author: Smith, P. J.:

text:
    PATRICK RILEY, Respondent, v. PLINY T. SEXTON, Appellant, JOHN J. STEBBINS, Respondent, Impleaded, etc.

      Lease — assignment of it — when the ‘purchaser is not chargeable with notice of the provisions of a recorded mortgage upon thereat estate and its rents, issues and profits — when the description of property in a chattel mortgage is too indefinite to sustain it — effect of a general exception to a referee’s conclusions of law.

    February 9, 1878, James and John Murray leased certain premises to the plaintiff for the term of five years, from April 1,1878, at tlie annual rent of $700, payable December first in each year. June 1, 1879, the Murrays, to secure the payment of a pre-existing debt, executed to one Sexton their bond to secure the payment of $15,000, with interest thereon semi-annually,. secured by a mortgage which covered, with others, the premises in question. The mortgage was duly recorded in the county clerk’s office December 3, 1879. It provided, among other things, that the mortgagors pledged "as additional security, the rents, issues and profits of said premises, and ■agree that a receiver thereof may be appointed at any time and without notice at the option of said second party.” The mortgagors also agreed that, while the debt exceeded $10,000, they would whenever required execute satisfactory chattel mortgages upon all growing crops and on personal property generally, then owned by them jointly or severally. Sexton, at the time of taking*'the mortgage, had no knowledge of the existence of the lease, or of the occupation of the premises or any part thereof by the lessees.
    In April, 1880, theMurrays assigned the lease and the rents reserved thereby to one Stebbins. The consideration of the assignment of the lease to Stebbins was "■cash .then advanced by him and an old note then canceled. Stebbins knew of the existence of the mortgage, hut not of its terms nor of its record, although he lived in the place where the clerk’s office was located.

      Held, that Stebhins was not chargeable, at the time of his purchase of the lease, with knowledge of the prior lien upon the rents of the farm acquired by Sexton by virtue of his mortgage, and that he, and not Sexton, was entitled to ' receive them.
    To secure the payment of the amount due on the mortgage, two chattel mort- , gages were executed by the Murrays to Sexton, one prior and the other subsequent to the assignment to Stebbins. The first conveyed all personal property whatever owned by the mortgagors, jointly or- individually, and all growing crops of all kinds on the said farms.

      Held, that the description was so indefinite that it did not amount to a notice of the lien claimed upon the rents reserved, as against Stebbins.
    A general exception to a referee’s conclusions of law is not available, unless aE the rulings embraced in them are erroneous.
    Appeal from a judgment, entered on the report of a referee.
    This is an action in the nature of a creditor’s bill, brought by the plaintiff as a judgment creditor of James Murray and James Lawless, to compel the application, to the payment of the plaintiff’s judgment, of the share of the said James Murray, in certain rents reserved in and by a lease of lands executed by said James Murray and John Murray, to the plaintiff and his son Richard Riley. The Murrays owned in common two farms in Ontario county, one of 130 acres in Victor, and the other of 170 acres in Farmington. On 9th February, 1878, they executed a written lease of the Farming-ton farm to the Rileys for the term of five years from 1st April, 1878, at the yearly rent of $700, payable first December in each year. The rent for the first year was paid to John Dwyer, and for the second year to James 0. Jackson, to whom the lease and the rent for those years, respectively, were assigned by the lessors. And of the rent maturing 1st December, 1880, the sum of $583.93 was assigned by the lessors to the defendant Stebbins, 1st April, 1880. On 1st June, 1879, the defendant Sexton held six mortgages executed by the Murrays, on both of said farms, which had been assigned to him some time previously, on which was then due in the aggregate the sum of $14,976.57. On that day he advanced to them the further sum of twenty-three dollars and forty-six cents, and took from them another mortgage on said farms and a certain cedar swamp, conditioned for the payment of the sum of $15,000, with intei’est semi-annually. That mortgage was not intended to affect the lien of the prior mortgages, but was given as additional security for the payment of the debt which they were intended to secure. By its terms the principal was made payable “ on any interest day in such instalments of full hundreds of dollars, not more than five hundred in any calender year, as either party shall give to the other, three months’ written notice of being required or intended.” The said mortgage also contained a provision in the following words: “ And they (the said mortgagors) do also pledge as additional security, the rents, issues and profits of said premises, and agree that a receiver thereof may be appointed at any time and without notice at the option of said second party, * * * in case of any default,” etc. It was also agreed that in case of any default the whole amount should become due, at the option of the mortgagee. And the mortgagors agreed, that while the debt exceeded $10,000 they would, whenever and as often as desired, execute to the mortgagee satisfactory chattel mortgages upon all growing crops and on personal property generally, then owned by them jointly or severally. That mortgage was recorded on 3d December, 1879, in the ofiice of the cleric of Ontario county. On 3d July, 1879, the mortgagors, in pursuance of their agreement, executed to Sexton their chattel mortgage for $10,000 on all their personal property and all growing crops on said farms, which chattel mortgage was duly filed about the time of its date, and duly re-filed 6th July, 1880. On 2d August, 1880, they executed another chattel mortgage to Sexton to secure $10,000 on the real estate mortgages, by which they mortgaged all their personal property and all crops then or thereafter growing on said farms, “ and all rents, issues and profits and' products of said lands at any time,” which mortgage was duly filed 3d August, 1880. The referee found the facts above stated, and also that John Murray is the father of James Murray; that John lived on the Farmington farm and James on the Yictor farm for several years before 1st June, 1879; that Sexton had no knowledge of the existence of said lease until the commencement of this action, nor that anyone except said Murrays occupied either of said farms or claimed any light to any of the rents, issues and profits of the same; that John Murray occupied the only house on the Farmington farm at the time said lease was executed, and still occupies a part of it, and said Richard Riley, one of said lessees, who is a brother-in-law of James Murray, occupied the other part of said house and worked part of said farm, and that Sexton had no knowledge of such occupation by Riley prior to the commencement of this action. The referee found that the'consideration of the assignment of the lease to Stebbins was his payment to the lessees of $419.36 in cash, and his canceling a note which he held against them, on which was then due the sum of $150.81; that at that time Stebbins knew of the existence of the $15,000 mortgage owned’ by Sexton, but had never seen it nor the record of it, and did not know of any special clause in the same, nor that it gave a lien on crops or rents, issues or profits; nor had he ever heard before said assignment that Sexton had any claim on said lease; and that he lived in Canandaigua where the clerk’s office of Ontario county is located, and wherein said real estate mortgage is recorded; that on 1st December, 1879, there was due to Sexton for interest on his said mortgage the sum of $525, of which the Murrays paid during December, 1879, $300, and 4th April, 1880, $180 more, leaving unpaid forty-five dollars, and nothing further has since been paid on said mortgage.
    The complaint alleged that the said mortgages were executed to Sexton, and received by him with intent to defraud the creditors of the mortgagors, but that allegation was negatived by the findings of the referee.
    The referee found as conclusions of law that Stebbins is entitled to the sum of $593.93 rent due on said lease 1st December, 18S0; that the plaintiff is entitled to have the remainder of the rent due, and to grow due on said lease, applied to the payment of his judgment and costs, and Sexton is not entitled to the same; that the plaintiff is entitled to. an injunction restraining Sexton and James Murray from collecting James Murray’s share of said rent; that a receiver be appointed, and that the plaintiff and Stebbins are entitled to their costs of the action to be paid by the receiver out of the moneys to be collected 'by him on said lease;
    . Charles MeLouth, for the appellant.

      John Gillette, Jr., for the plaintiff, respondent.

      Comstock db Bennett, for the defendant, respondent.
   Smith, P. J.:

The appellant is met at the threshold by the objection that his exception to the referee’s conclusions of law is so general that it raises no question for review. There is but one exception and it is in the following form: “ The defendant Pliny T. Sexton excepts to each of the findings of law of the referee in this action.” It is stating the rule too broadly to say that a general exception to several rulings is .of no avail whatever; that such an exception is not available, unless all the rulings embraced in it are erroneous, has been held frequently (Lefler v. Field, 50 Barb., 410; Magie v. Baker, 14 N. Y., 435), and that is the extent to which the cases"go. Within this rule if either of the conclusions of law to which the exception is directed is correct the entire judgment must be affirmed.

The correctness of the conclusion that the defendant Stebbins is entitled to the rent due on said lease on the first day of December, 1880, amounting to the sum. of $593.93, depends upon whether Stebbins is chargeable with notice, at the time of his purchase, that Sexton then had a prior lien upon the rents of the farms in question. Sexton’s claim to such lien must rest solely upon the clause in the $15,000 mortgage, by which the mortgagors pledged to him as security the “ rents, issues and profits ” of the premises. For, of the two chattel mortgages, the earlier one only was executed prior to the assignment of the lease to Stebbins, and that did not transfer the rents, or the lease, in terms, but conveyed “all personal property whatever ” owned by the mortgagors, jointly or individually, and “ all growing crops of all kinds ” on said farms. A description so indefinite cannot be said to amount to notice of the lien on the rents, now set up by Sexton, in opposition to the claim of Stebbins.

