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

text:
    WILLIAM BEDELL, Respondent, v. DAVID T. KENNEDY, Appellant.

      Party-wall — when a covenant to pay therefor rum with the land — when a party taking subject to a covenant cannot dispute the liability of his grantor — when the parties are not entitled to a hearing before the appraisers.

    Boggs, the owner of a lot on the south side of a street, being about to erect a house thereon, entered into an agreement, which was duly recorded, with one Lilienthal, the owner of anad 'oining lot, by which'it was agreed that the easterly wall should be built as a party-wall, the description, dimensions and extent of the said wall being given therein. The agreement then provided: “ The moiety of expenses for said wall to be paid by the party of the second part, his heirs or assigns, whenever he or they begin to take use or benefit of the same. And the said parties hereto do hereby mutually covenant and agree, for and with themselves and their respective heirs and assigns, that if it shall become necessary to repair or rebuild the whole or any portion of the ■ said party-wall, the expense of such repairing or rebuilding shall be borne equally by the parties hereto, their respective heirs and assigns, and that whenever the said party-wall, or any portion thereof, shall be rebuilt, it shall be erected on the same spot where it now stands, and of the same size and of the same or similar materials; it is further mutually understood and agreed by and between the parties hereto, that this agreement shall, be perpetual, and at all times be construed into a covenant running with the land, and that no part of the fee of the soil herein described, and upon which said party-wall is inclosed, shall be transferred or conveyed in or by these presents.”
    Lilienthal conveyed his lot to one Mix, who conveyed it to Lilienthal’s wife, who joined with her husband in conveying it to Oppenheimer and Metzger. None of these deeds referred to the said agreement or the obligations thereby created. In the next conveyance, which was to Orawford, the agreement was referred to, and the deed was made subject to it. Crawford conveyed to Pupke by a deed which declared that it was made subject to the covenants and conditions contained in the agreement, and that the grantee agreed, " as a further consideration for this conveyance, to perform all the obligations of the said party-wall agreement which, in any manner, are binding upon the said Margaret Crawford, one of the parties hereto, of the first part.” Pupke conveyed the premises to the defendant by a deed containing similar provisions. The defendant having erected a building upon his lot and used the party-wall, Boggs assigned his claim for compensation for one-half of the cost of erecting the same to the plaintiff, who brought this action to recover the same.

      Held, that, as the original covenants relative to the party-wall were duly recorded, and all subsequent parties had notice thereof, and the defendant’s title was made subject thereto, he was equitably estopped from denying the liability of his grantors under the said covenants.

      •That he was estopped from denying that the value of the half of the wall had so effected the consideration of the sale as to shift the burden of the covenant upon the shoulders of the subsequent grantees. (Per Davis, P. J.)
    That the covenants ran with the land, and the defendants were bound thereby.
    (Per Brady, J., Daniels, J., dissenting.)
    'That the plaintiff was entitled to recover. (Daniels, J., dissenting.)
    Where, from the terms of an agreement providing for a party-wall and the appraisal of the amount to be paid by a party using it, it appears that the appraisers are to fix and determine the value of the wall by their own inspection and examination, a hearing of the parties before them is not a necessary part of the proceedings.

      Wiberly v. Matthews (91 N. Y., 648), followed.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an oider denying a motion for a new trial.
    The facts in this case are fully set forth in the following dissenting opinion of Daniels, J.
    Davis P. J., and Beadt, J., dissent, as appears from their opinions, from so much of the opinion of Mr. Justice Daniels as holds that the plaintiff could not enforce the agreements contained in the deeds under which the defendants claimed.

      E. H. Moeran, for the appellant.

      Knowles Brothers, for the respondent.
   Daniels, J.

(dissenting):

The verdict was recovered for one-half the appraised value of a party-wall built equally over the line dividing the two lots of ground now owned by the defendant and the assignor of the plaintiff. The lots are on the southerly side of Sixtieth street, in the city of New York, and in May, 1871, were owned by William Boggs and Christian H. Lilienthal. The party-wall was erected by William Boggs, who continued to own his lot until the adjoining lot was acquired by the defendant, who erected a building upon it, ■making use of the party-wall in doing so. William Boggs thereupon .assigned his claim for compensation for one-half the party-wall to the plaintiff, who brought this action upon the agreement made by the adjoining owners concerning it. By this agreement it was covenanted that when the wall should be used by the party building upon the lot now owned by the defendant, its value should be appraised and determined by two practical masons, one cbosen by each of the parties to the agreement, and they, if necessary, to chose another whose decision should be final.

The evidence sufficiently tended to establish the fact that each of the parties had selected a mason to make this appraisement, and that they met together after having observed and inspected the wall, and agreed upon the sum of $.1,290 as the value of the wall. The evidence also tended to show that information of this agreement had been communicated to each of the parties, and that the defendant claimed that the appraisement was too high and offered to pay the sum of $500 as the'value of the half of the wall built, upon his lot. This offer was verbally accepted, provided payment should be made by a certain day. It was not made, and the plaintiff, by the verdict of the jury, recovered one-half this appraised value, together with the interest which had accrued upon it. Upon this part, of the case the verdict of the jury was warranted by the evidence, for it was not contemplated that the parties should be secured an opportunity to be heard before the appraisers, but that the appraisers themselves,, from their own inspection and examination, should fix and determine the. value of the wall. And where that may be the nature of the agreement, a hearing of the parties-before the appraisers is not a necessary step in the course of the proceedings. (Wiberly v. Matthews, 91 N. Y., 648.)

But the appraisement which was to be, and has been found to have been, in fact, made, extended no farther than a determination of the value of the wall. It in no way included the liability of the defendant to pay for one-half of it, under the terms of the agreement, nor the right of the plaintiff, or his assignor, to maintain an action for the recovery of that amount, and accordingly the appraisement left those points in the controversy entirely unaffected. At the close of the plaintiff’s case an application was made to dismiss the complaint, and one of the grounds assigned in support of it was-that the covenant to pay for the party-wall, contained in the agreement, did not run with the land, and as the defendant was not a party to it, he was not bound by it, and upon the disposition of that point this appeal is now necessarily made to depend. By this agreement, after the recitals that the parties to it weie the owners -of these adjoining lots, and that William Boggs, the party of the first part, was about to erect a building on his lot, it was agreed that the easterly wall should be built as a party-wall, and its description, dimensions and extent were then provided for in the agreement. The agreement then proceeded to declare and provide that: “ The moiety of expenses for said wall to be paid by the party of the second part, his heirs or assigns, whenever he or they begin to take use or benefit of the same. And the said parties hereto do hereby mutually covenant and agree, for and with themselves and their respective heirs and assigns, that if it shall become necessary to repair or rebuild the whole or any portion of the said party-wall, the expense of such repairing or rebuilding shall be borne equally by the parties hereto, their respective heirs and assigns. And that, whenever the said party-wall, or any portion thereof, shall be rebuilt it shall be erected on the same spot where it now stands, and of the same size and of the same or similar materials. It is further mutually understood and agreed, by and between the parties hereto, that this agreement shall be perpetual, and at all times be construed into a covenant running with the land, and that no part of the fee of the soil herein described, and upon which said party-wall is inclosed, shall be transferred or conveyed in or by these presents.”

Besides the covenant that the value of the wall should be borne equally between the respective parties to the agreement, it was covenanted that one-half the expense of the wall should be paid by the party of the second part, his heirs or assigns, whenever he or they began to take the use or benefit of the wall. And that the agreement which was made between them, including these and the other provisions, should be perpetual and construed into a covenant running with the land. But as it was also covenanted that no part of the fee of the soil described in it, and upon which the wall was to be erected, should be transferred or conveyed in or by the agreement, there was no interest in the soil conveyed by it to which this agreement, for the payment of one-half the expense of the wall by the heirs or assigns of the second party, could become an incident. A covenant running with the land is incidental to the land itself, which may be made the principal subject of the conveyance. And where no land or interest in it is conveyed by means of the instrument, the covenant for payments contained in it will be personal, and not obligatory, upon the parties deriving title through either of the parties to the covenant. This point was considered under an agreement containing a similar covenant to the one in this action, for payment by the heirs or assigns of the party to the agreement, who should use the party-wall, and it was held that no obligation was created by such a covenant binding the heirs or assigns of the party to pay one-half of the expenses of the party-wall. (Cole v. Hughes, 54 N. Y., 444.)

