author: LANDON, J.

text:
    In the Matter of the Estate of Mary L. Isbell, Deceased.

      {Supreme Court, Appellate Division, Third Department,

      Filed January 27, 1896.)

    1. Wills—Ohabitibs—Bequest.
    A bequest to a department rtf an incorporated society, which departí ment is inseparable from the corporation and can only be made effectua through the corporation, may be upheld as a bequest to the corporation itself. So held, where a testatrix gave a legacy to the “ Japan Mission, under the direction of the Baptist^ Board of Foreign Missions,” and the Japan Mission and the Board of Foreign Missions were certain departments or fields of labor of the corporation known as the American Baptist Missionary Union,
    3. Same—Tjujst.
    Such bequest did not create a trust, requiring the application of the bequest in the Japan Mission work.
    Appeal from a decree of the surrogate, made upon the final settlement of the executor of the last will and testament of Mary L. Isbell, deceased, by which decree it was adjudged that the American Baptist Missionary Union was not entitled to the legacy of $1,000, mentioned in the clause of the testatrix’s will set forth in the opinion

      Horace L. Bronson, for app’lt; Frank M. Hays, for resp’t executor ; John J. Irving, for the other resp’t.
   LANDON, J.

The clause of the will under which the legacy is claimed is as follows :

“I give to the Japan Mission, under the direction of the Baptist Board of Foreign Missions, $1,000 (one thousand dollars). To pay the annual interest of the money, well invested, with good security.”

The surrogate found:

“ That neither the Japan Mission nor the Baptist Board of Foreign Missions were or are corporations, but that both are voluntary associations, doing missionary work under the direction and control of the American Baptist Missionary Union, which is a duly formed and constituted foreign corporation; that, for many years prior to her death, Mary L. Isbell had been a member of the First Baptist Church of the city of Binghamton, H. Y., and a contributor to the cause of missions of that church; that, thirty years prior to her death, she had a daughter, who married a missionary, and together they sailed for Japan, to engage in missionary work, but that the vessel on which they sailed was lost at sea, with all on board; that from this fact Mary L. Isbell had a peculiar interest in the Japan Mission, and that she intended the aforesaid bequest for the benefit of that mission alone, and did not intend to give it to the American Baptist Missionary Union.”

And also, as a conclusion of law:

“That the said bequest of $1,000 to the Japan Mission is void, and that the same falls into, and becomes a part of, the residuary estate.”

From our examination of the evidence, we think the surrogate’s finding that both the Japan Mission and the Baptist Board of Foreign Missions “are voluntary associations, doing missionary work under the direction of and control of the American Baptist Missionary Union,” is inaccurate, to a degree that constitutes error. The evidence shows that the Japan Mission, instead of being a voluntary association or body, separate and distinct from the corporation known as the “American Baptist Missionary Union,” is in fact the name of a certain department or field of labor of the corporation itself, and which it manages and conducts. Dr. Fletcher, the district secretary of the corporation, testified:

“I know of the Japan Mission; that is, the term cover our work in Japan. ' The missionaries that are sent to Japan are accepted by the American Baptist Missionary Union, and are designated to their work in Japan by that society. ■ The expenses of the Japan Mission are all paid by the American Baptist Missionary Union, and were so in June, 1891 [date of the will].”

He also testified that:

“The Baptist Board of Foreign Missions is a part of the board of managers of the union, and under its direction ; that, apart from such board of managers, there is no Baptist Board of Foreign Missions; that the board of managers of the union elects an exe cutive committee of nine, which conducts the missions under the direction of the board of managers, and thus the board of managers of the corporation directs the Japan Mission, as one of its mission fields.”

It is plain from the evidence, which is not contradicted, that neither this Japan Mission nor the Baptist Board of Missions had any existence except through the corporation, the American Baptist Missionary Union. The Baptist Board of Missions was simply a convenient name, but not an instrumentality or association, apart from the union itself, by which the union designated that part of its activities which embraced its administration of its missionary enterprises. The “Japan Mission” was the name of one of its enterprises thus administered. The finding of the surrogate that the testatrix did not intend to give the legacy to the American Baptist Missionary Union cannot be upheld, upon the evidence. The testatrix intended to make her gift effectual. The only way this could be done was by and through the union. The corporation — that is, the union — was organized, to use the language of the acts of incorporation of the. general court of Massachusetts in 1845, and of the general assembly of Pennsylvania in 1846, “to diffuse the knowledge of the religion of Jesus Christ, by means of missions, throughout the world." These acts authorize it to receive gifts, devises, and bequests; and chapter 17 of the Laws of this state of 1870 confers upon it the like capacity. It is mainly supported by the contributions.of persons in sympathy with the Baptist denomination, and was, when this will was made, the only Baptist organization in the country covering the same or like fields of labor. The membership of the union was made up of life and annual members. The testatrix was a life member. The Union published the BaptistMissionary Magazine,largely circulated among the Baptist churches and communicants. In each number of this magazine there was published an annual report of the affairs of the union and of this mission, under the name of “Japan Mission.” By these published reports of the treasurer of the union, it appears that the union kept separate accounts of specific funds bequeathed to aid the several missions of the union, as the Japan Mission, Bangoon, Toungoo, African Medical, etc. The church which the testatrix attended made its contributions to foreign missions ’ through the union. The “ Board of Foreign Missions ” was the customary term which this church employed in designating the object for which collections for this purpose were solicited. The testatrix was a member of the Women’s Baptist Foreign Missionary & Auxiliary Society of the Baptist church which she attended. The contributions of this society went to the union. It is not distinctly found, but the evidence tends to show, that she had .no children or grandchildren living. The surrogate finds that she intended the legacy for the benefit of the Japan Mission alone; and he sets forth in his findings the motive justifying her intention, namely, that her only daughter had married a missionary, and together they sailed for Japan, to engage in missionary work, and were lost at sea. This was thirty years before she made her will. This finding by the surrogate is not inconsistent with her purpose to have the legacy reach the Japan Mission through the means of the agency which she suggests, namely, the Baptist Board of Missions, which was in fact the name by which the American Baptist Missionary Union was commonly known, in ifs capacity as manager of the Japan Mission. Certainly, she expected the Baptist Board of Missions to administer her bounty, and, when she named the board, she, in effect, named the corporation for which the board could only act. In no way could that board lawfully act, except for the corporation. We think that a bequest to a department of an incorporated society, which department is inseparable from the corporation, and can only be made effectual through the corporation, may be upheld as a bequest to the corporation itself; especially so when this department has a distinctive name, by which it is commonly known, and is, as in this case, the designation of a particular field or class of religious activities and charities which have the sanction of the law, and, certainly with the members and friends of such communions, the sanction and stimulus of religious duty, in soliciting and administering pecuniary aid. In re Wehrhane, 40 Hun, 542. It was pointed out in the case cited that Betts v. Betts, 4 Abb. N. C. 417, relied upon by the respondent, is distinguishable. In the Betts Case the bequest was to the Marine Bible Society, an unincorporated society, and it was claimed by the corporation the American Bible Society. The Marine Society was not a department or branch of the American Society, but had its separate organization, and was simply auxiliary to the American. Society. It was its helper, but not a part of itself, and its management, and the measure of its help, was controlled by itself. See pages 341, 403. It was quite possible that a gift to the Marine Bible Society would not have aided the American Bible Society. The respondent cites Society v. Bowen, 21 Hun, 389. In that case there was a bequest to the Presbyterian Church of Chili, and a separate bequest of $1,000 to the Presbyterian Cemetery, the income of the money to be applied to its maintenance. The bequest to the cemeterjr was held invalid, the court holding that a trust was sought to be created, and no trustee named, and no beneficiary, competent to receive, named. The fact that the testator named the church as the legatee of one bequest, and the cemetery as the legatee of another, probably had some weight in leading the court to conclude that the testator did not intend to make his bequest to the cemetery by confiding it to the church. In the Wehrhane Case the court did not think the case should control its decision, and we do not think it should control in the case before us. But since we conclude, as a matter of fact, that the testatrix intended to bequeath this legacy to the American Baptist Missionary Union, effect should be given to her intention, notwithstanding the technical defect in naming the legatee. Lefevre v. Lefevre 59 N. Y. 434; Gray v. Society, 2 N. Y. Supp. 878; Greer v. Belknap, 63 How. Prac. 390; Hospital v. Schreck, 3 Dem. Sur. 225; In re Stiles’ Estate, 3 N. Y. Supp. 137; Canfield v. Crandall, 4 Dem. Sur. 114; Institution v. How’s Ex'rs, 10 N. Y. 84.

