text:
    Singer Manufacturing Company, Resp’t, v. Abraham Coon, as Administrator, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Evidence—Declarations—Principal and surety.
    The declarations or admissions, made by the principal during the transaction of his business and in the general course of his employment, so as to become a part of the res gestae, are admissible against the surety and binding upon him.
    Appeal from a judgment rendered in favor of the plaintiff in the district court of the city of ¡N"ew York for the sixth judicial district.

      Moses Esberg, for app’lt; William H. Hamilton, for resp’t.
   Bookstaver, J.

This action was brought against one George Coon upon a bond which he had executed as surety for .one Frederick Joseph, an employee of the plaintiff, for moneys collected by him while in the employ of the company, from the leases of its machines and not accounted for or turned over. The surety alone is sued in the action and his liability under the bond is limited to the sum of $200 and ten per cent, attorney’s fees, making in all $220. In order to a clear understanding of the questions of law involved in this case, it is necessary to give a somewhat extended statement of the way in which the plaintiff’s business was conducted. From the evidence it appears that any one entering into the employ of the company as a collecting salesman or canvassing collector, was required to furnish a bond conditioned for the faithful performance of his duties as such employee and to account for, and pay over and deliver to the company all moneys, credits, notes, leases, etc. that might be entrusted to him or come into his possession or under his control by virtue of his employment. The company manufactures and sells on the installment plan and otherwise, sewing machines owned by it, and it was for the canvassing of new leases of its machines and for the collection of installments on open accounts that Joseph was employed as agent. He was given a set of $1, $3 and $5 receipt books, and a card prepared somewhat on the plan of a ledger page for each account in his district. When he collected an • installment from a lease, he was required to issue a receipt for the same, which he signed, and also to enter on the stub corresponding to the receipt, the "name, date and amount, etc., as well as on the receipt which he also signed. Each receipt had a number which corresponded to that of the stub. At the same time he was bound to credit the party making the payment on the card appertaining to that particular lease account. This card enabled all parties at a glance to ascertain the condition of the account at any particular time. Every evening on the completion of his day’s canvassing, he was required to return to the cashier of the company, his receipt books, and the payments indicated by the stubs, and from those stubs, entries were made in the company’s cash book and subsequently posted in the ledger. On the following morning the receipt books were returned to him for further collections on that day. When all the receipts in the book were used up, it was turned into the company and filed away. When all installments due on any particular machine were paid, Joseph turned in the card for that amount, and the company gathered all the receipts in the hands of the lessee which were not lost or destroyed, and issued a bill of sale of the machine, and the account was then closed. At times payments were made by lessees to the company at its office instead of directly to the collecting agent, and then it was developed that the lessee in some cases held more receipts than he was credited for on the books of the company. This led to inquiry, whereupon all the accounts in Joseph’s district were investigated, and by comparing the receipts held with the accounts of the lessees as shown by the company’s books, an estimate of the deficiency was arrived at. ' The receipts in excess were taken up and others issued to the holders and the lessees credited with the payments thus authenticated on its books, even although as is apparent, the company never received payment on such receipts. The result of this was that the company held in its hands certain receipts bearing the name of a given lessee and a stub corresponding to the same in number bearing the name of another and different lessee, both of which from the necessity of the case were credited on the books of the company although one payment only in each case was actually turned in by the agent, the other being retained by him. The various books containing stubs only, corresponding in numbers to the receipt mentioned but unlike in all other par-particulars showed that from the beginning of 1892 down to the commencement of this action, Joseph had made collections from the lessees mentioned by him in those stubs, and persons and accounts entirely different from those whose names, amounts, etc., are mentioned in the bill of particulars. These stubs were turned in daily to the company’s cashier along with the amount of cash represented by them. At the same time a collector’s card for eacli amount on which Joseph had made these collections that day and which collections were noted thereon by him, was turned in. From these stubs and cards, all in Joseph’s handwriting and constituting his report for the day, the cashier and bookkeeper made the corresponding credit entries to the different accounts on the company’s books. Of course the amount of cash turned in each day corresponded to the collector’s report of his collection as such report appeared on the receipt stubs and on the collector's cards. For that reason Joseph’s embezzlement was not discovered until lessees holding receipts £or payments sufficient to entitle them to a bill of sale of tile machine, appeared at the company’s office to obtain it, at the same time presenting a receipt or receipts signed by Joseph, but never reported by him, and bearing numbers corresponding to the number of stubs on which Joseph had reported other collections. An examination of all of the receipts thus collected by the company showed that Joseph had failed to account for upwards of $480 which he had . received from various lessees mentioned in the bill of particulars annexed to the complaint. Joseph was called as a witness for defendant and practically admitted that he had purposely made false reports to the company as to the account on which he made collections, and excusing himself because “in the beginning it was less than a dollar, trying to rectify it I got deeper and deeper all the time. Every night or the following day I tried to cover it.” He also claimed that these entries were made in the manner they were “ to keep dead cases alive; ” but on cross-examination he was unable to testify as to which.were dead or which were live cases. It is true that in a general way he claimed that he had never misappropriated the company’s money, but in one particular instance amounting to thirty dollars, he confessed that he had collected but never turned in the amount. In some cases where the stubs did not correspond to the receipt, he admitted that he had received the money as mentioned on the stub; and in other cases it appeared that persons whose names were mentioned only on the stub, testified that they got from the company bills of sale of machines, although they were short of receipts. With the exception of the thirty dollars before mentioned, and one or two items of less amount, the plaintiff on the trial relied upon the stubs, receipts and cards made by Joseph in the course of his employment, as proof of his embezzlement, and the first question presented is, whether these receipts, stubs, etc., were evidence against the surety. As a general rule a surety is not bound by the admission of his principal, and the reason for this is obvious, the surety is b.ound only for the actual conduct of the principal, and not by what he may have said or done outside of his employment. But to this rule there is one well defined and long established exception, and that is in the case of declarations or admissions made by the principal during the transaction pf his business and in the course of his employment, so as to become a part of the res. gestee, under which circumstances such acts and gdmissions have always been held admissible against the surety and binding upon him- The general proposition is thus laid down in Greenleaf on Evidence, § 187: In one becoming surety upon a bond conditioned for the faithful conduct of another as clerk or collector, it is held that in an action on the bond agaipst the surety, confessions of embezzlement made by the principal after his dismissal, are not admissible in evidence, though with regard to entries made in the course of his duties it is otherwise.” To the same effect, Phillips on Evidence, Ed. 1868, 486. In confonnity with this exception it has been uniformly held that the statements of a treasurer of a society made during the period covered by his bond and in accordance with his duty, were competent and primary against his sureties. McKin v. Blake, 139 Mass. 593; Bank v. Smith, 11 Allen (Mass.) 243; Father Matthew Society v. Fitzwilliams, 84 Mo. 406; State v. Newton, 33 Ark. 276. So, too, the return of a sheriff on execution has been held to be conclusive evidence of the moneys received by him against his sureties; Crocker on Sheriffs, § 46 Cow. & Hill’s Notes, 1085; Bogat v. State, 33 Ind. 262; Brown v. Cloud, 6 Ala. 248; and his indorsement on the execution of the time of its receipt is deemed conclusive evidence that it was in his hands at that time; 1 Hall, 579. It is true in such cases it has been held that as to third parties it is prima facie evidence only and may be explained ; 23 Wend. 289. In this instance the defendant attempted to explain the transaction, but the justice who tried the case, and we think properly, placed no reliance upon the explanation. So also, it has been held that the voluntary account of an administrator was prima facie evidence of the amount in his hands on a suit against his sureties; Lane v. State, 27 Ind. 108. The distinction between the rule before laid down, and the exception, ivas very correctly stated in Douglass v. Howland, 24 Wend. 35, ivlmre the declarations of the principal sought to be admitted in evidence as against the surety on the trial of that action, consisted of a decree in chancery upon a proceeding for compulsory account of the principal as to funds in his hands, the surety not being a party to the proceeding, which said accounting and proceedings were had sometime after the payment sought to be recovered against the surety. On the trial below the decree was admitted in evidence, and upon review before the appellate court it was held error, on the ground that such a decree did not constitute a part of the res gestae or of the transaction for which the surety was bound. The bond in that case was conditioned for an accounting on the part of the principal for certain moneys and for the payment over by him of the balance due to the plaintiff. Judge Cowen writing the opinion of the appellate court, laid down the distinction in the following language: “that had the principal voluntarily accounted on the principle prescribed by bis agreement so to do, the surety would have been liable for the balance struck. The striking of such a balance would be an admission making part of the res gestae. Indeed, any and every act leading to or connected with it, would be the res gestae themselves for which the defendant undertook in his covenant.” But the accounting in that case was compulsory and made long after the employment had .ceased and was clearly not admissible as part of the res gestae and the appellate court so held. In Hatch v. Elkins, 65 N. Y. 489, which cited and approved Douglass v. Holand, supra, where a letter written by the principal long after the account .Was rendered and closed, admitting the correctness of a certain account and the balance therein stated to be due, it was held o,n appeal to be inadmissible as against the surety. The court said, “ that such admissions of the principal were no part of any res gestae, in reference to which the surety undertook in his agreement. * * * Here the statements of the principal were made, not when he was engaged in any transactions as to buying and selling stocks, but after the transactions were all closed.” We think the case of the Howe Machine Co. v. Farrington, 16 Hun, 591; aff’d 82 N. Y. 121, directly in point in this case. There the action was upon a bond executed by one Davis and the defendant as surety. The agent Davis was in the employ of the plaintiff company for sale of its machines and the bond was conditioned for the faithful performance of the duties of the agent, and that he would make report of sales and remit proceeds weekly and return to the company on demand all machines, etc., not sold. There it was said : -l It is contended that the declarations of Davis were not evidence that he received the machines as against the defendant. The proof was expressly limited to declarations made by him during the period of the consignments and after the execution of the bond in suit, and consisted of admissions made by him of the correctness of plaintiff’s books upon their being exhibited to him. The declarations were therefore, a part of the res gestae and were admissible. It would have been otherwise if they had been made after the transactions were closed, for which the surety was bound ; ” citing 1 Grreenleaf on Evid. § 187; Hatch v. Elkins, 65 N. Y. 489 ; Tenth National Bank v. Darragh, 1 Hun, 111; Horn v. Perry, 14 Hun, 409. In Placer v. Dickerson, 45 Cal. 12, the receipts given by a county treasurer for payment of taxes made to him were held to be primary evidence against his sureties of the receipt of moneys. It has also been held in an action against the sureties of a justice of the peace for moneys collected by him and not paid over, that letters written while in office to the execution creditor acknowledging the receipt of money, etc., were competent evidence against and binding upon his sureties; Parker v. State, 8 Blackf. 292. In the case under consideration, the stubs, receipts and cards were signed and issued by Joseph as agent for the plaintiff at the time of the various transactions and were contemporaneous with the payments made to him by the lessees. The stubs were filled out by him at the same time and were turned in to the company on the same day his report of collections, etc., were; they were, in. fact, not only part of the res gestae, but they constituted the res gestae themselves, and as such were in our judgment admissible in evidence against the surety and binding upon him. This being the case, the proof is ample to support the judgment rendered by the justice. The stubs acknowledge the receipt of a certain sum of money from one person ; the receipts corresponding in number to the stubs acknowledge the receipt of a similar sum from another. This is corroborated by the entries made upon the cards, all in Joseph’s own handwriting. Thus already showing that he accounted for but one sum received where he had in fact received two of like amount. The broad claim made by Joseph that he had turned in all the money received by him and in fact had accounted for all the moneys collected by him, was discredited by the admitted fact that he had collected $80 and one or two smaller sums without accounting for them, and the justice very properly disregarded the claim. The bond being given for a faithful accounting, and the proof of unfaithfulness being clear, we think the judgment should be affirmed, with costs.

