author: Landon, J.:

text:
    THE FIRST NATIONAL BANK OF WEST TROY, Respondent, v. MARGARET LEVY, as Executrix, etc., of BERNARD LEVY, Deceased, Appellant, Impleaded, etc.

      Practice — when a report will not he sent bach to a referee in order to allow him to make an award of costs inadvertently omitted from his report.

    After the delivery and service of a report in favor of the plaintiff, made by the referee before whom this action was tried, it was discovered that the report, did not pass upon the question of costs. Upon a certificate of the referee stating that he had intended to have awarded costs to the plaintiff, hut that by inadvertence he omitted to insert this provision in his report, an order was made sending the report hack to the referee, with directions to decide and determine whether costs should he allowed, and, if so, to which party.

      Held, that the order should be reversed and the motion be denied.

      Gardiner v. Schwab (34 Hun, 582) followed.
    The practice of sending a report back to the referee to supply alleged omissions ought not to he encouraged, and if allowed in any case it should he only to supply some mere technical or clerical omission; not to reinvest that officer with judicial functions touching the case theretofore submitted for his decision. The necessity and propriety of such action should be clear.
    Appeal from an order made at the Albany Special Term, sending the report of the referee in this action back to the referee, with directions to him to pass upon and decide the question of costs, and to amend his report in accordance with such decision.
    The referee to whom the action, which was a suit in equity, was referred to hear and determine, reported in favor of the plaintiff, but by inadvertence, omitted to pass upon the question of costs. After his report was delivered and a copy served upon the attorneys for the defendant, this omission was discovered, whereupon the referee certified that he intended to have awarded costs to plaintiff against the defendant Margaret Levy as executrix, but had inadvertently omitted this provision from his report. The plaintiff thereupon moved that the report be sent back with directions to him to pass upon and decide the question of costs in said action, and an order to that effect was made by the Special Term, from which order this appeal was taken.

      Nathaniel G. MoaJc, for the appellant.

      Edgar L. Fursman, for the respondent.
   Landon, J.:

The report of the referee is sufficiently full to permit judgment to be entered thereon determining the issues in the case. The action was in equity and as the referee did not award or deny costs, no costs can be adjudged in favor of or against either party. The referee has made a certificate in which he states that he intended to award costs to plaintiff, but by inadvertence omitted to do so.

We think the practice of sending a report back to the referee to supply alleged omissions ought not to be encouraged, and if allowed in any case it should be only to supply some merely technical or clerical omission; not to reinvest that officer with judicial functions touching the case theretofore submitted for his decision. The necessity and propriety of such action should be clear.

We refused to send back the report in Gardiner v. Schwab (34 Hun, 582). Here the plaintiff did not submit a request for an award of costs. If this had been done possibly the defendant would have presented objections to the award proper for the consideration of the referee. In view of the certificate of the referee, if these objections should now be presented, it is difficult to see that they would be considered at their proper force.

The order should be reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. *

Learned, P. J., and Bockes, J., concurred.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of MARGARET KRANZ, as Administratrix, etc., of JULIA A. KRANZ, Deceased.

      Practice — power of a surrogate to send back the report of a referee, with instructions to take additional testimony — Code of Civil Procedure, sec. 2481.
    The power conferred upon a surrogate by section 2481 of the Code of Civil Procedure “to open, vacate, modify, or set aside, or to enter, as of a former time a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause,” * * * can “ be exercised only in a like case, and in the same manner as a court of record and of general jurisdiction exercises the same powers,” and the same strictness should, in this respect, be observed by the surrogate as is observed in the Supreme Court.
    Appeal from an order of the Surrogate’s Court of Albany county, sending the report of the referee, in this matter, back to him, with instructions to hear the testimony of twelve or more additional witnesses, and to make another report thereupon.
    Margaret Kranz, the administratrix of Julia A. Kranz, deceased, was the general guardian of said Julia, from the time she was three years of age until her death, a period of about fourteen years. The petitioner, Mary J. Ereeberthyser, a half sister of said Julia, petitioned, in April, 1884, for a judicial settlement of the accounts of said Margaret Kranz, as administratrix and guardian of said Julia, and said administratrix duly filed her account as such administratrix and guardian May 24, 1884, in the Surrogate’s Court of Albany county. The petitioner objected, in writing, to said account, and on the 21st of June, 1884, the surrogate made and entered an order, referring the matter to a referee, to examine said account and the objections thereto, “ and to hear and determine the questions arising upon the settlement of said account; ” and also directing said Margaret Kranz to attend before said referee and be examined, under oath, touching her disbursements and receipts on account of said estate.
    Hearings were had, from time to time, before said referee, from July 14, 1884, to February 14, 1885, inclusive, when the hearing was closed, and the referee held the matter and did not file his report in the Surrogate’s Court until June 14, 1886.
    On July 2, 1886, the petitioner, by her attorney, served a copy of the report of the referee upon the attorneys for the administratrix, with notice thereon indorsed of the time of filing said report in the Surrogate’s Court.
    On July 12, 1886, the attorneys for the administratrix served affidavits and notice of motion to send the matter back to the referee for further hearing, and this motion was argued July fifteenth, and the order in question granted July 31, 1886.
    The reasons given by the administratrix for asking to' send this matter back to the referee for a further hearing and report, were substantially that she had discovered vouchers, which had been mislaid, and that she desired to call eight or ten witnesses, who would give material evidence, whom she had omitted to call upon the former hearing by oversight.

      John T. McDonough, for the petitioner Mary J. Freeberthyser, appellant.

      Van Alstyne dc R&oenor, for the administratrix, respondent.
   Landon, J.:

Power is conferred upon the surrogate by section 2481 of the Code, subdivision 6, “to open, vacate, modify, or set aside, or to enter as of a former time a decree or order of his court; or to grant a new trial, or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause.” But these powers, the same subdivision further provides, “ must be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers.”

We do not think the case made by the administratrix, upon which the surrogate sent this matter back to the referee for a further hearing and a new report, justified such an order. This matter was duly and regularly referred by the surrogate to the referee to hear and determine, a trial was had in which the administratrix had full time and opportunity to present all the evidence she deemed material; no fraud or clerical error is alleged, no such statement of newly discovered evidence is made, as courts of record deem sufficient to grant a new trial upon, and no other sufficient cause is stated. Our examination of the proceedings leads to the conviction that the referee considered the claims of the administratrix for credits quite favorably to her. He evidently was impressed with the fact that there were some expenditures by her which she was unable properly to prove, and he, therefore, could not allow; but he did make quite liberal allowances for board, washing, mending, etc.,” which possibly would have been less if the vouchers had been complete for all the other expenditures.

We are of the opinion that the surrogate ought not to favor delay and increased expense by reopening a case once regularly tried, unless the applicant makes such a case as the Code prescribes; and the same strictness, in this respect, should be' observed as in the Supreme Court.

Order reversed, with ten dollars costs and printing disbursements.

Learned, P. J\, and Bocees, J., concurred.

Order reversed, with ten dollars costs and printing disbursements.


author:
      Daniels, J.: Brady, P. J.:
      Macombbr, J.

text:
    GEORGE HENRY WARREN, Respondent, v. ROWLAND M. HALL and Others, Appellants.

      Action for the specific perfoi'mance of a contract to convey lands — admissibility of evidence to shows that it would be inequitable and unjust to grant the relief sought.

    In this action, brought to compel the specific performance of a contract by which the defendants agreed to convey to the plaintiff certain lands in the city of Newport, by a deed containing a general warranty and the usual covenants for the conveying and assuring to him of the fee simple of the premises, free from all incumbrance, a judgment was entered directing compensation to he made to the plaintiff on account of an easement of maintaining a sewer through the lands, and of entering upon the said lands to repair and maintain the sewer, which existed in favor of the city, and that a conveyance of the land subject to this easement be made to him.
    Upon the trial of the action the defendants offered, hut were not allowed, to prove that the plaintiff knew that the sewer ran through the property prior to the execution of the contract, and that the contract itself was prepared by the plaintiff’s attorney, who had searched the title and knew of the existence of the sewer.

      Held, that it was error to refuse to admit the evidence. (Macomber, J., dissenting.)

      Biggs v. Pursell (74 N. Y., 370) distinguished.
    Appeal from a judgment, entered on the trial of this action at the New York Special Term.

      Wheeler H. Peolcham, for the appellants.

      George G. De Witt, Jr., for the respondent.
   Daniels, J.:

The contract, for the specific performance of which this action was brought, by its language, obligated the defendants to convey to the plaintiff the property referred to in it, by a deed containing a general warranty and the usual covenants for the conveying and assuring to him the fee simple of the premises, free from all incumbrance. Before the time when it was made, and also when it was to be carried into effect, a sewer had been laid through a portion of the premises, which the city of Newport had the right to maintain and keep in repair, and for that defect in the title the plaintiff was allowed compensation by the judgment which, in addition to decreeing its payment, directed a conveyance to him of the premises.

