author: Earl, J.

text:
    The New York Life Insurance Co., App’lt, v. James Aitkin, Ex’r, Resp't.

      (Court of Appeals,

      Filed February 24, 1891.)

      1. Mortgage—Assumption of, in deed—Release.
    In 1868 Phoebe T. Drew and husband mortgaged property in New Jersey to plaintiff for $4,000. In 1869 they conveyed the premises to John Gregg, and in 1870 Gregg and wife conveyed to Helen E. Aitkin, she assuming in the deed the payment of the mortgage, and remaining in possession until 1873 when she sold to Rathbone who also assumed the mortgage, and Mrs. Aitkin moved to New York and died there in 1875, leaving a will in which her husband was named as executor. The mortgage being foreclosed in September, 1880, resulted in a deficiency, and in September, 1888, defendant Aitkin procured from Gregg, who was insolvent, a release from the covenant of assumption in the deed to Mrs. Aitkin, and upon this action being brought upon such covenant set up among other things said release. Held, that the release did not discharge defendant from the covenant of assumption made by his wife, either under the law of this state or that of New Jersey, as the covenant had come to the attention of plaintiff and been adopted by it,¡and that plaintiff might recover in this action the money still due on the mortgage.
    2. Same.
    An action at law may be maintained upon such a contract.
    8. Same.
    The release being set up in the answer, but not as a counterclaim, it was not necessary for plaintiff to reply, and it was entitled to meet the answer by any competent evidence to defeat or avoid its allegations.
    4. Same—Code Crv. Pro., § 1628—Lj¡ave of court.
    Section 1628 of the Code Civ. Pro., requiring leave of the court to bring an action to recover part of the mortgage debt after final judgment, has reference solely to a foreclosure conducted in this state, and the leave must be obtained in this state.
    Appeal from judgment of the New York superior court, general term, overruling plaintiff’s exceptions and ordering judgment for defendant on the opinion of the trial judge.
    December 3, 1868, Phoebe T. Drew and John G. Drew, her" husband, of Elizabeth, N. J., executed their bond conditioned for the payment to the plaintiff of $4,000 one year from the date thereof, and as collateral security therefor at the same time executed to the plaintiff a mortgage on certain premises in Elizabeth, N. J. On the 15th day of December, 1869, Mrs. Drew and her husband conveyed the mortgaged premises to John Gregg by & deed wherein the grantee covenanted and agreed to pay the mortgage above mentioned. On the 28th day of December, 1870, Gregg and his wife conveyed the mortgaged premises to Helen E. Aitkin, by a deed which contained an assumption clause in the following words: “ And this conveyance is made subject, nevertheless, to the lien of a certain mortgage made and executed by the said party of the first part to the New York Life Insurance Company, bearing date the 3d day of December, 1868, to secure the sum of four thousand (4,000) dollars, lawful money of the United States, with interest thereon, which mortgage, forming a part of the consideration money hereinbefore expressed, and having been deducted therefrom, the said party of the second part hereby assumes and undertakes to pay and indemnify and to save said party of the first part harmless therefrom.”
    Mrs. Aitkin entered into possession of the premises so conveyed, and remained in possession as owner thereof until May, 1873, when she conveyed them to Aaron H. Eathbone by a deed in which he assumed payment of the mortgage. Mrs. Aitkin and her husband moved to the city of New York in 1873 or 1874, and she died there in 1875. She left a will in which her husband, the defendant, was named executor, and the will was admitted to probate in the city of New York, and letters testamentary thereon were issued to the defendant. In September, 1879, the plaintiff filed a bill in the court of chancery in New Jersey to foreclose the mortgage, and named as parties defendant in that suit Phoebe T. Drew, John. G. Drew, John Gregg, Helen E. Aitkin, James Ai'tkin, Aaron H. Eathbone and Mrs. Aaron H. Eathbone. The bill alleged the making of the bond and mortgage by Drew, and the conveyance of the mortgaged premises to Gregg, and his assumption of the mortgage; the conveyance by Gregg to Helen E. Aitkin, and her assumption of the mortgage; the conveyance by Helen E. Aitkin to Aaron II. Eathbone, and his assumption of the mortgage. It alleged default in payment of the mortgage, and prayed for the foreclosure of it, and for payment of any deficiency arising on the sale by Phoebe T. Drew, John G. Drew, John Gregg, Helen E. Aitkin and Aaron H. Eathbone. Phoebe T. Drew, John G. Drew and John Gregg were personally served with process within the state of New Jersey, and the other defendants, who resided in the state of New York, by publication and mailing. The bill was taken as confessed on February 20, 1880; on March 5, 1880, there was a decree of foreclosure and sale, and a decree for payment of the deficiency by the defendants against whom it was asked. The mortgaged premises were sold on March 26, 1880,‘’and resulted in a deficiency of $1,590.80. On September 28, 1888, a few days before the-commencement of this action, the defendant procured from John Gregg a release from the covenant of assumption contained in the deed to Helen E. Aitkin, in the following language:
    “For, and in consideration of one dollar, lawful money of the United States of America, to me in hand paid by James Aitkin, as executor of the last will and testament of Helen E. Aitkin, deceased, I hereby release and discharge the said James Aitkin, as executor as aforesaid,, of and from any liability to me for, because or by reason of the assumption by the said Helen E. Aitkin and her undertaking to pay a certain mortgage of four thousand dollars to the New York Life Insurance Company, dated December 3, 1868, with interest, contained in a certain deed bearing date the 28th day of December, A. D., 1870, made by me and my wife, Phoebe, now deceased, to said Helen E. Aitkin, and recorded in the office of the clerk of Union county in book 42 of deeds, on page 452, etc., in the state of New Jersey.
    “Witness my hand and seal, dated September 28, 1888.
    “John G-regg.” [l. s.]
    This action was commenced on the covenant of assumption contained in the deed from Gregg to Mrs. Aitkin, on the 11th day of October, 1888, to recover the balance due upon the bond and mortgage. The material facts above set out were alleged in the complaint, and the amount claimed was $1,590.80, with interest from March 5, 1880, which was alleged to be the deficiency upon the New Jersey foreclosure of the mortgage.
    The defendant, in his answer, .put in issue all the material allegations of the complaint and alleged several defenses as follows: (1) That at the time of the deed to her, Mrs. Aitkin, she was a married woman, and that she was not by the laws of New Jersey personally bound by her covenant of assumption. (2) That he had no notice of the New Jersey foreclosure suit, and that neither he nor his wife was made a party thereto. (3) That he was discharged from any liability by reason of the release executed to him by John Gregg. (4) That no leaye of the court was obtained by the plaintiff to bring the action before the commencement thereof. (5) That the action was barred by the New Jersey statutes of limitations.
    The action was brought to trial and the facts above stated, and other facts, were proved, and at the close of the evidence on both sides the plaintiff moved for the direction of a verdict in its favor for the amount claimed, with interest, and the defendant moved for the direction of a verdict in his favor. The trial judge denied the plaintiff’s and granted the defendant’s motion and directed, the plaintiff’s exceptions to be heard at the general term in the first instance, and that the entry of judgment be in the meantime suspended. The exceptions were brought to a hearing at the general term and overruled, and judgment was ordered for the defendant From that judgment the plaintiff has appealed to this court

      Henry G. Atwater, for app’lt; Edward W. iScudder Johnston, for resp’t.
   Earl, J.

The record discloses that the plaintiff was defeated at the circuit, and the' verdict there ordered in favor of the defendant, upon the sole ground that he was by the release executed to him by Gregg absolutely • discharged from the covenant of assumption made by his wife, the testatrix, and the effect of the release is therefore the first matter now to be considered. If the question is to be governed by the law of this state, it is entirely clear that the release did not discharge the defendant. The covenant of assumption had, long before the release, come to the notice of the plaintiff, and it had adopted and acted thereon. Having no notice of the death of Mrs. Aitkin it commenced the suit for the foreclosure of the mortgage in the state of New Jersey, and inserted her name in the process and complaint as a party to the action, and prosecuted the action to judgment upon the assumption that she had been made a proper party thereto. In the complaint in that action the covenant of assumption was alleged, and a deficiency judgmentwas prayed against Mrs. Aitkin and others. Whatever may be the effect of those foreclosure proceedings, they were at least competent to show that the plaintiff adopted and relied upon the covenant of assumption made by Mrs. Aitkin. After that covenant had thus come to the attention of the plaintiff, and had been adopted by it, Gregg, the covenantee, could not release her or her estate from the obligation of the covenant, and so the law must be deemed to be finally settled in this state. Gifford v. Corrigan, 105 N. Y., 223; 7 N. Y. State Rep., 7; S. C, 117 N. Y., 257; 27 N. Y. State Rep. 233; Watkins v. Reynolds, decided in this court October 7, 1890, 33 N. Y. State Rep., 173. Therefore if the law of this state governs, the release was not operative to bar this action.

