text:
    THE FIRE DEPARTMENT OF THE CITY OF NEW YORK, Respondent, v. ALBERT P. STURTEVANT and JOHN STURTEVANT, Appellants.
    Mre department of New York — the power to compel the erection of fire escapes must be exercised, by it, and not by its subordinate officers — the order must comply with the notice as to the number of escapes to be erected.

    The power' to require by tbe service of proper notices the construction of fire escapes in and upon hotels in the city of New York is conferred upon tbe fire department of tbe city of New York, and it must be exercised by it and ■ not by one of its subordinate bureaus or officers.
    Where, during tbe pendency of proceedings instituted to compel tbe defendant to erect five fire escapes upon his hotel, as required by a notice served upon him by tbe fire department, tbe department concludes that two of tbe fire escapes might be dispensed with and so notifies tbe defendant, it cannot upon tbe bearing of tbe motion procure an order requiring tbe defendant to build three fire escapes instead of five as stated in tbe notice.
    If tbe number of fire escapes is to be reduced a new notice must be served and an , opportunity to comply therewith be afforded to tbe defendant.
    Appeal from an order of the Special Term authorizing and directing the respondent to place upon the hotel of the appellants certain fire escapes, as specially directed in the order.

      George W. MoAdam and Albert Matthews, for the appellants.

      William L. Fmdley, for the respondent.
   Davis, P. J.:

The powers conferred by statute upon the fire department of the city of New York, to require by proper notice, the construction of fire escapes in and upon hotels like that of the appellants, are clearly constitutional, and are to be exercised as other like police powers and regulations under the directions of the statutes in accordance with the^ sound discretion of the fire department; and courts of justice will not interfere with the exercise of those powers “ unless,” as said by BabbEtt, J., in the Fire Department v. Tallman, “ that exercise is so clearly improper that any intelligent mind can see the plain and manifest injustice and unreasonableness of the demand.” (Fire Department v. Tallman, Daily Reg., May 31, 1888; Todd v. Fire Department, Id., June 19, 1883,per Lawrence, J.; People v. Mayor, 32 Barb., 102.)

Such proceedings are not obnoxious to the objection that the party affected is deprived of his property without due pi’ocess of law. IS! or is the right of trial by jury secured to him therein, or in any just sense applicable thereto. (Metropolitan Board of Health v. Heister, 37 N. Y., 668; Health Department v. Knoll, 70 id., 530; Reynolds v. Schultz, 34 How., 147; Code of Civil Pro., § 968.)

If the case of Fire Department v. Harrison (17 How., 273) be construed to hold otherwise, it is to that extent not deemed to be sound law; but we think it will bear no such construction. If these were the only questions presented by this appeal we should have no difficulty in affirming the order of the Special Term. There are, however, two points fatal to the validity of the order. The power conferred by statute in cases of this character is given to the fire department of the city of New York. Section 499, of chapter 410 of the Laws of 1882, enacts that any buildingmore than three stories in height, occupied^ as a hotel, “ shall be provided with such fire escapes, alanns and doors as shall be directed by the fire department.” (Chap. 410, Laws of 1882.). This requires the action and direction of the department as such, and is not satisfied with the action and direction only of one of its subordinate officers or bureaus. After the exercise of its judgment in the case, the board may undoubtedly act in the execution of its judgment through the appropriate bureau and by the officer charged with that duty. These powers and duties are statutory, and they may invade the property and rights of citizens and impose upon them onerous duties and obligations to be performed under the sanction of severe liabilities and penalties. It is, therefore, to be shown in all cases that the power has been set in motion and is sought to be exercised in substantial compliance in its severa] steps and proceedings with the statute.

In this case the notice was served on the 25th day of January, 1883. The act of 1882 (known as the Consolidation Act) took effect on the 1st of March, 1883. The statute, at the time the notice was served, required that all such notices “ shall be issued in the name of the fire department of the city of New York, and shall Tiave the name of the inspector of buildings affixed thereto.” (Sec. 2, chap. 681, Laws of 1881, amending sec. 34 of chap. 625 of Laws of 1811.)

The notice in this ease emanates from the bureau of inspection of buildings. It is subscribed by the inspector of buildings, but it is not issued in the name of the Fire Department of the city of New York; nor does it anywhere assert that it has the authority of that department. As the law then stood the notice did not comply with its requirements, and the appellants were not subject to any of the consequences provided for its disobedience.

No steps were taken to enforce the direction of the notice until after the consolidation act went into effect. Then and on the 28th of June, 1883, the order to show cause at Special Term was obtained. Pending the proceedings on the motion and on the 30th of October, 1883, the inspector of buildings made an affidavit to the effect that at the request of the defendants he had inspected the building a second time, and had concluded that two of the fire balconies and escapes specified in the notice might be dispensed with, but that the remaining three particularly specified in the notice were indispensable, and that if the motion was granted he would only ask for an order to authorize the erection of the three escapes mentioned in his affidavit.

In that form the motion was pressed and resisted, and was granted against the objection and resistance of the appellants. If the appellants had consented to this change the order in that particular would have been correct, but they resisted and the order was wholly in invitum as to them.

As to any requirement to build the three escapes they were not in default. They had been required to build five, and no option had been given them to build three. Non constat, if served with notice to build the three now specified in the order of the court, they would have complied within the time given them by statute. The authority of the Special Term to make an order depends upon the refusal or neglect to comply with the requirements of the department within a prescribed time. If the department require ten fire escapes to be constructed and the party refuses to comply with that order, can the department on such a refusal come into court and get an order authorizing itself to proceed to build one escape at the defendant’s expense and charge his property with the expense as a lien, and with the costs of the proceedings ?

In short, the appellants in this case have never had their opportunity to comply with what the order of the Special Term now authorizes and directs, and hence have not subjected themselves to the penal effects of the statute.

"When the inspector concluded that three escapes were all that were necessary, a new notice should have been served and a new opportunity given to construct them, and on failure to comply another proceeding to enforce the direction should have been taken. In cases like this the greater does not include the less, because the power of the court to authorize the department to proceed and construct escapes upon defendant’s property, depends wholly upon his unlawfully refusing to do what was lawfully required at his hands; a refusal to do more than is necessary is not a refusal to do so much as is necessary.

The order should therefore be reversed, but as these grounds do not appear to have been pressed or considered in the court at Special Term, without costs.

Daniels, J., concurred.

Present — Davis, P. J., and Daniels, J.

Order reversed, without costs.


source: Caselaw Access Project

author: Davis, P. J. :

license: Public Domain

text:
    CHARLES J. HARRIS and ROBERT C. REEVES, as Executors, etc., of ABRAHAM DENICK, Respondents, v. THE AMERICAN BAPTIST HOME MISSIONARY SOCIETY and Others, Defendants and Appellants, Impleaded with ELIZABETH A. DENICK and Others, Respondents.

      Religious and charitable corporations — right of, to take bequests and devises by will— when 'the will need not be made two months before the testator’s death —1848, chap. 319 —1860, chap. 360.
    Bequests and devises to religious societies incorporated under the act of 1813, and the acts amendatory thereof and supplementary thereto, are not subject to the provisions contained in section 6 of chapter 319 of 1848, making all devises and bequests to corporations formed thereunder invalid if the will in which they are contained was not made and executed at least two months before the death of the testator.
    The American Baptist Home Missionary Society was incorporated by chapter 117 of 1843. By chapter 35 of 1849 its charter was amended by embodying therein the restrictions and limitations contained in the said act of 1848. By chapter 196 of 1877 the charter was again amended by eliminating all reference to the act of 1848, and making every bequest subject to the provisions of chapter 860 of 1860.

      Seld, that bequests to the said corporation ceased, after the amendment of 1877, to be subject to the requirements that the will be executed two months prior to the testator’s death, imposed by the act of 1848.
    Appeal from a judgment, entered upon tbe trial of tbis action at a Special Term.

      John U. Deane and 8. P. Nash, fur the Tabernacle Baptist Church, appellant.

      Cephas Brainerd, for other appellants.'

      Homer Nelson, for the respondents.
   Davis, P. J. :

This action was brought to obtain a judicial construction of the, will of Abraham Denike. The testator died September 6, 1819, leaving a niece and two nephews his only heirs-at-law and next of kin, whom he also made the residuary legatees of his estate. The will was made less than two months prior to the testator’s death. It contains the following bequests :

To the American Baptist Home Missionary Society, $5,000 for the church edifice fund.

To the American Baptist Missionary Union, $5,000.

To the Baptist Home for the Aged in the city of New York, $5,000.

To the board of trustees of the Tabernacle Baptist Church of the city of New York, $8,000.

The Special Term held each of these bequests to be invalid under the provisions of chapter 319 of the Laws of 1848, because the will was made within two months of the testator’s decease.

Stephenson v. Short (92 N. Y., 433, affirming same case, 27 Run, 380), settles that the act of 1848 invalidates all bequests to. benevolent, charitable, scientific and missionary societies which are, or have been made, subject to its provisions! As to all the questions affecting the several appellants, considered in the opinion of the court at Special Term, we think the views expressed by the learned judge are correct; but the opinion fails to consider the questions presented here by some of the appellants.

