author: Hardin, P. J.

text:
    The City of Syracuse, App’lt, v. The Glenside Woolen Mills, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Condemnation proceedings—Inspection of premises.
    Chapter 291, Laws of 1889, relating to the taking of the water of Skaneateles lake for the water supply of Syracuse, contains the provision that “ the hoard, its officers, agents and employes are authorized to enter upon, the lands or waters, for the purpose of making such surveys, examinations and inves-tigations as shall seem to them necessary to the faithful performance of their duties.” Feld, that this provision did not confer upon the court power to compel a party to permit an examination by experts of buildings and machinery which are not to he taken by the condemnation proceedings, to the end that such experts may give evidence before commissioners who are to assess the value of the water rights of such party and ascertain the compensation which ought to he made him.

      Appeal from an order of the Onondaga special term, made October 23, 1893, in condemnation proceedings, instituted by the plaintiff to acquire water and water rights of the defendant.

      George K Kennedy and G. L. Stone, for app’lt; Franlc Hiscock and George Barrow, for resp’t
   Hardin, P. J.

It is stated in the order that the motion was “ denied on the sole ground that the court has no power at common law, or under the statute, chapter 291, Laws of 1889, to compel the defendant to permit plaintiff’s experts to examine the mill in question or its contents, for the purpose above named,” to-wit, “to give evidence of the value of the same before commissioners appointed to assess the damages.” The petition was made a part of the moving papers used at a special term. By the petition it appears that Skaneateles lake is situated some seventeen miles south-westerly from the city, and is a body of fresh water about fifteen miles long; that it is “ a proper and desirable source of supply from which to obtain water for the uses of the city of Syracuse and its inhabitants; that it has been duly and finally selected and determined upon as the proper and only adequate and available, souree for water supply ; that chapter 291 of the Laws of 1889 and chapter 314 of the Laws of 1890 were passedthat in order to obtain a suitable and adequate reservoir and source of supply * * * and in order to comply with the terms and conditions of the Laws of 1889 as amended by chapter 314 of the Laws of 1890, it is necessary that the city * * * shall increase the storage capacity of said lake sufficient to store therein all the ordinary flow of its water shed, and shall store therein, divert and draw therefrom, such quantities of water as from time to time the uses of said city and its inhabitants may require, and shall withhold in said lake and from the outlet thereof, any and all waters heretofore accustomed to flow therefrom and therein, * * * and which shall not be required for the Brie canal; it is also stated that the defendant “ as owners, lessees * * * and otherwise of and upon concerning certain parcels of land abutting, adjoining, and contiguous to the outlet of Skaneateles lake or some part, have or claim to have some right, title or interest of, in and to the waters of Skaneateles lake and the use thereof, as the same have hitherto been accustomed to flow from said lake through said outlet, and along, over, upon and contiguous to ” this parcel of land. The petition sets out a description of the lands owned by defendant and states “ the value of the rights, title and interest of, in and to the waters of Skaneateles lake and the use thereof, as the same have been accustomed hitherto to flow in said outlet, and as the same might flow therein hereafter, but for the proposed action of the plaintiff in storing, obtaining, using and diverting the same for the purposes aforesaid, which said water rights are or are claimed to be appurtenant to said parcel of land" so owned by defendant. The petition further states: “ The plaintiff asks to condemn and acquire all and several, the l’ight, title and interest of the defendant * * * of, in and to the waters of Skaneateles lake and its water shed, as the same flow or might otherwise flow in the outlet of said lake, and upon, along, over, contiguous and appurtenant to the land and premises adjacent to said outlet ” described in petition belonging to defendant Following such description is a statement of “ the value of the water rights sought to be condemned and acquired which are appurtenant to the above described property.”

It is alleged also “ That the property hereby sought to be acquired is necessary and requisite to the acquiring, constructing, improving, controlling, maintaining and operating the system of water works contemplated by the laws hereinbefore referred to.” The prayer of the petition “ demands that it may be adjudged that the public use requires the condemnation of all the right, title and interest of the defendant * * * of, in and to the waters of Skaneateles lake and its water shed, as the same flow in the outlet of said lake and upon and along, over, contiguous and appurtenant to” the land described, owned by defendant, and in which it has an interest, except so much thereof as may be permitted to flow through “ the outlet thereof for the purpose of supplying the Erie canal.”

From the quotations and statements of the petition it seems manifest that the plaintiff is seeking to condemn and take from the defendant its water rights and water privileges, and that the petition is not drawn with a view of condemning the buildings, machinery and lands on which they are situated, belonging to defendant.

It is thus made apparent that the plaintiff seeks an order requiring the defendant to permit an entry into buildings and upon lands which are not to be condemned and taken under the petition rñade when the proceedings were instituted. Cases in which the courts have refused to require defendants to submit property to an inspection seem to be applicable.

In Newham v. Tate, Arnold, 244, and Turquand et al. v. The Guardian of the Strand, 8 Dowling, 201, an order that an examination of property of defendants be permitted was refused. In so far as the motion was denied, .because, at common law, the court was not authorized to grant it, we think the special term was sustained by authority. 129 N. Y., 50; 41 St. Rep., 382 ; McQuigan v. D., L. & W. R. R. Co., 141 U. S., 250; Union Pacific Railroad Co. v. Botsford, 4 Hun, 132; Minor v. Gardner, 16 N. Y. Supp., 916; 42 St. Rep., 672; Downing v. McAleenan, 29 Hun, 641 ; Cook v. Manufacturing Co., 19 Abb., 391; Ansen v. Tuska, Code Civ. Pro., § 3382.

The act of 1889 contains the following language: “The board, its officers, agents and employes are authorized to enter upon the lands or waters for the purpose of making such surveys, examinations and investigations as shall seem to them necessary in the faithful performance of their duties.” We are not disposed to construe this provision of the statute as indicative of an intention of the legislature to confer upon the court power to compel a party to permit an examination by experts of building and machinery which are not to be taken by the proceedings, to the end that such experts may give evidence before commissioners who, as in this case, are to assess the value of the water rights of the defendant and “to ascertain the compensation which ought justly to be made to the defendant ” for the “ rights and property to be taken.”

We think the motion was properly denied and that the order should be affirmed with costs.

Order affirmed, with ten dollars costs and disbursements.

Martin and Merwin, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Ellen Pickert, Admr’x, App’lt, v. Frederick Windecker et al., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Partition—Conveyance or interest op heir.
    P., by his last will bequeathed to his son B. sixty eight acres of land, for his life, and then in cáse B. should have a child or children living at his death, lie bequeathed the said land to them, share and share alike; B. died leaving six children of which S. was one of them. Some years prior to E.’s death S. and one W. executed and acknowledged an instrument which recited P.’s will, and then declared that S. “desires to sell and dispose of his interest in said real estate,” now, therefore said S. and said W. enter into the following covenant: S., in consideration of the sum of $500, “ does hereby sell, set over, transfer and assign all his right, title and interest” in said land to W. and will immediately on the death of his father make and deliver to W, a good and sufficient deed thereof, “ and, whereas, there is extreme risk in the advance of so much money upon -such a contingent interest, and in order to provide for and secure W. for the repayment of the principal sum ” S. agrees to sell, assign and transfer to W. a policy of life insurance. In an action to partition the sixty-eight acres, Held, that the above instrument conveyed all S.’s right, title and interest in the land to W.
    Appeal from a judgment entered upon the report of a referee in Herkimer county. Solon S. Pickert, after the appeal was taken in this case, died, and an order on the 14th of January, 1893, which was amended by an order of the special term on the 27th of Jannary, 1893, was made continuing the “ action and appeal herein, in the name of Ellen Pickert as administratrix of the goods, chattels and credits of Solon S. Pickert, deceased, as plaintiff and appellant, against the parties defendant and against Ellen Pickert individually.”

      George C. Garter, for app’lt; G. J. Palmer and Devendorf & Smith, for resp’ts,
   Hardin, P. J.

In 1891 this action was commenced to partition certain lands, described in the complaint, situated in the town of Fairfield, consisting of some sixty-eight acres of land, and in the complaint it was claimed that Solon S. Pickert, then a lunatic, was the owner of one undivided sixth of the lands sought to be partitioned. On the 12th of Jannary, 1837, John Pickert was seized and possessed of the lands described in the complaint, and on that day died leaving a last will and testament, which was probated. He left several children who were provided for by his will. Emilius Pickert, one of his sons, was provided for in the testator’s will as follows: “ I give and bequeath unto my said other son, Bmilius, sixty-eight acres of land, situate in the town of Fairfield, west of the said homestead lot and on the west side of the Fair-field road, to have and to hold to him for and during his natural life, subject also to the use thereof, as above expressed, for one year after my decease and to the charges for half of my debts as above stated. ” The provision just quoted related to, and carried the lands described in the complaint. The said will also contained the further provision: “ In case my said son, Bmilius, should have a child or children living at his death, then in that case, I give and bequeath the aforesaid sixty-eight acres of land bequeathed to him during his life, to such child or children, if living, at his death, and to their heirs and assigns forever, to have the remainder after his death and not before, and in case my said son shall die having or leaving no children living or in venter sa mere, then such remainder of said lands and premises, I give, devise and bequeath unto all my other children above named and mentioned and their respective heirs, in case any of them be dead such share as would come to their parents, if living, at the death of my said son as tenants in common and not as joint tenants in fee simple.”