But we reach the same conclusion if, as contended by the defendant, the effect of the release is to be determined by the law of New Jersey. There the courts hold that a covenant by a grantee of mortgaged premises, contained in the deed to him, to assume and pay the mortgage debt is a contract with his grantor only for the indemnity of the latter, and may be released and discharged by him, and generally that where parties have made a contract which will, either directly or indirectly, benefit a mere stranger, they may at their pleasure abandon it and mutually release each other from its performance, regardless of the stranger’s interest, unless the parties, with knowledge that he is relying on the con-. tract, suffer him to put himself in a position from which he cannot retreat without loss in case the contract is not performed, and that then he may ask to have the contract performed so far as it touches his interests. They hold that the mortgagee in such a case may enforce the covenant of assumption in equity, on the principles of equitable subrogation, thus appropriating a security which the mortgagor has obtained from his grantee for the benefit of the mortgage; and the rule seems to be that the covenant can only be enforced in equity. But the courts there have held further, that a release of a grantee’s assumption of a mortgage debt, given by an insolvent grantor without consideration, and for the sole and admitted purpose of defeating the mortgagee’s claim in equity for a deficiency, is void in equity; that the release to be operative must be given in good faith and for a valuable consideration, and not for the sole purpose of defeating the claim of the mortgagee. The following authorities were proved upon the trial and are ample to sustain the views just expressed. Crowell v. Currier, 27 N. J. Eq., 152; Trustees v. Anderson, 30 id., 366; Youngs v. Trustees, 31 id., 290; O'Neill v. Clark, 33 id., 444.

In the case of Trustees v. Anderson, the chancellor says: “ In the present case recourse was had to the expedient of the releases as a means of protecting Youngs against his liability to the complainants who, though they had not, in fact, commenced suit, were, as the parties to the release well knew, about to do so; and they had made preparations accordingly. No consideration passed, nor was any to be given. Nor were the releases founded on any equity or equitable consideration. The mortgagor was insolvent and had no longer any interest in the indemnity which Youngs had given him against his liability on the complainant’s mortgage. Had he been solvent the. releases would of course not have been executed. The hollow, unsubstantial formality of the execution and delivery of the releases creates no barrier to the equitable relief to which the complainants are entitled. A release executed mala fide for the mere purpose of defeating the action of equity, or of eluding its reach, will be of'no avail.” Here Gregg at the time of the release was insolvent, and it is very certain that if he had not been he would not have executed it. No consideration whatever was paid for the release. It was obtained a few days before the commencement of this action. Gregg testified that at the time the defendant obtained the release he said that “ it was because of something that had been obtained in the foreclosru'e of the mortgage on the premises, a deficiency, or something like that, and he gave me nothing, but said he would remunerate me ; ” and that was about all that was said between them. That a release obtained under such circumstances would in New Jersey be held unavailing in equity cannot be doubted. There was no dispute about the. facts. They appear in the evidence of Gregg, which is undisputed, and in harmony with the terms of the release, which appears on its face to be in consideration of one dollar.

But the defendant makes the further claim that according to New Jersey law his liability upon the assumption clause could, in any event, be enforced only in an equitable action, and possibly in an action to foreclose the mortgage, to which he bad in some way been made a proper party. But this is matter of mere form, not of substance, and relates to procedure, and the procedure in an action in this state must be governed by the laws of this state; and by our law an action at law may be maintained upon such a covenant.

It is further said that in New Jersey the plaintiff could only assail the release by alleging the fraud, and thus tendering an issue upon the question of its fraudulent execution. This is again matter of procedure to be regulated by the practice in this state. No notice is taken of the release in the complaint, and at the time of the service thereof it is probably true that the plaintiff had no knowledge of the release. It is set up in the answer, but not as a counterclaim. It was, therefore, not necessary for the plaintiff to reply to the answer, and it was entitled to meet the answer by any competent evidence to defeat or avoid its allegations. If the defendant had desired a distinct issue upon the release he could have procured one under § 516 of the Code of Civil Procedure, by a motion to the court for a direction to the plaintiff to reply to the new matter. A still further answer to this objection, although not so fundamental, is that no question as to the pleadings in reference to this matter was raised at the trial.

We are, therefore, of opinion that the courts below erred in holding, upon the facts proved in this case, that the release furnished a defense to the action.

There are certain other fundamental objections made to the plaintiff’s right to recover which were overruled by the trial judge, and as the defendant’s objections and exceptions are not before us we could pass over them without consideration. But as they are fundamental, with a view to a new trial, it is quite proper that we should say something about them.

It is objected that the complaint was defective and alleged no cause of action, because it contained no allegation that leave was oh tainted from the court to bring the action, as required by § 1628 of the Code of Civil Procedure. As this action was brought to recover a balance remaining due upon a mortgage after foreclosure, if the foreclosure had been conducted in this state it would have been necessary for the plaintiff to comply with the section referred to, which is as follows: “ While an' action to foreclose a mortgage upon real property is pending, or after final judgment for the plaintiff therein, no other action shall be commenced or maintained, to recover any part of the mortgage debt, without leave of the court in which the former action was brought.” This section plainly had reference solely to a foreclosure action conducted in this state, and the leave must be obtained from a court in this state, and so it was correctly held in Mutual Life Ins. Co. v. Smith, 22 Jones & Spencer, 400.

There is a mistake in the assumption clause in describing the mortgage as one executed by Gregg and wife, whereas it was executed by Drew and wife, and the claim is made that the plaintiff must fail in this action because Mrs. Aitkin did not covenant to pay this mortgage, and that parol evidence was inadmissible to show that this mortgage was intended. A portion of the description of the mortgage assumed is clearly erroneous. It was not executed by Gregg and wife. It was, however, assumed by them. But the date, the 3d day of December, 1868, is accurate, and the ■sum secured by the mortgage, $4,000, is correctly given. This is, therefore, a case where parol evidence may be given to apply the covenant to the subject matter. There was no other mortgage of that date or amount Indeed this was the only mortgage upon the premises. The court could take proof of the surrounding circumstances for the purpose of applying the covenant to the mortgage actually intended, and a reformation of the covenant was not needful. For these views the authorities are quite abundant Green-leaf’s Evidence, §§ 297, 301: Taylor’s Evidence, §§ 1218, 1221; Wigrarn on Extrinsic Evidence, 144; Jackson v. Clark, 7 Johns., 218; Jackson v. Sill, 11 id., 201; Loomis v. Jackson, 19 id., 449; Dodge v. Potter, 18 Barb., 201; Burr v. Ins Co., 16 N. Y, 267.

It is further said that Mrs. Aitkin was a married woman, that her contract of assumption made in Mew Jersey must be governed as to its validity by Mew Jersey law, and that it was not made to appear upon the trial that under the Mew Jersey law she intended any personal liability by her covenant. But it is a sufficient answer to this claim that, while the defense was set up in the answer, it was in no way alluded to upon the trial, and it seems to have been assumed, at least by the court, that she had power to bind herself personally by such a covenant. Therefore, the point that we must assume that the common law rule still prevails in New Jersey ought not to be sustained, particularly as the statute law of that state as respects married women is similar to that of this state. Huylers Ex'rs v. Atwood, 26 N. J. Eq., 504; affirmed 28 id., 275. This case, and the New Jersey statute are also referred to in Cashman v. Henry, 75 N. Y., 103. If this point had been made at the trial the plaintiff might have proved these decisions and the New Jersey statute, and would thus have answered the defense of coverture.

It is claimed that this action was barred by the statute of limitations. The mortgage fell due on the 3d of December, 1869. The covenant of assumption was made on the 28th of December, 1870, and this action was commenced on the 11th of October, 1888, within less than twenty years, even from the date of the mortgage, and hence the action was not barred in this state, and it is the statute of limitations of this stkte which is to govern such an action commenced here. Miller v. Brenham, 68 N. Y., 87. But it is equally clear if we look at the statutes of New Jersey that the action could not have been barred if it had been instituted there.

The New Jersey judgment for deficiency did not bind this defendant. Neither he nor his wife was a party thereto. She, although supposed to be living, was actually dead. Even if the plaintiff had been informed of her death and had known that the defendant was her executor, there was no way to obtain a deficiency judgment against him, unless process could be served upon him- in that state, or he voluntarily appeared in the action there. He remaining in this state, there was no way without his consent to obtain a personal judgment there binding upon him here. Freeman v. Alderson, 119 U. S., 185; Schwinger v. Hickok, 53 N. Y, 280; Cross v. Cross, 108 id., 628; 13 N. Y. State Rep., 470; Shepard v. Wright, 113 N. Y., 582; 23 N. Y. "State Rep., 727; Booth v. Conn. Mut. Life Ins. Co., 43 Mich., 301.

At the time of her death Mrs. Aitkin stood as a mere surety for the mortgage debt, the land as to her being primarily liable for the payment thereof. The defendant could require that the land should be first sold and the proceeds applied upon the mortgage debt before resort could be made to him, or the estate represented by him. But the proceeds of the land have been first applied. The New Jersey foreclosure is in no way assailed. We must assume that it was conducted in accordance with the laws of that state. The sale was a public, judicial sale, and we must assume that the land brought its value. In the absence of proof of fraud or collusion in conducting that foreclosure, we see no reason to doubt that the plaintiff may recover in this action the amount still remaining due upon the mortgage.

There are minor exceptions taken by the defendant to the rulings of the court against him upon the trial, but as they are not vital, and are not before us, we do not deem it important to give them any attention.

The judgment should be reversed and a new trial granted, costs to abide event

All concur.

       Reversing 32N. Y. State Rep., 1138.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    Edward Kilpatrick, App’lt, v. Mary E. Barron, Resp't.

      (Court of Appeals,

      Filed February 24, 1891.)