We do not think that any trust was created by the terms in which the bequest was given. ■ The testatrix desired that the corporation should take and administer her bounty in favor of one of the worthy objects of its care in preference to the others. She desired that the principal should be preserved, invested, and’the income expended. This the charters of the American Baptist Missionary Union, and the enabling statute of this state, above cited, permit to the, corporation. Indeed, if the Japan Mission should seek to come into court, it would have to do so in the name of the union, and thus present the absurdity of suing itself. ' Since the legacy is to the union, for the benefit of itself, the suggestion of the testatrix as to its manner of enjoying the benefit creates a moral, but not a legal, obligation. Lawrence v. Cooke, 104 N. Y. 632; 6 St. Rep. 772; Pell v. Folger, 68 Hun, 443; 52 St. Rep. 682; Field v. Mayor, etc., 38 Hun, 590; In re Le Fevre, 5 Dem. Sur. 24.

We think the decree of the surrogate should be reversed, upon the facts, and a decree entered directing the payment of the $1,000 legacy to the American Baptist Missionary Union, with costs.

All concur.


source: Caselaw Access Project

author: PARKER, P. J.

license: Public Domain

text:
    The People ex rel. Winsor B. French, Resp’t, v. Byron J. Town, as Receiver, etc., App’lt.

      (Supreme Court, Appellate Division, Thrid Department,

      Filed February 3, 1896.)

    1. Municipal corporations—Villases—Street Commissioners.
    The board of street commissioners has no authority to employ an attorney at the expense of the'village, and the payment of his services is not a legal charge and cannot be made a proper .item of the “current expenses."
    2. Same.
    - A warrant, issued by the board of street commissioners in payment of counsel fees, is illegal. .
    ,3. Appeal—Mandamus.
    Under section 1294 of the Code, the receiver of taxes of a village, against whom a peremptory writ of mandamus has been awarded to compel the payment of a warrant, may appeal.
    Appeal from an order grantinga peremptory writ of mandamus.
    A- W. Shepherd, for app’lt; Edgar T. Brackett (Richard L. Hand, of counsel), for resp’t.
   PARKER, P. J.

The board of street commissioners in the village of Saratoga Springs, learning that the receiver of taxes of such village had paid out from a certain fund raised on its requisition, and standing to its credit upon his books, the sum of about $6,000, upon a claim which had been presented to it, and the allowance of which was then disputed, employed the relator as an attorney to take legal measures to protect its interests in the matter. The relator rendered service under such employment, and presented a bill for the same to the board. The board allowed the bill, and, under the “item of current expenses.” procured the amount to be placed in the village tax budget for the year 1895. The sum was collected from the taxpayers, and placed to the board’s credit on the books of the receiver of taxes. Subsequently, it issued to the relator a warrant in due form directing such receiver to pay to the amount to the relator. The receiver refused to make such payment. A peremptory writ of mandamus was subsequently issued by the special term, requiring the receiver to make such payment, and from the order allowing such writ this appeal is brought.

It is manifest that, if the board of street commissioners had no' authority to employ an attorney at the expense of the village, the payment of his services would not be a legal charge, and could not be made a proper item of their “ current expenses.” The first question that presents itself, therefore, is whether such claim of authority on their part is a correct one. It is claimed by the relator that the board which so employed him was vested by the statute with the care, management, and control of all the property appertaining to the construction, maintaining, caring for, and lighting the streets of the village, and with the sole power to direct the control of the funds raised for that purpose; that it also had authority to sue for and to take legal proceedings necessary to defend such funds. Concede all these duties and powers as claimed, and yet it does not necessarily follow that the employment of counsel, at the expense of the village, to conduct such proceedings, was within the power given them. The property which it is their duty to protect is the property of the village; and the board itself is but one of the departments of the village government. It has the powers given it by statute, and those necessary to enable it effectually to perform the work and duties so imposed upon it, nothing more. The duty of employing counsel to take such legal proceedings as shall be necessary to protect the village property is given to another department of the village, to wit, the board of trustees of the village. It appears that such-department had performed that duty, and employed an attorney, whose advice and assistance was at the service of this board, and therefore there was no necessity for its employing another. Even if the right to employ counsel would ordinarily be inferred as a power incident to the duty of bringing suit to protect public funds, yet, when it appears that other provisions are made by the charter for the employment of such counsel, such inference vanishes. The necessity being removed, the incidental power would cease.

The suggestions made by the court below that the controversy was one between two branches of the village government, and that hence the employment of additional counsel was necessary, we cannot adopt. The litigation was not in fact between different departments. It was an inquiry as to whether funds clearly belonging to the village had been properly paid out by one of its officers. The interests of the village were on the one side, and the interests of those to whom it had been paid were upon the other. In such a case, evidently, the village attorney would have but one duty to perform, and would owe allegiance to but one side. His services were at the disposal of any board, whose duty it was to inaugurate such an inquiry; and such service should have been called for, instead of incurring additional and unnecessary expenses.' This precise question has been before the general term in this department in the case of Collins v. Village of Saratoga Springs, 70 Hun, 583; 53 St. Rep. 332; and it was there said, “The authority vested in the trustees to employ counsel and attorneys is exclusiveand that conclusion was reached from a line of reasoning similar to the above. Possibly, a decision of that precise question was not necessary to the decision of that case, but it was one naturally suggested by the claim made in that case, and the reasoning is satisfactory to, and is adopted by, us. It was also adopted by the court of appeals, inasmuch as the case was there affirmed upon the opinion of the general term. 140 N. Y. 637; 55 St. Rep. 931.

We conclude that the board of street commissiorers bad no authority to employ the relator, and the expense for so doing was not a proper item of their “current expenses.” It follows that the receiver of taxes was right in refusing to pay the warrant drawn against him in favor of the relator, and that the writ requiring him to do so was erroneously issued.

It is further claimed that the receiver is not a party aggrieved by the order, and cannot. therefore institute an appeal therefrom. We think he is a “ party aggrieved,” within the meaning of section 1294 of the Code. The principle involved seems to be decided in People ex rel. Burnham v. Jones, 110 N. Y. 509; 21 St. Rep. 820. It also appears that, upon the presentation to him of the writ, the respondent promptly paid to the relator the amount claimed by him. Under the provisions of Code, § 1323, we are authorized to order restitution of that amount. And, inasmuch as. we conclude the relator is not lawfully entitled to it, we have but one duty to perform in that regard. Manifestly, we must direct its restitution to the village treasurer. The order appealed from is reversed, with costs and disbursements, and an order must be entered directing the relator to refund to the receiver of taxes of the village of Saratoga Springs the amount paid by him in obedience to the writ issued therefor.

Order reversed, with $19 costs, and restitution ordered.

All concur.


author: PARKER, J.

text:
    Almon T. Wilcox et al., App’lts, v. Edward Bread et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December, 1895.)

      1. Deed—Bototoabibs."
    The conveyance of land lying adjacent to a non-navigahle lake, which describes it as running “to the "lake, and thence along the same,” to some other monument or point designated, carries the title to the center of the lake.

      2. Same.
    The statement oí the number oí acres, intended to he conveyed, was held, in this case, not to manifest an intent to cut the grantor off from the use of the water of the lake, and not sufficient to change the meaning naturally given to such language as the parties have chosen in describing such boundary.
    Appeal from a judgment of nonsuit under trial
    O. M. Reilly, for the appl’ts; Piper & Rice, for the resp’ts.
   PARKER, J.

The plaintiff’s seek to recover from the defendants for large quantities of ice taken by such defendants from Fish Lake, in the town of Granby, in Oswego county. They make this claim as owners of the land under that part of the lake from which the ice was taken, and they concede that if their title to that land fails they cannot maintain their action. They further concede that they have failed to establish such title in themselves, if the deed which George D. Wickham executed to Henry Bakeman, December 4, 1818, included within its description the land in question. The lands so described lie upon the easterly side of Fish Lake, and the question arises over the effect to be given to the language describing their western boundary, when read in connection with another statement in the same description as to the number of acres intended to be conveyed. The description is substantially as follows:

“All that tract, piece or parcel of land situate in the said town of Granby, formerly Lysander, and part or lot No. 4 in the said town, on which the said Bakeman now lives. Beginning on the Oswego river, at the southeast corner of the fifty acres sold for the defraying the expenses of the surveying the said lot; from thence up said river1” etc., through various courses, and then proceeding as follows: “From thence north, eigthy-three degrees west, forty chains and seventy-five links to Fish Lake; thence along the said lake to the north line of the said lot No. 4; thence along the same, east, twenty-five chains,” etc., through several courses, etc., ‘‘to the place of beginning, containing one hundred acres, being the number of acres thereby intended to be conveyed.”

The defendants claim that, by this description, Bakeman took title to the center of the lake, or at least so far out into the lake as lot No. 4 extended; that the part of the lake from which they took the ice was upon that part of lot No. 4 which extended under the waters of the lake; and that they had acquired, through Bakeman’s title the right to so take it. The plaintiff’s claim that, by such description, Bakeman took only to the edge of the lake, and that so much of lot No No 4 as extended westerly, and out under the waters of the lake, remained in Wickham, and that, through the will of Wickham, they have acquired his title thereto. The trial court held that, by such conveyance, Bakeman acquired title to the lands in question, and non-suited the plaintiffs, and from the judgments entered thereon the plaintiffs have taken this appeal.