Bischoff, J. concurs.


source: Caselaw Access Project

author: Bookstaver, J.

license: Public Domain

text:
    John Sulyeski, Resp’t, v. Minna Windholz, App’lt.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    1. Tbial—Dismissal of complaint.
    Omission to move for a dismissal of the complaint admits that plaintiff’s proof is sufficient to support his cause of action.
    2. Evidence—Receipt.
    A receipt is prima facie, but not conclusive, evidence of payment, and is overcome by the undisputed fact that items of indebtedness have been incurred since its delivery.
    Appeal from a judgment of the district court in the city of New York for the ninth judicial district.

      Julius Lehmann, for app’lt; Alfred R. Bunnell, for resp’t.
   Bookstaver, J.

This action was brought by the respondent to recover for work, labor and services which he claims to have performed for the appellant. On the trial it appeared from che plaintiff’s testimony that a portion of the work was done under contract and a certain other portion by days’ work and not under contract. Defendant’s contention was that the whole was performed under contract and fully paid for. Defendant did not at any time move for a dismissal of the complaint, thereby admitting that plaintiff’s proof was sufficient to support his cause of action. Curtis v. Saddlery H. Mfg. Co., 7 Misc. 816; 57 St. Rep 551; Frankel v. Wolf, 7 Misc. 190; 57 St. Rep. 536; Carroll v. O’Shea, 2 Misc. 437; 51 St. Rep. 579; Gaylord v. Gallagher, 1 Misc. 328; 48 St. Rep. 704. Appellant now contends that the verdict of the jury was contrary to the evidence and to the preponderance of the evidence, but there being testimony to support the finding of the jury, it should not be disturbed, in the absence of passion, prejudice, fraud or collusion. Schwartz v. Wechler, 2 Misc. 67; 49 St. Rep. 145 ; Morse v. Thurber, 7 Misc. 707; 58 St. Rep. 333; Weiss v. Strauss, 39 id. 78; 14 N. Y. Supp. 776; Styler v. L. R. R., 75 Hun, 547; 58 St. Rep. 727. Appellant also contends that the court erred in not charging the jury as requested by her. The request was in the following language: “I ask your Honor to charge that by the receipt offered in evidence dated December, that the plaintiff cannot recover.” To which the court replied: “ Gentlemen, that is a matter for your determination; there is a receipt in full which you are to consider as evidence in this case ; you will give it such weight as you think it deserves.” To which the defendant excepted. In the first place, there was no receipt in evidence bearing date as of December, while there were in all four receipts in evidence,—one dated April 17, 1893, by which the respondent acknowledged payment in whole, another without date, but which must have been given between the 17th April, 1893, and the 15th July, 1893, which acknowledged payment in full, a third dated July 15th, acknowledging receipt in full, and a fourth dated September 2, 1893, acknowledging the receipt of fifty dollars in full for all work in the house 201 West One Hundred and Twenty-seventh street, which was one of the two houses upon which the work was done. It is, therefore, apparent that whatever was the cause which induced the plaintiff to sign receipts in the manner he did, that work was done after the giving of each one; and it is also clear from the uncontradicted evidence in the case that considerable work was done after the giving of the receipt of September, 1893. The request was therefore clearly wrong, because there was no receipt of the date stated in it, and also because the evidence shows that work had been done after the giving of the last of those receipts. The principle that a receipt is only prima facie evidence of payment is so well embedded in the law as to require citation of no authority. The court did not err in its instruction to the jury, which was to give the receipt such weight as in their judgment it deserved. Under the circumstances of the case it was in no way conclusive, and was overcome by the undisputed fact that work had been performed by the plaintiff subsequent to the giving of the last receipt.

The judgment should therefore be affirmed, with costs.

Gtegerich, J., concurs.


text:
    Herman Tolk, Resp’t, v. Harris Lapin, App’lt.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Appeal—Contradictory evidence.
    A verdict upon contradictory evidence, will not be disturbed, in the absence of passion, prejudice, mistake or oversight.
    Appeal from a judgment rendered in the district court of the city of New York for the fifth judicial district. Action for conversion. Defence, general denial and counterclaim.

      Alexander Finelite, for app’lt; A. & L. Levy, for resp’t.
   Bookstaver, J.

On the trial it appeared that in March, 1893, the parties entered into an agreement whereby the plaintiff was to deliver to the defendant beer, soda and seltzer, and the defendant to be charged therefore by the plaintiff at a certain amount and the profits over and above the amount so charged were to be divided between them. There is little or no difference between the parties as to the quantity and value of the goods delivered under this agreement, save in one respect, as to the small boxes of beer where the plaintiff made a miscalculation which was corrected and the amount agreed upon at the trial. The chief differences between'the parties are as to the amount of money paid by the defendant to the plaintiff and the quantity of syphons and bottles returned by him. Plaintiff claimed that the defendant paid him only $1,780.19, while defendant claimed that he had paid the sum of $1,892.41, making a difference of $112.22. To substantiate this claim defendant produced a pass book in which the plaintiff entered the moneys as received, which foot up the amount claimed by the defendant. In explanation of this, the plaintiff testified that the defendant not having the book with him at the time of the payments, he entered some of the items on defendant’s statements which were incorrect, and that he also entered with the moneys received the commissions which were to be allowed the defendant, thus making the difference; and in this beseems to be substantiated because it is unlikely that the defendant would have paid him the various odd cents which are credited if he bad merely handed him money. As to the contention that the soda was paid for as received, the evidence is very contradictory. And this is also true of the testimony in regard to the'number of bottles returned. The justice who tried the case having the witnesses before him could better judge from the manner in which the testimony was given and the surrounding circumstances, than we can do, and in the absence of passion, prejudice, mistake or oversight being shown, we think the judgment should be affirmed with costs. Bisoeoff, J., concurs.


author: Per Curiam.

text:
    George W. Wensley, App’lt, v. Wilton Randolph, Resp’t.

      (New York, Common Pleas, General Term,

      Filed August 1, 1894.)

    Appeal—Interlocutory order—Summary proceedings.
    No appeal lies to the common pleas from an interlocutory order of a district court, in summary proceedings.
    Appeal from an order of the justice of the district court for the second judicial district granting a motion to open a default.

      Wensley & Gilroy, for app’lt; Harrison & Byrd, for def’t.
   Per Curiam.

The power of this court to entertain appeals from district courts is purely statutory. Ho authority for entertaining an appeal from an interlocutory order has been brought to our attention. Our jurisdiction is limited to appeals from judgments, and final orders in summary proceedings. See Jacobs v. Zeltner, 61 St. Rep., handed down with herewith. This appeal must therefore be dismissed with costs to respondent.


text:
    Adelaide B. Styles, Pl’ff, v. Joseph Blume, Def’t.

      (New York Common Pleas, Equity Term,

      Filed June, 1894.)

    1. Contract—Specific performance.
    Specific performance will not be decreed, where it is unjust and inequitable and will result in giving to one party an advantage for his own wrong.
    2. Same—Money judgment.
    In such case, a court of equity is not precluded from awarding a money judgment merely, especially where the defendant has submitted to its jurisdiction.

      Johnston & Johnston (Edward W. S. Johnston, of counsel), for pl’ff; A. J. Skinner, for deft.
   Bookstaver, J.

This action was brought for the specific performance of a contract for the sale of certain real estate in this city, or in case the defendant cannot make good title, then for judgment for the amount deposited on signing the contract, and her expenses in searching title, etc. On the trial defendant offered to allow judgment for specific performance and claimed plaintiff had no right to more or different. But it then appeared that since the failure of the defendant to complete at the time engaged upon between the parties and since the commencement of the action, the property has depreciated" in value and although defendant claimed to be ready to give a title in fee. It also appeared that when the title was to be closed there was an outstanding claim of title in the father of defendant, and that no quitclaim or other deed had ever been delivered or recorded releasing the claim, nor was such deed tendered on the trial. It is also admitted that at the time there were unpaid taxes and water rates and an assessment for a sewer in Eighth avenue against the property. Under such circumstances I think it would be unjust and inequitable to decree specific performance merely for that would result in giving the defendant an advantage for his own wrong, and thereby the parties would not be placed in the coudition they were before the contract was signed.