And upon a further consideration of the same point, in Scott v. McMillan (76 N. Y., 141), the same decision was in effect repeated. And this principle seems to be in harmony with the rule which was followed in Harsha v. Reid (45 N. Y., 415, 418, 119). The rule upon this subject, as it has been stated in general terms, is “ that to make a covenant run with the land there must he a subsisting privity of estate between the covenanting parties ” (1 Kent [7th ed.], 526), and “ a covenant affecting real property, made with a covenantee who possesses a transferable interest therein, is annexed to the estate, and is transferable at law, passing with the interest in the reality to which it is annexed.” “ If such covenants be made by the owner of land, who conveys his entire interest to the covenantee, being annexed to the estate, the assignee of that estate may bring his action on the covenants in his own name, but the assignee must take the estate which the covenantee has in the land, and no other.” (1 Parsons on Conts. [6th ed.], 231.]

In the present case, as no part of the fee of the soil was designed to be, or was, transferred by either of the parties to the agreement to the other, no interest in the land was in any form conveyed to which the covenant for the payment of one-half the party-wall could be annexed or become an incident, and for that reason the covenants in the agreement, although so declared to be intended, were not covenants running with the land. Upon this subject the observation was cited with approval in Cole v. Hughes (supra), that “ the knowledge by an assignee of an estate that his assignor had assumed to bind others than the law authorizes him to affect by his contracts, had attempted to create a real burden upon property which is inconsistent with the nature of that property, and unknown to the principles of the law, cannot bind such assignee by affecting his conscience.” This agreement, therefore, although it was recorded, and the defendant, as well as those through whom he derived his title, were chargeable with notice of its existence, imposed no obligation upon him, on which an action could be maintained for the recovery of one-half the value of the wall. But the party liable for that value must be the person with whom the agreement was made, and who at that time covenanted to pay.

In the transmission of his title no attempt was made by his deed to impose the obligation of performing this part of the agreement upon his grantee. He conveyed it to William P. Mix, and Mix conveyed it to Susanna P. Lilienthal, and she with her husband •conveyed to Edward Oppenheimer and Isaac Metzger, without making the slightest reference or allusion, in either of the conveyances to this agreement, or the obligation stated in it, intended to be imposed on the heirs or assigns of the owner of this lot, to pay the value of one-half of the wall. In the next conveyance which was made to Margaret Crawford, the agreement was referred to, and the deed was made subject to the agreement. She after-wards conveyed to Helene Pupke, and declared her deed to be subject to the covenants and conditions contained in the party-wall agreement, and that the party of the second part agreed, “ as a further consideration for this conveyance, to perform all the obligations of the said party-wall agreement, which in any manner are binding upon the said Margaret Crawford, one of the parties hereto of the first part.” Her grantee conveyed the same lot to the defendant in this action, and in her deed declared it to be subject to the same covenants and conditions, and that “ the party of the second part hereby also agrees, as a further consideration for this conveyance, to perform all the obligations of the said party-wall agreement, which in any manner are binding upon the said Helene Pupke.” By neither of these conveyances was the obligation of Christian L. Lilienthal, who was the person executing the agreement, imposed upon, or assumed by the grantee of the title. But the most that was done was to impose the same obligations upon Helene Pupke which were in any manner binding upon Margaret Crawford, her grantor, and upon the defendant, the obligations of his grantor. And as the deeds through which •she derived her title from Lilienthal and others contained no reference whatever to this agreement, Margaret Crawford had in no manner become bound for tbe performance of tbe party wall agreement. (Vrooman v. Turner, 69 N. Y. 280.)

As Margaret Crawford had not become bound, her grantee was in like manner absolved from liability, for tbe latter agreed to be bound no further than tbe former was at tbe time of tbe execution and delivery of her deed. And as she bad not become bound in any manner for tbe performance of the party-wall agreement, it follows that her grantee was not so bound, for all she obligated herself to do was to perform so far as tbe agreement _ was binding upon her grantor. And that was tbe character of tbe conveyance made by Helene Pupke to tbe defendant, for it did not bind him, or attempt to bind him, to tbe performance of tbe party-wall agreement, but only to perform tbe obligations of tbe agreement which were in any manner binding upon Helene Pupke. In this state of tbe facts, and under these authorities, there was no legal obligation by which tbe defendant was bound to pay Boggs, or to tbe plaintiff, as bis assignee, tbe value of one-half of this party-wall. And as there was no liability resting upon him, tbe action was deprived of all legal foundation for its support. Tbe complaint, accordingly, should have been dismissed when tbe application was made for that purpose upon tbe close of tbe plaintiff’s evidence.

Tbe judgment and order should, therefore, be reversed, and a new trial directed, with costs to abide tbe event.

Davis, P. J.:

Tbe original covenants relative to tbe party-wall were duly recorded, and all subsequent parties bad notice of them and of the-fact that tbe wall was built and maintained according to their provisions. Tbe boundary line of tbe respective lots was tbe center of tbe party-wall, and every purchaser bad notice that tbe land, purchased by him was subject to tbe obligation to bear tbe half of tbe party-wall that rested on bis land, under tbe terms of tbe covenants on record. Several of tbe later conveyances expressly subjected tbe grantee to tbe obligations of tbe covenants by subjecting such grantees to tbe liabilities resting on their respective grantors. Tbe defendant took bis title subject to such obligation. Upon these several facts equity will, or ought to, recognize an estoppel mpads, which prevents defendant from denying that the several grantors, whose conveyances were severally subject to the covenants of their respective grantors,.to pay for the party-wall when used, were in fact predicated upon an obligation by which some antecedent grantee of the premises had charged this land with the burden of a running covenant, or that the value of the half of the wall had so affected the consideration of the sale as to shift the burden of the covenant upon the shoulders of the subsequent grantees.

I think the judgment may, therefore, be sustained, and am in favor of its affirmance.

Beady, J., concurred.

Beady, J'.:

I think the agreement as to the party-wall differs in this case from those in Coles v. Hughes (51 N. Y., 444) and Scott v. McMillan (76 N. Y., 141). Here the agreement is absolute that the moiety of the expenses for the wall shall be paid whenever the use or benefit of it is begun. The agreement is also by its terms to be construed into a covenant running with the land, which is a very important difference. The decisions referred to rest upon the proposition that the covenant created by the agreement, as to the wall, does not run with the land. The result of the agreement here is, however, that it shall run with the land, and thus the benefit,and burden go hand in hand. I am, therefore, for affirmance.

Judgment affirmed.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    ALFRED L. LOOMIS and Others, Respondents, v. THE THIRTY-FOURTH STREET RAILROAD COMPANY, Appellant. HENRY HILTON, Respondent, v. THE SAME, Appellant.

      Injunction restraining the unlawful construction of a railway in a street — it should restrain only the unlawful acts specifically found to exist.

    The complaint in this action alleged that the defendant, a railroad company, had wrongfully and unlawfully taken possession of a portion of Thirty-fourth street, in the city of New York, tearing up the pavement and soil and obstructing the street by constructing a surface railway through the same without having obtained the consent of a majority of the owners of lots abutting upon said street, or an order of the Supreme Court allowing its construction notwithstanding the refusal of such consent, or the consent of the several railroad corporations then occupying with surface railways, portions of the said street.
    The court found that the defendant was doing and attempting to do the several acts as so alleged in the complaint, and that the plaintiffs were entitled to a perpetual injunction, restraining and enjoining the defendant, its agents, servants, contractors, sub-contractors and laborers from constructing or operating a railroad in the said portion of the said street, and from taking up the pavement or interfering therewith, from laying down timbers or rails and from doing any act or thing towards the construction or operation of a railroad therein.

      Held, that the relief granted was too extensive; that the restraint should be limited to the doing of the unlawful acts alleged in the complaint and found and described in the finding of fact, and should not include such as might possibly hereafter be done under the sanction of lawful authority.
    Appeal from judgments of the Special Term, awarding perpetual injunctions.