It seems to be settled in this state that a conveyance of land lying adjacent to such a lake as this, i. e. not navigable, which describes it as running “to the lake, and thence along the same” to some other monument or point designated,carries the title to the center of the lake. Gouverneur v. Nat. Ice Co., 134 N. Y. 355; 47 St. Rep. 601. The decision in thatcase must control this case, unless other expressions in the description indicate a contrary or a dliferent intent. It appears as an undisputed fact in the case that there are about forty acres of lot No. 4, extending westerly, under the waters of the lake; and the plaintiff’s contend that jt was not intended that the west line should be located so far out into the lake that it would include 140 acres in the description, because it is expressly stated at the end of such description that the intent is to convey 100 acres,—in other words, that the statement of the number of acres intended to be conveyed clearly dispels the idea • that the west line was to be located any further west than the edge of the lake. But it is just as explicitly stated that the lands conveyed are to extend up to the lake, and along the lake; and the plaintiff’s counsel does not claim that; under the description, the grantee acquired title clear up to the water’s edge.. It is a conceded fact in the case that there were upwards of 103 acres included within such description, and the statement that 100 acres were intended was evidently not based upon any accurate survey made, and the adoption of the water’s edge- as the west line of the premises intended to be conveyed. The statement that 100 acres were intended to be conveyed was evidently a mere estimate as to the number of acres which the grantee was obtaining, and, more than likely, had reference alone to the acres of land, and not to the amount of water. It seems that the grantee was living on the premises conveyed. It is plain that he was to have all the land up .to the water’s edge, clear across the east end of the lake, audit is.quite improbable that the conveyance was intended to out him off from the use of such water, and also cut off the grantor from any access to it at that end of the lake. We do not think that the statement of the number of acres intended to be conveyed clearly manifests such an intent, or is sufficient to change the meaning naturally given to such language as the parties have chosen in describing their western boundary. It is true that, where-courses and distances coincide with the quantity stated together, they will control monuments named in the deed. Such are "the cases cited by plaintiffs’ counsel. Higinbotham v. Stoddard, 72 N. Y. 94. But in this ease no such harmony is shown, and it is a familiar rule that quantity is seldom resorted to for the purpose of fixing a boundary, and is rarely, if ever, permitted to control monuments or courses and distances. 2 Am. & Eng. Enc. Law, 499, 508. The lake was evidently taken as the westerly boundary of the lanc[ conveyed. It is so expressly stated in the conveyance, and such statement must be given significance which, in the absence of a clearly-expressed intent to the contrary, the rulé in this state gives it. The presumption is that the intent was to pass the title to the center of the lake, and nothing in the terms of the grant, or arising by necessary implication, has overcome it. Mott v. Mott, 68 N. Y. 246; In re Ladue, 118 id. 219; 28 St. Rep. 821. Nor do we find in the case any conflict of evidence ■concerning any fact bearing upon the question of intent that made it a question for the jury. We conclude that, by the conveyance in question, Bakeman acquired title to the lands upon which the alleged trespass by defendants was committed. The plaintiffs, therefore, had neither possession of nor title to such lands, and cannot maintain this action. The nonsuit was right, and the judgment entered should be affirmed, with costa,

affirmed, with costa

All concur.


text:
    The People ex rel. Delaware, Lackawanna and Western Railroad Company, App’lt, v. County Court of Onondaga County, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December, 1895.)

    1. Appeal—Party..
    A person, upon whose motion and in whose favor an order of the court has been granted, is “specially and beneficially interested” in upholding it within the meaning of section 2137 of the Code.
    8. Same.
    It is not the duty of the county court, upon the return of a certiorari in proceedings pending therein, to appear and defend its proceedings.
    8. Same.
    One, who has made application for laying out a highway and on whose application the decision of commissioners in favor of laying it out is confirmed, is properly admitted as a defendant on certiorari to review the proceedings relative to the highway.
    4. Same.
    But the highway commissioner, whose duty it is, when it shall be finally determined that the highway shall be laid out, to carry out such determination, should not be admitted as a defendant.
    Appeal from an order, directing that a petitioner for the highway proceedings and the commissioner of highways of the town of Geddes be made parties defendant to the proceedings on certiorari.
    Jenney, Jenney & Stolz and Benjamin Stolz, for app’lt; Gill, Stillwell & White, for resp’t.
   PARKER, J.

William A. Gere made application to the

county of Onondago county, under the provisions of section 83 of the highway law (chapter 568, Laws 1890), for the appointment of commissioners to ascertain and determine the necessity of a highway which he proposed to have laid out across the lands of this relator. The court appointed commissioners, and they filed a decision in favor of laying out such highway. Thereupon Gere, “ as a party interested in the proceeding,” under the provisions of section 89 of such law, applied to such court to confirm this decision. The court confirmed the decision, and the relator thereupon obtained a certiorari to review the proceedings so had. It was directed to the county court, and that tribunal is the only party defendant which appears on the record. Gere, and Armstrong, who was the commissioner of highways of the town in which the highway is situated, moved at special term to be brought in as parties to the proceedings on the certiorari, and an order was granted to that effect. From such order the relator appeals to this court.

Manifestly, it was not the duty of the county court, upon the return of the certiorari, to appear and defend its proceedings (People ex rel. Breslin v. Lawrence, 107 N. Y. 607; 13 St. Rep. 108), and manifestly it is but just that whoever is interested in upholding such proceedings should have an opportunity of being heaixl in answer to such writ. The provisions of section 2137 of the Code of Civil Procedure were designed to meet just such a case as this. It provides that in the discretion of the court “ a person specially and beneficially interested in upholding the determination to be reviewed ” may be admitted as a party defendant. We have no hesitation in holding that a person upon whose motion and in whose favor an order of the court has been granted is “specially and beneficially interested ” in upholding it within the meaning of that section, and judicial discretion is well exercised in giving him an opportunity to do so. Although not deciding the precise question here presented, the case of People ex rel. Burnham v. Jones, 110 N. Y. 509, 512; 21 St. Rep. 820, may be cited as approving these views. The question whether the highway commissioner should have been admitted as a party defendant is not so easily determined. When it shall be finally determined that the highway shall be laid out, it is, by section 98 of the highway law (chapter 568, Laws 1890), "made the duty of the commissioner of highways to carry out such a determination, and thereafter he has general charge of the same. But until such determination ip finally made he has no part or duty in the proceedings. Evidently the town is interested in them. It has to pay the damages assessed for opening the highway, and all the cost and expenses of the proceedings; but the commissioner seems to have no more interest than any other taxpayer. People ex rel. Bevins v. Board of Sup’rs of Warren Co., 82 Hun, 298; 63 St. Rep. 577. It is true that under section 15 of the highway law he may bring an action “in the name of the town * * * to sustain the rights of the public in and to any highway in the town,” and it may be that by virtue of such power he is the proper officer to apply to to bring in the town as a defendant in these proceedings; but, whether that be so or not, certainly beyond that he does not in any way represent the town, and has no authority for taking its place as a defendant in such proceedings.

It is suggested by the appellant’s counsel that, if we think the town is entitled to notice, we now make an order bringing it in as a party defendant in the proceedings. That can.be done, under the provisions of section 2137, supra, only by the court before which the certiorari is brought to a hearing. It cannot be done upon this appeal. We conclude that the petitioner, Gere, was correctly made a defendant in the proceedings, but that the commissioner, Armstrong, had no such interest as warranted his being made a party.

All concur.

So much of the order appealed from as make Commissioner Armstrong a party defendant in the proceedings is reversed. In all other respects it is affirmed. No costs are allowed to either party.


author: VAN BRUNT, P. J. INGRAHAM, J.

text:
    Marshall S. Driggs, Resp’t, v. Robert J. Dean et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Warehouseman—Transferee—Storage.
    Where a party becomes the owner oí warehouse receipts, upon the face of which is a promise to pay storage at a certain rate, he is under an obligation to pay the storage incurred under the contract entered into by his assignor which accrued before, as well as after, the transfer of the receipts.

      2. Same.
    In such case, an implied contract to pay the storage will, under the circumstances, necessarily arise.
    Appeal from an order granting a motion made on the minutes to vacate the same, and direct a new trial.
    L. E. Warren, for app’lts; John Berry, for resp’t.
   VAN BRUNT, P. J.

