author: Follett, J. Van Brunt, P. J.

text:
    Mary Ann Campbell, Pl'ff, v. William Morgan, Def't.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Deed—Consideration.
    A conveyance made to an adopted daughter in consideration of companionship, care and services rendered by her as housekeeper and nurse for many years, is based on a valuable consideration sufficient to uphold the grant.
    3. Same—Words on conveyance.
    A statement in a deed that “ I do give, bequeath and convey,” is sufficient to carry the fee to the grantee; the words “give, bequeath,” are surplusage, and do not affect the validity of the instrument as a conveyance.
    8. Same—Description.
    A description of the property as the house occupied by the grantor. with a reference to deeds accompanying the conveyance for a more full description, is sufficiently definite.
    4. Same—Delivery.
    * A delivery of the deed to a third person, to be delivered to the grantee after the death of the grantor, is sufficient to vest the title in the grantee.
    Submission of a controversy pursuant to § 1279 of the Code of Civil Procedure.
    On the 30th day of November, 1850, William Jarvis and Eunice B., his wife, conveyed to Peter Broadfoot, by a warranty deed dated that day, and recorded December 30, 1850, in the clerk’s office of the county of Westchester, in book 155 ot" deeds, page 298, the fee of a lot of land in the then town of West Farms, 117 feet and 8 inches long by 100 feet in width. The grantee entered into possession of the lot, resided thereon November 24, 1880, and continued to reside thereon until his death. He never parted with the title, or any interest therein, until the execution of the instrument dated November 24, 1880. He died intestate April 16, 1881, leaving no descendants, but leaving several collateral relatives entitled to inherit any realty of which he died seized.
    Mary Ann Campbell was born March 18, 1847, and in 1853 she was adopted by Peter Broadfoot and thereafter, and until her intermarriage with James W. Campbell, on the 20th of April, 1891, was called Mary Ann Broadfoot. The adoption was not in the mode provided by the statutes of this state, but she lived in the family with Peter Broadfoot until his death, and was treated as an adopted child. July 11, 1866, the wife of Peter Broadfootdied and thereafter, and until his death, the adopted daughter lived with and cared for him, acting as his housekeepe'r and nurse until his death. November 24, 1880, Broadfoot signed, sealed, and December 7, 1880, acknowledged and delivered to Andrew Milligan an instrument, of which the following is a copy:
    “ Broadway, Twenty-fourth Ward,
    “New York City, November 24, 1880.
    “ This document setteth forth that I, Peter Broadfoot, in my seventy-seventh year, of sound mind and memory, do in consideration of the fact that my adopted daughter, Mary Ann Broadfoot, has since the death of my beloved wife been my housekeeper, and been most devoted and self-sacrificing'in her efforts to minister to my wants and comfort, and by her uniform kindness and companionship has done much to make my life pleasant and enjoyable. And, also, in consideration of the fact that were she so minded she could, in law and equity, claim in compensation for her services to me from the year 1866 until the present time.
    “ Therefore," for these and other reasons, I do give, bequeath and convey to my adopted daughter, the said Mary Ann Broad-foot, the house and lot of ground which we now occupy, together with the entire premises, and all the real and personal property of every kind and name, to have and to hold for her own personal use and to dispose of in such manner and time as she may please.
    “A full description of the property herein conveyed will be found in the deeds accompanying this document (except the personal), which are signed and sealed in one package. And be ir known and understood that this conveyance does not come into force until after my death and funeral, and that the package be not opened or this document put on record before my funeral has taken place.
    “ I hereby appoint my friend, Andrew Milligan, of 82 Third avenue, New York city, to be the custodian of these papers and see that their provisions are duly complied with.
    “ Given under my seal and signature, this)
    24th day of November, 1880. (
    “Peter Broadfoot. [l. s.]
    “ Witnesses:
    “Andrew Milligan, 83 Third avenue, [l. s.]
    “State of New York, 1 City and County of New York, j "
    “ On this seventh day of December, in the year one thousand eight hundred and eighty, before me personally came Peter Broad-foot, to me known and known to me to be the individual described in and who executed the foregoing instrument, and acknowledged that he executed the same.
    “ We H. Biblet,
    “ Notary Public (No. 1), City and County of New York, Third avenue, corner of Ninth street.”
    When this instrument was executed, it, and the deed from Jarvis to Broadfoot, were sealed in an envelope and delivered to Milligan, with directions to deliver them to his adopted daughter after his funeral, which was done, and since which time she has remained in the peaceable possession of the lot, claiming title thereto in fee simple under the foregoing instrument, which was recorded May 3, 1881, in the office of the register of the city and county of New York, in book 1594 of deeds, at page 346.
    December 29, 1892, the parties to this submission entered into a witten executory contract, by which Mary Ann Campbell agreed to sell, and William Morgan agreed to purchase, the premises described in said deeds for $5,000. One hundred dollars of the purchase price was paid on the execution of the contract, and the remainder was agreed to be paid on the 13th day of January, 1893, when Mary Ann Campbell was to convey an unincumbered estate in fee simple in the premises to Morgan. Between December 29, 1892, and January 13, 1893, Morgan necessarily expended $94.25 for an examination of the title, which was reported to be defective, and on that ground he refused to take the deed tendered.

      James R. Marvin, for pl’ff; G. De Witt Clocke, for def't.
   Follett, J.

The question submitted is whether the instrument above set forth conveyed the premises in fee simple to Mary Ann Campbell. If the question is answered in the affirmative, judgment is to be rendered in her favor that Morgan specifically perform his contract; but if it is answered in the negative, judgment is to be rendered in his favor against Mrs. Campbell for $94.25, and interest thereon from January 13, 1893.

The instrument was executed by the owner of the fee of the subject of the grant, a definite grantee is named, and the instrument has sufficient parties to constitute a legal conveyance. The consideration recited is a valuable one, and sufficient to support a grant. The instrument contains sufficient words of conveyance: do give, bequeath and convey to my adopted daughter, * * * to have and to hold for her own personal use, and to dispose of, in such manner and time as she may please.” This language carried the fee to the grantee named. The words “give and bequeath” are surplusage, and do not affect the validity of the instrument as a conveyance, which is a deed, and not a will. The subject of the grant is described as follows: “ The house and lot of ground which we (the grantor and grantee) now occupy, together with the entire- premises, and all the real and personal property of every kind and name, to have and tó hold for her own personal use, and to dispose of in such manner and time as she may please. A full description of the property herein conveyed will be found in the deeds accompanying this document (except the personal), which are signed and sealed in one package.”

This description is sufficiently definite to convey the title to the lot in question as against the grantor and his heirs. Jackson v. Delancey, 11 Johns., 365; aff'd 13 id., 535; Jackson v. Delancey, 4 Cow., 427-432; Pond v. Bergh, 10 Paige, 140, 156; Thayer v. Fenton, 22 W. Dig., 85; Scully v. Sanders, 12 J. & S., 89; Wilson v. Boyce, 92 N. S., 320; Prettyman v. Waltson, 34 Ill, 175; Bird v. Bird, 40 Me., 398; Harmon v. James, 15 Miss., 111; Whitney v. Bukman, 13 Cal., 536; De Leon v. Higuera, 15 id., 483; Dyne v. Nutley, 14 C. B., 122; 1 Dart V. & P., 6th ed., 602; 3 Wash. R. P., 4th ed., 399; 1 Jones Mortg, §§ 65, 66.

The delivery was sufficient to vest the title in the grantea Hathaway v. Payne, 34 N. Y., 92.

In the case last cited a deed was executed upon the stipulation:

“ That the said deed shall not be delivered to Gideon R. (the grantee) during the life of Gideon (the' grantor) and his wile, or either of them, but shall remain in the possession of Edward Herrendeen, of Farmington, or his executors, administrators or assigns, to be delivered to the said Gideon R. Payne, his executors, administrators or assigns, immediately after the decease of said Gideon Payne and Phebe, his wife, as a good and valid.conveyance of all the lands therein contained.”

The deed was executed in November, 1839. The grantor died November 23, 1848 ; his wife Phebe died April 3, 1854. The grantor left a last will by which he empowered his executors to “ convey the real estate of which he should die seized.” The executors on the 22d of June, 1854, after the death of Phebe, granted the land described in the deed of November 25, 1839, to one Hathaway, who brought trespass against Gideon R. Payne. • A judgment was recovered by the plaintiff at circuit, and affirmed by the general term, but was reversed by the court of appeals, where it was held that the delivery by Herrendeen to Gideon R. Payne, after the death of the grantor and his wife, vested the title in the defendant.

