author: Bradley, J.

text:
    In the Matter of Charles L. Brigham, as Receiver.

      (Court of Appeals, Second Division,

      Filed June 9, 1891.)

    1. Executobs and administbatobs—Sale oe decedent’s estate.
    Neither the petition by creditors of an estate to subject testator’s land to the payment of his debts, nor the citations contained the name of Hyland, a mortgagee; afterwards an affidavit of the petitioner to the effect that other persons named, not including Hyland, were interested, was duly filed, and the surrogate issued citations to them and one to Hyland, which was duly served upon him. He appeared and objected to the jurisdiction of the surrogate, and the creditors introduced evidence of the filing of a notice of lis pendens and bringing of an action by them within three years in conformity with the statute. Held, that Hyland, by his appearance generally and taking part in the proceeding, became a party to it, and assuming that the surrogate had jurisdiction of it, the power as against Hyland to make a decree was as effectual as if he had been an origina, party.
    2. Same.
    A piece_ of_ land in Steuben county belonging to testator was described in the petitition, but not included in the Us pendens. It was specifically devised by the will and the surrogate found that the failure by Us pendens to subject that land_ to this proceeding was not excused on the ground that it could not by diligent inquiry have been ascertained by the petitioner. Held, that Hyland should have been relieved by direction that the specifically devised real estate described in lis pendens be mortgaged for only the same proportionate amount of the deficiency appearing in the sale of residuary lands with which it would have been charged if the Steuben land had not been omitted.
    3. Same.
    About $5,000 in personal property came into the executor’s hands which he used; the debts were upwards of §30,000. The debt in question developed only a short time before the expiration of the three years after letters testamentary were first issued. Held, that the' inference was permitted that in view of the situation the personal property was not by the exercise of reasonable diligence available ior application on the debts within the time required or up to the time of filing the petition.
    4. Same—When surrogate not qualified to sit.
    An action had been brought on the debt, in which the surrogate was relator, against the estate and judgment obtained, but the claims upon it had been rejected by the surrogate. Held, that it could not be assumed that he had any personal interest in it or had any relation to it which could make the question raised for the first time on review available.
    5. Same—Will—Equitable conversion.
    The testator gave the residence of his estate to his “heirs and next of kin in the same portions in which ” it “ would be divided or distributed ” in case of his death intestate, directed it to be distributed and paid in cash in five years from his decease, and for that purpose gave to the executors power of sale. Held, that there was no equitable conversion.
    Appeal from judgment of the general term of the supreme-court in the fifth judicial department, affirming decree of the surrogate of the county of Livingston.
    The First National Bank of Dansville, N. Y, having been organized pursuant to the laws of the United States and after having carried on its business for many years, became insolvent, and Charles L. Bingham was, by the comptroller of currency of the United States, duly appointed receiver of the bank in September, 1887, and entered upon the performance of his duties as such. The comptroller of the currency made an assessment of 100 per cent of the amount of capital stock of the bank upon its shareholders. And James Faulkner, who died in October, 1884, was-at the time of his decease the owner of 290 shares of the stock of $100 each, and held fifty more shares which came to him from his son, Samuel D. Faulkner, who died intestate in 1878, and of whom the father was the only heir and next of kin, and with Henry J. Faulkner took letters of administration of his estate. James. Faulkner, deceased, by his will nominated James Faulker, Jr., Lester B. Faulkner and another as executors. On April 25,1885,. the will was admitted to probate and letters testamentary issued to James Faulkner, Jr. His letters were revoked in October.. 1887, and in December following letters were issued to Lester B. Faulkner. Before the expiration of three years from the time-those first letters were issued, Bingham, as receiver, brought an action against the executor to recover such assessment made by the comptroller of the currency upon the stock of the bank belonging to the estate of the testator, and within that time caused to be filed in the offices of the clerks of Livingston and Allegany counties notices of the pendency of the action. The petition by which this proceeding was instituted was filed July 9, 1888. Charles J. Bissell and Christiana Smith, respectively, came in as creditors of the testator and established their claims.
    The surrogate determined that the estate of the decedent was. indebted to the receiver $29,000, to Bissell $620.65 and to Smith $2,900; and that the petitioner was entitled to decree. It was entered accordingly. Other facts appear in opinion.

      W. A. Sutherland, for appellant Hyland; Chas. J. Bissell, for Bingham, receiver, resp’t and app’lt; Joseph W. Taylor, for Crisfield, trustee, etc., app’lt and resp’t; C. W. Stevens, for resp’t Smith.

       Modifying and affirming 33 N. Y. State Rep., 783.

   Bradley, J.

The testator, James Faulkner, died seized of a considerable quantity of real property, some of which he specifically devised ; and the rest of it came within the residuary clause of his will by which he gave to his heirs and next of kin the residue of his estate to be divided between and paid to them in cash in five years from his decease, and gave to the executors power to sell and convert into money the property and make the distribution there directed. In' July and August, 1887, James Faulkner, Jr., mortgaged to John Hyland lands specifically devised to him by the testator and situated in the county of Livingston to secure the payment in the aggregate of $40,000. This was done by three mortgages; and by another made in August, 1887, he mortgaged his title and interest as residuary devisee and legatee in the lands covered by that clause to John Hyland to secure the payment of the further sum of $20,000. These mortgages were soon after their dates recorded in the clerk’s office of Livingston county. They were assigned to George Hyland and the assignments recorded in April, 1888. He was not named in the petition and for that reason as well as others it is urged by his counsel that the surrogate acquired and had no juris-diction to entertain the proceeding or to make the decree which was made. It is true, as claimed, that the proceeding is dependent upon the statute for its support, and substantial compliance with it is essential to jurisdiction. This proceeding was not commenced within three years after letters testamentary were first issued to the executor of the will of the testator. This is the time within which it is provided that a creditor of a decedent may. present his petition to the surrogate’s court praying for a decree directing the disposition of the decedent’s real property for the payment of his debts. Code Civ. Pro., § 2750. But the time during which an action is pending in a court of record between a creditor and an executor or administrator of the estate, is not a part of the time so limited “ for presenting a petition founded upon a debt, which is in controversy in the action ; if the creditor •has before the expiration of the time so limited, filed, in the clerk’s office of the county where the real property is situated, a notice of pendency of the action specifying the names of the parties, the object of the action * * * containing a description of the property in that county to be affected thereby; and stating that it will be held as security for any judgment obtained in the action.” Id., § 2751.

It appears by the petition that before the expiration of three years from the time letters were issued to James Faulkner, Jr., and until the time of the presentation of the petition, an action brought by the petitioner as receiver of the First National Bank of Dansville, as creditor, against the executor of the will of the testator was pending, and that before the expiration of such three years, the plaintiff duly filed a notice of pendency of the action, etc. The petition did not state that it was “founded upon a debt, which was in controversy in the action ; ” and for that reason it is urged that the surrogate took no jurisdiction by it to proceed in the matter. While it is essential that the petition be founded upon such debt to relieve the proceeding from the limiting provision of § 2750, the statute does not in terms require that the fact should appear in the petition; but does provide what it shall set forth. Section 2752.

It would, therefore, seem that such requirement was effectually suppliable by proof; And the fact that the lis pendens was filed, etc., in compliance with the statute was proved. It appeared that the debt upon which the petition was founded, was the subject-matter of the action, but there was no evidence other than the inference derivable from the fact that the action had been brought and was pending, that the cause of action alleged was contested. );The action had been pending about six months at the time of filing the petition; and in view of its commencement and such pendency, the reasonable presumption is that the claim made by the receiver was disputed, and that the alleged debt was in controversy in the action. This question was not raised on the hearing,, nor is it distinctly presented by any exception.

It is contended in behalf of George Hyland that the surrogate acquired no jurisdiction as against him because he was not named in the petition. The statute upon the subject provides that the petition must set forth “ as nearly as the petitioner can, upon diligent inquiry ascertain them,” the names of all the heirs and devisees of the decedent, and also of every other person claiming under them or either of them. Id., § 2752. And that a decree can be made, only where it is established to the satisfaction of the surrogate, that the proceedings have been in conformity to the statute. Id., § 2759.

Neither was he named in the citation issued upon the filing of the petition. The proceedings progressed, and thus far he could not have been prejudiced by them. But afterwards an affidavit of theft,petitioner' to the effect that certain other persons named, not including Hyland, had or claimed to have a claim or lien on or interest in the premises described in the petition, was filed with the surrogate, who then issued citations to such persons and George Hyland, citing them, to appear and show cause why a decree should not be made directing the disposition of the property of testator for the payment of his debts. This citation was served upon Hyland, and he appeared and filed his answer, setting forth as well objections to the jurisdiction of the surrogate as matters upon the merits of the petition. Thereupon the petitioner and the other creditors before mentioned repeated the introduction of the evidence before given; and after the close of the proofs Hyland submitted propositions to the surrogate with request to find them, and excepted to findings of fact and conclusions of law as found by him. As presented by the record there was an irregularity in not having any proof and order upon which to found the citation issued to Hyland and in not so amending the petition as in that manner to make him a party to it, yet by his appearance generally and taking part in the proceeding he became a party to it, and assuming that the surrogate had jurisdiction of it, the power as against Hyland to make decree was as effectual as if he had originally been made a party. While appearance or consent cannot confer upon a tribunal jurisdiction of subject matter not within it, the rule is otherwise as to the jurisdiction of the person. In the present case not only the subject matter was within the jurisdiction of the surrogate, but the petition contained the elements essential to its support, although farther facts were necessary to the maintenance of the proceeding, and so far as they existed were available for such purpose. Id., § 2474.

