text:
    Charles T. Erhard, Pl’ff, v. The County of Kings, Def't.

      (Supreme Court, Kings County—Reference,

      Filed October, 1895.)

      1. County—Liability.
    An action, brought directly against a county to recover, as on a contract, the alleged value of work, labor and services performed for the county in compliance with a resolution of the board of supervisors under such circumstances as to constitute a county charge, cannot be maintained.
    2. Same—Waiver.
    The county cannot, by any action on its part, obviate or remove the objection to a recovery.
    3. Reference—Effect of.
    The court, in referring an action, does not pass affirmatively upon the right of the plaintiff to maintain it.

      Bufus 0. Gatlin, for pl’ff; George F. Flliott, for deft.
   Opinion by James Troy, Referee.

This is an action brought directly against the county of Kings to recover, as on a contract, a sum of money, the alleged value of work, labor and services performed by the plaintiff for the county in compliance with a resolution of the board of supervisors under such circumstances as to constitute a county charge. Chapter 686, Laws 1892, art. 3, § 230, sub. 15. No objection to the form of proceeding has been taken by the defendant, but the plaintiff having rested his case, the question nevertheless presents itself to the referee as to whether the action can be maintained.

Under the law, as it existed previous to 1892, no action could be maintained to recover a county charge. Brady v. Supervisors of N. Y., 10 N. Y. 260; Brice v. Board of Supervisors of Cayuga County, 20 Barb. 294; Adams v. Board of Supervisors of Oswego County, 66 Barb. 368; Martin v. Board Supervisors, county of Greene, 29 N. Y. 645; People ex rel. Baldwin v. Supervisors of Livingston, 12 How. 204; People ex rel. Brown v. Supervisors Herkimer County, 3 How. (N. S,) 241; People v. Supervisors Delaware County, 45 N. Y. 196; People ex rel. Kinne v. Supervisors Cortland County, 56 Barb. 139; People ex rel. Sherman v. Supervisors St. Lawrence County, 30 How. 173; People ex rel. Chase v. Supervisors Saratoga County, 33 Barb. 603: Huff v. Knapp, 5 N. Y. 65; People ex rel. Downing v. Stout, 23 Barb. 338; Brady v. Supervisors, 10 N. Y. 260. Each county as a body corporate was vested with the capacity, amongst other powers, “to sue and be sued in the manner prescribed by law,” all actions, suits and proceedings by or against a county in its corporate capacity were required to be in the name of the board of supervisors of such county. 2 Rev. Stat. 7 ed. (Banks) part 1, chap. 12, title 1, article 1, § 2, sub. 3, and title 3 same chapter and article, §§ 1 and 2. And no county possessed or could exercise any corporate powers except such as were enumerated in that chapter or should be specially given by law, or necessary to the exercise of the powers so enumerated or given.

Amongst the powers conferred on the board of supervisors of each county, was the right “to examine, settle and allow all accounts chargeable against such county ” and direct the raising of such sums as might be necessary to defray the same, and all accounts for county charges of every description were required to be presented to the board of supervisors to be audited and allowed.

There were also other provisions requiring such accounts to be itemized and verified and giving to the board of supervisors power to examine witnesses on such investigation and compel their attendance for that purpose.

All those provisions are repealed by the act of 1892, and another enactment relating to county charges and the audit thereof subststituted thefor.

It becomes necessary, therefore, to ascertain whether the repeal of the former laws and the passage of the county law in the ■foregoing respects have taken away from the board of supervisors the exclusive jurisdiction which they formerly possessed to audit county charges.

It will be observed that the provisions of the county act, except where they may be regarded as more comprehensive than the former laws, are substantially the same—the regulations as to presenting bills and accounts are the same, such accounts must also be itemized and verified, and, notwithstanding such verification, the board may reject and disallow a bill and may examine witnesses on the subject, whose attendance may be compelled as formerly and the board is authorized to make such additional regulations and requirements not in conflict with law concerning the keeping and rendering of official accounts and reports of its county and town officers and the presentation and auditing of bills presented to the board or to the town boards of the county as they may deem necessary for the efficiency of the same and the protection of the interests of the public. All the necessary power and authority which formerly existed and everything necessarily incidental to the proper exercise of judicial power in this respect is carefully retained.

As the substituted provisions, therefore, are the same as those which they replace, it would seem that no construction can be given to them different from what formerly prevailed, People ex rel. Outwater v. Green, 56 N. Y. 466, and, unless a section of the county law, not yet referred to, has created a change in this respect, the former interpretation must be adhered to.

The section referred to is as follows:

Actions and Contracts in Corporate Name.

Section 3. An action or special proceeding for or against a county or for its benefit and upon a contract lawfully made with it or with any'of its officers or agents authorized to contract in its behalf or to enforce any liability created or duly enforced upon it or upon any of its officers or agents for which it is liable or to recover damages for any injury to any property or rights for which it is liable shall be in the name of the county. All contracts or conveyances by or on behalf of a county shall be deemed to be in the name of the county whether so stated or not in the contract or conveyances.”

Chapter 686, Laws 1892, section 3.

It seems very clear to my mind that this latter provision has-no reference whatever to the laws relating to the audit of county charges by the board of supervisors and was only intended to change the law in respect to actions for or against the county which the former statutes declared should be in the name of the board of supervisors; the liability referred to there is the same contemplated by the latter section and no other. That liability did not include claims for county charges, every duty in connection with which was imposed exclusively upon the board of supervisors and performance, if neglected or refused, could only be enforced by mandamus. Nor was the county liable for the nonfeasance or misfeasance of its officers. As the right to maintain an action against the county, therefore, under the latter section of the county act depends now, as under the former law, upon this liability, and, as no such condition exists with respect to county charges, it is impossible to see how this action can be sustained. See, People ex rel. Oneida Nat. Bank v. Supervisors of Madison Co., 51 N. Y. 442; Boyes v. Supervisors Cayaga, 20 Barb. 294; Chase v. Laidlow, 33 Barb. 603; Albrecht v. County of Queens, 84 Hun, 399; 68 St. Rep. 658; People ex rel. Myers v. Barnes, 114 N. Y. 317 ; 22 St. Rep. 164.

The counsel for the plaintiff insists very strenuously that this question is not before the referee and claims that it must be assumed that the court in referring the action had already passed affirmatively upon the right of the plaintiff to maintain it. I can only regret my inability to concur in this proposition. On a reference to try and determine the issues in an action, the referee stands in the place of the court and must “dispose of any question arising upon the decision of the issues referred to him in like manner as similar powers are exercised by the court upon a trial,” Code Civil Pro. § 1018; Schuyler v. Smith., 51 N. Y. 309, and, as the question involving the right to maintain the action could not be disregarded by the court upon the trial, neither can it be overlooked by the referee. To pass upon the merits, therefore, under such circumstances in the absence of power to render or enforce a judgment for the plaintiff would be equally inconsistent and erroneous.

Hor can the county by any action on its part obviate or remove this objection. It cannot relieve or enable the board of supervisors to escape from the performance of the duty imposed upon them by law to audit county charges, nor can it delegate or interfere with the power conferred exclusively upon them for that purpose, or itself assume such. authority; in short, it has no power or authority except such as is given to it by statute, which imoludes certain incidental powers not enumerated but necessary for the exercise of those which are expressly declared, and it cannot be subjected to an action at law to recover a county charge or by consent, failure to demur or otherwise, enlarge or extend its powers in this respect or validate an action which the law does not authorize and which the court cannot entertain.

I am therefore compelled to dismiss the complaint, with costs.


source: Caselaw Access Project

author: Beekman, J.

license: Public Domain

text:
    Aaron Kahn, Pl’ff, v. William M. Hoes, as Public Administrator, etc., et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed September, 1895.)

    1. Will—Lost—Probate.
    In order to establish a lost will, the proof should be clear and convincing ot only in respect to the provisions of the will, but as well that it was in existence at the time of the testator’s death.
    2. Same—Presumption op revocation.
    The presumption of revocation, in which the law indulges where a will shown to have been made cannot be found after the decease of the testator, must be overcome, by the party seeking to establish such lost will, by evidence satisfactorily accounting for its absence upon some other theory.
    Action by Aaron Kahn against William M. Hoes, public administrator, and others, to establish an alleged lost will.

      Edward G. James, for pl’ff; F. W¡< Arnold, for def’t Hoes; L. H. Arnold, for def’t Eeiner.
   Beekman, J.

