author: Baebett, J.:

text:
    SARAH B. HUNT, Appellant, v. WILLIAM H. HUNT, Respondent.

      Divorce — domicile of parties —personal service — when dispensed with —jurisdiction of cowt.

    A husband domiciled in Louisiana applied for a divorce in that- State from bis wife, on account of ill treatment received from her. The marriage took place in that State, and the offense was there committed. At the time of the commencement of the suit the wife had left her husband, and was then living with his consent in another State. In accordance with the laws of Louisiana a curator ad hoc was appointed to appear for and defend the interests of the wife, who was herself never served with any process, and thereafter a divorce was granted to the husband. Held, that the divorce was valid and binding in this State as well as in Louisiana, and that the jurisdiction of the court to render the judgment was not affected by the fact that the wife was never personally served, and that she did not appear in the action.

      A court acquires jurisdiction oí an action against an absentee domiciled in the State in which the court is situated, where such absentee is served by publication as prescribed by the laws of such State, and a judgment rendered in such action is valid in all other States and countries.
    Where, at the time of the separation of a wife from her husband, the laws of the State of their domicile provides that no divorce a vinculo shall be granted on account of ill treatment, until the expiration of a certain time after the entry of a decree of separation, the legislature has power to alter such law and allow a divosee a vinculo to be granted in the first instance, although the ill treatment occurred prior to the passage of the latter act.
    Appeal from a judgment dismissing the complaint herein, entered upon the trial of this action by the court without a jury.
    The action was brought to procure a divorce on the ground of adultery. The defendant, claiming to have been divorced from the plaintiff by a judgment duly obtained by him in the State of Louisiana, subsequently married again, whereupon his first wife brought this action to procure a divorce.

      John K. Porter and D. D. Lord, for the appellant.

      E. W. Stoughton, W. D. Ilennen and G. Tillotson, for the respondent.
   Baebett, J.:

The question in this case is, whether the court in Louisiana had jurisdiction of the person and the subject-matter. If it had, then, under the Constitution and laws of the United States, the same effect should be given to its judgment by the courts of this State as it would have in Louisiana. (Dobson v. Pearce, 12 N. Y., 167; Kinnier v. Kinnier, 45 id., 541.)

As to the person, the record shows, and it is conceded, that there was neither a personal service of process nor a voluntary appearance. Was the' court for that reason without jurisdiction ? That depends very much upon the facts. The parties were married in Louisiana, where at the time they both resided. They lived together in New Orleans for upwards of three years, when a nonjudicial separation took place, Mrs. Hunt leaving her husband’s house, and departing from the State of Louisiana with his consent, but of her own free will. About a year subsequently, Mr. Hunt commenced tbe suit in question. It proceeded upon the theory that while he was present and. she absent, both were domiciled in the State. Under the laws of Louisiana, an absentee is proceeded against, not by publication, but by the appointment of a curator ad hoc, whose duty it is to communicate with the defendant, if practicable, and to appear for and defend him. Upon a suggestion (allowed by Louisiana practice), a curator ad hoc was appointed, and the cause proceeded to judgment upon his appearance and answer.

The testimony is overwhelming that, under the laws of Louisiana, jurisdiction of the person was acquired by the appointment of the curator ad hoc, and that the proceedings were entirely regular, and the decree valid.

There are many authorities in this State in which it is asserted, that juridiction in this class of cases cannot be acquired by publication, by posting, by personal service outside of the State, or otherwise than by an authorized appearance or personal service within the jurisdiction. (Borden v. Fitch, 15 Johns., 121; Vischer v. Vischer, 12 Barb., 640; Bradshaw v. Heath, 13 Wend., 407; Holmes v. Holmes, 4 Lans., 388; Kerr v. Kerr, 41 N. Y., 272; Hoffman v. Hoffman, 46 id., 30.)

In all of these cases, however, it will be found that the facts with respect to notice were grouped with other jurisdictional facts, such as the absence of an actual and bona fide residence, or a resort to the foreign State for the purpose of evading the law of the domicile. Thus in Borden v. Fitch and Vischer v. Vischer the husband, whose domicile was in one State, repaired to another, and suppressing the fact that his wife was living apart from him under the sanction of the law of the domicile, procured a divorce a vinculo, upon the ground of willful desertion. In Bradshaw v. Heath, the parties were married in Connecticut, but soon after-wards changed their domicile to New York. The wife, without any judicial separation, returned to Connecticut and obtained a divorce upon grounds not admissible in New York. In Holmes v. Holmes, the Iowa court was without jurisdiction of the subject-matter as well as of the person. The offense, insufficient in itself to warrant a divorce a vinculo under our laws, was committed here before the plaintiff became a resident of Iowa, and while both parties were domiciled in this State. In Kerr v. Kerr and Hoffman v. Hoffman there was no residence in Indiana as required by the laws of that State.

In none of these cases was the defendant amenable to the laws of the State where the divorce was obtained.

Statutes authorizing the service of process by publication or other equivalent means have for their main object efficient judicial action in rem., or quasi in rem. ¡ that is, by attachment nominally in personam, but practically in rem. Apart from this, their purpose is not to enable courts to draw within their jurisdiction persons residing elsewhere, who have never violated the laws of such courts, State or country. It is rather to prevent those who, while within the boundaries of such State or country, have transgressed against its laws, from escaping the penalties attached to their offenses, by withdrawing from the jurisdiction of its courts, or by concealment within such jurisdiction.

Provision for service by publication in actions for divorce is made by our own Code (§ 135), and for substituted service by chapter 511 of the Laws of 1853 (as amended). Those provisions do not furnish the means of evading, nor even of enforcing the divorce laws of other States. They certainly, upon proper compliance with their terms, clothe our courts with jurisdiction over absentees, or avoiders of process who have, either here or elsewhere, but while domiciled in this State, violated the laws of such domicile. What is sought is to prevent the evasion, and to render effective the administration of our own laws. If, for instance, while the present parties were yet living together in New Orleans, Mr. Hunt had come into this State and filed a bill against his wife for offenses committed in Louisiana, it is quite clear that our courts could not have acquired jurisdiction over the person by publication under section 135 of the Code, and any judgment resulting from such a procedure would have been utterly void, and indeed it would have been void here as well as in Louisiana. If, however, the parties had been domiciled and the offense committed here, Mrs. Hunt could not have escaped the jurisdiction of our courts by absenting herself from this State, and Mr. Hunt would not have lost his remedy by permitting her to depart, without first serving a summons. In just such a contingency he would have a right to resort to a publication under section 135, and if bis proceedings were regular thereunder, the judgment would be valid, and valid in Louisiana as well as here, unless the Constitution and the laws of the United States are to be disregarded.

Were it otherwise, practical immunity would be afforded to the guilty. To cheat the injured party of his or her remedy under the laws of the domicile, it would only be necessary for the offender to escape the process server,- and secure an asylum in another jurisdiction.

Pursuit and an attempt to create a fresh domicile would not improbably result in fresh flight, or on the discovery, perhaps, of severer laws on the subject of divorce.

Nor are we without authority upon this point. To entitle the court to take jurisdiction,” says Bishop (Marriage and Divorce, §§ "727, 729), “ it is not necessary that the citation when the domiciled party is plaintiff should be served personally upon the defendant, if such personal service cannot be made * * * If the wife commits an offense which entitles the husband to a divorce, and he brings his suit i/n his own jmdsdiation, while she is found in another, it seems clear upon principle, as it appears settled by authority, that she cannot set up her own offense in answer to his claim; and since she is bound to follow him, his domicile must,for the purposes of the litigation, be taken as against her, to be hers also. This principle has been carried to the extent of avoiding any mere technical objection to the courts taking jurisdiction of the husband’s cause, when the wife has been in fact dwelling im, (mother country.” Again, at section 732: “Unless the judicial tribunals give effect to each other’s decrees rendered under these statutes (as to publication) in favor of bona fide subjects, we shall be in a most distressing condition of conflict and confusion.”

In Harding v. Alden (9 Greenlf., 140), the Supreme Court of Maine upheld a Rhode Island divorce where the process was not served within the State. “ If we refuse,” said the court, “ to give full faith and credit to the decree of the Supreme Judicial Court of Rhode Island, because the party libeled had his domicile in another State and was not within their jurisdiction, we refuse to accord to the decrees of that court the efficiency we claim for our own, when liable to the same objection,”

“ This decision, says Bishop (§ 736), received the commendation of Chancellor Kent, and the doctrine it lays down is that best sustained by authority.”

The same doctrine was maintained in Hood v. Hood (11 Allen [93 Mass.], 199); Ditson v. Ditson (4 Rhode Island, 109); Mansfield v. McIntyre (10 Ohio, 29); Harrison v. Harrison (19 Ala., 499); Thompson v. The State (28 Ala., 13); Hull v. Hull (2 Sirobhart’s Eq. R. [South Carolina], 174); and Tolen v. Tolen (2 Blackf., 407).

In Hood v. Hood, the domicile of the husband was in Illinois, when he filed his libel. His wife resided in Massachusetts. The Massachusetts Supreme Court held that the mere fact of her residence in that Commonwealth separate from her husband, whether with or without his consent, had no tendency to establish such a change of domicile and that, consequently, both parties had their domicile in Illinois where the libel was filed. “The notice,” remarked Hoae, J., “ given to the respondent in that suit, was such as the laws of Illinois authorized in the case of an absent defendant, and such as by the laws of this Commonwealth is made valid and sufficient in like cases.”

