author: Dykman, J.: Barnard, P. J.:

text:
    HENRY PATTON, as Assignee of OSCAR F. HAWLEY, Etc., Appellant, v. THE ROYAL BAKING POWDER COMPANY, Respondent.

      Assignee for tlie benefit of or editors — when liable for damages occasioned by a breach of a contract made by his assignor which he has undertaken to complete.

    Upon tlie trial of this action brought by the plaintiff, as assignee of one Hawley, to recover for packing boxes sold and delivefed to the defendant. It appeared that the boxes were furnished under a written contract entered into between the defendant and Hawley, by which th e latter agreed to furnish all the boxes that the defendant might require for one year from January 1, 1884, at certain specified prices, with a proviso that if Hawley failed to keep the defendant supplied with b oxes the defendant could supply its wants by purchase in the open market, Hawley agreeing to pay any difference in cost between the boxes so purchased and the prices specified in the contract. After the plaintiff had assumed the duties of his office as assignee of Hawley he entered upon the completion of the contract and claimed the right to and did deliver the boxes thereunder until about the 1st of October, 1885, when he notified the defendant of his inability to continue to carry it on “ for the present.” The defendant then entered into a contract with one Smith for the supply of the boxes for the remainder of the year at a price exceeding that fixed in the contract with Hawley.
    Meld, that the defendant was entitled to deduct the amount of the increase ou the cost of the boxes delivered by Smith from the amount due to the plaintiff for boxes delivered by him.
    That as the boxes had to be constructed for the special use of the defendant, both as to size and material, and there was no open market therefor, the defendant was entitled to enter into the contract with Smith for their manufacture.
    Appeal by the plaintiff from a judgment entered upon the Verdict of a jury at the Kings County Circuit and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Jos. A. Burr, for the appellant.

      Platt & Bowers, for the respondent.
   Dykman, J.:

The complaint in this action sets up the sale and delivery of packing boxes by the plaintiff to the defendant, and demands judgment for their yalue. ,

The answer alleged the sale and reception of the boxes under a written contract between the defendant and one Oscar F. Hawley, by which he agreed to furnish all the boxes the defendant might require for one year from the 1st day of January, 1885, at certain specified prices with a proviso, in the event' of a failure bjr Hawley at any time to keep the defendant fully supplied with boxes, in accordance with the conditions of the contract, which authorized the defendant to supply its wants and requirements in the open market without notice, and Hawley undertook to pay upon demand to the defendant any difference in cost of the boxes so purchased above the prices specified in the contract.

Then the answer avers the assignment of the contract by Hawley to the plaintiff who accepted the same, entered upon its completion and claimed the right to deliver the boxes under the same, and did actually deliver all the boxes for which he claims to recover in this action.

Then the charge in the answer is, that about the 1st of October, 1885, the plaintiff ceased the delivery of the boxes under the contract, and the defendant, between that time and the close of the year, was compelled to purchase such boxes in the open market at an increased cost of $2,124.18 above the prices at which they were to be delivered under the contract, and that amount was set up for a counter-claim in this action.

The answer specifically admitted the allegations of the complaint, and the questions involved sprung from the counter-claim of the defendant.

The answer plainly manifested the basal and important facts, and the chief contention upon the trial, and likewise upon this appeal, was whether the counter-claim of the defendant could be allowed to off-set the claim of the plaintiff in this action.

The plaintiff was the general assignee of Hawley for the benefit of his creditors, and it was his contention that the counter-claim of the defendant could not be sustained and permitted as an off-set against him as such assignee.

If that proposition exhibited the true position of the plaintiff, it would remain without an answer and shield him from the counterclaim of the defendant, because it was an unliquidated claim for damages. But the assumption cannot be indulged.

Upon the trial of the action the defendant introduced testimony tending to show the adoption of the contract by the plaintiff after he became the assignee and the commencement of its execution and performance with the assent of the defendant. The contract then had about three months of life, and the claim of the plaintiff is asserted and founded upon the boxes so delivered by him in the continuous execution of the contract, and the counter-claim of the defendant grew out of the same contract and is set up as an off-set against a claim asserted by the plaintiff thereunder. It was less in amount than the plaintiff’s claim and was set up for the reduction thereof only.

The adoption of the contract and the assumption of its performance by the plaintiff was claimed by the defendant, and the testimony was sufficient to carry the cause to the jury, and the charge of the court shows the theory upon which it was presented to that body. Among other instructions of the same import the charge contained the following directions: “As I have already said to you there was no legal obligation upon the part of this assignee to fulfill that contract, the moment the property was delivered to him he might have said I will do nothing further with this contract. I will leave it alone, but he did go on making these deliveries and the fact for you to determine is whether he simply made those deliveries intending to keep up and maintain the status between these parties until the creditors could determine whether they would permit the assignee to adopt the contract and fulfill it; whether that was his intention and known to be by the defendants (because they knew that Hawley had made this assignment) and acquiesced in by them; or did he by his actions adopt the contract, make himself a party to it and take the benefits that he conld derive from the contract and assume its obligations ? Unless he did the latter he is not liable in this action.

Before you can say that this counter-claim is a just and legal claim against him, you must be satisfied that he adopted the contract, that he made himself a party to it, that he assumed its obligations and took its benefits.”

In relation to the breach of contract, the charge was this after a recitation of the testimony upon that subject: “ If you find those two facts that there was an adoption by the assignee of the contract, and having adopted it there was a refusal on his part to perform it, then you have the elements of a claim in favor of these defendants against him, and it will be for you to go on and determine what the amount of that claim is.”

The charge taken together laid a heavy burden upon the defendant, but it was successfully borne and the jury found in its favor. If we therefore now assume, as we must, that the jury found the facts required by the charge to be found before a verdict could be made in the defendant’s favor, then a plain case is presented' for the allowance of the counter-claim in reduction of the claim of the plaintiff.

The counter-claim arose out of the same contract and transaction set forth in the complaint as the foundation of the plaintiff’s claim, and its allowance is manifestly just and right.

By the adoption of the contract the plaintiff became entitled to all the benefits, its performance and fulfillment might afford and he also became responsible for the liabilities its violation or breach might involve. He assumed its burdens and its obligations as well as its advantages and benefits.

This examination seems to demonstrate the legal right of the defendant to the allowance of its counter-claim as an off-set to the demand of the plaintiff so far as it extends, and that is the main question presented by this appeal.

. The practice adopted seems to have been the result of certain stipulations of the parties, and the figures are somewhat obscure, but we do not examine either because they present only irregularities at most not errors.

The two questions answered by the jury in the defendant’s favor seem to be decisive of the case and the answers returned were plainly dictated by the testimony.

There is no force in the objections raised by the plaintiff to the failure of the defendant to go into the open market to procure the boxes which the plaintiff failed to furnish. The best answer to be made to the objection is that there was no open market for boxes into which the defendant could go to purchase. Packing boxes must be manufactured to order, and they are not kept in stock on sale like ordinary articles of merchandise or different kinds of grain. The exceptions of the plaintiff have all received careful attention without a discovery of error.

Our conclusion is in favor of the affirmance of the judgment, with costs.

BaeNARd, P. J., concurred.

Barnard, P. J.:

Whatever may be the legal difficulty arising from the relation of. the parties, there is no justice in this appeal. One Hawley agreed with the defendant “to furnish all the boxes that may be required by parties of the second part for one year from January 1, 1884.”

