author: Booees, J.:

text:
    YATES ROWE AND WESLEY ROWE, Executors of the Last Will and Testament of GEORGE ROWE, Deceased, Respondents, v. PHEBE PARSONS, ORRIN PARSONS and GEORGE PARSONS, Survivors, etc, Appellants.

      Administrator's iond — assignment of — Ordei'—date of fd/mg petition for — Surrogate'sdeei'ee — recitals of, as to jurisdictional facts.

    When a bond running to the people is given by an administrator for the faithful performance of his duty, the order of the surrogate is a sufficient assignment of it.
    When it appears that an order was made November twenty-third, and that the petition on which it was based was verified, and was a record in the surrogate’s office on that day, the fact that the petition was not marked filed till November twenty-sixth, does not impair the validity of the order made thereon.
    The recitals in a surrogate’s decree, which are full as to all jurisdictional matters, are pítima facie evidence of its validity when the question arises in a collateral matter.
    Appeal from a judgment in favor of plaintiffs, entered on the verdict of a jury, and from an order denying a motion made on the judge’s minutes for a new trial.
    The last will and testament of Joel Parsons, deceased, was proved before the surrogate of Columbia county, on the 14th day. of April, 1856.
    Ohjection being made to the granting of letters testamentary to the executor named in the will, by order of said surrogate, the defendant Jabez Parsons, together with the defendants Phebe Parsons, Orrin Parsons and one George Rowe, as his sureties, duly executed a bond, conditioned as follows :
    “The condition of this obligation is such, that if the above bounden Jabez Parsons, who is named as one of the executors of the last will and testament of Joel Parsons, deceased, and of all and singular the goods, chattels, rights and credits, which were of said deceased, shall faithfully execute the trust reposed in him, as one of the executors therein named, and who is now3 sole acting executor ; and also shall obey all orders that may from time to time be made by the surrogate, touching the administration of the estate committed to him, then this obligation to be void, otherwise to remain in full force'and virtue.”

      Said bond was, on the 7th day of June, 1856, duly approved by, and filed with, said surrogate-; and, thereupon, letters testamentary of said will, were duly issued by said surrogate to Jabez Parsons, as sole executor thereof, who assumed the burden of the execution thereof.
    To induce said George Rowe to execute said bond, and to indemnify him, against any loss or damage he might sustain by reason of its execution by him, the defendants Phebe Parsons, Orrin Parsons and George Parsons (who were sister and brothers of Jabez Parsons, the executor), executed and delivered to said Rowe a bond, conditioned as follows:
    The condition of the above obligation is such, that if the above bounden Phebe, Orrin and George Parsons, their heirs, executors or administrators, shall well and truly pay, or cause to be paid, unto the people of the State of New York, or to the heirs, next of kin and creditors of the estate of Joel Parsons, late of the town of Claverack, deceased, all moneys which shall come to the hands of Jabez Parsons, as executor of said estate, and to save and keep harmless the said George Rowe of and from all moneys which he may be liable to pay by reason of his becoming security for said Jabez Parsons on his bond, as executor of said estate, and bearing date this date, then the above obligation to be void, otherwise to remain in full force and virtue.”
    On the application of said George Rowe (who was a creditor of said Joel Parsons, deceased, having a promissory note of said Joel), said Jabez Parsons was duly ordered and required by the Surrogate, to render an account before him, of his proceedings as such executor, pending which proceedings, and on the 8th day of November, 1867, said George Rowe died, leaving a last will and testament, which was duly proved before said surrogate, and letters testamentary thereon were duly issued by him to Yates Rowe and Wesley Rowe, the executors therein named. Thereafter said Yates Rowe and Wesley Rowe were duly substituted as parties to said proceeding or accounting, in place of said George Rowe, deceased, and the proceedings duly continued.
    On the 26th day of October, 1868, said surrogate duly made, entered and recorded a decree in said proceedings, wherein, among other things, it was adjudged and decreed : “ That the claim of the said George Rowe, deceased, against the said Joel Parsons, deceased, with the interest upon the same, and the costs, fees and expenses of the proceedings to compel the said Jabez Parsons, as such executor as aforesaid, to render an account of his proceedings in this matter, as this day adjusted by this court, amounts to the sum of $4,378.42. That said Jabez Parsons, as such executor, as aforesaid, received.an abundance of assets from and as the estate of the said Joel Parsons, deceased, with which to pay the same, and that he has not applied such assets to the payment and satisfaction of the said claim and demand of the said George Rowe, deceased; and it is further ordered, adjudged and decreed that the said debt and demand of the said George Rowe, deceased, is a lien and charge upon the assets and estate of the said Joel Parsons, deceased. That said Jabez Parsons, as such executor of the last will and testament of the said Joel Parsons, deceased, pay to the said Yates Rowe and Wesley Rowe, as such executors, as aforesaid, of the last will and testament of the said George Rowe, deceased, out of said assets and estate, forthwith, the said sum of $4,375.42, with interest upon the same from and after this date.”
    A certificate of such decree, was on application of plaintiffs, duly made out by said surrogate in duplicate, one of which was, on November 4, 1868, filed with the clerk of said county of Columbia (the county wherein the said Joel Parsons resided at the time of his decease), and the other, on November 5, 1868, with the clerk of the county of Kings (the county wherein the said Jabez Parsons, executor, then resided), and same was thereupon duly entered and docketed by said clerks, respectively, in their said offices.
    Executions upon such certificates so filed, entered and docketed, were duly issued to the sheriffs of said counties of Columbia and Kings, and by both returned wholly unsatisfied.
    Thereafter the surrogate of said county of Columbia, on application of said Yates Rowe and Wesley Rowe, executors, duly assigned the said bond so given by said Jabez Parsons as such executor, etc., to them for the purpose of being prosecuted.
    Plaintiffs thereupon brought this action upon said executor’s bond, to recover the amount of said surrogate’s decree.
    The defendants first demurred to the complaint, as not stating facts sufficient to constitute a cause of action. 'The demurrer was argued before Mr. Justice Ho&ebooM and overruled, and defendants, by leave of the court, answered.
    The cause was tried at the Columbia Circuit in January, 1872, before Mr. Justice IIogeboom and a jury.
    The jury found a verdict for plaintiffs for $5,371.67.

      Newk/wk <& Ohase, for the appellants.

      Qcrnl & JSsselstyn, for the respondents.
   Booees, J.:

Justice demands that there should be no difficulty in the way of a recovery by the plaintiff in this action, on the executor’s bond, growing out of the fact that the plaintiff’s testator was one of the obligors. The parties who now raise the objection against the recovery on that ground, obligated themselves simultaneously with the making of the bond, in effect, to save Mr. Rowe harmless therefrom. As between Rowe and those obligors, the latter assumed and took upon themselves, the burden and responsibility of the obligation. The papers, when read together, were in effect an agreement on their part with Rowe that he need pay nothing, but that they, would answer all claims that should be made against him on the obligation ; or, to state it more directly, that whenever any question should arise between them, that is, between Rowe or his personal representatives on the one hand, and those obligors on the other, growing out of the enforcement of the obligation, the parties should stand the same as if Rowe’s name was not on the bond. This is, manifestly, what the parties intended, and their intention is well evidenced by the papers, construed in the light of the 'surrounding circumstances.

Again, what is the defense interposed? Is it the non-joinder of Rowe, a co-obligor ? The answer to this objection is, that he is dead; hence the action is well brought against the defendants as survivors. Is it because of Rowe’s position on the instrument sued, or of his legal relation to the parties sued ? The answer is ready and effectual. He or his personal representatives are on the record, with all other parties interested in the subject-matter of the action ; and under our present system of pleading, the rights of all may be adjudicated on the facts alleged and proved. The objection to a recovery, on the ground that the plaintiff’s testator was a eo-obligor on the bond, is not, under the facts here alleged, well taken.

The plaintiffs were authorized to bring the action in their own names, to enforce the defendant’s liability on the bond, although it runs to the people. The order of the surrogate was sufficient authority. (Baggott v. Boulger, 2 Duer, 160; Cridler v. Curry, 44 How., 345 ; Thayer v. Clark, 48 Barb., 243, affirmed in Court of Appeals, but not reported; Field, Admr., v. Van Cott, 9 Law Jour., 192.) In the the first case cited it is said that the surrogate acts by order, and that the order is the only assignment contemplated by the statute. An objection is taken to the order, that it purports to have been made on the twenty-third of November, whereas, it appears, that the petition on which it was based, was not filed until the twenty-sixth, three days thereafter. It seems that the petition was sworn to on the twenty-third, and it was a record in the surrogate’s office as the foundation of the order of that date. The fact that it was not marked filed until the twenty-sixth does not impair the validity of the order made thereon, as it does not overcome the presumption that it was before the surrogate on the twenty-third, when the order purports to have been made. The objection that the order of assignment of the twenty-third of November was without jurisdiction is not well taken.

The principal if not the only remaining question in the case, is, as to the effect to be given to the order or decree of the Surrogate’s Court, which recites the proceedings in that court against the executor for an accounting, and directs the payment by him as executor of the plaintiff’s claim against the estate, as therein settled and determined.

The order was set out in the complaint, and it was therein alleged, to have been made, on due proceedings in the Surrogate’s Court. Issue was raised by the answer, as to all the averments of the complaint relating to such proceedings and order, by a denial of knowledge or information thereof sufficient to form a belief. Thus the plaintiffs were put to proof of the order. When offered in evidence, objection was raised “ that there was no sufficient evidence of any facts to authorize the making of the decree, and that it was not shown that the surrogate had jurisdiction in the matter.” The objection was overruled and exception was entered. At the close of the trial the objection was again taken, on the motion to dismiss the complaint, “ that the recitals of facts in the decree were not evidence of the facts recited as against the defendants who answered, and in whose behalf the objection was interposed. The motion was denied and exception was entered.

Many other objections were interposed, relating to irregularities or errors in the proceedings before the surrogate, which, however, did not reach the question of jurisdiction. These were properly overruled, as the decree could not be impeached in this action for matters of error merely. If errors existed in those proceedings they should be corrected by appeal from the order. ,

Let us now return to the objection relating to the jurisdiction of the surrogate, as regards the decree entered on the proceeding for an accounting, and to compel payment, by the executor, of the plaintiff’s claim against the estate.