The plaintiff in this action sues to recover for the storage of a large number of barrels of cement. The answer was a general denial; and upon the trial the case was submitted to the jury, and the jury rendered a verdict in favor of the defendants, and the court thereupon, on the plaintiff’s motion, directed a new trial. There is no dispute as to the facts, and the only question is whether, upon the facts, any liability of the defendants for this storage was established. In March, 1885, the plaintiff was a public warehouseman, doing business in the city of New York. On the 28tb of said month, one Yon Angern, the owner of a large number of barrels of cement, placed the same in plaintiff’s warehouse upon storage, agreeing to pay at the rate of four cents a barrel per month, and taking two warehouse receipts therefor. On these receipts were indorsed conditions upon which the goods were held on storage, in accordance with the provisions of chapter 326 of the Laws of 1858 that the receipts might be transferred by indorsement thereon, and that the person to whom they were so transferred should be deemed and taken to be the owner of the goods therein specified, so far as to give validity to any pledge or transfer made or created. In July, 1885, Yon Angern made his promissory note for $3,500, payable to the Chemical National Bank, three months after date, and pledged to said bank, as security for the payment of said note, the said two warehouse receipts. Upon this note the defendants indorsed their guaranty of payment upon transfer to them of said note, and of the right and title of said bank in and to the collateral securities specified or referred to therein, if requested at the time of such payment. Yon Angern failed to pay the note at maturity, and the bank called upon the defendants to pay it, which they did, and the bank transferred and delivered to them the note and the warehouse receipts, with the indorsement thereon. Subsequently, and in October, 1885, the said warehouse receipts were presented to the plaintiff by one of the defendants, named Wills, he at the time making the remark, “Well, I suppose we’re stuck,” and stating that he wished to examine the goods, which he did. At this time the plaintiff’s bookkeeper asked the defendant Wills whether he should make out bills for thh accrued storage, to which Wills replied: “Yes, you had better.” The bills were accordingly made out, and given to Wills by the plaintiff’s bookkeeper,- Wills swearing that they were made out to Yon Angern. Subsequent to this time, the defendants offered to sell the goods, and the plaintiff, under their authority, allowed the same to be examined. On the "16th of January, 1886, the defendants sued the plaintiff upon the allegation that the merchandise represented by the warehouse receipts issued by him to Yon Angern, of which they had become the owners by reason of the transactions above stated, were not barrels of cement, as described in said warehouse receipts, and were not of materials that could be used as cement, and further alleging, on information and belief, that Driggs had so carelessly .and negligently cared for and stored the merchandise covered by said receipts as to cause the same to be worthless and without intrinsic value; and that the defendants, by reason of such carelessness, had suffered damage to the amount of $3,500, with interest. The plaintiff in this suit (the defendant in the action last above mentioned) answered, and, after various vicissitudes, it was finally determined that the defendants in this action had no cause of action against the plaintiff by reason of the matters set forth in . their said complaint. The merchandise covered by the receipts having remained on storage during all this time, and storage having^ accumulated thereon, this action was brought against the defendants as owners to recover the amount of such storage. Upon the first trial of the action, the complaint was dismissed at the close of the plaintiff’s case. This was reversed by the general term, and upon the retrail the jury" rendered a verdict in favor of the defendants, which was set aside by the trial judge upon motion, and from the order thereupon entered this appeal is taken.

It was claimed upon the argument of this case that there were some misapprehensions of fact by the general term, and that differences exist between the case as now presented and as it was presented to the general term. We do not see, upon an examination of the evidence, that there was any mistake or misapprehension upon the part of the general term in regard to the facts of the case. The evidence discloses that the defendants were insisting upon their rights as the owners of the merchandise. They knew that it had been stored; and I think we may take judicial noticé of the fact that the storage business is not conducted for pleasure, but for profit. It appeared upon their muniments of title that a certain rate of storage was to be paid upon these goods; and they knew that the warehouseman would be entitled to look to somebody for the payment of these storage charges. The defendants held the receipts, claimed to be the owners of the goods, demanded damages against the plaintiff, upon the ground that they were the owners of the goods, and the plaintiff was bound to hold the goods subject to the presentation of the warehouse receipts of which the defenants were the owners. It appeared upon the face of these receips what the storage would be; and if the defendants succeeded to the rights of Von Angern, as owner of the goods, it is difficult to see why they did not succeed to his obligations to pay the storage called for by these receipts, from the time they became owners thereof. It is a familiar principle in respect to landlords and tenants that, where a lease is assigned, the assignee is liable to the landlord for the rent prescribed in the lease as long as he remains the assignee and holder of the lease. He may terminate that obligation by assigning the lease, even to an insolvent person. Smith, Landl & Ten. 294. So, in the case at bar, the defendants became the owners of these warehouse receipts, upon the face of which was a promise to pay storage at a certain rate; and as long as they held these receipts, and claimed the ownership thereof, and of the merchandise therein represented, I am unable to see why they were not under an obligation to pay the storage incurred under the-contract entered into by their assignor. These goods were being held by the plaintiff for the benefit of the defendants; and if there was no express contract, he keeping' them there on storage, virtually at the defendant’s request, because they held the warehouse receipts and had a right to demand the possession of the goods, an implied contract to pay the storage would, under the circumstances, necessarily arise. It was not disputed that the rate of storage charged was reasonable; and it would seem therefore, certainly for the time in which these goods were stored and the defendants were the owners of the same, that the plaintiff would have the right to look to them for compensation for the service which he was rendéring to them.

The order appealed from should be affirmed, with costs.

WILLIAMS and O’BRIEN, JJ., concur.

INGRAHAM, J.

“If Dean & Go. stopped there, and never put themselvefe in privity in any way with Driggs, if they never went to Driggs and demanded possession of the goods, or did anything with them to indicate the exercise of any ownership or control of that property, then Driggs could not hold Dean & Co. for and storage accruing after the 24th day of October1. Something must have been done on the part of Dean & Co. to indicate that they would take posssion of the goods, that they would control them, that they would hold them, that they would exercise the right which they were entitled to, because up to that time there was no privity existing between them. * * *-Now, if they did that, if they exercised those acts of ownership, if they did anything which induced Driggs to continue the storage of those barrels on the account of Dean & Co., then Dean & Co. would become responsible for that storage for as long as the article remained there.”

And then, after calling the attention of the jury to the facts as testified to by the witnesses for the respective parties, the court said:

“There is no express promise proven in this case on the part, of Dean & Co. to pay any storage, and the right of recovery would depend on there being a contract to be implied from the facts that I have suggested, and from the situation that I have outlined; and if you find that Dean & Co. did take possession of those goods, did exercise acts of dominion over them as owners, did keep Driggs in the position in which he claims to have stood, namely, that of retaining those goods in his storehouse during all these years, relying upon what was done by Dean & Co., then there would be a basis from which you could imply a contract; and, if you find the contrary, the defendants would be entitled to a verdict.”

Counsel for the plaintiff then asked the court to charge the jury that the transfer of ' these wareho'use receipts to Dean & Co. by endorsement and delivery, vested in them the legal title and the right of possession; and that the court charged. The jury having found a verdict for the . defendants, the court was not justified in disturbing that verdict if it was fairly sustained by the evidence, unless there was error in the rule of law laid down by the court in submitting the question of fact to the jury. It a]>pears from the evidence that one Von Angern stored with the plaintiff on March 28, 1885, certain barrels of what purported to be Portland cement, and on July 21, 1885, made a promissory note, whereby he promised to pay to the Chemical National Bank $3,500, and deposited with the bank, as collateral security, warehouse receipts issued by the plaintiff representing the 2,250 barrels of Portland cement deposited with them as aforesaid; and the defendants guarantied the payment of the note upon the transfer to them of the said note, and the right, title, and interest of the bank in and to the collateral security specified or referred to therein. When the note became due, Von Angern had disappeared, whereupon the defendants paid the face of the note to the bank, and received from it the note and the warehouse receipts deposited with the bank. After the defendants thus become possessed of the warehouse receipts, properly indorsed by Von Angern, one of the defendants sent a broker to examine these goods, and he himself examined them. They also made an offer to sell them, and gave an order to proposed purchasers to examine the goods in the plaintiff’s warehouse. At the time of the defendant’s visit to examine the goods, he told the plaintiff that he could not find Von Angern; that defendants held the warehouse receipts representing that amount of cement, and ask§d to see it; and he then examined the cement. He told the plaintiff that he held the receipts as collateral security for a loan. The plaintiff then gave him bills made out to Von Angern for the storage due up to that time. The defendant did not ask for the bills, but they were handed to him by the plaintiff. It also appeared that in January, 1886, the defendants commenced an action against the plaintiff, in which they alleged the delivery of the two warehouse receipts by the defendant to Von Angern, calling for 2,463 barrels of Portland cement; the loan by the Chemical National Bank to Von Angern, with deposit of warehouse receipts as security ; and the guaranty of that loan by the plaintiff, and the payment thereof, and the receipt by the plaintiff of such warehouse receipts from the Chemical Bank, with notice thereof to Driggs, and an examination of the goods held by Driggs; that the goods so held by Driggs were not Portland cement; that the defendant did carelessly and negligently care for and store the said merchandise covered by the said warehouse receipts in such manner, and by his fault, as to have caused the same to be worthless, and thereby caused the plaintiff to suffer loss and damage to a sum equal to the $3,500, with interest. That action was ultimately determined in favor of Driggs, and against these defendants. This is a statement of the facts as testified to by the defendants; and, the jury having found for the defendants, we must assume them to have been established.

