source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Account of Henry A. V. Post, Adm’r.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Surrogate’s court—Power of surrogate to amend order.
    A surrogate has power to amend an order made by him, setting aside the report of a referee, by inserting a recital of the papers which were be fore him on the hearing which resulted in such order, where such recital was omitted from the order.
    2. Same—Laches.
    A delay from April to October in moving for such amendment is not such laches as to deprive the moving party of the right to relief where the motion was made in the same month that motion was made to dismiss an appeal for failure to include such papers in the case.
    3. Same—Terms.
    In such case the motion to amend should require not only the payment of motion costs, but also the disbursements on the appeal which the amendment made a useless expenditure.
    Appeal from an order of the surrogate of the county of Hew York, amending and settling a preceding order entered with his direction.

      John C. O' Conor, Jr, for app’lt; Fred. W. Hinrichs, for resp’t.
   Daniels, J.

An order was made by the surrogate directing Henry A. V. Post, the appellant in this proceeding, to account as administrator of Edwin Post, deceased, for the estate of Cornelia Post, deceased, of which he was the administrator. His account was filed, and objections were presented to it. And the case was then referred to a referee, who, after hearing the evidence, decided and reported in favor of the appellant, on the ground that the statute of limitations protected him against the accounting, so far as it had been drawn in controversy. This decision of the referee was made the subject of exceptions by the party insisting on the liability of this administrator so to account. And on the hearing of the exceptions the surrogate concluded that the statute was not a bar to the claim- for this accounting, and set aside the referee’s report, and ordered the case back for a further hearing. From that order an appeal was taken by the same appellant to this general term. And the printed case to present it contained no more than the record itself of the surrogate’s court. An application to dismiss it for want of a case was made to this court, but that was not entertained for the reason that the clerk of the surrogate’s court had certified the return as correctly including the papers which were referred to in the order, and it was suggested if any correction should be made, it was to be done by the surrogate. An application was then made for that purpose to the surrogate, and he ordered the preceding order to be amended in its recitals, the chief of which was that the evidence, exhibits, and abstracts of accounts introduced on the reference, and the exceptions, and requests to find, were before the surrogate on the hearing which resulted in the order setting aside the report of the referee. The objection has been taken that the surrogate acted without authority in making this amendment to the recitals in the order which was first entered.

That order was entered on the 18th of April, 1890, and the order to show cause why the "change should not be made was not obtained until the tenth of the next October. But this was not so great a period of delay as to preclude the respondent from making the motion, especially as it was in that month that the motion -was-made in this court to dismiss the appeal for want of a case containing that evidence. After the refusal to entertain that motion for the reason that the surrogate’s court was the proper tribunal to which application for relief should be made, the motion there was made with all practicable diligence.

And the power of the surrogate to entertain and favorably dispose of it has been fully supplied by subdivision 6 of § 2481 of the Code of Civil Procedure. For by that subdivision he has been given the authority to open, vacate, modify, set aside, or enter as of a former time, a decree or order of his court. And the only qualification to which' it has been subjected is that it must be exercised only in a like case, and in a similar manner as a court of record and general jurisdiction exercises the same powers. And that these courts have been vested with this power of amendment and correction appears from § 724 of the Code, providing, among other things, that they may supply an omission in any proceeding. This was such an omission. And it was within the power of correction in this manner given to the surrogate. The order as it had been entered was incorrect in its omission to recite that the evidence, exhibits and abstracts which were before the referee, and the exceptions to his findings and refusals to find, formed part of the hearing before the surrogate to set aside the report of the referee. And it was the duty of the surrogate to provide for its correction by adding, as he did, the statement of this fact to the recitals of the order.

But the order is objectionable in the terms on which it was made. They were the payment only of motion costs. These terms should also have included the disbursements on the appeal, which the amendment made a useless expenditure. These expenses were regularly incurred as the order had been entered at first, and from which the appeal had been taken. And as the appeal will now require a new case to present it, the expenses previously incurred should also have been required to be paid as a condition for the amendment of the order.

In that respect the order should be modified by requiring as a condition of the amendment the payment of the expenses previously incurred on the appeal, and as modified affirmed, without costs of "this appeal.

Yah Brunt, P. J., and Lawrence, J., concur.


author: Van Brunt, P. J.

text:
    Mary O. Simis, Resp’t, v. Daniel S. McElroy, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Appeal—Judgment boll.
    The record on appeal in an equity action contained no findings signed by the justice, but contained a paper entitled in the supreme court, which contained conclusions of law, but which was unsigned. Held, that as there was no evidence that the trial justice ever signed any decision, as required by the Code, the appeal could not be considered.
    Appeal from a judgment, entered upon a decision of the court without a jury.

      Daniel Daly, for app’lt; Sidney S. Harris, for resp’t.
   Van Brunt, P. J.

This action was brought to recover the purchase price remaining unpaid upon a contract for the purchase of real estate. The complaint alleging compliance by the plaintiff with her contract, by the tender of the deed which was •called for by the said contract.

The defendant, in his answer, admitted the contract and payment of $250 on account of the purchase price therein named, and denied each and every other allegation of the complaint.

And for a further answer, that the plaintiff could not give a good title to the whole of the premises, that he had spent $250 in examining the title, and suffered other damage, and demanded a judgment against the plaintiff for these damages.

The plaintiff replying to this affirmative defense set up what was substantially a general denial.

It seems to have been assumed by the parties that the issues thus raised should be tried at a circuit court held in and for this county before a jury, in which they were probably correct, but whether such issues were ever actually tried we cannot determine, as no findings signed by the justice whom it is alleged tried the cause are contained in the record. There is a paper called a decision, which is however unsigned by anybody and which is entitled in the supreme court, and according to which it is asserted .that the action was tried in the circuit court before a judge without a jury.

If the action was tried in the circuit court it could only be as a common law action and the only conclusion of law proper to be made would be to the same purpose as a verdict of a jury, had •the case been tried before a jury, viz.: that the plaintiff was entitled to recover from the defendant a sum certain, or that the defendant was entitled to recover from the plaintiff a certain sum or that the defendant was entitled to judgment dismissing the complaint upon the merits.

Instead thereof we find conclusions of law giving a judgment equitable in its nature and which a circuit court had no power to-make, having no equitable jurisdiction except so far as such jurisdiction may be necessary for the trial of equitable defenses to common law actions.

The postea follows these conclusions.

This practice is irregular and we cannot allow it to pass unnoticed. We cannot, however, consider this appeal upon the present papers because the record contains no evidence that the justice before whom the case purports to have been tried has ever-signed any decision as required by the Code.

The cause must be stricken from the calendar, in order that the’ parties may present a proper case. If the parties will have the record corrected they may resubmit the case even after the adjournment of the court, by handing the papers to the clerk.

Daniels and Lawrence, JJ., concur.


text:
    The People ex rel. Alonzo T. Decker, Resp’t, v. The Hoboken Turtle Club, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Clubs—Expulsion op member—Notice.
    Where the by-law or constitution of a club provides that a member may be suspended or expelled, provided that the penalty should not be enforced until ten days previous notice in writing has been given the member and he has been given an opportunity to be heard, Held, that in the absence of any provision or agreement as to the mode of service the notice should be personally served, and that a notice mailed to a member which in due course of mail should have been delivered ten days previous to the proposed action, but which he did not receive until the following day,, was insufficient to confer jurisdiction to expel him.
    Appeal from order granting writ of peremptory mandamus.

      W. H. Townley, for app’lt; J. B. Dill, for resp’t.
   Van Brunt, P. J.

The defendant is a social organization incorporated under the laws of this state. The relator was a member and the treasurer of the club, and was expelled by the board of governors by resolution, after an alleged trial, in which he refused to participate.

There was an appeal taken from the action of the club, which was confirmed at a meeting of the members thereof, and this application having been made for a mandamus to restore the relator to his office as treasurer and also to his membership, the court refused to restore him to his office, but ordered him to be reinstated as a member.

" It appears that the principal ground upon which the decision of the court below proceeded was because a certain by-law of the club had not been complied with.

Such by-law reads as follows: § 2. If the conduct of a member shall appear to the house committee to be disorderly, in violation of the rules, prejudicial to the interests or character of the club, or contrary to its by-laws, the committee shall inform him thereof in writing, and if the nature of the offense, in its opinion, requires it, request him to resign. If such information or request be disregarded, the house committee shall refer the matter to the next regular meeting of the board of governors, or to a special meeting thereof, of which reference written notice of not less than two weeks shall be given to the offending member.

The constitution of the club contains the following provision:

Section 1. The board of governors shall have power to censure, suspend, or, by a two-thirds vote of members present, expel any member charged with conduct which, in the estimation of the board, is prejudicial to or which may endanger the welfare, interest or character of the club.

§ 2. All charges of misconduct against any member must be presented to the governors in writing by the house committee, to whom all complaints must first be made; no penalty, however, shall be enforced against any member of the club until after ten days’ previous notice in writing has been given to such member, specifying the charges against him, and he shall have been given an opportunity to be heard by the board in his own defense.

And although by this provision of the constitution all charges of misconduct against any member must be presented to the governors in writing by the house committee, yet we think it was in no way intended to limit the powers conferred upon the governors by the constitution by anything contained in the by-law above referred to.