After the death of John Pickert and the probate of his will, his son, Bmilius Pickert, entered into possession of the sixty-eight acres of land “.as a devisee under said will.” It was admitted at the trial “ that he had a wife and six children, the issue of this marriage, and that Bmilius afterwards died, October 8,1889, leaving no widow, but leaving the following children, his only heirs-at-law him surviving, to wit: John 0. Pickert, Julius Pickert, Lottie B. Putnam, wife of Arthur Putnam, Elzina Bishop, wife of Lyman Bishop, deceased, Med ora Bohan, wife of Patrick Bohan, and Solon S. Pickert.” It is obvious from the language of the will of John Pickert, that his son Bmilius took only a life estate in the lands in controversy: and that “ the remainder after his death ” vested in his children by virtue of the terms of the will already stated and such vested remainder was alienable and the interest of each child would pass by conveyance thereof. Lawrence v. Bayard, 7 Paige, 70; Mead v. Mitchell, 17 N. Y., 210; Chrystie v. Phyfe, 19 id., 344; Miller v. Emans, id., 384; Moore v. Little, 41 id., 66; Woodgate v. Fleet, 44 id., 1; and note at page 20; Taggart v. Murray, 53 id., 238; Smith v. Scholtz, 68 id., 61; Sheridan v. House, 4 Keyes, 569.

In Beardsley v. Hotchkiss, 96 N. Y., 213, the court in speaking of a limitation over which created a contingent future estate and expectancy, said that “ Before the Bevised Statutes the limitation would have been called an executory devise. Now it is more properly called a contingent remainder. Future estates are contingent, while the person to whom, or the event upon which they are limited to take effect, remains uncertain. 1 B. S., 723, § 18 ; and such estates are descendible, devisable and alienable in the same manner as estates in possession. 1 B. S., 725, § 35. In the share given to each child, all the other children, therefore, had a contingent remainder, which they could convey; ” citing Miller v. Emans, 19 N. Y., 384; Moore v. Little, 41 id., 66, and other cases. Terry v. Wiggins, 47 id., 512.

In January, 1875, John W. Windecker resided near the lands in question, and owned lands adjacent thereto, and according to the testimony in the appeal book he had an interview with Solon S. Pickert in respect to his interest in the sixty-eight acres, and it is inferable that they called upon the late Major Link to draw an instrument in respect thereto, which instrument was executed by them, and was acknowled on the 27th of January., 1875, and subsequently recorded in the clerk’s office of Herkimer county on the 22d day of November, 1875. The instrument in question starts out with a recital referring to the will of John Pickert, and the probate thereof, and a declaration that the testator devised to his son, Emilius Pickert, the sixty-eight acres in question, “ to have and to hold said sixty-eight acres during his natural life, subject to certain other provisions in said will contained.” The instrument contains a further declaration “by a subsequent clause and provision in said will the testator further provided that in case his son, Emilius, should have a child or children living at his death, that in that case I give and bequeath the aforesaid sixty-eight acres of land to such child or children, if living at his death, and to their heirs and assigns forever, to have the re-remainder after his, said Emilius, death.” The instrument then contains a further declaration that Solon S. Pickert “ desires to sell and dispose of his interest in said real estate described,” and then the instrument continues as follows: “ Now, therefore, said Solon, the party of the first part, and John W. Windecker, of Fairfield, Herkimer county, state of New York, of the second part, enter into the following covenant and agreement, as follows: The said party of the first part, for and in consideration of the sum of five hundred dollars to him paid by said Windecker, the receipt whereof is hereby acknowledged, does hereby sell, set over, transfer and assign all his right, title and interest in and to said sixty-eight acres of land, and all his share, right, title and interest to the said real estate, or any part thereof, of whatever name or nature, to said Windecker, his heirs and assigns forever, and the said party of the first part, in consideration of said sum, for himself, bis executors, administrators and heirs, doth hereby also covenant, promise and agree to and with said Windecker, his legal representatives, heirs and assigns, that he will immediately upon the death of his said father, Emilius Pickert, make and deliver to the said Windecker a good and sufficient deed of conveyance, with the usual covenants of warranty of all his share, right, title and interest in the said sixty-eight acres of land or any part thereof, the title of which shall descend to him by virtue of said will in case of his father’s death.” A careful consideration of the language found in the instrument, in connection with the circumstances disclosed by the evidence has left upon our minds no doubt that the intention was that Solon Pickert should convey to Windecker his interest in the premises and that it was the inten-' tion of Windecker to acqhire the same by the payment of $500 therefor; as we have seen by one of the sentences already quoted there was a declaration in the instrument that Pickert “ desires to sell and dispose of his interest in said real estate described ”; and to effectuate that intention we think the words “ doth hereby sell, set over, transfer and assign all his right, title and interest in and to said sixty-eight acres of land, and all his share, right, title and interest to the said real estate or any part thereof, of whatever name or nature, to said Windecker, his heirs and assigns forever,” were used to, and that they were ample and adequate to carry the right and title of Solon in the,premises derived by him under his father’s will. Hunt v. Johnson, 44 N. Y., 27. Nor do we think the subsequent language found in the instrument can be construed to defeat the force and effect of the words just given as words of conveyance. It was known to the parties at the time the instrument was executed that there was a contingency relating to the interest of Solon in the lands and that the contingency would remain until the death of his father. Apparently the parties, to guard against that contingency, and to reimburse Windecker in case there was a failure of title, subsequent language was used in respect to a return of the consideration in the event of the failure of title. Favoring this idea are the words “ And, whereas, there is extreme risk in the advance of so much money upon such a contingent interest, and in order to provide for and secure the said Windecker for the repayment of said principal sum, with interest, and expenses and disbursements which may be made by him under the stipulations of this contract, and interest on said disbursements "x" * Now, therefore, the said party of the first part hereby further covenants, promises and agrees to also sell, assign, transfer and set over to said Windecker the aforesaid policy of insurance.

We see nothing in the language just quoted, or in the subsequent language of the instrument, that should be held to defeat the language first used which "was sufficient to convey the interest of Solon, in case he survived his father, to the grantee. Being of the opinion" that the instrument operated as a conveyance to Windecker, it follows that he was entitled to hold such interest in the lands absolutely upon the death of Emilius Pickert, and, therefore, Solon S. Pickert had no title to the premises or interest therein at the time of the commencement of this action. We are not called upon in the determination of the questions now before the court to indicate what rights, if any, Solon had in the policy of insurance in virtue of the stipulations found in the instrument executed by him. Although he made an absolute assignment of the policy it is insisted that the provisions of the instrument of January, 1875, may be read as giving only such interest in the policy to Windecker as was necessary to secure him against the contingency of the loss of the title of the property, and to reimburse him for any moneys that he might advance or did advance in payment of premiums upon the policy. Upon those questions we are not called upon to pass in determining the question of the plaintiff's right to a partition of the real estate. The foregoing views lead us to approve of the conclusion of law stated by the referee “that at the time of the commencement of this action said Solon S. Pickert had no title or interest in the lands mentioned in the complaint.”

(2) It seems that before the final submission of the cause to the referee the learned counsel for the appellant discovered, as appears by. his affidavit sworn to the 22d of August, 1891, that according to the doctrine laid down in Burnet v. Bookstaver, 10 Hun, 481, and Skinner v. Tibbitts, 13 Civil Pro., 370, the action ought to be in the name of the lunatic by his committee, instead of in the name of the committee, and applied to the court for leave to amend the summons and complaint, which leave was granted by an order made on the 1st of September, 1891, at special term held in Herkimer county, and the summons and complaint as amended and served, with notice of motion were ordered “to stand without further service of said proposed amended summons and complaint,” and the defendants were given twenty days to amend their answer tó the amended complaint.

As there is no appeal from that order before us, we must assume that it was properly granted and the right to make such amendment seems to be within the power of the court by the closing language of Mullin, P. J., in Burnet v. Bookstaver, supra. We must regard the action submitted to the referee as an action brought in the name of the lunatic. By the . case it appears that the trial commenced before the referee on the 19th day of July, 1891. After the plaintiff’s evidence was put in and several admissions and concessions were made the case states “plaintiff rested subject to right to supply papers hereinbefore mentioned.” Defendants then proceeded to put in evidence and then the case states : “Evidence closed,except as to reservation as hereinbefore stated. Adjourned to Monday, July 25, 1891, for argument.” Then the case states that July 25, “ Case called pursuant to adjournment,” and the appearance of counsel for the respective parties was entered; thereupon “ plaintiff made a motion to adjourn so as to be at liberty to make a motion to amend, etc.” The motion was granted and the case was adjourned to September 8th. Tlie case then states, viz.: “ Case called October 21st, 1891. * * * Plaintiff does not appear.” Although the counsel for the plaintiff did not appear before the referee the case was “ adjourned to November 6th, 1891, at 10 A. M., at office of Mr. Palmer.” It appears in the appeal book that “November 6,th, 1891, case called at Mr. Palmer’s office; attorneys for the defendant appear and the attorney for the plaintiff appeared.” It also appears that October 21, 1891, the referee designated November 6, 1891, as the time, and Mr. Palmer's office as the place for the next hearing, and thereupon the defendant’s attorney gave notice to the plaintiff’s attorney that the cause “ will be brought to trial ” before the referee at the time and place designated, to wit, November 6th, 1891, at 10 o’clock.” Affidavits are inserted in the case showing the service of the notice of hearing on the plaintiff’s attorney by the defendant’s attorney. The plaintiff’s attorney applied for an adjournment, and, among other grounds stated, that the plaintiff’s attorney had not noticed the cause for hearing, and that the cause is not regularly at issue and that one of the counsel for the plaintiff “ is now engaged upon a trial elsewhere whose attendance is deemed necessary on the trial of this cause.”

