author: Lawrence, J.

text:
    Newman Cowen et al., as Executors, etc., Pl’ffs, v. Minnie Rinaldo et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed April, 1894.)

    1. Will—Construction—Suspension.
    There is nothing in the statute against perpetuities which forbids the creation of alternate limitations, or periods during which the power of alienation and ownership shall be suspended, in case the limitation or the period of suspension, which actually takes effect or is adopted, does not of itself offend against the statute.
    2. Same—Trust.
    A trust to collect the rents, income, and profits of real estate, and, after paying legacies, etc., to discharge mortgages, is valid.

      Wm. Bernard (Daniel G. Rollins, of counsel), for pl’ff; David Leventritt for deft Minnie Rinaldo; Wilson & Wallis for def’ts David and Minnie Rinaldo; Strong & Cadwalader (George W. Wicker sham, of counsel), for def’ts Hyman Rinaldo and wife; Benjamin Taska, Ferdinand R. Minrath, Alfred Lyons and A Iyer S. Isaacs for def’ts Charitable Societies; A. G. Brown and Almirice B. Blumenihal, guardians ad litem for infant def’ts; Goldfogle & Cohen (Charles L, Cohn, of counsel), for def’t Samuel Rinaldo; Alfred D. Lind for def’t Minnie Rinaldo.
   Lawrence, J.

Marks Rinaldo died in the city of New York on the 26th of November 1892,-leaving a last will and testament which was admitted to probate by the surrogate of the county of New York, on the. 21st of April, 1893. The plaintiffs in this action are the executors of the will and the defendants are his widow, his children, heirs at law and next of kin, and certain parties and institutions to whom by said will legacies are given. The action is brought for the construction of the will; and it is alleged in the complaint that it is contended by the children, heirs at law and next of kin of the deceased that certain clauses of said will are illegal and void; that the trusts thereby attempted to be created are illegal and contrary to the provisions of the statute relating to the suspension of the power of alienation of personal and real property and against perpetuities; and that by reason of the invalidity of said clauses of said will and the trusts thereby attempted to be created the whole of said will is void and of no effect; but that in the opinion of the plaintiffs the said will and all of its clauses and the disposition of property thereby made are valid, legal and effectual.

The defendant, Minnie Rinaldo, was the second wife of the testator, and it is recited in the sixteenth clause of said will that she is not entitled to any dower right in the real estate of the testator, as will appear by an ante-nuptial agreement entered into between the parties; and it is further provided that should it be held that said agreement is void, then the provisions for her benefit in the will contained shall be in lieu and bar of all her dower or thirds in the testator’s estate.

By the second and third clauses of the will annuities are given to two brothers of the testator; and by the fourth, fifth, sixth, seventh and eighth legacies are given to the nieces and daughter, and brother, and sisters of the testator. By the ninth and tenth clauses the sum of one dollar.each is given to Hyman and Isaac, sons of the testator. And in the eleventh clause it is stated; “ I make no further provision for my son Isaac, and no other provision for my son Hyman than hereinafter set forth, because my said sons have been disobedient; have heretofore robbed me of a good deal of money ; have otherwise ill treated me, and for several years have not respected me as they should their father.”

By the twelfth, thirteenth and fourteenth clauses there are bequests of specific articles to the wife and the testator’s minor children, Harry and Amelia; and by the fifteenth clause the testator gives to his wife for the support of her children the sum of two •hundred dollars “for each and every month until my residuary estate shall be divided as hereinafter provided, Upon the happening of such event said annuity shall completely cease.” By the seventeenth clause the legacies above mentioned are charged upon the real and personal estate of the testator.

The controversy in this case arises upon the construction to be given to the eighteenth and nineteenth clauses of the will. The eighteenth clause is as follows : “ I give, devise and bequeath to my executors hereinafter named, and such of them as shall qualify and the survivors or survivor of them, and such suecossors as they shall appoint as hereinafter provided, all my real and personal estate until my son Harry shall become twenty-one years o£ age or- die, whichever event shall first happen, and if he should die before my daughter Amelia should become twenty-one years of age, then until she should become twenty-one years of age or die before such period; in trust, nevertheless, to collect the rent, income and profits of said real estate and the whole of said personal estate, and after paying therefrom the legacies hereinbefore given, the interest on mortgages, taxes, assessments, fire insurance and repairs on real estate, to apply the remainder of said rents of my real estate, together with the income and principal of my personal estate, to the paying off and discharging of the principal of the mortgages on my real estate.”

In the nineteenth clause of the will it is provided that: “ Upon my son Harry becoming twenty-one years of age, or upon his death, and if he should die before my daughter Amelia should become twenty-one years of age, or her death before such period, I order my executors, or such of them as may qualify, and the survivors or survivor of them and the successors of them (as hereinafter provided) to sell all my real estate at public sale and execute proper deeds therefor, and out of the moneys so realized to pay :

(a) To my son David (now residing at Jersey City) the sum of fifteen thousand dollars.

(b) To my grandson Lawrence (son of said son David) the sum of five thousand dollars.

(c) To my son Samuel the sum of fifteen thousand dollars if at that time his present wife shall have died, and if she should still be alive at that time, to invest said sum of fifteen thousand dollars in first mortgage upon improved property in the city of Hew York, and pay the interest realized therefrom, half-yearly, to my said son Samuel as long as his present wife shall live, and ■ upon her death to pay over to him (said Samuel) said principal sum of fifteen thousand dollars : should he, however, die before her, then, upon his death, said sum of fifteen thousand dollars shall be divided in equal shares between my sons David, Joel, Edward and Harry and my daughters Hannah and Amelia share .and, share alike.

(d) To my daughter Hannah, wife of Henry Black, the sum of ten thousand dollars, and, in addition thereto, to invest the sum of twenty-five thousand dollars in first mortgage upon improved real estate in the city of Hew York, and pay the interest realized therefrom half-yearly to my said daughter, Hannah, and, upon her death, to pay over said principal sum of twenty-five thousand dollars to her children in equal shares. Should she, however, die without leaving any children, then said sum of twenty-five thousand dollars shall be divided between my sons Samuel, David, Joel, Edward .and Harry, and my daughter Amelia, in equal shares.

(e) To my son Joel the sum of fifteen thousand dollars.

(f) To. my son Edward, the sum of fifteen thousand dollars.

(g) To my daughter Amelia the sum of ten thousand dollars, •and, in addition thereto, to invest the sum of forty thousand dollars in first mortgages upon improved real estate in the city of New York, and pay the interest realized therefrom half-yearly to my said daughter Amelia and, upon her death, to pay over said principal sum of forty thousand dollars to her chilclren in equal shares. Should she, however, die without leaving any children,, then said sum of forty thousand dollars shall be divided between my sons Samuel, David, Joel, Edward and Harry, and my daughter Hannah, in equal shares:

(h) To my son Harry the sum of fifteen thousand dollars

(i) To my son Isaac the sum of ten thousand dollars, if at that time his present wife shall have died or he shall have been divorced from her by an absolute divorce and shall have married a decent Jewish woman.

(k) To invest tne sum of fifteen thousand dollars in first mortgage upon improved real estate in the city of New York, and pay the interest realized therefrom half-yearly to my beloved wife-as long as she may live, and upon her death to divide the principal sum between my sons David, Joel, Edward and Harry, and my daughters Hannah and Amelia in equal shares.”