The appellant, the Tabernacle Baptist Church, to which a bequest of $8,000 is given, is a religious corporation formed under the act of 1813 and its several amendments. This corporation is entirely different from the “ benevolent, charitable, scientific and missionary societies,” which may be incorporated under the act .of 1848 (chap. 319, Laws of 1848); and it is not, we think, subject to the provisions of the act of 1848, except so far as the legislature has made it so by subsequent enactment. Chapter 79 of the Laws of 1875 (p. 443) disposed of the question whether religious corporations created under the act of 1813 can take by will; and in so taking, it subjected, them to the provisions of chapter 360 of the Laws of■ 1860, entitled An act relating to wills,” which provided that no person having a husband, wife, child or parent living shall devise or bequeath more than one-half of his estate to benevolent and religious purposes. Such bequests of the will now in question, it is shown do not equal one-fourth of the testator’s estate. There is nothing therefore in the act of 1860 that can impair the will in this case, even if it be held to be within the description of that act (which we think could' not be done).- Ve are referred to no statute subjecting religious corporations created under the Laws of 1813 to the two months'restriction of the act of 1848. None of the cases in the court of last resort seem to touch the question. (Lefevre v. Lefevre, 59 N. Y., 434.)

In Kerr v. Dougherty (79 N. Y., 327) a devise to a religious corporation, created under the act of 1813, was sustained by the General Term, but no appeal was taken to the Court of Appeals therefrom. (Marx v. McGlynn, 88 N. Y., 357; Stephenson v. Short, 92 N. Y., 433.) These cases all related to benevolent and missionary societies. Stephenson v. Short comes nearest the point, but in that case “ The Baptist Missionary Convention ” which claimed under the will was incorporated by a special act, which subjected it to the existing provisions of law in terms which the court construed to bring it within the two months’ restriction of the act of 1848.

No such language is found in the act of 1875 which authorizes gifts to religious societies incorporated under the act of 1813 and expressly subjects them to the provisions of the act of 1860, without allusion to the act of 1848 in either general or express terms. It may well be claimed that the maxim expressio unius est exelusio alterius applies. Thé legislature had both the act of 1848, and that of 1860 before them and it elected to subject this class of religious corporations to the latter. It requires too great stringency of construction for courts to do more than the legislature has seen fit to do. We are therefore of opinion that the bequest to the Tabernacle Baptist Church is valid.

The American Baptist Home Mission Society was incorporated in 1843. (Chapter 117, Session Laws 1843.) In 1849 (chap. 35 of 1849) the legislature amended the act incorporating this society, and amongst other things embodied in section two of the act the restrictions and limitations contained in the act of 1848. (Laws of 1849, p. 30.) The charter continued in that form till 1877, when the legislature passed an act entitled “ An sfct further to amend chapter one hundred and seventeen of the laws of eighteen hundred and forty-three, entitled ‘ An act to incorporate the American Baptist Home Mission Society.’ ” (Chap. 196 of 1877.) By this amendment section two of the charter as it was amended in 1849, was again amended by wholly eliminating all reference to the act of 1848, and substituting in its place these words, “provided that every such bequest or devise shall be subject to the provisions of the act (chapter) three hundred and sixty of the Laws of eighteen hundred and sixty.” The effect of this amendment was, in our opinion, to relieve this society from the restrictive operation of the provisions of the act of 1848, and subject it to the different and somewhat conflicting provisions of the act of 1860. The legislature must be presumed to have intended something by the change, and it is difficult to see what else could have been intended. There are no references in this charter, as now amended, which subject bequests to this society to the limitations “ of existing laws; ” and we think the courts cannot impose any restrictions on the power to take greater .than those specially imposed by the chai’ter as last amended.

There is nothing in the limitations of the present charter which prevents this appellant from taking the bequest.

As to all the other bequests the court below properly disposed of the questions arising in the case. "We think the judgment must be modified by holding that the gifts to the Tabernacle Baptist Church and to the American Baptist Home Missionary Society are valid, and that they are respectively entitled to judgment directing their payment, with costs; and as so modified that the judgment appealed from be affirmed.

We think this a proper case in which to direct the costs of the appeal of all the parties to be paid out of the fund.

Brady and Daniels, JJ"., concurred, citing Haths v. Haths (18 Weekly Dig., 544).

Judgment modified as directed in opinion, and affirmed as modified ; costs of all parties to be paid out of the fund. ,


author: Davis, P. J.:

text:
    THE HOME INSURANCE COMPANY, Plaintiff, v. DAVID H. DUNHAM and THE CHATHAM NATIONAL BANK and Others, Respondents, and SAMUEL NORDHEIMER, Appellant.

      Usury — to constitute it the agreement to pay excessive interest must be an absolute one — judgment in partition — effect thereof, on the rights of mortgagees who as'e pa/rties thereto as between each other.

    One Nordheimer having loaned $13,000 to D. If. & J. B. Dunham, the latter to secure the payment thereof executed a mortgage to one H., who thereafter assigned it to Nordheimer. The mortgage secured ,the payment of interest at seven per cent only, hut by another instrument, signed and delivered by the mortgagees, simultaneously with the delivery of the assignment, they agreed to pay eight per cent instead of seven, “ or any taxes that may be exacted.”
    Held, that as the second instrument contained an alternative and not an absolute agreement to pay more than seven per cent it did not render the mortgage usurious.
    After the execution of the mortgage held by Nordheimer, and of another one-given to a bank, an action of partition was brought by one of the mortgagors against the other, and against the owners of other interests in the land. In this action, to which Nordheimer and the bank were made parties, a judgment was entered allotting a portion of the premises to the mortgagors and transferring the liens of the mortgages thereto.

      Held, that this judgment estopped the bank from thereafter attacking the validity of Nordheimer’s mortgage on the ground of usury.
    Appeal from an order made at Special Term, overruling exceptions to tbe report of a referee and' confirming sucb report.

      John II. Y. Arnold, for tbe appellant.

      Scmford H. Steele, for Chatham National Bank, respondent.

      Adol/ph Czalci and A. O. Thomas, for Herman Schwartz,, respondent.
    ' William H. Arnowe, for other respondents.
   Davis, P. J.:

A surplus was realized on tbe foreclosure of tbe mortgage in tbe above entitled action, to which tbe appellant and tbe several respondents filed claims as junior lienors. -The appellants mortgage was tbe prior lien among tbe several claimants, unless it be adjudged usurious and void, as reported by tbe referee and held by tbe Special Term in overruling the appellants exceptions and confirming the report. Assuming that the question whether or not the appellants mortgage was void for usury was one open to be contested by the subsequent mortgagee, and the judgment creditor, the first question to be considered is whether its 'usurious character was proven by the respondents.

It is claimed on ’ the part of the several respondents that the appellant loaned to David H. and John B. Dunham the sum of $15,000, for which a mortgage dated October 9, 1878, to secure that sum, was executed to one Hallgarten for appellant, and by Hallgarten afterwards assigned to appellant. This mortgage on its face secured interest at the rate of seven per cent only, but simultaneously with its delivery another instrument and writing was made by the mortgagors and delivered to the appellant which is in words and figures following:

“New York, November 15,1878.
“We hereby agree to pay interest at the rate of eight per cent per annum on bond and mortgage given to Mr. Julius Hallgarten, and assigned to Mr. Samuel Nordheimer, instead of seven per cent, as drawn in said mortgage, or any taxes that may be exacted.
“DAYID H. DUNHAM.
“ JOHN B. DUNHAM.”

This instrument expresses the agreement alleged, and by the referee found, to be usurious. An agreement to be void for usury under the statute must be one which will enable the party making the loan to demand and enforce the payment of the excessive interest, but for the operation of the statute. There must be no option on the part of the borrower to pay or not, as he chooses, the excess beyond the legal rate of interest. In this case the bond and mortgage secured legal interest only, and for that interest alone the mortgage became a lien on the land described in it. The separate and concurrent agreement did not operate to change the mortgage or affect its lien. It would, however, render the bond and mortgage usurious if it expressed any absolute agreement to pay interest on the money loaned in excess of the statutory rate. But in our opinion it does nothing of the kind. It is an agreement in the alternative to do one thing or another; that is, to pay eight per cent in lieu of seven, as expressed in the bond and mortgage, “ or amy taxes that may le exacted.” There is no agreement to pay eight per cent, because the option of the alternatives is altogether with the makers of the instrument. They assume by the instrument no obligation to pay anything until the opportunity to exercise their option arises; then they have a right by the terms of the instrument to elect which they will do. When that contingency happens they will be bound to elect, or upon their refusal to elect, the right of option may perhaps be transferred to the appellant, in which case (assuming the agreement valid) he may maintain action upon it. But until the makers have the occasion to make the election or exercise their option, they are bound to pay nothing under the agreement. Wo taxes were ever exacted. There was therefore no absolute agreement to pay anything beyond the legal interest reserved by the bond and mortgage, and at no time had the appellant (the statute of usury being out of the way), any legal right to demand more than the interest reserved by those instruments. There was therefore no violation of the statute against usury, which can operate to forfeit the bond and mortgage, because there was no absolute reservation of any certain advantage beyond the rate of the interest allowed by law.

It is not clear by the terms of the agreement to what taxes the alternative clause referred. David H. Dunham,'who attended to the business, testified emphatically that it referred to the real estate taxes on the mortgaged property, and had no reference to any taxes that the mortgagee might have to pay on this bond and mortgage. That being the case the agreement could not be usurious, because in exercising the option the borrowers would only do what the law required at their hands, for by statute those taxes could have been paid by the mortgagee and added to the sum secured by the mortgage. We are of opinion that the alleged usurious agreement was not proved.