The statute provides that the petition must set forth as nearly as the petitioner can, upon diligent inquiry, ascertain, a general description of the decedent’s real property, and interest in real property within the state, id., § 2752, which may be disposed of in the order prescribed in § 2763. The testator had an interest in what was known as the “ Tolies House,’’ which was not mentioned in the petition, but it is conceded that the petitioner may have been excused for that omission as it may not have been ascertained upon diligent enquiry by him. But the testator was seized of a farm situated in the county of Steuben. This was described in the petition, and not included in lis pendens, and for that reason it cannot be disposed of for the payment of the debts of the testator by direction of any decree of the surrogate, since three years from the time of issuing the letters testamentary have expired, and had at the time of filing the petition. This real property was the subject of specific devise by the will, and the surrogate found that the failure by lis pendens to subject that land to this proceeding was not excused on the ground that it could not by diligent enquiry have been ascertained by the petitioner. While that omission does not go to the jurisdiction of the surrogate, it does, to some extent, prejudice Hyland because that land is not covered by his mortgages, and description of the property which they did cover was embraced in the lis pendens filed. Nor did Hyland have any opportunity within the three years to cause or suggest that the Steuben land be charged by this proceeding. The statute contemplates that all the lands of a decedent ascertainable by diligent enquiry of the petitioner shall be subjected to a proceeding having the purpose of this one, although in a proper case for it a portion of the premises may be released from the lien. Id., § 2751. From this mistake of the petitioning creditor, and as against him, Hyland should have been relieved by direction that the specifically devised real property described in the lis pen-dens be mortgaged for only the same proportionate amount of the deficiency appearing on the sale of the residuary lands, with which it would have been charged if the Steuben land had not been omitted. That land was valued at $2,162.50.

The surrogate found that there came into the hands of James Faulkner as executor of the will a large amount of personal property which could have been applied to the payment of the debts of the decedent, and which was not so applied, but was converted to his own use and squandered by such executor, and that “ the total value of the personal property does not exceed $5,000.” It does not appear what was the amount of such property left by the testator, but it is urged that the amount of it, whatever it was, must be applied before his real estate can lawfully be appropriated to the payment of his debts, and that the conversion and waste of it by an irresponsible executor does not qualify the proposition, and for its support reference is made to the statute which provides that a decree directing this disposition of real property can be made only where, after due examination, it is established to the satisfaction' of the surrogate “ that all the personal property of the decedent which could have been applied to the decedent’s debts and funeral expenses has been so applied; or that the executors or administrators have proceeded with reasonable diligence in converting the personal property into money and applying it to the payment of those debts and funeral expenses, and that it is insufficient for the payment of the same, as established by the decree.” Id., § 2759. Although this phraseology differs from that of the former statute, its import is substantially the same. 2 R. S., 102, § 14; Laws 1837, chap. 460, § 41; 4 Edm. Sts., 494. The necessity of treating the personal property of a decedent as the primary fund for the payment of his debts and the application of it to that purpose, so far as it can with reasonable diligence be done, before resorting to his real property, was then and now is the statutory requirement. The personal property of the decedent was insufficient for the payment of his debts. They at the time of filing the petition amounted to upwards of thirty thousand dollars, and his personal estate did not then exceed five thousand dollars, And what is reasonable diligence within the contemplation of the statute is somewhat dependent upon circumstances, which, in this instance, were peculiar.

This proceeding was taken not by the personal representatives of the testator, but by a creditor or the representative of certain creditors and solely in their interest. The debt of the decedent upon which it was founded was developed a short time only, before the expiration of three years after letters testamentary were issued upon his will. Whatever of the personal estate then remained was not in a situation to be applied on the debt, and the inference was permitted that in view of such situation it was not by the exercise of reasonable diligence available for application to that purpose within the time required or up to the time of filing the petition. The acount and judicial settlement of the temporary administrator (who was such intermediate the revocation of the letters to James Faulker, Jr., and the issue of letters to Lester B. Faulkner late in the year 1887), in connection with other evidence on the subject justified the conclusion of the surrogate upon the question now under consideration, that a case was presented authorizing the proceeding upon the petition and a decree therein directing the disposition of the real property for the payment of the debts of the decedent. Moore v. Moore, 14 Barb., 27. And the question whether or not the creditors were chargeable, by way of reduction of the debts of the decedent, with the amount of the personal property left by him and which was appropriated and wasted by the executor, we think was properly disposed of by the surrogate. There was no question of laches in that respect on the part of the creditors presented for consideration. The testator voluntarily selected his personal representatives to take and administer his estate. It may be assumed that the responsibility of the executor was personal' merely, and whatever view may be taken in cases where are appointed administrators who must secure the performance of their duties by the requisite bond, there is no reason for denial of the right of creditors to the payment of their debts out of the proceeds of the real estate of testator whose executor has squandered the personal property which came to his hands as such.

The cases upon the subject to which our attention has been called do not aid the appellant They were those where the application to sell real estate for the payment of debts were made by executors or administrators, or where a creditor seeking such relief was chargeable with extraordinary delay or laches. At the time of the death of Samuel D. Faulkner he was a member of the firm of Sweet, Faulkner & Co., owning certain patents for improvements in mowers and reapers, and engaged in the business of manufacturing. The property was both real and personal, and the interest, in the firm, of Samuel D. Faulkner, who died intestate, was three-eighths. The testator was his sole heir and next of kin; and by his will he gave and devised his interest in the property and business of the firm to James Faulkner, Jr., free from any control of his executor, with direction to receive and pay the net income of such interest to certain persons named, and eventually that distribution of the property or its proceeds be made between persons as directed by the will. The business of the firm was continued, and, so far as appears, it had not ceased to continue at the time this proceeding was instituted, when the three-eighths interest in the assets of the firm had the value of $15,000. And James E. Crisfield having been appointed as such, then was testamentary trustee under that provision of the will. While he insists that such interest in the property of the firm of Sweet, Faulkner & Co. is by the will exonerated from liability for the debts of the testator, until all his other property is exhausted, it is contended by Hyland that such property should be treated as personal property, and be applied before resort is had to the real estate of the decedent for the payment of his debts. The surrogate found that such interest of the testator in the firm assets were “ not liable for the payment of his debts until after all the lands embraced in the residuary clause of his said will, and thereby devised, are first sold and applied.” No exception was taken to this finding by any party other than Crisfield, and the portion of the decree entered in conformity to such finding by which the firm assets belonging to the estate are put on the same footing as the specifically devised lands, is not by his notice of appeal made the subject of review by him. That question, therefore, requires no further consideration.

It is also urged that the surrogate was personally disqualified to entertain the proceedings and make the decree because an action, entitled “ The People of the State of New York exrel. Edwin A. Nash, as Surrogate, etc., v. James Faulkner and Henry Faulkner, Survivors of Samuel D. Faulkner, Deceased," had been brought, tried, and a recovery in it had against the defendants for upwards of $3,000. The claim founded on the judgment was presented in this proceeding in behalf of the People by the attorney against the estate and was rejected by the surrogate as not a lien upon the real property, for the reason that no lis pendens had been filed in the action. The judgment roll was put in evidence, but is not set out in the record. The purpose of the action does not appear. It cannot, therefore, in view of its title, be assumed that the surrogate had any personal interest in it or had any relation to it which would make the question raised for the first time on review available. The rule would be otherwise if the case came within the statute declaratory of the common law that no judge can sit in a cause in which he is a party or in which he is interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties. 2 R. S., 275, § 2. In such case his disqualification to sit as judge cannot be waived so as to deny the right of a party to cause judgment to be vacated as void. Oakley.v. Aspinwall, 3 N. Y., 547 ; Converse v. McArthur, 17 Barb., 410; Baldwin v. McArthur, id., 414. This proceeding was not founded upon the debt represented by that judgment, nor affected by its existence. And when it was presented, if objection had been taken, the question would have arisen whether the relation of the surrogate to it was such as to disqualify him to adjudicate upon it as an asserted claim against the estate of the decedent. But no question being raised at the hearing and the claim having been rejected, there is now no opportunity to effectually assert that the officer was disqualified to entertain the proceeding to its determination and that the decree is void. That question does not necessarily depend upon the fact whether or not he could lawfully adjudicate in the proceeding upon the claim represented by the judgment. The part which it did have in the proceeding was incidental merely, and now justifies no interruption to the result of its main purpose represented by the decree.

