author: Daniels, J.

text:
    James Falvey, Resp’t, v. Francis J. Bridges, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16,1891.)

    1. Specific performance—Title.
    L. purchased the property in question on foreclosure for the benefit of W., of Scotland, who executed an agreement that L. should lease the same, and receive the rents, but that he would, on the request of W., deed the propertyto any person designated by W. Held, that this did not create a trust in W., and that L. could, with the assent of W., convey the title to the premises.
    2. Same.
    The fact that the bed of the Old Harlem Road formed part of the land in controversy created no cloud upon the title, as by the Dongan charter all highways, etc., were given to the mayor, etc., of New York, and the road had been discontinued for more than six years, and occupied by a bui.ding, which had been taxed, etc., for twenty years.
    3. ' Same.
    If the city could not, on account of its ownership of the bed of the road, close up and discontinue it, then the land was the property of the adjacent owners, and reverted to them on the discontinuance of the street.
    Appeal from a judgment recovered'on trial before the court.

      Frank Schaeffler, for app’lt; William H. Arnoux and C. N. Bovee, Jr. for resp’t.
   Daniels, J.

The object of the action was the specific performance of a contract made on the 12th of March, 1889, between the plaintiff and the defendant for the sale and conveyance of a parcel of land situated on the north side of- One Hundred and Eleventh street, in the city of New York, commencing 285 feet easterly from the northeasterly corner of that street and Fifth avenue, and being one hundred feet and eleven inches in depth to the centre of the block, and twenty-five feet in width. The purchase price of the lot was $8,500, $250 of which was payable at the time of the execution of the contract, and was in fact paid by the defendant to the plaintiff. On or about the 12th of April, 1889, at the place mentioned in the contract, a deed of the lot was tendered by the plaintiff to the defendant, which he refused to accept on account of alleged defects in the title to the lot.

It had in part been purchased under the foreclosure of a mortgage by Daniel Lord. And objections were made to the sufficiency of the affidavits upon which an order for the publication of the summons was - made, and under which the summons and complaint were served upon Smith T. Wyant, one of the defendants in the foreclosure suit. But this defect was clearly rectified by a deed which Wyant and his wife afterwards executed and 'delivered to Robert H. Blakie, who at that time had acquired the residue of the title, to the property. And that deed sufficiently obviated the objection in this manner, taken to the title to require it to be overruled, as it was at the trial. ■ ■

When Lord purchased the property on the foreclosure it was really for the benefit of Sames Watt, of Dundee, in Scotland. And after receiving the sheriff’s deed of the property Lord executed to Watt an agreement, by which it was covenanted:

“That the said Daniel Lord will allow the agents, from time to time, of the said James Watt, his heirs, executors, administrators and assigns, to let and demise the said lands and to receive the rents thereof, keeping him harmless; that the said Daniel Lord will, whenever requested by the said James Watt, his executors or administrators, convey the said premises or any portion thereof to any person or persons by,him designated, or them, and that, whenever requested by the said James Watt, his heirs, executors, administrators or assigns, he will execute deeds on sale by the agents or representatives of him, the said James Watt, his heirs, ■ executors, administrators or assigns, and allow them to receive the proceeds thereof, h.e being therein indemnified, in which deeds his wife shall unite to her dower, the said James Watt, his heirs, executors and administrators and assigns bearing all the expenses thereof.”

This covenant has been objected to as creating a. trust in favor of Watt constituting a defect in or encumbrance upon the title. But the effect of this agreement or covenant was considered in Ludlow v. Van Ness, 8 Bosw., 173, where it was held by the court to create neither a trust nor any interest whatever in the estate, and that Lord consequently could, with the assent of Watt, convey the title to the premises. It was, further proved in this case, which was no part of the evidence in the action just referred to, that Watt, on the 18th of November, 1856, by his authorized- attorney, declared “that thp said James Watt had requested, and doth request, the said Daniel Lord to sell and convey the said lands already conveyed, or to be hereafter conveyed, to be applied to the realizing and satisfying of the amounts due to the said James Watt,” which in its effect was a confirmation of what Lord had previously- done, as well as should afterwards do, in the conveyance and transfer of the title to the -property. And that necessarily removed all ground of objection to the title dependent, upon the instrument or declaration previously executed by Lord.

The further and more important objection to the case was placed upon the existence of what has been called the Old Harlem Road, extending certainly from McGrowen’s Pass to the village of Harlem. When this road was first provided for is left quite indefinite by the evidence in the case, but there is -at least a probability that it. originated in the action of the Dutch authorities having control over the Manhattan island prior to their capitulation to the English in the year 1664 This road crossed the block in question in a diagonal direction, and its bed formed a part of the lot of land now in controversy.

Whether it was laid out subject to the title of the adjacent owners in the land, or the title to the land itself was taken for the road, does not appear in the case. And for its disposition it

Írob ably is unimportant that it should so appear. For by the •ongan charter, which was given on the 22d of April-, 1686, all .and every of the streets, lanes, highways and alleys within the said city of Hew York and Manhattan’s Island aforesaid, -were .given, granted, ratified and confirmed to the mayor, aldermen and commonalty of the city for their public use and service. Kent’s ■Charter, etc., 14, 15.

And they remained vested in the city, subject to that use, certainly until the passage of chapter 115 of the Laws of 1807. And as this highway or road had been laid out and opened prior to that time, it was subject to this grant of authority. And by § 4 of this act, the commissioners named in it were authorized “to shut up, or direct to be shut up, any streets, or parts thereof, which have been heretofore laid out and not accepted by the common council of the said city.” The evidence did not prove the fact to be that this street or road had been accepted by the common council of the city, and the commissioners were accordingly authorized to close it under this authority. .

An additional authority was given by chapter 213 of the Laws of 1818, to close any road, street, lane or alley, or any part thereof, of the city by conforming to the proceedings provided for in this act And it was proved by the evidence of Joseph Murray, as a witness, that this street or road had been discontinued prior to the time when he obtained a conveyance in form of a part of the property. His conveyance included all that part of this road or highway within the bounds of this lot, except that which, by a conveyance from the city of New York on the 16th of November, 1863, in terms conveyed the-residue of so much of the road as was included within the bounds of the lot. The testimony was that at the time he bought the lot, which was on the 4th of April, 1869, he had heard of the Old Harlem Road, but did not know it was open. He then added: “ I could not say how long it was discontinued, but it was for years to mv knowledge, because I moved up to Harlem after I came home from the war in 1865 or 1866.” The correctness of this evidence was accepted by the court. And it seems to have been sufficient to support the conclusion which was adopted that this road had ceased to be traveled as such certainly for upwards of the period of six years. And by § 1 of chap. 311 of the Laws of 1861, that was sufficient to extinguish it as a highway. For this was a country road and not a street of the city, within the decision of Matter of Lexington Avenue, 29 Hun, 303. Neither was it the case of an encroachment or obstruction of the road, which was held to be insufficient to work its discontinuance as a highway in Driggs v. Phillips, 103 N. Y, 77; 3 N. Y. State Rep., 69.

That the road had been discontinued by the authority of the city under one or the other of these acts is to be inferred from the conveyance of the 15th of November, 1863, by the mayor, etc., to Robert Smith, for that in form quit-claimed and released to him a part of the land included within the bounds of this lot which formed a portion of the Old Harlem Road. And it is to be presumed that the public authorities of the" city would not have executed such a deed until after they had legally closed this highway for public uses.

After Murray obtained his title to so much of the lot as was included within the bounds of the Old Harlem Road, he erected a building upon it, commencing it and going into possession about the time his deed bore date, which was at least twenty years and a month prior to the time of the commencement of this action, and twenty years and eight days prior to the tender of the deed to the defendant. And his testimony is that, after taking the deed, he paid the taxes upon the property to the city, and the fact has been so found by the court It was also further proved, by the production of a map made on" the opening of One Hundred and Eleventh street, from Eighth avenue to the Harlem river, that Daniel Lord was assessed for the opening of such street, and damages were awarded to him in the sum of thirty-two dollars. And upon this map the Old Harlem Road did not appear to be at the time existing. Other proceedings were taken the year before of a similar nature for the opening and extension of Madison avenue from Eighty-sixth to One Hundred and Twentieth street And upon that map these premises were assessed for the sum of §400 for benefits to Daniel Lord, and the map in no way showed the existence of this road.

These are very cogent circumstances, indicating the fact to be that the city had closed this road years before Murray received his deed, and under which an adverse possession was maintained, and precluded the city from asserting any title on its part to any portion of the land in controversy. And that the road could be discontinued under its authority is fully sustained by what was determined in Amsbry v. Hinds, 46 Barb., 623, and 48 N. Y., 57. The inference is very plain that under one or the other of these acts, if not under all of them, the city had concluded to abandon and close this road, and to provide, as it did, for the convenient use and enjoyment of the property over which it previously passed by these streets laid out and established between the different blocks of land as they were described by the map produced upon the trial.