But assuming that the agreement was usurious, the respondent, the Chatham National Bank, is not in a position entitling it to allege and enforce the objection of usury. The mortgages both to the appellant and to the Chatham National Bank were made of and upon the undivided interests of the mortgagors in the real estate described in them respectively. Subsequently an action in partition was brought in the Supreme Court by John B. Dunham and his wife against David H. Dunham and his wife and this appellant, and the Chatham National Bank, the respondent, and numerous other defendants owning interest in said lands, to partition the same according to their several rights and interests, in which action certain portions of the lands and premises affected by the suit were partitioned and allotted to the said John B. Dunham and David H. Dunham and their wives, as tenants in common for their shares, etc. The effect of this judgment was to transfer and fix or limit the lien of the mortgages to appellant and to the Chatham National Bank in their respective order of priority to the lands so assigned to the mortgagors. In that action the validity of these mortgages and their relation to each other on the question of priority was necessarily asserted by the action of the mortgagors and confirmed by the-judgment of the court. The mortgagors then had the opportunity and could have contested the validity of the appellant’s mortgage on the ground on which it is now attacked. On the contrary, they asserted in the court the validity of both mortgages and caused their lien to be attached to the lands allotted to them in common. It must be presumed that both the appellant and the Chatham National Bank were made parties to the partition suit as such mortgagees (Halsted v. Halsted, 55 N. Y., 442), for no other interest in the premises appears.

In our opinion the judgment of partition in that case is conclusive against the Dunhams upon the question of the validity of the mortgage to the appellant. Both or either of them could have contested that question in that suit, and asserted the alleged usury; and caused the lien, upon establishing the usury, of the mortgage to be removed from their interests in the lands. Instead of doing that they caused it to be adjudicated to rest thereafter upon their interests in common in the lands partitioned to them. Having thus deprived themselves of the right to assert the alleged usury, no-junior mortgagee or lienor who was a party to that action can assert it. So in that suit the Chatham National Bank could have alleged the invalidity of appellant’s mortgage on the ground of usury and cause its priority of lien to have been determined and adjudged. It saw fit to allow the lien of appellant’s mortgage to be attached by the judgment to the parcels of the real estate allotted to the Dun-hams, and it is now too late to defeat that lien by the assertion of any matters which they then had opportunity to set up and contest.

The principle which now estops the Chatham National Bank as well as the Dunhams, all of whom were parties to the action in partition, from now contesting the validity of appellant’s mortgage is found in numerous cases. (Le Guen v. Gouverneur, 1 Johns. Cases, 436; Southgate v. Montgomery, 1 Paige, 41; Bruen v. Hone, 2 Barb., 586; Harris v. Harris, 36 id., 88; Hayes v. Reese, 34 id., 151; Gates v. Preston, 41 N. Y., 113 ; Bink, v. Wood, 43 Barb., 315; Foster v. Milliner, 50 id., 385; Bates v. Delavan, 5 Paige, 299; Dows v. McMichaels, 6 id., 139; Smith v. Smith, 79 N. Y., 634; Jordan v. Van Epps, 85 id., 428.)

Prom these views it follows that the order of the Special Term was erroneous and should be reversed, with the usual costs and disbursements, and that the exceptions to the report of the referee should be sustained and an order made adjudging the validity of appellant’s mortgage and his right accordingly to be paid out of the surplus moneys.

Brady and Daniels, JJ., concurred.

Order reversed, with ten dollars costs and disbursements; exceptions to referee’s report sustained; order entered as directed in opinion.


text:
    SAFFOLD BERNEY and Others, Respondents, v. ANTHONY J. DREXEL and Others, Appellants.

      Demurrer — upon the ground of a misjoinder of parties plaintiffs — the objection must he specifically stated— Code of Oivil Procedure, sec. 490.
    A demurrer was interposed to tbe complaint in this action upon the grounds that the plaintiffs had no legal capacity to sue; that there was a defect of parties defendant, and that the complaint did not state facts sufficient to constitute a cause of action.

      Held, that the demurrants could not sustain their demurrer by showing that it appeared from the allegations of the complaint that there was a misjoinder of parties plaintiff.
    A defendant desiring to raise the objection of a misjoinder of parties plaintiff must distinctly specify this objection in his demurrer, and must point out specifically the particular defect relied upon.

      Motion for a reargument of an appeal from a judgment overruling a demurrer to the complaint.
    The judgment was affirmed in May 1884, the opinion of Davis P. J. being reported supra (p. 34). The action was brought by the plaintiff, Louise Berney, as the widow, and by the other plaintiffs as the residuary legatees of Robert Berney, to recover damages for the unlawful conversion by the defendants of personal property alleged to belong to the plaintiffs.
    Tracy, Olmstead c& Tracy, for the appellants.
    Lord, Day ós Lord for the respondents.
   Davis, P. J. :

The demurrer in this case assigned the following grounds:

First. That the plaintiffs had no legal capacity to sue.

Second. That there was a defect of parties defendant.

Third. That the complaint did not state facts sufficient to constitute a cause of action.

The substantial question presented on this motion, is whether on these assignments of grounds of demurrer it can be urged that the demurrants are entitled to judgment on the ground that it appears by the allegations of the complaint that there is a mis joiner of parties plaintiff. This question was not presented on the former argument by counsel, nor was it considered by the court. The allegations of the complaint do show that the title of the cause of action, and the right to maintain the same, are vested in the several plaintiffs, other than the plaintiff Louise Berney, who otherwise appears by the complaint to have an interest in the- estate of her deceased husband as a beneficiary in trust, if the other plaintiffs recover. The long and short of it is that she is improperly joined as a plaintiff.

Section 488 of the Code of Civil Procedure specifies when a defendant may demur to a complaint and on what grounds. The fifth ground so specified is “ that there is a misjoinder of parties plaintiff.” Section 490 declares that the demurrer must distinctly specify the objections to the complaint; otherwise it may be disregarded. And it further provides that an objection taken under the fifth, sixth and seventh subdivisions “must point out specifically the particular defect relied upon.”

In order therefore to take advantage by demurrer of the misjoinder of Mrs. Berney as a plaintiff in this action it was necessary that the plaintiff should not only assign as a ground of demurrer that there is a misjoinder of the parties plaintiff,” but have proceeded to point out that the plaintiff Louise Berney is improperly joined with the other plaintiffs, because she is shown to have no cause of action jointly with them; but that the sole cause of action set forth in the complaint is averred to be in the other plaintiffs exclusive of her. A demurrer with such an assignment and specification would probably have been sustained both at the special term and on appeal.

It is insisted, however, that the point can be taken under the general assignment made under the eighth subdivision of the section, to wit, “ that the complaint does not state facts sufficient to constitute a cause of action,” because the complaint shows affirmatively that the cause and right of action are not vested in all the parties plaintiff. There would be greater force in this contention if it were not for the fact that the present Code makes the misjoinder of plaintiffs a special ground of demurrer, and requires that when that objection is taken the demurrant must proceed to “ point out specifically the particular defect relied upon.” If that had been done in this case the plaintiffs could have amended the complaint by dropping out the name of Mrs. Bemey altogether; or by transferring her name, if for any reason it was desirable to continue her as a party, to the rank of defendant. They are deprived of that opportunity if it be held at this stage of the case that the same point may be made under the eighth subdivision of section 488.

Besides, it may be answered that the eighth subdivision of the section does not reach any such defect. It is aimed only at a failure to state any cause of action in, the complaint. Where several plaintiffs unite in bringing an action and state in tlieir complaint facts which do constitute a cause of action in favor of one or moré, but not of all the plaintiffs, a demurrer based upon an assignment of the eighth ground of the section must be overruled, because the defect is not that the complaint does not state facts sufficient to constitute a cause of action, but- that it fails to show that the cause of action thus stated belongs to all the plaintiffs — which is quite another thing and belongs to another subdivision of the section.

Assuming as we do that the court did not err in holding that facts sufficient to constitute a cause of action are stated in the complaint, it necessarily follows that a reargument would be quite unavailing to the demurrants and should therefore be denied, with the usual costs of a motion.

Brajdy and Daniels, JJ., concurred.

Motion denied, with ten dollars costs.


author: Haight, J.:

text:
    WILLIAM SMYTH, as Acting Superintendent of the Insurance Department of the State of New York, Plaintiff, v. EDWARD ROWE and Others, Defendants. (CLARA A. HELM, Purchaser, Appellant.)

      Mwtgage — when an equitable title held Iry the mortgagors will pass undm' it.

    The owners of land fronting on a highway executed a mortgage thereon, which was subsequently foreclosed and the premises sold. At the time the mortgage was given the land of the mortgagors was bounded, by the terms of their deed, by the exterior line of the highway, although it was intended by them and by their grantor that they should own to the center of the street. The mortgage conveyedjthe land, bounding the same by the center of the highway, together with “ all the estate, right,” etc., “ as well in law as in equity of the said parties of the first part of, in or to the same, and every part and parcel thereof, . with the appurtenances.” Subsequently the street was abandoned and a quitclaim deed was executed to the mortgagors by their grantor conveying the portion of the old highway. The mortgagors were parties to tbe action of foreclosure.

