author: Landon, J.: Learned, P. J.

text:
    MATTER of the Sale of the Real Estate of JOHN P. DODGE, Deceased. CATHARINE E. DODGE and Another, Appellants, v. JOSEPH T. STEVENS, Respondent.

      Conversion of real estate into personal property — when not absolute but only partial — interest of one entitled to an estate inland on the remarriage of a widow — nature and quality of it— it cannot be sold in proceedings for the sale of the real estate of an infant — it is not real estate within the meaning of chapter 211 of 1873 —power of a surrogate to allow costs to a special guardian — Code of Civil Procedure, sec. 2561.
    Where it appears from tlie terms and provisions of a will that the testator intended that his debts should he paid from his personal property, and that his real estate should he charged with only the amount of the incumbrances existing theron, a clause conferring upon his executors authority to sell and dispose of his real estate, at such time or times and in such manner as they shall deem advantageous, and directing them to dispose of the proceeds as thereafter provided, does not convert the real estate into personal property for all purposes, hut only for the purpose of division, and the proceeds arising therefrom should not he treated as personal property liable for the payment of the testator’s debts.
    A testator who died in 1869, devised and bequeathed to his wife all his personal property remaining after the payment of his debts, and also the use, benefit and occupation of a farm, for the time and so long as she should remain his widow, and in case she should not marry again, then he devised and bequeathed said farm to her in fee. By a subsequent clause, it was provided that in case his wife should marry after his decease, he gave, devised and bequeathed the said farm to his daughter Catharine E. Dodge in fee.
    On April It), 1870, one Thompson, as special guardian, pursuant to an order of the Supreme Court, conveyed the interest of the infant Catharine in the said farm to one Coulter, by a conveyance which was duly recorded, and on the same day Dora A. Dodge, the widow, conveyed her estate and interest therein to the same person. On February 3, 1879, the said premises were bought by the special guardian, individually, at a sale had under the foreclosure of a mortgage given to him as special guardian to secure a portion of the purchase-money. February 6, 1879, Dora, the widow, remarried.
    On December 4,1882, proceedings were instituted in a Surrogate’s Court, by a creditor of the deceased, to have the said farm sold to pay the debts of the deceased testator.

      Held, that the statute of limitations was no bar to the claim of the creditor or to his instituting the proceedings.
    That the said farm was, at the time the proceedings were instituted, vested in. the testator’s daughter, Catharine E. Dodge.

      That the sale by the court of the possible interest of the daughter in the farm, during the lifetime and before the remarriage of her mother, was invalid because both unauthorized and forbidden by the statute, which does not authorize the sale of such a possibility but of lands whereof the infant is seized. (Learned, P. L, dissenting.)
    That chapter 311 of 1878, forbidding the sale of the real estate of a deceased person for the payment of his debts, when it has passed from the heir or devisee by conveyance or otherwise to a purchaser in good faith, unless application for such sale be made to the surrogate within three years after the granting of letters testamentary, did not affect this case. (Learned, P. J., dissenting.)
    2561 of the Code limits to seventy dollars, the discretion conferred upon a surrogate in determining the amount of costs, in addition to disbursements, which should be allowed to the special guardian of an infant devisee.
    Appeal from a decree of tbe Surrogate’s Court of Sullivan county directing’ certain real estate to be sold to pay a claim of a creditor of tbe estate of John P. Dodge, deceased.
    This proceeding was commenced on the 4th of December, 1882, by the filing of a petition by tbe respondent Joseph T. Stevens for a disposition of the real estate of the decedent for the payment of his debts.
    The petitioner’s claim is upon a bond under seal, executed by the decedent May 1, 1868. The obligor died in April, 1869, leaving a will, also a widow and five children. Letters testamentary were granted to John A. Thompson May 10, 1869, and he is still acting as executor. The deceased left some personal property which was inventoried and appraised at the sum of $3,992.77, and some additional claims amounting nominally to the sum of $2,356, which were included in the inventory as of no value. lie also left five parcels of real estate, viz.: Pirst. Property situated at McCoomb’s dam* covered by mortgages amounting to $25,000. Second. Property at Spuyten Duyvel, known as the “ Spuyten Duyvel property.” This was sold by the executor under a power in the will for $7,500. Third. A small lot at Prospect Hill, in Westchester county, of no •practical value. This lot was subsequently sold for taxes and is now held under a tax title. Fourth. A farm in Sullivan county devised to a son Michael D. Dodge. This farm was sold by tbe devisee, and is now beld by a bona fide purchaser. Fifth. Another farm in Sullivan county devised to tbe widow, and in the event of her remarriage a contingent remainder over to a daughter, Catharine E. Dodge. Tbe widow remarried February 6, 1879, and it is claimed that this farm is bow owned by the daughter as a devisee. This is the property directed to be sold by the decree appealed from. The bond now held by the petitioner was, at the testator’s death, secured by a second mortgage on the property at MeCoomb’s dam, the parcel first above mentioned. That property was sold under a foreclosure of the prior mortgage, and a surplus arising from the sale of $560 was applied on this bond. No accounting was ever had by the executor.
    The surrogate found, among other facts, that the real estate known as the Dodge farm, situated in the town of Tompkins, Sullivan county, N. Y., was devised to the widow in fee, if she remained unmarried; should she marry again then the daughter, Catharine E. Dodge, was to have the farm. That on or about April 19, 1870, pursuant to an order of the Supreme Court in proceedings to sell the interest of Catharine E. Dodge in the Dodge farm, John A. Thompson, as special guardian for said Catharine E. Dodge, executed and delivered a conveyance of the interest of Catharine E. Dodge to one Julia A. Coulter, which conveyance was duly recorded in the Sullivan county clerk’s office. That on the same date Dora A., the widow of said John P. Dodge, deceased, executed and delivered to said Julia A. Coulter a conveyance of her estate and interest in the Dodge farm. That the consideration of the said conveyance was $7,300, of which the said Julia A. Coulter paid $2,300 in cash, and the balance of $5,000 was secured by the bond and mortgage on the said Dodge farm to said John A. Thompson as such special guardian. That thereafter, and in the year 1878, said $5,000 mortgage was foreclosed by said Thompson as such special guardian, and a decree of foreclosure and sale entered therein about October 29, 1878. That pursuant to said decree of foreclosure and sale -the said Dodge farm was sold by "William B. Niven, Esq., a referee, on or about February 3, 1879, to John A. Thompson, individually, for the bid of $5,000, and a conveyance was executed by said referee to said Thompson and recorded. That on the 6th day of February, 1S79, Dora A. Dodge, the widow of John P. Dodge,-remarried. That the personal property of the deceased was wholly insufficient for the payment of his just debts and funeral expenses. That the debt of the claimant for the payment of which a decree herein is sought was a debt of the decedent and is due and owing the petitioner herein. That thereat property in regard to which a decree is sought was not effectually devised or expressly charged with the payment of debts or funeral expenses and is not subject to a valid power of sale for the payment thereof. And as conclusions of law he found that there is justly due and owing the petitioner herein upon the bond executed by John P. Dodge, as aforesaid, the sum of $3,555.28. That the real estate known as the Dodge farm, and herein sought to be charged with the debts of the decedent, is now held by Catharine E. Dodge, as devisee under the will of said John P. Dodge, deceased, and not as purchaser under the proceeding to foreclose the mortgage executed by Julia A. Coulter to John A. Thompson, as special guardian of the said Catharine E. Dodge, and that Julia A. Coulter acquired no title to said premises under the proceedings to sell the real estate of Catharine E. Dodge. And that the title of the said Julia A. Coulter acquired from the purchase from the widow was a conditional fee and subsequently defeated by the remarriage of the widow in February 1, 1879. That under the provisions of the will of John P. Dodge his personal property was not chargeable with the payment of the petitioner’s debts, but that the same was specifically charged upon the McComb dam property. That the testator, by his will, does not convert any part of the real property into personal assets for the payment of debts except the direction as to the MeComb’s dam property. That the claim of the petitioner is not barred by the statute of limitations, and that his right to maintain these proceedings is not barred, the same having been commenced within the time permitted by law. That there has been no accounting by John A. Thompson, as executor of the will of John P. Dodge, deceased, as is required in chapter 6, part 2, title 3 of the Revised Statutes. That the petitioner should have a decree directing the disposition of the real property of the decedent for the payment of his debts, and that the real estate known as the Dodge farm should be disposed of to pay the claim of the petitioner, together with the costs of these proceedings.

      George W. Weiant, for the appellant.

      T. F. Bush, for the respondent.
   Landon, J.:

That the statute of limitations was no bar to the claim of the creditor, or to his instituting this proceeding for the sale of the real estate of the deceased for the payment of this debt, was necessarily involved in and disposed of upon the former appeal.

The finding of the surrogate that the personal property of the-deceased was wholly insufficient to pay his just debts and funeral expenses is justified and required by the evidence. The will of the testator did not authorize any of his real estate to be applied in payment of his debts, except mortgage debts, and in that case the mortgaged parcel was to be applied in payment of the mortgage debt. The will, it is true, did authorize the executor to sell certain, parcels of real estate, not, however, for the payment of debts, but that the proceeds might be divided among certain beneficiaries. The will did not contain any devise of this real estate to the executor, but with respect to it declares: “ I hereby authorize and empower my executor to sell and dispose of it, at such time or times and in such manner as he shall deem advantageous,” and then follow elaborate provisions for the disposition of the proceeds. He then authorized his executor to lease said real estate and collect the rents until such time or times as he shall deem it advisable to sell and dispose of the same,” and he directed the disposition of the rents. The will gave to the testator’s widow his personal property, after the payment of his debts except his mortgage debts. The executor did sell a parcel of this land for $7,500. If by the will this land was converted into personal property “ out and out,” for all the purposes of administration, then the executor should account for it in this proceeding. The surrogate held that the testator, by his will, did not convert any part of this real property into personal property for the payment of debts, and upon this finding rested his further finding that the personal property of the testator was insufficient for the payment of debts.