Upon the trial of the action the defendants proposed to prove the plaintiff’s knowledge that the sewer ran through this property prior to the execution of this contract, and to follow it up by showing that the contract itself was prepared by his attorney, who had searched the title and knew of the existence of the sewer. This was objected to by the plaintiff’s counsel and excluded by the court, and to that ruling the defendants’ counsel excepted. No objection was taken to the insufficiency of the offer in any respect, but the only objection previously made to that description of proof was, that the preceding conversations and negotiations had become merged in the written agreement, and it was probably in that view that this evidence was excluded by the court. But as this action was for the specific performance of the agreement, the defendants had the right to prove any facts within the issue, rendering the claim by the plaintiff for compensation an inequitable one. For the rule is well settled in actions of this description, where the claim made for relief is unfair, inequitable or unjust, that the court will not decree a specific performance which may be attended with that effect. If this evidence had been received, and it is to be assumed for the present disposition of the case that the defendants could have proved their offer, then it would have established the fact that the plaintiff and his attorney, understanding the existence of this sewer in the property, and that it was the purpose of the defendants to convey it in the condition in which it was, prepared the contract and obtained its execution in such form as to impose the obligation hy its language upon the defendants, to convey the premises in the same manner as though the sewer itself had no existence. And that would result in taking an unfair advantage of the defendants, if in fact the plaintiff and his attorney were aware of the existence of the sewer. It would be an imposition upon the defendants to prepare and obtain the contract as they did, without apprising them of the fact that it had been so drawn as to obligate them to convey the property free from the incumbrance of the easement. It would likewise be of the same character, if the understanding between the parties was that the plaintiff should receive the conveyance of the property, subject to this servitude. In either case the transaction would appear not to have been fairly conducted. For if the plaintiff and his attorney knew of the existence of the sewer in the land, that knowledge required that some explanation or provision for the protection of the rights and obligations of the parties growing out of it should have been given place in the agreement. That was not done, but the contract was taken from the defendants. without any reference whatever being made to this sewer, or to the formal obligation declared by the contract to protect the plaintiff against it.

It may be that the conduct of the plaintiff and his attorney was entirely free from all criticism, and that it will be so made to appear upon a further consideration of the case. But as it has now been presented that cannot be assumed, but the court is required to infer from the offer, that knowing of the existence of the sewer, the attorney or counsel for the plaintiff prepared the contract without any reference to it, or exception made concerning it, binding the defendants to execute and deliver such a deed as they were incapable of giving because of the existence of the sewer.

In actions for the specific performance of contracts for the conveyance of real estate, it has been the constant practice of courts of equity to receive proof establishing the fact that the decree applied for would be unjust or inequitable, by reason of any material mistake, misapprehension or imposition upon the party proceeded against. (3 Greenl. on Ev. [15th ed.], § 361.)

It has been urged, in support of the ruling made at the trial, that if the proof had been received as it was offered, it would not have shown such knowledge on the part of the plaintiff or his attorney as would charge either with information as to the legality of the easement itself; and the case of Riggs v. Pursell (74 N. Y., 370) has been cited as an authority sustaining this position. But that case very materially differs from this in its principle. There the only fact subject to observation indicating any restriction upon the right of the owner to use and improve the property, was the manner in which the building itself had been erected. And from that it could not naturally have been inferred that it was in this condition by reason of any legal restriction upon the right of the owner. While if the plaintiff was aware of the fact that the sewer existed in and passed through this property, and his attorney had discovered it in searching the title, it might be inferred that it was there by some right existing on the. part of the city to place and maintain it there. Certainly the offer was not so deficient in this respect as to justify the court in excluding the evidence for any reason of this character. Neither could it be excluded under the rule rejecting oral evidence offered to explain, qualify or add to a written instrument. Bor while it is true that this rule is observed in courts of equity as it is in courts of law (Hunt v. Rousmanier, 8 Wheat., 174, 211; Brainerd v. Brainerd, 15 Conn., 575, 585; 3 Greenl. on Ev. [15th ed.], § 366), the courts have in actions for the specific performance of contracts allowed the parties resisting the suit to prove, by oral evidence, that the contract had been entered into by mistake, or that an unfair or improper advantage had been taken by the plaintiff in obtaining it, as facts proper to be considered, to influence the discretion of the court and qualify the right to relief. This evidence, under the principle already mentioned, should have beenreceived. But it was not. Neither was any evidence afterwards received upon the trial equivalent to this rejected offer of proof.

If the facts had been proved they would have been entitled to the consideration of the court upon the right of the plaintiff to the compensation allowed by the judgment for the existence of this sewer. And because of the exclusion of the evidence the judgment should be reversed and a new trial ordered, with costs to abide the event.

Brady, P. J.:

I think the evidence offered, and particularly referred to by Justice Daniels, should have been received. I concur, therefore.

Macombbr, J.

(dissenting) :

This is an appeal from a judgment of the Special Term, by which a specific performance of a contract was awarded to the vendee of a land contract, with an abatement from the purchase-price on the ground that the title of the vendor was not of the character that he agreed to convey by the written contract.

By the contract, which bears date the 7th day of July, 1881, the defendants, excepting Blagden, in consideration of the sum of $9,000, payable as therein mentioned, agreed to sell to the plaintiff certain lands situated in the city of Newport, in the State of Rhode Tslandj bounded southerly on Ward avenue, w'esterly on the land of John A. Hazard, northerly on the land.of John A. Plazard and land of the heirs or devisees of Robert H. Ives, and easterly on the Annandale road, and execute and deliver therefor a proper deed containing a general warranty and the usual full covenants for the conveying and assuring to the plaintiff the fee simple of the premises, free from all incumbrance. The purchase-money, excepting the sum of $100, which had been paid at the time of making the land contract, was to be paid on the twenty-seventh day of July, and the deed then delivered. On the day for the payment of the money and the delivery of the deed, a conveyance was tendered to the plaintiff in all respects conforming to the contract, except that the premises were made subject always to the rights relative to a drain or sewer in and through said land granted by deeds to the city of Newport. Discovering this reservation of rights in the city of Newport, the plaintiff refused to receive the deed and to pay the unpaid purchase-price, claiming that the deed was not in accordance with the contract. The rights so referred to in the deed are shown by the deed itself to the city of Newport to be such as give the authorities of the city of Newport at all times the right to maintain the ditch as a public sewer and to enter upon the whole premises at any time to make repairs, etc.

Negotiations were had between the parties for sometime designed for their object to get the city of Newport to release or surrender its rights in respect to this sewer, but they came to naught, save only that the city, by its proper authorities, consented to use only a portion of the land over and along each side of the sewer for the purposes of entering and making repairs.

The trial court granted to the plaintiff specific performance with a deduction of $985.62, in which sum it was found the premises were less valuable by reason of the servitude previously granted to the city of Newport.

It is urged by the learned counsel for the appellants that the easement to the city of Newport is not one of those incumbrances or defects of title which will enable a court of equity to grant a specific performance of a contract with compensation for the servitude. We have, however, a very careful statement of the rule, as laid down by Pomeroy in his work on Specific Performance of Contracts (§ 440), as follows: “ The existence of easements upon the land in favor of third persons, or of other similar rights which conflict with those of the owner, and which would prevent a vendor from forcing an acceptance upon an unwilling vendee, will entitle the purchaser, at his election, to insist upon a conveyance of the land subject to these rights, with such compensation, or abatement from the price as shall be proportionate to the diminution in the value of the subject-matter.”

See, also, the case of Riggs v. Pursell (66 N. Y., 193), where the court assumed that a purchaser would not be compelled to take a title affected by an easement which was detrimental to the premises.

Neither Pomeroy nor counsel cite us to any case wrhere the servitude, for which compensation has been sought, existed as a right of a municipal corporation for the purpose of drainage, though there are many cases alluded to bearing generally upon the question of making compensation such, for instance, as where the land is found to be subject to the right of a third person to dig minerals or ores, or subject to an outstanding right of dower in a widow. It is also urged by counsel that the doctrine can be applied only to cases where compensation may be made directly and by computation. It is true most of the cases in the books are of that description, a familiar instance of which is where the vendor in a land contract is unable by his deed to convey the number of acres which he has agreed to convey by the contract, and which the vendee supposed he would get by the deed. But it does not seem to me that the fact that the subject-matter of inquiry is difficult renders the court unable to do justice between the parties.

It is further claimed that in this case the court has attempted to make a contract between tbe parties which neither of them contemplated at the time they signed the written agreement. This could be urged with equal force in any case, however simple it might be, where it was found that one of the contracting parties was not able to perform fully and the other desired performance pro tanto. The judgment of the court in such cases, where the parties do not make a new agreement among themselves, is to enforce the agreement as nearly as it may be. The defendants ought not to be permitted to complain of the fact that they have deliberately, by a written agreement, undertaken to convey more than they had, and should, therefore, be relieved entirely of the obligation which they had assumed, and the plaintiff lose thereby his right and privilege of making a good bargain. But a sufficient answer may be found in the language of Lord Eldon, in the case of Mortlock v. Buller (10 Ves., 315), where it is said: “ If a man having partial interests in an estate chooses to enter into a contract, representing it and agreeing to sell it as his own, it is not competent for him after-wards to say, though he has valuable interests, he has not the entirety, and, therefore, the purchaser shall not have the benefit of his contract. For the purpose of this jurisdiction, the person contracting under those circumstances is bound by the assertion in his contract; and if the vendee chooses to take as much as he can have, he has a right to that and to an abatement, and the court will not hear the objections by the vendor that the purchaser cannot have the whole.”

