon an accounting it shall appear that they have misappropriated said funds.” Sixth. That the plaintiff is entitled to a judgment “ in accordance with the foregoing findings, with costs, and judgment is hereby directed to be entered thereupon accordingly.”

The Spring Forest Cemetery Association was organized under chapter 133 of the Laws of 1847. The existence of the corporation was recognized by the legislature in chapter 323 of the Laws of 1860, and the “ acts of the said trustees, secretary, superintendent and treasurer are hereby declared to bo valid notwithstanding the failure of the association to elect trustees annuÉly as required by its certificate of incorporation and the statutes of this state entitled ‘ of rural cemeteries.’ ” It is competent for the legislature to recognize the continued existence of a corporation. Matter of N. Y. Elevated R. R. Co., 70 N. Y., 327, and cases cited in manuscript opinion of this court in Beattys v. Town of Solon, decided at this court In the third section of the act of 1847, corporations organized under the act were allowed to “ have and possess the general powers and privileges and be subject to the liabilities and restrictions contained in the third title of the eighteenth chapter of the first part of the Revised Statutes.”

Subdivision 4 of § 1 of the Revised Statutes confers powers “ t.o hold, purchase and convey such real and personal estate as the purposes of the corporation shall require: ” and in the second section of title three it is provided: “The powers enumerated in the preceding section shall vest in every corporation that shall hereafter be created, although they may not be specified in its charter, or in the act under which it shall be incorporated.” From the provisions of the law to which reference has been had it is obvious that the corporation defendant had power to purchase real estate, and that in pursuance of the power thus given to the corporation a purchase was made in behalf of the corporation and a conveyance taken of the property in its improved and bettered condition on the day of June, 1854; and the corporation had power “ to hold ” such real estate. Incident to the exercise of the powers conferred, was the right, duty and power to pay for property purchased immediately or at such subsequent time as might be agreed upon between the seller and the purchaser. Brady v. The Mayor, 1 Barb., 591. Appellant calls our attention to N. Y. State Loan & Trust Co. v. Helmer, 77 N. Y., 71, which we think does- not aid his contention.

In that case, the act done was in direct violation of the charter of the corporation, and was in direct conflict with the legal enactments, and it was therefore held that the notes taken in violation of law were void. The bonds in suit were issued in order to furnish the grantors of the property evidence of the indebtedness of the corporation for the property described in the deed received by the corporation; the bonds seem to have been authorized by the corporation; they are all of them executed by an acknowledged officer of the corporation.

In § 8 of the act of 1847, it is provided: “ The affairs and property of such associations shall be managed by the trustees, who shall annually appoint from among their number a president and a vice-president, and shall also appoint a secretary and a treasurer, who shall hold their places during the pleasure of the board of trustees.” The bonds all bore the signature of one or more of the principal officers of the corporation and the seal of the corporation. So far as the evidence discloses, the issuance of the bonds was sanctioned by the trustees and the officers having management of the affairs of the corporation. In addition to what has been said already as to- the power of the corporation to purchasedands and create a debt under the statute of 1847, it may be croserved that chapter 163 of the Laws of 1860 furnishes a legislative construction to the same effect. In the first section of the act of 1860, it is declared that “ it shall be lawful for the trustees of any rural cemetery association organized under the act * * * of 1847 * * * to fund any outstanding indebtedness for the lands purchased for cemetery purposes, or for moneys actually expended in preserving, improving and embellishing the cemetery gróunds, and to provide for the payment of such funded debt in the manner hereinafter provided.” While tire subsequent sections of the act of 1860 provide for certificates giving additional regulation in respect to the mode of securing the .indebtedness, we think nothing in the act implies that the power did not exist to secure or evidence the indebtedness by bonds in the manner in which the corporation defendant evidenced its indebtedness.