The plaintiff seeks to sustain the order of the court setting aside the verdict, on the ground that, assuming these facts to be true, the plaintiff was entitled to the direction of a verdict in his favor, and that is the question argured and which we have to determine. The decision of the court on the former appeal to the general term Shat the defendants took possession of the goods on October 24, 1885, having ordered bills to be made out for past storage, seems to have been based upon the existence of that fact. It ' now appears that the defendants did not order the bills to be made out, but simply received the bill to Yon Angern for the storage up to that time. It was necessary that the defendants should know how much was due in order to determine whether they would take possession. The question, then, presented to us, which we must determine, is whether or not the finding of the jury that the defendants did not take possession of the goods was without evidence to support it, and whether the failure of the defendants to take possession was fatal to the plaintiff’s right of recovery.

As before stated, the court', on the trial, stated that the right to recover must depend upon a contract, express or implied, and that, unless the jury find that the defendants did take possession of the goods, no contract could be implied I do not understand that the respondent disputes the proposition that there must be a contract between the plaintiff and the defendants whereby the defendants agree to pay this storage, either express or implied. But it is claimed here that, upon the evidence most favorable to the defendants, the defendants did assume the constructive possession, and did assert their right to the actual possession, and thus assumed ownership on the 24th of October, and that therefrom the law will imply an agreement to pay the storage. I do not consider it very material to determine just what title vested in the defendants upon the transfer to them of the warehouse receipts. It is conceded that the title to the goods represented by the warehouse'receipts passed to them by the payment of the loan made by the bank, and the delivery of the warehouse receipts, and that they had a right to the possession of the goods, a right to sell them, and apply the proceeds to the payment of the amount that they had paid to the bank. And I think it clear that, had the defendants actually taken such possession, exercised any visible acts or ownership over them, such as having them transferred to their own name, surrendering the receipts; and taking out new ones, or any other act that indicated an intention of assuming the actual possession and legal title to which they were entitled, such an act would be, in substance, a redepositing of the goods with the warehouseman, and upon that a contract would be implied to pay the storage' charges. But it seems to me equally clear that the mere fact of -the vesting of the title in the defendants, as security for the repayment of a loan of money, or the vesting of the right to take possession in the defendants, without some act of theirs which brought them into actual contractual relationship with the plaintiff, would not imply an agreement to pay the charges. It is the actual possession, as distinguished from the right of possession or legal title, from which the inference of a contract arises. Prior to the time the defendants did actually take possession of the goods, their rights were fixed by the factor’s act (Laws 1858, c. 326, § 6), which provides that such warehouse receipts may be transferred by indorsement thereof, “and any person to whom the same may be so transferred shall be deemed and taken to be the owner of the goods and merchandise therein specified, so far as to give validity to any pledge, lien or transfer made or created by such person or persons.” Thus, the 'defendants were the owners so far as to enable them to sell and transfer a good title to this cement. They, however, made no sale of it, and it seems to me clear that their liability must depend upon the fact whether or not they did take such actual possession of the goods as to create a contractual relation between themselves and Driggs. Did they take such possession ? I think it clear that, assuming the facts sworn to by the defendants are true, no such possession was ever taken. Under the statute, as before stated, they had the right to sell the goods without taking possession. They were deemed and taken to be the owners of the cement so far as it gave validity to any transfer made by them. And for that purpose, and without taking the actual possession, they had a right to examine the cement, and to send persons to whom they offered it for sale to examine it. There is nothing in this attempt to sell to establish .conclusively that they were in possession, as, under the statute, they had a right to make such a sale without taking possession. Assuming that they had, the day after they received these warehouse receipts, sold this cement to one of the persons whom they had sent to examine it, and transferred to him the warehouse receipts, could it be said that these defendants would have continued liable for the storage during the time that such vendee had allowed it to continue ? I think clearly not. Was the Chemical Bank liable to this plaintiff for the storage of this cement ? It had taken these warehouse receipts as collateral security, had transferred thorn to the defendants, had exercised the same acts of ownership over the cement as did the defendants, with the "exception of the examination that the defendants made of it, and the fact that they sent persons to' whom they had offered the cement for sale to examine it. But as they had a right to sell under the statute and give a good title, and as they had a right themselves to examine the cement, to ascertain whether or not it was there, I do not think that either of those acts was sufficient to establish conclusively the fact of possession. The plaintiff was at all times protected. He could at any time have called upon those interested in the cement to pay the charges, or have sold the cement in default of such payment; and there is nothing to show that he was justified in any way in relying upon the responsibility of the defendants for the charges, or that the defendants did any act to justify him in assuming that they would be responsible. The action brought by the defendants against the plaintiff on the warehouse receipts was an express disaffirmance of their having taken possession of the cement The foundation of that action was a representation that the plaintiff had made in his warehouse receipts that he had received Portland cement, and that the defendants, relying upon the said warehouse receipts, guarantied the payment of the note to the Chemical Bank, and were thus compelled to pay the same; that they had demanded an inspection of the cement covered by the receipts, but that the cement stated by the plaintiff at the time of the examination and inspection to be the goods covered by said receipts was not Portland cement, and vyas worth less than the amount that the plaintiff claimed as storage for the cement, which was a lien upon the cement, and therefore defendants suffered damage to the amount that they had been compelled to pay to the bank. This was, .if anything, a disaffirmance of the right to the possession of the cement, and an allegation that such right would be valueless, as the defendants claimed a lien upon it for storage in excess of its value.

I think it clear, therefore, that a question was presented for the jury to determine whether or not the defendants did take actual possession of the cement on the 24th of October, 1885, or subsequent thereto, by which an implied contract to pay would be inferred; and that, the jury having found that no such possession was taken, no contract could be inferred, and the defendants were not liable. As before stated, the respondent does not claim that such a contract could be implied in the absence o£ some act of the defendants by which they could take possession of the cement.

It has been suggested that there is an analogy between this case and the case of-an assignee of a lease-where such assignee becomqs liable for rent; but such liability only exists where the assignee of the lease has entered into possession of the demised premises, and it exists only so long as he continues in such actual possession, receiving the rents and profits thereof. See Damainville v. Mann, 32 N. Y. 206, where, upon a review of all the cases, it was held that possession of the demised premises is necessary before an obligation to pay the rent or any part of it arises. And, to show how material the possession of the demised premises is, in that case it was held that the assignee of an undivided interest of the lessee, who was in possession of the premises, and received all the rents and profits, was liable for the whole rent, and the lessee of the other portion, who received no part of the rents, was not liable for any of the rent, the court saying:

“ While the assignee in possession has all that is useful of beneficial issuing out of the lands, he should, upon the most obvious principles of justice, be required to pay the rent reserved as the condition of his enjoyment.”

And it has been expressly held that a mortgagee of a lease, although in possessipn, is not liable for the rent reserved by the lease.

I think the jury were justified from the evidence in finding that the .defendants did not take possession of-the property, and did not exercise any acts of ownership over it, and that, upon those facts being found, no contract, express or implied, existed whereby the defendants were individually bound" to pay the storage; and, upon the verdict of the jury, the defendants were entitled to judgment, and therefore the order granting a new trial should be reversed, with costs.


author: PARKER J.

text:
    Baum’s Castorine Company, App’lt, v. Fred. A. Thomas, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December, 1895.)

    1. Pleading—Counterclaim—Sham.
    A counterclaim cannot be stricken out as sham under section 538 of the Code.
    2. Appeal—Justice’s court—New trial.
    When a counterclaim is sufficient and proper upon its face, though it may be false in fact and pleaded for the mere purpose of obtaining a new trial on appeal, such question will not be tried upon affidavits in the county court.
    Appeal from an order denying plaintiff’s motion to strike out as sham the counterclaim in defendant’s answer and to transfer the case from the trial to the law calendar.
    O. M. Reilly for app’lt; C. I. Miller, for resp’t.
   PARKER J.

The first question presented by this appeal is whether the counterclaim in defendant’s answer should have been stricken out as sham, under the provision of section 538 of the Code of Civil Procedure. That section allows a “sham answer or a sham defense” to be stricken out on motion. But a counterclaim is not a defense, as the word is used in relation to pleadings. In section 500 it is provided that an answer may contain a statement of new matter constituting a “defense or counterclaim,” thus making a clear distinction between the two. The same distinction is found in section 507, and the very definition of a “counterclaim,” as given in section 501, shows that it is not included within the term “defense.” For this reason it has been held that a counterclaim could not be stricken out as sham under section 152 of the Code of Civil Procedure, which embodied substantially the same provisions as are now contained in section 538 of the Code of Civil Procedure. Collins v. Suau, 7 Rob. (N. Y.) 94; Fettretch v. McKay, 47 N. Y. 427.

