text:
    Arthur Hopson Sawyer, an infant, by Guardian, etc., App’lt, v. William Cubby et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8,1893.)

    Will—Suspension.
    A legacy, to take effect only on the happening of an event in the future which will not necessarily take place within two lives in being at the death of the testator, is void.
    Appeal from a judgment dismissing plaintiff’s complaint.

      Hophins & Bondy, for app’lt; Costello & Welch, for resp’t Cubby, White & King, for resp’t Hinklev.
   Martin, J.

The purpose of this action was to obtain a construction of the will Sawyer, Practically only question in this case is as to the validity of the fifth clause of the will. In the first, second, third, and fourth subdivisions she gave certain bequests, amounting to $1,000, about which there is no dispute. The fifth subdivision was as follows:

“Fifth. In the event that William Cubby of Syracuse, N. Y, shall promptly pay all assessments, dues', and premiums which during my life shall become due and payable on my insurance on my life in any insurance company, association, or organization, which insurance is or shall be for the benefit of and payable to my adopted .son, Arthur Hopson Sawyer, and in the event, further, that such insurance, or some part thereof, shall be actually paid to said Arthur Hopson Sawyer within one year from my decease, then, and in those events, I give, devise, and bequeath to said William Cubby a sum of money which shall be equal in amount to the insurance money so paid to said Arthur Hopson Sawyer, not exceeding, however, the sum of six thousand dollars, ($6,000.00).

By the sixth clause the residue and remainder of her estate was devised and bequeathed to her executor, in trust to hold, and pay the income thereof to Arthur Hopson Sawyer until he arrived at the age of 85 years, and then to pay over the principal to him. By the seventh the executor was authorized and empowered to sell and convey real estate.

The validity of the fifth clause is assailed upon the ground that it is violative of the statutes which prohibit the suspension of the power of alienation of property beyond two lives in being at death of the testatrix. A legacy, to take effect only on the happening of an event in the future which will not necessarily take place within two lives in being at the death of the testator, is void. Rose v. Rose, 4 Abb. Dec. 108 ; Booth v. Baptist Church. 126 N. Y. 215 ; 37 St. Rep. 79. The respondents seek to uphold the judgment upon the theory that the legacy vested on the death of the testatrix, subject to being defeated by the nonpayment to her adopted son of ano part of the insurance mentioned. The conditions in this paragraph of the will were that the respondent Cubby should pay all the assessments, dues, and premiums which should, during the lifetime of the testatrix, become due and payable upon the policies, and also that such insurance, or some part thereof, should be actually paid to her adopted son within one year from her decease. Both these provisions were conditions precedent to the vesting of any interest in such legacy. That it was the intent of the testatrix that the legatee should have no right to the legacy mentioned, or any interest in her estate, until both these conditions were performed, is quite obvious. Hence it follows that he had no vested interest in the legacy in question upon the death of the testatrix, and could acquire none until both conditions had been fully performed. Therefore, the ownership was left in abeyance awaiting the result of a contingency which effected a suspension of the power of alienation not measured by lives. We cannot adopt the view taken by the learned referee, that the will required the payments to be made to the beneficiary in the policies in his lifetime, and thus limited the suspension to the life of one person in being at the deatli of the testatrix. We think the condition upon which this legacy was made to depend might have been performed as well by the payment of the insurance to an assignee or personal representative of Arthur Hopson Sawyer after his death as by payment to his guardian, who was his representative during his infancy. We can find nothing, either in the will, or any circumstance disclosed by the evidence, which would justify us in holding that it was the testatrix’s intent that the second condition upon which the legacy was based could only be performed by a payment to her adopted son while living. We think the provision, “shall be actually paid to said Arthur Hopson Sawyer within one year from my decease,” is not to be so narrowly construed as to have required the payment to be made to him personally within one year of the death of the testatrix, but that the intent was that whatever sum came to him from the source mentioned, or of which he should have the benefit, either through the payment to himself, his assignee, or personal representative, would entitle Cubby to an equal amount out of the testatrix’s estate not to exceed $6,000. It is quite obvious that the limit intended by this clause in the will was one year, and we find nothing in the will or in the evidence to indicate that any other limited of time was intend.

The appellant, however, contends, and the learned referee inti.mates in his opinion, (1) that this legacy was the result of an agree-meat between the testatrix and Cubby, whereby the latter was to have the benefit of the insurance upon her life, although he had no insurable interest whatsoever therein; (2) that the scrivener who prepared the will foresaw and understood that the provision in question would be void under the statute unless the time was limited by the life of the beneficiary ; that he so advised the testatrix, and that the provision in question was inserted to avoid the statute, by making it dependent upon the payment of the insurance during the life of her adopted son. As to the former proposition, it may be said that the fact that the party sought thus to evade the law by doing indirectly what would have been void if donedi-. rectly does not commend itself to us, or present any very persuasive reason why a court should indulge in any strained or unusual construction to uphold the provisions of this clause of the will. In the latter proposition we are unable to concur. If the scrivener foresaw the difficulty which was likely to arise under the statute, it is hardly possible to suppose that he would not have clearly stated, as a part of the condition, that it should be performed during. the life of the testatrix’s adopted son. Having failed to thus limit the time for complying with this condition, we think the words must be given their usual and ordinary meaning, and it must be held that the condition upon which this legacy was made to depend was not by the terms of the will required to be performed during the life of Arthur Hopson Sawyer, and hence the event, upon the happening of which the legatee would be entitled to receive the legacy, would not necessarily occur within two lives in being at the death of the testatrix, and the paragraph of the will under consideration was void. Judgment reversed, and anew trial ordered, with costs to abide the event. All concur.


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    Clara H. Spencer, Resp’t, v. Peter B. Myers, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Insurance—Libe—Assignment.
    Chap. 248 of 1879 applies also to policies made outside of the state, by a foreign company authorized to do business within thp state, and sent to its agent, to be delivered to a beneficiary who, with her husband, is a resident of this state. 3
    Appeal from a judgment in favor of the plaintiff.

      William Reman, for app’lt; Smith M. Lindsay, for resp’t.
   Martin, J.

This action was to recover $2,000 and interest upon a policy upon by the Connecticut Mutual Life Insurance Company. The company issuing the policy was incorporated under the laws of the state of Connecticut, and had its office in the city of Hartford, in that state. It was authorized to do business in the state of New York, and had an agent atHtica, who was empowered to take and forward applications for insurance to the home office, and to receive and deliver policies, and collect premiums thereon. The action was originally brought against the insurance company alone. An order was subsequently made, permitting the company to pay into court the amount due upon the policy, and to bring in as defendant Peter B. Myers, who also claimed the money. The plaintiff was the wife-of Byron 0. Spencer, and when the policy was issued both were residents of the city of Utica. The plaintiff has since been, and is now, a resident of that place. Her husband ■continued to reside there until October, 1888, when he became a resident of Springfield, Mass., where he resided until his death, in January, 1890. The application for the policy was taken by the insurance company’s agent, who resided at Utica, and was forwarded to the company at Hartford. The policy was subsequently written at Hartford, sent to its agent at Utica, and by him delivered to Byron 0. Spencer for the plaintiff. The plaintiff and her husband had one child, who is still living. In 1887 the plaintiff commenced an action for divorce against her husband, and in October of that year an agreement was made between them by which, in consideration of the conveyance to the plaintiff by her husband ■of a house and lot in Utica and certain household furniture, she agreed to accept the same in full payment and satisfaction of her support and the support, maintenance, and education of their ■child; and also agreed that she would sign, execute, and deliver all necessary releases and assignments of her interest or equities, or that of her child, in or to the the policy in question or the proceeds thereof. In compliance with this agreement, her husband executed a conveyance of the house and lot, and delivered the same and the household furniture to the plaintiff, as he agreed. At the time there was a mortgage on the house and lot, held by the defendant Myers, upon which there was then due over $700. Pursuant to the agreement between the plaintiff and her husband, she, by an instrument in writing duly executed and acknowledged, assigned and transferred all her interest in said policy to the defendant Myers, to which assignment her husband consented by an instrument in writing duly executed and acknowledged. At the time of receiving such assignment, and in consideration thereof, the defendant Myers, executed a satisfaction of the mortgage on the house and lot, and it was satisfied of record. After the assignment of the policy, Myers advanced to and paid for the plaintiff’s husband various sums of money, and rendered services for him, which amounted, with interest, to over $2,000, no part of which was ever repaid. Upon the death of her husband the plaintiff made proofs of loss, and delivered them to the company. The defendant Myers also made and delivered to the company proofs of loss. Each claimed the amount due on the policy. The company would pay neither, and the plaintiff commenced the action.