After such application was made the case states: “ The referee does not deem the foregoing legally sufficient to entitle the plaintiff to a postponment of the trial as a matter of right, unless consented to by the attorneys for defendants, who have regularly noticed the trial for this time.1’ Defendants state: “ That they have no objection to further evidence being offered by plaintiff.’5 In the judgment entered March 31, 1892, the following words appear, “ and the evidence having been closed and the case having been submitted to the referee, upon written briefs herein,filed by the plaintiff’s attorney herein; and the defendant’s attorneys having respectively filed their briefs herein, and the said referee having made his report, wherein he finds and orders that the plaintiff’s ■complaint be dismissed * *' * and the said referee by his report aforesaid, having ordered judgment accordingly ” with two bills of costs. We think the position taken by the appellant “ that the report of the referee and the judgment are void ” ought not to be sustained; nor the position taken by the appellant “ There was no proper evidence offered on the part of either the plaintiff or the defendants or received by the referee after the order was granted.” Nor do we think the position of the appellant “ that there was no evidence to support ” the findings of the referee can be sustained.

Our attention is called to Wood v. Swift, 81 N. Y., 31. In that case an order was granted bringing the parties as defendants and directing that the trial continue before the referee “the same as ■if the parties added had been parties from the beginning of the -action.” In that case there was an appeal from the order and it was held the order was too broad and the new party had the right to be heard as to the appointment of a referee, and he had the right to be present when the witnesses were sworn and examined. In ■the case in hand it appears that after the order of September 1st was made, the plaintiff appeared before the referee and according to the recitals and the judgment submitted, argument and points, ■and under the circumstances disclosed by this record ought not to be permitted to overturn the ruling of the referee refusing further ■adjournment. It may be observed in this connection that the defendants voluntarily consented before the referee to allow the ■plaintiff to put in further evidence. It must be assumed that the plaintiff .was satisfied to submit the case upon the evidence which was then before the referee, inasmuch as, subsequent to the proffer of _ the defendant, the plaintiff submitted arguments and written points to the referee.

(3.) We see nothing in the record to indicate that the referee ■erroneously exercised his discretion in respect to the award of costs to the defendants. Code Civil Procedure, § 3229 ; Hodgkins v. Mead, 25 St. Rep., 937.

Judgment affirmed, with one bill of costs to the respondents-against the appellant

Martin and Merwin, JJ., concur.


author: Hardin, P. J. Merwiií, J., (dissenting.)

text:
    Horace G. Prindle, App’lt, v. The Washington Life Insurance Company, Impl’d, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Corporations—Liability bob services.
    Where persons, either officers in fact or agents; assume to act in behalf of a corporation, employ a person to perform a service for the corporation and it is performed with the knowledge of the directors and principal officers of' corporation, and such corporation receives the benefit of such service without objection, the corporation is liable under an implied assumpsit.
    2. Same—Attorneys.
    Certain life insurance companies each having a policy of insurance on-the life of one N., after liis death combined to resist payment thereof, contributed together a fund to be used in contesting the claim, and appointed a committee to disburse the said fund, this committee met plaintiff, an attorney, retained him as local counsel in the several suits on the policies, and he rendered valuable services in the preparation for trial and trial of the only one of said suits brought to trial. Plaintiff brought an. action against all the said companies for the value of the services rendered. Only one defendant was served, and although the facts as above were found by the referee, he found as conclusions of law “that evidence of refusal to make a proper assessment under the resolution of the meeting of. the companies is a condition precedent to plaintiff’s recovering from defendant,” and that the complaint should be dismissed. Held, that by reason of such recommendation a new trial should be granted.
    (Merwin, J., dissents.)
    Appeal from a judgment entered on the report of a referee in Chenango county. Action to recover for professional services alleged to have been rendered for the fourteen defendants mentioned in the pleadings. The summons and complaint were served upon the respondent, and the answer of the defendant, who-is the respondent here, was the only answer served. The issue thus joined was referred and a trial had and a judgment ordered in favor of the respondent against the appellant, with costs.

      Horace 0. Prindle, in person and S. Hanford, for app’lt; Foster & Thomson, for resp’t
   Hardin, P. J.

Defendant’s answer admits that the plaintiff is and was an attorney residing and having an office in Norwich, Chenango county, and engaged in the practice of his profession, and that the defendants mentioned in the pleadings in this action are corporations doing a life insurance business. It also admits-- “ That each of the said defendants had prior to the month of November. 1878, issued a policy of insurance covering the life of one Walton Dwight, who died in the city of Binghamton, Broomecounty in this State on or about the 15th day of said month of November, 1878.” In the plaintiff’s complaint it is alleged “ That after the death of the said Dwight the defendants _ combined to resist the enforcement of claims upon their said policies.” The complaint alleges that in April, 1883, the defendants “ retained and employed this plaintiff in bis professional capacity to-act as-local counsel at Norwich, aforesaid, the said county of Chenango being the county in which several suits on policies in the defense of which said defendants were interested as aforesaid, were then pending.” The complaint then avers that the plaintiff under said retainer, and prior to the month of March, 1884, “ rendered valuable professional services to said defendant in certain interlocutory proceedings before trial, and in aiding in the preparation for trial, and trial at circuit * * of one of the suits brought by the personal representatives of the said Walton Dwight, deceased, on one of said life policies, * * being the first and only one of the said suits for the defense of which the said defendants had entered into said combination as aforesaid which was ever tried, and in proceedings subsequent to trial, such services necessarily occupying upwards of sixty days of plaintiff’s time, to the exclusion of his other professional business.

That the reasonable value of such services was the sum of twelve hundred dollars. That said plaintiff also rendered other services during said period under said retainer in connection with other suits against said defendants then pending.” It also avers that he paid, laid out and expended moneys upon request. Among other things alleged in the answer is a statement that “ the insurance companies named as defendants in this action contributed together a fund to be used in payment for the obtaining of evidence, the payment of experts and fór such other purposes as might be deemed desirable for their general and common interest, and appointed a committee consisting of "Timothy H. Brosman, who was at the time president of the United States Life Insurance Company, William A. Brewer, Jr., who then president of the Washington Life Insurance Company, John B. Hegeman, who was then secretary of the Metropolitan Life Insurance Company, Jacob L Halsey, who was then vice-president of the Manhattan Life Insurance Company, and B. B. Stoddard, to disburse the said money, which should be paid by each and then the answer contains an averment of a limited authority of the committee as to the expenditure of money. It also “admits and alleges that when sued by the representatives of said Dwight, upon policies issued by it upon his life, this defendant, upon its own responsibility and directly through its own counsel, in August, 1883, wrote to the plaintiff to prepare papers and apply to the court for an order putting the trial of the said case against it over the termalso, “ this defendant wrote to plaintiff to prepare papers and apply to the court for an order to show cause why a commission should not issue to Pennsylvania to take the testimony in said case against it of certain witnesses residing there.” The answer also alleges that “ for the trouble entailed upon the plaintiff by reason of such correspondence defendant is willing to pay full and reasonable compensation.” The referee finds that the plaintiff was an attorney as alleged, and that the defendants are corporations substantially as alleged in the complaint, and that they had issued policies prior to November, 1878, substantially as alleged in the complaint; and that actions against each company on its policy were commenced on behalf of the personal representatives of said Dwight.

The referee also finds “ that the said defendants, after the death of said Dwight, united in resisting the claims made upon said policies.” He also finds that a committee was appointed by the defendants for the purpose of carrying out their objects; and he also finds “ that the plaintiff had no knowledge in fact of said resolutions,” to wit, the resolutions passed by the defendants at the time they raised the committee. The referee also finds “ that on May 24th and 25th, 1883, plaintiff was present at a meeting in the city of Hew York of the counsel of the various companies; ” and he further finds, “that at said meeting there were present Halsey Fisk, attorney for the Homoeopathic Company; Joseph Loroque, attorney for the Germania Company ; James Thompson, attorney for the Washington Company; Daniel Magone and Timothy H. Brosman, president of the United States Company, and others, and the subject-matter of the said actions so brought against the^defendants were discussed by and between those present, and the employment of plaintiff as local counsel at Horwich aforesaid was then and there talked over, and his opinion asked relative to the various defenses in said actions, and the trial thereof, and plaintiff was at that time paid by said Brosman the sum of $150«as a retainer fee as such counsel, and all services performed by plaintiff as such counsel were performed under such retainer.” The referee also finds “ that the reasonable value of such services was the sum of $1,200. That said plaintiff also rendered other services during said period, under said retainer, in connection with other suits against said defendants then pending; ” that in January, 1884, the plaintiff rendered a bill to Timothy H. Brosman, chairman, etc., for the balance due for services in the Dwight insurance cases.