It is now contended that the claim of Christiana Smith was improperly allowed by the decree as a charge upon the real property of the decedent, as it was not the subject of an action, and therefore did not come within the provision of § 2751 of' the Code. ' Her claim was disputed and the matter was referred pursuant to the statute. 2 R. S., 88, § 36, as amended by Laws 1859, chap. 261. It was pending at the time of filing the petition, and judgment was recovered by her upon the report of the referee July 31, 1888. Before the expiration of three years from " the time letters testamentary were issued she caused a lis pendens to be filed. Although the method so provided for the presentation and determination of the controversy arising upon a disputed claim against the estate of a deceased person is a special proceeding, Mowry v. Peet, 88 N. Y, 453, the statute provides that “ the same proceedings shall be had in all respects * * * as if the reference had been in an action in which such court might by law direct a reference, * * * and the judgment of the court thereupon shall be valid and effectual in all respects as if the same had been rendered in a suit commenced by the ordinary process." 2 R. S., 89, § 37. The provision for filing the lis pendens has relation in terms to actions only. And while there may be some doubt whether it can by construction be deemed to embrace such a controversy instituted by the reference provided for, it is quite evident in view of the statute just mentioned that the intent was to give to it the benefit of the practice pertaining to actions so far as practically applicable. In that view it was held in Paddock v. Kirkham, 102 N. Y., 597; 2 N. Y. State Rep., 555, that although the statute provided for issuing a commission to take testimony out of the state, only in case of issue of fact in an action pending in a court of record, it was issuable to take testimony in a controversy in the reference of such disputed claim. The same reason is applicable to the use of lis pendens, which may as in this instance be essential to render recovery effectual as a means for its collection. But this question is presented by no exception, which is necessary for the purpose of its consideration on this review.

Upon the appeals of the petitioner and Crisfield it is in their behalf argued that the testator was the owner of the fifty shares of the capital stock of the bank left by his son Samuel D. Faulkner ; and that the assessment of $5,000 upon such stock, was chargeable against his estate, and should have been included in the amount directed by the decree to be paid with the proceeds of the real estate. This claim is based upon the fact that he was the sole heir and next of kin of his son Samuel, and after his death took it into his possession, voted it with his other stock, and received such dividends as it produced. But his control of it as well as the receipt of dividends was consistent with the fact that he was administrator of the estate of his son. While he duly advertised for claims existing against his intestate, and may have paid such as were presented and undisputed he never made any judicial settlement of his accounts as administrator, nor was the stock of his son transferred to him on the books of the bank. The residuary interest in the stock after payment of the debts of his intestate belonged to him, but while he held the relation of administrator, which he could terminate only through a final judicial settlement of his accounts, it is not seen how he could be treated as having the legal title to the stock other than in his representative capacity. An administrator may, however, after the expiration of the time prescribed by statute for-the presentation of claims of creditors, make distribution of the assets to the next of kin, and not be chargeable to those whose claims were not presented. 2 B. S., 89, § 39 ; Erwin v. Loper, 43 N. Y., 521. This is not applicable to retention by the administrator, who is also the next of kin, and has not been discharged, by and úpon judicial settlement of his accounts, from that relation. But if in this instance he had procured a transfer upon, the bank books of the stock to himself individually a different question may have been presented. There was no error in not treating the assessment upon the fifty shares as the debt of James Faulkner, deceased.

The remaining questions have relation to the nature and effect ef certain provisions of the will and especially as applied to the lands embraced within the residuary clause. The direction to the executors to pay the debts of the testator did not make them a charge upon his real estate. Hamilton v. Smith, 110 N. Y., 159 ; 17 N. Y. State Rep., 146 ; In re Powers, 124 N. Y., 361; 36 N. Y. State Rep., 347. Eor was there an equitable conversion of the real estate within that clause into personalty. The testator there gave the residue of his estate to his “heirs and next of kin in the same portions in which ” it “ would be divided or distributed ” in case of his death intestate, directed it to be distributed and paid in cash in five years from his decease, and for that purpose gave to the executors power of sale.

The language used does not import that the testator intended the real should be treated as personal property, but the contrary is fairly indicated by giving 'the property to his heirs as well as next of kin, to be divided as if no will were made. And it seems that the power of sale was given solely for the purpose of the execution of the provisions of this clause of the will, and that on failure to execute the power the persons in view, capable to do so, would retain as heirs the realty, as such, so given them. Gourley v. Campbell, 66 N. Y., 169; Parker v. Linden, 113 id., 28; 22 N. Y. State Rep., 614; Chamberlain v. Taylor, 105 N. Y., 185; 7 N. Y. State Rep., 517. Eo other question requires consideration.

The judgment of the supreme court and the surrogate’s decree should be so modified that the specifically devised real estate, described in the latter, be mortgaged for no greater portion of the deficiency remaining after the sale of the residuary lands than would have been its proportion if the Steuben farm valued at $2,162.50, had been charged by this proceeding with liability to pay its portion at such valuation, and with such modification the judgment should be affirmed.

All concur.


source: Caselaw Access Project

author: Lawrence, J.

license: Public Domain

text:
    Arthur Leary, Ex’r, Resp’t, v. John H. Melcher et al., Ex’rs, App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Pleading—Single equitable cause of action.
    The plaintiff claimed to he entitled to a fund which his testator had a right to dispose of-under the will of S. The executors of S. were by the complaint called upon to account; these executors were alleged to have distributed some of the fund to some of the defendants, and such defendants as received it were called upon to return it. Held, that, in equity, these allegations were a statement of but one cause of action; and that the court properly refused to direct the plaintiff to state and number separately the causes of action alleged in the complaint against the various parties defendant.
    Appeal from an order made at chambers overruling a motion (1) to compel the plaintiff to make the complaint more definite and certain in ten particulars ; (2) to strike out certain allegations alleged to be irrelevant and redundant, and (3) to compel the plaintiff to separately state and number causes of action.

      John E. Burrill and George Zabriskie, for app’lts; Hoadley, Lauterbach & Johnson, for resp’t.
   Lawrence, J.

In disposing of the motion Patterson, J., delivered the following opinion:

“ This is a motion to compel the plaintiff to reform his complaint in three particulars: First, to make it more definite and certain respecting specific subjects mentioned in the notice of motion; secondly, to strike out the allegations in the complaint relating to plaintiff’s appointment as a trustee under the marriage settlement of Mr. and Mrs. Paget, and third, to separately state and number the causes of action in the complaint alleged against various sets of trustees referred to in the notice and against certain individuals. Concerning the second subdivision of this motion, it is sufficient to say that the mention of the trusteeship of the plaintiff under the marriage settlement referred to cannot be considered altogether irrelevant and redundant, for the plaintiff is simply bringing to the notice of the court in an equity suit a fact which may be of consequence and as to which the court should be advised, and it is not improper to set forth in the complaint. As to the third ground upon which the reformation of the complaint is sought, undoubtedly, if there were separate and independent causes of action set up against the several sets of parties, as claimed by the defendants, those causes of action should be separately stated. But it is a misapprehension of the real scope of this action to consider that there is an independent and different cause of action against different sets or groups of defendants. There is but one suit, a suit in equity for an accounting, the plaintiff claiming that he is entitled to a certain fund, of which his testator had the absolute right of disposition under the thirteenth clause of the will of Paran Stevens. The executors of that will are called upon to account, and the fund which the plaintiff seeks to realize, or some part of it, he claims has been distributed by the executors of Paran Stevens’ will among all or some of the defendants in. this suit, and those defendants who have received a portion of the fund in the distribution referred to, are called upon in this suit to make good to the plaintiff the amounts received by them respectively. There is one entire cause of action in equity, and it is not like an action to enforce common law claims. The question involved here is not as to the sufficiency of the complaint upon demurrer, but as to whether or not the cause of action is stated in such way that the defendants can plead to the bill There is but a single cause of action attempted to be set up, and whether it is good or bad on demurrer we need not concern ourselves with now. Concerning the specific matters referred to in the first subdivision of the notice of motion, after much time spent in going through the voluminous exhibits annexed to the complaint to ascertain what the situation of the parties .to this suit is relatively to each other, and gathering from the exhibits, consisting of complicated wills, decrees and agreements, what might very much better have been stated as direct allegations in the complaint, I find that the complaint is sufficiently definite in all the matters embraced within the various items oí the first branch of the motion. It would require too much time to specify particularly the reasons which lead me to this conclusion, after an inspection and analysis of these complicated papers, but the result of my examination is that the motion must be denied, with ten dollars costs.”

We are of the opinion that the disposition of the case made by the learned justice at chambers was correct, and that nothing can be added to the reasons stated by him in the foregoing opinion.

The order below will, therefore, be affirmed, with ten dollars eosts and disbursements.

Van Brunt, P. J., and Daniels, J., concur.


author: Daniels, J.

text:
    The W. J. Johnston Co., Limited, App’lt, v. The Electric Age Publishing Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Injunction—Trademark—Similarity of title pages.
    An injunction will not be granted upon affidavits where, although there is a similarity between the title pages of two publications, there arc also marked differences in the location of objects upon said title pages and in the colors used in printing them.
    Appeal from an order denying a motion for an injunction.