The remarks of the JRhode Island and Alabama judges are equally pertinent. Speaking of the foreign jurisdiction, the court, in Ditson v. Ditson, uses this language: “Its courts may and can act conclusively upon the rights and interests of such persons (nonresidents, foreigners or domiciled inhabitants of other States), giving to them such notice, actual or constructive, as the nature of the case admits of, and the practice of courts in similar cases sanctions.” (Pages 107, 108.)

In Thompson v. The State, the Alabama court passed its judgment upon the ground that “ the rule ” (as to the ordinary method of acquiring jurisdiction) “ does not apply to decrees rendered on publication against non-resident defendants, the validity of which depend on the statutes of the State in which they were rendered, and results necessarily from the exercise of the jurisdiction ; ” while in Harrison v. Harrison still stronger language was used: “We have seen that inasmuch as the case of complainant arose or took place here, and the plaintiff in error was made a party to the bill in the mode pointed out by our law, the decree is binding on her though she resided out of the State and did not have actual notice of the suit. To hold otherwise would not only be productive of disastrous consequences, but it would deny to our legislature the power to pass laws enabling the courts of this State to render a decree against an absent defendant, who was not personally served with process, although ' the cause of complaint arose here.”

In the present instance, the marriage contract was made in Louisiana, the offenses’were committed and the parties were domiciled there.

By article 39 (48) of the civil code of Louisiana (approved March 14,1870), it is provided that a married woman has no other domicile than that of her husband.” Such too was the previous law of that State, and it appears from the testimony that there is no exception to the rule. Even where the wife, who sues for a separation, leaves her husband’s residence, she is obliged, until the determination of the suit, to dwell in a house assigned to her by the judge.

The general rule at common law is, that the domicile of the husband is the domicile of the wife. She may, however, as was said by SwayNE, J., in Cheever v. Wilson (9 Wallace, 109), acquire a separate domicile whenever it is necessary or proper that she should do so.”

The law is the judge nevertheless of the necessity and propriety of her action, and the true test is, whether the conduct of the husband was such as to justify the wife in applying for a divorce or a judicial separation. (Bishop, §§ 728, 730; Kinnier v. Kinnier, 45 N. Y., 544; Hood v. Hood, 11 Allen, 199; Barber v. Barber, 21 How. [U. S.], 593, et seq.; Greene v. Greene, 11 Pick., 410; Harteau v. Harteau, 14 id., 181; Ditson v. Ditson, 4 Rhode Island, 10.)

There is no pretense that Mrs. Hunt separated from her husband with a view to legal proceeding or the assertion of any separate interests, nor that Mr. Hunt had so conducted himself as to justify her in acquiring a separate domicile.

In States, therefore, the foundation of Avhose jurisprudence is the common law as well as where the civil law governs, there is no doubt that when the Louisiana proceedings were instituted Mrs. Hunt was an absentee, domiciled in that State. The language of Mr. Burge (3 Burge’s Col. and For. Laws, 1056) thus becomes peculiarly applicable to her case: If the place in which the suit was instituted was that of his domicile * * * he may be said to owe such allegiance and submission to its laws, as to be subject to the species of citation which its laws have ordained * * * a citation, therefore, under those circumstances, although at the time it takes place he may be absent from the country, is not necessarily so repugnant to the principles of natural justice that a foreign tribunal should refuse to recognize it and treat a sentence founded on it a nullity.”

Mrs. Hunt was amenable to the laws of Louisiana. There was but one way in which the courts of that State could acquire jurisdiction over her, and that was by the appointment of a curator ad hoc. By such appointment then, in accordance with the laws and practice of the Stat%, jurisdiction was acquired.

A special objection was made to the appointment of the curator ad hoc, upon the ground that the record did not disclose the evidence upon which the Louisiana court acted in making it. The fact that Mrs. Hunt was an absentee is conceded, but it is insisted that a verified petition, stating such fact, should have been filed and made part of the record. The fact .gave the court jurisdiction to make the order; the method of ascertaining the fact was a mere detail of practice. Besides, the testimony of several eminent members of the bar of Louisiana abundantly establishes the validity of the appointment.

Under the laws and practice of the courts of that State, such appointment may properly be made either upon an averment in the petition for divorce, or upon a separate petition, or upon suggestion. True, as argued, it is not competent to contradict or add to a record (Noyes v. Butler, 6 Barb., 617), but it may be explained (2 Cow. & Hill’s notes, 839, 779; Manny v. Harris, 2 Johns., 24; 1 Phil. Ev., 317); and reading the record in the light of the law of Louisiana and the well established practice of its courts, is a very different thing from supplying defects in respect to jurisdictional facts by evidence aliunde.

It is simply a means of ascertaining what effect would be given to it in the State of Louisiana, to the end that “ the same faith and credit” may be given to it here. Even in our own courts, the affidavits filed upon obtaining an order of publication are not a necessary part of the juclgrhent roll. The summons and complaint, order and. proof of publication, of mailing and of no appearance, order of reference, referee’s report, proofs and judgment would make a sufficient roll under section 281 of the Code. Further, in the record under consideration the fact of Mrs. Hunt’s absence sufficiently appears. In the petition it is averred that she left the petitioner’s house upwards of a year previously and has ever since lived apart from him, and he prays that she be authorized to defend the suit, and that she be cited, through an attorney appointed to represent her, to appear and answer the petition.

This is followed, later, by the reasons for judgment filed by the judge, which are analogous, not to an opinion, but to our findings of fact and conclusions of law; and there it is found as follows: “And the court considering * * * that the defendant herein was not in the State of Louisiana at the time this suit was instituted” etc.

Next, as to the subject-matter: It appears that the court was one of general jurisdiction. In Kinnier v. Kinnier (ubi sup.), Church, Ch. J., uses the following expression: “ The court had jurisdiction of the subject-matter of the action, that is, it had jurisdiction to decree divorces according to the law of that State” So had the Louisiana court. It is claimed, however, that, under the Constitution and laws of that State, the court was not authorized to grant a divorce for the causes specified in the petition. Under. their laws, at the time of the separation, a husband or wife who had suffered from ill treatment of such a nature as to render matrimonial life insupportable, was not entitled to a divorce a vinculo until a stated period had been afforded for the possibility of reconciliation after a decree of separation. In 1870 an act was ¡jassed doing away with this intermediate delay, and allowing a direct divorce for substantially the same causes. Additional words were used, viz.: “ Such misconduct repugnant to the marriage covenant as permanently destroys the happiness of the petitioner.” This, however, was but another form of expressing ill treatment of such a nature as. to render their living together insupportable, or, at most, it was an amplification of the previous provision.

The plaintiff’s complaint therefore is: First, that by this legislation she was deprived, unconstitutionally, of the right of seeking a reconciliation for a given period, and thus of preventing the decree of separation from ripening into an absolute divorce; and, second, that the act of 1870 was repealed, and the place of reconciliation restored, before the filing of the petition.

The answer to the first is, that the law of 1870 “ did not,” as was said in Clark v. Clark (10 N. H. 380), “ confer authority upon the court to grant a divorce for matters already passed, and which, at the time they occurred, furnished no ground for the dissolution of marriage.”

Nor did the Louisiana court attempt to exercise any such authority. The courts of that State, for years before the passage of the act of 1870, possessed ultimate authority to grant an absolute divorce for ill treatment of such a nature as to render matrimonial life insupportable, and in the present instance it was substantially averred in the petition, and found by the court, that Mr. Hunt had received such ill treatment at the hands of his wife. The legislature had undoubted power to regulate the method of procedure, that is, the mode of attaining the ultimate remedy. The force of the objection would only be lessened in degree, if the alteration in the law had simply been a reduction of the time to answer from one year to twenty days, or the abrogation of a prohibition against a decree nisi ripening into a decree absolute, until after the lapse of one year. The eases which have been pressed upon our attention (Clark v. Clark, ubi sup.; Given v. Marr, 27 Maine, 212, 222; Sherburne v. Sherburne, 6 Greenlf., 211), in substance, denying the validity of statutes attaching a penalty to offenses committed prior to their passage, are therefore inapplicable.

With respect to the second ground of complaint, the act of 1870 was not expressly repealed and a careful consideration of all the statutes leads to the conclusion that it was not repealed by implication.

It is true that the provisions of the revised civil code and of the Revised Statutes subsequently passed, if they stood alone, would seem to revive the prohibition against granting a divorce until the expiration of one year from the date of the judgment of separation. But it was previously declared (Bill No. 50), that all the acts of that session which should be contrary to or in any manner conflict with these revisions should have precedence, and “ be held as the law in opposition thereto and as repealing those acts so far as they may be in opposition or conflict.” Undoubtedly the legislature was not bound by this act. It could of course be repealed, but tbe question is one of intent, and there can be no doubt that the act was passed and retained in order to facilitate the passage of these important revisions, and to avoid the detail incident to going through their elaborate provisions with a view to harmonizing each and every section with the special enactments of that particular session. Such, too, has been the construction given to these acts by the Supreme Court of Louisiana. (In the succession of Winn, 25 Lou. An. R., 216; Nichol v. Weil, id., 208.)