It is then provided in the remaining subdivisions of this clause, of the will that, should there be any balance left of his real and personal estate, certain legacies should be paid therefrom to certain, societies and charitable institutions in the city of New York, and if any further balance should remain that the same be divided in equal shares between his sons and daughters, excluding Isaac and Hyman.

By the twentieth clause of the will it is provided that if either of his children should die before the division of his estate, leaving lawful issue, his, her or their share should be divided between their children in equal shares, and in default of such issue between his .remaining children, excluding Hyman and Isaac. •

In the twenty-second clause it is recited that no other provision is made for his wife, because the testator has sufficiently provided for her during her life, and because she owns sufficient real estate in her own right to support her, handsomely. .

By the twenty-third clause of the will power is given to the executors, until the. division of the residuary estate, to execute mortgages on the real estate left by the testator in place an"d stead of any mortgage and mortgages existing at the time of his death, provided such mortgages should become due and be called in.

It is claimed on the part of such of the defendants as challenge the validity of the will, that the trust attempted to be created by the eighteenth clause thereof, is unauthorized and void; and that the same is not one of those trusts which are authorized by section 55 of art. 1 of title 2 of part 2 of the Revised Statutes. It is also claimed that if such trust is to be regarded as a trust to pay annuities, the valid purpose is nominal merely, and that it can be seen that it was inserted as a mere cover for an attempted illegal accumulation. The assailants of the will also claim that the power of alienation is illegally suspended by the nineteenth clause of the will, because it may possibly continue during the lives of both Harry and Amelia; and the executors are ordered after selling, upon the happening of the events above specified, to invest a portion of the proceeds of such real estate, and hold the same in trust during the additional lives of Samuel, Hannah and Amelia, and that of his wife.

This last objection will be first considered. The rule was laid down in the case of Schettler v. Smith, 41 N. Y. 328, that in construing dispositions of property with reference to the statutes against perpetuities any limitation is void as in violation of that statute by which the suspension of the power of alienation will not necessarily under all possible circumstances terminate within the prescribed period. It is not enough that it may so terminate. It is contended, however, on the part of the plaintiff that there is nothing in the statute nor in this rule which forbids the creation of alternate limitations, or which forbids the creation of alternate periods during which the power of alienation and ownership shall be suspended providing that the limitation or the period of suspension which actually takes effect or is adopted, does not of itself offend against the statute.

In this case the testator bequeaths and devises his property to his executors in trust until his son Harry should become twenty-one years of age or die. It is conceded that Harry is at this time a minor between fifteen and sixteen years of age, and it therefore follows that if he shall live and attain the age of twenty-one years, the estate can be distributed within the period of a single life ; and if he attains that age the term of suspension is never to be measured or affected by Amelia’s life. And if she should die during Harry’s lifetime and before he attains twenty-one years of age the suspension is never measured by her life.

I am of the opinion upon the authority of Savage v. Burnham, 17 N. Y. 561, that this view of the case is correct. The case of Schettler v. Smith is not in opposition as I understand it to this view. There the testator gave a portion of his estate to his executors in trust to pay the income to a son during this life and on his death to pay the income to his son’s widow for her, and upon her death, or, if he left no widow, then upon his death a remainder over was created. The court of appeals decided that while the remainder over limited upon the life of the widow was void, because the widow might be a woman not in being at the time of the testator’s death, yet the disposition of the property in the alternative should be permitted to take effect.

Grover, J., in delivering the opinion of the court, uses the following language : “ How, it is clear that the son might have married a woman born after the death of the testator, and consequently one not in being at the death of the testator and that such woman might have survived the son; and in the happening of such events, the trust to pay the income to such woman, during her life, would not have been terminated upon the death of two persons in being at the death of the testator ; consequently the provision in favor of the son and the further trusts to convey upon her decease might suspend the power of alienation of the real for a longer period than two lives in being at the creation of the estate, and also the absolute ownership of the personal property for a period longer than two lives in being at the death of the testator, and were therefore void. But it will be seen that the clause of the will under consideration makes a disposition.of this ' portion of the property in the alternative upon the happening of another series of events. That provision is : ‘Or if he (the son) leave no widow, then upon his (the son’s) decease ' to convey as above provided.’ It will thus be seen that in the event of the son’s having no widow, the property is to he conveyed to his issue upon his decease ; that is , upon the termination of a single life in being at the death of the testator. Had this been the only direction as to the conveyance, it is clear that it would, have been valid, as by no possibility could the power of alienation of the real and absolute ownership of the personal been suspended beyond the period allowed by statute. The son having died leaving no widow, the inquiry is whether this lawful disposition is rendered invalid by the unlawful disposition attempted to be made in the contingency of his leaving a widow. It is difficult upon principle to see why it should. But for the prohibition of the statute, both dispositions would have been lawful and valid, and either would have taken effect according to the happening of events giving it validity. The statute comes in and avoids one of the dispositions, leaving the other unaffected by its provisions. Why should not the latter take' effect upon the occurrence of the events upon which it was made to depend ? Lewis on Perpetuities (501, 2) says that where a limitation is made to take effect on two alternative events, one of which is too remote and the other valid as within the prescribed limits, although the gift is void so far as it depends upon the remote event, it will be allowed to take effect on the' happening of the alternative one. That is, in principle, precisely this ■case in this aspect, vide, Crompe v. Barrow, 4 Vesey, 681; Suvage v. Burnham, 17 N. Y. 561;see, also, Tiers v. Tiers, 98 N. Y. 568; Cross v. U. S. Trust Co., 131 N. Y. 330, 337; 43 St. Rep. 254, and Purdy v. Hayt, 92 N. Y. 446. In the last case the testator devised real estate to his two siters during their respective lives, and after their death directed that it could be sold, the pro-needs invested and the income paid to his niece during her life, with remainder to her children, if she should have any. Upon the death of the survivor of the two sisters the executors sold the land and invested the proceeds and paid the income to the niece until the validity of the bequest was questioned upon the accounting. It was held that the sisters took a life estate as tenants in common with cross remainders over ; that upon the death of the first sister the two lives were exhausted as to that moiety, so that the further limitation is void as to the moiety on the sister first died; but that as to the part originally taken by that one of the sisters who died last the limitation for the life of the niece was valid (see opinion of Andrews, C. J., at page 457).

I am of the opinion, therefore, as is contended by the counsel for the plaintiffs, that the only uncertainty whether the title to the legacies given to Samuel and Hannah will be unlawfully suspended, depends upon whether Harry attains the age of twenty-one years; and that this can be ascertained within the period of a single life. Even if I am wrong in this conclusion it does not follow that the whole will is void by reason of an unlawful suspension of the power of alienation, because such suspension can only exist as to the legacies given to Samuel and Hannah, and contained in subdivisions (c) and (d). These gifts can be readily separated from the others contained in the will, and even if they are invalid the general scheme of the testator could not be defeated. Post v. Hover, 33 N. Y. 593; Manice v. Manice, 43 N. Y. 384; Cross v. U. S. Trust Co., supra.

I am of opinion that the trust created by the eighteenth clause is also valid. Under section 55 of the Revised Statutes above referred to (subd. 2), an express trust may be created to sell, mortgage or lease land for the benefit of legatees or for the porpose of satisfying any charge thereon ; and under the third subdivision to receive the rents and profits of land and apply them to the use of any person during the life of such person, or for any shorter term, subject to the rule prescribed in the first article of this title.