We think, as is suggested by the learned counsel for the appellant, that this by-law relates to the police powers of the house committee in reference to things coming under the cognizance and view of that committee; in other words, to the conduct of a member while in the club house, the language of the by-law being: “ If the conduct of a member shall appear to the committee to be disorderly, in violation of the rules, prejudicial to the interest or character of the club, or contrary to its by-laws,” evidently referring to the conduct of the member in the club itself, and having no relation to anything he might do outside of the limits of the club.

Under such circumstances the house committee might call attention to the member’s disorderly conduct, and request him to resign, and if he did not resign they might send his case to the board of governors. But they are not required to do so.

This provision in no way abridges the powers of the board of governors conferred upon them by the constitution, which is, that they may censure, suspend or expel any member charged with conduct which, in the estimation of the board of governors, is prejudicial to or might endanger the welfare, interest or character of the club. And this power is much broader than that contained in the by-law, and intends to reach all cases where the conduct of the member is prejudicial to the welfare, interest or character of the club, and is not confined to disorderly conduct, as is the power conferred by the by-law.

There is another point, however, which seems to be conclusive upon this appeal, and that is, that the relator did not receive ten days notice in writing of the charges against him, as provided by the constitution.

It appears that the notice was mailed to the relator at the place where notices were accustomed to be sent, which, in due course of mail, would have been delivered at his office ten days previous to the proposed action. It appears, however, that this notice was not personally received until the next morning by the relator, and thus, if it was necessary to serve the notice upon the member personally, no such notice was received more than nine days before the action of the board of governors.

It appears to have been held by the court of appeals in the case of Wachtel v. Noah W. & O. Society, 84 N. Y., 31, that in the absence of any agreement by a member of a corporation, or any provision in the charter or by-laws for a different mode of service, it should be personal, as required at common law, where the object is to deprive a party of his rights or property. This rule is also declared in the cases of Rathbun v.Acker, 18 Barb., 393, and People ex rel. Railroad Co. v. Railroad Co., 13 Hun, 212.

It would thus appear that the board of governors did not obtain jurisdiction of the relator, he not having appeared before them, and their action was unauthorized by the constitution.

The order should be affirmed, with costs.

Daniels, J., concurs.


text:
    John Claflin et al, Resp’ts, v. John F. Eagan et al, App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Venue—Change of.
    An action to set aside an assignment for creditors should be removed to the county in which all the transactions in question took place, where it appears that a large number of witnesses on the question of their good faith reside in said county, and the motion to change the venue to said county cannot be defeated by a stipulation by plaintiffs that they will not call any witnesses to contradict defendants' evidence if they will confine it to two i interested witnesses.
    Appeal from an order entered upon a motion made by the defendants to change the place of trial from New York county to the county of Dutchess.
    This action is brought to set aside an assignment for the benefit of creditors made by the defendants Eagan & Hunt to the defendant Wood. There was no real estate conveyed by the said assignment, so that the title thereto is not involved, and the motion is based solely on the ground of the convenience of witnesses.
    The court below held that the motion should be denied upon plaintiffs making the stipulations specified in their affidavits.
    The court, upon a former hearing, delivered the following opinion:
    Per Curiam.-—The affidavits used upon the hearing of the motion fully justified the order which was made, sending this case to Dutchess county for trial, where the transactions occurred upon which its disposition depends.
    The order should be affirmed, with ten dollars costs and disbursements.

      Charles Morschauser, for app’lts ; Kneeland, Stewart & Epstein, for resp’ts.
   Van Brunt, P. J.

When this appeal was before the court upon a previous occasion, the court fell into the error of supposing that the motion to change the venue had been granted, and upon examination of the papers saw no reason why they should interfere with that supposed result.

It is supposed by the respondents, that by the stipulation which they have made, they have avoided the claim of the appellants in respect to the number of their witnesses.

The whole of the transactions which are the subject of this action occurred in Dutchess county, and their good faith depends upon the evidence which the defendants can offer in respect thereto, and they cannot be deprived of the right to such evidence by a stipulation upon the part of the plaintiffs that they will not call any witnesses to comradict the evidence of the defendants if they will confine it to two interested witnesses. It may be true that the stipulation might avoid the necessity of calling two or three of the defendants’ witnesses, but that is all. It is evident that the plaintiffs have amplified the number of witnesses beyond tbe number intended to be called, as is too usual in cases of this description.

We think that all these transactions having arisen in Dutchess county, and it being apparent that a large number of witnesses there residing must be called, the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted.

Daniels and Lawrence, JJ., concur.


author: Learned, P. J. Mayham, J.

text:
    Rebecca G. Munson, Resp’t, v. George H. Munson, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Divorce—Jurisdiction of court of another state.
    A husband and wife were married and subsequently became domiciled in this state. The husband left his wife and went to California, solely to get a divorce. This was procured, hut upon evidence known to him to be false. The wife was served by publication and service by mail was made upon her in New Jersey, where, as the husband swore in the proceeding, her residence was. Upon obtaining the divorce he returned to this state and has remarried here. He married one Flint. In an action by the first wife for an absolute divorce on the ground of adultery, committed with the person Flint, Held, that as both parties to the California divorce were, in the view of the law, residents of this state, the service upon the wife did not confer jurisdiction and the decree of the California court was invalid in this state.
    2. Same-Record of foreign state not conclusive as to jurisdiction.
    The record in the California action was not conclusive upon the question of jurisdiction, and this court will inquire whether the husband’s residence and domicil in California was actual or only colorable.
    3. Same—Valid in another state, but shown here to be fraudulent not a bar to an action in this state.
    Although the California decree was valid there, it having been shown, in an action tried in this state between residents thereof, to he fraudulent and void, it is not a bar to the wife’s action here.
    Appeal from judgment in favor of plaintiff in an action for divorce.

      M. L. Stover (Matthew Hale, of counsel), for app’lt; Edward J. Maxwell, for resp’t.
   Learned, P. J.

This is an appeal from a judgment upon decision. The action was brought for divorce, and judgment was rendered in favor of plaintiff. The defendant appeals.

The parties were married December 10, 1873, in New Jersey. The defendant is now living and cohabiting in this state with another woman to whom he claims to have been lawfully married in the state of California on the 22d of September, 1888, after a divorce claimed to have been obtained by him against the present plaintiff in the said state, August 28, 1886.

Soon after the marriage of plaintiff and defendant and prior to January 1, 1880, they became residents of the state of New York; and they continued to be such residents until the present time, unless the departure of the defendant in July, 1885, from the state changed his residence. Up to that time they had treated each other as man and wife.

The learned justice who tried the case found as a fact that about September 1, 1885, defendant left the state of New York and went to California; that he did not go there for the purpose of establishing a residence and had no intention of establishing a residence there; that he went solely to effect an ostensible change of residence, so as to avail himself of the laws of that state in order to procure a divorce, intending to return to this state when he should have procured such divorce. That finding is sustained by defendant’s own testimony. He says he went in July to the state of Washington, thence to California; that he told his wife he would go into the cattle business at Custer on the Northern Pacific Railroad; that he had $200 capital; that this was insufficient ; that when he reached California he applied for employment but did not get it; that he invested his $200 in railroad fares; that he went to Honolulu to see the country ; went to Oregon; went to Alaska to see mines and engaged in no permanent business in California. He says he did not transfer his church connection.

On the 22d of April, 1886, this defendant commenced an action against the plaintiff in the superior court of San Francisco, California, for divorce on the ground of her desertion since February, 1882, and her extreme cruelty. He made an affidavit that she was not a resident of California, but at that time of New Jersey. On that an order for publication and for service on her by mail was made in that court, and on the 9th day of August, 1886, her default was entered in that court.

The complaint in that action averred that he had been for six months a resident of California; that in February, 1882, his wife wilfully deserted, and had since lived apart from him without any cause; that she had been guilty of extreme cruelty towards him, by her extravagance, bad temper, and her charging him with infidelity ; which acts had seriously injured his health.

After the default, the testimony of Munson was taken, and testimony by commission was also taken at Amsterdam, N. Y. And on the 28th day of August, 1886, a decree of divorce was granted in that superior court, dissolving the bonds of matrimony by reason of the desertion and extreme cruelty of the defendant therein, the present plaintiff.

Within a few weeks after obtaining the divorce, the defendant returned from California to Amsterdam. He went back to the same business in which he had been engaged, as employe of Birch, his former partner, taking forty-five per cent, of the net profit; the business having been during the interval, and still is conducted under the same firm name of Munson & Birch.

He became acquainted with Miss Susan Flint at Amsterdam in 1887, and married her in California, September 22,1888. He has continued to live in Amsterdam since his return in September, 1888, and cohabit with her as his wife.

The parties entered into a stipulation in regard to the California judgment, in which, among other things, it is admitted that the judgment was duly given, and was regular and valid under the laws of California. The defendant claims that under that stipulation it was incompetent for the plaintiff to give evidence tending to show the intent with which the defendant went to California, and the reason why plaintiff did not accompany him. The defendant urges that all evidence on those'points was excluded by the stipulation.