      G. P. Lowrey and A. Wakemcm, for the appellant.

      H. Russell, for the respondents.
   Davis, P. J.:

The only question presented upon these appeals arises upon the exceptions to the sixth conclusion of law of the court below and to the form of the judgment entered thereon. The causes of action alleged by the complaint are the wrongful and unlawful acts of the defendant in taldng possession of a portion of Thirty-fourth street, tearing up the pavement and the soil and obstructing the street in constructing a surface railroad through the same without having obtained the consent of a majority of the owners of lots abutting upon said street, or an order of the Supreme Court under the provisions of the Constitution allowing the construction notwithstanding the refusal of such consent, or the consent of the several raiboad corporations occupying by sui-face railroads now in operation in certain portions of Thirty-fourth street particularly described in the complaint. The findings of the court, upon what we must assume to have been sufficient evidence, establish that the defendant was doing, and attempting to do, these several alleged acts without having obtained the consent of the owners, or any order of the court, and without the consent of the other railroad corporations, and that what the defendant had done, and was seeking to do, was wholly without the authority of law, and therefore a nuisance which the plaintiffs were entitled to have enjoined. But the court, after finding that the several wrongs alleged in the complaint were committed, and were unlawful for the reasons alleged, proceeded to hold, by the sixth conclusion of law, that the plaintiffs are entitled to a judgment of perpetual injunction, restraining and enjoining the defendant, its agents, servants, contractors, sub-contractors and laborers, from constructing or operating a railroad in said Thirty-fourth street, between the said Sixth and Lexington avenues; from taking up the pavement or interfering therewith; from digging or excavating in the roadway; from laying down timbers or rails, and from doing any act or thing towards the construction or operation of a railroad in said Thirty-fourth street, and. the judgment entered thereon follows substantially the language of the sixth finding, and forever enjoins and restrains the defendant from constructing or operating a street surface railroad in said Thirty-fourth street, in said city, between said Sixth and Lexington avenues; from taking up the pavement or interfering therewith; from digging or excavating in the roadway; from laying down timbers or rails; and from doing any act or thing towards the construction or operation of a street surface railroad in said Thirty-fourth street, between said avenues, and from otherwise interfering with or obstructing said street.

The effect of the finding and judgment is, therefore, to prevent the defendants from ever constructing and operating any surface railroad through the part of Thirty-fourth street therein mentioned, without regard to the question whether or not its acts be lawful and in conformity, in all respects, to the requirements of the Constitution and statutes of the State. No case authorizing such a perpetual injunction is made by the complaints in these cases, or established by the findings of fact as made by the court, and no such legal conclusion follows from the facts found. What the plaintiffs were, and are clearly entitled to, are perpetual injunctions restraining the defendant from doing any of the unlawful and authorized acts set forth in the complaint, and beyond this the conclusions of law cannot be sustained. This question arises upon the exceptions to such conclusions. But the exceptions, although well taken, do not, in such cases, necessarily require a reversal of the judgment because the judgments can be made to conform to the case as made by the complaint and to the facts found by the court. The power of the court in such a case is unquestionably clear, and should be exercised for the purpose of making the judgment such as the law permits upon the facts found upon the trial. Under the judgments, as now entered, the defendant, which the case concedes to be a corporation lawfully organized under the laws of the State, is perpetually enjoined from exercising any of its functions as a corporation in that part of the street described in the judgments howevei clear and unquestionable its legal rights may hereafter be made to appear. These eases turn wholly upon the fact that the defendant was doing the alleged acts without any authority of law, and that having been found to be the case, the acts it was doing were rightfully perpetually enjoined; but this by no means justified the court in pronouncing a judgment which will operate forever to prohibit the defendant from constructing or operating a railroad in the street if it shall ever obtain a constitutional and lawful authority so to do.

The authorities cited by the learned counsel for the respondent have no application we think to such a case for the question here is whether upon the facts found such a conclusion of law follows as that expressed in the sixth conclusion of the court upon which the judgments are entered.

The appellant presents a form of judgment which in our opinion is not admissible. That form undertakes to prescribe certain conditions upon which we are asked to adjudicate in effect that the defendant may construct its railroad. That is no part of the province of the court in pronouncing the judgment in this case, and the modification should not embrace any of those conditions. It should simply direct that the defendant be forever enjoined and restrained from doing, or continuing to do, any of the unlawful acts alleged in the complaint and found and described in the findings of fact, so that the injunction will operate to restrain those acts, and not such as may possibly hereafter be done under the sanction of lawful authority.

We think, therefore, that the sixth conclusion of law and the judgments, as entered in each case, should be modified in conformity to these views, and affirmed as modified, without costs to either party.

Beady and Daniels, JJ., concurred.

Judgment modified, as directed in opinion, and affirmed, as modified, without costs to either party.


text:
    ATTORNEY GENERAL, Plaintiff, v. CONTINENTAL LIFE INSURANCE COMPANY, Defendant. Matter of Claim of JOHN J. ANDERSON, Fees of CHARLES H. WINFIELD, Referee.

      Stay of proceedings became of the non-payment of costs — what is a waiver of the right to insist upon it.

    A motion made by a referee appointed in this action for an order adjusting his costs baring been granted, an appeal was taken therefrom by certain of the policyholders. Subsequently the policyholders moved to stay all proceedings on the part of the respondent, under section 779 of the Code of Civil Procedure, on the ground that the referee had not paid certain costs awarded against him by an order made October 9, 1882. No demand for the payment •of the costs had been made upon the referee until September 29, 1885, after the appeal had been taken. No reference was made to the non-payment of these costs in the papers used, or at the hearing had, at the Special Term.

      Meld, that the appellant must be deemed to have waived the stay given by the said section, and that his motion should be denied.
    Motion on tbe part of tbe appellant for a stay of proceedings ou tbe part of respondent.

      B. J. Moses, Jr., for C. P. Hartwell and others, policyholders, appellants.

      E. G. James, for Charles H. Winfield, referee, respondents
   Davis, P. J.:

Tbe respondent Charles H. Winfield, who was the referee appointed by the court in the above entitled action, moved at Special Term for an order adjusting his claims for his fees as such referee. This motion was opposed at Special Term by certain policyholders, represented by Raphael J. Moses, their attorney and-counsel. The motion was granted allowing to the referee the payment heretofore made to him and directing payment to the counsel of the referee of a specified sum for legal expenses incurred by him in the above entitled action. An appeal was then taken by Mr. Moses on behalf of the several policyholders to this court, and a motion is now made to stay all proceedings on the part of the respondent on such appeal under the provisions of section 779 of the Code, for the non-payment of certain costs awarded against Mr. Winfield by an order of this court made October 9, 1882. The motion is based upon a demand in writing for the payment of such costs, served upon Mr. Winfield on the 29th day of September, 1885, subsequently to the taking of the appeal. There is nothing in the papers, which constitute the return to the appeal, to show that any such objection was made at the Special Term, and the affidavits made on the motion show that the objection was not suggested to the Special Term nor at any time to the respondent until the demand. It does not appear that the order of the General Term allowing costs against the referee, specified any time within which they should be paid, nor does it appear that any demand for the costs or application for their payment was ever made prior to that made on the twenty-ninth day of September after the appeal had been taken. The section under which this motion is made expressly provides that “ an adverse party may at his election waive the stay of proceedings.” In some cases it has been decided to be a waiver to give a receiver notice of trial. (Verplanck v. Kendall, 47 Supr. Ct. R., 513.)

In Brown v. Griswold (23 Hun, 618) this court intimated that service of a notice of trial after default in payment of costs would operate as a waiver of the statutory stay of proceedings resulting from the non-payment of such costs.

It is well settled that a party may waive a statutory or constitutional provision made for his benefit; and that by appearing and omitting to object to a proceeding a party may waive a statutory requirement which is not jurisdictional. (Matter of Cooper, 93 N. Y., 507; Embury v. Conner, 3 id. 511; Lee v. Tillotson, 24 Wend., 337; Phyfe v. Eimer, 45 N. Y., 102; Root v. Wagner, 30 id., 9; Walker v. Wainright, 16 Barb., 486.)

In this ease the appellants appeared on motion before the Special Term and made no objection to the proceedings on the ground that, the costs now demanded had not been paid. On the contrary, it would seem from the papers that the case was argued and decided upon its merits. Subsequently they took an appeal to this court from the order made on that motion. Upon this state of facts we are of opinion that the statutory stay under section 779 of the Code must be regarded as having been waived. The appellants have made themselves actors by taking the appeal and compelling the-respondents to come into this court to vindicate the order made by the court below. They are not at liberty now, by an assertion of the stay for non-payment of costs, to prevent the respondents from appearing here and taking whatever steps may be necessary to-maintain the order.

The motion must, therefore, be denied, but without costs.

Brady and Daniels, JJ., concurred.

Motion for stay of proceedings denied, without costs.


author:
Davis, P. J.:
      r‘ Beach, J.:

text:
    FRANCES J. BYRNES, Respondent, v. MARIA L. LABAGH and Others, Respondents, Impleaded with BENJAMIN M. STILWELL and Wife, and EDGAR SWAIN, Appellants.

      Will — devise of remainder to children of tenant for life — when the devisees must survive the tenant for life.

    A testator devised certain lands to his daughter for life, and from and immediately after her death he devised the same “unto the lawful child or children of my said daughter, his, her, or their heirs forever; if more than one, share and share alike, as tenants in common, and in case any or either of the children of my said daughter Maria, at the time of her death, be dead, leaving a lawful child or children him or her surviving, such child or children shall take-the share or portion which his, her or their parent would have been entitled to if living, to have and to hold to him, her or them, and their heirs forever. ”

      Meld, that only those children of the daughter, or those children of deceased children, who were living at the time of the daughter’s death were entitled to share in the remainder; that children of the daughter, who died in her lifetime, without leaving children, had no descendible or transferable interest therein.