      Held, that as they were at the time of the execution of the mortgage the equitable owners of the land in the street, such equitable title passed to the mortgagee and the foreclosure and sale transferred to the purchaser the equitable title, together with the legal title thereto subsequently acquired.
    Appeal from an order of the New York Special Term, compelling the purchaser to complete his purchase under a sale had upon the foreclosure of a mortgage executed by Edward Rowe and B. F. Beekman to the Merchants’ Life Insurance Company. The mortgage and the bond to which it was collateral were on July 24, 1872, assigned by the Merchants’ Life Insurance Company to the Superintendent of the Insurance Department.' This mortgage covered and included in its description land which had been formerly a part of the Bloomingdale road, although this land was not included in the description of the land conveyed to the mortgagors, such description running the line along the easterly line of the Bloomingdale road instead of the center line thereof.

      Edward Mitchell, for the plaintiff.

      Eoffrnan Miller, for Clara A. Helm, purchaser, appellant.
   Haight, J.:

On December 16, 1850, the National Mechanics’ Banking Association was the owner in fee of the premises described in the mortgage. The premises in question then ran to the center of the Bloomingdale road. The Mechanics’ Banking Association on that day conveyed the premises to Henry Coggill; bounding the same on the exterior instead of the center line of the Bloomingdale road. Subsequently the premises were conveyed to Edward Bowe and B. E. Beekman, the mortgagors. The purchaser under the foreclosure of the mortgage refuses to complete his purchase and take title for the reason that the mortgagors, at the time of executing the mortgage, were not the owners in fee of that part of the premises formerly located within the line of the Bloomingdale road. It appears that, under chapter 697 of the Laws of 1867, Bloomingdale road was changed into a boulevard, and that portions thereof embracing the lands in dispute were no longer used as a public highway. Subsequent to the execution of the mortgage and on the 25th day of September, 1873, the National Mechanics’ Banking Association, at a meeting of its board of directors, passed a resolution directing that the president and cashier execute a quit-claim deed to B. F. Beekman and Edward Rowe of the lands in dispute herein, in which resolution they state that the lands were intended to have been conveyed to Henry Coggill in 1850. Subsequently a quitclaim deed was executed by the officers of the bank and delivered to B. F. Beekman and Edward Rowe, the mortgagors herein.

The plaintiff, at the time that he took an assignment of the mortgage, took from the defendant B. F. Beekman a written certificate in which he certified that there was unpaid and due upon the mortgage the principal sum of $40,000, and that there were no legal or equitable defenses against the same. A mortgage, like a quit-claim deed, contains no covenants of title. Either instrument operates only upon the present right of the party executing it, and an after-acquired right or title does not inure to the benefit of the grantee or mortgagee or purchaser on foreclosure. (Power v. Lester, 23 N. Y., 532.)

This rule was recognized by the learned justice at Special Term, but that court was of the opinion that the certificate furnished the plaintiff at the time the mortgage was assigned to him operated as a covenant of title and estopped the mortgagors from afterwards questioning the same.

This is doubtless true as to the defendant B. F. Beekman, the person who executed the certificate; the appeal book fails to show that Beekman and Rowe were copartners and that the premises in question were copartnership property. We must assume therefore that they were the owners as tenants in common. If so, we fail to see how the certificate of Beekman would estop Rowe from asserting his after-acquired title

There is another theory however upon which we are of the opinion that the order of the Special Term should be affirmed. It appears from the resolution passed by the board of directors of the National Mechanics' Banking Association, that it was the intention of the bank in its conveyance to Henry Coggill to have included in the deed the lands in dispute. That it was the intention of the bank to have bounded the same by the center instead of the exterior line of the Bloomingdale road. And for the purpose of completing that which was the understanding and intention of tiie parties, the quitclaim deed was executed to Beekman and Rowe. From this fact we conclude that Beekman and Rowe were the equitable owners of the lands in question at the time of executing the mortgage, if they were the equitable owners then their title jaasssed under the express provision of the mortgage. The mortgage conveys all the estate, right, title, interest, dower, right of dower, property, possession, claim and demand whatsoever, as well in law as in equity of the mortgagors. The quit-claim deed therefore only conveyed the legal title to the persons who were the equitable owners. Beekman and Rowe were parties to the foreclosure action. The foreclosure and sale transfers to the purchaser their equitable title, as well as their subsequently acquired legal title. (Crane v. Turner, 67 N. Y., 437.)

The order of the Special Term should be affirmed, with ten dollars costs and disbursements.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    MARY E. WHITEHEAD and Others, Respondents, v. THE NEW YORK LIFE INSURANCE COMPANY, Appellant.

      Policy of insurance, taken out by a wife upon the life of her husband, can only be surrendered, in the manner provided by the statutes —1858, chap. 187 —1873, chap. 821 — A pafrty will be relieved from a failwre to pay premiums where the,omission was caused by the fraudulent act of the company — construction of the t&rm “ heirs of the insured ” in a policy.

    One Mary A. Davis procured from the defendant at different times between 1850 and 1850 three policies of insurance upon the life of her husband, the company agreeing to pay the amount insured, to her upon her husband’s death, and in case she died before him to pay it to her children. She died in 1868 leaving her surviving her husband and the plaintiffs, and a son since dead, her only children. In May and July, 1874, the husband, without the knowledge or consent of the plaintiffs, surrendered the policies to the defendant and received therefor certain sums of money. In making these sdrrenders he claimed to be acting as guardian of the plaintiffs, although he was in fact the guardian of but one of them, the others being of full age. The husband died insolvent in 1879. The plaintiffs having then learned for the first time of the existence-of the policies notified the defendant of the death of their father, offered to-pay the premiums unpaid and demanded the amounts due thereon.
    In this action, brought to have the surrender set aside and to recover the amounts secured to be paid by the policies:

      Held, that the surrender made by the husband was void, because not made upon the written request of the wife as provided in chapter 821 of 1813.
    That as the facts of the case justified a finding that the company participated in, or was liable for the fraudulent acts of the husband, and thereby prevented the payment of the premiums accruing after the date of the surrender, the court had power to relieve the'plaintiffs from the forfeiture occasioned, under the terms of the policies, by their failure to pay the said premiums.
    One of the policies, was surrendered on May 8, 1874. All the premiums due on this policy were paid in full to December 6, 1873.

      Held, that the company by accepting a surrender of the policy in May, and paying a sum of money therefor, treated it as existing and in force, and could not now claim that it had lapsed by reason of the failure to pay the December premium.

      By one of tlie policies the company agreed to pay the sum insured to Mary A Davis, or her legal representatives, but should she die before the insured then, the insurance to vest in the heirs of the insured. The children of Mary A Davis were all, also, children of her husband. The company claimed that the words “heirs of the insured” meant heirs of the husband, and that the policy was not protected by the statutes protecting policies issued to wives upon the lives of their husbands.

      Held, that the claim was untenable.
    Appeal from a judgment against the defendant for the sum of $9,008.08, entered upon a decision at Special Term.

      WilUam B. Hornblower, for the appellant.

      G. Elliott Miner, for the respondents.
   Haight, J.:

This action was brought to have the surrender and transfers of three policies of insurance upon the life of one George Davis, the father of the plaintiffs, set aside and declared void, and to have the policies declared valid and subsisting obligations of the defendant in full force and effect at the time of the death of George Davis, and to recover the amount of the policies, less unpaid premiums. The first policy is numbered 6,515, dated the 28th day of December, 1850. It insures the life of George Davis in the amount of $2,500 in consideration of the sum of eighty dollars paid by Mary A. Davis, wife of George Davis, for the benefit of herself. The company ■agreed to pay to her the sum insured, or her legal representatives, but if she should die before the insured, then the insurance to vest in the heirs of the insured. The annual premium to be paid was eighty dollars on the sixth day of December in each year. The second policy is numbered 1,103, dated June 10, 1851, for $5,000. It insures the life of George Davis in, consideration of $168.50 paid by Mary A. Davis his wife. The company agreed to pay to her on the death of her husband the sum insured, and in case of her death before his the amount should be payable to her children. The annual premium to be paid was the sum of $165.50 on the seventh day of June in each year. The third policy is numbered 11,402, dated November 24, 1856 ; it insures the life of George Davis in consideration of the sum of fifty-eight dollars and five cents paid by Mary A. Davis. The company agree to pay to her the sum of $1,500 on the death of her husband, and in case of her death before his the amount of the insurance shall be paid to her children. The annual premium to be paid is the sum of fifty-eight dollars and five cents on the nineteenth day of November in each year. Each of the policies contains the clause that in case Mary A. Davis shall not pay the premiums on or before the several days mentioned for the payment thereof, then the company shall not be liable for the payment of the sum insured, or any part thereof, and the policy shall cease and determine. Mary A. Davis died October 16, 1868, saving her surviving her husband, George IQavis, the plaintiffs and -George Davis, Jr., her only children, who were also the children of her husband George Davis. George Davis, Jr., died September, 1874, and the plaintiff Henry L. -Davis was appointed administrator. On the 8th day of May, 1874, George Davis, without the knowledge or consent of the plaintiffs, surrendered to the defendant policy number 6,515 and received therefor the sum of $588.14. All the premiums due on this policy were paid in full to December 6, 1873. On the sixteenth day of May, George Davis, without the knowledge or consent of the plaintiffs, surrendered to the defendant policy number 7,103 and received therefor the sum of $1,557.46. All the premiums upon this policy were paid in full to a period beyond the date of its delivery to the defendant. On the 8th day of July, 1874, George Davis, without the knowledge or consent of the plaintiffs, surrendered to the defendant policy number 11,402 and received therefor the sum of $355.68. All of the premiums upon this policy were paid in full to a period beyond the date of 'its delivery to the defendant. In making these surrenders George Davis assumed to act as the guardian of the plaintiffs, but in truth and in fact he was not the guardian of any of the plaintiffs except Julia N. Davis, the rest being adults over twenty-one years of age. On the 23d day of July, 1879, George Davis died insolvent. Neither of the plaintiffs knew of the existence of these policies of insurance, or of either of them, or of their surrender to the company by their father until after his death. In October, 1879, notice was given to the company of the death of George Davis, and "before the commencement of this action the plaintiffs offered to pay the premiums unpaid upon the policies, according to their terms, and to furnish the company with proofs of the death of George Davis, but the company refused to accept the premiums-asserting that the policies had been purchased by them and were no longer in force.