Plaintiff was sworn as a witness in his own behalf, and detailed the services performed by him at the instance of the defendants in and about the litigation; he stated the value of such services after having given the details thereof, and that he was requested to visit the city of Hew York, and that he attended a meeting held in the office of the defendant, the United States Life Insurance Company, in the month of May, 1883, he says: There were present Mr. Magone; he acted as counsel for the various companies in this combination. Mr. Bronson was there. He was the president of the United States Company. I remember Mr. Thomson being there as the representative of the Washington Life, the attorney for that company. I think Mr. Brewer was also there. William A. Brewer, Jr. Mr. Laroque was also there as the attorney and representative of the Germania Life Insurance Company. Halsey Fisk, the attorney for the Homoeopathic and Metropolitan Companies was also there.” It appears that in that interview a general discussion took place in respect to the “ defenses set up and the evidence to be obtained to maintain them; " and generally as to the fact that the plaintiff was to act .as “local counsel;” and the witness adds: “The whole thing was talked over there. We consulted generally about the points involved, the proof that could be obtained and the probable result.” And the plaintiff produced some correspondence that took place between him and the counsel engaged in the defense, and gave an account of the circumstances attending the trial of the Germania case at the Chenango circuit.

He says : “ The trial occupied thirty days and I was occupied and worked night and day, up to twelve o’clock at night. Thomson was up here as attorney for the Washington Life, till near the close of the trial The committee hired the Marquis dwelling here and had their cooks from Hew York and all the etcetera and lived high, and I met them there every evening for consultation on the case. I had conferences with Mr. Thomson. I looked up decisions here and took them over from my office to the Marquis house, books, etc. I might say here while I think of it, that before the trial came off, not knowing exactly what I was to do on the trial, I examined all the questions of law and made a brief, so as to be ready in any emergency.” After this testimony was given the plaintiff was cross-examined at great length and his case was rested. Ho motion was made for a nonsuit. The defendant called as a witness Mr. James Thomson, who gave his recollections as to the progress of the litigation; the action of the committee; the adoption of the resolutions referred to in the answer of the defendant, and at the close of his testimony the case was rested, no motion having been made for a nonsuit. Exceptions were taken to certain refusals of the referee to find and to the findings made, of fact, as well as of law. Apparently the referee has disposed of the case upon the rule applicable to an executory contract; that the defendants received the professional service of the plaintiff after they had made a common defense of all the actions brought against them, is made apparent by the evidence. It is also made apparent by the evidence that the facts and circumstances disclosed to the plaintiff, and known to him prior to performing the services, were such as to warrant him in the belief that the defendant desired his services as local counsel, and that that desire was communicated to him by persons who assumed to act in behalf of the defendants. That the defendants had knowledge of the services performed by the plaintiff in behalf of the position taken by the defendants against the right of the representatives of Walton Dwight to recover, is quite apparent from the testimony delivered before the referee.

It is also quite apparent that the plaintiff did not know of the special provisions relating to the committee that was raised by the defendants, and that the circumstances brought to his knowledge were sufficient to warrant him in the belief that the defendants had made an arrangement to defend any and all of the actionspending, when his services were solicited. When the proceedings preliminary to the trial took place; when the trial took place, and. in short when the plaintiff’s services were rendered, the defendants must have known that the plaintiff was acting in their behalf for the purpose of furthering their common purpose of making a defense to all the actions. Under such circumstances it seems reasonable that the rule should be so construed as to give the plaintiff a right of action. Hooker v. Eagle Bank of Bochester, 30 N. Y., 86. This action, like Fisher v. LaRue, 15 Barb., 323, was brought upon an executed contract; and in that case it was said by Johnson, J.: “ It is well settled, at least in this country, that where a person is employed for a corporation, by one assuming to act in its behalf, and goes on and renders the services according to the agreement, with the knowledge of, its officers, and without' notice that the contract is not recognized as valid and binding, such corporation will be held to have sanctioned and ratified the contract, and be compelled to pay for the services according to the agreement. Having availed itself of the services and received the benefits, it is bound in conscience to pay, and will not be heard to say that the original agreement was not made by a person legally authorized to contract Ang. & Ames on Corp. 216, 218, Ch. 3, § 8.

Where the contract is still executory, and nothing has been done under it, and the action is to recover damages merely for non-performance, it is for the plaintiff to show a legal contract, binding upon the corporation. But this is not that case. The services have all been, rendered in pursuance of the agreement, with the assent, or, at least, without notice to the plaintiff of the dissent, of the other trustees, and it would be intolerable now to deprive her of her compensation. The law raises the same presumptions against corporations in such cases, as against natural persons.”

In Steam Navigation Co. v. Weed, 17 Barb., 378, it was held that “ a party who has had the benefit of the contract cannot be permitted, in an action founded upon it, to question its validity.”

In Cunningham v. M. S. & F. C. R. R. Co., 63 Hun, 441; 44 St. Rep., 723, it is said : “A corporation may become bound by a contract, express or implied, under the same circumstances as an individual. To make a corporation liable, it is not necessary to show an express resolution passed at a meeting of its directors. Where a party does work or furnishes materials to a corporation under a contract with one assuming to act as its agent, to the knowledge of its officers, without dissent on the part of the corporation, it will be held to have ratified the contract, and to be liable thereunder.” The proposition is supported by numerous authorities cited. When the interview took place in the city of New York with the plaintiff it was in the presence of a representative of the respondent here, and it comes with ill grace from it to insist that after his services were arranged for and the arrangement approved by its representatives, to say that the services should not be paid for by the parties soliciting them. At that interview there were persons present who had authority from all the defendants to aid in the defense of all the actions that were commenced by the representatives of Dwight.

As the referee has found, an arrangement had been made by all the defendants to make a defense of all the actions, and it is apparent that counsel who represented all the defendants took part in the interview had with the plaintiff; and it is further apparent that when the trial took place persons who represented all the defendants in this action were present, and all the defendants had knowledge of the services being performed and performed by the plaintiff under the supposition that he had been employed in behalf of all the defendants, and that his services would enure to the benefit of all the defendants here, to wit, the associated fourteen companies which had agreed to make a common cause of defense against all the claims made by the representatives of the Dwight estate. The facts indicate very clearly, as the referee has found, “ that the plaintiff had no knowledge in fact of the resolutions ” which were adopted when the committee was appointed to further the defense. The'referee, upon evidence which warranted the finding, states that plaintiff’s services so performed were “done for all the codefendants.” Inasmuch as we are of the opinion that the plaintiff’s right of recovery rests upon an employment made by persons assuming to act for and on behalf of the defendants, and that the services were rendered and received by the defendants without any knowledge on the part of the plaintiff of the resolution which had been adopted by the companies, his right of recovery is upon the joint undertaking of the defendants and not upon their several undertaking; therefore, the case of Ludlow v. McCrea, 1 Wend., 228, is not applicable. Respondent relies largely upon Adriatic Fire Ins. Co. v. Treadwell, 108 U. S., 364, 367. That case is unlike the one before us. In that case it appeared that after the insurance companies had formed an agreement to make a defense “ the committee named in it employed the defendant in error on behalf of all the companies parties to it He testified that the agreement was shown to him, and that he accepted the invitation to become the attorney of the companies. The employment was general, no specific terms being fixed, and it is not questioned that it was with full knowledge of the agreement between the companies, and according to the authority conferred by it upon the committee.”

That case was disposed of by the court “ on the ground that no joint liability has been proven.” While in the case before us we are disposed to rest the plaintiff’s right of recovery upon the general principle that where persons, either officers in fact or agents, assume to act in behalf of a corporation, employ a person to perform a service for the corporation and it is performed with the knowledge of the directors and principal officers of the corporation, and such corporation receives the benefit of such service without objection, the corporation is liable under an applied assumsit. Hooker v. Eagle Bank of Rochester, 30 N. Y., 86. We are not willing to assent upon the findings made by the referee and the evidence found in the appeal book, to his conclusion of law “ That evidence of refusal to make a proper assessment under the resolutions, is a condition precedent to the plaintiff’s recovery from the Washington Life Insurance Company, •or any other liability incurred by it under such resolution ”; nor to his conclusion that the respondent “ is entitled to judgment in this action dismissing plaintiff’s complaint with costs.” The foregoing views lead us to order a new trial.

Judgment reversed on law and facts and a new trial ordered, with costs to abide the event

Martin, J., concurs.

Merwiií, J., (dissenting.)