The $15,000 mortgage was a mortgage of real estate, and was duly recordéd as such. The referee found that Stebbins knew that Sexton had said mortgage, but he had never seen it nor the recoi’d of it, and did not know that it contained a special clause purporting to give a lien on crops, or rents, issues and profits, nor "had he heard that Sexton had any claim on the lease. Stebbins was not purchasing an interest in real estate, and so was not put on inquiry as to the contents of Sexton’s mortgage. He was bargaining for a mere chose in action, to wit, the written promise of the lessees to pay .a stipulated sum of money as rent. It is true that rent to grow due is regarded as realty as between the grantor of the reversion and bis grantee, so that, as between them it will pass as an incident of the estate, if not expressly reserved, and in such a case it does not pass as a chose in action. (Van Wicklen v. Paulson, 14 Barb., 654.) But where one who is the owner of the reversion, and also the lessor, transfers to a third person the written obligation of the lessee to pay money as rent, the thing transferred, as between them, is a mere chose in action, and not real estate. Stebbins, therefore, had no occasion to inquire as to the contents of Sexton’s real estate mortgage.

So far as the question of notice is concerned, the case is like that of the growing grass in Wood v. Lester (29 Barb., 145), cited by the appellant’s counsel. There the growing grass was so far a part of the realty as that it would have passed under a deed of the. land, unless specially reserved. (4 Kent’s Com. [7th ed.], 518; Foote v. Colvin, 3 Johns., 216; Wintermute v. Light, 46 Barb., 282.) Wood held a mortgage upon the farm, duly recorded as a mortgage of real estate, which in express terms gave him a lien upon “ all the crops of every kind upon said premises.” Lester, the judgment creditor, had actual notice of the existence of the mortgage when he levied on the grass and bought it in at the execution sale; and the only consideration for the sale was the application of the amount of his bid upon a pre-existing debt held by him against Power, the mortgagor and execution debtor; yet it was held that there was no evidence that Lester had any notice or knowledge of Wood’s lien on the grass, and that he must, therefore, be deemed a bona fide purchaser and permitted to hold it discharged of Wood’s lien thereon. Upon the authority of that case it must be held that the facts found by the referee do not show notice to Stebbins, actual or constructive, of Sexton’s lien on the rents reserved by the lease.

It is contended by the appellant, that as to the amount which Stebbins paid by canceling'a pre-existing debt, he is not a bona fide purchaser. There is no exception raising that point, and the record does not show that it was suggested at the trial. It comes now too late. Besides, Wood v. Lester (supra), seems an adverse authority.

It is also contended that the claim of Stebbins against his code-fendant Sexton cannot be litigated in this action, inasmuch as Stebbins has not complied with the requirements of section 521 of tbe Code of Civil Procedure, in respect to demanding relief in bis answer and serving tbe answer on tbe attorney of bis co-defendant before trial. We.tbink that tbe defendant Sexton bas waived that objection, Tbe appeal book does not sbow that it was taken at tbe trial, and tbe fact that tbe referee determined the rights of the defendants, as between themselves, without any allusion being made by any one to the form of the answer, indicates very clearly that Sexton waived, as be might do (Edwards v. Woodruff, 90 N. Y., 396, 400, 401), a compliance with tbe provisions of tbe statute referred to. For that reason be cannot urge it now.

As tbe conclusion of tbe referee in respect to tbe rights of Stebbins is correct, tbe general exception is not well taken and tbe judgment must be affirmed in all respects.

Judgment affirmed, with costs of the appeal to each respondent to be paid by the appellant.

Hardin and Barrer, J J., concurred.

So ordered.


source: Caselaw Access Project

author: Smith, P. J :

license: Public Domain

text:
    REBECCA WALDO, Appellant, v. CHARLES WALDO and Others, Respondents.

      Decision of an issue of fact by a surrogate — lie must file findings of fact and conclusions of law — Code of Civil Procedure, sec. 2545 — what papers must be presented to the General Term on an appeal from his decision.

    In order that the decree of a surrogate, refusing to admit to probate an instrument purporting to he a last will and testament, may he reviewed at the General Term, a decision in writing, stating separately the findings of fact and the conclusions of law, must be filed by the surrogate in his office as required by section 2545 of the Code of Civil Procedure, and be included with the papers to be presented, on the appeal, to the General Term.
    Appeal from a degree of tbe surrogate of Steuben county, refusing to admit to probate an instrument purporting to be tbe last will and testament of Lucius Waldo, deceased, in which tbe appellant is named as sole executrix.

      George T. Spencer and J. K. Smith, for tbe appellant.

      William L. Hodgman, special guardian, for minors.

      Bumsey Miller, for the respondents.
   Smith, P. J :

The proceeding before the surrogate was instituted since chapter 18 of the Code of Civil Procedure went into operation. The provisions of .that chapter are designed to assimilate, as far as practicable, the method of procedure for the review of the decision of a surrogate upon the trial by him of an issue of fact, to an appeal from a judgment in a civil action. To that end it is provided, in section 2545, that an exception may be taken to a ruling by a surrogate upon the trial by him of an issue of fact, including a finding, or .a refusal to find, upon a question of fact, in a case where such an exception may ■be taken to a ruling of the court, upon a trial without a jury, of an issue of fact, as prescribed in article 8 of title 1 of chapter 10 of said Code. It is also provided that upon such a trial, the ■surrogate must file in his office his decision in writing, which must state separately the facts found and the conclusions of law. The review is to be had upon a case, and either party, upon the settlement of the case, may request a finding upon any question of fact, or a ruling upon any question of law; and an exception may be taken to such a finding or ruling, or a refusal to find or rule accordingly. And .an appeal from a decree or an order of the surrogate, brings up for review, by each court to which the appeal is carried, each decision to which an exception is duly taken by the appellant, as prescribed in said section.

In the present case the appeal book contains nothing purporting to be a decision of the surrogate, stating separately the facts found by him .and his conclusions of law, with the exception of certain specific adjudications in the decree, which cannot be regarded as a substitute for the formal decision required by the Code.

We think that by reason of that omission the case is not in a proper shape for review; and we therefore decline to consider it, and allow it to be withdrawn, with leave to either party to apply to the surrogate to make and file his decision, in accordance with the statute (if one has not already been filed). Such decision when made and filed may be inserted in the appeal book, and the case may then be brought on for oral argument or submission as the counsel shall prefer.

This accords with the direction made by us in the matter of the probate of the will of John Russell, deceased, at the last October ^erm of this court.

Declined to be considered and parties permitted to withdraw the case, with leave to apply to the surrogate to make and file his decision in accordance with section 2545 of the Code.

HaRdin and Barrer, JJ., concurred.

So ordered.


text:
    MARY B. LYON and Others, Executors, etc., of LYMAN R. LYON, Deceased, and Others, Appellants, v. CHARLES W. HERSEY and Others, Respondents.

      Injunction — damages allowed, upon its dissolution — what are tole included in them.
    After two motions to dissolve a temporary injunction granted in this aetion had been denied, a third motion was made to vacate it, hut before the hearing-thereof the parties appeared before the judge and consented that an order vacating it he entered.
    Upon a reference to ascertain the damages sustained by the granting of the injunction:

      Held, that the expenses incurred in the unsuccessful efforts to dissolve the injunction could not be allowed as part of the damages.
    That the personal expenses of the defendants incurred in connection with the last motion to dissolve the injunction were properly included in the damages.

      Edwards v. Bodine (il Paige, 223) distinguished.
    Cross-appeals from an order of the Oneida Special Term modifying, and confirming as modified, the report of a referee appointed to ascertain the amount of damages sustained by the defendants by reason of the temporary injunction order granted herein.
    ' Charles D. Adams, for the appellants.

      George IF. Smith, for the respondents.
   Smith, P. J.:

Soon after the in junction order was served an ex parte motion was made on the part of the defendants to vacate it, which was denied. Soon after, upon an order to show cause, another motion was made for the like purpose, which also was denied, and the undertaking given was increased by order of the court from $2,000 to $6,000. Later tbe defendant prepared new motion papers and obtained a second order to show cause why the injunction order should not be vacated, but before the hearing the parties appeared before the judge and consented that the injunction order be set. aside, and an • order to that effect was made accordingly. The referee reported that the defendants were entitled to $450 counsel fee, and $203.05 personal expenses of the defendants in contesting the injunction and procuring its dissolution. . The Special Term held that the defendants were not entitled to recover their expenses of their unsuccessful motions to dissolve the injunction, and on that ground reduced the foregoing items to the expenses incurred in the last motion only. That decision was right, the rule being that expenses incurred in an unsuccessful effort to dissolve an injunction are not allowable as damages. (Randall v. Carpenter, 88 N. Y., 293.) An exception is made when the motion is denied, not on the merits or for irregularity, but for the reason that the court in its discretion thinks it advisable to defer the inquiry into the merits until the final hearing. In that case, if the defendant succeeds, the expenses of the motion and also counsel fees upon the trial are proper items of damages. (Andrews v. The Glenville Woolen Company, 50 N. Y., 282.)

We think the objection made by the plaintiffs to. the allowance of the personal expenses of the defendants, in connection with the last motion to dissolve the injunction, is not well taken. They are a part of the damages necessarily resulting from the injunction. The case of Edwards v. Bodine (11 Paige, 223), cited by the plaintiffs’ counsel, does not sustain his position, the item there disallowed being for the personal service of the party, and not his expenses.

We have examined the evidence bearing on thé items of damage allowed by the referee and the Special Term, growing out of the suspension of work caused by the injunction on the part of the defendants and their several contractors and sub-contractors in getting out bark for the use of the defendants’ tannery, and we think it justifies such allowances. "We think, also, that the allowances last mentioned are proper items of damage, directly resulting from the injunction order, and there is no evidence that the defendants, by any reasonable effort on their part, could have prevented such damages or lessened their amount.

We are of the opinion, on a careful ..re.view of the record book, that none of the objections on either side to the decision at Special Term are well taken, and that the order appealed from should be affirmed, without costs of this appeal to either party.