The question in this case was, which of the claimants was entitled to the money. The policy was, by its terms, made payable to the wife if she survived the assured; if not, to his children, or their legal representatives. No question arose between the plaintiff or the defendant Myers and the company as to the sufficiency of the proofs, either those furnished by the plaintiff or those furnished by Myers. Nor was there any claim by the insurance company that any of the provisions of its policy had been violated or not complied with. It paid the amount due into court, and the only question litigated was, which of the claimants was entitled to the money. On the trial the court held that the policy was not issued within this state, in pursuance of the laws of the state that it was not assignable under chapter 248, Laws 1879 ; and hence, that the plaintiff’s assignment was void, and she was entitled to recover the money in question. Therefore the only question to be considered upon this appeal is whether-the assignment by the plaintiff to Myers was valid It is doubtless true that, anterior to the act of 1840 (Laws 1840, c. 80,) a policy on the life-of a husband for the benefit of his wife and children tvas unauthorized. But that act provided for and legalized the issuing of such policies. After its passage the courts of this state imposed upon the title of the wife to policies issued in pursuance of it certain limitations, which were that she could not dispose of such policy, and that her creditors could not reach it. These decisions were based upon the idea that it was the intent of the legislature, when it passed that act, to make provisions for a state of widowhood and for orphan children, and that to hold that the wife might transfer the policy would be in violation of the spirit of the law. After the passage of that act, and after the courts had firmly established the doctrine that policies issued under it could not be assigned by the wife, the legislature, by chapter 821 of the laws of 1878, provided that a married woman might surrender her policy issued under the act of 1840, and, when she, had no-children, might dispose of it either by will or deed, and that the person to whom it should be granted or conveyed should be invested with the same rights as she would have had in case she survived the person on whose life the policy was issued. Although, under that statute, a married woman could assign such a policy only when she had no children, yet its enactment shows a clear intent upon the part of the legislature to change the rule established by the courts as to the nonassignability of such policies. Subsequently the act of 1879 (Laws 1879, c. 248) was passed.. The title to the act is, “An act for the relief of policy holders in life insurance companies.” Its provisions are:

“All policies of insurance heretofore or hereafter issued within the state of Mew York upon the lives of husbands for the benefit and use of their wives, in pursuance of the laws of the state; shall be, from and after the passage of this act, assignable by- said wife with the written consent of her husband ; or in case of her death by her legal representatives, with the written consent of her husband, to any person whomsoever, or be surrendered to the company issuing such policy, with the written consent of the husband.”

That the effect of this statute was to confer upon the wife authority to assign such a policy with the consent of her husband even though she had children, was distinctly held in Anderson v. Goldsmidt, 103 N. Y. 617; 4 St. Rep. 286. As we have already seen, the construction placed npon this statute by the court below was that it applied only to policies of insurance that were actually made and delivered within this state, but that it did not apply to a policy made outside of the state, and sent to its agent, to be delivered to a beneficiary, who, with her husband, were residents although the insurance company, issuing it was authorized by the law of the state to do business therein.

In determining the construction to be placed upon this act, i t is proper at the outset to inquire as to the purpose and intent which governed the legislature in passing it. In the interpretation of statutes the great principle which is to control is the intention of the legislature. This is to be ascertained from the cause or necessity of making the statute, as well as other circumstances. A strict and literal interpretation is not always to be adhered to, atid where the case is brought within the intention of the lawmakers it is within the statute, although, by a technical interpretation, it is not within its letter. It is the spirit and purpose of a statute which are to be regarded in its interpretation ; and if these find fair expression in the statute it should be so construed as to carry out the legislative intent, even although such construction is contrary to the literal meaning of some of its provisions. A reasonable construction should be adopted in all cases where there is doubt or uncertainty in regard to the intention of the lawmakers. People ex rel. Wood v. Lacombe, 99 N. Y. 43. In this state the title of a statute may be resorted to for aid in discovering the design of the legislature, and to limit the meaning of general words. Brick v. Gannar, 36 Hun. 52 ; People ex rel. Cooke v. Wood, 71 N. Y. 371 ; People ex rel. West. F. Ins. Co. v. Davenport, 91 N. Y. 574 ; People ex rel. Commonwealth Ins. Co. v. Coleman, 121 N. Y. 542 ; 31 St. Rep. 841. A court may inquire into the intent of the legislature with the view of restricting the effect of the. general language of an act which in itself is plain and unambiguous, although the power is to be carefully exercised; and the court may for that purpose consider the title of the act. People ex rel. West. Ins. Co. v. Davenport, 91 N. Y. 573 ; Trustees v. Roome, 93 N. Y. 313. The exact and literal wording of an act may be rejected if, upon a survey of the whole act, and the purpose to be accomplished or the wrong to be remedied, it is plain that such exact or literal rendering of the words would not carry out the legislative intent. Bell v. Mayor, etc., 105 N. Y. 139 ; 6 St. Rep. 847.

If we adopt the foregoing rules, and consider the title of this act, the cause, necessity, and object of its passage, and the other circumstances relating to it, we apprehend there will be but little difficulty in determining the true intent and purpose of the legislature. The purpose of this statute was declared in its title to be “ for the relief of policy holders in life insurance companies.” It contains nothing which indicates that its purpose was to create a distinction between policies written within the state.and those written outside of its limits, or to create a distinction between the policies of resident and nonresident insurance companies, or in any way to give preference to the policies of the one over those of the other. Again, when we consider the history of the statutes upon, this subject, and the decisions made under them, we find that, although the legislature authorized the issuing of such policies, and in no way forbade their transfer, yet, the courts held that they were not assignable. To change the rule thus established, the legislature, by the statute of 1873, abolished it in part. It is quite manifest, we think, that the purpose of the statute of 1879 was to further abolish the rule, so as to make such policies assignable with the consent of the husband in all cases governed by the laws of this state. Can it be fairly supposed that it was the purpose and intent of the legislature, by the passage of this act, to provide two rules in relation to the assignability of such policies : One, that a policy issued by a company authorized by law to do business in the state, and even a resident thereof, isnonassignable where the physical act of writing anc| sending it is performed out of the state; and the other that, where the physical act of executing it was performed within the state, it may be assigned, although made by a nonresident insurer ? We think not. It may be—although we do not decide the question—that a policy, where it is signed and sent by mail to an agent, to be delivered, can technically be said to have been issued at the place where it was signed and from which it was sent. But if it be true, would any fair construction of this statute justify us in holding that the legislature intended to use the word “ issued ” in that strict and technical sense ? It seems to us not. We think the word issued ” was used in a broader and different sense, and that, where a policy on the life of a husband for the benefit and use of his wife is made and delivered in pursuance of the laws of the state legalizing such policies, and it is in full effect and operation in this state, it is to be regarded as issued therein, within the meaning and intent of that statute. A contrary construction would lead to absurd results. If this statute were to be construed as applicable only to policies which were executed and delived within the borders of the state, it would follow that, whenever a policy was made and delivered outside its border's, it would be nonassignable, even though the insurer, assured, and beneficiary were all residents of the state; and it would also follow that no such assignment could be safely taken, unless accompanied by conclusive evidence that the policy was 'actually made, executed", and delivered within the borders of the state. We cannot think the legislature intended to pass a statute which would be followed by any such absurd and inconvenient results. Moreover, so far as we find any authority bearing upon the question, it seems to be in accord with the conclusion we have reached.

In Brick v. Campbell, 122 N. Y. 337, 345 ; 33 St. Rep. 520, Potter, J., in referring to the question, said:

“We are not referred by the respondent to any, nor am I aware of any, case where it is held or intimated that it makes any difference, as to the assignability of insurance contracts, whether the policy was issued by a corporation created under the laws of this state. The several acts of the state in relation to policies issued for the benefit of a wife, or wife and children, make no such distinction, and I can see none in principle, but quite the contrary.”

In Conn. Mut. L. Co. v Van Campen, 11 N. Y. Supp. 103 ; 32 St. Rep. 1125; it was held that an assignment by the husband and a ratification by his wife were valid where the policy was issued by the company that issued the policy in this case. The policy in Wilson v. Lawrence, 13 Hun, 238, was also one issued by the Connecticut Mutual Life Insurance Company.

Thus far we have treated the contract between the parties as one governed by the laws of this state. If, however, it is to be regarded as a contract under the laws of the state of Connecticut, it would seem that under the laws of that state the assignment of the policy was valid. Insurance Co. v. Westervelt, 52 Conn. 586. We think the court below erred in holding that the assignment by the plaintiff was void, and that the judgment should be reversed.

Judgment reversed, and a new trial ordered, with costs to abide the event.

All concur.


author: Martin. J.

text:
    Charles M. Titus, Resp’t, v. Charles F. Poole et al., as Executors of the will of Edward V. Poole, Deceased, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Sale—Bank stock— Warranty.
    Any assertion of the vendor concerning the stock, if relied upon by the vendee, and understood by both parties as an absolute assertion, and not merely the expression of an opinion, will amount to a warranty.
    2. Same.
    In such case, if there is no express warranty, an implied warranty arises on the part of the vendor that the instrument is genuine and what it purports to be.
    8. Evidence—'Warranty. ■
    In an action for breach of warranty in a sale of bank stock that the bank was solvent, evidence as to the condition of the bank four years after the sale is incompetent.
    4. Same—Transcript oe bank books.
    A transcript of bank books, where the notice provided for by §§ 930, 931 of the Code has been given, and the copy verified, as therein prescribed, is admissible in evidence.
    5. Appeal—Decision.
    The decision of an issue on a former appeal at general term, if no further appeal is taken, is conclusive on a subsequent appeal to the same court.
    Appeal from a judgment entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions.

      David M. Dean, for app’lts; F. M Tibbetts and D. D. Halliday, for resp’t.
   Martin. J.