The agreement was partially executed when the contractor failed and assigned all his property to the plaintiff for the benefit of his creditors. Patten filed his bond and duly entered upon his duties as assignee. The assignee elected to execute the contract and gave notice to that effect, but in October following he gave notice of his inability to continue to carry it on “for the present.” The contract with Hawley provided that on default to deliver boxes, the defendant could supply its want “ by purchase on the open market.” The difference in price to be paid by Hawley. The defendant then entered into a contract with one Smith, for the supply by him for the remainder of the year, and the difference between the rate agreed to by Hawley and Smith is not disputed. The boxes, as ready-made boxes, had no open market. They had to be constructed for special use both as to size and material. The agreement with Smith was therefore the only open market. The defendant was justified in contracting for the remainder of the term. The notice gave no limit for the disability on the plaintiff’s part to execute tbe contract, and the rate was reduced by the contract, for the term, some five per cent. The case, in brief, then is Hawley sold the boxes before the failure; the assignee continued to execute the contract after the failure. His complaint for goods sold as assignee, is both proven and admitted. The assignee elected to carry out his contract and made default, occasioning considerable loss to the defendant. As assignee he was not bound to execute the same and it is questionable if he had the power. He therefore assumed, individually, to carry out the contract, and, as between himself and the defendant, he is individually holden. If he, by the assent of the creditor, can throw the loss upon the assigned estate that is a question in which the defendant had no interest. There really is no question of either off-set or counter-claim. What is due on the contract taken together ? The plaintiff, as assignee, cannot recover any more. The apparent personal charge against the assignee is not real. The assignee’s claim was larger than the damages. The plaintiff took judgment for a sum under a stipulation tc correct it after this suit was tried, and the defendant’s claim for damages was established. The judgment against the plaintiff, individually, is under the stipulation only, a reduction of his claim as assignee.

The judgment should be affirmed, with costs.

DyKMAN, J., concurred.

Judgment and order denying new trial affirmed, with costs.


source: Caselaw Access Project

author:
Dykman, J.:
      Pratt, J.:

license: Public Domain

text:
    RICHARD G BERFORD, Respondent, v. DEMAS BARNES as Assignee, and DEMAS BARNES, Appellant.

      Fraudulent conversion of a dividend due to a creditor by an assignee in bankruptcy— an action will lie against Mm as an individual in this court.

    The complainant in this action alleged that the defendant was appointed the assignee in bankruptcy of the estate of two persons of the name of Vetterlien and accepted the trust; that there was allowed against the estate of his assign ors, in favor of one Hare, a claim of $7,056.11, upon which there was a dividend declared of $1,125.22, for which the defendant received credit in his accounts as assignee; that the defendant falsely represented to 11 are that his claim liad been disallowed and was barred by tbe statute oí limitations, and that tbe defendant thereafter withdrew the amount of the dividend from the funds of the bankruptcy estate and mingled the same with his own; that the administrator of Hare, who had died in ignorance of his rights, had assigned the claim to the plaintiff.
    The defendant, who was sued as assignee and as an individual, demurred in each capacity on the grounds that the complaint did not state facts sufficient to constitute a cause of action; that the court had no jurisdiction of the cause, and that there was a misjoinder of causes of action against the defendant, individually and as assignee in bankruptcy.

      Held, that none of the demurrers were well taken, and that an interlocutory judgment entered upon an order overruling them should be affirmed.
    Appeal from an interlocutory judgment entered in Kings county upon an order overruling a demurrer to tbe complaint.

      Joseph A. Shoudy, for the appellant.

      Roger M. Shermcm, for the respondent.
   Dykman, J.:

It is charged in the complaint in this action that the defendant was appointed assignee in bankruptcy of the estate of two persons of the name of Yetterlien, and accepted the trust. That there was allowed against the estate of his assignors, in favor of Thomas Hare, a claim of $7,056.11, upon which there was a dividend declared of $1,125.22 for which the defendant received credit in his accounts as such assignee. That the defendant falsely represented to Hare that his claim had been disallowed and was barred by the statute of limitations. That the defendant thereafter withdrew the amount of the dividend from the funds,of the bankrupts estate and mingled the same with his own at his bankers.

That Thomas Hare died in ignorance of his lights and of the transactions of the defendant, and the fraud he had perpetrated, and his widow, Matilda Hare, was duly appointed the administratrix of his estate, and that she first discovered the allowance of the dividend about the 1st of .May, 1885. That the administratrix assigned the cause of action to the plaintiff about November 9, 1886, and he has demanded payment of the dividend and interest which was refused, and he demands judgment for the dividend and interest.

The title of the cause is Richard Gr. Berford against Demás Barnes and Demás Barnes as assignee, and the defendant has demurred to the complaint as assignee and individually, and repeats the same causes of demurrer three different times, and the grounds stated are that the complaint does not state facts sufficient to constitute a cause of action; that the court has no jurisdiction of the supposed cause of action and that there is a misjoinder of causes of action against the defendant individually and as assignee in bankruptcy.

It is noticeable in the outset that the specifications of the causes of demurrer are quite inconsistent, for if no cause of action is stated in the complaint, then there is no misjoinder of such causes, but that is not very material. It is charged against the defendant in this complaint that he received the sum of $1,125.22 belonging to Thomas Hare, and which it was his duty to pay over to Hare, and mingled the same with his own funds at his bank and has refused to pay over the same after a legal demand. If those facts are true, as they are for our purpose, they constitute a cause of action against the defendant in favor of the party in interest in any court of general jurisdiction. Courts of bankruptcy have no exclusive jurisdiction of an action brought for the recovery of such a demand. The defendant has received and appropriated money which belonged to another, and the capacity in which he received the same is quite immaterial.

No citation of authority can be required for the fortification of such a position. It is plain common sense and common justice and very common law. Neither is their any misjoinder of causes of action. There is but one cause of action set out in the complaint, and that is for the misappropriation of money and is against the defendant individually. There is no cause of action stated against the defendant as assignee, and the annexation of the words “as assignee”' to the name of the defendant has no legal effect and may be easily disregarded. Besides all this, the demurrer is not for a misjoinder of parties. Demás Barnes is the defendant, and the complaint sets out a valid cause of action against him, and the Supreme Court has sufficient jurisdiction to entertain the action.

The judgment and order appealed from should be affirmed, with costs.

Barnard, P. J., concurred.

Pratt, J.:

No want of capacity on tbe part of tbe plaintiff to sue appears upon tbe face of the complaint, and that is, therefore, not available as a ground of demurrer. Tbe trust in respect to the chose in action mentioned in the complaint, devolved upon the administratrix of Thomas Hall by operation',of law, and was duly assigned to the plaintiff, who is a proper party. (Boone v. Citizens' Savings Bank, 84 N. Y., 83; Rogers v. Squires, 26 Hun, 388.) That the court has jurisdiction of the parties is well settled by authority. The suit is against an assignee in bankruptcy to recover a dividend declared by a bankruptcy court, which, it is alleged, the assignee has withdrawn from the funds of the estate after he has claimed and received credit for the payment of the dividend. Such a suit is clearly within the adjudicated cases. (Eyster v. Gaff, 91 U. S., 521, 525; Cook v. Whipple, 55 N. Y., 150.)

The point that there is a misjoinder is not well taken. The complaint is in equity, and names the party who holds the legal title to the fund, as well as the person who has interfered with the trust. Assuming, therefore, that Hemas Barnes, as assignee, is one person, and Demás Barnes, individually, is another, both are properly named in the complaint, in order that the decree may bind him in both capacities. (Story Eq. Plead. [9th ed.] § 528, p. 431; James v. Cowiny, 17 Hun, 269.) Both demurrers are to the entire complaint, and it follows it should be overruled if either of the causes of action are well pleaded. (Haight v. Brisbin, 36 Hun, 582.)

It cannot be said that no cause of action has been stated in the complaint, when the defendant has asserted by his demurrer for misjoinder that two well pleaded causes of action are improperly joined. (Sullivan v. N. Y., N. H. and H. R. R., 1 Civil Pro., 285.) But one cause of action only is stated in the complaint. One fund alone is sued for, and a judgment of accounting for a specified sum of money is demanded. In any view of the case, the judgment against Demás Barnes, individually, should be affirmed.

But technically, as well as upon the merits, we think the decision below was right, and the judgment should be affirmed, with costs.

Order overruling demurrer to complaint and judgment thereon affirmed, with costs.


author: Dykman, J.:

text:
    MARGARET BOHAN, Respondent, v. THE PORT JERVIS GAS-LIGHT COMPANY, Appellant.

      Nuisance — a gas company may be restrained from continuing one.

    Upon the trial of this action, brought to recover the damages which have resulted to the plaintiff from the depreciation in the value of her property, caused by the manufacture of gas in close proximity thereto by the defendant, and to restrain the defendant from continuing the nuisance-, the jury found a verdict in her favor.

      Meld, that she was entitled to the judgment demanded.
    That a claim made by the defendant that, inasmuch as it rfas a corporate body duly organized under legislative authority and authorized tc procure and use real property in the manner it had done, to be used for the purpose of manufacturing illuminating gas, the consequential injury to the plaintiff was without remedy, could not be maintained, as the legislature had in no sense prescribed or sanctioned the location of the gas factory or the tank for storage.