The next question presented is whether the action should not have been transferred from the trial calendar to the law calendar, and a new trial denied to the defendant in the county court. It has been held that when a counterlaim is clearly demurrable, as in Denniston v. Trimmer, 27 Hun, 393, and in Moore v. Trimmer, 23 St. Rep. 2, or when the action is such that a counterclaim is not permitted in it, as in Harvey v. Van Dyke, 66 How. Prac. 396, and in Hinkley v. Railroad Co., 42 Hun, 282, it does not warrant a new trial in the county court; and that a motion to transfer the case from the trial calendar to the law calendar is proper practice, and should be granted. Those cases, however, do not reach the question here presented. But in Fuller v. Brierley, 36 How. Prac. 47, and in Thompson v. Pine, 5 Hun, 647, it is held that when the counterclaim is sufficient and proper upon its face, although it may be false in fact, and pleaded for the mere purpose of obtaining a new trial on appeal, that question will not be tried upon affidavits in the county court. The Code of Civil Procedure (section 3068) provides that whenever, in an action brought in a justice’s court, judgment for more than $50 is demanded in either pleading, the appellant shall be entitled to'a new trial, if in his notice of appeal he demands one. Here,-in plain language, is a strict right given to either party; and, unless it appears that the counterclaim is an improper and unwarranted pleading in the action, that effect should be given to it which the statute so plainly directs. It is true, that, under such a rule, the right so given may sometimes be abused, but" so would the practice allowing the truthfulness and good faith of a counterclaim to be assailed by motion and upon affidavits in the county court. We conclude that the rule adopted by the court in Thompson v. Pine, above cited, is the proper one, and we are not disposed to differ from it. The order of the county court is correct, and should be affirmed, with $10 costs and disbursements against the appellant.

Order affirmed, with $10 costs and disbursements.

All concur.


text:
    David K. McCarthy et al., Resp’ts, v. Frederick P. Ockerman, as Sheriff, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December, 1895.)

      1. Replevin—Affidavit—Sufficiency.
    An affidavit in replevin, which alleges that plaitiff is “the owner and and entitled to the possession of” all the goods of a certain firm, is not had for insufficiency of description and will be construed to mean the property which recently belonged to said firm.
    B. Same—Not maintainable. . 1

    No action to replevy from the sheriff goods replevied by him can be mant ined.
    Appeal from a judgment in favor of plaintiffs, rendered upon decision of the court after a trial by jury.
    Perkins & Parsons, for app’lts; Wilson & Wells, for resp’ts.
   PARKER, J.

Manifestly, the plaintiffs in this action stand in the position of a third party claiming goods that the defendant claims to hold under replevin process issued to him as sheriff of Broome county; and, within the provisions of sections 1709 and 1710 of the Code of Civil Procedure, this action cannot be maintained against the defendant if his claim in that respect is correct. The plaintiffs, however,' insist that the requisition issued to the defendant does not authorize him to take the goods in question, and that it is utterly invalid, for want of a sufficient description of the property in the affidavit upon which it was issued. The affidavit states that the plaintiff in that action, William Beach, is the owner and entitled to the possession of “ all the dry goods, notions, carpets, wall paper, crockery, boots and shoes, groceries, fixtures, safe, and the personal property and effects of Parsons & Beach, in the Birdsall Block, in the said village of Whitney’s Point,” etc., and no more specific description of property is given therein. Upon such affidavit is indorsed a direction to the sheriff, Ockerman, the defendant in this action, “ to replevy the chattels described m thé within affidavit.” The action brought by Beach, and in which such requisition was issued, is brought against one member of the firm of Parsons & Beach and the Seymours, who then claimed to hold the property for the firm. Beach’s right to the property is based upon a bill of sale thereof, claimed to have been executed by the firm to himself; and the parties against whom the requisition issued are parties claiming to represent the firm, and to hold the goods for it.

The plaintiffs in this action contend that in the process in question the only property described or directed to be taken is the property of “ Parsons & Beach,” and that, inasmuch as the property in question did not belong to “ Parsons & Beach,” it is not described, and is not included within the requisition. It is not to be supposed that William Beach, by the use of the phrase “goods,” etc., “of Parsons & Beach,” intended to describe the property which he sought to replevy, as being then owned by Parsons & Beach. A few sentences before this phrase occurs, he had sworn that such property was owned by himself, and that he was entitled to the possession thereof; and a few sentences thereafter he swears that such property was wrongfully detained from him by or on behalf of such firm. Bead in such connection, the fair interpretation of such affidavit is that by the phrase “ the goods,” etc., of “ Parsons & Beach,” was meant the property generally known as theirs,(and that the property really intended to-be described was' all the property then in the building known as the “ Birdsall Black,” at Whitney’s Point, which recently belonged to such firm, and which they still claim to own and hold. Being so construed, we do not think that the requisition issued upon such affidavit was invalid.

As against the firm of Parsons & Beach, or those claiming to hold for them, the sheriff would be protected in taking any property in the Birdsall Block, so formerly owned and then held and claimed by them. No trouble need arise as to his identifying the property intended. All property answering to that description was to be taken, and, if a dispute arose over any particular article, the question to be determined was simply whether it had formed part of their stock, and was still held and claimed by such firm. That was a fact which could be easily ascertained, and thus the means were at hand by which the sheriff could easily and effectually identify each article he was to take. There does not seem to be any reason, therefore, for holding the description insufficient or the requisition invalid.

Although the plaintiffs in this action had, prior to the issuing of such writ,, notified Parsons & Beach that they had rescinded the sale to them of the goods in question in this action, and had demanded from them a return thereof, nevertheless there had not as yet been any change of possession. The sheriff found such goods, when he executed the writ in question, in the Birdsall Block, in the possession of Parsons & Beach, and claimed by them to be a part of their stock, and there is no dispute but that they had been part of such stock intermediate the sale to them and its rescission by these plaintiffs. Nor is there any doubt but that the sheriff, the defendant in this action, took them upon such requisition, as part of the stock of Parsons & Beach, and made no claim to hold them, except by reason of such requisition. It is substantially so found in the ninth finding of fact, and so the evidence discloses. As against Parsons & Beach, the sheriff had the right so to take them ; and, because of such right, they come within the provisions of sections 1709 and 1710 of the Code of Civil Procedure. They had been replevied by the sheriff, and hence no action to replevy them from him can be maintained. For this reason the judgment in the court below should be reversed, and a new trial granted, with costs to abide the event.

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

All concur.


author: PER CURIAM.

text:
    Edward C. Quigg, App’lt, v. International Shirt and Collar Company, Resp’t.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb 26, 1896.)

    Appeals—Inferior courts—Security.
    Upon an appeal from a judgment of the general term in the city court of. New York to the appellate term, security is not necessary.
    Appeal from a judgment for defendant, and motion by respondent to dismiss the appeal for failure of appellant to give security.
    Fromme Bros., for app’lt; D. Leventritt, for resp't.
   PER CURIAM.

Appeals from judgments of the general term of the city court of New York are governed by the provisions of sections 1340 and 1341 of the Code of Civil Procedure, together with the further provisions of titles 1 and 3 of the twelfth chapter of that act (Code, § 3192), except as modified by Code, §§ 3193, 3194. These latter do not affect the question before the court, viz. whether security is necessary to perfect such an appeal. Section 1340 of the Code (amended, Laws 1895, p. 840, c. 946) provides for appeals (such as the present) from “inferior and local courts heretofore heard by the court of common pleas for the city and county of New York,” etc., to the supreme court, after January 1, 1896 ; and the hearing and determination of such appeals is had at the appellate term. Code, § 3191, subd. 1. To perfect such an appeal, security is not required. Code, § 1341. Under former statutory conditions, security to perfect an appeal from a judgment of the city court of common pleas was held to be essential. Carling v. Purcell, 3 Misc. Rep. 55; 51 St. Rep. 835. But by the amendment noted the call for such security was made to cease with the existence of that court, and with the beginning of the present appellate practice.

Motion denied, with $10 costs.


text:
    William Haux et al., etc., Resp’t, v. Dry Dock Savings Institution et al., App’lts.

      (Supreme Court, Appellate Divison, First Department,

      Filed March 6, 1896.)