This action was for breach of warranty on the sale or transfer to the plaintiff of what purported to be a certificate of fifty shares of stock in the Home Savings Bank of South Waverly, Pa. In effect, it was alleged in the eorflplaint that the defendants’ testator purchased of the plaintiff certain real estate, at the agreed price of $9,000 ; that he transferred to the plaintiff in part payment therefor, what purported to be fifty shares, of $100 each, of the stock oí an alleged bank, called the “Home Savings Bank of South Waverly;” that the testator, by express words and by implication, warranted and represented that such script or alleged certificate of stock was in all respects what on its face it purported to be, and that all the statements and representations printed and written upon it were true; that he further expressly represented and warranted that it was a regular dividend paying stock ; thatfit was issued by a state bank regularly organized under the laws of the state of Pennsylvania; that it (the bank) had a paid-up capital of $100,000; that the stock was worth 100 cents on the dollar; that he was one of the first stockholders, and had owned the stock for several years; and that the testator at the time also made various other statements, tending to show that said certificate was good and all right. It was then alleged that none of the foregoing statements or representations made by the testator were true, but that the stock was worthless, and judgment for $5,000 and interest from February 10, 1883, was demanded. The defendants’ answer, so far as material to the questions raised upon this appeal, was a denial of the alleged warranty, and an allegation that the plaintiffs cause of action was barred by the short statute of limitations, because the action was not commenced within six months after the presentation and rejection of the plaintiff’s claim. On the trial the plaintiff proved that he sold to the defendants’ testator certain real estate, for the price or sum of $9,000; that he accepted the alleged certificate of stock for $5,000 as part payment therefor; that, when the contract between the parties was made, the defendants’ testator stated and represented to him that the so-called “bank,” the stock of which was apparently represented by the certificate, was a bank regularly organized under the laws of the state of Pennsylvania, and had savings bank privileges; that the stock was good, worth 100 cents on the dollar, a high dividend paying stock, and all right; that he was one of the original stockholders ; that the capital stock was $100,000, and was all paid up; and that thereupon the plaintiff said: “If this stock is all right, as you say, we will make the trade or deal.” This evidence was uncontradicted. The evidence also disclosed that the sorcalled “ bank," the alleged stock of which was thus transferred, was never incorporated under the laws of the state of Pennsylvania, and that from 1874 until the time of the trial only six dividends were declared. It also tended to show that none of the dividends declared were earned, but were in fact paid out of the capital invested in the enterprise; that the stock was not fully paid up; that the assets of the concern were insufficient to pay its liabilities ; and that it failed in 1887. Proof was given of the sale of what purported to be the stock of this institution at about par ; but each of the witnesses who testified to having purchased or sold it testified that he supposed the bank was regularly organized under the laws of the state of Pennsylvania, and would not have purchased the stock if he had known'it was not. The evidence also tended to show that the stock was in fact worthless; that, although it had been sold at -par, still that it would not have brought that price or had any market value if the facts as to the situation of the alleged bank had been known and understood. That the representations made were material, and relied upon by the plaintiff there is no doubt Upon this evidence, the court submitted to the jury the questions whether the warranty was made, whether the plaintiff relied upon it in making the exchange, and, if so, the amount of damages sustained by him. The jury found for the plaintiff, and awarded him $5,000, and interest from the time of such sale.

The appellants contend that the evidence was insufficient to justify the court in submitting the question of warranty to the jury, and that it erred in denying their motion for a nonsuit. We think this contention cannot be sustained. Uo particular phraseology was necessary to constitute a warranty. Any assertion of the testator concerning this stock, if relied upon by the plaintiff, and understood by both parties as an absolute assertion, and not merely the expression of an opinion, would amount to a warranty.

The evidence was amply sufficient to justify the jury in finding that the defendants’ testator positively asserted that this alleged bank was organized under the laws of the state of Pennsylvania; that the stock was worth 100 cents on the dollar; and that he, as one of the first stockholders, was in a position to know its value, while the plaintiff was not; and that it was a good, high dividend paying stock. This, we think, was sufficient to sustain the finding of the jury that there was an express warranty, and, as the proof disclosed a breach thereof, the plaintiff was entitled to recover the difference between the value of the stock as represented and the value as it was.

Moreover, if there had been no express warranty, as the certificate which was transferred to the plaintiff purported to be a certificate of stock in a bank organized under the laws of the state of Pennsylvania, and was sold as such, there was, we think, an implied warranty on the part of the seller that the instrument was genuine and what it purported to be. In Ledwick v. McKim, 53 N. Y. 307, it was held that, upon the sale and assignment of a nonnegotiable written instrument, there is an implied warranty of title in the assignor, and upon failure he is liable. In the opinion it is said: “ The seller warrants the genuineness of the instrument, and that it is what it purports to be,”—citing Gurney v. Wormersley, 28 Eng. Law & Eq. 256 ; Thrall v. Newell, 19 Vt. 202. In Ross v. Ferry, 63 N. Y. 613, it was held that, as a general rule, there is implied from the sale of a bond or other security a warranty on the part of the vendor that it is a valid and subsisting security for the amount expressed. In Littauer v. Goldman, 72 N. Y. 507, the doctrine that upon the transfer of a chose in action there is an implied warranty, not only of title, but that the instrument is genuine, is again recognized. Delaware Bank v. Jarvis, 20 N. Y. 226, 229, the rule that a vendor of-a chose in action, in the absence of express stipulations, impliedly warrants its legal soundness and validity is asserted. See also, Webb v. Odell. 49 N. Y. 583, and Mandeville v. Newton, 119 N. Y. 10, 14 ; 28 St. Rep. 850. In this case, however, there was, as we have already seen, an express warranty not only as to the genuineness of the certificate, and that it was what it purported to be, but as to its value and quality. We are of the opinion that the case was properly submitted to the jury, and that its verdict should be upheld.

That the plaintiff, on proving the warranty and a breach tlierey of, was entitled to recover the damages awarded, is quite manifest. The proof showed quite conclusively that the pretended stock had no actual value, and that, upon the facts being understood, it would have had no market value. The appellants not having in any way challenged the amount of the recovery, no further consideration of this question seems necessary.

The appellants also contend that the plaintiff’s claim was barred by the short statute of limitations. On a former appeal in this case that question was examined, and decided adversely to such contention. Titus v. Poole, 60 Hun, 1 ; 38 St. Rep. 627. That decision must be regarded as conclusive upon this question.

The only other questions raised by the appellants relate to the rulings on the trial. Benjamin Kuykendall was called as a witness by the plaintiff, and on the cross-examination was asked the following question: “ Q. Now I ask you the question if there was a debt came to your hands against the plaintiff here, Mr. Titus, as an asset in favor of the Home Savings Bank to you as receiver, for any cause whatever, whether by reason of overdraft, check, or other things.” This question was objected to “ as incompetent,” whereupon the court said: “ I don’t see how it is competent. I will exclude it.” To this the defendants excepted. The appellants claim that this evidence was admissible to establish the solvency of the Home Savings Bank, and to meet the evidence which had been given by the plaintiff to show that both the bank and its president who seems to have absorbed the most of its assets, were insolvent. We are unable to see how this evidence was admissible, as it related to a transaction or situation which existed in 1887, four years after the transaction in question. The question that had been litigated, and to which the proof related that this evidence was offered to answer, was as to the situation in 1883. when the transaction occurred, and the court had already ruled that a witness for the defendants might testify to that fact if it existed in 1883. Moreover, the proof was to the effect that the bank and its president were both insolvent to the extent that their liabilities exceeded their assets more than $80,000. If the evidence was admissible, we fail to see now its rejection could have harmed the appellants, as it would not have justified any different conclusion as to the fact of such insolvency.

Again, the defendants were premitted to prove by the witness William Kirby that the plaintiff had a note for $4,500 discounted at the bank after February 10, 1883, and the plaintiff, on his cross-examination, testified that he had $5,000 of Kirby, the apparent president of the concern, and that it was not all yet paid, and that the whole amount was unpaid when the institution failed. We find in this ruling no error which would justify us in disturbing the judgment appealed from.

The appellants also claim that the court erred in admitting in evidence the books of the Home Savings Bank, and the transcript which was allowed to be used on the trial. The notice provided for by the Code of Civil Procedure was given, and the copy was verified as therein provided. Sections 930, 931. Besides, the evidence shows quite clearly that the books were within the state of Hew York, and practically in the hands of the appellants. Under these circumstances, we find no error in the admission of this evidence. “If the original documents are inconveniently voluminous or numerous, and the result to be gathered from them is the material fact, a qualified witness who has examined them may testify to the result subject to cross-examination on details ; and an abstract or summary, made by him out of court, with the originals before him, and which he testifies is correct, may be received in evidence, instead of requiring the originals.” Abb. Tr. Brief, § 21 ; Greenl. Ev. § 93 ; Burton v. Driggs, 20 Wall. 125. See also, Howard v. McDonough, 77 N. Y. 592, and Wise v. Phoenix Insurance Co., 101 N. Y. 637 ; 1 St. Rep., 20. Having considered all the questions presented by the appellants in their brief, and having found nothing which would justify us in reversing the judgment appealed from, it follows that it should be affirmed.

Judgment and order affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Jerome J. Woodruff, Resp’t, v. Syracuse, Binghamton and New York Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December, 8, 1893.)