      Cogswell v. N. Y., N. H. & M. JR. JR. Co. (103 N. Y., 10) followed.
    Appeal from a judgment in favor of tbe plaintiff entered upon tbe verdict of a jury at tbe Orange County Circuit, and from an order denying a motion for a new trial made upon tbe minutes of the justice before whom the action was tried.

      Lewis E. Carr, for the appellant.

      John W. Lyon, for the respondent.
   Dykman, J.:

This action was brought to recover tbe damages which have resulted to tbe plaintiff from tbe depreciation in the value of her property, caused by the manufacture of gas in close proximity thereto by tbe defendant, and to restrain tbe defendant from the continuation of Hie nuisance.

The complaint of the plaintiff is that tbe manufacture and storing of gas by tbe defendant creates offensive, noxious -and unhealthy odors, injurious -to health, which has become a nuisance, from which the plaintiff has sustained damages peculiar and personal to her. The proof introduced upon the trial was sufficient to establish a valid cause of action in favor of the plaintiff, and the jury found in her favor for the cause was tried at the Circuit. It appeared that the plaintiff had been deprived of the comfortable enjoyment of ber bouse by tbe foul odor from tbe defendant's works, wbicb bad -fouled and corrupted tbe atmosphere, and rendered a residence in tbe house uncomfortable and unhealthy.

Tbe case was thus brought within all tbe cases defining a nuisance, and the charge of tbe trial judge gave the law- to tbe jury as it has long been well established in many adjudicated-cases; The action'was defended upon the ground of legislative sanction and justification. The claim of the defendant was that inasmuch as it was a corporate body duly organized under legislative authority and authorized to procm’e and use real property in the manner it has done, to be used for the purpose of .manufacturing .illuminating gas, the consequential injury to the plaintiff was ‘without remedy.

The principle invoked has a well recognized’place in'the jurisprudence of this country and in England, also, and it received its best illustration and application in this State in the case of Bellinger v. The New York Central Railroad Company (23 N. Y., 42), and the case of Cuddeback v. Delaware and Hudson Canal Company (decided in this district in December, 1884, but not reported). In both of those cases-the precise use of the property complained of was authorized, and so it was decided that no.recovery could be had for the injury complained of without proof of negligence in the use of the property. So the contention of the.defendant here was that no recovery could be had against it because the precise use to which the property was applied was sanctioned by the legislature, and the point was presented in a variety of Avays and-forms. The difficulty with the defense here is that it has no foundation in -the facts of the ease, because the legislature has in no sense prescribed or sanctioned the' location of the gas factory or the tank for storage. It is true the defendant has power and authority to purchase and hold real property and manufacture, and distribute, and .sell, and supply illuminating gas.: '.But that confers no authority or power which will sanction or justify an injury to private property. While it is true that the legislature has conferred such power Upon the defendant and all similar trading corporations, yet it must not be exercised in a manner injurious to others, and in that respect it remains subject to the same rules that would be applied to a private individual. The whole subject has recently undergone :a full examination in tire Court of Appeals in the case of Cogswell v. New York, New Haven and Hartford Railroad Company (103 N. Y., 10), and the masterly opinion of Judge Andrews in that case places the doctrine upon its proper, basis, and restrains its operation within reasonable bounds. The decision in that case is a complete and ample authority for the plaintiff in this case, and renders all further examination of the same by us unnecessary. All the objections and exceptions of the defendant have been examined and found untenable.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    JOSEPH SUTHERLAND and GEORGE WALSH, Appellants, v. THOMAS MORRIS, Respondent.

      Contract — condition that all extra work shall he agreed upon in writing — unless this condition he compiled with evidence of the perfoi'mance of extra work will not he receioed.

    In this action, brought by the plaintiffs to recover for work, labor and materials furnished for the masonry work of a house owned by the defendant, it appeared that a contract in writing had been entered into by the parties which contained the following provision* The contractor will take notice that there will be no extra work done unless agreed upon by the superintendent, the price put in writing and signed.” Upon the trial it appeared the action was brought to recover for work, labor and materials furnished outside of those specified in the contract,

      Held, that in the absence of any evidence showing a compliance with this condition of the contract, the court properly excluded evidence offered by the plaintiff to prove the furnishing of the materials and labor.
    Appeal from a judgment of the City Court of Yonkers in favor of the defendant and from an order of the said Court denying a motion for a new trial.

      Ralph E. Prime and Arthur J. Burns, for the appellants.

      Joseph F. Daly, for the respondent.
   Dykman, J.:

The plaintiffs in this action made an agreement with the defendant to furnish materials and labor for the masonry work of a new bouse. Tbe contract was in writing, and by it the plaintiffs undertook to perform their work agreeably to the drawings and specifications which are referred to as signed by the parties and annexed thereto.

The specifications were not, however, signed by the parties so far as we can learn from the record before us, but, in legal effect, they were incorporated in the contract. They contained this important provision in words : The contractor will take notice that there will be no extra work done unless agreed upon by the superintendent, the price put in writing and signed.”

This action was commenced to recover for work, iaDor and materials extra, and outside of the written contract and specifications, and the effort of the plaintiffs upon the trial was to introduce proof of the labor and materials furnished beyond the requirements of the contract, without a compliance with the condition precedent which required the procurement of the agreement of the superintendent and the reduction of the price to a subscribed writing before any extra work could be performed upon the building.

The exclusion of the testimony of the plaintiffs proceeded upon the failure to comply with the condition, and they must all be sustained. The condition was introduced to prevent the very thing which the plaintiffs now attempt. The contractors had before them a specific delineation of the work they were required to perform, and they were never requested to do anything more than to complete what they undertook in conformity with their contract.

The recovery seems to fairly include all the legal liabilities of the defendant to the plaintiffs, and the judgment should be affirméd, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


author: DyKman, J.:

text:
    In the Matter of the Petition of HUBERT O. THOMPSON, Commissioner, etc., for the Appointment of Commissioners of Appraisal, under Chapter 490, Laws of 1883.

      Award of damages caused by the construction of the new Croton aqueduct for New York city —1883, chap. 490 — but one amount is to be awarded.

    A report of commissioners' awarding damages to the qwners of. and persons interested in, lands to be acquired for the construction of the new Croton^ aqueduct, under the provisions of chapter 490 of 1883, was claimed to be defective in that it failed to state separately the sum awarded for the land actually taken, and the sum awarded for the damages to the contiguous lands injuriously affected thereby.

      Held, that the statute contemplated the award .of hut one amount.

      In the Hatter of Campbell (41 Hun, 643) followed.
    Appeal from an order entered in ~Westcbester county confirming the report of commissioners appointed to ascertain and determine the compensation to be made to owners of and persons interested in, land to be acquired for the construction of the n6w Croton aqueduct.

      Charles B. Meyer, for the claimants, appellants.

      Francis lynde Stelson, for the petitioner, respondent.
   DyKman, J.:

Commissioners were appointed to ascertain and appraise the compensation to be made to owners of land and persons interested therein, to be acquired for the construction of the new Croton aqueduct, or to be affected thereby in accordance with the provisions of chapter 490 of the Session Laws of 1883.

After many long hearings and the examination of numerous witnesses the commissioners made a report of the awards to certain claimants, which was confirmed by the court at Special Term. The claims of the appellants were among those included in the report upon which awards had been made and they have appealed from such order of confirmation. Their names are James McLean, Benjamin A. See and Henry C. Meyer, and their objections are two in number and substantially similar. First, for a failure to state separately the sums awarded for land actually tairen and for damages to contiguous lands injuriously affected, and second for inadequacy in the amount of the awards. In relation to the first point it must be said that the report of the commissioners is in full compliance with the requirements of the statute by which they are controlled and with the practice in similar proceedings.

By the provisions of section 18 of the law, referred to already, every owner or person interested in real estate taken, used or occupied for or affected by the construction of the new aqueduct is required to exhibit a statement of his claim for compensation for such taking, entering upon, using or occupying, and thereupon he becomes entitled to be heard touching such claim and to have a determination made by the commissioners as to the amount of such compensation. The statute contemplates but one claim for compensation, and the award of one amount therefor, and no beneficial results would accrue to either party by requiring more.