We think the testator intended that for the purpose of the division of this real estate among his beneficiaries in the manner indicated by him, it should be converted into money. It would be difficult to carry out the scheme of his will otherwise. He does not devise this real estate to any one, but does make disposition first “ of $1,000 of the proceeds thereof,” and then of “the rest and residue of the proceeds of my real estate and lands herein above directed to be sold,” thus indicating that the authority he gave to his executor to sell was equivalent to a direction to sell. We think there was an equitable conversion. (Power v. Cassidy, 79 N. Y., 602 ; Lent v. Howard, 89 id., 169; Fisher v. Banta, 66 id., 468; Dodge v. Pond, 23 id., 69; Chamberlain v. Chamberlain, 43 id., 424.)

But we do not think it was a conversion out and out for all purposes of administration, so as to be made applicable as personal property to the payment of the testator’s debts.. In Fisher r. Banta, the court say : “ The conversion may be entire, embracing the whole estate, or partial, extending only so far as is necessary to satisfy special purposes indicated in the will. The matter to be considered is the intention of the testator. The conversion, whether absolute to all intents or partial only, is the one or the other, because the purpose of the will, i. e. the intention of the testator, was that the conversion should be general or partial for all purposes, or for limited purposes only.”

It is apparent from the will that the testator supposed he had personal property enough to pay his debts, except his mortgage debts, and that as to the latter the mortgaged land was sufficient or more than sufficient to satisfy them. It probably never occurred to him that any of his other real estate would need to be applied to the payment of his debts, and, therefore, when he directed that certain of his real estate should be converted into money, he thought only of the money as a convenient means of division and form of gift. The testator manifestly did not intend to give to this rea.1 estate the' quality of personal property for all intents and purposes, but only for the purposes of division, and as his intent, as expressed by the will, would govern, this real estate did not become personal property for the payment of his debts. (Story’s Eq, § 793, note 2.)

It was proper for the executor to present his account in writing, to the end that the same might be made the basis of common law-proofs and a common-law examination. The facts which the creditor had to establish were that all the personal property of the decedent, which could have been applied to payment of the decedent’s debts and funeral expenses, has been so applied, * * * and that it is insufficient for the payment of the same as established by the decree.” (Code, § 2759.) Clearly it is the duty - of an executor to keep an account. That lie has done so is proved by his production of it. But the truth of that account is not thereby proved. The executor is called as a-witness and subjected to a common-law examination, and it is upon this common-law evidence that the surrogate determines the facts.

The real estate in question, known as the “ Dodge farm,’’ is vested in the testator’s devisee, Catharine E. Dodge, by virtue of the will. We think this was the clear intimation of the Court of Appeals when her title was there established. (Dodge v. Stevens, 94 N. Y., 209.) But, independently of that intimation, the following considerations lead to the same conclusion: A fee may be limited upon a fee upon a contingency. (1 R. S., 724, § 24.) The second fee is a future estate. (Id., 723, § 10.) Future estates are either vested or contingent. (Id., § 13.) These words are used in. opposition to each other. An estate cannot be both vested and contingent. It is contingent when the event upon which it is limited to take effect remains uncertain. (Sec. 13.)

In this case the remarriage of the widow was an uncertain event, and, therefore, the creation of this future estate was only inchoate, and could not ripen into an actual creation thereof until the uncertain •event transpired.

The common law was to the same effect. Thus, in Boraston’s case (3 Coke’s Rep., 20): “ When a remainder is limited to take effect on the doing of an act, which act will be the determination of the particular estate, yet if the act depends on a casualty and mere uncertainty whether it will ever happen or not,' there, also, the remainder doth depend in contingency and shall not presently vest.” This •devise to the daughter, although falling within the definition of a fee limited upon a fee upon a contingency,” may also fall within the definition of section 27, which provides that a remainder may be limited on a contingency which, in case it should happen, will operate to abridge or determine the precedent estate. “ Every such remainder,” the section provides, shall be construed a conditional limitation, and shall have the same effect as sncli limitation would have at law.” The revisers in their notes state the effect of a conditional limitation, to be, that when the condition is broken or performed the remainder commences in possession, and the person entitled, under - it .lias an immediate right to the estate. (4 Kent, 250.) But liow was it in the meantime ? At common law this devise to the daughter would have been an executory devise, and by force of the term executory the implication is that no title vests until the devise is executed by the happening of the condition.. The distinctions necessary to be noted are well pointed out in Proprietors, etc., v. Grant (3 Gray, 142). Speaking of the conditional limitation in an executory devise, it is remarked : The-limitation over being executory and depending on a condition or an event, which may never happen, passes no vested interest or estate. It is impossible to ascertain in whom the ultimate-right to the estate may vest, or whether it will ever vest at all, and, therefore, no conveyance or mode of alienation can pass an absolute title.” (Page 148.) If the infant were competent to contract she could release to her mother, the devisee of the first fee, the right to her possibility. (Miller v. Emans, 19 N, Y., 384.) This for the reason that while public policy forbids the sale of a mere contingency, it favors the merger of the whole title in the-present owner in possession. This remainder, the statute says, shall be construed as a “ conditional limitation,” not an absolute limitation. It can only pass when -the condition happens. What title has the remainderman ? The simple right to await the happening of the condition and then to avail himself of it. In Kenyon v. See (94 N. Y., 563) it was held that before performance of the condition nothing vested, but that it was possible that the conditional legatee, by his assignment of his interest to the first taker, would be barred as by estoppel. The point was not decided.- But an infant 'cannot be estopped by matters in pais.

The sale, by the court, of this possibility was invalid because-both unauthorized and forbidden by the statute. The statute does not authorize the sale of such a possibility, but of lands whereof the infant is seized. (2 R. S., 194, § 170.) To sell the.possibility before the devise took effect would be to defeat the devise itself, and that the statute forbids. (Id., 195, § 176.)

It is suggested that the devise to Catharine created an expectant estate, and expectant estates are alienable. (1 R. S., 725, § 35.) But they are not alienable by the court unless the infant is seized of them either in fact or in 'law. There was no seizin in fact, and there could be none in law until the infant’s title had accrued. It may bo doubted whether the devise to the daughter was of an expectant estate under the definition given by the statute. This definition is of estates “ as respects the time of their enjoyment.” (Id., 722, § 7.) Here the future contingent event had respect to the going into effect of the devise itself. The gift was postponed, not the time of its enjoyment, for the right to enjoy was complete eo imtanti the gift was complete.

It may be asked why is not this a vested interest under the statute as expounded in Moore v. Littel (40 N. Y., 66). Here, as there, you can point to the person who would have an immediate right to the possession of the lands upon the ceasing of the precedent estate. The answer is that there the remainder was absolutely given to somebody, here it was not. A remainder existed and if you could point to its next owner upon the present determination of the present title the next owner is presently vested with his expectant title. Here no subsequent title is created, and .until it shall be, it cannot exist. Time is annexed to the substance of the gift and the vesting is postponed. (Delaney v. McCormack, 88 N. Y., 183.)

It follows that chapter 211, Laws 1873, forbidding the sale of the real estate of the deceased for the payment of liis debts where it has passed out of the heir or devisee, by conveyance or otherwise, to a purchaser in good faith, unless application for such sale be made to the surrogate within three years after granting of letters testamentary, does not affect this case.

We do not think that the surrogate was required to pass upon any requests to find, except upon the settlement of the case under section 2545 of the Code. Section 1023 does not apply. (Hartwell v. McMaster, 4 Redf., 389.)

The surrogate had a discretion limited by law, as to the amount of costs he should allow the special guardian of the infant devisee. Section 2561 of the Code fixes the limit in eases of contest to seventy dollars in addition to the disbursements. We are cited to cases to the effect that this limit does not apply to special guardians in Surrogates’ Courts. (Matter of Budlong, 33 Hun, 235; McCue v. O'Hara, 5 Redf., 336.)

The case in Hun was decided, however, upon other grounds. Grant that independently of the statute the court had the power to allow to a special guardian reasonable compensation, that compensation should be for costs and expenses. 'Wiry else should he be paid anything from the fund \ Clearly it was competent to regulate such costs and expenses by statute. Code (§ 474) speaks of this allowance a3 “ costs and expenses,” and section 2561 fixes the limit to the costs,” which, in addition to the disbursements, the surrogate may, as he deems reasonable,” allow. It may be conceded that cases of hardship to the attorney may arise under this construction, but if it is not to obtain, cases of hardship to the infant will also arise. Nothing is more difficult justly to administer than discretionary allowances, and where the statute has set a limit it should be upheld not only as a relief to the courts but as a protection to clients.

The decree of the surrogate should be affirmed, with costs, including those of the special guardian, to be paid out of the fund.

Bockes, J., concurred.

Learned, P. J.

(dissenting):

The will gave the land to the widow in fee, and further declared that if she should marry, then the land should go to the daughter, Catharine E., in fee.

At common law this devise to the daughter would have been an .executory devise. It is now a future estate (1 R. S., m. p. 723, §10); that is, it is limited to commence in possession at a future day, on the determination of a precedent estate created at the same .time. A fee may now be limited on a fee (see p. 724, § 24), so that we have no longer to look to the law of executory devises, but can base the discussion on the statute.