But if the city could not, on account of its ownership of the bed of the road, close up and discontinue it, then the land in controversy was the property of the adjacent owners and reverted to them on the discontinuance of the street In deeds which were given at different times affecting the title to this land, and bounded by or upon the Harlem road, the understanding was disclosed that the title of the adjacent owners extended to the centre. And if they were right in that respect, then when the road was closed and discontinued, the title of these owners became complete and free from the easement previously existing in favor of the public. And in either event the plaintiff, who had acquired all the rights of the other parties under their conveyance, as well as under the possession maintained by Murray, obtained the title to the property. If it was subject afterwards to any contingency whatever, it was only to the possibility that the city might still claim to be the owner of so much of the bed of this street as was not included in its own conveyance to Robert Smith. But after taxing all this property as private instead of public property, and assessing it for damages, and according to it pecuniary benefits on account of public improvements, that possibility is so remote as to be worthy of no consideration in the way of impairing the absolute title of the plaintiff to this land. And the judgment which has been recovered was accordingly right, and it should be affirmed, with costs.

Van Bruht, P. J., concurs in result.


source: Caselaw Access Project

license: Public Domain

text:
    The Manufacturers & Traders’ Bank, App’lt, v. The C. W. Dare Co. el al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. Injunction—Damages—Phopits.
    Although the profits lost through a business being suspended by an injunction may be allowed under proper circumstances, yet where they are speculative or contingent they form no such criterion for the assessment of damages as will justify their allowance.
    g Same. ■
    "Where the business in question was sold under executions of $5,000, and the purchaser at the sale bought it in for $3,000 and sold it to defendant F. for four notes of $350 each, before the business was suspended by said injunction, it was error for the referee appointed to compute the damages caused by the injunction to allow F. twenty-five per cent upon the orders for work received at the time the injunction was served, especially as the company had made no dividends and the same stock was finished at the close of the next year and sold in the course of business.
    Appeal from an order overruling exceptions and confirming the report of a referee made upon a reference to ascertain the damages sustained by'the issuing of an injunction.

      Rogers, Locke & Milburn, for app’lt; L. A. Gould, for resp’ts.
   Daniels, J.

The injunction was issued on the 3d of December, 1887, in an action brought by the plaintiff as a judgment creditor, whose execution had been returned unsatisfied, to set aside the sale of the property of the G. W. Dare Company which had been made upon executions issued upon judgments recovered against the company, and the purchase of the property sold to the defendant Abram Folk. The action proceeded to trial against the company and G. W. F. Dare, and resulted in a judgment in fay or of these two defendants. No trial was had of the issue framed between the plaintiff and the defendant Abram Folk. But after the trial of' the action as to the other two defendants, a motion was made in his behalf to dismiss the suit for .want of prosecution. And that resulted in an order and judgment to that effect. But neither the order made in 'this manner, nor the judgment, in any form adjudged or determined that the plaintiff was not entitled to the injunction.

After the judgment was entered a motion was made for a reference to ascertain the damages sustained by the defendant Abram Folk by reason of the injunction. This injunction was served upon him soon after it was issued, and remained in force until the 23d of the following January, a period of nearly six weeks. The business which the injunction affected was the manufacture of toys, hobby horses, wagons, sleighs, rockers, chairs and velocipedes. It had been carried on by the corporation, as the first witness early in his examination stated, for the period of twelve years. And by force of the injunction it was wholly suspended between the time when it was issued and its discharge by virtue of a bond given under the provisions of the Code on behalf of the defendant Folk.

It did not interfere with the operations of the company or of G. W. F. Dare beyond the performance of his services as the agent ■or superintendent of Folk. And for that reason neither the company nor Dare sustained any damages or loss by reason of the injunction, but whatever loss was occasioned by it resulted to Folk, in whose behalf the business was carried on. The premises devoted to the business were leased and the rent paid during the operation and effect of the injunction. And for that the referee .allowed in his report the sum of $208.33. And to that allowance there seems to be no very substantial ground of objection if the case is one in which any damages can be regularly assessed. He also allowed for the expenses of a day watchman, to watch the property, the sum of twelve dollars .a week, and for the keeping of a horse the sum of twenty dollars, ( And it appeared by the evidence that at the time the injunction was served orders had been received for the manufacture of articles such as were made and sold in the business, amounting to the sum of $4,276.55, for which the referee allowed twenty-five per cent, or one-quarter, as lost profits. And he allowed the further sum of $150 for the expenses of counsel in making the application to discharge the injunction on the giving of the bond, and attending upon this reference and preparing a brief or argument upon the testimony and submitting the report of the referee to-the court Exceptions were filed to the conclusions of the referee, and particularly to his final conclusion that the defendant Folk had sustained damages by reason of the injunction in the sum of $1,531.55.

It has been insisted in support of the appeal that no damages could be properly assessed on account of the injunction, for the reason that there was no adjudication that the plaintiff in the action was not entitled to the injunction. And it seems to be at least doubtful whether this objection has not been well taken, notwithstanding what was said upon the subject in Mutual Safety Ins. Co. v. Roberts., 4 Sand. Ch., 634; Carpenter v. Wright, 4 Bosw., 655; Cunningham v. White, 45 How., 486, and Pacific Mail Co. v. Toel, 85 N. Y., 647. For in Palmer v. Foley, 71 N. Y., 106, and Benedict v. Benedict, 76 R Y., 600, the court seems to have been of the opinion that such an adjudication was essential to form the foundation for a claim for damages resulting ■from the issuing of an injunction, while there was no such adjudication, either in theory or effect, in the dismissal of this action for the want of prosecution. It did not result from that dismissal that the injunction had been improperly or illegally issued, but the disposition made of the case in favor of Folk was solely because it had not been diligently prosecuted. The ease of Pacific Mail Co. v. Toel, supra, is not in conflict with these two authorities, for the reason that the order there in fact vacated the injunction and discontinued the action. And that was held in effect to determine that the plaintiff was not entitled to the injunction. While here the injunction was no otherwise discharged than by the defendant giving the security which he was authorized to give for the purpose of vacating it. And the dismissal of the actiou in no manner referred to the fact of an injunction having been issued" or disposed of. But it is not necessary for the present disposition of the appeal to determine whether this dismissal of the action may by any force of construction "be held to adjudge that the plaintiff was not entitled to the injunction at the' time when it was issued. " For the damages allowed by the referee and confirmed by the report for the loss of profits in the business do not seem to be capable of being sustained. That profits, may be allowed under proper circumstances was held, in Hotchkiss v. Platt, 8 Hun, 46. And as a general proposition, this may be considered to be the law, although the authorities bearing upon it are by no means universal or reconcilable.

In Messmore v. N. Y. Shot, etc., Co., 40 N. Y, 422, it was held that gains prevented as well- as losses incurred were the proper subjects of compensation in an action for damages for the violation of a contract. But in that case the facts were of such a nature as to indicate witlrreasonable certainty what profits had been lost, and accordingly should be awarded to the party not in default under the agreement. And the decision proceeded in their allowance upon the qualification that the gains to be allowed should appear to be reasonably certain. Id., 427. And following this principle it was held in Heinemann v. Heard, 50 N. Y., 27, 37, that the profits must neither be speculative or contingent, to justify their allowance. And this was also considered to be the law in Cassidy v. Le Fevre, 45 N. Y., 562, and Manhattan Stamping Works v. Koehler, 45 Hun, 150 ; 10 N. Y. State Rep. 60, where the authorities were reviewed by presiding Justice Van Brunt

The principle was. also considered in reference to the authorities in Wakeman v. Wheeler, etc., Co., 101 N. Y., 205, where the right to recover in an action for breach of contract for the loss of profits was sustained, but without departing from the restraint already mentioned that they must not be either speculative or contingent. And to this effect also is the case of Stevenson v. Stewart, 9 Wk. Dig., 352. Where they are speculative or contingent they form no such criterion for the assessment of damages as-will justify their allowance. And no more liberal principle can very well be applied to the ascertainment of the damages sustained by reason of an injunction.

In the present case two of the witnesses testified that the profits of the business, over and above its expenses, was twenty-five per cent. And the referee has followed that estimate of these witnesses in making the allowances which he did by his report. But whether these profits could be realized or not must depend upon the contingencies of the business, the certainty of the sales, and the exclusion of bad or uncollectible debts. These elements all enter into the nature of profits of this description, rendering it uncertain or contingent as to whether they would be realized or not. And it does not necessarily follow because the profits of this business has produced this percentage in the previous years referred to by the witnesses, that the same amount of profit wrould have been secured in the business during this period of time if it liad, not been interfered with, or suspended, by reason of the injunction.