See also Nottbeck v. Wilks, 4 Abb., 315; Grymes v. Hone, 49 N. Y., 17-22; Hunter v. Hunter, 17 Barb., 25; Crain v. Wright, 36 Hun, 74, aff'd 114 N. Y., 307; 23 St. Rep., 245; 3 Wash. R. P., 4th ed., 301.

The question submitted must be answered in the affirmative, and we hold that Mary Ann Campbell held the absolute fee of the.land at the time she entered into the contract with Morgan, who must specifically perform his contract.

Van Brunt, P. J.

I concur. That a deed be delivered by a grantor to a stranger to be delivered to grantee after death of grantor, such second delivery relating back to the first delivery, seems to have been long settled. Ruggles v. Lawson, 13 Johns., 284; Hatch v. Hatch, 9 Mass., 307; Shepard's Touchstone, 58 and 59 marginal paging; Washburn on Real'Property, vol. 2, 586, marginal paging.

O’Brien, J., concurs.


source: Caselaw Access Project

author: O'Brien, J.

license: Public Domain

text:
    Jacob C. Schuyler, Resp't, v. Hamilton Busbey et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Appeal—Reasons foe rulings. ,
    A defendant cannot take advantage on appeal of the reasons given by the court for a ruling on evidence in his favor, especially where it appears that any erroneous statement of law then made was subsequently cured by the charge of the court in submitting the case to the jury.
    2. Libel—Malice.
    The question of actual malice is to be submitted to the jury only in those cases where the element of an absolute or qualified privilege is present, and where, in order to recover, the plaintiff is obliged to prove actual malice. In other cases malice is presumed, and proof by defendant of no actual malice does not. present an issue of fact for the consideration of the jury upon which the plaintiff, in order to recover, must sustain the burden of showing actual malice, though it is proper that absence of such malice may be considered in mitigation of damages.
    Appeal from judgment entered on verdict and from order denying motion for new trial.

      H. M. Whitehead, for app'lts; De Witt C. Brown, for resp’t.
   O'Brien, J.

The defendants were publishers of a weekly newspaper in this city, known as the Turf Field and Farm, which was devoted to field sports, bench shows, public discussions in reference to dogs, breeding of horses and other kindred subjects. The plaintiff was, at the time of the publication complained of, engaged in business as a trainer of sporting dogs in the state of Virginia. On December 14, 1888, the defendants published a communication received from one of their correspondents headed, “ A Kennel to Avoid,” which, among other things, contained the following statement: “We have in my county a man by the name of Jacob 0. Schuyler, hailing from Lewistown, Pa., and who has established what he terms a training kennel, and, with a great flourish, claiming the name for it as ‘The Tammany Training Kennels, by Professor Schuyler.’ Upon my honor as a, man, and my character and reputation as a sportsman, I denounce this man as a consummate and unmitigated humbug, and his kennel as a pesthouse, from which dogs are weekly dragged off to rot upon the highway. He has several dogs of his own, which he obtained fraudulently, upon whom he lavishes all his attention, care and feed, while those of his customers are left to starve, to languish and die. If the statutes of Quístate recognized dogs as property, I could convict him of offenses which would send him to the penitentiary in forty-eight hours. His terms are so much money down, $15 or $20, and then so much per month. He receives his first payment, and that is pretty generally the last of the dog, though in several instances the fact has reached my ears that he continued to receive the monthly payments months after the dog was dead and forgotten.”

This publication, the plaintiff alleged, was made concerning him in connection with his business and was a “ false, scandalous, malicious and defamatory article.” The answer admitted the publication and the falsity, but denied that it was scandalous, malicious and defamatory, and by way of defense and in mitigation of damages alleged that the communication was received from a person with whom they had been in correspondence for more than twenty years, on whom they had a right to rely, that they published the same in good faith, believing it to be true, and that on their attention being called to it by the plaintiff ample opportunity was afforded him through the columns of the paper to rectify whatever injury was done by the publication, and that, in pursuance to this permission, the defendant used the columns of the paper, presenting testimonials and letters from many persons testifying to his good character and to his business ability.

During the progress of the trial the plaintiff was asked what became of his business after the publication. He had begun his answer when he was interrupted by the objection of the defendants, that there was no allegation in the complaint that the publication was false, and upon the further ground that, as the business was one relating to dogs and the training of dogs, which, at common law, were not deemed to be property, that with respect to that business one could-not be libelled.

The court, in sustaining the objection, said: “ As to the first ground, it is neither necessary to plead nor prove special damages, inasmuch as this is a case in which exemplary damages would necessarily follow unless the libel was excused or justified. For that reason I do not think it necessary to go into this proof. I think it is immaterial, and that it is sufficient to dispose of the objection.”

Although the ruling was in the defendant’s favor, he excepted thereto, and upon this appeal claims that he was injured by the statement of the reasons given by the court in ruling in his favor. It is conceded by the defendant that if there was any error in this statement of the law, it was subsequently cured by the charge of the court in submitting the case to the jury, and we fail to see, under those circumstances, how the defendant can avail himself of the exception taken to a ruling or the judge’s reasons therefor in his own favor. Counsel also is mistaken in his position that the complaint did not allege that the article was false, because, as we have already said, it was specifically stated therein to have been false, and this allegation of falsity was not denied by the answer.

Ho other exceptions were taken to the ruling of the court upon the evidence, and all the other questions raised are those presented by an exception to one statement of the judge and refusals on the part of the judge to charge certain requests presented by the defendants ; many of which, relating as they do to the same subject matter, may be grouped and disposed of together.

It is insisted that the publication was either absolutely or conditionally privileged, and, upon the theory that the evidence justified the court in holding that it was absolutely privileged, that it was error to refuse to instruct the jury that they must find a verdict in favor of the defendants, and that, though the evidence may not have gone to the extent of showing that it was absolutely privileged, there being no question but that it was conditionally privileged, the court was bound to instruct the jury to find a verdict in favor of the defendants, unless they were satisfied that the publication on the latter’s part was malicious.

We do not think either of these positions is sound. As remarked in Klinck v. Colby, 46 N. Y., 431: “As a general proposition, it may be said that the question of whether a publication is a privileged communication is one for the jury. That is to say, the court may determine whether the subject matter to which the alleged libel relates, the interest in it of the defendant, or his relations to it are such as to furnish the excuse.”

This view is not at variance with the rule laid down by text writers, that “it is'the province of the judge to decide whether a communication is privileged or not when the facts are undisputed. If, therefore, although the defendant alleges that he acted under an honest sense of duty, the judge can see no evidence of any circumstances raising such duty, he should rule that no prima facie case of privilege has been established.” Ogders on Libel and Slander, 2d ed., 163.

The evidence here showed that without examination or inquiry the publication was made, and the only excuse advanced was that it was published in good faith, without an intention to injure the plaintiff, on the assumption, without inquiry, that it was true. In Moore v. Francis, 121 N. Y., 207; 30 St. Rep., 467, what was said with respect to such an excuse will apply here : “ The evidence renders it clear that no actual injury to the plaintiff was intended by the defendants. But it is not a legal excuse that defamatory matter was published accidentally or inadvertently, or with good motives, or in an honest belief in its truth.” We have been referred to no authority, nor do we think that one can be produced, going to the length of holding that a newspaper is justified in publishing false, libelous and defamatory matter concerning a person, without inquiry or taking any means to ascertain the truth thereof, and thereafter claiming that the same is privileged because received from a correspondent and published regardless of the injury that it may do to the one unjustly defamed and injured.

Moore v. Francis, supra, is also authority for the proposition that “ in actions for libel, where the publication is admitted and the words are unambiguous and admit of but one sense, the question as to whether they are libelous is one of law, which the court must decide,” and that it is only where the publication is privileged that the burden is upon the plaintiff to show the existence of express malice in the publication of it; that otherwise no proof of malice is needed in the first instance. While, therefore, privilege rebuts the presumption of malice and shifts the burden so as to require proof of actual malice, it does not from this follow that in a case where the publication is not shown to have been privileged the defendants can entirely escape the results or consequences of a libel by showing that there was no actual malice present. A failure to note the distinction and appreciate the difference between malice presumed and actual malice as related to libel is very apt to produce confusion.

In Lewis v. Chapman, 16 N. Y., 369, it is said: “ Malice is essential to every action for libel. It lias been sometimes divided into legal malice, or malice in law, and actual malice, or malice in fact. These terms might seem to imply that the two kinds of malice are different in their nature. The true distinction, however, is not in the malice itself, but simply in the evidence by which it is established. In all ordinary cases, if the charge or imputation complained of is injurious, and no justifiable motive for making it is apparent, malice is inferred from the falsity of the charge. The law in such cases does not impute malice not existing in fact, but presumes a malicious motive for making a charge which is both false and injurious, when no other motive appears. Where, however, the circumstances show that the defendant may reasonably be supposed to have had a just and worthy motive for making a charge, then the law ceases to infer malice from the mere falsity of the charge, and requires from the plaintiff other proof of its existence. It is actual malice in either case. The proof only is different.”

