author: Daniels, J.

text:
    Anthony J. Drexel et al., v. Eliza A. Pease, Ex’rx, etc., The Mechanics’ National Bank, The National City Bank and Alexander E. Orr, App’lts; George St. Amant, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Joint account—Limitation op rights op individual creditors.
    If two or more persons own and are dealing in merchandise on joint account, although the name of only one of their number openly appears, and all sales and business transactions are conducted solely by him, the claims of his individual creditors will attach only to so much of said merchandise or its proceeds as constitutes his share of the venture or joint enterprise.
    3. Variance.
    An immaterial variance between a pleading and the proof will be disreregarded on appeal, when it appears that all the facts were known, and neither party was misled, and that the pleading might have been properly amended at the trial if a motion to that effect had been made.
    Appeal from a judgment recovered at the special term.

      Horace E. Deming and Emmet R. Olcott, for app’lts; O. J. Wells, for resp’t.
   Daniels, J.

The action was brought by the plaintiffs to establish a lien in their favor, or their right to priority in payment, out of property sent by the defendant St. Amant, and at his instance, from France, to Joseph M. Pease, now deceased, to be sold by him at the city of New York. On the trial, as it was first completed, the right of the plaintiffs to their alleged lien and priority of payment was maintained by the court. And that was affirmed by this general term on appeal. After that affirmance the amount due the plaintiffs was paid out of moneys in the hands of the receiver, appointed in the action. And the plaintiffs were thereby excluded from the residue of the controversy, which has been confined to the defendants themselves.

The Mechanics’ National Bank, and the National City Bank of the city of New York, became creditors of Joseph M. Pease, who was a defendant in the action in the earlier course of its proceedings, obtained attachments against him, and seized, under the same, the property and demands remaining in controversy, as his individual assets. And they recovered judgments against him in their actions and issued executions, under which levies were probably made. The defendant St. Amant asserted a superior title in himself to the property, and upon a motion made for that object, and with the assent of the parties, a receiver was appointed, who obtained possession of so much of this property as was levied upon, and sold the same, and also collected the outstanding debts owing for the alleged sales of other portions of it

The debts for which these banks recovered their judgments were individual liabilities of the defendant Pease alone. And it was objected on behalf of the defendant St. Amant, that they were not entitled to be satisfied out of so much of this consigned property or its proceeds as remained owing to him for his share of the venture, or joint enterprise. And if that were the nature of the dealings between himself and Joseph H. Pease, then the result claimed in this manner would seem to legally follow. For the individual creditors of a partner, or joint owner of property, can levy upon and appropriate to the payment of their debts, by judgments recovered and executions issued against him, no more than his interest in the property. This principle has been already well sustained by the authorities. Wilson v. Conine, 2 Johns,. 280; Kaufman v. Schoeffel, 46 Hun, 571, 576-7; 12 N. Y. State Rep., 695 ; Atkins v. Saxton, 77 N. Y., 195; Trenton Banking Co. v. Duncan, 86 id., 221; Saunders v. Reilly, 105 id., 12, 18 ; 6 N. Y. State Rep., 452.

Whether the property seized was within this principle was not decided by the court on the first part of the trial. But after the evidence then offered had been received it was deemed to best comport with the rights and interests in this manner brought in controversy, that the parties to it should be supplied with the opportunity to produce additional evidence affecting it which might more fully and satisfactorily result in its determination. The agreement under which the property had been consigned by St. Amant and his assignee had been found as a fact by the court. And a reference was directed: “ To ascertain and report first, what particular portion of the merchandise or the proceeds of sale thereof, which came to the possession of the receiver appointed in this action, were received by defendant Pease from the defendant St. Amant under the agreement between them mentioned in said decision; and second, whether the indebtedness for which said defendants, the Mechanics’ National Bank and the National City Bank, have so recovered judgment was an undivided indebtedness of said defendant Pease, or whether it was for advances made upon account of the business conducted as stated in said decision under said agreement between said defendants St Amant and Pease; and if upon said reference it shall be ascertained that it was for an undi« vided indebtedness of said Pease, then whether or not said defendants, the Mechanics’ National Bank and the National City Bank, are, or either of them is, entitled to any lien or claim upon said merchandise or the proceeds thereof.”

No objection was then made by either of the parties to this reference, but its propriety seems to have secured the acquiescence and approval of each of them. But in the argument and points presented by the counsel for the appellants on this appeal from the final judgment confirming the report made by the referee, occasion has been taken, in very uncivil language, to denounce the action of the justice in directing this reference. What has been said on this subject exceeds all bounds of legal propriety, and it fully deserves, and it should receive, as it does, the unqualified censure of this court. That the language was deliberately employed appears by the fact that it has been coolly printed and repeated in the brief, and, therefore, is without even the excuse of animation and excitement. What was directed by the court was deemed to be best to elucidate the merits of the dispute, and no word or act of dissent was expressed, or intimated to it by the counsel then interested in the proceeding, neither was there in the appeal which was afterwards taken from the interlocutory judgment to the general term. After that practical acquiescence in the reference ordered, this conduct on the part of the counsel is extremely unbecoming, and its prevalence requires checking. For in other .cases it has already extended so far as to include the courts of final resort in the state and nation, when their decisions have been encounted as obstacles in the way of successful professional practice. It is a habit unworthy of counsel and should be voluntarily discarded.

Whether this reference was strictly regular is not a matter now requiring consideration for the reason already mentioned, that there was not, when it was directed, the slightest opposition to it by the counsel. Under its authority evidence was taken which, with that then in the case, was considered by the referee, and afterwards by the special term, to warrant the conclusion that the defendant, St. Amant, had maintained a paramount right over that of the banks to the fund in the hands of the receiver.

The foundation of this title was a letter written by the defendant, St. Amant, to and accepted by Joseph M. Pease. This letter stated the terms under which the business of these parties was to be managed and carried on. And as they have been expressed in the letter, they were as follows :

“Your favor of the 5th inst. is duly at hand. I had an interview with the packer (Dumagnou) and owner of the Billett brand, who is willing to give us the monopoly of these sardines, the agreement to be as follows:
“ We to advance eighty per cent of cost of each invoice as they are forwarded from the factories, this advance to be halved by you and L
“ As a basis we take the amounts of 1,500 American quarters and 4,000 cases of 100 low quarters, to be handled during the season, we to have the liberty of stopping shipments and annulling the agreement at any time during the season if we find it unprofitable or have any other good reason.
“Interest to run on the account of six per cent per annum. No commission to be charged by us nor profit to be added by him. You to charge brokerage only wjhen actually paid by him.
“ Goods to be sold from wharf unless some very good reason should exist for doing otherwise.
“Any loss occasioned by failure of your buyers to be supported in thirds, one-third each by you, the owner of the brand and myself.
The total of net proceeds of all accounts sale, compared the total cost, shall determine the profit of the season, which shall be divided in thirds in same manner as stated in previous paragraph. If this should show a loss, this loss is borne by the packer.
“ There are about 500 cases of tins cut to size of old American quarter, which will be sent on first, in order to get as many in as possible under the four cent duty.
“ In studying the foregoing you will see that we are entirely in your hands as to the result, and without my knowledge of your straightforwardness and business integrity through many years, I would never have suggested you to my friend here. I hope to have your early answer and I trust ■ that this will lead to something in a larger business way between us.”

By these terms these parties engaged in a joint enterprise for the purchase, shipment and sale of sardines, and after the re-imbursement of its expenses, and advancements, for the division of its profits in equal thirds between them.- And it is under the agreement, and in his own right, and as assignee of Dumagnou, that St. Amant has been finally held to be entitled to the moneys in the hands of the receiver, which are less than what has been considered to be payable to him out of the proceeds of the sales. This recovery has been objected to as entirely unwarranted by the condition of the pleadings. But the objection does not seem to be well founded. For the answers of the banks, and- of the assignee of Joseph M. Pease, admit that St. Amant claimed this money. They appear, therefore, from their own admissions to have been fully apprised of that fact. And his own answer has set forth the grounds of his claim specially characterizing the business as it was carried on to the time of the failure of Joseph H. Pease, the last of August, 1890. By this answer it has been averred,

“ That between the 1st day of September, 1883, and the 20th day of August, 1884, this defendant was a merchant doing business at the city of Paris, and as such shipped and consigned various lots of goods or merchandise to the defendant, Pease, to be by him sold, and said Pease, acting as selling agent, undertook to sell said goods, and remit the proceeds to the defendant, after deducting his commission as agreed, and such sums as should have been advanced or expended by him on account of said goods.”