The fact that the company did not realize these profits is abundantly evident from the nature of its business as it seems to have turned out. For prior to the time of the commencement of the plaintiff’s action executions had been issued upon three judgments, amounting to no more than the sum of $5,074.29, upon which its property was sold, certainly so much of it as was affected by this injunction. And in the sale it realized about the sum of $3,000. And the purchaser at that sale sold it to the defendant Folk for four notes of $250 each, which at the time of the hearing before the referee had not been paid.

It also appeared that the company had made no dividends to its stockholders. It was alleged in the plaintiff’s complaint that its assets amounted to between five and six thousand dollars. But this was denied by the defendants in their answers. And the probabilities accordingly were that what was sold under the •executions was in value less than the sum of $5,000. And as the •company in the course of its business had made no dividends, it is entirely evident that this fact, or measure of profit was not in reality secured by it upon the disposition of its manufactured articles. Why the company became insolvent and failed was not made to appear, but the fact is in the case that such was the result. And added to the other circumstance that it made no dividends, they indicate the truth to be that this nominal rate of profit mentioned by these witnesses was not in fact realized out of the sales of the company’s manufactures. These facts do not appear to have been considered by the referee in reaching the estimate made by him of the profits of this business, but he proceeded upon the general statements of these witnesses that the net profits did amount to the sum of twenty-five per cent. While from the other circumstances it is entirely evident that the company never realized such a line of profit as the result of its business." For if it did, it would not have been in the condition in which it was found by the executions in the fall of the year 1887; neither would it have been disabled from making dividends to its stockholders. These facts indicate that in the course of the business, even if it had remained unobstructed by the injunction, there was no certainty that this line of profits would have been produced. But if reference is to be had to the result of the business in preceding years, the probability is disclosed that they were greatly diminished, if not consumed, by the losses, to a greater or less extent, always incurred in business transactions. And in addition to that it appears that the same stock was finished up at the close of the next year and sold m the course of this business. Some additional expense was incurred in this finishing of the articles, but nothing like this range of twenty-five per cent The improbability of the allowance being justified by the circumstance is also increased by the fact that it exceeds the whole amount for which Folk gave his notes for the property, neither of which at the time of the hear-ting had been paid, and approximates nearly half the amount which was realized by the sale of the property under the executions. The allowance of these profits was not justified under the-evidence produced upon the hearing. And the conclusion of the referee that Folk had sustained damages to the sum finally mentioned by him was, therefore, unwarranted, and the exception to that conclusion is well founded. The order should be reversed, and the report set aside, with ten dollars costs and the disbursements, and another referee should be appointed to make the assessment.

Yan Brunt, P. J., concurs.


author: Patterson, J. Barrett, J.

text:
    The Banker & Campbell Co., Limited, Resp’t, v. Frederick J. Stimson, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October .16, 1891.)

    1. Injunction—Contract.
    Defendant contracted with plaintiffs to manufacture bicycles for them from materials to be paid for by the latter, and the plaintiff was to sell them and make a certain division of profits with defendant, and the latter-agreed to manufacture bicycles for the plaintiff “ and for itself alone during the continuance hereof * * * and to that end will devote and apply so much of said factory and plant as may be reasonably necessary for the purpose and as may not be actually in use in fulfilling other contracts.” Held, that an injunction was properly granted to prevent defendant from, using the material on hand and his factory for the purpose of manufacturing bicycles for a rival concern; that the reservation in the agreement related to the employment of the facilities of the factory for other work than that of making bicycles.
    2. Same.
    Under the state of facts disclosed, full relief could not be afforded at. law, and the only remedy was to prevent the wrong by injunction.
    3. Same.
    It was improper to direct in the order granting tne injunction that a-reference be had to ascertain what plaintiff should pay before defendant was required to deliver the bicycles. Provision should have been mad» that in case the parties could not agree upon the amount, the defendant might, after tendering the bicycles and a refusal by plaintiff to pay, move for a dissolution of the injunction, and the court could then require the payment of whatever sum it deemed just as a condition of retaining the injunction.
    Appeal from order continuing an injunction.

      E. P. Johnson, for app’lt; J. N. Goldbacher, for resp’t.
   Patterson, J.

This is an appeal from an order continuing, iu a modified form, an injunction restraining the defendant, his servants, etc., from manufacturing bicycles or permitting them to be-manufactured at his works, for any other party or person than the plaintiff. The order was made on a complaint and on affidavits setting forth in substance the following material facts, viz.: that in May, 1890, the plaintiff, a corporation, and the defendant, the owner of a factory, entered into an agreement in writing and under seal by which the former contracted to furnish at all times during the continuance of the agreement materials for manufacing certain bicycles, the defendant to purchase such materials in the name of the plaintiff and to hire workmen, and the plaintiff bound itself to pay all bills for such materials and workmen s wages on presentation; that the plaintiff would accept the bicycles so manufactured, would exert its best endeavors to sell them and after reimbursement of its outlay the defendant was to receive fifty per cent of the net profit as compensation for manufacturing and also twenty per cent of actual expenditure in full satisfaction of charges for the general expense of manufacture. The defendant covenanted that he would, during the continuance of the agreement, use his best efforts faithfully and satisfactorily to manufacture for the plaintiff, “ and for itself alone during the continuance hereof or any other agreement to this effect, bicycles in all reasonable particulars duplicates of the sample bicycle at the date hereof,” etc., and “ to that end will devote and apply so much of said factory and plant as may be reasonably necessary for the purpose and as may not be actually in use in fulfilling other contracts; ” he also agreed to provide at his own expense the necessary tools, and in all ways endeavor to meet the market demand for the machines as evidenced by and in accordance with the orders given him by the plaintiff; that he would keep proper accounts of the cost of materials and of the wages paid to employes, and that the plaintiff should have the right, during the existence of the contract, to designate the defendant’s factory as its own.

It also was further alleged and deposed to that the defendant’s factory was used for the manufacture of other things than bicycles ; that the agreement made with the plaintiff gave it the right to the exclusive product of bicycles within the capacity of the factory and on orders given, and by its terms and intent secured to it a factory where its own goods and not those of other and rival dealers might be made; that under the contract it paid the defendant over $17,000 for materials bought; that only three bicycles were furnished; that with materials on hand, orders were given the defendant to manufacture five hundred bicycles; that he has not done so, but with that material on hand and ability to perform that much of the contract, he has violated his agreement, and although one-half the time of performance of the- whole contract has expired, the defendant is actually using the capacity of the factory and the services of the workmen in making a different kind of bicycle for a rival concern, and that in consequence the plaintiff is seriously injured; that the damages are not susceptible of ascertainment in an action at law, and that unless the defendant is restrained from using the factory as he is now doing, the plaintiff will be without remedy. It further appears that the defendant accepted orders from Bretz, Curtis & Co., after his agreement with the plaintiff, to make bicycles for that firm, and the injunction, as modified, requires the completion of 500 bicycles for the plaintiff on the order given and above referred to, after which it allows the defendant to finish those actually in process of manufacture for Bretz, Curtis & Co. The plaintiff has apparently accepted this modification of the order, and, therefore, comment upon it is unnecessary. The effect of the agreement or its interpretation is the only serious matter in controversy.. That the plaintiff’s construction is right is too clear for argument. What it was seeking to obtain was a factory for the fabrication of its goods, and the whole scope of the agreement, the object had in view, the terms of the contract, the disbursements made under it and all the details, conclusively establish that both parties intended that a place of manufacture for the plaintiff’s bicycles should be secured, and the purchase of materials, the equipment of tools, the employment of men, the system of accounts and the minute details of an entire business were provided for. It is idle to contend that all this might be laid aside by the defendant and he be at liberty to devote the factory, the tools and the labor of the employes for the benefit of a competitor of the plaintiff. The reservation in the agreement related to the employment of the facilities of the factory for other work than that of making bicycles.

The matters set up in the answering affidavits do not meet the case or furnish ground for dissolving the injunction. A prima facie case is clearly made out and unless the plaintiff has an adequate remedy at law the injunction must be maintained. Under the particular state of facts disclosed here full relief could not be afforded at law. It is not the case of a plaintiff seeking to enforce a contract for personal services, as of an actor or artist. It will not do to say it can hire another factory and get some one else to equip that factory and employ men and do all the defendant has agreed to do and make new terms, and then see the defendant and open an inquiry as to damages, remote, uncertain and perhaps not ascertainable by the rigid rules of law. Here the great loss doubtless will arise from the defendant aiding the rival concern and thereby diverting the market of the plaintiff, and absolutely destroying its business and the value of its patents. How can that loss be measured by an exact standard ? As was said by this court in Pratt v. Montegriffo, 10 N. Y. Sup., 904; 32 N. Y. State Rep., 508, “ the only remedy is to prevent the wrong and that can no otherwise be administered than by injunction.”

The order is affirmed, with costs.