    Trust—Deposit in bank—Attention.
    Whether or not a trust is created, depends upon the intention of the donor at the time of the opening of the account and of the deposits made in the bank, and such question is a question of fact, to be determined in each particular case from the acts and declarations of the parties and the circumstances surrounding the transaction at the time of the performance of the several acts.
    Appeal from a judgment in favor of plaintiffs.
    This action is brought to have the question adjudicated whether or not the several deposits made by the said William Haux, deceased, with the defendant the Dry Dock Savings Institution, constituted a trust or trusts, and also to have determined the rights and interests of all the parties to this action in the fund created by said deposits, and to have the defendant the Dry Dock Savings Institution ordered and directed to deliver said fund in accordance with the decision in the premises. On the 3d day of January, 1870, William Haux, deceased, the father of Rosa, Charles, and Henry Haux, deposited with the Dry Dock Savings Institution the sum of $10, “in trust for Rosa, Charles, and Henry Haux”; and subsequently and until April, 1892, the said William Haux, deceased, made other deposits, which at the time of his death amounted to the sum of $3,000. The evidence shows that all the alleged beneficiaries are dead; that they all died during the lifetime of William Haux, the father; and that before the death of any, after the death of each and after the death of all, deposits were made to this account It is also shown that the deposits in this account changed in nature and extent during the year 1886. Until that time the deposits were made up of the savings of the children of William Haux, including the savings of Mina and Katherine Haux, neither of whom is mentioned among the alleged beneficiaries. After and during 1886, the deposits were of much greater amounts, and these amounts were drawn from and comprised the entire profits of the business of William Haux, thé father, and the interest drawn from the German Savings Bank. The evidence showed that William Haux had an account in his own name in the German Savings Bank; that it was his custom to deposit the profits of his business therein, and that he continued to do so until it reached the $3,000 limit; that subsequent to the time when this account reached $3,000, and subsequent to the payment to Rosa and Henry Haux of $100 each, William Haux began, in August, 1886, tq make the large deposits of profits and interest in the Dry Dock Savings Institution above referred to. From 1870 until the death of William Haux, Sr., the pass books of this account in dispute always remained vin his possession or subject to his control, and on one occasion he withdrew $197.36 from the account, thereby reducing the amount of money therein to the $3,000 limit. On the same day, m January, 1870, when the account in dispute was opened, William Haux opened another account in the same institution. “William Haux, in Trust for William Haux”- and the pass book of this account was delivered to William Haux, Jr., his son, and always remained in his possession or subject to his control. It was further shown that when William Haux, Sr., made arrangements to have his will drawn, he stated to Dr. Hillert that he had money deposited in the German Savings Bank and in the Dry Dock Savings Institution, and that William Hátix, Sr., had no account in the Dry Dock Institution except this alleged trust fund.
    H. M. Hitchings, for app’lts; Joseph Rowan, for resp’ts.
   PER CURIAM.

The rule now established in this state is that whether or not a trust was created depends upon"the intention of the donor at the time of the opening of the account and of the deposits made in the bank; and that question is a question of fact, to be determined in each particular case from the acts and declarations of the parties and the circumstances surrounding the transaction at the time of the performance of the several acts. Cunningham v. Davenport, 147 N. Y. 43; 69 St. Rep. 302. We think: it clear in this, case that there was evidence before the trial court to sustain his findings that there was no intention upon the part of the depositor to create a trust in respect to the balance remaining in bank at the time of his death, and that that finding should not be interfered with on appeal.

The judgment, therefore, should be affirmed, with costs.


text:
    In the Matter of the Application for the Voluntary Dissolution of the Hitchcock Manufacturing Company.

      (Supreme Court, Appellate Division, Third Department,

      Filed Feb. 5, 1896.)

    1. Corporation—Dissolution—Deceiver.
    Where, in an application for the voluntary dissolution of a corporation as insolvent, its directors file a schedule under § 3431 of the Code, from which it appears that the assets exceed the liabilities by a large sum, the appointment of a temporary receiver is unauthorized by § 3433 of the Code.
    2. Same—Schedules—Amendment.
    In such case, an amendment of such schedule four months afterward, and after the plant was in disuse, upon affidavits showing that the real and personal property and the choses in action in possession of the temporary receiver were not sufficient to pay the liabilities, is not authorized by § 3437 if the Code, as amended in 1894.

      Appeal from an order denying a motion made by the First National Bank and other creditors of the corporation to vacate and set aside orders appointing temporary receivers, granting an injunction against the creditors, and allowing the schedule to be amended nunc pro tunc.
    Dougherty & Miller (I. H. Maynard, of counsel), for app’Its; . J William Wilson, for resp’ts.
   LANDON, J.

The petition of the directors of the manufactur ing corporation the Hitchcock Manufacturing Company, upon which the orders appointing temporary receivers of the company and granting an injunction against creditors were made by the special term, is challenged upon the ground that the allegations thereof fall short of the requirements of the Code (sections 2419-2431) relating to proceedings for the voluntary dissolution of a •corporation. The petitioners first allege that they contitute all the directors of the company, having the management of its concerns, and their petition thus proceeds:

“That your petitioners have discovered that the stock, effects and other property of said corporation are not sufficient to pay all just demands for which it is liable, or to afford a reasonable security to those who may deal with it; and they deem it beneficial to the interests of the stockholders that the said corporation should be dissolved. That the principal office of the said, corporation is located in the village of Cortland, Cortland county, New York. That your petitioners have annexed to this petition a schedule, marked ‘schedule A,’ containing a statement of the matters required by section 2491 of the Code of Civil Procedure, as far as your petitioners know, or have the means of knowing, the same. Wherefore your petitioners pray for a final order of this court dissolving the said corporation, and appointing James Devine and Caleb B. Hitchcock receivers of its property and effects, and for such other and further relief as may be proper.”

The paragraph first quoted is a sufficient compliance with section 2419, authorizing the presentation of the petition. Section 2421 provides that the petition “must state the reasons which induce the petitioner or petitioners to desire the dissolution of the corporation.” The petition does not, in terms, allege that the facts which, under section 2419, authorize them to make the petition, constitute the reasons that section 2421 requires them to state, which induce them to desire the dissolution of the corporation. The facts which give them the right to petition might be widely different from the real reasons which induce them to desire the dissolution of the corporation. In re Pyrolusite Manganese Co., 29 Hun, 431, it was held “that something more than a statement in the language of the statute was required,” and that the reasons must be given showing why the dissolution of the corporation was desired.

But we pass from this criticism to matters of greater substance. Section 2421 requires that a “schedule must be annexed to the petition containing the following matters,” and then follow seven specifications of requirements, the object of which is to secure a schedule of all the assets and liabilities of the company, with such fullness of detail as well, as nearly as is practicable, clearly and truthfully present the actual financial situation of the corporation. Here a schedule is presented, not above criticism as to some of its important items, from which it appears that the assets of the company were, at the date of the petition, $278,231.64, and its liabilities, $189,887.67, thus leaving a surplus of assets of $88,343.97, and thus showing that the corporation was solvent. Section 2433 provides:

“If it shall be made to appear to the satisfaction of the court that the corporation is insolvent, the court may at any stage of the proceeding, before the final order, on motion of the petitioners, on notice to the attorney general, or on motion of the attorney general on notice to the corporation, appoint a temporary receiver of the property of the corporation.”

The special term, upon the presentation of this petition and schedules, verified by the affidavits of the petitioner, appointed temporary receivers. It is plain that no case was made showing the insolvency of the corporation, and therefore no case for a temporary receiver. If no receiver should have been appointed, no injunction against the creditors of the corporation should have been granted. Section 2423; In re Binghamton General El. Co., 143 N. Y. 261; 62 St. Rep. 154. The motion of the appellants, creditors of the' Hithcock Manufacturing Company, to vacate the orders above referred to, was based upon the original papers upon which the orders were made, and affidavits to give them a standing in court. The orders sought to be vacated were entered July 15, 1895. The motion to vacate came on to be heard November 18, 1895. The counsel for the receivers and petitioners moved for an amendment of the schedule attached to the original petition of the directors, and for leave to read affidavits in support of such motion. The court permitted two affidavits to be read. One of these affidavits, verified November 22, 1895, was made by one of the directors who made the original petition and schedules, and who was appointed one of the temporary receivers. He states in his affidavit “that the values of the real, and personal property mentioned in the shedule and inventory attached to the petition were taken at-the amounts which the same cost, including repairs and betterments, and the choses in action were taken at their face value as appeared on the books of said corporation; that the real value of said real and personal property is much less than the sum stated in said schedule and inventory, by reason of the deterioration thereof by use and improvements in machinery, and the fact that they are adapted to manufacturing purposes only, and of little use for other purposes than those for which they were intended ”; but the amount of such deterioration is not stated, and he adds that the choses in action therein set forth would not exceed in value 50 per cent, of the value thereof stated in the inventory. The affidavit of the other temporary receiver was also read, in which he states that from his investigations made since his appointment “ he is of the opinion that the real property mentioned in said inventory at the value of $158,300 is of a real value not exceeding thirty per cent, of said sum, or about $47,-490, * * * and that the personal property other than those choses in.action mentioned in the inventory at the value of $96,-030.19 is of a real value not exceeding two-thirds of said sum, or about $64,020.13; * * * that"the real value of the total assets of said Hitchcock Manufacturing Company on said 13th day of July, 1895, did not exceed the sum of $107,455.81, * * and that, in deponent’s opinion, on the 13th day of July, 1895, said Hitchcock Manufacturing Company was hopelessly and irretrievably insolvent.” The special term in- the order as finally settled, ordered that the schedule attached to the original petition be amended to conform to said affidavits by adding thereof nunc pro tunc the following:

The value of assets are stated at their nominal or face value. The real value of said assets is as follows, viz. :

Real property, about.....................*.... $47,490 00

Personal property, other than choses in action, about.................................. 64,020 13

Book accounts and choses in action............. 11,950 72

Total amount of real assets................$123,460 85

The notice of appeal brings up this amendment for review.

