author: Clement J.

text:
    George E. Hyatt as Receiver, Resp’t, v. William W. Dusenbury et al., Appl’ts.

      (City Court of Brooklyn, General Term,

      Filed October 4, 1886.)
    1. Supplementary proceedings — Special proceeding.
    A proceeding supplementary to execution is a special proceeding and the same presumptions exist under the Code of Civil Procedure as under the Code of Procedure.

      2. Same — Receiver — Real estate — Title to — Code Civ. Pro., §§ 2464, 2468.
    A receiver in supplementary proceedings is appointed under Code Civ. Pro., § 2464 and by § 2468 the title to real property vests in the receiver when a copy of the order is filed in the county where the land is located.
    8.Same — Power to appoint in city court op New York.
    Any judge who has jurisdiction to entertain supplementary proceedings has the power to appoint a receiver. A receiver duly appointed by a judge of the city court of New York has the same rights as a receiver in said proceedings duly appointed by a judge of the supreme court.
    4. Same — Leave to sue granted by what court — Code Civ. Pro., § 2471.
    The order granting leave to sue must be made by the court out of which the execution issued.
    5. Same — Receiver’s bond — Omission op seals — Code Civ. Pro., § 729.
    The omission of the seals on the receiver’s bond is an irregularity and not jurisdictional. The sureties are liable on the instrument and the rights of no party are prejudiced by such omission, Code Civ. Pro., §729. If the judgment debtor objected to the paper it was his right to apply to the court appointing the receiver and have it corrected.
    6. Same — Real estate, when vested in receiver.
    Where the creditor before the appointment of the receiver had exhausted his remedy at law against a partnership and against the individual members thereof herein proceeded against (by issuing an execution against them in the county where the partnership was located) the appointment of the receiver was regular, and the receiver by such appointment became vested with the real property of the judgment debtor in a county upon filing in the office of the clerk of that county a copy of the order of appointment.
    7. Same — An officer of the court — Duties — Power. ■
    The receiver is an officer of the court and is bound to take proceedings to carry out his trust. He has a right to avoid a conveyance of his debtor if fraudulent, but he has no power to issue an execution against the other defendants in the judgment.
    8. Practice — Fraudulent conveyance — Action by judgment creditor.
    In an action brought by a judgment creditor to set aside a fraudulent conveyance it must appear that the remedy at law has been exhausted and it must be shown that an execution has been issued on the judgment to the county where the debtor resides.
    9. Same — Solvency of judgment debtor must be pleaded and proved.'
    If it appears that a judgment debtor against whom an execution had been issued and returned unsatisfied, had ample means to pay the judgment,or if the defendants in the judgment or either of them were solvent the court would dismiss an action brought by a judgment creditor to set aside a fraudulent conveyance and leave him to issue a new execution, — but such a defense would have to be pleaded as the proof of issuance and return of the execution would make out a prima facie case. The creditor is not required to prove the insolvency of the judgment debtor in any other way.
    10. Preference of creditor when fraudulent.
    A debtor cannot prefer a creditor if it is done with fraudulent intent. A Walker Otis, for plaintiff ; Moody B Smith, for defendant.
   Clement J.

The question of fraudulent intent was one of fact and unless the findings are clearly against the weight of evidence, this court will not reverse the judgment on the facts.

On June 7, 1884, the defendants Dusenbury and wife, conveyed the premises in question to the defendant Honeywell, by deed, for an apparent consideration of $16,500, and on June 19th, Honeywell conveyed the same premises to Mrs. Durant for a recital consideration of one dollar. On July 7th, 1884, Mrs. .Durant executed a mortgage on the premises to Theodore F. Miller for $900.00, and on January 30tb, 1885, also made another mortgage to Samuel Chichester lor $7,000.00 and Chichester assigned the latter mortgage to Durant as administrator of Thomas Durant, Avhich assignment was not recorded until September 11th, 1885.

This action was brought by the plaintiff as receiver of the property of the defendant, William W. Durant, to set aside as fraudulent the said conveyance and the mortgage made to Samuel Chichester as against the creditors of said Durant.

After the commencement of this action the mortgage to Theodore F. Miller, was foreclosed and on the sale a surplus remained of $2,397.81. Judgment was rendered at special term in favor of the plaintiff that his claim was a lien on said surplus moneys and from such judgment this appeal is taken.

The defendants claimed that Mrs. Durant took the title of the property on condition that she should mortgage the same to secure the debts of her husband, one Thomas Durant, and he as such administrator, had used the funds of the estate in his business and had thereby lost the same.

If the transaction was Iona fide why were the mortgages not executed on the delivery of the deed ? The Chichester mortgage was not executed until some months after the transaction and meantime a judgment had been recovered on the claim represented by the plaintiff.

A debtor has a right to prefer a creditor, but in this case it would seem that Mr. Durant did not intend to have the Chichester mortgage made unless it became necessary to defeat the claim of plaintiff.

■ The testimony of Mr. and Mrs. Durant is very indefinite as to the agreement at the time of the conveyances and if no agreement was made at that time, then the transfer was void as to plaintiff, as Durant was insolvent.

If Durant retained control of the property and could direct to whom mortgages should be given, then it was fair to hold as matter of fact that the transaction was not in good faith; a debtor cannot even prefer a creditor if it is done with a fraudulent intent. (Billings v. Russel, 101 N. Y. 226.) After reading the testimony we think that the findings as to fraud are supported by the evidence in the case.

There are several questions of law raised in the points of the appellant which we are called upon to review.

A proceeding supplementary to execution, is a special proceeding in the action and the same presumption exists since the enactment of the Code of Civil Procedure as under the Code of Procedure (Graves v. Scoville, general term, city court of Brooklyn, opinion filed November 23, 1885, affirmed in the court of appeals without opinion.)

It is not disputed that the city court of New York has power to appoint a receiver in supplementary proceedings, but it is claimed that such court cannot appoint a receiver of real property in Kings county or give him leave to bring a suit in that county to set aside a conveyance.

A receiver in supplemental proceedings is appointed under section 2464 of the Code and by section 2468 the title to real property vests in the receiver when a copy of the order is filed in the county where the land is located.

Such receiver does not derive his authority to hold real estate under section 716 of the Code and any judge who has jurisdiction to entertain supplementary proceedings, has the power to appoint a receiver. In other words, the receiver duly appointed by a judge of the city court of New York, has the same rights as a receiver in supplementary proceedings duly appointed by a judge of the supreme court.

The order granting leave to sue must be made by the court out of which the execution issued (section 2471) and therefore the order was properly obtained in the city court of New York.

It appeared that the instrument given by the receiver as a bond was without seals and it is contended that such paper is void.

The omission of the seals in our opinion was an irregularity and not jurisdictional. The sureties were liable on the instrument and the rights of no party were prejudiced by such omission (section 729 Code.) If the judgment debtor objected to the paper it was his right to apply to the city court of New York and have it corrected.

The counsel for the appellant argues that the action should have been dismissed because the complaint does not show that the executions against all the defendants had been issued by the judgment creditor to the proper court. .The judgment was recovered in the city court of New York against three defendants, Dusenbury, Grant and Parkhurst, and the execution was issued to the city court of New York against the three defendants where Mr. Dusenbury had a place of business and where the partnership was located. The latter fact is not alleged in the complaint, but no motion was made to dismiss on that specific ground, and the complaint should be treated as amended in that respect. Subsequently the plaintiff was appointed receiver in the supplementary proceedings of the property of Dusenbury by a judge of the city court of New York, which appointment was authorized by section 2458 Code, subdivision 1, and a copy of the order appointing the receiver was filed in the office of the clerk of the county of Kings.

There is no proof that execution was issued to the county where either of the defendants resided.

In an action brought by a judgment creditor to set aside fraudulent conveyance, it must appear that the remedy at law has been exhausted and it must be shown that an execution has been issued on the judgment to the county where the debtor resides. This action is not brought by the creditor but by a receiver in supplementary proceedings.

The creditor has taken another remedy and before the receiver was appointed had exhausted his remedy at law against the partnership and against Dusenbury individually. The appointment of the receiver was in ail respects regular and the receiver by such appointment became vested with the real property of Mr. Dusenbury in Kings county upon filing in the office of the county clerk a copy of the order of appointment.

The receiver when appointed was bound to take proceedings to carry out his trust and. while in a certain way he represents the creditor, yet he was an officer of the court and it was his duty to proceed and collect the judgment. The receiver, by chapter 314, Laws of 1858, could treat as void the conveyances in question. It is true that this action is brought in equity and that therefore the same is subject to the rules of equity, and one rule in an action brought by a judgment creditor to set aside a conveyance as fraudulent is, that the remedy at law must be exhausted; competent proof that such remedy is exhausted is made by showing that an execution has been issued against the judgment creditor to the county where he resides and that the same has been returned unsatisfied.

The receiver in this case is regularly appointed and has a right to avoid the conveyances if fraudulent, and yet it is claimed that he cannot so do because no executions have been issued against the other two defendants in the judgment.

The receiver has no power to issue such executions and if the counsel for the appellant is correct in his view of the law on this point, he cannot collect the claim which he represents.

Tbie authorities cited have no bearing on tbe question because they were all cases where the judgment creditor was the plaintiff.

The point is novel and not free from doubt, but we think that the plaintiff made out a prima facie case that the remedy at law had been exhausted, and that, therefore, if the other two defendants in the judgment or either were solvent, the defendants in this case should have proven such fact on the trial, in which case probably the action would have been dismissed.

If it appeared that a judgment debtor against whom an execution had been issued and returned unsatisfied had ample means to pay the judgment the court would dismiss an action brought by a judgment creditor to set aside a fraudulent- conveyance and leave him to issue a new execution, but such a defense'would have to be pleaded as the proof of issuance and return of execution would make out a prima facie case.

The creditor is not required to prove the insolvency of the judgment debtor in any other way.