Chapter 277 of the Laws of 1870 provides that “it shall be lawfulfor •any married woman, by herself, and in her name * * * to cause to be insured for her sole use, the life of her husband for any definite period, or for the term of his natm-al life; and in case of her surviving such period or term, the sum or net amount of the insurance becoming due and payable by the terms of the insurance, shall be payable to her, to and for her own use, free from the" claims of the representatives of the husband or of any of his creditors; or any party or parties claiming by,, through or under him. The amount of the insurance may be made payable in case of the death of the wife before the period at which it becomes due to her husband or to his, her or their children, for their use as shall be provided in the policy of insurance.

Chapter 821 of the Laws of 1873 provides that “ any policy in favor of a married woman or of her and her children, or assigned in her or in her and tlieir favor, on written request of said married woman, duly acknowledged before a commissioner of deed? or other officer authorized to take acknowledgments of deeds in file same manner as required by law to pass her dower right in laufis of her husband, and on the written request of the policy-holder, may be.surrendered to and purchased by the company issuing the same in the same manner as any other policy.”

Here we have an express legislative authority authorizing the wife to insure the life of her husband for her own benefit and, in case of her death, for his, her or their children; and the manner in which such policy may be surrendered up and purchased by the company. The surrender must be upon the written request of the wife, duly acknowledged before an officer in the same manner that deeds are required to be acknowledged in order to pass a dower-interest of the wife. The policy of insurance to a married woman, made under the statute, for her benefit and that of her children in case of her death, cannot be surrendered or transferred so as to divest the interests- of the wife or her children in any other manner than that pointed out by this statute. (Eadie v. Slimmon, 26 N. Y., 9.)

It is doubtless true that an individual may cause bis own life to be insured for the benefit of a brother, sister or other person, and that upon the death of such person, the insured may surrender or dispose of the policy, but such cases are not within the provision of the statute cited, and are clearly distinguishable. In the case under consideration the applications for the insurance were made by the wife through her husband, who acted for her as her attorney. The consideration for the policies were paid by her as appears from the recitals in the policies. The insurance was for the benefit of herself and in case of her death, that of her children. Her husband had no interest in the policy which he had a right to surrender or dispose of; and of this the company was well aware at the time it accepted from him the surrender of the policies. If he was authorized to act for her as her agent in procuring the policies and in making the payments of the premiums thereon, such agency terminated with her death and no longer existed at the time these policies were surrendered.

The appellant claims that the plaintiffs have no interest under the first policy. That that policy is different from the other two in this, that it provides that in case of the death of Mrs. Davis before that of her husband, that then the amount of the policy goes to the heirs of the insured instead of her children, as provided in the other policies. That the hews of the insured means his heirs and not hers, and for this reason the policy is not protected by the statute referred to. We are of the opinion, however, that there is nothing in this point. The undisputed evidence shows that the plaintiffs were his children as well as hers. They are his heirs at law. If they were not in fact his children, it is possible that the policy would require a different construction, but inasmuch as they are, they seem to come within the express provision of the statute.

Again, the appellant claims that inasmuch as the policy is payable to the heirs of the insured such heirs are not vested with any interest in the policy until the death of the insured, and numerous authorities are cited by him in support of this proposition. But this question we deem settled by the policy itself. It provides that should Mrs. Davis die before the insured “then this insurance to vest in the heirs of the insured.” Here is an express provision of the contract vesting the insurance in the plaintiffs, not at the death of Davis but at the death of Mrs. Davis.

Again, it is claimed on the part of the appellant that this policy had lapsed before its surrender by reason of the non-payment of the premium falling due December 6, 1873.

This would doubtless be the case were it not for the fact that the company subsequently and on the 8th day of May, 1874, treated the policy as still in force by accepting its surrender and. paying a sum of money therefor. The fact that the company then treated the policy as in force leads us to presume that the default in the payment of the premium had been excused or postponed by some arrangement between the parties. We are, therefore, unable to see any reason for distinguishing this policy from the others, or of applying a different rule in determining the liability of the defendant thereon.

This brings us to consider the question raised by the appellant affecting all of the policies. After the surrender no further annual payments of premiums were made. For this reason it is claimed that they have lapsed. The question is thus pi-esented as to whether or not the respondents can be relieved against forfeitures for a breach of this condition of the policies. It appears that neither of the plaintiffs had any knowledge of the. existence of the policies until after the death of their father. The rule is that a court of equity will interpose its power to relieve against forfeitures for a breach caused by unavoidable accident, fraud, surprise or ignorance. (Wheeler v. Connecticut Mutual Life Ins. Co., 82 N. Y., 543, 552.)

Whilst sickness or insanity is not sufficient to excuse a default, yet war existing between the States in which the company is located and the assured resides, so as to prevent the transmission of the premium, fraud on the part of the company, surprise or ignorance in many cases, is a ground upon which a court of equity may relieve against forfeitures. (Barry v. Brune, 71 N. Y., 262; Cohen v. New York Mutual Life Ins. Co., 50 id., 610; Sands v. Same, Id., 626; Leslie v. Knickerbocker Life Ins. Co., 63 id., 27; Douglas v. Knickerbocker Life Ins. Co., 83 id., 504.)

The gravamen of the action in this case is fraud on the part of the defendant and George Davis. If fraud in fact existed and such fraud tended to prevent tbe payment of the premiums, we are of the opinion that the court may properly grant the relief asked for. We have already shown that the surrender of the policies was unauthorized and unlawful. The company knew from the policies that they were payable to Mary A. Davis, or in ease"of her death to her children. It must have known that Mary A. Davis was dead from the fact that in accepting the surrender of the policies it took receipts for the money paid from George Davis as guardian of the plaintiffs. The company, therefore, knew that it was dealing with a person who had no interest in the policies, or, right to surrender them unless he was in fact the guardian of the children. That he was not guardian, could have been easily ascertained. If he was guardian it was'a matter of record and it was the duty of the company to have ascertained the facts in this regard. Knowing that-the insurance vested in the plaintiffs, the company, in treating with Davis in reference to the surrender of the policies, did so at its peril, and if fraud was practiced on the children it became a party to the fraud. Mary A. Davis, by her contracts with the defendant and the payment of the annual premiums upon these policies, had secured to her children upon her death a valuable interest amounting to several thousand dollars. All but one were over age. If’ they had had possession of the policies or knowledge of their existence they might have caused the annual premiums to have been paid, and thus have secured this interest on the death of their father. The effect of the surrender of the policies was to cut off and destroy their interests. George Davis, in consideration of the moneys paid to him on the surrender of the policies, was induced to hide and keep secret from his children the existence of the policies, and of’ his own attempt to cheat them out of their interest in the same. The company, by procuring the policies to be surrendered to it, prevented the possession of the instruments from falling into the hands of the children, and thus conveying to them the knowledge of their existence. If George Davis had not been paid a sum of money to surrender the policies, he would have had no motive in keeping the knowledge of their existence from the plaintiffs. If they had had knowledge of the existence of the policies they then could have paid the premiums.

It further appears that these were old policies. That the sum of $6,691.40 bad been paid to tbe company in premiums tbereon. That for tbe surrender of tbe policies tbe company only, paid tbe sum of $2,671, only about one-third of the amount that it bad received in premiums. It further appears that after tbe death of George Davis some of tbe plaintiffs sought information of tbe company in reference to tbe policies, that tbe company withheld and refused to give full and true information as to tbe manner in which they were surrendered. These facts became circumstances in tbe case tending to support tbe claim of the plaintiffs.

Tbe case is somewhat peculiar and we have been unable to find any. reported case precisely in point. Yet, from well recognized principles, we are of tbe opinion that, under tbe circumstances of tbe case, the plaintiffs should be relieved from the forfeitures claimed, and that tbe judgment should be affirmed, with costs.

So ordered.

Daniels, J., concurred; Davis, P. J., taking no part.

Judgment affirmed, with costs.


author: Daniels, J.:

text:
    CONSTANCE B. PRICE, Plaintiff, v. WALTER J. PRICE and Others, Defendants.

      Appeal — when the General Term may ordm' a judgment for the appellant without directing a new trial —■ a party voluntarily withholding evidence will not be granted a new trial, in order to enable him to introduce it.