Michael Eeiner died on or about the 27th day of July, 1893, in the city of Hew York, leaving, him surviving, his wife and one child, the defendant Moses Eeiner. In the month of August following, administration upon his estate was granted to the public administrator, who thereupon entered upon the performance of his duties in respect thereto. The plaintiff, claiming that the deceased was testate, and that he was a legatee under the will, brings this action against the public administrator, the widow and the son of deceased, to establish the will as a lost will, and, upon the issues raised by the answers, is put to his proof of the making of the will, its existence, in legal contemplation, at the time of testator’s death, and its loss. The will, as set forth in the complaint, reads as follows:

In the name of Grod, amen. I declare this to be my last will and testament:
“ First. I give and bequeath to Aaron Kahn, my attorney, the sum of thirty thousand ($30,000) dollars, for the reason and on the ground that he was a faithful and true friend, having advised me professionally without exacting compensation, and loaned me moneys when and how I needed the same without exacting interest for the use of the same or any token in writing, relying entirely on my verbal promise.
‘‘Second. I also appoint Aaron Kahn as my executor. It is-my wish that he need not give bonds for the trust, nor is any bonds to be required for the execution of the trust. ;
“ Third. After the payment of the legacy in paragraph first of. this will, it is my wish that the balance remaining in real and - personal property is to be converted into cash, and to be distributed, share and share alike, to my family, consisting of my wife _ and son, after all the debts are paid. }
“ In witness whereof, I have hereunto set my hand and seal. this 2d day of December, 1878.”

While the statutory provisions under which such an action is maintainable are remedial in their nature and benignant in their purpose, and should, therefore, be liberally construed and applied, still it is not to be forgotten that the law has in this state always exacted great particularity of proof in respect to testamentary acts ■ and the observance of formalities intended to make the proof as nearly as may be a demonstration that the testator was capable and fully conscious of the nature of his act. This extreme • caution obviously arises from the essential privacy of the act itself, which does not become the subject of proof until the month of the chief actor is closed by death, and the consequent ease and safety with which fraudulent wills might be concocted . and maintained. As little as possible is left to the uncertainty of recollection or the operation of fraudulent design, in the requirements that the will shall be in writing, subscribed and published by the testator and authenticated by two witnesses, selected by him and subscribing their names in his presence in attestation of due execution. It wilhbe seen that the chief value of these ’■ precautionary requirements rests upon the production of the I document itself when rights are asserted under it, and that its ab- . sence opens the door to the uncertainties and fraudulent designs against which the statute was intended to provide. Experience, however, has demonstrated the necessity of providing for the cases where wills which had been duly executed were lost or fraudu- ' lently destroyed, and could not, therefore, be produced for probate, and in order that the rigor of the statute should not defeat a duly executed testamentary act, or in its operation to prevent one kind of fraud work another, provision has been made for the establishment of wills where, through loss or destruction by action or design, the paper cannot be produced. But in so doing the legislature has also sought in some measure to provide against the dangerous consequences imminent upon this relaxation of the rule by prescribing a special quality of proof in such cases. Section 1865 of the .Code of Civil Procedure, provides as follows :

“ But the plaintiff is not entitled to a judgment establishing a lost or destroyed will, as prescribed in this article, unless the will was in existence at the time of the testator’s death, or was fraud* ulently destroyed in his lifetime ; and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness.”

The burden of proof rests upon the plaintiff, and reason, as well as the policy of the law, demands that the proof should be clear and convincing, not only in respect to the provisions of the will, .but as well that it was in existence at the time of the. testator’s death. The plaintiff is confronted at the outset by the presumption of revocation, in which the law indulges where a will shown to have been made cannot be found after decease, a presumption which he must overcome by evidence satisfactorily accounting for the absence of the paper upon some other theory. Upon a very careful examination of the evidence in this case, I am of the opinion that the plaintiff has not sustained the burden thus resting upon him. The testimony shows that the deceased was a foreigner, having a very limited acquaintance with our language, who came to this country about the year 1870. He was engaged in business in a small way as a peddler .of jewelry and lottery tickets, living meanly, 'and extremely penurious in his habits. The plaintiff claims to have befriended him in various ways, including loans of money and the giving of gratuitous legal advice, and that the will in question was the outcome of a sense of gratitude on the part of the deceased for past favors. What may have been the extent or precise character of these services does not appear as a matter of proof, so that we are unable to judge of the reasonableness of the motive ascribed to the testator. The evidence offered on the part of the plaintiff in respect to the making of the will is to the following effect: A few days prior to December 2, 1878, the day on which the alleged will bears date, the deceased called upon the plaintiff at his office, No. 290 Broadway, in this city, and requested him to draw his will according to instructions which he then gave. This was done, and on the above mentioned date the deceased attended at the plaintiff’s office and executed the will in the presence of the plaintiff, the plaintiff’s brother, Isaac Kahn, his cousin, Jacob Tobias, and a law clerk, Edward Cumisky, the last two only acting as subscribing witnesses. Cumisky died before the trial, so that what took place on the occasion rests entirely upon the evidence of the plaintiff's two relatives. The evidence is quite exact upon every condition essential to a full, free and intelligent testamentary act, in conformity with every requirement of the statute, and if full credit is to be given to the witnesses there can be no question of the fact that the will propounded for probate was duly executed and fully embodied the actual testamentary intentions of the testator. A draft of the will was first prepared by the plaintiff in his own handwriting, from which the original was engrossed by the witness Tobias. The two were compared in the presence and hearing of deceased and the other witnesses, and upon the execution of the will the original was handed by deceased to the plaintiff. The further proof of the continued existence of the will rests solely upon the evidence of the plaintiff. He testifies that he put it in one of the pigeon holes of his desk in an envelope; that he saw it there from time to time as he looked over his papers; that he removed from his office twice after the execution of the will, the last time in the month of May, 4893, some two months before the death of the decedent, when he saw and handled the document, placing it with other papers in a basket for removal to his new office. Since that time he states that he has been unable to find it, and claims that it was lost in the course of his last removal. He has produced however, a paper in his own handwriting which the witnesss Isaac Kahn and Jacob Tobias assumed on the trial, after the lapse of some seventeen years, to identify as the draft from which the original was transcribed, and which was used for purposes of comparison in the presence of the deceased on the day when the will is said to have been executed. This paper is not only asserted to be the original draft, but purports also to be an exact copy of the will as executed, bearing upon it, in the plaintiff’s handwriting, the name of the deceased at the place of subscription, and the names of the subscribing witnesses and their residences at. the end of the attestation clause. These additions the plaintiff says he made immediately after the will was executed, and the paper thus completed was placed in a pigeonhole in his desk, the same desk in which it is claimed that the original will was also deposited. The plaintiff states that the desk was not locked, and that while, in going over his papers from time to time, he had seen the original will, or rather the envelope in which it had been'placed, he did not see this draft from the time of the alleged execution of the will to the day when, in pursuit of the original, after Mr. Reiner’s death, he found it in his desk.

It will thus be seen that one essential branch of the case, namely, the existence of the will at the time of the decease of Reiner, rests wholly upon the evidence of the plaintiff. It is, therefore, of vital importance that his testimony should be subjected to a most critical examination. In the first place he is deeply interested in the result, and under an incentive to support his claim proportioned to the amount involved and the fact that success or failure must depend upon his own testimony. To such an extent does the law recognize the operation of self-interest upon the credibility of a party to an action that the determination of the facts must still be left to a jury where they rest upon the evidence of a party, although a direction of a verdict would have been proper if the same facts had been testified to by a disinterested witness. The mind refuses to be satisfied with such evidence alone, and naturally seeks some corroborative proof,—some evidence which shall incline the probabilities of the case in favor of the claim. Is there such evidence in this case ? It seems to me quite clear that there is not. The plaintiff naturally sought to lay the foundation for the reasonableness of the will by showing that he had won the affection of the deceased; that the relations between the latter and his wife and son were unfriendly, and that this legacy of $30,000 was prompted by feelings of •gratitude for kindly acts received by him. at the hands of the plaintiff. There is some evidence in the case tending to show that there was an estrangement between the deceased and his wife. At all events, she remained in Austria when he came to this county, and never saw him during the period of twenty years or more which covered his sojourn in this country before his death. While his relations with his son seem to have been friendly, they did not commence until after the month of May, 1882, when the latter came to this country. But the force of this claim of hostility to his family is somewhat weakened by the fact that the alleged will upon which the plaintiff stands makes the wife and son residuary legatees on an equal footing, a fact which hardly fits in with the hostile or indifferent attitude of the deceased towards his family which is claimed to have existed at the time the alleged will bears date. The extent of the attachment of the deceased towards the plaintiff rests, it may be said, almost entirely upon the evidence of the witness Lewis Fisher, who testifies to a slight acquaintance with the deceased in the years 1878 and 1879. He said that he did not see him again until May, 1893, when he met him in the street, and in a conversation which ensued he testifies to the following statements made by the deceased :