A further illustration of the design of the statute to confine the award to a sum in gross is found in sections 11 and 12. By the former the commissioners are required to ascertain and determine the compensation to be made, and by the latter the report must contain a statement of the sum determined upon as a compensation to the persons entitled to or interested in each parcel taken or affected. There is but one measure of' damages, and that is the difference between the value of the land as it was and as it will be as it stands affected by the action of the city authorities under this law, and that measure produces but one sum. Different elements may enter into its constitution as different considerations may lead to its adoption, but the result of all is a consolidated amount of money. This same question was decided the same way under a similar statute, In the Matter of Allan Campbell, in this department in July, 1886 (41 Hun., 643).

The second question presented requires even less consideration. The testimony fails to disclose the adoption of any erroneous rules of compensation, and the sole objection of inadequacy can be accorded but small consideration in this appellate tribunal unless the amount is so small or so great as to be palpably erroneous. In all these cases the sums awarded seem to be the result of conservative views, and so far as we can judge from the testimony offered on both sides they seem to be fair and just.

The order appealed from should be affirmed, with ten dollars costs, in each case besides the disbursements.

Pratt, J., concurred; Barnard, P. J., not sitting.

Order affirmed, with costs and disbursements.


text:
    DAVID A. SCOTT as Assignee, etc., of WILLIAM C. LAWSON, Respondent, v. HARRISON MILLS, Sheriff of Orange County, Appellant.

      General assignment — the assent of the assignee is sufficiently expressed by his execution and acknowledgment of the deed conveying the property to him —1877, chap. 466, sec. 1.
    By an indenture made between William C. Lawson, party of the first part, and . David A. Scott, party of the secoud part, the said Lawson conveyed and sold' all his property to Scott, in trust for the benefit of the creditors of the grantor. The instrument was duly executed and acknowledged by each party. No-express assent of the assignee appeared or was embraced in or at the end of or indorsed upon the deed, as required by section 1 of chapter 466 of 1877.

      Held, that as the statute prescribed neither the form in which or the place at which the assent should appear, it was fully satisfied by the execution and acknowledginent of the deed by the parties, as they each thereby assumed obligations to the other, and became mutually bound by the terms of the instrument.
    Appeal from a judgment in favor of the plaintiff entered in Orange county upon the trial of this action by the court without a pry.

      Edvjard- Newcomb, for the appellant.

      Scott c& Hirseliberg, for the respondent.
   Dykman, J.:

The litigation between these parties arose in this way: William C. Lawson executed a general assignment of his property for' the benefit of his creditors to the plaintiff, and thereafter the defendant, who was the sheriff of Orange county, received an execution issued against the property of Lawson upon a judgment obtained against him in the Supreme Court. Upon that execution the defendant made a seizure of some of the property assigned to the .plaintiff and he commenced this action for its specific recovery. The premature entry of the first judgment against Lawson, the issuance of the execution thereon, its subsequent withdrawal and the substitution of the second execution issued upon a second judgment are unimportant facts in the view we take of the case. The same remark is applicable to the separate assent of the plaintiff as assignee acknowledged and recorded after the execution of the deed of assignment.

The principal question involved in this action arises under section 2 of chapter 466 of the Laws of 1877. The section prescribes the rules to be observed in the making and execution and recording of assignments of property for the benefit of creditors, and closes with these words : “ The assent of the assignee subscribed and acknowledged by him shall appear in writing embraced in or at the end of or indorsed upon the assignment before the same is recorded, and if separate from the assignment shall be duly acknowledged.”

The assignment in question here was made in the form of an indenture between William C. Lawson, party of the first part, and David A. Scott, the plaintiff, of the second part, and the plaintiff as such assignee subscribed and acknowledged no assent except such as was contained in the instrument before the same was recorded, and the claim and insistence of the defendant now is that the assignment was incomplete and invalid for want of the assent of the assignee thereto required by the statute. Thus the question for solution is disclosed for our examination and determination. An indenture is a deed between parties by which they each assume obligations to the other, and become mutually bound by the terms of the instrument, and there is no reason why the statute in question should be construed to contain any further requirement. No form of consent is prescribed and no place for its appearance in the assignment is designated, and the statute is fully satisfied by an appearance of assent in the instrument.

In a comprehensive view the assent of this assignee appeared in writing and was embraced in the assignment, which was subscribed and acknowledged by him. Instead of the usual deed-poll of assignment in the ordinary form, with the assent of the assignee indorsed thereon separately, this instrument was given the form of an indenture between the assignor and assignee. It is the act and deed of both parties and embraces tbe assent of both. It is executed and acknowledged by each and so it is assented to by both. The execution of the instrument is the assent and constitutes the acceptance of the duties imposed upon the assignee thereby and an undertaking for their discharge. The trust was created by the indenture which enumerated its purposes and specified its objects. It prescribed the obligations and dictated the duties of the assignee' and terminated with the words usully employed to close an instrument inter partes as follows: “In witness whereof we have hereunto.set our hands and seals.” Thus the assignee assented to all the terms of the assignment and undertook the execution of the trust created thereby, and it- would comport with a narrow and contracted view only to hold that an insufficient assent on his part. Our conclusion upon this question, therefore, is that the requirement and intention of the statute has received obedience and execution and that the assignment was a valid instrument in its original shape and form.

All the other objections raised by the defendant have been weighed and found wanting, and the judgment should be affirmed, with costs.

Barnard, P. J., concurred.

Judgment affirmed, with costs.


author: Pratt, J.: Dykman, J.:

text:
    MARY D. CLARK, Respondent, v. WILLIAM R. POST and Others, as Executors, etc., of JAMES R. HUNTTING, Deceased, Appellants.

      Representations of an assignee in bankruptcy as to the validity of his title to real estate sold by him — agreement to refund the purchase-money — when not affected by the statute of frauds.

    The defendants’ testator, James K. Huntting, having been, on July 3, 1877, appointed the assignee in bankruptcy of the firm of William Buck & Son, commenced an action against William Buck and his wife to set aside as fraudulent a deed conveying certain real estate to Buck’s wife, which was then in her possession. On February 25, 1878, to aid in a composition which had been proposed by the bankrupt to his creditors, the wife conveyed the real estate to the assignee by a deed, reciting the consideration of one dollar, upon an agreement between Mrs. Buck and tlie assignee that the deed should be void if the composition was not carried out. The composition was never carried out.
    Thereafter, and on July 13,1878, the assignee advertised and offered the property for sale at public auction, at which the plaintiff purchased the premises, relying upon the statement publicly made by the assignee’s agent that the assignee had a valid and perfect title to the premises and could and would convey the same to the purchaser, especially as against the claims of Mrs. Buck and the bankrupt, and thereafter the plaintiff paid the amount of her bid upon the further assurance of the assignee that he would indemnify and protect her against Mrs. Buck’s claims, and would hold her money until Mrs. Buck’s claims wero decided, and would refund it if it turned out that he had no title.
    Thereafter Mrs. Buck brought an action against the assignee, the plaintiff and others, to set aside the deed because of a failure of consideration, in which the assignee pleaded that her title was fraudulent. Mrs. Buck having recovered a judgment establishing her title to the property, and directing that . the plaintiff and her husband should reconvey it to her, they did so, and thereafter the plaintiff brought this action against the defendants to recover the money so paid to the assignee, their testator, who died during the pendency of the action brought by Mrs. Buck.
    Held, that the plaintiff was entitled to recover.
    That the agreement of the assignee was a new and independent one, unnaffected by the doctrine of merger or the statute of frauds.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Kings County Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Hamilton Wallace, for the appellants.