It was further set forth that part of the goods belonged to St. Amant, and the residue to Dumagnou, who had assigned his interest to this defendant. It was also alleged that the interest of Pease was limited to a lien for his advances. These, together with other parts of the answer, set forth the facts as there was evidence given tending to prove them. But the legal relations of these parties were more properly designated dealings on their joint account than that of an agency. The facts, however, were essentially as alleged, omitting the designation of Pease as a simple agent. The proof showing that they were jointly interested in the busin^ was accordingly no more than an immaterial variance from t,iie facts mentioned in the answer, which could very properly be disregarded on the trial, or even amended then and there, if the point had been raised by an objection. Code Civil Pro., § 723. This section empowered the court to insert a further allegation material to the case. And that would probably have been done, if the objection now pressed had been raised,by stating that the dealings and business were on joint account for the mutual benefit of these parties. But while the case is replete with objections to evidence, the particular objection that this was not admissible under the answer was not taken. It is not in the case, and, therefore, cannot now 'be raised, and insisted upon. Barnes v. Perine, 2 Kernan, 18; Belknap v. Sealey, 4 id., 143, 148 ; Simmons v. Sisson, 26 N. Y., 264, 271. But even if the objection had been taken, it would have been the duty of the court to disregard it, as the answer was drawn. For it was to be liberally construed under § 519 of the Code of Civil Pro. and the defect disregarded by §539, as long.asitdid not mislead the defendants, and it could not have done so as they were previously aware, as by their answers they appear to have been, that this defendant claimed the property and its proceeds.

The evidence given on the trial, and afterwards upon the hearing before the referee tended to sustain that position. For it was shown that the sardines shipped by the defendant St. Amant or under his directions had been delivered to Pease, and that also was found to be the fact by the interlocutory judgment, and that their business had conformed to the letter accepted for its basis.

The order appointing the receiver was made a part of the evidence on the trial, and, as has been already observed, was consented to by the counsel for the two banks. It created the receivership for this property and its preservation until the rights of the parties to it should be settled in this action. And the receiver was authorized by the order “ to demand, collect, get in, and reduce to possession, any and all indebtedness due for any of the merchandise mentioned and described in said complaint, and in the said schedules annexed to said affidavit of Gustav L. Eiedel, sold and delivered by defendant Pease to the several persons hereinafter mentioned.’’ The complaint referred to this property. And so likewise did the affidavit of Eiedel, to which was added a schedule of the debtors who had purchased portions of it, and containing the amounts owing by them respectively therefor. The same schedule was made a part of the order appointing the receiver. And it was preceded by the statement that “ The said indebtedness, and the several persons who owe the same, are as follows.” And a like reference was made to the goods still on hand.

These were distinct admissions that the debts which were mentioned had been created by sales made of the property placed in the possession of Pease, and that a residue still remained on hand unsold. And the admissions were not reduced in their effect by the other clause in the order, reserving the right of the defendants to deny or put in issue any oi the allegations or statements of fact contained in the affidavit of Riedel, or of the plaintiffs, upon which the application was based for the appointment of the receiver. The controversy, as it was defined by the answers of the banks, related not so much to the identity of the goods, or of the debts owing for them by the customers of Pease, as it did to the priority claimed by St. Amant over the banks and the assignee for the benefit of the creditors.

Pease had carried on the business in his own name and could, without doubt, confer a complete title by his sales upon his purchasers. But that authority afforded no aid to the banks in .their proceedings taken to appropriate the property, and the outstanding debts, to the payment of the individual liability of Pease. In those proceedings they could take only his title and interest, as that existed between himself and St Amant, whose claim under their business arrangement was entitled to priority of settlement. The manner in which the business was carried on by Pease was no more than evidence in favor of the banks and the assignee that he was the owner in fact But it was directly met and avoided, by the admissions of the order and the evidence of Riedel, who was in the store from April until the failure of Pease. He was there as the agent ofiSt. Amant, taking care of his interests, and testified to the goods received, and the sales made of them, and identified them by marks on their packages. His evidence in these respects supplemented that contained in the order, and reasonably well established the amounts and value of goods received by Pease, and the outstanding debts created by their sales. And these defendants gave no evidence whatever tending to create doubt in the correctness of his statements concerning either of these subjects. But the statements were confirmed by the evidence of the receiver showing the goods received by him, and the collection of the identical debts mentioned in the schedules annexed to the affidavit of Riedel and contained in the order appointing the receiver. It certainly is not too much to say of this proof, that it was sufficient to authorize the referee and the court to conclude that all the property here in controversy was received by Pease under their business arrangement, as that was mentioned in the letter of St. Amant, and that the goods on hand, and these outstanding debts, Were controlled by that arrangement. The opinion of the general term, on the decision of the appeal from the interlocutory judgment, has been referred to as inconsistent with this conclusion. But it is not, for what was then being considered was the authority of Pease to confer title on persons dealing with him in the- regular course of this business, where lie did have the power to transfer the title, as that was held both in favor of the plaintiffs and of the National City Bank when the title of the latter to the proceeds of the 107 cases of sardines was sustained. These transactions were within the apparent as well as actual authority of Pease. While the proceedings of the banks to apply the goods and the outstanding debts to his individual indebtedness as clearly transcend it.

The twenty-eight cases of sardines of another than what has "been called the Billett brand, amounting to $767.25, were not included in the referee’s report, nor the judgment entered upon it. 'These cases went to make up the final aggregate mentioned by the receiver and obtained from all his sales and collections, amounting to $24,924.75. While the referee reported in favor of the defendant St. Amant for no more than the sum of $23,630.41, and for that the final judgment was directed and entered. What the referee reported for, was the amount St. Amant was held entitled to receive out of the proceeds of the Billett sardines, they all having been sold by the -receiver, and from the outstanding debts which he had collected. And that decision was warranted by the evidence.

The report does not seem to have exceeded the scope of the reference ordered, in any material respect. Neither does either of the exceptions to it, or to the decisions of the special term or the rulings upon questions of evidence, appear to have been well founded. The attaching creditors of Pease, and his general assignee, are obliged to stand on the liability of Pease to St. Amant in his own right, and as assignee of Dumagnou. That is paramount to the attachments and judgments for the recovery of the individual debts of Pease, and so it is to the latter’s general assignment. And as all the remaining proceeds of the sales and the collections are less than his interest, the judgment should be affirmed, with costs.

Yak Brunt, P. J., and Brady, J., concur.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Charles H. Otis, App’lt, v. Andrew T. Bertholf et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Assignment fob cbeditobs—Mobtgagbs—-Fraud.
    In view of the conflict of decisions on the question and the fact that none are cited from the court of appeals, this court will not go so far as to hold that mortgages or transfers made immediately prior to an assignment for creditors are necessarily illegal without regard to the intent of the assignor.
    Appeal from judgment of special term dismissing the complaint.
    Action to set aside an assignment for creditors and also certain mortgages, or that said mortgages be declared preferences and reduced to the limit of preferences allowed by the statute.
    It appeared that on the business day preceding the execution of the assignment, the assignor executed mortgages to each of his four children to secure moneys claimed to be due to them by reason of his having collected interest on a fund invested by the county treasurer for their benefit. The answers of the defendants denied that said mortgages were made with fraudulent intent or as paid of the same transaction with the assignment.

      Charles G. Dill and Wm. Vanamee, for app’lt; Lewis F. Carr, for resp’ts, Josiah Otis et al.; Daniel Finn, for resp’ts, Bertholf et al.

   Pratt, J.

The trial court refused to find that the mortgages were part of a single scheme of which the assignment was the •completion. There was a refusal to find that the assignor and assignee discussed the matter of the assignment before the mortgages were given. Refusal also to find that there was an attempt to evade the statuta

We cannot say these refusals are contrary to the evidence.

The judgment must, therefore, be affirmed, unless we go so far •as to hold that the transfers complained of were illegal without regard to the intent of the assignor.

The appellant takes this position, and abundant authorities are ■cited in its support. But the cases are not uniform, and none are cited from our highest court.

So much has been written upon the question and the views expressed are so diverse, that it is plain the doubts cannot be solved without the assistance of a higher court

We, therefore, see no advantage in pursuing the discussion, and are of the opinion that the judgment appealed from should be affirmed, without costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


author: Barnard, P. J.

text:
    Charles B. Linton, Pl’ff, v. The Unexcelled Fireworks Co., Def’t.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Contract—Reformation—Mistake.
    Where the original agreement was plain and the writing which was intended to evidence it failed to do so, the rules as to mistake and mutual mistake have no application, but the agreement actually made prevails.
    3. Same.
    _ Plaintiff was employed by defendant at a specified salary, and in addition thereto the net earnings on thirty shares of stock, which were to be delivered to him when the earnings reached their par value. Thereafter a paper was drawn to evidence the agreement, in which the word ‘ ‘ dividends ” was used in place of “ net earnings,” but it was understood that the paper was to change nothing. The dividends were less than the net ■earnings. Held, that the original agreement must prevail; and that plaintiff was entitled to stock on the basis of the net earnings.
    Cross appeals from judgment entered after trial at special term, dismissing the complaint, and also dismissing the counter■claim of defendant.
    Action to reform or set aside a written agreement between the parties and to enforce a prior oral agreement for the employment of plaintiff, by which he was to take a portion of his compensation in stock, and to recover a balance of stock claimed to be due "to him.
    Defendant counterclaimed for stock alleged to have been delivered to plaintiff in excess of what was due under the contract.

      W. J. Gaynor, for pl’ff; Hatch & Warren, for def’t.
   Barnard, P. J.

The material facts in this case are not the subject of dispute. The plaintiff, on the 14th of July, 1884, ■entered into the employment of the defendant. The term was in■definite. The money salary per year was to be $2,000, and in ■addition the net earnings on thirty shares of the capital stock of the defendant These earnings were to be credited to the plaintiff until the earnings should aggregate the par value of the shares, $3,000, when the stock was to be issued to plaintiff. The parties continued under this agreement for three years without any change of its terms. There was a new agreement made to replace it from the 4th of July, 1887. The parties differ in respect to the time when a certain paper intended to evidence the oral agreement was made. It was made and it is quite immaterial when, and it was made solely to evidence the oral agreement.