I. am not prepared to concur in the opinion of the presiding justice. The retainer under which plaintiff claims was by the committee and he is, I think, chargeable with notice of the extent of their powers. Martin v. Farnsworth, 49 N. Y., 558. He knew that the interest of the ■ different companies in the litigation was not equal. If the respondent knew afterwards that plaintiff performed services for the common benefit, it had a right to believe that he was doing it under such authority as the committee bad a right to give and under the arrangement for payment as provided for when the committee was appointed. That being so, the authorities as to-implied ratification would not apply. The arrangement between the companies did not authorize a joint liability. Adriatic Ins. Co. v. Treadwell, 108 U. S., 361. The plaintiff bad a right to-be paid but not on the basis of a joint liability. The respondent was not,' I think, liable for the whole. I therefore dissent.

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


text:
    Caroline Bullion, Resp’t, v. Charles A. Bullion et al., App’lts,

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Appeal—Intbelocutoby judgment.
    An appeal from an interlocutory judgment was not authorized prior to-the amendment of § 1349 of the Code by the legislature of 1893, and where such an appeal was taken, although no question was raised by either party as to its regularity, the appeal should be dismissed for lack of jurisdiction to entertain it.
    Appeal from a judgment entered upon the report of a referee in Otsego county. Plaintiff is the mother of the male defendant, and according to the findings of fact fraudulently obtained a transfer of her personal property and a conveyance of her real estate to him, which, by the conclusions of law stated by the referee were void and set aside, and a referee is appointed to take and state the account between the plaintiff and .the defendant, Charles A. Bullion, ‘‘of all matters upon the one side relating to-moneys advanced and expended for or on account of permanent improvements upon said farm and taxes, the payment of debts-against the plaintiff for moneys expended for or on account of her or her husband; and on the other hand account of all property received by the said Charles from his mother and not returned, for the use and occupation of the premises during the time that he has occupied the same, and of all matters that he has received from his mother in connection with, or in said transaction.

      Albert C. Tennant, for app’lts; Fdiclc & Smith, for resp’k
   Hardin, P. J.

Upon the evidence before the referee he found the general features of the relations of the parties to each other prior to the interview which took place in the presence of an attorney who was employed to prepare the papers that had been under contemplation, and referred to in the negotiations had between the plaintiff and the male defendant Upon the evidence, somewhat conflicting, the referee has found in accordance with the testimony delivered by the plaintiff, giving her credence instead of believing the testimony given by the defendant upon the subject of the transfer of the property by the plaintiff to her son.

In Albany City Savings Institution v. Burdick, 87 N. Y., 49, it was said “It is certainly not just that one who has perpetrated a fraud should be permitted to say to the party defrauded when he demands relief that he ought not to have believed or trusted him. Where one sues another for negligence, his own negligence contributing to the injury will constitute a defense to the action ; but where one sues another for a positive, willful wrong or fraud, negligence by which the party injured exposed himself to the wrong or fraud will not bar relief. If the rule were otherwise, the unwary and confiding, who need the protection of the law the most, would be left a prey to the fraudulent and artful practices of evildoers. The doctrine just quoted was approved in Smith v. Smith, 134 N. Y., 65 ; 45 St. Rep., 591, and Landon, J., said of it, viz. : “ It does not, in cases like this, impute inexcusable negligence to that omission of vigilance and care which is procured by the fraud of the wrongdoer.” The referee found expressly “ That Charles A. Bullion, at the same time, was in the prime of life, in full health, and fully understood the nature of the transaction in which he was engaged; knew that the result was to convey to him the fee of said land and the title to all of the property, personal and real, of every description, that belonged to his mother, and that she was left entirely destitute and dependent upon him; and that he was giving her no consideration whatever, further than what was contained in the agreement to support her, and a few privileges mentioned therein ; that he was giving no security for the faithful performance of his agreement, and knew that in procuring said deed of said farm and said transfer of personal property was a fraud upon his mother, and I find from the proof, as a matter of fact, that the said deed and transfer of personal property were fraudulently procured by the defendant, Charles A. Bullion.” This finding is contested very stoutly by the appellant and it is insisted that many facte and circumstances are disclosed in behalf •of the defendant that are inconsistent with the finding and conclusion of the referee, On the other hand it is contended in behalf of the respondent that the testimony given by the plaintiff considered in the light of the circumstances disclosed by the relations between the parties, transactions in which they were actors, and due deference being given to the version produced by the plaintiff where there is a conflict in the testimony, that the referee was warranted in reaching the conclusion stated in the finding just quoted. In disposing of the finding of fact which is so stoutly challenged by the appellants we are disposed to apply to it the rule found in Baird v Mayor, 96 N. Y., 577, in which case Ruger, Ch. J., said: “To justify a reversal it must appear that such findings were against the weight of evidence, or that the proofs so clearly preponderated in favor of a contrary result that it can be said with a reasonable degree of certainty that the trial court erred in its conclusions. It is undoubtedly the duty of an appellate tribunal, where it is invested with the power of reviewing questions of fact, already passed upon by a court of original jurisdiction, to examine the evidence and to determine the facts for itself, and the rule forbidding a reversal where there is conflicting evidence, or some evidence to sustain the finding, does not apply to such a case. But when there is evidence on both sides and the case is balanced and the mind of the court has been called upon to weigh conflicting statements and inferences, and decide upon the credibility of opposing witnesses, much weight must be accorded to the especial adaptation of the trial court to investigate and determine such questions. Any other rule would nullify the peculiar advantages which that tribunal possesses, in observing the manner and appearance of the witnesses produced, and the various physical and mental peculiarities by which the mind of the professional observer determines the degree: of credit which ought prudently to be attached to oral testimony.”

The doctrine of the Baird case was approved in Aldridge v. Aldridge, 120 N. Y., 617; 31 St. Rep., 948, and near the close of the opinion in the latter case the court adverted to the rule that full effect should be given to the opportunity that the trial court “ had to hear the evidence and observe the manner of the witnesses.” The evidence upon which the referee was called upon to act which came from the lips of the plaintiff, as well as from some other sources, indicate that the plaintiff was advanced in years; not familiar with business transactions or legal papers, and that her husband was not a first-class business man, and that when she had the interview with her son which' resulted in the conveyance which is now challeriged, she entertained kindly, motherly relations to him, having confidence in him ; that he was impecunious himself, having no property of any substantial value besides such as he by the transaction in question acquired from his mother; that she had other children who, if the conveyance was allowed to stand, would be deprived of the possibility of inheriting from her; children who were in needy circumstances, although they were on friendly relations with her, and that the effect of the papers executed was to divest the plaintiff, not only of her real estate, but of her personal property, gratuitously transferring to the possession of the defendant some $6,500 worth of property; under such circumstances it is not in the province of this court to say that the finding of fact on the main issue is against the evidence; nor that it is wholly unsupported by the evidence furnished upon the hearing. It appears that as the papers were about consummated there was some suggestion made about keeping them secret The deed was not recorded until after the plaintiff had discovered the fraud and begun to take measures to recover possession of her property again; and in one interview which the defendant, Charles, had with one of Ms brothers, he denied that he had a deed of the farm putting forward the idea that it was only a lease; as his brother, George D., testifies, that in a conversation held with him in the winter of 1891, Charles said he had leased his mother’s farm. The foregoing views lead us to approve the main proposition of fact as found by the referee.

When the plaintiff was giving her testimony she was asked, “Q. What did you go to Monticello for ? ” This was objected to and the objection was overruled and an exception was taken by the defendants. The answer was, “Went to draw writings, we were going to rent the farm. He sent for him before we got there; we had set a day, and he knew we were coming on such a day to draw writings.” We think no error was committed in receiving the answer. Nor do we think it was error to allow evidence to remain in the case stated by the plaintiff that she did not understand the writing to be a deed when it was read over to her and that she did supposed it to be a lease. Upon an issue of fraud the circumstances referred to by her were not improper. Criticism is made upon the ruling of the referee which allowed the evidence to stand as to the effect that she “ Put all confidence in the world in him; I did not suppose he would take advantage of me.” The effect of her testimony already given and the effect of the testimony given by her in the cross-examination indicates that she had confidence in her son and that at the time she was not laboring under any supposition that he would take advantage of her. The allowance of these facts under the circumstances as the witness was situated are not believed to be error which is prejudicial to the defendant. The learned counsel for the appellant presented to the referee numerous requests to find matters of fact many of which the referee approved. Some of the requests he refused to find and as to others he stated that he refused “to find differently from what I have found.” Many of the requests were on minor features of the evidence and some of them that were refused were based upon evidence which was conflicting. Several of the requests presented more than one proposition to the referee. It was said in David v. Leopold, 87 N. Y., 620, that “ Where a request to find presents more than one proposition, a referee is not bound to analyze it and pass upon the several parts separately." We think the exceptions to the refusals to find do not require us to disturb the conclusion reached by the referee. In the conclusions of law stated by the referee he has provided for a reference and also has provided that the referee shall so state the account as to preserve the equities of the grantee; and the rule laid down guiding the reference is quite as favorable as the defendant was entitled to have stated. Baldwin v. Short, 28 St. Rep., 107.

We have so far considered the appeal upon the merits, and if the appeal was properly before us we should affirm the judgment; it appears, however, that the appeal is from an interlocutory judgment, and that such an appeal was not authorized prior to the amendment of § 1349 of the Code by the legislature of 1893. The appeal was taken prior to the time when such amendment was to take effect. Although no question was raised by either party to the appeal on the argument as to its regularity, we doubt our jurisdiction to entertain the appeal. Dorchester v. Dorchester, 121 N. Y., 156; 30 St. Rep., 498; Knowlton v. Atkins, 134 N. Y., 322; 47 St. Rep., 620. We conclude to dismiss the appeal,, with costs of the appeal.