      Coles Morris and Jesse Johnson, for the respondent,
   Pratt, J.:

The plaintiff recovered a verdict for $3,500 and interest, amounting in all to $5,238.63, upon facts substantially as follows : William Buck & Son, formerly of Sag Harbor, became insolvent in July, 1877. James R. Huntting, deceased, defendants’ testator, was appointed their assignee in bankruptcy July 3, 1877. The wife of William Buck was then in possession of certain real estate at Sag Harbor, and the assignee in bankruptcy commenced suit against Mrs. Buck and the bankrupt to set aside the deed under which she claimed title. While that suit was pending, the bankrupt proposed a composition to their creditors of fifty cents on the dollar, and Mrs. Buck, in order to aid them, offered to convey this piece of real estate to the assignee. This was done February 25, 1878. The conveyance recited the consideration of one dollar. It was made before the meeting of creditors, which was held two days later, February 27, 1878. There was an agreement between Mrs. Buck and the assignee that this deed should be void if the composition was not carried out. The proposed composition was accepted by the creditors, with some slight modifications, but on the express condition that it should be completed by the bankrupt within thirty days from March 13, 1878. The composition was approved by the bankrupt court, but it fell through and was never carried out. Notwithstanding these facts, the assignee advertised and offered the property for sale at public auction, July 13, 1878. It was alleged by plaintiff, but denied by defendant, that the assignee, through his agent, publicly declared at this sale that the assignee had valid and perfect title to the premises, and could and would convey the same to the purchaser, especially as against the claims of Mrs. Buck and the bankrupt. Plaintiff alleges that she, through her husband as her agent, relying on this representation, bid off the property for $3,500. She paid $875 down, and she alleges that subsequently, upon further assurance from the assignee that he would indemnify and protect her against Mr. Bucks’ claims, she paid the balance, received the assignee’s deed, which was without covenant for title or warranty, and entered into possession. This representation and-the plaintiff’s reliance thereon, as well as the agreement to indemnify, etc , were denied.

There certainly was evidence tending'to sustain the plaintiff’s allegations on both these points, and the jury has found in plaintiff’s favor on each of them by special and general verdict. We must, therefore, assume that plaintiff’s contention was the truth of the case, and pass on to determine the resulting rights.

After the purchase by and conveyance to plaintiff, the assignee procured an order vacating the order by which the composition had been confirmed. This was done bv the bankrupt court, October 27, 1878. Subsequently, and about February 21, 1880, Mrs. Buck sued the assignee, the plaintiff and others in the Circuit Court to set aside both these deeds on the theory of total failure of consideration as between herself and the assignee, and that plaintiff had taken lier deed with notice of the foregoing equities. The assignee died while that suit was pending, and the defendants were made parties, in his stead, as his executors. The assignee plead, as an answer, that Mrs. Buck’s original title was fraudulent' as against him, and thus raised the same question which had been presented by his original suit to set aside her deed. This second suit was tried and resulted in a decree, June 28, 1883, adjudging Mrs. Buck’s title valid at the time of her conveyance to the assignee; that there was a failure of consideration for that convevance and that he was bound to reconvey to her, indeed that that conveyance was null and void; also that the assignee’s conveyance to this plaintiff was null and void, and that she and her husband should reconvey to Mr. Buck ; and so the plaintiff was compelled to, and did surrender, and was deprived of all benefit of her purchase from, or for her money paid to the assignee.

Assuming the correctness of the finding of the jury, the plaintiff relied on an express represensation made by the assignee to the effect that he had good and «valid title to the premises and a valid right to sell and convey them, and she paid him her money in reliance upon the truth of that representation, which turns out to have been totally untrue. She, therefore, paid him her money and got nothing for it. Justice naturally demands that she should recover it unless there is some legal impediment. The case shows that a second question was submitted to the jury, whether or not after the auction sale and in order to induce plaintiff to carry out that purchase, the assignee agreed that he would hold her money for the benefit of the parties entitled thereto, until Mrs. Buck’s claims were decided, and would refund that money if it turned out that he had no title. The evidence justified the submission of that question to the jury and they decided it in plaintiff’s favor.

It is thus apparent that, so far as the intention of the parties extended, the real transaction between plaintiff and the assignee was far from a complete and unqualified sale. Testing it by the intention of the parties, the assignee did not equitably and fairly acquire the absolute ownership of or even to use her money, but was bound to hold it as a sort of trust fund until the controvery with Mrs. Buck was. determined. In other words, the transaction between the assignee and plaintiff seems to have been this: She bad made a contract to purchase a piece of property at a judicial sale which the court would not have compelled her to take, and she was then entitled to the restoration of her $875 paid on the bid ; and in view of this difficulty, the assignee said “take my deed without covenant for title, and, as against this claim by Mrs. Buck, I will hold this money, not as my money, absolutely, but in trust and as your security against this contention.” The recitals in the deed to plaintiff, taken with the findings of the jury, very clearly and distinctly put the foregoing as the substance of this bargain.

The defendants’ sole answer is, therefore, reduced to the proposition that this agreement was all merged in the assignee’s deed, and that no obligations'can survive which is not evinced by the writings. In other words, their plea is the statute of frauds. But, it is a well-settled rule that the statute of frauds shall never be held as an instrument of fraud and oppression, and it seems to me that to apply the statute rigorously to this case would be to do both those things. These parties were dealing on the basis that the assignee held a valid title. The plaintiff meant to take no chances respecting the title. If she obtained no title she was to have her money back again. The assignee meant that she should take no chances, unless he meant to cheat her, he intended to give her money back to her if he gave her no title. He took the money upon the express understanding that it was not absolutely his property, and would not be until the question of title was settled. Until that point was determined the assignee was the mere custodian of her money, her trustee of the money, having a purely contingent interest in it. Suppose, for the purpose of illustration, that plaintiff’s money had been deposited in the hands of some third person or trust company to be paid to the assignee if the title was held good, and to be paid back to her if it was held bad. Could there be any doubt that she would have been entitled to it on the facts here established ? I think not. There was no trust in the land. They did nothing with the land. The deed did not reach the land. The trust related to the money. The statute forbids no such trust as that. Here was a clear agreement for a trust of the money and it was paid over for that purpose.

There is still another view; that here was a mutual mistake of fact between these parties. Both assumed title in the assignee when the fact was that he had no title at all. His muniments of title were void. They were deceptive. Grant that he acted in good faith, as plaintiff undoubtedly did; the result shows a mutual mistake about the very existence of the subject of the contract, i. e., the title to the land.

I think the plaintiff’s proposition that the agreement, though by parol, was collateral to the writing and was not within, the statute, is sound.

I have carefully examined the exceptions taken during the trial and find none which are not covered by the points already discussed.

The disposition of the question of costs was undoubtedly correct. The papers show that, although notice to creditors had been published, the plaintiff’s claim had been presented to the executors and they refused to refer it before this suit was commenced. The defendants can take nothing by the fact that there was no notice to creditors. Their refusal to refer obviated that difficulty. Under these circumstances the question of the reasonableness or unreasonableness of the defense has nothing to do with the case. There was a special application and order by the judge who tried the case that costs should be charged against defendants, as executors, payable only, out of the assets in their hands.

■Judgment should be affirmed, with costs of this appeal to the plaintiff.

Dykman, J.:

This action was brought for the recovery of the purchase-money paid by the plaintiff to James R,. Huntting, the testator of the defendants, for real property conveyed to the plaintiff by such testator as assignee in the bankruptcy. The title subsequently failed and the plaintiff was compelled to surrender the property.

The trial judge charged the jury, among other things, in this language: If you find that Mr. Clark acting as the agent of his wife, the plaintiff, had an interview with Mr. Huntting and at that interview with Mr. Huntting in the first place refused to take the deed; that after such refusal Mr. Huntting in order to induce him to take the deed promised to protect his wife, the purchaser of the property, and, further, if he would take the deed, to hold the purchase-money for the benefit of the parties who should eventually prove to be entitled to it until the claims against the property of Mrs. Buck were finally decided, and if they were finally decided against him, Iluntting, that he would refund the money to Mr. Clark 'for his wife; in that event the plaintiff in this action would be entitled to a verdict, and if she is entitled to any verdict, I understand that there is no dispute about the amount, which would be $3,500, with interest from July 31, 1878.” * * * “I have prepared two questions to be specially submitted to you. They are in writing and you will answer them separately in writing, apart from your general verdict, although it is not necessary that you should sign your answers. The first question is: - On the opening.of the sale of the real estate in question at Sag Harbor, New York, on or about July 13, 1878, upon offering said real estate for sale, did the agent of James R. Huntting (who is represented to have been Mr. Carpenter), the assignee, in his presence state that said Huntting as said assignee, had a good title to said real estate, and could and would give a good title to the purchaser thereof, as against the bankrupts, William Buck, and William Buck, Jr., and Sybil T. Buck; was that so substantially; do you draw that inference from the facts that you find occurred there ? Secondly: Subsequently, and before accepting the deed, did Stephen Clark, acting as the agent’ of the plaintiff, have an interview with the said James R. Iluntting in which the said Huntting in order to induce Clark to accept such deed in his wife’s behalf, promise to said Clark to protect the plaintiff, and if said deed was accepted, to hold the purchase-money for the benefit of the parties who should be entitled to it until the claim of Mrs. Buck against the property was decided, and to refund said purchase-money in case he, the said Huntting, proved to have any title % Gentlemen of the jury, I instruct you that you can render no verdict for the plaintiff unless you answer “yes” to the second question, but I want you to answer both questions.” The jury found a verdict in favor of the plaintiff for the full amount claimed, with interest, and it must now be assumed that the questions laid before the jury were both solved in her favor. Such being the assumption, the finding is fully sustained by the testimony upon which the jury might well rely.