Mr. Johnson, who drew the agreement, states the time of execution to have been in January, 1886. The plaintiff says it was given in September, 1887, after the agreement had expired by three years’ execution and its replacement by a new agreement. Whenever signed it was dated back to the commencement of that employment. This agreement introduced the word dividends in the place of net earnings. A certificate for twenty-one shares of the stock was given for net earnings of the company in September, 1887, and it is an important fact that the dividends were less than the earnings. The parties both agree that the paper was to change nothing. Mr. Johnson states the oral contract to have been that the stock was to rest on profits “ earned as declared in dividends.” The plaintiff states that the contract as to the stock was to rest on net earnings. Either by mistake or design the word dividends only was used as the basis for stock in the writing. This writing changed nothing and was designed to solely evidence the oral agreement If it failed to do it the agreement really made, and not the mistaken evidence of it, prevails. The authorities cited as to mistake and as to mutual mistake have no place in a case like this where the original agreement was plain and the writing which intended to evidence it failed to do so.

The twenty-one shares of stock were properly issued for a. period ending December, 1886. It is not denied but that the earning for the remainder of the three years was four and a half shares. The present contract entitles the plaintiff to this. It represents the earnings of the company from January, 1887, to July, 1887, when the contract was wholly and entirely terminated by the parties.

If the plaintiff is right in his appeal the defendant is wrong in his claim that four and a half shares of the stock delivered should be returned.

The judgment dismissing the complaint should be reversed and judgment rendered that the plaintiff recover the four and a half shares, with costs.

The judgment against the defendant’s counterclaim should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Dykman, J.

text:
    Hugh Hall, App’lt, v. Christopher G. Littleton, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Judgment—Foreign—Note signed by mark.
    In an action brought upon a Pennsylvania judgment entered upon a. judgment note which was signed with a cross, where the defendant denies the execution of the note, the witness to the signature is dead and there is no direct evidence of its execution, a verdict in favor of the defendant will not be disturbed.
    (Barnard, P. J., dissents.)
    Appeal from judgment in favor of defendant, entered on verdict.
    The action was brought to recover $3,283.69 upon a judgment recovered in the court of common pleas, in Pennsylvania", against the defendant.
    The judgment was on a judgment note alleged to have been given by the defendant, who on the trial below denied that he made the note and alleged that the same was a forgery.
    Under the rulings of the trial court, the case went to the jury with only the evidence of the note with defendant’s mark on it and the signature of a man named John Boyle as witness. While there was on defendant’s side the flat testimony that he never made the note.

      Ayres & Walker (Joseph F. Daly, of counsel), for app’lt; Alfred P. Page, for resp’t.
   Dykman, J.

This action is based upon a judgment recovered against the defendant in the state of Pennsylvania upon a judgment note without the service of process upon the defendant or any appearance by him in the action.

In this action the defendant denied the execution of the note, and that was the question of fact submitted to the jury upon the trial and found in favor of the defendant.

The note was signed by a cross, and the name of John Boyle was signed as a witness, but Boyle was dead at the time of the trial, and there was no direct proof of the execution of the note by the defendant, and he denied the same. Under such proof the verdict cannot be disturbed, and we find no error in the record which would justify a reversal of the judgment

The judgment and order should therefore be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., dissents.


text:
    John H. Van Brunt et al., Appl’ts, v. The Town of Flatbush et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891).

    1. Municipal corporations—Sewers—Flatbush avenue.
    Flatbush avenue must be deemed a city street throughout its whole extent, and may be appropriated as such to any use dictated by the necesities of the people, and hence sewers may be laid in said avenue under Laws 1889. chap. 161, without further compensation to owners of land which was taken for the avenue.
    '2. Constitutional law—Title op local act.
    Chapter 161, Laws 1889. relates to but one subject and that is expressed in the title of the act, which is sufficiently broad to answer the requirements of the constitution.
    Appeal from judgment of special term dismissing the complaint.

      Treadwell Cleveland and William V. Rowe, for app’lts; Wm. J. Gaynor, for resp’ts.
   Dykman, J.

It is the object of this action to obtain a judgment which shall restrain the construction of a sewer in Flatbush avenue where it runs through the lands of the plaintiffs. The-defendants other than the town are the street and sewer commissioners -of the town of Flatbush, and the plaintiffs are the owners, in fee of the land described in the complaint over which Flatbush avenue is constructed, but such ownership is subject and subordinate to the rights of the public in the avenue, and those rights embrace all the purposes to which the avenue may be lawfully appropriated.

The powers and duties of the street and sewer commissioners are specified in chapter 161 of the Laws of 1889, under which they were created. That law contemplated many improvements-in the town of Flatbush through the instrumentality of the commissioners, and among other things they were authorized and required to devise and make a plan for building one or more trunk sewers to take and discharge the sewage matter in such town into-the tide-water.

And for the purpose of building sewers in the town to connect with the trunk sewer or sewers, they may divide the town into as-many districts as they may see fit, and devise a plan for building the sewers in the streets of each district, so as to connect witli such trunk sewer or sewers, and they were required to make and file maps showing such plans, and all sewers provided for other than trunk sewers and surface drains are to be designated as lateral sewers. Section 4.

“And for the purpose of building such trunk and lateral sewers they shall have the right to enter into or upon any street required for such sewers, and there to build and maintain the same. The right hereby given shall be deemed to include the right to acquire the necessary lands and rights to build the trunk and lateral sewers and branches in the said town of Flatbush, and also to build so much of said trunk sewer as may be necessary in the town of Flatlands.” Section 5.

By the provisions of the statute thus extracted the commissioners were clothed with power to design and construct a trunk sewer in Flatbush avenue through the towns of Flatbush and Flatlands to the ocean, and thus they possessed the power and authority to do what they have done in that direction and also what they propose to do, so long as they conduct their operations with proper care and prudence.

It is the claim of the plaintiff in this action, however, that the construction of the sewer is the imposition of an additional burden upon their ultimate fee in the land for which they are entitled to compensation, and, therefore, the building of the sewer through their land is unlawful.

The tenability of the position assumed by the plaintiffs depends upon the character of the avenue. If it be a country highway through a rural district, then the public have in it only the right to pass over its surface, with no right to interfere with the soil except for the reparation of the road itself. Such limitation upon the public right in a country road is based upon the theory of an appropriation of the land for a particular purpose, with no anticipation of any use except for public travel, because the necessities of the public required no other, and none further was deemed to have been anticipated when the land vtas acquired for public use.,

Far other and different, however, are the rights of the public in a street in a populous community. Such a street may be appropriated to any use dictated by the demands of the public, and the extent of the servitude is measured and limited by the necessities of the people. Their rights are co-extensive with their wants.

In respect to the character of Flatbush Avenue we think it must be deemed a city street throughout its whole extent. It commences in the heart of the city of Brooklyn and extends through the towns of Flatbush and Flatlands to the ocean, and it is not divested of its original character when it enters those towns. Their proximity to a large city, and their large population deprives them of the character of a rural community, and the time has gone by when they can lay claim to rurality. All the towns in Kings county have been laid out into streets under legislative authority. The city of Brooklyn is spending out towards the outlying towns. The town of Flatlands is on the confines of a large city and contains a large population, and the time has come when its people require much greater rights in its streets than a mere right of passage over their surface. It must be borne in mind that the portion of Flatbush avenue which is in the town of Flatlands was constructed under chapter 822 of the Laws of 1872, which, made ample provision for compensation for damages resulting to any land owner whose property was taken, and we must assume that compensation was made for all the burdens which might be lawfully imposed upon the land.

Morever, in the very law under which these commissioners are conducting their operations provision is made for the acquisition of the right to construct this sewer in any streets or other lands not belonging to the public, and as Flatbush avenue does belong to the public it seems to follow that no further right is necessary to ]" ustify the construction of the sewer therein.

TJpon this branch of the case our conclusion is that the sewer may be lawfully constructed through the lands of the plaintiffs without further compensation.

In our view the act is not violative of the constitution. Its title is “An act in relation to local improvements in the town of Flatbush and the acquisition of the rights of a plank road company in said town,” and there is no provision in the law which does not relate either to local improvements in the town or the acquisition of the plank road. If it became necessary to extend the sewer beyond the bounds of the town to consummate the improvement, the work relates to local improvement. It was not necessary to specify the different steps to be taken and the different measures to be adopted in making the local improvement. They were but different portions of one general subject, which was expressed in the title of the act. We think the title sufficiently broad to answer the requirements of the constitution. Brewster v. Syracuse, 19 N. Y., 116.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.


text:
    The People, Pl’ffs, v. Thomas Brown, Impl’d, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Bail—Undertaking—Sufficiency.
    An undertaking given upon an arrest is sufficient which recites the arrest of lhe principal and his imprisonment for a crime named and is conditioned that he will appear at the court of sessions and answer said charge.
    3. Same—Legality of preliminary proceedings.
    In an action upon such undertaking the legality of the proceedings preliminary to the arrest is not relevant or material if the arrest was under color of process.
    3. Same—Defense.
    It is no defense to such action that the district attorney told the principal’s counsel that he could go away and that he would send for him when he wanted him.
    Exceptions ordered heard in first instance at general term. This is an action brought to recover the amount of the penalty of an undertaking of bail, upon which undertaking the defendant Thomas Brown was a surety.
    The action was tried at the Richmond county circuit, September 26, 1890.
    The court directed a verdict for the plaintiff for the full amount claimed, to which the defendant excepted. The court then directed exceptions to be heard in the first instance at general term.