Here the executors are given power to collect the rents, income and profits of the real estate and the whole of the personal estate, and after paying the legacies, interest on mortgages, taxes, assessments, fire insurance and repairs on the real estate, to apply the remainder of the rents, together with the income and the principal of the personal estate, to the paying off and discharging of the principal of the mortgages on the real estate. The case of Cochrane v. Schell, 140 N. Y. 516; 56 St. Rep. 464, seems to me to be in point on this branch of this case. I cannot accede to the position taken by counsel that thé provisions in the eighteenth clause involve accumulations of income for purposes not authorized by the statute, for the reason that there may be enqugh income annually received without resorting to or accumulating such income; or that the same is a mere cover for an illegal accumulation of income. It appears by the affidavit of Mr. Roeder that the mortgages now outstanding against the real estate amounting in all to the sum of $257,500; $120,000 of which is subject to four and one-half per cent, interest, and the remaining $137,500 to interest at five per cent. It is not at- all clear, therefore, in view of the fact that the widow has elected to take her dower, that there will be any income to apply upon payment of the mortgages, or that the total income will be sufficient to pay the same and the annuities. In the case of Cochrane v. Schell, the annuities which were directed to be paid during the continuance of the trust amounted for a porton of the term to $20,000 per annum, and for a subsequent portion to $22,000 ; and the residuary estate yielded an income of about $90,000. The court said, at page 535 : “ The court is asked to infer that the primary purpose of the testator was to constitute an unlawful trust for accumulation. It may be conceded that to support a trust under the third subdivision there must be a purpose within that section, not illusory and nominal merely, but real and substantial. The objection assumes that the testator contemplated that no contingency could arise where, by loss or shrinkage in value, or bad investment, or change in the rate of interest, the whole or substantially all of the income of the estate would be required to pay the annuities. He plainly did intend that the whole income should be pledged for the payment of the annuities. Is it possible for the court to say that the trust for the payment of annuities amounting to $20,000 was evasive and veiled the real purpose of the testator ? ”

I am of the opinion that the plaintiffs are entitled to judgment declaring that the provisions in the will of Marks Rinaldo, which are the subjects of the controversy before me, are legal and valid.

Settle findings on two days’ notice.


source: Caselaw Access Project

license: Public Domain

text:
    The People ex rel. Benjamin Brewster et al., as Executors, etc., v. Edward P. Barker et al., as Commissioners of Taxes, etc.

      (Supreme Court, New York Special Term,

      Filed April, 1894.)

    Taxes—Personal property ot decedent.
    Personal property of an estate, delivered, by concurrence of all the executors, into the exclusive custody and control of two of their number, and actually held and kept within the county of the latter’s residence, is; assessable in such county, though the other executors reside in different counties.

      Deming & Walradt (Horace H. Deming, of counsel), for relators; William H. Clark, counsel to the corporation, (George S. Coleman and James M Ward, of counsel), for resp’t.
   Lawrence, J.

This is a certiorari brought to review ings of the commissioners of taxes and assessments in relation to an assessment made upon the defendants as executors and trustees-of David Dows, late of the city of New York, deceased. ’ By his will, the testator appointed Alexander E. Orr, the relators Benjamin Brewster and Richard Hoe and David Dows, Jr., and George B. Cooksey, executors and trustees.

The Revised Statutes provide that “ every person shall be assessed in the town or ward where he resides, when the assessment is made, for all personal estate owned by him, including all personal estate in his possession, or under his control, as agent, trustee, guardian, executor or administrator, and in no case shall property so held under either of those trusts be assessed against any other person." (2 R: S., p. 989, § 5, 7th ed.)

It is conceded in this case that Mr. Orr resides in the city of Brooklyn, and that David Dows, Jr. and George B. Cooksey are residents of Irvington, in the county of Westchester. It is also conceded that the residence of Benjamin Brewster, one of the relators in this proceeding is in the city of New York. The other relator Mr. Hoe, claims a residence in Irvington, which claim is denied by the respondents, but upon the evidence taken by the referee herein, I am of the opinion that it cannot be disputed, that on the day when the assessment was imposed Mr. Hoe was a resident of Irvington in the county of Westchester.

I agree with the counsel for the respondents, that the single question involved in this proceeding is the meaning of the words 41 possession and control” contained in the provision of the Revised Statutes to which I have just referred, and therefore, that it is immaterial in the present discussion, whether Mr. Hoe at the time of the assessment, resided in the county of New York or in the county of Westchester ; for if Mr. Brewster, the remaining relator, had, within the meaning of the statute, “ possession and control ” of the property held in trust, as there is nothing before me to show that the amount of the assessment exceeded the value of the property thus controlled and possessed, such assessment cannot be successfully attacked. On the evidence in the case, I am, however, of the opinion that Mr. Brewster did not have such possession and control of the property assessed as to render it liable to taxation in the county of New York. The evidence discloses that neither Mr. Orr nor Mr. Brewster handled the securities or had anything to do with the active management of the estate, with the exception that Mr. Brewster assisted in checking or tallying the inventory of the securities immediately after Mr. Dows’ death. His position seems to have been that of an adviser, and by the resolutions passed at the meeting of the. executors which was held on the 2d of December, 1890, all the personal property of the testator was placed in the exclusive custody and control of David Dows, Jr., and George B. Cooksey, whether the same was held by the executors or as trustees. The cases which have been referred to by the learned counsel for the respondents, cannot in the face of those resolutions and of the other facts proven before the referee be taken as authority for the position that the relator Brewster had such possession and control of the securities belonging to the estate of the testator as to subject them to assessment and taxation in this county in consequence of the residence of Mr. Brewster in this county.

The case of the People ex rel. Darrow v. Coleman et al., Com'rs of Taxes, 119 N. Y. 137; 28 St. Rep. 937, throws no light upon this point. In that case the provisions of chapter 392 of the Laws of 1883, declaring that “ All debts and obligations for the payment of money due or owing to persons residing within this state * * * wherever such securities shall be held shall be deemed, for the purposes of taxation, personal property within this state, and shall be assessed as such to the owner or owners,” was the subject of construction, and it was held that it referred to debts or obligations which are solely due or owing to residents of this state, and that it does not include as owners persons who are trustees only, and, therefore, a resident trustee could not be assessed for securities not held by him and not within this state, but which are in the possession of one of the non-resident trustees. That act was undoubtedly passed in conseqence of the decision of the court of appeals in the People ex rel. Jefferson v. Smith, 88 N. Y. 576, and the court held that it was not to be extended beyond the plain import and meaning of its language, and that therefore a trustee was not to be regarded as an owner. The case of the People ex rel. Neustadt v. Coleman, 42 Hun, 581; 4 Rep. 493, is not in point, for the reason that the relator in that case resided in the city of New York, and that it did not appear that any of the property for which he had been assessed was not in his possession (see page 585). The case of the People ex rel. Campbell v. Com'rs of Taxes, 38 Hun, 536, is also not in point, for the reason that two of the executors were residents of the city of Hew York, and that the possession of the non-resident executor was merely temporary on account of their absence by reason of illness, the court saying that there was no evidence of the transfer of the property to any other place, except what might be inferred from the circumstances under which the foreign executor took possession; but this was a possession for the use of the estate and its beneficiaries, and in no sense-deprived the other executors of that legal custody and possession resulting from their relation to it as executors and trustees.