As is often repeated in the books, the Surrogate’s Court is one of inferior and limited jurisdiction — a creation of the statute; and, further, that those claiming any benefit from its orders or decrees must show affirmatively the authority for making them, by proof of the facts conferring jurisdiction in the particular case. So far there is no diversity of opinion, and the authorities are numerous in support of those propositions. But the question remain's, how may those facts be proved, that is, what shall be deemed evidence of those facts; and how far shall they be held conclusive when proved? They may be established by the production and proof of- the proceedings giving jurisdiction, according to the statute, step by step. This is one mode of proof. But is this course absolutely necessary ? The learned judge; in the case at bar, held that it was not, that is, he held, in effect, that the recitals in the decree being full to all jurisdictional matters, were p'ima facie evidence of its validity. Now, it has been laid down, that, in a case like this, where the question arises in a collateral action, recitals are to be deemed sufficient and conclusive evidence of every thing recited which is pertinent to the adjudication, except facts constituting jurisdiction ; and, as to those facts, the recitals are prima facie evidence of jurisdiction. Such seems now to be the settled law of this State. The subject as to what extent recitals in judgments and decrees should be deemed evidence of the facts recited has been one of difficulty and elaborate discussion, both in England and in this country; and it has been said that, on the question as to how far they should be deemed evidence of facts conferring jurisdiction, “ the cases fluctuate from absolute verity to mere nullity.” It is, therefore, little profitable to go far back with a view to collate the authorities. It will here suffice, to accept the rule as we now find it declared in this State. In speaking of recitals in the records of courts of limited and special jurisdiction, it is said, in Oowen & Hill’s Notes to Phillip’s Evidence, that, “in New York we may safely consider these jurisdictional recitals as prima facie evidence.” In Bolton v. Jacks (6 Rob., 166), this subject received a very careful examination by Jones, J., who declared the law as follows: “ The question next arises, how are the facts, showing jurisdiction in an inferior court, to be proved, when it is desired to put such judgment in evidence in a collateral action % The law in this State is, that if the jurisdictional facts are recited in the proceedings of the court, such recitals are prima facie evidence of the facts so recited ; if they are not recited they must be proved aliunde J The learned judge, after further considering the question, remarks: “ In pleading such judgment in a collateral action, the facts showing jurisdiction must be pleaded, but may be proved prima facie, either by recitals in the proceedings, or by evidence aliunde, if doubt is thrown upon them.” The rule thus laid down is also declared in other cases. (Jenks v. Stebbins 11 Johns., 226; Van Steenbergh v. Bigelow, 3 Wend., 42; Barber v. Winslow, 12 id., 102; Hard v. Shipman, 6 Barb., 621, 625; Gould v. Glass, 19 id., 179, 188; Belden v. Meeker, 2 Lans., 470; Adams v. Sar. and Wash. R. R. Co., 11 Barb., 414, 455; Lewis v. Penfield, 39 How., 493 ; Potter v. Merch. Bank, 28 N. Y., 641, 652, 653.) Thus it seems that the decree was well proved, being full and complete in its recitals, in the absence of any evidence tending to show a want of jurisdiction. It was, therefore, properly admitted in evidence, and per se established all that was necessary relative to that branch of the case. It showed by its recitals, which were prima facie evidence of the facts recited, and which were in no way disproved, jurisdiction both of the subject-matter of the decree, and of the person to be affected or bound by it; and jurisdiction being thus established, the recitals became conclusive evidence of every other fact recited, pertinent to the adjudication.

These considerations will dispose of .the numerous offers of proof, which were directed to errors and irregularities, in the proceedings -before the surrogate, other than such as were jurisdictional. Those offers were properly overruled. The decree could not be impeached for mere errors in this collateral suit, not affecting the jurisdiction.

There is another view of the case urged upon our consideration. It is insisted, by the plaintiff’s counsel, that the defendants, being sureties for the executor on the bond, are estopped from gainsaying the surrogate’s jurisdiction in the proceedings relating to the assets, procured by reason of its presentation; and we are referred to The People v. Falconer (2 Sandf., 81, 83), as an authority to that effect. But the conclusion above stated renders it unnecessary to discuss this point.

We are of the opinion (1), that the plaintiffs may maintain an action for a breach of the bond in suit, on the facts stated in the complaint; (2), that a breach of the bond, is well alleged therein against the defendants; and (3), that all the material averments of the complaint, not admitted by the answer, are sufficiently proved. Nor do we find any error in the record as regards the admission or rejection of evidence affecting the merits.

The order and judgment appealed from must be affirmed, with costs.

Learned, P. J., and Boardman, J., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Bocees, J.:

license: Public Domain

text:
    THE FIRST NATIONAL BANK OF CHITTENANGO, Appellant, v. MARGARET MORGAN, Administratrix, etc., Respondent.

      Negotiable paper — made by partner for his individual benefit — JSmdence of partnership debt — new note to take up one ov&r-due — when liability on first note corvtinues — makers of note — when regarded as smeties — licibUity of

    Negotiable paper made by a member of a firm in tbe partnership name, although for his individual benefit or outside the partnership business, is binding on the firm in the hands of a bona fide holder.
    The note is, of itself, presumptive evidence of the existence of a partnership debt.
    A promissory note of a debtor given in renewal, or in place of one similar in form and by the same party, is not a discharge of the liability existing on the first note, although the latter is given up, and after the first note becomes due judgment is recovered thereon and execution issued but returned unsatisfied.
    A note was signed by A. & Co. for the accommodation of B., who indorsed it to O. One of the firm of A. & Co. died. Held, that although A. & Co. occupied the position of sureties to B., yet C. had a right to regard them as principals, and as to him therefore the liability continued on the note against the representatives of the deceased partner, and the case was not within the principle of the decision in Gettey v. Binsse (49 N. Y., 385).
    Appeal by the plaintiff from a judgment in favor of the defendant dismissing the plaintiff’s complaint, entered on the decision of the court, in an action brought to enforce the payment of a debt out of the assets of a deceased partner, the surviving partner being insolvent.

      Wm. G. Buger, for the appellant.

      W. JTernan, for the respondent.
   Bocees, J.:

This action is brought to collect a debt evidenced by a note for $2,500, dated September 8th, 1869, made in the partnership or firm name of “ Wm. Petrie & Co.,” to the order of “ Bennett & Avery,” and indorsed by the latter. The firm of “ Wm. Petrie & Co” was composed of William Petrie and Samuel Morgan, the latter being the defendant’s intestate. The partnership terminated by the death of Morgan on the 10th October, 1869. This action may be treated as an action on the above described note.

It seems that the note in suit, was the last but one, of a series of notes, commencing November 21st, 1868, all in form and as to parties alike, and made, each and every of them, by Petrie, without consideration, for the benefit of the payees, and without the knowledge or consent of his partner, Morgan. These notes had been.discounted, or, following the first one, had been accepted in renewal, each of the last preceding one, by the plaintiff without notice of the fact that they were accommodation notes, or of any fact invalidating them, or either of them, as against any of the parties thereto. Por any thing the plaintiff knew or had notice of, the notes were valid, business notes, enforceable against the parties according to their apparent liability as makers and indorsers, and they were accepted before maturity in the due course of business. The plaintiff was therefore a bona fide holder and owner for value of the note in suit, and Samuel Morgan was liable thereon as a member of the firm of "William Petrie & Oo. Negotiable pamper made by a member of the firm in the partnership name, although for his individual benefit, or outside the partnership business, is binding on a firm in the hands of a bona fide holder. (Catskill Bank v. Stall, 15 Wend., 364; S. C., 18 id., 466; Wells v. Evans, 20 id., 251; Exch. Bank v. Monteath, 26 N. Y., 507, 508; Far. and Mech. Bk. of Kent Co. v. Butchers’ and Drovers’ Bank, 14 id., 623, 628 ; same case, 16 id., 135.) So made, the note is, of'itself, presumptive evidence of the existence of a partnership debt. (Elwyn v. Drake, 3 Johns. Cas., 594; Vallett v. Parker, 6 Wend., 615 ; Whitaker v. Brown, 16 id., 505.) The liability of the defendant’s intestate, on the note of September eighth, to the plaintiff, seems well established ; and the question arises, whether liability continued thereon against his estate, and existed at the time of the commencement of this suit. The debt evidenced by this note has never been paid. It still remains unsatisfied. The learned judge who tried the cause so finds. But it seems that another note, dated November 8th, 1869, was given in renewal, or in place of the one in suit, similar in form,' and for the same amount; and the latter was thereupon .delivered up to the payees, with whom all the business with the plaintiff was transacted. At this time the plaintiff was uninformed as to the death of Morgan, which had occurred on the tenth of October preceding. The note of November eighth was sued by the plaintiff, and judgment was recovered thereon August 12, 1871, against William Petrie, as survivor of the firm of William Petrie & Co., and against Bennett & Avery, the payees and indorsers. Nothing was collected on this judgment, and the execution issued thereon, against all the defendants, was returned wholly unsatisfied. Now, did the acceptance of this note of November eighth, and the subsequent proceedings thereon to enforce its payment, discharge the debt as against Morgan’s estate? The giving of the note of November eighth did not satisfy or discharge the debt evidenced by the note of September eighth. (Cole v. Sackett, 1 Hill, 516 ; Elwood v. Diefendorf, 5 Barb., 398; The Winsted Bank v. Webb, 39 N. Y., 325 ; Pratt v. Foote, 12 Barb., 212, 213; Farrington v. Frankfort Bank, 24 id., 562; Olcott v. Rathbone, 5 Wend., 490; Bates v. Rosekrans, 37 N. Y., 409.) Nor did its prosecution to judgment, without satisfaction, (Davis v. Anable, 2 Hill, 339 ; Hawks v. Hinchliff, 17 Barb., 492 ; The Corn Exch. Ins. Co. v. Babcock, 57 id., 231.) But it is, further urged that, in view of the fact that the note was an accommodation note for the benefit of Bennett & Avery, therefore the firm of William Petrie & Co. occupied the position of surety ; and the liability being joint, Morgan’s estate was absolutely discharged, both in law and in equity, according to the decision in Getty, Trustee, v. Binsse, Executor (49 N. Y., 385). As to the plaintiff, however, the firm did not hold the position of surety. The firm, was maker of the note, and, on the face of the paper, principal debtor. To this liability, a bona fide holder had aright to hold the firm. Thus, it seems that the debt has neither been paid, satisfied nor discharged. This action is well authorized, too, against the personal representative of Morgan, the deceased partner; it being made to appear that Petrie, the surviving partner, is insolvent. (Pope v. Cole, 55 N. Y., 124.) It follows, from the above consideration of the case, that the plaintiff • was entitled to judgment on the facts found by the trial court. The judgment for the defendant was erroneously directed, and must be reversed.