      George Gallagher, for def’t; Thomas W. Fitzgerald, dist. att’y, for pl’ffs.
   Barnard, P. J.

A coroner’s found one James McGrloin guilty of manslaughter, and he was arrested by a warrant from the coroner, and on the 7th of February, 1890, while in custody under the coroner’s warrant in the county jail, gave a recognizance before the county judge of Richmond county to appear at the next court of sessions for that county, that being the next court at which a grand jury would attend. This court was held on the 24th of February, 1890, and the grand jury found a bill of indictment against McGrloin for manslaughter in the second degree. The indictment was found on the 27th of February, and on the 1st of March, 1890, McGrloin was called, and did not appear, and the sureties were called to produce McGrloin, and they failed to do so. The undertaking upon the part of the prisoner and his sureties was sufficient in form. It recited the arrest of McGrloin, and his imprisonment for manslaughter in the second degree. The condition was that McGrloin would appear at the court of sessions and answer said charge, and that was the charge in the indictment, not in words, but by description of the offense. The legality of the proceedings preliminary to the arrest were not relevant or material. The arrest was made under color of process, and the defendant accepted the fact, and gave bail to answer before the grand jury. The offer to prove that the district attorney told the counsel for McGHoin that he could go away, and that when he wanted him he would send for him, was no defense. Champlain v. People, 2 N. Y., 82; People v. Stager, 10 Wend., 431.

The judgment should therefore be affirmed, with costs.

Dykhan and Pratt, JJ., concur.


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    In the Matter of the Petition of the Trustees of the Congregational Church & Society of Cutchogue.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Executobs and administbatobs—Payment of legacy.
    In a proceeding to compel payment of a legacy, the administrator’s answer denied the incorporation of petitioner, but did not set forth facts to show the claim to be doubtful, or deny its validity absolutely or upon information and belief. Held, insufficient to oust the surrogate of jurisdiction to order payment.
    Appeal from decree of surrogate directing payment by the administrator to the petitioners of a legacy and property devised to them.

      Jesse L. Case, for app’lt; Timothy M. Griffing, for resp’t.
   Barnard, P. J.

The petitioners ask that Dayton, the administrator of Henry Landon, deceased, pay to them, the Congregational Church & Society of Cutchogue, a legacy and property devised to them by the will of decedent. The petition shows all the necessary facts, and the proofs before the surrogate sustain in every respect the petition. The will and codicil of deceased give such society property, and the administrator admits that he had it Much more than a year had expired since he began his duties under his appointment and the legacy or property had not been paid. The administrator put in an answer and denied the fact of the incorporation of the church and society, but this fact was fully established before the surrogate. The answer does not deny the validity of the claim absolutely or upon information and belief.” It does not set forth facts to show that the claim is doubtful. This the answer must do in order to oust the surrogate of. jurisdiction to order payment. If it be desired to deprive the surrogate of jurisdiction, facts must be set up in the answer so as to render it doubtful as to the petitioner’s claim. Matter of Macaulay, 94 N. Y., 574; Hurlburt v. Durant, 88 .id., 121; Moorhouse v. Hutchinson, 4 Dem., 362.

This answer sets up no facts whatsoever in opposition to the petition. Facts should be set up affirmatively or such a denial made as the case requires should be interposed. Upon the material facts set forth in the petition the proof is abundant, in fnct the witnesses Wickham and Ackerly produced and examined in behalf of the administrators left no reasonable room for doubt as to the fact of the organization and continued existence of the Church Society. The decision and decree of the surrogate should in all things be confirmed, with costs to the petitioners.

Dykmajst and Pratt, JJ., concur.


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    In the Matter of the Estate of Adolphus F. Ockershausen, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Executors and administrators—Contempt.
    Before an executor or administrator can be adjudged guilty of contempt in failing to pay over money as directed by the surrogate, it must be shown that a demand for payment was made, or his absence or concealment or some other reason why a demand would be impossible or difficult.
    2. Same—Defense.
    Where the debt is not fiduciary in its origin and does not rest in tort, inability to pay the sum demanded is an answer to a motion to punish for contempt in not paying.
    Appeal from order of surrogate, adjudging appellant guilty of contempt.
    On petition of the executor of the widow of the deceased, the surrogate on September 10, 1890, made an order requiring the executor of this estate (the appellant) to forthwith pay to petitioner (the respondent) $842.10, the same being the amount apparently due to said petitioner from said executor, for his portion of the loss on real estate incurred by said executor as surviving partner of the firm of Ockershausen Brothers.
    This amount not having been paid, on 20th September, 1890, an order to show cause was issued returnable 24th September, 1890. This was granted on affidavit showing service of order of 10th September, 1890, and affidavit showing non-compliance. Upon the hearing the surrogate adjudged the appellant in contempt, fined him the amount so directed to be paid and costs and directed his commitment until the same was paid. Ho proof was given that any demand for the money was made.

      Charles P. Buckley, for app’lt; Wm. M. Mullen, for resp’t.
   Pratt, J.

The moving papers do not show a demand upon the executor for payment, which has been held to be necessary before a proceeding in contempt can be maintained. McComb v. Weaver, 11 Hun, 271.

There is no allegation showing absence or concealment of. the debtor, or any other reason why a demand would be impossible or difficult.

We see no reason why the general rule requiring a demand should be departed from in this case.

The indebtedness in the present case has none of the features of a tort. It is not for money which the executor has received, and for which he fails to account. It is for a debt alleged to be owing from him to the estate. If the debt is due, and the set-off claimed does not exist, it might support a decree against him upon which an execution could issue.

After the return of the execution if defendant had money in his hands which, after an order duly made, he unjustly refused to apply upon the debt, an order punishing him for contempt may be made. That is not in this proceeding.

The papers show that appellant is insolvent and unable to pay the amount decreed. Where the debt is not fiduciary in its origin, does not rest in tort, inability to pay the sum demanded is an answer to the motion to punish for contempt in not paying.

Order reversed; with costs of both courts to appellant.

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


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    The People ex rel. John Murphy, Resp’t, v. James Howell et al., Trustees, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Veterans—Removal—Bill oe particulars.
    Relitor, an honorably discharged veteran, was removed by the defendants from his position as conductor without a hearing. The return to a mandamus directing his reinstatement stated that he had waived his privilege and had been discharged for good cause. Held, that the particulars of such cause were not in issue and that a bill of particulars thereof was unnecessary; that if he did no,t waive his privilege the best of causes would not justify relator’s removal without a hearing.
    Appeal from order requiring defendants to furnish a bill of particulars of relator’s alleged misconduct.
    Belator, a veteran soldier, was removed from his position as a trainman on the New York & Brooklyn Bridge, without cause or hearing, and civilian employes of like position and employment retained in service.
    On relator’s application an alternative mandamus was allowed against the bridge trustees. Their return thereto sets up a defense in the following language:
    That the relator John Murphy was discharged from the employ of the trustees of the New York & Brooklyn Bridge, October 18, 1889, for conduct prejudicial to discipline and subordination of trainmen employed by the said trustees, and that at the time of such discharge the said relator did not claim to be a veteran or an honorably discharged soldier, sailor or marine of the United States in the late war of the rebellion, and that the fact that relator was such honorably discharged Union soldier of the late war of the rebellion was not at the time of the discharge of the relator known to either of the said defendants, nor did the said relator at the time of his discharge, or at any time pending the same or until long after the same was consummated and the said relator discharged from the employ of the said trustees, make any claim that he was such honorably discharged veteran soldier, sailor or marine of the United States, and that the said relator by such omission to make such claim at the time his discharge was pending to the defendants or either of them waived whatever privilege, right, claim or title he may have had pursuant to the provisions of chap. 119 of the Laws of 1888, were the said claim well founded in fact

      On relator’s motion an order was granted at special term that the bridge trustees furnish a bill of the particulars of such alleged misconduct, or stipulate not to offer evidence of such alleged misconduct at the trial.

      Jas. C. Bergen, for app’lts; Sidney Williams, for resp’t.
   Barnard, P. J.

The relator by statute, having been a soldier in the war of the rebellion and honorably discharged, was entitled to be notified of all charges against him before his removal from the position of conductor on the Brooklyn bridge. Chapter 119, Laws of 1888 ; Brooklyn city charter, chap. 583, Laws of 1888, title 22, § 29 ; chap. 708, Laws of 1887.

Otherwise the right of employment and discharge of employes is given to the trustees. Chap. 300, Laws of 1875.

The relator was discharged without a hearing, and therefore the discharge was illegal unless the relator waived his privilege. The return avers this defense; that the trustees did not know that the relator had been a Union soldier, and that they discharged him for good cause. The particulars of that cause are not an issue in the proceeding. If the trustees discharged him without cause he has no remedy if he waived his privilege as a soldier. If he did not waive it the best of causes to be proven on the trial will not justify the removal without a hearing before the discharge.