    Where upon an appeal from a judgment in favor of the defendants, entered upon the report of a referee, the General Term holds that upon the facts found by the referee the plaintiff and not the defendants are entitled to judgment, and that the only error committed hy the referee consists in a misconstruction of the legal effect of the facts proved, -it may direct a judgment to be entered in favor of the plaintiff and need -not order a new trial.
    Upon the trial before the referee the defendants knew of the existence of a stipulation, entered into between the plaintiff and the defendants’ testator, which precluded her from claiming dower in his estate. They voluntarily omitted to put this stipulation in evidence. A judgment in their favor having been reversed hy the General Term, and a judgment in favor of the plaintiff directed to be entered upon the facts as found by the referee, the defendants sought to have a new trial ordered in order that they might prove the stipulation.

      Held, that by voluntarily neglecting to introduce the stipulation upon the first trial they had precluded themselves from obtaining such relief, and must submit to the consequence of their misjudgment.
    Motion for a direction for a new trial in place of the judgment for the plaintiff already ordered by the announced decision.
    The appeal was decided in May, 1884, the opinion of Davis, P. J., being reported ante (p. 16). The action was brought to recover dowqr in the real estate of the defendants’ testator. The General Term reversed the judgment entered in favor of the defendants, and directed a judgment to be entered in favor of the plaintiff, with costs.

      Wm Peet, for defendants.

      Charles Jones, George H. Sta/rr and Thomas Poolcer, for plaintiff.
   Daniels, J.:

It has been considered regular to direct judgment for the plaintiff, for the reason that the referee has found all the facts entitling her to recover dower in the real estate mentioned in the complaint, and referred to in his report. And no fact inconsistent with that right in any respect has been found by him. What he has been held to have erred in, and all that in any legal sense that could be considered erroneous in his determination, is the decision that she was not entitled to dower upon the facts so found to have been proved, and the direction that her complaint should be dismissed. In that determination and direction it has been held that the referee deprived her of the relief which upon the facts found by him she was entitled to have adjudged in her favor. And the purpose and object of the decision has been to correct that error. It was a misconstruction of the effect of the facts proved by the evidence, and of all that was proven. He directed judgment against the plaintiff when the direction should have been for judgment in her favor. Nothing consequently appeared to remain for any further trial. That was complete in all other respects. The entire foundation of the action was found to be favorable to her. And no further ad vantage could be gained by another trial. For it is to be presumed that the facts were as favorably stated for the parties directed to be entitled to the judgment as the evidence would warrant, and that has not been denied in support of the present application.

But what is claimed is that upon another trial further proof could be made by a stipulation, entered into in the action brought against the plaintiff for the decree nullifying their marriage, by Walter W. Price, which would preclude her from recovering dower in his real estate. That stipulation was known to the parties now desirous of proving it in this action before and at the time of the trial before the referee, and it had been relied upon by way of answer as a defense. But the defendants voluntarily concluded to exclude it from their evidence, and for that reason it was not introduced during the trial. They considered the case sufficiently favorable to them without that evidence, and therefore omitted to give it. After having voluntarily adopted that as the most proper course to be followed in the management of the defense, it cannot be consistently held that they have not concluded themselves so far as to prevent the success of their application. All the evidence offered, which was pertinent to the case, was received and acted upon, and after understandingly and voluntarily concluding the trial in that manner, it is too late to open the case again for further proof. If it had been unknown, or the defendants had been prevented from giving it by anything but their own volition, che application would be entitled to more favorable consideration, but as the proof was withheld simply because it was believed the defense was well enough without it, the parties affected by the conclusion to omit the stipulation must submit to the consequences of what is now stated to have been a mis judgment. Any other rule would introduce the greatest possible uncertainty in legal proceedings. If this practice could be sanctioned in this-case it would be entitled to like indulgence in all others, and each party could experiment upon the tribunal hearing the action, by withholding part of the pertinent proof, and then after an adverse result open the whole controversy again. If it could be permitted once, it could for any number of times, which would effectually prevent a definite end to legal investigations. Their conduct has been subjected to a different rule requiring each party at his peril to make all his proof, and only allowing a departure from it on account of surprise or the failure after active diligence to discover the omitted evidence, or the interposition of some insurmountable obstacle preventing the proof from being produced. After voluntarily withholding what the party could give by way of evidence, no case will ordinarily arise for again opening tlie trial for a further hearing, and no legal ground for any such direction has been made to appear in support of this application. The authorities cited in support of the application for another trial of the action, do not require it when the facts have already been settled by the hearing that has taken place, and they are left unchanged and undisturbed. The ease presented then is the same as it would be upon a special verdict finding all the facts proved by the evidence. That is what the referee has done by his report. And all that now remains is to direct judgment for the relief awarded by the law upon that state of facts. It is no more than a modification of the judgment by which it is changed from a judgment in favor of one party to a judgment in favor of the other. And that the court has been authorized to- make. Unlimited power of modification has been given by section 1317 of the Code of Civil Procedure, and it should be applied when all the facts have been fully settled and stated in the decision brought before the court, as they have been by the referee’s report in this action.

The motion should be denied, with costs.

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

Motion denied, with costs.


author: Brady, J.:

text:
    WILLIAM ANDERSON and Others, as Liquidators of the City of Glasgow Bank, Respondents, v. JOHN HADDON, Appellant.

      Foreign judgment — when a decree recovered infot'eign liquidation proceedings cannot , be enforced, here against a resident of this State — what must be shown to sustain an action upon a foreign judgment.

    This action was brought by the liquidators of a Scotch bank against the defendant, a resident of this State, to recover the amount of a call, upon the shares of stock of the said hank which were owned by him, imposed by a judgment or decree of the Court of Sessions or Lord Ordinary of Scotland. The call was imposed under the provisions of an English statute providing for the incorporation, regulation and winding up of trading corporations. It authorized the Court of Sessions in Scotland during session, and the Lord Ordinary on the hills during vacation, on production by the liquidators of such a company of a list, certified by them, of the names of the contributories liable in payment of any calls which they may wish to enforce, and of the amount due and the date thereof, to pronounce forthwith a decree against such contributories for payment of the sums so certified to be due by each of them respectively, with interest from the said date till payment, in the same way and to the same effect as if they had severally consented to registration for execution, on a charge of six days, of a legal obligation to pay such calls and interest. At the time the decree was made the defendant was, and ever since has been, a resident of this State.

      Held, that inasmuch as the mode provided by the act of Great Britain for ascertaining the liability of the defendant was summary in its character, in derogation of the common law and in the nature of proceedings in bankruptcy, it had no extra territorial force either by virtue of its own inherent elements or of any provision contained in the act itself creating a personal responsibility which could be enforced in the manner adopted in this action.
    That this action could not be maintained upon the said decree.

      It semns, that the judgment of a foreign country is not conclusive upon the courts of this State, even although the party charged appeared, unless upon a proper examination it is established that the cause of action is one recognized by the common law, and that the judgment sought to be enforced was recovered in an action in which a trial was had in accordance with the rules of the common law, which impose the obligation to produce witnesses to establish the claim and secure the right of the defendant to cross-examination, and indeed all the incidents which govern the investigation of the validity of claims according to the rules mentioned. (Per Brady, J.)
    Appeal from an interlocutory judgment sustaining a demurrer to tbe second, third, fourth and fifth defences contained in the answer.

      jEdward Patter son, 'for the appellant.

      Shearman cfi Sterling, for the respondents.
   Brady, J.:

This action is brought by the liquidators of the City of Glasgow Bank, a foreign corporation created by the laws of Great Britain, against one of the stockholders of the bank to enforce his individual liability upon the stock he owned.

The complaint contains all the necessary averments to show the incorporation of the company, its insolvency, the appointment of the liquidators, and the judgment or decree of the Court of Sessions or the Lord Ordinary against all the stockholders or contributories for the sums which they were called upon to pay upon the amount of stock which they owned, and adjudging that a judgment or decree was pronounced in that court against the defendant for payment to the plaintiffs of a call of £2,250 sterling for every one hundred pounds of stock, amounting to £22,500 sterling with interest at five per cent, the defendant being a stockholder to the amount of £1,000 of the stock of the company; and claiming a balance of $106,584.88 in gold coin.

The first defense consisted of a general denial of the greater part of the complaint. The second defense alleged that this court has no jurisdiction of this action becausé the defendant has been since December 17, 1878, a resident of this State, and that, by the bank charter, calls on the shareholders are to be collected, in no other way than by process issuing out of the Court of Sessions in Scotland. The third defense alleged that the plaintiffs had no capacity to sue in this State in consequence of the residence of the defendant here since 17th December, 1878, and that the plaintiffs were officers appointed by a foreign tribunal for the purpose of administering a bankruptcy law of Great Britain, and were trustees in bankruptcy only. The fourth defense alleged that no notice was given to the defendant of the settlement of the list of contributories or of the application for decree; that he was not served with process and did not appear in the proceedings. And the fifth defense alleged as a counterclaim that the plaintiffs, as liquidators, have sufficient assets of the bank to pay all its debts and all expenses of liquidation, and demands that the plaintiffs account to the defendant for his share of the surplus of such assets.