See Fitzpatrick v. Dorland, 27 Hun, 29; Dady v. The Mayor, etc., 32 St. Rep. 1082.

Nor do I think that a court of equity is precluded in a case like the present from awarding a money judgment merely as this is the only judgment which would give adequate relief and the defendant has not by his answer claimed the action was properly brought, or that tíre plaintiff had an adequate remedy at law, but has submitted to the forum. But plaintiff can only recover the amount of her deposit and expenses in searching the title. What she expended in excavating, etc. was done at her risk and on a mere consent given by the defendant, which does not render him liable for such expenses.


author: Bradley, J.

text:
    Burdett B. Brown et al., Resp’ts, v. Charles Dow et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

      Refokmatiox—Deed.

    A deed, which creates an estate by the entireties instead of a tenancy in common, as agreed upon by the grantees, will be reformed.
    Appeal from a judgment in favor of plaintiffs.

      William H. Henderson, for app’lts; L. C. Van Fleet, for resp’ts.
   Bradley, J.

The import of the terms of the deed of conveyance made by Jason Hunt and wife to Anson D. Brown and Esther J. Brown, his wife, was that the grantees took title as tenants by the entirety, and, therefore, that, on the death of the wife, the husband became seized of the entire estate in the premises. Bertles v. Nunan, 92 N. Y. 152. The plaintiffs allege that the relation of the grantees to the title was not correctly represented by the deed, but that by it they intended and sought to take title as tenants in common, and that the words essential to the creation of such tenancy were omitted from the deed by inadvertence or mistake. The referee, upon the subject, found as facts that, by an agreement between Anson D. Brown and Esther J. Brown, they agreed to purchase the lot; that each should pay one-half of the purchase price; that a deed should be taken by them as tenants in common, each to have an equal undivided half; that Anson D. Brown should prepare the deed, containing a provision to that effect: that he did prepare the deed, which was executed by the grantors; that each of the grantees paid one half of the purchase money, and the deed was delivered to Anson D. Brown, who caused it to be recorded; that be, as well as she, intended that the deed should convey to the wife an equal undivided half of the premises as tenants in common; that she had no actual knowledge of the terms of the deed, but believed that it did contain a provision to that effect, assented to nothing to the contrary, and never knew that its legal effect was otherwise; that in 1874 the grantees erected a house on the premises, and each of them paid one-half of the expense of the building; that in March, 1876, Anson D. Brown, by deed, conveyed an equal undivided half of the premises to Esther J. Brown, his wife; that she paid him, as the consideration, the fair value of such half; and that all the payments so made by her were made out of and from her separate estate, the most of which came to her from her father. These facts have the support of evidence, and the question is whether or not they are sufficient to permit the relief sought and directed by the referee. The judgment of the defendant Dow was recovered in 1887, upon a debt incurred by Brown in 1881. He caused the premises to be sold upon execution issued upon his judgment, and took the sheriff’s certificate of sale. The alleged purpose of the action was not to reform the agreement made between the grantees pursuant to which the deed was taken in their names, but to reform the deed because it was not in terms made to conform to such understanding. The plaintiffs, in the outset, encountered the presumption that all prior negotiations and agreements between the grantees on the subject were finally reduced to and concluded by the terms and legal effect represented by the deed; and they assume the burden of overcoming by evidence such presumption. This they have done in so far as to make it appear that Mrs. Brown did not assent that the deed should be made to create any other relation of the grantees to the premises than that of tenancy in common, and that she was not cognizant of the omission of the provision requisite to effectuate such purpose; and while Anson D. Brown understood that he was to have it so made, pursuant to such agreement, and intended to do so, he failed to accomplish what he had undertaken in that respect. It is very likely that such failure was because he was not well advised of the effect of the language of the grant, or of what was essential in its terms - to accomplish the purpose in view. His mistake, therefore, was in the failure to make use of words to express in the conveyance what was necessary to such purpose, and to effectuate the intention of the grantees. It is urged on the part of the defendants that those facts are not sufficient to entitle the plaintiffs to relief, but that fraud on the part of Mr. Brown, or mutual mistake of fact of him and his wife, is essential to the reformation sought. That position is sound in its application to a remedy to reform an agreement as such between parties; but that rule, to the extent claimed for it, is not necessarily applicable to a case where the mistake is merely in the reduction of the agreement to writing. Pitcher v. Hennessey, 48 N. Y. 415; Born v. Schrenkeisen, 110 N. Y. 55; 16 St. Rep. 412 ; Marsh v. McNair, 48 Hun, 117; 15 St. Rep. 470. When a grantor fails to observe the contract pursuant to which his deed is made, the grantee, not assenting to its terms, nor advised, at the time of its delivery, of the defective execution of the contract, may seek the remedy for reformation founded upon the charge of fraud on the part of the grantor. Welles v. Yates, 44 N. Y. 525.

In the present case the agreement in question was made between) the grantees alone, and had relation only to the interests which they respectively intended to take in the land. It was a matter about which the grantors were necessarily indifferent. The reason it was not ponsummated by the terms of the conveyance was attributable to the failure of the husband to so draw the deed as to express in that instrument that which was essential to give effect to the agreement pursuant to which they, as between themselves, made the purchase. There was no actual fraud on the part of Mr. Brown; and, while he knew how the grant was expressed, his mistake or misunderstanding was as to the effect of the language employed. It is reasonable, in view of the relation between him and his wife, to assume that she confidently relied upon him to prepare the deed according to their understanding, and that she rested in the belief that it was so made; and the fact that she did not ascertain or know that it was in effect otherwise did not necessarily charge her with loches, or deny to her or her heirs the right to make the mistake and misapprehension available for reformatory relief. Mastin v. Mastin, 17 St. Rep. 625 ; 1 N. Y. Supp. 746; Albany City Sav. Institution v. Burdick, 87 N. Y. 40. It seems, in view of the facts so found, and which the evidence tends to prove, that both the husband and the wife believed that their relative interests in the property taken by the conveyance were those with which they intended and sought by it to become vested, and thus (assuming that both of them were advised of the contents of the deed) their mistake may be said to have been mutual as to the effect of the words employed to express the grant to them. But the inference is permitted that such assumption was not applicable to the wife. In Maher v. Hibernia Ins. Co., 67 N. Y. 283, Judge Folger said : “It is enough to authorize the reformation of a contract if it appears that, through mistake of both parties to it, the intentions of neither have been expressed in it.” The facts in the present case give application to it of that proposition. The reason of the role which requires mutual mistake of the parties to a contract to reform it is that otherwise the court might make a new contract for them, which would be the consequence of its reformation when the mistake is applicable to only one of the contracting parties. But when the contract, as written, does not fully or correctly express their intentions. the court will give effect to it as made. Here it is found what the agreement was between Mr. and Mrs. Brown, and that their intentions were alike disappointed by the failure of the deed, in its terms, to give effect to it. In that view, by the reformation sought for, or by adjudication of the relative rights of the grantees in the deed, the court effectuates the intent and purpose of their agreement before mentioned. It is, however, suggested on the part of the defendants, that, while the marital relation existed, the husband and wife could not take as tenants in common under the deed, by reason of their unity in contemplation of law. Since the statute has given to the wife individuality for the purposes of taking and holding property as effectually as if she were a feme sole, it would seem but reasonable that she may take as tenant in common under a single deed to her and her husband, properly expressing the purpose of the conveyance to that effect; and while the deed made by Anson D. Brown to Esther J. Brown, his wife, was, by reason of such relation, void at law, it, having for its support an adequate consideration paid by her to him, may be valid and effectual in equity; and the conclusion of the referee in respect to that deed is sustained by the facts found by him. These views lead to the conclusion that the judgment should be affirmed. All concur.


text:
    James M. Emmens, App’lt, v. Mary E. St. John, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Vendor and purchaser—Title.
    Where the devisees take by will the title to land subject to a mere naked power of sale given to executors, the exercise of such power, after some of the devisees have transferred their interest therein, makes the conveyance sufficiently doubtful as to render the title unmarketable.
    Appeal from a judgment, reversing a judgment of the municipal court of the city of Rochester in favor of plaintiff.

      Frederick A. Mann, for app’lt; W, G. Jerome, for resp’t.
   Bradley, J.

The plaintiff, a real estate agent, acting in behalf of the defendant, introduced to her Felix Wolff, with whom she made a preliminary arrangement to exchange certain lands in the city of Rochester. They agreed upon term's, and both were willing to make the exchange if the titles to the lands were satisfactory. The plaintiff claims that he performed for the defendant the services which entitled him to his- commission. This must be assumed if the title which Wolff offered to convey was a marketable ¿ne. The land was part of that of which Daniel Washburn died seized. His will was admitted to probate and recorded in J une, 1871, and by it be directed that some of the land in question be divided into 11 equal parts, and he devised one of such parts to each one of that number of devisees named in the will. By a subsequent provision of the will, he appointed certain persons executors, with power to sell and convey his real estate, etc. In 1873 one of the devisees, in 1874 another, and in 1879 a third one of them conveyed their shares or interests in the land to grantees named in the deeds; and in 1884 the surviving executor made to Wolff a deed of conveyance of the land. The devisees took by the will the title to the land, subject to the power of sale given to the executors; and three of the devisees, by their conveyances, disposed of three-elevenths of the land to their grantees, and to that extend vested title in them. It was within the power of the devisees, if they chose to do so, to elect to take the land, and thus dispense with and defeat the exercise of the power of sale. Reed v. Underhill, 12 Barb. 113; Hetzell v. Barber, 69 N. Y. 1, 14; Prentice v. Janssen, 79 N. Y. 478 ; Sayles v. Best, 140 N. Y. 368; 55 St. Rep. 779. It is suggested that this could not be accomplished by a portion only of the devisees. As a general rule, all must in some manner manifest election to take or retain the land, as such, to defeat the executor’s power of sale ; and, in that view, the grantees of a portion of the devisees, only, would take title subject to the execution of the power, Mellen v. Mellen, 139 N.Y. 210; 54 St. Rep. 670; and it is very likely that such was the relation the grantees of the three devisees took to the estate conveyed to them in the premises.