“ I said, 1 You are speaking so much about saving. How much have you got ? He said, 1 $50,000 or $60,000.’ I said, 1 What are you going- to do with it? He said, ‘ X am going to give Aaron Kahn $30,000, and the balance goes to my wife and son.’ I said, ‘What do you give it to Aaron for, all this amount of money ? He said, ‘ He has always been a good friend of mine, a faithful adviser, and always loaned me money on several occasions.’ Q. What did you say to that? A. I said, ‘ That is very kind of you, indeed. Everybody won’t do that.’ * * * ”

The witness also stated that the deceased said something about his wife not treating him right, and that he was not living with his son, and that the plaintiff “ has been a better friend to me than my wife and son.” On cross-examination the witness says that his question of the deceased, and the latter’s response on this point, were:

“ ‘Why do you leave all that money to him, and just so much to your wife and child ?’ He said, ‘ My wife and child is not as good to me as he is,’ or words to that effect. * * *”

The evidence was, of course, of the highest importance. It was intended to show not only the warmth of the attachment of the deceased to the plaintiff, but also, by the deceased’s own declaration, made but two months before his decease, that he had made a will in exact correspondence with the one sought to be probated, even to the declaration of the same motives of gratitude which the alleged will recites as the reason for the bequest to the plaintiff ; not only this, but also that this will had not been revoked by the deceased, but was believed by him to be still in existence ; and in this connection it will be recalled that this interview is placed in the same month in which the plaintiff swears that he last saw the will. In weighing the evidence of this witness we are confronted with two facts which very seriously impair its veracity. The plaintiff himself testifies that the last time he saw the deceased was in the year 1883 ten years before the alleged interview. During all that time they were living in the city of New York, within easy reach of one another, and yet they never met. All intercourse between them appears to have ceased, and they continued from 1883 down to the death of the deceased to be absolute strangers to each other. So complete was the estrangement that the plaintiff himself testifies that when lie learned of the death of Reiner he had forgotten his first name. The words put in the month of the decease^! by the witness Fisher, and the attitude of grateful friendship towards the plaintiff which he pictures, are not commonly consistent with a previous suspension of all intercourse of many years’ standing; and the unnaturalness of it breeds a sense of improbability of the whole story, a feeling intensified to conviction by the extraordinary statement of the witness himself, that he had not disclosed this interview to the plaintiff, until the day on which he took the witness stand and swore to it. The witness is a first cousin of the plainlift, with whom he has been on terms of friendly intercourse. He was the guest of the plaintiff for some three weeks at the Catskills in July, 1894^ after this suit had been commenced, and, according to the testimony of the plaintiff, was present at a controversy between Dr. Cahn and the plaintiff respecting the matter of this will. The evidence was important, and the witness an intelligent man, capble of appreciating its weight. If such an interview had taken place, he would have communicated it to the plaintiff upon the learning of the controversy over the will, for that is what common experience teaches us' is done by men under similar conditions and circumstances. What he did do was quite otherwise. Let his own testimony speak for him:

“ Q. When did you first tell your cousin about the conversation with Reiner ? A. I did not tell him about the conversation I had downstairs. He asked me if I remembered Mr. Reiner, about a week ago, and I said, 1 Yes.’ Then I said, ‘I can recall some little conversation that we had together.’ I did not tell him what it was until he heard it here this very day.”'

No explanation of this unnatural reticence is offered. Unexplained, it is in itself enough to excite doubt, and to suggest a shallow attempt on the part of the witness to avert suspicion of concert of action in the manufacturing of the story, and to give to his testimony the air of an unpremeditated narration. The testimony of the witness is so improbable, and bears such marks of invention, that I am unable to credit it, and therefore reject this alleged interview with the deceased as a fabrication.

I now come to a consideration of the -testimony of the plaintiff himself. As I have already stated, the evidence of the existence of the will at the time of the death of the deceased depends wholly upon his testimony. He swears positively that he saw the will last in the month of May, 1893, and yet only three months after-wards he writes a letter to the public administrator, in which he says :

“ I just learned that Reiner died and you administered on his estate. I was his attorney during his lifetime and. drew his will, which I think I have, if 1 did not deliver it to him personally. I have been on my vacation here since July 17,1893. Reiner died during and since that time, and I shall return to city on September 1, 1893, when my vacation will be up, and shall then file the will, if in my possession.”

The italics are mine. It was at this time, also, as the plaintiff testifies, that his recollection served him only so far as that, while he remembered he had drawn the will and that it contained a legacy in his favor, he did not recall the amount. Even the first name of the testator, his former friend, had faded from his mind, and, though he now testifies that but three months before this letter was written he had seen the will, he writes to the public administrator in words of doubt as to his possession of it, and suggests that he may have delivered it to the deceased personally. As he fixes the year 1883 as the latest date on which he had seen the deceased, such delivery, the possibility of which he suggests, must have taken place, if at all, at least some ten years before the death of the deceased. He fails to give any explanation of this inconsistency between the letter and his testimony. The suggestion of the letter that he may have delivered the will to his client, and his forgetfulness of his client’s first name at about the same time, accord better with the theory that he had not seen the will in his office, as he now testifies, than that he had. The testimony of Mr. Lindner, who conversed with the plaintiff at the Catskills when the report of the death of Michael Reiner appeared in the ne wspapers, gives support to this view. There can be little doubt of the fact that the plaintiff had the deceased in mind when he said to Mr. Lindner that he had done business for Mr. Reiner, that he had not seen him for a considerable time, and that there was a small balance due him which he thought he could collect. Why did he not mention the fact that he was a legatee under his will, or at least that he was the executor ? The whole of this conversation with Mr. Lindner, even when taken with the subsequent version and explanation of it given by the plaintiff, weighs against the claim upon which he has predicated his action. Is it credible, in view of all these considerations, that the plaintiff could have seen the will in May, 1893, as he has testified he did ? I think not, and, upon a careful consideration of the whole case, I am compelled to find that there is a lack of credible proof that the will was in existence at the time of the death of decedent. I am also of the opinion that there is a fatal doubt in respect to the execution of the will itself. The proofs in this regard rest upon the evidence of Jacob Tobias, a cousin of plaintiff and one of the subscribing witnesses, and Isaac Kahn, the brother of the plaintiff. The former, after a lapse of sixteen years since the alleged execution of the paper, testifies with remarkable accuracy to everything that was said and done on the occasion down to the smallest detail, a feat possible only in the case of a memory of exceptional strength; and yet, only a week before this evidence was given, he said to Mr. Little, a lawyer who called upon him at Pittsburgh, at the instance of the public administrator, and showed him a copy of the alleged will that he had signed some paper of Reiner’s, but could not tell whether it was that paper or not, and that they would have to refresh his recollection on the subject before he could testify. In May, 1894, some eight months before the trial, Dr. Cahn'also 'called upon the witness at Pittsburgh at the request of the public administrator. He states that the witness then said that he did not remember signing any will and would have nothing to do with the case: In view of this, the remarkable fecundity of -his memory on the witness stand but a short time afterwards gravely detracts from his credibility, and renders his testimony of little worth when weighed with the other facts of the case, suggesting inferences distinctly unfavorable to the bonafides of the plaintiff’s claim.

The other subscribing witness, Edward Cumisky, died before the trial, and the only other person produced to prove the will and its execution was Isaac Kahn, the brother of this plaintiff. He was not a subscribing witness. He says he refused to become one because of the legacy in favor of his brother. At the time of the alleged execution of the will he was seventeen years of age, and happened to be a visitor at the plaintiff’s office when the will was executed. After a lapse of seventeen years he shows the same remarkable' recollection of details, even to the phraseology of the will and the physical appearance of the draft which is in evidence, which, as I have said, tends to deepen rather than allay doubts which have arisen respecting the facts. Several witnesses were ■produced on behalf of the defendants, whose evidence tended to show that the plaintiff had been busy in efforts to build up his •case by sinister methods. T shall not undertake to review this evidence. It is sufficient to say that, upon the whole case, and after a careful consideration of all the evidence, I have come to the conclusion that the plaintiff has failed to sustain the burden of proof resting upon him, not only in respect to the existence of the will at the time of 'the decree of Michael Reiner, but also in respect to the execution of the paper, and that the facts upon which he claims judgment in his favor have not been credibly established.

The complaint should, therefore, be dismissed upon the merits, with costs.


author: Bradley, J.

text:
    Martin B. Campbell, Resp’t, v. Alice Campbell, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Divorce—Decree—Effect of.
    A decree of divorce, rendered in a state where the parties were domiciled, will be recognized in this state, though the process was served by publication.
    '3. Same—Domicile.
    When a person has no family elsewhere, the place where he resides is presumptively his domicle, unless it appears that he is residing there for some specific purpose, which does not characterize it as such ; but it is otherwise when he is head of a family residing at some other place.
    Appeal from a judgment in favor of claintiff, entered on the report of a referee.