Barrett, J.

I concur in the views expressed by Mr. Justice Patterson, but I think that part of the order appealed from which directs a reference to ascertain what plaintiff should pay before defendant is required to' deliver the bicycles was unauthorized. That part of the order should be reversed and instead a provision made that in case the parties cannot agree upon the amount so payable, the defendant may, upon tendering the bicycles and a refusal thereupon to pay the amount claimed by him, move for a dissolution of the injunction. The court can then, as a condition of retaining the injunction, require payment of whatever sum it deems just.

Van Brunt, P. J., concurs


text:
    In the Matter of the Application of John A. Holmes for leave to issue execution, etc.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. Judgment—Leave to issue execution after death of defendant— Code Civ. Pro., § 1380.
    Section 1380 of the Code, as amended in 1890, was evidently designed to meet and provide for all cases of judgments against deceased persons leaving real estate claimed by the creditor to be subject to sale under execution to enforce the payment of his judgment, and the fact that the real estate may have been included in a conveyance intended to defraud the creditor does not exclude the case from the application of the section.
    3. Same.
    It is only where the conveyance has been declared fraudulent by the judgment or decree of a competent court that the case has been excepted from the operation and effect of the section, so that the execution may be issued without leave.
    Appeal from a decree of the surrogate of the county of New York, -granting leave to the petitioner, John A. Holmes, to issue execution upon a judgment owned by him, which was recovered by himself and two other persons against James Boyle, who departed this life on or about the 26th day of January, 1881.

      David Thornton, for app’lt; Thomas J. Keighorn, for resp’t.
   Daniels, J.

Upon a petition and answer, in all material respects similar to those upon which the decree of the surrogate has been made, an application was made to the special term of this court for leave to issue an execution on the same judgment. The application was then denied, and on appeal to the general term the order was reversed and the case was held to be within the provisions of the Code of Civil Procedure prescribing the cases in which an execution might be allowed to be issued to enforce a judgment against the real estate of the deceased defendant. Matter of Holmes, 59 Hun, 369 ; 36 N. Y. State Rep., 535. And that was sufficient authority to sustain the decree made for the same object by the surrogate.

It may, however, be further added, if the conveyance made by the judgment debtor of his real estate was not accepted by the grantee, as there is reason for believing the fact to be, then the judgment did become a lien upon the land pursuant to § 1251 of of the Code, and the surrogate was for that reason empowered to make the decrea For by § 1380 of the Code the decree was provided for after the lapse of three years from the decease of the judgment debtor, as long as he is shown to have left no personal estate, and no letters of administration were at any time issued on his estate. The proceedings to obtain the decree were not commenced until after the expiration of these three years, and no letters of administration were issued on the estate of the judgment debtor, who died intestate, and left no personal estate. These were all the essential facts to subject the case to the jurisdiction of the surrogate, and there seems to have been no good reason to doubt their existence.

The section as it has been amended in 1890 was evidently designed to meet and provide for all cases of judgments against deceased persons leaving real estate claimed by the creditor to be subject to sale under execution to enforce the payment of his judgment

And the fact that the .real estate may have been included in a conveyance intended to defraud the creditor, as the fact in this instance is alleged to be, does not exclude the case from the application of this section. For it is only where the conveyance has been declared fraudulent by the judgment or decree of a competent court that the case has been excepted from the operation and effect of the section. There no application for leave to issue an execution to enforce the judgment against such fraudulent conveyance can be required, but, as the section declares, the execution may be issued without leave of any court or officer. To exclude that class of cases from the section the conveyance must not only be fraudulent but it must also have been so declared by the judgment or decree of a competent court, and no such judgment or decree has been recovered as to this conveyance. The case, therefore, is not within the exception, and as its provisions are general, subject alone to this exception, it follows that the requisite authority has been provided for the making of this decree of the surrogate. The decree should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Ingraham, J., concur.


author: Van Brunt, P. J. Barrett, J. Bartlett, J.

text:
    Cornelius V. Cross et al., Ex’rs, et al., App’lts, v. The United States Trust Co. et al, Respts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Wills—Trust under foreign.
    Mrs. Gross, a resident of Rhode Island, died leaving a will by which she bequeathed certain funds to the defendant corporation upon certain trusts which were valid by the law of that state, but some of which are claimed to be in violation of our statute against perpetuities. The funds were delivered to the trustee, and the executors have accounted and been discharged. A primary trust, which was valid under the laws of both states, having terminated, this action was brought by the executors and the children of the testatrix, to obtain a construction of the will and a decision that the remaining trusts are void, and for a direction for the return of the funds to the executors for distribution under the residuary clause of the will. Held, that the plaintiffs have no standing to question the validity of these trusts at this time, and in this jurisdiction, and that the complaint was properly dismissed.
    (Van Brunt, P. J., dissents.)
    Appeal from judgment of special term dismissing complaint.

      E. C. James, for app’lt; E. Sheldon, for U. S. Trust Co.; N. Quackenbos and W. Fullerton, for John H. Morse and Grace G., Minton; N. Quackenbos, as guardian ad litem for the infant def’t Ethelinda Morse; Thos. Jackson, for deft Sophia V. Morse.

       Affirming 33 N. Y. State Rep., 149.

   Van Brunt, P. J.

(dissenting.)—This action was brought apparently to obtain a judicial interpretation and construction of a certain portion of the will of Phebe Jane Cross, deceased, which creates a trust in the defendant, the United States Trust Company, of certain property now in the hands of said company.

Two of the plaintiffs sue as executors and trustees of the will of Phebe J. Cross,' deceased, and the remaining plaintiffs, being three in number, sue individually.

It is conceded that at the time of her death Phebe-Jane Cross was a resident of the state of Rhode Island, and her will was proved there, and letters testamentary upon such will were issued by a probate court in Rhode Island to the executors therein named, two of whom are the plaintiffs, the third having since died.

What standing these Rhode Island executors can have in the courts of this state to procure the construction of a Rhode Island will we are unable to understand.

It is no answer to this suggestion to say that the property is here; because in order that they should have any right to the property as a matter of right to be enforced by the courts of this state it would be necessary that the will should be proved in this state and ancillary letters issued.

Ho such point, however, seems to have been made during the progress of this litigation; and as there are other individual plaintiffs who, perhaps, under the views at which we have arrived in reference to this controversy, might- maintain an action, it may not be necessary to .pursue this subject further.

The facts of the case appear to be that the testatrix, while a resident of the state of Hew York, executed the will in question. The personal property, which is the subject matter of the trust to be hereinafter considered, was within this state. Subsequently, the testatrix removed to Rhode Island and, while a resL dent of Rhode Island, died, leaving issue, all of whom were residents of Hew York, and her will with the codicil thereto was admitted to probate in said state, and letters testamentary were issued by said probate court of Rhode Island to the executors therein named, who entered upon the execution of their trusts, and one of whom has since died.

• The provisions of the will which it is necessary to consider in the disposition of this case are embraced within the eighth article thereof, which is as follows:

Article 8. I give and bequeath to the United States Trust Company of the city of Hew York ninety of said registered bonds, remaining after discharging the above bequests, and so many of the consolidated mortgage bonds of the Hew York & Harlem R. R. Co., dated the first day of May, in the year one thousand eight hundred and seventy-two, and payable on the first day of May, in the year one thousand nine hundred, and secured by a mortgage upon the road of the last mentioned company to the Union Trust Company, as amount at their par value to $250,000, to have and to hold in trust for the uses and purposes following, namely, to collect and receive the interest and income thereon until the payment of the principal, and upon such payment to invest and keep invested the proceeds, in safe interest-paying securities, and to collect and receive the interest or income upon the last mentioned securities and after deducting the charges of said trustee as follows, viz.:

One-quarter of one per cent on the amount above bequeathed, for receiving the same; two per cent upon the amount of interest or income thereon for collecting and paying out the same pursuant to the following provisions; to pay from said interest and income as' collected as follows, to wit:

Item 1. To my husband, James M.' Gross, during his life, the interest and income upon so many of said bonds and securities, in this article mentioned, as amount at their par value to the sum of $115,000, and upon and after his death to pay the interest and income upon said last mentioned bonds 'and securities over to my grandchildren, share and share alike, until the death of my last surviving child, and upon that event to pay the principal as hereinafter directed.

Item 2. To each of my three above mentioned children, viz.: Cornelius Y. and Norman E. and Ethelinda, during his or her life, the interest or income upon so many of said bonds or securities, in this article mentioned, as will amount at their par value to $121,250, and to pay to- my said daughter Sophia Y. Morse, during her life, the interest or income upon so many of the bonds or securities, in this article mentioned, as will amount at their par to $221,250.