The question is whether, upon the facts as they appeared, there was any reasonable apprehension that Wolff could not convey what would be deemed a marketable title. As has been observed, the testator directed that the residue of his estate be divided into 11 equal parts, and he devised to each one of that number of persons named one of such parts. The power given to the executors was a naked one of sale, without the expression of any specific purpose of its creation, but it may be assumed that it was given to be available for the division between the beneficiaries of the devise. As the language used may not be construed as a direction to sell the land, it was not by the will necessarily converted into personalty; and, in view of the direction to divide the land into eleven parts, the terms of the will are such as to import a devise to the devisees in severalty. No question could arise out of such construction if none of them had conveyed their shares. Three of them had done so ; and in view of the provisions of the will before mentioned, upon a construction which might be contended for it, there may be some opportunity for controversy; and it may have been reasoned with some plausibility that if the devisees held in severalty, by virtue of the provisions of the will, they, in that manner, elected to dispense with the power of sale. But there may be facts aliunde the records to relieve the situation of any question. It may be that the sale by the executor was make with the acquiescence of the beneficiaries, or that the fund produced by the sale was received by them. Either would have relieved the conveyance to Wolff of any criticism. And it is probable that it was made with their assent and approval; but no such facts were brought to the attention of the defendant or her attorney. In case of such assent, the lapse of about thirteen years from the time of the record of the will to that of the executor’s sale and conveyance could have furnished no ground of objection; otherwise that fact might, with other circumstances, be some evidence of election of the devisees to retain the land, and dispense with the power of sale. Mellen v. Mellen, 139 N. Y. 222; 54 St. Rep. 670; Purdy v. Wright, 44 Hun, 239; 8 St. Rep. 243. In view of such lapse of time, and of the fact that the devisees could, by election, signified by them to that effect, have defeated the executor’s power of sale, the inquiry whether they had done anything, and what, in that respect, would be a reasonable one for a person contemplating the purchase of the premises to make, and, until satisfied upon the subject, hesitation in making the purchase might reasonably by him be deemed justified. It does not appear by whom the premises were or have been occupied before or since the conveyance by the executor to Wolff. The advice of the defendant’s attorney was given in view of the doubt about the title which might arise upon the abstract furnished at the time; "and the unwillingness of the defendant to make the exchange and take the property of Wolff does not seem to have been capricious upon her part, but was occasioned by her doubt about the perfection of his title; and in that respect she relied and acted upon the advice of her attorney, and, being thus advised, she acted in good faith. The question is whether there was reasonable ground to support doubt about the title to any portion of the land at the time in question. In Moore v. Williams, 115 N. Y. 586; 26 St. Rep. 259, Judge Earl said that, within the meaning of the rule, “ a good title means not merely a title valid in fact, but a marketable title, which can be sold to a reasonable purchaser.” Many cases on the subject are there cited with approval. A title open to reasonable doubt is not marketable, in the sense requisite to require the purchaser to accept it It must be one which he can hold without reasonable apprehension that questions may arise affecting the peaceful holding of the property, and a title about which no reasonable doubt can arise impairing its market value. Fleming v. Burnham, 100 N. Y. 1; Vought v. Williams, 120 N. Y. 253; 30 St. Rep. 899; Ingalls v. Hahn, 36 St. Rep. 770; 12 N. Y. Supp. 786. While this case may not be entirely free fronj. doubt, we think that, as the situation of the title was presented to the defendant, she was justified in the conclusion that it was doubtful, and not “ marketable,” in the sense applicable to that term, and therefore she was not required to accept lb; and for that reason the plaintiff’s alleged commissions were not earned.

The judgment of the county court should be affirmed.

All concur.


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    Lodemia A. Smith, App’lt, v. Robert Revels, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Ejectment—When lies.
    Ejectment will lie against a contractor who refuses to permit the owner to enter, in order to inspect it, the house in process of erection.
    Appeal from an order denying a motion for a new trial, made on the minutes of the court.

      J. R. Jewell, for app’lt; Henry Donnelly, for resp’t.
   Bradley, J.

The action is ejectment brought to recover possession of a dwelling house and the land upon which it rests in the village of Olean, N. Y. The plaintiff, being the owner of the land, entered into a contract with the defendant, September 1, 1892, whereby he undertook to furnish materials and build thereon ánd complete for her, on or before December 1, 1892, a dwelling house for the sum of $1,470, payable as follows : $300 when the foundation was built; $300 when the frame was erected; $200 when the plaster was on and dry; $200 when the wood work was finished ; and the residue when the building should be finished and delivered to her free from incumbrance. The defendant proceeded with the work, and some payments were made to him. The evidence tended to prove that in March, 1893, the defendant called upon the plaintiff for a payment upon the contract, and stated to her that the house was finished inside; that the plaintiff expressed a desire to go into the building, and see the work and how it was done, before paying him, and, for that purpose, to take some person in with her to examine it; that, while the defendant consented that she could go in with him, he refused to permit her to take any one into the house with her; and that afterwards, before the commencement of this action, the plaintiff caused demand to be made of the defendant for the possession of the building, and of the keys, to enable her to go into it. This was refused. The evidence warranted the conclusion that the plaintiff was wrongfully excluded from the building. The premises were hers, the house was being erected by the defendant for her, under the contract, and no reason appears for denial to her of the right to enter it for the purpose of seeing what progress had been made in the work, and the manner it was performed. The plaintiff did not seek to rescind the contract. She had the right to the possession, consistently with the control which the defendant had of the work of construction. It was but reasonable that the plaintiff should, at her pleasure, with proper assistance, inspect the work as it progressed. This she sought to do, and her right to do so was denied, and shé was excluded by the defendant. The purpose of the action of ejectment is to enforce a right of entry, when it exists in real property, by a person who, having the right of possession, is excluded from it by another; and in such case the remedy may be made available when the property is such that judgment can be executed by the delivery of the possession, and it can be held by the party having such right. Jackson v. Buell, 9 Johns. 298; Rowan v. Kelsey, 18 Barb. 484; 41 N. Y. 594; 4 Abb. Dec. 125. It may be assumed that it was in the power of the plaintiff to rescind the contract, and take such consequences as should follow as for breach of it. Lord v. Thomas, 64 N. Y. 107. But she expressed no desire to do that. She asserted the right to the possession, and sought to exercise it in a manner consistently with the continued performance by the defendant of his contract. The suggestion by the defendant’s counsel that the plaintiff had the possession, and the defendant a mere license, for the purpose for which the contract was made does necessarily aid him, if he in fact excluded the plaintiff from the building. He then assumed a relation not consistent with a mere license. In Child v. Chappell, 9 N. Y. 246, the subject of the action was an easement. The defendant there did not exclude the plaintiff, but exercised a right he had of using the wharf in question for certain purposes. No evidence was introduced on the part of the defense. The facts which the evidence on the part of the plaintiff tended to prove were sufficient to support a recovery by her. The exception to the nonsuit were therefore well taken.

The order appealed from should be reversed, and a new trial granted ; costs to abide the event.

All concur.


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    Francis H. Salt et al., Resp’ts, v. Nathan D. Ensign, as Sheriff, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Corporations—Insolvency—Transfer in contemplation.
    A sale of some of the property of a corporation, whose assets were §40,000 and indebtedness $90,000, under an arrangement with a creditor, whereby the proceeds were to be applied on his claim, amounts to a transfer in contemplation of insolvency.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes of the court.

      Tracy C. Becker, for app’lt; E. M. & F. M. Ashley, for resp’ts.
   Bradley, J.

The plaintiffs charge that the defendant converted to his own use 48 bicycles belonging to them. The alleged defense is that the defendant, as sheriff of Niagara county, levied upon and sold the bicycles, by virtue of executions issued upon judgments recovered against Banker & Campbell Company, Limited, and that the alleged title of the plaintiffs was derived from such judgment debtor in fraud of its creditors, etc. The Banker & Campbell Company,' Limited, was incorporated March 1, 1890, under chapter 611, Laws 1875; and its object was the purchase and sale of bicycles, tricycles, etc., and their appurtenances,and-the manufacture thereof. Its place of business was the city of New York. In July, 1891. the company had become indebted to one Henry Du rice, who resided at Niagara Falls, in the county of Niagara, in the sum of $27,000, and in the further sum of $3,450. He, in that month, commenced an action to recover the $27,000, and. recovered judgment therefor about the 12th day of August, 1891: and shortly thereafter, execution issued upon the judgment was levied upon the stock and property of the company in the city of New York. While that action was pending, and about the 1st of August, pursuant to an understanding of Durke with the company to the effect that he should dispose of some of its bicycles, and it, would turn over the proceeds to apply upon the $3,450 debt, before mentioned, he procured the plaintiffs to take, and they did order, from the company, 48 bicycles, and their obligation to pay for them was turned over to him for such purpose. The plaintiffs had an understanding with him that they would pay him from the proceeds of the sale, or as they could, and such was their arrangement with him prior to the time of the purchase. The wheels were sent to the plaintiffs, and received by them at Niagara Falls, where the levy of the executions before mentioned was made upon them. They were afterwards sold, by virtue of those executions, by the defendant This constitutes the alleged conversion for which the plaintiffs recovered. The questions .presented are:

(1) Was the sale of the wheels made with intent on the part of the company to defraud its creditors ?