A future estate belongs to one of the classes of expectant estates (m. p. 723, § 9). Tt is, therefore, descendible, devisable and alienable the same as estates in possession (m. p. 723, § 35). This •future estate is contingent (m. p. 723, § 13). But it is declared to be an estate by these sections, and is not a mere possibility like the probability of an heir’s inheriting from his ancestor. Even before the Revised Statutes, a contingent estate like this was assignable. (Miller v. Emans, 19 N. Y., 384.) And certainly so since the Revised Statutes. (Moore v. Littel, 41 N. Y., 66 ; Van Ness v. Day, 7 Alb. L. J., 172.) These were cases of conveyances, not to tbe party in possession. They were, therefore, upheld not on the ground of merger, bnt on the ground of. the general alienability of such an estate.

Then the question arises, can such an estate belonging to an infant be sold under the statute? The statute (2 R. S., m. p. 194, § 100 [170]) says: “Any infant seized of any real estate or entitled to any term for years,” etc. Section 105 (175, m. p. 195) says: “Any part of the real estate of such infant.” The question is, what does the word “ seized ” here mean ? The proper meaning of seizin is possession, as of freehold. (Digby Real Prop., 40 n.) And livery of seizin, that is delivery of possession, went with a feoffment. This is abolished. (1 R. S., m. p. 738, § 156 [136].) Nor could there be then a livery of seizin in a case of a devise. (1 Wash. Real Prop., m. p. 34, § 73.) Whatever may have been the early doctrine, it has long been the language of the law that a reversioner or remain-derman in fee was seized of his estate. The sale of this infant’s real estate was not contrary to the provisions of the will. (2 R. S., m. p. 195, § 106 [176].) Because we have just seen that the daughter, Catharine E., when of age, could convey this expectant estate. Therefore, she was not forbidden to convey by the provisions of the will.

If the provisions of the will did not forbid her to convey, when she should be of age, clearly the court did not act against those provisions by authorizing a conveyance when she was a minor. Nothing is said in the will about her minority. The case of Rogers v. Dill (6 Hill, 415) has nothing applicable to this case.

In Baker v. Lorillard (4 N. Y., 257) there was a devise^ made before the Revised Statutes, of an estate for life to D. P. C., remainder in fee to his children; executory limitation to Thomas, if D. P. C. left no children at his death, and there was a power of appointment by will in D. P. C. In 1825 D. P. C. had five children, minors, and the usual order of sale was made, which by its terms was to cut off after-born children. Subsequently three more were born. The court held that after-born children were not affected by the sale. Some of the judges would express no opinion whether the sale bound all or only those living. The majority seem to have thought that it bound those who were living (see' p. 270), notwithstanding the executory limitation. Durando v. Durando (23 N. Y., 331) only holds that a widow is not dowable when the husband had only a vested remainder in fee.

In Jenkins v. Fahey (73 N. Y., 355, and see Taggarts. Murray, 53 N. Y., 233) a will gave a life estate to Cornelia, with remainder to her issue living at her death, with power to her in default of issue to appoint the fee by will. It was held that, prior to the death of Cornelia, the court might order the sale of the interests of the minor children then living. Yet their interest were subject to two contingencies: First, that there might be after-born children; second, that those whose interests were sold might not survive Cornelia. To the same effect is Haight v. Haight (14 Hun, 176). If any argument may be drawn from the present law there can be no doubt that the interests of the infant under this will could be sold (Code, § 2348), and that section does not purport to make any change.

It has sometimes been urged that a power to sell expectant estates would lead to a sacrifice of the interests of minors. But the court has a discretion. It need not order a sale if it sees that a sale is unwise. In this very case the purchaser would probably not have taken a title from the widow alone, or the title of the children alone. But by obtaining a deed from the widow and one from the special guardian, he received (as he thought) a title free from all contingencies, and, therefore, paid (as we may suppose) a fair price. Thus the property was made available both for the widow and the minor.- If the view taken by the respondents be correct nothing could be done, during the minority of the infant, to protect hex against the loss which delapidation was bringing on the property. I am, therefore, of the opinion that the word “ seized ” in the section above quoted is not used in any narrow or technical sense; that it is explained by the words “any part of the real estate of such infant” in a following section. And that it includes any estate which the infant would be able to convey, but for his defect of age. 1 see no reason why an exception should have been intended by the revisers in respect to infants- when all estates were made alienable without restriction.

If we turn back to section 97 (167, p. 194) we find that an infant trustee for others may be compelled to convey, etc., as the court may direct. The language is “ seized or possessed,!’ Is there any doubt that tliis section would include a contingent estate thus held intrust? I have found no decision, and none lias been cited, bolding tbe contrary to tbe views thus stated. There is another view. Executed •contracts such as deeds will generally be deemed ratified unless dis-affirmed by an infant before be arrives at age or within a reasonable time thereafter. No person but the infant can set up tbe defense ■of infancy. (Beardsley v. Hotchkiss, 96 N. Y., 201 at 211.) Catharine E. Dcdge may then ratify, or fail to disaffirm, tbe conveyance made in her name by tbe special guardian, if indeed the action of Dodge v. Stevens (94 N. Y., 209) wa? not of itself a ratification. What right has Stevens, tbe respondent here, to set up tbe invalidity of legal proceedings to which tbe parties interested make no objection ?

The object of tbe statute (chap. 211, Laws of 1873) is that when three years shall bave expired after granting letters, and no application for sale of lands shall bave been made, a person may purchase in safety from tbe heirs or devisee. Here Mbs. Coulter bought in good faith. The devisees conveyed; one of them through the action of the court. The consideration was paid or secured. If there were any defect the grantor ought in good conscience to ratify. And this creditor, who has waited from the probate of the will in 1869 down to 1882, should not be allowed to assert this defect.

Decree of surrogate affirmed, with costs; costs of special guardian to be paid from fund.


source: Caselaw Access Project

author: Learned, P. J.: Landon, J.:

license: Public Domain

text:
    THOMAS H. B. CRANE, as Assignee of ELI VAN BROCKLIN, etc., Respondent, v. ISAAC A. ROOSA, as Sheriff, etc., Appellant.

      ■General assignment — individual creditors preferred to firm or editors — validity of a sale, by one pa/rtner to Ms copartner, of an interest in an insolvent firm.

    In October, 1884, one Johnson, who was carrying on business, sold a half interest therein to one Van Brocklin for $500. These parties then carried on business as partners until January 8, 1885, when Johnson sold his entire interest for $500 to Van Brocklin, who assumed the liabilities of the firm and carried on the business until February 3, 1885, when he made a general assignment to the plaintiff containing preferences. In the second class of preferences were two notes for $500, given for money borrowed to pay Johnson for the two purchases of hia interest in the business.
    .The defendant, a sheriff, attached and took the property under an attachment issued in an action, brought by a firm creditor on February 16, 1885, in which a judgment was recovered on March 9, 18S5. The defendant claimed that the assignment was void for the reason that when Johnson sold to Van Brocklin the firm was insolvent, and that Van Brocklin had no right to prefer individual to firm creditors in the assignment.
    The court charged the jury that if the object of the sale was to put the property in the possession of Van Brocklin so that he might pay his individual debts the assignment was void, and refused to charge that if the firm was insolvent at the time of sale, and was known to be so by Van Brocklin, and so continued till the assignment, then the assignment was void.

      Held, that the charge and refusal to charge were proper. (Landon, J. dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered in Montgomery county upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    , Albert Johnson was carrying on business in October, 1884. At that time Eli Yan BrocMin purchased a half interest in the business, paying therefor $500. They carried on business under the name of Johnson & Yan Brocklin till January 3, 1885, when Johnson sold out to Yan Brocklin for $500, and Yan Brocklin assumed the liabilities and continued the business. February 3, 1885, Yan Brocklin made a general assignment to plaintiff. He prefers creditors as follows: First. Wages, etc.; second. Six notes, one of $500, being in fact for the money borrowed October, 1884, to buy one-half of the business ; another of $500, being in fact for the money borrowed to buy out the other half of the business, the-total being $2,350; third. Yan Brocklin’s notes and indebtedness to Horace B. Clafiin & Go., about $1,600 ; lastly. All debts.
    February 16,1885, Horace B. Claflin & Go. commenced an action against Johnson & Yan Brocklin, on their aforesaid claim, and' obtained an attachment. By virtue of the attachment the defendant levied and took the property. Judgment was perfected in-favor of Horace B. Clañin & Co., in their action simply for goods sold March 9, 1885. The plaintiff in this action sued in replevin April, 1885. On this trial the jury found that the assignment was-not made with intent to defraud. The principal ground of objeetion urged by the defendant on this appeal is that when Johnson-sold out to Van Brocklin the firm was insolvent; that Van Brocklin had no right to prefer his individual creditors over the creditors of Johnson & Van Brocklin, in the assignment.
    The court submitted to the jury the question, whether the object of the sale by Johnson to Van Brocklin was to put the property in his possession so that he might pay his individual debts, and charged in substance that if such was the object the transaction was fraudulent. The defendant requested a charge that if the firm was insolvent at the time of sale, and known to be so by Van Brocklin,. and so continued till the assignment, then the assignment was fraudulent. The court declined to charge, except as above stated.