Judgment reversed and new trial ordered, costs to abide the event.

Present — Learned, P.- J., Bocees and Boardman, JJ.

Ordered accordingly.


author: Boardman,' J.:

text:
    EMMA L. ESTES, Respondent, v. WORLD MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Insurance policy — deliver\/ of, made contingent upon certificate of good health of assured — evidence.

    A policy of insurance was made out to tlie plaintiff upon the life of her husband, and held by the defendant’s agent for some time, uncalled for. He was then instructed not to deliver it, till he was furnished with a certificate of the good health of the assured. Such a certificate was furnished to him, the policy was then issued, and soon thereafter the assured died. On the trial the certificate was offered in evidence, and rejected on the ground that plaintiff was not bound by the act or declaration of the assured. Held, that the evidence in the case being sufficient to require the court to submit to the jury the question, whether the assured was or was not acting as the agent of his wife, its rejection was error.
    Appeal from a judgment for plaintiff, entered on tbe verdict of a jury. A motion for a new trial upon the minutes was made and denied, but no appeal was taken from such order. Exceptions to the rulings and decisions of the court are therefore alone considered by the court. The action was brought to recover upon a policy of insurance issued on the life of the plaintiff’s husband.

      W. P. Prentice, for the appellant.

      “ If the husband, as the agent of the wife, procured the policy by fraud, she cannot retain the benefit of it, and be relieved from the consequences of the fraudulent means by which it was obtained.” (National Life Lns. Go. v. Minch, Opin. by Church, Ch. J., 53 N. Y., 149; Durst v. Burton, 47 id., 167, 174; Baker v. Union Mutual Life Ins. Go., 43 id., 283; Graves v. Spier, 58 Barb., 349.) That the exclusion of the certificate was error, is clearly shown by the following cases. (Baker v. Union M. L. I. Go., supra ; Griswold v. Haven, 25 N. Y., 595; Bank of U. S. v. Davis, 2 Hill, 452; Jeffrey v. Bigelow, 13 Wend., 518; Durst v. Burton, 47 N. Y., 174; Smith v. Tracy, 36 id., 79 ; Hl/well v. Qhaniberki/n, 31 id., 611; Bennett v. Judson, 21 N. Y., 239.) “ A married woman is liable for the fraud of her husband, acting for her, as her agent, in the purchase of real estate, although she was wholly ignorant of the fraud practiced and did not authorize it, where she had the fruits of the bargain; kept the property bargained for, and sold it, and she retains the advantage.” (Grmes v. Spier, 58 Barb., 349.) “ It is the duty of the assured to communicate to the company, any material change in health, in the interval between the making the application and the completion of the contract by the payment of premium.” ( Whitley, Admr., v. Piedmont and Arlington Life Ins. Go., 4 Bige. Ins. R., 361; British Eq. Ins. Go. v. Great West Railw. Go., 3 id., 264.) The taking the policy in June, on the application signed in the previous April, without disclosing the fact that Estes had consulted Dr. Bernard Berens, was a fraud, and avoids the contract. (British Equitable Ins. Go. v. Great West. R. Go., 3 Big., 264; Sillem v. Thornton, 3 Ell. & Bl., 868; Dig. Fire Ins. Decis., 221 [10].) “ A warranty is in the nature of a condition precedent, and must be fulfilled before performance ;ean bo required of the insurer.” (13 Wend., 92, note a.) “ It forms a condition precedent, and must be strictly complied with.” (6 Cow., 676, note 2.) “ Fully and completely.” “ Substantially is not enough. (48 N. Y., 627.) The provision was an express warranty in the contract of insurance; and it having been broken, the policy was held void. (Eagan v. Mut. Ins. Go. of A., 5 Denio, 326; Jeffries, Admvr., v. Economical M. Life Lns. Co., 11 Alb. L. J., 300.) The motion for nonsuit should have been granted. Its refusal was error. {Foot v. Sabin, 19 Johns., 154; Bryden v. Bryden, 11 id., 189; Pratt v. Hull, 13 id., 335 ; Rudd v. Mavis, 3 Hill, 287; Lomer v. Meelter, 25 N. Y., 361; Kelly v. National Bcunk of Erie, 52 Barb., 333; Johnson v. Hudson R. R. R., 20 N. Y., 73; Gonzales v. N. Y. and H. R. R., 38 id., 440; Wild, Admr., v. H. R. R. R., 24 id., 430.)

      Eselt Gowen, for the respondent.
    The certificate of Charles M. Estes was properly excluded by the court. It would not, if false, have avoided the policy, because the validity of the policy is not made dependent upon the truth or falsity of the certificate. The application, the form of which is furnished by the company, provides that it “shall be the basis of the contract’’between the company and the assured. As a general rule, statements of the person whose life is insured, are not evidence against the party for whose benefit the policy is issued. (Edington v. Mut. Life Ins. Go., 12 S. C. [Hun], 1; Swift v. Mass. Mut. Life Ins. Go., 2 N. Y. S. C., 303; Jiawls y. American Mut. IAfe Ins. Go., 27 N. Y., 283.)
   Boardman,' J.:

About tbe 1st of April, 1873, upon an application duly made, a policy of insurance was made out by defendant to the plaintiff, upon the life of her husband. The plaintiff and her husband united in the application, and, I think, it appears that the husband acted for and with the knowledge of the wife in procuring the execution of the policy by the defendant. By reason of the husband’s absence at the south, the policy, though in the agent’s hands ready for delivery, was not called for. The agent made known this fact to the defendant, by whom he was instructed not to deliver the policy, until he was furnished with a certificate of the good health of the assured. During the month of June Mr. Estes wrote to inquire why the policy was not delivered. In answer the reason was given; and, soon thereafter, Mr. Estes, the assured, sent a certificate that he was in good health. Upon receiving such certificate, and the premium, the policy was forwarded to Mr. Estes, who died of consumption on the 10th of January, 1871.

This certificate was offered in evidence and rejected, upon the ground that it was the act and declaration of the husband, and was not binding upon, or evidence against the plaintiff, with whom the contract was made.

Evidence was afterward offered tending to show that the assured, at the time he signed such certificate, was suffering from ulceration of the lungs, and was in a very critical condition of health. It is .claimed, by the defendant, that the policy was issued upon the faith of such certificate; that the certificate was false in fact; that the evidence shows the assured must have known it was false; that the defendant, relying upon such representation, and issuing the policy on the faith thereof, was defrauded; and that the act and declaration, in this respect, of the assured, was evidence against the plaintiff.

If the contract of insurance had been made with Mr. Estes himself, the evidence would have been competent. If Mr. Estes was acting as the agent of his wife the plaintiff, in procuring this policy to be issued, it would likewise have been competent. Whether lie was liis wife’s express agent for this purpose, would have been a question of fact, if the evidence had been admitted. I think there was sufficient evidence, to have justified the submission of that question to the jury. Of course,- such submission could not be made in the absence of this evidence, nor, under the ruling of the court, woidd evidence tending to show such agency be of any consequence.

The husband, in fact, procured this policy for the plaintiff upon this certificate. He could not otherwise have procured it. By taking the policy and suing upon it she ratifies his acts, and makes them her own. In Baker v. Union Mutual Life Insurance Company (43 N. Y., 288, 289), Church, Ch. J., says, of a similar case: “ If the agent exceeds or transgresses his authority, the principal may repudiate his acts altogether; but he cannot affirm in part and repudiate in part; take the benefit of the favorable parts of a contract, and reject the residue.” The plaintiff cannot claim to enforce the policy as valid, and ignore the instrumentalities whereby she obtained it. The same principle is expressed, with equal clearness, in National Life Insurance Company v. Minch (53 N. Y., 149; S. C., 5 N. Y. S. C., 549); Graves v. Spier (58 Barb., 386); Elwell v. Chamberlain (31 N. Y., 619).

But the very question has been lately decided by the Court of Appeals, adversely to the plaintiff, in Swift v. Massachusetts Mut. Life Insurance Company (12 Alb. Law. Jour., 363, reversing upon that point, S. C., 2 N. Y. S. C., 302). The court there holds that prior declarations, when made at a time not too long before the application and examination, and when a part of the res gestae of some act or fact, exhibiting a condition of health which they legitimately tend to explain, are admissible against the policy holder to show knowledge in the insured of his physical condition. The relations between the policyholder and the person whose life is insured are such, that the former is bound by the answers of the latter, as to material facts, and is affected by his knowledge.

The cases cited by plaintiff’s counsel (Edington v. Mut. Life Insurance Company of New York, 12 S. C. [5 Hun], 1; Bawls v. Am. Mut. Life Insurance Company. 27 N. Y., 282), are not in point. The policies in those cases were not issued upon the faith of the acts or declarations attempted to be proved; nor were they alleged to be part of fraudulent conduct invalidating the policy. The declarations in this case were part of the res gestes.

I conclude, then, the rejected evidence was admissible. If it was false, in fact, and the defendant was defrauded thereby, the policy was void, unless Mr. Estes was in no sense the agent of his wife.

Upon a new trial these questions should be submitted to the decision of a jury.

Many other exceptions were taken by the defendant, and are urged upon this appeal; except such as are controlled and practically decided by the question already discussed, I see no occasion to doubt the rulings and decisions of the learned judge at the Circuit.

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

Present — Learned P. J., Bockes and Boardman, JJ.

Ordered accordingly.


author: Boakdman, J.:

text:
    DENNIS MAHER, Respondent, v. THE HIBERNIAN INSURANCE COMPANY OF OHIO, Appellant.