In considering, collaterally, the exercise of a jurisdiction which can only be questioned by a strained construction of the intent and meaning of several statutes, the conclusions arrived at by the highest court of a sister State in a direct proceeding may well be treated as final. Upon the facts before the Louisiana court it had power to decide the question of jurisdiction over the subject-matter, and again, to quote the language of Chief Justice Chueoh, in Kinnier v. Kinnier, “ the judgment is not void if we concede- that the decision was erroneous, and if it is also conceded that the question (of residence in that case) is vital to give jurisdiction. A wrong decision does not impair the power to decide, or the validity of the decision when questioned collaterally.”

It would certainly be a strange and painful phase of State comity if a citizen who, in reliance upon the construction placed upon the* laws of his domicile by the tribunals of such domicile, had formed an honorable matrimonial connection, should be told by the courts of a sister State that, according to their construction of the same laws, such connection was adulterous.

There remains the question of fraud. The charge upon that head is, that Mr. Hunt, in his petition, suppressed the fact that his wife had left him with his consent; and further, that he gave testimony in the cause contrary to the laws of Louisiana. It appears, however, that the exact facts with respect to the separation were laid before the court prior to the granting of the decree. This was done by Mr. Hunt’s own testimony, which may have been inadmissible, but can scarcely, under such circumstances, be deemed fraudulent. There is really nothing in this point. There was sufficient testimony without Mr. Hunt’s, and there is no reason to believe that it was considered upon the main question of ill treatment. The proceedings were entirely open.and above board. Mrs. Hunt was formally notified, by letter, of ber husband’s intention to “ obtain the sanction of the law to the severance of the marriage tie.” The curator ad hoc communicated with her father, who was himself an old lawyer. She was perfectly cognizant of the proceedings, and consulted with counsel in New York.

Communication by letter was also had with an eminent legal gentleman in New Orleans. Ample time was given for the fullest consideration of the situation, and the result was the determination not to appear. It is certainly significant that, at this critical juncture, it was deliberately decided to speculate upon the question of jurisdiction rather than attempt a defense upon the merits. .

For these reasons, we are of opinion that the decree of divorce is valid, and that the judgment of the Special Term, upholding it' and dismissing the plaintiff’s complaint, should be affirmed, with costs.

Beady and Daniels, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    HENRY BUCKING, Appellant, v. CHARLES HAUSELT and MARIE HAUSELT, his Wife, Respondents.

      Judgment — cannot be entered until all the issues a/re decided.

    Where in an action to redeem certain premises from the effect of a deed absolute in form, but alleged to be in fact a mortgage, the defendant interposed an answer denying certain allegations of the complaint and setting up four counterclaims, to wbicb counter-claims plaintiff demurred, upon which demurrer judgment was subsequently ordered for the defendant, who thereupon entered a judgment in his favor for the amounts claimed therein, held, that the judgment was irregular and should be set aside; that no judgment should have been entered in the action until all the issues raised therein had been disposed of.
    Appeal from an order made at the Special Term, denying a motion to set aside a judgment entered herein in favor of the defendant.

      Thomas G. Shearman, for the appellant.
    No judgment can be entered against a party until all issues raised by him have been decided. (McMahon v. Allen, 2Y Barb., 385; Y Abb., 1; Bellmcup v. McIntyre, 2 id., 366; Masters v. Barnard, 6 How., 113; Sutherland v. Tyler, 11 id., 251.) It is in pursuance of this rule that where one of several defendants is in default, the plaintiff is obliged to wait until a decision is rendered upon his claim against all the other defendants before he can enter any judgment. (Sluy~ ter v. Smith, 2 Bosw., 6Y3; Gatlin v. Latson, 4 Abb., 248; Jacques v. Greenwood, 1 id., 230.)

      Lewis Sanders, for the respondents.
   Daniels, J.:

The action has been brought to redeem certain premises from the effect of a deed absolute in form, but asserted to be merely a mortgage. The defendant Charles Hauselt, besides denying material allegations in the complaint, set forth four different counterclaims by way of defense. To so much of the answer as presented the counter-claims the plaintiff demurred. Upon the trial of that issue, judgment was ordered for the defendant, with leave to the plaintiff to reply in twenty days. No reply was served, and the defendant entered judgment in his favor against plaintiff for the amount of the counter-claims. The other issues in 'the case, formed by the denials contained in the answer, were not then, nor have they since been, in any form determined. Neither, was any special adjudication made as to the amount of the several counter-claims. The fourth was upon a guaranty, that certain stock which the defendant was induced by the plaintiff to purchase, would produce a semi-annual dividend of five per cent. It did not do that, but the dividend made was very much less than that amount. The amount of that deficiency was stated in the answer, but as it depended upon facts extrinsic to the guaranty, it probably should be ascertained by an assessment before the defendant could properly enter judgment for its recovery. The contract which had been entered into did not, upon its face, liquidate the amount which should be recovered upon a failure of the stock to pay the stipulated dividend. The liability was contingent, depending upon extraneous circumstances for its extent. For that reason tbe guaranty seems not to have been a contract for the payment of money only, but an agreement, which in effect created the obligation to pay whatever difference might be found between the ñve per cent which it was agreed the stock would pay, and the per centage actually paid by it. And in case of default, that required the consideration of other facts besides the contract, for the adjustment of the amount to be paid. For that reason, a reference or assessment upon this claim appears to have been required in order to ascertain its amount, before a regular judgment for its recovery could be entered. (Code, §§ 269, 247, sub. I.)

But even if that had been unnecessary, the case was not in a condition for final judgment as long as material issues joined by the answer were left undisposed of. By the direction given, that the defendant should have judgment on the demurrer to the counter-claims, it was not intended that a final j udgment to that effect should be entered in the case before the other issues were determined regularly. But one judgment can be entered in an action except in a limited class of cases, where a different course of practice has been expressly authorized by the Code. And as this was not one of them, what was intended by the direction given on the decision of the demurer was, that when judgment should be finally entered in the action, as a portion of that judgment the relief which this decision awarded, should be secured to the defendant. No other judgment was contemplated or authorized than that provided for-by the Code, and that was the final determination, which, according to section 245 should determine all the rights of the parties. That is what the Code has declared to be the formal judgment to be entered in an action and the signification of the term is the same wherever it has been used in other places, unconnected with any qualifying language. (Lawrence v. Farmers' L. and T. Co., 15 How., 57, 62.) And such a judgment cannot be entered while a portion of the material issues remain undetermined in the case. The result to be accomplished by it is not consistent with any other construction of the term. (Code, § 274.) It is to be a determination of the ultimate rights of the parties, unless in a certain specified class of cases it may be ordered otherwise by the court. Without such an order, which is to be made only in the cases included within the provisions allowing it, a judgment entered on a determination of a portion of the issues would be, as it has frequently been held to be, irregular. (Bacon v. Comstock, 11 How., 198; Sutherland v. Tyler, id., 251; McMahon v. Allen, 27 Barb., 335.)

It was ui’ged in support of the order made denying the motion that this irregularity was not specified in the notice given of such motion ; and in that the counsel for the defendant is right. The only irregularity specified was the want of notice of an application for -judgment. But this objection in no way appears to have been made when the motion was argued at, or considered, when it was decided by the Special Term; and for that reason it cannot be now allowed to prevail. The practice adopted was not in conformity with the settled course of legal proceedings. For that reason, the judgment entered should not be allowed to stand. An order should be entered reversing the order appealed from and directing that the judgment entered up be set aside. But as the notice of motion did not fully apprise the defendant of an important defect in the proceeding on which the application for relief would be based, the costs and disbursements to be allowed should abide the final determination of the case.

Davis, P. J., and Brady, J., concurred.

Order to be entered reversing order appealed from and directing that the judgment entered be set aside; costs and disbursements to abide the final determination of the case.


author:
Davis, P. J.:
     Beady, J. :

text:
    GEORGE STEVENSON, Guardian, etc., Appellant and Respondent, v. ALEXANDER M. LESLEY and others, Respondents and Appellants.

      Will — bequest—when interests under are vested — when legatees take per stirpes, and when per capita.

    Where a bequest was made to trustees, “ in trust for my grandchildren, namely, the children of my son Alexander M. Lesley and the survivors of them, share and share alike, and the children of my daughter, Ellen J. Stevenson, deceased, and the survivors of them, share and share alike, to be paid and conveyed to each of said children respectively as they each become of age, in equal shares, and in the mean time the income of my said estate shall be applied to the necessary support and maintenance and education of each of said children under the care of ” the executors appointed by the will.

      Held, that the grandchildren acquired a vested remainder in the property on the death of the testator, and that the bequest did not violate the statute against perpetuity.

      Held, further, that the grandchildren took p&r capita, and not per stirpes. (Brady, J., dissenting.)
    Appeals from a judgment entered at the Special Term, decreeing that the trust created in and by the last will and testament of George Lesley, deceased, is valid and legal, as a trust of real and personal property.
    And further decreeing, that the residue of the estate of the said testator devised to said Alexander M. Lesley and Merritt Trimble, trustees in and by said last will and testament, was intended by said testator to be divided and is divided by said will into two equal parts or moieties. That one moiety thereof is devised to said trustees in trust for the children of the testator’s son, Alexander M. Lesley, the above mentioned infant defendants, and one moiety for the children of the testator’s deceased daughter, Ellen J. Stevenson, the above mentioned infant plaintiffs.
    This action Avas brought to obtain a judicial construction of the will of George Lesley, deceased. The only question passed upon at the General Term was as to the nature of the estate acquired by the grandchildren of the testator under the residuary clause of the will, which was as follows:
    “And the rest and residue of my estate, both real and personal, after the paying and discharging the foregoing devise and bequests, I give, grant, devise and bequeath to Alexander M. Lesley and Merritt Trimble, both of the city of New York, in trust for my grandchildren, namely, the children of my son Alexander M., and the survivors of them, share and share alike, and tire children of my daughter, Ellen J. Stevenson, and the survivors of them, share and share alike, to be paid and conveyed to each of said children respectively as they each become of age, in equal shares.
    “ And in the mean time the income of my said estate shall be applied to the necessary and proper support, maintenance and education of each of said children under the care of my said executors.”