In this case it appears that by a formal resolution the physical, as. well as the legal, possession of the property assessed was transferred by the trustees and executors to Mr. Dows and Mr. Cooksey; that they took possession of the property under said resolution,, and held it at the time of the imposition of the assessment, and have not parted with that possession, so far as the evidence discloses, up to the present time.

The case of the People ex rel. Caswell v. Com’rs of Taxes and Ass’m’ts, 17 Hun, 293, decided by the general term of this department, seems to me to dispose of this case. In that case the testator by his will appointed his four sons, who resided in Westchester, and his two sons-in-law, one-of whom, the relator, resided in the city of Hew York, the executors of his will, and letters testamentary were issued to such persons. The personal property of the testator was assessed by the tax commissioners in the city of Hew York to the relator as one of the executors of the estate. The relator appeared before the respondents in due season, and applied to have the assessment vacated. Upon being sworn, he showed that he had, in accordance with the determination formed by him prior to the assessment in question, ceased to take any part in the settlement, of the estate, except to give his opinion and advice when asked for by his co-executors, and that at the time of the service of the notice of assessment upon him, and for some months prior thereto, he had not, nor had he then, in his possession or under his control as-executor, any personal property belonging to the said estate.

Davis, P. J., in delivering the opinion of the court, says : “ The-question presented, therefore, upon the undisputed facts of this-case is whether the personal property of the estate of the deeased was within the meaning of the statute in the possession or under-the control of the relator as one of his executors. The assessors held that it must be assumed that the legal title and possession and the consequent right to control were in the relator, notwithstanding the property was in the hands of his co-executors, and in another county, and under their physical and personal control. In this we think they erred.”

The court cites in its opinion the case of Williams v. Holden, 4 Wend. 223.

I do not discover that this decision of the general term of this-department has ever been reversed, and as the facts involved in that case so clearly resemble the facts presented here, I feel myself bound to regard it as binding and conclusive upon me in disposing o£ this case. I am, therefore, of the opinion that the relators are entitled to the relief which they seek by this proceeding, and that judgment should be rendered, vacating the assessment, and striking the same from the assessment roll of 1891.


author: Ingraham, J.

text:
    Annette Wetmore, Plaintiff, v. Sarah T. Wetmore, as Trustee, etc. et al., Defendants.

      (Supreme Court, New York Special Term,

      Filed April, 1894.)

    Divorce—Alimony—Action to enforce payment.
    The income of p, c-stui que trust, who absents himself from the state, may be made applicable, by an action in equity, to payment of alimony due and to grow due under a judgment of divorce
    Action in equity to enforce payment of alimony.

      Flamen B. Candler, for pl’ff; S. P. Nash, for deft Wetmore, trustee; Gerard Irvine Whitehead, for deft W. B. Wetmore.
   Ingraham, J.

The substantial parties to this action are residents and citizens of this state, and bound by its laws and the judgments of its courts, and have appeared generally in this action, and are subject to the jurisdiction of the courts.

In an action for divorce between the plaintiff and the defendant W. B. Wetmore, both parties appearing in the action, this court has granted to the plaintiff a divorce and has by its judgment in such action, directed the said defendant to pay the sum of $6,000 a year alimony, for the support of the plaintiff and the children of the marriage, and that judgment was duly served upon the said defendant within this state.

There is no contention but what that decree was in all respects regular, nor is it alleged that it is not binding upon the defendant William B. Wetmore, nor is any fact alleged tending in the slightest degree to show that the enforcement of that judgment is inequitable. Said defendant, however, has, since the service of the judgment'upon him, withdrawn from the jurisdiction of the court, so that it is impossible to enforce the decree as against him by any of the remedies provided for in the Code of Procedure. It further appears that there is in this state a trust fund created by the will of this defendant’s father, whereby he is entitled to receive the income of such trust fund, and a sum of money representing such income since the commencement of this action, which it is conceded is the property of this defendant W. B. Wetmore, is now in court subject to the judgment of the court, and the defendants now claim that this court has no power by its judgment to provide that this sum of money, the property of this defendant, should be applied to the payment of this judgment for alimony, and the court has no power to provide that the accruing income from this trust fund should as it becomes payable to the defendant. W. B. Wetmore be applied to the discharge of the obligations created by the judgment of this court, or in other words that the defendant William B. Wetmore, a citizen of this state, entitled to the proceeds of property invested in this state, may, by merely withdrawing himself from the jurisdiction of the court, disregard its judgments and treat its decrees with defiance and contempt, the court being powerless to enforce its judgments. I cannot agree that the power of the courts of this state over its citizens is thus, limited.

The principle invoked by the defendant that the jurisdiction of the courts of this state in actions for divorce is limited by the provisions of the Code, and that the court has no power to grant any judgment in such an action, except that expressly provided by the Code, does not apply to the question here presented. This is not an action for divorce. That action has already been disposed of by the judgment that the plaintiff here seek to enforce, and that judgment it is conceded is in all respects valid and in strict conformity with the provisions of the Code. By that j udgment the court had directed the defendant, William B. Wetmore, to pay the plaintiff a sum of money. The question now is as to the power of the court to enforce this valid judgment and for that purpose the plaintiff applies to this court of equity to exercise its general equity jurisdiction and the decision of this case depends not upon the power of the •court to grant a judgment in a divorce case, but upon the general power of a court of equity to enforce its own judgment.

It is a principle at the foundation of the jurisdiction of a court of equity, that its decrees are framed to meet the facts of each particular case ; so that where a plaintiff asks for the enforcement -of a right which equity has jurisdiction to enforce it adapts its decree or judgment to such form as will give the relief to which the plaintiff is entitled. Thus, Judge Story, after speaking of the limitations of a court of common law, says: But courts of equity are not so restrained. Although they have prescribed forms of procedure, the latter are flexible and may be suited to the different postures of cases. They may adjust their decrees so as to meet most if not all of these contingencies, and they may vary, qualify, restrain and model the remedy so as to suit it to mutual and diverse claims, controlling equities and the real and substantial rights of all the parties. * x * So that one of the most striking and distinctive features of courts of equity is that they can adapt their decrees to all the varieties of circumstances which may arise and adjust them to all the peculiar rights of all the parties in interest.” 1 Story Eq. Juris. § 28. This principle has been many times recognized and applied by the courts of this state, and in no case with which I am acquainted have the courts refused to grant the plaintiff the equitable relief to which he was.entitled, bedause the situation is such as to render it impossible for the plaintiff to comply with any particular form or spespecial conditions.

. Thus in the case of National Tradesman’s Bank v. Wetmore, 124 N. Y. 248; 35 St. Rep. 316, it was held that the return of an execution unsatisfied was not necessary where the situation was such as to render impossible the issuance of' such execution, and it seems to me that the principle established in that case is a direct authority which justifies the granting of the relief here sought. That action was brought to set aside as fraudulent a deed from one Abner 0. Wetmore through a third person, to his wife, by a creditor of said Wetmore. The trial court found that the conveyance was made by Wetmore after his indebtedness to the plaintiff accrued, and was made without consideration and with intent to defraud his creditors. Wetmore subsequently died, and the referee found that at the time of his death he had no title to any property, real or personal, in the state of New York. No judgment,had been obtained against Wetmore or his estate and no execution had been returned. The court held that the case was not within the contemplation of the statute relating to creditors’ actions; that the support of the action was dependent upon the “common law power" of the court of equity; that the rule that an execution must be returned unsatisfied, as the only proof admissible that the remedy at law had been -exhausted, was not so unrelenting as to deny to a party the interposition of the equity powers of the court, when the situation is such as to render impossible the aid of a court of law, to there take the preliminary steps and produce what ordinarily may be treated .as the condition precedent to the application for relief, and the court, in reversing a judgment which refused the plaintiff relief said: “ When a party has done all that is possible for him to do to prepare the way for his case to equitable cognizance, he is not to be denied access to the only tribunal capable of granting relief merely because he had proceeded no further than he was, without any fault or laches on his part, permitted to. That would be repugnant to the maxim ‘that there is no wrong without a remedy; ’ but while that maxim is not absolutely true, it expresses a principle, and it is for that rather than precedent that courts will seek in considering whether any or what remedy may be had in the administration of justice.” (ib., p. 251.)