      A. M. Burrill, for app’lt; B T. Hollis and A. J. Robertson, for resp’t
   Bradley, J.

The plaintiff and defendant were married in March, 1885, at Jasper, in the county of Steuben, H. Y., and cohabited as husband and. wife until April, 1889, and not thereafter. In 1892 the plaintiff brought this action to annul the marriage, on the alleged ground that the defendant had a husband still living, in the person of Loren Whitney, to whom she was married prior to her marriage with the plaintiff. She was married to Whitney in January, 1880, at Jasper, H. Y. Afterwards, for about two years preceding April, 1883, their place of residence was in the county of Tioga, in the state of Pennsylvania. Whitney in that month left that state, and went to the state of New-York. And thereafter, in July of that year, the defendant commenced an action, in the manner provided by the statute of that state, in the court of common pleas of Tioga county, Pa.; oYthe alleged ground that he bad deserted her, and on the further charge of adultery alleged to have been committed by him. Ho personal service of process was made, but notice was served upon him by publication, and it is assumed that all the proceedings in that suit were had and taken in the manner provided by the statute of Pennsylvania for the prosecution of an action against a person absent from the state. The alleged cause was sufficient in that state for the relief sought by the action; and in January, 1884, decree was therein, perfected, in terms and apparent effect dissolving the marringe contract between the defendant and Whitney.

. If the domicle of Whitney was in the state of Pennsylvania at the time the action was instituted, and the notice published there, jurisdiction was acquired of his person, although he may have been residing elsewhere, Huntley v. Baker, 33 Hun, 578; De Meli v. De Meli, 120 N. Y. 485; 31 St. Rep. 704 ; and in that event the decree in the Pennsylvania action would be effectual to dissolve their marriage relation of husband and wife. Hunt v. Runt, 72 N. Y. 217. This is presumptively the effect without further proof on the subject, as, since Whitney’s domicle had been in that state, it would be deemed to remain there until it was made to appear that he had acquired a domicile elsewhqre, Crawford v. Wilson, 4 Barb. 505; and the act and intent must concur to that effect to produce a change of domicile. Lyman v. Fiske, 17 Pick. 231. The plaintiff had the burden of proving that the domicile of Whitney in Pennsylvania had ceased by his acquiring one elsewhere. The facts bearing upon the subject are furnished by the evidence of Whitney, who testified that he left Pennsylvania, and went to Sandusky, Cattaraugus county, H. Y, lived there a year, “lived in Farmersville, worked there two months of 1884, then, in March, 1884,” went to Sandusky. At the time of the trial (March, 1893) he resided in Hinsdale, in Cattaraugus county. He says that his uncle residing in Tioga county, Pa., wrote him frequently about what was taking place there; that when the witness was living in Machias, Cattaragus county, he was informed by letter that the defendant “had just got a divorce from me.” He says this was in 1885 ; that he afterwards, in that year, married another woman, by whom he has four children. He further testified : “When I went away from Pennsylvania, in 1883, I took part of the goods. None of inv goods wore left behind in Pennsylvania that I know of." He added that he has not since voted in that state, but has voted repeatedly in the state of New York. He does not state when he first voted after he came to New York. His evidence shows tiiat he has acquired a domicile in the state of New York, but the question is, does it appear by the evidence that he had done so when the action in Pennsylvania was instituted and the notice was published there ? The evidence is not very satisfactory in that direction. When a person has no family elsewhere, the place where he resides is "presumptively his domicile, unless it appears that he is residing there for some specific purpose, which does not characterize it as such ; but is otherwise when he is the head of a family residing at some other place. Huntley v. Baker, 33 Hun, 578. His residence may be in one place, and his domicile in another. The question is one of intent, as well as act.

In Re Thompson, 1 Wend. 45, Mr. Chief Justice Savage quoted from Yattel with approval the remark that “the domicile is the habitation fixed in any place with an intention of always staying there.”

And in Re Roberts' Will, 8 Paige, 524, the chancellor said:

“ I think it cannot be doubted that the actual residence of an individual at a particular place with the animus manendi, or a fixed and settled determination to make that his permanent residence for the remainder of his life, constitutes that place his domicile, at least until there is some evidence that his intention to remain there has been abandoned.”

It may, however, be deemed sufficient to constitute the domicile of a person in a place, that his residence is there with the intention to remain at that place permanently. Gilman v. Gilman, 52 Me. 165. The intent as well as the act must be made to appear. Dupuy v. Wurtz, 53 N. Y. 556. As of the time the action was commenced in Pennsylvania, it simply appeared that Whitney had left there, and gone to Sandusky, in the county of Cattaragus, about three months before. No circumstances as of that time were proved to show his intent to make his residence there permanent. What, if anything, he had done there to characterize his purpose in that respect, does not appear; and, although Whitney was called as a witness to support the action, he does not give evidence of his intent then to make it permanently his place of residence. His intention, if such was the fact, to abandon his domicile in Pennsylvania, did not have the effect to create another where he happened to stop, unless he also intended to make his residence at such other place permanent. lie did not lose sight of the fact that his wife remained in Pennsylvania. He had his correspondent to inform him what was going on there, and, when advised that his wife had obtained the divorce, he treated it as effectual, and proceeded to obtain another wife. If Whitney had acquired another domicile at the time the Pennsylvania court sought to obtain and take jurisdiction of him as a party, the fact should be made to appear quite satisfactorily before annuling the marriage in question. :

In the cases to which our attention has been called where the divorce decrees have been adjudged void for want of jurisdiction, the parties seeking them have left the state of the domicile of the husband and wife, and gone elsewhere to seek the forum. Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 id. 30; Williams v. Williams, 130 id. 193; 41 St. Rep. 280; Vischer v. Vischer, 12 Barb. 640. The same may be said of the Baker's Case, 76 N. Y. 78, and O'Dea v. O'Dea, 101 id. 23. In the case at bar the wife remained in the state which had for some time been the domicile of herself and husband, and there instituted her suit in which the decree of divorce was granted. The distinction between her case and those cited was observed by the court in Re Morrison, 52 Hun, 102; 22 St. Rep. 542. The affirmative on review by the court of appeals was without opinion. 117 N. Y. 638. Whether the latter court adopted both, or only one, and which, of the propositions announced at the general term, does not appear. The remark in the opinion of the court in Rigney v. Rigney, 127 N. Y. 413; 40 St. Rep. 210, in support of the remedy for divorce by a resident of the state against the husband or wife who is a resident of another state, may be deemed to relate to the effect of the judgment within the state where it is recovered. This is in accordance with the views of the court in Williams v. Williams, supra. See, also, Scragg v. Scragg, 18 N. Y. Supp. 487.

It may be assumed, upon the facts found by the referee, that the judgment of divorce obtained by the defendant in Pennsylvania was valid and effectual in that state. Her action was in the nature of a proceeding in rem to annul the marriage contract and relation for adequate cause. When one of the parties to such relation deserts the other, and seeks and acquires a domicile elsewhere, and the latter, remaining in the state which up to the time of such desertion was their common domicile, recovers a judgment of divorce without personal service of process or appearance of the defendant in.the action, whether or not the judgment is effectual in behalf of the party obtaining it beyond the boundaries of the state in which it is recovered has not necessarily been presented for determination by the courts of the state in any case to which our attention has been called. In such case the status of each of the parties may be determined by the state which is his or her domicile. The res on which the judgment in such case is operative is that within the state where recovery is had, and there is no jurisdiction over the res in the state of the domicile of the other other party. The latter, therefore, it would seem, could not make the judgment available beyond the state where it is rendered. It is not deemed necessary for the purposes of this review to proceed to the consideration of the question whether, in the supposed case, a judgment could operate to have any, and what effect upon the status of the £arty obtaining it beyond the state where recovery is had.

The judgment should be reversed, and a new trial granted; costs of this appeal to abide the final award of costs.

All concur, except Ward, J., concurring in result.


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    James S. Fisher, Resp't, v. Mary E. Filon et al., as Executors, etc., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Executobs—Disputed claim.
    Where no request is made for a more specific statement of a claim against a decedent’s estate, evidence in its support will not he stricken out, on the ground that such statement is too general.
    Claim by James S. Fisher against Mary E. Filón, John M. Davy and Platt B. Yiele, as executors of Michael Filón, deceased, as follows:
    “ Estate of Michal Filón, Deceased, to James Fisher, Dr.
    “ To investing $19,400, legal services and correspondence connected therewith, and disbursements since 1888,
    being 5 per cent............................... $970 00
    Credit account Peters interest received............... 45 05
    “Dated November 1, 1895.”
    $924 95
    The matter was referred, pursuant to the statute. Appeal from a judgment entered upon the report of a referee.