      Z. S. Westbrook, for the appellant.

      Stover & Nisbet, for the respondent.
   Learned, P. J.:

If a man carrying on business as a merchant becomes insolvent and malms an assignment for the benefit of creditors, there is not, so far as I know, any rule which requires him to provide that his business creditors should be paid out of the property used in his business and other creditors should be paid out of other property. But if two men are carrying on such business as partners, a contrary rule has grown up. For as A does not owe 'B’s-individual debt, it is held to be fraudulent as against the creditors-of A and B to assign property which belongs to both as partners.Insecure B’s debts. ( Wilson v. Robertson, 21 N. Y., 587.) But one partner may sell out to the other, and if that other partner agrees to pay the debts, the partner who goes out may have an equity in seeing that the partnership property is applied to those debts, to relieve himself. And “ the equities of creditors are to be worked out through the medium of that of the partner.” (Story’s Part., §§ 360, 361, 358.) Yet where a partner-transferred his interest to his partner and the latter received the assets, continued the business, and two months later failed and made an assignment preferring individual debts, the assignment was held to be valid, the trial court having found that the sale was bona fide.. The sale made the property of the firm the individual property of the continuing' partner, and he could lawfully assign it- in payment ■of individual debts. (Dimon v. Hazard, 32 N. Y., 65.) This is the doctrine of Collyer’s Partnership (§ 894); Ex parte Ruffin- (6 Ves. [Sumner’s ed.], 119, note 8); Howe v. Lawrence (9 Cush., 553), where the court say that the liona- fides of the transaction is the only test by which to determine the rights of the- joint creditors to have property, which has been transferred on dissolution to an individual member, applied to joint debts. The same doctrine is in Robb v. Mudge (14 Gray, 544), and, in the Court of Appeals, Stanton v. Westover (23 Weekly Dig., 12). But the defendant insists that if the firm of Johnson & Yan Broeklin was insolvent at the time of the1 sale, and was known to Yan Broeklin SO' to be, and continued to be insolvent till the assignment, then the assignment was fraudulent.

Now, it is evident that the- validity and effect of the sale must -depend on the state of affairs at the time and not on what happened .afterwards. Whether, therefore, the firm continued* insolvent (or, more accurately, whether' the assets continued' insufficient) until the assignment cannot' affect' the 'question whether the transfer by Johnson to Yan Broeklin-, when- made, did or did not have the-effect to make the property of the- firm the individual property of Yan Broeklin. So that the defendant’s position must be; that when a firm is insolvent' one partner cannot sell out to the other, who knows of vsu.ch insolvency, with the effect of making the property the individual’ property of the continuing partner, even though the transaction wag made in good faith. And this is not exactly the case of selling out to an insolvent or irresponsible partner, nor is it the case ■of selling Out in- order- that the purchaser may pay individual debts'. The court charged that that would be fraudulent.

It may be that' when a partnership is- insolvent, one of the partners may believe that by buying out the others, and thus perhaps lessening expenses, he may be able to carry the business through successfully. Now, if this is done in good faith, We cannot say that it is a fraudulent transaction. Yet, in Order fcliat the partner may do this successfully, it is' necessary that the property Shall become his -Own. If the defendant’s'contention is sound, a-partner could, practically, never make Such an arrangement.

But we may notice that in this present casé Yan Broeklin- paid Johnson $500 for hissliare and subsequently paid some $800 on the indebtedness of the firm, part thereof to the very plaintiffs in the attachment action, showing thus that the transaction might benefit the creditors. The defendant cites Calkin v. Conner (18 Weekly Dig., 24), but, on looking at that case, it will be seen that there was no •question of fraud in the case, and the court submitted to the jury only the question of the value of the property. That was undoubtedly incorrect; and that was not the course of the trial court in this case.

The defendant also cites Menagh v. Whitwell (52 N. Y., 146). Now if we examine that case to discover what is actually decided, we shall see that several of the transactions were sales or mortgages by individual partners of their respective interests in the partnership property to strangers. In two instances two individual partners severally sold out to the remaining three. And in those eases the •opinion recognizes the doctrine of Ex parte Ruffin and other cases above cited. (See pp. 160, 167.) And this case is noticed and distinguished in Stanton v. Westerner (ut supra).

We are of the opinion, therefore, that the court was right in •submitting to the jury the question of bonafides, and that there was no error in his refusals. Nor do we see any error in the refusal to •charge as to delivery and change of possession. The matter had been sufficiently explained by the court in the charge. Some •objections to the admission of evidence are mentioned. We have examined them and find nothing which is ground of error. The defendant urges that the verdict was against the weight of evidence. But if we are correct in our view of the law there was certainly evidence on the question of bonafides sufficient to justify the verdict.

The judgment and order are affirmed, with costs.

Bockes, J., concurred.

Landon, J.:

I dissent. The facts clearly appeared, and were not disputed, that when Johnson assigned to Yan Brocklin the firm was insolvent and Yan Brocklin- also.- Under these circumstances one partner •could not, by selling to the other, divest the equitable lien of the firm creditors upon the firm property, nor could the purchasing partner, by making a general assignment, give to his individual •creditors a preferred lien upon the firm property over the equitable lion of the firm creditors. (Stanton v. Westover, 101 N. Y., 265 ; Menagh v. Whitwell, 52 id., 146.) The defendant was entitled to have a verdict directed in his favor.

But if the case rested solely upon the good faith of the purchasing partner, the verdict should be set aside as against the clear weight of the evidence. This partner was insolvent when he came into the firm. lie first bought his equal share in the business and property by giving his note, and then the whole property by giving another note, neither of which he had the means to pay or secure, except by the scheme, which he adopted, of buying out the whole property, with full notice of the firm’s indebtedness, and then pledging and assigning it to secure these and his other individual debts in preference over the firm debts-. He must have known when he purchased the firm property that it was utterly inadequate to protect both classes of debts, and he promptly applied it to protect his relatives, who were his individual creditors. He should be held to have intended to do what he did do. It is true he made some payment to Claflin & Co. after he purchased from Johnson, but it does not appear that this payment exceeded the price of the goods they forwarded him after such purchase. He claims that he was duped by Johnson, but if so, what title that gave him to exact reprisals from Claflin & Co. is not apparent.

Judgment and order affirmed, with costs.


author: Parker, J.:

text:
       PETER R. LEONARD, Respondent, v. WILLIAM J. EHRICH and JULIUS S. EHRICH, Appellants.

      Place of trial of actions brought for violations of game laws — not affected by section 983 of the Code of Civil Procedure.

    Section 983 of the Code of Civil Procedure, providing that actions to recover a penalty or forfeiture imposed by statute must be tried in the county where the cause of action or some part thereof arose, has no application to actions brought under chapter 534 of 1879, to recover penalties for violations of the game laws,, which may be brought in the county where the penalty was incurred, or in an adjoining county. .

      Appeal from an order entered in St. Lawrence county, made at ¡the Schenectady Special Term, denying a motion to change the place of trial.

      Samuel W. Weiss, for the appellants.

      Morris, Kellogg c6 Morris, for the respondent.

       Decided May 23, 1886.

   Parker, J.:

Tliis action was brought to recover the penalties provided by section 19 of chapter 534 of the Laws of 1879, as amended by chapter 121 of the Laws of 1885, the complaint alleging that the acts complained of were performed in the county of Franklin. The action was commenced in the Supreme Court, the venue being laid in the adjoining county of St. Lawrence. The defendants, claiming that section 983 of the Code of Civil Procedure applied to such actions, made a motion at Special Term to have the place of trial changed to the county of Franklin, which motion was denied and an appeal was thereupon taken to this court. Section 983 of the Code of Civil Procedure provides that actions to recover a penalty or forfeiture, imposed by statute, * * * must be tried in the county where the cause of action or some part thereof arose. The cause of action alleged in the complaint in this action arose in the county of Franklin, and the action must, therefore, be tried in such county, unless it appears that the section of the Code referred to does not apply to actions brought to recover penalties under chapter 534 of the Laws of 1879, entitled “ An act for the preservation of moose, wild deer, birds, fish and other game.” Section 33 of said act provides that “ all penalties imposed by this act may be recovered, with costs of suit, by any person in his own name, or by any society in its name, upon such society giving security for costs, before any > justice of the peace in the county where the offense was committed, or in an adjoining county, when the amount does not exceed the jurisdiction of such justice, or when such suit shall be brought in the city of New York, before any justice of the district court, or of the Marine Court of said city. And such penalties may be recovered in the like manner in any court of record in the State.”

It is obvious that it was the intention of the legislature, in framing this section, to permit actions to recover penalties incurred Tinder that statute to be brought elsewhere than in the county where the penalty was incurred. But for that section the jurisdiction of a justice of the peace would be limited to his own county. The jurisdiction of the County Court would be equally circumscribed, and section 983 of the Code would require the action, if commenced in the Supreme Court, to be instituted in the county where the penalty was incurred. As the section stands the jurisdiction of justices of the peace, in such cases, is extended to the county adjoining that in which the penalty was incurred, and the words “in like manner” quoted, taken in connection with the general phraseology of the section quoted, indicate very clearly that it was the intention of the legislature to give the county and Supreme Courts in adjoining counties in such cases the same jurisdiction as-justices of the peace.

It is not possible from the language used to reach the conclusion that it was the intention of the legislature to enlarge the jurisdiction of justices of the peace in such cases beyond that of the County and Supreme Courts. The object of the section seems to be threefold : First. To provide the manner of recovering penalties. Second. To designate who may be plaintiff. Third. To determine where the action may be brought. Now, without the aid of so much of this section as refers directly to “ justices of the peace ” and “ any court of record in the State,” actions could be maintained in the county where the penalty was incurred before a justice of the peace or in the County or Supreme Courts. So in providing for a more extended forum it was enacted that a plaintiff might recover penalties, with costs, “ before any justice of the peace in the county where the offense was committed, or in any adjoining county,”' * * * “and such penalties may be recovered in Hice manner in any court of record in this State.” The words “ in like manner seem to be intended to require that the same condition shall apply to the commencement of actions -in courts of record. That is, as to the manner of recovery, who shall be plaintiff, and as to the place where the action may be brought.