      Thos. J. Keigharn, for app’lt; John Henry Hull, for resp’t.
   Daniels, J.

The plaintiff is the publisher of a newspaper devoted to the examination of electrical subjects, under the name of The Electrical World. The name has been combined with electrical structures and devices, to form and exhibit its title page. This was finally adopted from, and by way of improvement upon a preceding publication of the plaintiff, and likewise devoted to the consideration and discussion of electrical intelligence. The defendant has been the publisher of another newspaper devoted to the same subjects and its title page has been changed from that which characterized and identified it prior to the present year. Early in 1891 it was designated by the name of The Electrical Age, instead of The Electric Age, which was previously the name given to it; when this change was made, in the early part of 1891, other structures and devices were combined with the name, producing .a general resemblance to the title page of the plaintiff’s newspaper, but still differing in the location of the objects, and printed in and upon other and different colors.

While there are points of general resemblance, there are also features of striking diversity, rendering the inference at least somewhat uncertain whether the defendant is publishing its newspaper under such a form of title page as is calculated to produce the belief in the minds of subscribers or purchasers that the defendant’s is the paper of the plaintiff. If that could upon the affidavits and exhibits be concluded to be the fact, then the case would be one for an injunction. For that would be a violation of the plaintiffs’ rights, which no court could permit to be successfully devised and followed. American Grocer Publishing Ass'on v. The Grocer Publishing Co., 25 Hun, 398; Koehler v. Sanders, 122 N. Y., 65, 72-4 ; 33 N. Y. State Rep., 267; Vulcan v. Myers, 11 N. Y. Supp., 663 ; 34 N. Y. State Rep., 122. But the conclusion that subscribers or purchasers will be deceived by the appearance of the frontispiece and title of the defendants’ newspaper into the belief that it is in fact the plaintiff’s publication has not been so certainly sustained as to present a case for an injunction •during the pendency of the action. It is not intended to be intimated that, after a full hearing of the evidence which may be adduced, the plaintiff may not be entitled to succeed. But simply for the present to say that the probability in its favor is not so free from substantial doubt as to entitle it to an injunction before the trial

At no remote period the issue between the parties can be disposed of upon a hearing of their testimony, which will form a more certain criterion for definite and certian action than the complaint and affidavits now before the court. And until then no serious injury can result to the plaintiff by allowing the situation to remain as it now is.

The order denying the injunction should be affirmed, with ten dollars costs and the disbursements on the appeal to abide the final result of the action.

Van Brunt, P. J., concurs.


author: Lawrence, J. O’Brien, J.

text:
    The United States National Bank, Resp’t, v. Thomas Ewing, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Bills and notes—Accommodation endorser—Antecedent debt.
    One Madden was indebted to a bank. One Ewing endorsed a note for his accommodation. Madden delivered this to the bank as collateral security for his debt, and thereupon the bank extended the time of payment of said debt. Held, that the bank was a holder for value of the note.
    2. Same—Diversion op paper.
    Ewing made the endorsement upon Madden’s assurance that the note would be “negotiable at Louisville.”' Madden delivered the note to a bank in New York. Held, that this did not constitute a legal diversion of the note.
    Appeal from an order denying motion of defendant, upon the minutes of the trial, to set aside a verdict rendered by direction of the court in favor of the plaintiff, and to grant a new trial upon the exceptions taken by defendant at said trial.

      Ben. L. Fairchild, for app’lt; Butler, Stillman & Hubbard (John Notman, of counsel), for resp’t.
   Lawrence, J.

learned justice before whom this cause was tried, after having directed a verdict for the plaintiff, upon a motion for a new trial, rendered the following opinion:

O’Brien, J.

In Grocers' Bank v. Penfield, 69 N. Y., 502, it was said: “Whatever confusion may have existed upon the point, we think we may now safely say, in the language of Professor Parsons (1 Parsons on Notes and Bills, 296), ‘ that it is universally conceded that the holder of an accommodation note, without restrictions as to the mode of using it, may transfer it either in payment or as collateral security for an antecedent debt.” And again (p. 505): It must be regarded as settled that an endorsee of a negotiable note made for the accommodation of the endorser, but without restriction as to its use, taking the note in good faith as collateral security for an antecedent debt, and without further consideration, is entitled to the position of a holder for value, and not affected by the defense of want of consideration to the maker.”

The undisputed evidence in this case shows that the note in suit, upon which the defendant was an accommodation endorser, was taken as collateral security for a debt, and on the strength of the acceptance of the note plaintiff extended the time of the payment of the original indebtedness.

Upon the authorities, therefore, the note is held for a sufficient, consideration. Mutual Life Ins. Co. v. Smith, 23 Hun, 535. In this case, in which the authorities are collated, it was held that an agreement for specific time is not necessary if forbearance is in fact given.

In Freund v. Importers and Traders National Bank, 76 N. Y.,. 352, it is held that the holder of an accommodation note, without, restriction upon him as to the mode of using it, may transfer it either in payment or as collateral for an antecedent debt, and that the maker will have no defense against it in the hands of an endorsee. The existing debt is a sufficient consideration for the transfer. A new and contemporaneous consideration need not be shown.

This leaves as the only remaining question in this case the one as to whether or not there was a diversion of the note. If there was, the defendant being an accommodation endorser, would not be liable; if it was not, then under the authorities cited the defendant would be liable.

The defendant claims that part of the arrangement under which the note was given was in writing and part verbal.

The written memorandum is as follows : * * *

“ Said Ewing has given me his endorsement of my note at four months, of this date for $1,000, payable to his order, which note I hereby agree to pay and hold him harmless on account thereof.* * * "

The verbal part of the arrangement under which the note was given is thus described by defendant: He said he wanted to use the note at Louisville, and gave me his strong and emphatic assurance that he would pay it at maturity. * * * I finally made the endorsement on his (Madden’s) assurance, and relying upon it that the note would be negotiable at Louisville, and that he would meet it at maturity.”

It will be noticed, therefore, that the diversion claimed is that Madden delivered the note to the plaintiff in the city of New York, instead of using the same in the city of Louisville. I do not think that this agreement between Madden and the defendant that the note should not be negotiable in New York, and only in Louisville constitutes a restriction upon the use sufficient to make out a case of a legal diversion. The part of the agreement between the defendant and Madden, which is in writing, shows that the endorsement was given without restrictions, and when we take this in connection with the whole of the defendant’s testimony, is it not apparent from the very language used that what substantially was said between the parties thereafter was a statement by Madden that he wanted to use that note in his Louisville bank and would negotiate it there, and by defendant that he did not want to endorse a paper that might be sued on anywhere, especially in New York ?

As was said in the case of Powell v. Waters, 17 Johns., 176: “ It was of no consequence that the note which was endorsed with the understanding that it was to be discounted by a bank, was, in fact, discounted elsewhere; for it did not alter or increase the responsibility of the endorser.”

In Purchase v. Mattison 2 Robertson, 76, and in many other cases which might be cited, “ the law is laid down that the lender of accommodation paper, who has no interest in the use of its proceeds, cannot complain that it has been diverted, simply because it was not discounted by the person whom he was- led to believe would cash it, or because it was used in paying an antecedent debt, though the accommodation endorser expected it would be used to raise money.

“ The effect of these decisions seems to me to settle the law that, unless the accommodation endorser imposes some restriction upon the borrower to the use to be made of the proceeds, the latter may apply it to any purposes which he considers of advantage to himself, even though the purpose be different from that which the endorser contemplated.” See, also, Wheeler v. Allen, 59 How. Pr., 118; Daniel on Negotiable Instruments, §§ 792 and 794.

There is no doubt, therefore, that the intention between the parties was that Madden should have the use of the note for his own purposes, and any understanding or statement, or agreement, between the parties that the note was to be used in Louisville instead of New York did not increase the endorser’s responsibility, nor did it limit the use which the borrower could make of the proceeds; for it must be evident that, if not paid at maturity, the defendant being in the city of New York, that his liability to be enforced, no matter where the note was used, would be in this city.

Upon the whole case, therefore, I am clear that there was no legal diversion of the note, and the plaintiff holding the same for a sufficient consideration, the verdict directed for the plaintiff was correct, and the motion for a new trial should, therefore, be denied.

Our examination of the case satisfies us that the views expressed by the justice holding the circuit were correct as to the law upon the facts established by the evidence, and the order denying the motion for a new trial, as well as the judgment appealed from, should be affirmed, with costs and disbursements to the respondents.

Van Brunt, P. J., and Daniels, J., concur.


author: Van Brunt, P. J. Daniels, J.

text:
    In the Matter of the Application of Charles Sargent v. John J. Gorman, Sheriff, etc.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Veterans—Office.
    Honorably discharged soldiers and sailors arc to be preferred as appointees in public departments, chap. 464, Laws of 1887; and shall not be removed except for cause, chap. 67, Laws of 1890; but this latter provision shall not apply to the chief clerk of an official. Meld, that both these statutes must be read together, and that a sheriff might discharge, at his pleasure, one who received, in the first instance, most of the fees collected in the sheriff’s office.
    Appeal from an order of special term denying the application of the appellant for a mandamus compelling the respondent as sheriff of the city and county of New York to immediately reinstate or reappoint him to the position of employe in the sheriff’s office.