      Insurance — when properly is examined by the agent — erroneous desm’ipiion — Conversation between agent and insured person

    Where no written application tor insurance is made, Dut the agent of the insurance company examines the property insured, and, with full knowledge of the facts, draws up the policy of insurance, errors in the statements of the policy, as to the occupancy of the property, do not constitute a defense to an action brought to enforce it.
    Evidence of the conversation between the insured and the agent of the insurance company, is admissible for the purpose of showing that the description was not that of the insured.
    Appeal from a judgment for the plaintiff, on the verdict of a jury, and from an order denying a motion for a new trial, in an action on a policy of insurance.

      Matthew Male, for the appellant.

      A. J. Colmn, for the respondent.
   Boakdman, J.:

The property insured, is claimed by the defendant, to have been pointed out by plaintiff to its general agent while the policy was in force, and to have been a different property from that burned. Upon the evidence given by the general agent it is urged that plaintiff is estopped from maintaining this action.

The plaintiff, however, contradicts the general agent of the defendant in this respect. Here was a conflict of evidence which was fairly submitted to the jury, and its verdict is conclusive.

The property burned was described in the policy as a double, framed building, “ occupied as a dwelling.” That is claimed by the defendant to be a warranty on the part of plaintiff that it was so occupied. In fact, it was partly occupied as a grocery, and for the sale of ale and liquors, and known as the Hibernian House. Was this description a warranty, and did the fact last stated constitute a breach of the warranty ? .

The evidence tends to show, and the verdict of the jury determines, that the agent of the defendant personally examined the premises for the purpose of this insurance; that such agent knew of this use of a part of the premises; that his attention was specially called to the fact; that he asserted it was of no consequence, and that it did not materially increase the risk; that such agent, after such survey, wrote the policy and delivered it to plaintiff; that plaintiff made no written application, and gave no description of the property to be insured, and that after the policy was issued the plaintiff again called the attention of the agent to the defective description, and was again told by the agent that it made no difference. If, therefore, there were any misdescriptions or errors of statement, they must be imputed to the defendant, in the absence of fraud on the part of plaintiff. The defendant knew all the facts, and drew its own contract. It is therefore estopped from setting up its own mistakes as a defense to this action. (Rowley v. Empire Ins. Co., 36 N. Y., 550; Bodine v. Exchange Fire Ins. Co., 51 id., 121; Owens v. Holland Purchase Ins. Co., 56 id., 565 ; Insurance Co. v. Wilkinson, 13 Wallace, 222.)

The act of the agent is the act of the company; his knowledge of facts is also the knowledge of the company. (Bodine v. Exch. Fire Ins. Co., and Ins. Co. v. Wilkinson, ante; Van Schcick v. Niagara Fire Ins. Co., decided at this term.)

Applications were signed by the insured, or the company had no knowledge of the property described in the policy, in the cases cited by defendant’s counsel and holding a different rule.

The evidence of conversations, and of what occurred between plaintiff and defendant’s agent, was cqmpetent for the purpose of showing, that the description was not plaintiff’s, and that it was in no respect his mistake, fraud or misdescription. (Ins. Co. v. Wilkinson, 13 Wallace, 222.) Besides, the same facts were proved without objection or exception by the agent Kernan.

■ The defendant also claims that the proofs of loss made by plaintiff were false, in not showing in what manner the building insured and the several parts thereof were occupied at the time of the loss. The preliminary proofs of loss showed this building was occupied as a dwelling-house. Any fraud or false swearing in such proofs of loss, forfeits the policy by its conditions. I have looked through the evidence and failed to find any proof that the building was occupied at the time of the fire as a grocery or liquor store. In the absence of such proof, the point was not well taken upon the motion for a nonsuit.

Nor do I see that any such defense is interposed. If the policy was forfeited, by reason of false swearing or fraud, on the part of plaintiff in making his preliminary proofs of loss, that constituted an affirmative defense, which should have been pleaded in the answer. A neglect to do so was a waiver; no such issue is made by the complaint and answer, nor was the question, apparently, raised by evidence upon the trial. For these reasons, I think the motion for a nonsuit upon this point was properly denied.

The other grounds upon which the motion for a nonsuit was made, have already been considered and not sustained.

Upon the whole case it is not apparent, that any error exists to the prejudice of the defendant, and the judgment and order must therefore be affirmed, with costs.

Present- — Learned, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs.


author: Boardman, J.:

text:
    In the Matter of Opening HUDSON AVENUE, in the City of Albany.

      Ohap. 77 of 1870 — charter of city of Albany— street openings — duty of surveyor and corporation counsel — compensation of.

    The common council of the city of Albany, by virtue of the power conferred upon it by the provisions of its charter, to prescribe the duties of the city surveyor, passed an ordinance requiring him to “survey and make maps of all ground required for the opening, widening or straightening of any street, rbad,” etc. The charter provided that “ no officer of the city government, except a collector of city taxes, or counsel to the corporation, shall have or receive any payment, or any compensation or commission, for services pertaining to the duties of his office, in addition to his salary.” By chapter 802 of 1872, providing for the appointment of commissioners by the court to appraise the value of the land necessary for the opening and widening of streets, and to assess the same upon the lands benefited, the chamberlain of the city is authorized and directed “ to pay the said commissioners, corporation counsel and surveyor the costs and charges, as taxed by the judge or court.” Held, that the duties imposed upon the surveyor by the city ordinance related only to the grounds required lor the opening, and not to the lands to be assessed therefor, and that he was entitled to a reasonable compensation for any services he might render to the commissioners in preparing maps of the property taken and assessed.
    Prior to 1867, the Mayor’s Court of the city of Albany had jurisdiction of proceedings to acquire lands necessary for the opening and widening of streets, and and was accustomed to tax the costs of the corporation counsel therein, on the same principle as was applied in this case, although there was no law specifically defining the costs to be taxed. In 1867 the Mayor’s Court was abolished, and its jurisdiction vested in the Supreme Court.

      Held (1), that under the act of 1872, requiring the chamberlain “ to pay * * * the corporation counsel * * * the costs and charges as taxed by the judge or court,” he was entitled to a reasonable compensation for any services rendered to the commissioners, to be computed as between attorney and client; (2), that his costs were not regulated by chapter 270 of 1854, providing for costs in special proceedings; (8), that the actual labor performed must be made to appear and avalué be affixed thereto by the taxing officer; (4), that the quantity of labor might be shown by the number of foiios in the papers necessarily drawn, and copies made and specific services rendered; and that the taxing officer should fix a rate per folio for copies and a value for specific services, irrespective of any fee bill, in the exercise of his best discretion and judgment.

      This is an appeal by the city of Albany and its tax-payers, from an order of the Special Term, taxing the costs and charges of E. J. Meegan, as attorney, and JR. H. Bingham, as surveyor, in the above matter.
    In 1873 these proceedings were instituted, in pursuance of a resolution of the common council of the city of Albany, for the purpose of widening Hudson avenue, in the city of Albany. Upon the coming in of the report of the commissioners, its confirmation was opposed by a number of the persons whose property was assessed, as benefited by the proposed improvement, and an order was entered, denying the motion for its confirmation, which order was, upon appeal, approved by the General Term (2 Hun, 580); and upon a further appeal to the Court of Appeals, the appeal was dismissed.
    Subsequently the case was brought before Mr. Justice Osborn, and the following bill of costs was taxed and allowed by him:
    SUPREME COURT.
    In the Matter oe Opening and Widening HUDSON AVENUE, erom No. 67 Hudson Avenue to Broadway.
    Three commissioners.......'....................... $4? 125 00
    R. H. Bingham and James Browne for surveys....... 4 >550 00
    Printers’ fees, Argus, Journal and Express.......... 100 00
    Chamberlain’s clerk............................. 500 00
    Retainer attorney and counsel...................... 8 00
    Attorney and counsel attending motion appointing commissioners................................. 8 00
    Attorney and counsel notice and swearing commissioners ........ 8 00
    Drawing motion papers for appointment, 25 cents; 1 engrossed do................................. 10 50
    Postage and serving notices, etc................... 51 75
    Drawing special inquisition and ret. including all papers, being 13,125 folios, 28 cents................... 3; 675 00
    Engrossing do.................................. 1>837 50
    Copy to file with chamberlain...................... 1 > 837 50

      Title to premises taken and assessed................ $1,575 00
    Attorney and counsel attending motion to confirm nisi, $8; briefs, $3............................. 11 00
    Drawing order to confirm nisi, 2 folios, 56 cents; engrossed, 28 cents ; clerk’s fees, all.............. 1 34
    Attorney and counsel motion to confirm copy, etc..... 2 80
    For costs, $1; copy do., 50 cents................... 1 50
    $18,324 04
    The questions presented by this appeal, were, as to the right of the city surveyor and corporation counsel, to receive any compensation for services rendered to the commissioners.
    Section 3 of title 6 of the charter (chap. 77, Laws of 1871), provides that “ no officer of the city government, except a collector of city taxes or counsel to the corporation, shall have or receive any payment or anjr compensation or commission for services pertaining to the duties of his office, in addition to his salary.” The common council were authorized to prescribe the duties pertaining to the offices of corporation counsel and city surveyor. Article 1 of chapter 3 of the ordinances of the city of Albany, provides :
    Section 1. The law department shall consist of the law committee of the common council, and the corporation counsel. It shall have an office in “ the City Building,” and shall have charge of and conduct all the law business of the city, and of the departments thereof, and all other law business in which the city shall be interested, when so ordered by the city ; and shall have charge of and conduct the legal proceedings necessary in opening, widening and altering streets, and draw the leases, deeds and other papers connected with the finance and other departments. The corporation counsel shall be the chief officer of said department.

      Grerwille Tremaán, for the city of Albany.

      B. W. Beckham, for the appellants.

      W. O. Mooli, for Meegan and Bingham, respondents.
   Boardman, J.:

In 1873 proceedings were instituted, for the opening and widening of Hudson avenue, commissioners appointed, surveys made, legal services rendered in aid of the commissioners, and finally an inquisition was found or report made, and filed with the county clerk. The attempt to open, etc., the avenue was after-wards abandoned, the Special Term having denied the motion to confirm the commissioners’ report. During this time Meegan was the corporation counsel, and Bingham city surveyor. Both had rendered important and valuable services in aid of the commissioners during the pendency of the proceedings. In June, 1875, their costs and charges were retaxed upon notice and against opposition, at the sums specified in the order appealed from, and paid. Such taxation and payment were under the Laws of 1872, pages 764, 768, which provided for the payment of such “ costs and charges as taxed by the j udge.” By a previous part of the same section 1, “ The costs, charges and expenses incident to the proceedings, which shall, previous thereto, be taxed and certified as to the amount, by any judge of a court of record” shall be added to the amount of damages and apportionment, and assessed upon property by the commissioners.