Look for a moment at the situation presented here. The judgment of the court provides that this defendant, William B, Wetmore, should pay to the plaintiff a sum of money each year. William B. Wetmore is entitled to receive for his own use a sum of money from the defendant trustee. He has left the jurisdiction of the court, refuses to obey its judgments, and in consequence of such absence the ordinary remedy provided for the enforcement of that judgment is impracticable. We have thus the obligation of the defendant, William B. Wetmore, to pay to the plaintiff this sum of money. We also have an equitable obligation of the defendant trustee to pay to the defendant, William B. Wetmore, the income of this trust fund as it accrues. In consequence of the voluntary act of the defendant, William B. Wetmore, in leaving this state, it is impossible to proceed against him by the ordinary methods used to enforce the judgment in the action for divorce. If he were present and subject to the jurisdiction of this court, there can be no doubt that the court by a commitment for contempt could compel him to apply the income from this trust fund to the payment of the amount adjudged to be paid to the plaintiff for alimony; also upon what principle can it be said that, because he absents himself from this State and voluntarily places himself in such a position that the plaintiff cannot enforce her judgment against him by proceedings for contempt, thereby the court has lost its power to do what it could do if he were present and submitted himself to its jurisdiction ? It is true that no express precedent is cited where such relief has been granted, but neither is there any case cited that holds that the court has not such power, and, as was said by the court of appeals in the case of the Rational Tradesman's Banlc v. Wetmore, supra,it is for the enforcement of the principle ‘ that there is no wrong without a remedy ’ rather than precedent that courts will seek in considering whether any or what remedy may be had in the administration of justice.”

In the case of Miller v. Miller, 1 Abb. N. C., 33, Mr., Justice Barrett clearly intimates that, in his opinion, a court of equity has power to enforce such a judgment, not treating the wife and children as mere judgment creditors. And in his opinion I fully concur.

The fact that the fund, the income of which is sought to be reached by this action, is held by a trustee, and that it is to a court of equity that any one seeking to enforce a trust must resort, gives to the Court, as the only tribunal that can enforce this judgment, jurisdiction. The court is not asked to interfere in any way with the trust or to do any act that would tend to destroy it. It does not anticipate the income from the trust fund, but simply, takes hold of the interest of the defendant W. B. Wetmore as it accrues, and provides that that interest shall be applied to the payment of the obligation of said Wetmore as long as he refuses to comply with the judgment of the court. I think, therefore,, that the plaintiff is entitled to a decree adjudging that the accrued income in the hands of the trustee be applied to the payment of the amount due to the plaintiff from William B. Wetmore under the judgment of divorce, and directing the trustee to apply such income in the future, as it accrues, to the satisfaction of that judgment. The decision and judgment to be settled on notice.


author: G-aynor, J.

text:
    Dina Sulz, as Administratrix, etc., Pl’ff, v. Mutual Reserve Fund Life Association, Def't.

      (Supreme Court, Kings Special Term,

      Filed March, 1894.)

    1. Insurance—Benefit society—Action.
    An administratrix, as quasi trustee for herself as beneficiary, can maintain an action on a-life insurance policy.
    2. Same—Trust fund.
    Honey due on a policy in a mutual benefit insurance society is in the nature of a trust fund, and is not an asset of the estate accessible to creditors.

      Charles J. Patterson and Ernest P. Brook, for pl'ff; Raphael J. Moses, Jr., for def’t.
   G-aynor, J.

The learned argument of the counsel who appeared for defendant on the motion leads into what have always been intricacies in the law. But the disposition of this case does not seem to lead that way. The deceased, the plaintiff’s husband, was a resident of Brooklyn. He went away with a design of settling elsewhere, it may be, if he was able to locate himself favorably, and to bring his wife when he had so changed his residence. He finally reached the state of Washington and died there. He had not established a new residence there, but it was still in Brooklyn, and his wife resided here. She took out letters of administration upon his estate and brought this action to recover upon the policy. Before doing so, however, she had renounced any right she had to be appointed administratrix in the state of Washington, and another being thereupon appointed there had brought suit to recover on the policy, it being found there among the effects of the deceased." Her renunciation can be held to relate only to assets which had to be administered on in Washington. The policy was dated and issued in the city of New York and the defendant is a New York corporation with its principal office in the city of New York. I think the plaintiff may recover the policy here. In the case of all debts and obligations save bonds and other specialties the rule always was that they constituted assets in the jurisdiction of the debtor’s residence. Holyoke v. Union Mutual Ins. Co., 22 Hun, 75; Beers v. Shannon, 73 N. Y., 299. The technical rule as to bonds and other specialties was that they were assets in and belonging to the jurisdiction where they happened to be,at the time of the decedent’s death (supra.) I do not deem this policy a specialty in such a sense. It having the corporate seal upon it does not make it such. Besides, these technical rules arose out of conditions which never existed in this country. Att'y Gen. v. Bonwens, 4 Mees & Wels., No. 190-1.

But the plaintiff may recover in another aspect. The policy is by its terms payable to the “legal representatives” of the insured. The bylaws of the defendant state its object to be “ to promote the well-being of all its members and to furnish substantial aid to their families or assigns in the event of a member’s death.” This means the immediate families, or in other words, the dependents of the members, and not remote relatives and immediate relatives and dependents indiscriminately. This provision, coupled with the proof of the dependence of the plaintiff upon her husband, and that they had no children, makes the true construction of the policy to be that the amount due upon the policy belongs not to the general estate of the deceased but to his widow. Griswold v. Sawyer, 125 N. Y., 411; 35 St. Rep. 396. In that view the plaintiff could have sued individually to recover on the policy, and the fact that she has sued as administratrix does not matter. Bishop v. Grand Lodge, 112 N. Y., 636; 21 St. Rep. 811. If some one other than the widow had been appointed administrator here, I do not see why the widow could not have maintained an action to recover the policy, inasmuch as the money due upon it belongs to her and not to the general estate of the deceased. The administrator in Washington can stand in no better position, unless the mere possession by him of the duplicate policy delivered to the deceased so places him; but I do not see on what principle that could be the ease, and no such contention has been made. Attention is now called for the- first time to the fact that to the question in the application for the policy, “ State full name, age and relationship of person for whose benefit the policy applied for is to be used,” the decedent answered, “ My estate,” and upon this it is argued that the policy belongs to the administrator, and the proceeds must go to the creditors of the deceased and then to his next of kin according to the statute of distribution. I do not think this follows as a matter of law in view of the bylaws and the general object of the defendant association. The applicant may well have had in view the possibility or probability of having children, and for that reason refrained from designating his wife as the sole beneficiary. The actual designation, so viewed, still contemplates what was in mind of both parties fresh from reading and considering the bylaws—namely, the securing of a fund to aid the immediate family, the dependents of the decedent at the time of his death.