    Appeal—Evidence.
    When the evidence is sufficient to justify the verdict, the judgment will not be disturbed, unless there is some ruling which requires a reversal.
    Appeal from a judgment entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial made on a case and exceptions.

      Jenney & Marshall, for app’lt; Franlclin Pierce, for resp’t.
   Per Curiam.

The plaintiff’s evidence tended to show that the defendant, by narrowing a bridge rebuilt by it on the line of its railroad, and by placing and leaving in the stream under or near it a quantity of stones, cement and other materials, so obstructed the stream as to cause the water thereof to set back upon his premises, which were used partly as meadow and pasture, and partly as a brick yard; that by reason thereof he sustained damage to an amount greatly in excess of the amount of the recovery herein. The evidence of the defendant, however, was calculated to show that the bridge was not narrowed, or the stream obstructed, to the extent claimed by the plaintiff, and that the plaintiff’s injury was not the result of any improper or negligent act of the defendant, but resulted from other causes, for which it was not responsible. Upon conflicting evidence the court submitted the case to a jury by a charge which was certainly as favorable to the defendant as it could properly ask. The jury found for the plaintiff. A careful reading of the evidence contained in the appeal book has led us to the conclusion that upon the proof the question was for the jury, that the evidence was sufficient to justify the verdict, and that the judgment should not be disturbed, unless there was some ruling which requires a reversal. We have •carefully examined all the rulings of the court and exceptions to its charge to which our attention has been called by the appellant in its brief, but have found none that require a reversal, or that need be specially considered.

Judgment and order affirmed, with costs.


text:
    In the Matter of the City of Utica.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Eminent domain—State property.
    A provision in a city charter that the city may appropriate for street purposes any real estate not belonging to the city, does not authorize the city to condemn land owned by the state.
    2. Appeal—Order.
    • An order appointing commissioners in condemnation proceedings is appealable.
    Appeal from an order appointing commissioners to appraise land.

      S. W Rosendale, Atty. Gen., and John D. McMahon, Dep. Afty. Gen., for app’lts; Josiah Perry, William Kernan, and M D. Mathews, for resp’t.
   Martin, J.

The order from which this appeal was taken was made in a proceeding instituted under the charter of the city of Utica, to open a street through the farm or grounds of the Utica State Hospital, without the consent of the state or the managei'S of that institution. The Utica State Hospital and the State Lunatic Asylum at Utica are one and the same institution, the former name having been substituted for the latter. That this institution is a public one, and has been maintained as such by the state for more than a half century, is not only a matter of common knowledge, but may be seen by an examination of the public statutes of the state passed during that time. It is also an established fact that the property through which the city of Utica now seeks to open the street in question has been dedicated to the use of such institution, and has been used for that purpose for many years. That the use to which it has been thus dedicated is a public one cannot be denied. That the property is not only proper, but necessary, for such public use is equally certain. The question in this case is whether, under such circumstances, the authorities of the city can condemn the state property thus used, or any portion of or interest in it, for the purpose of laying out a public street through it. If any such authority exists, it is given by the provisions of the charter of the city of Utica, (chapter 18, Laws 1862, and subsequent acts amendatory thereof.) The charter gives the common council of the city power to lay out, open, make, amend, repair, alter, extend, widen, control, and discontinue streets, lanes and highways. In case it shall be necessary to appropriate for any street any real estate, not belonging to the city, which the city may not be permitted by the owner freely to appropriate, it prescribes the procedure to be adopted to acquire the right to open or lay out such streets.

It is contended by the appellants that the common council of the city of Utica possessed no right or power to condemn the property of the state, especially such as was already dedicated to & public use, and therefore, that the proceeding which resulted in the order appealed from was unauthorized, and the order void. Thus the question we are called upon to determine relates not to procedure, but to the right of condemnation alone. It is a question not of discretion, but of power. At the commencement of this investigation, we are met with the question whether the statute under which this proceeding was instituted has any application to, or authorizes the condemnation of, the lands of the state. It seems to have been a well-established principle of the common law that the crown was not bound by a statute, unless named in it, for the reason that the law is presumed to be made for subjects only, and that at all events the crown was not reached except by express words, or by necessary implication, in any case where it would be ousted of an ex isting prerogative or interest. Attorney General v. Donaldson, 10 Mees. & W. 117, 124 ; Huggins v. Bambridge, Willies, 241, 246 ; King v. Wright, 1 Adol. & E. 434, 437 ; Ex parte Russell, 19 Ves. 163, 165 ; Ex parte Postmaster General, 10 Ch. Div. 595, 598 ; In re Henly & Co., 9 Ch. Div. 469, 481 ; Weymouth v. Nugent, 6 Best& S. 22, 33; In re Cuckfield Burial Board, 19 Beav. 153. The U. S. courts also hold that the sovereign power is not bound by general words in a statute, but only when included expressly or by necessary implication. U. S. v. Hewes, Crabbe, 307 ; U. S. v. Hoar, 2 Mason, 311 ; U. S. v. Greene, 4 Mason, 427, 431 ; U. S. v. Herron, 20 Wall. 251. The same rule has been recognized in many of the states as applicable to the commonwealth, its rights and interests. Jones v. Tatham, 20 Pa. St. 398, 411 ; Stoughton v. Baker, 4 Mass. 522, 528 ; State v. Milburn, 9 Gill, 105, 117 ; Cole v. White Co., 32 Ark. 45, 51; State v. Kinne, 41 N. H. 238, 240 ; State v. Garland, 7 Ired. 48, 50. When we examine the decisions of our own state upon the subject, we find that the question arose in the case of People v. Gilbert, 18 Johns. 227, and that it was held that the English common-law rule that the king is not bound by a statute of limitations was, by the adoption of the constitution, made the law of this state, ana that the state was not included in the general expressions of a statute. In People v. Rossiter, 4 Cow. 143, the English rule was again followed, and it was held that the state was not bound by an insolvent or bankrupt law unless named in it. The court, in delivering the opinion, said :

“The people are not bound by an act of this kind, unless they are named it. The rule is the same as in England. The king is not bound by a bankrupt law, unless named, and the people ai’e the king for the purposes of this rule.”

In People v. Herkimer, 4 Cow. 348, it was held that the people have succeeded to the rights oi the king, and are not therefore, bound by general words in a statute when any right or interest might be divested by or taken under it. It is said to be upon this principle that the grant to a corporation by the legislature of a general power to take real estate lor the purposes of the incorporation does not extend to property already dedicated by authority of law to and held for another public use, (End. Interp. St. § 162:) but, be that as it may, the rule seems tobe firmly established that to take property already appropriated to another public use the act of the legislature must show the intent to do so by clear and express terms or by necessary implication, leaving no doubt or uncertainty respecting the intent. Mills, Em. Dom. § 46, and cases cited in note 1. In Re Boston & A. R. Co., 53 N.Y. 574, 577, where a railroad company sought to condemn land that had been dedicated to the use of a public park, it was said :

“Thesole question, then, is whether the legislature has conferred upon the applicant the power to enter upon and take possession of property already held and dedicated by authority of law to one public use for another, and entirely different usb also declared to be public.”

After stating that the authority for the proceeding in that case, if it existed, must be found in the general railroad law, the court added:

“It (the power) must be expressly conferred—that is, in direct terms, or by necessary implication; and the implication does not arise if the powers expressly conferred can, by reasonable intendment, be exercised without the appropriation of property already actually held and used for another public use.”

In Re City of Buffalo, 68 N. Y. 167, it was again held that, while the legislature might interfere with property held by a corporation for one public use and apply it to another, and might delegate the power to do so to another corporation, yet that such delegation must be in express terms, or arise from necessary implication. In Re New York Cent. & H. R. R. Co., 77 N. Y. 256, it is said:

“The doctrine that corporations who derive power from the legislature to take property by the right of eminent domain cannot exercise such power in reference to property already dedicated to public use, without express grant, and not be controverted.”

See, also, In re Boston, H. T. & W. Ry. Co., 79 N. Y. 68 ; Suburban Rapid Transit Co. v. City of New York, 128 N. Y. 510, 521 ; 40 St. Rep. 498. By these authorities two rules are established : (1) That the state or people are not bound by a statute, unless expressly named or included in it by necessary implication ; (2) that where the legislature has conferred upon a corporation or municipality the general power to acquire lands by the right of eminent domain, it does not apply to lands already dedicated by authority of law to a public use, unless such right is expressly conferred by the statute in direct terms, or by necessary implication. Applying those rules to the acts .in this case, we are unable to perceive any ground upon which the proceeding which resulted in the order appealed from can be upheld, as there is nothing in the statute under which it was in tuted which either expressly or by necessary implication conferred upon the city the power to appropriate the lands of the state for street purposes. As we have already seen, the use to which the grounds around the Utica State Hospital had been dedicated for more than 50 years was a public one. The property thus used was required for the purpose to which it had been dedicated. The use for which it was sought to be condemned was inconsistent with its use for the purposes of the hospital, would absolutely deprive the state of all benefit in and use of the property taken, and essentially interfere with the use of the remainder. Under these circumstances we are clearly of the opinion that the city of Utah acquired no right or authority under its charter to condemn the lands in question.