To understand the meaning of the stipulation we must notice that the pleadings show that the contest in the case was to be on the effect of the California decree as to the plaintiff. And the stipulation was intended to avoid unnecessary trouble. Thus the jurisdiction of the court over such actions was admitted; the commencement of the action, and the judgment therein. The record was to be produced by defendant. It was also stipulated that the matters alleged in the action were sufficient, if true, to authorize that court to grant the decree under the laws of that state. Here the expression, “ if true,’’ shows that the parties did not agree to admit the truth of the allegations of that complaint. Those allegations include the residence of Munson for six months in California; the desertion by the wife, the present plaintiff, and her extreme cruelty. Evidently those were not admitted to be true. Then comes the clause, that the judgment was duly given, etc. How the fair construction of this clause, in view of the issue between the parties and considering the whole stipulation, is that the proper legal course was taken, and that the judgment was regular according to California laws. It did not waive the question whether jurisdiction of the parties had been in fact acquired, or whether the judgment was fraudulently obtained.

In People v. Baker, 76 N. Y., 78, it is stated that it appeared by the statute offered in evidence that the proceedings in the Ohio action were regular and sufficient and the judgment valid and binding under the laws of that state. But although that fact appeared, the court held the judgment incompetent except to show intent. The stipulation in the present case showed nothing more than the statute did in the Baker case. The jurisdiction of the court over the parties remained assailable.

The learned justice who tried the case found as a fact that the defendant was not, when he commenced his action, or at any other time, a resident of California. The defendant’s own testimony establishes this unquestionably. It is hardly possible to read his own testimony and the letters which he wrote to his wife just before he went away and have any doubt on this point. Hothing which he did showed any intention of becoming a resident of that state. He says that he did not transfer his church membership. And judging from the testimony given by him in California we should think that he had not carried his church membership into that state.

The learned justice also finds that the charges of desertion and of cruel treatment made in defendant’s complaint in the California action were wholly untrue and without foundation. This finding is fully sustained by defendant’s own testimony and by his own letters. He charged her with desertion since February, 1882. His letter to her in August, 1882, directs her to go to Ogdensburgh, H. J., and stay with her parents. In October, 1882, he urges her to go to a physician in Hew York. She was suffering from some nervous trouble, and his letters in January and in February, 1883, direct her to go to Brandon, Vt, and tell her he will get her a boarding house and hopes she will soon be well. In April, 1884, he suggests again that she go to Ogdensburgh to live. In August, 1884, he writes that she cannot come where he is with his consent, nor have any support from him if she does, and hopes her father will keep her. He testifies that he visited her oftener than every month when she was away from home ill; he did not object to her going away, and that he furnished her money to go. This is in direct contradiction to the testimony which this defendant gave in the California action, where he testified that his wife did not go away with his consent

It is evident that his wife was for some time in a nervous condition ; that her absence from his house was with his approval and for the apparent purpose of benefiting her health. And while it is apparent that there was a lack of harmony between them, for which she may very possibly have been to blame in whole or in part, still the pretense of desertion is utterly false, if the defendant’s testimony and letters are to be believed.

The argument of the defendant in this case is that even if he were in fact a resident of New York and not of California, and even if he went to California with the intent of fraudulently procuring a divorce, and even if by his own false testimony he induced the court of California to hold him to be a resident of that state, and to hold that this plaintiff deserted him, and although this plaintiff never appeared in that action and never was served with process in California, and although she has always been a resident of New York, yet that the judgment in California is binding on her. We do not think such is the law of this state.

In Ruger v. Heckel, 85 N. Y., 483, the defendant and her former husband had been residents of this state. She had brought an action against her former husband, and, after personal service ‘on him, she had obtained a divorce. She then married Ruger, who knew these facts. He afterwards brought this action to have the former decree of divorce annulled. The court held that the action would not lie. The plaintiff was a stranger to the former action; and the parties to that former action were bound by it. Both had appeared therein.

So in Kinnier v. Kinnier, 45 N. Y., 535, where the question arose as to the validity of a divorce in Illinois; both of the parties to that divorce were in Illinois when the action was commenced, and the defendant appeared therein. And though it is stated that there was collusion, yet both parties were actually in Illinois, and both appeared in the action. These are cases where there had been an appearance by the defendant in the divorce action.

The case of Hunt v. Hunt, 72 N. Y, 230, was one very carefully considered, and, at page 241, the court say that a valid judgment in divorce may be rendered against a defendant not within the territorial jurisdiction during the progress of the suit, if that be the place of his citizenship and domicil, though he is not served personally and has not appeared; but the court say that there are numerous authorities to the effect that a judgment of another state against a resident of this state, who has never been a citizen of that, without personal service of process or voluntary appearance, is not a valid judgment, and may be inquired into by our courts; and on such facts appearing may be disregarded as without jurisdiction. That was the case of a service out of the state upon a defendant who was held to be domiciled within the state at the time of the service, and therefore amenable to the laws and process of the state where the action was commenced.

There is nothing in the case of Cheever v. Wilson, 76 U. S., 9 Wall., 108, contrary to this view. Because there was an answer put in by the defendant in the action for divorce and a cross petition. So that jurisdiction of the parties was had.

Further, in Hoffman v. Hoffman, 46 N. Y, 30, it was held that the record of the divorce action in another state was not conclusive as to jurisdiction. To the same effect is Kerr v. Kerr, 41 N. Y., 272. And in Hoffman v. Hoffman the court of this state did decide that the plaintiff in the Indiana divorce action was not a resident of that state, and that the judgment was a fraud, although that judgment purported to show that such plaintiff was such resident.

The early case of Borden v. Fitch, 15 Johns., 121, laid down the same doctrine. And it bears a noticeable resemblance to this present case, because there also the plaintiff, in the Vermont divorce action, charged his wife with willful desertion, which charge, the court says, was false and known to be so by that plaintiff.

In view of these decisions we think that the learned justice who tried the case had a right to consider whether the defendant was really a resident of California when be commenced the action or whether such pretended residence was only colorable; and we think his decision on that matter was correct. Cooley Const. Lim., m. p- 401.

Here the present case stands in marked contrast to that of Maynard v. Hill, 125 U. S., 190, strongly urged by the defendant. In that ease Maynard and. his wife were domiciled in Ohio. He went away and took up his residence in Oregon and continued to reside there till his death. , While residing there the legislature of the territory passed an act annulling his marriage. The question which arose was respecting the right of his divorced wife to certain land. The court held that a legislature, not prohibited, might pass an act granting a divorce; that the husband was a resident of Oregon and that the act was valid. - The court do not hold that such an act would be valid if neither party had been a resident.

It seems to us hardly necessary to quote at any length from the decisions in People v. Baker, 76 N. Y., 78 ; O'Dea v. O'Dea, 101 N. Y., 23; Cross v. Cross, 108 N. Y., 628 ; S. C., 13 N. Y. State Rep., 470. They seem to be conclusive to sustain the judgment below ; and in the last case it may be noticed that it is again asserted that it was competent in that case to disprove the recital in the Illinois decree, that the defendant was resident there when he obtained it. Even the elaborate dissenting opinion in the O'Dea case claims that the decree of divorce in another state, obtained without personal service, is binding only when the plaintiff is a bona fide resident of the state.

The doctrine of these cases is again affirmed in Jones v. Jones, 108 N. Y., 415; S. C., 13 N. Y. State Rep., 840, although in that case the appearance and answer of the defendant in the Texas suit was held to make the same binding on him.

In fact, the defendant practically admits that the decisions of the court of appeals above cited are fatal to his case unless they are overruled by the case of Maynard v. Hill or made ineffectual by the stipulation.

We have considered the question on the fact as found by the trial court, that defendant never actually changed his residence. In Williams v. Williams, 25 .N. Y. State Rep., 183, the husband and wife had been living apart for some two years owing to the husband’s unreasonable requirements. Then the husband left New York state; took up his residence in Minnesota, and there procured a judgment of divorce a vinculo. The wife brought this action for separation on the ground of abandonment. On the authority of the O'Dea case the Minnesota judgment was excluded and plaintiff’s action sustained. So that,it was held that the wife could maintain this action although the husband had taken up his residence in another state and had there procured a judgment of divorce a vinculo. The view probably was that the departure of the husband was an abandonment and gave a right of action which the wife might prosecute in this state, notwithstanding his change of residence. Jacobs on Domicil, § 224. It is riot necessary for us to apply that doctrine here. We need not consider what would be the rights of the wife if the husband should bona fide change his residence, and she should refuse to go with him, and if he should thereafter obtain a divorce in the state of his new residence by publication against her.

There remains another point to consider. Under the decisions in Van Voorhis v. Drintnall, 86 N. Y., 18, and Thorp v. Thorp, 90 N. Y, 602, the marriage in California between defendant and Susan Flint being valid, is valid here. Therefore the defendant says that he is not guilty of adultery in this state. The first case, however, was a question as to inheritance of property. In the second the defendant, being sued for divorce on the ground of .adultery, set up the alleged invalidity of his marriage with the plaintiff, on the ground that by a previous decree of divorce he was forbidden to marry, and that he married in Pennsylvania to avoid the prohibition.

Thus in neither of these cases were the rights of the wife involved, in respect to whom an invalid decree of divorce had been fraudulently obtained. It is plain that those cases are not considered by the court of appeals to disturb the doctrine we have laid down, since the O'Dea case and the Gross case are subsequent to those just cited.

We are of the opinion that the judgment should be affirmed, with costs.

Mayham, J.

I concur in the result reached in the opinion of my brother Learned in this case.

