text:
    EDMUND COFFIN, Jr., Appellant, v. WILLIAM L. LESSTER and THOMAS C. HIGGINS, Respondents.

      iService of summons by publication — when the order directing it may be subsequently-amended — service of a summons upon an absent resident in an action of foreclosure— Code of Civil Procedure, sea. 488, sub. 5 — right of the court to resettle finiL. ings after judgment.

    • Where an order directing the service of a summons hy publication, although in fact made hy a justice at chambers, has a caption as though made at a Special Term, the court has power to subsequently amend the order by striking out the caption.
    In an action to foreclose a mortgage an order for the service of the summons-upon a resident defendant, who is absent from the State, might, in March, 1878, have been made under subdivision 5 of section 438 of the Code of Civil Procedure, without showing, before such an order could be made, the facts-required to be shown by subdivisions 2, 3 or 4 of the said section.

      The authority to so servo the summons upon a resident in such an action does not violate the provisions of the Constitution.
    After this action had been tried the justice who had presided at the trial filed findings of fact and conclusions of law directing a judgment in favor of the plaintiff. Some days thereafter he granted an order to show cause why the judgment entered thereon should not be vacted and the findings be resettled, and upon the return of such order he vacated the judgment and resettled the findings by leaving the findings of fact as they were, and making the conclusions of law such as to award a judgment to the defendants, upon which decision a final judgment in their favor was granted.

      Meld, that the justice had power to so vacate the judgment and resettle the findings.

      Moekwell v. Oarpenter (35 Hun, 539), MeLean v. Stewart (14 id., 473), distinguished.
    Appeal from a judgment in favor of tlie defendants, entered upon the trial of this action by the court without a jury.

      Ednrnnd Coffin, Jr., appellant, in person.

      George E, Home, for the respondents.
   Brady, J.:

On the 18th of April, 1882, the respondents offered for sale, at public auction in this city, a lot of land ; and at such sale the appellant bought the premises for $5,700, and signed the usual memoran dum at the foot of the terms of sale. He subsequently refused to accept a deed of the premises for reasons assigned, which were as follows:

First, that certain taxes and assessments were unpaid and were liens upon the property ; second, that he was entitled to twenty-seven feet six inches in width, the lot in fact being only twenty-six feet four inches wide) and third, that the defendant’s title to the lot was defective in consequence of the assumed invalidity of an •order, to which particular réference will be subsequently made.

The respondents tendered a proper deed of the lot, offered to abate the price for the four inches alleged to be wanting according to the description originally • given, and also offered to pay the amount of the unpaid taxes and assessments The appellant still refused to complete, whereupon the respondents paid the taxes and assessment, renewed their tender with an offer to rebate for the four inches already mentioned, and again the appellant refused to •complete. He subsequently brought this action to compel the specific performance by tbe respondents, and in answer they sought to compel a specific performance by him.

The chief objection urged against the title was the form of the order made for the service of the summons by publication, the objection resting upon the proposition that it was a Special Term order which could not be made under the provisions of the Code. There is a caption to the order, beginning: “At a Special Term; ” and at the foot of the order : “ Ent. J. B. B.” The order recites, however, that on the summons in the action and the complaint duly verified, which had been filed and which was then presented to the judge granting the order, and on all the proceedings, and on reading and filing affidavits, etc., it is ordered, etc. And it appears by the seventh finding of fact, to which no exception was taken, that it was not granted at the Special Term, but at the private chambers of the judge who signed it. This brings it clearly within the case of Phinney v. Broschell (80 N. Y., 544). But this is not the only answer to the objection. There is still another, namely, that on the 19th of June, 1882, an order was made amending it by striking out the caption and inserting in place thereof “ Supreme Court,. City and County of New York.” This the court had the power to do. (Mojarrieta v. Saenz et al., 80 N. Y., 553.)

The objection to the form of the order, therefore, is of no avail. The affidavits upon which it was granted are also objected to. The provisions of section 438 of the Code, as they existed at the time the order was granted, are in some respects obscure and indefinite. The fifth subdivision, however, provided that where the defendant was a resident of the State or a domestic corporation, and the complaint demanded judgment, that the defendant be excluded from a vested or contingent interest in, or lien upon, some specific real or personal property within the State, an order directing the service of a summons upon the defendant without the State, or by publication, might he made. And section 439 provided that when the application was made for the order the plaintiff should present to the judge a verified complaint showing the cause of action for which the judgment was demanded against the defendant to be served, and proof by affidavit of the additional facts required by section 438. The additional facts must necessarily be understood to be, where there was no charge of concealment, that the defend•ant was without the State and that personal service could not, therefore, be made upon him within it.

The two absent defendants to which the plaintiff’s objection extended at the time the deed was tendered to him, were shown by the affidavit of Mr. Edwards, upon whose testimony the order was granted, to have been, at the then last accounts, in Paris, France ; the statement being predicated of information derived from their mother, given to the affiant at her residence and theirs, No. 31 "West Thirty-fourth street, in the city of New York, who stated that she believed they were still in that city, but was unable to give their address more particularly. This was quite sufficient to warrant the affidavit of publication, for the reason that the action was one contemplated by subdivision 5 of section 438 of the Code, and the defendants were residents of the State, but absent and abroad. The proposition is not warranted that such a procedure is unconstitutional by anything in the cases cited” on that subject by the appellant. Indeed, the most recent case cited by him (Vatable et al. v. N. Y., L. E. and W. R. R. Co., 96 N. Y., 49) distinctly recognizes the doctrine that where property interests -or personal rights are to be affected, actual notice of such adverse proceedings is required, unless there is expressly substituted for it some other kind of notice. And it was said in that case: But there are many cases where notice by publication is the only notice practicable, and hence takes the place and serves the purpose of actual notice.” If it were otherwise it would defeat the administration of justice, because if the defendant were absent and his residence could not be ascertained, although it was perfectly well established that he was out of the jurisdiction of the court, unless the service could be made by publication, there could be no proceeding against him, and he could defy the creditor forever. There is therefore no well founded objection to the sufficiency of the affidavit upon which the order of publication was granted.

It further appears that the learned justice who presided at the trial of this action, having held the cause under advisement, seemingly arrived at the conclusion that the plaintiff was entitled to judgment, and signed and filed the findings of fact and conclusions of law, and judgment was entered upon them after due notice to the defendants. Some days afterward the justice granted an order to show cause why the judgment should not be vacated and the findings resettled, and upon the return of the order vacated the judgment and directed such resettlement, which was made by finding the facts as they were, but making the conclusions of law thereupon as requested by the defendants, and upon this decision the final judgment was entered from which the plaintiff appeals.

The order changing the judgment thus pronounced was made upon the 14th of April, 1884. No appeal was taken from it until the eighteenth of July following, which was more .than sixty days .after it was entered, and it appears that for that reason a motion was made by the defendants to have all that part of the printed case which related to the order just mentioned stricken from it, the disposition of which was held until the argument of the appeal, when both were to be disposed of. It would seem that this motion was properly made and should be granted. But it is not necessary to strike these papers from the record, for the reason that it is quite •clear and beyond all controversy that the learned justice who presided in the court below could correct the judgment by changing ■the conclusions of law, which was done in this case, the conclusions formerly expressed having been clearly made inadvertently.