(2) Was it made in contravention of the statute which provides that: “Whenever any incorporated company shall have refused the payment of any of its notes, or other evidences of debt, * * * it shall not be lawful for such company or any of its officers, to assign or transfer any of the property or choses in action of such company, to any officer or stockholder of such company, directly or indirectly for the payment of any debt; and it shall not be lawful to make any transfer or assignment in contemplation of the insolvency of such company to any person.or persons'; and every such transfer and assignment to such officer, stockholder or other person, or in trust for them or their benefit shall be utterly void.” 1 Rev. St. 603, § 4.

At the time of this transaction of the plaintiffs, through Durke, with the Banker & Campbell Company, Limited, the company had been in existence less than a year and a half. Its liabilities amounted to $90,000, and its assets to less than $40,000. The executions pursuant to which the defendant sold the property were issued upon five judgments,—four of them in favor of the John Wilkenson Company, upon debts contracted by the Banker & Campbell Company, Limited, in June, 1891, and the other in favor of T. Henry Sweeting, in September, 1891, upon debts contracted in April, May, and July, 1891. In the action in which the latter judgment was recovered an attachment was issued, and levied upon the property in question, in August, 1891. The question whether the sale of the property to the plaintiffs was fraudulent, against the creditors of the company, was, upon the evidence, one of the facts fairly submitted to the jury, and their conclusion that it was not so was supported by evidence.

A more serious question arises upon the facts, in view of the statute before mentioned. The assets of a corporation are a trust fund for the payment of its debts, in such sense that its creditors have án equitable lien upon them, as against those who are not purchasers in good faith, as well as against stockholders. Cole v. Millerton Iron Co., 133 N. Y. 164; 44 St. Rep. 512. While a creditor of an insolvent corporation, having no other relation to it, may have his remedy by action and final process to collect his debt, the corporation cannot, in view or in contemplation of its insolvency, by voluntary transfer of its property, lawfully give preference to any of its creditors. Robinson v. Bank of Attica, 21 N. Y. 406; Varnum v. Hart, 119 N. Y. 101; 28 St. Rep. 262; Throop v. Hatch Lithographic Co., 125 N. Y. 530; 35 St. Rep. 816 ; Kingsley v. First Nat. Bank, 31 Hun, 329 ; National Broadway Bank v. Wessell Metal Co., 59 Hun, 470; 37 St. Rep. 102; Keiley v. Mech. & T. Bank, 39 St. Rep. 438 ; 15 N. Y. Supp. 173. The mere facts, however, that a corporation is insolvent, does not necessarily render ineffectual the payment out of its money, or the transfer of property, in the usual course of busines. Dutcher v. I. & T. Bank, 59 N. Y. 5; Paulding v. Chrome Steel Co., 94 N. Y. 334. In the former of those two cases, an insolvent bank, of which the plaintiff afterwards became assignee in bankruptcy, paid the check of its depositor when the latter was ignorant of its financial condition. And, in the Paulding Case, the corporation gave, with the assent of the stockholders, a chattel mortgage to secure the payment of moneys borrowed, but without filing written consent, as required by statute applicable to corporations of that character. Five years later, a new mortgage was given, and the consent filed. "The corporation was then insolvent. It was held that the transfer by the mortgage was not made in contravention of the statute. In the present case, the question whether the sale of the bicycles was made by the company in contemplation of insolvency was submitted to the jury, with instructions that if they found the fact in the affirmative the defendant was entitled to a verdict. Although this was a question of fact, the finding of the jury upon it was against the weight of the evidence. The company was hopelessly insolvent, in the sense that it had not, within itself, the strength to long survive its then financial condition. It had, in assets, less than $40,000, with which to meet its liabilities, amounting to $90,000, and at that time an action was pending against it to recover $27,000, It is true that the plaintiff in that action was a friendly creditor, and very likely would have consented to withhold the execution of his judgment if an arrangement could have been made with the other creditors to permit the company to proceed, provided it should be made satisfactory to him. An unsuccessful attempt was made by the company to arrange with them for the continuance of its business. The action of Durke had then resulted in a judgment and execution, which had been levied upon the property of the company. The sale after-wards had, produced only a partial payment of the amount of the judgment. The bicycles in question were sold to the plaintiffs pursuant to an understanding between the company and Durke, by which he was permitted to find a purchaser, and have the benefit of the sale, by way of application of the amount of the price upon his debt against the company. He had the debt of $3,450, In ¡-;/ks that which was the subject of the pending action. He did make the arrangement with the plaintiffs that they purchase the wheels. Thereupon, they sent the order for them ; the bicycles came, and they gave their notes for the amount to Durke. While this was a sale by the company to the plaintiffs, it was made through Durke, and for his benefit; and when it was made the plaintiffs understood that he was to take their paper, or in some manner give them such' time as was desirable for payment. It may be assumed, upon the evidence, that he still holds their paper, pursuant to his arrangement with them. In view of these facts, and for the purposes of the question under consideration, it is difficult to distinguish the transaction, in its legal effect, from a sale made directly from the company to Durke. He procured the sale and purchase to be made, and they were made, that he, as a creditor of the company, could have the benefit of the sale. The whole amount of the purchase price is in the notes of the plaintiffs, yet held by him; and, in view of the relation of Durke to the transaction, the making and delivery of the notes to him did not constitute a payment by them of the purchase money, in the sense requisite to render them purchasers in good faith. Jewett v. Palmer, 7 Johns. Ch. 65 ; Macauley v. Smith, 132 N. Y. 524; 44 St. Rep. 847. But it is urged that the company did not make the sale in contemplation of insolvency, because it did not entirely cease business until some time after the sale, and in the meantime it called its creditors together, with a view to some arrangement with them which would enable it to go on. This may have been some evidence of hope on the part of the company of the continuance of its business life. But it seems that its financial condition was apparently so hopeless as to furnish no encouragement to the creditors that anything could be realized from the adoption of the plan suggested for reorganization of the company. This was the result of the conference, notwithstanding a single creditor had the levy of an execution sufficiently large in amount, upon the property of the company, to cover its available value. The transfer of the property in question was made for the benefit and preference of that creditor. The ability of the company to proceed much longer was known to it to be dependent upon the indulgence of its creditors. It was quite reasonable to suppose that it would not, to the requisite extent, be obtained; and, in view of the,circumstances, it is difficult to see that any inference can well arise in respect to the transfer of the property so made for the benefit of the creditor, Durke, other than that it was made in contemplation of insolvency, and therefore in contravention of the statute. The conclusion is that the verdict was so decidedly against the weight of the evidence as to require the direction of a new trial.

The judgment and order appealed from should be reversed, and a new trial granted, costs to abide the event.

All concur.


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    Buffalo Chemical Works, Resp’ts, v. Bank of Commerce in Buffalo et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Mortgages—Foreclosure—Injunction.
    A mortgagee cannot be enjoined from foreclosing his mortgage by a junior judgment creditor on the ground that such proceeding will be prejudicial to his rights.
    Appeal from an order appointing a receiver of the property of one of 'the defendants and restraining the other defendants from prosecuting any action against such defendant

      George Clinton and Adelhert Moot, for app’lts; Seward A. Simons and John G. Milburn, for respt’s.
   Bradley, J.

It may be that a leading purpose of the action is to restrain the defendant the bank of Commerce from proceeding to the foreclosure of its mortgages against the property of the Genesee Oil Works, Limited. At all events, as here treated, the main question is whether the plaintiff is fairly entitled to the order thus enjoining that defendant. The plaintiff is a judgment creditor of the Genesee Oil Works, Limited, to the amount of about $1,000. Execution issued upon the judgment has been levied upon the property of, that association; and, as appears by the complaint, it is the second lien by levy upon its property. The only one prior to it is that in behalf of another creditor for $19,-000. The executions in both cases are still held by the sheriff, and the only thing in the way of realizing from the property by sale of it upon such processes is the general assignment made by the association in trust for its creditors to the defendant Farnham. The plaintiff does not allege that the bank mortgages upon the real estate of the association are invalid. They are prior to the lien of the plaintiff’s judgment, and whatever rights it has taken by the levy of its attachment and execution upon the mortgaged property are subordinate to the lien of those two mortgages. Therefore, presumptively, there is no support for the plaintiff’s attempt to interrupt the proceedings or action of the defendant to foreclose them.