      George Stevenson, in person.

      Wm. O. Whitney, for guardian of infant defendants

      Oonvars <& Lyman, for A. M. Lesley.

      Underhill <& Uishoeffer, for Trimble.
   Davis, P. J.:

I concur in the views of my brother Beady, except as to the division of the residuary estate among the grandchildren of the testator. I think the legacies are given to them per capita, and not per stirpes.

First. The residuum is given to the trustees named in solido, in trust for the testator’s grandchildren; no part or interest is given to either of the parents, and such parents are named only for the purpose of designating more particularly the grandchildren who are the objects of his bounty. The description is preceded by the phrase “ namely,” which of itself indicates only particularity of description, when it follows such general language as the testator first uses. In that mode he proceeds to point out the grandchildren intended, as, first, the children of his son, second, the children of his daughter; and the words share and share alike, in respect of each, as used in connection with the word survivors, indicates nothing further than an intention that the distribution shall be made amongst such of the grandchildren as survive the testator.

Second. But the language which follows the particular designation of the persons meant as his grandchildren, cannot be satisfied by any other interpretation than that which makes the legacies equal fer capita. It is as follows : To be paid aud conveyed to eacb of said children” (to wit, tbe children of his son and daughter), respectively, as each becomes of age, in equal shares, and, in the meantime, the income of my said estate shall be applied to the necessary support, maintenance and education of each of said children, under the care of said executors.” In this clause the children of his son and daughter are grouped together as a class constituting the grandchildren of the testator; and his bounty is plainly given to them, share and share alike, as such grandchildren, and not because they represent their respective parents. To my mind this is altogether the more reasonable and just construction, for the larger gifts to the son, which the testator bestows in other parts of the will, afford good reasons for equality amongst the grandchildren, rather than a continuance of the same spirit of partiality ; and the whole will taken together shows that he knew how, and was careful to select his language when he meant to discriminate in favor of his son in bestowing his bounty; a selection of words which he has as carefully avoided in providing for his grandchildren.

The decree should be modified accordingly, and affirmed as modified.

DaNibls, J., concurred with Davis, P. J.

Beady, J. :

The beneficiaries designated in the residuary clause of the will of the testator, which is as follows: “ All the rest, residue of my estate, both real and personal, after paying bequests, I give, grant, devise and bequeath to Alexander M. Lesley and Merritt Trimble, both of New York, in trust for my grandchildren, namely, the children of my son, Alexander M. Lesley, and the survivors of them, share and share alike, and the children of my daughter, Ellen J. Stevenson, deceased, and the survivors of them, share and share alike, to be paid and conveyed to each of said children respectively as they each become of age, in equal shares; and in the mean time the income of my said estate shall he applied to the necessary support, maintenance and education of each of said children, under the care of said executors,” took a vested interest in the residuary estate on the death of the testator; and such being the legal result, the statute against perpetuities was not violated.

The case of Everett v. Everett (29 N. Y., 39) is decisive of the question, and it is not necessary to discuss it. (See, also, Gilman v. Redington, 24 N. Y., 9; 1 Jarman on Wills, 760.) The time of payment over to the children, of each share, was deferred, not the vesting.

The learned justice was right, therefore, in the view he expressed of this branch of the case. He was equally correct in deciding that the testator intended to divide his estate per stirpes and not per capita. The children of his daughter were to have one moiety and the children of his son another. The son was to receive much of his father’s bounty, as appears by the will; and by the codicil the testator gave to him and his heirs $10,000 in addition to all other provisions in the will, together with certain portraits and furniture, silver and silver plate. He thus increased the advantages extended to his son, and justifies the conclusion that whatever he designed should be enjoyed in excess of the moiety of his estate, should be carved out of it before the division could be made. It is not to be supposed that after his liberality to his son, he still farther intended to divide such residue between all his grandchildren share and share alike; he evidently designed that such residue should go in moieties, one to the children of his daughter and one to those of his son.

This was the natural and the just distribution of it, and one more likely to have prevailed in the scheme of the testator relative to the disposition of his property. Where there are no signs to lead to a different result, the natural order of things may be Resorted to and adopted as the best elucidation of a testator’s intention. “ One touch of nature makes the whole world kin,” is a sentiment which finds a universal response; and the dictates of humanity, the touch of nature, are not dispelled by the philosophy of the law. Whatever would be right should be the favored presumption, and therefore within the lawful intention of the testator.

The judgment should be affirmed.

Decree modified as directed in opinion of Davis, P. J. Costs of both parties to be paid out of the fund.


author: DANIELS J.:

text:
    JOHN H. ALEXANDER and JAMES S. ALEXANDER, Plaintiffs, v. ANDREW J. BROWN and others, Defendants.

      Corporation — jpowers of its officers — Receiving benefits of contráete — effect of.

    A corporation was created under the general act for the purpose of working certain coal mines and transporting the coal to market and selling the same. Before any coal had been mined, orders for coal were received from different persons, to fulfill which the president of the corporation, without any express authority from the trustees, entered into an agreement with the plaintiff, by which the latter was to deliver the coal to the persons ordering the jsame upon the credit of the corporation, which was to collect the amount due from the persons receiving the same. In an action by the plaintiff to recover the value of the coal so delivered, it was claimed that the president had no authority to make such contract, and that the corporation was not bound thereby. Held, that the officers of the company were authorized to contract for the delivery of the coal before the same had been mined, and that upon discovering that the corporation was unable to fulfill the contract, they were authorized by virtue of their office and employment to contract with the plaintiff for the fulfillment of the same.
    After the delivery of the coal the corporation collected a great part of the amounts due therefor, from the persons receiving the same, and appropriated the money to its own use. Held, that it was thereby estopped from denying the authority of its officers to enter into the said contract or its liability thereunder.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed in favor of the defendants.

      John E. Parsons, for the plaintiffs.
    The company were incorporated to mine and vend coal. This implies the acquisition of it. If the certificate does not imply a power to purchase, it does not prohibit it. The present doctrine in England is, that if it is not made out that the act of incorporation prohibits the contract, it must be enforced. (South Yorkshire R. Co. v. Great Northern R. Co., 9 Exch., 56, 85 ; Bateman v. Ashton-wnder-Lyne, 3 H. & N, 323; Nm'wich v. Norfolk R. Co., 4 Ellis & B., 397.) In the United States the doctrine is construed much more strongly against corporations. (Moss v. The Rossie Lead Mining Co., 5 Hill, 137;
      State of Indiana v. Woram, 6 Hill, 33 ; DeGroff y. The Am. linen Thread Go., 21 N. Y., 124; Bissell y. The Mich. S. R. R. Co., 22 id., 258; Pmñsh y. Wheeler, 22 id., 494; MeCutcheon v. Steamboat Go., 13 Penn., 13; Allegheny City y. MeGlarlcson, 14 id., 83; Chester Glass Co. y. Dewey, 16 Mass., 94, 102; Bulhley v. Derby Fishing Co., 2 Conn., 252-255; Pa/rTcer v. Boston and Maine R. R. Co., 3 Cush., Í07, 108; 29 Vt., 93.) And to the like effect. {Silver Lalce Bh. v. North, 4 Johns. Ch., 370 ; L. and F. Ins. Co. v. Meoh. F. Ins. Go., 7 Wend., 31; Palmer v. Lawrence, 3 Sandf. [S. C.], 170; Saehetts Harbor Bh. v. Lewis Co. Bh., 11 Barb., 213; Bh. of Genesee y. Patehin Bh., 13 N. Y., 309; Steam Nov. Co. y. Weed, 17 Barb., 378.) Persons may safely deal with the officers of a company at its office, and transactions made by them in the name of the company and which the company has the right to make are binding upon it. {Nowland and Aspinwall y. Meyer, 6 Conn., 290; Conover v. Mut. Ins. Co., eto., of Albany, 3 Den., 254; The Bh. of Vergennes v. Warren, 7 Hill, 91, and cases cited in the opinion ; Naseall v. Life Assn, of America [Ct. App., 1876], not yet reported.)