      Motion for a new trial, made in the first instance at the General Term, upon exceptions to the findings of the court in the nature of an interlocutory judgment finder the provisions of section 1001 of the Code of Civil Procedure, and an appeal from the interlocutory judgment.

      SUlwell db Swam, for the appellants.

      Babe db Keller, D. T. Walden, JR. V. W. Du Bois, W. W. JMaefan'lamd, J. H. Hull, Deyo, Duer db Bcmerdorf and Sullwan db Cromwell, for the respondents.
   Davis, P. J.:

This action was brought for the partition of certain lands situate in the city of New York. The question brought before this court by the motion and appeal wholly' depend upon the construction to be given to the clause of the will of one John W. Gilbert, deceased, who in his lifetime was seized in fee of the several lots and parcels of land sought to be partitioned. That clause, so far as necessary to present the question, is in these words : ,

“I give, devise and bequeath unto my daughter Maria, the wife) of John "Wood, for and during and for the full end and term of her natural life.” (Here follows a description of the premises.) ■£‘ And from and immediately after the decease of my said daughter Maria, I give, devise and bequeath the last aforesaid two lots of ground, houses, buildings and premises, known as number one hundred and forty-seven Fulton street, and so running through to Ann street, as also the house and lot of ground number eighty-t'hree in Nassau street, as above described, with the improvements thereon, so as aforesaid, given unto my said Maria during her natural life, unto the lawful child or children of my said daughter, his, her or their heirs forever; if more than one, share and share alike, as tenants in common; and in case-any or either of the children of my said daughter Maria at the time of her death be dead, leaving a lawful child or children him or her surviving, such child or children shall take the share or portion which his, her or their parent would have been entitled to if living; to have and to hold to him, her or them, and their heirs forever.”

The will of the testator was made on the 13th of February, 1827, and he died in the year 1828. At the time of his decease Mrs. Wood was the mother of six children, and subsequently another child, George W. Wood, was born to her by her then husband, John Wood. Her husband J ohn Wood died in the year 1830. Inthefall of 1834: Mrs. Wood intermarried with William Mulock, and by him she became the mother of four children. She died on the 26th day of May, 1882, leaving her surviving eight of her children, the others having before then deceased, neither of them leaving any issue.

The question presented is, whether the children of Maria Wood (then Maria Mulock), the life tenant of the estate in the lands, who died before her death leaving no lawful children, took, under the provision of the will above quoted such an estatein the lands of which a life estate was given to her, as was descendible from, or transmissible by them. The court, at Special Term, came to the conclusion that they did not. Our examination of the question leads us to the-conclusion that it was the manifest intention of the testator, in and by the provision in question, only to provide that all the lawfully born children of his daughter Maria, who should survive her, should be entitled to a share of his lands in possession and enjoyment, except that if any of her children should die prior to her decease, leaving lawful children, such children should be entitled to take the-share which would have belonged to their deceased parent, if he or she had survived his or her mother. We do not deem it necessary, inasmuch as the learned judge who tried the case at Special Term has, with great clearness and force, presented the views and reasons which led him to that decision, to do more than adopt, as our own, the opinion he pronounced, which is as follows:

r‘ Beach, J.:

“ It seems plain that the testator’s daughter Maria Wood, under the will, took a life estate in the premises affected by the bill of complaint. What estate was conferred upon her lawful children may best be ascertained by gathering the testator’s intent and then applying legal principles and terms, supported by authoritative adjudication. The devise is to the daughter for life, and on her death to her lawful child, or children, his, her or their heirs, forever. Had the direction terminated here, intention would be clear, and quality of the children’s estate fixed by familiar statutory definition. But testator continues, by providing that in case of the death of any child prior to the mother’s demise, leaving issue, such issue should take the share which his, her or their parent would have been entitled to, if living. The words ‘if living’ must refer to the date of the mother’s death. Unless there is some significance to this latter clause affecting survivorship, it is meaningless, for the issue would take as well without as with it. Its presence to me indicates the testator’s intention that in ease any of his daughter’s children died during the mother’s life, the issue, if any, should take, and if none, the divisional shares should decrease to the number of those who survived the mother. He thus provided for all children who survived the termination of the life estate, and the issue of any who died, leaving issue, and restricted his benefaction to those whom the will shows he intended to benefit. The estate thus created for the children, in being at the testator’s death, was a vested remainder, subject to open and let in after-born children, and to be wholly divested by death before the mother, without issue. In legal phrase, the estate may be termed a vested remainder liable to be defeated by a condition subsequent.

“ It is true that a vested remainder will never be divested, unless there be a special provision or a clear intention to be collected from the language of the instrument. This is a rule stated by Mr. Cruise in his Digest, and applicable here to support the divesting of the remainder, if the intention can properly be gathered, and I think it is plainly expressed.

“ There is a possibility, which tends to strengthen my opinion. The remainder being vested, if vested absolutely, was alienable. Suppose one of the children had conveyed to a third person his interest, and afterwards had issue and died before the mother. Under the provision of the will the issue would have taken, and the parent’s conveyance been worthless. But this would not be if the remainder vested absolutely, and was not subject to be divested in case of death before the life tenant without issue.

“ I have examined many cases, and those seeming to support most clearly my conclusion are: Doe v. Considine (6 Wall. [U. S.], 458); In the Matter of Ryder (11 Paige Ch., 185); Sheridan v. House (4 Keyes Ct. of Ap., 569); Moore v. Littel (41 N. Y., 66); Kelso v. Lorillard (85 id., 177).

“ This view disposes adversely of the claims to the supposed interest of Eliza Josephine Stilwell and Charles W. "Wood. The former is subject to the potent objection of having been by her devised at the age of nineteen years. There is no evidence of any permanent improvements made by the life tenant so as to entitle her estate to compensation, and the facts relating to the strip of land shows its acquirement to have been for the benefit of the property. A decree to conform herewith may be settled upon two days’ notice.”

We are satisfied by the views presented, and the authorities cited by this opinion, that whatever may have been the true nature of the estate in remainder that vested in the children of Mrs. Wood, and subsequently from time to time, as her children not then living were respectively born, opened and diminished by the vesting in such after-born children of their shares of the estate in remainder, such estates were at all times, prior to the death of Mrs. Wood, subject to be divested by the death prior to her own decease, of either of her children without leaving any issue, or by such death of any child leaving issue, in which case the estate before vested in the child, immediately upon his or her death vested in his or her issue; and that such estate finally became vested as to possession and enjoyment, on the death of the mother, in the children then living share and share alike because none of the deceased children, who had died left any lawful issue. And, supporting this view, in addition to the authorities cited by the court at Special Term, we add: Nodine v. Greenfield (7 Paige, 544); De Peyster v. Clendining (8 id., 295); Kane v. Astor's Estate (5 Sanf., 469) and Smith v. Scholtz (68 N. Y., 41).

The judgment should, therefore, be affirmed, and the motion for new trial denied, but, we think, under the circumstances, without costs.

Beady and Daniels, JJ., concurred.

Judgment affirmed, and motion for new trial denied, without costs.


author: Brady, J.:

text:
    WILLIAM D. MURPHY, Respondent, v. WILLIAM HALL, as Administrator, etc., of ANNA MARIA GRACIE, Deceased, Appellant.

      Foreign administrator —jurisdiction of the courts of this State over an action against Mm — practice—amendment of a clerical error in am, affidavit— Qode of Oivil Procedure, sea. 723.
    This action was brought by the plaintiff, an attorney at law practicing at Albany, N. Y, against the defendant, who had been appointed administrator of one Gracie of Louisiana by a court of that State, to recover for work and services performed for the estate at the special instance and request of the defendant. Upon an appeal from an order denying a motion to vacate or modify an attachment issued in the action:

      PLeld, that if the action were treated as brought against the defendant as a foreign administrator, this court had, in the absence of allegations showing any assets in this State, no jurisdiction over it.
    That treating it as an action brought against the defendant individually, the levy under the attachment should be vacated in so far as it affected assets of the estate.
    A motion to vacate an order for the service of a summons by publication was made upon the ground that the affidavit appeared to have been sworn to in the county of New York before a notary public of the county of Albany.

      Meld, that this was evidently a clerical error, which did not prejudice the defendant, nor affect a substantial right, and that an amendment should be allowed under section 723 of the Code of Oivil Procedure.
    Appeals from an order denying a motion to vacate the attachment herein, or to so modify it that it should run only against the property of the defendant in his personal capacity, and from an order denying a motion to vacate an order for the service of the summons herein by publication.