We have concluded to hold valid the contract so substantiated by the finding. Our conclusion is that the plaintiff possessed the right when she was ready to accept the deed and pay the money to exact a contract, as a condition of the fulfillment and performance of her contract from the defendant’s testator, that he would hold the purchase-money, and repay the same to her if it finally appeared that her title was a failure. Such an agreement was a new and independent one unaffected by the doctrine of merger or the statute of frauds. We think, however, the award of costs against the defend- ants as executors was err oneous. (Johnson v. Myers, 103 N. Y. 666.)

The judgment and order denying a motion for a new trial should be affirmed, with costs. The order awarding costs to the plaintiff should be reversed, with ten dollars costs and disbursements.

Judgment and order denying new trial affirmed, with costs


author: Pratt, J.:

text:
    In the Matter of the Application of JOHN H. ABRAMS, Jr., for a License, Appellant, v. BOARD OF TOWN AUDITORS OF THE TOWN OF HEMPSTEAD, Respondent.

      Oyster grounds in Hempstead and Jamaica bays — the right to plant is regulated by chapter 639 of 1871.
    The rights of oystering in the waters of Hempstead and Jamaica hays are, regulated hy chapter 639 of 1871, which confers upon the hoard of audit of the respective towns the right and duty of licensing the grounds to inhabitants of the towns, but allows hut three acres to each inhabitant.
    Appeal from an order of the Kings-County Special Term and entered in Queens county, denying a motion for a writ of peremptory mandamus.

    On November 13,1886, one Abrams applied to the defendant as the board of town auditors of the town of Hempstead, to revoke a license of some oyster grounds, granted by the board to one Jennie Johnson, and for a license to himself of the same grounds, claiming priority of right. The board met pursuant to Abram’s request and accorded a hearing to all parties on the 12th of February, 1887, and after taking proof of the facts and upon due deliberation the board refused to revoke the license to Jennie Johnson and denied the application. Abrams then applied to the Supreme Court at Special Term, for a mandamus to compel the board to revoke the license to Jennie Johnson, and to issue a license to him, which was denied.

      Horace Secor, for the appellant.

      A. N. Weller, for the respondent.
   Pratt, J.:

We think that the application for a mandamus was properly denied. The general rule is that where a subordinate body is vested with power to determine a question of fact the duty is judicial and though it can be compelled by mandqmus to determine the fact it cannot be directed to decide in a particular way, however clearly it be made to appeal, what the decision ought to be.” (Francis v. The Common Council, 78 N. Y., 33.)

Here the board has not refused to exercise its functions; on the contrary, it has acted upon the matter at appellant’s request. The decision did not suit appellant and he is now seeking to compel the board by a mandamus to decide in a different way. It is virtually an attempt to review the determination of a subordinate ; tribunal by the writ of mandamus. A mandamus cannot properly be made to do either a prohibitory or reviewing duty; its purpose is purely mandatory. (People ex rel. Faile v. Ferris, 16 Hun, 219; S. C., 76 N. Y., 326.) But aside from any technical question the decision of the board was right upon the merits. The Session Laws of 1871, chapter 639, regulates the licensing of the oyster grounds in Hempstead and Jamaica bays. It confers upon the board of audit of the respective towns the right and duty of licensing the grounds to inhabitants of the town, but allows but three acres to each inhabitant. It must appear to the satisfaction of the board when an application is made that the ground contains no planted bed of oysters, or contains no bed planted by any person other than the applicant. Chapter 384 of the Laws of 1879, forbids the planting of oysters in those bays without a license and makes it a misdemeanor for any one to plant oysters without a license.

Tbe relator claims that because some three years ago he had a license of these grounds for one year that the board would have no light to license the ground to any one else. This cannot be sound, because in that case no person would ever take out but one license. The town would be remediless for he could plant oysters and use the grounds ad infinitum,. The prohibition in the statute against granting a license for grounds already planted, means land legally planted. The town cannot be deprived of the right to license by a trespasser planting oysters. To hold otherwise would render the law nugatory. It fairly appeared before the board that the relator was a willful delinquent who had occupied the grounds for three years without paying the license fee and that he had no intention of taking out a license. It was not the case of a pai’ty planting by mistake or in good faith intending to apply for a license. The board was therefore justified in refusing a license to the relator. In no other way can effect be given to the statute except to hold that the board may license any ground for which no license has been granted or applied for unless it is already legally planted.

The order should be affirmed, with costs and disbursements.

Barnard, P. J., and Dykman, J., concurred.

Order denying mandamus affirmed, with costs.


text:
    MAGDALENA KEPLER, Executrix, etc., of ADAM MACHT, Deceased, Respondent, v. SUPREME LODGE, KNIGHTS OF HONOR, Appellant.

      Insurance association — designation of the beneficiary — wZien the fund may he disposed of by will — when the association will be deemed to have waived defects in the form of designation adopted,

    Upon .tlie trial of this action, brought against the defendant, a fraternal organization engaged in the business of life insurance upon the assessment plan, it appeared that one Macht, a German laborer, became a member of the association in 1885, and received a benefit certificate payable to his wife, Catharine, whom he had married many years before. At the time of the marriage Catherine had a daughter, the plaintiff, who always lived with Macht and his wife, Macht never having had any children. After the death of the wife, which occurred a few months after the issuing of the certificate, Macht made a will, by which he left to his step-daughter all his property, which, with the exception of his clothes and a little furniture, consisted of the insurance in question. After the will was drawn he caused a friend to write a letter on the hack of it to one Osborn, one of the principal officers of the lodge, and delivered the will to Osborn, and also told one Boyer, the reporter of the lodge, of the contents of the will, and of his understanding that it conveyed his insurance to his step-daughter.
    The defendant refused to pay the plaintiff, who had proved the will after the death of her step-father, upon the ground that Macht had not complied with the requirements of an article of its constitution providing that “in the event of the death of all the beneficiaries designated by the member, before the decease of such member, if he shall make- no other disposition thereof, the benefit shall be paid to the heirs of the deceased member, and if no person shall be entitled to receive such benefit, by the laws of the order, It shall revert to the “widow and orphan benefit fund ”

      Held, that under a fair construction of this provision Macht should, under the circumstances of this case, be held to have disposed of the fund in favor of his step-daughter.

      Hellenbergv District No 1,1. 0 of B. B (94 IT Y , 583) distinguished.
    That if this were not so, the delivery of the will to Osborn, the proper officer of the lodge, and the. contemporaneous statement made by the assured to Boyer, the reporter of the lodge, and the retention of the will by said lodge, without any objection to the form or manner of designation, constituted a waiver of any defect or irregularity m such designation or disposition
    Appeal from a judgment in favor of the plaintiff entered upon the trial of this action by the court at the Dutchess County Circuit, after a trial before the court without a jury.

      Morris Goodhart, for the appellant.

      Thompson, Weeks & Lown, for the respondent.
   Pratt, J.:

The defendant is a fraternal organization engaged in the business of life insurance upon the assessment plan, and the testator of the plaintiff became a member of such organization. It was incorporated under the laws of Missouri, but did business through subordinate lodges, one of which was located at Poughkeepsie.