In the presentíase we think that by the proof of the appointment of the receiver and the vesting of the title of the real property in him, and by showing that the deed and mortgage were fraudulent, plaintiff made out a case calling upon the defendants to show why, in equity, the conveyance and mortgage should not be set aside and. if on equitable grounds, the relief should not be granted, then the defendants should plead and prove facts tending to that conclusion.

The judgment must be modified by striking out in folio 108, the words, “ And that the remainder be paid to the plaintiff to be accounted for by him as receiver pursuant to law.”

Also the judgment should be modified so that the lien of the judgment should be subject to the dower right of Mrs. Dusenbury. And the enforcement of the judgment should be stayed until the plaintiff in the original suit issues an execution and sells the personal property belonging to the judgment debtors •described in the testimony of Mr. Dusenbury and the proceeds applied to the reduction of the judgment. And the judgment in this case must be modified accordingly.

Judgment as modified affirmed without costs and to be settled on two days’ notice by Judge Clement.

REYNOLDS J. concurs. -

A motion for leave to re-argue this case was denied Dec. 1st. 1886.-Ed.


source: Caselaw Access Project

author: Clement, J.,

license: Public Domain

text:
    Albert Minner, as Adm’r, etc., Resp’t, v. Ferdinand T. Scherpich, Appl’t.

      (City Court of Brooklyn, General Term,

      Filed November 22, 1886.)
    NEGLIGENCE BY DRUGGIST — WHAT PROOF OF.
    Where a druggist uses strychnine, when a preparation of camphor in a prescription is called for. Held, that without some satisfactory explanation, the proof of negligence on his part is established.
    Appeal from a judgment entered on a verdict in favor of the plaintiff at the trial term, and from an order denying a new trial.

      M. JE. Halpin, for resp’t; O. L. Lamb, for appl’t.
   Clement, J.,

This action was brought by an administrator under the statute to recover damages for the death of one Catharine Minner. It was admitted at the trial that she died from the effects of strychnine in a pill and that the prescription for the pills was made up by the defendant, a druggist in this city. The strychnine was used in place of mono-bromide of camphor, a harmless medicine. It is contended by the defendant that there was no contract between the deceased and the defendant and that the prescription was filled for Ethelinda Meyer, a daughter of deceased. That is was necessary for the plaintiff to prove that the prescription was ordered to be filled by the deceased or to prove that she would be liable to pay for the same if it had been properly made up, it is not necessary for us to decide, as there was sufficient proof in the case to go to the jury on the question of an express contract, and the motion for the dismissal of the complaint was therefore properly denied.

We think that there was sufficient proof of negligence of the-defendant to require the submission of that question also to-the jury.

Without the testimony of Dr. Hager, the plaintiff made out. a prima facie case.

If a druggist uses strychnine when a preparation of camphor,, in a prescription is called for, it is needless to say that, without explanation, the proof of negligence on his part is established.

In this case there was proof by Dr. Hager that another party (Mrs. Schaefer), who had taken medicine prepared from the-same jar by defendant, had symptoms similar to those of deceased-

Dr. Hager testified also that he had a conversation as to Mrs. Schaefer, with the defendant before the prescription was filled for the deceased. “ I told him I had a great deal of trouble with the lady and I did not think it was because of the pills. I could not believe that there was anything wrong with the-pills.”

If such conversation took place, whether the defendant should use the same medicine again without an examination was a question for the jury. There was testimony tending to show that by a simple process the defendant could have ascertained whether the jar contained mono-bromide of camphor or not.

The defendant gave his explanation of the mistake and whether the same was true or not, was a question of fact and to be decided by the jury and not by the court. The plaintiff could well contend before the jury that the eight or ten persons who had taken medicine prior in time to Mrs. Schaefer and the deceased, prepared from the same jar, and suffered no ill effects, had not taken strychnine, a deadly poison, and that therefore-the strychnine had been placed in the jar shortly before the prescription had been filled for Mrs. Schaefer. How it got there was for the defendant to explain to the satisfaction of a jury : and having failed to do so, this court ought not to interfere with their verdict.

We have examined the exceptions in the case and find no error.

Judgment ana order denying a new trial affirmed with costs»

REYNOLDS, J., concurs.


author: Pee Cubiam.

text:
    William Pittman, as Adm’r of John I. Pittman, deceased, Resp’t, v. Henry H. Hall, et al., Appl’ts.

      (City Court of Brooklyn, General Term,

      Filed November 22, 1886.)
    1. MORTGAGE FORECLOSURE — WHAT DEFENSE CAN BE MADE.

      2. Same — Deed subject to a mortgage — -Grantee when estopped,
    The defense that a mortgage was given to protect the property from apprehended claims against the mortgagor is not available to the mortgagor though it may be to the creditors of the mortgagor.
    Where a grantee accepts a deed of premises subject to a mortgage, he is estopped from questioning the validity of the mortgage.
    Appeal from a judgment of foreclosure of a mortgage subject to a certain life lease rendered at special term.
    March 19, 1864, George Moore contracted with defendant Henry H. Hall for sale of house 358 Clinton street, Brooklyn, then owned by Moore, and Hall paid $250 on account, April 18, 1864. By direction of Hall, Moore and wife conyeyed said property to John I. Pittman, plaintiff’s intestate. The purchase money, $5,250, was paid by Hall to Moore. Moore did not know Pittman. Hall has resided in the house since that time, December 29, 1866. Pittman conyeyed the premises to Hall, January 5, 1867 (acknowledged July 11, and recorded July 12, 1867). Hall gave to Pittman the bond and the mortgage in suit on premises for $5,000, to run three years and the mortgage expressly states that it “ is given to secure a part of the consideration expressed in said deed.” Neither principal nor interest have been paid.
    January 17,1877, Hall gave to John O. Hall, deed of premises, subject to two mortgages, one the mortgage in suit.
    May 15, 1888, Pittman gave to Hall a life lease of premises.
    February 28, 1885, John. I. Pittman died, and the plaintiff was appointed administrator of his personalty. He thereafter began this action of foreclosure. The defense was that H. H. Hall bought and paid for this property with his own money; that there was never any consideration for the bond and mortgage ; that Pittman was Hall’s brother-in-law and an intimate friend, in whom he had the most perfect confidence, and that he gave these instruments to him to guard Hall’s interests, to cover up his property, and to ward off claims which might be brought against him by reason of acts of a former partner named Ryder, with whom he had been associated before he went into the army .at the beginning of the rebellion.
    Reynolds and Clement, JJ., sitting.

      Frederic A. Ward, for resp’t; Dailey Bell, for appl’ts.
   Pee Cubiam.

We see no defense to this action on the facts ■proved, or offered to be proved. The plaintiff’s intestate conveyed the premises in question to the defendant, H. H. Hall, and took back the mortgage in suit, which is in terms given to-secure a part of the purchase money.

If a mortgagor can be permitted to overthrow the bond and mortgage in the manner attempted in this case, there would be no safety in such securities. We think he is concluded by the instruments executed under his hand and seal.

The defendant J. O. Hall, accepted a deed of the premises subject to the plaintiff’s mortgage, and is estopped from questioning its validity.

The attempted defense that the mortgage was given to protect the property from apprehended claims against the mortgagor, is clearly insufficient. The creditors of the mortgagor-might have attacked the mortgage on that ground but not the mortgagor himself.

Defendant is given the full benefit of the lease from plaintiff’s intestate, by the provision that the premises shall be sold, subject to such lease. He complains that it may still be sold under an execution issued upon a judgment for deficiency in this action But there was no contract that the lease should be exempt from all claims of creditors, and the lessor is not deprived of any of his remedies as mortgagee, simply because he gave the lease.

We see no error committed to the injury of the defendants* and therefore affirm the judgment with costs.


author: VAN Wvck, J.

text:
    Alfred T. Baxter, Resp’t, v. Isaac N. Hebberd, sued personally and as assignee of Baxter, Bell & Co., impleaded, Appl’t.

      (City Court of Brooklyn, General Term,

      Filed November 22, 1886.)
    1. Assignment for the benefit of creditors — Composition deed — Matt BE SET ASIDE FOR FRAUD.
    Where the evidence shows that an assignment for the benefit of creditors was f raudulently made, and that the assignee has retained large sums of money belonging to the firm as a result of a conspiracy to defraud the creditors ; a creditor who, in ignorance of these facts, signed a composition deed willbe allowed to set aside said deed and to recover the balance of the debt owed to him by said firm from the assignee.
    2. Evidence — Judgment in another action when admissible,
    The judgment roll in the action of foreclosure in which the deficiency-judgment was entered, and upon which this action was brought, was-properly admitted in evidence to prove the debt of plaintiff and the exhaustion of his legal remedies.
    3. Same — Statement of partner when admissible.
    The statements of one of the partners at the meeting of the creditors of said firm were properly admitted, for it was upon the falsity of these statements that plaintiff had to rely, to set aside the composition deed which ha signed.