This statement, particularly that portion which says that “ it is actual malice in either case,” is hardly exact. A more correct statement of the rule as to malice and its bearings upon actions for libel is to be found in the dissenting opinion in the case of of Samuels v. Evening Mail Association, 9 Hun, 294, which was adopted by the court of appeals in disposing of that case in 75 N. Y., 604. As therein said : “ The plaintiff in an action of libel gives evidence of malice whenever he proves the falsity of the libel. It becomes then a question for the jury whether the toalice is of such a character as to call for exemplary or punitive damages; and that question is not to be taken away from the jury because the defendant gives evidence which tends to show that there was, in fact, no actual malice. When he gives no such evidence, it is the duty of the court to say to the jury that upon proof of the falsity of the libel the plaintiff is entitled to exemplary damages in their discretion” (citing cases). “But where he gives evidence tending to prove the absence of actual malice, then it is the duty of the judge to submit to the jury the question, as one of fact, whether such malice existed in the publication.”

The same view is well expressed by Odgers on Libel and Slander, 3 (2d ed.), wherein it is said: “ The intention or motive with which the words were employed is, as a rule, immaterial. If the defendant has, in fact, injured the plaintiff’s reputation, he is liable, although he did not intend so to do and had no such purpose in his mind when he spoke or wrote the words. Every man must be presumed to intend and know the natural ordinary consequences of his acts; and this presumption (if indeed it is ever rebuttable) is not rebutted merely by proof that at the time he uttered or published the words the defendant did not attend to nor think of their natural or probable consequences, or hoped or expected that those consequences would not follow. Such proof can only go to mitigate the damages.”

The author, Odgers, in support of this view, quotes from Lord Bramwell in Abrath v. Northeastern R. Co., L. R., 11 App. Cas., 253, 254; 55 L. J., Q. B., 455; 55 L. T., 65, as follows: “ That unfortunate word ‘ malice ’ has got into cases of actions for libel. We all know that a man may be the publisher of a libel without a particle of malice or improper motive. Therefore, the case is not the same as where actual and real malice is necessary. Take the case where a person may make an untrue statement of a man in writing, not privileged on account of the occasion of its publication, he would be liable although he had not a particle of malice against the man.” But a plaintiff may, for the purpose of enhancing his damages, allege and prove that the defendant made the publication by reason of personal ill-will towards the plaintiff. This is particular, not general, malice, which is what the law presumes.

As already, said, therefore, the question of actual malice is to be submitted only in those cases where the question of an absolute or qualified privilege is present, and where, in order to recover, the plaintiff is obliged to prove actual malice. In other cases it is presumed, and proof by defendants of no actual malice does not present an issue of fact for the consideration of the jury upon which the plaintiff, in order to recover, must sustaiñ the burden of showing actual malice, though it is proper that absence of such malice may be considered in mitigation of damages.

This view, we think, is supported by the case of Moore v. Francis, supra, which holds (head note) that “ words written or spoken of a man in relation to his business or occupation■ which have a tendency to hurt, or are calculated to prejudice him therein, are actionable, although they charged no fraud or dishonesty, and were uttered without actual malice; and when proved, unless the defendant shows a lawful excuse, the plaintiff is entitled to recover .without allegation or proof of .special damage, as both the falsity of the words and resulting damages are presumed.”

The numerous requests made in regard to the measure of damages were properly refused by the court. Many of them were abstract propositions of law, in no way applicable to the case at bar, and many of them were repetitions of propositions already charged by the court, and some again were propositions of what counsel thought the law ought to be, and not what the law is. The testimony adduced on behalf of the defendants as to the circumstances under which the publication was received, and the absence of any feeling towards the plaintiff or bad faith in the publication, and the opportunity afforded to repair the damage done by inserting in the columns of the paper, in its subsequent issues, testimonials and certificates from those who knew the plaintiff, certifying to his character, was all dwelt upon by the judge in his charge, and submitted to the jury as facts to be taken into -consideration upon the question of mitigation of damages. And the court was not called upon, nor was it bound, to charge over again separately as to each particular piece of evidence or on each particular subject, when it had once clearly and explicitly charged, as favorably as the defendant had a right to expect, the very same propositions.

Upon an examination of the entire record, therefore, and the many questions presented by these requests, we fail to see that any error sufficient to authorize a reversal of the judgment was committed, either upon the question of the defendants’ liability for the publication, or the extent of the damages for which they were liable by reason thereof. Nor do we think, considering the character of the publication, that the damages awarded can be regarded as so excessive as to justify our interference with the verdict of the jury.

We are of opinion, therefore, that the judgment should be affirmed, with costs.

Van Brunt, P. J., and Follett, J., concur.


text:
    John L. Gross, Pl'ff, v. William L. Moore, Adm'r, et al., Def'ts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Will—Construction.
    Testatrix, by the residuary clause of her will, gave to her executor "all the rest, remainder and residue of my personal estate, to be distributed by him according to the instructions given him by me.” It'was not shown what the instructions were. Held, that the language negatived the idea that the executor was to keep the property as his own, or that he was vested with discretion to appoint a beneficiary.

      2. Same—Trust.
    The only testimony as to such instructions was of declarations of the executor that testatrix told him to dispose of the residue as he pleased, only so that her brother and sisters should not get any of it. Held that the trust attempted to be created was void for uncertainty and that as to the residue testatrix died intestate.

      Motion for a new trial on exceptions in action to obtain a construction of the residuary clause of the will of Harriet Gross, deceased.

      Cephas Brainerd, Jr. (Cephas Brainerd, of counsel), for pl’ff; H. Kettell, for def't, Moore, Timothy Davenport, for other def'ts.
   O'Brien, J.

By this action it is sought to invalidate the residuary clause in the will of Harriet Gross, deceased, which reads as follows :

“ I give, devise and bequeath unto my executor hereinafter named all the rest, remainder and residfie of my personal estate, to be distributed by him according to the instructions given him by me.”

Upon the trial it was not shown, either by writing or by parol, what these instructions were. The only testimony looking to this end was that given by a son of - the executor, who testified that his father told him “ that he had received instructions from Harriet Gross to dispose of that residuary portion as he pleased, only so that neither my brother nor my sisters can get any part of it.’ " This evidence was objected to on the grounds (1) that this witness could not testify to communications received by him from his father, the executor, as to oral communications made by the testatrix to the executor: (2), that parol declarations made by the testatrix as to her intention are not admissible in construing the will; (3), that the executor, if living, could not have testified to such oral communications, under § 829 of the Code; and (4), that such evidence was purely hearsay.

We think that the objection to such evidence was valid upon the last ground stated, if upon no other, but it is. not necessary to place our decision upon this ruling, because, if regarded as competent eyidence, and full force and effect be given to it, it would not change the conclusion to be reached; • for it will be observed that no suggestion is made as to who were to be the beneficiaries under the residuary clause : the testimony being directed to showing that the testatrix expressed a wish, and gave instructions, to exclude her brother and sisters, towards whom, it would appear, she occupied an unfriendly attitude. If, therefore, the clause is to be construed as a trust, and not an absolute gift to the executor, personally, then the only trust suggested is one to keep the property out of the hands of the next of kin. That such a trust is neither valid, nor within those enumerated and permitted by statute, requires no discussion.

As said in Holland v. Alcock, 108 N Y., 312; 14 St. Rep., 761: The existence of a valid trust, capable of enforcement, is consequently essential to enable one claiming to hold as a trustee to withhold the property from the legal representatives of the alleged donor.”

And upon the theory of a trust it is void for uncertainty, because no beneficiaries are designated, nor is there anything from which the court can determine who'were intended to be the beneficiaries of the testatrix’ bounty. In Tilden v. Green, 130 N. Y., 29, 45; 40 St. Rep., 512, the court say: “The remark oí Judge Wright in Levy v. Levy, 33 N. Y., 107, that ‘ if there is a single postulate of the common law established by an unbroken line of decisions, it is that a trust without a certain beneficiary, who can claim its enforcement, is void,' has been repeated and reiterated by recent decisions of this court, Prichard v. Thompson, 95 N. Y. 76; Holland v. Alcock, 108 id., 312; 14 St. Rep., 761; Read v. Williams, 125 N. Y., 560; 35 St. Rep., 909, and the objection is not obviated by the existence of a power in the trustee to select a beneficiary, unless the class of persons in whose favor the power may be exercised has been designated by the testator with such certainty that the court can ascertain who were the objects of the power.”