      A. Gruber, for app’lt; W. E. Stillings, for resp’t.
   Van Brunt, P. J.

It is conceded that the appellant is an honorably discharged soldier, and it is claimed that under chap. 464 of the Laws of 1887, he is entitled to preferment for appointment and employment in the sheriff’s office, to which he had been attached prior to the time of the entry of the respondent into the office. This chapter provides that:

“ In every public department and upon all public works of the state of New York, and of the cities, towns, villages thereof, and also in non-competitive examinations under the civil service laws, rules or regulations of the same, wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment.”

And all officials and other persons having power of appointment to or employment in the public service are, by the terms of the act, charged with the faithful compliance with its terms, both in letter and spirit, and failure therein is a misdemeanor.

By Chap. 67 of the Laws of 1890, it is provided as follows;

No person holding a position by appointment in any city or county in this state, receiving a salary from such city or county, unless he has been appointed for a definite term, who is an honorably discharged soldier * * * shall be removed from such position except for cause shown after a hearing had, but this provision shall not be construed to apply to the position of private secretary or chief clerk or deputy of any official or department, or to any other person holding a confidential relation to the appointing officer.”

It is claimed that the learned judge, in disposing of this application and denying the motion of the appellant, considered only chap. 67 of the Laws of 1890, and did not give due weight to chap. 464 of the Laws of 1887.

These two provisions of law must necessarily be construed together in determining the question as to whether the appellant is entitled to the appointment which he now seeks.

It is plain that under chapter 67 of the Laws of 1890, if the position which the appellant occupied would be that of private secretary or chief clerk or deputy of the sheriff that he would be removable at the pleasure of the sheriff. If such is the fact then the provisions of this chapter necessarily control the provisions of chapter. 464 of the Laws of 1887, because the legislature could not have intended that a public official should be required to appoint a person to a position from which he would have the right immediately to remove him.

It appears clearly from the papers submitted upon this application that the position which the relator seeks to occupy is that of chief clerk to the sheriff.

It further appears that the relation which he would hold to the sheriff would be of a confidential character, because he receives in the first instance most of the fees which are collected in the sheriff’s office. It is true that he hands over the same subsequently to the cashier of the sheriff; but he- is the person who first receives the same as already stated

It is true that the appellant denies the fact that he occupies any such confidential relation or that his position is that of a chief clerk, but the evidence upon the part of the respondent is conclusive upon this point, and the duties which it is conceded the appellant has performed fairly come within the designation of those which would be performed by the chief clerk of the sheriff.

Under these circumstances, we are of .opinion that the sheriff had the power to discharge the relator if he was in office at his volition, under the provisions of Chap. 67 of the Laws of 1890.

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

Daniels, J.

The affirmance of the order from which this appeal has been taken seems to be unavoidable, even though the applicant was not chief clerk in the sheriff’s office. For when he was appointed to his position by Sheriff Flack, the sheriff had no power to make the appointment more extensive than his own term of office. That was done prior to the enactment of chap. 67 of the Laws of 1890, and that act, therefore, could not apply to it, and there was no other law which entitled the sheriff to appoint a clerk whom his successor would be bound to keep in his office. As the appointment has been mentioned and described in the applicant’s affidavit, it was for no certain or designated time. But it could not by means, or force, of the appointment transcend the power the sheriff was authorized to exercise, and that was limited to his own term of office. And an appointment indefinitely made by him would as surely end with that event, as it would if it had been expressly dependent upon it

When Sheriff Flack resigned and General Sickles was appointed to hold the office for the residue of the term, he made no new appointments of the applicant, but continued him along under the appointment he had previously received. This was done tacitly, and by mere acquiescence. lie found the applicant in the office, and retained him without a word that would either add to, or detract from, the appointment he had received from Sheriff Flack. And when the term for which he had been elected came to an end, that necessarily ended the term of the applicant. And within this act of 1890, he could be lawfully dismissed by the present sheriff. For that act does not apply to an employment where the appointee has been appointed for a definite term, as this appointee was in the most favorable construction that can be given to the act of his appointment

That it was not to extend into the term of the present sheriff is also confirmed by § 2 of chap. 523 of the Laws of 1890. For that empowered the sheriff to designate the number of the clerks and employes of his office, subject only to the revision of the board of estimate and apportionment as to their number, classification and compensation. It committed the designation to the newly elected sheriff, which he would not have the unrestricted right to exercise if he should be bound to retain any of the clerics, or employes of his predecessors, who received their appointment before the enactment of chap. 67 of the Laws of 1890, as the applicant most surely did.

The same result also follows from the fact that when the applicant was appointed, he was to be compensated for his services by the sheriff himself, and not by the city and county of New York. And the fact that the balance owing him at the close of General Sickles’ term was obtained from the city and county, under the authority of chap. 523 of the Laws of 1890, could not and did not have the effect of extending the appointment It still remained as it was made by Sheriff Flack, when his compensation was not payable by the city and county, but by the sheriff personally. The term was then fixed, if indeed any term whatever was understood, and it could not go beyond the authority of the appointing power, which was restricted to his own term of office.

If the applicant had applied for a further appointment from the present sheriff, as an honorably discharged Union soldier, his application might then have been successful For while the position was vacant he was entitled to a preference in the appointment to it But that he did not do. He applied only for his reinstatement to an employment which he claimed had not then terminated. And the fact that it had terminated was a legal answer to the application.

The laws relating to these employments have not been very carefully framed. And it is essential to the success of these applications that they shall be brought as clearly as practicable within the enactments made for the security and protection of honorably discharged Union sailors and soldiers. That was not done in this case. And the order from which the appeal has been taken should be affirmed.


text:
    Mary C. Higgins, Resp’t, v. George C. Hallock, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    When executors and administrators is personally liable,
    A person who was separated from his wife died leaving infant children

      and upon the day of the funeral the question arose as to what should be done with them. The defendant, who was executor of the deceased, directed the plaintiff to take and keep them, and that he would see her paid. The plaintiff did so. UeUl, that the defendant was individually liable upon the promise, the consideration for which was plaintiff’s performance.
    Appeal from a judgment, entered upon a verdict, and from an order denying a new trial

      Sam'l J. Crooks, for app’It; M. H. Topping, for resp’t.
   Daniels, J.

The recovery was for the amount owing to the plaintiff for boarding, lodging and otherwise providing for four boys, who were the children of Jesse Combs, deceased. They were of the respective ages of nine, ten, fourteen and sixteen years. Their father, who had provided for them, died on the 2d of October, 1887. And the defendant had been nominated an executor of his estate by his will The two youngest of the children had been with the plaintiff, who was no more than an acquaintance of the family, during the last few days of their father’s illness. And on the day of the funeral the inquiry arose as to what should be done with these children, as the wife of their father had separated from him, and his domestic affairs had been managed by a housekeeper.

The evidence of the plaintiff, as well as that of two other persons given her behalf, was that the defendant, who also was not related to the children, directed the plaintiff who kept a boarding house, to take and keep them, and he would see her paid. And under that direction she did take, keep and maintain the-children, until the amount became due to her for which the verdict was rendered.

This evidence was not controverted by the defendant, and at its close his counsel asked for a dismissal of the complaint, on the ground that there was no consideration for the promise, and no liability created by it, against the defendant That was denied, and the defendant’s counsel then asked for the direction of a verdict in his favor which was denied, and an exception taken to the decision, as there also was to the refusal to dismiss the complaint Thé court then, without any further request, or proceeding, and in compliance with the motion of the plaintiff’s counsel directed a verdict in her favor for the amount appearing to be owing to her, and to that the defendant’s counsel excepted.

It is manifest from this course of proceeding that each of the counsel regarded the evidence as presenting points of law. Bach requested the disposition of the case, as one depending only on the law, and the defendant’s counsel was not disposed to have it submitted in any form to the jury. And the appeals must for that reason be disposed of upon that theory. And for its disposition the question arises whether the evidence supported the conclusion that the defendant had by his promise rendered himself liable. The inferences warranted by the evidence, are to be considered to have been adopted by the court, which might have been drawn by the jury, if the case had been submitted to them for their deliberation, instead of the verdict being directed as it was, by the court The question therefore, is whether it may be inferred from what is shown to have been said and afterwards done, that the defendant subjected himself to a legal liability for this debt

He was an executor of the estate named in the will of the deceased father of the children, and may have concluded that it was entirely safe for himself to provide for their support, as he would have the management of their father’s property, and could thereby protect himself against all risk of loss. There was no other-person liable for the support of the children, and his, promise could not be collateral to the obligation of another, as it is necessary it should be to bring such an undertaking within the statute of frauds. It was not to incur a liability for the debt of another, and which must be in writing, that the promise was made. But it was independent, and ex elusive, of all other persons. And in that situation the defendant agreed that he would see the plaintiff paid her debt for what she should become entitled to, for the maintenance of the children. The language may be regarded as somewhat equivocal but at the same time, under the attendant circumstances, it will support the inference that the design was to create an absolute liability for the payment of the debt The children were without the assistance of any person except the defendant, who was named as executor of their father’s estate, and when the inquiry was made concerning their disposition, he directed the plaintiff to take them, and provide and care for them, and he would see that she was paid for doing that She could very well understand that to be an unqualified obligation assumed by him. And if she did it would after she had acted upon it and performed on her part, create a legal liability for the debt against him. The court holding the position of a jury as it did by the conduct of the trial, had sufficient evidence before it, to support the conclusion that such was the understanding warranted by what had been said, under which she supported and boarded the children. And that this view was adopted is evident from the direction of the verdict, which could not have been otherwise ordered. The case in its controlling features differs entirely from those referred to as supporting the exceptions, and from all others where similar language, but used under different circumstances, has been considered.