      F. A. Ward, for resp’t; J. Tracy Langam, for appl’t.
   VAN Wvck, J.

From the findings and judgment herein, it appears tbat tbe court below decided and determined tbat on Dec. 13,1877, tbe defendants, diaries H. Baxter, Franklin Bell, and William M. Baxter, partners under tbe firm name of Baxter, Bell & Co., made a general assignment of tbeir firm assets for tbe benefit of tbeir creditors to tbe defendant, Isaac N. Hebberd, wbo was tbeir clerk, at which time Chas. H. Baxter, and Franklin Bell were indebted to tbe plaintiff in tbe sum of $15,000 with interest from Oct. 1, 1877, on their bond to him, secured by tbeir mortgage on real estate of totally inadequate value to secure that sum. That after said general assignment and before the 9th of January, 1878, tbe defendants, Hebberd, Bell, C. H. and Wm. M. Baxter, induced tbe creditors of Baxter, Bell & Co. including tbe plaintiff,to sign a composition deed to compromise tbeir claims against the said firm of Baxter, Bell & Co. at 35 per cent, in cash or 40 per cent, in notes. That certain of these creditors signed such composition deed under a secret agreement that they were to receive more than tbe compromise per centage in fraud of plaintiff’s rights, and plaintiff was induced by representations made by Bell as to the amount of assets and liabilities, which were false to tbe knowledge of Bell, and tbat Hebberd was privy to such illegal preference to certain of tbe compounding creditors and tbat tbe composition deed was void for such fraud. Tbat thereafter, to wit : on January 9, 1878, tbe defendants Bell, C. H. and Wm. M. Baxter gave the defendant Hebberd, a bill of sale of their joint and several interest in said firm assets or in any surplus tbat might arise to them or either of them therefrom. Tbe said Bell then being insolvent. Tbe bill of sale was given and tbe property delivered to Hebberd on condition that be would settle with tbe creditors according to tbe compromise except with plaintiff and one other, who were included in the composition deed, and then turn over tbe surplus to Bell and William M. Baxter. Between tbe date of tbe general assignment and tbe bill of sale, C. H. Baxter transferred all bis interest in tbe assets to Bell, of which Hebberd had notice. Hebberd accepted tbe bill of sale and thereunder acquired and took possession of all tbe assets of Baxter, Bell & Co., and the individual surplus of each member of this firm therein after tbe payment of tbe creditors signing tbe composition deed, with tbe exception of this plaintiff and one other. He collected the accounts and disposed of tbe stock and received the proceeds thereof. Tbe assets thus acquired by Hebberd were of a value sufficient to satisfy tbe creditors of Baxter, Bell & Co., and leave a surplus of which Franklin Bell’s share would be more than enough to pay the plaintiff’s claim, and that said bill of sale was fraudulent as against plaintiff, and was made by Bell and received by Hebberd with intent to hinder, delay, and defraud plaintiff, and that Hebberd conspired with Bell to defraud plaintiff, and prevent the collection of his claim out of tbe surplus of tbe assets of Baxter, Bell & Co., and to tbat end bas mingled moneys collected from tbe assets of Baxter, Bell & Co., with bis own, and suppressed his accounts.

Tbat on April 4th, 1878, plaintiff brought an action against Hebberd, Bell, C. H. Baxter and others to foreclose tbe mortgage made by Bell and Chas. H. Baxter to secure their bond on which there was due a balance of $15,000 with interest. On April 23, 1878, just 19 days after tbe commencement of this action, Wm. M. Baxter released to Hebberd bis interest in tbe said assets, and on tbe same day Hebberd made a bill of sale of tbe assets to Bell, which was a sham, and under which no property was delivered or intended to be delivered. In such action of foreclosure such proceedings were bad that a decree of foreclosure and sale was made therein and mortgaged premises sold and a judgment of deficiency entered for $15.477.62 on June 13, 1882, and on which execution was issued to the sheriff of the county of which tbe judgment debtors, Bell and C. H. Baxter were residents, and returned wholly unsatisfied. Then this ^action was brought to compel the satisfaction of this judgment out of the surplus of Bell and C. H. Baxter, in assets of Baxter, Bell & Co. in hands of Hebberd unaccounted for. After the commencement ofithis action, C. H. Baxter paid $5,000 on account of said judgment, and received a joint debtor’s release as , to himself, leaving due to plaintiff on such judgment of deficiency the sum of $12,510,-85 ; for which Hebberd is adjudged liable to plaintiff. This is an outline of the history of this case and the findings of the trial court.

The appellant insists that the judgment against Hebberd herein should be reversed for alleged errors of the trial court, which we will now consider.

There are two classes of errors complained of, viz. : that certain of the findings of fact are unsupported by the evidence ; and the admission of testimony against the objection of appellant Hebberd. In the consideration of the first class, it will be seen that counsel for appellant bases his argument in favor of error in this respect largely upon the theory that the trial judge has placed but little confidence in er given but slight weight to the testimony of appellant Hebberd. A casual examination of Ms. testimony discloses an absence of that frankness which characterizes an honest and truthful witness ; and exhibits contradictions so direct and numerous as to startle the most credulous with disbelief ; and well might the trial judge declare that no reliance could be placed on Ms statements when contradicted by other evidence.

First: Appellant contends that the court erred in finding that Hebberd became vested and held the assets of Baxter, Bell & Co. on January 9,1878, under the bill of sale of that date, because the bill of sale was delivered according to the testimony of Hebberd in tbis trial on April 28, 1878, and tbe general assignment was made on Dec. 13, 1877, prior to tbe bill of sale. Hebberd testified on bis trial that tbe bill of sale was not delivered till April 28, 1878, though on tbe accounting proceedings in New York Common Pleas, he testified (when it was not necessary to fix tbe day of delivery on April 23rd, 1878, to sustain the theory of his defence herein) that the bill of sale was made to him on January 9th, 1878, and that he receivedthe assets and proceeded to manufacture the stock and advanced large sums of money in so doing ; and by good management and care, disposed of such stock to advantage and paid all creditors except plaintiff. The moneys derived from the collection of accounts and sale of goods went into his bank accounts, and the firm of Baxter & Bell, to whom he claims to have turned over the assets, did not for a long time after, even have a bank account. It is quite evident that after all the creditors signed the composition deed to accept 35 per cent, of their claims, when the assets were sufficient to pay them in full, that Bell, who ajtpears to have been the master spirit of Baxter, Bell & Co. in these transactions, and Hebberd concluded the assignment had accomplished their purpose and exhausted its function. Hebberd failed to qualify as assignee, he filed no' bond according to the statute,and had not up to that time really taken possession of the assets. Composition deed signed by all the creditors including this plaintiff, Hebberd and Bell conceived the idea, (and successfully executed the same unless defeated by this judgment) of vesting and transferring to Hebberd all the assets of Baxter, Bell & Co., and the individual interest of each partner in any surplus, with the intention of securing the entire surplus to Hebberd for his own and Bell’s benefit, free from the rights of C. H. Baxter to a share of such surplus and from the debt of plaintiff against Bell and C. H. Baxter, and subject only to the payment to the creditors, other than plaintiff, of the percentage called for by the composition deed. This intention is clearly deducible from the bill of sale, transfer of C. H. Baxter’s interest in such surplus to Bell, the release of Baxter’s interest (Wm. M.) to Hebberd, the large amounts realized from collection of accounts and sale of stock, the concealment of amounts of such collections and sales, the neglect to keep books of accounts of such transactions, or if such books were kept, a suppression thereof, the pretended claim of Hebberd to have loaned to Baxter & Bell large sums of money to settle with the compounding creditors, while it was shown that the creditors had been paid in most cases by the checks of Hebberd, and the amount of collections on account of the estate of Baxter, Bell & Co., was at all times largely in excess of his alleged advances ; the testimony before one tribunal that he manufactured the stock, and by good management and care disposed of it to advantage and paid tbe creditors with tire proceeds therefrom, and then before another tribunal that he turned over the stock undiminished and untouched to Baxter, Bell & Co., or their suesessor, or rather in fact that he never had possession off the stock at all; and finally, Hebberd, a few days before plaintiff secured his first judgment for deficiency in the foreclosure action, openly claims possession and ownership of the rights of Bell and C. H. Baxter in the old business of Baxter, Bell & Co., under the firm name of Wm. M. Baxter & Co., of which he was the Co.

It is plain to us that the bill of sale of January 9,1878 was delivered on that day and that Hebberd became vested and took possession of a large surplus belonging to Bell under such bill of sale and has never accounted for the same. Bell’s share of the surplus was more than sufficient to pay the claim of plaintiff. There were three members of the firm of Baxter, Bell & Co., and it will be assumed, if the contrary is not shown, that they were equal partners, and it is undisputed that before the bill of sale of January 9, 1878, C. H. Baxter transferred his interest therein to Bell, of which Hebberd had notice, and thus Bell became entitled to two-thirds of such surplus, and the testimony of McDonald shows that Hebberd up to May 1,1878,

Collected on the accouutsand notes due Baxter, Bell & Co., about.$43,000
And according to the testimony of Owens, the value of the stock of Baxter, Bell & Co., was about . ... 50,000
$93,000
The amount paid the compounding creditors of Baxter, Bell & Co., in full settlement according to compromise was about 32,000
Leaving a surplus of.$61,000

of which Bell was entitled to two-thirds or about forty thousand dollars, for which sum Hebberd has failed to account.

There can be no doubt that the bill of sale of January 9, 1878, was the result of a conspiracy on the part of Bell and Hebberd with intent to cheat and defraud the plaintiff and prevent him collecting his claim out of the surplus belonging to Bell and C. H. Baxter, and such bill of sale was made with the intent to hinder, delay and defraud the plaintiff. It is hostile to every sense of justice that Hebberd should be allowed to retain this surplus belonging to Bell who is liable on the plaintiff’s judgment for deficiency and not account for the same and we are convinced that the findings of fact of the trial judge upon which this judgment rests, are fully and fairly sustained by the evidence.

The judgment roll in the action of foreclosure in which the deficiency judgment was entered and upon which this action was brought, was properly admitted to prove the debt of plaintiff and the exhaustion of his legal remedies. The receipt of 15,000 on account of said claim of plaintiff from the defendant C. H. Baxter and on a release to him under tbe joint debtors act does not discharge the other joint debtors or those having-property belonging to the joint debtor not released. This was the object of the act allowing the release of a joint debtor and the right to contribution is reserved by the act. Code Civil Procedure, 1942, 1943 and 1944.

The statements of Bell at the meeting of the creditors of Baxter, Bell & Co., were properly admitted, for it was upon the falsity of these statements that plaintiff relied partly to set aside the composition deed which he signed. The testimony of Carpenter, the foreman book-keeper of Baxter, Bell & Co., was immaterial and could not have affected the result, though we are of the opinion he had a right to use the memoranda made-from the books to refresh his memory, and then the testimony was superseded by the introduction of the books in evidence-from which the memoranda was taken.

The other exceptions to the admission of testimony are not well taken, or the testimony brought out in no way injured the defendant Hebberd, or affected the result. The contention that there should have been an interlocutory judgment for an accounting is not well taken. For the parties went into the accounting without objection. Hebberd says he turned over ta Baxter & Bell in bulk, the assets of Baxter, Bell & Co., and he-had no inventory of the stock of assets, received and kept no accounts of same or books that would throw light on the assets-received or disposed of, and it would be an idle ceremony to order an accounting of assets that defendant Hebberd swears he never received or that he turned over to the successors of Baxter, Bell & Co., and of which he had no inventory.