Item 8. If either of my said children shall die leaving no children, then to pay the interest or income which he or she would have been entitled to receive if living, pursuant to the provisions of this will, to my surviving children, share and share alike, and the children of any deceased child, the last mentioned children to take as a class the share that' the deceased parents would have taken if living.

Item 4. If either of my said children shall die, leaving children, then I direct the said trustee to divide the principal from which the parent shall have received the interest or income, as above provided, into as many parts as there are children of such parent surviving, and after deducting charges for paying out the principal, as hereinafter provided, to deliver one part to each of said * children who shall have attained the age of twenty-five years, to have and to hold to him or her," his or her heirs and assigns forever. .

And if there is any part or parts remaining, to appropriate and set aside one part for each of the remaining of the last mentioned children, and to pay the. interest or income upon the part so set aside to the child for whom it is appropriated, until said child reaches the age of twenty-five years, and upon his or her reaching said age, to pay him or her so much of said part as shall remain after deducting charges as hereinafter provided, to have and to hold, to him or her, and to his or her heirs or assigns forever, and if any of said last mentioned children should die before reaching said age, then, after deducting charges as aforesaid, to pay his or her said part to his or her surviving brothers or sisters, or to either if there is but one surviving, and if all the children of the deceased parent above and in this item referred to shall die before arriving at said age, then to pay the sum or sums in this item referred to, to which he or she or they would have been entitled if living at said age, over to my children then living, share and share alike; and if none of my children shall then be living, then to pay said sums over to myosurviving grandchildren, share and share alike, to have and to° hold to them, him or her, their, his or her heirs and assigns forever.

Item 5. Upon the death of my last surviving child, I direct the said trustee to divide all of said bonds and securities then remaining in its possession, including those from which my husband, the said James M. Cross, shall have derived the interest and income above and in item 1 of article 8 provided, into as many parts as I shall then have grandchildren living,and after deducting charges for paying out the principal, to pay and deliver one part to each one of the grandchildren who shall have reached the age of twenty-five years, and if thére are any of said grandchildren remaining, to appropriate and set aside one from the remaining of said last mentioned parts for each of the last mentioned grandchildren and to pay the interest and income upon the parts so set aside to the grandchild for whom it is appropriated, until he or she reaches the age of twenty-five years, and upon his or her reaching said age, to pay to him or her so much of said part so appropriated to him or her as remains after deducting charges for paying out the principal, to have and to hold to him, her or them and to his or their heirs and assigns forever.

And if after the death of my last surviving child either of said grandchildren shall die before reaching said age, then I direct the said trustee, after deducting charges for paying out the principal, to divide and pay over the remainder of his or her said bonds and securities to my remaining grandchildren, share and share alike, to have and to hold to him, her or them, his, her or their heirs and assigns forever.

It appears that the executors have performed their duties and that they have handed over to the United States Trust Co., the trustee named in said will, the property mentioned in the eighth article thereof in trust for the purposes therein set forth and the company has accepted such property, and entered upon the performance of the trust and still continues to perform the same.

It was conceded that the trusts in question are valid according to the laws of Rhode Island and that some of the trusts in said eighth article are void according to the laws of the state of New York; and in this action the court was asked to determine which law would apply and declare these trusts void fiecause they were governed by the laws of New York; and also to advise the said executors as to their duties in the premises.

The court refused to perform these functions and dismissed the complaint and from the judgment thereupon entered this.appeal is taken.

We think, therefore, that the question presented is as to what are the powers and duties of this court in respect to property situate within this jurisdiction to be administered by a corporatian created bjr the laws of this state upon trusts created in a will made by a resident of Ehode Island legal in that state but which contravene in some respects the laws of this state.

The rule in reference to the cases of voluntary transfer, of intestacy, of devises under a will, still remains that which was laid down by Chancellor Kent, namely: “It has become a^settled principle of international jurisprudence, and one founded in a comprehensive atid enlightened sense of public policy and convenience, that the disposition, succession to and distribution of personal property wherever situate is governed by the law of the country of the owner’s or intestate’s domicil at the time of his death, and not by the conflicting laws of the various places where the goods happen to be situated.”

There is a modification, however, which it is necessary to point out to the broad rule above stated, because it is also well settled that where the law of the domicil of the owner or testator or intestate conflicts with the public policy of the state in which the property is situate in respect to its transfer, the latter will prevail.

It seems to us, after an examination of the numerous authorities to which our attention has been called, that the court in the case of Chamberlain v. Chamberlain, 43 N. Y., 432, have stated with remarkable clearness and precision the rules of law applicable to the question under discussion; and our attention has been called to nothing which in any way conflicts with the principles which are there laid down; but upon the contrary, ever since their enunciation they have been consistently followed and applied.

In the case of Chamberlain v. Chamberlain the question was . involved whether a testator residing in New York, by a will executed and proved in New York, could bequeath to a Pennsylvania corporation a legacy which such corporation would be entitled to claim, notwithstanding the fact that under the laws of the state of New York such a corporation had no power to take.

In the course of the opinion the court say: “ The Centenary Fund Society is a foreign corporation, having its existence under the laws of Pennsylvania and located within that state. The existence, however, of corporations organized under the laws of a sister state is recognizee! by the courts of this state, and they may take property here under wills executed by citizens of the state, if by the law of their creation they have- authority to acquire property by devise or bequest. Sherwood v. Am. Bible Society, 1 Keyes, 565; Harris v. Same, Ct. of App., 4 Abb. N. S., 421. That the corporation named was erected for charitable purposes and the bequest to it is for a charity is not material, if the bequest is not for some other reason invalid.

“ The courts of this state will not administer a foreign charity, but they will direct money devoted to it to be paid over to the proper parties, leaving it to the courts of the state within which the charity is to be established to provide for its due administration and for the proper 'application of the legacy. Hill on Trustees, 468 ; 2 Story on Eq. Jurisp., § 430 ; Provost of Edinburgh v. Aubrey, Ambler, 236; Burbank v. Whitney, 24 Pick., 154; Atty. Gen. v. Lepine, 2 Swanst., 181. There is no objection to the form ■or manner of execution of the will or the capacity of the testator. .Neither is it claimed that by the terms of the instrument the property would not pass as claimed by the legatees. The law of the testator’s domicil controls as to the formal requisites essential "to the validity of the will as a means of transmitting property, the capacity of the testator and the construction of the instrument. Andrews v. Herriol, 4 Cow., 517; Holmes v. Remsen, 4 Johns. Ch., 469 ; Parsons v. Lyman, 20 N. Y., 103. Personal property has no locality and, therefore, the law of the domicil of the owner governs its transmission, either by last will and testament or by succession in case of intestacy. 2 Kent Coin., 429 ; Moultrie v. Hunt, 23 N. Y., 394; Lawrence v. Kitieridge, 21 Conn., 577.

“ But if within the lex domicilii a will has all the forms and requisites to pass the title to personalty, the validity of particular bequests will depend iipon the law of the domicil of the legatee and of the government to which the fund is by the terms of the will to be transmitted for administration, and the particular purposes indicated by the testator. Whatever may be the law of .Pennsylvania, a testator domiciled in that state cannot establish, by bequests of personalty to citizens or corporations of this state, :a charity in trust tobe administered here inconsistent with the policy ■of the laws of this state. A gift by will of a citizen of this state to a ■charity or upon a trust to be administered in a sister state, which would be lawful in this state, the domicil of the donor, would not be sustained if it was not in accordance with the laws of the state in which the fund was to be administered.” “ Bequests in aid of foreign charities valid and legal in the place of their existence will be supported by the courts of the state in which the bequests are made. Hill on Trustees, 457.

“If the legatee, whether a natural or artificial person, and •whether he takes in his own right or in trust, is capable, by the law of his domicil, to take the legacy in the capacity and for •the purposes for which it is given, and the bequest is in other •.respects valid, it will be sustained, irrespective of the law of the testator’s domicil; subject, however, to this qualification, that if the law of the testator’s domicil, in terms, forbids bequests for -any particular purpose, or in any other way limits the capacity of the testator m the disposal of his property by will, a gift in •contravention of the law of the testator’s domicil would be void ■everywhere. But so far as the validity of the bequests depends upon the general law and policy of the state affecting property and its acquisition generally, and relating to its accumulation and .a suspension of ownership and the power of alienation, each .state is sovereign as to all property within its territory, whether real or personal.