      Douglass c& Minton, for the appellant.

      Sewell, Pierce <Ss Sheldon, for the respondent.
   Brady, J.:

This action was commenced by attachment against the defendant, as a non-resident of the State. The complaint alleges that the plaintiff is an attorney and connselor-at-law, practicing his profession, as such, at Albany, New York; that tbe defendant is tbe administrator of the goods and chattels of Anna Maria Gracie, late of Louisiana, and that he was appointed as such by a court in that State; and, further, that the defendant is indebted to the plaintiff for work and services performed for the estate mentioned at a special instance and request of the defendant, and entitled therefor to the sum of $1,000.

There is no allegation that any portion of the assets are within this State, or that the defendant has brought any hither. The action is brought, however, against the defendant, as an administrator, and from the allegations in the complaint, as we have seen, it appears that he is a foreign administrator. This court has no jurisdiction in an action at law against such a person. (Matter of Webb, 11 Hun, 124; Gray v. Ryle, 5 Civ. Pro., 387; Field v. Gibson, 56 How., 232; Metcalf v. Clark, 41 Barb., 45.) “ It is a general rule of law,” said Van Vorst, J., in Field v. Gibson (supra), “ that foreign executors are not recognized in their official capacity by domestic courts of law, and cannot be sued therein as such. Actions in equity have been entertained within this jurisdiction against foreign executors who have brought, or had in this State, property of the testator, to'prevent, upon proper allegations, its waste, and secure its application to the payment of the debts of the testator, according to the law of the State whence the executors derived their authority.” “ This has been allowed,” said the learned judge, to prevent a total failure of justice; ” and, further: But when it is sought to recover a money judgment only against a foreign executor, the creditor should be remitted to the forum which has jurisdiction over him in his representative character.” If we treat this action, therefore, as one against a foreign administrator, this court, under the authorities cited, would have no jurisdiction of it, and the attachment would necessarily be vacated.

It appears, however, to be based upon a contract made by the administrator in reference to the estate, namely, for the purpose of recovering assets that belonged to the decedent. Such a contract does not bind the estate of the person whom the defendant represents, nor is it a charge upon the assets in his hands. It binds him personally. (Austin et al. v. Munro et al., 47 N. Y., 361; Ferrin, v. Myrick, 41 id., 315.)

Assuming, therefore, for the purpose of this appeal, that this is an action against the administrator, personally, upon a contract made by him, and for which he is responsible, the levy under the attachment should have been discharged for the reason that, according to the record, it was made of assets belonging to the estate. The court below was right, therefore, in declining to discharge the attachment absolutely, the defendent being a non-resident and the action being upon a contract, for which he is personally liable, assuming the allegations in the complaint to be true.

The cases heretofore referred to, and by which it has been declared that a foreign executor is not amenable to our courts, presented for consideration claims against the intestate or testator on contracts made with bim, and must be confined to such claims. There can be no doubt of our jurisdiction in an action against a foreign administrator, founded upon a personal contract made by himself, although made with reference to the estate. The motion to discharge the levy upon the assets of the estate should, therefore, have been granted.

The motion to discharge the order of publication is predicated of the objection, that the affadavit upon which the attachment was granted was insufficient, for the reason that it appears to have been sworn to in this county, before a notary public of the county of Albany. This is evidently a clerical error, and one which does not prejudice the defendant, nor affect a substantial right ; and it is thought that under the provisions of section 723 of the Oode of Civil Procedure, an amendment should be allowed.

For these reasons the order in reference to the attachment appealed from should be modified as suggested in the opinion, and, in all other respects affirmed, without costs to either party. The appeal from the order denying the motion to discharge the order of publication should be affirmed, with ten dollars cost, and the disbursements to abide the event.

Davis, P. J., and Daniels, J., concurred in the result.

Order denying motion to vacate attachment modified as directed in opinion, and affirmed as modified, without costs to either party; order denying motion to discharge order of publication affirmed, with ten dollars cost, and disbursements to abide event.


text:
    ELIZABETH PATTERSON, Respondent, v. JANE W. McCUNN and Others, Appellants.

      Practice — when a defect in a notice of embry of judgment is waived by an admission of its due and proper service — to review am, interlocutory judgment on am, appeal from a final judgment, the former must be specified in the notice of appeal —Oode of Owil Procedure, secs. 1301, 1316 — the court cannot amend the notice by inserting such

    The notice of the entry of an interlocutory judgment in this action, served upon the guardian ad litem of certain infant defendants, who had appeared in person, was defective in that the post-office address of the attorney was not indorsed and subscribed upon it as required by Rule 3 of the Supreme Court. The guardian ad litem admitted the due and proper service of a copy of the interlocutory judgment, and also of a summons to attend before the referee appointed thereunder, and also of the proper service of the final judgment.

      Held, that the defect in the notice was waived and could not be urged to sustain an appeal taken after the expiration of the time, as limited by its service, had expired.
    Where a notice of appeal from a final judgment makes no reference to an interlocutory judgment theretofore entered in the action, neither the interlocutory judgment nor the case and exceptions can be reviewed on the appeal, nor has the court power in such a case to amend the notice of appeal by specifying therein the interlocutory judgment to be reviewed.
    Appeal by the defendants John McC. Gano and Jane W. Gano from an order made at the Special Term denying a motion for leave to file exceptions nunc pro tunc, that a notice of appeal be declared valid and the service thereof legal.

      Alfred Taylor, for the appellants.

      Christopher Fi/ne, for the respondent.
   Brady, J.:

This action was brought by the plaintiff, as one of the heirs-at-law nf John H. McCunn, deceased, for the purpose of having declared void the fifth clause of the will of the decedent and a codicil thereto under which the appellants, who were infants, derived their interests, and for a partition of the real estate attempted to be devised thereby.

On the 1st of July, 1880, an interlocutory judgment was entered nunc pro Mine as of the 2oth of January, 1878, declaring void the clause and codicil'mentioned, and on the 1st of November, 1881, a final judgment was entered decreeing the sale of the real estate affected by "the clause and codicil. On the 12th of December, 1881, an appeal from the final judgment was taken by the attorney for Mr. Bachman, who was the guardian ad litem of the appellants, and a due admission of service of the notice of appeal was given. There was no notice of appeal, however, from the interlocutory judgment served until the 4th of February, 1885, and until after a substitution of Messrs. Taylor & Parker as attorneys for the guardian. On the 14th of January, 1885, Taylor & Parker were -substituted, and on the sixteenth of February following Mr. Bach-man resigned. When the notice of appeal from the interlocutory judgment was served it was returned on the ground that Messrs. Taylor & Parker were not the then attorneys of Bachman; that the notice of appeal and exceptions were not served within the time required by law, and the case, which was served by them with the notice of appeal, was not in due and proper form.

Subsequent to the resignation of Mr. Bachman, already mentioned, an order was made appointing Frederick S. Parker guardian ad litem for the appellants, and they made application that the order of substitution of January 4, 1884, the notice of appeal from, and exceptions to, the interlocutory judgment, the proposed case on appeal, and the order appointing Frederick S. Parker guardian ad litem be declared legal and service thereof valid,^and that the court grant him leave to file exceptions to the findings and conclusions of law nunc pro tunc. The motion was denied upon the ground that the appeal from the interlocutory judgment was not taken within the time prescribed by law, and on the further ground that the notice of appeal from the final judgment made no reference to the interlocutory judgment, and therefore did not bring it up for review.

Upon the motion, it was insisted that the notice of the entry of the interlocutory judgment was invalid, for the reason that the attorney’s name was signed without his post-office address, as required by Pule 2 of this court, and which proposition, it was insisted, if correct, preserved his right to appeal from the interlocutory judgment.

It was also claimed that, even if this view were erroneous under the provisions of section 1303 of the Code, a notice of appeal having been served, tbe court had the power, by amendment, to supply any omissions, including even that to mention the appeal from the interlocutory judgment, as contemplated by section 1316 of the Code of Civil Procedure.

It is provided by Rule 2 of this court that all papers must be indorsed and subscribed with the name of the attorney or attorneys, and their post-office address and place of business. And it has been determined that a party who undertakes to limit the time for appealing must be held to strict practice, and that a notice of judgment which does not conform in all respects to the rule is a nullity, and may be treated as such. (Yorks v. Peak, 17 How., 192; Kelly v. Sheehan, 76 N. Y., 325; Kilmer v. Hathorn, 78 id., 228 ) But, unfortunately for the successful application of this rule, the guardian itd litem, who was the attorney in person as well, admitted the due and proper service of a copy of the interlocutory judgment, upon the 14th of September, 1880, and also due and proper service of a summons to attend before the referee appointed pursuant to that judgment, on the thirtieth of September following.