■ HardiN and BarKer, J J., concurred.

So ordered.


text:
    THE REMINGTON PAPER COMPANY, Appellant, v. ANNA M. O’DOUGHERTY, Respondent.

      Attachment — it cannot issue in an action brought to enforce a statutory liability— Code of Oiml Procedure, secs. 8247, 635.
    An action brought, under section 3247 of the Code of Civil Procedure, to .recover the costs of a former action which was prosecuted by the present defendant in the name of a third person, for the defendant’s benefit, is not an action upon a contract “express or implied,” within the meaning of section 635 of ■ the said Code providing for the cases in which an attachment may issue.
    ■ Appeal from an order of the Jefferson Special Term vacating a warrant of attachment.

      Elon E. Brown, for the appellant.

      James A. Ward, for the respondent.
   Smith, P. J.:

The papers on which the attachment was granted allege that the defendant herein, for her own use and benefit and at her own cost, prosecuted an action brought in the name of James P. O’Dougherty as plaintiff against Illustrious Remington and others, as defendants, and that said action resulted in a judgment in favor of the defendants and against the plaintiff therein for the sum of $459.53,, costs. That the said James P. O’Dougherty never had any interest in said action and was, and is, insolvent, and an execution duly issued on said judgment, against his property, has been returned unsatisfied. That the defendants in that action have assigned said judgment and any claim which they have therein against the said Anna M. O’Dougherty, to the plaintiff herein.

It may be conceded that the defendant herein is liable for the costs of the former action, she having prosecuted it in the name of another for her own benefit. (Code Civ. Pro., § 3247.) Nevertheless we do not think the case is one in which a warrant of attachment will lie. The only ground upon which the right to that remedy can rest is, that the action is one for the recovery of damages for breach of contract, express or implied. (Code Civ. Pro., § 635.) But the defendant has made no contract with the plaintiff or its assignors; she is liable only by the provisions of the statute. There is certainly no express promise; nor is there an implied one. ■ It was said by Allbst, J., in McCoun v. New York Central and Hudson River Railroad Company (50 N. Y., 176, 180): “ An implied promise or contract is but an express promise, proved by circumstantial evidence. It is quite distinct from that fiction by which a statute liability has been deemed sufficient to sustain an action of assumpsit, upon the ground that a party subjecting himself to the penalty or other liability imposed by statute has promised to pay it. That feature does not suppose a contract, but simply a promise ex parte.”

At the most the defendant is only liable for costs under the statute to the same extent that she would be if the judgment were against her personally. It has been held repeatedly that a judgment is no contract, nor can it be considered in the light of a contract; for judicium redditur in invitnim. (Bidleson v. Whytel, 3 Burr. R., 1545; Wyman v. Mitchell, 1 Cow., 316, 321.)

In a certain sense, the obligation created by a judgment or a statute is considered as arising from an implied promise — a promise necessarily implied, as Blackstone expresses it, “ by the fundamental constitution of government, to which every man is a contracting party.” (3 Com., 159.) And upon that ground it was that under the old form of actions, an action of debt could be maintained upon such an obligation. (Id.) But in such cases there is no implied contract between the parties to the action.

Another class of implied contracts arise from the general implication and intendment that every man has engaged to perform what his duty or justice towards another requires. Of that class is the implied promise of one who employs another to work for him to pay that other what his work deserves. In cases of the latter class the law implies a contract between the parties, and to that class of implied contracts only, in our judgment, is the statute authorizing the remedy by attachment intended to apply.

The order appealed from should be affirmed, with ten dollars costs.

Hardin and Barrer, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: SMITH, P. J.: '

text:
    ANN J. THOMAS, Plaintiff, v. BOSINA WILLIAMS, Defendant.

      Tenants in common of a crop — what acts of the party in possession do not amount to a conversion — when an action for a breach of contract, and not one of replevin, should be brought.

    The plaintiff leased a farm, to the defendant for the term of three years, to be worked on shares.. The lease provided that the crop then growing and “ all crops, and all other products of said farm during said term, shall he equally divided on the farm; ” that the harvesting was to be done by the defendant, each party to pay one-half of the thresher’s bills, and that the defendant was to draw the plaintiff’s share lx) market for her at such times as she should reasonably require. A crop of barley, oats and wheat, raised upon the farm, was placed by the defendant in the barn, which was under his control, but to which, however, -the plaintiff had daily access, and it was there threshed. The plaintiff, and persons acting in her behalf, went to the barn and there demanded of the defendant that he have the grain cleaved, and one-half thereof given to the plaintiff according to the terms' of the lease. This the defendant refused to do.
    In this action, brought by the plaintiff to replevy her share of the crop:

      Meld, that.no conversion of the plaintiff’s property by the defendant was shown, but, at the most, only a breach of the agreement contained in the lease.

      Qusi-y, as to whether the lease imposed upon the defendant the duty of cleaning and dividing the crop.
    Upon the trial the plaintiff was permitted, against the defendant’s objection and exception, to prove that some time before the crops were harvested, the defendant had mortgaged-her (the defendants) undivided share of the crops.

      Held, error; that the defendant had the right to sell or dispose of her own share in the crops, so long as she did not interfere with the plaintiff’s rights.
    Motion by defendant for new trial, on exceptions taken at the Ontario Circuit and ordered to be heard at the General Term in the first instance.

      S. M. Field, for tbe plaintiff.

      E. W. Gardner, for the defendant.
   SMITH, P. J.: '

Replevin tor a quantity of wheat, barley and oats raised by defendant on plaintiff’s farm, on sharec.

In February, 1880, the plaintiff leased aer farm to the defendant for the term of three yearn, to be worked on shares. At the time of the lease there was a crop of wheat growing on twenty-seven acres of the farm, and the lease provided that the said crop was to be harvested by the defendant and “ the same equally divided.” The lease also provided that “ all crops and all other products of said farm during said term shall be equally divided on the farm.” The defendant and her husband lived on the farm,- and the plaintiff occupied a part of the house which she reserved in the lease. The first season the defendant raised barley and oats on the farm, and those crops together with the wheat were harvested, put into the barn on the premises and threshed. The'defendant had the control and management of the barn, and was in possession of the grain after it was threshed. The plaintiff, however, had access to the barn, and went into the barn daily while the grain was there. The gravamen of the action is the alleged conversion by the defendant of the plaintiff’s undivided half of the grain referred to. The testimony relied on by the plaintiff to prove a conversion is substantially as follows: The plaintiff testified that shortly after the grain was threshed she asked the defendant to have it cleaned and one-half given to her according to the terms of the lease, and the defendant refused to do it; that the grain lay in the barn till it was replevied in this suit. Orrin S. Bacon, the sheriff who served the replevin papers, testified that at the request' of the plaintiff, or her attorney, he asked the defendant to divide the grain and she said she wanted to see her husband first. The husband came in and the witness requested him to have the grain divided without any trouble. They said they would not do it. On his cross-examination the witness testified that Williams said he would not do it until they came to Canandaigua, and he spoke about aninjiAiction that had been served on them. Benjamin F. Mitchell testified that at the plaintiff’s request he called on the defendants and asked them to divide the grain, and Mr. Williams said it could not be' divided “ until this matter was settled.” The injunction referred to was put in evidence by the defendant, and it appeared to have been obtained by the plaintiff in a prior action, the complaint in which sets out, among other things, the provisions of the lease and alleged that the defendant had violated the same in several particulars specified, and among others had refused to execute a chattel mortgage upon her share of the said crops to secure the payment of her indebtedness to the plaintiff as required by said lease, and had mortgaged the same to one Coyle; and the injunction, in terms, restrained the defendant and her husband from selling, disposing of, or otherwise interfering with said crops. The defendant and her husband testified to the effect that their refusal was in consequence of the injunction.

When the plaintiff rested the defendant’s counsel requested the court to nonsuit the plaintiff or to direct a verdict for the defendant, on the ground that it appeared that the parties were tenants in common in the grain, and no undue interference by the defendant with the plaintiff’s share was shown. The motion was denied and the defendant’s counsel excepted.

The court charged the jury that if the defendant was asked to divide and deliver half the grain and refused, that was a conversion, to which the defendant’s counsel excepted.

So far as the injunction is concerned, the defendant has no reason to complain that she had not the full-benefit of the evidence ou that point. The testimony on her part tended to show that she declined to clean and deliver the wheat because she feared she would make herself liable for disobeying the injunction if she did so, and the jury were instructed that if that was true there was no conversion. As the jury found against the defendant, this branch of the case is of no consequence now, except in view of another trial. The only purpose of the injunction, as shown by the complaint in the injunction suit, was to restrain the defendant from disposing of her share of the crops and grain to the prejudice of the plaintiff’s alleged equitable lien thereon. It was not intended to prevent the defendant from delivering to the plaintiff her share. Even if the defendant was induced by the language of the injunction and the advice given to her by counsel to suppose that she was forbidden to separate and deliver to the plaintiff her share on demand, the fact that if she had done so she would have acted at the request and with the consent of the plaintiff, would have relieved her from the charge of having thereby violated the injunction. Still the testimony of the defendant and her husband that their refusal was dictated by fear of the injunction .pi’obably required a submission of - that question to the jury, but the fact that the jury did not find in-accordance with it shows that they gave careful and cautious consideration to- the testimony on that point.