But it is said that this action is one in the nature of a bill of peace to prevent a multiplicity of suits. To entitle a party to maintain such an action, it must be clear that there is a right claimed or asserted which affects many persons who are made parties; and, for the support of an action of that character, it is essential that there be in the controversy some relation, interest or question common to the parties, and which may be settled or disposed of in the action. Then several may unite as plaintiffs, or one, against several as defendants. Brinkerhoff v. Brown, 6 Johns. Ch. 139; N. Y. & N. H. Railroad Co. v. Schuyler, 17 N. Y. 592; Nat. Park Bank v. Goddard, 131 id. 494; 43 St. Rep. 777. It may be seen that the creditors of the Genesee Oil Works had an interest in common in the question of the validity of its general assignment. In this question the defendant the Bank of Commerce concurred with the plaintiff, and alleged that the assignment was made with the intent to hinder, delay and defraud the creditors of the assignor; and the defendant, as a creditor, beyond and aside from the amount secured by its mortgages, may have an interest in being relieved from the effect of the assignment But, as both of the mortgages are prior in lien to the assignment, the security given by them is not in any manner affected by it; and as the liens and interests of the other parties, so far as relates to the mortgaged property are subordinate to the lien of the mortgages of the Bank of Commerce, there can be, in the legal sense, no interest of the other creditors in common or otherwise in conflict with that of the bank as such mortgagee. It is, however, alleged that, by the sale separately of the real estate covered by the mortgages and the personal property used in the business of the association for its purposes, the property, as a whole, will produce much less proceeds than would a sale of it all together or at one time. This may be so, and that is a question in which the other creditors have an interest in common. But is that a reason for denial to the mortgagee of its right to proceed in the foreclosure of its mortgages in the usual manner? Although our attention is called to no cases in which, for that reason, support has been given to such a proposition, it is unnecessary to hold that there may not be cases where relief of that character may properly be granted. A receiver may and generally will be appointed where a plaintiff has a cause of action, his recovery probable, and the benefit from recovery will be lost or greatly impaired unless a receiver is appointed. As the Genesee Oil Works is insolvent, and in view of the situation, the appointment of a receiver of its property and direction to sell it may, so far as relates to the property embraced within the general assignment of that association, be justified. Then the distribution of the proceeds may await the determination of the question whether it be made by the assignee, as directed in the assignment, or among the creditors, in the order of the levy of the attachments and executions, "or of the liens of their judgments. This may rest upon sound reason. But none, well sustained, is seen for shutting off the right given to the bank, by its mortgages, to enforce the prior lien of them by foreclosure, and thus place it in a position where it may be compelled to enter into a contest for the proceeds to which it may be entitled. It certainly would be a remarkable case, and require a necessity which does not exist in that under consideration, which should enable those having subordinate interests in property to obtain relief which would deny to a creditor having the senior specific lien the right to execute it in the manner provided by law. By the contract incident to his mortgage, and recognized by law, the right of a mortgagee on default in payment is to proceed to judicial sale of the property covered by it, if he is entitled to judgment to that effect; and, if he is not, the infirmity or limitation of it as security is matter of defense, available to any party defendant or to any person who, having the right to defend, may become such party. Hall v. Fisher, 1 Barb. Ch. 53; Savage v. Allen, 54 N. Y. 458; Town of Venice v. Woodruff, 62 N. Y. 462.

The property covered by the mortgages must necessarily be sold separately; and, if the receiver has power or direction to sell the other property of the association, he, if deemed desirable, may do so at the time the sale is made, pursuant to the decree of foreclosure of the mortgages, and thus may be accomplished the result which it is claimed on the part of the plaintiff will be the most beneficial for the creditors of the association; or the receiver may be permitted to sell all of its property, subject to the lien of the mortgages, and without prejudice to the right of the bank to proceed to judgment of foreclosure and sale. Then, if so advised, the purchaser may be at liberty, before such judical sale, to redeem the mortgaged property from the lien of the mortgages by payment, and thus perfect his title. At all events, the mortgagee is entitled to the full benefit of the lien of his mortgages, with the right to make it available, without embarrassment from those having subordinate interests, otherwise than in the defense of the action brought to enforce it by means of judicial decree. The order appealed from, so far as it restrains, enjoins, or prevents the defendant the Bank of Commerce from prosecuting its or any action to foreclose its mortgages on the property of the Genesee Oil Works," Limited, and the sale thereof, pursuant to judgment which it may obtain, and so far as it authorizes or directs the receiver to sell the mortgaged property free from the lien of the mortgages, and so far as any of its provisions are consistent only with such authority, direction, or purpose, and designated to effectuate it, should be reversed, with costs; in other respects, affirmed, and modified accordingly.

All concur.


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    Caroline L. Ely et al., Resp’ts, v. John Fahy, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Evidence—Parol.
    The provisions of a written lease control the rights of the parties, so far as relates to any negotiations had, or agreements made, before and at the time of its execution, pertaining to the subject of the demise.
    3. Landlord and tenant—Repairs.
    The evidence,was held, in this case, not to be sufficient to charge the landlord with costs of repairs made by the tenant.
    Motion for a new trial on exceptions ordered to be heard at general term in the first instance.

      H. F. Remington, for pl’ffs; John D. Lynn, for deft.
   Bradley, J.

The purpose of the action was to recover a portion alleged to be unpaid of the installment due April 1,1898, from the defendant to the plaintiffs, upon a lease of store premises in the city of Rochester. The defendant alleged, by way of counterclaim, the payment by him for certain repairs upon the store, pursuant to agreement with the plaintiffs that the payment so made should be allowed to him, and applied upon the rent reserved by the lease. The plaintiffs controvert the charge of liability to him for such payment. The lease is in writing, sealed with the seals of the parties, and bears date November 12, 1889. By it the premises are leased to the defendant for the term of five years from the 1st day of January, 1890, at the annual rent of $12,000 for two years, and $13,000 for the remaining three years-of the term. The testimony of the defendant is to the effect that,, at the time the lease was made, it was orally agreed between him and the agent of the plaintiffs, that a new front should be put in the store, and that it was for the purpose of paying the expense of it that the increase in the rent for the last three years of the term was made; that it was afterwards done, at an expense of nearly $3,000, which the defendant paid. The lease contained no provision on the subject of repairs-, other than, “ No permanent alterations or changes shall be permitted to the interior of said building without the written consent of the parties of the first part, or their agent.” There was no written consent of the lessors or their agent to the repairs in question. The lease being in writing its provisions control the rights of the parties, so far as relates to-any negotiations had or agreement made before and at the time of .its execution, pertaining to the subject of the demise, as they are-deemed to have been merged in the writing. The testimony before mentioned, of the defendant, was therefore ineffectual to-charge the plaintiffs with liability for. such repairs. Cleves v. Willoughby, 7 Hill, 83 ; Wilson v. Deen, 74 N. Y. 531. But there is some evidence on the part of the defendant tending to prove that the plaintiffs’ agent, some time after, consented to the making of the contract to do the work, which was afterwards performed, and understood that the-contractors were about to proceed in its-performance. Assuming that the evidence of his consenting to and participating in the making of the contract to do the work was such as to permit the inference of- liability of the plaintiffs, the question arises whether or not such inference was effectually repelled by what followed. Before proceeding to the further .consideration of the facts, it may be stated, as legal propositions, that a lessor, without an express agreement to that effect, is not bound to make repairs, nor is he chargeable for those made, Witty v. Matthews, 52 N. Y. 512, but if the landlord has undertaken to make repairs, the tenant, on his refusal to do so, may make them, and charge the necessary expense to the landlord, or leave the premises, and recover the damages sustained. Myers v. Burns, 35 N. Y. 269 ; 3 Barb. 401; Cook v. Soule, 56 N. Y. 420.

‘ It appears that, about the time the work of putting in the front of the store was commenced, the plaintiffs’ agent forbade the performance of it, of which the defendant and the contractor were advised; and about the same time, in answer to the defendant’s letter on the subject, one of the plaintiffs wrote him, denying knowledge of any agreement to make the repairs, and refusing to«consent that they be made. If there had been any promise or acquiescence on the part of the plaintiffs, by their agent, it was executory, and they could not be required to proceed with the work; and it is at least very questionable whether there had been such agreement made by them, or in their behalf, as would enable the defendant to cause the repairs to be made, and charge them with the expense. It seems that the defendant and his brother were then occupying the store, and doing business there, in their firm name of J. Fahy & Co.; and, being so advised of the refusal of the plaintiffs to make the repairs, the defendant subscribed the firm name of J. Fahy k Co. to an agreement in writing,, which was delivered to the plaintiffs, expressing an undertaking as follows : “For and in consideration of one dollar received by the undersigned of Caroline L. Ely and Almira F. Beers, executors of the estate of the late Joseph Field, deceased, we do hereby agree to indemnify and save harmless the said executors, or their successors, from the payment of any and all the cost, charges, and expenses which may be expended or incurred in the making certain charges or alterations now contemplated to be made by us to the front of the store building in question.” The repairs there referred to are none others than those in controversy. By reference to the letters of the defendant, it appears that he was desirous of having the new front put in, and by this agreement it is stated that his firm contemplated doing it. That agreement, so executed by the defendant, is not consistent with an existing obligation of the plaintiffs to do it; and, for the purpose in question here, it may not be important whether the defendant alone, or jointly with his partner, as the terms of the instrument import, undertook to indemnify the plaintiffs, because, if they should be charged with, and he required to pay for, the repairs, the defendant would be liable upon such undertaking to reimburse them, although he might be so jointly only with his partner. And the allowances to the defendant, or recovery by him of his alleged counterclaim, would be productive of circuity of action, which the law .does not favor, but seeks to prevent. Carr v. Stephens, 9 Barn, k 0. 758. There would have been a different question if the agreement had been the subject of an action by the plaintiffs. Then the nonjoinder of his partner as a defendant would have been available as a defense. But here the defendant cannot be prejudiced by the application of the principle against circuity of action, because it appears by the agreement of the firm that the repairs were made not at the expense of the defendant alone, but were made by his firm. These views lead to the conclusion that the verdict was properly directed for the plaintiffs, and that none of the exceptions at the trial were well taken. The motion for a new trial should be denied, and judgment ordered for the plaintiff on the verdict. All concur.


author: Van Wyck, J.

text:
    Annie Cannon, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed June 25, 1894.)

    Evidence—Opinion.
    Question to non-professional witness as to how a person looked in respect to health at a certain time does not call for an opinion.
    Appeal from a judgment in favor of plaintiff.

      Morris & Whitehouse, for app’lt; Chas. J. Patterson, for resp’t.
   Van Wyck, J.