The order for a bill of particulars was unnecessary and should be reversed, with costs and disbursements.

Dykman and Pratt, JJ., concur.


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    Abram M. Roos, Resp’t, v. Isaac Lockwood, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Specific performance—When will not be decreed.
    Defendant agreed to convey certain real estate to plaintiff, but bis wife, who had not signed the contract, refused to join in the deed. Held, that this was not a proper case for a decree of specific performance, leaving the dower right outstanding, there being nothing to show that one-third of the purchase money should be rendered worthless to defendant during his wife’s life; but that plaintiff should prove his damages.
    Appeal from judgment decreeing specific performance of a contract for the sale of real estate.

      B. R. Champion, for app’lt; Lewis Hasbrouch (W. F. O’Neill, of counsel), for resp’t.
   Barnard, P. J.

Thedefendant, by an agreement in writing, undertook to give a deed of a hotel property in Orange county to the plaintiff for the sum of $8,500, all to be payable at or before the delivery of the deed. The defendant’s wife refused to join in the deed. The evidence does not show that this refusal by the wife is in any way attributable to the husband. The court ordered a specific performance of the contract, and if the wife persisted in her refusal the plaintiff was permitted to deduct one-third of the purchase money, or if the plaintiff so elected, to leave orie-third of the purchase money on mortgage at five per cent, until payable after the wife’s death, as indemnity against the wife’s right of dower. The power of a court of equity to decree a specific performance in such a case as this cannot be doubted. A contract made by a husband may be enforced against him if the purchaser elects, even if the dower right of the wife be left outstanding.

The present case is not one where such specific performance should be granted. The wife holds an estate which the husband cannot sell, and if he does he subjects himself to an action of damages and also to one for specific performance; but there is nothing in the case which shows that one-third of the purchase money should be rendered valueless to him during his wife’s life. Such an arrangement, moreover, renders the title exceedingly unmerchantable for an indefinite period. Specific performance is not a right absolute under all circumstances. Hubbell v. Von Schoening, 49 N. Y., 326.

The wife has not signed the contract of sale and therefore cannot be compelled to accept in lieu of dower a gross sum, and no greater sum than a gross sum in lieu of dower is proper. Bostwich v. Beach, 103 N. Y., 414; 3 K Y. State Bep., 659.

We think, therefore, that the judgment should'be reversed and a new trial granted to the end that the plaintiff may prove his damages as in an action at law, costs to abide event.

Dykman and Pratt, JJ., concur.'


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    Albert M. Kalbfleisch et al., v. Charles H. Kalbfleisch. In the Matter of Receivership of William Brookfield.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Receiver—Advances—Corporations.
    A receiver who had among the assets stock of a corporation which was in danger of becoming valueless, was authorized by the co irt to make advances to said corporation on the security of its property, the order also directing him to take possession of such property and operate its business. This was done and the loans repaid. Feld, that the order did not in effect appoint a receiver of such corporation; but was merely an authority to make advances and under the circumstances was not improvident.
    Appeal by judgment creditors of the Bushwick Chemical Works from order denying motion to set aside an order made August 6, 1886.
    William Brookfield was the. receiver of the firm of Martin Kalbfleisch’s Sons and as such held, among other assets, stock of the Bushwick Chemical Works. On his petition made in 1886, showing that there was danger of said stock becoming valueless by reason of the failure of funds for the necessary working of said works, the order in question was made authorizing said receiver to expend and lay out from time to time such sums as might be necessary for the continuance of said works, on condition that said company surrendered its property to such receiver, and the order authorized the receiver to take possession and operate such works until the further order of the court.

      C. Bainbridge Smith, for app’lts; A. F. Jenks and Chas. Robinson Smith, for resp’t, Martin Kalbfleisch’s Sons Co.
   Pratt, J.

The appellant contends that the order made August 6, 1886, in effect appointed a receiver of a corporation, and that the court had no jurisdiction to appoint such a receiver.

The answer is that the order did not appoint a receiver, of a corporation or otherwise.

It authorized a receiver, whose appointment is not questioned,, to advance money specified and to which the corporation by its board of trustees afterwards assented.

The loan was made and has been repaid. We are not able to see that it was unwise; so far as we can judge no other course could have been discreetly pursued. And were the wisdom of the order doubtful, the laches of appellants in waiting four years before making complaint would deprive their present application of merit.

We find nothing in the case requiring discussion.

Order affirmed, with costs.

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


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    Joseph Snelling, Resp’t, v. The Brooklyn & New York Ferry Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. NEsrauErraE—Ferries—Contributory.
    Iii an action for injuries to a passenger on a ferry boat alleged to have been caused by a negligent collision of the boat with the dock, the fact that plaintiff md not keep his seat until the boat was safely moored to the dock cannot be regarded as such evidence of negligence on his part as to take the case from the jury.
    2. Same.
    Where it appears that there was no exceptional weather or tide so as to make landing difficult or dangerous, evidence of witnesses who had traveled by the ferry for years that the boat came to the dock with a violence not previously seen by them is sufficient to take the question of defendant’s negligence to the jury.
    Appeal from a judgment in favor of the plaintiff entered on a verdict and an order denying a new trial.
    On the evening of September 8, 1888, the plaintiff, an elderly man of good health and agility, was a passenger on one of the ferry boats of defendant from New York to Brooklyn. When the boat reached the Brooklyn side it crashed, with great violence, against the ferry slip, and the plaintiff, believing from the noise that there had been a collision, arose from his seat and immediately afterwards the boat dashed with equal velocity against the other side of the ferry slip. This shock of the last collision knocked the plaintiff down, throwing him over the sill of the doorway and breaking the bones of his hip, which never afterwards united.

      James & Thomas H. Troy, for app’lt; Charles J. Patterson, for resp’t.
   Pratt, J.

The case presents but two questions, whether plaintiff was guilty of contributory negligence, and whether there was sufficient evidence of defendant’s negligence to carry the case to the jury.

We find no controlling evidence of contributory negligence. The fact that plaintiff did not keep his seat “ till the boat was safely moored to the dock,” cannot be regarded as such evidence of negligence as to take the case from the jury. Their verdict in plaintiff’s favor cannot be interfered with.

We think there was some evidence of defendant’s negligence. ' The witnesses testified that the trip was a quiet one, that there was no exceptional weather or tide as to make landing difficult or dangerous. Several witnesses testified that the boat came to the dock with a violence not previously seen by passengers who had traveled by the ferry for years. Upon that evidence we cannot say the jury rendered an improper verdict.

The charge was as favorable to defendant as it could reasonably be made.

Judgment affirmed, with costs.

Barnard, P. J., and Dykhan, J., concur.


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    William Ziegler, Resp’t, v. Alfred C. Chapin et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Eminent domain—Right to acquire water rights by agreement— Laws 1886, chap. 335.
    By Laws 1886, chap. 335, the city of Brooklyn was authorized to acquire the rights of a wa’er company in the town of New Lots by purchase, and if an agreement could not ba made, then such rights could be acquired by the right of eminent domain within two years, to be held subject to certain mortgages. No proceedings were taken within the said two years, but thereafter an- agreement for the purchase of such rights was entered into. Held, that the power to buy expired with the limitation of two years during which the city had the right to take title by eminent domain.
    Appeal from order restraining defendants, as officers of the city of Brooklyn, from purchasing the property and franchises of the Long Island Water Supply Company for the city of Brooklyn for $1,250,000. The property is located in the twenty-sixth ward, formerly the town of New Lots.

      A. F. Jenks and T. E. Pearsall, for app’lts; W. J. Gaynor, for resp’t.
   Barnard, P. J.

The legislature, by chap. 335, Laws of 1886, annexed New Lots, one of the towns of Kings county, to the city •of Brooklyn. There was a water company in the town of New Lots incorporated under the general law of the state for the purpose of furnishing pure and wholesome water to the authorities and inhabitants of the town. By the annexation act the city assumed the payment of the contract price of the water to be furnished the town under an existing contract. The city was by the act of annexation prohibited from distributing water within the limits of the town until the charter of the water company expired. By the 5th section of the act it was provided as follows:

The mayor, comptroller and auditor of the city of Brooklyn are hereby authorized for and in the name of the city of Brooklyn to purchase the reservoir, well, machinery, pipes, franchises and all other property of said company when and at such price as may be agreed upon by said officers and by the said company, by its board of directors, who are hereby authorized to sell and convey the same to said city, and in case said parties shall be unable to agree upon a price for the purchase and sale of the said property of the said company, then in that case the power to acquire said property, and franchises by the right of eminent domain is hereby expressly delegated to said city of Brooklyn, and the said officers, in the name of, and for said city, within two years hereafter, may proceed to acquire and may acquire all such property by proceedings such as are required for the acquiring of. additional land for railway purposes, by corporations formed under the provisions of chapter 140 of the Laws of 1850. And all such property when thus purchased or acquired shall thereupon become and be a part of the water supply property of said city, but it shall be held subject to two mortgages now on said property, each made to secure the sum of $250,000 and interest.

Mo agreement was made for the purchase of the property within the two years after the passage of the act, and no proceedings were taken within that time to acquire the title to the property rights of the water company within two years after the passage of the annexation act. The mayor, comptroller and auditor have now agreed with the board of directors of the water' company upon a price for the water company’s property.