Nor is the amount of the compensation made to the plaintiff an arbitrary sum. The trial court accepted apparently the lowest estimate of damages made by any witness. The subject-matter of this estimate was not speculative in any sense. The property consists of certain well defined lots of land as shown in the map printed in the case, with a blind sewer running within about forty feet of one of the lines, upon which the authorities of the city of Newport have the right to enter at any time to enlarge, cleanse and repair for public purposes. Any person, therefore, acquainted with the land, and knowing well what uses it might be put to except for the sewer in that location, could easily estimate the diminished value of the property for any use to which it might be put by reason of the servitude. The estimates of the several witnesses of such damages are as nearly alike as we are accustomed to see in the trial of law cases where damages are to be estimated in other ways than by a mathematical computation. In arriving at the result, each witness necessarily took into the account any possible benefit, if benefit there were, to the land, by having its drainage thus provided for at public expense. Hence it is that the argument of counsel does not appear to be sound in urging that there could be no compensation because there were certain benefits accruing to the land by the existence of the drain.

No compensation could be awarded the plaintiff, together with a specific performance, if he had knowledge or notice of the existence of the servitude before making the contract. Hence it is with some embarrassment that we notice that the trial court excluded the evidence of the witness Ford, which was apparently offered to show that the plaintiff knew of the existence of the sewer at that time. This evidence should have been admitted, but we are not prepared to say it was such an error to exclude it as to warrant us in reversing the judgment. The knowledge of the plaintiff, however, or notice to- him which was thus sought to be given, was only of the physical existence of a drain or sewer upon the premises. No witness was adduced who testified or who could testify that the plaintiff had any notice or knowledge of the existence of the easement or servitude by the deed of the defendants, which had been theretofore executed. On the contrary, it affirmatively and conclusively appears that he had no such knowledge or notice. What, then, could have been the full significance that might be given to the excluded testimony ? Was it anything more than the knowledge that a person would get of any land by examination of it 1 There was nothing in the case and there was nothing in the offer which would go to show that an inspection of the sewer or notice of its existence would put the plaintiff upon such inquiry as would lead him to a discovery of the easement or servitude. Indeed, it is not the existence of the drain or sewer that is the subject-matter for which compensation has been made. The trial court has decided that the property was of diminished value because there existed an outstanding perpetual right in a municipal corporation to enter upon the lands at any time for the public purpose of enlarging, cleansing or repairing the sewer. Nor has the court found as a fact, as is claimed, that the plaintiff had no knowledge of the existence of the sewer. What the court found was that the plaintiff had no knowledge or notice of the existence of the sewer and of the easement of the city of N ewport. The fact is uncontroverted. There is nothing in the ease to show that the judgment of the Special Term, permitting a specific performance with compensation, rested upon the assumed fact that the plaintiff did not know of the existence of the sewer. It is, however, based upon the fact that he had no knowledge that any third person had a right in and to the premises which he had bargained for. Under the facts established in this case, though the plaintiff knew of the existence of this sewer, that knowledge would not put him upon inquiry as to who had a right to use it or control it, for there was nothing in the premises, so far as could be seen, that was different from the ordinary drainage of land in that locality.

The only remaining question is, whether the plaintiff has used due diligence in prosecuting his fights under the contract. The facts constituting the alleged laches are properly set up in the answer of the defendant Blagden. The plaintiff was made aware of the existence of the easement on July 28, 1881, when the defendants refused to make compensation or award him damages for the easement which he had then discovered for the first time. Plis right of action accrued at that time. The nature of the case is such that the courts could properly require diligence in its prosecution. There are, however, facts which we think are sufficient to justify the slight delay that was made in this case. A short time elapsed after the time appointed for the consummation of the agreement in endeavoring to get the city authorities of Newport to relinquish their rights, to such an extent as that the plaintiff would accept the deed of the defendant. Furthermore, an action was brought in the Superior Court of the city of New York for the same purpose, but which was abandoned in April, 1882, for the reason that the plaintiff had not succeeded in getting the proper parties before the court. There was a continual assertion by the plaintiff of his right to a deed, with .compensation up to this time, and such claim was repeated by bringing this action in January, 1883. The delay was not caused by any fault of the plaintiff, because, as it is found, he had instructed his counsel to bring the action shortly after the failure of the defendants to deliver him a proper deed, and again gave such instructions after the discontinuance of the first action. A further circumstance for excusing any apparent laches on the part of the plaintiff, is the fact that his son, who was the attorney of record, was for a considerable time in New Mexico, and that his absence was the cause of some delay.

There was at no time a relinquishment by the plaintiff of any claim that die made against the deféndant for a deed with proper compensation; on the contrary, he asserted it at all times, and gave the defendant Blagden, who subsequently purchased the land of the other defendants, notice of his claim before that purchase was made.

The judgment should be affirmed, with costs.

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


author: Daniels, J.:

text:
    GEORGE W. JOHNSTON, Plaintiff, v. HENRY SPICER and Others, Defendants.

      Possible and contingent interests in property arising under an ante-nuptial agreement— when they are not assignable ■— when an action, to compel a specific performance of an agreement to transfer them, will lie after the death of the promissor — such an agreement does not pi-event the title to the land from vesting in the heirs-at-law of the promissor.

    George Spicer and Ellen Dennagher, being about to marry, entered into an ante-nuptial agreement, dated June 9, 1847, which provided, among other things, “ that in case of the decease of the party of the first part (Spicer), without leaving lawful issue by the contemplated marriage previous to the decease of the party of the second part, that then, and in that case, all the real and personal property he may die possessed of shall belong to and be the property of the party of the second part.” After their marriage, and on or about July 3, 1883, Spicer purchased real estate in the city of New York, subject to a mortgage thereon. Spicer died intestate in July, 1884, without lawful issue, leaving his widow, who died intestate in January, 1885. After the death of Spicer an action to foreclose the mortgage was brought, in which a judgment was recovered under which the premises were sold at a price more than sufficient to pay the amount due.
    Upon an application for the distribution of the surplus money the referee held that by the death of Spicer the title to the real estate became vested in his widow; that upon her death, intestate, without any heirs-at-law or next of kin, the title vested in the State,but was subsequently released by it, by chapter 377 of 1885, to certain persons named in the said act, and that they were entitled to receive the said moneys.

      Held, error. (Brady, X, dissenting.)
    That at the time when the agreement was made, and when the marriage was solemnized, neither of the parties had any right, title or interest whatever to .or in this property; that what Spicer then had, if it was anything, was the barest possibility that he would thereafter acquire the title to it, which possibility could not be made the subject of a valid sale or grant.
    That as this portion of the agreement was executory in its character, the only right acquired by the wife in this property, upon the decease of her husband, was that of maintaining an action at law for damages, or in equity for the specific performance of this part of the agreement.
    That the title to the property was in the husband at the time of his decease and necessarily descended to his heirs, subject to the right of action of the widow to a specific performance, if the clause in the agreement was not altogether defeated by the fact that it was testamentary in its provisions, and void because not executed as required by the statutes regulating the execution of wills.
    That the State acquired no interest in the property upon which the act of 1885 could operate, and that the heirs-at-law of the husband were entitled to the surplus.
    Appeal by Francis Spicer and Emeline A. Scarfi from an order made at the New York Special Term directing the disposition of surplus moneys.

      David Thurston, for the defendants, appellants.

      Edward F. Brown, for the defendants, respondents.
   Daniels, J.:

The moneys in controversy arose out of the sale under the foreclosure of a mortgage of the premises, known as 61 East Fifty-second street, in the city of New York. The property was purchased and acquired by a deed executed and delivered to George Spicer, on or about the 3d of July, 1883, subject to the mortgage under which the sale was made. In Jnly, 1884. Spicer died intestate, leaving' the appellants and others his heirs-at-law. His widow survived him until the 18th of January, 1885, when she died intestate without issue, and leaving no known heirs. Prior to her intermarriage with Spicer, and on or about the 9th of June, 1847, she entered into an ante-nuptial agreement with him by which it was covenanted and agreed that in the case of the decease of the party of the first part, without leaving lawful issue by the contemplated marriage previous to the decease of the party of the second part, that then and in that case all the real and personal property he may die possessed of shall belong and be the property of the party of the second part;

After the decease of the widow, chapter 377 of the Laws of 1885 was enacted, releasing the right and interest of the State in the lands to the persons to whom, by the order appealed from, the surplus money has been awarded. The order seems to have proceeded upon the theory that by this clause in the agreement the title to the property vested in the widow of George Spicer at the time of his decease, and she having died without heirs it became the property of the State, and was released by this act to the persons held to be entitled to the surplus. And whether this direction was correctly made will depend upon the construction and effect of this clause of the ante-nuptial agreement. If at the time when the agreement was entered into George Spicer had owned the real estate out of which the surplus moneys arose, then a contingent interest, title or estate in it would have vested in the other party to the agreement, who subsequently became his wife. (Hathaway v. Payne, 34 N. Y., 92, 104, 107; Long Island R. R. Co. v. Conklin, 29 id., 572.) For as an agreement between these parties contemplating marriage, it was an instrument legally binding upon each of them. (Laws 1849, chap. 375, § 3; Young v. Hicks, 27 Hun, 54; affirmed, 92 N. Y., 235.) But at the time when the agreement was made, and also when the marriage itself was solemnized, neither of these parties had any right, title or interest whatever to or in this property. There was accordingly in the husband no expectant estate in it as such estates have been defined by the statute, and no interest which by its provisions were made descendible, devisable or alienable. (2 B. S. [6th ed.], 1103, § 35; Pond v. Bergh, 10 Paige, 140.)