    "Will—Power op sale—Vendor and purchaser—Marketable title.
    Testator, by bis will, excepted his dwelling from the power of sale given to his executors, and directed that his unmarried daughters, during the lives of two of them, who were named, should be suffered to occupy it free of rent while they remained unmarried, and upon the deaths of those named, or thé marriage of all, the house was to be sold, and the proceeds divided among his children and their “ descendants.' The defendant, as sole executor, tendered to plaintiff a deed executed by her with the consent of all the children. Held, that such title was insufficient because it could not bind the interests of the children of the testator’s daughters already born, or who might be born and be surviving the mother at the period appointed for the division.
    This is an appeal from an order of the general term of the supreme court, first department, which reversed a judgment entered upon a decision of the court on a trial at special term, adjudging and directing plaintiff to perform his contract and take title to the premises therein described.
    The action "was brought by plaintiff to recover the sum of $1,000 paid by him to defendant as a deposit at the time of signing a contract for the purchase of premises known as No. 54 East Seventy-ninth street, in the city of New York, and for the expenses incurred by him in searching the title to same. Plaintiff claimed-that the defendant could not convey a good title to the said premises, and, before the time named for closing said contract, notified defendant that he would not take title.
    The defendant denied plaintiff’s right to recover said deposit money and expenses, and alleged that she was ready and prepared to convey a good title in fee simple to said premises, in accordance with the terms of the contract, and asked affirmatively that plaintiff be compelled to carry out his part of said contract, and lake title, etc. ■
    The facts upon which the judgment was rendered were agreed upon, and are as follows:
    The premises "in question form a part of the residuary estate under the will of Thomas H. Geraty, late of the city of New York, deceased. Mr. Geraty died in February, 1882, leaving a last will and testament The defendant is the sole surviving and acting executrix and trustee under the will. Margaret A. Fagan, the other executrix and trustee named in said will, died on the 13th day of June, 1882, leaving a last will and testament. The defendant, then known as Mary E. Geraty, was named as sole executrix and. trustee in said will of Margaret A. Fagan, her sister, and letters testamentary were duly issued to her thereunder. By the terms of said will said executrix and trustee was given full power to sell and convey any and all real estate of which the said Margaret A. Fagan died seized. Margaret A. Fagan left her surviving an infant son, named Thomas H. Fagan, who is still living and is still an infant, and who was born after the death of Thomas H. Geraty.

      Thomas H. Greraty left him surviving as his only heirs and next, of kin six daughters, none of whom, were then married, except Margaret A. Fagan. He left no widow nor descendant of any deceased child.
    The portion of the will which is pertinent to the questions to be decided herein is as follows: After giving to his children his. burial plot in Calvary Cemetery, and a legacy of $400 to the trustees of said cemetery to keep said plot in order, the will runs as follows:
    “ All the rest, residue and remainder of my estate, real and personal, that I may be seized and possessed of or entitled to at the time of my death, I give, devise and bequeath to my daughters, Margaret A. Fagan, wife of John J. Fagan, and Mary E. Geraty, to have and to hold the same upon the trusts and for the uses and purposes hereinafter mentioned, that is to say: To sell and dispose of and turn into money, at such times as to them may seem most advantageous, all my estate, real and personal, except the house and lot of ground now occupied by me as a residence, and known and designated as number fifty-four (54) East. Seventy-ninth (79th) street, in the city of New York, with such furniture, plate, linen, china, glass, books, prints, pictures, fuel, consumable provisions and other household effects as may be contained in my said residence at the time of my decease; and out of the proceeds thereof to pay all my just debts, funeral and testamentary expenses, and to invest the residue thereof in bonds and mortgages on improved and unincumbered real estate in the city of New York or in public stocks of the state of New York or the United States (retaining any investment made by me in my lifetime, whether in real or personal property, that they shall approve of).

      uTo suffer and permit my unmarried daughters, during the life' or lives of my two daughters, Agnes E. Geraty and Ada H. Geraty, or so long as any of my said daughters shall remain unmarried, to occupy as a home, free of rent, my said house known and designated as number fifty-four East Seventy-ninth (79th) street, in the city of New York, together with all the furniture, plate, linen, china, glass, books, prints, pictures, fuel and other household effects that maybe in saidhouseatthetime of my death.

    “ Should any of my daughters at any time marry, then I direct that she shall not occupy said house as a home except by the consent of all her unmarried sisters.

    #******«•«-
    “That my said trustees then divide the whole of the rest, residue and remainder of my estate, or the proceeds thereof, into as many shares or portions as I shall leave children or descendants of children at the time of my death, the share of the descendants of any of my children who shall depart this life before me to be the same in amount as that of one of my said children.

      uUpon the deaths of my two children, Agnes K. Geraty and Ada jW. Geraty, or the marriage of all my children, as either of said events may respectively occur, I order and direct that my said house, known as No. 5If East Seventy-ninth street, New York city, shall be sold, and

      the proceeds arising therefrom be paid and divided to and among my children and their descendants. * * *
    “ While I have intended to give my trustees and their successors full power and authority to sell and dispose of any and all the real estate I may die seized and possessed of or entitled to, and to execute all the necessary papers for the transfer of the same, yet it is my wish that they shall not exercise this power, especially as to the improved property, unless it is clearly necessary for the benefit of my estate that they should.”
    All of the children of the said Thomas H. Geraty have married except Josephine E. Geraty, who is now, and for several years has been, an inmate of a convent, where she expects to pass the remainder of her life. The daughters Agnes and Ada H. Geraty are still living.
    Josephine E. Geraty, the unmarried daughter, did not occupy the premises in question as a home or for any other purpose at the time the agreement was made by the defendant with the plaintiff for the sale of the same. She had disclaimed any intention of ever occupying said premises for a home, and had requested the defendant to sell and dispose of the same; and for that purpose had executed and delivered to the defendant a power of attorney, empowering the defendant to sell and convey all the right, title and interest of every kind which she, the said Josephine E. Geraty, had in and to the said premises.
    The defendant, as the sole surviving executrix and trustee, under the will of Thomas H. Geraty, deceased, with the consent of all the children of the said Thomas H. Geraty, including the unmarried daughter, Josephine E. Geraty, on the 18th day of October, 1887, contracted to sell the said premises to the plaintiff for the sum of $24,000. At the time and place named for closing said contract the defendant had in her possession and ready for delivery to the plaintiff, for the purpose of carrying out her part of said agreement, the following deeds : An executrix and trustee deed, signed, sealed and acknowledged by herself as sole surviving executrix and trustee under the last will and testament of Thomas H. Geraty, deceased. And a warranty deed signed, sealed and acknowledged by herself and all the living children of the said Thomas H. Geraty, including the unmarried daughter, Josephine E. Geraty. She also offered to deliver to plaintiff an. executrix and trustee deed executed by herself as the sole executrix and trustee under the will of Margaret A. Eagan, deceased, to convey any interest which the said Margaret A. Eagan had in said premises at the time of her death or which her infant son inherited under said will.
    The question submitted to Mr. Justice O’Brien at special term for decision was: Were all the deeds which the defendant had ready for delivery sufficient to vest in the plaintiff a good title to the premises in question 7 Mr. Justice O’Brien decided that they wore sufficient to convey a good title, and directed judgment in favor of the defendant. The general term reversed the judgment.

      Robert W. Todd, for app’lt; D. G. Orosby, for resp’t
   Andrews, J.

The question whether a good title to the house and lot was tendered to the plaintiff turns upon'the true construction of the will of Thomas H. G-eraty. If the six daughters of the testator took upon his death an absolute vested estate or interest in the house and lot or its proceeds, subject only to the right of the unmarried daughter until marriage to occupy the premises, but terminable on the death of the daughters Agnes K. and Ada H. Geraty, if that event should first occur, the title tendered would not, we think, be subject to reasonable doubt on the ground that the time of sale fixed by the will was anticipated. Although one of the daughters is still unmarried, and the two daughters upon whose lives the right of occupation was limited are still living, yet as all the children of the testator, including Josephine, the unmarried daughter, together with the executrix of the will of the deceased daughter Mrs. Fagan (acting under a valid power), have united in the conveyance, the case is clearly within the rule that where by the will the exercise of a power of sale given to executors is postponed for the benefit of legatees or devisees during the intermediate period, the execution of the power may be accelerated by the consent of the executors and all the persons interested, provided the persons interested and who join in the conveyances are sui juris, and the conveyance is not in contravention of any trust and is consistent with the substantial purpose of the testator in creating the power. Perry on Trusts, § 783 and cases cited; Garvey v. McDevitt, 72 N. Y., 563; Hetzel v. Barber, 69 id., 1.

The postponement of the execution of the power of sale in the present case was solely for thp benefit of the unmarried daughters. All the daughters have married except one and she has become a member of a religious order and will probably never marry, or desire to occupy the house.

But the contention on behalf of the plaintiff is that by the true construction of the will the persons who are entitled to the proceeds of the sale of the house and lot cannot be ascertained until the happening of one of the events upon which the power of sale was limited, viz.: the marriage of all the .daughters or the death of the daughters Agnes K. and Ada H. The claim is that the gift of the proceeds of the sale directed is not to the six daughters of the testator, but to such of them as should survive the period of distribution, and in case of the death of one or more of them prior to that time, to the then surviving daughters and to the descendants then living of any deceased daughters.