It is, however, contended by the respondent that the order of the county judge appointing commissioners was not appealable. In re City of Buffalo, 64 N. Y. 547, seems to be adverse to this contention. There the appeal was from an order of the general term of the superior court of the city of Buffalo, affirming an order of the special term appointing commissioners to appraise the lands of the appellants, and the order was held to be appealable. In that case it was said:

“ If the .case presented was not within the law, commissioners could not legally be appointed. Assuming that the court could not review the judgment of the common council as to the necessity for taking the lands, or their discretion in determining upon the plan or extent of the improvement, it had power to inquire and decide whether it could act at all upon the application.”

We think the doctrine of the case cited is decisive of the question, and that the order was appealablé. Our conclusion is that the order appealed from should be reversed, and the respondent’s motion for the appointment of commissioners should have been denied. Order reversed, with $10 costs and disbursements.

All concur.


author: Martin, J. Merwin, J.,

text:
    Robert E. Gregg, App’lt, v. John P. Murphy, as Sheriff, etc., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Sheriff—Special directions.
    A party, in whose favor process is issued, may give such directions to the sheriff as will not onty excuse from his general duty, but bind him to the performance of what is required of him.
    Appeal from a judgment entered on a verdict directed by the court in favor of defendant.

      Thomas F. Kearnes, for app’lt; Merrell, Byel & Merrell, for resp’t.
   Martin, J.

The uncontradicted evidence in this case disclosed that the plaintiff's attorney delivered to the defendant, who was the sheriff of Lewis county, an execution in/an action of replevin, by which he was directed to take possession of and deliver to the plaintiff certain articles of personal property mentioned therein, if they could be found in his county, and collect his fees, together with $92.67 costs; if they could not he found, then to collect the sum of $142 damages, with his fees and the costs mentioned. In pursuance of this execution the defendant took possession of the property mentioned, and left it with the person in whose possession it was found. The execution was delivered to the defendant July 23, 1891, and on the 25th of the same month he took possession of the property under it. On the 27th he wrote the plaintiff’s attorney in the action in which the execution was issued, stating he had possession of the property, and asking the attorney to direct him what to do with it, to which the attorney subsequently replied that his client was out of the country; that he expected to see him soon and would then write him fully. On the 7'th of .September the attorney wrote the defendant that he had a letter from his client saying that Austin, in whose hand' the. property was left, would not give it up. To this, the defendant, on the same day, replied that he left the horse and other articles at Austin’s, except one wagon, which was at Barnes’ Corners; that he had taken possession of the goods, and Austin would give them up if called for; that he thought it cheaper to leave the horse there than to remove it elsewhere; and then added : “ Write me if you want to meet me there. I will get the property in your hands very quick.’’ On the next day the plaintiff wrote the defendant in regard to the property, stating that he had heard that Austin would not give it up, to which the' defendant replied that Austin did not refuse to give up the property ; that he (the defendant,) had taken possession of it, and had had it in his possession some time, and wanted to know where he should leave it. To this the plaintiff testified that he replied to let Waterman at Barnes’ Corners get the property, and take it over to John Gregg. On October 7th the plaintiff’s attorney wrote the defendant to let Sylvester Waterman, of Barnes’ Corners, have the property, to write him and deputize him to take the property, _and he would get it together for Gregg and himself. On the next day the defendant complied with his request by writing Mr. Waterman the facts in regard to the property, and by making him a special deputy to take the property in question for the plaintiff. On the same day he wrote the attorney stating what he had done, and asked for instructions as to what return to make upon the execution then in his hands. In reply, the plaintiff’s attorney directed him as to the return he should make and indorse upon the execution, and he made it accordingly. The proof also showed that Waterman did not obtain the property. About five months after the return of the execution, the plaintiff’s attorney again asked the defendant to take possession of the property, to which the defendant iii substance 2'eplied that he did not see liow he could get the property at that time, because he then had no execution in his hands, and stated that, if lie was to do anything more, he^ should have some papei’S upon which to take it. No new execution was issued to him, nor did the plaintiff give him any authority as sheriff to take possession of the property, except such as was given by the execution which had already been returned. There was evidence tending to show that neither the plaintiff nor his attorney desired the property, but that they .were seeking to obtain a cause of action, either against tire sheriff or the sureties, upon the undertaking given in the replevin action.

A reading of the evidence in this case renders it manifest that the sheriff sought diligently to perform his duty to the plaintiff; that he persistently endeavored to have the plaintiff or his attorney or someone authorized by them, come to the county to take possession of the property, but failed, as both the plaintiff and liis attorney neglected to do so, or to provide any way for the defendant to deliver the possession of the property, until the letter in which the defendant was asked to deputize Waterman, who would obtain possession of the property for them. Thus, the defendant, in all he did, was governed by the dii-ections of the plaintiff or'his attorney,and sought to perform every duty which he owed them in the matter. Under such circumstances, it does not seem to me that the plaintiff was entitled to recover in this action. That a party in whose favor process is issued may give such directions to the sheriff as will not only excuse him from his general duty, but bind him to the performance of what is required of him, there is, I think, no doubt. Both the process, and the law. which conveys authority under it, are for the benefit of the party in whose behalf it is issued, and it is a general rule that a man may dispense wih an entire law which is intended for his aid or protection. It follows that he may qualify it, to a greater or less extent, according to his discretion. This is substantially the language of Davies, J., in Root v. Wagner, 30 N. Y. 9, 17. See also Douglass v. Haberstro, 88 N. Y. 611 ; Crouse v. Bailey, 32 St. Rep. 394; 10 N. Y. Supp. 273 ; 11 N. Y. Supp. 910; Corning v. Southland, 3 Hill, 552; Mickles v. Hart, 1 Denio, 548. As in this case it is quite obvious that the defendant acted in accordance with the directions of the plaintiff’s attorney, and in good faith, I think that as a matter of law he was protected in his action, and the court was justified, under the evidence, in directing a verdict for the defendant. Robinson v. Brennan, 11 Hun, 368, 370. I have examined the various rulings to which attention has been called by the appellant in his brief, and find in them no error which would justify us in reversing the judgment. Thus, I am led to the conclusion that the judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., concurred.

Merwin, J.,

(dissenting.) In considering the question whether the verdict for the defendant was properly directed, we are required to take that view of the evidence which is most favorable to plaintiff. Under the execution, the defendant took possession of the property, and it was then his duty to deliver it to the plaintiff or to his order. The plaintiff, in September, gave him directions where and how to deliver it, but they were not followed. If the defendant failed to deliver as the writ required, he was liable to the plaintiff for the damages sustained. Code, § 102. The statement in the return that the property was delivered to W. S. Waterman for the defendant therein was not conclusive as to the fact, of such delivery, although the form of the return was dictated -by- the attorney. The evidence would authorized the finding that the attorney, when he dictated this return, supposed that the property had in fact been delivered by the sheriff to Mr. Waterman, and concerning this the sheriff was in a position to know more than the attorney did. If the attorney, on this subject, acted under a mistake, it does not conclude the plaintiff any more'than giving a receipt would. It was open to explanation. The rights of the sheriff as to his ability to deliver were not affected, as: upon the evidence the jury might infer that the sheriff still had. control over the property. But it is argued that the ■ defendant, at the request of the plaintiff, in substance 'deputized Mn- Waterman to get the property, and that thereupon the defendant ceased to be in any way liable, whether Waterman •found the ..property or not. The process was not placed in the hands of 'Waterman. That was kept by the defendant, and returned. -Waterman and the plaintiff had, therefore, specially the right to rely on the correctness of the statements of the defendant in:his letter of October 8th, that the property was in his possession, and -was all at Austin’s except one article at Ragan’s. Those statements mot being correct, can the defendant still say that he is-- released- from all responsibility because at the request of plain-tiff he appointed Watermsn to get the property together? The situation was somewhat peculiar. The property was in one part' of-' the county and the sheriff was in another, while the plaintiff -lived in another county and the plaintiff’s attorney in still • another. The property had been for some time, as the defendant stated, in his possession, though not in fact transported from -the place where it was taken originally by the sheriff, and he wanted to know what to do with it. He had, upon taking it, •left- it in the custody of Austin, of whom it is apparent that the •plaintiff and'his attorney were somewhat suspicious. Prior to -October 8tb, the plaintiff had the right to call on the defendant forhctual delivery of the property to him or his agent; and the -question is whether it was the understanding of the parties that the giving of the direction to Waterman should relieve the defendant •of-ml't further responsibility, without reference to whether or not there should be actual delivery to Waterman; or, on the other hand, was it the understanding and expectation that the defendant would deliver, or cause to be delivered, the property to Waterman,.and, upon such delivery, the claim be satisfied? Neither ■of:-'these propositions should, upon the evidence, be affirmed as 'matter of law. The question is not whether the defendant is Tiáb'1'e'-for the acts or omissions of Waterman, and, therefore, -'within the purview of the cases cited by the learned counsel for defendant. The question is back of that, and is whether the 'defendant has been discharged from the liability which was upon •him just prior to the arrangement as to Waterman. Whether there was an arrangement to that effect, or whether there was a waiver by plaintiff of an actual delivery, were questions of fact 'for the jury to pass upon. If these views are correct, it follows ’tháí-'the case should have been submitted to the jury, and a new trial should, therefore, be granted.