The counsel for the appellants endeavors, with great ingenuity, to overcome the effect of this admission, taking the ground that it was only to prevent any question as to the method of service, or that the service was not requisite on them at the time, and that it would be a perversion of language to hold that, by admitting service of the paper, a material addition was admitted which was necessary to its validity, and that a party should only be held to admit the service of a paper actually served, be the effect of it what it may; and still further, that an admission of due service of a paper, which was a nullity, would be the service of it as a nullity, and nothing more.

There might be some force in this view, if the admission had not extended further, as we have seen it did, namely, admitting service of a summons to attend before the referee appointed pursuant to the judgment. This was undoubtedly a waiver of any defect in the service of the notice, and it would be unjust, after a party had received notice of the judgment, which did not in all respects comply with the rules of the court, to allow him to take advantage of the proceeding under the judgment of which he was advised and tawhicli his .notice was called by a contemplated action under it. He should have advised the attorney for the successful party of the error. But the effect of the admission of service deprives the appellants of any results that might flow from the considerations suggested, because the admission, as we have seen, is not only of due, but of proper, service of a copy of the interlocutory judgment. The word proper here covers everything and disposes of the strenuous efforts, made by the counsel for the appellants, to secure the advantages which, under the decisions referred to, might arise from the imperfect notice of the entry of the judgment which was served. It must be held, therefore, that the learned justice in the court below was right in holding that no appeal was ever taken from the interlocutory judgment, and that the failure to state the post-office was an error which was plainly cured by the formal admission to which attention has been called, and particularly when it is considered that there was an admission also signed by the guardian ad litem of the due and proper seiwice of the final judgment, not only as guardian ad litem, but as attorney for the appellants.

Although the appellants omitted to appeal within the proper time from the interlocutory judgment, they might have secured all rights by an appeal from the final judgment, if the notice of appeal had conformed to the provisions of sections 1301 and 1316 of the Code. But, unfortunately for them, the notice of appeal from the final judgment makes no reference to the appeal from the interlocutory judgment, and in such a case the interlocutory judgment, as to all points covered by it, is to be taken as the settled law of the case, and is not open to review upon the appeal. (Code of Civ. Pro., §§ 1301 and 1316; Reese v. Smyth, 95 N. Y., 645, 646.)

The application, so Ear as it relates to the amendment of the notice of appeal, under the provisions of section 1303 of the Code of Civil Procedure, must fail also because it was not necessary to do anything-to affect the appeal from the final judgment, except, perhaps, to serve upon some of the defendants in the action the notice of appeal. So far, it might be successful under the provisions of that section. But the power of amendment does not extend to the insertion in the notice of appeal of a specification of the interlocutory judgment. That, in effect, would be enlarging the time to appeal, which the-courts have not the power to do. (Lavalle v. Skelly, 90 N. Y., 546, 548; S. C., 24 Hun, 642; Clapp v. Hawley, 97 N. Y., 610; Piper v. Van Buren, 27 Hun, 384.)

In the last case cited, the General Term said that the provisions of the Code, contained in sections 1301 and 1316, made it a condition precedent in order to review an interlocutory judgment, that the appeal from the final judgment distinctly specify the interlocutory judgment, and that such a specification was essentially a condition precedent to the right to exercise a second opportunity to appeal. The disposition, therefore, of the second proposition contained in the decision of the court below is correct, namely, that the notice of appeal from the final judgment did not refer to or bring up the interlocutory judgment, and that the questions sought to be reviewed could not, therefore, be brought up; nor could the court review the case and exceptions where no appeal was taken from the interlocutory judgment within the time required by law. This is all it is considered necessary to discuss in this case, because without the amendments asked for, the appeal would be of no use to the appellants; and the views expressed, therefore, dispose of all the vital questions presented by the record. If the provisions of the Code, and the decisions relating to them, did not oiler any insuperable difficulties, there would be a strong disposition upon the merits to grant all the amendments necessary to give the appellants an opportunity to review the determination of the court. It seems to have been lost by negligence or inattention.

The judgment and order appealed from must, therefore, be affirmed, but without costs.

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

Judgment and order affirmed, without costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JACOB CAMPBELL and Others, as Executors, etc., of SAMUEL HAWK, Deceased, v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY OF NEW YORK.

      laxation — assessment of personal property held fry executors, where some are non-residenis.

    The relators, Campbell, Moss and Hawk, as executors and trustees of Samuel Hawk, deceased, applied to have an assessment of $400,000 for personal property held by them, as such executors and trustees, reduced to the sum of $35,000. Moss averred, in an affidavit, that he was a resident of Sandusky, Ohio, and that for more than six months prior to April 22, 1885, he was the sole acting executor and trustee of the estate, and had sole possession and control of all the property and assets of the estate, except the sum of $35-, 000, which was invested in the business of the Windsor Hotel, in New York city; that no other portion of the assets was invested in business in the State of New York. i
    Campbell alleged that, after qualifying as executor and trustee, he became unable, by reason of illness, to attend to his duties, and that for a period of more than eight months next prior to and including the second Monday of January last past, none of the funds or property of the estate of said deceased were in his possession or under his control.
    Hawk alleged that, in October, 1884, after qualifying as executor and trasteo he was compelled by ill-health to give up all business, and that from that time until April 25, 1885, he was continuously absent from the State, and that during his absence he was not in possession ór control of any of the properly or assets of the estate.
    The testator died in the city of New York in 1882, and his will was there proved. Meld, that the application for a reduction of the assessment was properly denied, by the commissioners.
    Certiorari to review an assessment for the purposes of taxation for the year 1885.

      Henry W. Johnson, for the relators.

      Albert I. Cole, for the respondents.
   Brady, J.:

Samuel Hawk, the testator, late of this city, died here in August, 1882. His will was proved before the surrogate of this county, and letters testamentary were issued to Jacob Campbell, Jay O. Moss and William S. Hawk, the relators, who duly qualified as executor» and trustees and entered upon the discharge of their duties.

In the present year the relators were assessed in respect to the personal property held by them, as executors and trustees, in the sum of $400,000. Subsequently, and during the period allotted for that purpose, an application was made for a reduction of the assessment to the sum of $35,000, in support of which there were submitted the petition of the relator Moss and the affidavits of the ■other relators. Mr. Moss averred that he was a resident of Sandusky, Ohio, and that for more than six months prior to April 21, 1885, he was the sole acting executor and trustee of the estate, and had sole possession and control of all the property and assets of the estate, except the sum of $35,000, which was invested in the business of the Windsor Hotel in this city, and that no other portion of the assets was invested in business in the State of New York. Mr. Campbell alleged that he was appointed an executor and trustee under the will of Samuel Hawk, deceased, and duly qualified as such; that afterwards he became unable, by reason of illness, to attend to his duties, and for a period of more than eight months next prior to, and including the second Monday of January last past, none of the funds or property of the estate of said deceased were in his possession or under his control.

Mr. Hawk asserted that he was appointed executor and trustee under the will of Samuel Hawk, deceased, and duly qualified as .such; that in October, 1884, he was compelled by ill-health to give up all business, and from that time until the twenty-fifth of April last was continuously absent from the State,; and that during hi» absence he was not in possession or control of any of the property or assets of the estate.

The commissioners of taxes and assessments gave due consideration to the application thus made, and arrived at the conclusion that the mere temporary absence of the two executors and trustees above mentioned did not absolve them from liability to taxation, they .therefore denied the application and affirmed the assessment. The Nevised Statutes (vol. 2 [7th ed.], p. 989) provide as follows :

“ Seo. 5. Every person shall be assessed in the town or ward where he resides, when the assessment is made, for all personal estate owned by him, including all personal estate in his possession or under his control as agent, trustee, guardian, executor or administrator, and in no case shall property so held under either of those trusts be assessed against any other person.”

It will be observed that the assessment is to be imposed upon all personal property in the possession or under the control of a person who is an agent, trustee, guardian, executor or administrator. And it will be further noted that the averment of the relator Moss in reference to the possession of the property is that no part of it is now or during the past year has been employed or invested in business-in the State of New York, save so much as was invested in the business carried on by the firm of Hawk & Wetherbee; and that this does not negative the presumption that the entire estate is located in the city of New York. It (may very well consist of securities not invested or employed in any business in the city of New York, but which were, nevertheless, in the city of New York. The application of the relators, it will be noted, fails to show what was done with the rest of the personal estate. It does not appear from it that any portion of the estate was located in another county or State, and the inference fairly to be drawn from their statements, respectively and collectively, is that the personal estate passed into the hands of the non-resident executor only when it became necessary for the resident executors, one after the other, to leave the State or give up the business of the estate temporarily, which rendered it a necessity for the non-resident executor to take physical possession solely and exclusively. The mere fact that the estate was not in the actual possession of the executors, absent or ill, and was in the possession of the acting executor, furnishes no evidence of the absence of that kind of possession which is contemplated by the statute. The language of the statute embraces all personal property in possession of a person or “ under his control as agent,, trustee, guardian, executor or administrator.”