      Cassius 0. Davy, for app’lts ; W. A. Sutherland, for resp’t.
   Bradley, J.

The testator died in July, 1893. The claim was exhibited to the defendants in December, 1893, and referred in November, 1894. The plaintiff was an attorney and counselor at law. The referee found, as facts: That in or about 1888 Michael Filón retained and employed the plaintiff to invest for him about $20,000 in Western mortgages, and promised to pay the plaintiff a reasonable compensation therefor. That the plaint-tiff did so invest $19,400, and afterwards, from 1888 to the time of the death of the testator, at his request, took charge of the collection of the interest on the mortgages ; attended to the payment of the taxes and the redemption of the mortgaged lands from tax sales; rendered services and gave advice, as attorney and counsel, in matters relating to the investments, and conducted voluminous correspondence required in and about the business relating to them. And that his services were reasonably worth $970.

The plaintiff presented no claim for any of the services in question to Mr. Filón, during his life; and no account of the services was produced, nor was evidence of the value of them, in detail, given at the trial. It is therefore urged that the - measure of proof requisite to establish the claim was not furnished by the evidence. It is true that a claim presented against the estate of a deceased person is properly the subject of critical inquiry, and recovery should not be allowed unless it is supported by very satisfactory evidence. Kearney v. McKeon, 85 N. Y. 136. There is evidence to the effect that the testator employed the plaintiff to make the investments for him, and tending to prove that he intended to pay him for the services; that the plaintiff made the investments, and attended to the business which followed, relating to them. This included the collection of interest and payment of taxes, so far as it became necessary for the protection of the mortgage liens upon the property. He gave some attention to foreclosure of mortgages, and conducted quite an extensive correspondence in and about the business. The only evidence of the value of the services was that given in bulk by the plaintiff. This evidence did not embrace within its import any personal transactions with the decedent. The exception to its reception was not well taken.

The statement of claim, as exhibited to the defendants, is, in terms, quite general. It did not very definitely advise them of the nature of the legal services, otherwise than that they related to the matters of the investments. All the services which the evidence tended to prove were performed had that relation. They therefore came within the import of the statement of claim. It does not appear that the defendants required the exhibition to them of a more specific statement of the plaintiff’s claim. There was no error in the denial of the motion made at the close of the evidence, to strike out that given in relation to the services of the plaintiff.

The fact which the defendants sought to prove—that the plaintiff received payment, by way of commission, from the Western companies through which some of the investments for Filón were made—wciuld, if established, present a serious objection to his claim for services in making the investments. But the evidence, as the referee held, failed satisfactorily to show that the plaintiff had any relation, in the business, to those companies, inconsistent with the relation to Mr. Filón in the performance for such services.

The contention that the recovery was partially barred by the statute of limitations is answered by the statute which excludes eighteen months from the time within which an action may be commenced against the personal representatives of a deceased person against whom a cause of action exists at the time of his death. Code Civ. Proc. § 403.

The evidence relating to the matter of the plaintiff’s claim for services, and to the value of them, presented questions of fact within the province of the referee to determine, and his conclusion is. fairly supported by the evidence. There was no error in the rulings at the trial. The judgment should be affirmed. All concur.


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    Frank C. Vinton, as Supervisor, etc., Resp’t, v. Board of Supervisors of Cattaraugus County, et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Town—Action against county—Misappropriation op taxes.
    A town may sue the county for a misappropriation, by the county treasurer, of taxes applicable to the redemption of railroad aid bonds issued by such town.
    2. Same—Credit to county.
    In such action, the county should be credited for a sum equal in amount to the portion of the money so collected of the railroad company, which went to the railroad commissioners and the officers of the town for its local purposes, though the county treasurer failed to pursue the direction of the statute in respect to the money collected upon the assestments of the railroad property.
    Appeal from a judgment in favor of plaintiff.

      Norman M. Allen, for app’lts; Leonard & Sprague and William Woodbury, for resp’t.
    Action by Frank C. Vinton, as supervisor of the town of Persia, against the board of supervisors of the county of Cattaraugus and Harry 0. Wait, to recover taxes collected upon tne assessment valuation of Buffalo & Jamestown Railroad after it was known as the Buffalo & Southwestern Railroad, in aid of which the town of Persia, in 1873, issued bonds to the amount of $29,000.

      Norman M. Allen, for app’lts; Leonard & Sprague and William Woodbury, for resp’t.
   Bradley, J.

The bonds of the town of Persia were issued pursuant to chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871. This action is founded upon the assessed valuation of the railroad in the town were by the treasurer of the county misappropriated and diverted from the purposes to which he was directed to devote their use by the statute, which provided, in effect that all taxes except school and road taxes collected in any town on the assessed valuation of any railroad within it, for which the town should issue its bonds to aid in the construction of such railroad, should be paid over to the county treasurer; that it should be his duty, with the money thus collected and paid over to him, to purchase such bonds, or invest the money in the manner mentioned as a sinking fund for their redemption and payment. Laws 1871, chap. 283, § 1. Although the moneys collected on the assessment of the railroad, other than school and road taxes, were annually paid over to the county treasurer, the statutory direction was not observed by him, but those moneys were treated in distribution as were the moneys collected on the assessed valuation of other property within the town, and therefore contributed proportionately to the fund which was annually applied to the payment of state and county taxes. The controversy now relates only to the moneys collected on the assessments of the railroad property in the years 1879 to 1884, inclusive, since the recovery for moneys collected in the years preceding 1879 was, as held by the trial court, barred by the statute of limitations. The moneys derived from such assessments and paid over to the county treasurer were in 1879, $303.15; in 1880, $314.60; in 1881, $249.74; hi 1882, $278.14; in 1883, $305.66; in 1384, $280.02. For the aggregate amount of those sums and interest apon them respectively to June 4, 1894, amounting together to the sum of $2,928.29, judgment was diiected for the plaintiff.

The right of town by its supervisor to maintain an action against the county for the misappropriation by its treasurer result ing from his failure to pursue the direction of the statute before mentioned is well settled by adjudiciated cases. Bridges v. Board, 92 N. Y. 570; Strough v. Board. 119 id. 212; 28 St. Rep. 967; Crowninshield v. Board, 124 N. Y. 583; 37 St. Rep. 96; Kilbourne v. Board, 137 N. Y. 170; 50 St. Rep. 376.

The question here has reference to the extent of the recovery. In each of those years a specific sum was collected by assessment upon the taxable property in the town to make payment of the interest and upon the principal of such bonds, and the amount of moneys so collected for such purpose was paid over to the railroad commissioners of the town, and so applied in payment of the interest upon and by way of redemption of the bonds. The trial court found that of the total amount so paid to the railroad commissioners of the town in each year the following sums were the portions thereof derived from the taxes levied and assessed against the railroad company in the town; that is to say, in 1879, $179.25; in 1880, $166.42; in 1881, $124.99; in 1882, $18Í.49; in 1883, $174.05; and in 1884, $167,—making together $993.20. To the extent, therefore, the town had the benefit of the application to the payment of its bonds of the moneys collected during those years upon the assessed valuation of the railroad property. It is true that it was not paid upon those obligations by the county treasurer, nor was the money derived from such ass essment, and paid over to him, as before mentioned, set apart as directed by the statute, but the beneficial effect to the town to the extent of such payment through its railroad commissioners was practically the same, and no good reason appears why the county should not have credit for it in this action.