But in some other respects we think there was error. The parties were owners in common of the grain. It has been held in this State that owners in common of grain or other personal property, in its nature separable in respect to quantity and quality by weight or measure (as the grain in question here was s-liown'to be), may sever their portions of the common bulk at will; and where one of them, having the entire property in his possession, appropriates the whole to his own use, and refuses on reasonable demand to let the other have his portion of it, he is liable for a conversion. (Lobdell v. Stowell, 37 How. Pr., 88; Channon v. Lusk, 2 Lans., 211.) But we fail to see that the evidence' brings the present case within this rule. The most that is proved is that the defendant refused to clean and divide the grain when requested to do so. Was she under any obligation to perform the labor of cleaning and dividing the grain ? Certainly the lease does not in terms impose it. The lease expressly ■ provides that the harvesting was to be done by the defendant;- that each party was to pay one-half of thresher’s bills, and that the defendant was to draw the plaintiff’s share to market for her at such times as she should reasonably require, but the lease is silent as to 'which party should clean or divide the grain. In this view of the case either party had the right to separate his share from the bulk and take it away at any time. It does not appear that the plaintiff proposed to exercise that right, or that the defendant denied that she had the right or did anything to interfere with its exercise. The evidence is, that although the defendant was in possession of the barn, the plaintiff had daily access to it, and it does not appear that the grain was locked up, or but that the plaintiff could have separated and taken away her share if she had chosen to do so. But instead of proposing to do that, she required that the defendant should do it for her. We do not think the defendant’s refusal to comply with that ■demand was equivalent to a conversion.

But let it be assumed for the purpose of the discussion (without •deciding the point) that by the proper interpretation of the lease the ■obligation of the defendant to “harvest” the grain imposed upon her the duty of doing everything necessary to fit it for market, except as otherwise expressly provided; that is to say, that it put upon her the duty of procuring the grain to be threshed, at the joint expense of both parties, and of cleaning and dividing it. Was her refusal to clean and divide the grain per se a conversion of the plaintiff’s share, or was it anything more than a breach of the defendant’s agreement, subjecting her to the payment of such damages as the plaintiff sustained by reason of the bi'each ? The plaintiff was at liberty to clean and divide the grain, looking to the defendant for the expense of so doing. Suppose the defendant had refused to harvest the crop, doing nothing however, to prevent the plaintiff from harvesting it, would her refusal have amounted to a conversion of the plaintiff’s share ? No case has gone the length of so holding. In Channon v. Lusk (supra) the grain was to be divided in the half bushel; the plaintiff demanded the right to clean and separate his share, and the defendant refused him permission and ordered him from the premises. In Lobdell v. Stowell (supra) the plaintiff went to the defendant’s premises for his share of the corn and oats, and defendant said he could not have them; they were locked up. The plaintiff demanded them of the defendant, and he refused to deliver them to the plaintiff, or to allow him to take them. That was held a conversion by the County Court and by the General Term of this court, in the sixth district. It also appeared in that case that each party had used a portion of the grain, and had subsequently agreed how the remainder should be divided between them. The Commission of Appeals held that the apportionment agreed upon operated as a severance of the tenancy in common, and that the defendant having refused, upon demand, to deliver up the plaintiff’s part, was liable for a conversion although there had been no actual separation of such part, and the court declined to pass upon the question whether the plaintiff could have maintained his action independently of such agreement. (Lobdell v. Stowell, 51 N. Y., 70, 75.) The ground on which the Commission of Appeals placed their judgment probably would have furnished a basis of recovery in this action, if the defendant had refused, on demand, to deliver to the plaintiff her share of the grain, or to allow her to take it, the portion each party was entitled to, having been fixed by the stipulations in the lease, and there being no evidence that either party had taken any part of the grain for her own use. True, the sheriff testified that when he divided the grain for the purpose of replevying the plaintiff’s share, he first took out the same number of bushels that he learned had been used by the defendant for seed upon the farm, and divided the balance equally, and took possession of one-half. What he did with the portion first taken out, does not appear, nor is the propriety of that reservation perceived from anything in the testimony, inasmuch as by the terms of the lease each party was to furnish one-half the seed, and consequently what was taken for seed was equally divided between them. But this does not affect the principal question. As the proof is, simply, that the defendant refused to clean and divide the grain, and not that she refused to deliver to the plaintiff her share, or to let her take it, we think there'is no evidence of a conversion.

The other cases cited by the plaintiff’s counsel are clearly distinguishable from this. Stall v. Wilbur (77 N. Y., 158), came up on demurrer, and the complaint alleged that the defendant had refused, on demand, to deliver to the plaintiff her share, but had sold and converted it to his own use. In Osborn v. Schenck (83 N. Y., 201), it was held that where the possession and use by one of two tenants in common of personal property, pf the property so held, develops into a destruction of the property, or of the interest of the cotenant, or into such a hostile appropriation of it as excludes the possibility of beneficial enjoyment, or if it ends in a sale of the whole property, ignoring the rights of such cotenant, a conversion is established. It was also held that the mere fact of possession and use by one of' such tenants in common, even though it prevents the possession and use of the other, furnishes no ground to the latter for an action for conversion. There is nothing in the present case to bring it within the rule first stated. The only other case cited is Van Doren v. Balty (11 Hun, 239). There the mortgagee of the interest of one tenant in common of a chattel, sold the whole chattel at a public sale by virtue of his mortgage, and it was held that one who purchased the chattel at such sale, with notice of the rights of the other tenant in common, and took possession of it, and asserted an exclusive title to the property, was liable to the latter in an action for a conversion. The distinction between those cases and the one at bar is obvious.

The plaintiff was permitted, against the objection and exception of the defendant, to prove the fact that some time before the crops' were harvested, the defendant mortgaged her undivided share of the wheat and barley to Coyle. The testimony was objected to as immaterial and irrelevant, and it is difficult to see what legitimate bearing it had upon the issue. It seems to have been regarded by the learned judge as throwing light upon the question whether there had been a conversion, for in charging the jury upon that subject, he instructed them that if they saw fit they could consider the fact that before the demand the defendant had transferred her share of the grain. But so far as the rights of the parties involved in this suit are concerned, the defendant had the right to sell or dispose of her own share in the crops so long as she did nothing to affect the plaintiff’s share. A sale by one tenant in common of his personal property, to amount to a conversion, must be a sale of the whole, or at least of some portion of the share of the cotenant. The question whether by the provisions of the lease, the plaintiff had an equitable lien on the defendant’s share is of no importance in this action, in which the plaintiff seeks to recover her own share only, and rests upon her legal title. Nor did the fact that the defendant had mortgaged her own share characterize her subsequent conduct, as it had no tendency to show that she intended to appropriate the plaintiff’s share to her own use. The testimony was irrelevant, and as it may have affected the verdict, its reception was error.

The motion for a new trial should be granted, with costs to abide event.

HabdiN and Bakeeb, JJ., concurred.

. So ordered.


text:
    RICHARD BURGETT, Appellant, v. CATHARINE L. STRICKLAND, as Administratrix, etc., of FRANCIS STRICKLAND, Deceased, Respondent.

      Statute of limitations — when the provisions of the new Oode me applicable to causes of action existing at the time of its passage — Oode ofOivil Procedure, see. 399, 414— Oode of Procedure, see. 99.
    On December 30, 1878, the summons in this action was placed in the hands of the sheriff for service upon the defendant, and the same was personally served upon him on September 27,1879. The cause of action accrued J anuary 1,1873. ■Held, that the question as to what acts constituted a commencement of the action within the meaning of that term, as used in subdivision 3 of section 414 of the Code of Civil Procedure, was to be determined by section 399 of the said Code of Civil Procedure, and not by section 99 of the Code of Procedure.
    That as the summons was not served upon the defendant personally, or by publication, within sixty days from the time the summons was placed in the hands of the sheriff, as required by section 399 of the Code of Civil Procedure, the action was not commmenced within the two years prescribed by subdivision 3 of section 414 of the said Code, and that the action was, therefore, governed and barred by the provisions of the new Code, limiting the time within which actions must be brought.
    Appeal from a judgment dismissing the complaint, entered upon a decision of tbe court upon a trial at the Cattaraugus Circuit, without a jury.

      Henderson <& Wentworth, for the appellant.

      Allen (& Thrasher, for the respondent.
   Smith, P. J.:

The original defendant was Francis Strickland, and he having died, his administratrix was substituted in his place. The action is on contract, and one of the defenses pleaded is the statute of limitations. The cause of action accrued 1st January, 1873, and from that time, the intestate, until his death, and the plaintiff, resided in the county of Cattaraugus. On 30th December, 1878, the summons-in this action was delivered by the plaintiff’s attorney to the sheriff of said county for service on the intestate, and it was served upon him personally on 27th September, 1879. Upon these facts, the court held, at the circuit that the demand was barred by the statute of limitations.

The sole question is whether the case is controlled by section 399 of the Code of Civil Procedure, or by section 99 of the old Code, as it stood at the time when it was superseded by the new Code. If section 399 controls, the claim is barred, because the summons was not personally served within sixty days after it was delivered to the sheriff, nor until after six years from the time when the cause of action accrued; if section 99 applies, the delivery of the summons to the sheriff was equivalent to the commencement of an action, within the provisions of that section, as amended in 1867 (Laws 1867, chap. 781, § 6), and it being within the six years the cause of .action was saved.

The general rule is that the statute of limitations which was in force when the suit was brought is that which determines the right of a party to sue (Patterson v. Gaines, 6 How. [U. S.], 550), and as chapter 4 of the new Code, which relates to the “ limitation of the time of enforcing a civil remedy,” and embraces section 399, took effect on the 1st September, 1877, nearly seventeen months prior to the delivery of the summons in this action to the sheriff, section 399 controls unless the present case is excepted from its provisions by the operation of section 414 of the new Code, contained in the same chapter.