      W. W. Niles, for the defendants.
    This corporation was created to mine coal and sell it. It had no power to speculate in coal nor to become a mere coal merchant. The powers of a corporation must be determined by construing the language of its charter neither strictly nor liberally, but according to the fair and natural import of it, with reference to the purposes and objects of the corporation. (The Toll Bridge Go. y. The N. and R. N. R. R. Co., 17 Conn., 454; Downing v. Mi. Wash. R. R. Co., 40 N. H., 230; Kean y. Johnson, 1 Stockt., 401.) A corporation is restricted both to the thing allowed by the legislature to be done and the mode prescribed for its exercise. {The Farmers' Loan and Trust Co. v. Carroll, 5 Barb., 613 [see 649].) It has no power ex-cept what is given by its incorporating act, either expressly or as incident to its existence. {Beatly v. Knowler, 4 Peters, 152; Brady v. The Mayor, etc., 20 N. Y., 312; Jachson v. Brown, 5 Wend., 590; Salem Mill Dam Co. v. Ropes, 6 Pick., 23.) The party claiming under a contract must show it to be within the powers of the officer alleged to have made it. {Fa/rmerd Bh. of Buchs Co. v. McKee, 2 Penn. St., 318; Blue v. Bear River Co., 20 Cal., 602.) It lias been beld that even a subsequent ratification by the directors will not render other contracts valid. (McCullough v. Morse, 5 Den., 567; Dulois v. W. T. C. and FI. R. R. R. Co., 1 N. T. Leg. Obs., 362.) The claimant must show not only that the agent had authority to bind, but that the company had the faculty to become bound. (.Hardwood v. Hamies, 9 Ala. [N. S.], 659.)
   DANIELS J.:

• This action was brought to recover from the defendants, as trustees of the New York Mutual Coal Company, the amount of a debt claimed to be due from the company, on the ground that no annual report of the amount of its capital and of the proportion actually paid in, and the amount of its existing debts, was made, published, or filed, as the statute required that to be done. (2 R. S. [5th ed.], 661, § 35.)

According to the description given of its business in the certificate of incorporation, the company was formed to work coal mines in a certain specified locality, and transport to market and sell such coal. The business of selling coal was not otherwise in terms-included within that mentioned in this document. As it was described, the company was by mining to produce its own coal, and it was empowered to sell that which was obtained in that manner; but at the same time it was not prohibited from obtaining coal from other sources, in ease that should become necessary to perform its engagements. It had its office in the city of New York, where its affairs were managed by its treasurer and secretary, and before it had the coal from its own mines to deliver, it received orders for coal from its customers. Being apparently unable to furnish it in any other manner, these officers procured the plaintiffs to deliver it on its credit, and with the understanding that they could also make collections from the persons receiving it. This arrangement was entered into'with the. advice and sanction of the president of the company, but without the action or authority of the trustees, except as that was to be inferred from- the fact that the officers were allowed to transact and control its business. They were in the ostensible charge of its affairs, and to their apparent authority, as it was so exhibited, the plaintiff trusted in entering into the agreement which was made. And under that, upon orders sent to them by the secretary and treasurer, coal was delivered to the customers of the company by the plaintiffs to the amount of $962, and $814.50 of that amount remained unpaid. It appeared that a bill had been rendered which was admitted as correct by the treasurer, who promised to pay the balance remaining unpaid. The court held that the evidence given did not establish the existence of a debt against the company, as it appeared it had not been actually authorized or sanctioned by the trustees, and its creation was not within the scope of the authority given to the officers, under whose direction the coal had been delivered.

But as the company was created to mine and sell its own coal, and its officers were, by virtue of their appointment, authorized to carry on its business to that extent, they were practically empowered to receive orders and enter into engagements for the delivery of coal to its customers. That was a part of its legitimate and lawful authority according to the terms of the certificate of incorporation. It was not bound to wait until the coal was obtained from its mines and was on hand ready for delivery, before it endeavored ■to obtain its customers and create a market for what it was expected it would afterwards have and be able to deliver. And when that was done, and it proved incapable of performing by delivering the coal itself for its own protection, its officers had the incidental authority, by virtue of their appointment and employment, to cause it to be done by the plaintiffs for the indemnity and protection of the company. Nothing appeared which subjected the conduct of the officers to suspicion. They appear to have acted in good faith for the preservation of the business and the retention of the customers of the company, and what they did, though not literally within the terms of the certificate of incorporation, was still within its spirit, and seemed necessarily to result from the state of its business. It was an emergency which had not been anticipated, and that was met and provided for in the way such business would ordinarily be expected to be done, and the plaintiffs ought not to be subjected to the loss of their property, because the certificate of incorporation had not in terms provided for its disposition. These corporations are created with so much facility, and are so extensively engaged in manufacturing and trading occupations, that persons dealing with their agents and officers are compelled to rely upon the appearance of their authority to a great extent, and after they have done so, justice requires that the corporation should not be exonerated from liability after it has profited by the arrangement made, simply because it had described its business in such terms as not necessarily to include the transaction. The contract made with the plaintiffs appertained to what appeared to be, and what was, the business of the corporation, and it was within the spirit of the description given of it in the certificate, and it should have been held liable for the amount that had become due in the course of its performance.

It appeared further, that the proceeds of the coal delivered by the plaintiffs, on the orders of the officers of the corporation had been, to a great extent, collected and received by it, and used in its regular business. The evidence showing that to be the fact consisted of the statement of its treasurer, and it was received without objection as proper proof of that fact. For that reason it must be now regarded as properly in the case, even though not strictly admissible for that purpose. If it had been objected to as incompetent, the objection might have been obviated by other proof of the fact. That was not done, and the objection for that reason could not now be allowéd to prevail, even if it had been taken in the course of the argument of the case on behalf of the defendants. The fact must be regarded as proved, that a great part of the money owing for the coal was collected and applied to the use of the company, as the treasurer admitted it had been; and that precluded the defendants from maintaining the position that the corporation had not become liable for the payment of this debt. It acted as corporations necessarily must act, through the intervention of officers who were its agents. To them it sustained the ordinary relation of principal, and one of the legal consequences of that relation is that the principal will become responsible for even unauthorized contracts of the agent, when he has received and enjoyed the proceeds of them. The advantages cannot be secured and appropriated without, at the same time, rendering the principal liable for the instrumentalities through which they may be obtained. This rule is well settled, and no good reason appears for exempting trading corporations from its operation and effect.

The general rule of law upon this subject is that the principal who reaps the benefit of a transaction must also bear the burthens of its responsibilities. Parsons, in his work on Mercantile Law, page 137, states the rule in these terms: “ Generally, one who receives and holds a beneficial result of the act of another, as his agent, is not permitted to deny such agency, and in some cases this is extended even to acts of such agent under seal.” Cowen says : “My servant borrows fifty dollars, which comes to my use, and gives a note in my name for it; I am bound, though I have not instructed him to do such acts, but it would be otherwise if the money did not come to my use; and where A.’s known servant pawns his master’s ox for corn, and agrees that if he does not pay so much for the corn by such a day, that the pawnee may keep the ox, if the corn comes to the master’s use the master cannot retake the ox if the money is not paid.” (1 Cowen’s Treat. [2d ed.], 76.) Bolton v. Hillersden (1 Lord Raymond, 224; 3 Salkeld, 234) was an action on a promissory note given in the defendant’s name by his apprentice on the loan of £100; the defendant proved that he did not trust his apprentice to give such notes ; the apprentice swore that he had lost £100 of his master’s money at play, and that the day following a foreign bill was drawn upon his master, which he could not pay, therefore he resorted to the plaintiff, with whom the defendant usually had dealings, and because the person who brought the foreign bill would .not receive guineas, being the only money he had, he persuaded the plaintiff to receive the guineas and pay the bill, which he did, and the apprentice gave the note to him for money received of him to pay the £100 which he had lost at gaming. Holt, chief justice, in deciding the case, said: “ If a master has never entrusted a servant to charge him by signing of notes in the master’s name, yet if the money for which such note is signed comes to the use of the master, or if in this present case the servant gave the note to raise money to pay the foreign bill charged to his master, which is for the benefit of his master, such note will bind the master, though he never permitted the servant to sign such notes before.”

In Precious v. Abel (1 Esp., 350), an action was prosecuted to recover for work done by a farrier in shoeing and physicing a horse; the defense was that the defendant, by an agreement with his groom, allowed him five guineas a year, for which he was to keep tbe horses properly shod, and furnish them with proper medicines when necessary. Lord KehtoN, chief justice, held that it was no defense unless the plaintiff knew of the agreement; that if the servant buys things which come to his master’s use, the master should take care to see them paid for, for a tradesman has nothing to do with any private agreement between the master and servant.” And it was held in Brower v. Lewis (19 Barb., 574), where an agent had sold goods by sample that “ if the broker had no authority to sell by sample, which was not shown at the trial, still the plaintiffs cannot affirm the sale made by him and get an increased price on account of the warranty made by him, and keep it, and say that they did not authorize the warranty.” In Bennett v. Judson (21 N. Y., 238) the judge before whom the action was tried charged the jury, that if the agent had practiced a fraud in making the bargain with the plaintiff, the defendant having received the fruits of the bargain' was liable for the fraud, although he did not authorize the statement or know that it was made, or whether it was true or false. And that was held to be a correct exposition of the law by the Court of Appeals. In Elwell v. Chamberlain (31 id., 611, 619) it was likewise acted upon and the preceding decision upon this point was approved. The case of Rimell v. Sampayo (1 Car. and P., 254) in its effect proceeded upon the same principle. It extends through all this class of cases, and in Parish v. Wheeler (22 N. Y., 494) it was held applicable to the dealing of a corporation. In deciding that case it was said by ComstocK, Ch. J.: “ There is certainly no moral turpitude if a railroad corporation buys a steamboat or builds a church, nor is there any legal turpitude. It may be an excess of powei’, or a breach of private trust in respect to its stockholders. The latter may complain or the State may interpose, but corporations themselves, like individuals, in dealing with other parties, must live up to the rules of common honesty.” (Id., 507.)

A debt against the corporation in favor of the plaintiff was established by the evidence as it was taken upon the trial, and it was not claimed that the defendants were not liable for its payment, if that were the fact, under the provision of the statute declaring tbe effect of tbeir failure to make, publish and file the report required by its enactment.