By reason of the abandonment of the proceeding, these costs cannot be assessed against property holders for benefits, but they become a direct charge against the city, and incidentally against its tax-payers. Nor are the costs taxed upon the ordinary basis, of fixing an amount to be recovered against a hostile party. It is an adjustment of the amount due as between attorney and client. • It may be claimed that Meegan was the attorney of the commissioners. Still both alike were acting for the city, and the city was directly responsible for payment for such services.

On the 27th day of June, 1873, the Common Council of the city passed a resolution approved by the mayor, directing the chamberlain to pay such legal costs and expenses * * * provided the costs and expenses are taxed by the judge, before whom the proceedings were had.

Upon such retaxation in July, 1875, Mr. Bingham’s costs and charges were allowed, upon the authority of Mr. Justice Learned’s opinion In the Matter of Orange Street, and upon tbe uncontradicted value as established by Mr. Bingham’s affidavit.

The costs and charges of Mr. Meegan are allowed, upon the grounds that the services rendered, were not required under his official duties as corporation counsel, but under a special employment, for which he was entitled to special pay ; that the evidence before the judge, showed the services to be of the value charged, that the basis of valuation was the same, that had been in use in such cases by himself and his predecessors for many years, and allowed and paid without objection, and that over $4:,000, of the amount of his bill, had been paid by him, to clerks for services in this same matter.

I shall affirm the order, so far as it allows the claims of Mr. Bingham, for the reasons stated by Justice Learned, and concurred in by Justice Osborn. The reasoning on the other branch of the case may to some extent apply. Our attention henceforth will be devoted to Mr. Meegan’s claim, to which the appellants interpose the following objections:

First. That he was entitled to no compensation by way of costs, beyond his salary as corporation counsel, the duties of his office embracing the services performed.

I think that point is settled by the opinion of Learned, J., before cited, and that the act of 1872 recognizes the right to extra compensation for such services, and directs payment thereof. The last paragraph of section 1 is as follows : “ Upon the presentation or confirmation of the report of said commissioners, the chamberlain is authorized and directed to pay to said commissioners, corporation counsel and surveyor, the costs and charges as taxed by the judge or court.”

Second. It is objected, that these costs and charges were taxed, under and by virtue of a fee bill long since repealed, and hence furnishing no authority, for such allowances as were made by the judge.

In making this objection the appellants concede, that costs might be taxed for Meegan under the Code, by virtue of the law of 1851, chapter 270, if Meegan is entitled to any costs at all, and In re Rens. and Sar. R. R. v. Davis (55 N. Y., 115), is cited as authority.

By analogy, that case is very strong authority for saying these were special proceedings, controlled as. to costs by the law of 1851. But, iu a case to vacate an assessment for a local improvement in the city of New York, Denio, Oh. J., held that the act of 1851 had no application. (In the Matter of Dodd, 27 N. Y., 629.) This expression of opinion was, however, doubted by Mason, J., in People v. Boardman (3 Abb. Ct. App. Dec., 483), so far as it affected the right of appeal to the Court of Appeals.

If this was a special proceeding, the right of Meegan to costs, to be assessed against landowners, would of necessity be confined to such as the Code permits. If each piece of laud to be condemned in widening the street, and each piece of property assessed for benefits, is to be treated as a separate and independent special proceeding, the costs and charges under the Code might be worse than the present.

I am not prepared to say, what might be the rule in such an event. Each landowner is entitled to litigate and give evidence in respect to his own property, without respect to what others may do. As to him, it might be a distinct special proceeding, for which the parties might be entitled to costs, according to results. But if the entire proceedings be declared a single proceeding, under which a single bill of costs could be taxed or collected, as fixed by the Code, the compensation of the attorney would be ridiculously inadequate.

Prior to 1867, jurisdiction of these proceedings was vested in the Mayor’s Court, by which these costs were taxed. During that time the act of 1851 could not have applied. In 1867 the Mayor’s Court was abolished, and its jurisdiction conferred upon the Supreme Court. (1 Laws of 1867, 506.) : Prior' to 1867 there was no law specifically defining the costs to be taxed, yet the Mayor’s Court taxed these costs upon the same basis as in this case. Indeed, it is not going too far to say, that the mode of getting at the work done, by charging by the folio, would result more nearly in justice than the gross allowances provided for by the Code. The costs and charges were to be determined. In the absence of positive law, the taxing officer is required to do justice between all parties. He should allow such things as are equitable and just, and disallow all others. The provisions of the Code are not adapted to the case. The charges contemplated by the statute, must have reference to payment for such services, as long custom and usage had sanctioned, a just and reasonable compensation. I think the taxing officer was at liberty, to get at such just compensation in the most convenient mode, having reference to the facts before him. In doing so, the practice, custom and usage under the law should have great weight. The engagement between the parties, may be presumed to have been made in view of such usages and customs; and, if so, they have made a law unto themselves, and should be bound by it.

There is strong reason for such a rule in this particular case. It is an adjustment of costs and charges between attorney and client — between Meegan, the corporation counsel, and the city. The city, in the absence of positive law, or in spite of the Code, if that be applicable, is bound to pay Meegan a reasonable compensation for his services. The law of 1872 says it shall be paid when, or as taxed by the judge. The resolution of the common council of June, 1873, directs the chamberlain to pay such costs and expenses, provided they are taxed by the judge before whom the proceedings are had. The value of the services are proved and not controverted. The expenses paid by Meegan, are also proved to be over $é,000. The charges are taxed and allowed as required by law, and contemplated by the resolution.

The chamberlain, in pursuance of such law and authority, has paid Meegan the amount. And now this court is asked to reverse that order, without a single allegation, that the amount paid is unreasonable compensation for the services, but only upon the ground that there is no positive law providing, how, Meegan’s bill for services shall be made up for presentation to the taxing officer.

In another view, Meegan was the employe of the commissioners, and was to be paid by or through them, in which case it became a charge or expense attending the execution of the commission, which the taxing officer was bound to recognize, if reasonable or proper, upon the proofs before him.

The case (Matter of Extending Canal Street, Davis’ Comp, of Laws of N. Y. City, 1261-1264), cited in the brief of respondent’s counsel, confirms some of the views hereinbefore taken, but I have not laid much stress upon it, for the reason its construction related specially to statutes affecting the city of New York, and to a rule of court adopted by the courts of, and for that city alone.

The great difficulty arises from the absence of any proper and suitable legislation. For want of that, many intricate and difficult questions are presented for adjudication, in which the decisions are mere devices in the attempt to do justice in spite of careless legislation, or in the absence of necessary statutory enactments.

My examination of this case has led me, with some hesitation, to the following conclusions:

First. The intent of the law is, that the judge shall allow, such sum as shall indemnify the city, for its expenses in the opening of a street, and that the sum so allowed shall be apportioned upon the property benefited..

Second. In cases like this, where the proceedings are abandoned, the rule of taxation remains the same, but the amount taxed, of necessity, becomes a charge upon, and to be paid by the city and its tax-payers generally.

Third. In either case, I think the purpose of the law is to allow to the persons rendering the services an adequate compensation therefor.

Fourth. As the services are of a character to be incapable of fair adjustment by the allowance of gross sums for all services rendered between fixed limits of progress, as prescribed by the Code, the actual labor performed must be made to appear, and a value affixed thereto by the taxing officer.

Fifth. The quantity of labor may be shown by the number of folios in the papers necessarily drawn, and copies made, and specific services rendered; and the taxing officer should fix a rate per folio for copies, and a value for specific services, irrespective of any fee-bill, in the exercise of his best discretion and judgment.

Sixth. In proceedings of this character, I think, weight should be given to custom and usage of a uniform and continuous character, before and since the act of 1854; but such customs should only be invoked in aid of justice and right, and should not be held binding when they sanction exorbitant compensation for the services.

Seventh. There being no evidence that the charges taxed, or the compensation thereby given, are excessive, the order should be sustained.

For the reasons given, I think the order appealed from should be affirmed, with ten dollars costs of appeal and expenses of printing, to be paid by the city of Albany to the respondents, Meegan and Bingham, or their attorney.

Present — Bookes and Boardman, JJ.; Learned, P. J., not acting.

Ordered accordingly.

      The following is the opinion of Learned, J.:
      In the Matter of Opening ORANGE STREET.