It is unnecessary, however, to further pursue the question of whether this is or is not a trust, for we do not think that the appellant relies upon this ground; his contention being that the executor, under the bequest, takes the absolute interest in the property bequeathed. It is insisted that the language used gave to the executor, in trust for himself, an absolute interest; that the beneficiary was definite and certain, and he was to do with the property as he pleased. That this contention is unsound we think is apparent, not only from the wording of the residuary clause itself, but by a consideration of the entire will. We think that the language directing that the residuum “ be distributed by him according to the instructions given him by ” the testatrix negatives the view that the executor was to keep the property as his own. It equally negatives the idea that he was vested with a discretion which, had it been conferred, might have induced the court to construe this into a power of appointment Apart, however, from this clause itself, if resort be had to the entire will it will be found that* when the testatrix intended to make an absolute gift of her property, she used apt and technical language to express her intention. Thus, with respect to the nine bequests given in other portions of the will, she adds, after designating the legatee, that he is to take “ absolutely and forever.” In the residuary clause the language used is entirely different, and is consistent only with the view that he was to take the property, not personally, and. for his. own use, but as executor, in trust for distribution in such proportions, and to such beneficiaries, as she, by her instructions to him,, had designated. Having reached the conclusion, therefore, that by the residuary clause a beneficial interest therein is not given to the executor personally, and it being clear that the trust attempted to be created is void for uncertainty, the learned trial judge was correct in his conclusion that as to that portion of the estate the testatrix died intestate.

It is suggested that the effect of this construction is to permit the very persons to obtain a large portion of her estate whom the testatrix intended to exclude. We are not responsible, however,, for her failure to carry out her verbally expressed intention to exclude her brother and sisters, who were her only heirs and next of kin. Under the law, these would take property which by will had not been otherwise disposed of; and as the law requires a valid disposition of one’s property, in order to prevent his heirs and next of lcin from taking, an intention to exclude them cannot be rendered effectual where the person, without having made any disposition oí the property, with respect thereto dies intestate. Ye are of opinion, therefore, that the exceptions should be overruled, and the motion denied, with costs and disbursements.

Van Brunt, P. J., and Follett, J., concur.


author: Van Brunt, P. J.

text:
    Henry W. T. Steinway, Resp't, v. William Steinway et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Pleading—Reply.
    A reply should not he required where the answer merely sets up evidentiary facts, as a party is not required to admit or deny evidence- set out in a pleading.
    2. Same.
    - . A stockholder brought suit against a corporation and an individual to compel the latter to pay the corporation certain profits arising from transactions alleged to have been received in violation of the rights of the corporation. One defense set up in the answer was that at a meeting of the corporation’s board of trustees the defendant offered to sell to the corporation, which offer was accepted unanimously in the presence of the plaintiff, who offered no objection, which action of the trustees was ratified by the stockholders, including plaintiff. Held, that a reply to such allegations should be required.
    Appeal from an order denying a motion to direct a reply to new matter in the answers under § 516 of the Code.
    , The complaint alleged that-while defendant Steinway 'was the president and managing agent of the defendant corporation he assisted in establishing a piano manufactory in Hamburg, Gferma'ny, which manufactured and sold pianos bearing the name of Steinway & Sons, in competition with the defendant corporation; that the German corporation were supplied with parts of pianos by the defendant corporation at a loss; that pianos manufactured in Ger many had been bought by defendant corporation at a price which gave the German concern large profits, and that thereafter defendant Steinway caused the defendant corporation to purchase the German business so as to secure large profits to himself.

      Geo. W. Cotterill, for app'lts; Sullivan & Cromwell, for resp’t.
   Van Brunt, P. J.

This actionwas brought, praying judgment that the defendant William Steinway be adjudged to pay over to the defendant, Stein way & Sons, certain profits which accrued to and were received by him from certain transactions set up in the complaint, which are alleged to have been received in violation of the rights of the defendant, Stein way & Sons. The answer denies many of the allegations contained in the complaint, and sets up a large amount of new matter by way of defense; and a motion was made to compel the plaintiff to reply to this new matter, which motion was denied, and from the order thereupon entered this appeal is taken.

In respect to a large part of the matter set up in the answer by way of defense, the difficulty in compelling a reply thereto is that it consists of the setting forth of evidentiary facts, and not the tendering of an issue of fact, or the allegation of a conclusion of fact; and, therefore, a reply should not be compelled, as a party is not required to admit or deny evidence set out in a pleading. But there is one defense set iip in the answer which does seem to tender an issue of fact, and in respect to which the defendants are entitled to know whether the issue tendered is to be admitted or denied, and, if admitted, how the plaintiff will seek to avoid the legal effect of the admission, so that the defendants shall not be surprised upon the trial; and this is the defense contained in the tenth paragraph of the answer. In that paragraph it is alleged, perhaps more in detail than is consistent with good pleading, that in December, 1889, at a meeting of the board of trustees of Steinway & Sons, at which the plaintiff was present, and all the trustees except one, who was then in Europe, the defendant, William Steinway, offered in writing to Steinway & Sons the business established in Hamburg, the German patents, trade-marks, good will, and personal property, upon certain terms therein specified; and that at said meeting the offer of said defendant was accepted unanimously in the presence of the plaintiff, who offered no opposition, and that said written offer and proceedings of the board accepting the same were duly entered upon defendant Steinway & Sons’ minutes, and that such action of the board of trustees was ratified by the then absent trustee upon his return from Europe; and that at said meeting all of the capital stock of the defendant corporation was duly represented, and all the stockholders ratified the acts of the trustees, including the plaintiff; and that, agreeably to said offer and acceptance, the said business, personal property, and good will were turned over to Steinway & Sons, who have ever since enjoyed and possessed the same. The defendants are entitled to know whether the plaintiff admits or denies these allegations in respect to the proceedings which resulted in a ratification by him of the transfer of this property to the defendant, Steinway & Sons; and, if he admits the facts, how he pro-. poses to avoid their legal effect, which matter in avoidance it may he impossible for the defendants to anticipate or be prepared for if thejr have no notice of its nature before it is produced upon the trial. I am of the opinion, therefore, that the order should be modified by requiring plaintiff to reply to the allegations contained in said tenth paragraph, and, as modified, affirmed, without costs.

O’Brien and Follett, JJ.„ concur.


author: Per Curiam.

text:
    Teresa Coughlin, Pl'ff, v. James Fay, Ex'r, et al., Def'ts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Submission of controversy—Infants.
    A general guardian lias no power to submit a cause of action, either on behalf of or against an infant, so as to give the court jurisdiction to adjudicate upon the rights of the infant.

      Submission upon an agreed state of facts for the purpose of obtaining a construction of the last will and testament of Owen Keenan, deceased.

      C. Strauss, for pl'ff; D. Daly, for def'ts.
   Per Curiam.

Upon an examination of the papers contained in this submission, it appears that there is an attempt to affect the rights of infants by such submission, and to make such infants parties to such submission by the action of their general guardians. We are aware of no way in which the court can acquire jurisdiction of infants except by action brought on behalf of the infanr by a guardian ad litem, or by the service of a summons, as prescribed by the Code, upon the infant. A general guardian has no power to submit a cause of action, either on behalf of or against an infant, so as to give the court jurisdiction to adjudicate upon the rights of the infant.

This attempted submission must, therefore, be dismissed.

Yan Brunt, P. J., O’Brien and Follett, JJ., concur.


text:
    Frederick P. Forster, Resp't, v. Charles E. Moore et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Service—Publication—Concealment to avoid service.
    A mere inability to serve process at a particular time is not sufficient to justify an order of publication on the ground that defendant is keeping himself concealed with intent to avoid service of process; it is only where evidence is furnished showing such intent that the order should be granted.
    Appeal from an order denying motion to vacate two orders, the first of which directed the service of the summons upon defendant by publication, and the second of which appointed James L. Mc-Neirny temporary receiver of the rents of Nos. 356-362 West One Hundred and Sixteenth street, in this city.

      Robert J. Robeson, for app'lts; Henry A. Forster, for resp't.
   Per Curiam.

If the order the services of the summons by publication was improperly granted, then the second . order appealed from, appointing a temporary receiver, must necessarily fall, because based upon the validity of the prior order. The single question presented is as to whether the affidavits contain sufficient evidence establishing the facts upon which to found an order of publication. The affidavits were directed towards showing that the defendants were keeping themselves concealed with intent to avoid service upon them of a summons. These affidavits state that on the 25th of February, 1893, two persons .attempted to obtain service,one in the morning, at nine o'clock, and the other at eleven o’clock of that day, and upon failure to obtain an entrance into the apartment occupied by the defendants, in which it would appear they then were, a statement was made that they were concealing themselves with intent to evade the ser vice of a summons. It may well be that such affidavits would be sufficient for substituted service under § 435 of the Code, which provides that where a defendant avoids service of a summons, •and cannot be served with due diligence, such an order may be granted. But for the purpose of obtaining an order of publication, which requires proof of intent, we think the mere failure to obtain admittance by two different persons on the same day to the apartments occupied by persons upon whom process is sought to be served hardly comes up to the requirements of the Code, of showing an intent on the part of such persons to conceal themselves.