author: Martin, J. Hardin, P. J.,

text:
    Seymour Lowman, as Guardian of Frank L. Clearwater, Resp’t, v. Frances M. Sprague et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Forcible entry and detainer—Constructive possession.
    Tlie owner in fee of land, who has an absolute right to possession but is forcibly held out of possession by one who entered on the premises by stealth during the owner’s temporary absence, is in constructive possession, within the meaning of § 3345 of the Code.
    3. Same.
    In such case, forcible entry and detainer can be maintained by a guardian of a minor, to whom the land has been devised by the owner, who died in. possession.
    3. Same—Defense.
    A mere claim by defendant that he has a paper executed by deceased, is not sufficient to defeat the action.
    Appeal from a judgment of the county court reversing a justice’s judgment.
    Plaintiff’s petition alleges possession of the premises described therein, and that “ while your petitioner was so in such lawful, actual, peaceable occupation, and on or about the 28th day of July, 1892, as petitioner is informed and believes, certain persons— among others, Charles Sprague and Frances Sprague—did unlawfully, and against the will of your petitioner, make an unlawful and forcible entry into and upon said premises, and did then and there, unlawfully and forcibly, eject and expel your petitioner’s employe from said premises, and has in like manner on said 28th day of July last, and on divers days and times since said 28th day of July last did hold the possession of said premises by force, * * * and have ever since held and still unlawfully and forcibly hold, in like riianner, your petitioner and his employes out of possession of said premises, contrary to the form of the statute.” The answer contains a denial of all the allegations of the petition. When the parties were before the justice on the return of the precept, a waiver was made, in the following language: “ Plaintiff waives that part of petition relating to forcible possession of the premises in question, and concedes that defendant got possession without force.” The justice denied the prayer of the' petition, and in doing so stated the following grounds: “ (1) The petitioner concedes that the defendant did on the 28th day of July, 1892, enter on and take peaceable possession of said premises. (2) Petitioner swears that since the 28th day of July the defendants have and do now hold possession of said premises. (3) By the evidence of the petitioner, the defendants claim a right to the possession of said premises. What that right may be, this court has no jurisdiction to determine. Therefore, the court has to concede that the defendants’ right to possession of said premises is sufficient to hold the same until the proper courts decide who is the actual owner of said premises. I therefore dismiss this action, and render judgment against the plaintiff, in favor of defendants, with costs.”

      Frederick Collin, for app’lts; Baldwin & Baldwin, for resp’t.
   Martin, J.

I think the judgment of the county court should be affirmed. This proceeding was instituted by the respondent under title 2, chap. 17, of the Code of Civil Procedure, to acquire-the possession of the farm or premises in. question. The respondent’s claim, as finally made, was based on the allegation.that the-appellants, by force, held the possession of the premises sought to be recovered. The answer was in effect a general denial of the allegations in the petition, but contained no allegation that the appellants or their ancestor, or those whose interest they claimed, had been in quiet possession of the property for three years before .the alleged forcible detainer, as provided by § 2245. On the trial the justice dismissed the proceeding, and rendered judgment against the respondent, with costs, on the ground that, as the appellants claimed a right to the possession of the premises, he had no jurisdiction of the proceedings. From that judgment the respondent appealed to the county court of Chemung county, where the judgment or final order made by the justice was reversed. The propriety of the last judgment is the question here to be 1 determined.

The Code provides that a person who, having peaceably entered upon real property, holds the possession thereof by force, may be removed therefrom, as provided in the foregoing title of the tiode. § 2233. Where the application is founded upon an allegation of forcible holding out of possession, the petitioner must allege and prove that he was in constructive possession at the time of the forcible holding out; and the adverse party must either deny the forcible holding out, or allege that he or his ancestor, or those whose interest he claims,had been in quiet possession for three years together, next before .the alleged forcible detainer, and that his interest is not ended at the time of the trial. That Jacob Lowman owned and was in possession of the premises in question at the time-of his death is in no manner disputed. That the premises were devised to Frank L. Clearwater by the last-will and testament of Jacob Lowman is also undenied. The undisputed evidence likewise shows that Seymour Lowman was the duly appointed guardian of Frank L. Clearwater, who was an infant. Thus the title was in Clearwater, and the right of possession was confessedly in-Seymour Lowman, as such guardian. While he was temporarily absent, the appellants, against the will and protest of the respondent’s servant, entered upon the premises, built a small shanty, into which they moved, and claiméd to be in possession Of the whole farm. Upon the respondent's return, within a few days after such entry, he sought to regain the possession of the premises, but was-forcibly held out by the appellants. The only pretense or claim of any right to the possession made by the appellants was that Frances had said that she had some paper from Jacdb Lowman,. the character and provisions of which are totally unknown to this court, as they were to the court below. There was no proof whatever that any paper relating to, or which conferred upon the appellants, the title or right of possession to the premises, in fact existed, or ever had existed. The most that can be said is that the evidence showed that the appellants made a naked, unsubstantial claim to the premises, without assertion or notice of its character. So far as the evidence is concerned, the appellants appeared to be total strangers to the property, without any right therein.

Under these circumstances, it seems to me that the justice erred in dismissing the proceeding and rendering judgment for the respondent. By reference to the petition, it will be seen that it is alleged that Frank B. Clearwater was the owner in fee of the premises, and that the petitioner was the general guardian of his estate and person. The proof was undisputed that the title was in the infant, and that the respondent was his duly-constituted guardian", and was in possession when defendant unlawfully entered. Thus, it would seem that it was, in effect, both alleged and proved that the respondent was in constructive possession of the premises, within the meaning of section 2245 of the Code, at the time he was forcibly held out by the appellants. I am unable to concur in the conclusion that there was no allegation or proof that the petitioner was in constructive possession of the property, or that there was such a claim of right by the appellants as justified the justice in dismissing the proceeding. Under the evidence and proceedings, as they stood at the close of the trial, I am of the opinion that the respondent was entitled to the relief sought. Constructive possession is that which exists in contemplation of law, without personal occupation. I think the words “ constructive possession ” as used in this statute, were intended to apply to a case where the'petitioner had the title in fee, or an absolute right of possession "by some other grant, and who would therefore be entitled to the actual possession, but for the forcible holding out of it by the person sought to be removed. Brown v. Volkening, 64 N. Y. 80; Bliss v. Johnson, 94 N. Y. 235; People v. Field, 52 Barb. 198, 210. If those words are not .to be thus construed, they are meaningless; and I am unable to perceive how any one can be removed from premises forcibly held by him, where the possession was obtained by stealth, or in the absence of the person entitled thereto. I think a fair construction of the statute does not justify the conclusion that the respondent was not entitled to the relief sought because he failed to allege and prove that he was in constructive possession. That he has alleged and proved the facts which show him in such possession seems to me clear, and I cannot believe that the mere claim by the appellants that they had a paper under which they claimed title was sufficient to defeat the respondents, when there was no proof as to its character, or even of its existence. If such be the law, the remedy given by the Code for forcible entry and detainer can be enforced only where the entry was by force. Can it be that if a man peaceably enters a house during the absence of its owner, and upon his return claims that he has some paper from the owner’s grantor and refuses to to remove, the owner has no remedy, except by an action of ejectment ? I think not. It to me that the provisions of the Cede relating to this subject were intended to apply to a case like tins.

But it is said that the cases of Bliss v. Johnson, 73 N. Y. 534; Id., 94 N. Y. 235; and Alexander v. Griswold, 17 N. Y. Supp. 522; 44 St. Rep. 121;—are adverse to the decision of the county court, and sustain that of the justice. In Bliss v. Johnson the action was for assault and battery. The defendants sought to justify on the ground that one of them owned the land, and on the first trial they offered to prove that the title to the locus in quo was in one of the defendants. This evidence was rejected, and the court of appeals held that the court erred in excluding the evidence. In delivering the opinion on the first appeal in that case, Andrews, J., said:

“ An entry by a stranger, without right, during the temporary absence of the plaintiff, would not have divested his possession, and he would have been justified in removing the intruder by force. But his prior possession gave him no such right, as against the defendants. The true owner of land, wrongful2y held out of possession, may watch his opportunity, and, if he can regain possession peaceably, may maintain it, and lawfully resist an attempt by the former occupant to retake possession. Nor will he be liable to be proceeded against under the statute of forcible entry and detainer. There can be no wrongful detainer by the true owner, when the entry was both lawful and peaceable.”

On the second appeal, it was held that one holding the legal title to land, although not actually occupying it, will be considered as constructively in possession thereof, unless it is in the actual hostile occupancy of another under a claim of title. It was also held that the evidence in that case was insufficient to estab-. lish a claim by adverse possession. It may be remarked, in passing, that the above case was not a proceeding under the statute relating to forcible entry and detainer, and hence the decisions have no bearing upon the question under consideration, except as they declare generally the right of the owners of land to its possession.

The Alexander Case was a proceeding under the statute relating to forcible entry and detainer, and in that case it was held that, a landlord having made a quiet entry and regained possession of leased premises under a claim of right, an action of unlawful detainer could not be maintained against him, or any person to whom he thereafter leased the premises.

In Kelly v. Sheehy. 60 How. 439, it was'held that the proper interpretation of § 2233 was that the proceeding for forcibly holding out may be maintained, not only in cases of forcible entry, but in cases where one peaceably enters upon real property without right, and holds the possession thereof by force, and that in that case, as the entry was without right, and the real property was held by force, it was held that the section applied.