In effect the words are words of limitation so far as the place of trial is concerned. 'The statute in question having been passed since the adoption of section 983 of the Code, it governs the proceedings-for the collection of penalties, so if you strike out the words “ in like manner,” or read them as if they applied alone to the manner of recoveries and who shall be plaintiff, the statute would then, expressly provide that recovery could be had in any court of record in the State, and section 983 would not apply.

My conclusion is that it was the intent of the legislature, in the act in question, to provide that actions for penalties might be brought in the county where the penalty was incurred, or in an adjoining county, and that such action could be brought before a justice of the peace or in a County or Supreme Court; and that such act being subsequent to the adoption of section 983 of the Code must control.

The order appealed from must be affirmed, with ten dollars costs and printing disbursements.

Bocees, P. J., concurred; Landox, J., not sitting.

Order affirmed, with ten dollars costs and printing disbursements.


author: Learned, P. J.:

text:
    AMBROSE SPENCER and JOHN R. KNAPEN, Administrators, etc., of WILLIAM D. SPENCER, Deceased, Respondents, v. OLIVER H. P. STRAIT, Executor of ESTHER SPENCER, Deceased, Appellant.

      Costs — when payable from the estate, under section 3246 of the Code of Civil Procedure, in an action brought by,an executor or administrator.

    This action was brought by the plaintiffs, as administrators, with the will annexed, of one W. D. Spencer, against the executors of one Esther Spencer, to recover money which was alleged to belong to the estate of TV. D. Spencer; and was alleged to have been in the hands of said Esther Spencer at the time of her death, and which the defendants had refused to pay over. The defendants having succeeded upon the trial of the action, entered a judgment for costs against the plain+iffs personally.

      Held, that the action was brought by the plaintiffs in their representative capacity, within the meaning of section 3246 of the Code of Civil Procedure, and that an order of the Special Term modifying the judgment so as to make the costs payable out of the estate was proper and should be affirmed.

      Thompson v. Whiimarsh (8 Civ. Pro. R., 186) distinguished.
    Appeal by the defendant from an order, made at the Rensse-laer Special Term, modifying a judgment entered in this action.

      • B. G. Strait and F. L. Fursman, for the appellant.

      James Lcmsing and”.®. M. Townsend, Jr., for the respondents.
   Learned, P. J.:

On a trial of this action the defendants recovered, thereupon they entered judgment against plaintiffs personally for costs. On plaintiffs’ motion the Special Term modified the judgment so as to make it payable out of the estate of William D. Spencer, deceased, of which plaintiffs are administrators. The defendants appeal.

There had been no direction under the last clause of section 3246 of the Code, on the ground of mismanagement or bad faith. The only question then arises, on the other part of that section, viz., wa3 this an action brought by an administrator in his representative capacity ? Now it is plain that the mere fact, that, by the decision of the court, the plaintiffs are held to have no cause of action, is not enough to show that the action was not brought in their representative capacity. Otherwise, in every case, when executors are plaintiffs, if unsuccessful, they would have to pay costs personally. The question then is, assuming that plaintiffs had no right of action, when are they to be said to bring the action in a representative capacity. The test cannot be that it was a cause of action which had belonged to the decedent, because, by the supposition, there was no cause of action at all: Whatever was the intention of section 1814, as explained by the reviser, the Court of Appeals has decided, that notwithstanding that section, if an executor sells property of the estate, an' action for the purchase-price is to be brought in his individual name. (Thompson v. Whitmarsh, 8 Civ. Pro. R., 186.)

The cause of action set forth in the complaint -in this action is this : The plaintiffs, as administrators with the will annexed of W. D. Spencer, allege that Esther Spencer, the executrix of Wm. D., had at the time of he»’ death moneys of the estate of said Wm. D., and the defendants, executors of said Esther, refuse to pay it over to them. Noav, whether this action could be maintained or not is not the question here. The question is whether it was brought in plaintiffs’ representative capacity. We think it clearly was. Suppose that they had attempted to bring this action in an individual capacity, not alleging even-that they were administrators, the complaint would have' been absurd.

In such cases as Thompson v. Whitmarsh tlie plaintiff, saying nothing about bis being executor, may allege a sale of tbe goods to -defendant, and the complaint is good-. But how could these plaintiffs have shown any supposed liability of defendants to them, except by alleging that they were administrators of Wm. D. ?

The defendants urge the case of Smith v. Van Ostrand (64 N. Y., 285), where it was held that in case personal property is given by will to a life-tenant with remainder over, and is delivered by the executor to the life-tenant, then at the death of the life-tenant the right of action for the property is in the legatees in remainder, and not in the executor of the deceased. That may show that (as it proved) the plaintiffs had no good cause of action in this case. But, as already stated, that is not enough. But the defendants say, can plaintiffs escape personal liability by unjustifiably bringing an action in their representative capacity ? ■ Certainly not. The last clause of section 8246 permits the court to punish them for bad faith, by imposing costs on them personally.

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

Bocees and LandoN, JJ., concurred.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    MYRON C. S. MORRISON, Respondent, v. ORLANDO SAYRE, as Sole Trustee of School District No. 9, Town of Moriah, Appellant.

      Contracts made by a de facto trustee of a school district— their validity cannot be disputed, by his successor in office, on the ground that the party making them was disqualified by alienage.

    An action, brought to recover damages for' a breach of a contract, by which the plaintiff was employed to teach a district school by one Will, the defendant’s predecessor in office, was defended "upon the ground that Will, although elected to and exercising the duties of the office, was disqualified from holding the same by reason of his alienage, and that the plaintiff had knowledge of this fact at the time of making the contract.

      Held, that the defense was properly overruled; that the validity of Will’s title and of the contract, could only be assailed by the people acting in their sovereign capacity as a State.

      Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court at the Essex Circuit.
    At the annual school meeting in district No. 9, of the town of Moriah, held August 24, 1884, Charles "Will was elected trustee, and he thereupon accepted the office and acted as such trustee. Will,, as such trustee, employed the plaintiff to teach the school in that district for twenty weeks, at six dollars per week; and the plaintiff agreed.to so teach and to commence on the fifteenth of September following. On or about the twelfth of September another school meeting was held, and at that meeting Mr. Will resigned and the defendant was elected trustee in his place. The defendant, although he knew of the contract with the plaintiff, employed another teacher, and the plaintiff was excluded from and deprived of his employment. From September fifteenth to December first, a period of eleven weeks, the plaintiff was unable to obtain similar employment, but received some compensation for farm labor, and the amount of the verdict is the contract-price for teaching, six dollars per week, for eleven weeks, less the amount received by the plaintiff for such labor during school time. The defendant offered, but was not allowed, to prove that between September fifteenth and December first the plaintiff had an opportunity to work at farm labor for seventy-five cents a day, for at least one month, which he declined to accept.
    The defendant introduced evidence, all against the plaintiff’s objections, that Will was born in Canada of parents residing there; had resided in Moriah but three years; had not become a citizen, or filed or declared his intention to become a citizen, of tho United States. That the plaintiff knew Will to be an alien, and that tho school commissioner had expressed the opinion to Will that he was ineligible to the office of trustee, and that the plaintiff and Will had consulted the Code together and found that aliens could hold office under certain circumstances. The defendant made a motion for nonsuit, which was denied. He declined to ask for a submission of any question to the jury, and a verdict for the plaintiff was thereupon directed by the court.

      Waldo (& Grover, for the appellant.

      Richard L. Ecmd, for the respondent.
   Learned, P. J.:

'Will was elected trustee of tbe school district. He accepted the office and acted as sucli trustee. He was, therefore, trustee defacto, even assuming that by reason of alienage he was ineligible. Being trustee de facto he could be removed from his office only by the people acting in their sovereign capacity as a State. No private "individual, not even the school district which elected him, could turn him out of office. If any other man should acquire a good title to the office (assuming Will’s title to' be bad), that other man could not remove Will from the office. If the people did not choose to remove him, no other power could do this. And the reason of this is, that by whomever elected or appointed, an officer holds his office from the State. From the State he derives his authority, and till the State takes it away he may retain it.

It follows necessarily from this that till the State takes away Iris authority, all his official acts are valid as to third parties. This is both a logical and a beneficial result, and it has been asserted so often that it is needless to cite authorities. The defendant here seeks to make an exception, viz.: That where the party dealing with tire officer knows of the invalidity of his title to the office, and where the official act is one to which the party had not a previous right, then the general rule does not apply. That is, for instance, that one who makes a contract with an officer de-facto, knowing the invalidity of the officer’s title, cannot enforce the contract.

But this exception cannot be recognized, and for this reason: In an official contract it is not the officer and the other contracting party who alone are interested. The people'have an interest; they have a right to insist that such a contract shall be valid ; they have a right to say that, so long as they permit their officer de facto to continue, in office, the government shall not be hampered or obstructed by the assertions of parties who deal with him, that he was not an officer de jure, and that they knew it. For the contract must be binding on both sides or on neither. In this particular case, for instance, if this defendant, the successor of Will, can assert against Morrison, that the contract was invalid for the reason above, mentioned, then Morrison could assert the same against Will or against the defendant, his successor. So that Will, an officer defaeto, whose duty it was to make contracts like that in question, would be prevented from making a valid contract, if tlie person with whom he contracted knew of the alleged defect in Will’s title to the office. And to go one step further, the result would be, that by a general publication in the neighborhood of Will’s alleged inability to hold this office, he would be practically deprived of all power to discharge the duties of this office in this particular. Now this cannot be. It would be indirectly ousting him of his office just so far as information of his alleged disqualifications could be spread; and thus the people who chose him to be an officer, and who have a right to the performance of this duty among others, would be deprived of the right of having a valid contract made for a teacher of their school.