In other words, a mere inability to serve process at a particular time is not sufficient to justify an order of publication against defendants, and it is only where evidence is furnished showing such intent that the order should be granted. We think that all that is here shown was mere inability to serve process; and, except the conclusions of the two persons who made the affidavits, there is no evidence which would have justified the court in concluding that the defendants were deliberately concealing themselves, with intent to avoid the service of a summons.

Although the merits of the action and the conduct of the defendants may be as claimed by the respondent, and sufficient facts were presented to confer jurisdiction upon the judge to act, still we think that, as the only point here is as to the weight to be ( given to the evidence presented by the affidavits, and having thereupon reached a conclusion contrary to that of the judge below, it follows that both orders must be reversed, with ten dollars costs and disbursements.

Van Brunt, P. J., and O'Brien, J., concur.


text:
    Daniel J Sprague, App'lt, v. The Bartholdi Hotel Co., Resp't.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Stay—Non-payment of costs.
    Where a plaintiff after being defeated in an action upon an alleged oral contract, brings action to reform, a written contract by inserting therein substantially the same matters litigated in the first action, and for damages for breach of the contract as reformed, it is proper to stay said action for non-payment of the costs of the former one on the ground that it is Yexatiously brought.
    Appeal from an order staying all proceedings on the part of the plaintiff until ten days after the payment of two judgments for costs recovered in a former action by the defendant' and against Sprague.
    The following is the opinion of the court below :
    Patterson, J.—This motion is one which should be granted. The simple statement of the case is that this plaintiff, Sprague, sued in the superior court to recover damages for the breach of a contract which he alleged to exist, and upon the establishment of which he would have been entitled to a recovery. That was an alleged oral contract, and the plaintiff was defeated ; and judgment was rendered against him, which was affirmed, and a large bill of taxed costs accrued against him. He has now brought another action in this court, in which he seeks to reform a certain alleged written contract by inserting therein matters which would create a liability—and they are substantially the same matters as, those litigated in the other action—and, after reforming the contract, to recover damages for the breach thereof as reformed. All this matter of what the parties had agreed upon was evidently, in. substance, gone over in the action in the superior court, and the-present suit seems to be a mere attempt,by a change of the scheme-of the action and the form in which it is instituted, to accomplish a result which has heretofore been unattainable. Under such circumstances the rule of law is plain as affecting this motion, and that is, where a second action is vexatiously brought the court, will stay it until the costs of the prior action are paid. It is true that under the old practice a court of equity never required the payment of costs in an action of law which involved the same subject matter as a condition of prosecution of a suit in equity unless,the suit was brought to vex the defendants. The books are full of cases on that point, but here, it seems to me, the case presented is of that character, and clearly demands that the motion should be granted, with ten dollars costs; order to be settled on two days’ notice.

      J. N. Bayes, for app'lt; C. P. & J. A. B. Cowles, for resp't.
   Per Curiam.

For the reasons given in the of the court belo.w, upon the decision of the motion resulting in the order appealed .from, we think the order was right, and should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: Follett, J.

text:
    John Turney, App'lt, v. Henry M. Van Gelder et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Assignment for creditors—Bar.
    An order and judgment discharging an assignee for the benefit of creditors, entered in an action brought against the assignee to compel an accounting, is not a bar to a subsequent action brought to set aside the assignment as fraudulent.
    2. Same."
    In an action brought to set aside as fraudulent an assignment for the benefit of creditors, it appeared that the unmanufactured stock, when it came into the assignee’s hands, was of little value and not marketable until it was manufactured, which was done by the assignors without compensation, but they were allowed to use the machinery to manufacture from new stock, furnished them by friends, until the old stock was disposed of, when the machinery was sold by the assignee. The sales of stock, machinery, etc., were duly advertised and fairly made, although the procee is amounted to only half the inventory estimate, and a portion was purchased by third persons in the interest of the wife of one of the assignors. Held, that in the absence of collusion, neither these facts nor the purchase of the property by third persons in the interest of the wife of one of the assignors, was sufficient to show fraud, and that the assignment should be sustained.
    Appeal from a judgment dismissing the complaint on th& merits; entered on the decision of a special term.

      For some years prior to May 9, 1887, Henry Van Gelder and Charles Van Gelder were partners, under the firm name of Van Gelder Bros., and engaged in manufacturing leather for hatters, at 97 Spring street, New York. On the date mentioned they made a general assignment to Henry J. Newton for the benefit of creditors. The partners were owing no individual debts, and the assignment covered partnership and individual property. By the assignment the employes of the firm were preferred. After paying those claims, the assignee was directed to pay the indebtedness of the firm to himself, and secondly the claims of three other creditors. After the payment of these preferred debts, the assignee was directed to distribute the remainder pro rata among the other creditors of the assignors. The assignee accepted of the trust and entered upon its execution. The usual notice to present claims-was sent to the creditors, and February 20, 1889, the plaintiff filed proof of his debt with the assignee. May 31, 1890, the plaintiff recovered a. judgment on this claim against the assignors for $15,506.68, and an execution was issued thereon, which was returned wholly unsatisfied. On the 26th of October, 1889, John M. Jones and others, who were judgment creditors of Van Gelder Bros., began an action in the supreme court against the assignee and assignors to compel the assignee to account for the assigned estate and distribute its avails among the creditors. The action was brought “on behalf of themselves and all other creditors of the defendants Henry Van Gelder and Charles Van Gelder who-shall come in, seek.relief and contribute to the expense of this action.”
    It was also alleged : “ That the question which is the subject of this action is one of common and general interest to many persons who are interested in said trust estate. That said creditors, as plaintiffs are informed and believe, are very numerous, and that some of them are unknown to plaintiffs, and cannot, with diligence, be found by them, and that it is impractical, therefore, for plaintiffs to bring them all before the court in this action, and for these reasons sues for the benefit of all.”
    The assignee answered. After issue joined, a reference was ordered to take and state the account of the assignee, to ascertain and report the amounts due and owing the plaintiff and the other creditors of the assignor. The referee was also directed to fix a date for the hearing, and give notice thereof to the creditors. The referee gave due notice to all creditors that the hearing would be had February 28, 1890. On July 7, 1890, the referee made his report, which, on the 7th of September, 1890, was confirmed by the court.
    It appears by the report that, after paying $660.75, the wages of employes of the firm, the expenses of the assignment, of the action and accounting, that there was insufficient to pay the preferred claim of the assignee. On the 17th day of Hovember, 1890, an order was entered in the action wherein Jones and others were plaintiffs, discharging the assignee and the sureties on his bond. The plaintiff had no notice that the was to be entered., nor of the motion to confirm the report, nor of the motion to discharge the assignee. On the 17th day of July, 1890, ten days after the date of the referee’s report, this action was begun to set aside the assignment, on the ground that it was executed with the intent, on the part of the assignors and assignee, to defraud the creditors of the assignors. ■

      Blumensiiel & Eirsch, for app’lt; E. H. Benn, for resp’ts.
   Follett, J.

The respondent insists that the judgment and the order discharging the assignee, entered in the action brought by Jones, are a bar to this suit, and cites, in support of his position, Kerr v. Blodgett, 48 N. Y., 62. Kerr's case was an action brought to compel the assignee to account. A previous action had been begun m the same court for the same purpose, by a creditor, in his own behalf, as well as in behalf of all others similarly situated. A decree was entered in the first action, and a report was made, which was confirmed before Kerr's action was begun. It was held that both actions being for the same purpose, that the second action could not be maintained. The facts in Kerr's case are more fully reported in 16 Abb., 137, and 25 How. Pr., 303. The case at bar does not ask for the saíne relief that was sought in the action brought by Jones, an accounting, but seeks to have the assignment set aside as fraudulent; The action of Jones was in aid of the" assignment, and the relief which this plaintiff seeks could not have been given in it. The order discharging the assignee has no greater force than .the judgment on which it rests.

The respondent also insists that the plaintiff cannot maintain this action because he verified and filed his claim with the assignee, and in support of this position he cites Cavanagh v. Morrow, 67 How. Pr., 241; Wilson v. Daggett, 9 Civ. Pro., 411, and McLean v. Prentice, 34 Hun, 504.

