text:
    Eliza Bird et al., Resp’ts, v. Samuel Pickford et al., Executors, etc., App’lts.

      (Court of Appeals,

      Filed January 16, 1894.)

    Will—suspension.
    The absolute power of ownership and of alienation may be suspended for three lives or for many lives provided such suspension is bounded by two designated lives in being at the death of the testator.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made August 5, 1893, which reversed a judgment in favor of plaintiffs entered upon a decision of the court on trial at special term.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      John R. Tressider, for appl’ts; Jehiel T. Hurd, for resp’ts.

         Reversing 54 St. Rep., 757.

   Earl, J.

This action was commenced for the construction of two clauses in the will of William Baltz, deceased. The clauses are as follows:

Thirdly. I give and devise all the rest of my estate, real and personal, to my executors hereinafter named, in trust nevertheless to invest and keep the same invested and divide the net income arising therefrom equally. among my said daughter-in-law, Ophelioe Baltz, and my said cousins Rachel and Addie Yan Gilder, the survivors or survivor of them during their natural lives.

“ Fourthly. If my said cousins, Rachel and Addie Van Gilder, should die before my said daughter-in-law, Ophelioe Baltz, then, and in that event, I give and devise the corpus of said trust estate to the said Ophelioe Baltz, her heirs and assigns forever; but if my said daughter-in-law Ophelioe Baltz, should die before my said cousins, Rachel and Addie Van Gilder, then, and in that event, I give and devise the corpus of said trust estate to such person or persons as my said daughter-in-law, Ophelioe Baltz, may designate in her last will and testament.”

The plaintiffs, who the heirs and next of kin of the testator, claim that these clauses violate the statute against perpetuities, and are, therefore, void. The special term held that they are valid and the general term that they are void. We agree with the special term.

The first of the two clauses vests the corpus of the trust estate in the trustees and creates a trust for the three beneficiaries named. Standing alone, that clause would suspend the absolute ownership of personal property, and the absolute power of alienation of real property for more than two lives in being, and would, therefore, be void. But it must be construed in connection with the succeeding clause, and there it is plainly provided that the trust shall not survive the lives of the two cousins. If they die before Mrs. Baltz then the trust is to cease and the corpus of the estate is to go to her absolutely. If she dies before them, then the corpus of the trust estate is' to go to such persons as she may designate in her will. In that event the trust terminates at her death, and it has not lasted for the full term of the lives of the two cousins. But suppose she dies intestate or without making any appointment of the estate by will, then one of two things will happen; either the corpus of the estate will pass absolutely,to the-heirs and next of kin of the testator, or it will pass to them subject to the trust for the lives of the two cousins. So it is clear that in no event can the estate be tied up longer than during the lives of the two cousins, and hence there is no illegal suspension of the ownership or the power of alienation. It is not sufficient to condemn these clauses that the absolute power of ownership and of alienation may be suspended for three lives or for many lives, provided that such suspension be bounded by two designated lives in being at the death of the testator. Crooke v. County of Kings, 97 N. Y., 421; Bailey v. Bailey, id., 460.

The judgment of the general term should, therefore, be reversed, and that of the special term affirmed, with costs of the appeals to the general term and to this court to be paid by the plaintiffs to the defendants.

Judgment reversed.

All concur, except Bartlett, J., not sitting.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of Jane A. McDougall et al., Administrators, etc.

      (Court of Appeals,

      Filed January 16, 1894.)