If this construction is sound, then there can be no doubt, we think, that the title tendered to the plaintiff was insufficient, because it did not purport to bind, and in the nature of things could not bind, the interests of the children of the testator’s daughters, either born or who might come into being and be living and surviving the mother at the period appointed for the division. The question whether a devise or legacy is vested or contingent, or if vested whether it is subject to be divested by an executory gift made to take effect in defeasance of a prior gift, often presents one of the most difficult and perplexing problems which can arise in the construction of wills. The legal rules which govern the subject are qualified by so many nice refinements and distinctions and are so complicated with the question of the testator’s intention, to be drawn from obscure words or phrases, and as to-which judges may and often do differ, that one may well hesitate in very many cases as to his conclusion. ‘

The construction of the will now before us is not an exception. The courts below have differed, and the members of this court are not agreed upon the point involved. The general scheme of the testator is obvious, which was to vest his estate in his executors as trustees during the lives of his children respectively in shares, and that the children should have the income of their shares respectively during life, the corpus on their death to go to their issue. It was his primary general purpose that the descendants of his children should take the fee or absolute ownership of his property, and that the parents should have an equitable life estate only. It seems to be conceded that the trust as to the house and lot was not, in view of § 56 of the statute of uses and trusts, lawfully constituted. But however this may be is- not material. If the trustees took the title, the trust would terminate when the purpose of the trust was accomplished, and if the trust was invalid, the title would vest in the heirs of the testator, subject to the execution of the trust as a power.

The construction of the will insisted upon by the defendant imputes to the testator an intention to depart in respect to the disposition of the house and lot from his general scheme to give a life interest in his property only to his children, and the remainder to their issue. But it is to be observed that the share accruing by survivorship in his other property, in case of the death of any child without issue, accrues to the surviving children only, and not to them and the descendants of deceased children.

The plaintiff’s construction of the will, as does that of the defendant, involves a departure from the general scheme, because under that construction the children surviving at the period of sale and division would take their shares absolutely. The general contention of the counsel for the plaintiff has much support in rules applied by the courts in ascertaining whether a legacy or devise is present, absolute and vested, or is future, defeasible, or contingent One of these rules is that where there is no gift by a direction to pay and divide at a future time or on a given event, the vesting will be postponed until the time appointed for the division or the happening of the specified event, unless a contrary intent can be collected from the whole will. Williams on Exrs., vol. 2, 1232. And where legacies are given.to a class, all are deemed to be comprehended who answer the description at the túne the legacy is payable, so that where the legacy is payable, at a future time, those who come into being intermediate the death of the testator and the time of payment, and answer the description, take as independent objects. Teed v. Morton, 60 N. Y., 506, and cases cited.

But none of these rules is conclusive. They yield to indications in the will of a different intention. The element of futurity may have been inserted to let in some intermediate purpose of the testator in favor of other objects, and not for the purpose of postponing the vesting in interest of the legacies. The gift to a class may be so interpreted by the context as to be limited to those who constitute the class at the death of the testator, excluding those who may come into being intermediate the death of the testator and the time of the division. Clauses which might in some relations be interpreted as substitutional, may in the actual case be treated as words of limitation only.

The true construction of the will in question is doubtful. I incline to the opinion that, taking all the circumstances into account, it was the intention of the testator that the proceeds of the house and lot should go to his children living at his death and the descendants of children then deceased, and that the word “ descendants ” in the clause “ and the proceeds therefrom be paid and divided to and among my children and their descendants,” was intended to designate the same descendants referred to in the previous paragraph of the will, viz.: descendants of children who might die before him.

But our judgment here in support of the title tendered would not bind the descendants of children who have been or may be born after the death of the testator, and prior to the time appointed for the sale and division. It would be then open for them to claim that they were entitled under the will as purchasers, either as primary or substituted legatees.

tinder the principle in the case of Fleming v. Burnham, 100 N. Y., 1, the title here tendered does not meet the obligation assumed by a vendor under an ordinary contract of sale, to tender a marketable title and one free from reasonable doubt.

The judgment below should therefore be affirmed.

All concur. . '

       Affirming 27 N. Y. State Rep., 518.


author: Peckham, J. O’Brien, J. (dissenting.)

text:
    The People ex rel. Jasper W. Gilbert, Resp’t, v. Edward Wemple, Comptroller, App'lt.

      (Court of Appeals,

      Filed February 24, 1891.)

    Constitutional law—Salary of justice whose term is abridged by REASON OF AGE.
    The provision of the constitution as to the continuance of compensation of justices whose term is abridged by reason of age and who shall have served ten years or more, applies to all cases where such justice shall have served ten years, and is not limited to cases where such service of ten years has been within the abridged term.
    (Ruger, Oh. J., and O’Brien and Andrews, JJ., dissent).
    Appeal from judgment of the supreme court, general term, third department, affirming order of special term, directing the issuance of a peremptory mandamus to the comptroller of the state directing him to pay relator the sum of $6,000.

      Chas. F. Tabor, att’y-gen’l, for app’lt; Stephen P. Nash, for resp’t.

       Affirming 34 H. Y. State Rep., 708.

   Peckham, J.

The constitution of this state, § 13, art. 6, provides that “The official terms of the said justices and judges, who shall be elected after the adoption of this article, shall be fourteen years from and including the 1st day of January next after their election. But no person shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be seventy years of age. The compensation of every judge of the court of appeals, and of every justice of the supreme court, whose term of- office shall be abridged pursuant to this provision, and who shall have served as such judge or justice ten years or more, shall be continued during the remainder of the term for which he was elected.”

The relator was first elected a justice of the supreme court in November, 1865, for a term of eight years, commencing on the 1st day of January, 1866. In November, 1873, while still serving as such justice, he was re-elected. His term would have been fourteen years, ending December 31, 1887, but for the fact that he reached the age of seventy years in June, 1882, and by reason of the above provision of the constitution his term of office was abridged, and it ended on the 31st of December, 1882. On the last named date the relator had served seventeen successive years as a justice -of the supreme court. The question to be determined is whether the ten years of service mentioned in the constitution must be ten years of the term which is abridged by the judge or justice becoming seventy years of age.

The language of the- constitution does not say so. No such condition is in terms expressed therein. The two conditions mentioned are that the term of office of the judge or justice shall be abridged by reason of arriving at the age of seventy years, and that he shall have served as such judge or justice ten years or more. The words “ as such judge or justice ” clearly relate to a judge of the court of appeals or a justice of the supreme court

As the condition is not expressed in the instrument, why should it be implied ?

The learned attorney general argues that such was the real intention, and when that intention is ascertained it must and should prevail over the strict letter of the law when the latter would lead to probable injustice, contradiction or absurdity.

It may be assumed thafiif such were the real intention it should prevail over the strict letter of the provision. I do not see, however, where the foundation ik for the assertion that it was the real intention to limit the ten years of service to the term abridged, and that, therefore, it should be so construed. The opposite construction leads neither to palpable injustice, contradiction or absurjiitv. Whether the ten years of service has "been divided By entrance upon a new term of office as such judge or justice,' does not in the abstract seem to be very material. Clearly the idea of a somewhat prolonged service on the bench lies at the foundation of the provision and furnishes a plain argument for its adoption. It is the length of service and not the mere fact that the ten years have been served in the last term of office that in the nature of things would be deemed of material weight. And when to this length of service as such judge or justice is added the fact that the term of his holding the office is abridged by reason of age, the law then says that such judge or justice is entitled to compensation for the balance of the term for which he was elected.

It is true that judges or justices of these courts might possibly hold their offices for a number of years long past ten, and yet go out of office by expiration of their terms of office and not on account óf age, and under such circumstances they would not be entitled to any compensation. But I see nothing in that fact which is of the slightest force as an argument one way or the other upon the point in question. It only shows that there may be cases of great length of service as a judge or justice of these courts without any claim to compensation after .the expiration of the regular term of office. If the term expire 'by reason of the running of the full term of fourteen years before the judge or justice reaches the age of seventy, and he thereupon goes out of office, the provision of the constitution does not meet his case. His term has not been abridged, although he may have been twenty, thirty, or even more years on the bench, and he has already received compensation for the full term for which he was elected. This only proves that the constitutional provision fails to meet a deserving case. If the construction of the appellant were adopted, the same force to the facts urged could be given. ¡We would still have the case of one who had acted as a judge or justice of one of these courts for many years, but whose term finally expired by efflux of time before he reached the age of seventy years and, who could not be entitled to any further compensation, while the individual who- had served but ten years as a judge'or jus'tiee, and whose first and only term was abridged by reason of his age, would be entitled to compensation for the balance of the term for which he was elected. In the latter case such compensation could not reach over a period of more than four years, while under our construction it might last a few years longer. That one fact is not enough to cause, us to import words into the constitution which are not there, for the.purpose of altering the meaning of that instrument as it actually reads. It' seems to me that even greater care and caution should be used in adding or striking out words from a provision in our organic law, on the ground that it is necessary in order to obtain the true meaning of such provision, than if such provision were contained in a statute, because the fundamental law of the state is presumed to be and indeed is prepared with the very greatest deliberation and adopted only after every opportunity for reflection upon the meaning of each word has been had by different legislatures and by the people at large. To construe the provision as the appellant claims it should be construed is to add words which are not there now, and which when thus added alter materially the meaning of the provision.

Again it is urged that by our construction one may be elected a judge or justice of either of these courts, serve out his term of office, go off the bench and then years after be re-elected just before he arrives at the age of seventy years, and then be entitled to his compensation.

Extreme cases which might by possibility arise furnish very unsatisfactory grounds from which to argue the correctness or incorrectness of any particular construction of a constitutional or statutory nature. This supposed contingency is one which in the nature of things would rarely if ever happen. Persons are not elected to the responsible office of judge of the court of appeals or justice of the supreme court in their early youth. The rule is and has been to elect those who have served some time at the bar, and they go on the bench generally as mature men. Fourteen years added to their lives will place them in the ranks at least of the middle-aged. To re-elect them is perhaps not unnatural. It certainly is frequent. It is not customary, however, to drop them and leave them to the contingencies of life, and subsequently catch them up and again elect them as judges or justices just before their arrival at seventy years. To escape such a remote contingency, unheard of, improbable and almost impossible, we are asked to formally supply words to a constitutional provision which shall alter its otherwise plain meaning.