Appeal dismissed, with costs.

Martin and Merwin, JJ., concur.


text:
    William R. Chadwick, App’lt, v. Warren Wilson, Resp’t.

      (Supreme Court, General Term, Fourth Department)

      Filed December 8, 1893.)

    Will—Devise.
    The seventh clause of testator’s will read: “As I know nothing of the whereabouts of my son M., and whether he is dead or alive I know not, and as I have given him much more than any of the others of my children, I give and bequeath to him the twelve acres known as the “ Carr Lot," or its equivalent, provided I sell my farm, in trust for his heirs.” Near the close of the will is the provision: “My children are not to have any control of the above bequests until after the decease of my wife.” The will was admitted to probate. Thereafter M. appeared and conveyed the “Carr Lot” to C. Testator’s wife died, and 0. brought an action to recover possession of the “Carr Lot.” Held,, that M. by the will acquired a life estate in the “Carr Lot," and his conveyance to C. operated to vest in him a right of possession of the premises.
    .Action to recover twelve acres of land particularly described in the complaint and known as “ The Carr Lot.” Trial had at the Jefferson special term and a decision made dismissing the complaint based upon the following findings of law: “ 1st. That it was the intention of the testator, Lyman Wilson, by the seventh item or clause of said will to create a trust for whoever should be Melville's heirs at the time of his death, and not to vest title in him of the land in said clause mentioned.
    2d. That the trust attempted to be created by the said seventh item or clause of said will was void under the statutes of this state, and no title whatever to said twelve acres of land vested in said Melville Wilson.
    3rd. That by the deed of Aaron E. Chadwick, as attorney, to William R. Chadwick, the plaintiff, the plaintiff acquired no title to the twelve acres of land in question, which entitles him to maintain this action.”
    Lyman Wilson died in the town of Philadelphia, Jefferson county, January 24, 1887, leaving him surviving his wife, Ruth Wilson, two daughters, Chloe and Emma, and four sons, Warren, Lyman, Henry and Melville. He left a last will which was dated October 24, 1876, which was drawn by himself and admitted to probate May 21, 1877, in and by which he attempts to dispose of all his property, both real and personal, giving to his wife the use thereof “ during her natural life ” except a small provision out of the personal property given to his two daughters “ to make their shares equal to what had been advanced to the boys, excepting Melville.” The seventh clause of said will is as follows : “ Seventh : As I know nothing of the whereabouts of my son Melville D. Wilson, and whether he is dead or alive I know not, and as I have given him m uch more than any of the others of my children, I give and bequeath to him the twelve acres known as the “ Carr Lot,” or its equivalent, provided I sell my farm, in trust for his heirs.” Near the close of the will is the following provision: “ My children are not to have any control of the above bequests until after the decease of my wife, Ruth Wilson.”
    It is found as a fact that Melville married and left home several years prior to the death of the testator, “ and had not been heard from by his father up to the time of the making of his will or the time of his death, and at the time of the making of said, will the said Lyman Wilson did not know whether his son Melville was living or dead, or whether he had any children. He did not know at the time Melville left home that he then had no children.” It is found, viz: “It does not appear from the evidence whether Melville ever had any children, but it does appear that he is not living with his wife.” In September, 1889, he executed a power of attorney authorizing a conveyance of the Carr lot to the plaintiff, which conveyance was made and recorded. Plaintiff demanded possession of the twelve acres before the commencement of this action, which was refused by the defendant. Ruth Wilson, the widow, died prior to the commencement of this action.

      Brown & Adams, for app’lt; Henry Purcell, for resp’t.
   Hardin, P. J.

Upon the construction to be given to the seventh clause of the will hinges the decision of this case. Searching for the intention of the testator in regard to Melville, reference may be had to all the provisions of the will. In the latter provision of the will is found the clause that “my children are not to have any control of the above bequests until after the decease of my wife, Ruth Wilson.” This language is suggestive of the fact that the testator supposed, by the language he had used, his children, including Melville, were to have control of the property specifically devised to them.

The language is used after the provision for the wife which clearly limited the use of his property to her life, and, therefore, it may be supposed that the later words implying that the children were to have control of her property given to them after her death significantly indicates the intention as well as the supposition of the testator that the words as to the devises to the children carried out an intention that each should share in the property left by him. We are also to bear in mind in searching are the intention of the testator that a construction is to be preferred which does not disinherit a child to one that does, and also that a construction that disposes of the whole of the estate of testator is to be preferred to one which leaves the testator dying intestate as to some of his property. Thomas v. Snyder, 43 Hun, 15 ; 6 St. Rep., 592; Vernon v. Vernon, 53 N. Y., 361. It seems reasonable to suppose the testator, a layman, in drawing his will intended that his son, Melville, should take, hold, and have control, after the death of the widow, of the Carr lot, and was to enjoy it during his lifetime. Until his death it could not be known who his heirs were; and under the statute as to express trusts no authority is given to receive and hold property for indefinite unascertained beneficiaries; nor is such a trust one authorized by statute. The words of the devise are clear and definite in expressing an intent to give the Carr lot to Melville as they appear in the early part of the clause under-construction ; and an intent to overturn or cut down such an intent on the part of the testator ought not to be . allowed in the absence of words clearly and decisively giving the whole estate to another. Roseboom v. Roseboom, 81 N. Y., 359; Campbell v. Beaumont, 91 id., 464. In the early part of the clause the declaration is made by the testator that he knows nothing of the whereabouts of his son, Melville, and that whether he is dead or alive he knows not, and then there is the statement that he has “ given him much more than any of the others of my children." These words are suggestive of and an explanation why less is given Melville than to some of the other children; and they also give rise to an application in the connection with which they were used that it was the intent of the testator to make a moderate provision for his son, Melville, and in carrying out that intent he uses the words “ I give and. bequeath to him the twelve acres known as the 1 Carr lot ’ or its equivalent provided I sell my farm, in trust for his heirs.”

It must be borne in mind that the testator was uninformed of whether Melville had children, and that the language used was to cover the contingency providing that in case he had children they should be permitted to share in the testator’s estate. He had used words in the primary bequest sufficient to carry an absolute estate to Melville, although not accompanied with any words of succession. Tyson v. Blake, 22 N. Y., 562; 1 R. S., 748, § 1. The subsequent provision found in the words “ in trust tor his heirs," under the circumstances may well be interpreted as referring to Melville’s lineal descendants only. Bundy v. Bundy, 38 N. Y., 421; and it does not seem unreasonable to infer from the language used, and from the circumstances disclosed, which are tobe considered in giving interpretation to the language found in the will, that the intention of the testator was to devise to Melville a life estate in the Carr lot, with a “subsequent limitation to take effect immediately upon the determination of such first estate,” which would confer upon his children the remainder. To give effect to the primary language used, and to construe it as carrying a fee to Melville, would render inoperative the subsequent words apparently used by the testator for the purpose of providing for the children of Melville, in the event that he had any; and it is therefore deemed reasonable construction of the whole language used to limit the primary language so that the will operated to effectuate the intent of the testator by carrying to Melville a life estate with the remainder over to his children. Wager v. Wager, 96 N. Y., 164; Graham v. New York Life Insurance & Trust Company, 46 Hun, 266 ; 11 St. Rep., 474; Van Horn v. Campbell, 100 N. Y., 299. To dispose of the question before us it is only-necessary to hold and decide that Melville, by virtue of the terms of the will, acquired a life estate in the Carr lot, and that his conveyance to the plaintiff operated to vest in the plaintiff the right of possession of the premises. Our conclusion is that the trial court fell into an error in holding “ that plaintiff acquired no title to the the twelve acres of land in question, which entitles him to maintain this action.” We think a new trial should be ordered.

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

Martin and Merwin, JJ., concur.


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

text:
    Mary J. Adams, Resp’t, v. Maria A. Fassett et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Limitation—Action against devisees on debtor.
    Plaintiff was a creditor of F, who died October 1, 1884, leaving a last will and testament devising land, his only property, to defendants. The will was admitted to probate May 31, 1891, and letters of administration with the will annexed were issued January 20, 1892; this action against the heirs and devisees was begun February 10, 1892, defendants plead the-statute of limitation; the court awarded judgment in favor of plaintiff and declared the same to be a lien on the real property left defendants. Held, that the judgment should be affirmed.
    Appeal from a judgment entered in Jefferson county on the 12th of June, 1893, on the decision made by the special term held in that county. Plaintiff was a creditor of John Fassett, deceased, who died October 1, 1884, leaving a last will and testament devising lands to the defendants which are described in the complaint. The answer of the defendants contains several denials and then states as follows: “ allege that the said several supposed causes of action therein set forth did not, nor did any or either of them, accrue at any time within six years next before the commencement of this action, nor within six years and such additional time as is allowed to the plaintiff for the commencement of this action by reason of the death or the failure to issue letters testamentary on the will of John Fassett, deceased.” The will of John Fassett was admitted to probate May 31, 1891, and letters of administration with the will annexed were issued to Maria A. Fassett, January 20, 1892, and this action was commenced the 10th of February, 1892. It is found as a fact that the assets of the deceased were not sufficient to pay plaintiff’s debts and that she “ will be unable with due diligence to collect her debt by proceedings in the proper surrogate’s court, or by an action against the administrator with the will annexed, or legatees or next of kin of said deceased ” ; and that the deceased left “no real estate which descended to his heirs.” It is found as a fact viz : “ That prior to the death of John Fassett the interest was paid on said notes annually by said testator or his son Milan as his agent in his (testator’s) behalf and indorsed thereon, the last indorsement prior to his decease being dated June 2, 1884, and August 5, 1884, on said notes respectively.” The court awarded judgment in favor of the plaintiff for the amount of the notes “ and declaring the same to be a lien upon and collectable out of the réal property described in the ■complaint, with costs, such recovery to be apportioned in the manner prescribed by law between the defendants according to the value of their several devises.”
    _ Brown & Adams, for app’lts ; Rogers & Atwell, for resp’t
   Hardin, P. J.