The cases to which the appellant refers are cases where there was & change of facts and in a mode not authorized by law. In the case of Rockwell v. Carpenter (25 Hun, 529), for example, the learned judge who presided undertook to change the judgment on affidavits asserting an important fact affecting the merits, the change made upon which affected the result financially several hundred dollars. But even in that case there w;as a dissenting opinion by Justice Boardman, who collated the cases affecting the inherent power of the court to correct mistakes, irregularities or omissions due to some inadvertence, or neglect or carelessness of its officers, whenever it was in furtherance of justice and the rights of third parties were not affected thereby. As suggested by that learned justice in relation to the case of McLean v. Stewart (14 Hun, 472), one of the adjudications to which the appellant refers, the change made in the judgment was not justified by any evidence given upon the trial, nor did the judge make any mistake or omission in respect to the facts and law found by him on such evidence when he decided ■ the case

It may be said, in conclusion, that in the case of the New York Ice Company v. North Western Ins. Company of Oswego (23 N. Y., 357), a judgment was corrected by an addition to it of some importance. The court said of the act thus done: “ It is suggested in the opposing papers that the judgment had become perfect, and final before the motion was made. I do not see the force of this suggestion. The judgment was perfect as soon as pronounced and entered. It would become final when the time for appealing should expire ; but there is no pretense that this was ever limited by serving on the plaintiffs the notice required for that purpose.. I think the power of the court to modify or amend the judgment cannot be questioned. * * * At all events, so long as the judgment was subject to an appeal, it was subject to such corrections and modifications as the court which pronounced it might,, in its discretion, think proper to make. The administration of justice would be extremely imperfect if this power did not exist.”

This review embraces all the questions presented to this court for consideration; and as hone of the objections interposed against the performance of the contract by the plaintiff have been sustained, the judgment pronounced against him in this action was correct, and must be affirmed, with costs.

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

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
      THOMAS COCKERILL, Respondent, v. PETER LOONAM, Appellant.

      Mechanics’ liens in New York city — both chapter 379 of 1875 and chapter 486 of 1880 a/i'e in force there.

    Proceedings to acquire and enforce mechanics’ liens upon premises in the city of' New York may be instituted and prosecuted under either chapter 379 of 1875, on chapter 486 of 1880; both laws are in force in that city.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee in an action brought to foreclose a mechanic’s lien upon premises situated in the city of New York.

      William F. McBae, for the appellant.

      William, Hildreth Field, for the respondent.

      This case was decided at the January term, 1885. An application fora' resubmission was granted. It was reargued at the March term, and at the May term a second opinion was delivered by Judge Brady.

        No reply is necessary when a claim, on the part of a defendant, is set up simply as a defense and not as a counter-claim — when the General Term has no right to compel the respondent to consent to a reduction of the amount of his judgment.

      In this opinion Judge Brady says:
      “In this case the views heretofore expressed in relation to the validity of the lien are reiterated. The question presented on that subject was carefully examined and the conclusions arrived at stated. Nothing has occurred calling for a change.
      “ When this appeal was heretofore disposed of, it was upon the belief arising from the incidents of the argument that the only contention was the one stated; but the appellants asserting this view to be erroneous, a reargument was ordered'. The additional points must, therefore, he considered. The defendant Loonarn asserts that the plaintiff did not perform his contract, but wrongfully refused to do so in consequence of which damage was sustained to the extent of $850, that sum having been spent to complete the work undertaken. There was an allegation to this effect in the answer of defendant Loonarn, but the defense thus stated was not set up as a counter-claim, the defendant averring the intention to recoup the amount stated against any liability that might be proved against him. No reply was necessary therefore.” (Equitable Life Ass. Soc. v. Cuyler, 75 N. Y., 511.)
      After examining the evidence and reaching the conclusion that the referee erred in refusing to allow the defendant to deduct the damages occasioned by the plaintiff’s breach of contract, the judge said:
      “The judgment might be reduced to $997.75 and affirmed for that sum, the plaintiff consenting, if the rule which formerly prevailed still held its place, but it does not.
      “ The recent cases of Whitehead v. Kennedy (69 N. Y., 462) and Lyddy v. Chamberlain (98 N. Y., 677), deprive the General Term of this power except where one item among others is rejected as not having been sustained by evidence; and can be cut out and so separated as not to infringe upon the sum allowed for others. That cannot be done in this case. There are numerous items embraced; in the charge for extra w'ork and the deduction suggested relates to them all.
      “The judgment, therefore, must be reversed and a new trial ordered, with costs to the appellant to abide the event.
      “Davis, P. J., and Daniels, J., concurred.”

   Brady, J.:

The question presented in this case is, whether the lien filed by the plaintiff is valid under the statute in such cases made and provided. The appellant predicates his appeal on the contention that the plaintiff proceeded under chapter 379 of the act of 1875, and that being a sub-contractor he was obliged to file his claim within thirty days after the completion of the work or the furnishing of the materials for which the lien is claimed, urging that no work was done by him and no materials furnished within thirty days preceding the filing of his lien. The plaintiff, however, insists that his lien was filed under the act of 1880, chapter 486, which permits the filing of a lien at any time within thirty days after the completion of the building towards the erection of which the materials were furnished.

In response to this proposition the appellant contends that the Court of Appeals have decided that the act of 1880 does not apply to this city, citing the case of McKenna v. Edmundstone (91 N. Y., 231) as an adjudication upon that subject; also Hickey v. Schwab (Daily Reg., Sept. 16, 1882), a Special Term case in the Court of Common Pleas, and Keogh v. Main (N. Y. Week. Dig., No. 19, p. 338). In the case of McKenna v. Edmundstone (supra) the Court of Appeals is understood to have declared that the' act of' 1880 was in force and applicable to the city of New York as well as the act of 1875, which was not repealed by it. It must be noted here that Keogh v. Main decided only that the act of 1875 was not repealed, and the case of Hickey v. Schwab (supra) was decided before McKenna v. Edmundstone, namely, in September, 1882, the latter case having been decided in January, 1883. The Court of Appeals distinctly state in that case that the statute of 1880 was a general one. They said further that the statute of 1875 related exclusively to the city and county of New York; that the statute of 1880 related to all the cities of the State, and that while the city of New York, in the absence of any other statute on the subject of mechanics’ liens, would be deemed included within its purview, that alone was not sufficient to indicate an intention on the part of the legislature to repeal the act of 1875. They further observed that there was no express repeal of the statute of 1875 in the ■statute of 1880, and that if the former statute was repealed by the latter one, it must be upon the grounds that the two cannot consistently stand together, in which case a repeal by implication is necessarily effected. The two stand together as a necessary result ■of this interpretation, and it follows that the proceeding may be under either of the statutes, and if it conform to either as to the filing of the lien, the lien is valid. No other solution of the question is seen in consequence of the decision of the Court of Appeals in the case of McKenna v. Edmundstone (supra), whatever views might be entertained of it if it were an original, question.

For these reasons it is thought that the referee was right in ■declaring that both the law of 1875 and that of 1880 were in force in this city.

The judgment should be affirmed.

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

Resubmission granted.

       See note on page 858, for decision on resubmission.


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

text:
    In the Matter of the Petition of the NEW YORK CABLE RAILWAY COMPANY.

      Bu/rfaee railways in streets — 7low the refusal of the property owners to consent thereto must le shown —1875, eha/p. 606, see. 4.
    Upon an application, made under chapter 606 of 1875, for an order appointing commissioners to ascertain and report as to whether or not a railway should he constructed upon certain streets in the city of New York, the fact that the consent of the requisite number of property owners could not be obtained was attempted to be shown by the affidavit of one Hughes. He stated in his affidavit that he had been employed by the company to ask for and obtain the consent of the owners of the property bounded on those portions of the streets and avenues upon which it was proposed to construct and operate the railways that the aggregate of the valuations of the property bounded on those portions of the streets and avenues upon which it was proposed to construct the railway was $30,120,125, of which aggregate, property owners representing the sum of $29,887,375 decline to consent to the construction of said railways' through the streets or avenues upon which their property was respectively situated, or such consents could not be obtained by reason of the absence of said owners from the city of New York; that application for such consents. was made diligently and in good faith.