I find nothing in the cases relied upon which seems to aid the appellants. On the contrary, they tend to uphold the decision of the county court. If the appellants had alleged and showed title, then the doctrine of these cases would have been applicable. Moreover, it would seem that, under the provisions of § 2245, the only defenses the appellants could interpose were (1) a denial of the forcible holding out; and (2) that they, or their ancestor, or those whose interest they claimed, had been in quiet possession for three years before the forcible detainer, and that his interest was not ended or determined. I think the judgment of the county court is right, and should be sustained. •

Judgment of county court affirmed, with costs.

Merwin J., concurs.

Hardin, P. J.,

(dissenting.) After the elimination from the case, by concession, of the allegation relating to forcible entry, there remained only to be considered the question whether the defendants were brought within the provision of § 2245 of the Code of Civil Procedure, as to “forcible holding out.” That section seems to requre that, where the proceeding is founded upon “forcible holding out,” the petitioner should be “in constructive possession at the time of the holding out.” Ho such averment is found in the petition, nor does the proof given before the justice require a finding to that effect. On the contrary, the justice was called upon to find upon the proofs submitted to him, and in doing so to construe the evidence, and determine what part of it he would give credence to, and in doing so he has, in effect, found that the plaintiff was not in constructive possession at the time of the commencement of the proceedings, nor at the time of the trial. The justice has, in effect, found that the defendants were in possession, and that they made “a claim of right to the possession, of said premises.” By the evidence given upon the trial, it appears that the defendants claimed to be in possession under a right, and they put their refusal to remove from the premises on the ground that they were there rightfully. ' The female defendant alleged, at the time the plaintiff sought to regain possession of the premises, her right to the same. In the course of the plaintiff’s testimony, he says:

“ Mrs. Sprague said she had had legal advice, and proposed to stay there, if she had to do it by force. They said I had no right there, and ought not to try and get it away from them. Asked Mrs. Sprague what kind of a title she had of the place. She said she had a paper signed by Jacob Lowman.”

It appeared by the evidence that Jacob Lowman was the former owner of the premises, and was the party from whom the plaintiff claimed to derive title.

It seems that the doctrine laid down by Andrews, J., in Bliss v. Johnson, 73 N. Y., 534, is applicable to the case in hand. In the course of that opinion, he says:

“ The defendants entered upon the land during the absence of the plaintiff, peaceably and without force, and from that time they were in actual possession, and the possession of the plaintiff was determined. An entry by a stranger, without right, during the temporary absence of the plaintiff, would not have divested his possession, and he would have been justified in removing the intruder by force. But his prior possession gave him no such right as against the defendants. The true owner of land, wrongfully held out of possession, may watch his opportunity, and, if he can regain possession peaceably, may maintain it, and lawfully resist an attempt by the former occupant to retake possession. Nor will he be liable to be proceeded against under the statute of forcible entry and detainer. There can be no wrongful detainer by the true owner, when the entry was both lawful and peaceable."

We think the findings which the justice was warranted to make, and in effect did make, brought the case within the principle just quoted. The premises were in the actual occupancy of the defendants, and the occupancy was hostile, and was under a claim of title; and the plaintiff was not, therefore, constructively in the possession of the premises, according to the rule laid down in Bliss v. Johnson, 94 N. Y., 235. The rule which is applicable to the case before us, we think, is correctly laid down in Alexander v. Griswold, 17 N. Y. Supp. 522; 44 St. Rep., 121. After stating numerous cases, the opinion concludes as follows :

“Respondent Griswold having made a quiet entry and gained possession under a claim of right, the law will not suffer that right to be attacked, except by an action duly brought by the respondent for that purpose.”

It seems that the decision made in this case is not a bar to an action of ejectment. Code, § 2264. The foregoing views lead to the conclusion that the decision of the justice was correct.

Judgment of the county court reversing the justice’s judgment reversed, with costs, and the judgment of the justice affirmed, with costs.


author: Hatch, J. White, J., Titus, C. J.,

text:
    William Englehardt, App’lt, v. Fifth Ward Permanent Dime Saving and Loan Association, Resp’t.

      (Buffalo Superior Court, General Term,

      Filed November 14, 1893.)

    1. Loan associations—Withdrawing members.
    A member of a loan association, on complying with the conditions for withdrawal, ceases to be a member, and becomes a creditor of the association.

      2. Same.
    A provision that such member is to be paid from funds when collected, or the fact that the court may stay, the execution, does not affect his right to have his debt, if due, established by judgment.
    3. Same—Trustees.
    The trustees cannot change his right to be paid equally with others, by a resolution providing for the payment of the claims in the order of perfecting the withdrawals.
    Appeal from a judgment dismissing the complaint.

      BenjaminF. Folsom, for app’lt; Henry W. Brendel for resp’t.
   Hatch, J.

I think this judgment should be reversed, for the following reasons: The articles of a member may withdraw when he chooses, upon complying with certain conditions. These requirements have been complied with by the plaintiff, and he became, when that event happened,^ a creditor of the association, and no longer a member. The association then presently owed him this money, which, by articles of association, he was entitled to receive from it. The fact that he was to be paid from the funds when collected does not change his status, and cannot affect his legal rights. He is still a creditor, his debt is due, and he has the legal right to have that debt established. If the association should fail to collect money, and fail to have funds on hand, is the creditor to be prejudiced thereby, and is the failure to collect to be an answer to his claim, and a defense, when he seeks to assert his rights ? If this is his status, then he can never maintain an action at law so long as the association is without funds in the treasury, and then we have the anomaly of a creditor, with a debt due, denied his legal right. This precise question was the subject of decision by the courts of Pennsylvania, Association v. Silverman, 85 Pa. St. 394; and it was there held, for satisfactory reasons, that the action could be maintained, End. Bldg. Ass’ns, §§ 136, 137, 141, 143, 266. Doubtless, tjie creditor has an equitable right, which may be enforced by appropriate remedies ; but his right is not so limited, nor is his legal right prejudiced thereby. I see no distinction between a case where the statute provides for withdrawal, and where the statute relegates to the association the right of making such provision in its articles. Here the provision in the articles is as broad as the provision of the statute in the Pennsylvania case, and certainly can have no greater force or effect. It is quite likely that, upon proper application, a court would stay the issuing of an execution or the prosecution of, actions, in order to protect the rights of all the members, if such protection seemed necessary, but such fact does not militate against the right of plaintiff to have his claim established by judgment.

When plaintiff’s withdrawal was perfected, funds sufficient were on hand to pay his claim, but there were not sufficient funds on hand to pay his claim and those of other members, who preceded him, in point of time, in perfecting their withdrawal. I doubt much the power of the trustees to provide by resolution, after plaintiff became a member, a preference of payment in favor of members who should first file their claims. To the extent of the amount paid in, each withdrawing member stands upon an equal footing to participate in the fund collected. When the member perfects his right of withdrawal, he is then the equal of any other member who has perfected such right, and is entitled to be paid. It is here that the resolution becomes operative, for it creates a preference in favor of those who have first perfected their withdrawal. It has been held that such a rule was inoperative when the association had ceased to be a going concern, In re Blackburn & Dist. Ben. Bldg. Soc, 24 Ch. Div. 421; In re Sunderland, etc. Bldg. Soc., 24 Q. B. Div. 394; and, bv implication, that the rule found force when the society was solvent. But in both of these cases the rule was in existence, as part of the by-laws, when the association was formed. It, is well settled that it is not within the power of the trustees to destroy the equality of shares in a stock company, or to take away a right which originally existed: and this even though the power exists to amend, alter, or repeal bylaws. Kent v. Quicksilver Mining Co., 78 N. Y. 159. In the present case, plaintiff’s original right was to be paid equally with all others, when his withdrawal became perfected. By the operation of the resolution, his right is postponed, and others preferred. This is something more than a mere regulation. It is the creation of preference in payment where all are equal. This right to be paid equally with the others is a substantial right, and, when the withdrawal is perfected, all persons therein must be.treated alike; and a resolution which gives the whole fund then to one, in exclusion of the others, is the destruction of such right, which I believe to be beyond the power of the trustees to accomplish. Association v. Lewis, 1 Colo. App. 127; 27 Pac. Rep. 872. In either view, the judgment appealed from must be reversed.

White, J.,

concurring. I am in favor of reversing the judgment appealed from, for following reasons: Immediately upon the withdrawal by the plaintiff from the defendant, as a shareholder therein, the relation between him and the defendant became that of debtor and creditor. His claim against the defendant is an unliquidated one, and the plaintiff is entitled to prosecute his claim to judgment, within the principle laid down in §§ 142 and 148 of Endlich’s Law of Building Associations, and the cases there cited.