Then again, this whole question is one for the people .themselves to decida If they do not think that an individual who will have but a very brief portion of his official term to serve because of age ought to have the compensation provided for such an officer after reaching seventy years, they have the power to refuse to elect him, and that will prevent any question arising regarding compensation. There is nothing in the nature of the provision which should lead us to seek to limit and belittle it as a temporary provision made by the constitution for the judges and justices of the courts mentioned after they are relieved from active duties on the bench and denied further service by reason of advancing age.

The federal supreme court judges are allowed to resign after ten years of service and the attainment of the age of seventy years, with full pay for the balance of their lives. The provision made by our constitution was probably modelled after the federal statute, regard being had to the difference between a life tenure of the judicial office and a tenure bounded by years. The ten years of service on the part of the federal judge must have been passed, and he must have arrived at the age of seventy years before he is entitled to retire from active duties and still retain the compensation of a justice of the supreme court of the United States. In the case of the state judge, he must have reached the age of seventy, his judicial term must have been. abridged by reason of his having arrived at that age, and he must have served ten years as a judge or justice of the courts named. Then, instead, of a compensation for life, he is to have it only for the remainder of the term which has been abridged.^ As'long, in other words, as his judicial life would otherwise havn lasted, but for his arrival at the age mentioned. In effect, therefore, ..the compensation in both cases, state and federal, is for the balance of the judicial life of the officer.'

I see no reason in principle for Folding that the ten years of service as such judge or justice should all be. taken from the term, of office which is abridged by the incumbent arriving at the age of seventy years

I think the order appealed from should he affirmed, but as the question is new and the defendant a public officer acting undoubtedly in entire good faith, it should be without costs.

O’Brien, J. (dissenting.)

At the general election held in this' state'in the month of November, 1865, the relator was elected to the office of justice of the supreme court for a term of eight years, beginning January 1, 1866, and ending December 31, 1873. At the general election held in the month of November, 1873, he was again elected to the same office for a term of fourteen years beginning January 1, 1874, and ending December 81, 1887.

On the 15th of January, 1882, he attained the age of seventy years, and the full term for which he was last elected was abridged by the provisions of the constitution of the state, and ended December 31, 1882.

He has been paid from the state treasury during the five years, from December 31,1882, to December 31,1887, the sum of $6,000' per year as the salary of a justice of the supreme court, but has iiot been paid the $1,200 per year allowed by the statute for expenses. This sum, amounting to $6,000 for five years, the relator demanded from the defendant, the comptroller of this state, who declined to pay the same for the reason that the relator not having served ten years of his term, which was abridged, was not within the provisions of article 6, § 13, of the constitution.

The money necessary to pay the relator’s claim has been duly appropriated by the legislature, and there is no ground upon which payment can properly be refused, unless it be the one above stated?

The special term of the supreme court, upon the relator’s application and after a hearing, granted an order directing a peremptory mandamus to issue, directed to the defendant as comptroller, commanding him to pay the relator the said sum of $6,000, and this order has been affirmed by the general term.

This court has held in a case clearly within the provisions of the constitution above referred to, that the word.“ compensation ” meant the sum of money that the judge was in receipt of from the state when his term of office was abridged, namely, the annual salary of $6,000 provided by § 9, chapter 408, of the Laws of 1870, and also the sum of $1,200 per year in lieu of expenses, provided by § 1, chapter 541, of the Laws of 1872. People ex rel. Bockes v. Wemple, 115 N. Y., 302; 26 N. Y. State Rep., 330.

The only question now open for consideration is whether the relator’s case comes within the provisions- of the constitution. It must be admitted that if the literal reading alone of the provision is to be followed, then the case for the relator is established. A constitutional provision must be construed, and its true meaning determined by the application of the same rules that courts have sanctioned for the interpretation of statutes. These canons of construction have been so frequently explained and applied by this court in ascertaining the meaning of the provisions of the constitution and statutes that an extended reference to the cases is not necessary.

The article of the constitution which embraces the section now under review has quite frequently been the subject of construction and interpretation by this court, and in one of these cases the rule of construction by which we must be guided now is stated in very clear and comprehensive terms. In the construction of a law, every part of it must be viewed in connection with the whole, so as to make, if possible, all its parts harmonious. The intent of the law makers is to be sought for. When it is discovered it is to prevail over the literal meaning of the words of any part of the law. And this intent is to be discovered, not alone by considering the words of any part, but by ascertaining the general purpose of the whole and by considering the evil which existed calling for the new enactment and the remedy which was sought to be applied. And when the intent of the whole is discovered, no part is to be construed so that the general pui’pose shall be thwarted, but all is to be made to conform to reason and good discretion.” People ex rel. Jackson v. Potter, 47 N. Y., 375; approved, People ex rel. Killeen v. Angle, 109 N. Y., 564; 16 N. Y. State Rep., 647. In another case this court said, that effect must be given to the intention of the legislature "whenever it can be discovered, though such construction seem contrary to the letter of the statute.” Smith v. The People, 47 N. Y., 330.

This section of the judiciary article when first adopted in 1870 treated exclusively of the manner of election of the judges of certain courts, and of their official terms, which were fixed at fourteen years, the terms until then being but eight years; and it closed with this general proviso : But no person shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be seventy years of age.” It was held in The People v. Gardner, 45 N. Y., 812, that this limitation grew out of the circumstance that the new article provided for long terms for j udges, nearly double the term that had previously existed, and from the apprehension that during this long term the natural decay of the man might at times leave upon the bench an inefficient judge; and that it did not apply to a county judge in office when the article went into effect.

The provision stood unchanged until the general election of 1880, when a further clause was added, which reads as follows: “ The compensation of every judge of the court of appeals, and every justice of the supreme court, whose term of office shall be abridged pursuant to this provision, and who shall have served as such judge or justice ten years or more, shall be continued.during the remainder of the term for which he was elected.” The benefit of this provision applies to the remainder of an abridged term, and the judge who claims the compensation must “ have served as such judge or justice ten years or more.” These qualifying words, in my opinion, apply to the term abridged, and the ten years of judicial service required in order to entitle the retiring judge to claim compensation for the remainder of the term cannot be made by resort to previous official terms, during which he may have served. The entire provision evidently refers to the. single official term which is abridged or shortened by the limitation as to age; the “remainderof their term ” is the period during which the judge is entitled to the compensation, and the ten years of previous judicial service must have been on their abridged term, and not on some other term, whether created by this section or constitutional provisions previously existing. The word “ term ” is used both at the beginning ana close of the sentence, and reference is made in each case to the “ term abridged; ” and when it declares that the compensation of the judge shall continue during the “ remainder of the term for which he was elected,” the natural and obvious meaning of the word “ remainder ” is what is left of the term after deducting therefrom the ten years or more of service.

This section of the judiciary article, as amended in 1880, should, in my opinion, be construed in the same way as if it read : “ The compensation of every judge * * * whose term of office shall be abridged, * * * and who shall have served ten years or more of such term, shall be continued during the remainder of the term for which he was elected.”

The relator served but nine years of the term which was abridged, and the ten years of service is made up by resorting to another term of eight years, commencing in 1866, and ending several years before the amendment of 1880 was proposed or adopted. If the clause requiring ten years of service is satisfied by including years of service upon previous terms, there need be no limit to the time when such service shall have been rendered. If at any period during the life time of the judge claiming to be within this provision, no matter how remote, he may have served as judge a number o£ years sufficient, with the fragment of the term abridged by the constitution, to make up ten years, he would be entitled to compensation for the remainder of the term for which he was elected, which might, in some cases, still have thirteen years to run. A literal reading of the section as it now stands in the constitution would, as already observed, justify this construction. But it seems to me to be an entirely different result from that contemplated by the legislature that framed the amendment, and the people who adopted it It is more reasonable to suppose that the end in view was to permit judges whose terms were abridged by the limitation as to age to receive the compensation for a short period, though out of office, having served at least ten years of the term so abridged. When the origin, history and purpose of this section as amended is kept in view, nothing is found to indicate that the legislators who proposed it, or the people who adopted it, had in mind, or intended it to apply to cases where ten years or more of service might occur through successive elections of the incumbent. It was intended to apply to exceptional cases which experience had shown arose under the long terms fixed by the constitution in 1870. It was found that the limitation cut short a term to which, the incumbent was elected by the people and which was well nigh completed, and in a case where at least ten years of the term had been served it was thought just to permit him to draw the salary during the four years, or less, that remained. This seems to me to have been the real intention and purpose of the framers of the provision under consideration, and the reason and intention should control the strict letter of the law.

The order of the general and special terms should therefore, be reversed.

Order affirmed, without costs.

Earl, Finch and Gray, JJ., concur. O’Brien, J., reads for reversal; Huger, Oh. J, and Andrews, J., concur.


author: Ruger, Ch. J.

text:
    Julia L. V. Meagley, Ex’rx, Resp’t, v. Joel S. Hoyt, surviving partner, App’lt.

      (Court of Appeals,

      Filed February 24, 1891.)

    1. Contract—Breach op warranty.
    Defendants sold to plaintiff 230 barrels of tallow upon thirty different orders. The first five were inspected and found satisfactory, 125 more were used without suspicion of defects, but of the last deliveries plaintiff tested two barrels and found them to contain from ten to twenty-eight per cent. sand. In an action to recover damages for breach of warranty it was shown that the adulteration was easily discoverable and apparent to sight and touch, but the court charged the jury that they were authorized to find that all of the tallow sold except the first five barrels were adulterated and to award such damages as they should determine he had suffered between ten and thirty per cent, cf the gross amount of áales. Held, error; that this was equivalent to a charge that the jury could find a verdict for damages which were wholly unproved and presumptively not suffered.
    3. Same—Burden of proof on plaintiff.
    It is an invariable rule that the burden of proof lies upon the plaintiff to establish his cause of action, and no circumstances will excuse him from the obligation and impose the duty upon the defendant of proving that the alleged cause did not exist.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment for plaintiff entered upon .a verdict.