We think these affidavits ought not to have been received to support orders based upon a different statement of facts. They were made more than four months after the appointment of the receivers, and in contemplation of the fact that the purposes for which this property was especially fitted no longer gave it value. We think what it was worth as a wreck was not evidence of its value as a plant before the wreck occurred. The original petition and schedule were verified in respect to an active, organized, productive property. Four months later -it was the property of a company apparently in the final stages of dissolution. We think the change in value thus wrought should not be resorted to to make a case which the original affidavits did not present. Besides, the amendment made in the schedule was not authorized by the Code of Civil Procedure. Section 2427 provides, as amended in 1894:

“ That the court may, at any stage of the proceedings before final order, on the application of the petitioners or a majority of them, or on application of the temporary receivers, grant an order amending the schedules annexed to the original petition, by the insertion of additional items, or by making the statements or inventory fuller and.in greater detail than as originally filed, with the like effect as though said petition and schedule had been originally presented and filed as amended.” Laws 1894, p. 474.

The amendment is not in any just sense the insertion of “ additional items," “ making the statements or inventory fuller and in greater detail than as originally filed,’.’ but is a radical change of the statement of the value of the assets.

It was suggested in behalf of the respondents that it would be unwise to vacate the orders at this late day. It was intimated by the'appellants that under a scheme like this a few of the more wealthy parties in interest could purchase this plant at their own price. We do not know what the fact may be. This is a statutory -proceeding, and, to be effective, the steps prescribed by the statute must be substantially pursued. We think this had not been done in this case.

The orders appealed from should be reversed, with $10 costs and disbursements, and the motion to vacate granted, with $10 costs.

All concur.


author: RUMSEY, J.

text:
    United States National Bank, App’lt, v. William A. Underwood et al., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Partnership—Retiring partner—Liability.
    When a firm is dissolved and one of the partners takes the assets and assumes the liabilities, the other partner occupies thereafter the position of a surety, not only as between the partners themselves, but as to all others who have had dealings with the firm, to whom notice of the new contract has been brought.
    3. Same—Third parties.
    No dissolution of any kind affects the rights of third parties who have had dealings with the partnership, without their consent.
    B. Same—Notice.
    So long as the third person has information only that the partnersnip has been dissolved and knows no more about it, he' is still at liberty to treat both the partners as principals with regard to all contracts then existing between them.
    á. Same.
    There is no exception to the rule that the changed relation of the partners toward each other after the dissolution has no effect upon the rights of the creditor, unless there has been brought to his notice, not only the fact of the dissolution,-but the further fact that, by the terms of the dissolution, one of the partners has assumed the relation of principal debtor, and the others that of surety.
    Appeal from a judgment entered on a verdict in favor of one of the defendants, and from an order denying plaintiff’s motion for a new trial.
    William Allen Butler, for app’lt; David McClure, for resp’t.
   RUMSEY, J.

The action was brought to recover of the defendants, as partners in the firm oE O. H. Tenner & Co., the amount due upon a promissory note given by that firm. The defendant Underwood alone answered. It appeared that on the 6th day of July, 1891, the firm of C. H. Tenner & Co. was composed of William Underwood and Clarence H. Tenner, who are the defendants in this action. On the 6th day of July, this firm borrowed of the plaintiff $50,000, and gave their note for that sum, payable on demand, secured by collaterals. The note was in the ordinary form of a collateral security note, and contained at the end an agreement that, in case of an exchange of or addition to the collateral above mentioned, the provision of the note should extend to such new or additional collateral. On the 31st day of July, 1891, the note remaining unpaid, the firm of 0. EL Vetmer & Oo. was dissolved by the retirement of the defendant Underwood, and a new firm was formed, of which the defendant Underwood was not a member. Whether the plaintiff had notice of this dissolution was disputed upon the trial. That fact was submitted to the jury, and was found in favor of the defendant, and therefore it must be assumed that notice of the dissolution of the old firm and the formation of the new one was communicated to the plaintiff about the 1st day of August, 1891, as found by the jury. This notice consisted of a letter signed by the members of the old firm, announcing simply that “the copartnership theretofore existing between Clarence H, Venner and William A. Underwood, under the firm name of C. H. Venner & Co.,'has this day been dissolved, by mutual consent.” It was signed by the two members of the old firm. Accompanying it, and upon the same sheet, was another letter, dated the suceeding day, signed by Vetmer and two others, announcing that they had formed a copartnership under the name of 0. H. Venner & Co., and would continue the business of the late firm of the same name. It appeared upon the trial that, at the time of the dissolution of the first firm of C. II. Venner & Co., it was agreed between the partners that C. II. Veuner & Co. should have all the assets and assume all the liabilities of the firm, but there was no proof that this agreement was brought to the notice of the plaintiff. The agreement of dissolution which contained the contract that Venner should assume the liabilities of the firm was offered in evidence and received, subject to be stricken out unless proof was made that notice of it luid been brought to the knowledge of the plaintiff. No proof of that kind was made. Therefore, in the consideration of this case it must be assumed that, while the plaintiff had notice of the dissolution of the firm of 0. H. Venner & Co., it had no notice whatever of the terms upon which the dissolution was effected, or of the fact that Venner took the assets and assumed the liabilities of the old firm. When the- evidence had closed, the only question in dispute between tlie parties was whether or not notice of the dissolution of the firm had been served upon the plaintiff, ¡is claimed by the defendant. Upon that state of the proof, the plaintiif moved for a verdict The motion was denied, and the plaintiff excepted.

The court submitted to the jury only the question whether the plaintiff had received notice of the fact of the dissolution of the old firm, charging substantially that, if they found that such notice was received, the defendant was entitled to a verdict. To this portion of the charge no exception was taken, nor was there any request to go to the jury upon the question whether the plaintiff liad notice of the fact that Venner had assumed the lia bilities of the old firm. The only question presented, therefore, upon this branch of the case, is whether upon the undisputed facts, and the additional fact that the plaintiff had notice of the dissolution itself, it was error to deny the plaintiff’s motion that the verdict be directed in its favor.

It is not to be disputed that when a firm is dissolved, and one of the partners takes the assets and assumes the liabilities, that partner occupies thereafter the position of a surety, not only as between the partners themselves, but as to all others who have had dealings with the firm, to whom notice of the new contract has been brought. The mere fact of dissolution has no effect upon the rights of third parties. It is said in T. Parsons on Partnership that no dissolution of any kind affects the rights of third parties who have had dealings with the partnership, without their consent. This is the universal rule, without any exception whatever. T. Pars. Partn. 384, 385; Story, Partn. 334. As the fact of the dissolution has no effect upon the rights of third parties, of course the knowledge that there has been dissolution is equally unimportant. So long as the third person has information only that the partnership has been dissolved, and knows no more about it, he is still at liberty to treat both' of the partners as principals with regard to all contracts then existing between them. It is only when he has had notice "of the special circumstances connected with the 'dissolution by which one partner has assumed the relation of surety that he is called upon to respect that relation, and give effect to the changed attitude of the one who claims the right of surety. The cases seem to be unanimous onr this point. In Palmer v. Purdy, 83 N. Y. 144, 147, it is said by Finch, J., delivering the unanimous opinion of the court, that it is settled that one of several original debtors can so contract with the others for their assumption and payment of the common debt as to acquire the rights of a surety, upon knowledge of the new arrangement being communicated to the creditors. But when it is sought to invest one or more of them with new equitable rights outside of the original contract, by notice to the creditor of the latter arrangement, it is not too much to require that such notice shall be definite and distinct, and so given as fully and fairly to apprise the creditor of 'the new agreement in.fact made, and the' changed attitude of the debtor claiming the rights of' a surety. This case is followed upon that point in later cases. Grow v. Garlock, 97 N. Y. 81, 87. In fact, there seems to be no exception to the rule that the changed relation of the partners towards each other after the dissolution has no effect upon the rights of the-creditor, unless there has been brought to Ms notice, not only the fact of the dissolution, but the further fact that, by the terms of the dissolution, one of the partners has assumed the relation of principal debtor, and the others that of surety. This rule is recognized by all the cases cited by the respondent’s counsel. In Colgrove v. Tallman, 67 N. Y. 95, it is said that where a partnership is dissolved, and one partner purchases the interest of the other in the partnership property, and assumes and agrees to pay the partnership debts, he thereby becomes in equity the principal debtor as to such debts, and the other is surety, and the creditor, having' notice of sucli agreement, is bound by such relationship. Applying this well-settled rule to the facts established in this case, the conclusion necessarily follows that the plaintiff was not called upon to treat the defendant Underwood in any other way than as a principal debtor. That being the situation of the parties, there is nothing shown in this case which would warrant a holding that the defendant in any way ceased to be liable for this debt, and therefore it was error on the part of the court to refuse to order a verdict for the plaintiff, and the exception in that refusal was well taken.

For that reason the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the exent of the action.

All concur.