      Held, that the affidavit was defective in that it failed to state any facts which proved that the consent of the property owners could not be obtained.

      Broadway Underground Railway Company (23 Hun, 693} followed.
    Motion on behalf of Christiana M. J. McEnroe and others to-vacate and set aside an order appointing commissioners to ascertain and report whether a railway should be constructed upon certain, streets in the city of New York.

      James A. Deer mg, for. the motion.

      Charles P. Shaw, opposed.
   Daniels, J.:

The company proposing to construct the railways has been organized under chapter 606 of the Laws of 1875, and a variety of objections have been presented to the legality of its organization, and upon these objections the applicants as owners of property fronting on the boulevard have applied to have the order vacated appointing commissioners to report, after a hearing of all parties interested, whether the railways ought to be constructed or operated. This appointment under section four of the act can only be made when-it shall be established, as a matter of fact, that the consent of the owners of one-half in value of the property bounded on that portion of the street upon which it is proposed to construct and operate the railway cannot be obtained, and the only manner in which that fact can regularly be established is by proof furnished to the court in support of the application for the appointment of the commissioners. In compliance with this requirement affidavits were presented on behalf of the company, upon which it was claimed that the fact was established that the consent of such owners could not be obtained. The affidavit so presented for this part of the road is shown in behalf of these applicants to have been in the following form :

“ W.'J. Hughes, being duly sworn, says: That he is over twenty-one years of age, and was employed since June 19, 1884, by the New York Cable Railway Company to ask for and obtain the consent of the owners of the property bounded on those portions of the streets and avenues upon which it is proposed to construct and operate the railways of said company on route No. two, as set forth and described in schedule one,” hereto annexed.

That the aggregate of the valuations of the property bounded on .those portions of the streets and avenues upon which it is proposed .to construct and operate said railways upon said route number two, according to the assessment of "said property for the purposes of taxation in the year 1883, is $30,120,125, of whicii aggregate, property owners representing, according to said assessment, the sum of $29,837,375, decline to consent to the construction of said railways through the streets or avenues upon which their property was respectively situated, or such consents could not be obtained by reason of the absence of said owners from the city of New York. That application for such consents was made diligently and in good faith.

But this affidavit contains no statement whatever that any effort had been made at any time to obtain the consent of the persons owning property fronting upon that part of this street, over which it is proposed to construct and operate a railway. But the general statement has been inserted in the affidavit that the owners decline to consent, or that such consents could not be obtained, by reason of their absence, and that application therefor had been made diligently and in good faith. What was done to obtain the consent of' any one of the owners of property fronting upon the street is not •disclosed, or in any manner set forth, but all that the affidavit contains is general conclusions drawn by the person making it from actual or supposed facts not in any way stated or mentioned. This affidavit consequently shows no compliance with the requirements of the statute, for that clearly contemplates that some application shall be made to the owners of the property fronting upon the street, for their consent, before the court will be authorized to appoint the commissioners. And the affidavit wholly fails to prove that any person has been applied to for the purpose of obtaining the requisite consent. In that respect it was substantially as defective as the affidavits which were held to be insufficient in Matter of Broadway Underground Railway Company (23 Hun, 693).

Beyond this the proceedings for the organization of the company also seem to be defective, in failing to provide a definite plan, or plans, for the construction of the railways. That has been left, to-a large extent, for the company itself to determine, and under that it may select particular locations for a surface railway, and others-for an elevated railway. Neither has been designated nor prescribed with any reasonable degree of precision by the commissioners required to adopt or devise a plan for the construction of the railway under the provisions of the statute. ■

Upon these grounds the applicants are entitled to have so much-of the order made for the appointment of commissioners as includes the boulevard vacated and set aside, and an order to that, effect should be entered.

Davis, P. J.:

I concur on the first ground considered by my brother Daniels-Á similar question was raised in relation to the first application to-this court of. the Broadway Surface Railroad Company, and the court held in substance that such a general statement was not a compliance with the requirements of the statute. The court must have facts before it, and not the mere conclusions of interested parties or their employees. If this question had been raised on the application, or had the attention of the court been called to the form, the applicant would have been required to present proper proofs of the requisite facts.

Brady, J., concurred.

Order appointing commissioners, so far as it includes the boulevard, vacated and set aside.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ADON SMITH, Respondent, v. THOMAS B. ASTEN and Others, Commissioners of Taxes and Assessments of the City and County of New York, and the BOARD OF ALDERMEN OF THE CITY OF NEW YORK, Appellants.

      Assessment for personal property — a committee of a lunatie is a trustee wifíiin Section 5 of 2 Bevised Statutes (1th ed.), 989.
    By an order of tbe Supreme Court, made and entered in Madison county, the relator, a resident of the city of New York, was appointed the committee and awarded the care and custody of the person and the possession, care and management of the real and personal estate of Sidney Smith, a lunatic, residing in Madison county. -

      Held, that the personal estate of the lunatic was in the possession or control of the relator, as a “trustee,” within the meaning of that term as used in section 5 of 2 Bevised Statutes (7th ed.), 989; and that he was properly assessed by the tax commissioners of the city of Flew York for the amount thereof.
    Appeal from an order made at a Special Term, canceling an assessment.

      Albert L. Cole, for the appellants.

      William Mm, for the respondent.
   Brady, J.:

By an order of this court, entered in Madison county, the relator, who resides in this county, was appointed, the committee and awarded the care and custody of the person, and the possession, care and management of the real and personal estate of Sidney Smith, a lunatic residing in Madison county. Within the proper period the deputy tax commissioner, charged with that duty, assessed the relator with respect to the personal property held by him as such committee, in the sum of $160,000. Subsequently the relator ■made application to the commissioners of taxes and assessments to* • have the assessment canceled. The application was denied and the assessment confirmed. Subsequently a writ of certiorari was issued to review the action of the commissioners in imposing the assessment in question, which culminated in an order canceling the assessment. The assessment was made under the provisions of the Kevised Statutes, which are as follows :

“ Sec. 5. Every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate •owned by him, including all personal estate in his possession or under his control as agent, trustee, guardian, executor or administrator, and in no case shall property so held under either of those trusts be assessed against any other person.” (2 B. S. [7th ed.], 989.)

“Sec. 10. "Where a person is assessed as trustee, guardian, executor or administrator, he shall be assessed as such, with the addition to his name of his representative chai’acter, and such assessment shall be carried out in a separate line from his individual assessment, and he shall be assessed for the * * * personal property held by him in such representative character, deducting from such personal property the just debts due from him in such representative character.” (2 B. S. [7th ed.], 991.)

And it is quite apparent that if the relator, as a committee, is a trustee within the purview of these provisions, the propriety of the assessment is manifest. The jurisdiction of this court extends to the custody and care of the property of lunatics, but it must be exercised through a committee. When the relator was appointed he became the representative of the estate and person of the lunatic, empowered to maintain an action or special proceeding in his own name on behalf of the lunatic or his estate. And it has been held not only that the committee has the legal title to the personal property of the lunatic, but that he is, like the trustee of an insolvent debtor, holding the estate in trust under the direction of this court, and further, that he is the trustee of an express trust. (Pickersgill v. Read, 5 Hun, 170; Ortley and Baker, Committee, v. Messere, 7 Johns. Ch., 139; Person v. Warren, 14 Barb., 499.) The last case cited, in which it was held that the committee of the lunatic was the trustee of an express trust, was quoted approvingly in Thomas v. Bennett (56 Barb., 201) and Fields v. Fowler (2 Hun, 401).