This is an appeal from an order denying a motion for a new trial, and from a judgment entered upon a verdict for $12,500, in favor of plaintiff, for personal injuries claimed to have been caused by the negligence of defendant. The appellant insists upon a reversal for many reasons, which, taken up in their order as presented in the points, brings us first to the consideration of whether the verdict is excessive. Upon a critical examination of the testimony, we find evidence which the jury were justified in believing, and which establishes that plaintiff received injuries in this accident, to her womb, bladder, ovary, and surrounding parts, of a most serious character, causing her great pain and suffering, and disabling her for the performance of the ordinary duties and work which she had been accustomed to do before the accident; that there has been a falling, retroversion, and retroflexion of the womb, and inflammation of the surrounding parts; and that the injuries to her genital organs are permanent and incurable. This court does not disagree with the jury in its estimate of a fair and just compensation for such serious injuries. No error can be predicated upon the exception at folio 58, for it was proper for plaintiff to show that her injured womb had become enlarged; none upon the one at folios 70 and 71, because the question was not answered; none upon those at folios 76-78 and 282, for it was especially proper for the expert physician, who examined the displacement, falling, retroversion,-and retroflexion of her womb, to testify as to whether the injury was recent or of long standing, and as to whether it was curable or incurable, Lindsay v. People, 63 N. Y. 143 ; Buel v. N. Y. C. Railroad Co., 31 N. Y. 314, 320; Filer v. N. Y. C. Railroad Co., 49 N. Y. 42; none upon the one at folios 91-93, for it was shown that, after the accident, her menstruation was stopped for two months, and she certainly had the right to testify that on its return she suffered great pain and spasms ; none upon those at folios 184 and 185 and 277-279,—the pessary, which is sometimes used successfully to support a falling womb, had been tried, and with benefit to her for a time, but it finally caused her so much pain that its use was discontinued, and this rendered it proper for the expert physician to explain that the pessary pressed upon the walls of the vagina while supporting the womb, and that, in the condition of the parts surrounding the womb, it was inadvisable to use this' instrument; none upon those at folios 186, 189, 190, 285, and 289,—if some of the facts assumed in the hypothetical questions were not justified by the proof, then the objecting counsel should have called the attention of the court to the assumptions which he deemed unwaranted, and this he failed to do, Hall v. Crouse, 13 Hun, 557, 562, and, besides the assumptions seem to have been within the probable range of the evidence. Harnett v. Garvey, 66 N. Y. 641; Stearns v. Field, 90 N. Y. 640 ; none upon that at folio 236, for the expert physician can properly testify that a blow upon the stomach is sufficient to cause a retroversion of the womb, Turner v. City of Newburgh, 109 N. Y. 301, 309 ; 15 St. Rep. 93 ; Stouter v. Man. Railway Co., 127 N. Y. 661; 38 St. Rep. 162 ; none upon those at folios 301, 302, 305, 807, 316, 321, 323. 329, 335. 342, 345.

The objection urged is that a nonprofessional witness cannot be asked how a person with whom he is intimately acquainted appeared or looked in respect to health at a certain time, on the ground that it calls for an opinion, and that he is not an expert. It seems to us that the answer does not call for an opinion in the technical sense claimed, but for a fact that the ordinary human being can answer intelligently. We will examine what was brought out by such questions in one or two instances, as an illustration of the usefulness of such evidence. At folios 301 to 304, the witness Crawly, who lived in the same house with her, and saw her frequently, testified that he “noticed she was a healthy woman, apparently.” “Saw her'doing her work * * * in the household, * * do laundry work, household work, * * * carry breakfast to her husband, * * * going about. She has always had quite a rosy complexion ; that is, before this accident. * *. * Have not seen any rosy complexion on her since the 16th of September, 1892.” At folios 304 to 307, the witness Hunt testified that he saw her daily for a time, before and after the accident. This question was put to him: “Q. Down to the 16th of September, 1892, what was her general appearance as to healthfulness? A. Good. The complexion which Mrs. Cannon usually had was strong and hearty. I have seen her since. I have seen a difference in her as to color of face, I mean, a big change,— pale, delicate, unhealthy, as to the looks of her face.” At folios 307 to 310, the witness Hannon, in responce to a similar question as to her appearance, testified that, before the accident, she was “a stout, healthy woman, with a healthy color,” and, after the accident, “not near so stout,” and “her color is almost gone.” We think this evidence was both competent and material. Lawson, Exp. Ev. pp. 470-473; Hewlett v. Wood, 55 N. Y. 634. Judgment and order affirmed, with costs.


author: Clement, C. J.

text:
    John Cassidy, Resp’t, v. Atlantic Avenue Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed June 25, 1894.)

    Negligence—Street railroads—Proof.
    A passenger cannot recover for injuries occasioned by falling from the front platform of a street car merely on proof that the driver whipped his horses, thereby causing them to plunge, and the car to lurch.
    Appeal from a judgment in favor of plaintiff.

      Tracy, Boardman & Platt, for app’lt; Thos. E. Pearsall, for resp’t.
   Clement, C. J.

This action was brought too recover damages for personal injuries sustained by the plaintiff while a passenger upon the front platform of a closed car on the Hamilton avenue line of defendant. The verdict was for the plaintiff for the sum of $10,000; and from the judgment entered thereon, and the order denying a new trial, this appeal is taken. After a careful consideratian of the testimony, we are satisfied that the recovery in this case should be set aside. While it is not negligence, as matter of law, for a passenger to ride upon the front platform of a street-railway car, yet a person who voluntarily so rides assumes the usual and ordinary dangers of his position. He is compelled to stand, and is not protected from the jolts and sudden movements of the car, except by the* use of his eyes and hands. It is a matter of everyday life to see passengers riding on the front platforms of our closed street cars, and it is a matter of common sense that there is more danger in riding thereon than inside the car, or on the rear platform. The driver of a horse car has to use his whip, and it is not negligence for him to do so, any more than it would be on the part of a driver of any other vehicle. The passenger on the front platform knows that the driver uses the whip, and is aware of the usual effect upon the horse. The animal,'when the whip is used, starts suddenly, and moves more rapidly. Such is the intention of the driver when he applies the whip. In this case the driver of the car struck his horses with a whip. What happened is described by plaintiff as follows : The driver struck, the horses with the whip. The horses made a plunge, and he pulled them back and threw on the brake. I got shook over against the dashboard, and out from the car, on the street. When the driver struck the horses with the whip, the horses made a jump, and the car gave a lurch. It threw me over again tire dashboard. He struck one of the horses on the right side. The effect of that blow on the horse was that the horses made a plunge. The horse that was struck made a plunge. Q. Do you mean to say that both horses made a plunge, or the horse that was struck made a plunge? A. The horse that was struck made a plunge. Q. He struck the horse a single blow,—one horse a single blow, —and then he applied the brake ? A. The horse made a lurch, and he threw on the brake. Q What you mean by that is, the lurch, you mean to say, that the starting of the horse quickened the pace of the horse momentarily ? A. Yes. When I got the shock, the car lurched. It loosened my hold from the brass rod, -—the lurch the car gave. Q. As he struck the horse, it was a simple spring of the horse forward, was it? A. Yes; the horse plunged forward. Q. He jumped forward? A. Yes; he made a spring forward with his fore heels. Q. The. horse sprang forward? A. Yes. Q. As a horse naturally would when struck with a whip, wasn’t it ? A. Yes. Q. There was nothing unusual or unnatural in the action of the horse when struck with the whip, was there, except that he went forward more rapidly. A. He made a plunge when he got the blow of the whip. Q. What do you mean by a plunge? A. A jump. Q. He jumped forward? A. He jumped forward.”

The foregoing,testimony is about all there is in the case to uphold the recovery of the plaintiff. The witness Hanley noticed a lurch of the car, but, on cross-examination, admitted that he was not paying attention. The case rests on the testimony of the plaintiff and Hanley, who do not testify that anything happened except that the driver whipped up his horses, and increased the -speed of the car. There was no evidence that the application of the brake in1 any wise was the cause of plaintiff’s injury. It was the duty of the driver to apply the brake when he saw that the plaintiff was about to fall from the car.

The cases cited by the counsel for the respondent are not in point. In the case of Nolan v. Brooklyn C. & N. R. R. Co., 87 N. Y. 63, the driver was a witness for plaintiff, and testified that the brake chains were out of order, and that the horses were skittish and would not take the whip ; and yet Judge Finch there said: “It must be freely confessed that the evidence, taken altogether, is very unsatisfactory.” In the cases of Murray v. Brooklyn City Railroad Co., 27 St. Rep. 280; 7 N. Y. Supp. 900, and Maguire v. Railroad Co., 115 Mass. 239, the cars were running rapidly on a down grade, and the drivers suddenly applied their brakes, without any necessary reason. These cases were on the border line, and had special points which controlled the result In Medler v. Atl. Ave.Railroad Co., 36 St. Rep. 89; 12 N. Y. Supp. 930; affirmed by court of appeals, without opinion, 126 N. Y. 669; 37 St. Rep. 963, the plaintiff, when injured, was not riding on the front platform of a closed car, but was getting ready to alight from the side step of an open car, moving slowly, when it was suddenly started. A passenger voluntarily riding upon the front platform of a closed street car has a right to assume that the car will not be rapidly driven over an open switch, for the reason that a sudden turn of the car would result; and therefore the cases cited of Vail v. Broadway Railroad Co., 6 Misc. Rep. 20; 58 St. Rep. 124; Ginna v. Second Ave. Railroad Co., 67 N. Y. 596, and Farrell v. H., W. S & P. F. Railroad Co., 21 St. Rep. 84; 4 N. Y. Supp. 597, are not in point. In the case of Weymouth v. Broadway & S. A. Railroad Co., 51 St. Rep. 612; 22 N. Y. Supp. 1047; affirmed, 60 St. Rep.--•, the plaintiff went from the inside to the front platform for the purpose of getting off the car, and the driver, when slowing up at his request, suddenly released the brake, and started the car, as in the Case of Medler, supra. Tjie reasoning of the court of appeals in the case of Hayes v. Forty-Second St. Railroad Co., 97 N. Y. 259, applies to the facts of this case. The headnote is as follows : “ To maihtain an action to recover damages for negligence, plaintiff must prove facts warranting an inference of negligence on the part of the defendant. He may not recover upon facts as consistent with care and prudence as with the opposite.”