The motion for a new trial is denied.


author: Wright, J.

text:
    Rose Grillenberger, Pl’ff, v. Ralph N. Spencer, Def’t.

      (Supreme Court, Onondaga Special Term,

      Filed March 12, 1894.)

    1. Evidence—Parol.
    An oral agreement, which does not contravene the terms of the written instrument and is only an incident to the chief purpose of the contract, is binding upon the parties.
    2. Power of attorney—Incidental powers.
    Every delegation of power, whether it is general or special, express or implied, carries with it, as an incident, the power to do all those, things which are necessary, usual, reasonable and proper to he done to effectuate the purpose for which the power was created.
    3. Specific performance—Extension of time.
    A court of equity will hold open the case to enable the vendor to perfect the title, which at the time of the tender of the deed made in due season and in good faith, he believed to be sufficient, in the absence of objection to its sufficiency at the time of the tender.
    Action for the specific performance of a contract to convey land.

      Geo. H. Sears and T. K. Fuller, for pl’ff; Robert K Waite, for 'deft.
   Wright, J.

The plaintiff, a resident of Syracuse, and the defendant, a resident of the state of Georgia, by contract, on the 1st day of May, 1892, agreed to exchange lands; that of ■ the plaintiff being situated in the state of Georgia, and that of the defendant being situated in the city of Syracuse. The contract on the part of the defendant was executed by his agent, Edwin _E. Blake, under a power of attorney, the empoweringclauseof which reads as follows:

“I do make Edwin E. Blake my attorney to sign, seal, _ and deliver and fully execute articles of agreement unto Rose Grillenberger for a sale and conveyance of the following pieces of land [here follows the description], giving and granting unto my said attorney full power and authority to do and perform every act and thing whatsoever requisite and necessary to be done in and about the premises, writh full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or bis substitute shall lawfully do, or cause to be done, by virtue hereof.”

The agreement above mentioned provides, on the part of the defendant, that he will convey to her or her heirs in fee simple, by good and sufficient deed or deeds of conveyance, with covenants of warranty, free and clear from all liens, etc., the land in Syracuse referred to; and, on the part of the plaintiff, it is provided that she will pay for the above mentioned premises the sum of $300, and convey unto him, the defendant, his heirs and assigns, by good and sufficient deed or deeds of conveyance, with covenants of warranty, free and clear from all liens and "other incumbrances, the land in question situated in the state of Georgia. It is further agreed and covenanted “that if the covenants and agreements hereinbefore contained are not performed by the said party of the second part on or before the 15th day of May, in the year 1892, this agreement shall be null and void.” The defendant alleges as a defense that the plaintiff did not perform her part of the agreement within the time specified, in that the deeds tendered by her were not acknowledged in the form required by the statutes of the state of Georgia to authorize them to be recorded in that state; also, that, at the time of the beginning of the action and the date of the trial, she was unable to perform on her part, she having no title to the property according to the laws of the state of Georgia, for the reason that her claim of title according to the deeds produced in evidence, was derived from her husband by conveyance directly from him to her. No place of performance of the contract was mentioned in the instrument itself, but at the time of the execution it was orally agreed between the plaintiff and the defendant’s agent, Blake, that the tenders on the part of the plaintiff should be made to Mr. Buck, an attorney of the defendant, residing in the city of Syracuse, and that the demands of performance on the part of the defendant might be made of him; and the contract thereupon was put into Mr. Buck’s possession. This oral agreement does not contravene the terms of the written instrument, and is only an incident to the chief purpose of the contract, and is therefor binding upon the parties. Franchot v. Leach, 5 Cow. 506; Lawrence v. Miller, 86 N. Y. 139.

On the 14th day of May the plaintiff’s attorney, Mr. Sears, tendered to Mr. Buck the $300, and two deeds of conveyance, executed under the forms authorized by chapter 475 of the Laws of 1890 of the state of New York, one from John M. Grillenberger to the plaintiff, and the other from the plaintiff to the defendant, each executed May 13, 1892, and purporting to convey the lands in question in the state of Georgia, and acknowledged before a notary public of the county of Onondaga, and stated to Mr. Bnclc that the plaintiff desired to carry out her contract, and asked him if the defendant was ready to perform. Mr. Buck replied that he was not ready to perform then, but that Mr. Blake would be there in a day or two, and then he would be ready, and that the matter had better be left until Mr. Blake came. Mr. Sears thereupon stated:

“If the two deeds which he delivered were not such as the Georgia laws required, that the plaintiff was willing at any time to give such deeds as would conform to the Georgia statutes.” Mr. Buck replied:
“ There won’t be any question about it. I only want a day or two, and I think Mr. Blake will be here either to-day or to morrow, and there won’t be any question about this contract being carried out.”

Mr. Sears then said:

“I will inclose this money in an envelope, and these two deeds, and will put them in my safe, any time subject to your order, when you can produce your deeds, under this contract of the Syracuse property, which you are to convey to us.”

The money and deeds were produced in court by Mr. Sears. On the next day, May 15th, Mr. Sears had an interview with Mr. Blake, in the presence of Mr. Buck, as to which Mr. Sears testified as follows:

“ I told Mr. Blake what I had done with Mr. Buck, and asked him if they were going to fulfill on their part. ‘Why,’ he said, he supposed so. He said that he had not got their deeds; that he would have to take a little time to get some mortgages released that were on it, which he said he thought he,would be able to do in a day or two; and that he would immediately correspond with Mr. Spencer; and he thought the matter could be closed up in a short time. I told him that I had seen Mr. Buck, and he had made a tender of some deeds, and that I had had a discussion with ' Mr. Buck as to whether my deeds were such as the Georgia statutes required. I said I would not want any question to come up with reference to the fact as to whether I had drawn proper deeds; that we were willing to give such deeds as the statutes required, and, if those were not the deeds which the statutes required, we would at any time execute such deeds. He said: ‘There won't be any ■ trouble about that, Mr. Sears. You need not have made any tender at all if you did not choose to.’ ”

Mr. Sears then described how he had made the tender and said that the money and the deeds would be in his safe, inclosed in an envelope, and that he (Blake) could get them at any time when he called for them. Mr. Blake said he would correspond with Mr. Spencer, and that there would not. be any trouble about the matter. Subsequently Mr. Sears called upon Mr. Blake to perform the contract. Mr. Blake said he had written Mr. Spencer, but had not heard from him. Thereupon this action was brought.

It is claimed by the plaintiff that this conversation constituted a waiver on the part of the defendant of the date of performance by plaintiff, occasioned by any defects in the manner of the execution of the deeds; but on the part of.the defendant it is urged that neither Mr. Buck nor Mr. Blake possessed any power to make such waiver and that, no conveyance executed in conformity with the Georgia statutes being tendered on or before the 15th of May, 1892, the defendant is, by force of the terms of the agreement, absolutely released from performance on his part. This objection is not well taken, for the power of attorney which Blake possessed conferred upon him, by implication, authority to provide for all incidents necessary, usual and appropriate for the performance of the contract; and, in view of the great distance separating the contracting parties, one of the most important of these incidents is the receipt of the consideration, and the appointing of a place where the deeds could be exchanged, and the person to whom the plaintiff might deliver her deeds and pay the purchase money, and of whom she might demand a delivery of the deed from the defendant. Determining these matters was intrusted by the defendant to the judgment and discretion of his attorney, Blake ; and the appointment of Buck for those purposes was, under the circumstances, clearly within the power of substitution contained in Blake’s power of attorney, and the plaintiff had the right to rely upon his being clothed with authority, not only physically to receive the tenders, but also to decide upon their sufficiency, accept or reject them, extend for a reasonable time the date of performance, or do any other act usually incident to the carrying out of that part of the contract. To hold, in view of the circumstances, that the defendant’s attorney Buck was a mere automaton in the matter, or to permit him to deceive the plaintiff by acting upon secret instructions of the defendant, would establish a principle leading to unfortunate results.