It must be regarded as a fair conclusion, from the application of the relators, that the absent executors failed only to have actual possession of the personal estate, and that during their absence. There is no evidence of any transfer of it to any other place, except what may be inferred from the circumstance that the foreign executor took possession. But this was a possession for the use of the estate and its beneficiaries, and in no sense deprived the other executors of that legal custody and possession resulting from their relation to it as executors and trustees. As said in Murray v. Blatchford (1 Wend., 616), by Chief Justice Savage: “ If a man appoints several executors, they are esteemed in law but as one person representing the testator, and, therefore, the acts done by any one of them, which relate either to the delivery, gift, sale, payment, possession or release of the testator’s goods, are deemed the acts of all, for they have a joint and entire authority.”

It is contended, also, and the contention is justifiable, that where the administration of the trust is vested in co trustees, they all form, as it were, but one collective trustee, and, therefore, must execute the duties of the office in their joint capacity. It is not uncommon to hear one of several trustees spoken of as the acting trustee, but the court knows no such distinction; all who accept the office are, in the eye of the law, acting trustees.” (Lewin on Trusts [7th ed.], 236, and cases cited ; see, also, Ridgeley v. Johnson, 11 Barb., 527; Thatcher v. Candee, 33 How. Pr., 145; Brickerhoff v. Wemple, 1 Wend., 470.)

In addition to this, it must be said that the legal presumption is that the personal property of a decedent, during the settlement of the estate, is at the place where the decedent lived, unless the contrary affirmatively appears. (Burrough on Taxation, p. 224; Desty on Taxation, § 68, p. 332.) Indeed, it is a natural presumption as well.

The case of People ex rel. Caswell v. Commissioners of Taxes (17 Hun, 293) is entirely different from the present case, and furnishes no reason why the appeal of the relator should be sustained. It appeared in that proceeding that the testator lived and died in Westchester county, and that his will was admitted to probate there; that the personal property was located there; that four of the executors resided in that county, and that the property was in their physical possession. This statement is quite sufficient to show the essential difference between this and that proceeding. None of the cases to which the learned counsel for the relators refers, and who has ingeniously presented his points on the appeal, in any way conflicts with the views herein expressed. It may be said, in conclusion, that to sustain the proposition urged on behalf of the relators would perhaps enable,a combination of foreign and domestic executors to employ the estate inter sese in such a way as to avoid taxation. It is not designed by this suggestion to intimate that the relators would be guilty of such a scheme; but cases might arise in which it would be attempted.

For these reasons, we think, the action of the commissioners ■should be affirmed, with costs.

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

Proceedings affirmed, with costs.


text:
    HULDAH H. CLAPP, Plaintiff, v. ROBERT C. CLAPP and Others, Defendants.

      Practice —fees of a referee appointed to take the accounts of a receiver — when not allowed until the report is made.

    Where a referee has been appointed to take the proofs and evidence touching the compensation to he made to a receiver of a corporation, the court will not make an order for the payment of any sum to the referee on account of his fees until his report upon the accounting has been made.
    Appeal from an order made at the Special Term, directing the United States Trust Company to pay to Everett P. Wheeler, Esq., the sum of $500, ou account of his fees for services as referee to take the proofs and evidence touching the compensation to be paid to Thomas B. Rand, late receiver in this action; such payment to be made out of the moneys on deposit with the trust company to the credit of the action.

      Lewis Scmders, for Henry A. Callen and Cora Callen, appellants.

      Lawrence da GodMn, for E. P. Wheeler, referee, respondent.
   Brady, J.:

There can be no question as to the right of the court to award to the receiver compensation out of the funds which form part of the •estate covered by his appointment, even though the title to the fund be in dispute. His compensation should not be made to depend upon the result of the litigation. (Hopfensack v. Hopfensack, 61 How., 498.) And the court has power to order the fees of a referee whose duties relate to the receivership, his claim, or his accounts, to be paid out of the fund. But it is a matter of discretion whether the power shall be exercised or not. (In re Attorney General v. Continental Life Ins. Co., 17 Weekly Dig., 147.)

In the case just cited, however, it appears that the referee had reported in favor of the receiver, and the referee’s duties, therefore, had been fully performed. In this case the reference is still proceeding, and whether the receiver will be entitled to any compensation or not is a matter of conjecture. If for any reason the referee should determine that the receiver was not entitled to any compensation, it is questionable whether, in the exercise of a discretion, an order would be made directing the payment of the-referee’s fees out of the funds, ordinarily the expense of a reference to pass the accounts is incidental to the receivership, and it would be unjust to require the receiver to pay out of his earnings-of the receivership the expenses of a proceeding to examine and determine'his accounts, and particularly if the opposition to his-accounts, leads to numerous and protracted meetings before the referee without results affecting their integrity.

In this matter it is said on behalf of the receiver that all the parties are represented by attorneys who, except those for whom Mr. Sanders appears (numbering two), have consented to the entry of the order appealed from. There is nothing before the court to warrant the conclusion that the receiver would not be entitled to-compensation, which should be made to appear, perhaps, in order to prevent the exercise of a discretion which should be called into-requisition in determining the propriety of paying the referee’s fees either in advance or otherwise. The objection, however, to directing the payment out of the fund to the referee, prior to the conclusion of his labors, is that he might, for many reasons — such as absence from the country, departure from the jurisdiction of the court, absence from the State, either by reason of change of domicile, or by professional engagements long continued, or by death — be prevented from completing his labors, an incident which would require the appointment of another referee, and the necessity of pi’oceedings de novo before him.

This objection is serious and cannot well be overcome. There may possibly be a precedent for a direction to pay the fees of the referee, under circumstances similar to those disclosed herein, but none has been found in the books; and it is regarded, as the better administration of law, to at least require the report of the referee ■upon the accounting before any order is made in reference to the payment of his fees.

For these reasons we think the order appealed from should be reversed, but without costs to either party, and without prejudice to any further motion or proceeding, after referee’s services shall have been completed.

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

Order reversed, without costs and without prejudice to any further motion or proceeding, after referee’s services shall have been completed.


text:
    THE HEALTH DEPARTMENT OF THE CITY OF NEW YORK, Respondent, v. PATRICK H. LALOR, Appellant.

      Board of health of New York —1882, chap. 410, secs. 537 and 1089 — the construe Mon of drains m violation of its directions wilt he restrained.

    The plaintiff, who owned a plot of ground at the north-east corner of Lexington avenue and One Hundred and Twenty-second street in New York city, filed with the board of health, as required by chapter 450 of 1881, a plan of the plumbing and drainage of a row of seven houses which he proposed to erect upon the said lots. As there was no public sewer in Lexington avenue, he proposed to carry his drainage under the yards in the rear of the houses to the public drain in One Hundred and Twenty-second street. The board of health approved of his plan, but added thereto “ on condition that the private sewer from said houses to the One Hundred and Twenty-second street sewer be laid under the roadway of the avenue and not through the yards or cellars of the houses.” After vain efforts to procure a modification of this proviso, he made the connection through the yard as he had at first proposed, alleging as a reason for so doing, that the method adopted by the board of health was unnecessarily expensive and not absolutely necessary for the preservation of the public health.

      Held, that a judgment restraining the defendant from executing the plumbing and drainage, in violation of the said provision inserted by the board of health, was proper and should be affirmed.

      Appeal by tbe defendant from a judgment of tbe Special Term, restraining .him from executing the plumbing and drainage of certain houses, in violation of the directions of the board of health.

      M. J. Earley, for the appellant.

      W. P. Prentice, for the respondent.
   Brady, J.:

In the spring of 1884 the defendant, being the owner of a plot of land situate on the north-easterly corner of One Hundred and Twenty-second street and Lexington avenue, in this city, determined to build upon it seven houses. At that time there was no public sewer in Lexington avenue upon which the houses were to front, and none has since been constructed there. There was, however, a sewer in One Hundred and Twenty-second street. In May, 1884, the defendant filed with the health department, under the provisions of chapter 450 of the Laws of 1881, a plan and specifications of the plumbing and drainage which he designed for the houses, and proposed to run the connection from the houses through and under the yards in the rear and off to the public sewer in One Hundred and Twenty-second street.