The trial court also found that of the whole taxes levied and assessed in the town for those years there was paid to the town officers for local town purposes the following amounts of the taxes levied and assessed against the railroad company, to wit, in 1879, $22.71; in 1880, $43. 73 ; in 1881, $44.49 ; in 1882, $31.42 ; in 1883, $57.26 ; and in 1884, $27.49,—making together $207.10 ; and that of the taxes so levied and assessed against the railroad company in those years the proportion thereof paid to the county treasurer and applied to the payment of state ánd county taxes was as follows: In 1879, $101.19; in 1880, $103.93 ; in 1881, $80.26; in 1832, $65.23 ; in 1883, $94.35 ; and in 1884, $85.83,— making together $530.79. On this state of facts it appears that the town of Persia thus liad the benefit of all the money -levied and collected as taxes upon the property of the railroad company in the town during the years in question, except the sum last mentioned. The question arises whether, by reason of the failure of the county treasurer to pursue the direction of the statute in respect to the money collected upon the assessment of the railroad property, the county should be denied credit in this action for a sum equal in amount to the portion of the money so collected of the railroad company which went to the railroad commissioners and the officers of the town for its local purposes. The answer given by counsel to the suggestion is to the effect that the receipt by the town of what was due to it on one demand did not - pay what was due to it on another, and that the default in duty of the treasurer was in not applying or investing the specific taxes, as he was required to do it for the benefit of the town. It is true that in not so applying the money derived from the assessment of the railroad property the treasurer clearly disregarded his duty. But, if he had done as the statute directed, the tax levied (assuming the amount which was had been annually levied) upon the assessed property of the town in each of those years, there would have been a deficit in the amount requisite to answer the purpose for which the tax le vy was made as represented by the tax roll and warrant delivered to the collector. It seems that the tax was levied each year without any reference to the requirement of the statute before mentioned; and it may be assumed that it was not contemplated, in making the tax roll, that any money would-be set apart by the county treasurer for the redemption of the bonds, or that any moneys derived from taxes other than those expressly levied generally upon the assessed property of the town for such purpose would be applicable to the payment of the bonds; otherwise it would have been necessary to have collected during those years •the further sum of $737.89 upon the assessed valuation of property in the town other than that of the railroad company. The company would by the tax on its property have been charged with its proportion of the sum requisite to produce that amount from levy on the other property in the town and the sum applicable to the redemption of the bonds would have been increased in amount equal to that so realized from the company. So that, while the town was relieved from the levy of taxes to the amount of the deficiency in the fund applicable to the state, county, and town taxes, it failed to derive from the railway company the amount which should have been collected from it to apply^upon the town bonds. But the latter fact requires no consideration, as the inquiry in the present action relates only to the moneys which were actually derived from the taxes levied upon the assessed valuation of the railroad property.

While it may be said that the town in some sense was benefited by the application of the money collected from the railroad company to the payment of the state and county taxes, since the assessable property in the town was chargeable with the payment of its quota of those taxes, there is a distinction in the beneficial nature to the town of the moneys thus applied and those which are appropriated to the payment of its bonds and local town expenses. The moneys expended for the latter purposes were devoted to the use of the town, and it is difficult to see any reason founded upon equitable considerations why the assessable property in the county should be charged with the payment to the town of the amount of those moneys which have been thus applied to its use and benefit. "Nor does the adoption of such an arbitrary rule seem justified by any principle applicable to the present case. In Bridges v. Board, 92 N. Y. 570, and in Strough v. Board, 119 id. 212; 28 St. Rep. 967, it was said that an action as for money had and received was a proper remedy for relief of a town for the cause upon which this action is founded. Whether strictly so or not, such is the nature of an action at law brought in behalf of a town to recover the amount misappropriated by the county treasurer in the manner alleged in the case at bar. In the complaint in this action equitable relief was demanded, but the facts were specifically alleged, and, as the defendants answered the complaint, the form of relief demanded became immaterial, and judgment was directed and entered as in action at law for a specific sum. This was regular, in view of the facts as alleged and determined. Code Civ. Proc. § 1207. The principles applicable to an action for money had and received are no less applicable to the present one as such in its nature and purpose. In that view it is to be determined upon equitable considerations consistent with the legal rights of the parties, and the question as between them is, what amount, according to equity and conscience, is the plaintiff entitled to recover against the defendant? Wright v. Butler, 6 Wend. 284; Eddy v. Smith, 13 Wend. 488; Buell v. Boughton, 2 Benio, 91; Cope v. Wheeler, 41 N. Y. 303; Hathaway v. Town of Cincinnatus, 62 N. Y. 434. The application of this doctrine to the present cases requires the court to look beyond the mere fact of the failure of the treasurer to perform the statutory direction, to see the consequences resulting to the town by reason of such default; and, as it appears that a portion of the sum in question was actually appropriated and applied to the use and beneficial purpose of the town, it would be contrary to equity and conscience to include the amount of such portion in the recovery against the county, and, in the view here taken, the plaintiff is not entitled to recover it in this action. .In Clark v. Sheldon, 134 N. Y. 833; 48 St. Rep. 279, neither the town, by its supervisors, nor the county, by its board of supervisors, was a party. The proceeding was instituted by a taxpayer of the town of Sodus against the treasurer of Wayne county, pursuant to the statute, to compel him to apply, as there directed, the moneys derived from the taxes upon the railroad property there mentioned. Laws 1871, chap. 283, § 1. That case, therefore, has no necessary application to the question in this one.

These views lead to the conclusion that the judgment should be reversed, and a new trial granted, costs to abide the event, unless the plaintiff stipulates to reduce the recovery, exclusive of costs, to $530.79 and interest on $101.19 from June 1, 1879, on $103.93 from June 1, 1880, on $80.26 from June 1, 1881, on $65.23 from June 1, 1882, on $94.35 from June 1, 1883, and on $85.83 from June 1, 1884. If the plaintiff so stipulates, the judgment be modified accordingly, and, as modified, affirmed, without costs of this appeal to either party.


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    Milwaukee Harvester Company, Resp’t, v. John C. Culver et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Fraudulent conveyance—Hosband and wife.
    Where the purchase is made by the wife and the business is hers in good faith as against the creditors of her husband, the fact that he undertakes to and does give his time and service to her business and thus for her benefit, does not prejudice her right to the property aud its proceeds as against his creditors, or'subject it or the proceeds to the payment of his debts.
    3. Same.
    But if she is made the depositary of the title to the property as a device to enable the husband to carry on his business under such cover to avoid the claims of his creditors, and with intent to defeat the collection by them of the debts against him, the property and the proceeds of the business conducted by him may. as to his creditors, be treated as his for the purposes of remedy in their behalf.
    3. Same.
    In this case, the question whether the conveyance to the wife was, with intent to defraud the husband’s creditors, was held to be one of fact for the jury-
    Appeal from a judgment in favor of plaintiff.

      Charles A. Widener, for app’lts ; Arthur Warren, for resp’t.
   Bradley, J.

The plaintiff, a judgment creditor of the defend-, ant John G. Culver, charges that the conveyance of the title to certain property on Monroe avenue, in the city of Rochester, was procured to be made to the defendant Clara D. Culver, and was taken by her in fraud of the creditors of the defendant John 0. Culver, her husband. The conveyance was made by Wilson Soule to her in May, 1890. The consideration was $5,400, of which the sum of $1,400 has been paid. The trial court found as facts that the sum of $900 of that amount was paid by the defendant Clara D. Culver; and that the additional sum of $500 was paid by John C. Culver out of moneys belonging to him; that the money was so paid by him with intent to defraud his creditors ; and that the deed was taken in the name of his wife as a device on the part of the defendant for the like purpose. The conclusion of the'court followed: That the defendant Clara had an equitable lien on the premises to the extent of such payment made by her; and that unless the amount of the plaintiff’s judgment, with costs, should be paid, the premises be sold subject to such lien and to that of the unpaid purchase money ; and that the proceeds of the sale be applied to the payment of the plaintiff’s judgment and costs. In 1887, when the defendants came from Illinois to Rochester, the indebtedness of John C. Culver amounted to from $1,000 to $1,500. In November, 1889, a tract of land known as the South Park Homestead Tract1’ was conveyed to the defendant Clara D. Culver, for the consideration of $13,000, expressed in the deed. Thereupon the South Park' Homestead Association was organized, and the defendant John C. Culver became its secretary. Mrs. Culver conveyed the tract to the association in December, 1889, for the consideration, as expressed in the deed, of $37,800, and took from the association a mortgage to secure the payment of $27,800 of the purchase money, the residue being the amount of a prior mortgage on the tract. The evidence tends to prove that the $500 before referred to as paid on the purchase money of the Monroe avenue property was derived from the moneys secured by the mortgage of the Homestead association.

The question, therefore, is whether the conclusion was warranted that the money derived from that source might, as to his creditors, be treated as, and was, that of the defendant John C. Culver. He was the promoter of the purchase, although the option for it was taken by his brother J. Z. Culver. The purchase with the organization of, the association was a speculative enterprise. It was understood that John C. Culver should give his attention to the management of the business, and he did so. Assuming that the purchase was made by the wife, and that the business was hers in good faith, as against the creditors of John O. Gulver, the fact that he undertook to and did give his time and service to her business, and thus for the benefit of his wife relating to her separate estate, would not prejudice her right to the property and its proceeds as against his creditors, or subject it or the proceeds to the appropriation by them to the payment of his debts. Abbey v. Deyo, 44 N. Y. 343: Coddington v. Bowen, 24 St. Rep. 832. But, if the wife was made the depository of the title to the property, as a device to enable the husband to carry on his business under such cover to avoid the claims of his creditors, and with intent to defeat the collection by them of the debts against him, the property and the proceeds of the business so conducted by him might, as to his creditors, be treated as his, for the purposes of remedy in their behalf.