It is urged by the defendant that Blake had no autnonty to make a waiver, it not being expressly contained in his power of attorney, and that his authority was exhausted upon the execution of the writings, and cites the case of Hermann v. Niagara Falls Ins. Co., 100 N. Y. 411, to sustain that position. It is unnecessary to pass upon this point, for Blake was acting in unison with Buck in making this waiver. In Duffy v. O'Donovan, 46 N. Y. 233, it was held that the attorney of the defendant, who was authorized to receive the purchase money of the premises in question, had implied authority to extend the time of performance for a reasonable time, to enable the party to perform his part of the contract. In that case the vendee, instead of cash, tendered his check to the agent, within the time specified in the contract for his performance. The agent objected to the check, on the ground that it was not certified. The vendee thereupon went and obtained the proper certification of his check, and returned after the hour for the performance had expired. The court held that, if the agent had intended to hold the plaintiff to the performance at the very minute, he should have notified the party of such intention at the time the vendee proposed to go for the certification; and, no objection being made, the vendor was estopped from claiming, upon the return of the vendee within a reasonable time, that the right to perform had been lost by lapse of time. See, also, Van Zandt v. Furlong, 18 N. Y. Supp. 54; 44 St. Rep. 384; Moore v. King, 57 Hun, 224; 32 St. Rep. 808 ; Ahern v. Goodspeed, 72 N. Y. 108 ; Mayer v. Dean, 115 N. Y. 560; 26 St. Rep. 375 ; and the Indianapolis Rolling Mill v. St. Louis, Ft. S. & W. R. Co., 120 U. S. 256, Every delegation of authority, whether it be general or special, expressed or implied, carries with it, as an incident, the power to do -all those things which are necessary, usual, reasonable and proper to be done to effectuate the purpose for which the power was created.. Mechera, Ag. p. 200. Further, it was incumbent upon the defendant to be ready to perform his part of the contract on the 15th of May, for it must be held that it was the intention of the parties that the performance of each should be concurrent with the other. But the defendant was not ready on the 15th, and desired further time to obtain releases of mortgages upon his property. This fact, coupled with the offer to perform on the part of the plaintiff, constituted a waiver by the defendant of the time clause of the contract, and entitled the plaintiff to a reasonable extension of time, to enable her to correct her imperfect conveyances. Van Campen v. Knight, 63 Barb. 205, affirmed in 65 N. Y. 580. The contract therefore, is still in force.

It is urged by the plaintiff that the defendant waived all objection to the form of the conveyances and the manner of their execution. The statutes of Georgia required, as shown by the evidence, that, “ to authorize the recording of the deed to realty or personalty it must be attested if executed out of the state by a commissioner of deeds for the state of Georgia, or by a judge of the court of record in the state where executed, with the certificate of the clerk under the seal of such court of the genuineness of the signature of such judge.” The deeds tendered did not conform to this statute, being executed before a notary public; and, further, they were not effectual to pass a title. Therefore, if accepted by mistake, equity would compel the execution and delivery of sufficient deeds for that purpose. It was incumbent upon the plaintiff to prove, as part of her case, that her conveyance was sufficient, under the Georgia statutes, to pass the title. „ The presumption is that the common law prevails in that state ; for, at the time of the separation of the colonies from the mother country, the common law prevailed through the colonies. It was brought from England precisely as the English language was brought; and, on the principle that a state of facts once shown to exist is presumed to continue, it must be presumed that the common law still prevails in that state on this subject. To presume that the statutes of the state of Georgia were precisely like those of this state would involve the broader presumption that each of the states of the Union-enacted statutes precisely alike at the same time, which would be-violent indeed. Lawson, Fres. Ev. 372-374; Forbes v. Scannell, 13 Cal. 278. The consideration expressed in the conveyance to the plaintiff from her husband being nominal, it cannot be upheld' in equity ; and, if it could be sustained in equity, the husband, at common law, would be entitled to a freehold estate in the land, and its possession, and the rents and profits thereof during the coverture. Royston v. Royston, 21 Ga. 161; Nunn v. Givhan, 45 Ala. 370. Therefore the conveyances tendered by the plaintiff were ineffectual to pass the title.

The question now presented is whether a court of _ equity will hold open the hearing of the case to permit the plaintiff to perfect. her title, which, at the time of the tender of the deeds, made in due time and in good faith, she believed to be sufficient, no objection to their sufficiency being raised at the time of the tender. We must decide in the affirmative. In one case, where the plaintiff’s title was imperfect at the beginning of the action, and the release of certain devisees were required to perfect it, and those releases were ready for delivery at the hearing, it was held that specific performance should be decreed. Grady v. Ward, 20 Barb. 543. “ An inquiry as to title may be directed by the court of chancery at the hearing, so as to save a multiplication of unnecessary costs.” Fry, Spec. Perf. (3d Am. Éd.) pp. 621-624, and cases cited. “ The court will grant indulgence in point of time for getting over difficulties in matter of conveyance, as well where the vendor is the plaintiff as where the proceedings are instituted by the purchaser.” Duke of Beaufort v. Glynn, 31 Smale & Giff. 213. In Chamberlain v. Lee, 10 Sim. 444, the court, on the hearing, allowed the vendor time to procure by purchase a small part of the estate which he had agreed to convey ; and in another case (Sidebotham v. Barrington, 4 Beav. 110) the court allowed a limited time to the plaintiff to procure the concurrence of the assignee in insolvency in making the conveyance. In Dutch Church v. Mott, 7 Paige, 77 (an action for specific performance), no sufficient conveyance had been tendered up to the time of the trial. Chancellor Walworth refused to dismiss the appeal, but held that “a specific performance may be decreed if it appears by the report of a master that a perfect title can be made to the purchaser at the time of making such report.” In People v. Open Board of Stockbrokers' Bldg. Co., 28 Hun, 274, the final disposition of the case was held open, for the plaintiff to take legal proceedings of his title; and, on appeal, the court of appeals, in 92 N. Y. 98, reversed the decision, not on the ground that the court should not hold the hearing open in a proper case, but on the ground that it was inequitable to compel the purchaser to wait an uncertain and indefinite length of time, making his purchase depend upon the uncertain result of the vendor’s action at law to perfect his title.

An order may be entered referring it to a referee to ascertain, determine and report whether the plaintiff is now able to make a perfect, unincumbered title to the land in question, and, upon the coming in of said report, if it appears that such title can be made, and sufficient warranty deeds under the Georgia statutes are produced, a decree will be entered for a specific performance, upon such terms as may be then determined;. otherwise, the complaint must be dismissed, with costs.


author: Earl, J.

text:
    The People ex rel. The Press Publishing Company, App’lt, v. James J. Martin et al., as Police Commissioners, etc., Resp’ts.

      (Court of Appeals,

      Filed April 17, 1894.)