The testator, Adam Macht, a German laboring man, married a, wife, Catharine,, about forty-five years ago in Germany, who was a widow with one child, the plaintiff. They soon after came to America and settled in Poughkeepsie, where they lived as one family. No children were born to the testator and Catharine, but ■the child of the latter was always the same as if she was the testator’s own child. In 1885 Macht became a member of the lodge in Poughkeepsie, and received, in due form, a benefit certificate, in which was written the name of Ms wife as beneficiary in case of his death. A few months after Catharine died, but no change was made in the certificate, but Macht continued to live with his stepdaughter, until September, 1886, when he went to a lawyer to get his will drawn. By the will he left all his property to his stop-daughter, except a small sum for a stone and care of burial plot. Except his clothes and some little furniture he left no property of any kind except the Insurance in question. After the will was drawn he went to a friend and caused him to write a letter on the back of it to Oakley Osborn, then one of the principal officers of the Dutchess Lodge.” The will, so indorsed with a letter, was then delivered by the insured to said Osborn. Apparently the motive for such indorsement and delivery was a belief on the part of Macht, who was an illiterate man, that the will relating entirely to his benefit insurance should properly be placed in the custody of the lodge or its officers. Osborn received the will and kept the same without reporting to the lodge or taking any action thereon. Subsequently Macht died, and the stop-daughter then went to him and got the will, which was duly proven, and letters testamentary issued to said Magdalena. The Grand Lodge of the order refused to pay the claim on the ground that Macht had not taken steps sufficient to pass Ihe insurance to his step-daughter.

Section 6 of article 9, of the constitution of the lodge is as follows: “ In the event of the death of all the beneficiaries designated by the member, before the decease of such member, if ho shall make no other disposition thereof, the benefit shall be paid to the heirs of the deceased member, and if no person or persons shall be entitled to receive such benefit, by the laws of this order, it shall revert to the widow and orphan benefit fund.”

This section expressly states what shall be done in ease of the death of the beneficiary, and must be regarded as controlling. We think, under a fair construction of this provision, Macht disposed of this fund and, therefore, it did not revert to the widow and orphan fund. It is plain the testator intended to dispose of this fund by his will when all the facts and circumstances surrounding the transaction are considered. He bad no other property upon which the will could take effect. Tie spoke to the lawyer who drew his will about this insurance, and tells Boyer, the reporter of his lodge, that it was to go to his step-daughter. He sent the will to the officer of his lodge apparently with the design to notify the lodge of his intention. It is true the will does not specifically mention the fund, but he had kept up the insurance after his wife’s death with the assistance of the step-daughter,' and undoubtedly intended that she should have the benefit of it, and as clearly supposed that lie' liad secured it to her by the will and by taking steps to notify the lodge. So far as appears he had no relations and no object of bounty except the plaintiff, and it is not at all probable that he, together with the plaintiff, would struggle to keep up the insurance for the benefit of the widow and orphan fund. Under all the circumstances, we think he made a sufficient disposition of the fund within the meaning of the section above quoted.

The case of Hellenberg v. District No. 1, I. O. of B. B. (94 N. Y., 583) is not in conflict with these views. There the insurance was in the absence of wife and children, to go to such person or persons as he may formally have designated to his said lodge prior to his decease.” Such designation was by means of the signature of the assured in a certain lodge book, which signature was to be witnessed by a brother member. The by-laws contained a plain provision that if the assured left no wife or children, and neglected to make such designation in the manner prescribed, then the insurance should lapse. There was no general power of “ disposition ” as in this case, and, hence, the court held that the assured having only the power to designate a person to receive the fund, and that person having to be designated in a formal manner prescribed by the by-laws and said designation having to be “ to Ms said lodge prior to Me decease,” that these requirements were not met by a clause in his will leaving the fund.to his brother.

But even in this case the court says, in substance, that the will would have operated as a sufficient designation if it had been brought to the notice of the lodge during the lifetime of the assured. That in that case it would have been good as a designation, although not yet operative as a will; ” but that it not being brought to the lodge’s notice till after the assured’s death, it was ineffectual. In the present case the will was sent to tlie proper officer of tlie lodge within a day after it was executed and the reporter of the lodge was apprised of its contents by Macht and of the understanding that it conveyed his insurance to his step-daughter right after its execution.

The delivery of the will to Osborn, the proper officer of the lodge, and the contemporaneous statements made by the assured to Boyer, the reporter of the lodge, and the retention of the will by said lodge without any objection to the form or manner or designation, constitute a waiver of any defect or irregularity in such designation or disposition. If the paper was regarded- as imperfect, it was the duty of the officers of the lodge to return it to the assured with notice of defect. We lia,ve examined the other exceptions in the case, but find no error to the prejudice of the defendant.

The judgment should be affirmed with costs.

Dykman, J., concurred, Barnard, P. J., not sitting.

Judgment affirmed, with costs.


author: Pratt, J :

text:
    HOWARD N. BAILEY, Respondent, v. SARAH A. BAILEY, Appellant.

      Adultery — one marrying in good faith, after having recovered a judgment for divorce and before its reversal on appeal, is not guilty of adultery.

    Upon tlie trial of this action, brought by the plaintiff to obtain a divorce from his wife on account of her adultery, evidence was given on behalf of the defendant tending to prove that the plaintiff himself had been guilty of the same olfense, by proving that upon a former trial of this action a judgment was on February 5, 1886, entered in favor of the plaintiff, containing the usual permission for him to marry again; that upon an appeal taken on March 5,1886, to the General Term, this judgment was, on September 20,1886, reversed; that on March 5, 1886, the plaintiff, in good faith, married another woman, with whom he cohabited until September seventeenth, when hearing that the General Term had decided to reverse the judgment, he ceased to cohabit with her.

      Meld, that the defendant was estopped by the former judgment, from asserting that the plaintiff committed adultery with the woman he married in reliance thereon.
    Appeal from a judgment in favor of tlie plaintiff entered in Kings county upon the trial of this action by the court without a jury.

      This action was commenced to obtain a divorce on the ground of the defendant’s adultery. The parties were married on the 12th day of December, 1867. The action was first tried on the 4th of February, 1886, and judgment rendered for plaintiff and entered on February 5,1886. From that judgment the defendant, on March fifth, appealed to the General Term of the Second Department, which reversed it. After the entry of the judgment on the first trial the plaintiff married another woman, and thereafter cohabited with her until the 17th day of September, 1886, when he was notified that the judgment was reversed, whereupon he immediately ceased all marital relations with her. The order reversing the judgment was entered the 20th day of September, 1886.

      A. H. & W. E. Osborn, ior the appellant.

      Herbert S. Ogden, for the respondent.
   Pratt, J :

The question of defendant’s guilt of adultery with Moore, before she became insane, was too plainly proven to admit of serious controversy. Mrs. Nyan testified that she saw them in bed together in the daytime during plaintiff’s absence from his home. Other witnesses testified to other facts which clearly indicated the same relations The learned trial judge believed this testimony. Ve see no reason to criticise his findings. The other questions of plaintiff’s guilt are more serious; but we incline to the belief that the defendant was estopped by the former judgment from asserting that plaintiff committed adultery with the woman he married in reliance thereon. And, hence, that the learned trial judge was correct in directing the entry of judgment of divorce.

It appears that this action was' tried before another judge upon charges of adultery with another man, resulting in a judgment in plaintiff’s favor, entered February 5, 1886, containing the usual permission that plaintiff might marry again. Ho availed himself of this privilege, and, in good faith, married another lady with whom he cohabited until September 17, 1886. He then heard that the General Term had decided to reverse the judgment and he, therefore, ceased such cohabitation. The General Term order and judgment were not entered until September 20, 1886. Hence, this cohabitation was wholly within the period while the judgment was in force and under the form of a marriage. The charge of adultery against plaintiff is based upon no other suggestion of sexual inter* course. Even this has not been plead as a defense. Perhaps the fact that defendant’s insanity at the commencement of this action renders it necessary that the court should take cognizance of the fact of this cohabitation, irrespective of her pleading, is just, as in cases of a general answer by an infant. But, in the view which we have adopted, it will become unnecessary to deal with this suggestion. ¥e place our decision on a ground which, if sound, will be more useful to all parties concerned.