It appears from the allegations of the complaint that by section 121 of the Companies Act of 1862, entitled “An act for the incorporation, regulation and winding up of trading corporations and other associations,” enacted by the queen and parliament of the Kingdom of Great Britain and Ireland on the 7th of August, 1862, “it was declared that where an order, interlocutor or decree has been made in Scotland for winding up a company by the court it shall be competent to the said Court of Session in Scotland during session, and to the Lord Ordinary on the bills during vacation, on production by the liquidators of a list, certified by them, of the names of the contributories liable in payment of any calls which they may wish to enforce, and of the amount due by each contributory respectively, and of the date when the same became due, to pronounce forthwith a decree against such contributories for pay ment of the sums so certified to be due by each of them respectively, with interest from the said date till payment at the rate of five pounds per centum per annum, in the same way and to the same effect as if they had severally consented to registration for execution, on a charge of six days, of a legal obligation to pay such calls and intei-est. And such decree may be extracted immediately, and no suspension thereof shall be competent, except on caution or consignation, unless with special leave of the Court or Lord Ordinary. It was under this provision that the judgment was obtained against the defendant in the court mentioned in Scotland, which forms the basis of this action.

The plaintiffs interposed a demurrer to the second, third, fourth and fifth defenses upon the ground that each of them was insufficient in law on the face thereof; and the learned justice at the Special Term sustained the demurrers and chiefly upon the ground that the decree of the Court of Sessions possessed all the attributes of a judgment, and it therefore might be the foundation of a suit in the courts of other States. It appears to have been a controlling view with the learned justice, that the defendant having voluntarily become a member of a foreign corporation was bound by the law which created and governed it; and inasmuch as the act of incorporation provided the manner for determining and enforcing the liability of stockholders therein in a special mode, by becoming a stockholder he assented to the proceedings, under its provisions, for determining his liability — in other words, that the defendant had voluntarily subjected himself to the law under which the corporation was organized.

The attention of the learned justice had been called upon the argument to a kindred objection which was considered by him in the case of Shepard v. Wright (59 How., 512), and in which it was held that the judgment of the court of a sister State had no binding effect in this State, unless the court had jurisdiction of the subject-matter and of the person of the party sought to be affected thereby, and further, that as the defendant was served in that case with a copy of the bill of complaint, in an action in the Dominion of Canada, in this State where the defendant resided, the court there had no jurisdiction of the person of the defendant; and this was founded upon the plain proposition stated, that no sovereignty could extend its powers beyond its own territorial limits to subject either person or property to its judicial decisions. This result was predicated of the cases cited in Shepard v. Wright (supra), confirmatory of the proposition that in order to acquire jurisdiction of the person, it was necessary the defendant should be served with process or voluntarily appear in the action, and that such service could only be made within the territorial jurisdiction of the court.

The learned justice, while recognizing the principles enunciated in the case mentioned, thought they had no application for the reason already suggested, namely, that the defendant by becoming a stockholder consented to the summary proceedings by which his liability should be ascertained and determined. We understand the views of the learned justice stated in that case to be sustained by the adjudication in Lowry v. Inman (46 N. Y., 119).

From an examination of the provisions of the act under which the defendant was decreed to be responsible for the sum, to recover which this action was brought, it is quite apparent that a residence within the territory of Great Britain was contemplated, and that there should exist, therefore, a jurisdiction of the subject-matter and of the person as well. The mode provided for ascertaining and determining the extent of the liability was quite summary and in derogation of the common law. Indeed it may be said the act in that respect is penal. The defendant was not entitled to notice, and had not his day in court, as wisely provided by the rules of the common law, which may not be departed from without tending to work great injustice.

It is thought, without going into any more extended examination of the question involved, that the cases of Shepard v. Wright and Lowry v. Inman (supra), already referred to, declare the doctrine by which this case should be governed, namely, that inasmuch as the mode provided by the act of Great Britain of ascertaining the liability of the defendant is summary, in derogation of the common law and in the nature of bankruptcy proceedings, it has no extra territorial force either by virtue of its owii inherent elements or any provision contained in the act itself creating a personal responsibility which could be enforced i-n the manner adopted in this action.

It is proper to observe here that comity does not require us to adopt adjudications of a court in a foreign country which proceeds in a manner unknown to our laws. Many countries of the world have tribunals peculiar to themselves and do not recognize our judgments as conclusive or binding upon them. It behooves us, therefore, when a foreign judgment is presented as the basis of a cause of action, to inquire as to the mode of procedure adopted in order to ascertain whether the judgment was pronounced after a trial had according 'to the rules of the common law, and indeed whether the cause of action was one which could be enforced hero; and therefore it may be whether the judgment would be rendered here in a kindred case. When the rules of the common law with regard to the right of trial in all respects have either been violated or disregarded before a tribunal whose decree is sought to be enforced here, even the appearance of the party should not be regarded as conclusive of his rights or indeed affecting them at all injuriously. The spirit of this suggestion is found in the case of De Brimont v. Penniman (10 Blatchf. Circuit Ct. R., 436), Judge Woodruff writing the opinion, in which it was held that notwithstanding the decree of the Civil Tribunal of Paris, in which the defendant not only appeared but defended, and afterwards appealed to the Imperial Court of Paris, the judgment pronounced against him could not be enforced because it was given for a cause of action founded upon the Code Cmile of France, and proceeded upon the declaration of an obligation not in conformity with our laws and not known to the common law. Judge Woodruff in the course of his opinion said: “ The principle upon which foreign judgments receive any recognition in our courts is one of comity. It does not require but rather forbids it, when such a recognition works a direct violation of the policy of our laws and does violence to what we deem the rights of our own citizens.”

The judgment of a foreign country as already intimated is, therefore, not conclusive upon us, even although the party charged appeared, unless upon a proper examination it is established that the cause of action is one recognized by the common law and the judgment sought to be enforced is one in which a trial was had in accordance with the rules of the common law which impose the obligation to produce witnesses to establish the claim and secure the right of the defendant to cross-examination, and indeed all the incidents which govern the investigation of the validity, of the claim according to the rules mentioned. If there be an omission in any one of these elements, the violation of the policy of our laws suggested by Judge Woodruee is accomplished and, therefore, violence done to the rights of our citizens.

It seems to be just, therefore, to hold firmly and squarely that when any claim is sought to be enforced in this State by virtue of a proceeding in any. other state or country, which has not been investigated or determined according to the rules of the common law, which as already suggested require notice and all the rights of trial, it should not be enforced either as a matter of courtesy or otherwise. The application of such a doctrine to the defendant’s case will relieve him of responsibility under the decree set up, inasmuch as it does not appear that at the time the proceedings were confirmed, by which his liability was sought to be established, he was a resident of Great Britain. On the contrary, it appears that he was a resident of this country.

For these reasons it is thought the judgment appealed from should be reversed and demurrers overruled, with costs to the appellant to abide event.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed and demurrers overruled, costs to appellant to abide event.


text:
    ADOLPH GOLDSCHMIDT and Others, Appellants, v. THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Respondent.

      JMdence — proofs of death furnished to an insurance company a/re admissible in its fa/oor upon the trial of an action upon the policy — when the parties claiming under the policy must prove the cause of death.

    A policy of insurance issued by the defendant upon the life of one Edler provided, among other things, that the self-destruction of the person, whether voluntary or involuntary, and whether he were sane or insane at the time, was a risk not assumed by the company, but that in such a case it would pay the net reserve upon the policy held by the company at the beginning of the year. Upon the •cross-examination of one of tlie plaintiffs’ witnesses, in an action to recover the amount of the policy, the defendant put in evidence the proofs of death furnished by the plaintifEs. Attached to and forming a part of the proofs of death were a record of a coroner’s inquest on the body of the insured, and the testimony of two physicians showing that his death was caused by cyanide of potassium taken by him, together with the verdict of the coroner’s jury, which was that the deceased came to his death by suicide by taking cyanide of potassium.

      Held, that as the proofs of death had been furnished by the plaintifEs to the company they were admissible as against the plaintifEs upon the trial.
    That being admitted they established a prima fade case for the defendant and threw upon the plaintiffs the burden of proving, if they could, that the insured had not died by his own act.
    Appeal from a judgment, entered on the verdict of a jury which . was directed by the court.

      WilUam G. Wilson, for the appellants.

      Robert Sewell, for the respondent.
   Brady, J.:

This action was brought by the appellants as assignees of two separate policies of insurance on the life of one Oscar Edler. The policies contained the following clause:

It is hereby declared and agreed that the self-destruction of the person, whether voluntary or involuntary, and whether he be sane or insane at the time, is not a risk assumed by the company in this contract; but in every such case the company will, upon demand made and the surrender of this policy, accompanied with satisfactory proofs of such death, within sixty days after its occurrence pay the net reserve upon it held by the company at the beginning of the year in which death occurs, calculated by the present legal standard of the State of New York, first deducting therefrom any indebtedness to the company on account of this contract.”

The defendant offered to allow judgment to be taken for $250, with costs, the amount of premiums paid. On the cross-examination of one of the plaintiffs’ witnesses upon the trial, the proofs of death furnished to the defendant under the terms of the policies were identified, and were put in evidence by the defendant’s counsel without objection. Attached to and constituting part of the proof of death is a record of the coroner’s inquest on the body of the insured, and it contains the testimony of two physicians, showing that his death was caused by cyanide of potassium taken by him, and the verdict also of the coroner’s jury, which was that the deceased came to his death by suicide by taking cyanide of potassium. The plaintiffs rested without any further proof as to the cause of death and without producing any evidence, to'show that the death was not caused by the act of the deceased. The defendant’s counsel then moved to dismiss the complaint because it appeared prima faoie that the deceased came to his death by his own hand.