The effect of this part of the instrument is therefore to be determined by the settled principles of the common law, and by them a mere possibility, or contingency, unconnected with any interest in, or growing out of, property, cannot be made the subject of a valid sale or grant. (2 Kent [7th ed.], 592, note <?.) A mere possibility is not the subject of a grant, although it may be released to the owner of the land. This subject was considered in Jackson v. Catlin (2 Johns., 248), and the principle was there reiterated by Kent, C. J., delivering the opinion of the court, that “a mere possibility is not the subject of a grant, unless it be a possibility coupled with an interest.” (Id., 261.) And these authorities, to that extent at least, have not since been questioned or overruled. And that was deemed to be the settled law of the State by Senator Tract, whose opinion was adopted by the Court of Errors for the decision of the case of Jackson v. Waldron (13 Wend., 178; Id., 222). The same principle was fully reviewed again by that court in Edwards v. Varick (5 Denio, 664), and it was there held to be part of the settled law of the State. (Id., 692, 693.) What Spicer had, if he can be said to have had anything whatever, at the time when the agreement was made, was no more than the barest possibility that ho would acquire the title to this property, as he did by the conveyance made to him in the year 1883. As a grant, therefore, the agreement in no manner operated upon it, or conveyed any interest in it, to the person who became his wife. But this portion of the agreement was, at most, executory in its character, entitling her to its specific performance after the period of his own decease. And agreements for the transfer or conveyance of a possible interest afterwards accruing in property have been so considered and enforced by courts of equity. This subject was very fully and exhaustively examined in Stover v. Eycleshimer (46 Barb., 84), and this conclusion was considered to be the effect of the authorities.

Under these principles the extent of the right of the widow in this property, upon the decease of her husband, was that of maintaining an action at law for damages, or in equity for the specific performance of this part of the agreement. The title was in himself at the time of his decease, and it necessarily descended to his heirs, subject to this right of the widow, to a specific performance, if the clause in the agreement is not altogether defeated by the fact that it was testamentary in its provisions, and void for the reason that it was not executed in compliance with the provisions of the statute directing the ceremonials to be observed for the legal ■ execution of a will. Certainly the State acquired no interest in the property upon which the act of 1885 could be made to operate, and as the widow took no proceedings to compel the specific performance of the agreement, the legal title to the property since her decease continued to be vested in the heirs of the husband until the foreclosure and sale of it were made, and being seized of that title they legally owned the surplus arising out of the foreclosure sale, which took place after the decease of the widow.

The order made should be reversed and an order entered directing this surplus to be distributed among the heirs-at-law of George Spicer, but without costs against the respondents.

Churchill, J., concurred ; Beaut, P. J., dissented.

Order reversed, without costs, and order entered as directed in opinion.


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    In the Matter of GEORGE W. McLEAN, Receiver of Taxes, Respondent, v. JOHN H. JEPHSON, Appellant.

      Assessors — what facts give them jurisdiction to impose an assessment upon which a personal tax is to he laid — when their determination cannot he attacked in a collateral proceeding.

    Upon this appeal from an order directing the commitment of the appellant to prison, there to remain until he should pay the amount of a personal tax imposed upon him, it appeared that the appellant sought to establish a want of jurisdiction on the part of the assessors by showing by affidavit, by way of answer to the proceedings instituted against him, that he was a stockholder in, and the vice-president of, a manufacturing corporation created and existing under the laws of the State of New Jersey, whose fabrics were deposited for sale in a wareroom in the city of New York, of which he had charge as the agent of the company.

      Held, that as the fact that the fabrics were in the possession and charge of the appellant at a place of business in the city of New York, while undisputed and unexplained, would justify the inference that he was their owner and engaged in carrying on the business, it gave the assessors jurisdiction over the appellant and that the appellant was not at liberty to attack their determination of that question by the proof offered in this proceeding.
    Appeal from an order made at the New York Special Term directing tbe commitment of tbe appellant to prison, there to remain until he should pay the amount imposed upon him as a personal tax.

      Douglass <& Minton, for the appellant.

      John J. Townsend, Jr., for the respondent.
   Daniels, J.:

The tax, amounting to the sum of $112.50, was assessed against the appellant for personal property under the authority of section 1, chapter 37 of the Laws of 1855. The proceedings for the assessment and confirmation of the tax appear to have been regularly taken and carried on until they were consummated by a confirmation rendering the payment of the tax obligatory upon the appellant, if jurisdiction was acquired by the assessors and the other officers before whom they were taken. The appellant denied this jurisdiction upon an affidavit made in the first instance by way of answer to the proceedings taken for his punishment. In this affidavit it was shown that he was a stockholder in, and vice-president of, a manufacturing corporation, created and existing under the laws of the State of New Jersey, whose fabrics were deposited for sale in a wareroom in the city of New York, of which he had charge as the agent of the company. If these facts had been proven before the assessors or ihe other officers empowered to hear and consider them, it is possible that the tax could not have been imposed upon himself. But they were not, and the officers proceeded upon the facts evident to them, that the fabrics were in the possession of the appellant at a place of business under his charge in the city of New York. From these facts it could be inferred that he was the owner and the person engaged in carrying on the business. And the inference which could be deduced and supported in this manner was sufficient to render him amenable to taxation upon the personal property in his possession under the act referred to, as long as he was in fact a resident of the State of New Jersey. Undisputed, these facts sustain the proceedings which were taken to assess and impose the tax, and they accordingly gave the officers jurisdiction over the appellant for this purpose under the language of the statute. And having that jurisdiction and complying as the facts did with the requirements of the law in the proceedings which were taken, they became conclusive against the appellant when assailed in the manner in which it was proposed to affect them by the affidavit read on the hearing of the motion. What should have been done by him, if he desired to object to the legality of the tax, was to have presented proof of the facts mentioned in his affidavit to the assessors themselves or the board of aldermen before tbe confirmation of the assessment. And wlien lie failed to do that he deprived himself of the right to object, to the legality of the assessment and the tax, by afterwards making and presenting this proof. The proceedings were in the nature of a judgment recovered against him upon proof warranting the action and decision of the taxing authorities. And after its determination its effect could not be overcome or removed by the proof upon which the appellant relied as an answer to the motion. The order for these reasons was right and it should be affirmed, with ten dollars costs and also disbursements.

Brady, P. J.J and Macomber, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    CHARLES E. APPLEBY, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK and Others, Respondents.

      Grant of lands under water by the authorities of the city of New Yorlc — when the authority conferred, upon the comptroller is permissive only, and action thereunder cannot be conti'olled by the court.

    In 1869 the plaintiff, who was the owner of lands extending to the high-water line of the Hudson river, between two streets in the city of New York, applied to the commissioners of the sinking fund for a grant of the land under water in front of his lots. The commissioners having, as required by the ordinances of the city, referred the matter to the commissioner of the department of public works to ascertain what sum of money should, in his judgment, be charged as the consideration for such grant, and having received a report from him stating that the sum of fifty dollars per running foot should be charged as the consideration of the grant, adopted a resolution by which it was Eesolved, That the comptroller he and he is hereby authorized to cause a grant tobe issued to Charles E. A ppleby for the land under water on the N orth river, in front of the upland owned by him, between Fifty-sixth and Fifty-seventh streets, extending to the exterior line of the city as now fixed by law, and containing the usual covenants and conditions, at fifty dollars per foot, running measure.”
    The comptroller having refused to execute or deliver a conveyance, after a tender of the price required to be paid had been made, the plaintiff brought this action to compel the comptroller to cause a conveyance to be executed and delivered.

      Held, that the action could not be maintained; that as the language of the resolution was permissive only, and not mandatory, it conferred no absolute right to the acquirement of the property by the plaintiff which would be enforced by the court.

      The Argus Company v. Mayor, etc., of Albany (7 Lans., 264; affirmed in 55 N. Y., 495) distinguished.
    Appeal from a judgment in favor of the defendants, entered on the trial of this action at the New York Special Term.

      Cecil Campbell Higgins, for the appellant.