For the foregoing reasons we think the judgment must be affirmed with costs.

REYNOLDS, J., concurs.


author: Van Wyck, J.

text:
    John Andrews, Appl’t, v. Mary A. Davis, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed December 27, 1886.)
    CONTRACT FOE SATE OF LAND — WHEN TENDEE OF PURCHASE MONET MUST BE PROVED — COSTS.
    Where in a contract for sale of lands, the purchase money was to he paid on a particular day, and neither party performed or offered to perform on that day, neither party can maintain an action at law upon the contract, hut in such case, either party may claim a specific performance in equity, making the offer incumbent upon him in the complaint for specific performance. Failure to make tender of performance before the commencement of the action will influence the question of costs.
    Appeal from a judgment dismissing the complaint entered at the circuit on a trial by the court without a jury.

      John Andretvs, for appl’t; D. P. Barnard, for resp’t.
   Van Wyck, J.

On October 24, 1861, one Wright Davis, agreed to sell to one George G. Andrews, certain real estate and conveyed the same to Andrews on the payment of the purchase' price on a day named. Wright Davis died in 1869, leaving him surviving the defendants, his only heirs against whom this action was brought by George G. Andrews in 1872, for the specific performance of such agreement.

May 1st, 1873, George G. Andrews assigned all his interest in said contract to the present plaintiff John Andrews. George G. Andrews thereafter died, to wit, in 1877, and thereafter, Dec. 24, 1885, by order of this court, this action was revived in the name of John Andrews, and Hannah Cox, as administratrix, was made a defendant therein. At the trial of the action before the court without a jury, the plaintiff rested after putting in his proofs and the court on motion of defendant, dismissed the complaint on the ground that plaintiff had failed to prove that George G. Andrews had tendered the purchase money to Wright Davis and his refusal to convey to Andrews. It seems to be settled that where, in a contract for sale of lands, the purchase money was to be paid on a particular day and neither party performed or offered to perform on that day, that neither party could maintain an action at law upon the contract, but that in such case either party may claim a specific performance in equity, making the offer incumbent upon him in the complaint for specific performance. That the failure to make tender of performance before the commencement of the action will influence the question of costs. Freeson v. Bissell, 63 N. Y., 168; Stevenson v. Maxwell, 2 N. Y., 409; Bruce v. Tilson, 25 N. Y., 194.

We think the court below erred in the dismissal of the complaint solely on this ground without a consid ration of the case on the merits. This renders an examination of the other exceptions unnecessary.

Judgment reversed. New trial ordered with costs to abide the event.

REYNOLDS, J., concurs.


author: Reynolds, J. Clement, J.

text:
    Nils A. Rumberg, Resp’t, v. John Johnson, as treasurer, etc, Appl’t,

      (City Court of Brooklyn, General Term,

      Filed December 27, 1886.)
    Lunatics — Power to employ attorney — Code Oiv. Pro., § 2340.
    The defendant sought to reverse the judgment in an action on the .ground that as the plaintiff was insane at the time of the commencement of the action, he was incompetent to employ an attorney, and the attorney was therefore without authority to appear for him. The plaintiff had not been judicially determined to he a lunatic in any proceeding brought for that purpose, but was confined in an asylum and pronounced by the physicians there to be incurably insane. Held, that the right to commence an action in the name of a person of unsound mind before he has been judicially declared to be such is implied by Code Civ. Pro., § 2340. That a lunatic has the legal standing to appear as a party in his own name until a committee has been appointed in the manner provided by law. (Clement, J., dissenting.)

    Appeal from a judgment entered at special term in favor of plaintiff. Facts will be found in the dissenting opinion of CLEMENT, J.

      J. Edward iSwanstrom, for resp’t; Leeds Morse, for appl’t.
   Reynolds, J.

The issues really litigated upon the trial were first, whether the plaintiff had become sick and disabled from following his usual business, as alleged in the fourth paragraph of his complaint, the same being denied by the defendant; and second, whether the plaintiff had discharged and released his claim subsequent to the commencement of the action.

The court finds that the plaintiff in August, 1883, became and still continued sick, “insane and disabled from following his usual business or other occupation,” and that the release purporting to be executed by him, was procured from him after the commencement of the action “ and while the plaintiff was non compos mentis.”

The evidence abundantly sustains the first finding, at least to the extent that the plaintiff was, during the time for which he claimed benefits, “ disabled by sickness or other disability from following his usual business, pursuit or other occupation,” in the language of the by-law set out in the complaint; and it also sustains the finding as to the release, and thus avoids the effect which it would otherwise have had.

The defendant now seeks to reverse the judgment on the ground that, as it appears the plaintiff was insane at the time of the commencement of the action, he was incompetent to employ an attorney, and the attorney was therefore without authority to appear for him.

I originally concurred, not without doubt, in the forcible opinion written by Judge Clement to show that this was a fatal objection to the judgment; but on further reflection, since the reargument, I have come to a contrary conclusion.

The plaintiff has not been judicially determined to'be a lunatic on any proceeding brought for that purpose. The finding of the court that he was non compos when he executed the release, has no effect beyond setting aside that instrument. The other finding (which covers the time of the commencement of the action) that he was “ insane and disabled from following his usual business or other occupation,” is material only so far as to bring him within the -scope of the by-law above referred to, viz; to show that he was “ disabled from following his usual business, pursuit, or other occupation.” It is not clear that the court meant more than this by the use of the word “ insane ” in the connection in which it is used. His mind was so far unsound .as to incapacitate him from pursuing bis business (tbat of an ■upholsterer), but until “after office found” the presumption must still prevail that the attorney who appears in his name has competent authority. Besides the issues made by the pleadings having been rightly decided in favor of the plaintiff, even if there has been an irregularity, such as is claimed, how can it be corrected on an appeal from the judgment?

The judgment correctly declares the rights and liabilities of the parties. If the attorney appeared without proper authority, that error should have been reached by a direct motion for the interposition of the court.

I do not see that the decision of this court in Valentine v. Richardt, is in point here. In that case a person, without notice to the nominal plaintiff, and in fact in open hostility to her, had procured an order appointing him her next friend, for the purpose of commencing an action to set aside a conveyance of real •estate made by her, and the action was brought in her name by him as next friend. We held that such a procedure was unauthorized by any law or practice in this State. That was entirely a different question from the one now presented.

Counsel for the appellant contends that the provisions of the Code of Civil Procedure, section 2320 et. seq., prohibit the bringing of an action in the name of a person who is a lunatic. The first, section declares that the jurisdiction of the court extends to the eustody of the person and the care of the property of a person incompetent to manage himself or his affairs, in consequence of lunacy, idiocy or habitual drunkenness, and section 2322 declares that such jurisdiction must be exercised by means of a committee of the person or property. But until the court interposes its jurisdiction, these provisions do not change the legal status of the persons named in section 2320. Before the court puts forth its arm, it would hardly be claimed that an habitual drunkard cannot employ an attorney and prosecute a suit in his own name. If he may do so, the argument against a suit by a person incompetent from any of the other causes named, fails as far as this statute is concerned. The only regulation as to actions in section 2340, which provides that the committee when appointed may maintain in his own name, as committee, any action which the per•son for whom he is appointed “ might have maintained if the appointment had not been made,” the right to commence an action in the name of a person of unsound mind, before he has .been judicially declared to be such, is implied, rather than taken •away, by tins statute.

It is said that the judgment ought not to stand, because' if the defendant had recovered judgment, it could have been avoided by plaintiff on the ground that his attorney had no authority to commence the action. This seems to be a begging of the question. It assumes one side of the very question under discussion; and I think the assumption is wrong. It seems to be settled tbat where the attorney is responsible (and there is no suggestion here to the contrary), the party is bound by the judgment and must seek his remedy against the attorney who appeared without authority. Brown v. Nichols, 42 N. Y., 30; Ferguson v. Crawford, 70 N. Y., 254. I can see no reason why a lunatic, before “ office found ” should not be subject to this rule as well as any other person. He has the same legal standing to appear as a party in his own name, till a committee has been appointed in the manner provided by law. The parties litigated upon an equality, and the judgment is binding upon both. With this view of the case I think the judgment should be affirmed.

CLEMENT, J., dissents.

Clement, J.

(dissenting.) — as to the facts of this case I quote from the brief of counsel for plaintiff. “ On September 8th, 1883, he (plaintiff) was conveyed to the insane asylum at Flat-bush, after examination by Doctors Young and Stone, who pronounced him insane. During this period he has been under the care of Dr. Ferris, a physician at the asylum, who testified that the plaintiff’s case is incurable.”

And after stating that the Society had paid the wife the sick benefits coming to plaintiff for some time, I quote again from the brief, “ when they refused to pay her any longer and she was obliged to institute this action, etc.”

In the former opinion in this case I stated that if “ the judgment had been for defendant at special term and the plaintiff after proceedings in lunacy should by his committee bring an action for the same claim, the judgment could be avoided on the ground that the attorney had no authority to commence the action,” and I am still of the same opinion.

While a judgment cannot be attacked collaterally on the ground that the attorney had no authority to appear, yet it has never been held that where the record showed that the attorney had no authority, such a judgment could not be attacked in any proceeding collateral or otherwise.

The authority of the attorney to appear is presumptively good, and such presumptive authority can only be attacked in the action itself. I fail to see how there can be any presumption where the record shows to the contrary. The proof of a fact overcomes any presumption.

The record in this case shows that the plaintiff is an imbecile; the attorney for plaintiff states in his brief that he is incurably insane and the learned judge so found, and that he has been in the same condition since August, 1883.

A person, so far as his property rights are concerned, in law is presumed to be competent unless proceedings are taken against him under sections 2320 to 2344 of tbe Code of Civil Procedure and a committee appointed as therein set forth.