We think that the power of these officers to buy expired with the limitation of two years during which périod the city had the right to take title by eminent domain. This reading would be in accord with the general course of legislation. The general railroad act provides for an attempt to agree with the owner, and in case of failure to agree that a condemnation can be had, and all condemnations since which have been authorized by the legislature have, so far as possible, been based on this general railroad act. This very section is based upon the general railroad act. If there had been no limitation of the power to condemn, the power to buy would have been continuous and accompanied by a continuous power to condemn. To hold that the power to agree upon a price continued after the power to condemn had expired would subject the city of Brooklyn to perhaps an exorbitant price for the property, as there would be no method by which a disinterested tribunal could be appointed with power to establish a price as between the parties to the purchase. The power to agree upon a price whenever given is expressly followed by the right to condemn, and that is limited by time. Both must fall together. We are strengthened in this view by chapter 583, Laws of 1888. By this act all local and special laws were combined, and a complete system of condemnation of lands and rights for its water supply was given to the city. The commissioners of city works could, with the consent of the common council, buy lands for the purpose, and in case of a failure to agree the right to condemn was given. It is true that the consolidation act was saved by express words from repeal, but that act must necessarily stand as long as the town rights of New Lots were protected by it. There was no intent by saving the consolidation act to retain provisions in it which had become inoperative by lapse of time and that the legislature deemed §5 of the consolidation act as without further force is seen from the substitution of a power to take by condemnation the lands as part of the general city system.

The order should, therefore, be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.


author:
Barnard, P. J.
      Pratt, J.

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    William E. Smith, App’lt, v. The Lehigh Zinc & Iron Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Bab,—Fobmeb action pending—Lease.
    A recovery by lessors in a former action for instalments of rent under a ten-year lease, although appealed from, is conclusive upon the question of the divisibility of the contract, and the pendency of such action is no bar to an action brought by the assignee of the lessors for subsequent instalments.
    Appeal from judgment overruling plaintiff’s demurrer to the fourth subdivision of defendant’s answer.

      L. A. Fuller, for app’lt; Alexander & Green, for resp’t.
   Barnard, P. J.

The defense pleaded in the fourth subdivision of the answer is not good. On the 2d of May, 1883, Charles Bamford and Edwin Bamford leased certain mining property to the defendant. ' The lease was to run ten years. The rent was to be controlled in amount by royalties on the ore removed from or used on the premises. These royalties were to be ascertained for and paid quarter yearljn It was provided that if the royalties fell below $1,000 in any one year the defendant was to nay a sum in addition to the royalties which should make the royalty amount to the sum of $1,000. During the years ending May 2, 1887, 1888, 1889 and 1890, the defendant did not use ores to such an amount that the royalties amounted to $1,000, and in each of these years the defendant has paid nothing, either for royalty or for deficiency up to the $1,000. The plaintiff is the assignee of “the Bamfords and seeks to recover the $4,000 due upon the lease. The defendant, by the fourth defense, avers that the Bamfords commenced an action in the United States circuit court on the 5th of June, 1885, and recovered a judgment for $3,201.58, which is still pending on appeal, and until reversed is a bar to the present claim. It is no bar whatever. The rent reserved was not due when that action was commenced, and if it is reversed it will result in two actions pending for instalments of rent maturing at different times, and when the last instalments sued for were not due when the former action was brought. To make a judgment a bar it must apparently appear by the pleading that the judgment was conclusive in the cause of action. Bell v. Merrifield, 109 N. Y., 202; 14 N. Y. State Rep., 796.

Judgment reversed and "demurrer sustained, with costs to plaintiff of special and general terms.

Pratt, J.

The complaint sets out a lease made in 1883, for ten years, buildings, machinery and a mine, the rent payable in royalties, which were to be not less than $1,000 a yeár, and states that the rent coming due in the years 1887, 1888, 1889 and 1890 is unpaid and claims judgment for $4,000.

For answer defendant pleads that in June, 1885, the lessor begun an action against this defendant “ for the recovery of certain sums of money alleged to be due and owing from defendant under the aforesaid lease; ” that defendant interposed an answer; that a trial was had and judgment recovered against defendant for the sums claimed, which judgment is in full force.

The allegation that the first action was brought in 1885 for moneys then alleged to be due, taken with the allegation that plaintiff recovered in the action, is equivalent to an allegation that the moneys sued for were then in fact due.

That issue must have been determined by the judgment. None of the moneys sued for in the present action became due until 1887. It is thus affirmatively shown by defendant’s answer that they are not the moneys sued for in 1885, or any part thereof.

Bead in connection with the lease, the execution of which is admitted, the answer plainly shows that the recovery in the first action was for one or more instalments of rent due in 1885. It follows that the present action is not brought for the same cause of action as the first, but for subsequent instalments of rent.

It has been held from time immemorial that an instalment of rent can be sued for when it becomes duo; and that recovery in such suit is no bar to an action for subsequent instalments.

We find no language in the lease set forth in the complaint to take this case from the general rule. The $1,000 stipulated annual royalty clearly becomes due at the end of each year. Were it not so expressed it would be implied by law. Were the language ambiguous and open to construction that the debt was payable only at the end of the ten years’ term, we should be concluded from giving it that meaning in this action.

That question was necessarily involved in the first action, must have been determined against defendants there, and that adjudication, like all others there made, is binding here.

Lorillard v. Clyde, 33 N. Y. State Rep., 304, 306, is a distinct authority that where a contract has been once adjudged to be divisible, that construction must be adhered to in subsequent litigations. The fact that the first judgment is appealed from does not affect its conclusive character. Sage v. Harpending, 49 Barb., 166; Re Ludington, 5 Abb. N. C., 326.

It should also be said that the answer does not aver that the present cause of action is identical with the first, nor that both actions are based upon the same breach.

We held in Montrose v. Wanamaker, 32 N. Y. State Rep., 1059 ; 11 N. Y. Supp., 106, that a plea of a former recovery “for an alleged violation of the contract ” was bad; that the pleader should go further and aver either that the recovery was for the same violation, or that the causes of action were identical. That is the rule laid down in Secor v. Sturgis, 16 N. Y., 553, which has not been departed from.

The answer avers that an appeal is pending from the judgment rendered in the first action, and demands that plaintiff be stayed in this action pending that appeal. That judgment established that the lease is valid, and the lessor entitled to the rent reserved; which is not a ground to impede him in its recovery.

The first action was brought by the original lessors; the present is brought by their assignee.

That does not affect the question of res adjudicata. The meaning and construction of the contract was settled in the action between Bamford and defendant. The plaintiff is privy in estate with Bamford, his assignor, and the judgment has the same effect as an estoppel for him or against him that it would have for or against Bamford had he not assigned.

It follows that plaintiff’s demurrer to the defense of “ former recovery ” was well taken. The judgment in favor of defendant must be reversed, the demurrer interposed by plaintiff must be sustained, with costs of general and special terms, to be paid to the plaintiff.

Dykman, J., concurs.


author: Barnard, P. J. Pratt, J.

text:
    Gustav A. Kirchner, App’lt, v. The New Home Sewing Machine Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Release—Does not cover matters not known at time of its execution.
    Plaintiff was engaged in selling defendant’s machines and in other business. A dispute having arisen as to certain moneys which plaintiff claimed the right to withhold, defendant caused his arrest, and to procure his release therefrom plaintiff gave a bill of sale of certain property. He thereafter brought suit for moneys claimed to be due him, whereupon defendant seized all the goods in his store, claiming to do so under the bill of sale and instituted unfounded criminal charges against him. Plaintiff, being unable to resist longer, applied for restoration of his goods and agreed to give a release of his claim for moneys due and also for false imprisonment. The release was general in form. Held, that such release did not cover damages to his property caused by defendant’s neglect thereof, of which plaintiff was ignorant when he executed the release.
    Appeal from judgment entered upon a nonsuit.
    Action to recover for damages to plaintiff’s business and property. The facts sufficiently appear in the opinion.

      M. L. Towns, for app’lt; Lehmaier & Williams (Osborn E. Bright, of counsel), for resp’t.
   Barnard, P. J.

This case should have gone to the jury. The defendant is a manufacturer of sewing machines. The plaintiff sold machines for the defendant. The precise name of the arrangement is not very clear, but whether the plaintiff was a purchaser of the machines or was merely an agent to sell them, it seems clear that the price of the machines was not payable bv plaintiff to defendant until after they were sold. Kirchner hired the store and had property of his own in it. The defendant arrested the plaintiff for misappropriation of moneys 'collected, .and the plaintiff was put in jail. The plaintiff made a bill of sale of his property in the store or of some of it and was released. This bill of sale was given as security for any claim which the defendant might have against the plaintiff. The plaintiff after his release began suit against the defendant to recover $1,500 which he claimed to be due him. If he was right in his claim then the plaintiff has not misappropriated the defendant’s money, for the claim he made was much larger than the amount which the defendant claimed to have been misappropriated. The plaintiff ■commenced proceedings to-punish the defendant for a contempt of court, the particulars of which do not clearly appear.