Cavanagh’s case was brought to set aside an assignment' as fraudulent. The plaintiff in that action had filed his claim with the assignee, and appeared on the accounting in the court of common pleas and interposed objections to the assignee’s account. The account and objections were referred to a referee, who made his report. It was held that Cavanagh, having filed his claim and participated in the accounting, had elected to take "under the assignment, and could not afterwards maintain an action to set it aside. In the case at bar, the court did not find that the plaintiff took part in the accounting, but simply that he verified and filed his claim with the assignee before action for accounting was begun.

In Wilson v. Daggett, it was held that a creditor who had filed his claim and proved it in proceedings for an accounting pending-in the common pleas, could not maintain an action to set aside the assignment Precisely what was done by the creditor on the accounting does not ap’pear in the report of the case. Ho action was pending to set aside an assignment, the question being whether the examination of the assignor in proceedings supplementary to execution should be limited to transactions since the assignment." The question now under consideration was not involved in that case.

In McLean v. Prentice, it was held an action brought several months after the assigned estate had been distributed under the decree of the court could not be maintained. In Schofield v. Scott, 3 N. Y. Supp., 496; S. C., 20 St. Rep., 815, it was held that filing a claim after an action had been brought to set aside an assignment as fraudulent was not a defense to the action. Whether a creditor who has verified and presented his claim to an assignee can thereafter commence and maintain an action to set aside an assignment as fraudulent does not seem to have been decided, and under the facts as found in this case it is not necessary now to determine the question. The court found that the assignment was not fraudulent in fact. The facts relied upon by the plaintiff as evidence of fraud were that the assignors were employed by the assignee to get the unmanufactured stock reády for market, and were, for the purpose, left in possession of the assigned estate, and that the assets of the estate brought but about fifty per cent of their actual value, as stated in the inventory.

The evidence is that the property, in the condition that it came into the hands of the assignee, was of little value and not marketable until it was manufactured into the article for which it was designed. The goods, consisting of skins, were made into “ hat sweats ” by the assignors for the assignee, and, when sold, the avails were deposited to the credit of the assignee in a separate account-. There is no evidence that the assignors derived any personal benefit from their employment, or that there was any understanding previous to the assignment that they should be employed. They received no compensation for their services, but were allowed to use the machinery to manufacture from new stock furnished them by friends. By the inventory the assets were estimated to be of the actual value of $8,585.86, but they brought only $4,433.21. It is argued that this is evidence of fraud, but there is no evidence that any of the property was wasted, or that any was sold for less than its value.

The court found, upon undisputed evidence, “ that as soon as the stock of the assigned estate had been disposed of, and in about the month of March, 1883, the assignee sold at auction the machinery, fixtures, furniture, and all the remaining unmarketable assets of the assigned estate. That said sale was openly, fairly and duly made, through Messrs. Mallaby & White, auctioneers, and the property was duly struck off to the highest bidder ; that thereafter the said assignee sold at public sale the undivided estate of Ilenrv Van Gelder, consisting of six lots of land at Fort Lee, New Jersey, to Benjamin W. Jones for $200, he being the highest bidder at such sale; that the course pursued by the assignee in the disposal of the stock and assigned estate was in the best interest of the creditors.” There is no evidence tending to show that these sales were not duly advertised and fairly conducted, nor that any of the property was sold for less than its value. The fact that this property was bid in by third persons, in the interest, and for the benefit of the wife of one of the assignors, is, in the absence of evidence that the sale was collusive, or that the property brought less than its worth, but slight, if any, evidence that the assignment was made with a fraudulent intent. There is no evidence that Mrs. Yan Gelder did not pay the full value of the property from her own means. If she ■did, she had the same right to purchase that any person had.

We think that the finding that the assignment was made in good faith, and not with intent to defraud creditors, is sustained by the evidence, and the judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Ernest St. George Lough et al., App'lts, v. A. Emilus Outer bridge et al., Respts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Carriers—Discrimination.
    A common carrier has the right to charge different sums for the transportation of goods on different occasions, and to provide a reduced rate on condition that all the consignor’s goods during a certain time be sent by the carrier’s line, so long as the same terms are offered to all shippers.
    Appeal from a judgment dismissing the complaint in an action instituted by the plaintiffs upon, allegations that the defendants, as carriers, had refused to grant them facilities and accommodation for the transportation of merchandise equal to those granted to other shippers.
    The plaintiffs are partners, under the firm name of G. F. Lough & Co., engaged in business at the city of New York as export commission merchants, shipping goods to the Windward islands. The individual defendants are engaged in business in the city of New York under the firm name of A. E. Outerbridge & Co., and are the agents of the Quebec Steamship Company, a Canadian corporation which" now is, and for nineteen years last past has been, engaged in carrying passengers, the mails and merchandise between the city of New York and the Windward islands. It has employed five or six iron steamers of the highest class in its business, and during the year 1892 a vessel left New York once in ten days. About six weeks is required to make a trip from New York to the islands and return. Vessels sailed from New York on days advertised, without reference to the quantity of cargo shipped For seven years prior to the commencement of this action the El Callao, a British steamer, has been engaged in carrying passengers and freight between New York and Ciudad Bolivar, a port in Venezuela. Early in 1892 this steamer began carrying freight from New York to Barbadoes, at which port she stopped on her regular trips to and from Ciudad Bolivar. She sailed from New York at intervals of fivé or six weeks, and her freight to Ciudad Bolivar was the principal feature of her business, but such space.as was not required for goods shipped to the latter port she filled with merchandise for Barbadoes and other islands on her route. On two occasions, when the El Callao was loading at New York for Barbadoes, the defendants reduced the regular rates of freight from New York to Barbadoes from forty to twenty-five cents per barrel to such shippers as sent all their freight during that week
      ~by the defendants’ line. In February and June, 1892, when the El Callao was loading for Barbadoes, the plaintiffs demanded that the defendants should carry, by one of its steamers, freight from New York to Barbadoes for twenty-five cents per barrel. This the defendants refused to do unless the plaintiffs would agree to .ship all their freight sent during the week of the sailing of defendants’ steamer by its line. The defendants have uniformly charged forty cents per barrel to all shippers, upon all occasions, except when a steamer of the defendants and the El Callao left New York during the same week. Forty cents per barrel is found to be a fair and just rate, and twenty-five cents per barrel is not profitable for the carrier.

      Hvarts, Ghoate & Beaman, for app’lts: Butler, Stillman & Hubbard, for resp’ts.
   Follett, J.

Prior to December, 1891, the established rate of freight from New York to Barbadoes was fifty cents per barrel, but in that month the defendants reduced the charge to forty cents, which remained the regular rate up to the time when this action was begun. The uncontradicted evidence is, that forty cents is a barely paying rate, and it is found as a fact that this rate “ was fair and just, and afforded a bare subsistence to vessels carrying at such rate.” It was also testified on the trial, and was not contradicted, “ that twenty-five cents is not a profitable rate, because we pay thirteen cents a barrel for the privilege of putting it ashore at Barbadoes, and four cents a barrel for putting it on board here.” The court found that “ the rate of twenty-five cents per barrel was not profitable.” In February and in June, 1892, the El Callao made the rate thirty cents per barrel. On Monday, February 29, 1892, the Cosmopolitan, one of defendants’ steamers, sailed from New York for Barbadoes. During the week before the El Callao was taking freight for the same place. The plaintiffs were the shipping agents of James H. Innis, and one of them testified that on the 25th of February he asked the defendants to carry, by the Cosmopolitan, 3,500 barrels to Barbadoes for twenty-five cents. 'This the defendants refused to do unless the plaintiffs would agree not to ship by the El'Callao, which were the terms given to all other shippers. “L. Burrows (one of the plaintiffs), said that James H. Innis is the only person we are shipping goods to Barbadoes to by the El Callao; in other words, he takes up the whole •space; he is responsible alone, and he has nobody else with him.” Thus it appears that the plaintiffs furnished all the freight to the El Callao for which it had space at thirty cents per barrel, and demanded that the defendants should carry the remainder of their freight, by the Cosmopolitan, at twenty-five cents per barrel. On Saturday, J une 4,1892, the Trinidad, one of the defendants’ steamers, sailed from New York for Barbadoes, and during the week previous the El Callao was taking freight for the same place. William P. Lough, one of the plaintiffs, testified:

“ Question. Do you know whether you took all the room that there was in the El Callao available, for Barbadoes, in' February and June? Answer. I believe we did; it was a usual thing for us to do; that we filled up the available space. The rates that we were paying on the El Callao for Barbadoes were thirty cents per dry barrel. That was so in February as well as in June.”