Section 2320 provides that “ the jurisdiction of the supreme court extends to the custody of the person, and the care of the property of a person incompetent to manage himself or his affairs, in consequence of lunacy, idiocy or habitual drunkenness.” Section 2321 sets forth that the court “ may preserve his property from waste or destruction ; and out of the proceeds thereof must provide for the payment of his debts and for the safe keeping and maintenance, and the education when required of the incompetent person and his family.

Section 2322 provides that the jurisdiction specified in the last two sections must he exercised by means of a committee of the person or a committee of the property . . . appointed as prescribed in this title.

I think that the words “ must be exercised ” mean that the jurisdiction can be exercised in no other way and that the English cases cited by plaintiff holding that the wife has a right to sue in the name of her husband, as in this case, have no effect in this State.

The wife of a lunatic can only receive her support from the estate of her husband after a committee is appointed.

A person who brings an action is presumed to be sane until a committee is appointed and this presumption continues during its pendency and until judgment.

If a party brought an action and then gave a discontinuance before the trial, I do not think that his attorney would be allowed to avoid such discontinuance and go on and try the case on the ground that his client was demented andan imbecile and had been for years prior to the commencement of the action.

A plaintiff until he has been adjudged insane is not only presumed to be competent, but it is more than a presumption, it is a fact.

A person can bring an action to set aside an act done when he was of unsound mind, but the action is assumed to be brought during a lucid interval.

Lunatics are assumed to have lucid intervals and may recover; but in this case it is claimed and found as a part of plaintiff’s cause of action and as a ground of setting aside the release that the plaintiff has been demented since August, 1883, and as stated by plaintiff’s counsel in his brief, “ the plaintiff’s case is incurable.”

The plaintiff’s attorney in this action avoids a release given by'the plaintiff after the commencement of this action, not on proof that the plaintiff was insane at the time of giving the release, but on the ground that he lost his understanding in August, 1883, and never can regain the same.

If the plaintiff had been called as a witness for the defendant and testified tbat he was sane at the time he gave the release and that he did not want the action to proceed, the facts would not be stronger than as the case stands.

Even if we assume that the plaintiff brought the action and that he is presumed to be sane, and that because the attorney is responsible, his authority cannot be attacked, then I think that it must be assumed that plaintiff had the legal right during the pendency of the action to discontinue the same or to release the cause of action. That under such circumstances, the plaintiff cannot be permitted to discredit himself.

There is an important question involved in this case as it seems to me.

A party is confined in a lunatic asylum for many years and yet until he is adjudged incompetent to manage his property no person can interfere with the same.

Proceedings in lunacy in this State are inexpensive and can be completed in less than twenty days.

Bumberg might not be found to be of unsound mind, so as to be incompetent to manage his property, and in law is not incompetent until a jury has so decided after notice to him.

In two cases which have come before me where applications have been made to declare persons actually confined in an asylum of unsound mind, and to have committees appointed, after a careful investigation it was determined in each case that the parties were not incompetent to manage their property and both were discharged from the asylum and subsequent events have proven that such determinations were right.

If it be held that a plaintiff can be confined and if his wife can litigate in his name and receive the fruits of the litigation, it, in my opinion, tends to establish a principle in the law which should not exist.

In the present case the plaintiff’s wife may be entitled to the money, but she should receive it only in the way provided by the Code; that is, through a. committee.

The principle involved in this case is that the right of a party to do as he sees fit with his own property, is taken from him without a hearing.

For the reasons given in my former opinion and as above stated, I am unable to agree in the opinion filed by the learned chief judge of this court.

The judgment should be reversed and a new trial granted, costs to abide the event; and under the circumstances, I think that the attorney for plaintiff should have leave to discontinue the action if he so elects, without costs.


author: Vaít Wycic, J.

text:
    Henry G. Catlin, Resp’t, v. William W. Green, Appl’t.

      (City Court of Brooklyn, General Term,

      Filed December 27, 1886.)
    Stock — Bonds — Within what time ah election ustdee ah option to EXCHANGE MUST BE MADE — LACHES.
    Where certain stock of a railway company organized under the general railway law of this State was issued under an agreement made by certain persons as trustees, that if the said railway company should at any time thereafter issue mortgage bonds on its property, that then and in that case the holders of said stock or any portion thereof shall have the right to exchange the amount of stock so h$ld by them for a like amount of bonds so issued. Such mortgage bonds, having been issued, nine years after their issue plaintiff the holder of $2000 of said stock, applied to the plaintiff, one of the trustees aforesaid to have said stock exchanged for the bonds under said agreement. Held, that plaintiff was guilty of laches in making the election and could not compel the exchange. That the election should have been made within a reasonable time after the issue of the bonds and that it was not necessary for the trustee to give notice to the parties in whose names the stock stood that the bonds were ready and that they should make their election within a reasonable time in order to limit their time.
    Appeal from a judgment in favor of plaintiff entered at special term.

      O. L. Lyon, for Resp’t; Richard II- Green, for Appl’t.
   Vaít Wycic, J.

On July 28, 1870, the “Brooklyn, Winfield and Newtown Railway Co.” (for the sake of brevity, hereinafter designated the Winfield Co.), party of the first part, and John Elwell and William W. Green as trustees of the purchasers of the Metropolitan Railway Go., parties of the second part, entered into a contract under seal, whereby it was agreed that the party of' the first part would lease for 95 years its franchise, right of way, etc., to the said parties of the second part and the said parties of the second part agreed to organize under the, general railway law of this State, a company to be called “ The North Second Street and Middle Yillage Railway Co.” for the sake of brevity hereinafter designated the North Second Street Co.), with a capital stock of $150,000, and to pay the Winfield Co., for such lease $30,000 of said stock to be issued in the name of Cheesborough, treasurer of Winfield Co.; and Elwell and Green further agreed that in case the North Second Street Co. (to be formed) shall at any time during the 95 years, issue mortgage bonds on its property, that then and in such case, the holders of said $30,000 of stock or any portion thereof shall have the right to exchange the amount of stock so held by them for a like amount of such bonds so issued.

Elwell and Green organized the North Second Street Co. with a capital stock of $150,000, and the Winfield Co. executed a lease for 95 years of its franchise to said North Second Street Co., and received from the latter company $30,000 of its stock in the name of Cheesborougli, treasurer of Winfield Co., in payment for such lease.

In May, 1875, the North Second Street Co., issued $125,000 of mortgage- bonds on its road. In Sept., 1884, the plaintiff became the holder of $2,000 of the $80,000 of the capital stock of the North Second Street Co., issued to the Winfield Co., in payment for the lease, though in the meantime the stock had become almost worthless, the road then being in the hands of a receiver appointed in an action to foreclose these mortgage bonds. In which action a decree of foreclosure was entered about the same time and soon thereafter the road was sold thereunder.

On Sept. 25, 1884, a few days after plaintiff became the holder of such stock and over nine years after the bonds were issued by the North Second Street Co., he tendered to Green (Elwell having died prior thereto), his stock, and demanded a like amount of bonds, which was refused.

June 1,1885, plaintiff commenced this action against Green to recover the value of the bonds which Green had refused to give in exchange for the stock.

The court gave plaintiff judgment for the value of the bonds and from this judgment defendant appeals.

There were several defenses set up by the defendant, but the one that we will now consider was, that the agreement of July 28,1870, between the Winfield Co., and Elwell and Green, gave to the holder of plaintiff’s stock the option to exchange the same for bonds of the North Second Street Co. in May, 1875, the time the bonds were issued by that company; and that the holder of this stock had failed to elect to exchange it for bonds within a reasonable time by waiting over nine years after the right of election attached. That the holder of this stock was chargeable with gross laches and had thereby waived and abandoned his right of election to exchange stock for bonds.

• The trial court decided that there were no laches on the part of plaintiff because, “ The defendant should have given to the party in whose name the certificate (stock) was issued in absence of knowledge of defendant of the transfer to plaintiff that the bonds were ready and that he should make his election in a reasonable time after the service of the notice. If he had given such notice, the party who held the certificate would have been bound to make an election before the expiration of the time fixed. In this case no notice was given, and I think, therefore, that no laches to the injury of the defendant has been proven.”

Does this correctly state the rule as to the time within which an option must be exercised after the happening of the contingency upon which it is conditioned ?

This rule would give one, clothed with a right of option not limited as to time by the terms of the agreement, an unlimited, time within which to mate an election thereunder unless the other party gave a notice that the election must be made within a reasonable time. Does not the law require it to be done within a reasonable time without any such notice ?

The learned trial judge cites to sustain the position he assumed, Howe Machine Co. v. Farrington, 82 N. Y. 121; Newcome v. Hale, 90 N. Y., 327. These cases decide that “ in order to exonerate a surety, because of delay in proceedings, against the principal, the surety, must show explicit notice or request to the creditor to collect the debt or enforce the liability,” but do not touch on the question of what time one is allowed to exercise an option. In Fitzpatrick v. Woodruff, 96 N. Y., 565, the court says “ It is undoubtedly the rule, as is claimed by appellant, that where an option is to be exercised or a condition to be performed is not limited by the agreement, then such option must be acted upon and the condition performed or abandoned within a reasonable time.

The court says that a delay of three years in the exercise of an option was unreasonable, but that the acts of defendant had excused the laches of plaintiff. Wooster v. Sage, 67 N. Y., 72, Johnston v. Trask, 40 Hun, 417. The English rule is the same Vyse v. Wakefield, 6 Meeson & Welsby, 442. Same case affirmed,. 7 M. & W., 126. Payne v. Ives, 3 Dowling & Ryland, 664. It would seem that the trial judge imposed oar the defendant the duty of giving to plaintiff a notice that the law does not devolve upon him. For this reason we think the judgment must be reversed and new trial ordered, with costs to abide the event.

REYNOLDS, J. concurs.


author: Vak Wyck, J.

text:
    Thomas White and Samuel C. White, Appl’ts, v. City of Brooklyn, Resp’t.