The jurisdiction of the court of the sister state of California may be properly inquired into in this action.

if that court, by the fraud of this defendant, assumed jurisdiction of his person when he was not a resident of that state, but was in fact a resident of New York, its proceedings were cor am nonjudice and void. And that fact may properly be proved in this action.

But if that court had jurisdiction, its determination would as to the courts of this state be final, and it would be in that case error for the courts of this state to inquire whether this plaintiff (the defendant in that action) had in fact deserted her husband, or done ;any other act charged in that action and constituting a ground for a divorce in that state.

But the evidence in this case establishes that this defendant at the time of obtaining his order of publication in California and of prosecuting his action and obtaining his decree in that state, was not a resident of that state, and that, therefore, the court of that .state had no jurisdiction to grant the order or entertain the action, ••and it acquired no jurisdiction of this plaintiff as defendant in that action, and that the judgment in this action should, therefore, be affirmed.

Landon, J., concurs.


author: Learned, P. J.

text:
    Martin Coffin, App’lt, v. William Lockhart et al, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Specific performance—Action when maintainable.
    A complaint alleged that plaintiff mortgaged premises to P. and after-wards sold them to defendants and that the latter as part of the consideration covenanted to pay the plaintiff’s bond and mortgage; that the bond and mortgage were due and defendants had not paid them. The plaintiff demanded specific performance by defendants of their covenant to pay or judgment for the sum due. P. was not a party. On demurrer, Held,, that the action could not be maintained.
    2. Same—-Remedy not a matter op right.
    The court in granting specific performance will exercise discretion and consider the circumstances. The effect of this transaction is that the land has become the primary fund and the plaintiff stands as a surety; it does-not appear that the land will not pay the debt. It is therefore no hardship that plaintiff should pay his bond and afterwards by subrogation enforce the mortgage against the land; and, in case that prove insufficient, collect the deficiency from the defendants.
    Appeal from judgment of special term, sustaining demurrer to complaint

      J. H. Bain, for app’lt; Charles B. Patterson, for resp'ts.
   Learned, P. J.

The complaint avers that the plaintiff, in 1880, executed his bond and mortgage to one Parsons, payable January 1, 1883 ; that in October, 1885, he sold the premises to defendants, who covenanted to pay the bond and mortgage as part consideration of the premises ; that they have not paid the same; that said bond and mortgage are payable. Parsons is not a party to the action. The plaintiff demands specific performance of the covenant to pay the bond and. mortgage or judgment against defendants for the amount; such amount, when collected, to be paid to the clerk of the court subject to the order of the court.

The defendant demurs: 1. Because the complaint does not state facts sufficient 2. Because Parsons is not made a party.

The special term sustained the demurrer, giving plaintiff leave to amend. The plaintiff appeals. The learned justice doubted whether Parsons was not a necessary party, but decided the demurrer on the insufficiency of the complaint.

The granting of a specific performance has always been held to be discretionary ; that is to say, the court will consider the special circumstances of the case in order to determine whether the plaintiff should have such relief, or should be remitted to his common law remedy. Day v. Hunt, 112 N. Y., 191; 20 N. Y. State Rep., 233. For that reason it is especially important to understand all the circumstances of any case cited by plaintiff to sustain his position.

There is an obiter remark of the chancellor in Warner v. Beardsley, 8 Wend., 199, which is often cited in subsequent cases. It was not necessary to the decision, and whether right or wrong it therefore decides nothing.

In Marsh v. Pike, 1 Sandf. Ch., 211, affirmed 10 Paige, 595, the mortgagor applied to the grantees to pay off the amount of the mortgage and they refused. He also applied to the mortgagee to permit a foreclosure in his name at the mortgagor’s expense and the mortgagee refused. The court granted a decree against the-grantees in favor of the plaintiff, the mortgagor, for the amount, of the mortgage, the amount to be paid to the mortgagee.

. The assistant vice chancellor had dismissed the bill against the-mortgagee, from which dismissal there was no appeal. But the remarks of the chancellor imply that the dismissal was improper according to his view stated in Warner v. Beardsley, ut supra. and in Gibbs v. Mennard, 6 Paige, at 260, and according to the dictum in King v. Baldwin, 2 Johns. Ch., at 561. That is these views of the chancellor and the dictum cited are to the effect that the surety may bring the principal debtor and the creditor into the court of equity to enforce the collection of the debt out of property primarily liable. So in Antrobus v. Davidson, 3 Merivale, 579 ; Ritenour v. Mathews, 42 Ind., 7; 3 Pomeroy’s Equity, 1417, note. That doctrine, however, does not aid the plaintiff in this case, because he has not brought the creditor into the .action.

He relies on Farnham v. Mallory, 3 Keyes, 527, as an authority that it is not necessary to make the creditor a party. But that was a different case. In that case the vendor of land incumbered by a mortgage had agreed with the vendee to pay and discharge the same. And the defendant had guaranteed that the grantor would do this. The court sustained an action on the guaranty by the grantee of the land to whom the guaranty had been given. In that ease the land had not become the primary fund. The vendor had been paid the full price on his agreement to discharge the mortgage. Ho question of equity was involved. It was a simple action at law on the contract to recover the amount.

It is settled in a transaction like the present that in equity the land becomes the primary fund, the grantee is treated as the principal and the mortgagor as the surety. Comstock v. Drohan, 71 N. Y., 9. On that ground and on special equities have the cases rested in which, as above stated, the mortgagor has been allowed to bring creditor and grantee into court to enforce the lien on the land for his own protection. On that ground the case of Woodruff v. Erie R. Co., 93 N. Y., 609, rested. The railroad was insolvent and the property was in the hands of a receiver and it was evidently proper that the court should by action or otherwise direct its own officer to do equity and perform the contract.

But it will readily be seen that it might sometimes be inequitable to compel the creditor to enforce his lien; as for instance, when the security was insufficient and when the creditor believed that the security would improve.

In the present case the plaintiff seems to have intended to bring a bill for specific performance to compel the defendant to pay certain money. It is certainly unusual to ask specific performance of a contract to pay money. The remedy in such contracts is at law. And if it be said by the plaintiff that the money is not to" be paid to him, and, therefore, an ordinary action on the covenant would not be proper, the answer is that if the plaintiff has suffered damages he may recover such damages; if not, the cause of action exists.

The case of Slauson v. Watkins, 86 N. Y., 597, seems to be decisive of this case. The plaintiff had executed her bond and mortgage on the real estate. She contracted to sell it to defendant, who was to assume the mortgage and pay the balance of the purchase price. And on the same day, at his request, she performed her part of the contract by conveying her part of the real estate to his wife, subject to the mortgage. The mortgagee began to foreclose. Pending the foreclosure the plaintiff commenced an action to compel the defendant to pay and the mortgagee to receive the money due on the mortgage. The complaint was dismissed and the dismissal was affirmed by the court of appeals.

The only difference between that case and this is that the land had been conveyed to the wife of the person who had agreed to pay the mortgage, which is plainly immaterial, as it was conveyed subject to the mortgage, and was, therefore, the primary fund, and secondly that a foreclosure was pending. Of course the pending of the foreclosure might be an additional reason for the dismissal of the complaint. But the court goes beyond that and states that no case is cited where a court of equity has interfered to compel the principal debtor to pay a debt before it has been ascertained that the fund primarily liable was insufficient. And this remark of the court may point out a distinction which will reconcile some apparently conflicting principles.

• In Pomeroy, as above quoted, it is said that the surety may sustain a quia timet suit in equity before payment. This is stated in Wooldridge v. Norris, L. R., 6 Equity, 410, on the authority of Lord Redesdale, who says: “A surety may file a bill to compel a debtor in a bond in which he has joined to pay the debt when due, whether the surety has been actually sued for it or not But in the present case the land has been made the primary fund, and the grantee may be called a surety to the land. Therefore, it is equitable that the debt be enforced first against the land before the purchaser is personally charged. Now the plaintiff’s action tends to reverse this equity, and to make the defendants pay the debt which should be paid primarily out of the land. It cannot be sustained on the doctrine of quia timet; because there is property specifically pledged for the debt, which may be sufficient, and to which at least resort should first be had. The plaintiff in this case owes the debt. He borrowed the money of the mortgagee, and though in equity he is treated, since the conveyance to the defendant, as surety, and his land as the primary fund, still there is no hardship in requiring him to pay his bond, and then by subrogation to enforce the mortgage against the land, and to-collect on foreclosure the deficiency from the defendant. The-land should be made to pay the debt if possible.

We are not to be understood to say that there are no cases in which a surety may bring a suit in equity against the principal debtor and the creditor to enforce a lien on property pledged for the debt; or in which the surety may bring an action quia timet against the principal. We think the present complaint cannot be sustained.

Judgment affirmed, with costs, with leave to amend complaint in twenty days on payment of costs.