Titus, C. J.,

dissenting. This is an appeal from the municipal court of Buffalo, from a judgment rendered in favor of the defendant against the plaintiff. The action was brought to recover $187 which the plaintiff had deposited with the defendant during the period of two years prior to October, 1892. The defendant corporation was organized under chapter 122 of the Laws of 1851, entitled “An act for the incorporation of building, mutual loan and accumulating fund associations,”' on the 27tli day of February, 1890. It adopted articles of association and by-laws to regulate the business of the corporation, and the same were duly filed as provided by statute. On the 4th day of May the plaintiff subscribed for 10 shares of the stock of the corporation, and became a member thereof; and up to October 6, 1892, he had paid in as dues, $187. He received no loan from the association, but allowed his dues to accumulate. In October, 1890, a rule or by-law was adopted by the defendant that persons withdrawing from the association should be paid in the order in which their applications for withdrawal were filed. At the time the plaintiff filed his application, there were then 78 applications for withdrawals by members on file. These applications for withdrawals amounted to $8,500, and at the time of the trial of this action the association had paid from the dues of its members $6,671.74, leaving something less than $2,000 unpaid. The association is solvent, and will eventually pay all of its shareholders the full value of their shares. The act of-1851 authorizes corporations organized under it to make articles of association, among other things, regulating “ the transfer or withdrawal of shares.” , Section 10, art. 4, of the articles of association, pro. vides that “ members who have received no loan may withdraw at any time by giving at least one week’s notice to that effect. The dues actually paid, together with such accrued profits as the directors may deem prudent for the interest of the association, will be refunded to them when the necessary funds are collected.” It appears that the necessary funds have been collected, or at least a sufficient sum to pay the amount due the plaintiff since his notice of withdrawal was served, but they have been used in paying the claims of members who served notices of withdrawal before the plaintiff, and in the order of the service of such notices. The question is whether the plaintiff is entitled to recover his money while there are yet outstanding claims of other members, who gave the notice of withdrawal before he did. It is claimed by the plaintiff that when he served his notice of withdrawal, as he had a right to do, he ceased to be a member of the association, not subject to pay dues, nor to any of the advantages or liabilities of a member, and sustained to the association the relation of creditor, only. This is undoubtedly so, but, in the proceedings to enforce his claim, he is still subject to the articles and by-laws of the association. When he became a member, the bylaws and articles of association became a part of his contract of membership with the defendant, and to that extent he is still subject to the agreement which he entered into; and his claim must be enforced, if enforced at all, as a member of the association, with the agreement still binding upon him. Livingston v. Lynch, 4 Johns. Ch. 573 ; Clearwater v. Meredith, 1 Wall. 25. The articles of association provide that the sum which he has paid for dues shall only be paid him when the necessary funds are collected, and that he shall be paid in the order of the filing of his notice of withdrawal. It would therefore seem that, in good conscience, he should abide by the laws of the association of which he is a member, and which form a part of his contract.

It is not questioned that the by-laws were regularly enacted at a regular meeting of the association, in conformity with all legal requirements. It is claimed, however, by the plaintiff, that this particular by-law was not in force when he became a member, but was enacted after that time; and it is said that, as he did not subscribe it, he is not bound by it. By-law 1 provides that “ the board of directors may at any time make such by-laws as are deemed advisable for the management of the business of the association.” Section 3 of the act of 1851 provides that “ corporations organized under this act shall possess the powers and privileges and be subject to the provisions of the third title of chapter eighteen of part one of the Revised Statutes; ” and by - § 1 of that title it is provided that such corporation may “ make by-laws, not inconsistent with any existing law, for the management of its property and regulation of its affairs.” This power to make reasonable and proper by-laws is probably not disputed, but it is claimed, somehow, that the plaintiff is exempt from the operation of the by-laws, and that they cannot or should not be enforced against his claim. It seems to me that there can be no doubt that the members of the corporation are bound by such reasonable by-laws as it is authorized to make. Paine, in his work on Building and Loan Associations, at page 12, says :

By assuming the relation of member, he contracts to fulfill all the provisions contained in the articles of association, and amendments thereto, and he is bound by them, whether he has actual knowledge of their contents or not.”

And on page 22 the same author says:

“ When a member has given notice to the association of his intention to withdraw, and after service of the notice the association amends its by-laws, which materially prejudices the claim of the withdrawing member, such amendments are not applicable to the withdrawing member, and in no manner affect his claim. Membership, with all its rights and liabilities, ceases on the service of the notice of intention to withdraw.”

It has been held that it is not essential that a person should subscribe the original articles of association. He may become a member after the articles are subscribed and filed, yet he is bound by them as fully as if he had subscribed the original articles of association. Concordia S. & A. Association v Read, 93 N. Y. 474. It would seem to need no argument to prove so plain a proposition, because, if it were otherwise, only the few who are the incorporators could become members bound by the articles of association and by-laws. If the by-laws had been amended after the plaintiff's notice of withdrawal had been given, no question could be raised that the by-law providing for the payment of claims in the order of the service of the notice of withdrawal would not affect the right of the withdrawing member, for by the act of withdrawal he ceased to be a member, and his rights and liabilities must be measured by the law of the association as it was at the time of his withdrawal. It may be claimed that the statute does not confer the necessary power upon the association to make the by-law, It is certainly a necessary rule to establish that members should be paid according to the priority of notice of withdrawal. The provision of the authorizing the withdrawal of members provides that “ members who have received no loan may withdraw at any time by giving at least one week’s notice to that effect. ,The dues actually paid, together with such accrued profits as the directors may deem prudent for the interest of the association, will be refunded to them when the necessary funds are collected.” If no such provision existed, an action at law could be maintained by the last member who served the notice; and the accumulated funds could be taken by him, instead of the diligent one, who had, perhaps, long before served his notice. The design of the statute is that these associations shall continue for the benefit of their members, and to say that a by-law, equitable to all members, designed to promote the continuance of the association, and prevent the accomplishment of the very object of the - statute is not a reasonable and proper exercise 'of the power conferred upon the association, is to hold that the law defeats itself; that'such associations are at the mercy of nonborrowing stockholders. I cannot assent to this view of the law, and have no ■doubt that ample power exists, under the statute, to enact the by-law. If this view is correct, the plaintiff cannot recover, for the obvious reason that there is no fund, out of which his claim can be paid, and this fact is thematerial fact or in his right to maintain the action. It is a condition precedent to his right to recover. The association does not agree to refund the money until the necessary funds are collected,and that event has not happened. Consequently, his debt is not due, and no action can be maintained upon a claim until the- party has the right to enforce it by judgment and execution. It cannot be said to be a hardship to him. He went into the association, presumably, with the full knowledge of the articles of association and by-laws. His position is not different from the other members. They were only required to pay, 10 cents a week on each share. All of the members, probably, understood that their money could not be paid them until it was collected in the manner provided by the statute and articles of association. There is no way in which collections can be enforced by the association against its members more quickly than the law points out. If all may sue and recover judgment without there being a fund, as contemplated by the articles of association, to pay claims, then all may enforce their judgment by execution, or by the appointment of a receiver of the corporation, and thus utterly defeat what was designed by the statute to'be a beneficent law, enacted to aid the poor people in acquiring homes, or accumulating out of their savings enough to support them after they can no longer labor to support themselves. This view of the law, that the plaintiff cannot maintain this action, has been held in a number of cases. In one case, the plaintiff, a stockholder of an association, sued to recover the amount which had been paid in on his stock under a law permitting stockholders to withdraw after due notice filed, and to receive the amount paid in, with a proviso that no more than one-third of the funds in the treasury should be appropriated to demands of withdrawing stockholders without the consent of the directors. The court held that the plaintiff could not maintain his action without proving that the necessary funds were in the treasury, and that the directors consented to the application of the fund to the payment of his claim. Association v. Kerr, Tex. Sup. 13 S. W. Rep. 1020. I have not been able to see this case reported in full. It is briefly reported in the American Digest for 1890, from which the above statement is taken. In another case, where a building association adopted a rule that “on and after the expiration of the first twelve months, any member may withdraw the subscription money which he may have contributed with such an amount of interest as may be determined by the committee. * * * And, should more than one member give notice to withdraw at one time, tho members so giving notice shall be paid in rotation, according to the priority of notice; provided, always, that the said society shall not be obliged to make such payments as aforesaid until they have sufficient funds in hand for that purpose, and also to meet the then existing liabilities of the society,"—it was held by the court that where the was and known to be in that condition at the time of giving the notice of withdrawal, such a rule had no' application to the case, but that it did apply to cases maturing before the society was known to be insolvent. In re Sunderland, etc., Bldg. Sec., 24 Q. B. Div. 394. These cases go upon the theory that the conditions contained in the articles of association and by-laws, when the society will pay, have not arisen, and that such conditions were precedent to the right of withdrawing members to maintain an action. I have examined the case referred to in the plaintiff’s brief. Association v. Silverman, 85 Pa. St. 394. The statute of that state is similar to our own, but there was no provision in the by-law for priority of notice, as in the case under consideration. The court there held a member might maintain his action. And it was intimated in O’Rourke v. Association, 93 Pa. St. 308, that the judgment might be stayed by the court until funds had accumulated so as to authorize the payment according to the by-laws. I do not think these cases present the law as it is in this state, as they are not in harmony with the spirit of the statute governing these associations. I much prefer to follow the rule adopted in the other cases. It would be a most remarkable condition of things if the 78 members who served notices in this case could maintain actions, and then be stayed by order of the court until such time as the funds provided for by the by-laws of the association had been collected. Nothing would be gained but the accumulation of unnecessary costs and expenses to be borne by the association. I think, therefore, in the absence of any authoritative construction of the statute by the courts of this state, that the interests of all parties concerned will be best conserved, and the object of the statute best attained, by following the law as laid down in the Texas case. The judgment should therefore be affirmed with costs.