      (The Court of Brooklyn, General Term,

      Filed December 27, 1886.)
    Taxes asb assessments in Bbooklyn — Tax certificates — Kecoveby op money paid — Statute op Limitations.
    Where certain certificates of-sales for taxes and assessments in the city of Brooklyn, dated prior to June 1864, each certified that on the date thereof, the tax collector sold the premises described, for taxes, etc., to the person named for the term of years named for which he paid a specified sum, “ which said purchase entitles him to a lease of said premises for the term aforesaid after the expiration of two years from the date hereof unless the said premises be redeemed within that time, or any irregularity shall be discovered in the proceedings prior to said sale, in which case said purchase money . . . shall be repaid to said purchaser or his assigns.” No-leases of the premises were ever given, nor were they redeemed, but the sales were void on account of irregularities in the proceedings prior to the sales. Held, that the right of action to recover the money paid for said certificates from the city accrued two years after their date (namely 1860) and that the statute of limitations began to run in favor of the city at that same time.

      2. Sake — Effect of Laws 1865, Chap. 721, § 12.

      JETeld, that the only effect of Laws 1865, chapter 721, § 12, on the certificates was to enable owners of the premises sold for taxes by giving certain notice to compel the owners of certificates to assert their claims for a lease within three years or abandon it.
    Same — Effect of Laws 1883, Chap. 114.

      Held, that the right of action on said certificates was barred by the statute of limitations before Laws 1883, chapter 114, was enacted — That even if holder of said certificates were entitled to a portion of the new tax levied under said law, they must establish just what proportion of said new tax was levied, on account of their certificates.
   Vak Wyck, J.

The plaintiffs owned numerous certificates of sales for taxes and assessments, all of which were dated prior to June 8, 1864. Each certificate certifies that on the date thereof the tax collector sold the premises described for taxes, etc., to the person named, for the term of years named, for which he paid a specified sum; “ which said purchase entitles him (the purchaser) to a lease of the said premises for the term aforesaid after the expiration of two years from the date hereof unless the said premises be redeemed within that time, or any irregularity shall be discovered in the proceedings prior to said sale, in which case said purchase money . . . shall be repaid to said purchaser or his assigns.”

No leases of the premises were ever given to the purchasers or their assigns, nor were the premises redeemed. The sales were void on account of irregularities in the proceedings prior to the sales respectively, and the plaintiffs commenced this action July 20,1883, to recover from the city the purchase money mentioned in these certificates. The defendant claims that the causes of action on these certificates for the repayment of the purchase money are barred by the statute of limitations.

In Brevoort v. The City of Brooklyn, 89 N. Y., 128, which was an action to recover the purchase money on a similar certificate, the court, at page 135, says, “ these taxes are void . . . and undoubtedly if the plaintiff had paid his money, as a simple purchase at a tax sale, without any agreement for the repayment in case of any irregularity should exist or be discovered, he could not have recovered back the money thus paid.” Hence it becomes necessary for us to ascertain what the contract contained in these certificates, was; what are the rights of the plaintiff and the obligations of defendant under the same; and when did the right of action accrue for the recovery back of the purchase money from the city ?

The city undertook to give plaintiff a lease of the premises sold for taxes, etc., at the expiration of two years from the date of the certificate, unless the premises be redeemed within that time, or irregularity in the proceedings prior to sale be discovered, in which case the purchase money shall be repaid. The word “ unless ” has been judicially declared to mean, “ if not.” Manning v. Keenan, 73 N. Y., 45. This contract read with the equivalent of “ unless,” and plaintiff would be entitled to a lease of the premises within two years, if the same were not redeemed within that time and if no irregularity prior to sale was found or discovered to exist.

The contract was that the plaintiff should receive a lease with the separate and distinct conditions attached, the happening of either of which would defeat that right and give the right to recover back the purchase money; at the expiration of two years irregularities prior to sale did exist, and this defeated the right to a lease, and for that reason under the contract the right to recover back the purchase money instantly followed.

The contracting parties contemplated that if a valid lease could not be given at the end of two years because of the existence of such irregularity, that then and in such case the purchaser should be paid the purchase money. Such irregularities in the proceedings prior to the sales for which the certificates in suit were given have been found to exist, and therefore plaintiff’s right of action for repayment to them of the purchase money accrued two years after the date of the certificates respectively,, for the plaintiffs were never entitled to a lease.

In this view of the case, as the certificate bearing the latest date is that of June 7, 1864, the cause of action thereon, to recover back purchase money, accrued June 7, 1866, seventeen years before this action was commenced, and is barred by the lapse of time, unless the terms of the contract of the certificate-are so changed and altered by L. 1865, chap. 721, sec. 12, and L. 1883, chap. 114, as to have deprived plaintiffs of the right to legally call upon the city to repay the purchase money, at the ■ time mentioned in the certificate,-two years after its date.

The only effect of L. 1865, chap. 721, sec. 12, on the contract in question, if any, was that it enabled the owner of the premises, by giving the notice required, to compel the owner of the-certificate within three years either to assert his claim for alease, or be deemed to have abandoned the same and thus relieve the-premises of the lien. In other words it provided a method by which the owner could shorten the usual statute of limitations-for a specific performance of the executory contract to convey by lease real estate.

When the Law of 1883, chap. 114, was enacted, the plaintiff had no right to a lease, because the irregularity in the proceedings prior to sale existed which rendered the sale void; and . . . his right to sue to recover back the purchase money was barred by the statute of limitations.

Therefore, assuming that this act authorized the city to levy a new tax for a smaller sum in lieu of the former void tax, under which these sales were made, it in no way injured or interfered ■with plaintiff’s security, lien or rights under the contract in these certificates, for at that time plaintiffs had lost all their rights.

If it is assumed that the Legislature intended that such levy of a new tax for a smaller amount under the Law of 1883, in lieu of such void tax and the collection thereof, should be for the benefit of those holding certificates of sale under the void taxes, even then we think the plaintiffs have failed to make out a case under such implied trust, they do not show that the city has levied a new tax for the taxes for which the sales were made, except that they have shown that after this action was commenced that the board of assessors certified that for all the arrears under the act they have fixed a gross amount deemed by them to be a fair and just compromise amount to be levied thereon in lieu of all arrears, and the plaintiffs do not show how much, of this gross compromise sum, if any, was in lieu of the taxes for which these sales were made and do not show that any portion of this gross compromise sum has been collected.

For these reasons we think all the causes of actions for the recovery back of the purchase money on these certificates are barred by the lapse of time. This point has not been passed upon by the general term of either the supreme court or the city court before, but by the special term of both courts, and we refer to the opinions in these special term cases. Roe v. City of Brooklyn, opinion by CULLEN, J. Coffin v. City of Brooklyn, opinion by VanWyck, J.

Judgment must be reversed, new trial ordered, with costs to abide the event.

REYNOLDS, C. J., concurs.


author: Pee Ctjeiam.

text:
    Frederick V. Pritsch, Appl’t. v. Otto Schlicht, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed November 22, 1886.)
    1. WiTNESS-=-WHEN exempt prom service op summons.
    Where the defendant being a non-resident of the city of Brooklyn, came within the jurisdiction of the city court of Brooklyn for the purpose of attending a criminal trial before a justice of the peace, as a witness, and for no other purpose, and the summons in this action' was served upon him immediately on the termination of the trial and before he had left the court room, Held that the service of the summons was properly set aside although there was no proof that defendant was subpoenaed to attend.
    2. Same — Exempt in going returning and staving.
    A witness or party coming voluntarily within the jurisdiction of a court of limited jurisdiction is exempt from the service of summons or other process for the commencement of an action in going, returning and staying.

    Appeal from an order entered on a decision rendered at Special Term vacating and setting aside the service of the summons upon defendant.

      Morris ‡ Pearsall, for appl’t; Greorge B. Armstrong for resp’t.
   Pee Ctjeiam.

The defendant being a non-resident of the city, came within the jurisdiction of this court for the purpose of attending a criminal trial before a justice of the peace. The summons in this case was served upon him immediately on the termination of the trial and before he had left the court room. The service of the summons was set aside by the order appealed from. We think the order was right, although there is no proof that the defendant was served with a subpoena to attend as a witness, there is no question but what he actually attended as a witness, and for no other purpose. In one of the cases before the justice he seems to have been the complaining witness. If his attendance was voluntary, it was no more so than that of any witness who comes from another state to' testify in our courts.

The Court of Appeals have settled it that a witness or a party who so comes from another state is exempt from the service of summons or other process for the commencement of an action eundo morando et redeundo. See Persen v. Grier, 66 N. Y., 124; Matthews v. Tufts, 62 How. Pr. 508. There seems to be no good reason for distinguishing between the case of a witness coming voluntarily within the jurisdiction of the Supreme Court, and one so coming within the jurisdiction of this court. The witness who comes to assist in the administration of the law, ought to have the same protection in one case as in the other. In Persen v. Grier, Judge Allen says: “ In some instances witnesses and suitors, residents of the state, have only been discharged from arrest upon filing common bail; but the service-of process upon non-resident witnesses and suitors, has been absolutely set aside, thus giving color to a distinction between the two classes in respect to their immunity. Whether any distinction should, or does in fact, exist, is at 'least doubtful. This immunity is one of the necessities of the administration of justice, and courts would often be embarrassed if suitors or witnesses, while attending court, could be molested with process. Witnesses might be deterred and parties prevented from attending, and delays might ensue, or injustice be done.” These remarks are made with reference to arrest, but the same reasoning applies to exemption from the service of summons. If, as the Court of Appeals holds, a witness, who from without the state, attends a court to give his testimony, shall not thereby be subjected to the jurisdiction of that court, for the purpose of commencing a suit against him, why should not the defendant in this case have the same protection ? Doubtless he would have justice done him if his case should be tried here, but he is not to be dragged in because he comes into the city as a witness in one of our local courts.

The order should be affirmed with $10 costs and disbursements.

REYNOLDS and Clement, JJ., sitting.


author: REYNOLDS J.

text:
    James T. Easton, Resp’t, v. Charles W. Cardwell, impleaded with Henry S. Hawkins, Appl’t.