Several objections were then made by the plaintiffs’ counsel to the receipt of the proceedings before the coroner’s jury as evidence against the plaintiffs, but these objections were that" they were not evidence in chief, and to their use and offer for any .other purpose than as bearing upon the question of the proper service of the proofs of death. The court regarded them in evidence for the purpose of considering the motion to dismiss the complaint and gave the plaintiff the benefit of the exception which was taken to that proceeding. And the court, having declared that an examination of the papers would be made for the purpose of ascertaining whether it appeared from them that the deceased came to his death by his own hand, stated that if a decision adverse to the plaintiffs should be adopted on that subject, the plaintiffs should have the 'benefit of an exception to each objection.

It is supposed that these exceptions cover the view that may be taken of the admission of the evidence, notwitstanding that when the papers were introduced no exception was taken, no objection having been made, and that mo motion was made by the plaintiffs that the court instruct the jury that they were not to consider them. 'The court having examined the papers mentioned after the adjournment of the court and before its meeting again, held that for the purposes of the motion, i. e., the motion to dismiss the complaint, ■the affirmative would be with the plaintiffs to prove the cause of 'the death of the deceased, in other words that the proofs of death furnished to the defendant were prima faoie evidence of the manner and cause of his death. The court then overruled the objections •of the plaintiffs made to the admission of the proofs of death on the previous day, and the plaintiffs separately excepted to the decision of the court overruling such objections. An exception to the dismissal of the complaint was also duly taken, although such dismissal was not in fact made, inasmuch as the defendant expressed, through its counsel, its readiness and willingness that the plaintiffs should take judgment for the sum of $231.96, being the amount of the premiums paid on the policies. It appears that an offer allowing such a judgment to be’taken had been previously served in the case and the defendant’s counsel admitted that the plaintiffs were entitled to interest. The court thereupon directed a verdict for the amount stated.

The plaintiffs then excepted to the decision of the court dismissing the complaint. They also excepted to the order of the court which took that back and directed a verdict of the jury. They also excepted to a direction of the court to the jury to find a verdict in favor of the plaintiffs. They also excepted to the decision of the court upon each one of the plaintiffs’ objections raised on the previous day at the time of making them. The plaintiffs have, therefore, surrounded themselves by a cordon of exceptions which are designed to reach every possible phase which the admission of the proofs of death might present upon their rights in any and all respects.

Unfortunately, however, for the plaintiffs’ recovery, the admissibility of the proofs of loss in just such a case has been expressly adjudicated by a decision made in Insurance Company v. Newton (22 Wall., 32). The question here 'involved was distinctly presented in that case. The proofs of loss consisted therein of several affidavits giving the time, place and circumstances of the death of the insured and the record of the finding of the jury upon the coroner’s inquest. The finding was that the deceased came to his death by a pistol shot fired from a pistol in his own hand through the heart; and the court held that these proofs, presented to an insurance company in compliance with the condition of its policy of insurance, are admissible as prima facie evidence of the fact stated therein against the insured and on behalf of the company. The proofs were, therefore, admissible. The court said in that case, in reference to these proofs, that unless protected by mistake the insured was bound by them; that good faith and fair dealing require it; that he should be held to representations deliberately made until it was shown that they were made under a misapprehension of the facts or in ignorance of the material matters subsequently ascertained. This view is confirmed in Insurance Company v. Higginbotham, (95 U. S., 380, 390).

They were properly admitted herein, being prima faoie evidence. It became necessary if any mistake was made to show it, which the plaintiffs were not prevented from doing if they had the power. They could have shown, if such was the truth, by a series of facts and circumstances that the deceased did not die by an act of deliberate self-destruction, which was all that was meant by the court’s dismissing the complaint and declaring that the affirmative of showing the cause of death rested with them. There was no application made to go to the jury on any question of fact.'

The learned counsel for the plaintiffs stated to the court that the plaintiffs would rest upon the rnling of the court, which followed a statement made by the defendant’s counsel, thus: “ I understand that my motion to dismiss the complaint is granted in the alternative ; it is granted unless they supply this proof,” that is, proof of the cause of death, in opposition to or in explanation of what was stated to have been the cause of death in the proofs furnished on that subject in compliance with the terms of the policies.

The decision of the court below was correct. If the plaintiffs desired to overcome the prima faoie, case made by the proofs of death furnished, as already suggested, it was their duty to undertake to do so if they could accomplish it, and therefore the objections against the admissibility of such proofs were properly overruled. The irregularity in dismissing the complaint was corrected before any judgment or verdict was entered, and the rights of the plaintiffs to the judgment contemplated by the offer secured and perfected. There was no error in this proceeding which requires consideration. The'real question has been discussed and disposed of, and adversely to the plaintiffs, and the judgment must therefore be affirmed, with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


author: Brady, J.: Davis, P. J.: Daniels, J.:

text:
    THOMAS F. HAYES, as General Assignee, etc., Appellant, v. ALEXANDER V. DAVIDSON, as Sheriff, etc., Respondent.

      BUI of particulars — when allowed, in am action to recover damages for goods wrongfully seized by the sheriff under an attachment.

    In an action by an assignee of one Grant to recover damages for tlie wrongful conversion of certain personal property seized by tbe defendant, as sheriff, under attachments issued against Grant, it appeared that a portion of the goods had been sold by the sheriff, and the residue thereof had been returned to and accepted by the plaintiff. Upon an appeal from an order requiring the plaintiff to furnish to the defendant a bill of particulars of the goods alleged to have been taken, and of the value of each of them:
    Held, that the order should be modified so as to limit the bill of particulars to be furnished, to the items returned to the plaintiff by the sheriff, and as so modified affirmed. (Brady, J., for an affirmance of the order as made.)
    Appeal from an order made at a Special Term directing the plaintiff to furnish a bill of particulars.

      Peter Qondon, for the appellant.

      W. Bov/rke Goelcrcm, for the respondent.
   Brady, J.:

This action is brought to recover damages for the wrongful conversion by the defendant of certain personal property which was part of the estate of Duncan A. Grant, and claimed by the plaintiff as the substituted assignee of Grant. The taking of the goods is admitted. They appear to have been seized by the defendant, as sheriff, under certain warrants of attachment issued against Grant upon the ground that he had assigned and disposed of his property with the intent to defraud his creditors. Some of the goods seized were sold, and it appears that about three weeks after the eommencement of the suit for the conversion of the stock taken from Grant the merchandise which was not disposed of was returned by the sheriff to the plaintiff and accepted by him. Upon the application of the defendant an order was made directing the plaintiff to furnish a statement in writing of the goods, chattels, fixtures and other personal property alleged to have been carried away and converted by the defendant, together with a statment of the alleged value of each article, piece or portion of the property so alleged to have been taken, and that in default of such an account the plaintiff should be precluded from giving evidence on the trial of the alleged conversion of the property mentioned in the complaint or the value thereof.

The defendant is a public officer and the conversion charged-against him was an act which he was called upon to perform by virtue of the various warrants of attachment issued. The allegation in the complaint is that between the 4th of January, 1884, and the twenty-fifth of February following, the defendant, as sheriff,, willfully and wrongfully seized, took and carried away and converted to his own use certain goods and merchandise, the property of the estate of Grant, and belonging to the plaintiff as assignee. But this is too general an allegation in an action like this and the court below was justified in directing the order which was made in the exercise of its discretion, and it cannot be interfered with under the circumstances revealed by the papers submitted on this appeal.

The order should therefore be affirmed, with ten dollars costs and the disbursements of the appeal.

Davis, P. J.:

Ordinarily I should be of opinion that a sheriff who is sued for taking on process a stock of goods from the possession of an. assignee, and removing them from his possession is not entitled, when sued by such assignee, to demand a bill of particulars of the items of the stock of goods so seized and taken. Presumptively his possession of them would be held sufficient to give him full knowledge of what they consist, and a better opportunity to know their items than the assignee in trust from whom they have been taken.

In this case a part of the stock was sold by the sheriff and another part returned, by consent, to the assignee. Reasonable diligence would of course have enabled the sheriff to know what part and how much of the stock was sold, and as to that part he should be in better position to know the particulars than the assignee can be presumed to be. But as to the items returned to the assignee, if such return were in gross of a remaining bulk, the assignee who received them ought to be in better position to know the items than-the sheriff.

Upon the facts appearing inthe affidavits I think the order ought to be so modified as to limit the bill of particulars to the items returned to the plaintiff, so that the sheriff may be relieved from the necessity of proving those items as part of his defense, and Iris liability in respect thereof be limited to such damages as the taking, withholding and returning with acceptance by plaintiff subject him.

With this modification the order should be affirmed, without costs of this appeal to either party.

Daniels, J.:

I am convinced that the modified direction suggested in the opinion of the presiding justice is as broad as the facts of the case will justify. There would be neither injustice nor inconvenience produced by an entire denial of tbe motion. Eor tbe sheriff must have known the goods, and of what they consisted, which he seized and also those which were sold by him. And excluding them would as clearly indicate the articles returned. But as the plaintiff has the ability to furnish a statement of the articles returned, and that will remove all possible ground for misunderstanding concerning tbe subject of tbe controversy, he may well be required to do that. And to such a direction I therefore agree.

Order modified, as directed in opinion of Davis P. J., and affirmed, as modified, without costs to either party.