It is now argued in behalf of the defendant that the reversal of the first judgment left the parties in precisely the same legal situation, and all their acts subject to precisely the same legal consequences as if it had never been entered at all. The first part of the proposition may be conceded, but we are unable to assent to the latter part of it. The court certainly had full and complete jurisdiction over the parties and the subject-matter of the action, and there is not the slightest suggestion of any wrong by the plaintiff in obtaining the judgment. The case of McGiffert v. McGiffert (31 Barb., 69) and Vischer v. Vischer (12 id., 640), and others which we may incidentally note hereafter, are, therefore, distinguishable from this one on this plain ground. There was, therefore, a just and lawful judgment, which, in form at least, annulled this marriage and bound the parties so long as it remained unreversed. It was, apparently, the voice of the law permitting the plaintiff to marry again. Remarriages by plaintiffs who have been lawfully divorced are encouraged quite as much as original marriages between unmarried persons. This judgment was, therefore, apparently an invitation to plaintiff to seek a new marriage relation. Although erroneous, it went into full force and effect on February 5,1886, and thus remained during the whole period of plaintiff’s cohabitation under the second marriage. In other words, while this cohabitation was going on, this judgment was a complete estoppel upon every person interested in the matter from alleging that it was adulterous. No lip could be open to challenge either its morality or legality. And the question then recurs, did the reversal of this judgment in any respect affect the legal or moral character of this cohabitation ? In other words, can the law, in one breath, invite an act, and, in the next, condemn it as illegal and immoral, simply because one of its ministers has made a mistake. It should be observed that the precise point under consideration is the moral and legal character of this cohabitation, and that the force and effect of the reversal upon the legal ''status of these parties as husband and wife has no place in the discussion. Of course they were man and wife, and had never ceased to be, for the reason that the law ignores the erroneous judgment upon existing rights so soon as it is blotted out. But not so of the cohabitation under the erroneous judgment. That did her no wrong in a legal sense, for the reason that it was an act lawfully done under existing authority of law.

In the first place the element of voluntary immorality is utterly Wanting, just as in cases of complete rape * * * or where the act is accomplished by fraud * * * or while one of the parties is insane. (2 Waite’s Act. and Def. 559, citing the cases.) The essence of the act is its voluntary immorality. It is not immoral, for the reason that it is done in good faith and in obedience to the invitation extended by the law itself. To hold otherwise would he to permit the law itself to perpetrate a fraud upon the party who thus cohabited in reliance upon its representation. Such cohabitar tion, where the parties are fully justified in believing in the innocence and legality of the act, is quite as clearly an honest mistake of fact, as where a woman submits to the embrace of a man honestly believing him to be her husband. {Supra.) In the next place all the analogies of the law relating to private rights, and the cases seem to us to sustain the view which we have expressed.. If this judgment had been for a sum of money, the plaintiff might lawfully have taken defendant’s property in satisfaction, unless the proceedings were stayed pending the appeal, and the act of taking and holding would not have constituted a wrong in any legal sense of the term. (Langley v. Warner, 3 Comst., 327; Simpson v. Hornbeck, 3 Lans., 53.)

True, there would have been the duty of restitution on reversal; but that duty would not have arisen vmbil reversal, and its foundation would then have rested “ in conscientiaW It would have arisen ex ceguo etbono. The same would have been true of an equity judgment requiring the performance of some particular act. Performance of the act would not have constituted duress. Much stronger is the case of judgments requiring abstinence from particular acts. For them the law permits no indemnity either as restitution, eo nomine, or as damages, unless some undertaking has been given. And, again, suppose the judgment had been used in evidence on the trial of some other action, as an estoppel; a judgment entered thereon would not have been effected by the reversal of the first judgment. The relief against such an injustice must be accomplished, if at all, by some subsequent act of the court and does not result, ipso facto, by reason of the first judgment. And, again, drawing a closer analogy, take the case of Valleau v. Valleau (6 Paige, 207), where a man abandoned his wife, and they were separated for more than five years, without her knowledge of the fact that he was alive, and the wife, still ignorant of his existence, and in good faith, married and cohabited with her second husband. The intercourse was not adulterous. Indeed, since such a marriage was valid until the entry of the decree annulling it, we fail to see why the wife would not have been guilty of adultery, respecting her second husband, if she had returned to cohabitation with the first one. In such cases the issue of the second marriage is absolutely legitimate (Bowers v. Brower, 9 N. Y., Leg. Obs., 196; Price v. Price, per Landon, J., Warren Circuit, April, 1874), and marital rights result to the husband in the wife’s property as in Griffin v. Banks (37 N. Y., 621; S. C., 24 How. Pr., 215); and dower is acquired by the wife in the husband’s lands as in Price v. Price (33 Hun, 76). See, also, White v. Lowe (1 Red., 376); Wyles v. Gibbs (1 Red., 382). And, again, in Colvin v. Colvin (2 Paige, 385), it was said that a wife divorced for adultery could not lawfully remarry her former husband until the decree divorcing them was annulled, and that children born of such cohabitation would have been illegitimate. Of course it may be said that some of them are cases where the second marriage was lawful and simply voidable. But that is not to the point. The point is that wherever the law invites an act, which would otherwise be unlawful, whether it be by express general provisions or through a valid judgment which purports to express the law of the particular case, the acts of parties in pursuance thereof are not illegal, and especially is connubial cohabitation, under such circumstances, free from the charge of adultery.

The same results are apparent if the subject is examined from the standpoint of public rights, for it would scarcely be contended that this plaintiff could be convicted of bigamy upon his second marriage solemnized while this first judgment was in force. We have not overlooked the cases which apparently seem to bear a close analogy, in which such intercourse is spoken of in general terms as adulterous. (Comstock v. Adams, 12 Chicago Legal News, 359; S. C., 23 Kansas, 514; 2 Bish. on M. and D., 753, 753a; Crouch v. Crouch, 30 Wis., 667; Warner v. Warner, 11 Kansas, 121; Allen v. McClelland, 12 Pa. St., 328.) But they, like the McGiffert and Vischer cases (supra), have more apparent than real bearing, because the judgments were either void for want of jurisdiction or the results of frauds perpetrated upon the court by the parties who sought protection under them. This case proceeds on the theory of good faith; and it is not met by the suggestion that plaintiff’s second marriage was within the time for an appeal. This first judgment tuok effect on its entry, and was then operative to protect this plaintiff from a charge of adulterous intercourse. To hold otherwise would be to say that a judgment for divorce, unlike any other, did not take effect until thirty days after its entry, and not then or for an indefinite period thereafter, if appeals were taken in due time. Of course, the plaintiff and his second wife ran the risk of the reversal of the first judgment, and that risk involved the validity of their marriage and perhaps the legitimacy of the children begotten of it, if any; but it seems an absurdity to say that this defendant, who during the whole period of this cohabitation was estopped from asserting that it was otherwise than innocent and lawful, could, after the reversal, be heard to say that it was adulterous and unlawful. The acts which plaintiff performed were not wrongs against this defendant at the time when they were done. They were done in reliance upon, and in a certain sense, under legal sanction. Their legal character did not change with the reversal of the judgment. There is nothing, ex equo et bono, bearing any analogy to restitution, which could be effected by the reversal. Everything of that nature is accomplished by her restoration to the married state, in which the reversal placed her. One might with equal propriety insist that a new judgment in another action obtained upon the first judgment as evidence of a right or incident of a right of recovery, was quo facto annulled by the reversal of the first judgment. This illustration will alone suffice to show that the general proposition that the reversal operates to obliterate the judgment for all purposes, is too broad and is not of universal application. It operates upon the status quo at the time it is entered, but does not give any new rights except those to which the idea of restitution may be legitimately applied. Even that right relates only to thestatus quo.

If one must wait for the expiration of the time for an appeal in such a case, why must he not also wait until the possibility of a new trial for newly discovered evidence shall have passed by the death of contemporary ivitnesses \

The fact that a reversal might defeat a second marriage, and possibly bastardize children, is not to the point. That result happens in consequence of the fact that two marriage states for a single person cannot lawfully exist at the same time, and the latter must yield to the former from the necessity of the case. But that is not true of the character of cohabitation in reliance on such a judgment as this, because the physical act constituting the intercourse may happen even during a state of unqualified marriage without being adulterous, in the eye of the law.

Barnard, P. J., concurred; Dykman, J., not sitting.

Judgment affirmed, with costs.