The verdict should therefore be set aside and a new trial ordered, with costs to abide the event.

Davis, P. J., and Beady, J., concurred.

Yerdict set aside, new trial ordered, costs to abide the event.


text:
    CHARLES B. WOOD, Appellant, v. THE ERIE RAILWAY COMPANY, Respondent.

      Carrying on business, under na/me of person not interested in firm — illegality of— Contract — Tiow affected by — Dissolution of partnership— 3 S. S. (5th ed.), 978, § 43.
    In this action brought by tbe plaintiff to recover damages for injuries to a carriage, transported by defendant from Buffalo to New York, be was nonsuited on tbe ground that be carried on' business under tbe name of Wood Bros., although no other person was interested therein. By the bill of lading tbe carriage, which was marked “Wood Bros.,” was to be delivered in New York “to the party entitled to the same.”

      Held, that as the plaintiff was in fact the owner of the carriage, he was entitled to claim the same at New York, and that the fact that he was carrying on business in a manner forbidden by the laws of this State, did not relieve the defendant from fulfilling the contract of carriage it had entered into with him.
    Where, upon the dissolution of a partnership, one partner continues the business under the old name, the statutory prohibition (3 R. S. [5th ed.], 978, § 43) does not apply until such partnership has been dissolved as to third persons as well as between the partners themselves. In the absence of any evidence upon the subject, it cannot be presumed that the public, notice required to dissolve the firm as to persons having knowledge of its existence, was duly given.
    Appeal from a judgment in favor of the defendant, entered upon an order dismissing the complaint.

      JS. BL. Benn, for the appellant.

      Jos. La/rooque, for the respondent.
   Daniels, J.:

This action was brought to recover the damages sustained by the plaintiff, by reason of injuries to a carriage delivered to the defend ant, as a common earner for hire, at the city of Buffalo, to be carried and delivered to him at the city of New York. He was nonsuited at the trial, because he was engaged in business, as a dealer in carriages, under the name of Wood Brothers, in contravention of the statutory prohibition, that no person shall hereafter transact business in the name of a partner not interested in the firm. (3 R. S. [5th ed.], 978, § 42.) ' The carriage was purchased by the plaintiff in the firm name of Wood Brothers. Some months previous to that event, a brother of the plaintiff had been engaged in business with him under that name; but he had withdrawn from the firm and had no interest in the business at that time. It did not, however, appear that any public notice of the dissolution of the firm had at any time been given.

The complaint alleged that the carriage was delivered to the defendant to be carried to New York from the city of Buffalo and to be delivered to him. That likewise was the form of the bill of lading. It was noted upon that document that it was marked “Wood Bros.,” New York. But the bill contained the statement that the property was to be transported by the Erie Railway Company to their warehouse at New York, ready to be delivered to the party entitled to the same. That was the contract, and as the plaintiff was, in fact, the owner, and as such entitled to the property, it was him alone with whom the agreement for its carriage was legally made. For that reason, the defendant could not claim exoneration from its obligation simply because the plaintiff carried on his business in a manner prohibited, and which the statute of the State declared to be a misdemeanor. He did not become an outlaw by reason of that circumstance, and liable to have his property despoiled or injured without any right to claim redress for the wrong done to him. j:

To effectually dissolve the partnership as to persons not previously dealing with it, but who may, from the publicity of its firm name, have known of its existence, a public notice or some other equivalent action seems to have been requisite. (Wardwell v. Haight, 2 Barb., 549; Lansing v. Gaine, 2 Johns., 300; Ketcham v. Clark, 6 id., 144; Davis v. Allen, 2 Comst., 168; City Bank of Brooklyn v. McChesney, 20 N. Y., 240; Buffalo City Bank v. Howard, 35 id., 500.) It cannot be presumed, without proof of the fact, that such notice had. been given or such action taken for the mere purpose of rendering a contract unlawful which would be otherwise valid. If any presumption upon the subject is to be entertained, it must be that the notice was not published, and,' consequently, that the firm, though dissolved, in fact, between the parties, still continued, as to persons knowing of its existence, but not of its termination. And that will be sufficient to render this statute inapplicable to the case. (Greenwood v. Brink, 1 Hun, 227.)

The statute is a salutary one, and must be enforced according to the reasonable signification of its terms. But, at the same time, as it is penal in its effects, the case must be fairly brought within those terms before they can be held to include it. (O’Toole v. Garvin, id., 92.) That was not done in this instance. The judgment should therefore be reversed, and a new trial ordered, with costs to abide the event.

Davis, P. J., concurred; Beady, J., concurred in the result.

Judgment reversed, new trial ordered, costs to abide event.


author: DaNiels, J.:

text:
    THE PEOPLE ex rel. THE TRADESMEN’S BANK OF THE CITY OF NEW YORK v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS, Respondents.

      Taxation of tank stock — chap. 761 of 1866 — deduction for real estate — how amount of determined.

    Under the provisions of chapter 761 of 1866, providing for the taxation of hank stock, it is the duty of the assessors to deduct from the actual market value of each share a sum which bears the same proportion thereto, as the assessed value of the real estate of the bank bears to the par value of its capital stock.
    The real state of a bank in the city of New York, having a capital of one million divided into twenty-five thousand shares of forty dollars each, was assessed at $200,000. The market value of each share was fifty-six- dollars. Held, that as the assessed value of the real estate was one-fifth of the capital stock, that there should be deducted from the value of each share the one-fifth part thereof, and that the share should therefore be assessed at forty-four dollars and eighty cents.

      Certiorari to review tbe proceedings of tbe respondents, in taxing tbe shares owned in the capital stock of tbe relator.

      Horace Barnard, for tbe relator.

      Hugh I. Cole, for tbe respondents.
   DaNiels, J.:

Tbe relator is a banking institution, formed and doing tbe business of banking under and by virtue of the laws of tbe TJnited States. Those laws have subjected tbe persons owning its stock to taxation under tbe laws of tbe State. Certain restrictions have been imposed upon the exercise by tbe State of that authority; but as it has not been shown that they have been infringed in the' proceedings complained of, no further allusion to them will become necessary in tbe disposition of this ease.

Tbe market value of tbe shares was assumed by the commissioners to have been their taxable value, and that was held to be the proper valuation to be placed for that purpose upon them in tbe case of People ex. rel. The Gallatin National Bank v. The Same Commissioners, recently decided by this court. (8 Hun, 536.) That decision was very clearly a proper one, and it must be controlling upon that feature of tbe present case.-

But in tbe case now before tbe court, it is objected that tbe proper deduction, directed to be made by tbe statute providing for taxing shares in these institutions, for the portion of tbe capital invested in real estate was not made in this instance, and that in that respect tbe action of tbe commissioners should be corrected. Tbe capital of the bank was shown to be $1,000,000, divided into 25,000 shares, of forty dollars each. $200,000 was the assessed valuation placed on tbe real estate of the bank, for tbe purpose of taxation, and its shares bad a market value of fifty-six dollars each. In making tbe assessment for the purpose of taxing them, tbe commissioners deducted eight dollars from tbe market value of each share, on account-of tbe investment made by tbe bank in real estate, and thereby assessed their taxable value at tbe sum of forty-eight dollars each share; and that was the correct mode to be pursued if tbe deduction was to be apportioned according to tbe proportion of the actual amount of the capital of the bank invested in the real estate. From the assessment made of the real estate, that appeared to be equal to one-fifth of the entire capital of the bank, and in assessing the valuation of the shares, one-fifth of their par value was deducted from them, which left each share liable to assessment on the basis of the market value, to the extent of forty-eight dollars. The par value of each share was forty dollars. Its appreciation in value in the market had advanced it sixteen dollars, which made its actual value fifty-six dollars; an'd in assessing it one-fifth of its par value was deducted, because the real estate of the bank was assessed at a valuation equaling one-fifth of its nominal capital. The relator claims that this deduction was too small; that instead of its being made on the basis of the actual capital of the bank, it should be graduated according to the market value of the shares. That would require a deduction of one-fifth of that value, which would be the sum of eleven dollars and twenty cents for each share, and would reduce its assessable value to the sum of forty-four dollars and eighty cents. The difference, though but a small amount upon each share, in the aggregate, will nominally amount to the sum of $80,000; and it is sufficient to render the case one of no ordinary importance. But still, if the position taken in behalf of the relator is correct, that result cannot prevent it from being maintained. It will be the consequence of the peculiar phraseology of the statute; which, however, will be to some extent compensated by the assessable valuation which must be borne by the stock of these institutions whenever their market value shall fall below the par value. These contingencies are not always accurately provided for by legislation; and as they cannot be uniformly anticipated, they can only be justly controlled by subsequent legislative changes.