Section 1843 of the Code provides that “Devisees of a testator are respectively liable for the debts of the decedent arising by simple contract, or by specialty, to the extent of the estate, interest and right in the property which * * * was effectually devised to them by the decedent.”

In Read v. Patterson, 134 N. Y., 130; 45 St. Rep., 793, the history of the legislation leading up to the enactment of § 1843 of the Code is given, and at page 136 of the opinion, it is said that it is quite apparent that § 1848 of the Code enlarges the rights of creditors by permitting recoveries “ when it appears that the creditors will be unable with due diligence to collect their debts by proceedings in the proper surrogate’s court and by action against the executor or administrator.” The defense of the statute of limitations interposed must fail if we follow Mortimer v. Chambers, 63 Hun, 342; 43 St. Rep., 365, and the cases there cited. See also Hulbert v. Clark, 128 N. Y., 295; 40 St. Rep., 401 ; Code, § 388; Mead v. Jenkins, 27 Hun, 573 ; S. C., aff’d 95 N. Y., 31; Malloy v. Vanderbilt, 4 Abb. N. C., 130.

(2) The essential facts found by the trial judge seem to be supported by the evidence.

Judgment affirmed, with costs.

Merwin, J.

I concur in affirmance.

Martin, J.

The evidence that the interest was paid on the debt or notes which were the basis of this action by the testator or for him up to 1884, was not as full and complete as might be desired. That the interest was paid there is no doubt. But that it was paid by or for the testator is not so clear. Still, I am disposed to think that it was sufficient to sustain the finding of the court upon that question. Hence, in considering whether this action was barred by the statute of limitations, the statute must be regarded as having commenced to run in 1884.

The trial judge held that the action was not barred, as it was governed by § 388 of the Code, and could be brought within ten years after the statute commenced to run. The cases of Wood v. Wood, 26 Barb., 356 ; Salisbury v. Morss, 7 Lans., 359; aff’d 55 N. Y., 675, and Mortimer v. Chambers, 63 Hun, 335; 43 St. Rep., 365, sustain that conclusion.

If, however, the ten years’ limitation was not applicable and the action was controlled by § 382, which provides that the actions herein mentioned, shall be brought within six years, still, the action was not barred. Section 406 provides that where the commencement of an action has been stayed by statutory prohibition, the time of the continuance of the stay is not a part of the time limited for the commencement of an action. By referring to § 1844, it will be seen that this action could not have been brought until after three years had elapsed since the death of the decedent. Thus the action was stayed, by statutory prohibition for the period, and the three years during which it was thus stayed was not a part of the time limited for its commencement. Hence, the plaintiff in effect had nine years from the time of the last payment within which to bring this action. Mead v. Jenkins, 27 Hun, 570; S. C., 29 id., 253; Mortimer v. Chambers, 63 id., 344; 43 St. Rep., 365; Malloy v. Vanderbilt, 4 Abb. N. C., 127, 130.

1 think the judgment should be affirmed.


author: Hardin, P.

text:
    In the Matter of the Application of Louisa Harlow, for Order Opening Decree Admitting to Probate the Will of John Lyons, Deceased.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Will—Probate—OPENixa decree.
    Upon petition of an heir at law of testator, showing that she had never been legally served with a citation to attend probate, the surrogate made an order vacating and opening as to petitioner a decree admitting to probate testator’s will, on the ground that he had no power to refuse the application. Held, that the surrogate had never obtained jurisdiction over the ■ petitioner, and the order should be affirmed.
    Appeal from parts of an order made by the Tompkins county surrogate vacating and opening a decree admitting to probate the will of John Lyons, deceased. Louisa Harlow, an heir at law of the deceased, presented a petition to the surrogate’s court February, 1892, asking to have the decree admitting the will of the deceased to probate entered in July, 1885, opened. In December, 1884, Ann E. Beardsley presented a petition to the surrogate’s court asking probate of the will of the deceased, and in that petition stated the residence of the parties named as the heirs at law, and the words of the petition relating to the respondent were, viz.: “Louisa Harlow, who resides at 59 Rush street, Chicago, Illinois.” After the presentation of the petition an order was made in February, 1885, and in the order the language relating to the respondent was as1 follows: “ Louisa Harlow, who resides at 57 Rush street, Chicago," in that portion of the order containing recitals; and in that portion of the order which provided for the service of citations, the language named as to the respondent was as follows: “ Louisa Harlow, 57 Rush street, Chicago,” and the order also contained a provision for the publication of the citation in two newspapers, to wit: “In the Weekly Journal, published in Ithaca, Hew York, once a week for six successive weeks, or at the option of the petitioner, by service of the citation and a copy of this order upon the persons so cited without the state; ” and. the order provided also for a deposit of copies of the citation, and, •among others, to be directed to “ Louisa Harlow, 57 Rush street, Chicago, Illinois.”
    By the affidavit of C. L. Smith it appears that on the 3d of February, 1885, he deposited in the post-office in the village of Ithaca copies of the citation and orders for publication directed to “ Louisa Harlow, 57 Rush street, Chicago, Illinois.” The petition presented by the respondent to be relieved from the decree admitting the will to probate, she alleges, viz.: “ Your petitioner further shows that no citation to attend the probate of the last will and testament of said John Lyons, deceased, was ever served upon your petitioner in the manner prescribed by law, and your petitioner- never received any citation or notice of any proceeding to prove said alleged will or any will whatsoever of said John Lyons, and your petitioner never had any notice or knowledge of any of the above mentioned proceedings in the Tompkins county surrogate’s court until several years after said alleged will was admitted to probate as aforesaid.” The order appealed from contains the following language: “ Ordered, that the motion to dismiss be, and the same is hereby denied, on the ground that the surrogate has not the power to exercise his discretion as to granting or refusing to grant the motion to open the decree, and the motion to open the decree is hereby granted to this extent, to wit, * * * opened and vacated as to said Louisa Harlow. But said decree shall remain in full force and effect as- to all other parties interested in said proceedings. And the letters of administration, with the will annexed of said deceased, shall remain of full force and virtue until the determination of further proceedings in this matter. And this order is made on the ground that the surrogate, Hon. Bradford Almy, holds that he has no power to refuse the application to open the decree as to said Louisa Harlow, the said petitioner, and has no power to exercise his discretion as to refusing or granting this order.”

      G. L. Smith and M. M. Waters, for app’lt; David M. Dean, for resp’b
   Hardin, P.

Subdivision 6 of § 2481 of the Code of Civil Procedure, which relates to the power of the surrogate to open, vacate, modify or set aside a decree of his court, provides that “ Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the general term of the supreme court has the same power, as the surrogate; and his determination must be reviewed, as if an original application was made to that term.”

In the course of the opinion delivered in Matter of Tilden, 67 How., 449, it was said, “Under this authority the entire controversy presented by the petition and the answer to it, is to be considered upon the appeal in the same manner in which, the surrogate himself had the authority to consider it; ” although that case was reversed, 98 N. Y., 442, the doctrine found in the quotation just made was not disturbed.

In Bailey v. Stewart, 2 Redf., 213, it was held that, “ The surrogate has power to open, vacate or modify, his probate of a will, whether of real or personal estate, or both,” and an extensive examination of the authorities bearing upon that question was made by Surrogate Calvin. The same doctrine was referred to in Matter of Wood, 29 St. Rep., 299, in the following language : “ Section 2481, subd. 6, gives the surrogate the same power over the judgments and decrees of his court as is possessed by courts of record, and the power of such courts to vacate unauthorized judgments upon proper notice to the parties to be affected has never been questioned; ” and in the Matter of Accounting of Hawley, 100 N. Y., 211, it seems to be conceded in the opinion That every court of record has an inherent power over its own records to modify, amend and vacate them independent of the special authority conferred by statute.”

It appeared by the petition presented that the residence of Louisa Harlow was 59 Rush street, Chicago, Illinois. The order for the deposit of a copy of the citation was to the effect that it should be directed to her as “ Louisa Harlow, 57 Rush street, Chicago, Illinois.” The service of the citation was defective. The surrogate did not acquire jurisdiction over the person of Louisa Harlow. She never had her day in court upon the subject-matter involved in the application for the probate of her relative’s will. Fetes v. Volmer, 8 N. Y. Supp., 294; 28 St. Rep., 317. It also appears that the order for publication was defective in misdescribing the journals in which the publication was to and actually did take place.