        Cb'ermlle Tremain, corporation counsel. N. Moak, counsel for Mr. Bingham.
      Learned, J.:
      This is an application for the taxation of costs, charges and expenses in the above entitled matter under the city charter, as amended by Session Laws 1872, chapter 802, section 1.
      The commissioners have made out and presented their bill, duly verified. It includes a charge for the “bill of surveyor for maps of property taken and assessed.” The corporation counsel, upon due notice to Mr. Bingham, the city surveyor, opposes the allowance of this item. It is not disputed that the services were rendered, that they were proper, and that the amount charged is reasonable. The only objection made is, that the services rendered pertained to the official duties of the city surveyor, and that therefore he can receive no compensation therefor. (City charter [Laws 1870, chapter 77], title 6, section 3.)
      It appears, by affidavit, that the services for which this charge is made, are for surveys and maps of land and property to be assessed, and on which the damages, costs and charges are to bo apportioned, and that the surveyor was employed by the commissioners. It also appears that the practice for over twenty years has been that the surveyor should be allowed for such services as not within official duties.
      Title 8, section 10 of the city charter authoi’izes the mayor,- with the consent of the common council, to appoint a city surveyor, and the common council are to prescribe his power and duties. That is done by chapter 4, article 4, section 4 of the ordinances of the city. The only parts of that section, which are claimed to be important, are these :
      Subdivision 8. “ To survey and make maps of all ground required for the opening, widening or straightening of any street, road, avenue, public square, park or dock,” * * “ and to make profiles, maps and estimates for the assessors appointed by the common council, in accordance with section 15, title 6, chapter 77 of the Laws of 1870.
      Now it will be seen that the first clause applies only to the grounds required for the opening, etc., of streets, etc., not to the lands to be assessed. It refers undoubtedly to such surveys and maps as are necessary to enable the common council to decide whether or not a street shall be opened, widened, etc.
      As is well known, after the common council have decided on such a matter, application is made to the Supreme Gourt for commissioners, who are to assess the damages on the property benefited, and the charge in question is for the surveys, used by the commissioners, of the lands assessed, not of the lands taken.
      The second clause applies, as will be seen by reference to the statute, to assessors appointed not by the Supreme Court, but by the common council, not to assess damages for lands taken, but to assess damages for altering the grade of a street.
      The fifth subdivision requires the surveyor to survey, make maps, etc., of all streets, lanes, etc., “directed by the common council to be filled, excavated, paved, curbed, flagged or constructed,” * * * “ and to make maps showing-alb l°ts benefited by any such work or improvement, when done for the city by contract or otherwise. ”
      This plainly refers not to the laying out of a new street or the taking of private property for public use, but to the improvements, such as flagging, and the like, of streets already taken. It speaks of work “done for the city,” thus using-language which describes excavations or other improvements of existing streets.
      The remainder of that subdivision requires him “ to make estimates, statement and reports to the street department, or to such person or persons as shall by law be required to make the apportionments of improvements ordered by the common council.” This clause, also like the former, refers to what are properly “street improvements.” They are matters which are to be done under sections 13, 14 and 15 of title 6 of the charter; they do not mean proceedings under title 7, by which private property is taken.
      By subdivision 7 he is to make any other surveys, etc., “required by the common council, or any committee thereof, or street department. ” That language does not. describe the survey's for these commissioners.
      By subdivision 8 he is to file all completed maps, etc., in the street department ; but the surveys which are made for these commissioners properly form a part of their report to the court, and would belong to the files of the court. The commissioners are required by the statute to designate and describe the lots in their report. The maps necessary for this purpose, therefore, seem not to be embraced within the maps required to be filed in the street department, as are the maps made by the surveyor in his official duties. There are no other provisions claimed to indicate that this work is within the official duties of the city surveyor, and from the language used by the common council in their ordinances, I am unable to see that they intended to require this class of work from him.
      But the point is made more certain by the provisions of the amendatory act of 1872 (chapter 302), that amends title 7, section 1, so that it reads, in conclusion: “ Upon the presentation or confirmation of the report of said commissioners, the chamberlain is authorized and directed to pay the said commissioners, corporation counsel and swveyor the costs and charges, as taxed by the judge or court.”
      This is an express recognition of the fact that surveyors’ costs and charges in these matters are to be paid. It must be taken to declare either that these services are not within the official duties of the city surveyor, or that in this particular he may receive fees additional to his salary. It is the latest legislation on the subject, and must control. If this work was to be done by the city surveyor, as a part of his official duty, which the commissioners could require him to perform without special compensation, it would have been absurd to provide for the payment to a surveyor, as to the commissioners, of costs and charges to be taxed.
      It might be suggested against this item that, as the city surveyor receives a salary, all his time belongs, in fairness, to the city. But this rule certainly has never been held to apply to the mayor or corporation counsel. And, in fact, subdivision 10 of section 4, article 4 of the city ordinances, expressly recognized the right of the surveyor to do other work than that required by his office, only giving the latter the preference.
      The proceedings before the commissioners are in court. Their action is a quasi trial. The services rendered by the surveyor are somewhat like those he might render as an expert on a trial before a jury. They are not, in my opinion, embraced within those which he is by the ordinances required to perform.
      As there is no objection in respect to value and necessity of the services, the item is allowed, and the bill not otherwise objected to is taxed as presented.


author: Boabdman, J.:

text:
    WORTHINGTON FROTHINGHAM, as Administrator, etc., of JOHN McARDLE, Deceased, Respondent, v. ASHBEL H. BARNEY and others, Appellants.

      Dissolution of corpo'i'ulions — power of trustees — cannot exchange assets for stoch in other corporations.

    Upon tlie dissolution of a joint stock corporation, it is tiie duty of the trustees to convert the assets into money, and distribute the proceeds among the stock holders. They have no right to exchange the assets, or any portion thereof, of the old association, for the corporate stock of any corporation, without the consent of all the stockholders.
    A stockholder not consenting to such exchange, may recover the value of his stock, so wrongfully disposed of.
    Appeal from a judgment in favor of the plaintiff entered upon the report of a referee, and also from an order appointing a receiver of the assets of Wells, Fargo & Co., made pursuant to such judgment.
    A joint stock association, known as Wells, Fargo & Co., had been dissolved by the action of the managing partners, pursuant to the articles of association, on the 1st day of November, 1866, the plaintiff’s testator being at that time the owner of 100 shares of the stock.

      This action was brought against the managing partners (called trustees or directors in the articles of association) of the joint stock association at the time of its dissolution, who as such, were authorized by the articles of association, by unanimous vote, to dissolve said joint stock company, and either by themselves or their agents, settle and adjust the business and affairs thereof.
    The complaint alleged the dissolution of the joint stock company by the said defendants, on the 1st day of November, 1866, pursuant to the articles of association, but that, instead of settling and adjusting the business and affairs of said company, they did, in violation of their duty as trustees, and in fraud of the rights of the plaintiff and other stockholders, transfer and' convey, without adequate consideration, or any consideration received by or for the plaintiff, the good will of the business of said association, and a large portion of the property belonging to said joint stock company, to the Holladay Overland Mail and Express Company, and that they refused to distribute among the stockholders, assets in their possession amounting to over $800,000.
    The relief prayed for was, as against the individual defendants, that a receiver of the assets of the association or copartnership be appointed; that said defendants account for and transfer to said receiver the assets in their hands; and that they also account to said receiver, for any property received by them in return for that conveyed to the defendant, Wells, Fargo & Co., and pay to him the amount of any loss arising from such transfer
    The referee gave judgment against the defendants for the sum of $31,393.76, and directed that a receiver of the assets of the joint stock association, known as Wells, Fargo & Co., be appointed.
    The action was commenced by John McArdle, and upon his death was continued in the name of the present plaintiff.

      Samuel Hand, for the appellants.
    The dissolution being proper, and the partnership being dissolved thereby, it was expressly within the powers of the defendants “ to settle and adjust the business and affairs thereof ” ■ according to the best of their judgment, making the most of its assets, of which the circumstances would admit. It was neither beyond their powers, nor a violation of their duties, to “ sell the (so called) good-will at private sale, without notice, or to take in exchange therefor other property than cash. (Pars, on Partnership, 393, 541, 544 n; Tyrell v. Washburn, 6 Allen, 466 : Butcha/rd v. Dresser, 4 De Gex, M. & G., 542 ; Robbins v. Fuller, 24 N. Y., 570; Herberton v. Jepherson, 10 Barr [Pa.], 124; Hedges v. N. E. Screw Co., 1 R. I., 19; S. 0., 3 id., 19; Tread-well v. Salisbury, 7 Gray, 393, 406.) But even were it conceded, that the act of the trustees was beyond their powers, and technically, a step outside the limits of their discretion as managing partners in winding up the company, they, nevertheless, are not, in the absence of any fraud, willful misconduct or breach of trust for their own benefit, liable personally to the plaintiff. Even if a “ trustee,” strictly, he is not personally liable if he acted in good faith, and with ordinary care, diligence and prudence. (Brown v. Campbell, ITopk., 233; Pierson v. Thompson, 1 Edw., 212, 222; Atty.-Qen. v. Exeter, 2 Russ., 45 ; Hodges v. Screw Co., 1 R. I., 344; Thompson v. Brown, 4 Johns. Oh., 619; Tolbolt v. Bra/nch Bcmk of Mobile, 11 Ala. [N. S.], 191; Smith v. Prattville Manuf. Co., 29 id., 503.) Directors, in the active execution of their functions as such, are not personally liable to stockholders, except for “ willful dereliction of duty or violation of the trust reposed in them.” (1 Edw. Oh., 84, 513; 3 Paige, 222; 38 Barb., 181; 4 L. R. [Appellate Series], 386; 1 R. I., 348.)

      Hathcmiel C. Moak, for the respondent.
    The association was a partnership, and each member had all the rights, and was subject to all the liabilities, of a partner. ( Wells v. Cates, 18 Barb., 554, 556, 557; Dennis v. Kennedy, 19 id., 517, 526; Townsend v. Coewey, 19 Wend., 428; Cross v. Jackson, 5 Hill, 478, 480; Williams v. Ba/nk, 7 Wend., 542; Atkins v. Hunt, 14 N. IT., 205; Cutler v. Thomas, 25 Yt., 73; Hess v. Werts, 4 Serg. & Rawle, 356.) A majority of stockholders have no right to divert the property of the minority, because by. so doing the pecuniary interests of all will be subserved. (Mann v. Butler, 2 Barb. Oh., 362; 1 Perry on Trusts [2d ed.], § 285 ; Stevens v. Rutland, etc., 29 Yt., 545 ; S. O., 1 Am. Law Reg. [O. S.], 154.) A majority of the stockholders of a corporation have power to dissolve it, but they cannot dispose of, or exchange the interest of a stockholder in its assets, without his consent. (McCvzrd/y v. Myers, 44 Penn. St., 535.) The funds of a joint stock company, established for the purpose of one undertaking, cannot be applied to another, and the attempt so to apply them, though sanctioned by all the directors, and by a large majoiity of the shareholders, is illegal. (Simpson v. Directors, etc., 8 House Lords Cases, 711; Lynde v. Eastern, etc., 36 Beav., 19 ; see cases cited by counsel in Erie Railway Go. v. Vanderbilt, 12 N. Y. Sup. Ct. [5 Hun], 124; McQrcury v. Junction, etc., 9 Ind., 358; State v. Bailey, 16 id., 46; Kerr on Injunctions, 558.) As to stockholders who do not assent, such a transaction is absolutely void. (GampbelVs Case, 8 Eng., 678; L. R. [9 Ch.], 1; Re Era Ins. Society, 9 Weekly R., 67; 3 Law Times [N. S.], 314; 30 Law J. [Ch.J [N. S.], 137; 6 Jur. [N. S.] 1334; 2 Perry on Trusts [2d ed.], § 769; id., 768; Ringgold v. Ringgold, 1 Harris & Gill [Md.], 11, 25; Taylor v. Galloway, 1 Ohio,’ 232, 234; Niles v. Smith, 2 Code R., 3; Gen. T. 6th Hist., 1 U. S. Law Mag., 37; Bush v. Gole, 28 N. Y., 361.) A trustee authorized to sell can sell only for cash (Russell v. Russell, 36 N. Y., 581, 583-586; Toes v. Davenport, 3 Hill, 373; Palmer v. Williams, 24 Mich., 328; Davis’ Appeal, 14 Penn. St., 371), and in the ordinary manner (Van Arsdale v. Joiner, 44 Ga., 173), though the credit be given in good faith. (Swoyer’s Appeal, 5 Penn. St. [5 Barr], 377; Hurst v. Fisher, 1 Harris & Gill, 88; Sciple v. Irwin, 30 Penn. St., 513; Kornesnan v. Monagan, 24 Mich., 36.)
   Boabdman, J.:

This action was sustained by the referee upon two grounds: First. That the defendants, as trustees of the copartnership or joint stock association of Wells, Fargo & Co., after its dissolution, had disposed of a portion of the assets, in violation of their duties as trustees, whereby they became liable to plaintiff for the value of his stock or interest in such partnership, so disposed of.