It is not, we repeat, an individual question. It is a public matter. The law has provided that there shall be an officer, whose duty, among other things, shall be to hire a teacher. The inhabitants of the district have chosen him. The State has not ousted him but permits him to remain in office. Shall he be prevented from making a valid contract because all those with whom he wishes to contract know that the State might oust him if it desired to do so ? Shall the school district have an officer who cannot contract, or who can contract only with those who are ignorant of the alleged defect in his title ?

The case of State v. Carroll (38 Conn., 449) is, of course, no authority here. And we think that, on the point in question, the views there stated are erroneous. They are not supported by the cases cited of Rex v. Nish (Andrews, 163); Rex v. Bedford Level (6 East, 356). The doctrine of this State is stated in Dolan v. Mayor (68 N. Y., 274), and we think it sustains the recovery here. Nor do we think that there was any error in excluding testimony. The plaintiff had contracted to do the work of a school teacher. Even though he had, during the summer months, done farm labor he was not obliged, when the defendant broke the contract, to seek farm labor during the period for which he had engaged to teach school. What he actually earned was credited to the defendant. And he was not able, for some time, to obtain another school.

The judgment should be affirmed, with costs.

Bocees, J., concurred.

Judgment affirmed, with costs.


text:
    MARY JANE GOWDY, Respondent, v. JOHN H. CORDTS, WILLIAM HUTTON and Others, Appellants.

      Deed — construction of it — what evidence is admissible to aid in determining its meaning.

    By a deed dated March 22, 1866, one Taylor conveyed an undivided one-half of a ten-acre lot in Esopus to Joseph Bell, and thereafter, by a deed dated March 26, 1868, one Smith conveyed the other undivided one-half of the same lot to Bell. Subsequently Bell executed a deed which, after describing four other parcels of land owned by Bell, conveyed ‘ ‘ also the undivided moiety or half part of all that certain tract of land situated in the town of Esopus,” describing the ten-acre lot and then continuing, “being the same premises conveyed to said Joseph Bell, of the first part, by Charles Gr. Taylor and wife, of the city of New York, by deed dated March 26, T866.” It then described another lot and continued, “ and also all other real estate and water front on Bondout creek, situate in the town of Esopus, Ulster county, and State of New York, belonging to me, or which I have any interest in.” It appeared that in addition to the lots described in the deed Bell owned, in Esopus, a lot called “ the dump lot.” !

      Held, that the grantee ’ took only an undivided one-half interest in the ten acre lot.
    That in construing the deed, evidence showing that Bell owned real estate, other than that described in the deed, was admissible as showing the circumstances under which the deed was executed, but that evidence as to his intention was not competent.
    Appeal by tbe defendants from an interlocutory judgment in an action of partition, entered in Ulster county upon the trial of the action by the court without a jury.
    The decision of the case turned upon the proper construction to be given to a deed.

      Peter Gantine, for the appellants.

      William Lounsbery, for the respondent.
   Learned, P. J.:

Joseph Bell owned several parcels of land in Esopus — one often acres. An undivided half of this ten:acre parcel he had purchased by deed of Charles G. Taylor, dated March 22, 1866; the other undivided half by deed of Gilead A. Smith, dated March 26, 1868, each deed stating that it conveyed an undivided half. Subsequently Bell executed a deed of land to Charles Shultz. This first described four parcels and then “ also all the undivided moiety or half part of all that certain tract of land situated in the town of Esopus,” describing the ten-acre lot and then continuing, “ being the same premises conveyed to said Joseph JBell, of the first part, by Charles G-. Taylor and wife, of the city of New York, by deed dated March 22, 1866.” The deed then described another lot and then continued, and also all other real estate and water front on Rondout creek, situate in the town of Esopus, Ulster county, and State of New York, belonging tome or which I have any interest in.” The question is, whether these last words conveyed the other undivided half of the ten-acre parcel. We think that evidence of Bell’s intention was not competent. But the admission of this evidence could not, in our view, affect the decision of the case unfavorably to the defendants. Besides the lots specifically described in the deed, Bell owned in Esopus a lot called the dump lot.” The proof of this fact was competent as showing the circumstances under which the deed was executed. There was, then, land which might be conveyed by these general words, other than the undivided half of the lot in dispute.

Construing the deed, then, solely by its own language and by5 the -fact proved as to the dump lot, without regard to the testimony of Bell as to his intention, we think the case was properly decided. Undoubtedly a man may convey lands by general words, as for instance, “ all the lands I own in ” such a town. But that is not the question here. Here we are to ask what did Bell mean, judging from the deed? Now if he intended to convey the whole of a lot, he would not have conveyed expressly the undivided half of it. When he afterwards added these general words it is evident that he referred to lots or parcels which he had not described, not to the other undivided half of a lot which he had described.

If there had been no land owned by Bell other than that specifically described and the other undivided half, then the defendants might have had strong grounds. Though even in that case we should be disposed to construe the deed as is claimed, by plaintiff. But as the general words may operate on the “dump lot,” the argument from necessity has no force. And when Bell conveyed one undivided half he intended to retain the other. That there was no error in tbis part of tbe deed is evident from tbe specification that tbe land conveyed was that wbicb bad been deeded to birn by Taylor. Clearly be did not intend to convey tbe other undivided balf wbicb bad been deeded to bim by Smith.

It was right to charge defendants with costs. Tbe litigation was really a trial of tbe title, as it would have been in ejectment, though in form an action of partition.

Tbe judment is affirmed, with costs.

BooKes and Landon, JJ., concurred.

Judgment affirmed, with costs. ■ •


text:
    SETH VELSEY, Respondent, v. CHARLES M. VELSEY, Appellant.

      Practice — power of the County Court to fix a time for the trial of an action before a justice of the peace under section 3064 <?f the Code of Civil Procedure.

    On appeal to tlie County C ourt a judgment, rendered in the absence of the defendant before a justice of tbe peace, was set aside and a new trial ordered to be had on July 12, 1883. From this order the plaintiff appealed to the General Term, where it was affirmed, all proceedings being stayed pending the appeal. After the affirmance of the order by the General Term the County Court made an order fixing another date for the hearing before the justice.

      Meld, that it had power so to do.
    Appeal from an order of tbe Albany County Court, fixing a -date for tbe bearing of tbis action before a justice of the peace.

      G. B. Wellington, for the appellant.

      William 3. Mg Gall, for tbe respondent.
   Parker, J.:

Tbis action was originally commenced before a justice of tbe peace in December, 1882. Subsequently, in tbe absence of defendant, a judgment was rendered against bim. On appeal to tbe County Court tbe judgment was set aside, and a new trial before a justice ordered, July 12, 1883, being tbe day designated for tbe bearing. Erom tbis order an appeal was taken to tbe General Term, where it was affirmed. Pending tbe appeal all proceedings before the justice were stayed. After affirmance the County Court made an order fixing another date for hearing before the justice. From that order the defendant appeals, and now contends that the court had no power to make such order. The position of the defendant is untenable. Section 3064 of the Code of Civil Procedure provides for the making of such an order as that of March 19, 1885. On appeal, this court determined that such order was properly granted. That order set aside the original judgment, directed that a new trial be had before a justice of the peace namedy and designated time and place of hearing. The hearing could not be had on the date named in the order, because of the appeal and stay. After affirmance, the date originally named for the hearing having passed, it became necessary to fix another date for that purpose. It was in accordance with the power and the duty of the court to do so.

The power to set aside a judgment, direct a new trial, name the justice before whom the trial is to be had, and fix date and place of hearing carries with it, and as an incident to it, the right to do those tilings necessary to make the grant of power effectual. The authority to act in a given direction being conferred, the method of procedure is in accordance with the general rules of practice, and the court may so amend and modify its order as to give it effect. Now, when this section became law the defendant had the right of appeal, and pending such appeal the court could grant a stay, it follows that the construction contended for by the appellant would enable the defendant in such cases to prevent the execution of the order, by the taking of an appeal even when it resulted in an affirmance. Such a construction would be contrary to the uniform decisions of the courts upon the sections of the Code relating to practice. Beyond doubt the power of the court over its own order was not exhausted by the making of the first order. It had, and has, power by an order duly made to designate time and place of hearing as often as the defendant shall, by appeals, prevent the parties from appearing as provided by section 3065.

Order affirmed, with ten dollars costs and printing disbursements.

Bocees, P. J., and LaudoN, J., concurred.

Order affirmed.


text:
    JAMES T. MEAD, Appellant, v. STEPHEN STACKPOLE, Respondent.

      Covenants of wa/rranty and quiet enjoyment — no action will lie thereon unless there has leen an emotion, actual or constructive.

    June 2,1873, the plaintiff conveyed to the defendant 150 acres of lot 161, Refugee tract, by a deed containing a covenant of warranty, and on September 9, 1873, he conveyed to him 266 acres, more or less, of the same lot by a deed containing the same covenant, and on November 24, 1874, he conveyed to him,, by a quit-claim deed, all of the lot, except fifty-two acres. By a deed, dated October 2, 1880, the comptroller of the State conveyed the whole of lot No. 161 to one Palmer, pursuant to a sale made in October, 1877, for unpaid taxes accruing prior to 1871.
    The defendant testified that on November 9, 1880, while he was in possession of all the lot, except fifty acres which he did not own, a notice to redeem was served upon him, and that pursuant thereto he did, on January 21, 1881, redeem the whole lot by paying the sum of $362.12.
    In this action, brought by the plaintiff .against the defendant to recover the purchase-price of a horse, the latter sought to set up as a counter-claim a breach, of the covenant of warranty occasioned by the said tax sale and the payment of the amount required to redeem the land therefrom.