      (City Court of Brooklyn, General Term,

      Filed December 27, 1886.)
    Aeeest — Order of — Wiiat a fraudulent disposition of property— Code Cry. Pro. , § 550, subd. 2.
    Where defendants gave a note to plaintiff for a debt and agreed to assign to plaintiff as collateral security for the note a bond and mortgage held by defendants, but put off the delivery by falsely pretending it was at the register’s office being recorded and meanwhile collected before maturity the money due th'ereon and paid another debt. Held, that defendants disposed of their property to defraud their creditors, and that the order of arrest was properly granted under Code Civ. Pro., § 550, subd. 2.
    Appeal from an order entered at the special term denying a motion to vacate on order of arrest granted in this action.
    Defendants were builders, and made a contract witb Easton to do all tlie plumbing of certain houses which they were engaged in erecting. When Easton’s work was completed, they owed him $671.25 ; he demanded his money but did not get it; defendants informed him that they sold one of the houses and had taken a mortgage thereon to secure him, and would transfer this mortgage and. the bond to him to secure the payment of their note which they offered for the indebtedness; he at first declined, but was finally persuaded to accept the note and the security. Cardwell, as an excuse for the absence of the mortgage, told plaintiff that it was being recorded, and he would get it and bring it to him with a proper assignment of the bond and mortgage, and a written promise substantially embodying the agreement was delivered to the plaintiff ; subsequently plaintiff sent for the bond and mortgage and assignment, and was put off from time to time with falsehoods; finally the note became due, and was* dishonored, and inquiry developed the fact that in the meantime defendants had parted with the title to all the houses; that judgments had been recovered against them, and the bond and mortgage promised to him had been discounted before it was due by the mortgagor for Cardwell, and the money received thereupon handed over to his father. Plaintiff was thus defrauded out of his debt which is represented only by a worthless judgment.

      James Troy, for resp’t; Samuel P. Potter, for appl’t.
   REYNOLDS J.

On the 10th day of Oct. 1884, the defendants were indebted to plaintiff in the sum of $671. 25, which was then due. On being pressed for payment, the defendant Card-well, as an inducement to plaintiff to take a note at thirty days for the amount, agreed to assign to plaintiff as collateral security for the note, a bond and mortgage held by defendants for $650, which Cardwell said would be soon paid, and the difference in tbe amounts paid in cash. The-note was accordingly given, and a written memorandum very inartificially drawn, by which defendants agreed to deliver to plaintiff the mortgage in question as soon as it was received from the registers office, as collateral security for the note. The writing speaks of the mortgage only, but the evidence'on the part of the plaintiff shows that the delivery of the bond and mortgage were both contemplated, and of this there can be no doubt. While the plaintiff, relying upon defendant’s promise, was waiting for the delivery of the bond and mortgage, the defendant procured the mortgagor to pay the same before its maturity, by allowing a discount of $75, and applied the money thus realized, to the payment of another note on which the father of defendant Cardwell ,was an indorser.

The court at special term held that in doing this, the appellant, defendant Gardwell, who appears to have been the active party in this transaction, disposed of his property with intent to defraud the plaintiff, one of his creditors, and accordingly sustained the order of arrest. We think this conclusion is well sustained by the evidence. Defendant obtained from plaintiff an extension of time, upon the promise to turn over the bond and mortgage to him, and although they applied the proceeds of it to the payment of another debt, it was a gross fraud upon the plaintiff who had acquired a right to hold it as security, or if paid, to have the money applied to his claim. It was not like the simple case of a debtor applying his property to pay one creditor, in preference to another; it was the violation of a legal and honest obligation.

. The order should be affirmed with $10 costs and the disbursembnts.

VAN Wyck, J., concurs.


author: Clement, J.

text:
    Samuel Morris, Resp’t, v. The Atlantic Avenue Railroad Co, Appl’t.

      (City Court of Brooklyn, General Term,

      Filed December 27, 1886.)
    Evidence — What admissible in action eor assault.
    Where plaintiff sued for damages for being put off from one of defendant’s street cars, because be refused to pay an extra fare for a bundle. Held, that testimony tending to show the number and location of the passengers in the car from the time plaintiff entered until he was put off was admissible.
    Appeal from- a judgment entered upon a verdict in favor of plaintiff at the trial term and from an order denying a motion for a new trial made on the judge’s minutes.
    This is an action for an assault and battery committed by the defendant’s servants upon the plaintiff. On the second day of March, 1886, the plaintiff became a passenger on one of the defendant’s cars on Adams street.

      The conductor of the car stood at the rear door when the plaintiff entered the car and said nothing to him. The plaintiff carried a bundle of picture frames, 24 inches long, 17 inches wide and about 2 or 3 inches thick, went into the car and took a seat with the bundle on his lap. The conductor collected the regular fare from the plaintiff and said nothing about the bundle, but returned to his place at the rear of the car. After going about one block and a half further the conductor returned to the rear platform and afterwards again went to the plaintiff and said: “You have to go outside on the platform. The conductor then returned to the rear platform and afterwards again went to the plaintiff and said: You must go out.” The plaintiff said he had paid his fare and had not much of a bundle and did not believe it was right to put him out. The conductor consulted with, the driver, and then said, he would kick plaintiff out. Then followed some excitement. The conductor returned again to the rear plat form and carried the plaintiff quietly to within two blocks of his home. While the plaintiff was sitting quietly in the car the driver and conductor grabbed him first by the hand, breaking the thumb and then by the coat and put him out of the car, and threw the bundle after him. The defendant claimed to have a notice in the car, that five or ten cents would be charged “ for each valise, basket or package too large to be carried on the lap of the passenger without incommoding others,” but there was no demand made for pay from the plaintiff for the bundle. Though there, was some testimony that the conductor demanded pay for thebundle, both the conductor and driver had previously testified before the police commissioner that the plaintiff was put off because he would not go on the front platform and said not a word about a demand or refusal to pay for the package. The conductor so told the policeman. The conductor testified that on the trial of the policeman he swore to the demand for the pay for the bundle. The plaintiff’s thumb was put out of joint in two places, he suffered great pain and could not sleep for four weeks.
    Backus, Manne; for resp’t. B. F. Tracy, for appl’t.
   Clement, J.

We are of opinion that it was not error to admit testimony tending to show the number and location of the-passengers in the car from the time plaintiff entered until he was put off.

The conductor saw the plaintiff enter the car with the bundles, and after he had taken a seat, received his fare.

If the bundles were too large to be carried without an extra charge, — the conductor may or may not have known that fact when he collected the fare, and whether his attention was so called was material on the main issue. And if the car had been ■ crowded with passengers, the counsel, for defendant could well argue to tbe jury tbat tbe conductor did not notice tbe size of the bundles until after tbe fare was paid.

If tbe conductor knew tbeir size when tbe plaintiff entered tbe car and when be collected tbe fare, it certainly was some evidence tending to show that tbe bundles were not large- enough to incommode tbe passengers.

We think further that the testimony was admissible in any aspect of tbe case. In an action for an assault, it is proper to show tbe presence of third parties and their location at tbe time of and immediately preceding tbe assault.

Tbe learned counsel for the defendant asked a question clearly proper which brought out the fact as to tbe number of passengers in tbe car. It would have been proper for tbe defense, if passengers bad been actually incommoded, to show such fact as a part of tbe transaction; and the plaintiff bad tbe right to prove all tbat took place in tbe car from tbe time he entered until be was put upon tbe street by tbe conductor.

Tbe testimony of the conductor taken before the police com-; missioner was also clearly admissible. On his direct examination be said “ I told him again, you will have to pay for them; ” and again on cross examination be made tbe same statement. The witness further testified, “ I swore before the police commissioner when I was making this statement of what happened, I told him unless he paid for tbat package he must get off.”

Tbe foundation bad therefore been laid for tbe questions asked.

Tbe witness also testified as to tbe size of tbe bundles on bis direct examination and on tbe cross examination bad been asked as to bis testimony before tbe commissioner on the same point. Tbe exceptions were not therefore well taken.

Tbe objection at folio 195 was properly overruled, as will be seen by reading the direct and cross examination of Weitler, the driver.

Tbe testimony by which tbe conductor and driver were sought to be contradicted, was not on a collateral issue, because each bad testified to the contrary on tbeir direct examination.

Tbe conductor and driver made a statement of what bad happened at the time of tbe assault, on tbe bearing before tbe commissioner, and if it differed from that which they gave on tbeir direct examination in chief, tbe plaintiff bad a right to prove that fact by laying tbe proper foundation and then proving the different statement.

It is claimed that tbe verdict should be set aside as excessive.

Tbe plaintiff, according to the verdict of a jury, was wrongfully and without cause put off tbe car.

While tbe plaintiff could not recover exemplary damages, yet be was entitled to be compensated for all injuries sustained, including the insult and humiliation, and we cannot say as matter of law that tbe verdict was, tm der all tbe circumstances, excessive.

Judgment and order denying new trial, affirmed with costs.

REYNOLDS J., concurs.


text:
    Hannah E. Hives, Adm’x, etc., of George Hives, dec’d, Resp’t, v. Brooklyn City Railroad Company, Appl’t.