The defendant then forcibly took possession of the plaintiff’s store under the bill of sale and of all the property in it and kept it some three months. There were other legal proceedings taken in the meanwhile. On the 27th of February, 1888, the plaintiff applied to have his property restored. The defendant agreed to give the store and contents back upon receiving a release of the plaintiff’s claim for the $1,500 and from the action for false imprisonment pending, for there had been arrests made beside the arrest for misappropriation of money. The release drawn was a general release. There were circumstances surrounding the transaction which tended to show duress and oppression and also that it was not intended to cover any right outside of certain specified claims. It did not cover a refusal to give back the property taken from the plaintiff, for that was the sole consideration of the papers whatever was, in fact, intended to be released by it. The complaint alleges that this was not done and that certain property which was delivered back was in an injured condition.

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

Pratt, J.

The plaintiff appeals from a judgment of nonsuit. 'The testimony showed that plaintiff had for some years occupied a shop and store where he was engaged in the business of selling and repairing sewing machines, and where he also carried on other branches of business.

Among other machines he sold those of defendant The retail price was fifty-five dollars, of which twenty dollars went to defendants and the remainder to plaintiff.

The plaintiff testified that he considered the machines his “ after he signed for them,’’ and some support is given to that opinion by the fact that on one occasion defendants sued him and enterpd judgment in their favor “ for sewing machines sold and delivered.”

As early as 1885 a dispute existed between the parties, plaintiff claiming that defendants owed him $1,000 on account. He kept back $604 of money collected, claiming to hold it as an off-set to his claim. Being arrested, he executed to defendants a bill of . sale of eight sewing machines and other property as security for any balance that should be found due them. He was then set free and restored to the possession of his goods. But no accounting took place, and it does not appear that the bill of sale was .again referred to till it was produced on the trial of this action.

In. 1887 plaintiff claimed that the balance due him was as much as $1,500, and brought a suit to enforce his claim. It appears that in the course of that litigation a motion was made to punish defendants for contempt, and a reference to take proofs was pending. While affairs were in that position a conference was had in the office of defendants between its president, city manager and other employes, where it was resolved to eject plaintiff from his store and take and hold possession. That was done by defendants’ agents without legal authority; a policeman attending, as he expressed it, “ to prevent a breach of the peace.”

Numerous witnesses were examined. None of them testify that any claim of right was asserted on the part of defendants or their agents.

After plaintiff was ejected, which required some violence, defendants continued in possession of the store, and, as subsequently appeared, allowed the steam engines and other property to be destroyed by neglect.

The plaintiff then began proceedings against Steele and Irving, agents of defendants, who expelled him from his store, which resulted in a warrant for its restoration.

Before the warrant was obtained, the landlord gave a lease to another agent of defendants, so that possession could not be delivered under the warrant. And various unfounded criminal charges were instituted against plaintiff by the company’s agents, and clearly at the instigation and for the benefit of the company.

The result evidently aimed at by these various proceedings was at last produced, namely, to reduce the plaintiff to such distress that he could no-longer contend against the company, and to compel him to make his peace with them at their terms.

When he applied to them to restore his property, saying he could resist them no longer, they required, as the only conditions, that he execute a release of his claims against the company for malicious prosecution, and of his claim of $1,500. He consented, and the company caused a general release to be prepared, in which was inserted a particular clause and agreement not to interfere with the collection by'the company of the moneys due for machines sold by plaintiff. It contained no other special clause, and in that form it was executed by plaintiff, whereupon defendants directed their agent in charge of the place to deliver possession to the plaintiff, which was done.

An examination then disclosed to plaintiff what he had up to that time been ignorant of, viz.: that his machinery had been damaged by neglect and by the elements, and a large part of his tools and other property, including sixteen machines, and a valuable recipe for decorating tin, removed, inflicting injuries to the amount of several thousand dollars.

Upon proof of these facts at circuit, the judge, being of opinion that the claim was extinguished by the general release, directed a nonsuit, from which an appeal is brought.

There can be no question that the original taking was wrongful. The only suggested" justification was under the “ bill of sale ” executed two years before. Being for certain specific articles, that clearly could give no right to take property not included therein. Nor would that justify the personal assault. A further answer is that it was given as security for any balance that should be found due on an accounting which defendants afterwards refused to permit From the time of such refusal the “bill of sale" could have no effect. Moreover, the judgment against Steele and Irving, agents of defendants, is conclusive evidence in this action that the taking was wrongful. They were acting for the company, for its benefit and in the line of duty. The principal is bound by an adjudication against the agent. Castle v. Noyes, 14 N. Y., 329, 334.

The scope of a release has been well settled. Numerous adjudications are to the effect that the general words will not be allowed to extend the operation of the particular words. This was held so long ago as 2 Rolle’s Abr., 409. It is so stated in 7 Oomyns Dig., marg. p. 235. Release of personal things, 3, 5. Henn v. Hanson, 1 Levinz, 100 ; Lyman v. Clark, 9 Mass., 235; Millar v. Craig, 6 Beavan, 433, are to the same effect.

The rule is the same in law as in equity. If that rule be applied to the present case the release would extinguish only plaintiff’s claim to the money due on machines sold by him.

Another well established rule is that a general release will not be allowed to operate beyond the intention of the releasor.

As to matters not in contemplation the minds of the parties have not met. Kirby v. Taylor, 6 Johns. Ch., 252; Mumford v. Murray, id., 452; Parsons v. Hughes, 9 Paige, 591.

In Post v. Etna Ins. Co., 43 Barb., 353, 371, parol evidence of the previous negotiation was admitted to show what the releasor intended to cut off.

It is also a well settled rule that a release will not cut off rights of which the releasor was ignorant Farewell v. Coker is an ancient case in equity where a release of “all lands under my father’s will ” was held not to cut off lands to which the releasor did not know she was entitled.

Lyall v. Edwards, 6 H. & N., 337, was at law, and a replication that “at the time of the execution of the release the plaintiff did not know of the grievances now sued for,” was held good. Broderick v. Broderick, 1 P. Williams; 240; Pusey v. Desbouvrie, 3 id., 316 ; Ramsden v. Hylton, 2 Vesey, Sr., 305 ; Cholmandeley v. Clinton, 1 Merivale, 223, are to the same effect.

The suggestion that to render a release inoperative the error must be “mutual," is discussed in Welles v. Yates, 44 N. Y., 525, and shown not to apply where one party seeks to use an instrument for a purpose not intended by the maker. Such conduct is declared fraudulent.

The fact that defendant is a corporation does not relieve it from liability for the acts of its agents. Morton v. Met. Ins. Co., 34 Hun, 366.

It was suggested at circuit that as plaintiff knew he had been deprived of his goods by defendants, his ignorance of the fact that they had been 2’emoved or destroyed was not important He did not know the deprivation was permanent. He was not bound to credit defendants with any wrong doing of which he did not know. He had a right to suppose his property would be restored to him and in good order.

It is clear that the plaintiff’s action is not barred for such injuries as he was ignorant of at the time he signed the release. The general terms of that instrument will not be allowed to operate upon any rights of action which are not covered by the particular clause, and were not mentioned in the preliminary discussion.

The judgment must be reversed and a new trial granted. The defendant is not entitled to favor, and the costs of the appeal must be paid by defendant to plaintiff.

Dye han, J., concurs.


text:
    Deborah B. Upton, Adm’rx, Resp’t, v. Edward B. Bartlett et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Master and servant—Negligence—Might watchman.
    Plaintiff's intestate was night watchman on defendants’ enclosed pier, and finding one of the doors open undertook to close it, when a guard rail fell upon him, knocking him into the water, and he subsequently died of pneumonia .caused thereby. Defendants’ foreman had been notified of the dangerous condition of the guard rail two days before. Held, that intestate, in closing the door, was acting within the limits of his duty, and that in the absence of contributory negligence on his part defendants were liable.
    Appeal from judgment in favor of plaintiff, entered on verdict.
    On May 11,1887, William Cf. Upton, the husband of the plaintiff, was in the employment of the defendants at the Anglo-American stores, in Brooklyn. A dock of the defendants was covered with a shed upon the sides of which were openings through which the cargoes of vessels were delivered. In the side of this shed was a large sliding gate about eighteen feet high and weighing about 900 pounds. It was a sliding gate suspended by two wheels. The gate was hung by iron hanger straps to the axis of track wheels which ran upon an iron track. This track was upon the top of a wooden track rail attached to the outer side of the house. Outside of the track wheel and rail was an apron or hood, consisting of short pieces of inch boards nailed to the outer edge of the roof. This apron was still further protected by an outside guard rail to prevent the tackle of ships which were loading at dock from carrying away the apron.
    A boy named Bagnall assisted Upton to close the gate. When the gate was nearly closed it was found that some of the apron boards had got between the gate and the side of the gateway at the top. Bagnall took a crow bar and attempted to lift the gate along, while Upton took a long gas pipe and attempted to pry out the boards, and in trying to pry out the boards he pried out the guard rail outside of the boards, which came down and struck him, knocking him into the water. He was taken out by Mr. Hawkins and sent home in an ambulance. He subsequently died of pneumonia May 29th.

      Defendants’ foreman had been notified two days before that the hood boards were protruding inwards and that the guard rail was loose and dangerous and liable to fall down and knock one overboard and cause damage.