Appellant calls our attention to Durant v. Abendroth, 97 N. Y., 133. We think it does not aid his position. In the course of the opinion in that case Rapallo, J., said: “ That a judgment operates in personam only upon the parties appearing before the court, or brought before it by proper process.” We think the respondent was entitled to service of process in accordance with the requirements of law before her rights as heir at law of the deceased could be taken away by any proceeding had in the surrogate’s court. The order appealed from cautiously observes the rights of all parties under the decree and gives the respondent, Louisa Harlow, the right to be heard upon the questions relating to the probate of the will of the deceased.

Order affirmed, with costs to the respondent, payable out of the estate.

Martin and Merwin, JJ., concur.


author: Hardest, P.

text:
    Alonzo Robertson, Resp’t, v. James Murray et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Reference—Compulsory.
    The complaint alleged that goods were sold and delivered to defendant at their request as stated in annexed schedule, amounting to $3,616, it appeared from the schedule that the sales were made on thirteen different dates; the complaint stated that certain payments had been made and that there remained due a balance of $293; the answer admitted the sale on credit and the delivery of the goods, and that there had been paid $3,322, but contained a denial of the other allegations. Upon application at circuit for an order of reference to hear and determine, plantiffs’ affidavit, after showing above facts referred to a hill of particulars in confirmation thereof, which bill did not appear in the appeal papers. Held, that the order granting the reference would not he disturbed on appeal.

      Appeal from an order made at the Broome circuit in May, 1893, ordering a reference to hear and determine.

      Charles D. Bloomfield and Frank 3. Williams, for app’lt; W D. Fdmister., for resp’t.
   Hardest, P.

J.—Plaintiff’s complaint alleges that goods were sold and delivered to the defendants at their special request and instance as stated in a schedule attached to and forming part of the complaint, amounting in value to $3,616,02. By reference to the schedule it appears that the sales were made on thirteen different dates between August 11, 1891, and December 7, 1891. The complaint states that certain payments - had been made and that there remains a balance due the plaintiff of $293,14. The defendants admit “ that the goods sold by the plaintiff to the defendants were sold upon credit,” and that there had been paid to the plaintiff $3,322,88. The answer then contains a denial of every other allegation “ in said complaint contained except as hereinafter set forth and contained.” Apparently it will become necessary upon the trial of the action for the plaintiff to make proof of all the sales referred to in his schedule attached to his complaint and thus establish the items of his account.

Upon the application for the order at the circuit an affidavit was read in which it is stated: “ That plaintiff claims a balance due him upon an open account, but the defendants by their answer claim settlements from time to time between the dates above specified, and also claim many credits and discounts on account of such sales as aforesaid, which items of credit and settlements are denied. * * * That the trial of the aforesaid issue will, in' deponent’s opinion, require the examination of a long account of both'parties as to charges and credits; and deponent respectfully refers to the pleadings and bill of particulars herein in confirmation of this affidavit.” In an earlier portion of the affidavit it appears that a bill of particulars had been served. We find no bill of particulars in the appeal book. Apparently, therefore, it is inferable that a bill of particulars was used before the court when the order was made which is not presented to us. If that be so, the court had the benefit of that bill of particulars which has not been presented to us by the appellant in the appeal papers submitted to us.

Our attention is called to Spence v. Simis, 22 N. Y. Supp., 76 ; 49 St. Rep., 636, which was a case somewhat like the one before us ; it was held in that case, viz.: “In an action for goods sold and delivered, where plaintiff, on the answer, may be bound to prove each item of his account, consisting of twenty-five items, and he does not stipulate, on defendant’s motion for a reference, to withdraw his claim on a quantum meruit and rely solely on his allegation of a promise by defendant to pay, so that no proof of the items will be necessary, an order of reference is proper.” Although the order made in that case was reversed by the court of appeals, 137 N. Y., 616; 51 St. Rep., 167, it is stated in the opinion, as apparently the controlling ground for reversal, that defendant did not state that the trial would require “ more than the brief examination of a single witness, who may have sold and delivered the goods to him. It is evident that the real controversy between the parties relates to the defendant’s counterclaim, which is for attorney’s services and disbursements in four different suits in the supreme court and justice’s court, none of which constitutes a long account of such a character as to authorize a reference.”

The case of Thayer v. McNaughton, 117 N. Y., 111; 26 St. Rep., 843, differs from the one before us. In the course of the opinion in that case it was said There was no evidence before the court when the order of reference was made, that the statutory conditions existed upon which a compulsory reference could be ordered. There was nothing in the nature of the action or in the pleadings tending to show that the examinations of a long account on either side would become necessary on the trial” The action is for an item of $300 for services rendered as an attorney, and there was nothing shown by the pleadings or the affidavit “ to justify an inference that the trial would involve the examination of a long account.” The case differs quite essentially from the one before us.

In C. B. Keogh Manuf’g Co. v. Moulton, 16 N. Y. Supp., 65; 40 St. Rep., 688 the affidavit did not show how many items of charges, or how long an account was involved.

In Welsh v. Darragh, 52 N. Y., 592, Church, Ch. J., said: “Actions on contract may be referred. This is an action on contract. The character of an action is determined by the complaint. * * * This court will not review the finding below that the action involves the examination of a long account if the facts will warrant such a finding. If the facts show that the examination of a long account may be necessary, and the court below has decided to refer the action, this court will not interfere. It is only when it is palpable that no such account can be involved that an appeal, will lie to this court; ” citing Kain v. Delano, 11 Abb. N. S., 29.

In Williams v. Allen, 2 Hun, 377, it appeared that the defendants only intended to dispute three items of the account; it also appeared that one of these items was made up of a large number of small charges which would have to be proved on the trial, and an order of reference was sustained by this court in the general term held by the first department. It is not apparent from the pleadings, the nature of the action or from any affidavit produced to the court below that the issue will involve the decision of difficult questions of law. Upon the papers before us we think we ought not to disturb the discretion exercised by the circuit when it ordered a reference pursuant to the power conferred upon the court by § 1013 of the Code of Civil Procedure.

Order affirmed, with ten dollars costs and disbursements.

Merwin, J,, concurs; Martin, J., not sitting.


text:
    Elden R. Carver, Receiver, Resp’t, v. David F. Barker et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Fraudulent conveyance—Evidence—Declarations of grantor.
    • In an action to set aside certain conveyances as fraudulent against creditors, the admissions and declarations of the grantor are competent evidence as against himself, he being a party defendant.
    2. Same.
    In such case it is not error to prevent the defendants from reading certain portions of the evidence taken in supplementary proceedings, as the witness therein was at the trial and his evidence was available to defendants upon all the essential and material points raised during the trial.
    Appeal from a judgment entered upon a decision made at the Broome special term, setting aside certain conveyances and transfers as fraudulent as against creditors of David F. Barker, who is the husband of Ida B. Barker.

      Babcock, Sperry & Van Cleve, for app’lts; Cortland Wilber and A. D. Wales, for resp’t.
   Hardin, P.

J.—After a perusal of the evidence bearing upon the vital issues in the case, the conclusion is reached that the trial court was warranted in finding a fraudulent intent on the part of the husband, with the knowledge thereof in the wife, to the extent stated in the findings of fact made by the trial judge, and the opinion delivered by the trial judge meets with our approval. This case differs quite essentially from Neuberger v. Keim, 134 N. Y., 36; 45 St. Rep., 394.

(2) When Florence was upon the stand as a witness he was allowed to state a conversation held with David F. Barker, and upon objection being taken to portions of the evidence, the court observed: , “ You object to all his statements to this witness and I allow them for the purpose stated.” The court had theretofore observed “ I will receive it as tending to show a fraudulent intent on the part of David F. Barker.” A ruling was made when the witness Brown was upon the stand to the effect that the evidence would be received “ as bearing upon the question of what his interest was.” The ruling was repeated when the witness Ford was upon the stand; and when the plaintiff proposed to prove by Barker himself his situation and circumstances as to property, objections were stated by the defendants, and thereupon the court observed “ The objection is sustained as to Ida B. Barker, and evidence received as against David F. Barker as showing his statement.” We think no prejudicial error was committed by the court in the rulings adverted to. Manifestly the court intended to keep within the "rule as laid down by this court in Scofield v. Spaulding, 54 Hun, 523; 28 St. Rep., 108, in which case it was held that the admissions or declarations of the grantor were competent evidence as against himself as he was a party defendant. We discover no intention on the part of the trial judge to hold that such declarations were admissible or binding upon the female defendant, or to make a ruling contrary to our holdings in the Spaulding case.

(3) Nor do we think it was error to prevent the defendants from reading certain portions of the evidence taken in supplementary proceedings. The witness Barker was at the trial, and his evidence was available to the defendants upon all the essential and material points raised during the trial. Some other rulings were made during the trial to which attention has been given, and in them we find no error requiring us to disturb the conclusion reached at the special term.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.