      1. Elections—Publication of nominations—Certiorari.
    The hoard of police commissioners of the city of New York, in making the selection of papers for publishing nominations under § 61, chap. 680 of 1893, acts judicially, and its action may be reviewed by certiorari.

    3. Same—Who may institute.
    The publisher of a paper not selected, who claims that it has the largest circulation, has sufficient interest to institute certiora/ri proceedings.
    3. Same—Proof.
    The board is not bound to resort to any particular evidence or to give to the various newspaper representatives a formal hearing,
    Appeal from order of the general term of the supreme court in the first judicial department, made October 13, 1893, which confirmed a determination of the board of police commissioners of the city of New York, designating certain newspapers for the publication of election notices, which proceedings were brought up for review by certiorari.

    The election law of 1892 provides fob the publication of the list of candidates to be voted for at any general election. The relator is the publisher of the New York World, and in the fall of 1892 it claimed that it was one of the papers published in the -city of New York in which the lists of nominations of candidates should.be published as required by that law; and on the 6th day of September an affidavit was made by its business manager, in which it was stated that the World was published in the city of > New York; that it advocated the principles of the political party which at the last preceding election cast the largest number of votes in the state of New York, and that its daily circulation exceeded by many thousands that of any other newspaper published in the United States; and the affidavit contained a statement that the relator was ready at any time, upon demand, to submit to the police commissioners or any one designated by them, in substantiation of its claims, all its books and accounts relating to its circulation. The affidavit was on the day of its verification delivered to and left with the police commissioners, with a letter signed by the business manager of the World, notifying them that it should be designated for the publication of all election notices for the reasons stated in the affidavit. From that time to the 25th -day of October following, there does not seem to have been any communication between any representative of the World and the police commissioners ; and on the latter day at their meeting its business manager again appeared before them and requested them to allow him to produce evidence, proving that the circulation of that paper in the city of New York was larger than that of any other daily newspaper published in the city, and that its circula-, tion was 75,000 in excess of the Sun and the Daily News. But the board would not allow him to produce such evidence. Before he appeared there, and before the request was made by him, the board had designated the New York Sun and the New York Daily News as representing the democratic party, and the New York Tribune and the Press as representing, the republican party.
    Thereafter, on the 2d day of November, the relator applied for a writ of certiorari to review the determination of the police commissioners in designating the papers named, and in its verified petition for the writ it alleged the facts herein before stated, and farther, that the letter and affidavit of the relator's manager of September 6 were before the commissioners at the time of the designation of the other papers, and that no other affidavit was at that time before them; that they did not obtain the best information that they could relative to the papers having the largest circulation within the city, and that they did not obtain any such information as a board other than that furnished by the affidavit of the relator’s manager, and that none of the newspapers designated had the .largest circulation within the city of New York. The commissioners made return to the writ, in which they admitted that there was left at their office in the city of New York the letter and affidavit hereinbefore mentioned, and that they designated for publication of the lists of candidates the Sun, News, Tribune and Press ; and they averred that on the 25th day of October, 1892, the only papers written in regard to the subject-matter before them were the letter and affidavit before mentioned; that at the time of the passage of the resolution designating the four papers no one appeared for the relator to substantiate the statements contained in the letter and affidavit; that after the resolution ■designating those papers had been adopted the manager of the World requested to be heard and was heard,but did not produce any witnesses or further evidence, and they declined to reconsider their action; that in designating the papers for the publication they selected those which, according to the best information they could obtain, had the largest circulation within the • city and county of New York.
    Upon the affidavit upon which the writ was issued, and the return to the writ, the general term affirmed the determination of • the board of police commissioners, and this appeal is from the decision of the general term.

      John M. Bowers, for app’lt; I). J. Dean, for resp’ts.

       Affirming 55 St. Rep. 442.

   Earl, J.

In the Election Law, chap. 680, sec. 61, it is provided that, at least six days before an election to fill any public office, the board of police commissioners of the city of New York shall cause to be published in not less than two, nor more than four newspapers within such city, a list of all nominations for candidates for offices to be filled at such election, and" that <( one of such publications shall be made in a newspaper which advocates the principles of the political party that at the last preceding election cast the largest number of votes in the state; and another of such publications shall be made in a newspaper which advocates the principles of the political party that at the last preceding election cast the next largest number of votes in the state. The clerk or board, in selecting the respective papers for such publication, shall select those which, according to the best information he can obtain, have the largest circulation within such county or city. In making additional publications the clerk or board shall keep in view the object of giving information, so far as possible, to the voters of all political parties; and in no event shall additional publications be made in two newspapers representing the same political party.”

The relator is right in claiming that the police commissioners in designating the newspapers act judicially; that their determination may be reviewed by writ of certiorari, and that the relator had sufficient interest to institute this proceeding; and while the time » has long since passed when any decision in this matter can have any practical, efficient operation, we will, in view of the public importance of the questions involved, overlook that circumstance and proceed to the determination of the matter upon its merits upon the facts as they appear in this record.

The police commissioners cannot, under this act, arbitrarily designate the newspapers without making any inquiry or any effort to obtain the best information as to their circulation. They must act in good faith and seek for information as to the circulation of the newspapers, and in making the designation they must act according to the best information they can obtain. But they are not bound to resort to any particular evidence nor to give the various newspaper representatives a formal hearing. They can receive affidavits, examine books or make other inquiries satisfactory to them for the purpose of ascertaining which of the newspapers has the largest circulation within the city. If they are furnished with formal proof by the representatives of any newspaper, they should receive it and act upon it. If evidence, not open to suspicion or doubt or question, is furnished to them showing that any particular newspaper has the largest circulation, they should receive and act upon such evidence, giving to it its proper force and effect. In other words, they should act in good faith, seeking for the best information to guide them in the-exercise of their judicial discretion in the selection of the newspaper under the act. All sources of information are open to them as they are open to assessors of property for taxation who are to proceed upon diligent inquiry and the best information they can obtain. 2 R. S. [7th ed.] 990, 991, 994; People ex rel. Westbrook v. Trustees of Ogdensburgh, 48 N. Y. 390.

Now, what facts have we here ? At the time the police commissioners designated the newspapers they had not been furnished with any'evidence by the relator that the World, bad a larger circulation in the city of New York than any other newspaper. The entire circulation may have been larger than that of any other-newspaper in the whole country, and yet its circulation may not have been so large in the city of New York as some other newspaper published there. The offer of the relator on the 25th of October, then to show that the circulation of the World in the city of New York was larger than any other newspaper, came too late, as the designation had then been made. There is absolutely nothing in this record showing that the determination of the police commissioners was erroneous, or from which we can determine that they did not exercise their jurisdiction regularly and rightfully. We are bound to take their return as true, and in it they allege that in designating the papers they selected those which, according to the best information they could obtain, had the largest circulation in the city of New York ; and thus they certified that they had actually and literally complied with the statute. If the return was evasive, or not sufficiently full, they could have been compelled, under § 2135 of the Code, to make a further return. They could have been required to return what action they took and what information they sought and obtained in reference to the circulation of the newspapers. But, instead of asking for a further ret.urn, the relator was oontent to stand upon the return as made. We are bound to take the return here as absolutely true. If it be false the relator has its remedy by an action against the police commissioners for making a false return, in which action it can recover its damages suffered in consequence thereof. People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437.

Therefore, because we cannot in this record discover any error in the proceedings or determination^ of the board of police commissioners, the order of the general term should be affirmed with costs.

All concur.

Order affirmed.