That section, so far as it is material to the case in hand, is as follows: “ Section 414. The provisions of this chapter apply, and constitute the only rules of limitation applicable, to a civil action or special proceeding, except in one of the following cases : * * * 3. A case” not arising prior to 1st July, 1848, “in which a person is entitled, when this act takes effect, to commence an action, -x * * where he commences, institutes or otherwise resorts to the same, before the expiration of two years after this act takes affect; ” in which case, the provisions of law applicable thereto, immediately before this act takes effect, continue to be so applicable, notwithstanding the repeal thereof.”

The respondent’s counsel contends that section 414 applies ,only to such provisions of the chapter as constitute the rules of limitation, and that section 399 does not constitute a rule of limitation, but simply prescribes what shall, in certain cases, be deemed equivalent to tbe commencement of an action. To this, we think, there are several answers. In the first place, section 414 relates to all the provisions of the chapter, and applies to them all, whether they are strictly rules of limitation or not. In the next, place, section 399 may, fairly be said to fall within the provisions of the. chapter constituting “the rules of limitation,” inasmuch as it prescribes what shall be equivalent to the commencement of an action within the meaning of each provision of the act limiting the time for commencing an action.

.But lastly, the precise question is whether the case is within subdivision 3; if it is, section 99 of the old Code applies. The present case meets all the conditions of subdivision 3, unless it be that which relates to the commencement of the action. The question on that point is whether the action must be commenced as required by the new Code, or whether a compliance with section 99 of the old Code is enough. We think that the subdvision has reference, to the mode of commencing an action prescribed by the chapter of which it is a - part.

Until the case is brought within subdivision 3, section 99 is repealed as to it, and is of no effect, and consequently it cannot be resorted to for the purpose of ascertaining what shall constitute a sufficient service to bring the case within the subdivision. It follows that inasmuch as the delivery of the summons to the sheriff was not followed by a personal service of the same within sixty days thereafter, there was no suit commenced within the meaning of subdivision 3, and consequently the old Code does not apply, and the plaintiff’s claim is barred.

Judgment should be affirmed.

HaRdiN and Bareer, JJ., concurred.

Judgment affirmed.


text:
    JOSEPH S. LOWERY and JAMES J. LOWERY, Respondents, v. CALCINA B. CLINTON, ELLEN E. CLINTON, ANNIE B. CLINTON, FANNIE C. CLINTON and ABBIE M. CLINTON, Appellants.

      Fraudulent assignment of personal property — a creditor cannot set it aside, under co-judgment recovered after a general assignment has been made.

    On or about June 1, 1878, the defendant Calcina assigned to her children certain policies of insurance upon the life of her husband, which had been taken out by him and thereafter assigned to her. In July, 1878, Calcina made a general assignment for the benefit of her creditors. She then was and ever since has been insolvent. The plaintiff having recovered a judgment against her which was docketed January 23, 1880, and having issued an execution thereon which was returned unsatisfied, brought this action against the wife and her children to have the assignment of the policies set aside as fraudulent and void.

      Held, that the action could not be maintained.
    That if the assignment to the children was set aside as fraudulent and void the general assignment would still be an obstacle to the enforcement of the plaintiff’s claim.

      Spring v. Short (90 N. Y., 588) followed ; Leona/rd v. Clinton (26 Hun, 288) not followed.
    That if the assignment to the children was-void the general assignee might maintain an action to set it aside.
    That in any event the general assignee should have been made a party defendant.
    Appeal from a judgment of the Oneida Special Term, overruling a demurrer to the complaint.

      J. A. Lynes, for Calcina B. Clinton and others, appellants.

      Garitón B. Pierce, for Fannie 0. Clinton and others,- appellants.

      William Kernan, for the respondents.
   Smith, P. J.:

The plaintiffs, as judgment creditors of the defendant Calcina B. Clinton, seek by this action to set aside as fraudulent against creditors, an instrument in writing, by which the said defendant assigned to her children, who are also made defendants herein, certain policies of insurance upon the life of William M. Clinton, the husband of said Calcina, which the said William had taken out, and had assigned in his lifetime to the said Calcina. The complaint alleges that the assignment of tbe policies took place on or about tbe 1st day of ■June, 1878.

The plaintiffs’ judgment was recovered and docketed on 23d January, I860, and an execution was duly issued thereon and ■returned unsatisfied.

The complaint alleges that in July, 1878, the said Calcina being insolvent, made a general assigment of all her property to one William Lake for the benefit of her creditors, and that she has since remained and is now insolvent and unable to pay her debts. It also ■alleges that the said Calcina was insolvent at the time when she transferred said policies, and that the transfer thereof was made without consideration, with intent to hinder, delay and defraud her creditors, all which was well known to her said children.

The defendants demurred on the ground that Lake, the general assignee, should have been made a party defendant, and that the complaint does not state facts sufficient to constitute a cause of action.

The general assignment preceded the docketing of the plaintiffs’ judgment, and its validity is not questioned in the complaint. We are to assume, therefore, for the purposes of this appeal that the assignment is a valid instrument as between the parties to it and as against the present plaintiffs. It follows that as the general assignment carries all the property of the assignor for the benefit of her creditors and she is still insolvent, the plaintiffs are not in a position to attack the validity of the transfer of the policies. If the transfer is declared to be void the general assignment still remains an obstacle in the way of applying the policies, or their proceeds, to the payment of the plaintiffs’ judgments. These views seem to be supported by the case of Spring v. Short (90 N. Y., 538), decided in this department and affirmed by the Court of Appeals. To the same effect is Childs v. Kendall (17 N. Y. W. Dig., 546). As was said in Springy. Short, “the rule is well settled that a creditor’s bill filed for the purpose of removing a fraudulent obstruction must show that such removal will enable the judgment to attach upon the property.” (Geery v. Geery, 63 N. Y., 252; Southard v. Benner, 72 id., 424.) The same principle was applied in Smillie v. Quinn (90 N. Y., 492) and cases cited by EaRL, J. (p. 498).

We have said that the views above expressed seem to be supported by Spring’s case. They are so unless that case is distinguishable from this by the fact that there the property sought to be reached by the judgment creditor was real estate, while here it is personal property. But is not that a distinction without a difference ? In. neither case does the title of the general assignee or the lien of the-' judgment creditor attach until the fraudulent obstacle is removed, and when removed the prior legal title of the assignee is superior to the subsequent equitable lien of the creditor. The creditor by first commencing suit does not acquire a lien superior to that of the-assignee as he would in the case of an earlier judgment creditor. As between creditors having merely equitable liens the diligent is, preferred, but the legal title of the assignee to all the property of the assignor, whether it be personal or real, prevails over the subsequently acquired equitable liens of judgment creditors. If we are right in this a decree in this case setting aside the transfer of the policies would avail the plaintiffs nothing.

By statute (Laws 1858, chap. 814) the general assignee may maintain an action to set aside the fraudulent transfer. Should he refuse or unnecessarily neglect to do so, upon demand by any creditor interested in the assignment, it may be that such creditor would have the right to maintain an action (in behalf of himself and all others willing to join) to set aside the alleged fraudulent transfer, and compel a distribution of the proceeds of the property thus reached among the several creditors, according to'their rights under the assignment. Or in case the assignment itself was executed with a fraudulent intent, such creditor might bring suit to set aside the assignment, as well as the prior transfer, as fraudulent; but in either case the general assignee would be a necessary party; and we think.his absence in this case is fatal to the action, even if the complaint is sufficient in other respects.

In short, the assignment being fair and valid, the rights of creditors as distributees of the assigned property are fixed by it, and no creditor can, by any action of his own, acquire, any preference over other creditors, or any greater or other rights in respect to the distribution of the property of the debtor, than he is entitled to under the assignment.

The respondent’s counsel cites the case of Leonard v. Clinton (26 Hun, 288). With due respect for the learned court by which that case was decided, we are not prepared to concur in it, for the reasons above stated, and we regard it as overruled in Spring v. Short.

The judgment and order overruling the demurrer should be reversed and judgment should be ordered sustaining the demurrer, with costs, and giving leave to the plaintiffs to amend in twenty days on payment of the costs of the demurrer and of the trial at Special Term and of this appeal.

Hardin and Barrer, <TJ., concurred.

Ordered accordingly.


text:
    ROME SAVINGS BANK, Respondent, v. HENRY KRAMER and Others, Appellants.

      •Sailings bank — right of., to invest its funds upon personal security — when a pa/rty contracting with a corporation cannot plead that the act was ultra vires — what constitutes a good consideration for a note.

    By its charter, and various other acts amendatory of the same and relating to its powers and duties, the plaintiff, a savings bank, was authorized to invest moneys deposited with it in certain specified securities, including public bonds and stocks and mortgages upon real estate, but not promissory notes. The trustees were also directed “to invest, as soon as practicable, in public stocks or public securities, or in bonds and mortgages, as provided in this act, all sums received by them beyond an available fund of not exceeding twenty-five thous- and dollars, or not exceeding one-third of the total amount of deposits with said institution, at the discretion of said trustees, which they may keep to meet the current payments of said corporation, and which may, by them, be kept on deposit, on interest or otherwise, or in such available form as the trustees may direct."