That there was a sufficient consideration for the promise admits of no ground for doubt 'The promise was to see that the plaintiff was paid, if she boarded and maintained the children, which she consented to, and afterwards did do. Her performance was the consideration exacted, and that was furnished and supplied by her, and it fully supported the promise. Both the judgment and the order should be affirmed.

Lawrence, J., concurs.


author: Macombeb, J.

text:
    Frederick St. John, Resp’t, v. Conrad Swain, Jr., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Foreclosure—Parties.
    A mortgage existed upon a farm belonging to plaintiff’s mother. He had planted certain crops thereon. The mortgage was foreclosed and he was not made a party. Held, that his rights as to the growing crops were not affected by the foreclosure.
    Appeal from a judgment entered in Brie county July 11, 1888, upon a verdict of a jury; and, also, from an order of the Brie county court, denying the defendant's motion for a new trial, on the minutes, in a case appealed to that court from a judgment rendered by a justice of the peace.

      Frank L. Barnet, for app’lt; Joseph E. Ewell, for resp't.
   Macombeb, J.

This action was brought to recover the value of certain farm crops raised by the plaintiff upon his mother’s land. One 0. Gr. Funke held a mortgage upon the farm, and he, on the 12th day of June, 1888, began an action to foreclose the mortgage, but this plaintiff was not made a party to that action. Under a judgment rendered in the foreclosure case the farm was sold on the 7th day of September, 1888, and bid in by the mortgagor, but a deed to him was not delivered until October 9th of that year, when simultaneously with receiving the referee’s deed Funke conveyed the lands to this defendant

At the time of the beginning of the action for foreclosure there were growing upon the farm certain crops belonging to the plaintiff, consisting of corn, potatoes and buckwheat After the sale, but before the delivery of the referee’s deed, the corn and buckwheat were cut and put into shocks and remained on the farm until after the referee’s deed was delivered. The potatoes, however, were not harvested until the following November. After the plaintiff ascertained that the defendant had received a deed of the premises, negotiations were had between him and the defendant respecting the ownership of the crops. The defendant claimed to own them on the ground mainly that they had not been harvested and removed before the sale, and' the plaintiff, being apparently doubtful of his legal rights, conceded a portion of the claim made by the defendant An arrangement was made between the parties which it is not necessary to consider in this case because it never became an executed agreement, and no consideration passed from one to the other in respect thereto.

The question, therefore, in this case relates solely to the legal proposition contended for by the counsel for the plaintiff, that he had a right to remove these crops at the time stated, and that the defendant in preventing him from so doing, and himself taking possession of them, converted the same to his own use.

It admits of no doubt that the plaintiff was unaffected by the judgment in the foreclosure action: Wiltsie on Mortgage Foreclosures, § 59, page 133,1st ed.

This conclusion renders it unnecessary to consider the question as to what might be the effect of a judgment sale and delivery of the deed had the plaintiff been a party to the foreclosure suit. Yet it is quite clear that even by the terms of the judgment the defendant had no right to the possession of the premises, and hence no right to any cut or growing crops thereon until he had received his deed, for it was expressly provided by the judgment that the purchaser should be let iu, not upon proof of a judicial sale, but upon the production of the referee’s deed made and executed under the authority of the court in pursuance of such judicial sale.

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

¡Dwight, P. J., concurs.


author: Dwight, P. J.

text:
    Benedicta Durnherr, App’lt, v. Joseph Rau, Resp’t.

      (Supreme Court, General Tei'm, Fifth Department,

      Filed June 2, 1891.)

    1. Promise—Dower.
    A husband, the wife not joining in the deed, conveyed lands to the defendant, the latter covenanting to pay mortgages upon the premises. Seventeen days later the grantor and grantee in said deed quit-claimed the premises to. a third party, who also agreed to pay said incumbrances. There was no evidence that during the interval between the two deeds the wife had ever heard of or in any manner accepted or acted upon the defendant’s covenant in the first deed. The defendant did not pay the mortgages; these were foreclosed, and the wife, who had joined in them, lost her. dower. In an action by her for damages, alleging her dower as the measure thereof, Held, that she could not recover; that the defendant owed the wife no duty to protect her inchoate right of dower;_ and that the covenant did not purport to be, and there was no proof aliunde, that it was made for her benefit.
    2. Covenant—revocation.
    That the second deed as between grantor and grantee amounted to a revocation and rescission of the covenants in the first, and equally so as to all persons who had not acquired vested rights under the covenants, and these the wife had not acquired.
    Appeal from an order made on the minutes oE the judge at the-circuit, setting aside a verdict in favor of the plaintiff and granting a new trial.

      Theo. Bacon, for app’lt; William E. Edmonds, for resp’t.
   Dwight, P. J.

The action was on a covenant of the defendant to pay incumbrances on lands conveyed to him by the plaintiff’s husband. The covenant was contained in the deed of the husband, to the defendant, to which the plaintiff was not a party. She had joined in the execution of certain mortgages included in the incumbrances referred to, which in default of payment by the defendant, were foreclosed and her right of dower was defeated. She commenced this action after the death of her husband alleging the value of her dower as the measure of the damages sustained by her by reason of the breach of the defendant’s covenant. In addition to the facts above stated it appeared that seventeen days after the execution of the deed from the husband to the defendant, the grantor and grantee therein united in a deed of the j same premises to one Grustavus Rau, which contained the same covenant, on the part of the new grantee, to pay incumbrances. The court, on the trial, submitted to the jury the question of the value of the plaintiff’s dower, which was assessed at the sum of $500, but, on a motion for a new trial, set aside the verdict holding that the plaintiff had not made out a cause of action against the defendant.

We think this conclusion was correct and that the order setting aside the verdict was properly granted. ' The plaintiff's claim to recover was based upon the doctrine of Lawrence v. Fox, 20 N. Y., 268, and the verdict was set aside, as appears by the opinion of the learned judge at the circuit, on the ground that the case was not within that doctrine for the reason that the covenantee owed no duty to the plaintiff to protect her inchoate right of dower. Vrooman v. Turner, 69 N. Y, 280. The argument of the opinion is forcible and well sustained by the authorities cited, but we think there was another reason why the case was not within the doctrine relied upon, viz.: that the covenant does not, by its terms, purport to be, and there is no proof aliunde to show that it was, made, or procured to be made, for the benefit of the plaintiff. It was the grantor in the deed who was liable to pay the encumbrances, and the covenant on the part of the grantee stood for so much of the consideration of the sale.

It is true that performance of the covenant would have enured to the benefit of the plaintiff, but only consequentially and contingently ; the covenant was primarily and directly for the benefit of the grantor himself, and there is nothing to show that it was intended for the benefit of the plaintiff in any event. If it was not made or intended for her benefit it was certain by not a covenant upon which she can herself maintain an action, she being neither party nor privy to the deed in which it was contained. The provision in the deed which reserved the plaintiff’s right of dower had, of course, no reference to the incumbrances here in question. It was quite unnecessary, it is true, for the purpose of reserving the dower from the effect of the conveyance in which it occurred, but that was the extent of its operation, and it seems to lend no color to the proposition that the covenant to pay incumbrances was intended for the benefit of the plaintiff.

But even though the case were clearly within the doctrine of Lawrence v. Fox, we think the plaintiff must fail of her action because of the revocation of the covenant by the execution of the joint deed of covenantor and covenantee to a third person. Tbat_deed is .before us, as it was not before the judge below, on the motion for a new trial. It is a quit-claim conveyance of all the interest of both the parties to the former deed; and is subject to the same condition as the former as to the payment of incumbrances by the grantee. It was executed some seventeen days after the former deed, and there is no evidence that at that time the plaintiff had ever heard of the covenant in the former deed, much less had, in any manner, accepted or acted upon it. We can have no doubt that the joint execution of the new deed by the grantor and grantee in the old one worked a complete reeission and revocation, as between them, of all the covenants contained in the former, and equally so as to all other persons, except such as had acquired vested rights under such covenants. The plaintiff was clearly not within the latter category.

Upon both the .grounds here considered, we think the order setting aside the verdict, and granting a new trial, was properly made.

Order appealed from affirmed, with costs to abide the final award of costs.

Macomber, J., concurs.


author: Macomber, J.

text:
    Ferdinand Griebel, App’lt, v. The Rochester Printing Co., Resp’t.