“It is no part of the policy of the state of Hew York to interdict perpetuities or gifts in mortmain in Pennsylvania or California. Each state determines those matters according to its own views of policy or right, and no other state has any interest in the ■question; and there is no reason why the courts of this state should follow the funds bequeathed to the Centenary Fund Society to Pennsylvania to see whether they will be there administered in all respects in strict harmony with our policy and our laws. The question was before the court in Fordyce v. Bridges, 2 Phillips, 497, upon the bequest of a fund in England to be invested in a Scotch entail. Lord Cottenham says: ‘ An objection, was made that the bequest of a fund to be invested in a regular Scotch entail was void as a perpetuhy. The rules acted upon by the courts in this country with respect to testamentary dispositions tending to perpetuities relate to this country only. What the law of Scotland may be upon such a subject the courts of this country have no judicial knowledge, nor will they I apprehend inquire. The fund being to be administered in a foreign country is payable here, though the purpose to which it is to be applied would have been illegal if the administration of the fund had been to take, place in this country. This is exemplified by the well established rule in cases of bequests within the statute of mortmain, a charity legacy, void in this country under the statute of mortmain, is good and payable here if for a charity in Scotland.’ ”

It is to be observed that the court in considering this question distinctly state that the fact that the bequest under consideration, was for a charity was entirely immaterial, and that throughout the opioion the idea is advanced and is dwelt upon that a gift by will of a citizen of this state upon a trust to be administered in a sister state which would be lawful in this state, the domicil of the donor,, will not be sustained if it was not in accordance with the law of the state in which the gift was to be administered. Therefore, applying this rule to the case at bar, a trust will not be administered in this state which is created contrary to the laws of the. state. In other words, a foreigner will not be permitted to do that which is denied to a resident. A person living in Rhode Island, will not be permitted to erect a trust to be administered by a trustee within the state of Mew York for the benefit of cestuis que trust within this state in defiance of the laws of the state.

It seems to have been considered by the learned judge who tried the case in the court below, that because the questions involved in the case of Chamberlain v. Chamberlain related to a charity, that, therefore, some other or different rule applied. But this cannot be so, because it was a principle which was being enunciated applicable to legacies of every description, whether for charitable purposes or upon any other trust. It was recognizing the right of a citizen of the state to erect a trust for the benefit of. citizens of another state, in accordance with the laws of that state, and it denied the right of a citizen of another state to erect a trust within the state of Mew York for the benefit of residents of the state of Mew York, in defiance of the laws of the state of Mew York.

It seems to us to be a strange argument to hold that a man in Jersey City can erect a perpetuity in the state of Mew York of property within the state of Mew York, by a trustee in the state of Mew York, for the benefit of a cestui que trust living in this. -state, in defiance of the laws of this state which prohibit the erection of such trust.

It appears clear to us, therefore, that such portions of this trust as are void according to the laws of the state of New York cannot be administered by the trustee here., and it is immaterial whether such trustee is a corporation or an individual. The inhibition to administer a trust contrary to the laws of the state would be equally binding in either case.

Under these circumstances it becomes necessary to examine the will, or that portion of the will which is the subject of consideration in this action, to determine as to what parts of the trust attempted to be created contravene the laws, of this state. And in the consideration of this question, the principle must be borne in mind that where a limitation is made to take effect on two alternative events, one of which is too remote and the other valid as within the prescribed limits, although such limitation is void so far as it depends upon the remote event, it will be allowed to take effect on the happening of the alternative one. Schettler v. Smith, 41 N. Y, 328; Kennedy v. Hoy, 105 id., 134; 6 N. Y. State Rep., 787.

Applying this principle it would appear that the primary trusts created by the article in question are valid; and that all the other subsequent provisions áre invalid. It is suggested that in the event of the death of a child of the testatrix leaving issue the bequest to such issue is. good, the limitation upon the right of enjoyment of such bequest only being invalid. This cannot be true because an estate does not vest absolutely in the holder of an estate for life or years because the limitation over is invalid, and this would be the result of holding the bequest to issue valid, enabling them to take in defiance of the provisions of the will, which made such right to depend upon attainment of the age of twenty-five years. It follows, therefore, that upon the termination of each of the primary trusts the property held upon such trust goes to' the executors to be administered by them under the laws of Rhode Island, the domicil of the testatrix and the place of their official domicil; and as to that portion of the property of which Jas. M. Cross was to receive the income during life, the trust ended at his death and the trustee should transmit the property to the Rhode Island executors.

This transfer of the property to the executors in Rhode Island •is entirely in harmony with the principles laid down in Despard v. Churchill, 53 N. Y., 192, where the court directed personal ■property within this state under similar circumstances to Be transferred to the executors in California to be appropriated to a trust void under' the laws of this state.

The courts of this state have no power to decree a distribution of such portions of the fund, as they have no control over the executors and no control over the estate as such, and only can prevent by their decree the performance of a trust in defiance of the laws of this state. And all that they can do after having ended the trust so far as performance in this state is concerned is to remit the estate to the source from whence it came.

We think, therefore, that the court below erred in dismissing the bill, and should have retained the same for the purpose of rendering judgment in accordance with the views herein expressed.

The judgment should be reversed and a new trial ordered.

Barrett, J.

I am unable to concur in the conclusion arrived, at by the presiding justice. I agree, however, that the RhodeIsland executors have no standing to obtain a judicial construction, in the courts of this state, of a Rhode Island will. But the-presiding justice sustains the complaint because certain individual plaintiffs are joined with these executors. The question at, once arises, who are these individual plaintiffs and what rights, are they here seeking to enforce ? They are children of the testatrix and they make a direct attack upon certain of the trusts-created by her will.

If these trusts are declared to be void, then these individual plaintiffs claim to take under the residuary clause of the will. Their complaint proceeds solely upon this theory. The trusts are; alleged to contravene our statute against perpetuities, and judgment is demanded that the corpus of the trust estate be delivered, over by the trustees to the Rhode Island executors for distribution under the residuary clause of the will. We are thus asked, not to aid the trustee to execute the trust, but directly and affirmatively to destroy the trust. We are asked to do this too with regard to a trust perfectly valid by the law of the testatrix’ domicil, and having done it, to turn over the corpus of the destroyed trust estate to the foreign executors for distribution under the-, terms of the very will which we shall have thus emasculated. It. must not be overlooked in this connection that so far as the executors are concerned the will has long since been fully executed. The executorial duties were, in fact, completed in 1885, and the: estate was then fully administered. The corpus of this trust estate-had previously been reduced to possession, and, in July, 1885, it, was delivered by the executors to the trustee named in the will. In November, 1885, the final account of the executors, showing all their proceedings, was presented to the proper probate court of Rhode Island, and in January, 1886, such final account was duly allowed. Mr. Norman F. Gross testified that thereupon the executors “ Had their releases from the probate clerk of Rhode Island, at Westerly.” He added, that the other provisions of the will had been carried out, so that “ there is nothing remaining under the-will.”

For the last five years, then, the executors have been fundi' officio, and the United States Trust Company has pursued the even tenor of its way as a legatee under the trust directions contained, in the will. If this trustee were incompetent to take the property so bequeathed to it in trust, or if some of the trusts were void, under the laws of this state, the proper time to raise that question was before the will was executed and the property turned over to the trust legatee by the Rhode Island executors. The question discussed in the cases in this state, to which we have been referred,. notably Chamberlain v. Chamberlain, 43 N. Y., 424; Manice v. Mantee, Id., 303; and Despard v. Churchill, 53 id., 192, was whether the legacies should or should not be paid over in the first instance to the legatees. In no case does there seem to have been an attempt, after payment, to compel the legatee to restore his legacy upon the theory that, if personal, it should not have been paid to him at all, or, if in trust, that so much of the trust as was valid under our laws had terminated. Here, then, we have a trust estate created by a Rhode Island will and entirely valid by the law of the testatrix’ domicil, sought, not to be frustrated in its origin, but to be destroyed while in due process of execution because of the incident that the trustee happens to be a Hew York corporation. The fact that the property, which is entirely personal, may be here, and that the beneficiaries live here, can have no bearing upon the question. The residence of the beneficiaries is wholly immaterial, and, as personal property has no locality, the law of the owner’s domicil governs its transmission either by last will and testament or by succession in case of intestacy. Indeed, if the testatrix had bequeathed this property to a Rhode Island trust company upon these same trusts, we would hardly have heard of these present complaints, even if the foreign trust company had thought it more prudent to keep the bonds in one of our safe deposit companies, and to send an agent here semiannually to detach the coupons and distribute the proceeds among the local beneficiaries.

But what difference would there be in principle if the testatrix had bequeathed the property, still upon the same trusts, to a Rhode Island individual [who should subsequently come here to live and bring the property with him ? Or to a Massachusetts individual who should do the same thing ? Or even to a Hew York individual who should keep the property locked up in a Boston safe deposit company ? The fallacy of the position, as it seems to me, lies mainly in regarding the locality of the subject, that being exclusively personal property, rather than the domicil of the testatrix. In the case at bar, the testatrix certainly conferred upon the trustee the legal title to the property in question. The Trust Company is thus the owner of such property subject to its trust duties. Shall we, notwithstanding an undoubted legal title, take property from its owner and hand such property over to others ? If so, by what authority ? And to whom shall we hand it? And for what purpose ? The only authority suggested is our statute against perpetuities.