      Held, that an available fund exceeding in amount $25,000, might, in the discretion of the trustees, be held to meet current payments, provided it did not exceed in amount one-third of the total amount of deposits.
    That under the authority to keep the said available fund “ on deposit, on interest or otherwise, or in such available form as the trustees may direct,” the trustees might make loans therefrom upon personal security, e. g., the promissory note of the borrower.
    The plaintiff brought this action upon a joint and several promissory note, which was given to it, upon the surrender of two other notes held by the plaintiff as security for money loaned by it for the benefit of a church.

      Held, that even if the plaintiff had no right to take the note, the defendants could not set up this fact as a defense to the action brought against them upon it.
    ,Tbat as, even if all the notes were void, the plaintiff would have had a right of action for the money actually loaned ; the surrender and extinguishment of that cause of action was a good consideration for the note in suit.

      Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Oneida Circuit, and from an order denying a motion for a new trial.

      W. Kernan, for the appellants.

      Henry A. Foster, for the respondent.
   Smith, P. J.:

The action is on a joint and several promissory note, dated 1st July, 1874, for $3,500, payable to the plaintiff'or order on demand, with interest. The note was executed for the benefit of St. Joseph’s church, in Rome, by the defendant Kramer and thirty-nine others, members of that church, and was given upon the surrender by the plaintiff of two other notes held by it as security for money loaned by the plaintiff for the benefit of said church, and upon which there was due at the time of the surrender the sum for which the note in suit was given. The note in suit was the only security for the debt, and is the only cause of action statéd in the complaint.

The sole defense set up is that the note in suit was taken by the plaintiff a<5 security in violation of the plaintiff’s charter and of the general laws prohibiting unauthorized banking, and is therefore illegal and void.

The plaintiff was incorporated by virtue of chapter 324 of the Laws of 1851. By the sixth section of the act the general business and object of the corporation was declared to be, to receive on deposit “ such sums as may be from time to time offered therefor by tradesmen, clerks, mechanics, laborers, minors, servants and others, and investing the same in the securities or stocks of this State, or of the United States, or in the stocks or bonds of any city authorized to be issued by the legislature of this State, or in such other manner as is authorized by this act.” It was also provided in the same section that “ no money deposited in the said institution shall be invested except in the securities or stocks mentioned in this section in opposition to the vote of any trustees; but by the consent and approbation of all the trustees present at a regular meeting, amounts not exceeding three thousand dollars to any one individual may be loaned ” on real estate, etc. And by the same section it was made the duty of the trustees of said corporation, “to invest, as soon as practicable, in public stocks or public securities, or in bonds and mortgages, as provided for in this act, all sums received by them beyond an available fund of not exceeding twenty-five thousand dollars, or not exceeding one third of the total amount of deposits with said institution, at the discretion of the said trustees, which they may' keep to meet the current payments of said, corporation, and which may by them be kept on deposit, on interest or otherwise, or in such available form as the trustees may direct.”

By the fourteenth section of the act the corporation was subjected to the provisions of the eighteenth chapter of the first part of the Revised Statutes, “ as far as the same are applicable,” among which are the provisions that no corporation shall possess or exercise any corporate powers, in addition to those expressly given, except such as shall be necessary to the exercise of the powers so given (1R. S.§3), and that no corporation, not expressly created for banking purposes, shall by any implication or construction, be deemed to possess the power of discounting bills, notes or other evidences of debt, etc. (Id., § i.j

By chapter 150 of the Laws of 1865, the said act of 1851 was amended so as to allow the plaintiff to loan on bond and mortgage to the sum of $5,000 in one loan, and by,chapter 845 of the Laws of 1868, savings banks were authorized to loan the moneys deposited with them in certain other specified securities, in addition to those mentioned in the former acts. The latter act was repealed in 1875. (Laws 1875, chap. 371, § 56.)

It cannot be contended successfully that the note in suit was obnoxious to the provisions of the restraining act. It was not discounted ” in the sense in which that term is used in banking operations, interest on the debt secured by it not haying been exacted or paid in advance. (City Bank v. Bruce, 17 N. Y., 507, per SeldeN, J., p. 515.) In fact, no money passed in the transaction attending its execution, the note having been given and accepted as a substi-tute_ for other notes held by the plaintiff as' a security for money previously loaned. But, treating the nóte in suit as given for a loan of money which the plaintiff had received on deposit, to be invested as required by the terms of its charter, the first question is, whether in loaning such money upon the security of the note in suit the corporation exceeded its powers.

If the power to loan on personal securities resides in the act, it must be looted for in the clause relating to the “ available ” fund, and there the respondents’ counsel contends it is to be found. "With the exception of that fund, the moneys deposited with the plaintiff are to be invested in the securities specified in the act, and promissory notes are not among them. And the specification of particular securities is an.implied exclusion of all others. The main purpose of the plaintiff’s charter was to create an institution in which clerks, servants, laborers, minors and the other class of beneficiaries mentioned in the act might deposit their savings and have them securely invested for their benefit. The object was not- to furnish •banking facilities for the community, nor primarily to create a profit for the corporation. As the success of the scheme was necessarily dependent on the security of the investments, the act was carefully guarded in that respect, and public stocks and securities, and bonds .secured, by real estate mortgages, were the only securities specified in which investments might be made. That being the case, was it intended to permit the “ available ” fund, which as will be seen hereafter the trustees might, in their discretion, increase to one-third of the total amount of deposits, to be invested in mere personal securities ? The appellants’ counsel contends that the fund was not to be invested at all; but was to be kept ready for use to meet current .payments, and to that end to be kept either in the safe of the corporation itself, or on deposit on interest or otherwise. And he contends further, that the authority to “keep on deposit” is an authority, not to deposit with a private individual, upon the security of his certificate of deposit, or his promissory note payable on demand, but with a bank authorized by law to receive deposits. In 1847 the trustees of savings banks, who were authorized to make temporary deposits in any of the incorporated banks, were authorized to make such deposits with banking associations formed under the general banking law (chap. 478, § 1), and in 1865 with national banks. (Chap. 214, § 1.) And in 1854 all savings banks were authorized to deposit in trust companies. (Chap. 72, § 1.) Subsequently to the passage of two of the acts just above cited, and at the same session with the other, the charter of the plaintiff was ■amended, and the clause respecting the “available fund” was re-enacted without alteration. (Laws 1865, chap. 150.) The argument is plausible that by the words “ on deposit,” the act intended a deposit in one of the banks or trust companies in which savings banks were authorized to deposit by law.

The argument of the appellants’ counsel, based upon the provisions above referred to and the general purpose of the act, is supported ‘by the opinion of Mr. Justice YaN Yoest at Special Term in Paine v. Barnum (59 How. Pr., 303), the opinion of Mr. Clifford A. Hand, the referee in the same case (vol. 4, Assembly Doc., 1879, p. 52), and the opinion of the late attorney general, Mr. Schoonmaker (Id., p. 44), in the case of the Syracuse Savings Bank.

The respondent’s counsel urges in reply that by the language of the clause relating to the available fund the trustees may keep the fund “on deposit, on interest or otherwise, or in such available form” as they may direct; and that, keeping those words in view, a deposit with a responsible individual upon the security of his promissory note, payable on demand, is fully authorized, and that it not only meets all the requirements and purposes of the act in respect to the “ available ” fund, but is consistent with the general purpose of the act. The words “ or in such available form, etc., cannot be said to be used m'erely to qualify the preceding words “ on deposit.” The use of the copulative “ or ” indicates that the words introduced by it are intended to furnish an alternative method, or methods, of keeping the fund that may be resorted to, in the discretion, of the trustees, instead of the method previously pointed out. The word “or” was omitted in the charter of the Bond Street Savings Bank, which was in judgment in Paine v. Barnum (supra, 307, 308), but in the case of the Syracuse Savings Institution the language was identical with fliat of the charter of the present plaintiff. (Laws 1849, chap. 179.)

The argument of the respondent’s counsel as to the interpretation of the words referred to derives much support from the provisions of an act passed in 1857, in relation to the several savings banks in the State, requiring them to make semi-annual reports to the superintendent of the bank department, and in such reports to state, among other things, “the amount, if any, loa/ned on personal securities; * * .* the amount of cash on hand or on deposit in bank ; * * * and the amount loaned or deposited in any other manner P (Chap. 136, § 1.) This seems to be an express recognition by the legislature of the authority of savings banks at that time to make loans on personal securities, and to loan or deposit in other ■depositories than banks. Where is such authority to be found except in the clause relating to the ■ available ” fund % This •question of power was considered in the unreported case of The Skaneateles Savings Bank v. Vary, in this department in 1874, and it was there held that the plea of ultra vires and the restraining act constituted no defense to a promissory note given to the bank for a loan of money, although the note in that case was discounted and was made payable four months after date. The clause as to the *( available ” fund was the same in that case as in this. On the whole, we conclude that the legislature intended to authorize the trustees of the plaintiff to make loans from the “ available fund ” upon personal securities.

We are of the opinion that the trustees might, in their discretion, keep a sum not exceeding one-third of the total amount of deposits as a fund to meet current payments, although it exceeded $25,000. In ■doing so they were, of course, to exercise their judgment and to act in good faith with a view to keeping on hand so much as would probably be needed for the purpose and no more, so far as the same •could be reasonably estimated. As the fund so reserved, including the loan to the defendants, was within the limit of one-third of the ■deposits, we reach the conclusion that it was not ultra vires.

We are relieved, somewhat from the embarrassment of deciding a ■contention, so well supported by argument on both sides, by the fact that as the questions discussed were set at rest by the act of 1875 {chap. 371), and the act of 1882, which took its place (chap. 409), giving uniformity to the charters of all savings banks, like questions ■cannot again arise; and our decision, if. erroneous, will not form a precedent for future cases.