After exhausting the capacity of the É1 Callao the plaintiffs demanded that the defendants should carry 1,750 barrels to Barba— does for twenty-five cents, which they refused to do, unless the plaintiffs would ship all their freight by the defendants' line. The plaintiffs’ evidence is that they furnished the El Callao, in February and in J une, with all the freight it could carry to the Barbadoes at thirty cents per barrel, its rate, and then insisted that the defendants should take the remainder of their merchandise at twenty-five cents per barrel. The evidence produced by the plaintiffs shows, and the fact is undisputed, that the defendants carried for twenty-five cents per barrel only in case the consignor would send all of his freight by their line, and the plaintiffs testify that the same terms were offered to them. On such a state of facts there is no foundation for the position that the defendants discriminated against the plaintiffs or against any shippers, as the same terms were offered plaintiffs as were' given to all. A common carrier has the right to charge different sums for the transportation of goods on different occasions. The defendants had the right to carry goods at twenty-five cents per barrel, or for any less sum, and to establish reasonable conditions upon which they will carry for that price. The condition that all of the consignor’s freight which was shipped during the week of loading should be sent by defendants’ line if the twenty-five cent rate was given was not an unreasonable one. The defendant corporation is a common carrier on the high seas, open to all, and it has never acquired any rights by the exercise of the power of eminent domain, and its duties are simply those imposed by the rules of the common law. It had the right to compete with the El Callao for the carriage of freight, and offer such prices as it saw fit, and, so long as it offered the same terms to all shippers, none have a legal cause for complaint

The judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Alfred Hopcraft, Resp't, v. Henry Lachman et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Contract—Variance.
    The fact that on the trial of an action on an oral contract there was-a variance between expressions contained in the parties' correspondence and the version of plaintiff’s witnesses as to the terms of the contract, will not warrant the setting aside on appeal of a verdict for plaintiff, the jury having had their attention called to the contradictions in the testimony.
    2. Trial—Charge.
    When the court has covered a point in its original, charge it is not acquired to repeat the same and it is not error to refuse to do so. A party must take the effect upon the jury of a direct refusal to repeat the charge if he makes a request.

      Appeal from a judgment entered upon a verdict of a jury in favor of the plaintiff for $1,000 and also from an order denying a motion for a new trial, in an action for breach of contract.

      H. Frank, for app'lts; Edward B. Lafetra (P. Carpenter, of counsel), for resp’t.
   Van Brunt, P. J.

This action was to recover damages for the defendants’ breach of a contract according to which the plaintiff was to manufacture 500 ornamental signs, and the defendants were to pay him $1.50 each for them. The main question presented upon this appeal is whether the evidence was sufficient to justify the jury in finding a verdict in favor of the plaintiff. It must be conceded that, upon the oral testimony given upon the trial, a case upon the part of the plaintiff was made out. But it is claimed that certain correspondence between the plaintiff and the defendants was so far at variance with, and in contradiction of, the testimony of the plaintiff’s witnesses, that it showed that such testimony was unreliable, untrustworthy, and insufficient to justify the jury in basing a verdict upon it.

It is to be observed that the plaintiff, in respect to the material parts of the contract in question, was unable to testify, in consequence of the death of one of the members of defendant’s firm with whom such contract was made; consequently, the letters in question were not relied upon as in contradiction of the testimony of the plaintiff himself, but of witnesses who testified as to conversations had between the plaintiff and the deceased partner in their presence. It seems to be true that there are contradictions between some of the expressions contained in these letters and the version of the transaction as given by the witnesses upon the part of the plaintiff; but we do not think that these contradictions are of such a character as to call upon us for a reversal of the verdict of the jury. The jury heard the witnesses testify, heard the correspondence read, and had their attention called to the contradictions; and, notwithstanding, found a verdict in favor of the plaintiff. We find no sufficient reason suggested upon the part of the appellants for disturbing that verdict. It is not necessary, in the consideration of this appeal, to rehearse in detail the testimony and the letters. The principal controversy between the parties related to the question as to who was to approve of the plans of the work proposed to be done; it being claimed upon the part of the plaintiff that such approval was to be made, and was made, by Samuel Lachman, the deceased partner, leaving only a few immaterial parts thereof to be approved by his son Albert, and the contention of the defendants being that the whole plan of the work was to be approved by the son Albert. This issue was distinctly submitted to the jury, and their attention called to the testimony, and to the letters which had been offered in evidence; and the question submitted was "whether the contract was such as claimed by the plaintiff, or as claimed by the defendants, and they were instructed by the court that, if the contract was as claimed by the plaintiff, the plaintiff was entitled to a verdict; but if, on the other hand, the contract was as claimed by the defendants, the plaintiff was not entitled to recover; and upon this issue, plainly presented, the jury found a verdict in favor of the plaintiff.

Yarious exceptions to the charge are called to our attention and urged as matter of error upon this appeal. It will be found, however, upon an examination of the case, that the court charged all that the defendants were entitled to; and where the court hits covered a point in its original charge, it is not required to repeat the same, and it is not error to refuse so to charge. If a party is not satisfied with a point clearly and squarely covered by the charge, he must take the effect upon the jury of a direct refusal to repeat the charge if he makes a request. The requests in regard to the right of the jury to reject anj and all evidence as to conversations between Samuel Lachman and the- witnesses was entirely covered by the statement of the court that he left it to the jury to judge of the value of the testimony and its probative force, even if the request had not been previously covered by the language of the court in its charge. The claim that the court charged that the decorations were one of the immaterial parts of the work is not well taken, because the court did not so charge. What the court did say was that such was the testimony offered upon the part of the plaintiff, and did not charge it as a fact. The objections taken to the admission and exclusion of testimony are not of sufficient importance to need special comment.

The judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concur.


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    Walter Carter, Ex'r, Resp't, v. The Board of Education of the Presbyterian Church of the United States et al., App'lts, and Abel Spaulding et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)
    1. Legacies—Void, mat be recovered back.
    Moneys paid on account of legacies subsequently adjudged void may be recovered back by the executor.
    S. Will—Residuary clause—When it carries void legacies.
    Testator’s will after directing a conversion of his estate into money, and that his executors “pay and dispose of the proceeds thereof as herein directed,” gave certain legacies to certain benevolent societies which are invalid because testator died within a month after making the will, and then provided “ and whatsoever moneys may remain in the hands of my executors after the payment of the forevoing bequests, I hereby direct my said executors to divide into three equal parts, and pay the same to certain designated corporations. Held, that this was a general residuary clause; that the void legacies fell into the residuum and should be paid to the residuary legatees.
    Appeal by certain defendants from judgment of special term adjudging certain clauses of a will void.

      John E. Parsons, for app'lts; Delos McCurdy, for pl'ff-resp't; John P. Clarke, for def'ts-resp'ts.
   O'Brien, J.

John Spaulding, the testator, executed his will March 21, 1889. He died March 30, 1889. Efe left surviving him no issue, or widow, father or mother, but did leave certain next of kin and heirs-at-law, brothers and sisters, nephews and nieces, all parties to this action.

At the time of his death he was seized and possessed of real and personal property, situate within this state, to the value of $45,000.

By his will he directed his executors to convert his estate into money as soon as convenient, and to pay and dispose of the proceeds as directed: Board of Home Missions,, $8,000; there is no controversy in this. Board of Foreign Missions, $8,000; there is no controversy as to this. Board of Education, $3,000; declared to be invalid. Board of Relief for Disabled Ministers, etc., $3,000; declared to be invalid.

The will then proceeded: “And whatsoever moneys may remain in the hands of my said executors, after the payment of the foregoing bequests, I hereby direct my said executors to divide into three equal parts and to pay one-third thereof to the American Seaman’s Friend Society, one-third thereof to the Board of Church Erection Fund, and one-third thereof to the Board of Aid for Colleges.’’ This clause was held by the court below to be a specific residuary clause, and, therefore, the amount of the invalid legacies passed to the next of kin as undisposed of by the will.

The different appeals bring up these three points :

1. That it was error to allow the plaintiff to recover back the amounts he had paid on account of the legacies now found to be void, brought up by the appeals of the board of relief and the board of education.

2. That it was error to adjudge void the legacy of the board of education, brought up by the appeal of that board.

3. That it was error to hold that the void legacies, if any, did not fall into the residuum and pass to the residuary legatees, brought up by the appeals of the board of church erection and board of aid for colleges.

To sustain the contention that it was error to allow the plaintiff to recover back the amounts he had paid on account of the void legacies, it is insisted that there was no evidence to support the finding that the executor made these payments under a mistake of fact; and that, even though there had been, nevertheless, it was error to conclude as a matter of law that these boards must refund to the executor the amounts already paid by him on account of their legacies.