Second. That as such trustees, the defendants had failed to use due diligence, in the conversion of the assets into money and its distribution among the stockholders, and that a receiver should be appointed of the assets remaining of said Wells, Fargo & Co., with the ordinary powers and duties of such receivers.

The evidence and the findings of fact by the referee, show that the joint stock association of Wells, Fargo & Co., was legally dissolved on the 1st day of November, 1866, and at the same time the good-will of the concern, with certain personal property of the value of $30,000 or $40,000, was sold and transferred to a corporation, taking the same name, and engaged in the same general business.

The defendants, as trustees, received on such sale 40,000 shares of the stock of such corporation, being at the rate of two shares of such new stock for each share of stock in the association. The large majority of the stockholders of the association consented to such arrangement and sale, and received the two shares of new stock in lieu of each share of old stock held by -them. But plaintiffs testator refused to assent to the sale made by the trustees or to its terms, and declined to receive the new stock in lieu of his old or to ratify the acts of the defendants in making such sale.

It further appears that the arrangement for such sale of good-will and property, was agreed upon before the joint stock association was dissolved by the directors or trustees, and that such dissolution was made by reason of such prior arrangement and with the view of carrying the same into effect. The stock of said association at the time of its dissolution and at the time of such sale of its goodwill and property was worth $285 per share, and plaintiff owned 100 shares of such stock. <

The referee finds that the value of the property sold by the trustees was $200 per share of the association stock.

It is contended by the defendants, appellants, that the trustees of the old association, had the legal.power to make such sale and take the stock of the new corporation in payment therefor, and that such conduct was not a breach of trust; that under article 13, of the articles of association, such power was given to the trustees after dissolution; that it was exercised in this instance for the manifest benefit of the beneficiaries; that by reason of the completion of the Pacific railroad, a new and more direct mode of transportation would soon be established; that Wells, Fargo & Co., could not secure a position to enable it to transact business upon such new route to profit or advantage; that as a consequence the business of Wells, Fargo & Co., by steamships, via the isthmus, would soon inevitably and of necessity be destroyed, and its stock become worthless, beyond assets on hand; that the trustees and members of such association except plaintiff’s testator and one or two others, recognizing the certainty of such results, and desiring to save as far as possible, the present, and secure the prospective value and continued productiveness of their stock, counseled and consented to the arrangement, made by the trustees for a sale of the good-will and property of the association; that such an'angement was the most advantageous that could be made, securing a large representation of the old association in the new corporation, and such an exemption from competition, as must in the end, render the new stock valuable and profitable to its owners the defendants. And even if liable, the defendants insist that the value of plaintiff’s stock, so extinguished by the sale, was not $200 per share and that the shares in the new stock of the corporation, were not worth one hundred per cent at the time of such sale, and that the referee erred in giving to such figures any vitality as evidence of damages.

The referee does not find that the trustees, defendants, acted with intentional bad faith in making such sale ; indeed, I think the case will warrant the conclusion, that the trustees were acting in the interest, and for the advantage of all the stockholders of the old association, and that by such action, the stockholders were saved from some portion of the loss, which must otherwise have followed the termination of the business of the old company.

Whether the association had been dissolved or not, it is evident that the time was near at hand, when, it could not carry on an express business by way of the isthmus and ocean steamers. Some company or companies would inevitably control such business by the Pacific railroad. The Wells, Fargo & Co. association had no foothold upon the latter route. ITolladay’s Overland Express Company, had peculiar advantages by such railroad, exclusive in their effect, if not in rights. The trustees, defendants, and the stockholders, seeing this, perfected an arrangement which was not so much a sale, as a consolidation of certain rival or hostile interests in one corporation, which should have a monopoly of the business and of the profits.

This, as a business arrangement, was wise, discreet and sagacious. As such it should be sustained if it legally is possible. The interests of one or two small stockholders, should not enable them to work the destruction of the interests of co-owners, or compel the purchase of their stock, at fictitious or unreal prices, if it can be avoided.

Why then, has the referee charged the defendants with the value of plaintiff’s stock interests, destroyed by their sale ? Upon what principle, ought the defendants to be held liable for the cash value of the property sold ?

It must be conceded that the directors of the Wells, Fargo &Co. association became trustees upon its dissolution. (Butts v. Woods, 37 N. Y., 317 ; Bliss v. Matteson, 45 id., 22.) As trustees they are bound to exercise their powers and discharge their duties, according to known and recognized principles of law. The same duties are due to a minority of the stockholders as to a majority. The plaintiff’s testator might insist upon his rights, as against any misconduct of the trustees, with as much propriety as if he had owned a majority of the stock. Any misconduct of the trustees to the injury of plaintiff’s testator would give to him a right of action therefor. Nor would it be material that the trustees had acted, as they believed, in the interests of all the stockholders, and not in bad faith. (Gardner v. Ogden, 22 N. Y., 327.) Upon the dissolution of the association it became the duty of the trustees to convert the assets into money, and distribute the proceeds among the stockholders. To a certain extent this has been done. A portion of such assets have not yet been distributed, and another portion, including the good-will of the old association, has been exchanged by the trustees for the corporate stock of a new Wells, Fargo & Co. This, I understand, the trustees had no i*ight to do. They had no right to exchange the assets of the old association for the corporate stock of any corporations, without the consent of all the stockholders. (Mann v. Butler, 2 Barb. Ch., 362.)

Equally were they without authority, in making this partial exchange, without such consent. Stockholders of the old association could not thus, against their will, be forced into relations with the new company. (Blatchford v. Ross, 54 Barb., 42 ; Hartford and Wew Haven Railroad v. Croswell, 5 Hill, 383, 386.)

Whether McArdle should take stock in this new corporation, under the name of Wells, Fargo & Co., was a matter for him to decide. The trustees of the old association could not decide it for him against his consent; such a power in the hands of trustees would be exceedingly dangerous, if not intolerable.

I understand it is well established, that a trustee cannot sell upon credit, without making himself personally liable for the price to be paid ; much less can he exchange assets, in his hands for distribution among beneficiaries, for corporate stocks. If he shall do so, the oestui que trust may repudiate such sale and sue for his damages; that is, for the value of his interest in the property sold, or he may affirm the sale and recover the proceeds. The former remedy has been pursued in this case ; and, in my judgment, such proceedings conform to the rules of law applicable to parties so related to each other as the parties to this action. As has been said, this whole arrangement, for exchange of the assets and good-will of the old association for the stock certificates of the new corporation, preceded the dissolution of the old association. Indeed, that dissolution was only necessary to eilable the trustees to carry out their project. While, therefore, the dissolution was legal, as expressive of the unanimous will of the trustees and of a very large majority of the stockholders, it may yet be looked upon as an unnecessary act, consummated in aid of the unlawful act, and part of it.

In the new organization, the United States Express Company, in consideration of its waiving any right to, competition, was to, and did, receive $350,000 in the new stock, at its par value. Several of these trustees (defendants) were also directors and large owners of the stock of the United States Express Company; and, to the extent that the United States Express Company was benefited by such $350,000 of the new corporation’s stock, such trustees were also, as stockholders of said United States Express Company, benefited. A number of the trustees (defendants) were also made directors of the new corporation, in conformity, it may be assumed, with the understanding.

In all this it has been said, and I beg to repeat it, there was nothing dishonest, nothing looking to the special advantage of these defendants, nothing intended specially to wrong the plaintiffs testator, or any other stockholder of the old association.

It was simply an attempt, to perpetuate the interests and advantages of the old company in a new one, and, to accomplish such purpose by means wbicb the law will not permit. These defendants suffer, not by reason of any gross wrong on their part, but rather that such a precedent may not be offered for more unscrupulous men to take advantage of in the future.

It follows that the referee was correct in holding the trustees, defendants, guilty of a breach of trust, and liable for plaintiff’s damages.

The amount of damages has been found by the referee at $200 per share. The value of the stock November 1st, 1866, is admitted to have been $285 per share. The referee seems to have established the value of the assets unsold, after payment of all liabilities, and deducted the percentage thereof for each share of stock from its market value, and thus arrived at the value of the interests sold by the defendants. Such valuation is also confirmed by the nominal value at par of the certificates of stock obtained upon such sale. What the actual -value of the shares of the new corporation then were, or have since been, is not established in evidence. It is sufficient, however, that, in cases of this kind, every presumption on the question of value that can fairly be drawn from the evidence, will be indulged in against the trustees in the wrong. The value of plaintiff’s stock, after dissolution, could not have remained at $285 per share. Nor is it easy to conceive that such a sum could have ever been realized, in the ordinary process of winding up the business by a sale of assets for cash. Still, we have the fact that McArdel could have sold, November 1st, 1866, at $285, and that he or his estate will receive, by virtue of this judgment, about that sum. .

The judgment, therefore, indemnifies the plaintiff for any loss suffered, real or contingent.

I think the referee was right, in holding that a receiver of the remaining assets of the old association should be appointed.