The Bevised Statutes, however, do not require that the person assessed should have the legal title to the property in regard to which the assessment is imposed. All that is required is that he shall have possession and control as trustee. The contention that the court being the trustee, the committee is only the representative ■of the court and therefore the fund in custodia legis and unassessable, is not supported by any of the adjudications.

In the Matter of Kellinger (9 Paige Ch., 62), to which rhe .respondent refers, the chancellor, in the course of the opinion delivered by him, speaking of the section of the Revised Statutes quoted, said : “ This section makes the trustee of property, who has .the possession or control of it as such trustee, the owner thereof for the purposes of taxation. And such property is to be taxed where such owner resides, without reference to the actual location of the property itself.” And further: “To protect the real owner or ■cestui que trust from double taxation, the same section also provides that in no case shall property so held, under either of the trusts therein mentioned, be assessed against any other person.”

The taxation of this personal property, therefore, against the ■relator, as the trustee of the estate of the lunatic, cannot prejudice the latter, for the reason that but one assessment can be imposed by the express terms of the statute. It is true that the chancellor held that the assistant registers and clerks of the Court' of Chancery were not liable to be assessed as trustee for the funds and securities ■belonging to the suitors in that court standing in the names of such officers, declaring that where moneys were deposited in court or securities taken for the same in the names of any of the officers of the court in their official characters, the owners of such fund or securities were liable to be assessed and taxed at the places of their residence upon the samé as a part of their personal ■estate. But the propriety of following out the language of the statute under consideration was not questioned in that case, and ihe reason of the result declared seems to have been that the Court of Chancery could not be considered as a person holding :and owning property as a. trustee, and having a legal residence in a particular town or ward so as to authorize the imposition of a tax upon the court under the statute.

If it should be held that the committee of a lunatic is an officer of the court, and the personal estate which he holds by virtue of his office is non-assessable, the estate would, though it might be enjoyed by the lunatic, be free from the burdens which the statutes in reference to taxes and assessments were designated to place upon all estates of that description. This was the intention of the legislature, and hence the use of terms in the statute sufficiently broad' to comprehend all of the legal relations of agent, trustee, guardian, executor or administrator, and hence, also, the provision that when either of these trusts Avas assessed the property embraced within them should not be against any other person, thus protecting thecestui que trust.

For these reasons it is thought that the order appealed from was-erroneous and should be reversed, with costs.

Daniels, J., concurred.

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

Order reversed, with costs.


text:
    THE MERCHANTS’ LOAN AND TRUST COMPANY, Appellant, v. HENRY CLAIR, Respondent.

      Practice — an action must be brought by the real party in interest — Code of Civil P'oced/u/re, see. 449 — in enforcing claims in this State a foreign creditor must follow the lex fori.
    This action was brought by the plaintiff upon a promissory note made by the defendant to the order of and indorsed by one Terhune. The plaintiff was-incorporated by a special act of the legislature of New Jersey. In 1877, on the petition of a stockholder and creditor, a receiver of its property was-appointed, under a statute of that State which declares that when any corporation shall be dissolved the chancellor may appoint a receiver to take charge of the estate and effects of the corporation, and collect its debt's and property due and belonging to it, with power to prosecute and defend, in the name of the corporation or otherwise, all such suits as may be necessary and proper for that purpose.

      Held, that the complaint was properly dismissed upon the ground that the action was not prosecuted by the receiver, the real party in interest, as required by section 449 of the Code of Civil Procedure.
    That the New Jersey statute, authorizing the receiver to bring an action in the-name of the corporation, had no extra-territorial force.
    Appeal from a judgment, entered upon the dismissal of tüe complaint at circuit.

      John A. Mayes, for the appellant.

      Delos McCurdy, for the respondent.
   Brady, J.:

It appears from the record that the plaintiff was duly incorporated! as a banking institution by a special act of the legislature of the State of New Jersey; but in July, 1877, on the petition of a stockholder and creditor an order was granted appointing Joseph C. Todd receiver of the property of the company, and on the twenty-sixth of October following, a further order was made appointing Edward T. Bell such receiver in place of the former appointee. This action was brought, as will have been seen, in the name of the corporation upon a note of the defendant payable to the order of and indorsed by one P. H. Terhune. The complaint was verified by the receiver. The answer set up, among other things, that the plaintiff was not the lawful owner and holder of the note and had no right to sue; and further, that there was not at the time of the-commencement of this action any such corporation as the Merchants’' Loan and Trust Company named as plaintiff herein. Upon the-trial the act of incorporation, the note and the order appointing the-receiver, were introduced in evidence, and the complaint was dismissed upon the motion of the defendant’s counsel, the grounds upon which the motion rested not appearing, however, in the case. It is insisted that the plaintiff is not the party in interest, and that the action cannot be maintained under the provisions of the Codeof Civil Procedure contained in section 449, which declare that every action must be prosecuted in the name of the real party in interest, with certain exceptions, which do not include the plaintiff.

The statute of New Jersey under which the receiver already mentioned was appointed will be found in the revision of 1877, at page 187. -And it is declared that when any corporation shall be-dissolved in any manner whatever, the chancellor may appoint a receiver to take charge of the estate and effects of the corporation,, and collect its debts and property due and belonging to it, with power to prosecute and defend, in the name of the corporation or otherwise, all such suits as may be necessary and proper for that purpose. The right to appoint the receiver, therefore, rests upon the dissolution of the company, and its dissolution, of course, disposes of it as a corporation, and the receiver succeeds to the title .to all its property which is held for the benefit of its creditors. His right to sue in the courts of this State is settled, not only under the provisions of the Code referred to, but according to adjudications made in the State. (Barclay v. Quicksilver Mining Co., 6 Lans., 25; Peterson v. Chemical Bank, 32 N. Y., 43.) The object of the provision of the Code under consideration seems to have been •to give full effect to transfers, so that the transferee or assignee can maintain an action in his own name, being the party in interest; and when the transfer is made the party becomes possessed of the legal title and may maintain the action. (Cummings v. Morris, 25 N. Y., 627; Hastings v. McKinley, 1 E. D. Smith, 273; Hays v. Hathorn, 74 N. Y., 486.)

The statute of New Jersey authorizing the receiver to bring an .action in his own name or otherwise has no extra territorial force. The lex fori governs as to the manner of commencing actions, and a claim presented by a foreign creditor to our courts for consideration must be prosecuted in the name of the real party in interest, for the reason that our statute so declares, its language being every action must be prosecuted in the name of the party in interest.”

For these reasons, it is thought, whatever rule may prevail on the subject in the State of New Jersey, the case was properly disposed of in the court below, and the judgment should be affirmed, with costs.

Daniels, J., concurred.

Present — Brady and Daniels, JJ.

Judgment affirmed, with costs.


author: Brady, J. :

text:
    JOHN McCLAVE and Others, Respondents, v. JOHN B. THOMPSON and BENJAMIN E. SMITH, Appellants, Impleaded, etc.

      Liability of trustees of a corporation creating debts beyond, the amount of the capital stock — 1875, chap. 611, sec. 22 — when debts to trustees a/i'e not to be treated as ■ liabilities.

    The individual liability imposed by section 22 of chapter 611 of 1875 upon the directors of a corporation, by -whom an indebtedness exceeding the amount of its capital stock is created, is joint and not several, and to an action brought by a creditor to enforce the liability thereby created, all the directors who are liable must be made parties.
    In determining the amount of the liabilities of the company, to ascertain whether or not they exceed the amount of the capital stock, a judgment recoveredagainst the company by one of its directors for money advanced by him to it, which judgment has been subsequently assigned by him to a third person, cannot be treated as one of such liabilities.