      Held, that as no eviction, actual or constructive, was proved, no cause of action. for a breach of the covenant of warranty was shown.
    Without an eviction, actual or constructive, there can he no recovery on a. covenant of warranty or of quiet enjoyment.
    There is an actual eviction where the grantee is dispossessed by process of law.
    There is a constructive eviction when he yields possession to a title which is-actually paramount, but there cannot be a constructive eviction without an abandonment of the possession of the premises.
    Appeal from a judgment in favor of tbe defendant, entered upon a verdict directed by the court at the Clinton Circuit.

      H. 8. Hoff, for the appellant.-

      Beckwith, Barnard <& Wheeler, for the respondent.
   Learned, P. J.:

The plaintiff sued for the purchase-price of a horse. The only question in the case is on defendant’s counter-claim. He claims that plaintiff owes him on a breach of covenant of warranty of quiet possession of land. The learned justice directed a verdict for defendant, and the plaintiff appeals.

Defendant proved a deed from plaintiff to defendant June 2, 1873, of 150 acres of lot 161, Refugee tract, with sucb covenant; a deed from plaintiff to defendant, September 9, 1873, of 266 acres, more or less, of the same lot, with same covenant; a quitclaim from plaintiff to defendant, November 21, 1874, of all of the lot except fifty-two acres. Defendant proved a comptroller’s •deed, October 2, 1880, to George W. Palmer and another, of the whole of lot 161, made by virtue of a sale in October, 1877, for unpaid taxes prior to 1871, the lot being therein described as containing 420 acres. The defendant testified that in November, 1880, he was in possession of the whole lot, except fifty acres, which he did not own; that, after receiving the notice (the statutory notice to redeem, which had been served November 9, 1880), he redeemed by paying, January 21, 1881, the sum of $362.12, paying the tax •on the whole lot and redeeming the whole lot.

The plaintiff testified that he was, and for sixteen years had been, in occupation of fifty-two acres of lot 161, and the fact was conceded that he was an occupant. He testified also that no notice had been served on him to redeem.

The defendant’s first point is, that independently of any eviction or covenant, defendant was entitled to recover of plaintiff the amount he had paid, under sections 57, 58, 59 of chapter 427, Laws .1855. He says that plaintiff and defendant were tenants in common. That is in correct so far as we can see from the case. They seem to have held separate parcels. Again, under section 57, assuming that it applied, the defendants could only recover the ratable proportion paid by defendant for the tax on plaintiff’s fifty-two acres. On the contrary, what defendant has recovered in this action, by way of set-off, is the tax on his own land. By section 53 he might have redeemed his specific part of the land. Of course the only ground on which he can recover that is on the covenant. That brings up the second point; was the plaintiff liable under 1 Revised Statutes (m. p. 419, § 4) ? This gives a right of action to • .any occupant or tenant who has been obliged to pay a tax, to recover the same against any person who, by agreement or otherwise, ought to have paid it. We do not think that that statute is applicable. ...There is no evidence that these taxes were assessed against plaintiff. All that is proved is that they were taxes prior to 1871. Who owned the land at that time does not appear, nor has the plaintiff agreed to pay the taxes or become liable to pay them, unless such agreement can be found in the covenant of warranty of quiet enjoyment.

This, then, brings us to the third and main point. "Was there a breach of the covenant ? If there was a breach then plaintiff was liable on his covenant. If there was no breach then the covenant cannot have been an agreement to pay the tax. That is, if plaintiff is not liable on his covenant, then certainly the covenant was not broken by his mere failure to pay, and therefore it was not an agreement to pay.

On the question of what is sometimes called equitable eviction, it is noticeable that the case of Hunt v. Amidon (4 Hill, 345), often referred to, was not an action on a covenant but was an action on the common money counts. And the opinion of the court states that it was doubtful whether an action could be maintained on the covenant without actual eviction. The decision was by the chancellor and the senate, contrary to the opinion of the Supreme Court. (1 Hill, 147.) If that case be carefully examined it will be seen that the circumstances were peculiar. Amidon had indemnified Wheeler, tlie obligor, against the bond. If Taylor, the owner of the bond and mortgage, had sued Wheeler on his bond, Amidon would have had to pay. Amidon could not thereupon have enforced the mortgage, in order to reimburse himself. When Taylor then foreclosed instead of suing the bond, the court held the same equity, of money paid to the use of Amidon, justified a recovery by Hunt. If the case be cited to sustain the idea that there can be any eviction without disturbance of possession, it is overruled by Boreel v. Lawton (90 N. Y., 293), and many other cases.

In the case of Cowdrey v. Coit (44 N. Y., 382) the grantee purchased on the foreclosure of a prior mortgage, assigned his bid to a third person, and surrendered possession to that third person on his receiving the deed from the officer making the sale, so that tllbre was an actual surrender of possession to one having a paramount title.

A lawful eviction or disturbance of possession must be shown to support an action on such a covenant (St. John v. Palmer, 5 Hill, 599 ; Greenvault v. Davis, 4 id., 643), though it is enough if the grantee voluntarily yields possession to one having a paramount. title; but the grantee then assumes the burden of proving that tbe title was paramount. There cannot be a constructive eviction without abandonment of possession. (Boreel v. Lawton, 90 N. Y., 293; Edgerton v. Page, 20 id., 281). There is an actual eviction when the grantee is dispossessed by process of law. There is a constructive eviction when he yields possession to a title which is actually paramount. There is neither actual nor constructive eviction while he continues in possession. And without an eviction, actual or constructive, there can be no recovery on a covenant of warranty or of quiet enjoyment. There lies the distinction between those covenants and a covenant against incumbrances. ¥e are referred to no case where a plaintiff has recovered on a covenant of warranty or of quiet enjoyment, merely on the fact that he has redeemed the premises by the payment of money. That is all that the defendant did. No one ever had an indefeasible and paramount title to this land, because there was a six months’ right to redeem. The expression in section 63 (chap. 427 of 1855), .that the conveyance shall vest in the grantee an absolute estate in fee simple cannot prevent us from recognizing the right to redeem given by section 68, in the case of occupied lands, and the further provision of section 73, that on proof of service of notice, etc., the conveyance shall thereupon become absolute.

There is a further question made by the plaintiff, viz., that, as no notice was ever served on him, the occupant of a part of the lot, the right of redemption has never been cut off. We do not think it necessary to decide that. The present case is like that of McCoy v. Lord (19 Barb., 18). The only difference is that in that case the plaintiff redeemed the lands on the last day of the two years’ time for redemption; in this case the defendant redeemed the lands within the additional six months given by the subsequent section. We are of the opinion that there was no eviction proved ; that no cause of action arose for a breach of the covenant.

The judgment is reversed, new trial granted, costs to abide event.

Bockes and LandoN, JJ., concurred.

Judgment reversed, new trial granted, costs to abide event.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN SHANLEY, Appellant.

      Criminal Procedure — arrest by an officer under a wa/rrant — when he must have the warrant in his possession — Code of Criminal Procedure, sea. 173.
    The defendant was indicted and convicted of an assault in the second degree for having resisted one Knapp, a police officer of Lansingburgh,,who attempted to arrest him for a misdemeanor, not committed in the officer’s presence A warrant had been issued and was at the time in the office of the chief of police, but not in the actual possession of the police officer. The defendant knew that Knapp was a police officer and had heard that the warrant had been issued.
    The court charged that the warrant was in the constructive possession of the officer, and declined to charge that it was the duty of the officer to disclose to the defendant his authority and the process under which he arrested him.

      Held, error; that the language of section 173 of the Code of Criminal Procedure, regulating arrests by officers under warrant, required the officer to have the warrant in his actual possession, ready to be shown to the defendant if required.

      Gallicvrd v. Laxton (3 Best & Smith, 363) and Codd v. Cabe (L. R., 1 Ex. Div., 363) followed, and Arnold v. Sleeves (10 Wend., 515) criticised and not followed.
    Appeal from a conviction and judgment of tbe Court of Sessions of Rensselaer county, convicting the defendant of an assault in the second degree.

      James H. Ryan, for the appellant.

      La Mott W. Rhodes, district attorney, for the people.
   Learned, P. J.:

The defendant was indicted and convicted of assault in the second degree. The alleged crime was committed in resisting one Knapp, a police officer of Lansingburgh, who attempted to arrest him for a misdemeanor, not committed in the officer’s presence. A warrant had been issued, and was at the time in the office of the chief of police. It was hot in the possession of the officer who made the arrest, unless, being in that office, it was constructively in his possession. The defendant knew that Knapp was a police officer, and had heard that the warrant had been issued. The charge of the court was that the warrant was in the constructive possession of tbe officer, and the court declined to charge that it was the duty of the officer, at the time of the arrest, to disclose to the defendant his authority and the process under which he arrested him-"Whether the charge was correct in these two respects is the-question.