Landon and Mayham, JJ., concur.


author: Mayham, J.

text:
    The People ex rel. The American Contracting & Dredging Company, Relator, v. Edward Wemple, Comptroller, Defendant.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Taxes—Method of assessing a tax upon a corporation.
    A domestic corporation incorporated under the manufacturing act had its principal office in New York city but did business mainly on the Isthmus of Panama. The comptroller in assessing a tax upon it based the same upon salaries and rent paid, money in bank and dividends declared, all within this state. Held, that the estimate was correct, and that as to this amount the corporation was “ doing business in this state,” and was subject to tax.
    2. Same—Determination of a public officer.
    The determination of a public officer expressly charged with the duty of deciding whether property within his jurisdiction is taxable will not be set aside unless it conclusively appears that his valuation was erroneous.
    3. Same—Public officer cannot waive irregularities.
    The comptroller, a public officer, does not and cannot waive, by making return to a writ of certiorari, irregularities resulting from the failure of the moving party to follow the statutory requirements as to practice.
    4. Same—When an assessment by the comptroller can be reviewed on certiorari.
    A corporation applied to the comptroller for a readjustment; he entertained the application and denied it. Held, that this took the case out of the operation of chap. 361, Laws of 1881, and of § 3133, Code Civ. Pro., and brought it within chap. 463, Laws of 1889, and that hence the matter could be reviewed on certiora/ri.

    This is a hearing upon a writ of certiorari on the application of the relator to review the determination of the comptroller made on its application for the revision and readjustment of accounts for taxes against the relator for the years 1887, 1888, 1889.
    The relator is a corporation of the state of New York organized under the manufacturing act of 1848, as amended by chap. 865 of Laws of 1875, was incorporated August 22, 1882, with a paid up capital of $2,000,000, divided into 20,000 shares of $100 each, and in and by the certificate of incorporation the corporators certify as follows:
    “And we do hereby certify that such corporation is formed for the purpose of carrying on some part of its business out of the state of New York, but that the operations of said corporation are to be conducted and carried on in and from the city, county and state of New York, which is to be the principal place of business of the said company.”
    During the three years for which the relator seeks to review the assessment by the comptroller, and the tax imposed on him, the company was largely engaged in dredging on the Panama Canal on the Isthmus of Panama, but during all that time kept an office in the city of New York, which is kept furnished and for which it paid rent and where officers and employes were kept in the service of the relator and were paid by it in 1887, $4,500 ; in 1888, $7,600; in 1889, $6,693.33. During the same time the relator made annual reports, as required by the laws of Hew York, to the comptroller, by which it appeared that in 1887 it declared and paid dividends on the capital, stock of forty-five per cent; in 1888 it declared and paid dividends on the capital stock of 224 per cent, and in 1889 it declared and paid dividends on the capital stock of seven per cent. The earnings and income from the relator’s business were from time to time deposited by relator in its bank in the city of Hew York and the average monthly balance kept on deposit in such bank for the year 1887 was $78,320.88, and the like average monthly balance so kept on deposit in Hew York bank for 1888 was $108,248.12, and for the year 1889, $12,917.79.
    Upon the franchise of the business of the relator based on dividend on capital stock, the comptroller imposed a tax of \ min for each one per cent dividend declared in each of the years 1887, 1888, 1889, amounting in the aggregate to the sum of $7,460.01, and on the 3d of September, 1890, served upon the relator the following notice:
    State of Hew York, Comptroller’s Office, l
    Corporation Tax Department, V
    Albany, September 3, 1890. )

      To Eugene Kelly, Treasurer of American Contracting & Dredging Co., 47 Exchange Place, N. Y.,

    Sir—Please take notice that the comptroller has settled an account against your company of $7,460.01 for tax on capital stock for the three years ending Hovember 1,1890. Unless such tax is paid within thirty days from the date of this notice, we shall draw oúr warrant for the same, pursuant to the provisions of law.
    Yours respectfully,
    Edward Wemple, Comptroller.
    On the 30th day of September, 1890, the relator paid under protest into the treasury of the state of Hew York the whole amount of tax specified in the foregoing notice, and took the treasurer’s receipt therefor, under § 17, of chap. 501 of Laws of 1885.
    On the 14th day of October, 1890, the relator served upon the comptroller notice of an application to be made by the relator to him for a revision and readjustment of the accounts of $7,460.01 of tax theretofore settled by the comptroller, under the provisions of chap. 463 of the Laws of 1889, and on the 28th day of Hovember, 1890, the comptroller made an order declining to make any revision or readjustment of the same.
    On the 9th day of January, 1891, upon the petition of the relator, a writ of certiorari was issued out of the supreme court directed to the comptroller, requiring him to certify his return in the usual form to such writ. To this writ the comptroller made and filed his return on the 17th day of January, 1891. The case shows that no notice of motion of the application for this writ was served on the comptroller before the same was granted, nor were any of the papers upon which the writ was allowed served on him before the granting of the writ.

      A. H. Joline, for relator; I. H. Maynard, for def’t.
   Mayham, J.

The defendant raises three preliminary objections to this writ, and insists that it should be quashed.

1st. Because the application for it was not made within thirty days after service upon the relator by the comptroller of notice of settlement of the tax in question.

2d. Because the paper upon which the motion for the writ was made and notice of motion for the writ were not served upon the comptroller eight days before the making of the motion.

3d. That the writ of certiorari should not have been issued in this case, because the determination sought to be reviewed could be adequately reviewed by an appeal to a board of state officers consisting of the secretary of state, attorney general and state treasurer under the provisions of § 1 of chap. 361 of Laws of 1881. The first point made by the defendant for the quashing of this writ because the application therefor was not made within thirty days after the notice of the assessment is under the provisions of § 17, chap. 501, of the Laws of 1885.

The part of that section to which our attention is directed upon this point reads as follows : “ Section 17. No writ of certiorari to review the determination and settlement of the comptroller as to the amount of capital used within the state by any corporation, joint stock company or association, and as to the tax and penalty to be paid thereon, shall be granted, except application therefor be made within thirty days after service upon such corporation, joint stock c'ompany or association by the comptroller of notice of such settlement.”

This statute is mandatory and if it affirmatively appears in the case that the notice by the comptroller of the settlement of this tax had been served on the relator more than thirty days before the application of the relator for this writ, and that difficulty is not waived, we think the objection fatal to these proceedings. The notice is set out in that case and bears date on the 3d of September, 1890. The only proof of the service of this notice is found in the petition and return, wherein it is alleged that it was served on the 3d of September, 1890. But as its allegation is positively made in the return it must be taken as establishing the time of the service of the notice. The return to the writ must be taken as conclusive and acted upon as true. The People ex rel. Sims v. The Board of Fire Commissioners, 73 N. Y., 437.

The relator in the brief of counsel on this argument states that upon receiving the notice of September 3, 1890, it applied to a justice of this court for a writ of certiorari to review this 'assessment and complied with the requirement of the statute by paying into the treasury the amount of tax and giving the undertaking required by § 17 of chap. 501 of Laws of 1885, and that such application was denied without prejudice under the authority of the People ex rel. Edison v. Wemple, 11 N. Y. Supp., 246 ; 33 N. Y. State Rep., 29.

The case discloses the payment of the tax into the treasury on the 20th of September, 189Ó, and the execution, approval and deposit in the office of the treasurer of the bond required by statute on that day, but it contains no reference to an application for a certiorari or an order denying it without prejudice at that time.

If these facts appeared in this case it might be said with much force that such application within the time answered this requirement of § 17 of chap. 501 of the Laws of 1885, and that the denial of the motion without prejudice on 'that application left that application to stand as a substantial compliance with that requirement in that action.

But the record as we find it shows no application for a writ of certiorari until the 9th of January, 1891, a period of 121 days from the service of notice by the comptroller of the settlement of this tax, and upon this record the court must proceed in the determination of the question raised by the defendant on this point and unless the comptroller can and has waived this objection by his return to the writ without objection we do not see how it can be sustained. The defendant raises another preliminary objection to this writ: that the papers upon which it was granted were not served on the comptroller eight days before the application thereof. The case is silent upon this subject but the stipulation of the attorneys of the respective parties does not embrace any proof of service of such papers and that stipulation purports to refer to all of the papers on file in the clerk’s office “ and the whole thereof.” We are, therefore, to assume that all the papers are before us, and as they contain no proof of service on the comptroller either of a notice of the application for this writ or of the papers upon which the application is founded, that no such service was made.

Section 17 of chap. 501 of the Laws of 1885, after providing for the time within which a writ of certiorari must be applied for, as we have quoted, proceeds as follows:

“ Nor shall any such writ be granted, except the papers upon which motion therefor is to be made, including notice of motion, shall have been served upon the comptroller at least eight days before such motion.” Unless the effect of the provision above quoted is qualified or modified by the provisions of §§ 19 and 20 of chapter 463 of the Laws of 1889, then the service of the notice and papers as prescribed by the provisions of § 17 above quoted is a prerequisite, which must be complied with to confer jurisdiction upon the judge to whom the application is made, and without such service or proof thereof before him would he wholly without jurisdiction to make the order for or grant the writ.

Upon both of the points raised by the defendant under the provisions of § 17 of chap. 501 of Laws of 1885, there has been a failure on the part of the relator, and unless such omission has been waived by the defendant in the steps subsequently taken by him or the effect of § 17 above quoted is so modified by chap. 463 of the Laws of 1889 as to render a strict compliance with its provisions unnecessary, this writ cannot be sustained. Did the defendant by making return to this writ waive the objection as to the time of service and the necessity of service of notice of papers eight days before the application for the same as required by § 17, chap. 501 of the Laws of 1885 ? The comptroller in this proceeding represents the people of the whole state, who are presumed to be interested in the question of taxation for state purposes.