After a careful persual of the evidence and consideration of the ' various circumstances attending the transaction, we are of the opinion that the referee was warranted in concluding that the transaction was free of fraud in fact, and that there was no fraudulent intent on the part of the vendors at the time of the delivery of the deed; nor do we think there was any fraud in receiving -the bonds pursuant to the arrangement that was entered into between the corporation and the vendors. After the lapse of the great number of years it is difficult to ascertain the exact extent of the improvements, embellishments and betterments, and the expenditures thereof which had been made upon the property-antecedent to the execution and delivery of the deed. In addition to the evidence fnrnished upon that subject the lapse of time coupled by the admissions made by the numerous officers having in charge the affairs of the corporation, with the inferences to be drawn from the long delay and their several acts in the premises, were sufficient to warrant the referee in concluding that the bonds were issued for an adequate consideration received by the corporation in liquidation for its just indebtedness to the obligees. At the numerous meetings of the trustees the validity of the bonds, according to the minutes kept of such meetings, seems to have been recognized; even after there were some uncertainties in the minds ■of the officers of the corporation as to the amount of any payments that had been made there seems to have been a uniformity of opinion that the bonds were evidence of an indebtedness of the corporation; and that it was the duty of the corporation to ascertain the amount due on the bonds and to liquidate it, and we think the referee was warranted in reaching the conclusion that the bonds were not fraudulent in fact, or issued for an illegal consideration, or in violation of any express provision of law. King v. Barnes, 109 N. Y., 268: 15 St. Rep., 52. Nor do we think the referee committed any error in refusing to find that the bonds were “ void as the fruit of a speculation in the burial of the dead.” We think the concluding remark in the opinion in Matter of Estate of Straut, 126 N. Y., 214; 36 St Rep., 936, where there had been a delay, as here, of over thirty years, is quite appropriate, viz: “ After the lapse of so much time he cannot well claim that doubtful questions of law or of fact should be resolved in his favor.”

(2) It is insisted in behalf of the appellants that the referee erred in holding that the bonds constituted evidence of a valid and legal indebtedness against the defendant association, and in refusing to find that the bonds were illegal and void as against public policy according to several requests made by the defendants; and our attention is called to the general principle that trustees cannot speculate with the corporate property or deal with it as their own, or use it so as to promote their individual interests in buying or selling trust property. We recognize the force of the rule of equity referred to by the appellants’ counsel and mentioned in the cases of Barnes v. Brown, 80 N. Y., 535; Munson v. Syracuse G. & C. R. Co., 29 Hun, 79; S. C., 103 N. Y., 58; 3 St Rep., 31. We think the appellants are not in a situation to successfully avail of the principles - invoked. At the time the arrangement was made for the purchase of the property the owners thereof had the legal, absolute fee, and as such owners they had no trust duties towards the real estate. After the corporation was brought into existence and they had become its officers and trustees, they were charged with fiduciary trust towards the corporation and with trust relations towards its property. The corporation consented to pinchase the property of the grantors and receive from them a deed, and the corporation acting through the trustees went into possession of the property conveyed; retained the same ; sold, conveyed, and to a very large extent has received the proceeds of sales made by it, and made no effort to rescind the arrangement made between the corporation and the grantors; the corporation and the trustees in office at the time of the commencement of this action took no steps to rescind the purchase of the lands ; to return the improvements or return the moneys expended to bring about the embellishments, improvements and addition to the real estate furnished by the grantors prior to the execution of their deed. We think the doctrine of Munson v. Syracuse, G. & C. R. Co. 103 N. Y., 58; 3 St. Rep., 31, does not apply, as was said in the opinion of Barr v. N. Y., L. E. & W. R. R. Co., 125 N. Y., 278; 34 St. Rep., 743, “ Where the contract was executed, and its results retained and enjoyed long after the opportunity for repudiating it because of the facts underlying the transaction; ” the case differs from the Munson case, and the others to which reference has been made.

The corporation in the case before us had the right to elect to continue, as it did continue to enjoy the beneficial results derived through the instrumentality of the conveyance made to it. In Barr v. Railroad Co., supra, it was said that it is “quite incompatible with the principles upon which equity proceeds to'hold and use property, the only right to which is derived through a contract of lease and to refuse payment of a part of the rent stipulated in the contract on the ground of the existence of fraud in its procurefnent; * * * There can be no such fast and loose playing with legal rights.” Duncomb v. N. Y., H. & N. R. R. Co., 84 N. Y., 191.

In Coleman v. Second Ave. R. R. Co., 38 N. Y., 203, which was an action to recover an alleged indebtedness of $200,000, it was held there could be no recovery as “the plaintiffs and their assignors had not any grant, license or franchise of any validity or value.”