But it was held, both in Chamberlain v. Chamberlain, and Despard v. Churchill, supra, that it is no part of the policy of this state to interdict perpetuities or accumulations in another state; and in Despard v. Churchill it was explicitly held that, although a foreign will disposes of property in this state by provisions which are invalid here as running counter to our statute against perpetuities, yet the courts of this state may not hold the bequest void when it is valid by the law of the state by which the disposition of the property is to be governed. Our courts may, it was intimated, refuse their aid to enforce or administer here such a bequest. But this aid is not now sought. The trustee, in fact, needs no such aid. And the plaintiffs’ sole demand is that we hold the bequest to be void, and take the subject thereof out of the hands in which it is duly and legally vested. This would be distinctly contrary to the principle enunciated in Despard v. Churchill, and there is nothing to warrant it in Chamberlain v. Chamberlain. In the'latter case it was held that a' foreign corporation may take personal property under wills executed by citizens of this state, if by the laws óf its creation it has authority to acquire property by bequest.

The reasoning which led to this conclusion, while recognizing the rule that the validity of particular bequests will depend upon the laws of the domicil of the legatee, does not conflict with the doctrine of Despard v. Churchill as to the action' dr non action of the courts of such legatee’s domicil in enforcing or annulling a bequest invalid by its laws. Next, to whom are we asked to give this property ? Not certainly to the next of kin ? Even the individual plaintiffs have not had the hardihood to claim the distribution of the property under our laws as in case of intestacy. It was impossible at this point to ignore the Ehode Island will, and so, after insisting that it shall be tampered with, where the provisions run counter to our statute law, the plaintiffs would utilize it to find some object in whose favor a successful judgment may run. Thus the executors, who have long since been released, are to be recalled into being by the courts of this state, in order that there may be some one to whom the subject of the destroyed trust may be required to be delivered.' This is a most anomalous suggestion.. These executors, when officially alive and .in the performance of their functions, delivered this very property over to the trustee under the express terms of the will. After the lapse of five years, having meanwhile been judicially released as executors by the courts of Ehode Island, they are to be asked to take the same property back. But suppose they should refuse to accept it? Suppose they should say, what have we to do with this property, what would become of our decree ? And what position would the Trust Company then occupy ? If, however, the executors did accept the property, what could they do with it? Take it to Ehode Island and ask the instructions of the courts- of that state ? It is inconceivable that such a course would alter the substance of the situation. It might result in a change of agency or trusteeship, but that is all. It surely would not result in the ■courts of Ehode Island altering the testator’s will.

Those courts certainly would not permit the distribution of the property under the residuary clause, merely because we had ordered the property out of the state, and had forbidden the execution within our borders of a trust created in their state by a person domiciled there, and perfectly valid under their laws. The courts of that state would probably say to the executors: We 'long since approved of your course in delivering this property to the Trust Company, as required by the will, and thereupon we released you from your executorial functions. By what authority have you now officiously attempted to aid the courts of another state in subverting the valid testamentary purposes of a citizen of this state? You had no right to accept this property. But as it is here we will give it hospitality, appoint a competent trustee, and see that it is applied strictly in accordance with the will of the testator.

I think, therefore, that the complaint was properly dismissed, but not for the reasons assigned by the learned judge at special term. I agree with the presiding justice that there is no just distinction with regard to the question under consideration between charitable legacies and legacies of any other kind. And I do not agree with the learned judge at special term in the suggestion that the proper course for the court is to refuse to assume jurisdiction, and “ to remit the property, and if needs be, the persons, to the Bhode Island courts.” How this could be done without assuming jurisdiction, is not apparent I place my judgment for affirming the dismissal of the complaint upon the distinct ground that we cannot, by an affirmative decree, directly nullify a trust bequest, in due process of execution, which is valid by the law of the testatrix’ domicil. This we would have to do before the property could be remitted to the Bhode Island jurisdiction. And just there is the distinction between this case and Despard v. Churchill. If the subject of the present trust had never been reduced to possession by the executors, or administered, the disposition made in Despard v. Churchill might have served as a guide. The assets which, in that case, were remitted to the California executors, were so remitted expressly for administration.

It was upon that theory that the court distinguished between directly aiding the execution of a bequest which is in violation of our statute law and directly holding such bequest to be void. The difficulty was there avoided by simply remitting to the California executors, for administration in that state, assets which had not yet been reduced to possession. Thus the court neither directly aided in carrying out the objectionable bequests, nor in defeating them. It neither held them to be valid nor void. It simply remitted them to their proper destination, in the first instance, and left the rest to the law of California. Here, however, the -assets w.ere reduced to possession by the Bhode Island executors and fully administered. The assets were delivered in due course and in execution of the will to the trust legatee. It is idle to talk of remitting them anywhere thereafter.

In my opinion, the judgment appealed from should be affirmed, with costs.

Bartlett, J.

I agree with the presiding justice that where the question is properly raised the courts of this state will not permit a trust to be administered hero which is contrary to the laws of this state. On the other hand, it seems to me that Mr. Justice Barrett is right in holding that neither the Bhode Island executors nor the individual plaintiffs have any standing to question the validity of these trusts, in this jurisdiction and at this time. As he well says, if the trustee were incompetent to take the property in trust, or if some of the trusts were void under the laws of this state, the proper time to raise that question was before the estate had been administered and the property turned over to the trust legatee by the executors. Furthermore, I am at a loss to see what benefit the plaintiffs could derive from any judgment which could properly be rendered, even if they are entitled' to relief. If we send the fund back to Rhode Island, and I think we are bound to do so if we adjudge the trusts invalid, the courts there would simply appoint a Rhode Island trustee to do in that state just what the United States Trust Company is doing here; and the plaintiffs would be no better off than they are now.

I am in favor of affirming the judgment on the ground that the plaintiffs did not make out a case entitling them to any relief.

Judgment affirmed, with costs.


text:
    Nathaniel Hooper et al., Resp’ts, v. Charles McCulloch Beecher et al., App’lts.

      (Supreme Court, General Term, First Department,.

      Filed October 16, 1891.)

    Assignment for creditors—Duty of assignee.
    A fund was deposited pending appeal involving the validity of an assignment for creditors, which was afterwards directed to he returned to the assignee. Held, that the assignee could not by a mere motion invoke the decision of the court whether he should pay the moneys as directed by the assignment; that he did not hold the money subject to the order of the court, hut subject only to the direction in the assignment, and the court had no authority to control his acts prior to a settlement of his accounts.
    Appeal by the defendants Bartlett and Baillie from an order denying a motion for an order directing the defendant Bartlett to pay the sum of $5,346.40 to Drexel, Morgan & Co., the first preferred creditors named in a general assignment made to him.

      Bangs, Stetson, Tracy & MacVeagh, for app’lts; Franklin Bien, for resp’ts.
   Daniels, J.

The money affected by this appeal was deposited by the assignee with the United States Trust Company during the pendency of an appeal involving the validity of a general assignment for the benefit of creditors. The deposit was made under an order of this court subject to its further order. The assignee was successful in his appeal to the court of appeals, and as no further object was to be subserved by retaining the deposit after that, it was directed to be returned to the assignee. He now desires to pay it over to the first preferred creditors, and applied for an order directing that to be done. But if that should under the present circumstances be paid over to such •creditors, it must be under the authority of the direction contained in the assignment.

The assignee does not hold the money subject to the order of this court on motion, but he holds it subject only to the direction contained in the assignment If the case were before this court for the settlement of his accounts and the distribution of the estate under the authority conferred by the statutes relating to general assignments, a very different question would then be presented. But that is not its condition, neither has an action been brought for the recovery of the money by the creditors. But the appeal to the court is by a summary application, to order the assignee to do an act which the court in this proceeding has no authority to control. If the assignment directs the assignee to make this disposition of the money, that is the authority under which he must act He cannot by a mere motion invoke the decision of this court on the point whether he shall, or shall not, conform to the direction contained in the assignment.

The order denying the motion was rightly made, and it should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., concurs.


author: Per Curiam.

text:
    Emil Bachman, Resp’t, v. Philip Wagner, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Lis pendens—Vendor and purchaser.
    An action to establish and enforce a vendee’s lien for money paid upon a contract for the sale of land where the vendor is unable to give good title, is an action affecting the "title to, or the possession, use or enjoyment of real estate, and notice of pendency of action may be filed therein, and when so filed the court has no power to entertain a motion to cancel it.
    Appeal from order denying motion to cancel lis pendens.

    Action to establish and enforce a vendee’s lien for money paid on contract where the vendor could not convey a good title.

      J. A. Straley, for app’lt; F. Schaeffler, for resp’t.
   Per Curiam.

In an action brought to recover a judgment affecting the title to or the possession, use or enjoyment of real property, the plaintiff may when he files his complaint or at any time afterwards before final judgment, file in the clerk’s office of the county where the property is situated a notice of the pendency of the action, and where such notice of lis pendens is filed in such an action the court has no power to entertain a motion to cancel same. Mills v. Bliss, 55 N. Y., 139.