      Homer Weston, for app’lt; JSdw. K. Clark, for resp’t

       Reversing 12 H. Y State Rep., 357.

   Ruger, Ch. J.

This was an action to recover damages for a breach of warranty alleged to have been made on sales of tallow by the defendants to plaintiff’s testator. Ho evidence was given by the defendants on the trial, and the questions arise upon a motion to nonsuit and exceptions taken by defendants to the charge of the judge upon uncontroverted evidence. It appears therefrom that the plaintiff’s testator was a manufacturer of soap, residing at Binghamton, and in prosecution of his business consumed large quantities of tallow; that the defendants were manufacturers of that article, doing business at Syracuse. The alleged breach consisted in the mixture of silica, or sand, with the tallow, and although it did not impair the quality of the tallow, it substituted to a certain extent another substance in the place of that intended to be purchased. The defendants were a newly established firm, and between Hovember 16, 1888, and March 18, 1884, a period of about four months, sold the plaintiff about two hundred and thirty barrels containing about sixty-seven thousand pounds of tallow, which were duly shipped to the plaintiff and were received and accepted by him in due course of transportation. About thirty different orders were given, at irregular intervals, during this period, and they were all filled by the delivery of tallow, which was received, accepted and made use of by the plaintiff in his business, without notice to the defendants of any defects therein, and without any offer to return the same, or any part thereof. The terms of the sale were cash on delivery, and the tallow was all paid for except the last three shipments of March, 11th, 12th and 13th, amounting to twenty barrels or fifty-five hundred and seventv-five pounds, and valued at $404.18.

On the receipt of the first five barrels ordered, the plaintiff inspected the tallow and found it to be in every way satisfactory. From this time to March 12, thereafter, the plaintiff received and accepted 122 barrels without inspecting or testing the same, and used their contents in his -business without any knowledge or suspicion of defects or impurities. On March 12, the plaintiff had on hand eighty-three barrels of defendants’ tallow, and subsequently received twenty more, which were used by him without inspection or- objection, except as hereinafter stated, and without knowledge as to impurities therein, if any. The manner in which the alleged adulteration is claimed to have been discovered was through the character of the sediment found in the kettles in which the soap was manufactured. The soap was made in two kettles of the diameter of about eight feet each, and a depth of eight and one-half feet, with a capacity of about 20,000 pounds each. These kettles are first partially filled with lye and soap, into which tallow is shovelled until they are filled. The substance is then boiled until soap is produced, which, rising to the top, is dipped out of the kettles until a sediment is reached. This sediment is then left on the bottom of the kettle, and is and in the course of plaintiff’s business was usually cleaned out every three or four months. The kettles had been cleaned out in February, long after the use of defendants’ tallow had commenced, and were then found to be free from any unusual sediment or impurities. In March, however, the plaintiff’s servants discovered a difficulty in getting sufficient heat on the kettles, and were induced to clean them out for the purpose of discovering the cause of the disturbance. On this occasion they discovered more than the usual quantity of sediment, and it was of a different character from that usually found, consisting, as claimed, of sand or marble dust, to the extent of nearly one-third of the refuse material. The fact that somebody’s tallow was being adulterated was thus made clear, but it was still unknown who the vendors of the adulterated tallow were, as the plaintiff had been using indiscriminately the tallow of a number of different manufacturers.

In order to determine the fact as to whose tallow was being adulterated, the plaintiff took two barrels out of twenty-two of the lot shipped on February 18th by the defendants, and melted the tallow from them in a kettle. This process left a sediment in the kettle consisting, as claimed, of one-third sand and two-thirds insoluble soap or tallow. The plaintiff and his witnesses estimated the adulteration to amount to from ten to twenty-eight per cent of the tallow adulterated. Ho other test was made of any part of the tallow subsequently used, except an examination of a barrel or two made by pressing the tallow between the fingers, which was said, by that test, to show the presence of sand therein. There was also proof that after March 12th a witness discovered two or three barrels of sand in defendants’ factory at Syracuse, which resembled the substance found in defendants’ tallow at the plaintiff’s factory. On or about March 16th, when the defendants were informed of the discovery of the alleged adulteration, they offered the plaintiff to receive back the tallow which he then had on hand, amounting to one hundred and three barrels, and to repay him the cost thereof, but this offer was rejected by the plaintiff.

The undisputed evidence showed that this adulteration was easily discoverable and was apparent to the sight and touch, as well as by other modes of examination. The plaintiff testified that he had “bought of many parties and various brands, and been accustomed to • examine tallow as it came in and can distinguish good tallow from poor tallow; of these samples you show me, the one in the left hand is pure tallow; I can tell that as far as I can see it; I can see at a glance the difference in the two samples; I can see that there is trouble with the other sample, which is defendants’ tallow. Aside from the sight I discover that it is impure tallow by feeling of it between my fingers.” It was also in evidence that the tallow was shipped in barrels open at one end, by which the tallow was exposed to view and could be tested by the hand as well as seen.

In submitting the case to the jury the court charged them that they were authorized to find, upon this evidence, that all of the tallow sold by the defendants to plaintiff, except the first five barrels, was adulterated, and to award such damages therefor as they should determine he had suffered, between the limit of ten and thirty per cent of the gross amount of the sales. The court also charged the jury that in determining the quantity of tallow which was adulterated they had the right to take into consideration the fact that defendants had omitted to go on the witness stand and deny the fact of adulteration, and draw such inferences therefrom, as to the extent of the adulteration, as they should think proper.

These directions were duly excepted to by the defendants and present the main questions arising on this appeal. The amount of the verdict rendered shows that the jury found all of the tallow to be adulterated and awarded damages to the amount of twenty-eight per cent depreciation on the entire quantity delivered, except the first five barrels.

We are of the opinion that the exceptions to the charge referred to were well taken. So far as the 122 barrels, which had been used before adulteration was discovered, are concerned, there was no evidence whatever that they were adulterated; but, on the contrary, there was affirmative evidence that a large proportion thereof was free from the admixture of any foreign substance. With reference to the balance of the tallow, there was no positive evidence that any of it was adulterated, except about three barrels. The charge was equivalent to an instruction that the jury could find a verdict for damages which were wholly unproved, and presumptively not suffered, and that any defect in such proof was supplied by the omission of the defendants to establish affirmatively that their tallow w-as free from foreign substances. This' was so manifestly erroneous that it needs no argument to establish the error. Leeds v. Metropolitan Gas-light Co., 90 N. Y., 26.

It is an invariable rule that the burden of proof lies upon the plaintiff to establish his cause of action, and we know of no circumstance which excuses him from this obligation, and imposes the duty upon the defendants of proving that the alleged cause of .action did not exist. The plaintiff may, of course, rest upon a prima facie case, but this requires the proof at least of some circumstance from which the existence of the actionable facts may be legitimately inferred. There is no such evidence in this case, and for the errors in the charge the judgment must be reversed.

The defendants also attempted to raise the question whether the plaintiff had not precluded himself from maintaining an action for damages by accepting and using the property, both before and after knowledge that a part of it was not tallow, but this has been done so imperfectly that we'doubt whether the question has been properly raised. There was probably enough in the evidence to raise the question whether the plaintiff was not bound, upon the contract of sale, to inspect the goods bought upon their receipt by him, and, unless there was some latent or conceded defect in them, was barred of his action by their acceptance. Coplay Iron Co. v. Pope, 108 N. Y., 236; 13 N. Y. State Rep., 480; Studer v. Bleistein, 115 N. Y., 316; 26 N. Y. State Rep., 400; Mayer v. Dean, 115 N. Y., 556; 26 N. Y. State Rep., 375.

Without considering this question, however, we are of the opinion that the judgments of the courts below should be reversed, and a new trial ordered, with costs to abide the event

All concur.


author: Gray, J.

text:
    William B. Greene, App’lt, v. John B. Greene, Resp’t.

      (Court of Appeals,

      Filed February 24, 1891.)

    Wills—Suspension oe poweb op alienation—Tbust.
    Testator devised the residue of his estate to his three sons, as trustees, to carry out the provisions of his will, and directed them to hold it for six years, pay the legacies, and then hold it for their joint benefit, and annually account to each other' for the rents, etc. It forbade their selling or alienating a certain portion for six years, gave power to sell the rest, but forbade distribution until the end of the six years, and provided that if either should attempt a division or partition in the meantime, he should forfeit his share. It gave power, however, to mortgage to pay legacies, if necessary, and declared that the estate should belong to said sons at the ■ expiration of the period aforesaid. Reid, that the three sons had every estate and interest in possession in remainder, and in reversion; or, m other words, the whole fee of the property, and that there was no unlawful suspension of the power of alienation.

      Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered upon decision of Erie equity term dismissing complaint as to certain causes of action therein contained.

      Thomas M Tyng, for app’lt; Sherman S. Rogers, for resp’t.

       Affirming 26 M. Y. State Rep., 583.

   Gray, J.