He is a statutory officer, charged with certain statutory powers and duties, and is limited in the exercise of his official functions to the discharge of his delegated authority. He cannot like an individual waive any of the statutory requirements nor relieve the relator from any burden that the law casts upon it. It is by virtue of the statute that the relator is permitted to review the action of the comptroller by certiorari, and its proceedings in making that review are regulated by and must be conducted in accordance with these statutory provisions and not under or in virtue of any waiver express or implied by the comptroller, who is in like manner bound by the statute.

In the case of People ex rel. the Commissioner of Highways of Cohocton v. Dennis Connor et al., 46 Barb., 333, it was held that the commissioners of highways could not on appeal from their determination in laying out a highway waive the oath of the referees appointed by the county judge on such appeal, and the court in discussing that case use this language: “ Besides, the parties to these proceedings had no right to waive such irregularity as this omission of the referee to be sworn. The whole town had an interest in the proposed highway and had a right to require the proceedings should in all material respects conform to the requirements of the statute, which in effect declares that until the referees are sworn they are incompetent to do any other act as referees. It was an act necessary to give them jurisdiction to proceed in the discharge of their duties, the omission of which rendered all their acts coram nonjudice and void.”

' This case is cited with approbation in People ex rel. Stephens v. See, Town Clerk, 29 Hun, 216. In this case parties claiming to be aggrieved by the assessment of land damages by commissioners appointed by the county judge in laying out a highway took proceedings to have a re-assessment before a jury of an adjoining town, and for that purpose served a notice on the town clerk three days before the hearing, whereas the statute required a service on the town clerk ten days before the drawing of the jury and on the opposing party within three days after service on the town clerk.

The notice was in fact served on the commissioners of highways, who in that case were the opposing parties, but one day before the time fixed for drawing the jury. On the hearing before the jury the commissioners of highways appeared by counsel and were heard before the jury. The question of the sufficiency of these notices came before the court on certiorari to review the proceedings, and it was claimed that the commissioners by appearing had waived the statutory time of service.

But the court held that “ The notice is a prerequisite to the acquisition of jurisdiction over the subject-matter. Jurisdiction cannot be conferred by voluntary appearance of the commissioners of highways upon a readjustment when no proper notice has been served upon them.” It is quite apparent that the comptroller, in this case, had no power to waive the time within which the writ must be applied for or the service of notice and papers required by § 17 of the Law of 1885, and if this is so then the granting of the order for this writ, and allowance of the writ itself, was without jurisdiction and all the proceedings under it to review the act of the comptroller would be void.

The learned attorney-general raises another preliminary question which he insists is decisive of this certiorari under the provisions of chapter 361 of the Laws of 1881. By § 1 of this chapter the comptroller, if not satisfied with the valuation returned by the corporation or joint stock company to the comptroller, “is authorized and empowered to make a valuation thereof, and to settle the accounts upon the valuation so made by him for the tax penalties and interest due to the state thereon, and any association, corporation or joint stock company dissatisfied with the account so settled may, within ten days, appeal therefrom to a board consisting of the secretary of state, attorney-general and state treasurer, which board, on such appeal, shall affirm or correct the account so settled by the comptroller, and the decision of said board shall be final."

This act was amended by chapter 151 of the Laws of 1882, and again by chapter 501 of the Laws of 1885. The last amendment added to the act as amended by chapter 151 of Laws of 1882, nine sections, from eleven to nineteen, both inclusive, but the provisions of § 1 of chapter 361, above quoted, are nowhere repealed. By § 2122 of the Code of Civil Procedure, it is provided that “A writ of certiorari cannot be issued where the determination can be adequately reviewed by an appeal to a court or some other body or officer.” As we have seen, § 1 of chapter 361 of Laws of 1881, expressly provides a board of officers before whom the assessment and statement of tax against the corporations in this class of cases can be adequately reviewed and a final determination had thereon.

By chapter 463 of the Laws of 1889, two more sections were added to chapter 501 of the Laws of 1885, being § 19 and § 20. By § 19 it is provided, among other things, that a comptroller may, at any time, revise and readjust an assessment made by himself or any predecessor for taxes arising under this act or any act of which this is an amendment, and upon proof resettle the same.

Section 20 provides that the action of the comptroller upon any application for a settlement or revision may be reviewed upon the law and the facts upon certiorari by the supreme court at the instance of either party. The relator applied to the comptroller for a re-adjustment of this tax and the comptroller refused to change the assessment after entertaining the application. This we think brought the case within the provisions of chapter 463 of the Laws of 1889 and took the case out of the operation of section 1 of the Laws of 1881, chapter 361, and the consequent prohibition embraced in section 2122 of the Code ; and that a certiorari will lie, and the relator is not compelled to prosecute the review before the board of state officers under the provisions of chapter 361 o'f the Laws of 1881. As we have seen, sections 19 and 20 of the act of 1889 added to chapter 361 of the Laws of 1885 provide that the comptroller may re-adjust the tax at any time and that would authorize such re-adjustment after the expiration of the time limited by section 17 of the act of 1885. It would seem to follow therefore that the provisions of that section did not apply to the certiorari provided for in section 20 of the act of 1889. If this construction is correct, then the relators are regular and may review this assessment in this proceeding.

This brings us to the consideration of the question upon the merits. By the statute the comptroller is authorized and empowered to ascertain, fix and determine the amount of capital employed within the state and to settle an account for the taxes and penalties due the state thereon. This it seems to me he has done in this case by aggregating the average balance kept on deposit in the state; the amount of annual rent paid for premises occupied by the petitioner in this state and the annual amount of salaries paid to officers in the state. It is difficult to see why the capital so used and kept in this state is not employed here. It is true that the case discloses that the chief operations of the company were in Panama, but the deposit of money in a bank may be and ordinarily is employing it there and so without paying it out for salaaries and rent£ and in the absence of any explanation it would seem to follow that the comptroller was justified in holding that it was employed in this state.

The comptroller, in the determination of this question, was called upon to ascertain as a fact the amount of capital so employed, and his determination upon that subject when reviewed stands in some respects like the verdict of a jury, and should not be set aside except upon reasons that would justify the court in setting aside a verdict as against evidence. Code of Civ. Pro., § 2140.

The rule seems well settled upon authority that upon the review of assessments, the decision of a public officer, charged with the duty of determining the value of property for the purpose of assessment and taxation, will not be set aside, unless it clearly and conclusively appears that the valuation was erroneous. People v. Commissioners of Taxes, 99 N. Y., 154; People v. Davenport, 91 id., 574, 581; People v. Williams, 36 Hun, 366 ; People v. Corn'r of Taxes, 21 N. Y. State Rep., 358; People v. Com'rs of Taxes, 104 N. Y., 240; 5 N. Y. State Rep., 647. While most of these cases relate to the appraisement of value, yet there is no apparent reason why the same rule should not obtain where the officer is charged with the duty of determining whether or not property within his jurisdiction is or is not taxable, especially when he is charged with the duty of determining that question. On the whole we see no reason upon the merits for reversing the determination of the comptroller, and the same is therefore affirmed, with fifty dollars costs and disbursements.

Landon, J., concurs.


author: Landon, J.

text:
    Margaret Hill, Resp’t, v. Frank Froehlich et al., Ex’rs, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Witness—His answers upon a collateral matter conclusive.
    Where a party makes a hostile witness his own by inquiries as to a collateral matter, not brought out upon the direct examination, he is concluded by the answer, and cannot show that the witness has made statements out of court which conflict with his testimony in the action.
    Appeal from judgment entered upon the verdict of the jury at the Albany circuit and from order denying the motion of the defendants made upon the minutes for a new trial.

      E. J. Meegan, for app’lts; E. Countryman, for resp’t.
   Landon, J.

The question in issue was whether Mary Young, the mother of the plaintiff, during her last illness and shortly before her death gave to the plaintiff a savings bank book and the right to the deposits of which the book afforded the evidence. Mary Young was about eighty years of age and died leaving four children surviving her. She left an estate valued at about $4,700, in addition to about $1,900 represented by the savings bank book in question. About three and one-half years before her death she-executed her last will and testament, by which she gave a legacy of $400 to a granddaughter and the remainder to her four children, share and share alike. She had long resided with her son Joseph Young in Albany. The plaintiff resided within two hundred feet of Joseph. Mary Young being unwell, on Sunday before her death, went to the plaintiff’s house and remained there until her death on the following Friday. The plaintiff’s case rested mainly upon the testimony of Margaret Burlce, who testified that Mary Young while lying in bed in the plaintiff’s house, on Monday of the week of her death, called the plaintiff to her bedside and handed her the bank book, at the same time saying, “ Here, Margaret, take it and keep it; I always intended it should be yours,” and the plaintiff took the book and kept it Upon being recalled at a later stage of the case, Mrs. Burke further testified that in July, four months prior to her death, Mary Young told her that she had between eighteen and nineteen hundred dollars in the bank, and said: “ When I am dead I will give it to my daughter Margaret, because she is a good woman.” The plaintiff produced the bank book and testified that she had had possession of it since the Monday previous to Mrs. Young’s death. This testimony, if true, would justify the verdict. Penfield v. Thayer, 2 E. D. Smith, 306. We do not think it was necessary in order to complete the delivery for the donor to give the donee a check or brder the bank for the amount due.

But the testimony on the part of the defendants tended strongly to discredit the case made by the plaintiff, and we shall set it forth in some detail, in order to show the more clearly the probability that the verdict was influenced by the incompetent testimony which we shall afterwards consider.