      (Supreme Court, General Term. Fifth Department,

      Filed June 2, 1891.)

    Libel—Damages where matter is libelous per se.
    The publication of matter libelous per se., e.g., obtaining goods under alse pretenses, entitles the person aggrieved to substantial damages although the publication was made by mistake, without malice, and no special damage is shown.
    Appeal by the plaintiff from a judgment entered upon a verdict of a jury at the Monroe circuit in March, 1890, and from an order made at the same term denying his motion for a new trial upon the merits; also from an order of the same court denying the plaintiff’s motion for a new trial upon the ground of newly discovered evidence.

      Ivan Powers, for app’lt; Eugene Van Voorhis, for resp’t.
   Macomber, J.

At the trial of this case, which is an action for libel, a verdict of a jury was rendered for the defendant.

The alleged libel consisted of an article printed in a newspaper known as the Rochester Democrat & Chronicle, of which the defendant is the proprietor, on the 2d d'ay of April, 1888, as follows :

“ Under False Pretenses.
“ Detectives Furtherer and Kavanagh, yesterday arrested Ferdinand Grueble, on the charge of obtaining goods under false pretenses. Bartholomew Conners, of Faber street, who swore out the warrant claims that Grueble went to his house while he was away one day last week and represented to his wife that he had been sent after her husband’s watch. On these representations she handed over the time piece, and this is what leads to the difficulty.”

The complaint alleges, that the person in such article called Ferdinand Grueble is the plaintiff, who is well known to many readers of that newspaper. The defense is, in substance, that the publication was a mistake caused by the error of the newspaper reporter, who by inadvertence had charged Griebel with the crime under a complaint of Bartholomew Conners, while in fact Bartholomew Conners was the accused person and Ferdinand Griebel the complainant.

Upon the trial a point was made that the plaintiff was not the same person as the one mentioned in the newspaper article. But it seems to us that there was no merit in that claim, because under the evidence all of the plaintiff’s acquaintances would necessarily understand from the article that he was the person referred to. If it be true, as is claimed by the learned counsel for the defendant, that the verdict of the jury was based upon the proposition that the Ferdinand Grieble mentioned in the title of this action, and the Ferdinand Gruebel mentioned in the article as published, are not the same persons; that conclusion was wholly unsupported by the evidence, and should not be permitted to stand. But it is quite apparent that the jury reached no such result.

The learned justice at the circuit charged the jury that: If this article in question was designed to affect this plaintiff, if the plaintiff was the person meant by the article, the article was libelous; it charged the plaintiff with the commission of an offense which he had not committed. The publication of that article is presumably malicious, but the malice presumed by its publication may be entirely overcome by evidence that none was intended by its publication. If you find that a libel was published by defendant against the plaintiff, but that it was published without any malicious intent, then, although it would be your duty to find a verdict in favor of the plaintiff, yet, under these circumstances, he would be entitled to recover only nominal damages, because he has not shown that he has received any special damage by reason of the publication.”

At the close of the charge the counsel for the plaintiff asked the court to charge as follows: “ That if the jury should find that the publication was made without malice, but as a matter of pure mistake, and without malice, the plaintiff was still entitled to damages which would "compensate him for whatever damages was done to his reputation.”

The court, in reply to this request, said: There is no evidence of any damage which the plaintiff has sustained. I must refuse to charge as you request,”

To this refusal an exception was taken.

A further request was made that “ The defendant had not the right to make a mistake which should substantially injure a person without answering in damages to that person.”

This proposition was also declined by the court in the following terms: “ The court declined to charge in the language requested.”

To this also there was exception taken. Exception was also taken to the portion of the charge in chief, as above quoted.

In respect to the proposition that the plaintiff was not entitled to substantial damages provided the publication was a mistake and was made without any intent to injure the plaintiff, it is, perhaps, sufficient to say that it is counter to the decision in the case of Morey v. The Morning Journal Association, 17 N. Y. State Rep., 266, which was affirmed by the court of appeals in 123 N. Y., 207; 33 N. Y. State Rep., 49. It was there held that a publication, though made through a mistake, of name, which charged the plaintiff with a threatened suit for breach of promise of marriage, was libelous per se, and that the plaintiff was entitled to recover substantial damages without averment or proof of any special damage, and that the publication necessarily disgraced the plaintiff.

The other ground of error, namely, in respect to the affirmative legal proposition contained in the charge in chief, is probably included in the general doctrine of the. case already cited. In Sanderson v. Caldwell, 45 N. Y., 898, it is stated that the law not only imputes malice to the defendant who published libelous matter, but that it also presumes that damages have been sustained by the plaintiff in consequence of such unlawful publication ; and in answer to the' argument of counsel made in that case to the effect that the plaintiff was entitled to nominal damages only, and a verdict for nominal damages would be a vindication of its character, Judge Andrews said (page 406): “In such a case a nominal verdict would be a denial of justice, and the court was not bound to assent to the suggestion of the defendant that such a verdict might be given, nor would such a verdict have been a vindication of the plaintiff. It would have established that the charges were false, but at the same time it would have left it to be inferred that the plaintiff had no character to lose.”

For the errors above mentioned it follows that a new trial should be ordered. This conclusion renders it unnecessary to consider other matters thought by counsel to be' involved in the record.

Dwight, P. J., concurs.


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    Honora Archibald, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Railroad—Failure to maintain fences.
    In an action against a railway corporation tor its failure to maintain a suitable fence between its right of way and the lands of another, whereby the plaintiff's horse broke through upon the track and was injured, where the referee finds, upon conflicting evidence, that the fence was insufficient to restrain peaceable animals, his finding will not be disturbed.
    Appeal from a judgment entered in Monroe county, December 22, 1890, on the report of a referee appointed by the county court of Monroe county,'in a case appealed to that court for a new trial from a judgment of a justice of the peace;

      Albert H. Harris, for app’lt; John E. Robson, for resp’t.
   Macomber, J.

The plaintiff’s horse of the value of $150, which was pastured upon lands adjoining the defendant’s railroad, escaped from the pasture over or through a fence maintained by the company, and while upon the company’s property was hit by one of its engines and so seriously injured as that it was of no value thereafter. <

This action is brought to recover damages for the injuries to this horse, and the right to recover is based upon the claim that the defendant did not maintain a sufficiently strong fence between the pasture lot and its own lands to prevent the horse, which is shown to have been of a peaceable disposition, from getting upon the tracks of the defendant.

The answer is a general denial. The defendant maintains its railroad through the plaintiff’s premises in the town of Eush, in Monroe county. In the year 1885 it erected a fence on the south side of its tracks, and along the line of that portion of the plaint-

iff’s premises used by her as a pasture for this and other horses, by setting posts twelve feet apart and stretching along five strands of wire fastened by staples about one and a half inches in length. The plaintiff’s horse was injured the first day of July, 1890. One year before this time, the defendant rebuilt the fence in question by taking off the wires and setting • in between the posts already set a common cedar fence post, so that the posts in the fence thus . reconstructed stood six feet apart from centre to centre. Upon the posts thus set six strands of double twisted wire were stretched on the frame side of the fence, fastened by staples one and one-half inches in length. These cedar posts consisted of old ties that had lain in the railroad bed for many years, until they had become unfit for their original purpose, and they had, by exposure and use, become decayed and unsound to a considerable extent. Above the barb wire and at the top of the posts on the railroad side of the fence, the defendant had nailed a board four inches in width and one inch in thickness for a side board, arid upon the edge of the board thus nailed and upon the top of the posts there was nailed another board of the same width and thickness for a cap board. These boards were made by sawing an old hemlock fence board into two strips of equal width, and they were fastened upon the posts by about an equal number of eight penny and ten penny nails. On the morning after the accident, at a place in this fence where the horse escaped upon the defendant’s track, the cap .and side boards were entirely detached from the fence and lay upon the ground.broken in two pieces, while the nails drawn from the end and centre posts remained in the boards. The wires were all loosened from the centre post, and some of them from the posts on either side of the centre post, and were sagged down in the •centre, thirteen staples with which the wires were attached to the post being entirely drawn out.

Upon these facts a recovery was had in pursuance of the report of the referee. It was held by the learned referee that the height of the fence was sufficient, but that its strength was inadequate as a fence designed to turn peaceably disposed animals. We think from the whole evidence that the conclusion of the referee was correct.

The finding that the posts at the place where the horse escaped were much decayed, and that they would not hold the nails used in nailing on the boards in case any considerable pressure was used upon them from the land side of the fence, was not excepted to by the defendant’s counsel. We assume that by the expression used in the finding “ considerable pressure ” there was meant the ordinary pressure which might be expected to be applied to the fence by orderly and peaceably disposed animals in the adjacent lot. If this assumption be correct, it would seem necessarily to follow that the plaintiff’s right to recover had been established.