The statute, as it existed when the shares in the bank were assessed by the commissioners, and as it now exists, after declaring that the shares in these institutions shall be assessed for taxation, provided that, “in making such assessment, there shall also be deducted from the value of such shares such suih as is in the same proportion to such value, as is the assessed value of the real estate of the bank or banking association, and in which any portion of their capital is invested in which said shares are held, to the whole amount of the capital stock of said bank or banking association.” (Laws of 1866, vol. 2, 1647, § 1.) This provision deals with two elements of value, that of the shares in the market and that of the fixed or nominal capital of the bank. The market value of the shares is that which is required to be valued for assessment, and the fixed or nominal capital of the bank is that which must be considered, in determining the rule to be applied to ascertain the deduction to be made on account of the investment in real estate. In this case that investment appears to have been one-fifth of the nominal capital. At least it has-been so assessed, and that, under the terms of the statute, is the criterion by which the rule for the deduction has heen declared. In the proportion borne by that value to the nominal capital, the deduction from the actual value of the shares is to be made. It would have been an entirely equitable rule, if the real estate were assessed according to its actual value, for the law to have required that value to have been first deducted from the aggregate actual value of all the shares, then the residue to be divided by their whole number, and the quotient to be assessed as their proper value for the purpose of taxation; but that was not done; a different rule has been prescribed, and the courts have no other duty to perform than to follow it. That requires that the deduction made from the actual value of the shares shall be the same in proportion to that amount, as that made from the nominal capital for the assessed value of the real estate; for in no other way can the deduction from the value of the shares be in the same proportion to that valúe, as the statute has declared it shall be, as the assessed value of the real estate is to the whole amount of the capital stock of the bank. The proportional deduction in the latter case is the one rendered applicable to the former, in order to ascertain the amount at which the shares should be assessed ; that in this instance is one-fifth. The assessed value of the real estate, is one-fifth of the whole amount of the capital stock of the bank, and for that reason the statute required the same proportionate amount, or one-fifth, to be deducted from the full value of the shares, in order to determine their assessable valuation. That was not done by the commissioners ; but their deduction was made on the same principle as the statute required to be applied, if the aggregate value of the shares had been the same in amount as the capital stock of the bank; they deduct eight dollars from each share, which was one-fifth of the amount of nominal capital represented by it, instead of eleven dollars and twenty cents, which was one-fifth of the full value of each share; under the statute the larger amount was the proper deduction to be made, because it was one-fifth of the market value of the shares. In this case it seems an advantage to the bank, but not perhaps of the entire apparent difference, because the real estate, it has been affirmed, was assessed below its actual value. The legislative rule will not produce exact justice in all cases ; under it a portion of the value of the shares will be likely to escape assessment when that exceeds the nominal capital of the bank; while more will be assessed than should be when the shares are depreciated below their par value; it is,however, a rigid rule, provided by the statute, which has rendered it inflexible. The court can only carry it into effect as it has been declared; for that reason the assessment should be so far modified as to deduct from the sum of fifty-six dollars, which is the full value of the shares, the sum of eleven dollars and twenty cents, one-fifth of that value ; that will reduce their assessable value to the sum of forty-four dollars and eighty cents. As the point has been for the first time presented, the modification should be without costs.

Davis, P. J., and Beady, J., concurred.

Assessment so far modified as to deduct from the sum of fifty-six dollars, which is the full value of the shares, the sum of eleven dollars and twenty cents, one-fifth of that value, without costs, and affirmed as so modified.


author: DANIELS, J.:

text:
    VINCENT A. ERRICO and others, Appellants, v. SAMUEL BRAND, Respondent.

      Memorandum of sale — when the real agreement ma/y he shown though at va/rianee with it.

    This action was brought to recover the possession of certain personal property, delivered to the defendant’s intestate upon the agreement that he should sell the same within sixty days for a certain price, and pay over to the plaintiffs the amount received therefor, and in case he failed to effect such sale, that he should return the property to them. Upon the trial the defendant produced an unsigned memorandum given by the plaintiff at the time of delivering the goods, by wliicli it appeared that the goods were sold to the intestate upon a credit of sixty days. Held, that the plaintiff was not thereby precluded from showing the tnie natwe of the transaction, even though it differed from the statement which they had made of it by their written admission.

      Burgin v. Ireland (14 N. Y., 822) and Bonesteel v. Flack (41 Barb., 485) distinguished.
    Appeal from judgment in favor of tbe defendant, entered on the report of a referee.

      Mord Lewis, for tbe appellant.

      M. M. Friend, for tbe respondents.
   DANIELS, J.:

This action was brought to recover possession of personal property delivered by tbe plaintiffs to J. Platky, since deceased, and received by tbe defendant as one of tbe administrators of bis estate. At the time of tbe delivery of tbe property by tbe plaintiff, they also delivered an unsubscribed memorandum in tbe following words:

New YoeK, October 30, 1875.
Mr. J. Platky, bought of Errico Brothers, importers of coral and shell jewelry; terms sixty days:
111J- dwt., 18 k. vest chains.$111 75
80 dwt., 12 k. neck chains.. 60 00
$171 75

Tbe plaintiffs gave further evidence tending to show that these articles were delivered to Platky to be sold by him within sixty days, and the prices mentioned in the memorandum returned to them. If they were not sold within that time, then the articles were to be returned to them. They were not sold, and the plaintiffs endeavored to repossess thepaselves of them. The referee declined to consider this evidence, because he regarded the memorandum as conclusive evidence that a sale had been made to Platky. In this opinion he appears to have been governed by the case of Bonesteel v. Flack (41 Barb., 435). But that differed from the present case in the circumstance that the instrument must have been subscribed by the plaintiffs. For it was spoken of and considered as a written bill of sale, which would have been an inaccurate reference if it had been simply an unsigned memorandum, as that was which Platky received. The case of Durgin v. Ireland (14 N. Y., 322) was in principle the same, for a completed contract appeared to have been there made.

But in this case a mere written declaration was made and delivered, importing a sale of the articles mentioned in it. And like all other mere admissions it could be explained by oral evidence, showing that the transaction was really different from the statement which had been made of it. This would not have been admissible against purchasers for value from Platky acting on the faith of the statement made by the memorandum. As to them it would operate as an estoppel upon the plaintiffs. But this was not a controversy of that description. The defendant had no more right to the articles than Platky had himself. He was merely a personal, representative, and had no more title than the intestate himself. As to him it was competent for the plaintiffs to show that the articles belonged to them; and the memorandum, though evidence that a sale had been made of them, on a credit of sixty days, did not preclude the plaintiffs from showing the true nature of the transaction, if that were different, from the statement which they had made of it by their written admission. (Filkins v. Whyland, 24 N. Y., 338; Terry v. Wheeler, 25 id., 520; Grierson v. Mason, 3 N. Y. S. C. [T. & C.], 185; S. C., 60 N. Y., 394.)

The evidence tended to show that the memorandum was given, to show the prices Platky was required to pay for the articles in the sales he might make of them, and not as evidence of an actual sale to him. If that were the fact, and the articles still remained the plaintiffs’ property to be returned to them if they were not sold, as they were not, they should have been allowed to recover in the action. The referee did not consider or decide the point so presented. For that reason the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Davis, P. J., and Brady, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


text:
    THE UNION TRUST COMPANY OF NEW YORK, Plaintiff, v. AUGUSTUS S. WHITON, Defendant.

      Loam, — what proof of sufficient.

    Upon, the trial of an action to recover the amount of a loan alleged to have been made to the defendant, the plaintiff produced a loan check, signed by its presi-. dent and cashier, payable to the order of and indorsed by the defendant, and also an envelope with the following indorsement thereon, of the same date as the check, in the handwriting of the defendant: “A. S. Whiton [defendant’s name], 19 Broad street. Four months loan. From Union Trust Company. Amount, $75,000. Interest, seven per cent.” Following which was a statement of securities valued at $92,000. Reld, that the evidence was sufficient to require the court to submit to the jury the question whether a loan had not been made to the defendant, and that an order dismissing the complaint was erroneous and should be reversed.
    Motion for a new trial by plaintiff, on exceptions ordered to be beard in tbe first instance at tbe General . Term, after a nonsuit ordered by tbe court.
    Tbe action was for money loaned by plaintiff to defendant.

      'Wheeler H. Peokham, for tbe plaintiff.

      Ashbel Green and B. F. Dunning, for the defendant.
   Daniels, J.:

To prove the loan of tbe money which the plaintiff sought to recover in this action, a check was produced purporting to have been a check of the Union Trust Company of New York, signed by J. H. Erothingham, president, and O. T. Carlton, who was shown to have been the secretary of the company, by which the Manhattan Company was requested to pay to the order of A. S. Whiton the sum of $75,000 in current funds. It was dated on the 16th of June, 1871, and shown to have been indorsed by the defendant; and it was produced on the trial by the plaintiff’s tellei’, who testified that it was a loan check. An envelope was also produced in like manner from the papers of the plaintiff, which was read in evidence, containing the following indorsement;

“Date, June 16, ÍSUL. A. S. Whiton, 19 Broad street. Four months loan from Union Trust Company. Amount, $15,000. Interest, seven per cent.”

And underneath this indorsement, under the word “ securities,” followed the statement: “ Georgia seven per cent gold bonds, number,” to which was added the numbers of 400 bonds, valued on the right side of the envelope at $92,000.

. The plaintiff proved that the name of A. S. Whiton in the indorsement was the handwriting of the defendant. And upon these facts its case was rested. The court thereupon nonsuited the plaintiff) on the ground that the proof was not sufficient to sustain the presumption of a loan of the money.

The indorsement of the check by the defendant indicated that it had passed through his hands, and in some manner afterward had reached the possession of the plaintiff. These were circumstances tending to show that the defendant had used it; and if he did that, he probably had done so in the usual manner of rendering such instruments available, by procuring the money upon it. (1 Greenlf. on Ev., § 38 ; id., vol. 2, § 112.)