      Janies C. Carter, for the respondents.
   Daniels, J.:

The plaintiff, in April, 1869, was, and since then has been, the owner of lands extending to the high-water line of the Hudson river, between the northerly line of Fifty-sixth sti’eet and the southerly line of Fifty-eighth street, in the city of New York. As such owner he, in 1S69, applied to the commissioners of the sinking fund for a grant of the land under water in front of his lots. This application was made upon the ground that he had the pre-emptive right under the law, as the owner of the upland, to acquire the title to this property. This application was made under an ordinance of the city committing the qualified control of the disposition of the property on the water fronts to the commissioners of the sinking fund. Hnder the ordinance they were required to refer the matter of the sale to the comptroller and street commissioner of the city, the powers of whose office at the time in controversy had been vested in the commissioner of the department of public works, to ascertain from them by their report what sum of money should in their judgment be charged as the consideration for such grant. They did make this reference, and the officer to whom it was made reported that the sum of fifty dollars per running foot should be charged as the consideration for the grant. This report was accepted or approved by the commissioners of the sinking fund, who adopted a resolution at a meeting held on the 18th of August, 1871, by which it was

,c liesolved, That the comptroller be and he is hereby authorized to cause a grant to be issued to Charles E. Appleby for the land under water on the North river, in front of the upland owned by him, between Fifty-sixth and Fifty-eighth streets, extending to the exterior line of the city as now fixed by law, and containing the usual covenants and conditions, at fifty dollars per foot, running measure.”

The comptroller under this authority was applied to from time to time by the plaintiff to cause the grant or conveyance of the property to be executed and delivered to him, but that was declined and deferred for reasons which this officer regarded as rendering it his duty to withhold the conveyance. Finally, on the 19th of January, 1879, the plaintiff tendered to John Kelly, as the comptroller of the city, the amount of the price required to be paid for the land by this resolution. That was not received, and a refusal of the conveyance was at that time made by the comptroller. On the same day on which this resolution was adopted the sinking fund commissioners also

“ Resolved, That no further grants of land under water be made, executed or delivered where the grant covers land under water in front of the land between high and low water-mark owned by the corporation, etc., of the city of New York, until further order of the board.”

But as this resolution seems to have been adopted prior in point of time to that under which the plaintiff claims to be entitled to a conveyance of the property, it did not restrain the action of the sinking fund commissioners. And beyond that they afterwards, and in February, 1872, consented that the plaintiff might take out the water grant from the city upon his acceptance of additional terms qualifying and restraining the effect of the grant to be delivered. Those he did accept, and afterwards repeatedly requested the execution and delivery of the conveyance to him. The disposition of the case consequently depends upon the effect of the resolution, under which it has been claimed that it became the duty of the comptroller to cause the grant to be executed and delivered. It has been urged in support of the judgment that the provisions made by section 6 of chapter 574 of the Laws of 1871, enacted before the adoption of the resolution, and creating and defining the powers and authority of the department of docks of the city, superseded the right of the public authorities to convey this or other land under water upon either of the water fronts of the city. *But it is not necessary to determine whether that objection is well founded or not. Neither is it requisite that it should be decided whether or not the plaintiff, as the owner of the upland, was entitled to a pre-emptive right to acquire the title to this property to the extent to which it has been claimed, or any part of it. That subject was fully considered in the case of The Mayor, etc., v. Hart (16 Hun, 380; affirmed, 95 N. Y., 443).

But under the resolution, which was finally adopted and constitutes the basis of the plaintiff’s action, no absolute right to the acquirement of this property by the plaintiff was created. It proceeded no farther than to grant the authority to the comptroller to cause a conveyance of the property to be made. No mandatory language of any description was employed in it, but it was permissive solely in its effect. And that being its extent it created no such absolute duty upon the comptroller as will supply the legal foundation for an action of this description, which in effect is a suit for the specific performance of an agreement for the sale of lands. No defect in the case arises out of any omission properly to authenticate the resolution by the officers adopting it, but the infirmity is caused by the language in which the resolution itself was adopted, committing to the comptroller the authority, and nothing beyond that, to cause the grant to be executed and delivered.

This resolution differs very substantially from that which was deemed sufficient to create a contract in The Argus Company v. Mayor, etc., of Albany (7 Lans., 264; affirmed, 55 N. Y., 495). For the proceedings there were of such a nature as to complete and consummate a contract, for the employment of the plaintiff, to render the services for which compensation was claimed in the action. The language there used included no discretion whatever, but it provided for the publication of the proceedings of the board in one daily paper, at an expense mentioned in the resolution, and in which the advertising of the city was to be published at legal rates, and it then designated the plaintiff’s paper as the newspaper in which the publication should be made. And after the expiration of the period for which that employment was provided, it was renewed and extended by a further resolution, as absolute and unqualified in its terms concerning the employment. There was reason,'consequently, in that case for holding that the resolutions, with their acceptance by the plaintiff, did create a contract which are not applicable to this controversy. For here the commissioners of the sinking fund entered into no agreement entitling the plaintiff to a conveyance of this land. Indeed, they had no authority to convey it themselves, but when they assented to the terms of the report made by the comptroller and street commissioner, the comptroller was empowered to cause the grant to be issued. This was all the authority provided by the ordinance itself, and all which the resolution contained, and left the future action of the comptroller subject to his own volition as that might be controlled by what he deemed to be just or expedient, regarding the interests of the city in the case. He concluded that the grant should not be made. The language of the ordinance was such as to confide a discretion to him. He exercised it against the plaintiff, considering the public interests to require that action on his part, as one of the officials of the city. And having determined against the grant, the plaintiff cannot accelerate his action or require him to act differently by the intervention of an equitable action. He has no absolute right certainly to the property. And if the power to convey it still exists, notwithstanding the legislation of 1871, it must be voluntarily exercised on the part of the city officials. Their favorable action cannot be compulsorily secured. As the plaintiff could not maintain the action at all he was not injured by the exclusion of the evidence offered to show that he had actually improved the property. What he did in that respect was at his own risk, without any inducement held out to him to do so on the part of the city. The judgment on these grounds was right and it should be affirmed, with costs.

Brady, P. J., and Churchill, J., concurred.

Judgment affirmed, with costs.


author: Daniels, J.: '

text:
    CONSTANCE B. PRICE, Appellant, v. WALTER J. PRICE and Others, Respondents.

      Admeaswrement of dower — power of the referee or commissioners to set-off one distinct parcel as the dower interest of the widow in a number of pieces of real estate — Code of Oiml Procedure, sec. 1609.
    Upon the hearing before a referee, appointed by an interlocutory judgment entered in this action, which was brought to admeasure the plaintiff’s dower in the real estate owned by her husband during the time of their marriage, it appeared that such real estate consisted of four separate parcels. One of these parcels had been conveyed by the testator in his lifetime, and two others had been conveyed by his devisees, all three being held at the time of the hearing by persons who had acquired title thereto or interests therein in good faith, for a valuable consideration and without notice of the plaintiff’s claim. The remaining property consisted of two adjacent pieces of land on the westerly side of Lake George, containing together about seventy-three acres, and a small island situate near these premises in the lake. On the westerly portion of this land, which is divided by a road running north and south, valuable buildings had been erected prior to the decease of the husband. The referee reported that it was impracticable to assign the plaintiff her dower in the property lastly described, and was of the opinion that it should be sold and her dower estimated and paid from the proceeds of such sale.
    Upon an appeal by the plaintiff from an order of the Special Term, refusing to confirm the report of the referee, and sending the case back to him to set-off to the plaintiff her dower in that property:

      Held, that the plaintiff was not entitled to have her dower assigned to her in each separate and distinct parcel, when to do so would injuriously affect the equitable rights and interests of other parties.
    That express authority to admeasure and lay off, as the dower of the plaintiff, “a distinct parcel, constituting the one-third part of the real property of which dower is to be admeasured,” when, in the opinion of the referee, it is practicable and for the best interests of all the parties concerned so to do, is conferred upon him by section 1609 of the Code of Civil Procedure.

      Schnebley v. Schnebley (26 111., 116) and Atkins v. Merrett (39 id., 62) distinguished.
    Appeal from an order made at the New York Special Term, denying a motion to confirm tlie report of a referee for the admeasurement of dower.

      George H. Starr, for the appellant.