The Code of Criminal Procedure (§ 168) provides that arrest may be : First. By a peace officer under a warrant. Second. By a peace officer without a warrant. Third. By a private person. Section 177 states the cases when a peace officer may arrest without a warrant. They do not include the present case. Section 183 states the cases when a private person may arrest. They do not include the present case. This arrest must then be one made by an officer under a warrant, in order to be justifiable. Section 173 provides that the defendant must be informed by the officer that he acts under the authority of the warrant, and he must also show the warrant, if required.” This language would seem to be conclusive on the question before us. For, if the-officer must show the warrant, if required, then it is plain that it must be in his actual possession. It would be absurd to construe this section to mean that after making the arrest the officer must, if required, take the defendant to some other place (it may be a mile or so distant) and there show him the warrant. The section means that when the defendant is informed by the officer that he acts under the authority of the warrant, the defendant may require him to show it and he must then show it. Constructive possession, for which the people argue, that is, the existence of the warrant in the office of the chief of police, would lead to constructive showing of the warrant. “ Constructive ” is a dangerous word. If the legislature-had meant that the officer should constructively show his warrant, it would have been simpler to say he need not show it at all.. Plainly, then, when the legislature speaks of arrest by a peace officer, under a warrant, they understood that the warrant should be in the possession of the officer in such manner that it might be shown to the defendant at the time of making the-arrest.

On common-law principles, aside from statute, this same doctrine is laid down in Codd v. Cabe (L. R., 1 Ex. Div., 352), which, followed Galliard v. Laxton (2 Best & Smith, 363). The former of those cases was almost exactly like the present. A warrant had been issued against Codd and placed in the hands of one constable. Another constable, not being in the possession of the warrant, arrested him. Codd did not demand to see the warrant, resisted arrest and greatly injnred the officer. For this resistance and assault Codd was convicted. The conviction was reversed by the-three judges of the Court of Appeals, Bramwell, Wellor and Denman, and they stated that they had the concurrence of other judges "whom they had consulted. Their decision is directly in point and shows the present view in England of the common law. The other case was similar.

If the remark in Arnold v. Steeves (10 Wend., 515) was correct, that an officer is not bound to show his warrant, which remark is followed (with a semble) in Bellows v. Shannon (2 Hill, 86), certainly that rule is changed by section 173 above cited. So that argument derived from those cases is of no weight. The same may be said of the remarks in 1 Bishop’s Criminal Procedure (§§ 191, 192). The Code has declared that the officer must show his warrant if requested. And it follows inevitably that ho must have it with him. We do not understand the district attorney to claim that Knapp could have lawfully arrested the defendant if there had been no warrant. Only that it was sufficient that the warrant should be in the office of the chief of police, to justify any policeman of the place to make an arrest within the police limits. And ■ he argues that great inconvenience will arise from a contrary rule; that if one policeman has the warrant a criminal may evade him and keep within the beat of another, and the like. There is much force in this. But on the other hand the innocent citizen has a right to protection. It is hardly safe to say that, without a warrant, a policeman may arrest a citizen for an alleged misdemeanor not committed within his sight. If Knapp was justified in arresting this defendant then the innocent citizen must submit to arrest, without having the right to see the warrant before he yields to the alleged authority. It has not been claimed that there is any special law giving peculiar authority to the policeman of Lansingburgh. We have, therefore, examined the question only on the general statute and on general principles. We find no authority to justify the idea of constructive ” possession of a warrant. The idea is repudiated in tbe two English cases, and it is inconsistent with the Code as above cited.

The judgment and conviction are reversed, and the prisoner discharged.

LáNdoN, J., concurred.

Judgment and conviction reversed, and prisoner discharged.


author: Bockes, J.;

text:
    WILLIAM WHITE, Appellant, v. ISAAC V. PLACE, Respondent.

      Appeal from a judgment of a Justice's Court — when a new trial should be had in the County Court — Code of Civil Procedure, secs. 3068, 3071 — to oust the justice of jurisdiction it must appear to "his satisfaction that the total of the accounts exceeds $400 — Code of Civil Procedure, see. 2863, sub. i — an error in the determination of this question can only be reviewed on appeal — as to whether the question can be raised, when a new trial is had, in the County Court.

    Appeal by tbe plaintiff from a judgment of the Enlton County Court, reversing a judgment rendered by a justice of the peace in his favor, and dismissing the action, with costs.
    The complaint before the justice was for work, labor and services performed and for property furnished the defendant at his request; also, for breach of contract in not making certain repairs to premises as agreed, and a balance, after deducting payments, was claimed of $176.12. The answer was a general denial, settlement, payment and set-off, and a balance in defendant’s favor was claimed of fifty-nine dollars. Each party furnished a bill of particulars. The aggregate of plaintiff’s bill as rendered, without deduction for payments, was $531.37. The aggregate of defendant’s bill, without deduction, was $146.24.
    The justice rendered judgment in plaintiff’s favor for $176.12, with ten dollars and seventeen cents costs, in all $186.29; whereupon the defendant appealed to the County Court, and demanded a new trial in that court, as authorized to do by section 3068 of the Code of Civil Procedure. The justice made return on the appeal pursuant to section 3053 of the Code, without returning the evidence given on the trial before him. The defendant thereupon obtained an order from the County Court requiring the justice to make return, among other matters, of such evidence, and whether a motion was made on the trial at the close of the evidence by the defendant to dismiss tlie action, on the ground that the court had no jurisdiction, because the accounts proved exceeded $400. Further return was then made, giving the evidence and stating that such motion was made and denied, and it was also stated that the defendant offered no evidence. In this condition of the record the defendant gave notice of a motion upon the original and further return, and all papers on file in the action, “for an order reversing or setting aside the judgment * * * and dismissing the action, on the ground that the justice had no jurisdiction thereof, with costs and costs of motion,” and for general relief. The motion was granted and judgment was entered, reversing the justice’s judgment and dismissing the action, with fifty-eight dollars and two cents costs, and from such judgment the plaintiff appealed to this court.
    The court at General Term said: “ The case was heard and disposed of by the County Court upon the original and further return of the justice, notwithstanding the defendant, in his notice of appeal, had demanded a new trial in that court, as provided 'for in section 8068 of the Code of Civil Procedure; and the judgment of the justice was reversed and the action was dismissed on the ground that the justice had no jurisdiction of the case, although it is provided by section 3068 of the Code that if the defendant, in his notice of appeal, demand a new trial in the appellate court, he shall be entitled thereto; and that by section 3071 of the Code it is provided that in such case, after the expiration of ten days from the time of filing the justice’s return, the action shall be deemed an action at issue in such court, to be proceeded in as if the action had been commenced therein, except as otherwise prescribed. Passing for the present such irregularity or error in the County Court, if such it be, let us see whether the question of alleged want of jurisdiction was correctly determined on the facts as made to appear on the returns.
    “After examining the evidence returned by the justice, and the figures adopted by the county judge, in his opinion, and holding that they did not show the total of the accounts of both parties exceeded $400, the court said: ‘ And again, the statute is that the justice shall be ousted of jurisdiction only when the sum total of the accounts of both parties, proved to his satisfaction, exceeds $400; we have seen above that such sum total here, deducting payments of $240, which went in extinguishment of the accounts to that extent, was, as proved to the satisfaction of the justice, but $271.12; and whether or not proved to his satisfaction was a question of fact for that officer, made so, indeed, by the law itself. (Glaokin v. Zeller, 52 Barb., 147; Parker v. Eaton, 25 id., 122.) His conclusión might be erroneous, in which case the judgment would be reversed for error, as in any other case where error was committed on the trial, and like any other case of mere error, the judgment would be good until reversed {Glaokin v. Zeller ; Parker v. Eaton, supra; also, Lamoure v. Caryl, 4 Denio, 370); and this would be the same, too, in a case where the title to lands came in question on the trial from the plaintiff’s own showing. {Koon v. Mazuzan, 6 Hill, 44.) In such case the judgment rendered is not void, although erroneous. In Parker v. Eaton it is said that the determination of the justice is necessarily as conclusive on the question as on any other where jurisdiction is not affected by his finding, and this remark is referred to with approval in Glaeken v. Zeller. So in Koon v. Mazuzan, J udge CoweN says: ‘ It is plain that the statute does not mean to deprive the justice of jurisdiction absolutely. It leaves him to judge whether the title be in question or not, and if he mistake, the judgment is voidable for error, not void for want of jurisdiction.’ This principle applies alike in cases where the accounts of the parties, as proved, exceed $400, and where the title to lands is brought in question on the trial. {Lamoure v. Caryl, 4 Denio, 372.) If, then, we are to consider the case as one properly before the County Court on the proof contained in the justice’s return, the reversal of the judgment rendered by him and the dismissal of the case for want of jurisdiction was wrong, inasmuch as no error in that regard is made to appear from the record. It follows that the Case must in any view of it go back to the County Court for proper disposition on the appeal in that court.
    “ Whether the appellant can raise the question of jurisdiction above considered on the new trial in the County Court, quaere. {Crannell v. Comstock, 12 Hun, 293 ; Burns v. Howard, 9 Abb. N. C., 321; Contra, O’Donnell v. Brown., 3 Lans., 474; Robertson v. Brink, 13 W. Dig., 109.)

      In Stevens v. Benton (2 Lans., 156) and in Maxon v. Reed (8 Hun, 618), tbe question of jurisdiction went to tbe validity of tbe process, and its due service, by wbicb tbe justice toot cognizance of tbe case, and bad no dependence upon tbe evidence given on tbe trial before tbe justice, bence those cases are not directly, if at all, in point. See, also, as bearing on tbe question, Balja v. Rawley (31 How., 120). Tbis question will be settled when necessary to tbe decision of tbe ease before tbe court. Sucb is. not tbis case.
    “ Judgment of tbe County Court reversing that of tbe justice and dismissing tbe case reversed, and tbe case reinstated in that court, there to be disposed of on new trial, with costs of tbis appeal to abide the event.”

      N. H. Aníbal, for tbe appellant.

      J. M. (& H. Dudley, for tbe respondent.
   Opinion by

Bockes, J.;

Learned, P. J., and Landon, J., concurred.

Judgment of County Court reversed and cause sent back to County Court for trial, costs to abide event.