The two defendants and their counsel testified that at the time the inventory of the estate of the testatrix was taken, the plaintiff stated that she had the bank book, and said that her mother gave it to her on Monday before her death, but that she did not get it until Thursday. Joseph Young, the son of testatrix, testified that the plaintiff also said on the same occasion that she went over to his, Joseph’s, house on Thursday and got the book. Margaret Young, a daughter-in-law of the testatrix, testified that while visiting her on Thursday before her death, the plaintiff said to her mother, “ Mother, where have you got your bank book? ” and the testatrix replied, “You go and look for it and you will find it.” She also testified that shortly after Mary Young’s death, the witness and the plaintiff went to Joseph Young’s house and the plaintiff then said: “ Now we are here we will look for the bank book,” and after looking in her trunk and other places the plaintiff said: “ I wonder where mother has her bank book, if she -haint left it down to Mrs. Snyder’s.” Mrs. Maas also testified that on the Thursday before Mary Young’s death, she heard the plaintiff say to her mother, “ Mother, where have you got your bank book ; I looked for it and could not find it.” To which her mother replied, “ You don’t need to look for it; you can’t find it.” Mrs. Mourion testified that during Mary Young’s illness the witness asked the plaintiff why she did not ask her mother about the bank book, to which plaintiff replied: “I just asked her; she says what do you want of the bank book, you can’t find it, you can’t have it.” The plaintiff contradicted .all these witnesses except Margaret Young as to her declarations at Josephus house after Mary Young’s death.

In this precarious condition of the plaintiff’s case upon the merits, it is obvious that slight circumstances might influence the verdict. The defendant had examined Joseph Young to the effect already indicated, and the plaintiff by his cross-examination sought to show that immediately before his mother left his house and went to the plaintiff’s his wife had ill treated her. The witness testified on cross-examination that, “ My wife did not on any occasion chase mother with a knife just prior to her death or at any other time. I never told Anna Harper that in my kitchen.” The plaintiff then called Anna Harper, and defendants’ objections that the matter was collateral and the plaintiff was bound by his answer being overruled, she testified in response to plaintiff’s questions: “ Yes, sir; he was in the kitchen and his wife was there and he said she had run after the old lady, and if he didn’t shut up his mouth she would have went for him, and he run out the back gate.”

We think Anna Harper’s testimony was inadmissible. Plaintiff’s counsel, by his examination, made Joseph Young his own witness upon the new subject of his mother’s relations with his wife. If, upon his direct examination, Joseph Young had given the testimony in respect to the relations of his wife and mother, then it would have been proper upon the cross-examination to ask him as to his contradictory declarations out of court, and if he denied or said he did not remember, then to them by the witness who heard them. But as he did not testify- respecting such relations upon his direct examination, the plaintiff, by asking him about them on cross-exámination, made his testimony upon that subject a part of her own case, and although she could contradict him by testimony that the fact was otherwise, she could not do it by testimony that Joseph had said out of court that the fact was otherwise. The plaintiff might prove the fact itself, but not the witnesses' unsworn narrative of the fact. It is a general rule that a witness may be impeached by proving that his statements out of court contradict his testimony. But such contradiction must be of his testimony in chief or of such parts of his testimony on cross-examination as are pertinent to his testimony in chief. Otherwise the testimony of the witness as to the subjects for which he was vouched for by the party calling him is not discredited in fact, but the jury are led to suppose it is, and are misled by the hearsay evidence which is given under the guise of the impeachment. People v. Cox, 21 Hun, 47; aff’d, 83 N. Y, 610.

The judgment should be reversed, new trial granted, costs to abide the event.

Learned, P. J., and Mayham, J., concur.


text:
    Peter Blake, Resp’t, v. John J. Harrigan et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Reference—Theory upon which it is ordered.
    A compulsory reference is ordered where the legal questions involved are simple, a long account is to be examined, and when the facts touching the obligations of the parties are found and the items of the account are established the proper judgment will be obvious.
    2. Same—Not proper where the legal questions are not simple.
    Where, in an action to foreclose a mechanic’s lien, it appeared that the main question was whether the builder had in fact performed his contract and where the alleged accounts were in great part claims made by either side for damages, Held, that a reference was improper and that the matter should be tried by a jury.
    Appeal from an order of the special term referring the issues in an action to foreclose two mechanics’ liens to a referee to hear and determine.

      E. J. Meegan, for app’lts; Mead & Hatt, for resp't.
   Landon, J.

The theory of a compulsory reference is, that the legal questions involved are simple, that a long account needs to be examined, and that when the facts touching the obligations of the parties are found, and the items of the account established, the proper judgment will be obvious. Section 1013, Code Civil Procedure, accords with this theory. It-provides for a compulsory reference “ where the trial will require the examination of a long account, on either side, and will not require the decision of difficult questions of law.” The same rule applies to equitable as to legal actions. Thayer v. McNaughton, 117 N. Y., 111; 26 N. Y. State Rep., 843. It is not enough that the case may, by possibility, involve the examination of a long account. Id. Items of damage which involve no accounting do not justify such a reference. Morrison v. Van Benthuysen, 108 N. Y., 675; 3 N. Y. State Rep., 687. The accounts to be examined must be the immediate object of the action, or of the defense, and not the incidental or collateral object. Camp v. Ingersoll, 86 N. Y., 483; Kain v. Delano, 11 Abb., N. S., 29.

Here the plaintiff seeks to foreclose two mechanics’ liens. He had a contract with the defendants wherein he agreed to erect within a fixed time for the price of $10,175, seven buildings according to plans and specifications. After the time had expired, and before the buildings were completed, the defendants discharged the plaintiff and forbade him to proceed any further, and they finished the buildings themselves.

The plaintiff alleges that he was without fault, and the defendants allege a justification of his discharge and counterclaim for damages for bad work and materials, for delay, for a substantial departure from the plans and specifications, and for their expense in completing the buildings. One of the liens filed is for $1,175, $1,000 of which the plaintiff alleges is a payment due him upon the certificate of the architect, given pursuant to the contract. This is put in issue by the answer. The other lien filed is for the entire contract price, as upon a quantum meruit, less certain credits, and for $766.14 extra work. It is plain that the main question involved in this case is, whether the plaintiff kept within the terms of his contract, or whether he was guilty of a breach of it. If the plaintiff kept within his contract, the counterclaims, which depend upon his breach of it, must fail. If the plaintiff substantially departed from the contract without the consent of the defendants it is difficult to see how he can recover at all, unless it be for the $1,000 included in the architect’s certificate. The greater part of the claims which the parties put in issue are not accounts in the ordinary acceptation of the term, but damages which each party claims to recover against the other because of an alleged breach of the agreement. The accounting, if any, will be incidental to the main issues. The defendants are entitled to have the main issues tried by the court. The court, having determined them, can then send the accounting to a referee, if any should appear to be necessary. Code Civ. Pro., § 1013.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Learned, P. J., and Mayham, J., concur.


author: Bartlett, J. Dykman, J.

text:
    Albert Schorning, App’lt, v. The Knickerbocker Ice Co. Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Master and servant—Negligence.
    Plaintiff, who was employed by defendant, was injured by reason of the breaking of a slat of a ladder he was climbing which caused him to fall upon the ice beneath. In an action for such injuries he did not show that there was any defect which was discoverable by inspection or known to defendant. He testified that it would not have broken if the upper part had been properly nailed, hut it appeared that it split lengthwise. Held, that there was no evidence to show that defendant was negligent, and that the complaint should have been dismissed.
    Appeal from order setting aside verdict and granting a new trial.
    Action to recover for personal injuries alleged to have been caused by defendant’s negligence.
   The following is the opinion of the trial judge:

Bartlett, J.

I have carefully read over the stenographer’s minutes of the testimony given on the trial of this action, and a review of the evidence convinces me that there was not sufficient proof of negligence to take the case to the jury, and the motion to dismiss the complaint at the close of the plaintiff’s case should have been granted.

The plaintiff was an employe of the defendant, engaged, at the time of the accident, in storing ice in one of the defendant’s ice houses at Rockland lake. He was descending a ladder consisting of wooden slats fastened to upright tenders on the inner side of the ice house, when a slat that he was grasping with his hand gave way, in consequence of which he fell a considerable number of feet to the ice below, and was quite badly hurt. The slat split lengthwise and the portion which broke off went down on the plaintiff. He does not remember to have examined it subsequently, however, nor was it produced upon the trial, and we are utterly without information as to what was the defect, if any, in the slat which occasioned the accident.

It is true that the plaintiff was asked if the upper part of that slat had been properly nailed could it have broken off, and in the absence of objection he answered, “Ho, sir,” and this was testifying only to an inference and not to a fact, and subsequently the plaintiff declared that the wood did not draw out, “ the wood split off what I had in my hands.” A statement inconsistent with his inference that improper nailing caused it to give way.

So that the evidence does not really reveal or indicate what the defect was which led to the injury, if in fact there was any defect for which the defendant could be held responsible.

The obligation of the defendant to the plaintiff with reference to the ladder in question was two-fold. First, to furnish a ladder which in its original construction should be safe for the servants to use, and, secondly, to use reasonable care and diligence to keep it safe. Ho question arises here as to the original construction of the ladder or series of steps formed of slats from which the plaintiff fell. He had often been up the ladder before and there is no evidence to indicate that it was not perfectly safe when first built.