      William Peet, David Wiloox, James R. Marvin and Frank L. Rail, for the respondents.
   Daniels, J.: '

The plaintiff has been held entitled in this action to recover dower in the real estate owned by Walter W. Price during the time of her intermarriage with him, and until the entry of a decree annulling that marriage. The controversy, as it was' then disposed of, is reported in 33 Hun, 76. Under that decision an interlocutory judgment was recovered directing the plaintiff’s dower to be admeasured in the real estate so owned by her husband, who departed this life on the 6th of June, 1876, and a referee was appointed to make such admeasurement of her dower. The property in which, under this decision, she is entitled to dower consisted of four separate and distinct parcels of land. Two parcels are still owned in severalty by two of the children of Walter W. Price. One, consisting of about fifteen acres, was conveyed by the deceased to his son, the defendant Walter J. Price, in July, 1875, and that has since been mortgaged to the Glens Palls Pire Insurance Company to secure the sum of $10,000. This property consists of about; fifteen acres of land having no substantial rental value. The deceased left a will by which he devised certain premises, consisting of a lot of land on Hammond street, in the city of New York, to his son, Charles G. Price. He sold and conveyed this property to the Rector Church Wardens, etc., of St. John the Evangelist Church. The church acquired the title for a valuable consideration without notice of the plaintiff’s right to dower therein. The testator also devised to two of his sons as tenants in common a house and lot known as No. 4 Tanness place, in the city of New York, which they conveyed to their sister, Mrs. Ashmead, and she afterwards sold and conveyed the same property to J osephine Little for the consideration of $11,000, and she afterwards conveyed it to Mr. Wedeland. The rental value of this property was found by the referee, upon evidence sustaining the conclusion, to be the sum of $776, after deducting taxes and water rents, and of the Hammond street lot to be about the sum of $790 after making the same deductions. The remaining property in which the plaintiff was entitled to be endowed consisted of two adjacent pieces of land on the westerly side of Lake George, containing together about seventy-three acres, and a small island situated near these premises in the lake. This land was divided by only a road running in a northerly and southerly direction, and upon that portion of it situated westerly of the road valuable buildings had been erected prior to the decease of the testator. This piece consisted of thirty-three and seventy-five one-hundredth acres, and the two pieces together, including the island, produced an annual rental varying from, eight to thirteen hundred dollars. The dwelling upon it was designed for a summer residence, and the property had been improved to make it convenient, attractive and desirable for such a residence. But the referee considered it to be impractical to assign the plaintiff her dower in this property, and was of the opiuion that it should be sold and her dower estimated and paid to her out of the proceeds. It is true that no such express direction was given by him, but that was evidently the opinion upon which his final conclusions were founded. The court, upon the motion to confirm his report, dissented from his conclusion as to the inability to assign the plaintiff’s dower in this property, and ordered the case to be referred back to the referee to set-off to the plaintiff her dower in that property, and the plaintiff has appealed from that order, considering it to have been unauthorized and not within the power of the court to make it. And her counsel has endeavored to sustain this view in support of the appeal under the general statutory authority declaring that á widow shall be endowed in the third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage (2 R. S. [6th ed.], 1121, § 1), and the common-law rule maintaining her right to dower in each separate and distinct parcel of such lands.

But it was considered by the chancellor in Wood v. Keyes (6 Paige, 478) that this general direction should be subordinated to the equitable rights and interests of other parties in the property. And where it would be inequitable and unjust to assign dower in the lands conveyed by her husband during his lifetime with warranty, that her dower should be admeasured to her in other property affected by no such rights or interests. The authority of the court to make this decision has been drawn in question in support of the appeal, and the case of Schnebley v. Schnebley (26 Ill., 116), decided under a like statutory provision, has been relied upon as supporting this objection. And it is true that the court there announced and acted upon the common-law principle, which was held to be consistent with the statute, that the widow was entitled to be endowed in each separate parcel of land which had been owned by her husband during the period of the marriage. And the case of Atkin v. Merrell (39 Ill., 62) followed this authority. But these cases require no departure to, be made from the doctrine of Wood v. Keyes, for the reason that the provisions of the Code of Civil Procedure, concerning the admeasurement of dower, have not only followed, but have enlarged the effect of this authority. For by subdivision 1 of section 1609, it has been in the most general manner directed that the referee or commissioners must, if it is practicable, and in their opinion for the best interests of all the parties concerned, admeasure and lay off as the dower of the plaintiff a “ distinct parcel,” constituting one-third of the real property of which dower is to be admeasured. And if that is not practicable, or for the best interests of all parties concerned, then that fact is to be reported to the court. This phraseology empowering the referee or the commissioners to set apart a distinct parcel of land for the dower of the plaintiff, was not contained in the provisions of the Revised Statutes concerning this subject. There the direction was that the commissioners should “ admeasure and lay off as speedily as possible the one-tliird part of the lands or premises embraced m the order.” (3 R. S. [6th ed.], 777, §13 ; Id., 578, § 51.) And this additional direction empowering the referee or commissioners to admeasure and lay off “ a distinct parcel” of the lands must have been designed to enlarge the authority of the court over this subject, for it has been employed by way of contrast to other parcels or portions of the real estate of the deceased husband. This significance of the phraseology is not only indicated by the language itself, but by the manner in which it has been employed in section 1599 of the Code of Civil Procedure, where a distinct parcel is distinguished from other real estate of which the husband may have died seized or alienated by one conveyance to one or more other persons. That the employment of these terms was designed and intended to have their appropriate office and effect in the proceedings, further appears from sections 1610 and 1613 of the Code. For care has been taken where that can-be done, and the rights and interests of other parties shall be promoted thereby, to restrict the property to be set-off as the dower of the widow, to a distinct parcel of that in which she may be entitled to be endowed.

It has been urged that this construction should be limited to the class of cases in which the widow indicates her willingness to receive a gross sum in satisfaction and discharge of her right of dower. And where she may consent to receive that sum in the manner provided for by the statute, it has been further directed by section 1619 that a reference shall be ordered to ascertain whether a distinct parcel of the property can be so admeasured and laid off without material injury to the interests of the parties, and if it cannot, that then a sale shall be made out of the proceeds of which such a sum of money shall be paid to her. The next section has further provided where the widow may consent to receive the same, for the appropriation to her of a distinct parcel of vacant or unimproved lots to be owned by her in severalty and fee simple for and as her dower. These sections are substitutes for the enactments contained in chapter 717 of the Laws of 1870, and in no manner affect or abridge the authority provided by the preceding sections for setting off to the widow a distinct parcel of the real estate. But they specially provide for a class of cases not enumerated in those sections, and they in no manner enlarge or extend in the use which they have made of it, this phraseology which has been inserted and repeated in these sections of the Code, but whenever this language has been employed, the same significance is required to be given to it. "What is a distinct parcel of the property in one case is no more nor less than a distinct parcel in the other, and the phraseology must have been designed and intended to have the same significance and effect wherever it has been employed in this part'of the Code. And that was to confer upon the court in all cases the power to set-off, as the dower of the widow, a separate and distinct parcel of the real estate.

That has been positively required to be done where it can be, and at the same time will be for the best interests of all the parties concerned ; and the referee has concluded, from the evidence produced before him, that it was for the best interests of all the parties concerned that the dower should be secured to the plaintiff out of this property situated upon the westerly side .of Lake George. And in this conclusion he is sustained by the manifest injustice of directing dower to be apportioned to the plaintiff out of the houses and lots on Hammond street and Yanness place, in the city of New York. That property has passed into the hands of purchasers for value without notice of the plaintiffs rights, and to assign her dower in those lots would necessarily entitle their owners to reimbursement for the amounts paid from the estate of the testator, or under the covenants of warranty contained in the deeds conveying the property, and that should not unnecessarily be done. The lands conveyed to Walter J. Price, and situated between what is known as the Bolton road and the westerly bounds of Lake George, are in no manner adapted to the plaintiff’s use or enjoyment as her dower, for no income can be derived from them which would afford her any remuneration whatever for her claim ; and in this state of the property the seventy-three acres upon which the buildings were erected bv the testator in his lifetime, and still owned by his devisee, seem to be all that can justly be appropriated to the satisfaction of the plaintiff’s right of dower.

The referee concluded that this property could not be so divided as to set any portion of it off to the widow in satisfaction of her entire claim for dower in these four parcels of property. But the evidence taken by him very decidedly preponderates in support of the view adopted at the Special Term when the order was made from which the appeal has been taken, and that is, that this property can well be divided upon an easterly and westerly line, setting off to the plaintiff that portion containing the buildings standing upon it, and so much of the land as would yield to her at least one-third of the rental value of all this property. Three witnesses, whose knowledge of the property sustain their opinion, have expressed their views to the effect that the land can be so divided, and its locality, extent, condition, value and rental seem to sustain that view. The evidence opposed to it was very slight and inconclusive, and failed, against the other testimony upon the hearing, to sustain the conclusion adopted by the referee. As the interests of the parties were proved and found by the referee, and to which no exception has been taken by either of them, and the evidence was presented concerning the ability to make this division of the land, the order made at the hearing was a proper one and it should be affirmed, with costs and disbursements to abide the event of the action.

Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    JULIEN T. DAVIES, as Receiver, etc., Respondent, v. NEW YORK CONCERT COMPANY (LIMITED), Appellant, Impleaded with Others.

      When an action to foreclose a mortgage may be brought by a bondholder, on the refusal of the trustee to bring it — the complaint must allege a failure to comply with some obligation for a breach of which the mortgagf authorizes such an action to be brought.