At the time of the purchase of the South Park tract, the wife had no separate estate other than the $900 put into the Monroe avenue property; nor did she personally take any active part in making the purchase of the South Park tract, and personally she did nothing in the business of its management. . That was substantially controlled by her husband, and it appears by the evidence that she had but very little knowledge of the transactions resulting in the purchase of the property and the organization of the association. There is evidence tending to prove that the defendant John 0. Culver, in the outset, contemplated making the purchase in his own name, with a view to the speculative enterprise, but that the views of his brother that the purchase should be made in the name of his wife, and that the husband should give his personal attention to the business, prevailed, and it was accomplished through or by the brother. Although all this may have been done in good faith, without any intent to defraud the creditors of the husband, and solely with a view to the creation of a separate estate of Mrs. Culver, the question, in view of the circumstances, was one of fact whether such was the sole purpose, and the conclusion was permitted that the intent on the part of the husband by the means employed was to put the title in. his wife to hinder, delay, and defraud his creditors. It may be observed that in the Abbey and Coddington Cases, before cited, the question of good faith as against creditors was treated as one of fact. To the same effect is Knapp v. Smith, 27 N. Y. 277. Although the husband testified that the transaction was without any intent on his part to defraud his creditors, his relation to it was such as to bring his credibility in question; and, as the wife paid no value for the South Park property, the question of good faith on her part as to that purchase necessarily arises for consideration. Starin v. Kelly, 88 N. Y. 418.

The finding of the trial court that the defendant John C. Culver was insolvent at the time of the conveyance in question to Mrs. Culver has the support of evidence. While the burden was with the plaintiff to prove that the sum of $500 in question was, as'to his creditors, the money of the husband,1 and that was dependent upon his intent to defraud them by the cover of the transaction from which such money was derived, there were circumstances made to appear by the evidence to permit the conclusion to that effect; and the result reached seems to have the support of evidence, in the view which the trial court may properly have taken of it.

The judgment should be affirmed.

All concur.


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    Lynan M. Otis, Resp’t, v. George M. Crouch et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Former adjudication—Subject matter.
    A decree of the county court, upon an accounting by an assignee for the benefit of creditors, adjudicating that the assignee had overpaid a creditor, but not ordering repayment, is not a bar to a subsequent action by the assignee to recover the amount of such overpayment.
    S. County court—Jurisdiction.
    The county court has jurisdiction of an action for money had and received.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      H. G. Pierce, for app’lts ; F. F. Drake, for resp’t.
   Bradley, J.

The plaintiff was assignee for the benefit of the creditors of Van Roe & Spitz, as a firm and individually. The firm of Chase & Otis, of which the plaintiff was a member, and the defendants’ firm, were preferred creditors,—the former to the amount of $2,102, and the latter firm in the sum of $3,189.09,-—- and they were entitled to participate in the assigned estate applicable to them, as preferred creditors, in that ratio. It turned out that the estate was not sufficient to pay them in full, and that the advances made by the assignee to the defendants exceeded by $278.77 the amount to which they were entitled. This was determined by the decree of the county court in an accounting duly had of the assignee, upon notice to all parties interested in it; and, by the decree of the court made on that accounting, the assignee was directed to pay that sum to Chase & Otis, or the survivor of them. Chase had died. The plaintiff was the survivor. He alleges that he thereupon so paid that sum, and demanded restitution of the defendants, which was refused. By this action he seeks to recover the amount so overpaid to them. Arid he gave evidence to the effect that he, as assignee made advances to the defendants, that the last advance he made to them was of $1,000, and that when he was called upon by one of the defendants, and requested to do so, he did it, with the express understanding then had between them that, if it overpaid the amount to which they were entitled, it should be adjusted on final settlement. There was a conflict in the evidence of the parties as to such agreement. But that question of fact was submitted to the jury, and determined adversely to the defendants. The main grounds of the defense urged by the defendants are (1) that the decree in the proceeding for settlement of the accounts of the assignee is a bar to recovery; (2) that the relief sought by the action is available only in equity, and therefore the county court is without jurisdiction to grant it.

The first objection is founded upon the fact that, in proceedings relating to assigned estates for the benefit of creditors, the county court has general jurisdiction, and can exercise the powers of a court of equity in dealing with the subject of the trust Laws 1877, oh. 466, § 25. And it is urged that the forum was there, in the proceeding, for the plaintiff to obtain directions of restitution, if he was entitled to it, from the defendants. No such provision was made in the decree, although it was within the power of the county court, by it, to direct the repayment of the sum before mentioned, by the defendants to the plaintiff, if the question was there presented for determination. In re Morgan, 99 N. Y. 145. In relation to the sum in question, the decree determined that the defendants had received from the assignee such amount in excess of that to which they were entitled; that the assignee was charged with that sum, as if it still remained in his hands; and he was directed to pay it to the survivor of Chase & Otis. Thus far the right of the parties were determined by the decree of the county court. The question is whether, beyond that, as relates to the right of the plaintiff to enforce restitution to him, the decree is res adjudicata, with the general rule that a judgment of a court of competent jurisdiction is final, not only as to the subject-matter there actually determined, but as to all matters which the parties might there have litigated and had determined. The application of that proposition has relation to the case or issues presented for trial or determination. Stowell v. Chamberlain, 60 N. Y. 272; Bell v. Merrifield, 109 id. 202; 14 St. Rep. 796; Hymes v. Estey, 116 N. Y. 501; 27 St. Rep. 555. Although the decree contained no direction in that respect, the facts represented by it were substantially to the effect that the defendants were not, and that the plaintiff was, entitled to the money. Lupton v. Lupton, 2 Johns. Ch. 614; Walker v. Hill, 17 Mass. 380; In re Morgan, 99 N. Y. 147. The decree is therefore consistent with the claim made by the plaintiff in this action, and no reason is seen, in the omission in the decree of direction to do so, to relieve the defendants from, liability to make restitution to the plaintiff. In the proceeding instituted by him for an accounting as assignee, the plaintiff was not required to include his claim against the defendants for determination, nor does it appear that he did so by the petition upon which the proceeding was founded. Although he might have done it, and did not, he had the right of action for such relief on refusal of the defendants to pay the money. This was held in the-Morgan Case. As his election of remedy by action is consistent with the matters determined by the decree of the county court, the adjudication there had is no bar to the action.

Nor is there any want of jurisdication of the county court for the purposes of the remedy. The action, in its nature, is for money had and received, and it may be equitable in its purpose and effect. The question in such case to be determined is to which party, according to equity and conscience, the money in question belongs, And while such an action may, in some sense, be deemed a substitute for an equitable one, it is nevertheless a common-law action. Wright v. Butler, 6 Wend. 284; Eddy v. Smith, 13 Wend. 488; Buell v. Boughton, 2 Denio, 91; Cope v. Wheeler, 41 N. Y. 303; Hathaway v. Town of Cincinnatus, 62 id. 434, 447. The action is not here treated as one to modify the decree of the county court, or for relief contrary to it. It could not be maintained if the relief sought were inconsistent with any determination duly made by that decree. But as the recovery by the plaintiff of the defendants of the money, by way of restitution, is collateral to the main purpose of the accounting proceeding, it was not, so far as appears, necessarily, in legal contemplation, within the operation of the decree, since the jurisdiction of the county court in respect to the matter of controversy in the action was not exclusive. In the Morgan Case the matter in question was taken into the county court for the specific purpose of having a determination upon it, and direction accordingly. 34 Hun, 2l7. The views here taken lead to the conclusion that the judgment and order should be affirmed. All concur.


text:
    Benjamin C. Miller, Resp’t, v. Fidelia R. Morton et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Heirs, „etc.—Claims of ancestor.
    Where an administrator erects, with the consent of the next of kin, a monument at a cost exceeding the allowance which the surrogate would have made therefor, a creditor of the decedent, who failed to present his claim within the time limited by law after the publication for claims, cannot recover from such next of kin such excess as assets distributed to them.
    3. Same—Judgment.
    In such action, the liability of the widow and next of kin is such that the sum, which the creditor is entitled to recover against them, must be apportioned among them in proportion to the distributive share received by • each of them.
    Appeal from a judgment in favor of plaintiff.

      Louis H. Jack, for app’lts; IF. E Davis, for resp’t.
   Bradley, J.