      (City Court of Brooklyn, General Term,

      Filed December 27, 1886.)
    Negligence — Contributory — Railroads.
    This action was brought to recover damages for injuries resulting in death; intestate being crushed between two trains on the. defendant’s railroad. The intestate, in endeavoring to board a slowly moving train had run across the track in front of another train approaching slowly from the opposite direction, and finding he was too late, stood between the tracks and was crushed by reason of the hind truck of the car he wished to board being off the track, which threw the rear of that car into collision with the other train. Held, that it was not negligence per se to stand between the tracks, but a question for the jury.
    Appeal from a judgment in favor of plaintiff entered on a verdict at a trial term and from an order denying a motion for a new trial made on tbe judge’s minutes.
    On December 10, 1884, at about 6.15 A. M., George Hives was killed by being crushed between two trains on tbe defendant’s railroad upon Third Avenue, Brooklyn. It was very dark at tbe time, being not yet daylight. A train was moving away from 55th Street station slowly in a northerly direction towards Brooklyn. Hives ran to get upon this train, but upon getting to it saw that tbe gate of the platform was closed, and tbe train was in motion, so he made no attempt to board it. At tbe same time another train coming from Brooklyn, also moving very slowly, approached 55th Street station, being about to stop there. At the time these trains were about to slowly pass each other the deceased was standing on the highway between the two tracks waiting for them to pass by. If the two trains had been on the tracks there would have been 28 inches of space between them and the deceased, who was a small man, but 18 inches across the shoulders, could not have been crushed between them, but the hind trucks of the rear car of the Brooklyn train were off the track, which threw the rear of that car into collision with the other train, and in that way deceased was crushed between the two trains and killed.
    The evidence tended to show that the Brooklyn train had been run through the city for a half a mile previous to the accident with the rear wheels off the track.

      Morris L. Pearsall, for applt; Charles J Patterson, for resp’t.
   Clement, J.

The plaintiff is the administratrix of George Hives, who, on the morning of December 10, 1884, was run over by a car of tbe Third Avenue line, operated by defendant, at the corner of Fifty-fifth Street and Third Avenue in Brooklyn.

Hives died from his injuries and this action was brought under the statute to recover damages for the benefit of the next of kin, and a verdict was recovered at a trial term for the sum of two thousand five hundred dollars, and from the judgment entered on said, verdict, this appeal is taken.

The train from Fort Hamilton to Brooklyn stopped at Fifty fifth Street,a regular station,and the deceased, who lived on Fifty-fifth Street ran-to take the train after it had started, and while it was moving slowly. He crossed about twenty or twenty-five feet in front of the engine of another train going toward Fort Hamilton, and, slowing up to stop at the station, and reached a point opposite the front platform of the rear car, on which the gate was closed, and was last seen, before he was injured, standing on the •street between the tracks.

Mr. Haskins got upon the rear platform of the first car which was adjoining the front platform of the rear car, as there y^ere but "two cars on the train, and testifies, “ I did not move along between the trains; when I stepped on the platform, the other train had not got up to me yet.”

The testimony of Mr. Haskins tended to show that' the deceased did not attempt to get upon the car, and further that he ■did not run between the trains.

The testimony further shows that Hives ran diagonally •across Third Avenue and reached a point between the tracks, when he stopped, abandoning the attempt to get on the train.

The point where he stopped was a safe place for a person to stand between two trains running slowly, under ordinary circumstances. The train had only moved a short distance, about thirty feet, when there was a crash .and Hives was mangled.

The plaintiff proved to the satisfaction of the jury that the Find truck of the rear car was off the track, and that such was ■the fact for some distance before the train stopped at Fifty-fifth .Street.

It was conceded by the defendant that the truck was thrown off in tbe direction of the other train after the accident, but it was claimed that it was caused by contact with the body of •deceased.

There was sufficient testimony to justify the submission to the jury of the question, whether or not the truck was off the track before the train stopped at the station.

We do not think such a claim is preposterous, as argued by the learned counsel for the defendant.

If we go outside the record and take our ordinary experience, it is a well known fact that horse-cars when off the track are drawn on again in the manner claimed in this case and we know of no reason wliy the cars moved by steam power may not be drawn upon the track in the same manner.

We think, however, that the case should be decided on the record and that we cannot set aside the verdict on the ground that the.same is against the weight of evidence.

Whether there was contributory negligence on the .part of the deceased is a more difficult question to decide, but on the whole case', we are of opinion that such question was for the jury to decide and not the court..

Assuming that the rear truck was off the track, it is very clear from the testimony, that the deceased was crushed between the cars.

It does not seem negligent as a matter of law for an individual to stand between two trains running slowly, within thirty-five feet of the place where one of the trains was about to stop.

Even the engineer of the down train did not regard the deceased in danger unless he attempted to board the other train for he says that he shouted, “ Don’t take hold.”

The deceased, according to the proofs of plaintiff, would not have been injured unless the defendant had started the train when the truck was off the track.

The case was properly submitted to a jury, and their verdict should not be disturbed.

Though the exceptions to the admission and exclusion of testimony were not orally argued, yet we have examined the same and find-no error.

Judgment and order denying new trial affirmed with costs.

REYNOLDS, J., concurs.


author: REYNOLDS, J.

text:
    Morris Spiegel, Resp’t, v. Isaac Hays, impleaded, etc., Appl’t.

      (City Court of Brooklyn, General Term,

      Filed December 27, 1886.)
    Bill op sale — Wmif it conveys good title to goods.
    Where S. who owed plaintiff certain money which he was unable to pay, made a bill of sale of certain goods to plaintiff and delivered the goods to plaintiff, who cancelled the debt and paid S. some $300 in cash for the purposes of living. The amount of the debt plus the $300 being a fair price for the goods. Held, that S. reserved no interest or trust in the property conveyed, and that there was no intent to hinder, delay or defraud the creditors of S. That the bill of sale gave good title to the goods.
    Appeal from a judgment entered on a verdict at the trial term in an action against the sheriff of King’s county to replevy certain goods taken under a warrant of attachment issued out of the Supreme Court against Leon Samuels.

      Jerry A. Wernberg, for resp’t;. Blumensteil JSirsch, for appl’t.
   REYNOLDS, J.

Upon tbe evidence and upon the charge of the court the verdict must be taken as establishing that the plaintiff had a valid claim against one Samuels for about seventeen hundred dollars, and a part of said money being overdue, plaintiff pressed for payment, whereupon Samuels being unable to pay the money, proposed to turn out goods to liquidate the whole claim, insisting, however, that plaintiff should advance some $375 in cash which he, Samuels, needed for his personal uses, which advance was also to be covered and paid by the goods turned out to the plaintiff.

Plaintiff complied with the condition for the purpose of securing his debt in the manner proposed. A bill of sale was' made, the claim against Samuels discharged, and the cash above named advanced. This transaction is found to have been bona fide, and without intent to hinder, delay or defraud the creditors, of Samuels.

The only serious question arising upon this appeal, was raised upon the motion to. direct a verdict for defendant at the close of plaintiff’s testimony, and by the 5th and 6th requests to charge.

The defendant’s contention is “ that one of the conditions under which this transfer was made was that Mr. Spiegel should give this man three or four hundred dollars for the purpose of living, and that amounted substantially to making a bill of sale, reserving an interest in the grantor.”

We cannot see how this was a reservation of an interest or trust in the property conveyed. What it amounted to, was simply that the plaintiff was compelled, in order to secure his claim, to pay a certain amount in cash, in addition to discharging the indebtedness, the whole being at least an adequate price for what he got, and the money paid belonged to the vendor to do with it what he pleased. The plaintiff had nothing to say as to the use that should be made of it. The price paid passed absolutely to plaintiff.

This disposes of the exceptions taken at the close of plaintiff’s case, and to the refusal to charge defendant’s 6th request. The 5th request is as follows: “ If any interest in the property was reserved to the debtor, or some benefit secured to him with the knowledge of Speigel, then the conveyance is void.” The court of course would have charged, that reserving to the debtor an interest in the property conveyed, would vitiate the conveyance ; but in the light of the position adhered to by defendant throughout the trial, the second clause of the request, to wit: “ some benefit secured to the debtor with the knowledge of Speigel,” seems plainly to refer to the use or benefit which the debtor secured by exacting the money, over and above the indebtedness, as the consideration for making the conveyance. At any rate, it is broad enough to cover the defendant’s claim on that subject. For the reasons already given, this part of the request was unsound. The exception taken to the refusal to charge the request as a whole, must therefore fail.

The judgment and order denying new trial must be affirmed with costs of appeal.

CLEMENT, J., concurs.


author: Reynolds, J.

text:
    Frederick Schroeder, Appl’t, v. Theresa Ennis, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed December 27, 1886.)
    Practice — Jurisdiction — When court of equity will retain an action.
    The mere allegation in the complaint of grounds of equitable jurisdiction is not sufficient to call upon the court to exercise its equity jurisdiction. There must be facts shown sufficient to make out a case for equitable cognizance before the court will retain the case, and before jurisdiction attaches for the purpose of giving complete relief.
    Appeal from a judgment entered at special term in favor of defendant.

      Edward P. Wilder, for appl’t; William E. Shields, for resp’t.
   Reynolds, J.

The plaintiff invokes the equity jurisprudence of this court, to compel the specific performance of an alleged agreement to execute a lease of certain premises, and to enjoin the defendant from taking summary proceedings to remove him from the premises, as holding over after the expiration of his tenancy.

The testimony is contradictory as to the making of any such agreement as the plaintiff sets up, and the court has found against the plaintiff. The trial judge had the best opportunity of determining the disputed question of fact, and we cannot well interfere with his finding.

This disposes of all ground of equitable relief, and leads to a dismissal of the complaint.

The plaintiff contends, however, that the defendant, by accepting the rent for the month of May, 1886, virtually renewed the lease for another year, and that the plaintiff was entitled to remain on that ground, The court has found that the letting was by the month, but if the plaintiff’s position be conceded, it would have been available as á defense in the summary proceeding, and therefore presents no ground for the interposition of this court. It was argued that the court having once obtained equitable jurisdiction of the case, should retain it for the purpose of deciding all the questions and doing justice between the parties. If this be so, all that a party need do, to transfer his litigation to a court of equity, is to allege grounds of equitable jurisdiction, and upon the trial come in with a purely legal cause of action or defense. It must be the facts and not the allegations which. call upon tbe court to exercise its equity jurisdiction. It is true, that if the facts make out a case for equitable cognizance, the court may retain the case, so that jurisdiction rightfully attaches- for the purpose of giving complete relief, even though some part of such relief might have .been obtained in a court of law. According to the finding in the case, however, the plaintiff never had a case for submission to a court of equity, and as to his alleged legal defense to the action of his landlord, he had his opportunity before the appropriate tribunal.

We think the judgment should be affirmed, with costs of appeal.

CLEMENT, J., concurs.