Upon this appeal we are asked to pronounce invalid that disposition by the testator of his residuary estate which was made in favor of three of his sons; the plaintiff, another son, being excluded from any share thereof. As an heir he brings this action for the partition of the decedent’s real property, under § 1537 of the Code of Civil Procedure, and he attacks the devise to his brothers, as being void for offending against the statute of perpetuities.

After specific devises of realty the testator, in the fifth clause of his will, gave all his residuary estate “unto my three sons, viz., John B. Greene, Harry B. Greene and Samuel B. Greene, as trustees, to carry out the provisions of this * * * will and to execute the trusts hereinafter specified.’’ In the following eight clauses he directed them to pay certain pecuniary legacies, and he constituted two trust funds for the lives of his wife and a sister. The plaintiff received a pecuniary legacy. In the fourteenth clause testator directed that his “ said trustees shall take and hold my said property and estate and the whole thereof * * * for the period of six years from and after my decease; the estate being chargeable with the payment of the foregoing bequests and legacies, and it being, as I now believe, with the moneyed securities on hand * * * amply sufficient to pay said legacies in full together with the taxes * * * on my real property, so that at the expiration of said period the residue of said real estate * * * should remain unincumbered and intact After the payment of said legacies the said property and estate shall be managed for the joint benefit of my said three sons * * "* who shall annually render to each other a just and full statement of the rents, issues and profits and all transactions relating to said property and estate.” Then follow two provisions, one empowering the trustees to sell all the realty, except certain specific pieces, on certain conditions, and the other enjoining against any partition or division of the estate, devised in trust to his sons, until the expiration of six years, under penalty of forfeiture of the interest of the son offending. Then follows this (the fifteenth) clause:

“ XV. At the expiration of said period of six years the rest and residue of my said estate, real and personal, remaining after the payment of said legacies and debts, shall belong to my said three sons, John B. Greene, Harry B. Greene and Samuel B. Greene, share and share alike, their heirs and assigns forever.”

The last clause in his will is termed by testator as “ explanatory and qualifying.” He says a partition of the estate “as at present situated” would be detrimental to his three sons and that the personalty would nearly suffice to pay the legacies; but in. case of an exigency he authorizes them “ to mortgage the real estate ” for that purpose.

The difficulty which this will .creates in the work of construction exemplifies the value of the rule which is controlling upon the courts in the interpretation of wills, that the intention of the testator, if discoverable and lawful, shall prevail and be effectuated. . In this will the language is involved, clauses are in seem- - ing conflict and some provisions are illegal But, notwithstanding the confusion and conflict of language, a purpose is evident from • a consideration of the whole testament, and that is that the three sons, who are constituted executors and trustees, are to have the whole of testator’s estate which shall remain after the payment of legacies, etc. The idea is prominent that the personalty will suffice for every testamentary provision requiring the use of moneys by the executors. The restriction upon a partition between the sons is, plainly, based upon the desire that the real estate shall be left to improve in value and that its income shall meet any deficiencies in the application of the personalty to the payment of legacies, etc. Of the legality of such a restriction we shall speak hereafter. We shall first see if and how this will, in its residuary scheme, may be upheld.

By the fifth clause the testator, in terms, gives the residue of his estate to his three sons as trustees “to execute the trusts thereafter specified.” Without the aid of this language, we should have no diffculty in holding that that clause conferred a legal estate upon the trustees named, wherever a valid express trust was created.

That principle was expressly declared in Manice v. Manice, 43 N. Y. 303, where there was a general devise of the residuary estate to the executors, in trust for the uses and purposes set forth in the will. It was there considered that such a general devise in trust vested the legal estate in the trustees for such legal purposes as required it to be vested in them and' in other respects it would be inoperative. So, in this case, this general devise in trust may apply to the valid trusts created for the testator’s wife and sister and will vest the trustees with the requisite legal estate. What then is the remaining trust, which the testator has attempted to create? Substantially, the trustees were to hold and manage the residue of the estate for six years, for the joint benefit of themselves, as the three sons, and, at the expiration of that period of time, it was given to them in equal shares, absolutely. Such a trust would be wholly invalid, if for no other reason, because it would be for a period not measured by lives. But there is a fundamental objection to our construing this provision as a trust. To the constitution of every express trust there are essential these elements, namely, a trustee, an estate devised to him, and a beneficiary. The trustee and the beneficiary must be distinct personalities.; or, otherwise, there could be no trust and the merger of interests in the same person would effect a legal estate in him of the same duration as the beneficial interest designed. 2 R. S., 727, §§ 47, 55; Woodward v. James, 115 N. Y., 346; 26 N. Y. State Rep., 147. That the legal and the beneficial estates can exist and be maintained separately in the same person is an inconceivable proposition. It is quite as much of an impossibility, legally considered, as it is physically. These three sons would have the actual possession of the land; they would be entitled to receive and to retain and enjoy the rents and profits, and they and their heirs would be subjected to no change of title or possession, nor other diminution of interest than what might be produced by an application of income, or of any proceeds of sales, to the payment of legacies. The result is that they have every estate and interest in possession, in remainder and in reversion; or, in other words, the whole fee of the property. It was the design of the legislature, in the revision of the statute of Uses, to abolish technical and useless distinctions between the title and the use, and to convert the estate of a beneficiary into a legal estate, commensurate with the beneficial interest intended, whenever the trust was of a passive or formal character and the actual possession and fruits of possession were the beneficiary’s.

Under § 47 of the article upon uses and trusts, if a person by virtue of a devise shall be entitled to the actual possession of lands and the receipt of the rents and profits thereof, in law or in equity, he shall be deemed to have a legal estate of the same -quality and duration and subject to the same conditions as his beneficial interest. This article would distinctly operate upon the devise which this testator made in favor of his three sons, to vest in them from the time of his death a legal estate in fee in the lands, and the only conditions, subject to which the devisees would take, would be that the land might be resorted to for the payment of legacies, etc. As executors, they would administer upon the personalty in the payment of debts and legacies and in the establishment of the trust funds directed. If the personalty proved insufficient, they were to sell or mortgage the realty to complete that much of the testator’s plan of distribution of his •estate. Whether such sale or mortgage would be made under the power conferred by the will, or whether it would be by contribution of the devisees, is obviously quite a profitless discussion. The fact was that the real estate was charged with the payment of debts and bequests in the hands of the devisees, and they were personally bound for the payment. Brown v. Knapp, 79 N. Y., 136. It is in no wise necessary, and there are no considerations which demand that we should construe an express trust out of the residuary devise for the three sons. The doctrine established by the cases is that a trust estate will never be implied where it would render a will illegal and void. If we were to hold this devise to be an express trust, we should be doing a work which would result in overthrowing the whole testamentary scheme, for the accomplishment of no useful purpose and not demanded by any legal principle. If it is urged that the inhibition against a partition, or a division of the estate, for a period of six years, and the restriction upon the power of alienation are provisions which, for their illegality, affect the will, the answer is that as invalid limitations upon the fee ownership of the property devised they are void and may be disregarded. Henderson v. Henderson, 113 N. Y., 1, 15; 21 N. Y. State Rep., 800; Rep., 800; Harrison v. Harrison, 36 N. Y,. 543.

The present case illustrates the peculiar character of cases involving the construction of wills. Each case must be determined upon its own particular facts and features, and former precedents are rarely availing in the office of construction. The supreme importance of giving effect to the last will of the decedent requires the court to search out his intention and to validate his scheme, unless to do so would contravene the statute. The endeavor is to find a way of upholding the will, not of breaking it down, and, thus, in every case the inherent purpose, if lawful, should be effectuated through what legal channels of construction may be open. We should not make a new will for the testator and we need not strain to support his testamentary plan, if the object is unworthy, or commands our just condemnation.

The complaint was properly dismissed by the trial court, and the j udgment of the general term, affirming the judgment of dismissal, should be affirmed by us, with costs.

All concur.


author: Per Curiam.

text:
    Jacob Reiser, Resp’t, v. Ernest F. Plath, Adm’r, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    Befebence—When not allowable.
    In an action upon promissory notes, an account stated and for money lent, where the defense is a general denial, the court has no power to order a reference, but the parties are entitled to a trial by jury.
    3. Same.
    Although upon a possible claim that the amount of the account ^ stated has been merged in one of the notes, the examination of a long account may become necessary, this is not sufficient to authorize a compulsory reference;, as such examination will not be directly, but only collaterally involved.
    Appeal from order of compulsory reference.

      H. M. Gescheidt, for app’lt; Edward W. 3. Johnston, for resp’t.
   Per Curiam.

The appeal is from an order of compulsory reference. The complaint exhibits four several and separate causes of action, namely, two upon promissory notes, one upon an account stated, and one for money lent The answer is in legal effect a general denial, and a plea of payment.

We are of opinion that the court had no power to order a reference for determination of the issues, but that the parties were entitled to a trial of them by a jury. Clearly so as to the promissory notes, and the claim for money lent. And, as to the account stated, the issue involves no accounting, but only whether there has been an accounting between the parties, a balance ascertained and admitted, and a promise, express or implied, to pay that balance. No item of the account being challenged for fraud or mistake, the only issues are, was the account stated, and has the sum agreed to be due plaintiff been paid. Under the pleadings plaintiff would not be permitted to prove, nor defendant to disprove, the correctness of the account in its details, but the evidence would be restricted to the facts of an account stated and payment of the balance. It appears by plaintiff’s affidavit that defendant may contend that the sum due upon the account stated is embraced in the $8,800 note; and plaintiff says that to determine whether this be so will require the examination of a long account. But, ■“ the account to be examined must be the immediate object of the action or the ground of the defense; must be directly, not collaterally involved,” Camp v. Ingersoll, 86 N. Y., 433; and the •examination required must be of the items of the account, and not merely of its effect or result. Streat v. Rothschild, 12 Daly, 95; Magown v. Sinclair, 5 id., 63. Assuming that in some way the account may be relevant evidence on the question of the merger of the account stated in the note, we are unable to perceive how the trial of that question can require “ proof by testimony of the correctness of the items composing it.” 5 Daly, 63. The right to trial by jury should not be denied, except in a case entirely clear of the constitutional guarantee.