The only question then to be considered is, whether the judgment sought to be recovered in this action would affect the title to or the possession, use or enjoyment of real property. The action is brought manifestly to impress a lien upon real estate and to have that lien foreclosed and the real estate sold to satisfy the same. Such an action clearly affects the title to or the possession, use or enjoyment of real estate. Tinder the guise of a demurrer to a complaint in such an action, a motion cannot be entertained to cancel a lis pendens. The right of the plaintiff to recover must be determined in a different manner.

The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.


author: Bartlett, J. Barrett, J.

text:
    The Commercial Union Assurance Company, Limited, App’lt, v. Morris H. Smith et al. and The Commercial Union Life Ins. Co., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891,}

    Appeal—Trade name.
    This action was brought to restrain the defendants from using the name Commercial Union. The complaint was dismissed, but defendants agreed to and have abandoned the use of such name.. Held, that as there was no longer any real controversy between the parties the question involved was but an abstract one and the appeal should be dismissed.
    (Barrett, J., dissents.)
    Appeal from a judgment rendered at special term dismissing the complaint upon the merits.
    The action was commenced by plaintiff, an English corporation carrying on insurance in several branches of fire, life and marine insurance, but only carrying on the business of ñre insurance in this state, the laws, as construed by the insurance department, permitting foreign insurance companies to engage in only one class of business. Defendant sought to organize a corporation under the name of the Commercial Union Life Insurance Company of New York, for the purpose of insuring lives, and plaintiff thereupon requested the superintendent of the insurance department to reject the proposed name, on the ground that it would conflict with that of plaintiff.
    Plaintiff then brought this action, alleging it would suffer damage if defendant were permitted to use the name Commercial Union, and obtained, and served with its summons and complaint, a temporary injunction, which was vacated. Upon the trial the complaint was dismissed.

      William Allen Butler, for app’lt; Henry G. Willcox, for resp’ts.
   Bartlett, J.

I think we ought to dismiss this appeal. There is no longer any real controversy between the parties. The purpose of the action was to prevent the defendants from using the name or title of Commercial Union as the designation of a life insurance company to be organized to do business in the state of Hew York. The plaintiff failed in the court below, nevertheless, as appears from the statements of counsel made in the course of their arguments before us, the defendants have concluded to abandon and have abandoned the use of the name which the plaintiff sought to enjoin them from using. An injunction having become needless to protect the plaintiff, it is unnecessary to inquire whether the plaintiff made out a case for an injunction upon the trial Appellate courts may properly refuse to pass upon abstract questions where no actual relief is really sought. People ex rel. Geer v. Com. Council of Troy, 82 N. Y., 575; Grow v. Garlock, 29 Hun, 598.

Appeal dismissed, without costs.

Van Brunt, P. J., concurs.

Barrett, J.

(dissenting.)—The question presented is not, in my judgment, an abstract one. It involves a genuine issue, none the less so because we are told by counsel that since the judgment the defendant has abandoned the use of the name sought to be enjoined.

The defendant may resume its original position to-morrow and the plaintiff will be barred by the judgment appealed from.

And, further, the complaint was dismissed below upon the merits, with costs. By our refusal to consider- the appeal the plaintiff will have to pay these costs.

I think it is our duty to decide the case and I am, therefore, constrained to dissent from the dismissal of the appeal.


author: Van Brunt, P. J.

text:
    Cyrus Scofield, Resp’t, v. Samuel Kreiser, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Abbest—Body execution.
    Wliile returning from attendance upon supplementary proceedings instituted against him,defendant was arrested upon a body execution issued upon same judgment upon which such proceedings had been commenced. Held, that he was entitled to be discharged from such arrest under the provisions of § 861 of the Code, and that the court -erred in imposing as a condition of such discharge that he stipulate to waive any claim for damages by reason of such arrest.
    Appeal by defendant from so much of an order made at special term as imposes a condition upon the granting of the same.

      A. Kling, for app’lt; McAdam & McCrea, for resp’t.
   Van Brunt, P. J.

On the 11th day of December, 1890, judgment was rendered against the defendant in favor of the plaintiff in an action of conversion and on January 11th, 1891, an execution against the defendant’s property was issued to the sheriff who returned the same unsatisfied January 20, 1891, of which return plaintiff had no notice until February 20, 1891. On the 25th day of February, 1891, plaintiff instituted proceedings supplemental to execution against the defendant; such proceedings continued until April 10,1891, to which time the same had been adjourned.

The defendant appeared on that day before the court and while he was in such attendance the plaintiff issued to the sheriff an execution against his person and after he had left the court and gone to his attorney’s office, on his way home, he was taken into custody.

The defendant thereupon moved that the execution against his person be superseded, vacated and set aside, and himself discharged from custody upon the following grounds:

(1.) That the plaintiff had neglected to issue said body execution within ten days after the return of the execution against the defendant’s property, or within three months after the entry of the judgment.

(2.) That the said execution against the person had been issued while proceedings against the defendant’s property were pending, and before same had terminated.

(3.) That the defendant had been arrested while returning to his home from attendance upon this court, pursuant to its lawfui mandate, in a case where his attendance could have been compelled and while he was privileged from arrest.

The court granted this motion upon all the grounds moved upon, on condition that the defendant stipulated to waive any claim for damages by reason of his arrest, and from that part of the order imposing this condition this appeal is taken.'

It is undoubtedly true that the defendant was not absolutely entitled to have the execution set aside because not issued within ten days after the return of execution against his property or within three months after the entry of judgment. If reasonable excuse be given, the application may be denied. But he was absolutely entitled to be discharged from arrest, and that without condition, because the provisions of § 860 of the Code had been violated, which the judge below must have found to be the fact, as he granted the motion upon that ground. It is true that the counsel for the plaintiff swears that the defendant voluntarily submittted to arrest. Of this he concededly only speaks from information received, while every person present who makes an affidavit denies that the facts are true because of which a voluntary surrender is claimed. Under such circumstances the court, pursuant to the provisions of § 861 of the Code, was bound to discharge the defendant, and could not deprive him of the right given by § 863.

The order appealed from should, therefore, be modified by striking therefrom the clause exacting the stipulation, with ten dollars costs and the disbursements of the appeal

Daniels and Ingraham, JJ., concur.


text:
    The People ex rel. Jeremiah Sullivan v. J. Hampden Robb et al., Com’rs.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Municipal corporations—Police—Removal.
    The board of park commissioners of the city of New York have the right to remove a policeman on a charge of indecent exposure under the power given them by the statute to remove for conduct injurious to the public peace or welfare, or immoral conduct, or conduct unbecoming an officer.
    Certiorari to review the dismissal of the relator from the police force of the park department

      Purdy & McLaughlin, for relator; C. N. O’Neill, for resp’ts.
   Van Brunt, P. J.

The relator was charged with indecent exposure while on duty.

It is urged upon the part of the relator, first, that there is not sufficient evidence to justify his conviction; and secondly, that there is nothing in the return to show that there is any rule in the department covering this case; and if there is no such rule, the board has unlawfully and improperly exercised the authority conferred upon it

In respect to the last objection the commissioners of public parks have undoubtedly the right to remove for the offense charged, because, by chap. 262 of the Laws of 1887, the board is given power to remove for any conduct injurious to the public peace or welfare, or immoral conduct, or conduct unbecoming an officer etc. It would be rather an anomaly in the enforcement of discipline in a force such as the police force, that every possible act must necessarily be expressly covered by the rules. Where the statute authorizes a removal for cause, unless the power is especially restricted, any cause detrimental to the service would be sufficient But in respect to the board of park commissioners, they are given by the statute, as already seen, express power to punish by dismissal in a case like the present.

A reading of the evidence in this case does not satisfy the court that the finding of the commissioners is so greatly against the weight of evidence as to justify the court in setting it aside. The most that can be said in favor of the relator is that it is a doubtful case, although there are many features in it tending to establish the verity of the charge.

By placing the hour a little in advance of the time fixed by the witnesses in support of the charge, the whole of the testimony may be harmonized; and if this evidence was before a jury for consideration they might in estimating the effect of the evidence bear this fact in mind. And in fact it would be their duty so to do. In the face of the positive testimony offered in support of the charge, if the case had been before a jury for determination, the court could not have dismissed the complaint, and as the commissioners in weighing the evidence occupy the position of jurors, and their conclusion is to have the same weight, there seems to be no ground for interference with it although a strong case may be made out upon the part of the defence.

We see no ground for interfering with the conclusion of the commissioners and the proceedings must be affirmed, with costs.

Bartlett and Barrett, JJ., concur.