    The plaintiff,'the owner of twelve bonds, secured by a mortgage issued by tne defendant corporation, upon which two quarterly installments of interest had become due and payable, brought this action to procure a foreclosure of the mortgage. The complaint alleged that the plaintiff had, after the default, applied to the defendant Daboll, to whom the mortgage had been executed as trustee for the benefit of the bondholders, to institute a suit to foreclose the mortgage, and that the said Daboll had refused to do so.

      Held, that this refusal of the trustee authorized the plaintiff to bring the action.
    The allegations of the complaint as to the default of the company, stated that among the interest coupons which were held and owned by the plaintiff’s assignor, were twelve coupons for fifteen dollars each, payable on January 1, 1884, and twelve coupons for fifteen dollars each, payable on April 1, 1884, and that said coupons were not paid at maturity, nor was any of them paid, or any part thereof. It was not alleged that the company had neglected or refused to pay them at the place or in the manner provided in the mortgage, ■nor that it had been in any form requested to pay them, or that it had neglected to comply with any such request, or that it was in any m'anner in default.

      Held, that-as it was apparent from the provisions contained in the mortgage, that more than the mere fact of the non-payment of the coupons was required to be shown to authorize an action to be brought for its foi-eclosure, a demurrer interposed to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action should be sustained.
    It was also alleged in the complaint that the company had neglected to perform the covenant in the mortgage to bear, pay and discharge, as soon as the same became due and payable, all taxes, charges and assessments imposed by law upon the mortgaged premises.

      Held, that this averment would not entitle the plaintiff to maintain the action, as the trustee was not informed of this default, or requested to commence aD action to foreclose the mortgage on that account.
    Appeal from an interlocutory judgment, entered upon an order overruling a demurrer interposed to the complaint, upon the ground that the plaintiff had not legal capacity to sue, and upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and also from the order overruling the demurrer.

      Davicl Leventritt, for the appellant.

      William B. Eornblower, for the respondent.
   Daniels, J.:

The plaintiff was appointed and qualified as receiver of the insolvent firm of Grant & Ward. This firm was at the time the owner of twelve mortgage bonds for the sum of $100 each, and of the coupons annexed issued by the defendant and secured by a mortgage upon its real estate. Two quarterly installments of fifteen dollars on each bond had become due on coupons which matured on the 1st of January and the 1st of April, 1S84, and before the plaintiff was appointed receiver. The mortgage was executed to the defendant Nathan Daboll, as trastee for the benefit of the holders of the bonds. The plaintiff, after his appointment, applied to the trustee to institute a foreclosure suit upon the mortgage to collect the amount unpaid upon these coupons, which he then refused, and still refused to do at the time of the commencement of the action. And for that refusal the plaintiff was permitted to bring this action for his own benefit, and that of the other parties holding the bonds of the corporation. A demurrer was interposed to the complaint, by which it was objected that the action should have been in the name of the trustee, and that the facts stated in the complaint failed to constitute a cause of action.

The first objection does not require to be specifically considered, for' it has now become very well settled where a trustee refuses, upon a proper request made to him for that purpose, to take necessary legal proceedings for the protection of the beneficiaries under the trust, they may, by the appropriate form of action, p2-oceed for their own protection, and the enforcement and maintenance of their rights and interests under the trust. (Weetjen v. St. Paul, etc., R. R. Co., 4 Hun, 529; Same v. Vibbard, 5 id., 265; Greaves v. Gouge, 69 N. Y., 155; Brinckerhoff v. Bostwick, 88 id., 52, 56; Memphis City v. Dean, 8 Wall., 65, 73.)

A more serious difficulty in the way of the maintenance of the plaintiff’s action is presented by the other objection stated in the demurrer, and that is, that the complaint does not state facts sufficient to constitute a cause of action. What the complaint avers upon the subject of the defendant’s default in payment is that among the interest coupons which, were held and owned by the said firm of Grant & Ward, were twelve coupons for fifteen dollars ($15) each, payable on the 1st day of January, 1884, and twelve coupons for fifteen dollars ($15) each, payable on the 1st day of April, 1884, and that said coupons were not paid at maturity, nor was any of them paid, or any part thereof.” And that is all that has been stated as to the fact of the non-payment of these coupons. It is nowhere alleged, that the company had neglected or refused to pay them, as it was obligated to do that by the mortgage, or that it was in any manner in default. Neither is it alleged that it has been in any form requested to pay them, or that it has neglected to comply with any demand or request for that purpose. But all that is alleged is, that these coupons were not, nor was any part of them, paid at maturity. And that is consistent with the fact that no default had been made by the company which would, according to its own terms, permit a foreclosure of the mortgage.

The mortgage contemplated the intention to have been that more than this mere fact of non-payment should transpire before the right to bring an action for its foreclosure could arise, for it has been provided in it that it was made for the security and protection of the owners and holders of" the bonds and interest warrants aforesaid, or any or either of them, and for the enforcing payment thereof when payable, in accordance with the true intent and meaning thereof and of the stipulations of this conveyance; ” and so long as any of the said bonds shall be and remain outstanding the party of the first part will appoint and maintain the Marine National Bank in the city of New York, or some other bank, or a trust company in the said city of New York, as its agent, whereat payment shall be made of the interest and principal of the bonds secured; ” and no default in the observance of this obligation is alleged in the complaint.

It has been further provided in the mortgage that if the “ party of the first part, its successors or assigns, shall well and truly pay, or cause to be paid, unto the holder of each and every of the bonds aforesaid the principal and interest to grow due thereon at the times and places and in the manner stipulated in the said bonds and the coupons, or interest warrants attached thereto, according to the true intent and meaning thereof, * * * then these presents and the estate hereby granted shall cease, determine and be utterly null and void.”

It is further declared that if default shall be made in the payment of the principal or interest of the bonds aforesaid, or any of them or of the interest thereon, * * * the said party of the second part, his successors, legal representatives or assigns shall also be at liberty immediately after any such default upon a complaint filed, or other proper legal proceedings being commenced for the foreclosure of this mortgage on account of default in the payment of principal or interest, or both,” * * * to apply for and secure the appointment of a receiver, and to apply the rents and profits to any deficiency which may exist after applying the proceeds of the sale of the said premises to the payment of the amount due, including interest and the costs of the foreclosure and sale.”

It was also provided that in case of any such default as aforesaid,” the mortgage might also be foreclosed by an advertised sale and the amount of the indebtedness paid out of the proceeds, and “ until default shall be made in the payment of the principal or interest of the bonds hereby secured, or some of them, * * * the party of the first part shall be suffered and permitted to possess, hold and enjoy the said premises,” etc.

These clauses of the mortgage are in no manner affected or restricted in any respect by any other provisions or directions contained in the instrument, and they clearly contemplate the intention to have been that default should be made by the company in the payment of the mortgaged debt, or of some part of the interest thereon, before an action of foreclosure can be instituted and maintained. The simple circumstance that the coupons have not been paid, which is all that" is averred in the complaint and is not inconsistent with the fact of the performance of all the obligations of the company as they have been declared, does not disclose that default which, by the provisions of the mortgage, was required to take place before an action for its foreclosure and a sale of the mortgaged premises can be instituted.

In this respect the case differs from the authorities of Wolcott v. Van Santvoord (17 Johns., 248); Caldwell v. Cassidy (8 Cow., 271); Hills v. Place (48 N. Y., 520); Locklin v. Moore (57 id., 360), and Indig v. National City Bank (80 id., 100, 101), relied upon by the respondent sustaining the right of a party to maintain an action upon a draft, agreement or promissory note made payable at a particular place, without alleging a demand of payment either at that place or of the maker of the obligation, for in those cases the liability of the maker depended wholly upon a simple .agreement to pay the debt, and it was sufficient to show in the first instance that payment had not been made, leaving it to the debtor to establish the fact that he had provided funds at the place of payment at the time of the maturity of the demand for its payment there, for in this case the right of foreclosure was not mado solely dependent on the fact of the coupons not being paid, but it was made to depend upon an actual default on the part of the company in the performance of these stipulations contained in the mortgage, and neither that default nor any facts from which it can be inferred to exist have been alleged or set forth in the complaint. What was legally requisite for that purpose was to show in some form that the defendant had failed to fulfill or perform the obligations it had assumed for the payment of these interest warrants; and neither of the cases of Arent v. Commonwealth (18 Grat., 750); Savannah, etc., Railroad Company v. Lancaster (62 Ala., 555), or Philadelphia, etc., Railroad Company v. Johnson (54 Penn., 127), decides anything relieving the plaintiff from the necessity disclosed by this mortgage of stating a default on the part of the company itself before a foreclosure suit upon it can be sustained, for in each of them the default of the company was affirmatively made to appear. That was not averred or disclosed in this action, and the complaint for that reason did fail to state facts constituting a cause of action.