      Masterly v. Ba/rber (65 N. Y., 255), Knox v. Baldwin (80 id., 610) followed.
    Appeal by the defendants Thompson and Smith from an interlocutory decree, overruling a demurrer to the complaint.

      Lewis Sanders, for the appellants.

      James W. Perry, for the respondents.
   Brady, J. :

■ The plaintiffs are creditors in severalty of the Rockaway Beach Improvement Company (Limited), but have united in an action to enforce a penalty imposed by the statute in reference to corporations kindred to the one named. The twenty-second section of chapter 611 of the Laws of 1875 provides that “if the indebtedness of any such corporation shall at any time exceed the amount of its capital stock, the directors of such corporation creating such indebtedness shall be personally individually liable for such excess to the creditors of such corporation.”

The liabilities which are alleged in the complaint amount to the sum of $1,603,213.77. Embraced in this are 700 bonds of the corporation of 81,000 each and a judgment for $325,926.01, predicated of a claim for advances made by the defendant Benjamin E. Smith, which was assigned to one Cochran, a judgment creditor now holding and owning the judgment. If these two items be deducted from the alleged claims the liabilities would be $577,287.76, or less than the capital' stock, and the action cannot be sustained. The bonds of $700,000 must be deducted for the reason assigned by Justice Yan Yorst in the case of Robinson v. Attrill (66 How. Pr., 123), namely, the complaint fails to show that these bonds, or either of them, have been issued by the corporation or have reached the hands of creditors, and for all that appears they may still be in the treasury of the company unissued. The judgment held by •Cochran was alluded to in the opinion given upon an appeal to the General Term of this department from the judgment pronounced in the case just cited. (See MSS. of Beady, J., sub. nom. Robinson v. Thompson, 34 Hun, 634.) It was declared by this court to be very questionable whether the judgment mentioned could be included in the liability authorizing an action under section 22 of the act {supra), because it was founded upon advances made by a co-director. And that doubt was founded upon the decisions in the cases of Easterly v. Barber (65 N. Y., 255) and Knox v. Baldwin (80 id., 610.)

A subsequent examination of this question has dissipated any ■doubt that might have been entertained, and the conclusion arrived at that the judgment cannot be considered as a part of the liability of the company in an action of this character.

The observations made in the case of Knox v. Baldwin (supra), apply to the defendant Smith in reference to the rights of the defendant Thompson, namely: that the defendant Smith is equally charged with the violation of the law in creating the indebtedness in excess of the capital stock contemplated by section 22 (supra), and, therefore, is chargeable with the consequences of such violation He could not be permitted, consequently, to pursue a remedy which, if enforced, would enable him to profit by his own wrong or negligence, and it is equally clear that he could confer, by assignment, no better right than he .had himself. For this reason that judgment cannot he included in the liabilities of the corporation against the defendants.

The insurmountable objection to the validity of the judgment appealed from, however, arises from the legal conclusion sustained by the learned justice in the court below, that the claims are to be established in one action, which requires that all the trustees who are liable shall be defendants. The learned justice said that although the section declared that the directors should be personally and individually liable for the excess of indebtedness over capital, the responsibility was imposed upon all the directors creating the indebtedness, and its object was to provide a fund for the payment of the debt. That the amount if that fund was not always measured by the excess; It was only so much as might be necessary to pay the debts, and each director was chargeable with his proportion of that sum. This was not to be done unless the directors who were liable were all joined in ore action. If each one who created the excess was sued separately, judgment must go against him for all the excess, and the result might be that a fund would be provided many times larger than would be required to pay the debts (to say nothing of the costs which would be recovered against each), and then a court of equity would be called upon to interpose to fix the sum to be paid by each.

As we have seen, the defendants, being the directors, are not liable under this section, for the reason that the judgment in favor of Cochran cannot be included in the amount of the indebtedness ' of the company. If there be any indebtedness which can be enforced, it would be against the defendant Smith who created the liability of the corporation by his advances, and of which the judgment of Cochran is predicate. But to hold him responsible in this •action would be in violation of the result pronounced in the court below, namely, that all the trustees must be joined in order that the responsibility of each shall be determined and a proper distribution of responsibility made by a court of equity having charge of the subject. It is thought that all the trustees must be joined, and in this respect, therefore, the learned justice in the court below was right in his conclusions on principle and authority. The judgment mentioned, however, added to the amount of the bonds, also mentioned, renders the liabilities too small to warrant the action ; and the judgment must, therefore, be reversed, with liberty to the plaintiffs, however, to amend the complaint within twenty days after service of a copy of the order to be entered hereon, and the payment of the costs of the appeal.

Daniels, J., concurred.

Present — Brady and Daniels, JJ.

Judgment reversed, with leave to plaintiffs to amend within twenty days after service of copy of order to be entered hereon, on payment of costs of appeal.


author: Daniels, J.;

text:
    GARRETT C. MOORE and HUGH M. REYNOLDS, Respondents, v. CHARLES F. APPLEBY, Appellant.

      Devise of real estate in trust — the persons holding the estates in remainder must be made pan-ties to an action for partition — when infants an-e not barred from following real estate, after coming of age, by reason of having received the proceed& of the sale thereof on an accounting by an executor before the surrogate.

    A testator, by a codicil, gave that share of his estate, which he had, by his will, given to his son Charles to his son George in trust to collect and receive the rents, issues and profits thereof, and apply the same to the use of Charles for and during his natural life, and upon his death, leaving a lawful child or children, to assign, transfer and convey the said share unto such child or children, their heirs, executors, administrators and assigns, equally to be divided among such children, if more than one; and in case Charles should die without leaving any child or children, then to convey, assign and transfer such shares to the heirs-at-law of Charles.
    The son George individually and as trustee of his brother Charles, brought an action to partition the estate and procured therein an actual partition thereof. To.this action the persons presumptively or actually entitled to the property in remainder were not made parties.

      Held, that they had a vested interest in the property and should have been made parties to the action.
    After the proceedings in partition had been completed the accounts of the execu-> tors were settled before the surrogate, all the persons interested in the estate and in the distribution of its proceeds being made parlies thereto; and the proceeds thereof in the hands of the executors were divided or distributed under a decree of the surrogate made therein.

      Held, that as it appeared that some of the persons 'so interested were infants, and were represented by guardians, and as it was not shown that the money was recen-ed by them or by their guardians, with knowledge of the fact that any portion of it was the proceeds of the property so partitioned, that the said proceeding or decree did not prevent the infants from electing, on attaining their majority, to follow the property itself. (See Mutual Life Ini. Go. v. ScJmaner, post p. 878.1
    That they might so follow the said property without returning the moneys received upon the accounting, provided it was proved that the said moneys were expended for their benefit during their minority.
    Appeal from a judgment recovered on a trial before the court without a jury.

      Arnold II. Wagner, for the appellant.

      William Mitchell, Jr., for the respondents.
   Daniels, J.;

The amount which was recovered by the plaintiffs was the sum of §1,600, advanced to the defendant on a contract for the purchase of a lot of land on the northerly side of Tenth street, in the city of New York, and interest upon that amount and the expenses incurred in the investigation of the title. The defendant tendered a deed of the property at the time mentioned in the agreement, but it was refused, for the reason that the title was considered to be materially defective.