But if the conclusion above reached is erroneous and the interpretation contended for by the appellants’ counsel ought to prevail, it does not follow that the note in suit is void and cannot be enforced. The taking of it was not an act immoral in itself; it was not made illegal by statute in such a sense that the law will not enforce it, but will leave the parties as it finds them; nor is the note declared void by statute. All that can be said is, that the contract, of which the giving of the note was a part, was ultra vires on the part of the corporation; but as the corporation has fully executed it, the defendants cannot set up the want of power to shield themselves from a just liability. As was said in Whitney Arms Co. v. Barlow (63 N. Y., 63), “ the plea of ultra vires should not, as a general rule, prevail, whether interposed for or against a corporation, when it would not advance justice, but on the contrary would accomplish a legal wrong.”

Again, as we have said, no money was loaned when the note in suit was executed. It was given in exchange for other notes then held by the bank, executed by other persons, which were then canceled and surrendered. Those notes were given for a loan of money, and even if they were ultra vires and void, the bank had a good cause of action against, the makers of them for the money loaned. (Pratt v. Short, 19 N. Y., 437; Pratt v. Eaton, Id., 449.) The surrender and extinguishment of that cause of action was a good consideration for the note in suit, and this view of the- case avoids the defense set up by the appellants.

The judgment and order should be affirmed.

Hardin and Barrer, JJ., concurred

Judgment and order affirmed.


text:
    FRANK WALTS, Appellant, v. GEORGE E. NICHOLS and Others, Respondents.

      Attachment — the affidavit must show a right to recover actual, as distinguished from rwmincd damages — motion papers need not specify defects which relaU to the merits — what objection not taken below cannot be raised on appeal — right of one partner to have an attachment against the firm property vacated.

    An affidavit upon which a warrant of attachment was issued contained the usual formal allegations, and stated as the cause of action that the defendants were copartners and commission merchants in the city of Chicago ; that on or about May 12, 1883, they purchased for the plaintiff 2o0 barrels of pork at seventeen dollars and ninety-two and one-half cents per barrel at a commission of two and one-half cents per barrel for purchasing, which was paid by the plaintiff; that the defendants were to sell the same, if requested so to do by the plaintiff, at any time during the year 1883, and not otherwise; that on or about June 18, 1883, the' defendants, without the knowledge, consent or request of the plaintiff, sold said pork at the price of fifteen dollars twenty-seven and one-half cents per barrel, and reported to plaintiff that it had been sold and delivered to other parties. It then stated that it was sold for less than it cost and claimed to recover the difference.

      Held, that the attachment was properly vacated as the affidavit failed to show a right to recover more than nominal damages.
    A bare statement in the affidavit of the amount claimed is not enough, the facts showing the right to recover must be set forth.
    It is not the intent of the statute to allow the property of a defendant to be attached upon a claim for nominal damages only.
    It was claimed on the appeal that the particulars in which the attachment papers ■were defective should have been specified in the notice of motion to vacate it, and that the moving papers should have been entitled as to the defendant, “ George E. Nichols, impleaded, etc.,” instead of " George E. Nichols.”

      Held, that as Ihe first defect objected to related to the merits, and was not a mere irregularity, it was not necessary to specify it in the notice of the motion to vacate the attachment.
    'That a defect in the title of the action cannot be taken advantage of on appeal if an objection thereto was not taken below.
    Where an attachment is issued in an action against partners, either defendant may move, alone, to have the attachment wholly vacated in so far as it affects firm property.
    Appeal from an order of the Oswego Special Term vacating a warrant of attachment on motion of the defendant George E. Nichols.

      W. A. JVims, for the appellant.

      'O’Brien de Emerson, for the respondents.
   Smith, P. J.:

The attachment was granted upon an affidavit made by the plaintiff. The affidavit alleged that the action is for the recovery of money; that the cause of action is on a contract other than a promise to marry; and that the amount of the plaintiff’s claim is $2,150 and interest from 18th June, 1883, over and above all counter-claims known to the plaintiff. The affidavit then proceeded to state the ¡grounds of said claim and cause of action, substantially as follows: 'That the defendants were copartners and commission merchants in 'the city of Chicago, and that on or about 12th May, 1883, they purchased for plaintiff 250 barrels of pork at seventeen dollars and ¡ninety-two and one-half cents per barrel, at a commission of two and one-half cents per ban-el for purchasing, which was paid by plaintiff; the defendants to sell the same, if requested so to do by plaintiff, at any time during the year 1883, and not otherwise; and that on or about 18th June, 1883, defendants, without the knowledge consent or request of plaintiff, sold said pork at the price of fifteen dollars and twenty-seven and one-half cents per barrel, and reported to plaintiff that it had been sold and delivered to other parties. Similar averments were made in respect to another quantity of two hundred and fifty barrels of pork, and a quantity of lard, which it is not necessary to state more particularly. The price at which the several lots of property were sold, was' $2,150 less than the price at which they were purchased, as alleged in the affidavit.

It is contended by the defendants’ counsel, and was held at Special Term, that the facts stated in the affidavit do not show a right to recover more than nominal damages, and in that view of the case we concur. There is no averment that the market value of the property, at the time it was sold by the defendants, exceeded the price at which it was sold, or that it afterwards rose to a point above that price, and in the absence of those facts, it is difficult to see how the plaintiff suffered anything more than nominal damages by the ■ defendants’ breach of the contract. (Gruman v. Smith, 81 N. Y., 25.) If the plaintiff, on being notified of the sale, had disaffirmed it and required the defendants - to replace the property, and on their refusing had replaced it himself, in a reasonable time, at an advanced market price, the advance in price over what was realized at the sale would have been a proper measure of damages. (Baker v. Drake, 53 N. Y., 211.) Or, if the market value of the property, on the day of sale, was greater than the price at which the defendants sold it, the plaintiff might have recovered the difference. (Taussig v. Hart, 58 N. Y., 425.) Or, if the plaintiff had actually paid for the property he might claim as damages the difference between the price at which it was sold,, and the highest market price between the time of sale and the end of the period during which the defendants were bound to hold the property. (Baker v. Drake, supra; Colt v. Owens, 90 N. Y., 371.). But neither of the cases supposed is made by the averments in the affidavit.

A bare statement of the amount of the claim is not enough. The facts must be set forth showing the right to recover. (Pomeroy v. Ricketts, 27 Hun, 242; Smith v. Davis, 29 id., 306.)

No claim for nominal damages is made in the affidavit, and if one had been made it would not have justified the issuing of an attachment. It is not the intent of the statute to allow the property of a defendant to be attached upon a claim of nominal damages only. For these reasons the order appealed from should be affirmed, unless some of the preliminary objections taken by the plaintiff’s counsel, at the Special Term, he held valid.

The objections that the particulars in which the attachment papers are claimed to he defective should have been specified in the moving papers, and that the moving papers should have been entitled, as to the defendant, George E. Nichols, impleaded, etc., ” instead of George E. Nichols,” are not tenable. The defects on which the motion is founded relate to the merits and are not mere irregularities; and as the original notice of motion or order to show cause is not. printed in the . appeal book, we cannot say that it was not properly entitled. Besides, the order made, when the parties were before Mr. Justice YaNN, shows that the only objection then taken to the original order to show cause, was that it. did not sufficiently specify the papers on which the motion was to be heard. The objection now urged, that it is not properly entitled, not having been taken at that time, was -waived.

The only other preliminary objection is that the motion - should have been made in behalf of all the. defendants, and not by one alone. We understand the Code to recognize the right of one of several defendants, to move to vacate an attachment (secs.‘682, 688, 689) to the extent of his interests in the property. ' (Trow’s Printing Co. v. Hart, 85 N. Y., 600.) In this case the affidavit alleges that the defendants are copartners. As the moving party is interested in the entire partnership property, he seems to be entitled to a complete vacatur of the attachment. ' -

Had the objection been taken that the attachment cannot be vacated as to the separate property of the defendants not joining in the motion, a different question would have been presented. But that question is' not before us and we express no opinion upon it. As the objection, if taken, would have been in the nature of a plea of nonjoinder of parties, it was waived by not being taken. And 'it is to be presumed from the facts that such objection was not taken, that the defendants, not uniting in the motion, had no sepá-rate property within the jurisdiction that could be reached by the attachment.

The order should be affirmed, with ten dollars costs and disbursements.

Haedin and Baeker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    GAZENA C. JONES, Appellant, v. ORVIS H. ZOLLER and Others, Respondents.

      f\hen a husband may be said to have absented himself from his wife — when a second marriage by the wife is lawful — 2 B. B., 139, see. 6 —what evidence is admissible to show intention on the part of the husband to absent himself. ' ■

    The words “ absented himself,” in section 6_of 2 Revised Statute, 139, providing’ that the marriage of any person whose husband shall have absented himself for the space of five successive years, shall only be void from the time that its nullity shall be pronounced by a court of competent jurisdiction, means a withdrawal of the husband from his wife, his relatives and the ordinary and usual opportunities of identification — such a withdrawal from his wife and family as would, after the lapse of five successive years, lead naturally to the inference that death had ensued.
    The plaintiff and one Firth intermarried at Deer River in 1835. They then lived for three or four years in Troy and afterwards in Syracuse, where they were finally turned out of their house for. non-payment of rent. Firth having failed to provide for his wife, she then left him, and provided for herself and two children, living first at a boarding-house in Syracuse, and afterwards with relatives at' Bameíia, Deer Greek and Gouverneur, at which latter place she engaged in the millinery business.
    Firth enlisted in 1861 and served about eighteen months ; he visited his wife,when on a furlough, and stayed with her about four weeks, and again in the spring of 1863 or 1864, when he left the army; when he left the army he wanted his wife to come and live with him in Syracuse; she at first consented, and then refused by the advice of her friends; she did not see him from that time until after she had married one Jones in 1875. Firth sent his wife money on two occasions, once before and the second time just after he left the army.
    After his wife refused to live with him, Firth went to Pithole, in the oil regions, stayed there about eighteen months, and then returned to Syracuse, where he worked a while, and in 1865 went'to Cardiff, a small place twelve miles from Syracuse, where lie lived till after his wife married Jones. He worked in different families, and finally took a housekeeper, with whom he cohabited and, it was said, intermarried.