If the order were one in the discretion of the court below, we ■should not disturb it: but being an order beyond the power of the court to make, we have no alternative but to reverse it.

And it is so ordered.

Allen, Bischoff and Pryor, JJ., concur.


text:
    John N. Wyckoff et al., Resp’ts, v. Lemuel H. Wilson, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Bills and notes—Rights as between endobsebs.
    The payees of a note are presumably the first endorsers thereof, and cannot maintain an action against another endorser without appropriate allegations supported by sufficient proof that defendant was privy to the consideration for which it was given and assumed the responsibility of endorser to tne payees.
    3. Same.
    The mere fact that defendant on being requested by plaintiffs to pay remained silent and did not dispute his liability, is not sufficient to prove that he had assumed the character of endorser towards them.
    Appeal from judgment and order of the general term of the ■city court, affirming a judgment for plaintiffs entered upon a verdict, and also affirming an order denying defendant’s motion for a new trial.
    • Benjamin Estes, for resp’ts ; Charles E. Wilson, for app’lt
   Per Curiam.

This action was brought to recover upon a promissory note as follows:

“New York, August 12, 1889.
“ Two months after date I promise to pay to the order of Wyckoff Bros, two hundred dollars at the Sprague National Bank, Brooklyn, value received.
. “(Signed) E. R. Middledrock.”

The note was endorsed by the defendant Wilson. The legal presumption predicated upon the note only is that Wyckoff Bros, were endorsers prior to Wilson, and hence an action by the former against the latter was not maintainable without appropriate allegations in the complaint and sustained by sufficient proof upon the trial that the defendant Wilson was privy to the consideration for which the note was given, and assumed the responsibility of endorser to the payees. See Meyer v. Hibsher, 47 N. Y., 265; Phelps v. Vischer, 50 id., 69.

The allegations of the complaint were sufficient for the purpose of charging the defendant Wilson, but the record of this appeal fails to disclose any evidence in support of those allegations. Indeed, the only fact relied upon by the plaintiffs to support the claim that the defendant Wilson had assumed the character of.an endorser towards them was that, in an interview between John N. Wyckoff, one of the plaintiffs, subsequent to the maturity of the note, Wilson remained silent when requestéd to pay, and did not dispute his liability. Silence under some circumstances may be proof of acquiescence and consent, but silence only can never assume the dignity of proof of an antecedent agreement founded upon sufficient consideration by means of which the liability of the person of whom a recovery is sought was created.

We are, therefore, of the opinion that the exceptions of the defendant to the rulings of the trial justice were well taken, and that the judgment and order appealed from should be reversed.

Judgment and order appealed from reversed, and new trial ordered, and costs to abide the event.

Allen, Bischoff and Pryor, JJ., concur.


author: Allen, J.

text:
    Louis S. Chase, App’lt, v. Jacques Senn, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Evidence—Bills and notes.
    When an action on a note is between the immediate parties to the note, the want of consideration, or the failure or partial failure, is always open to inquiry.
    2. Same—Admissible to explain written contract.
    By the note in suit defendant promised to pay a certain sum monthly for the privilege of advertising purposes of one panel, each 7x22 inches, in fifteen cars of the Broadway & Seventh Ave. Railroad Co. for one year. On the trial defendant was permitted, under a plea of failure of consideration and rescission of the contract, to testify to the size of the panels as agreed to at the time of making the note, and that the advertisement was to he put in the cars on such road running from Fourteenth street to the Battery. Held, no error; that such testimony did not contradict the terms of the note, but served to explain that part of it which was not exact or certain.
    3. Same.
    q, A question put to defendant on cross-examination as to whether he was a'witness on a former trial of this action was excluded. Held, not reversible error, as plaintiff was not thereby precluded from showing in a proper manner that defendant had sworn differently on such former trial.
    Appeal from judgment of the general term of the city court of New York, affirming judgment in favor of defendant, and from order affirming an order denying motion for a new trial.

      B. B. Leavitt, for app’lt; B. J. Myers, for resp’t.
   Allen, J.

Appeal from a judgment of the general term of the city court of New York, affirming a judgment in favor of defendant, entered upon the verdict of a jury and from an order affirming an order denying a motion for a new trial.

The action was brought upon an instrument in writing of which the following is a copy:

“New York, September 1, 1885.
“ I promise to pay to the order of L. S. Chase one hundred and eight dollars, monthly, in the following manner, to wit: $9, 20 days after date, and $9 on the 20th day of each succeeding month for twelve months from date, for the privilege of advertising purposes of one panel, each 7 x 22 inches, in 15 cars of the Broadway and 7th Ave. R. R. Co., in the city of New York, for the term of one year from date. “ J. Sew.”

The answer alleged the failure on the part of the plaintiff to perform the agreement of advertising, and that the defendant elected to rescind his agreement and duly notified the plaintiff thereof.

The instrument sued upon is a promissory note. Chase v. Behrmann, 10 Daly, 344. The defense is a failure of consideration agreed upon between the parties; and this defense is sufficiently pleaded in the answer. The suit is between the payor and payee of the note. When an action on a note is between the immediate parties to the note, the want of consideration, or the failure or partial failure, is always open to inquiry. A total failure of consideration for which the note is given is a good defense, and stands upon the same footing as the original want of it. And a partial failure of consideration is a good defense pro tanto.

Defendant was allowed upon the trial to testify in reference to the size of the panels containing the advertisement agreed upon between him and the plaintiff at the time of making the note, and also testified that the advertisement was to be put in the cars of the Broadway & Seventh Avenue Railroad Co., running from Fourteenth street to the Battery. This testimony did not contradict or vary in any way the terms of the note, but served only to show what the parties had in mind when the agreement was entered into, and to prove the meaning of that part of the contract which was not exact and certain. There was no error in this, and the plaintiff’s exceptions to the testimony on this subject are without merit.

On cross-examination, defendant was asked the question, “I ask whether or not you were a witness upon the first trial of this case,” to which defendant’s counsel objected. Plaintiff’s counsel then stated, “ I ask the question for the purpose of going into the credibility of Mr. Senn’s testimony.” The court sustained the objection and plaintiff excepted. This ruling of the court does not constitute error sufficiently serious to call for a reversal of the judgment Plaintiff’s right to contradict the'witness by his own testimony was not taken away from him, and the question of his right to contradict defendant’s testimony on this trial by showing that he had sworn differently on a former trial, was not presented by his exception to this ruling. If he desired to raise that question, he should have presented.it in a proper way, either by an offer to prove that the defendant had in material instances given different testimony on the first trial, or have asked such questions as were calculated to elicit from the defendant whether he had not sworn differently upon the same points on a former occasion. If this offer had been rejected, or if the question had not been allowed by the court, substantial error wonld have been committed. We do not think, however, that the appellant’s present exception is of any avail to him.

The case appears to have been tried upon correct principles of law, and the questions of fact in the case were fairly submitted to the jury.

The judgment and order appealed from should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


text:
    Ellen Sullivan, Resp’t, v. The Metropolitan Life Ins. Co., App’lt.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    1. Insurance (life)—Breach of warranty.
    An intent to defraud is not a constituent element of the defense of a breach of warranty of the representations of the insured, but such defense is made out by showing that he made a material representation upon which defendant accepted the risk; that such representation was expressly warranted to be true, and that in fact it was not true.
    2. Same.
    The insured represented that he had never been sick and had never been attended by a physician. It was proved on cross-examination of his mother, the beneficiary, that he was ailing and had been attended by a physician within a month before the policy was issued. Held, a breach of the warranty which rendered the policy void.
    Appeal from judgment rendered in the first district court, Mitchell, J., in favor of the plaintiff in an action to recover upon an insurance policy, the defense being breach of warranty of the truth of the representations of the insured.

      Morris YY. Hart, for resp’t; William H. Arnoux, for app’lt.
   Per Curiam.

The judgment appealed from must be reversed. The gist of the defense is not, as counsel for respondent supposes, fraud on the part of the insured in the making of the representations upon the faith of which the policy was issued to him, but breach of an express warranty of the truth of such representations. The intent to defraud is not therefore a constituent element of the defense. It is sufficient for the defendant to show that the insured made a material representation relying upon which the defendant accepted the risk of insurance, that the insured expressly warranted such representation, to be true, and that in fact it was not true. See Foot v. The Ætna Life Ins. Co., 61 N. Y., 571.

In the case at bar the insured represented that he had never been sick and had never been attended by a physician, yet the uncontroverted testimony of the plaintiff, the mother of the insured and the beneficiary under the policy, brought out on cross-examination, shows that the insured was ailing and had been attended by Dr. Marrill within less than a month before the issuance of the policy. This was a misrepresentation of material facts, and a breach of the warranty of the truth of the representations upon which the policy was issued and pursuant to the terms thereof rendered the policy void. Nor can it help the plaintiff" that the agent of the defendant who solicited the insurance and aided in the preparation of ’ the insured’s application knew the representations therein contained to be false and untrue. See Foot v. The Ætna Life Ins. Co., supra.

Judgment should be reversed, with costs. -

Allen, Bischoff and Pryor, JJ., concur.