The property consisted of a part of the estate of Gideon Tucker, and by a codicil to his will it was in part devised to his executor in trust for the benefit of the testator’s son Charles. So much of the codicil as made this devise is as follows :

“ All the share, interest and portion of my estate, both real and personal, which is in and by said last will given, devised and bequeathed unto my said son Charles; I do give, devise and bequeath unto my son George W., his heirs, executors, administrators and assigns, upon the following trusts, that is to say, to collect, receive and take unto his possession all personal estate belonging or appertaming to such share, and all the rents, issues -and profits of the real estate, part and parcel of such share of my said soxa Charles, and apply all the rents, profits, interest or income of such share to the use of my said son Charles during his natural life, and1 upon his death, leaving a lawful child or children, to assign, trans^ for and convey the said share, interest or portion of my said estates real and personal, unto such his child or children, their heirs, executors, administrators and assigns, equally to be divided among such children, if more than one ; and in case my said son Charles shall die without leaving any such child or children, then to convey, assign and transfer such share of my said estate to the Iieirs-at-law of my said son Charles.”

After the decease, of the testator, the executor, in his own right and as trustee for his brother Charles, commenced an action to partition the estate of the testator. But neither of the persons presumptively or actually entitled to take the property in remainder, which was devoted to the objects of the trust, was made a party to the suit in partition. ’

This property, with other parcels of the estate, was purchased by the trustee and others, and a subsequent action for its further partition was afterwards brought between them resulting in a partition and division of the property. But in the latter action ■there was the same- omission to make the parties entitled to the land in dispute parties to the action, and it was mainly because of these •omissions that the plaintiffs refused the title which the defendant offered to convey to them in fulfillment of the terms of his agreement.

The persons entitled to the property in remainder were omitted as parties in the partitions under what was supposed at the time to be che effect of the section of the statute relating to uses and trusts, which declared that the whole estate, both in law and equity in the case of an express trust, should vest in the trustee subject only to the execution of the trust. (2 R. S. [6th ed.], 1109, § 73.) This view of this section of the statute entirely overlooked the provision made by the succeeding twenty-fifth section, which declared that every estate and interest not embraced in the trust and not otherwise disposed of, should remain in or revert to the person creating the trust, or his heirs as a legal estate. "What the statute, therefore, designed was, that the trustee in the case of an express trust should be vested with so much of the estate during the continuance of the «trust as should be necessary to maintain and execute it, and subject to that, that the property in remainder should, in the case of a devisé of this nature, devolve upon the persons entitled to take it in remainder. And that was not defeated in this instance by the direction given to the trustee to convey, assign and transfer the estate' on the termination of the trust, for that was not a purpose for which a trust could be created under the provisions of the ■statute. (2 R. S. [6th. ed.], 1106, § 55; Smith v. Platt, MSS. opinion of this court in March, 1885.)

This direction, at ■ most, created only a power over the estate in the trustee; and where such a power may be created, the land, notwithstanding its existence, will descend to the persons entitled to inherit it, subject to the execution of the power. (2 R. S. •[6th ed.], 1109, § 72.)

The extent of the estate vesting in trustees for the execution of an express trust was considered in Embury v. Sheldon (2 Abb. N. C., 404), and it was there determined that they would take no greater title or interest in the estate than that which would be commensurate with the purposes and duration of the trust. And that seems to have been the view of the court in Chism v. Keith (1 Hun, 589). Hnder these provisions of the statute, as they have been construed, the persons entitled to the property in remainder after the decease of the testator’s son Charles, which would terminate the trust estate, had a vested interest in the property, and should have been made parties to the action in partition; and not having been made parties, their interests were not affected by the judgments or by the sale which took place under the first, or the •actual partition made by the authority of the second judgment.

After these proceedings in partition were completed the executor’s accounts were settled before the surrogate, and all persons interested in the estate and the distribution of its proceeds were made parties to that proceeding; and the proceeds of this property in the hands of the executor were divided and distributed between these persons under the decree of the surrogate. And reliance has been placed upon these proceedings as an estoppel precluding the persons who were interested in this property in remainder from afterwards claiming any interest whatever in the land itself. But some of the persons who were so interested were infants, and appeared in the proceedings only by guardians appointed for them by the surrogate; and they cannot be prevented from claiming their interest in the property itself by reason of this division and distribution of the proceeds of the estate. It has not been shown that the money was received, either by them or their guardians, with knowledge of the fact that any portion of it was the proceeds of this property. And no intention can be inferred, therefore, from the facts that they intended to receive the proceeds in the place of their interests in the property, an! thereby affirm the sale-made of it under the 'proceedings in .partition. The infants still remain entitled to the interests vested in them in this estate, and may upon attaining their majority elect to follow the property itself. (McCoon v. Smith, 3 Hill, 147.) And that may be done without even returning the moneys received on their account, provided the-same shall prove to have been expended for their benefit during their minorities. (Green v. Green, 7 Hun, 492; affirmed, 69 N. Y., 553 )

The proceeding in partition under which the sale took place was •wholly inoperative as to the persons entitled to the estate in remainder, and they cannot be rectified by an estoppel arising out of circumstances of this description. (Veeder v. Mudgett, 95 N. Y., 295, 310.) Particularly as the plaintiffs, the vendees in the contract, became fully aware of all the facts affecting the inability of the defendant to convey the title. The amount allowed for the examination of the title was not unreasonably large, and making-proof, as the defendant proposed to give it of the salary of the person employed in that service, would not have aided or tended to-produce a different result. The exclusion of that evidence was in no way injurious therefore to the rights of the defendant in the action.

The allowance of $250 exceeded the amount which the court was-authorized to allow under section 3253 of the Code of Civil Procedure. The subject-matter involved in the action was the amount claimed to be recovered by the plaintiffs, and that was the sum of money which they had advanced on the contracts and expended in the examination of the title. And the allowance, instead of being based upon the value of the land itself, should have been limited to-the sum recovered by the plaintiffs, which would have restricted it to about the sum of $102.52.

The judgment to this extent is erroneous and without authority, and it should be modified by reducing the allowance to this sum of $102.52, and as so modified it should be affirmed, but without costs to either party.

Davis, P. J., concurred.

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

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


author: Daniels, J.:

text:
    THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK v. MARTIN SCHWANER and Others.

      .Decree on the accounting of cm eoxcutor n the Surrogate’s Court — when it cannot be . attacked in collateral proceedings— an infant, wppeamng by a special guardian, is bound by the decree made.

    ■One Sclrwaner, as the executor of one Schaefer, under a power of sale conferred, by the latter’s will, sold certain real estate owned by the deceased to one Bernhard G-. Amend for the sum of $110,000, at which sum the properly had been appraised in proceedings institut ed in the Surrogate’s Court. At that time the executor and one Paul Amend were carrying on business, as partners, in and ■as lessees of the said real estate, and the same was thereafter conveyed to them by Bernhard, who took back a mortgage upon the premises. Thereafter the executor’s accounts were finally settled by the surrogate, objections having been taken to this manner of disposition of this property and afterwards abandoned, and the executor being charged in such accounts with the consideration received upon the sale of the property, that is, $110,000. Thereafter the executor and his partner gave a third mortgage thereon to Bernhard and Ms partner, who then owned the other mortgage.
    A first mortgage, owned by the plaintiff and subject to which the executor had sold, having been foreclosed, certain of the heirs of Schaefer claimed to be entitled to the surplus moneys on the ground that the sale of the property by the executor was fraudulent and in fact made to himself.

      Meld, that they were estopped by the decree of the surrogate, settling the accounts of the executor, from making such claim.
    That those of the heirs who were under age at the time of the said accounting, and were then represented by special guardians, were also estopped from so doing. (See Moore v. Appleby, ante, p.368.)
    Appeal by Margarena Schafer, Paulena Schafer and Lizette Eeff from an order made at a Special Term, directing the distribution of surplus moneys.