      Held, that Firth had absented himself from his wife within the meaning of the statute.
    Upon the trial of the action the plaintiff offered to show that a marriage ceremony had been performed between Firth and his housekeeper.

      Held, that the evidence should have been received, as it bore directly upon the question whether his-change of residence from Syracuse to Cardiff was made with the intention of absenting himself from his family.
    Appeal from a judgment, entered on a verdict rendered at the Jefferson Circuit, and from an order denying a motion for a new trial on the minutes.
    This action has already been before the General Term; its decision on the former appeal being reported in 29 Hun, 551.

      Eton H. Brown, for the appellant.

      O’Brien <& Emerson, for Zoller, respondent.

      Porter db Watts, for other respondents.
   Smith, P. J.:

The action is to recover dower in a farm of about fifty acres, the property of James Jones, deceased, with whom the plaintiff intermarried on 12th October, 1875. The only defense brought up by this appeal is that the plaintiff had a former husband, John Firth, who was living at the time of her marriage with Jones. At the trial the plaintiff attempted to bring her case within the statute {2 It. S., 139, § 6), which provides as follows: “ If any person whose husband or wife shall have absented himself or herself for the space of five successive years without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity shall be pronounced by a court of competent authority.” She gave evidence tending to show that Firth had absented himself from her for more than ten years, next preceding her marriage with Jones, and that during that period she did not know that Firth was living. At the close of the evidence the learned judge who presided at the trial submitted to the jury for their decision the following questions, to wit:

First. Did John Firth, the first husband of the plaintiff, absent himself for the space of five successive years prior to her marriage to James Jones within the meaning of the statute on the subject ?

Second. Was said John Firth known to the plaintiff to be living during the period of five years immediately preceding her marriage to James Jones?”

The jury answered each of the questions in the negative. In other words, they found that the .plaintiff, for five years immediately preceding her marriage to Jones, did not know that Firth was living, and yet that he had not absented himself all that period. And upon those findings the judgment for the defendant rests.

The respondent’s counsel, in his points, anticipates the objection that the findings are inconsistent with each other, and suggests a mode of reconciling them, which may be put in the form of the following propositions: (1.) The plaintiff was not aware of the whereabouts of Firth, because she neglected to inquire, and avoided all means of information on the subject, and that being the case, the jury found that she was not aware of the fact that Firth was alive. (2.) Firth did not absent himself from his wife, but she left him, and remained away from him.

The first proposition imputes bad faith to the plaintiff, and an omission to inquire when she might have inquired, and by so doing might have learned her husband’s whereabouts. That position is in conflict with the verdict of the jury. They -were instructed by the court, in accordance with the request of the defendant’s, counsel, that the plaintiff must have acted in good faith, and that good faith could not exist on her part unless she exercised proper and due diligence in ascertaining whethér or not Firth was dead. Under that instruction, there being very persuasive evidence that the plaintiff acted in' good faith, the verdict that the plaintiff did not know that Firth was living necessarily negatived the charge that she acted in bad faith or was negligent, and that fact. disposes of the first proposition. So far, the case stands thus: For about ten years next preceding the plaintiff’s marriage with Jones, as the evidence shows without dispute, Firth and the plaintiff did not live together, and were absent each from the other. During all that period, as the jury have found, the plaintiff was ignorant of his-whereabouts, and after that lapse of time, she married Jones, believing in good faith that Firth was not living.

Did the plaintiff absent herself from Firth, or to state the matter in another way, is the verdict that Firth did not absent himself, warranted by the evidence ? Upon the former appeal, Mr. Justice HaediN, who delivered the opinion of the court, interpreted the words absented himself,” as used in the statute, to mean a withdrawal of the husband’s whereabouts from his wife, his relatives,, and the ordinary and usual opportunities of identification, such a, withdrawal from his wife and family as would, after the lapse of five successive years lead naturally to the inferenee that death had ensued. That rule was followed and adopted by the trial judge in his charge to the jury, and by the application of it to the evidence the question now under consideration is to be determined.

The plaintiff and „ Firth were married in 1835, at Deer river, Lewis county. The plaintiff testified that they lived at Troy three or four years after their marriage, and then Firth went to New York city, and his wife to her relatives at Pamelia Four Corners,, with whom she lived five or six months. Next they lived togethei and kept house in Syracuse, some four months, at the end of which time, as the plaintiff testified, Firth failed to provide for his wife. They were set out of doors by their landlord for non-payment of rent, and she left him on account of his dissipated habits and went to a boarding-house, her husband not paying her board. Firth remained about the city until December, 1861, when he enlisted in the army, where he remained about eighteen months. Shortly before he enlisted, his wife went to her relatives and lived with - them, at Pamelia, Deer Creek and Gouverneur about a year and a half. At the latter place she engaged in the millinery business. She had with her the two children of her marriage with Firth, whom she supported. While she was at Gouverneur, Firth sent her once $100. He visited her there once for four weeks when he was on a furlough. They corresponded together frequently whip she was there and he in the army, and in the spring of 1863 or 1864, after he left the army, he visited her therefor two weeks, and asked her to go and live with him. And about that time she was in Syracuse on business, and Firth let her have fifty dollars to aid ber in lier business at Gouverneur. She did not see him again until after her marriage with Jones in 1875.

Firth testified, in substance, that he and his wife moved from Troy to Syracuse in 1858; that he had resided in Syracuse and vicinity ever since; that in 1863 or 1864, after he let her have the fifty dollars to aid her in her business, she wrote him that she had made up her mind to come and live with him; that he then, spoke for a house to rent, and soon after received another letter from her saying she declined to come through the advice of friends. That he then went to Pithole, in the oil regions; was there eighteen months ; returned to Syracuse ; worked there part of the summer, and in 1865 went to Cardiff, a small place twelve miles from Syracuse, where he lived till after the plaintiff was married to Jones. He testified that the first two or three years of his stay there, he lived in the families of different persons for whom he worked, and that in 1868, a Mrs. Shepardson became his housekeeper, and they lived together six or seven years, till she died. For the purpose of the discussion it may be assumed that he married Mrs. Shepardson, as the plaintiff offered to prove that fact, and it was excluded on the defendant’s objection that it was immaterial and incompetent.

It will be observed that while each of these witnesses states some facts that the other does not, there is no substantial contradiction between them, and the facts upon which the present question is to be decided are undisputed. The position of the defendant’s counsel seems to be that as the wife left the place of residence and domicile •of her husband, she absented herself from him. It may be true that until Firth went to Cardiff to live he had a legal residence in Syracuse, but his removal to Cardiff was a change of residence. And from the time when he and his wife were turned into the street imtil the final correspondence that passed between them, he did not provide, or offer to provide, a home for his family. On the •contrary, he acquiesced in their living at Gouverneur, as is shown by his visits to his wife there, and his remittances of money to aid her in the business she was carrying on at that place.

Now, whether or not the plaintiff violated her conjugal duty in refusing to return to Syracuse and live with her husband is not in question here. But if Firth, stung by her refusal or from any other motive, then resolved to abandon his former residence and keep her in ignorance of his whereabouts, and succeeded in doing so until she married Jones, the fact of his "‘absenting himself,” within the meaning of the statute, is established. It seems to • us that very cogent proof of his absenting himself from his wife and family is found in the fact of his speedy departure to an adjoining state after the receipt of the letter from his wife; his remaining there a year and a-haif; his removal to an obscure hamlet after a brief return to Syracuse; his living in the families of his various employershis marrying and cohabiting for years with a woman other than his wife; and his withholding from his wife and children all information as to his whereabouts in the- meantime. It is immaterial that his new place of residence was within a dozen miles of the old one. So loi®g as his new place of residence was unknown to his wife,, and he refrained from acquainting her with it, he “ absented himself ” as effectually as if he had gone to a distant country without her knowledge.

■ The irresistible conclusion is that the verdict that Firth did not absent himself is against the clear weight of the evidence, and this has led to inconsistent findings. He did take himself away and' keep himself away for more than five years, and, as the jury have found, his wife, without any omission on her part, was ignorant of his whereabouts, and actually believed him dead, and yet they have reached a conclusion that stamps her subsequent marriage as adulterous.

•We are also of the opinion that the exclusion of the offer to-prove that a ceremony of marriage was performed between Firth and a woman other than his wife was error. The fact bore directly upon the question whether his change of residence was with the intention of absenting himself from his family. It tended significantly to show that he not only intended to repudiate all the obligations which he owed to his wife and children, but also to withhold from them all knowledge of his whereabouts.

The judgment and order should be reversed, and a new trial ordered, costs to abide the event.

IíardiN and BARKER, JJ., concurred.

So ordered.