' The indorsement made upon the draft bore the same date as the check, and mentioned the same amount, and declared that a four months’ loan of that sum had been made from the plaintiff. And as it contained the signature of the defendant, it indicated him to have been the borrower. It was taken together, in the nature of an admission, that the plaintiff had loaned him the sum of money mentioned in the check. And as that was stated to have been a loan check, it is probable from that circumstance, as well as the identity of the date and amount, that both instruments related to the same transaction, and that the money had been loaned by the plaintiff as it was alleged it had in the complaint. In its circumstances, the case was within the intimation given in Cary v. Genish (4 Esp., 9) as' to what would be sufficient to justify the presumption of a loan. They were more cogent, evidently, than the admission and act of’the defendant in Bogert v. Morse (1 Comst., 377), and which were deemed enough to warrant the jury in finding that a loan of money had been made. The natural inference from the check indorsed by the defendant being found in the possession of the plaintiff, with the admission which could be inferred from tbe statement, embodying his signature, made upon the envelope was, that he had been loaned this amount of money by the plaintiff. In this respect, enough appeared to entitle the plaintiff* to have the case submitted to tbe jury,

The nonsuit should .therefore be set aside, and a new trial ordered, with costs to abide the event.

Davis, P. J., and Beady, J., concurred.

Nonsuit set aside, new trial ordered, costs to abide event.


author: Daniels, J. ■

text:
    HARRIS WINES, Plaintiff, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Defendant.

      Attendant upon the Ma/rine Oowt — salcwy of — power of hom'd of supervisors over.

    Under the provision of chapter 582 of 1870, relating to the Marine Oourt of the city of New York, the hoard of supervisors are authorized to fix the salaries of the officers and attendants of the said court, notwithstanding the prohibition against creating any new office or increasing the salaries of those then in office, contained in section 8 of chapter 882 of 1870.

      Sweeney v. Mayor (58 N. Y., 625; 5 Daly, 274) distinguished.
    The question whether the attendants upon the courts of the city of New York are officers of the said court, or merely the servants thereof, considered.
    MotioN by the defendant for a new trial on exceptions ordered to be first heard at General Term, after a verdict directed for the plaintiff.

      Elliot Sanford, for the plaintiff.

      Charles P. Miller, for the defendant.
   Daniels, J. ■

The verdict which the plaintiff recovered was for the difference between $1,200, which was fixed by the board of supervisors, in 1866, for his salary as an attendant of the Marine Oourt, and $1,500, the sum to which by a resolution adopted by the same board, it was advanced on the 27th of May, 1870. The ruling made at the trial by which the recovery for this difference was allowed was excepted to as erroneous, because of a provision contained in chapter 382 of the Laws of 1870, prohibiting the board 'of supervisors of the county of New York from creating any new office or department, or increasing the salaries of those who were then in office, or of their successors. (Yol. 1, Laws of 1870, 878, § 3.) That went into effect on the twenty-sixth day of April before the resolution in question was adopted; and if it was within this provision of the statute, it is the duty of the court to declare it void.

In the case of Sweeny v. Mayor, etc. (5 Daly, 274), it was held that an attendant on the Court of Common Pleas was an officer within the meaning of this provision, and this decision was after-wards affirmed by the Court of Appeals (58 N. Y., 625). The determination proceeded upon the definition given of an office by the chief judge in the course of his opinion in deciding the case of People v. Nostrand (46 N. Y., 375). This decision would be controlling over the right of the plaintiff to recover in this case, if it were directly applicable to the facts as they have been proven. But it is not, for the reason that another provision was enacted concerning the attendants upon the Marine Court of the city of New York, which went into effect the second of May. That was before the adoption of the resolution declaring the increase in the salary of the plaintiff. It provided, that besides the clerk, his assistant and deputies, the court should “ have power to appoint such other assistants, stenographers, interpreters and attendants as the board of supervisors may, from time to time, by resolution, authorize to be so appointed, who shall, respectively, be paid at such rates as may be fixed by the said board of supervisors” (vol. 2, Laws of 1870, 1347, chap. 582, § 3), and that in its terms was broad enough to sustain the resolution adopted. It is to be presumed from the action of the board that the plaintiff was within the number of attendants it authorized to be appointed, and from his continued employment that he retained his position with the approbation of the court. These circumstances were sufficient to bring him within the power of the board, for the purpose of enabling it to fix the amount of his salary; and it was probably so considered when the action was taken wbicb resulted in tbe adoption of the resolution.

It has, however, been urged that this section of the statute was not constitutionally enacted, because the subject was not contained in the title of the act. That was entitled, An act to reduce the several acts in relation to the Marine Court of the City of New York into one act, and to extend the jurisdiction of said court.” In substance and effect, as this described it, it was an act defining the power and authority of the court; and as a proper incident of it the court was empowered to appoint its attendants, subject to the qualification that they should not exceed in number those considered by the board to be sufficient; nor receive a compensation beyond what it should deem to be adequate. These were incidents of the general purpose of the act as the title described its subject, and therefore, not inappropriately, made a part of it. The object was to define the powers of the court, and this could very well be included under its title, without violating the constitutional provision existing upon that subject. In the case of Holley v. Mayor, etc. (59 N. Y., 166), this provision of the statute was considered by the Court of Appeals, but no doubt was intimated in any form as to its validity. It was acted upon by that tribunal as possessing all the authority of a regularly enacted law; which would not. have been the case if it had been obnoxious to this objection. And on that account this decision is at least a tacit authority against the position now taken in support of the present motion.

For the reasons already assigned, as well as the support afforded to this provision of the act by that authority, it should be sustained as a constitutional exercise of legislative power; and as it in terms gave the board the authority to fix the salaries of the attendants of the Marine Court, and they were so fixed by the resolution after-wards adopted, the plaintiff was entitled to recover the amount allowed to him on the trial. In this respect the case is distinguishable from the decision made upon the action brought by Sweeny. He was an attendant upon the Court of Common Pleas, to which this last act did not apply. And if he was an officer of that court, as it was then held he was, the board of supervisors was forbidden to increase his salary. But even if the plaintiff were an officer, that result would not follow in his case, because be was an officer of the Marine Court, over whose salary complete authority had been giren to the board of supervisors, by the act exclusively applicable to that court, and afterwards enacted. He was not an officer whose salary could not be increased, because of the prohibition contained in the act of April 26, 1870, for the reason that in six days after that, the power of the board over it was restored by the other enactment. Such legislation is not to be commended, because of its instability and apparent disregard of public interests. But after it has been invested with all the authority of law, the courts are not at liberty to disregard it. Although apparently injudicious, it must be enforced, as all other laws constitutionally enacted are required to be.

Besides that, the case of Sweeny v. Mayor, etc. (supra), seems to have been shorn of its authority by 'later decisions of the court which finally determined it. In that case it was held upon mere proof of the fact that plaintiff was an attendant upon the Court of Common Pleas; that he was made, by virtue of that position, an officer. But in the case of Brennan v. Mayor, etc. (62 N. Y., 365), which was decided without reference to the other case, it was said that “ attendants were not officers,” but merely servants of the court, performing such menial services as should be required of them from time to time. (Id., 369, 370.) According to this decision, if this announcement is to prevail, even the attendants upon the Court of Common Pleas, which were held in the case of Sweeny to be officers, must be regarded as merely servants of the court, and not officers in any sense of that term. In this respect the case of Holley v. Mayor, etc. (59 N. Y., 166), was followed by the more recent decision. In that case it was held that an attendant of the Marine Court was merely the servant of the court, with no duties except to attend its sittings and do the biddings of the judges. There is no analogy between the position occupied by him and that of executive, administrative or judicial officers charged with official duties and responsibilities affecting the public. ” (Id., 170, 171.) In the last case cited the nature of the position of an attendant seems to have necessarily employed the consideration of the court in making the decision. But it is not so clear that the same thing was true in the other case. But together they seem to be sufficient. authority for the conclusion that an attendant is not to be considered an officer, as he was unequivocally held to be by the decision of Sweeny’s Case, and if that be the law, then for that reason the plaintiff could not be included in the prohibitory clause concerning salaries contained in section 3 of chapter 382 of the Laws of lSIO.

It may be when the powers and duties of attendants upon the courts in this department are again fully brought to the attention of the Court of Appeals, that the authority of the Sweeny Case will be revived. If attendants upon the various branches of the Supreme Court in this city are not officers, the courts seem to be deprived of all officers but the clerk and one crier. And those persons who preserve order, execute the orders of the courts, take charge of the juries, act as criers of the several courts, and perform all the acts of officers of courts held in other counties, are simply servants, and not officers, in the legal sense of that term. This would seem to be the result of a misapprehension of their functions and duties.

But as the authorities now stand, they appear to maintain the conclusion that an attendant is not to be considered an officer. And they, instead of Sweeny’s Case, which held the contrary, must be regarded as probably controlling, unless the court of last resort, upon a further examination into the powers and duties of these attendants upon the courts, shall deem them to be unsound, and apply its own constructing power to their rectification and the restoration Of the authority of the earlier ease. But as the statute applicable to the attendants upon the Marine Court is necessarily controlling over this case, its decision can be safely placed upon that ground, without speculating upon the effect of further investigation into the functions and duties of attendants upon courts, in this department. The motion for a new trial should be denied, and judgment for the plaintiff ordered upon the verdict.

Davis, P. J., and Beady, J., concurred.

Motion denied. Judgment ordered for plaintiff on verdict.