      A. J. Yanderpoel, for the appellants.

      C. W. West, for claimants Eimer & Amend, respondents.
   Daniels, J.:

The surplus money in controversy was produced by the sale of property mortgaged to the plaintiff to secure the sum of $30,000 and interest, and the surplus remaining after satisfying the judgment in the foreclosure suit was the sum of $24,807.17. This was •claimed by Bernard Gf. Amend and Charles Eimer under two mortgages given upon tbe property amounting in the aggregate to more than the amount of tire surplus, and also by the appellants, who claim it as the heirs of Christian Schaefer, deceased, who was the owner of the property at the time of iiis decease. lie left a will, in which Martin Schwaner was appointed his executor, and letters testamentary were issued to him by the surrogate of the county of New York. An application was made to the surrogate for the sale of the real estate and an appraisement was made of its-value, by which it was appraised at the sum of $110,000. The sale of the property was directed at not less than that sum, and after-wards made by the executor, but from the deed which was produced upon the hearing it appears to have been conveyed by him not under the authority of the surrogate, but as the executor of the-estate. Under a power of sale given to him by the testator « to sell and convey his real estate whenever in his judgment it might be for the benefit of the estate to do so. This deed was executed on or about the 11th of December, 1874, to Bernhard G. Amend for the consideration of $110,000, but subject to the mortgage held by the Mutual Life Insurance Company against the property. At the time when the deed was made and delivered the executor, together with*Paul Amend, were carrying on business as partners and lessees of this real estate. It had been adapted to-the business of a brewery, and that was what was carried on by these two partners. On the 14th of December, 1874, Bernhard G. Amend, the grantee in the deed from the executor, executed and delivered a deed of the same premises to the executor and his partner Paul Amend for the consideration of $110,000, but subject to the mortgage held by the insurance company. The-executor and his partner at the same time executed and delivered a mortgage to him for the sum of $20,000, which was. recorded on the 25th of January, 1875, and is one of' the mortgages under which the claim was made in his behalf and that of his partner, for the surplus moneys. The property continued to be held in this manner until the 9th of August, 1877, when a final accounting was had before the surrogate of the executor’s accounts, and they were then formally settled and adjusted. After this settlement, and on the 17th of December, 1880, the executor, and his partner executed and delivered another mortgage to Eimer & Amend upon the same property to secure the-further sum of $23,423, the first mortgage of $20,000 having previously been assigned by Bernhard Gr. Amend to the firm in which himself and Eimer were the partners. It was determined by the order from which the appeal has been taken that these two mortgages were legal incumbrances upon the property at the time of its sale, and that Eimer & Amend, who held them, were entitled ■to receive the surplus moneys. The appellants have assailed the propriety of that conclusion upon the ground that the conveyance made by the executor of the property to Bernhard Gr. Amend was an artifice adopted by the executor to secure the title to the property for himself and his partner ; and that it was afterwards conveyed to them by Amend to carry this design into execution. And the circumstances were such as to support the accuracy of that conclusion. But it did not follow from that circumstance that the appellants, as three of the heirs of the testator, were entitled to any portion of the surplus money. Eor after the property had been conveyed in this manner, and the executor and his partner had acquired the formal title to it, the accounting before the surrogate took place, in which the executor was charged with the sum of $110,000 as the consideration-price of the property. And the settlement was made hy the surrogate upon the understanding that the executor was liable to account to the estate for this sum of money, after deducting from it the amount due on the mortgage to the insurance company. In this manner the estate did have the benefit of the purchase-price of this property. And while the conduct of the executor in its disposition was brought in question by objections to his account, they were finally abandoned and the account was allowed to be settled on the foundation that this was the extent of the executor’s liability arising out of his dealings with this property. And the decree made in that manner has been, relied upon and was considered at the Special Term as a legal answer to the objections raised against the validity of the mortgages, held to be entitled to payment so far as the surplus money was adequate for that purpose.

It has been urged, in behalf of these appellants, that this effects was erroneously given to the decree of the surrogate for the reason that they had not attained the age of twenty-one years at the time when the settlement took place, and were not represented by guardian, but appeared by counsel on the hearing before the surrogate. But this objection is not sustained by the decree which was made upon the accounting. For it is stated in the decree that Henry Wood, Esquire, had been appointed the special guardian of these appellants, and also of another daughter of '«the testator. And the recital in the decree containing the ¡statement of this fact is entitled to be adopted as truthful, •■as long as no controlling evidence of its incorrectness has been produced. The employment or appointment of the counsel acting for the appellants is not in conflict with this statement contained in the decree. They may consistently have been appointed and employed, and also a guardian appointed by the surrogate, as the fact is stated to have been in the decree. As the case is presented it must therefore be assumed that the appellants were represented by guardian upon the settlement of the executor’s accounts before the surrogate, and that his decree, as far as it extended, was conclusive upon them. (Phillips v. Dusenberry, 8 Hun, 348.) The surrogate was authorized to include this sum of money, even though it had not in fact been received by the executor by way of a charge against him in his accounts. He had sold the property and become^ chargeable with its proceeds, and they were a proper subject for the consideration and disposition of the surrogate in the settlement taking place before him., (3 ft. S. [6th ed.], 120, § 75; chap. 115, Laws 1866, § 1.) And his jurisdiction and authority over this sum of money consummated by means of his decree, cannot be drawn in question in a collateral proceeding of this description (Laws 1870, chap. 359, § 1), which was.in force at the time when this accounting took place and the decree of the surrogate was made. If it had been intended to question the legality or correctness .of the surrogate’s decree that should have been done by way of appeal. It cannot legally be done by drawing it in question, as that has been attempted in this proceeding. (Harrison v. Clark, 87 N. Y., 572, 577.)

The case of Fulton v. Whitney (66 N. Y., 548) is not inconsistent with the correctness of this position, for the proceeds of the property then in dispute in no manner entered into the settlement of the estate as it was made by the decree of the surrogate, but the ■entire transaction upon which the case proceeded was extraneous to the proceedings and decree in the Surrogate’s Court.

If the property had been worth more than the sum witli which the executor charged himself in his accounts, that should have been proved upon the hearing, or some measure instituted to put the property up for sale, with a view of charging the executor with the ■excess of its value beyond the sum admitted by himself. But neither course was taken concerning this property, but the purchase-price with which the executor was charged was practically accepted as sufficient in the proceeding before the surrogate. This was an .adjustment, consequently, of the rights of the appellants in this property and precluded them from afterwards claiming that its value ■had not been sufficiently accounted for. It entered as completely into the settlement and decree as any other item included in the executor’s account. And if it was not sufficiently large proof should have been made of that fact and the amount correspondingly increased. But that was not done, and the settlement was allowed to proceed and result in the decree upon the assumption that the executor was sufficiently charged on account of the sale of ■this property. And that had the effect of concluding the appellants from making further claims against him on this account. It was ■practically an approval and ratification of what had taken place ■through which he had obtained the title to the property and for the price of which he was charged. And that necessarily left the title in him subject to the mortgage which had then been given and ■empowered himself and partner to further incumber it by the mortgage executed and delivered in December, 1880.

It has been urged in support of the appeal that the conduct of the executor was fraudulent in omitting to charge himself with all the rent which had been reserved by the lease. But if he failed to carry 'the proper charges on this or any other account into the accounts presented by him for settlement before the surrogate, the time to raise the objection was while the proceedings were in progress in that court. The failure to do that, or to appeal from the decree, has left it conclusive in its effects against the appellants .as to this and the other objections urged in support of their appeal. Practically the same answer exists as to the failure of Bernhard G-. Amend to pay the executor the entire purchase-price of the property. The estate did not suffer in consequence of his failure to make the payment as long as the' executor was charged with the full amount of the consideration. It is moreover probable that it was not ■expected that the vendee would pay the difference in the purchase money as long as it was the understanding that he should convey back the property to the executor and his partner. The conduct of these parties is justly entitled to the condemnation it received in the opinion of the court at Special Term. And if the facts were presented in such manner as to empower the. court to annul the entire transaction by which the title to the property was conveyed by the executor and afterwards received by himself and his partner, that would be a very just and satisfactory disposition to be made of it. But the decree of the surrogate stands in the way of that interference, and that necessarily left the mortgages as valid incumbrancesupon the property and the persons holding them entitled to the-order which was made directing the payment of the surplus moneys to them.