John Morton died, intestate, in March, 1883, leaving, him surviving, the defendant Fidelia R. Morton, his widow, the defendant Jennie M. Gary, and Helen M. Vick, the intestate of the defendant administrator, his children and next of kin. Iu August, 1883, two judgments were entered against Morton, for $219.01 and $374.02 damages and costs, upon verdicts-rendered against him prior to his death in favor of one Northrup. Those judgments, through mesne transfers, were assigned to the plaintiff, who brought this action in May, 1894, against the defendants, as the surviving wife and next of kin of Morton, deceased, to recover the amount remaining due upon those judgments, pursuant to the statute- Code Civ. Proc. § 1837. Letters of administration on the estate of Morton, deceased, were duly issued to his widow in July, 1883; and the assets which came to her hands as such administratrix amounted to $3,540. In July, 1884, she, by notice then and thereafter duly published for six months, gave notice to creditors to exhibit their claims to her on or before January 5, 1885. No claim founded upon the judgments before mentioned was presented to her. In December, 1892, the plaintiff, by petition, instituted a proceeding in the surrogate’s court of Monroe county to require the administratrix to pay the judgments; and in February, 1894, it resulted in the determination that there remained unexpended in her hands the sum of $626.85, and after deducting her commissions, with the expense of her accounting and the sum allowed for costs of the petitioner, left $335.04 which the administratrix was by the decree directed to pay upon the plaintiff’s claim. The referee found that, out of the money that came to her hands, the administratrix paid for funeral expenses, including burial lot and monument, $1,934.35, the expense of the monument being $1,400 ; also, for improvements upon real estate which descended to the two daughters, subject to her right of dower, $315.37; that she advanced to the daughter Helen $475.77; that she paid the plaintiff $335.04, retained for commissions and expenses of administration $247.25, and paid out the balance towards the funeral expenses of the daughter Helen ; that it was understood between Helen and her mother and sister x that the amount so paid to her should be applied towards her distributive share in her father’s estate; and that the money was paid for such improvements and expense of the funeral, including burial lot and monument, at the request of the two daughters; that the latter expenses were excessive in amount, and that no more than $1,000 should be allowed for them. The referee, therefore, concluded that the sum lawfully paid out by the administratrix, including the commissions and expenses upon her accounting, and the payment made to plaintiff pursuant to the surrogate’s decree, was only $1,582.29, leaving for distribution between the widow and the two daughters $1,957.71. The amount remaining due to the plaintiff upon the judgments was $675.09, for one-third of which the referee directed a judgment against each of the-defendants.

The fact that there had been no judicial settlement of the accounts of the administratrix in the surrogate’s court furnished no objection to the determination of this action on the merits. It is within the equitable powers of this court to require the personal representatives of deceased persons to render an account, with a view to relief sought dependent upon such accounting. The jurisdiction of the surrogate in that respect is not conclusive, but concurrent with that of this court. Rogers v. King, 8 Paige, 210. In view of the limited amount of the estate of the decedent, the conclusión of the referee was justified that the amount paid for the monument was excessive, and that sum reasonably applicable to the funeral expenses, including the burial lot "and monument, did not exceed $1,000. Wood v. Vandenburgh, 6 Paige, 277; Patterson v. Patterson, 59 N. Y. 574; Owens v. Bloomer, 14 Hun, 296; Allen v. Allen, 3 Dem. (Sur.) 524.

The question arises whether, by reason of that excessive expenditure, any portion of the amount of it should, in behalf of the plaintiff, be treated as assets distributed or paid to the widow and next of kin. When six months after the completed publication of notice to creditors had expired, the administratrix had reason to suppose that no creditors existed whose claim had not been presented, and she was then at liberty to make distribution of the assets. Not having any “ knowledge or notice of the claim of the plaintiff or his assignor,” she, with the consent of the next of kin, put $1,400 into a monument. It must be assumed that in doing so they acted in good faith. Neither of them derived any pecuniary benefit from the expenditure, nor can the monument be deemed to have any commercial value. Under like circumstances, it was held in OConnor v. Gifford, 117 N. Y. 275; 27 St. Rep. 453, that the creditor who had failed to present his claim was estopped from charging the executor with liability to the extent of the moneys which he had expended for a purpose mentioned in the will, and invalid as against the creditors of the testator. So far as appears in the present case, the attention of the widow or next of kin was not called to the claim in question until several years had elapsed after the time for presentation of claims pursuant to the notice to creditors had expired. This would have been no objection if the assets had been actually distributed or paid to the widow and next of kin, or had been invested in property as such in their behalf. By reason of loches of the owner or owners of the claim, the administratrix was led to believe that none existed; and thereupon she, with the consent of the next of kin, who had the like understanding, expended the amount before mentioned for the monument. She was lawfully permitted to expend a reasonable sum for such purpose. The plaintiff is therefore estopped from effectually asserting that, because such expense was excessive, any of the money which was ■expended for the monument constituted assets distributed or paid to the widow or next of kin for the purposes of his remedy sought by this action.

There remains for consideration the sum of $475.77, paid to Helen on account of her distributive share of the assets; the sum •of $315.38, expended in improvements and repairs upon the real estate; and $251, ajrpropriated to pajr funeral expenses of Helen, who died in 1886. Those sums were paid out by the widow with the consent of the defendant Cary; and that for the improvement of the realty, by the consent of both her and Helen. Neither of the two sums last mentioned was appropriated to purposes within the purview of the authority of the administratrix, and therefore the widow and the defendant Cary, as one of the next of kin, may be treated as equally charged with having and disposing of those sums of the assets, and each equally with Helen chargeable for the amount so applied in making the improvements upon the real estate. As to creditors, Helen alone was responsible on account of the amount so received by her on her distributive share of the assets, including one-third of the amount so expended upon the real estate. It follows that, as relates to the distribution of the assets which remain the subject for consideration, the estate of Helen must be deemed chargeable with $580.90, the widow with $232.13, and the defendant Cary with $232.13. Their liability respectively, is such that the sum which the plaintiff is entitled to recover against them must be apportioned among the defendants in proportion to the distributive share received by each of them. Code Civ. Proc. § 1839. As the plaintiff has not appealed, the recovery against the personal representatives of Helen M. Vick cannot be increased on this review. On the basis before mentioned, the proportionate share of the liability of each of the two defendants, Morton and Cary, to the plaintiff on his claim as of the time of the referee’s report was made is $150.21. No other question requires consideration. i

The j udgment should be reversed, and a new trial granted; costs to abide the final award of costs, unless the plaintiff stipulates to reduce the recovery against each of the defendants Morton and Cary, exclusive of costs, to $150.21, and in that event the judgments, as against those two defendants, be so modified, and, as modified, affirmed, with costs of this appeal to any party, and thereupon the judgment against the other defendant also be affirmed.

All concur, except Ward, J., not voting.


author: Tompkins, J.

text:
    Paterson Brothers, Pl’ffs, v. James Goorley, Def’t.

      (County Court, Rockland County,

      Filed September, 1895.)

    Supplementary proceedings—Receiver.
    A receiver in supplementary proceedings cannot be appointed for the purpose of collecting costs which have not been awarded or allowed therein.
    Motion for the appointment of % receiver in supplementary proceedings to enable plaintiff’s attorney to collect his costs.

      Earnest Ball, for motion; John W. Furman, opposed.
   Tompkins, J.

This is a motion for the appointment of a receiver of the property of the defendant in proceedings supplementary to execution. The examination shows property of the judgment debtor applicable to the payment of the judgment or on account thereof, and in that particular and proper case for the appointment of a receiver has been made out; but it is claimed in opposition to this motion that the judgment has been fully-paid and satisfied, and that the defendant is not now a judgment debtor, and that hence the moving party has no interest in the defendant’s property. It appears from the record of the proceedings before the referee that, on the return of the order, the judgment debtor’s counsel asked for an adjournment to enable him to pay $100 on account, and the balance on or before the adjourned day. „ The plaintiffs’ counsel refused to accede to this request, and insisted upon payment of the full amount or that the examination should proceed. This he had a strict right to do, but it seems to me it would have accorded more with fairness and amiableness to have taken the amount offered and granted the adjournment. However, that does not affect the question. After the first hearing, the judgment debtor paid the judgment to the judgment creditors in full, and they accepted it, without the knowledge of their attorney, and executed- a satisfaction piece. Thus the judgment was paid in full. Ho costs of the proceedings or the referee’s fees or disbursements were paid, and it is now claimed by plaintiff’s attorney that this motion should prevail to enable him to collect his costs and disbursements.

Costs in supplementary proceedings are discretionary, and in this matter no costs have been allowed, nor has any motion been made for costs, so that the judgment creditors’ attorney has no costs for which he can claim a lien. If the attorney’s costs in the action constituting a part of the judgment had not been paid, the attorney would no doubt have such a lien and right as would justify the appointment of a receiver to enforce the payment of those cost; but here the judgment in full, including costs, has-been paid, and I am of the opinion that a receiver cannot be appointed for the purpose of collecting costs in supplementary proceedings which have not been awarded or allowed. The judgment creditors, who unwisely and improperly settled the matter without the knowledge of their attorney, must bear the costs and referee’s fees. Motion denied.