      W. W. Goodrich, for app’lts; Archibald C. Shenstone, for resp’t.
   Pratt, J.

The plaintiff’s intestate was night watchman upon defendants’ enclosed pier. His principal duty was to prevent pilfering by river thieves.

After the work of the day had been completed the deceased came upon the pier to perform his duty as watchman. Finding one of the large doors at the side of the enclosed pier standing open, deceased endeavored to close it, and in that effort met his death.

A recovery in this action is now resisted upon the ground that closing the open door was no part of his duty. His duty was to prevent pilfering, and if closing the open door was a reasonable and proper step in the performance of that duty, he cannot be said to have gone beyond its limits. Had he done less and theft ensued, as would have been probable, he would have justly been suspected of complicity with the thieves.

At request of defendants the court charged the jury that if deceased went beyond the line of his duty in closing the door, the plaintiff could not recover.

As he was lawfully upon the pier, in defendants’ employment and invitation, and was not engaged in an illegal act, it is not easy to see why he was not entitled to be safe so long as he was not guilty of any contributory negligence.

To the doubt expressed in the charge the meagreness of the verdict, may perhaps be attributed.

We see no evidence of contributory negligence.

The notice of the defect given to the foreman of defendants was sufficient to charge them with responsibility.

Judgment affirmed, with costs.

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


text:
    Thomas Watts, Rec’r, Resp’t, v. Franklin A. Wilcox et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Fbaudulent conveyance—Pabties.
    Where there is a common plan for the commission of a fraud between several persons and in pursuance of such common plan certain of such persons take deeds in severalty, all the parties to the plan are proper parties to an action to set aside such deeds.
    Appeal from order overruling demurrers to the complaint.

      Bacon & Merritt, for app’lts; W. F. O'Neil, for resp’t.
   Barnard, P. J.

The complaint states that the defendant, Horatio R. Wilcox, was a large stockholder in the Middletown National Bank. That the bank failed and an assessment was made of one-hundred per cent on his stock to pay debts and liabilities. That Wilcox failed to pay and that the receiver of the bank sued him and obtained a judgment against him and that the plaintiff is the receiver appointed upon proceedings in that action. The complaint then avers that Horatio E. Wilcox and the other defendants formed a plan by which nearly all of the property real and personal of the judgment debtor should be put “ out of his hands.” That a part of the scheme was through a judgment of the court by which the heirs of Henry Kinsley, Sr., were to establish large claims against Horatio E. Wilcox as administrator of that estate. That these claims were wholly without foundation because the estate had been fully administered. That the judgment established these pretended claims and that Horatio E. Wilcox made individual and several conveyances to the parties. That all the parties to the judgment knew the apparent judgment debtor was stripping himself of his property to avoid the bank debt. The complaint further avers that the debtor assigned,with intent to cheat and without consideration, certain property to bis daughter Mrs. Slauson. That the deed was put on record without delivery and without the knowledge of Mrs. Slauson. •

The defendants Franklin A. Wilcox, Sarah M. Wilcox, Henry K. Wilcox and Olivia Slauson demur separately. The demurring parties are all necessary. They all formed the design of taking the debtor’s property, and the defendants Wilcox did take it under and in pursuance of the plan formed. They each had no claim. Mrs. Slauson was a party to the design but she got nothing but a naked title, which was put on record so as apparently to vest a title in her. The court in this action cannot set aside this conveyance without bringing in Mrs. Slauson. The complaint goes much farther as to her. She agreed to the plan. She knew of the insolvency of the grantor. She agreed with the other defendants, except Ely, to delay the creditors, and if, in pursuance of the scheme, the debtor put property in her name without her knowledge of the transfer being specifically-made to her, she cannot hold the property against the plaintiff as receiver. Where there is a common plan for the commission of a fraud between several, and in pursuance of this common plan individual conspirators take deeds in severalty, all the parties to the plan are proper parties to «an action to undo the wrong accomplished. Fellows v. Fellows, 4 Cow., 682.

In equitable actions all who are in any way interested are proper parties. Haines v. Hollister, 64 N. Y., 1; Henderson v. Henderson, 3 N. Y. State Rep., 197.

The judgment should, therefore, be affirmed, with costs.

Dykmam and Pratt, JJ., concur.


author: Van Brunt, P. J.

text:
    Margaretta H. Paul, App’lt, v. William H. Williams et al., Trustees, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Will—Construction or trust.
    A testator by his will directed his executors and trustees to pay over to certain persons “the sum of two hundred thousand dollars, with interest thereon from the time of my decease,” to be held by them in trust for his daughter, “ and the interest or income thereof to he paid over by them to <my said daughter semi-annually, as the same shall be received by them, as long as she shall live.” Some time elapsed before the executors and trustees of the testator made the payment to the persons named, and they then paid to the latter the principal and also the interest which had accrued on the legacy sines the decease of the testator. Reid, that as to the daughter this interest was principal and that her trustees must hold it as such.
    Appeal from judgment entered at special term after trial by the court without jury.

      F. Rudd, for app’lt; Miron Winslow, for resp’ts.
   Van Brunt, P. J.

This action was brought to obtain a judgment that the defendants, as trustees for the plaintiff under the will of Christopher Meyer, deceased, pay over to the plaintiff some $18,000, being a part of the sum of $218,000, which was paid to the defendants as such trustees by the executors of the last will and testament of said Meyer, and claimed to have been in accordance with the provisions of the fourth subdivision of the second paragraph of his will.

This paragraph is as follows:

“4th. I will and direct that my said executors and trustees shall out of the proceeds of my said real and personal estate so devised and bequeathed to them in trust as aforesaid, as soon after my decease as it can conveniently be done, pay over to my son, John C. Meyer, and my friend, William H. Williams, of the city of .New York, attorney and counsellor at law, the sum of two hundred thousand dollars, with interest thereon from the date of my decease, to be invested by them in bonds secured by first mortgages on real estate in the city of ¡New York, or in bonds of the United States, or in first mortgage bonds of dividend paying railroads in the United States, to be held in trust by them for the benefit of my daughter Margaretta, and the interest or income thereof to be paid over by them to my said daughter semi-annually as the same shall be received by them as long as she shall live. My said daughter shall have the right to dispose of the said principal sum so devised in trust for her benefit by her last will and testament, but, if she shall fail to make any testamentary disposition of the same during her life-time, then upon her decease the said principal, with any accrued interest thereon not disposed of for her benefit, shall lapse and become a part of my residuary estate, to be disposed of and go as hereinafter provided for the residue and remainder of my estate.”

The testator died in July, 1888, and his will was duly admitted to probate in the orphans court of Middlesex county, ¡New Jersey, and on the 1st of May, 1890, the executors paid to the defendants as trustees for the plaintiff under said will the sum of $218,732.22 being $200,000 with interest from the death of said Meyer. The plaintiff, who is the daughter named in the fourth clause of the will, claims that the defendants should pay to her the amount of said interest, and this is the sole question involved in this appeal.

It is urged upon her behalf that it was the intention of the testator to secure to her the interest upon such legacy prior to the time when it should be paid over to the trustees, and that it was the testator’s desire thus to provide for the wants of his daughter for the period between the time of his decease and the time when the trustees named in the will could claim from the executors the payment of the funds which constituted the trust.

We fail to see how such an interpretation can be placed upon the language of the will under consideration. Had the testator set aside particular securities which were yielding an income, which should constitute her portion which was to be transferred to trustees in the course of administration then perhaps a different rule might prevail, because there would be no intention of the testator under such circumstances that the income of the securities should remain in his estate, the principal being transferred to the trustees; and it might be fair to assume, the provision being made by the father for the support of his daughter, that it was his intention that the income should belong to his daughter from the time of his death.

But in the will under consideration the circumstances are entirely different A specific sum with interest is devised to the trustees which they are to hold and invest, the income of which is to be paid over by them to his daughter semi-annually as the same shall be received by them as long as she shall live. It was entirely unimportant as to what income the estate might derive from its funds during the period they were required to be held by the executors. They were bound to pay over to the trustees of the daughter the $200,000 and interest, and consequently the interest became that which was allowed by law, no less and no greater, entirely independent of the income of the estate. There was no particular property out of which this $200,000 and interest was to be taken. It was to be paid over in money taken out of the estate and applied to the uses of the trust created in that provision of the will.

The executors had no power under the will to páy the interest to the daughter. They are directed to pay it to the trustees, and the trustees are directed to invest the $200,000 and interest received from the executors, and pay the income thereof to the daughter. There is no authority upon the part of the trustees to pay any portion of the sum which they received from the executors to the daughter. It is only the income to be derived from the investment thereof by them that they are authorized to pay.

It seems to be apparent that the only interest which was to be paid over to the daughter during her lifetime was the interest or income which might be derived from the investment of the money received by the trustees from the executors. There is nothing in the other portions of the will which indicate any different intent upon the part of the testator; and it would be distorting plain and unambiguous language to. attempt to ascribe to the testator an intention which he has nowhere even hinted at, much less attempted to express. In view of the fact that the contingency of the lapse of time between his death and the payment of the legacy to the trustees was manifestly in the mind of the testator, and he has provided distinctly and without ambiguity for the result arising from such a lapse, we cannot say that his intention was different from that which he has expressed.

The judgment should, therefore, be affirmed, with costs.

Daniels and O’Brien, JJ., concur.