It is now more than nine years, since the trustees have undertaken the duty of closing up the business. The facts developed in this case, would seem to justify not only the propriety, but the necessity of such action. The action of a receiver will be much more efficient than the efforts of a large number of trustees, widely separated from each other, absorbed in pursuits and cares of their own, and whose interests may be considered, in this case, as hostile to the plaintiff’s. These considerations, not less than the misconduct of the defendants, call for the appointment of a receiver of the remaining assets of Wells, Fargo & Co., the dissolved association.

For the reasons assigned, I think the judgment should be affirmed with costs.

Present — Bockbs and Boardman, JJ.; Learned, P. L, not acting.

Judgment affirmed with costs. Order affirmed, with ten dollars costs, and expenses of printing.


author: Pe^' Ouriam:

text:
    THE MANUFACTURERS’ NATIONAL BANK OF AMSTERDAM, Respondent, v. JOHN A. RUSSELL and HENRY TEFFT, Appellants.

      Answ&i' — when frivolous.

      An answer in an action on a promissory note, denying “ that defendants have not paid the said note, or any part thereof, and deny that the same is payable,” and which further alleges that the note was given “for too great a sum, etc,” without specifying what the amonnt was, is frivolous.
    Appeal from a judgment in favor of the plaintiff, and also from an order directing such judgment, and adjudging the answer in this action to be frivolous.
    The action was brought to recover the amount of a promissory-note made by the defendant, and indorsed by the payee to the plaintiff. The following answer was put in to the complaint:

      First defense. The said defendants for a separate answer to the complaint of the plaintiff in this action, and for a first defense thereto, deny that defendants have not paid the said note, or any part thereof, and deny that the same is payable.

      Second, defense. The said defendants for a second and separate defense aver, that the note described in said complaint was given by defendant Russell to plaintiff, to settle claims of plaintiff against said defendant Russel], and by mistake of said defendant Russell was given for too great a sum, and for more than he was indebted to plaintiff. That the defendant Tefft was, and is an accommodation indorser, and indorsed said note for the sole benefit and accommodation of defendant Russell, and without any consideration to said defendant Tefft therefor.
    This answer, on motion, was adjudged frivolous, and judgment was ordered for the plaintiff.

      Hughes, Northxvp <& Noble, for the appellants.

      Z. S. Westbrook, for the respondent.
   Pe^' Ouriam:

We think the answer was frivolous. The first defense denies “ that defendants have not paid the said note, or any part thereof, and deny that the same is payable,” that being an allegation of the complaint. This denies no material fact of the complaint; it denies no fact which plaintiff was bound to prove ; it sets up no affirmative defense or plea of payment.

The second defense is equally worthless. It alleges that the note in suit was given by mistake for too great a sum, but whether for a cent or a dollar does not appear. It fails to show that the amount of such excess was sufficient to extinguish the note, as in Seeley v. Engell (13 N. Y., 542). Indeed, such could not be the case, since it is not alleged that any thing has been paid upon the note, and the allegation by implication is, that the note was properly given for all but such excess. This second answer is not, therefore, a defense to the action. At most it shadows a counter-claim, but it lacks all the elements of a counter-claim, in not showing any amount due from the plaintiff to defendants, or asking that any amount should be allowed to defendants as against plaintiff’s claim. Nor does it show, that such counter-claim exists at the time of the answer, or at any time after the execution of the note and its discount by plaintiff.

Every thing being proved that is set up in the answer of defendants, plaintiff would still be entitled to judgment for the amount claimed.

Such an answer is frivolous, and the order and judgment entered thereon should be affirmed, with costs.

Present — Learned, P. J., Bockes and Boardman, JJ.

Order and judgment affirmed, with costs.


author: Per Curiam:

text:
    FRANCIS J. TALLMAN, Respondent, v. THE AMERICAN EXPRESS COMPANY, Appellant.

      County Court — -appeal from yüdg'ijtíent of — when dismissed.

    No appeal lies to tlie General Term frjmfda, judgment of tlie County Court, entered in an action originating in thfe- Jfisi;i6e?s Court, until a motion for a new-trial has first been made in the County C.ojirt upon a case and exceptions.

    Motion to dismiss an appeaT.irom adjudgment of the County-Court of St. Lawrence county, in an action commenced before a justice of the peace.

      R. W. Judson, for the motion.

      D. Magone, Jr., opposed. ■

       See to same effect, Murray v. Vanderveer, ante, p. 302.

   Per Curiam:

This action originated in Justice’s Court, where judgment was rendered for the plaintiff. It -was taken into the County Court of St. Lawrence county, on appeal, where it was again tried before the court and jury with like result; and the case is now in this court, on appeal from the judgment there rendered on the verdict of the jury. No motion was made in the County Court for a new trial on the case and exceptions, and a motion is now made to dismiss the appeal for that reason.

The • decisions on the question here presented, have not been uniform. (42 Barb., 70; 48 id., 339; 27 How., 208; 28 id., 150; 29 id., 68; 54 Barb., 34 ; 27 How., 385 ; 30 id., 4 ; 2 N. Y. S. C., 445; id., 672.) The last two decisions, in the fourth department, were intended to settle the practice, and we think we should concur with them with a view to harmony, if for no other reason; not intending, however, to intimate any doubt, on our part, of the correctness of the rule there declared. This rule has no application to cases originating in the County Court, as will be seen by the decision in Beatty v. Myers (6 N. Y. S. C. [T. & C.], 456; S. C., 11 [4 Hun], 266.)

The appeal herein must be dismissed, for the reason that no motion was made for a new trial in the County Court.

Motion granted.

Present — Learned, P. J., Bocjkes and Boardman, JJ.

Appeal dismissed, with ten dollars costs and printing.


author: Learned, P. J.:

text:
    GEORGE R. BROWNELL, Executor, Respondent, v. EDWARD AKIN, Appellant.

      Writ of ne exeat — in what action it maty mm.

    Tlie plaintiff and defendant were appointed, and duly qualified as executors of J. H. Akin, deceased, to whom the defendant was, at the time of his death, indebted for goods sold and money borrowed. Subsequently the defendant was removed by the surrogate, and this action was brought by the plaintiff to recover the amount due to the estate. Held, that the action was not one in which a writ of ne exeat could he issued.
    Appeal from an order, denying a motion to vacate a writ of ne exeat issued in this action.
    The defendant, at the time of the death of Justus H. Akin, was indebted to him. Brownell the plaintiff, and Edward Akin the defendant, were the executors of the will of Justus H. Akin and letters testamentary were issued to them. Subsequently, the defendant was removed from his office of executor by the Surrogate. The plaintiff now brings this action to recover the money which the defendant owed to Justus H. Akin at the time of his death, and which has never been paid.- In this action a writ of ne exeat was granted. A motion to set that writ aside was denied, and the defendant appeals.

      Eseh Gowen, for the appellant.

      James Lansing, for the respondent.
   Learned, P. J.:

Whatever my own views may be, it is too late to question the doctrine in this court that the writ of ne exeat is in force. (Beckwith v. Smith, 4 Lans., 182.)

Is the present a proper case for the writ ? The writ lay only for equitable demands. (Seymour v. Hazard, 1 John. Ch., 1.) To this, Judge Story says, there are two exceptions only, one the case of alimony, the other “ the case of an account on which a balance is admitted by the defendant, but a larger claim is insisted on by the creditor.” (2 Story’s Equity Juris., § 1471; Bushnell v. Bushnell, 15 Barb., 399.) That was the old doctrine. Certainly, the scope of the writ has not been extended. No complaint has been filed in this action; but the plaintiff’s affidavit shows that the defendant, in filing an inventory of the assets of Justus H. Akin, stated these claims against himself just as the plaintiff now claims them.

Therefore, this is not a case where a debtor admits a balance and the creditor insists on a larger claim. The debt owing from the defendant to Justus EL Akin, at his death, was a simple debt for borrowed money and for goods sold. It was not in any respect an equitable claim. Where the accounts are all on one side and no discovery is sought, courts of equity decline jurisdiction. (1 Story Eq. Juris., § 459.)

The plaintiff claims that because the creditor made the debtor his executor, and the debtor accepted the office, some new character was given to the debt, so that that, which was before a simple legal debt has become an equitable claim. This cannot be so. Formerly, as is well known, the naming of the debtor as the executor of the creditor discharged the debt. But that rule was modified as to creditors of the deceased. (Marvin v. Stone, 2 Cow., 781.)

The Revised Statutes enacted that the debt should not be discharged, but that the executor should be liable for the same as for so much money in his hands. (2 Rev. Statutes, [m. p.] 84, § 14.)

If the language of this statute be taken literally, it leads to unjust results. For instance, if a debtor who had no property should be made the executor of his creditor, he would become punishable by attachment and imprisonment for not paying the debt. Or, again, if a debtor were able to pay only fifty per cent of all his debts, he would, on being appointed the executor of one creditor be compelled to pay .that creditor’s estate, to the exclusion, it might be. of all other debts.

But, even assuming, as the plaintiff’s counsel claims, that the defendant in this case owes the plaintiff, as for so much money belonging to the estate of Justus H. Akin, and collected by the defendant, does this give the plaintiff any thing more than an action for money had and received % Admit, even, that the money was received in a fiduciary capacity, does an action then arise of peculiar equitable jurisdiction, so that the writ of ne exeat can be had % I think not. It certainly would not be claimed, then, whenever one man had collected money for another as agent, and the like, and thus had received it in a fiduciary capacity, the action against him would be an equitable action. He might be liable to arrest, but the arrest would be under the provisions of the Code. In a loose way, such a man is said to have received the money in trust; but such are not the trusts of equity jurisdiction. If .the plaintiff in this case has any ground on which to base his claim to this writ, it must be that the defendant has money received in his capacity as executor: that is, in a fiduciary capacity. Bor such a case, if it exists here, the code has provided a sufficient remedy by order of arrest. And this fact is an abundant reason why a writ of ne exeat should not be applicable.

The real necessity for that writ, is when the judgment may require the defendant to do some personal act; such as to execute a deed, and the like. This is the ground on which it is considered to be still in force. (Forrest v. Forrest, 10 Barb., 46.) No necessity exists in this case. The judgment, if recovered, will be only for so much money.

The order refusing to vacate the writ should be reversed, with ten dollars costs and printing disbursements; and the motion to vacate should be granted with ten dollars costs. The costs and disbursements should be paid by the plaintiff' personally.

Present- — -Learned, P. J., Bockes and Boardman, JJ.

Ordered accordingly.