This order should be affirmed, but as the facts of this case have-been presented, it should be without costs.

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

Order affirmed, without costs.


text:
    SOPHIA JACQUIN, Respondent, v. CHARLES JACQUIN, Appellant.

      Contempt of court — when the failure of a defendant to comply with the directions of a final judgment cannot be treated as a contempt — Code of Civil Procedure, secs, 1773, 1769; sec. 1241, sub. 2; sea. 8, sub. 3 — “mandate,” meaning of.

    Where, in an action for a separation, brought by a wife against her husband, the final judgment directs the defendant to ,pay to the plaintiff’s attorney a fixed sum, as and for her costs and counsel fees, the failure of the defendant to make such payment' cannot be treated as a contempt, authorizing his commitment until he shall pay the said amount.
    The term “mandate” in subdivision 3 of section 8 of the Oode of Civil Procedure, as defined by subdivision 2 of section 3343, does not include a fixed sum of money recovered by a final judgment.

      Appeal from an order adjudging the defendant guilty of contempt and directing his commitment until he should pay to the plaintiff the sum of $681.81 with interest, and the sum of ten dollars costs of motion, together with' the sheriff’s fees on the execution of the warrant of commitment.

      L. G. Waehner, for the appellant.

      John M. Bowers, for the respondent.
   Daniels, J.:

The amount directed to be paid by the order was the costs and counsel fee recovered by the final judgment entered in the action. This judgment directed that the defendant sh ould pay the amount to the attorneys for the plaintiff within five days after service upon him of a certified copy of the judgment, and the only point required to be examined is whether the court was authorized to-direct his commitment for the non-payment of this sura of money» The amount was fixed and definite and capable of being docketed against the defendant, and collected by means of an execution. And when a judgment has been entered for the recovery of a fixed sum of money, there it has been provided by section 1210 of the Code of Civil Procedure that it may be enforced by execution. The action was for a separation, and it resulted in such a judgment in favor of the plaintiff. In an action of this description, it has-been provided by section 1773 of the Code of Civil Procedure, that the defendant may be punished for his failure to make payment of any sum of money, as that may be required by the judgment or order referred to in the preceding section. Put that section does not include that part of the judgment which may be entered for the recovery of the costs.

It has been expressly limited to that part of the judgment requiring the husband to provide for the education and maintenance of any of the children of the marriage, or for the support of his wife, and to the non-payment of money directed to be paid by orders-provided for in section 1769. That section has been limited to-orders made during the pendency of the action, by which the husband may be required to pay any sum-or sums of money necessary to enable the wife to carry on or defend the action, or to provide-for the education and maintenance of the children of the marriage, or for the support of the wife. Neither this section nor either of the others referred to include so much of a final judgment as maybe entered for the recovery of the costs and expenses of the action, •except that section 1769 has permitted the court to order the payment of final costs to be made out of property sequestered •or otherwise in the power of the court. It is evident from this construction that the recovery of final costs received the attention of the legislature in the enactment of the section. But while this authority was given to the court to direct their payment out of property sequestered or otherwise in its power, no authority to punish the defendant by a proceeding for a contempt for non-payment of final costs was conferred by this or either of the other sections; and if such authority was intended to have been given, it is reasonable to suppose that it would have been found in one or more of these sections of the Code, enacted as declaratory of the rights of the parties, and to prescribe the mode of proceeding in actions of this description. The absence of such a power from these sections is a very cogent indication that it was not designed to be possessed by the court, but that the power to punish the defendant for contempt was intended to be limited to his failure to comply with orders made during the pendency of the action for the payment of money, or directions contained in the final judgment for payments to be made' for the education and maintenance of his children and the support of his wife.

It seems to have been supposed that the husband was liable to be punished by way of proceeding for a contempt for the non-payment •of final costs under the authority of section 1241 of the Code. But by subdivision 2 of that section it has been provided that where the judgment is final, and part of it cannot be enforced by execution as prescribed in the preceding section, the part or parts which cannot be so enforced may be enforced by proceedings for contempt. This limitation of the right to enforce the final judgment plainly ■excludes that part of it which may be enforced by execution, as the direction for the payment of final costs is always capable of being enforced; and that conforms to the directions contained in subdivision 3 of section 14, which permits a party to be punished by way of contempt, for the non-payment of a sum of money ordered or adjudged to be paid, only in a case where by law execution cannot be awarded for the collection of such sum.

The direction given for the payment of costs in the judgment was not a mandate within the signification of subdivision 3 of section 8 ; for that has been so defined by subdivision 2 of section 3343 of the Code as not to include a fixed sum of money recovered by a final judgment. The policy indicated by all these provisions of the Code is, that such a sum is to be recovered by means of an execution, and not to be enforced by proceedings by way of a contempt because of its non-payment. And these provisions require that subdivision 4 of section 1241, providing for the enforcement of a judgment for the payment of money into court or to an officer of the court, should be subordinated to this construction. For care would not have been taken to restrict the right of the successful party to an execution, if it had been designed to subject him to proceedings by way of contempt under the more obscure language of this subdivision. What was probably designed by this subdivision was to include such judgments as should be recovered for moneys wrongfully withheld from the court or one of ics officers by the defendant, which the court itself would be required to hold for or distribute among parties entitled to receive it. A direction contained in the judgment, as this was made, to pay the final costs to the attorneys could not well be included within the language of this provision, for they are not the officers intended to be included in this subdivision.

The practical effect of Baker v. Baker (23 Hun, 356) and People ex rel. Fries v. Riley (25 id., 587), is to sustain this construction of these different provisions of the Code. It is true that in Lansing v. Lansing (41 How., 248), costs were included in the order made for the punishment of the husband; but as the order also included money required to be paid by him for the benefit of his wife, he could not b.e relieved from his imprisonment under the order until that payment had been made, even though the further direction for the payment of the costs was unauthorized. (People ex rel. Woolf v. Jacobs, 5 Hun, 428, 433, and affirmed in 66 N. Y., 8.)

The case of Park v. Park (80 N. Y., 156) in no manner conflicts with this construction of these provisions of the Code. There the husband was punished for disobeying a lawful mandate of the ■court, and the costs required to be paid by him were not the costs of the action but the costs of the proceeding to punish him for his contempt. What was said in the course of the opinion concerning the right to punish the husband for the non-payment of costs is to be received and understood with this qualification. For such costs clearly appear to have been the costs considered by the General Term when the case was heard and decided there. (18 Hun, 466.)

The case of Howe v. Howe (5 Weekly Dig., 460) arose before all the present provisions of the Code went into effect. The point could not, therefore, be there considered as it has now been presented, and that circumstance may have led to the decision which was then made; and as already suggested, the subdivision upon which Pritchard v. Pritchard (4 Abb N. C., 298) was decided, cannot be so construed as to include a judgment for- the recovery of final costs in an action for a separation. The direction, though formally requiring the costs to be paid to the attorneys, was in substance and effect no more than a final recovery of .the costs by the plaintiff in this action against the defendant.

The order, from which the appeal has been taken, should be reversed and an order entered denying the motion, but without costs.

Davis, P. J., and Beady, J., concurred.

Order reversed, motion denied, without costs.