In that case the facts were much stronger in favor of the plaintiff than in the case now before us, as Hayes had stepped off the front platform to allow passengers to enter the car, and was in the get of stepping upon the platform again, when the car, as he testified, “gave a sudden movement, and pulled up, and I got thrown out sideways.” Judge Finch, in that case, said that there could not be a recovery on testimony simply showing “a sudden movement” of the car. In this case the use of the words “ plunged,” “jumped,” and “lurched,” by the plaintiff, an interested party, does not show that there was any unusual or unexpected movement of the car. A recovery in an action for negligence must be founded on something more than the use of forcible language to describe an act.

Tiie judgment and order denying new trial must be reversed, and a new trial granted; costs to appellant to abide the event.


author: Haight, J.

text:
    William W. Chapin, App’lt, v. Eugene H. Satterlee, Resp’t. In the Matter of F. S. Leseritz.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Taxes—Sale .
    An order to show cause why the purchaser at a tax sale shall not become the absolute owner cannot be made returnable within three months from the time it was issued and served.
    Appeal from an order dismissing the petition to obtain possession of land purchased at tax sale.

      H. H. Woodward, for app’lt; Eugene H. Satterlee, in pro per.
   Haight, J.

On the 22d day of June, 1893, the appellant presented a petition to the county court of Monroe county, addressed to the county judge, in which, he shows that in the month August, 1890, the lands described in the petition was sold to the-treasurer of that county for unpaid taxes assessed in the year 1889 to the petitioner, who paid the consideration therefor, together with the costs and expenses of such sale, as provided for by the statute; that a certificate of such sale was made by the treasurer in due form, and delivered to the petitioner, and that on the 22d day of August, 1892, the treasurer duly delivered to the petitioner a deed for the premises under his hand and seal, duly acknowledged, reciting that said land had not been redeemed within the time required by the statute. It further appears that on the 27th day of September, 1892, the petitioner caused to be served a printed notice, in the form required by statute, on F. S. Leseritz, to whom the real estate was assessed, and on Mary Shrank, the person who was then occupying the premises, and the petition concludes with the prayer that an order be made pursuant to § 16 of chapter 107 of the Laws of 1884, requiring the owner and other persons interested in the premises to show cause why the petitioner should not have possession of and title to the premises, and for such other and further relief as he may be entitled to. Thereupon an order of the county court was issued, reciting the facts set forth in the petition, and ordered that the parties named therein, among which was the respondent, show cause before the county judge of Monroe county, or the special county judge thereof, within three months from the service thereof, to wit, on the 8th day of September, 1893, at 11 o’clock A. M., in the county court aforesaid, why said petitioner should not have possession of and title to said property, and why said owner, and all persons having any lien upon or interest in said lands, should not be foreclosed and forever barred and cut off from any and all right, title or interest in said lands or property, pursuant to the provisions of said act, and why an order to that effect should not be-made by .the court. This order was served upon the respondent on the day on which it was issued, and, on the return day thereof, the county court made an order dismissing the proceedings, from which this appeal was taken.

Section 16 of the act in question provides as follows: “ Section 16. Within one year after the expiration of the three months mentioned in the notice to be served pursuant to sections thirteen and fourteen of this act, the grantee, his heirs or assigns, shall make application to the county court of Monroe county for an order requiring the parties -interested to show cause why he should not have possession of and title to such property; and if such property be incumbered by mortgage which is recorded, or by a judgment which is a lien thereon, or by any other recorded lien, the court shall cause a written or printed copy of said order to show cause to be served on the person who, according to the records in Monroe county clerk’s office, is the owner of such property and of such mortgage, judgment or other recorded lien, stating in substance the sale and conveyance, the person to whom conveyed, the amount of the consideration money mentioned in the conveyance, together with thirty-five per centum on said amount, and the amount paid for the deed, and for serving all orders required by this section, and that unless such consideration money together with the thirty-five per centum and the expense of procuring the deed, and the expense of serving said orders to show cause, is paid into the treasury of said county by a person having an interest in or lien upon said lands, together with the costs allowed by the court for this proceeding, which amount shall be specified in said order, within three months from the service thereof, the court will declare the title vested in the grantee. Said order to show cause shall in every case be served upon the person who, according to the records of the Monroe county clerk’s office, is the owner of said property.”

As we have seen, the order was made returnable on the 8th day of September, 1893, before the expiration of three months from the time the same was issued and served. This, we think, was not a compliance with the provisions of the statute. On reference to the above provisions it will be seen that an application may be made to the county court for an order requiring the parties interested to show cause why the petitioner, should not have possession of and title to the property, but no time is specified in that section in which the order should be made returnable. It does provide that, in case the property be incumbered by a mortgage or by judgment or by any recorded lien, written or printed notice of the order to show cause must be served upon the person holding such mortgage, judgment, or lien, stating, in substance, the sale and conveyance to the petitioner, the amount of consideration money mentioned in the conveyance, together with 35 per- centum on such amount, and the amount paid for a deed and for serving the orders required by-the act, etc., and that, unless such money is paid into the treasury of the county by a person having an interest in or lien upon such land within three months from the service of the order, the court will declare the title vested in the grantee. The three months mentioned in this provision have reference to the time within which the persons interested in the premises shall pay the amount of the consideration money, with the per centum, costs, and expenses provided for by the statute. It is therefore apparent that the order cannot be made returnable within the three months from the time it was issued and served. This is made more clear by the express provisions of § 17,- which provides that: “At any time after the expiration of the three months last aforesaid unless the promises are redeemed according to the terms and conditions of said order the county judge or special county judge may be a final order declare the absolute title in fee to the said premises vested in the grantee and that all persons having any lien upon or interest in said premises shall be from the date thereof forever barred and cut off from any and all right, title or interest in said property.”

The order should not, therefore, have been made returnable until after the expiration of three months given to theipersons named in the order to redeem.

Some confusion appears to exist in reference to whether the order should be made by the county court or by the county judge or special county judge. We think it should be made by the county court. The petition is required to be presented to the county court. The order to show cause is made by the county court, and it should be made returnable in the county court. True, § 17 provides that the order may be made by the county judge or special county judge, but, in construing this section with that which precedes it, we think it was intended that either the county judge or the special county judge may preside in the county court in which the order was made returnable. The order appealed from should be affirmed, with $10 costs and disbursements.

All concur.


author: Dwight, P. J.

text:
    Walter B. Fargo, Resp’t, v. Charles Owen, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Parties—Trustee of express trust.
    Tenant in common, with power of attorney to rent land and collect the rents, may sue for such rents without joining his co-tenants as plaintiffs.
    Appeal from a judgment of the county court affirming a judgment of the justice’s court entered on the verdict of a jury.

      E. M. Bartlett, for app’lt; T. W. Brown, for resp’t.
   Dwight, P. J.

The action was to recover rent of a house and lot in the village of Warsaw under an oral contract made by the plaintiff with the defendant. The title to the property was in six devisees of one Allen Fargo, deceased, of whom the plaintiff was one; and he had a general power of attorney from the other five to manage, care for, and collect the rents of all the real estate of which Allen Fargo was the owner at the time of his death, in the town of Warsaw. He made the oral lease in question to the defendant in behalf of himself and the other owners, and he brought this action in his own name. The only question presented by this appeal is whether, by virtue of his power of attorney, the plaintiff was entitled to bring and maintain the action in his own name, as the trustee of an express trust, under § 449 of the Code of Civil Procedure.

The power of attorney was under the bands and seals of the several devisees, other than the plaintiff; and, in the usual form, it made, continued, and appointed the plaintiff their true and lawful attorney, for them, and in their name, place, and stead, to take charge of, manage, and care for all the real estate, as above; to make leases of the same, as might be needful; and to collect the rents. It contained the usual grant of full power and authority to their said attorney to do all things necessary to be done in the premises as fully, to all intents and purposes, as they might or could do if personally present. It granted the power of substitution, and ratified and confirmed in advance “all that our said attorney or his substitute shall lawfully do, or cause to be done by virtue thereof.” There can be no stronger instance of an express trust than that furnished by this instrument; and the case is, so far, undoubtedly brought.within both the general provision and the particular definition of § 449, supra. The provision is that “a trustee of an express trust * * may sue without joining with him the person for whose benefit the action is prosecuted ;” and the definition is that “a person with whom or in whose name a contract is made for the benefit of another is a trustee of an express trust within the meaning of this section.” But the contention on the part of the appellant is that, by the express terms of the power of attorney, the authority of the plaintiff^ was limited to acts to be done in the name of his principals, the language being “ in our name, place and stead.” The argument is based upon a very narrow construction of the instrument. The words “in our name” do not limit, but confer, authority. By virtue of his authority the attorney may use the names of his principals in executing leases and other contracts, and giving receipts and acquittances. There is no special reference in the instrument to the bringing of actions. Authority for that purpose is to be inferred from the authority to collect rents, and to protect the property from loss and damage, but there is no purpose to prescribe the manner in which the authority shall be exercised. That is to be governed by the law, and the rules of procedure. The power of attorney creates an express trust, and, in doing so, confers upon the trustee the authorit)'", in matters of form, which by law pertains to that relation. Under the special authority of the power of attorney, the plaintiff may undoubtedly bring an action in the name of his principals, but he is not thereby deprived of the general authority which is conferred by statute upon every trustee of an express trust.

There was no error in the ruling of the justice denying the defendant’s motion for a nonsuit, and the verdict of the jury deter- _ mined all other questions raised on the trial. The judgment of the county court, affirming that entered on the verdict, must be affirmed.

All concur.

Judgment of the county court of Wyoming county affirmed, with costs.