Appellants invoke the well settled rule that, to warrant a court of equity to relieve against mistake of fact, it must be the mutual mistake of both'parties, or there must be the mistake of one and the fraud of the other in taking advantage of it; and another rule, equally well settled, that where the executor volunteers to pay the whole or any portion of a legacy, and it subsequently appears that the assets are not sufficient to justify a payment to that extent, the loss must fall upon the executor, and he cannot compel the legatee to refund.

This last rule we do not think can apply to a case such as this, where the payment is not made voluntarily and upon an assumption that there are assets sufficient, which assumption subsequently turns out to be erroneous. Here the executor, under the terms of the will, was directed and required to pay these legacies, and having no reason to believe that the legacies themselves were void, it was in the discharge of his duty as executor that the payments were made. The legacies themselves, however, having, by the judgment, been declared void, we can tldnlc of no principle that would protect the legatees from being obliged to refund the amounts thus paid to them. The right to require such a payment is in no way affected by the fact that the executor would be protected from personal liability for such payments made by him. In other words, the exemption from liability with which the law might clothe the executor for payments made in good faith could not be extended so as to preclude him from recovering back from the parties to whom the money was paid without right, or invest such parties with the title to such moneys.

The analogy sought to be drawn between a payment made by an executor of a legacy held to be void, and a payment made by an assignee under the terms of an t assignment held to be void, is illusory, as the distinction between the two makes clearly evident. In the case of an assignment subsequently held to be void, a payment by the assignee to a prefeired or general bona fide creditor, before action brought to attack the assignment, would not make the assignee responsible for such payment But is there any doubt as to the right of the assignee to recover back moneys paid to a supposed creditor, whether general or preferred, who, after such payment, is shown never to have had any valid or legal claim against the assigned estate ?

Undoubtedly, the assignee who made the payment in good faith before action brought to determine the validity of such a claim would be protected, as he would in the case of a payment made to a preferred creditor, although the assignment should be subsequently set aside and adjudged to be fraudulent and void. With respect to a valid claim, the ground upon which it could be urged that the assignee could not recover back a payment made to a bona fide creditor could be sustained, as it has been, by the view that the creditor received but his due out of the debtor’s property. But, with respect to an invalid claim, just as here in the case of a void legacy, the determination being that the party never had any claim against the estate, the right to compel a repayment seems, in the absence of any authority to the contrary, reasonably free from doubt.

The point that it was error to adjudge void the legacy to the board of education we regard as equally untenable. Upon this question we agree with the conclusion of the learned trial judge in holding that the cases of Kerr v. Dougherty, 79 N. Y., 327, and Hollis v. Drew Theological Seminary, 95 id., 166, are direct authorities and controlling.

The remaining question is, whether the void legacies passed to the residuary legatees, or are to be regarded as so much of the estate of the testator remaining undisposed of and which, descends to his next of kin. In passing upon this question it becomes necessary to examine the language of the will, in order to détermine whether the residuary cause is general, or specific and restricted.

After a direction to his executors to convert his property into money and “to pay and dispose of the proceeds thereof as herein directed,” the testator gives four legacies of $3,000 each, and then directs as follows: “And whatever moneys may remain in the hands of my executors after the payment of the foregoing bequests I hereby direct my executors to divide into three equal parts.” Then follows the designation of the three legatees, each of whom was to receive one-third. The question is, did the testator, by this language, intend to make a general residuary disposition of his property ? If he did, then the law is well settled that in a will of personal property the general residuary clause carries whatever is not otherwise legally disposed of: or, otherwise stated, a general residuary clause includes not only what is not specifically given, but also what is ill given, or whatever fails by lapse, indefiniteness or invalidity.

The canons of construction to determine whether a residuary clause is general or not are thus stated in Lamb v. Lamb, 131H, Y„, 227; 43 St. Rep., 112 : “ The construction of residuary clauses in wills has been frequently before the courts. The intention of the testator is to be followed, if the actual intention is discoverable from the language employed. There is no rule of law which prevents a testator from restricting the operation of a residuary clause to a particular or specific residue. He' may make the residuary clause general and comprehensive, so that it shall carry any residue, whether of personalty or realty, or both: or be may confine its operations to property of a particular class or to a particular interest. But, where the language of a residuary clause is ambiguous, the leaning, of course, is in favor of a broad rather than a restricted construction. It prevents intestacy, which it is reasonable to suppose testators do not contemplate. And if the mind is left in doubt upon the whole will as an actual testamentary intention, a broad rather than a strict construction seems more likely to meet the testamentary purposes, because such a clause is usually inserted to provide for contingencies or lapses, and to cover whatever is left after specifying specific and special purposes of the testator manifested in other clauses of his will.

“ The court in Floyd v. Carow, 88 N. Y., 560, in construing the construction of. a residuary clause in a will, said: 1 The intention of the testator to restrict the operation of the residuary clause cannot be deduced from the mere absence of words in the will directing that a particular interest or estate, upon which the residuary clause is claimed to operate, was in the contemplation of the testator when the „will made, or from the fact that the reversion was a mere expectancy, dependent upon the failure of issue or other improbable contingency. A general residuary devise carries every real interest, whether known or unknown, immediate or remote, unless it is manifestly excluded. The intention to include is presumed, and an intention to exclude must appear from other parts of the will, or the residuary devisee will take.’ And in Riker v. Cornwell, 113 N. Y., 115; 22 St. Rep., 151, Gray J., said: :I think the doctrine is firmly established, by reports of cases and text books, that, where the residuary bequest is not circumscribed by clear expressions in the instrument, and the title of the residuary legatee is not narrowed by words of special and of unmistakable import, he will take whatever may fall into the residue by lapse, invalid disposition or other accident.’ ”

In the.case last above cited, Riker v. Cornwell, it is further said: “ In ascertaining the intention of the will maker we should not seek it in particular words and phrases, nor confine it by technical objections. We should find that intention by construing the provisions .of the will with the aid of the context, and by considering what to be the entire scheme of the will.”

It is clear, construing the language of this will, that if the testator had omitted the words “ after the payment of the foregoing bequests,” no doubt could arise but that a general residuary clause would have been created. And while there is much force in the suggestion that these words give the clause a restrictive meaning, still, when we consider the language of the entire will, we think it consistent with the view that the testator did not intend to limit his residuary legatees to what would remain after deducting the amounts provided to be paid by the former bequests. As stated, there was a direction to his executors to convert all his property into money “ and to pay and dispose of the proceeds thereof as hereinafter directed.” Here is an expressed intention that all his property was to be disposed of by his will; and after providing for certain bequests which he undoubtedly assumed to be valid, he left the entire remainder to the residuary legatees. This view of the testator that all the bequests were valid would explain the presence in the will of the expression “ remaining after the payment of 'the foregoing bequests,” which, it is1 insisted, gives to the clause a restrictive meaning.

As said in the Matter of Bonnet, 113 N. Y., 522; 23 St. Rep., 268: “We hold that, unless a contrary intent unequivocally appears elsewhere in the will, a lapsed or void legacy will be carried by a general gift of the residuum of the testator’s estate. If the title of a residuary legatee is not narrowed by special words of unmistakable import, the gift will carry with it all that falls into the residue, whether by lapse, invalid disposition or other accident.”

We fail to find in this will the intent “unequivocally expressed,” or “by special words of unmistakable import,” that the title of the residuary legatees is limited to a particular fund or to a certain residuum; and though some authorities and expressions of opinion mav be found to the contrarynotably in the Matter of Benson, 96 N. Y., 499, the trend of the more recent decisions, and particularly that of Lamb v. Lamb, supra, is as stated, that “ where the language of a residuary clause is ambiguous, the leaning, of course, is in favor of a broad rather than a restricted construction. It prevents intestacy, which it is reasonable to suppose testators do not contemplate. And if the mind is left in doubt upon the whole will as an actual testamentary intention, a broad rather than a strict construction seems more likely to meet the testamentary purposes.”

We do not think that the intention is so clearly expressed as not to raise a doubt. Still, upon a consideration of the entire will, we have reached the conclusion that it was the intention of the testator not to confine or circumscribe the residuary legatees to a particular fund or residuum, but that be intended by that clause in liis will to create a general residuum, under which the legatees v would take all his property except such as was specifically bequeathed. And upon this view it would follow that the void legacies fall into the residuum and should be divided among the residuary legatees.

The judgment should, therefore, be affirmed in all respects, except as to the disposition made of the void legacies, which should pass into the residuary estate to be disposed of as therein directed, without costs to either party upon this appeal.

Van Brunt, P. J.—I concur. The case of Kerr v. Dougherty seems to have been repeatedly overruled in respect to the rule governing the disposition of void or lapsed legacies.

Follett, J., concurs.