It lias been further alleged in the complaint that the company neglected to perform the covenant in the mortgage to bear, pay and discharge, as soon as the same became due and payable, all taxes, charges and assessments imposed by law upon the mortgaged premises. But that averment will not entitle the plaintiff to maintain the action, for the trustee was not informed of this default, or requested to commence a foreclosure of the mortgage on that account, but the information and request was restricted to a notice informing the trustee of the default in the payment of the coupons, and it was for that alone that the plaintiff became entitled to institute this action for the foreclosure of the mortgage. To secure that right to him for the omission of the company to pay taxes, charges and assessments, its default in that respect must first he brought to the knowledge of the trustee and a request made to him to proceed upon the mortgage for that default. No knowledge or information of that fact was given to the trustee, and he is not in default, therefore, for failing to institute a foreclosure on that account, and until he shall be put in default the plaintiff, as a party interested under the mortgage, has no right to take this proceeding because of that failure to pay. As the case has been presented the second ground of demurrer was well taken, and the judgment should be reversed and a judgment entered sustaining the demurrer, with leave to the plaintiff to amend the complaint within twenty days after notice of the decision, on payment of the costs of the demurrer and the costs and disbursements of the appeal.

Beady, J., concurred.'

Judgment reversed, judgment entered sustaining demurrer, with leave to plaintiff to amend complaint within twenty days, on payment of costs and the costs and disbursements of the appeal.


text:
    In the Matter of the Judicial Settlement of the Accounts of DAVID PATON, as Trustee under Will of JOHN KURST, Deceased.
    Will— construction of an alternative devise — when grandchildren are included m a gift to children— when they talce under the will and not through their parents — ■ a power of sale to executors must he executed hy a trustee and not hy the administrator-

    John Kurst died on January 28,1863, leaving a widow and two sons; a daughter» who was living at the time of the execution of his will, having died before her father. The widow died in 1883/prior to which time one of the sons died, leaving two sons. The testator directed by his will that after the decease of his wife, and after his youngest child should arrive at the age of twenty-one years (which event occurred before the death of the wife), all his property should he sold and the proceeds divided “ equally among the children I may then have, or those who may be legally entitled thereto.”

      Held, that the surrogate erred in deciding that the entire proceeds of the property should he given to the surviving son.
    That as the direction for the division of the proceeds among the children equally could not be complied with, as but one child was then living, the alternative direction became effective and required the proceeds to be divided among those who were legally entitled thereto, that is that one-half should be given to the surviving son, and the other half to the two children of the deceased son.
    That the same result would be reached by so enlarging the ordinary signification of the word “children” as to include the testator’s grandchildren, and that such an enlargement of that term might be made to carry into effect what appeared to have been the intention of the testator.

      Matter of Brown (29 Hun, 412) followed.
    That the widow, of the son who died in the lifetime of his mother, was not entitled to any part of the proceeds, as the grandchildren derived their right to share in the proceeds under the will of the testator, and not through their deceased father.
    The testator directed that at the time fixed in his will, the property should be sold by “ my executors hereinafter named, or such person or persons as may then legally represent my estate.” After the decease of both persons named as the executors in the will, David Patón was appointed a trustee by this court, as well as the Surrogate’s Court, to carry those directions into effect. One John B. Kurst was also appointed administrator of the estate by the surrogate. The estate was sold by the concurring action of these two persons.

      Held, that the surrogate should disallow a claim for commissions upon the proceeds of the sale, made by the administrator.
    Appeal from a decree of the surrogate of tbe county of New York directing tbe distribution of tbe funds of tbe estate of John Kurst, deceased.

      Thomas Fenton Taylor, for trustee and others.

      Jesse K. Furlong, for John B. Kurst.
   Daniels, J.:

Tbe chief controversy presented to tbe surrogate for bis decision arose under tbe ninth paragraph of tbe will of John Kurst, deceased. This will was executed in February, 1858, and tbe testator died on tbe 28th of January, 1863. At tbe time the will was executed he had three children, a daughter and two sons.- Tbe daughter died on tbe 21st of January, 1863, and at tbe decease of tbe testator bo left him surviving bis widow and two sons. Tbe widow died on tbe 29th of October, 1883, and the decease of tbe son, Charles II. Kurst, preceded that event. This deceased son left him surviving two sons, who have appealed from tbe decree made by tbe surrogate. At tbe time of the decease of tbe widow, as both the testator’s sons bad previously attained the age of twenty-one years, tbe period bad arrived for the sale of the testator’s property and the distribution of the proceeds, as that had been directed by him. These directions were made by the following portion of the will: •

“Ninth. I order and direct that after the decease of my said wife, and my youngest child shall arrive at the age of twenty-one years, my executors hereinafter named, or such person or persons as may then legally represent my said estate and the interests of my said children, shall dispose of all such property as may then remain of my said estate, within eighteen months thereafter, either at public auction or at private sale, as such executor, person or persons may, in his or their judgment, deem most advantageous and beneficial to my children, and out of the proceeds thereof, after deducting all necessary expenses, divide the same, together with all other property belonging to my estate, equally among the children I may then have, or those who may be legally entitled thereto.” And as but one of the children had survived the surrogate considered him to be entitled to the entire proceeds of the property.

This construction was contested by the two sons of the testator’s deceased son, who claimed to be entitled to participate in the division of the proceeds of the estate; and that they were so entitled seems to follow from the language of this portion of the will, for as but one of the testator’s children at the time survived no division of such proceeds could by any possibility be made equally among the children then living. This was an impossibility, as all the children at the time were deceased, except the testator’s son John B. Kurst. The contingency had in this manner arisen, which was provided for, in case of the inability to divide the property among the children, and the directions were explicit, if a division among the testator’s children could not be made, that then it should be among those who might be legally entitled thereto. And it was under this direction of the will, and not that immediately preceding, that the division of the proceeds of the estate was required to be made. This was not only the literal reading of the will itself, birt as the facts existed at the time of the testator’s decease, it was probably what he in point of fact designed -and intended in the event that but one of his children should be living at the time when the proceeds were to be divided. For at that time he contemplated the possible occurrence of such a change in his family affairs prior to the decease of his widow, as might vest his estate in the descendants of his children or other relatives becoming entitled to it under the statutes of the State, and the language employed by him was selected to provide for this contingent change in the state of his family. In no event did he contemplate or provide for the entire estate vesting in one of his children alone, unless he should be legally entitled to it under the last of the two directions given by him, for a single surviving child would not answer the requirements of the preceding direction, that the proceeds of the property should be divided equally among the testator’s children. When that direction could be followed then the intention of the testator would be capable of being executed by literally complying with this language. But if not, then it was the intention that it should not be followed, but that the estate should be divided among those who may be legally entitled thereto.” This, under the circumstances, became the mandatory direction to be observed in the division of the estate, and it entitled the surviving son to one-half of the proceeds, and the two sons of the testator’s deceased son Charles H. to the remaining moiety of the estate, to be divided equally between them.

A similar result will be reached by so enlarging the ordinary signification of the word children ” as to include the testator’s grandchildren. And that would not be inconsistent with the intention indicated by the will. For in no event does it appear to have been the purpose of the testator to disinherit or deprive of his estate the surviving children of either of his own children, who might be deceased at the time designated when the division of the estate was directed to tahe place. And such an enlargement of the term may be made to carry into effect what shall appear to have been the intention of the testator. This subject was considered in Matter of Brown (29 Hun, 412), and authorities bearing upon the subject were there collated. In either view the grandchildren cannot legally be excluded from participation in the testator’s estate, but the proceeds should be so distributed as to give to each of them one-fourth of the amount, and that will effectuate the purpose of the testator of dividing his property equally among his children.

The widow of the testator’s deceased son, Charles H. Hurst, also presented a claim for a part of these proceeds, but that claim was disallowed by the surrogate, and the view adopted by him is well sustained by tbe fact that the grandchildren derived their right to these shares in the proceeds under the will of the testator, and not through their deceased father. They were given directly to the persons designated in this part of the will by the testator himself. It was not until the decease of the widow that tire persons to whom« the proceeds were given could be ascertained, and it was to the individuals who came within the description contained in this part of the will at the time of her decease, that the testator’s bequests were made. And as the widow of this son was in no event provided for or included among these persons, she had no legal claim to any part of such proceeds.

After the decease of both persons named as the executors in the will, David Patón was appointed a trustee by this court, as well as the Surrogate’s Court, to carry these directions contained in it into effect. And JohnB. Kurst was also appointed administrator of the estate by the surrogate of the county of New York. The estate of the testator was sold by the concurring action of these two persons, and upon the hearing before the surrogate the administrator claimed to be entitled to commissions. But this claim was rejected for the time being by the surrogate and deferred until his accounts as administrator should be presented and settled. And that direction was an appropriate one to be given, for it could not be determined prior to that time what his right to commissions might be. To sell the real estate was the execution of a power in trust vested alone in the trustee, and for that service the administrator was not entitled to compensation. And the agreement which was made by him prior to the time of his appointment seems to have contemplated that he should not claim commissions for concurring and participating in the sale of the real estate. The decree of the surrogate should be so far modified in its directions as to restrict the right of John B. Kurst to one-lialf the proceeds of the estate, and direct the other half to be divided equally between the two sons of the deceased brother, and as so modified the decree should be affirmed, without costs to either party.

Beady, P. J., and Macomber, J., concurred.

Decree modified as directed in opinion, and affirmed as modified, without costs.