The learned counsel for the defendant, however, has excepted to other findings to the effect that these cedar posts, formerly ties, had become unsound; that the board four inches wide on the railroad side of the fence was but one inch in thickness, and that this board, together with the top board, were fastened upon the posts by about an equal number of eight-penny and ten-penny nails. In respect to the first exception, the evidence seems to be entirely against the contention of counsel for the appellant. In respect to the two others, regarding the thickness of the boards and the number of eight-penny and ten-penny nails used in fastening them, the findings under the other established facts in the case, are not important. It is quite evident that the finding that the board was of an inch thickness was an inference from the evidence rather than an item of direct testimony, as was also the conclusion in respect to the number of eight-penny and ten-penny nails. But whether the learned referee was accurate and precise in his deduction in respect to these matters, it is apparent, from the whole case, as the referee has found in another finding not excepted to, that the nails used in fastening the boards to the post were not, all of them, of the size and length commonly used in the erection of division fences having cedar posts for supports, which are shown to require longer nails than posts of many other kinds of wood.

For these reasons we think the judgment appealed from should be aifirmed, with costs.

Dwight, P. J., concurs.


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    Charles S. Murray, App’lt, v. William T. Cameron, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Stay—Costs—Assignee oe Judgment.
    The assignee of a judgment takes its subject to all the disabilities which affected the assignor. Accordingly Held, that where a judgment was recovered against the defendant, proceedings supplementary taken thereon, and motion costs thereon awarded against the judgment creditor which were never paid, and subsequently a second assignee of the judgment brought an action thereon, he could" not maintain his action because of the failure of his assignors to pay said costs.
    Appeal by the plaintiff from an order made at the Erie circuit, February, 1891, striking the cause from the calendar of that court.

      M. A. Gearon, for app’lt; A. Cameron, for resp’t.
   Dwight, P. J.

This action was commenced in October, 1890, on a judgment recovered by one McWhinney against the defendant, in the county of New York, in July, 1880, by default. The-judgment was first assigned to the attorney for the plaintiff in that, action, who is also the attorney for the plaintiff in this action, and afterwards by him to the plaintiff.

In January, 1890, proceedings supplementary to execution on the judgment, were instituted by the executrix of the original judgment creditor, which proceedings were, on motion of the defendant, set aside by order of the special term in New York, with ten dollars costs to the defendant, which were never paid.

Subsequent to the assignment of the judgment to the attorney Gearon, he issued an execution to Queens county, where the judgment had been docketed, and that execution was, on appeal to-the general term in the first department, set aside with ten dollars costs and the disbursements of the appeal, on the ground that all proceedings on the judgment were stayed by failure of the former owner of the judgment to pay the costs awarded to the defendant in the proceedings supplementary to execution. The costs and disbursements awarded against the first assignee of the judgment by the order of the general term were never paid.

Thereafter the second assignment was made to the plaintiff herein, and he commenced this action by the same attorney on the judgment.

We think the stay operated to prevent the prosecution of the action by the second assignee of the judgment, as it did to prevent the prosecution of the proceedings by execution taken by the first assignee. Both were proceedings to enforce the same judgment, though not proceedings in the same action. But the statute which gives the stay does not confine it to proceedings in the same action. Code Civ. Pro., § 779. The language of the provision is: “ Where costs of a motion, or any other sum of money directed by an order to be paid, are not paid, * * * all proceedings on the part of the party required to pay the same are stayed without further order of the court until the payment thereof.” And we follow the decision of the court in the first department in holding that the assignee of the judgment took it subject to all the disabilities which affected his assignor. MacWhinnie v. Cameron, 32 N. Y. State Rep., 985, and the cases cited.

To hold that the stay did not apply to an action on the judgment would be to permit an easy evasion of the statute and a defeat of the remedy given thereby.

The order appealed from should be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Macomber, J., concurs.


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    William Prince, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Railroads—Duty to maintain crossings.
    A farm crossing was necessary for approach, to a piece of land and had been maintained by the defendant for nearly fifty years, when by the wreck of a train the planking was destroyed and was never thereafter repaired. Held, that it was the defendant’s duty to repair it, and it was liable to one whose horse was injured by a projecting spike while the owner was exercising reasonable care in endeavoring to get a reaper over the crossing.
    Appeal from a judgment of the Monroe county court, entered September 26, 1890, upon a verdict of $175 for the plaintiff; and also an appeal from an order of that court denying the defendant’s motion for a new trial in a case appealed from a court of a justice of the peace.

      Albert H. Harris, for app’lt; E. B. Fenner, for resp’t.
   Macomber, J.

On the 11th day of July,. 1889, one of the plaintiff’s team of horses, while passing over the defendant’s railway tracks on what is called a farm crossing, in the town of Riga, drawing a reaper into a four-acre field of wheat belonging to one Mr. Richmond, caught the toe cork of his forward shoe under the head of a spike near the outermost southern rail, resulting in fatal injuries. The charge against the defendant is that it failed to maintain this farm crossing in a proper state of repair, and that such failure was the cause of the injury to the plaintiff’s horse.

Mr. Richmond’s farm lies in the southeast angle of two highways, a portion of the farm being within the village of Church-ville. The farm crossing, which had theretofore been commonly •used for reaching this piece of four acres, was from a highway running east and west. A stream known as Black creek runs at a distance of about twenty rods easterly from the north and south highway. This creek, though fordable in the summer time, manifestly presents such an obstacle to the approach to the four-acre Reid from the Richmond farm' buildings as that a team of horses with a reaper could not safely cross it. Hence it was that, in order to reach the wheat field, it was necessary to pass along the east and west highway and across the railroad lands for this purpose. This farm crossing had been maintained by the railway company, at the time of the injuries to the plaintiff’s horse, for forty-nine years.

In the month of December, 1888, however, there happened a wreck of a passenger train at this point, which tore up the plank which had theretofore existed and been maintained by the company, resulting in an annihilation of the crossing. Ho steps were taken by the defendant to repair the crossing between that time .and July, 1889, when the injuries to the plaintiff’s horse were received. Mr. Richmond, the owner of the wheat field, in order to get the reaper across the tracks and into the grain, laid planks loosely in the place of the former planks, placing them as carefully as he could without spiking.

The driver of the team, a young man sixteen or seventeen years of age, well-accustomed to the horses, and knowing the difficulties of getting over the place with such a cumbrous machine, left the driver’s seat and took the horses by their heads and led them across. In this attempt he undoubtedly would have been successful except for the presence of the spike, which had been raised somewhat from the tie, upon which the toe cork of the horse had caught, and in bending forward his ankle pressed against the rail from which he could not be extricated until he had suffered an injury which disqualified him for further use.

The learned counsel for the appellant has made an ingenious argument to the effect, that the company was not chargeable with knowledge of the dangerous condition of the spike. But in answer to that argument it may be said, that if the company had maintained a proper planking for this crossing, the accident would not have happened The question is presented in the case by the request made to the court to charge, and its refusal, to which exceptions were taken.

Counsel asked the court to instruct the jury that the defendant was not to be charged with negligence unless the evidence showed that it knew or ought to have known of the displacement of the spike.

This was charged.

The court was then asked to charge, that there was no evidence ■on which the jury could find that the defendant knew or ought to have known that the spike was out of place.

This was refused, and exception taken.

The defendant’s counsel further asked the court to charge, that knowledge that the crossing was defective would not render the defendant responsible, unless it knew or ought to have known it was defective in the particular that caused the accident; also that there was no evidence on which the jury would be warranted in finding that the defendant was negligent in respect to the crossing.

This was also declined and exception taken.

Counsel also excepted to that portion of the charge of the court which instructed the jury, that it was the duty of the defendant to maintain this crossing.

These exceptions bring up the only questions in the case, and they may be very briefly disposed of under the facts as they appear.

In the absence of evidence justifying the discontinuance of this farm crossing, it is apparent that the maintenance thereof by the defendant for the period of forty-nine years is conclusive upon its contention, that it was not obliged by law to maintain it. The company itself had done no act to discontinue the crossing. It was torn up by the railway accident and the company failed thereafter to perform its duty which it had for nearly fifty years undertaken to perform in behalf of the owner of the four-acre piece of ground. In respect to the claim that this defect could not have been detected by inspection, it may well be answered that the jury was' justified in finding that the condition of the spike.was the result of the tearing away of the plank in the railway accident, and that the company being necessarily charged, under the evidence, with the general destruction of the crossing, it became the duty of its inspectors to ascertain whether there were any dangerous conditions left which .might result in accidents of the kind described in this case.

The argument of the learned counsel goes to the extent of claiming that this particular accident might have happened even though the company had maintained the farm crossing in its original safe condition. But we are not called upon to indulge in speculations of that character. It was the duty of the company to restore this crossing to a safe condition within a reasonable time after the accident Rot having done so, and the owner of the land having taken such reasonable means of making a crossing of necessity it was not imprudent for the plaintiff to take his reaper across the tracks, and he cannot be charged with the consequences of the dangerous condition of this spike in the absence of evidence that he knew of its existence. On the other hand, the defendant having knowledge of the breaking away of the planking, was charged with the duty of seeing to it that the spikes were not left in such a condition as might interfere with the prudent crossing of the same for necessary farming purposes.

Judgment and order appealed from should be affirmed, with costs.

Dwight, P. J., concurs.