The case of Butts v. Wood, 37 N. Y., 317, was an action to set aside the proceedings of defendants as directors in allowing the claim for “ extraordinary compensation;" and it was said that the claim was illegal and fraudulent; “ being a fraud upon the stockholders, the action was properly brought against the three trustees to recover the damage they had caused.” These cases differ from the one before us, and are not inconsistent with the doctrine laid down in Barr v. Railroad Company, 125 N. Y., 278; 34 St. Rep., 743.

(3) We think the evidence produced before the referee warranted his conclusion that an account should be stated of the funds in the hands of the corporation remaining applicable to the payment of the indebtedness held by the plaintiff.

(4) The extent of the liability, if any, of the defendants other than the corporation is in effect undetermined by the referee. When the hearing shall be had upon the accounting the facts in-regard thereto will be developed and a conclusion be reached more intelligible than can be declared upon the present state of the evidence. We forbear to express any opinion upon that subject .at this stage of the case.

(5) Numerous exceptions have been taken to the findings and refusals to find; many of which are disposed of by the views we have already expressed; others have received attention, and bearing in mind that this is an equity action we have not found in any of the exceptions such error as calls for a disturbance of the conclusion of the referee. Church v. Kidd, 3 Hun, 254.

' A point is made that the referee erred in the exercise of his discretion as to the costs of the action. Considering all the aspects of the case as they appear in the appeal book, we are not prepared to say that he abused the discretion, and therefore do not disturb his conclusion in that regard. Section 1022, Code Civ. Pro.

In Church v. Kidd, 3 Hun, 271, a similar question was presented, and the court observed, “ In equity actions the granting or withholding of costs rests in the discretion of the trial court,” and the action of the referee was sustained. However, it may be observed, the discretion might have been reserved to the court until after the coming in of the supplemental report. See note to Hathaway v. Russell, 7 Abb. N. C., 149. We are inclined to sustain the report of the referee as to costs.

(A) As regards the appeal from the order settling the judgment to be entered upon the report of the referee, we think the order should be modified so as to provide that the judgment should conform to the language of the referee’s report Those portions of the judgment that transcend the language of the referee’s report should be eliminated.

(B) The motion made before us for a new trial should be denied. Undoubtedly the referee, to whom the whole issues were referred, might have stated and adjusted more fully the rights of the parties than he has done; howex'er, we are of the opinion that in accordance with his suggestion the court had poxver in settling the interlocutory judgment to be entered upon his report to direct a further hearing before the same or another referee. Such practice seems to be sanctioned by Mundorff v. Mundorff, 1 Hun, 41; Produce Bank v. Morton, 40 Superior Court, 328; Burbank v. Fay, 65 N. Y., 65; Church v. Kidd, 3 Hun, 254; Hathaway v. Russell, 7 Abb. N. C., 138; Maicas v. Leony, 50 Hun, 180; 19 St. Rep., 705; S. C. affirmed, 113 N. Y., 619 ; 22 St. Rep., 149.

If the referee had reserved to himself the power to settle the form of the interlocutory judgment, it is reasonable to suppose that the interlocutory judgment would have been made in harmony with his findings.of fact and conclusions of law. Application, however, was made to a special term upon the referee’s report for an order settling the form of the interlocutory judgment. Apparently, from the record, as well as from what transpired before us upon the argument, the special term omitted to take up the report and examine it in detail, and compare its language with the language of the proposed interlocutory judgment; but, on the contrary, granted a general order allowing the interlocutory judgment in the language proposed by the plaintiff. Upon an inspection of the interlocutory judgment it seems to be found it contained some language not warranted by the phraseology found in the referee’s report. It would have been orderly to have inserted in the interlocutory judgment the conclusions of law stated by the referee, it should be allowed to stand. Some parts of the decree seem to be in excess of the findings made by the referee.

We think such portions of the decree should be stricken therefrom, and the order settling the decree, and the decree itself, should be modified accordingly. The foregoing views leads us to the following conclusions:

(1) The motion for a new trial is denied.

(2) The order and interlocutory judgment should be modified in the respects stated in the opinion, and as so modified affirmed, with costs of this appeal.

Motion denied.

Order settling the interlocutory judgment and the interlocutory judgment modified in accordance with the opinion, and as modified affirmed, with costs of this appeal.

Merwin, J., concurs ; Martin, J., not sitting.