The defendant’s negligence, if any, must therefore be predicated upon the omission to maintain a ladder in a safe condition. But the plaintiff did not show that there was any defect in the slat that broke, or in its fastening, which would have been revealed upon inspection, or whether the defendant ever caused any inspection to be made or not, or that the defendant was ever notified of the existence of any defect.

He himself, though frequently using the ladder, had not noticed any. The mere happening of an accident will not in all cases warrant a recovery by one receiving an injury ; there must be reasonable evidence of negligence.” See Breen v. New York Central Railroad, 109 N. Y., 297; 14 N. Y. State Rep., 285.

It seems to me that the surrounding circumstances in the present case do not add enough to the single fact of the injury to warrant the inference that the defendant was negligent in failing to exercise reasonable care to keep the ladder in safe condition for the use of its employes.

Taking this view of the proofs after reconsidering it, as I have stated, I deem it my duty to order a new trial Motion to set aside the verdict and for a new trial granted, with costs to abide the event.

C. P. Hoffman, for app’lt; Michael M. Forrest, for resp’t.

Dykman, J.

The order appealed from should be affirmed on the opinion of the trial judge.

Barnard, P. J., and Pratt, J., concur.


author: Coffin, S. Pratt, J.

text:
    In the Matter of the Estate of Jacob L. Ryder, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Surrogate’s court—Jurisdiction—Claims -by executor.
    A surrogate has jurisdiction to hear and determine a claim presented by the executor for personal services rendered to the testator.
    2. Contract—Promise to pay for services rendered by member of FAMILY.
    The executrix, who was the decedent’s married daughter, rendered personal services for him in his last illness, for which he promised to compensate her. He was afflicted with softening of the brain, and at times his mind would wander, but his mental condition was variable, and he correctly stated to his nurse the contents of his will. Held, that he had sufficient intelligence to make the promise, and that the executrix was entitled to recover compensation, although such services might have been performed if there had been no promise of payment.
    Appeal from decree of surrogate, awarding to claimant $1,000 for services rendered to decedent.
    The testator died at his home in Mount Kisco on the 3d of August, 1888, leaving him surviving his widow Hester M. Ryder, and his daughter by a former wife, Sarah E. Hall, and the claimant, who is a daughter by his last wife. Mrs. Hall has been for many years residing away from home with her husband. The testator owned a house and lot in which' he and his wife with the youngest daughter resided alone together, until the latter was married to Mr. Dromgoole, in or about the year 1881, when he also became a member of the family. Ho special agreement with him is shown, but while the claimant’and her husband continued to live in testator’s house Mr. Dromgoole and Mr. Ryder both contributed in furnishing supplies for the family. About February, 1887, the testator became so ill from softening of the brain as to require considerable care. As the disease progressed more and more attendance and services were required until, toward its latter stage, they were almost unremitting in their character. Attendant upon and as a consequence of the disease he lost control over his organs of evacuation, and a large part of the time was devoted by Mrs. Dromgoole to the cleansing of his person, his linen and other clothing, bedding, and the carpet of his room. He required watching lest he should wander away, and much of the latter part of the period had to be confined in his room. The most of these necessary offices were rendered by Mrs. Dromgoole, as it was difficult to keep a servant on account of the fetid condition of the atmosphere of the house.
    By his will, made prior to his illness, and in which his wife and Mrs. Dromgoole were appointed executrices, he divided his property equally between his wife and two daughters.
    Mrs. Dromgoole presented a claim for these services in October last amounting to §2,160, but she had previously presented one for the same services, amounting to only $1,080.
   The following is the opinion of the surrogate:

Coffin, S.

Undoubtedly the general rule is that, as between members of the same family, neither party can recover for services rendered, in the absence of an expless agreement or promise to pay. This rule is founded upon the idea of reciprocity between them, and the fact that the value or benefits received by one are greater than those received by the other will make no difference. They must, however, be mutual. To illustrate: Suppose this claimant had sought to recover for services rendered before the testator became ill, she would have been effectively met by the rule in question; but when his illness became so serious as to deprive him of the power, in any manner, of reciprocating the care and kindness bestowed, and he became a grievous burthen, one would suppose the normal relation to have largely ceased, and, while the law of nature demanded that he should be properly nursed and cared for by his child, yet that those services should receive some compensation from his estate, if he left any, as against those entitled to share it who contributed nothing to the disagreeable work. The fact that Mrs. Hall had a family of her own, and lived at a distance, was a sufficient reason why she could not share in the nursing, etc., which naturally fell upon the claimant, who was an immediate member of the family; but as she could not contribute her personal services, it would seem but equitable that she should furnish an equivalent out of her portion of the estate. Our statute makes it the duty of the children of sufficient ability of any poor person who is so impotent or decrepit as to be unable by work to maintain himself, at their own charge to maintain him. Why, then, in a case of this kind should they not equally share, in some form, the burthen his illness and the circumstances cast upon one? And it may be remarked in this connection that in the many cases cited by the learned counsel, as well as numerous others examined, none presents the precise state of facts under consideration here. In the leading case of Williams v. Hutchinson, 3 N. Y, 312, the claim was made by a stepson for services. So of Hill v. Hanford, 11 Hun, 536. In Wotherspoon v. Wotherspoon, 17 J. & S., 152, there appeared to be only one son, and the claim related to the board oí the father. Maltby v. Harwood, 12 Barb., 473, related to the case of a supposed apprentice, whose claim was for wages. In Bowen v. Bowen, 2 Bradf., 336, a claim for wages was presented against the estate of his deceased brother. The case of Keller v. Stuck, 4 Redf., 294, approaches, in its facts, more nearly to this than any that has been brought to my notice. An administratrix of a deceased sister, and the only next of kin, except a nephew and niece, sought to prove a claim for services in nursing the intestate in her last illness. It did not appear what the nature and extent of the" services were, and it was rejected on the strength of the decision of Williams v. Hutchinson.

In certain cases where it is impossible, from the circumstances, to imply a contract between the parties, the law will imply one, as if, in the absence of a husband, a neighbor incur an expense in burying his deceased wife in a manner suitable to the husband’s condition in life, though without his knowledge, the law will imply a promise to reimburse the person who incurred the expense. Jenkins v. Tucker, 1 H. Bl., 90. So one might suppose that if a person were so entirely insane as to preclude the possibility of his making a contract, and were to be kept, managed, cared for and controlled by another, a contract might be implied so that the value of the services rendered might be recovered; but the answer to that would probably be that a committee might have been appointed who would have been competent to contract for him.

The difficulty here, however, is that from the relation of the parties, as determined by most of the cases cited, no contract can be implied. There must be either an express agreement or a promise to pay or reward for the services rendered, no matter however meritorious or equitable the claim may be.

This brings us to the question as to whether there' was any valid promise of reward made by him to Mrs. Dromgoole for her services. There is no doubt, from the evidence, that he made such promise, but counsel for contestant claims that he lacked mental capacity sufficient to render such promise of any binding force.

The testimony on the subject is very meager in view of the importance of it. There is an abundance on the subject of his physical weakness, but very little in the way of detailed facts and conversations tending to furnish a key to his mental condition. It was, doubtless, somewhat variable. At times he talked of going home, probably intending to indicate the home of his youth. This, accompanied by an attempt to get away, would lead to the belief in some intellectual aberration at the moment. Again, following a cleansing of his person by the claimant, he would declare his intention to compensate her for the trouble he gave her. This showed a mind capable of being impressed by current facts and competent to apprehend their relations. He also told Hunter, his nurse, that he had made his will, and correctly stated what disposition he had made of his property. Hunter conversed much with him, but it is to be regretted that we have no details of such conversations. Still the evidence, scant as it may be, is deemed enough to warrant the conclusion that he had sufficient intellect to make the promises he did.

It remains, therefore, to fix a reasonable compensation for the services. It is apparent that there was a progressive increase of them as required and rendered, and for them a compensation cannot be expected equivalent to that charged by skilled, trained nurses. It is believed that $1,000, being very near the amount of the bill first rendered, will be a fair compensation. As this amount will be deducted from the whole amount of the estate, each of the three who owed the natural duty will have equally contributed her share.

Decree accordingly.

Fromme Bros., for app’lt; Close & Robertson, for resp’t.

Pratt, J.

The merits of the decree appealed from are sufficiently discussed in the opinion of the surrogate. From that opinion it appears that the proofs were sufficient to sustain the findings, and that the latter justify the conclusions of law deduced therefrom. But it is claimed by the appellant that the surrogate had no jurisdiction to determine the issue at the time of the trial. This point is not well taken. Under the provisions of the 2d Revised Statutes, 88, § 33, it was frequently held that a surrogate had jurisdiction to hear and determine any and all claims in which the executor was interested. Shakespeare v. Markham, 72 N. Y., 400; Kyle v. Kyle, 67 id., 408.

Section 2739 of the Code of Civil Procedure is a codification of the former statutes, and no change of the practice seems to have been intended.

The objection that such a claim could only be heard after an accounting was not valid, as that question was not raised by the answer to the petition. The answer only put in issue the question whether the services were performed under a contract, and their value. It must be taken as conceded, therefore, that the estate was ample for the payment of all the debts.

The fact that the services might have been rendered even although there had been no promise of payment does not prevent the petitioner from claiming compensation.

The other points are sufficiently answered in the opinion of the surrogate.

Decree affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.