On the thirteenth of May the plaintiffs approved the plan and specifications, but added to the approval these words, to wit: “ On condition that the private sewer from said houses to the One Hundred'and Twenty-second street sewer be laid under the roadway of the avenue and not through the yards or cellars of the houses.” The defendant sought in various ways to have a modification of this proviso made so as to allow him to make the connection as stated in his plan, namely, to run the connection from the houses through and under the yards in the rear, which was steadily refused. But, nevertheless, he persisted and made the connection in violation of the condition to which reference has already been made, and did not cause the sewer from the houses to be laid under the roadway of the avenue. The reason for this consists chiefly in the expense which would be attendant upon it, coupled, it is true, with an assertion that it was not absolutely necessary for the preservation of the health of the city to do it in the manner directed by the plaintiffs.

The act of 1881 confers upon the board of health of the cities of New York and Brooklyn power to determine the manner in which the drainage and plumbing of buildings erected in either of those cities shall be carried out. Its language is that the “ drainage and plumbing of all buildings, both public and private, hereafter erected in the city of New York or in the city of Brooklyn, shall be executed in accordance with plans previously approved in writing by the board of health of the said health departments of said cities, respectively.”

And by the fifth section it is provided that any court of record shall have power, at any time after the service of notice of the violation of any of the provisions of this act, and upon the affadavit of one of the commissioners of health of the said cities, to restrain, by injunction order, the further progress of any violation named in the act, or of any work upon or about the building or premises upon which the violation exists. And these provisions were substantially re-enacted in what is known as the Consolidation Act. (Laws of 1882, chap. 410, §§ 531 and 1089.)

If the defendant felt aggrieved by the determination of the board of health to have the drainage and plumbing of the houses, which he was about to construct, based upon their methods, it was his duty to seek relief from the courts and not to proceed as he did in violation of the rule which they had adopted. The operation of a statute like the one under consideration may act in some cases oppressively by subjecting the party to an expense not absolutely necessary for the preservation of the public health. But the exercise of the power conscientiously by the board of health will, in a large majority of instances, result greatly to the advantage of the health of the city by protecting the inmates of houses from the many ills to which an imperfect system of drainage and plumbing would subject them. The act must be regarded, therefore, as a beneficent one. It is in the nature of a police regulation, which should be enforced not despotically, but firmly and in the spirit in which it was conceived and passed, namely, for the preservation of the health of the city, and particularly of the persons who occupy premises as to which its provisions may be called into requisition. The defendant was in error in making connections, or in the attempt so to do, in violation of the direction given by the plaintiffs, and the judgment pronounced against him in consequence is one that cannot be disturbed. The health department being duly invested with the powers already suggested, and there being nothing presented for our consideration entitling the defendant to a reversal of the judgment, it must be affirmed.

For these reasons the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Beady, J.:

text:
    THE BARRINGTON APARTMENT ASSOCIATION, Respondent, v. HENRI O. WATSON, Appellant, Impleaded with ROBERT E. STEWART and RICHARD A. SAALFIELD.

      Injunction — when granted to restrain a lessee from assigning or subletting, in violation of the covenants of his lease.

    The plaintiff is the owner of an apartment house known as the Barrington, which was constructed mainly for the purpose of occupation by its original projectors. The plaintiff let to the defendant Stewart an apartment by a lease, containing covenants prohibiting the leasing or subleasing of the apartment without the written consent of the plaintiff, and expressly providing that, if consent were given, it should not be deemed a consent to any subsequent assignment, or letting or subletting, but that for each such subsequent assignment or letting, the consent of the plaintiff should be obtained. Stewart, with the consent of the plaintiff, sublet the apartment to the defendant Watson, by an instrument which contained no covenant against assigning or subletting. The defendant Watson threatening to sublet the apartment to one Saalfleld, who was objectionable to the plaintiff, this action was brought to restrain and prevent the execution of the said sublease.

      Held, that an order continuing a temporary injunction granted in the action should be affirmed.
    Appeal by the defendant Watson from an order made by Mr. Justice Lawrence continuing an injunction.
    The plaintiff let to the defendant Stewart an apartment in the apartment house known as the “ Barrington,” in the city of New Tork, for a term of three years from 1st May, 1883, at an annual rent of $1,800. The lease contained the following, among other covenants on the part of the lessee: “ That neither the said premises nor the said lease, nor any part thereof, should be assigned or let or underlet, or used or permitted to be used, for any purpose other than above mentioned, without the written consent of said lessor or its legal representatives, duly executed and proven,” and that “ any consent to an assignment, letting, subletting or use for such other purpose should not be deemed a consent to any subsequent assignment, letting or subletting or use for such other purpose, but that for every such subsequent or successive letting, subletting or use for such other purpose, the express consent in writing of the lessor should be required.”
    Thereafter, in October, 1888, the defendant Stewart, with the plaintiffs consent, sublet the apartment to the defendant Watson by a lease which contained no covenant prohibiting Watson from assigning, letting or subletting the lease, without the consent of the plaintiff. The defendant Watson, thereafter, and immediately before the commencement of this action, threatened, without the plaintiff’s consent, to sublet the apartment to the defendant Saalfield, a person objectionable to the plaintiff. This action was brought, among other things, to restrain the defendant Watson from letting or subletting the apartment without the written consent of the plaintiff. A preliminary injunction so restraining the defendant Watson and also restraining Saalfield from entering into the premises under a lease alleged to have been made to him by Watson was granted. Upon the argument the injunction was continued as to Watson, but dissolved as to Saalfield, who denied that he had any intention of entering the premises and denied that he had any sublease thereof.
    From the order continuing the injunction the defendant Watson appeals.
    The reason for the provision of the lease as to subletting was alleged in the complaint to be as follows: “ That the plaintiff was incorporated mainly for the purpose of constructing apartments to be occupied by its original projectors and stockholders; that the greater number of the apartments in the building, wherein are the premises before mentioned in this complaint, are now occupied by said original projectors and stockholders of the plaintiff corporation, and it is important for the comfort of said projectors and stockholders that no persons should be admitted to the occupation of said premises, other than persons who are thoroughly acceptable in «very respect to the persons already owning or occupying other apartments in the building; that for that reason the agreements before mentioned in the said agreement of lease, requiring the consent of the lessor to any assignment or subletting of lease of premises, were inserted therein, and for the same reason the same clause is inserted in all leases which are made by the plaintiff for any of its apartments in its said building.”

      George R. Forster, for the appellant.

      Albert SUchney, for the respondent.
   Beady, J.:

Under section 604 of the Code of Civil Proceedure, upon the facts presented by the record, the plaintiff was entitled to an injunction restraining the defendant from letting or subletting or assigning any of the leased premises mentioned in the complaint without its written consent.

The premises to which this controversy relates are in the apartment house known as the Barrington, of this city, which is owned by the plaintiff and which was constructed mainly for the purpose of occupation by its original projectors and stockholders. The premises occupied by the appellant were hired by him from Robert E. Stewart, a lessee of the plaintiff. The lease contained covenants prohibitory of the leasing of the premises to another without a written consent, and expressly provided that if consent were given it should not be deemed a consent to any subsequent assignment or letting or subletting, but that every such subsequent or successive letting or subletting must be predicated of the consent of the plaintiff as lessor.

It is conceded by the appellant in his answer that for the reasons therein assigned, he contemplated subletting the premises and without the consent of the plaintiff. The learned justice, in disposing of the motion, expressed himself elaborately and in am opinion which clearly and satisfactorily disposes of the questions involved. His judgment was founded upon a conclusion justified by the evidence submitted to him, that the appellant not having obtained from the plaintiff its consent to subletting the premises occupied by him, his attempt to do s© was a violation, of the covenant. And that conclusion disposes of the whole case.

The learned counsel for the appellant seems to think it was necessary to show the contemplated act, one which would occasion, injury, and that none was shown nor was it demonstrated that irreparable damage would result from the act designed; which was necessary in order to entitle the plaintiff to the injunction sought. This may be regarded as the general rule. (T. and B. R. R. Co. v. B., H. T. and W. R. R. Co., 86 N. Y. 107.) But courts of equity very frequently grant injunctions in the nature of a specific performance to restrain the violation by a tenant of his agreement. (Eden on Injunctions [1st Am. ed,], and eases cited; Tayloi’s Land, and Ten.,, pp. 329, 330.)

The plaintiff having been, as already shown, organized for occupation by the original projectors and stockholders, the propriety of enforcing rules by which the objects of the organization should be carried out is manifest, and for that purpose the covenant against subletting was restrictive; and to allow a violation of it and remit, the plaintiff to- damages would be in effect an invasion and demolition of the design of construction.

Eor these reasons we think the order appealed from should be affirmed.

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

Order affirmed.