    1. Executors, etc.—life terart—Security.
    Where a widow takes hut an estate terminable at her death or re-marriage, and without power to expend any portion of the corpus for any purpose whatever, she- is not entitled to possession of the coi-pus without giving security, especially if she is insolvent or a non-resident.
    2. Same.
    The fact that the legacy is in lieu of dower, does not relieve her.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made October 4, 1892, which affirmed a decree of the surrogate’s court of Steuben county, upon a final settlement of the account of the administrators of John McDougall, executor of the will of Dan E. Spooner, deceased.
    Dan E. Spooner died in 1871, while a resident, of Steuben county, in this state. He left a will which was duly admitted to probate in Steuben county, in August, 1871. He nominated John McDougall as his executor, who duly qualified. He left a widow, a mother and a brother surviving him. He left a legacy of five hundred dollars to his mother, one thousand dollars to his brother, and “ Third, all the rest, residue and remainder of my estate, both real and personal, I give and bequeath and devise unto my well-beloved wife, Cornelia Spooner, to be used and enjoyed by her during the term of her natural life, or as long as she shall remain my widow, and at her death or marriage then the same to be equally divided between my said mother, Sarah A. Spooner, and my said brother, John C. Spooner, share and share alike, and to their heirs and assigns forever. The above to be received and accepted by said wife in lieu of dower.” The testator left personal estate only, and it amounted to a trifle over $8,000. The executor paid all debts and the other legacies, so that there was left as the “ rest and residue ” of the estate a sum of $6,000, and from 1871, down to the death of the executor, he had regularly paid the interest upon that sum to the widow, Mrs. Spooner. Mr. McDougall died - November 2, 1888, the interest on the $6,000 having been duly paid up to the preceding 1st of October. McDougall had never rendered any formal account of his proceedings as executor of Spooner’s estate. Jane A. Mc-Dougall and Shirley E. Brown were, in November, 1888, appointed administrators of the estate of John McDougall. They admit the possession, as such administrators, of the $6,000, the “ rest and residue ” of the Spooner estate.
    John C. Spooner, the brother of Dan E. Spooner, and named as one of the residuary legatees in his will, was appointed by the surrogate’s court of Steuben county, on or about December 1, 1890, the administrator with the will annexed of the estate of said Dan E. Spooner. The sole parties interested in the estate of Dan B. Spooner at the time of the” commencement of these proceedings, were Cornelia Spooner, the widow of Dan, and John C. Spooner, his brother, who is now sole surviving residuary legatee and administrator of his estate with the will annexed. As such administrator John C. Spooner commenced proceedings for a final accounting of the administrators of the estate of McDougall as executor of the Spooner estate. Then the administrators of that estate commenced like proceedings, and subsequently the widow, Mrs. Spooner, commenced similar proceedings, so that all the parties in interest in the matter were before the court. The different parties then in open court all appeared upon each of these proceedings, and the court proceeded, with the consent of all parties, to an immediate and simultaneous hearing of all the petitioners. It was not disputed that all the debts of the deceased, Dan B. Spooner, had been paid by McDougall, together with all the legacies, excepting the $6,000, which were in the hands of the administrators of McDougall ready to be distributed under the decree of the surrogate, and they waived all right to commissions on the moneys in their hands.
    Counsel on behalf of the widow demanded of the administrators of McDougall that they should pay to her the corpus of the estate of $6,000, and also the interest which had accrued thereon. This was objected to by John C. Spooner, as the administrator with the will annexed of the estate of Dan. B. Spooner, and also by him as the sole remainderman in the said legacy. The surrogate decided that he had the right and it was his duty to decree the payment of the $6,000 directly to the widow as the legatee under the above-cited third clause in the will of Dan B. Spooner, and that she was entitled to the custody and possession of the corpus of such estate without giving any security therefor.
    Mrs. Spooner, the widow, is a non-resident of the state and a resident of the city of Minneapolis in the state of Minnesota. The general term has affirmed this decree, and John C. Spooner, as the administrator with the will annexed, and also as remainderman, has appealed here.

      J. Bosecrans, for app’lt; J. F. Parlchurst, for resp’t.
   Peckham, J.

If otherwise proper, we may for this purpose assume that by the practical consolidation of all three proceedings before the surrogate, he had the power to decree the payment of this legacy by McDougall’s administrators directly to the party to whom it was unquestionably due, all debts and other demands (if any) entitled to priority of payment having been first paid by the deceased intestate executor. We are not disposed to hold that the surrogate must, under such circumstances, direct .the payment to the administrator with the will annexed, for the sole-purpose of thereby enabling him to include the amount of his accounts upon which to reckon his commissions.

This, however, is hot such a case.

In the first place, it seems to have been one of the facts conceded on the hearing that John 0. Spooner, the administrator with the will annexed, had been to some expense in relation to taking out letters of administration and for disbursements in regard thereto. Whether such expenses and disbursements should be charged against the estate does not seem to have been affirmatively disposed of by the surrogate, further than by ordering the whole balance of the estate paid to the widow. If the administrator has made any disbursements or incurred any obligations for which the estate is properly chargeable, he should have the opportunity of proving that fact and having a decree made for their payment out of the estate. Whether he has or not we do not say, for in the absence of further evidence we cannot determine that matter. The surrogate can decide the point when it is properly presented.

He has decided in this case that the widow is entitled, as matter of law, to the unconditional possession of the $6,000, “ rest and residue ” of this estate, without giving any security whatever.

The property which is to be intrusted to her is not of the description of chattels which must be individually possessed in order to be enjoyed. It is $6,000 in cash which the widow is thus to take possession of and carry with her to a distant state, and beyond the jurisdiction of our courts. The remainderman is thus left wholly without any other protection than the responsibility of the nonresident widow.

The right to make such decree is based by the surrogate upon the language of the will as contained in the above-cited third clause. Because the testator says that he leaves the “rest and residue ” of his estate to his wife, “ to be used and enjoyed ” by her during her life or widowhood, such expression, in the opinion of the courts below, necessarily requires that she shall have the possession of the legacy so as to use and enjoy it. On the contrary, we think the testator meant to give the widow nothing but an estate for her life or widowhood, terminable at the happening of either event, and that the remaindermen were entitled to receive at such time the whole corpus of the estate. There was certainly no occasion for the possession of the corpus by the widow if she were to have no right to use anything more than the income, and the possession of the corpus would give her no right under ■this will to use any portion of it. The expression “to be used and enjoyed by her ” gave her no enlarged interest in such legacy beyond what she would have received if such expression had been omitted. By the use of the language which follows the expression, the intention of the testator is made manifest and the widow thereby takes but an estate terminable at her death or remarriage, and without power to expend any portion of the corpus for any purpose whatever. In such a case the legatee for life is not entitled to possession of the corpus without giving security, certainly not if he be insolvent or a nonresident. In other cases where it has been held that the legatee was entitled unconditionally to the possession of the legacy without security, other facts existed, such as where the language of the will made it manifest that the testator intended to give to the legatee power to use in his discretion some portion of the corpus of his estate for his support, or a right to dispose of it during his life by gift or otherwise, or else it ap« peared that it was personal property of the nature of chattels which would require possession in order to enjoy the gift and such possession was clearly contemplated by the testator, or the whole scheme of the will or the terms of the particular legacy were such as to show that the testator intended to give a legacy of money for life only, and yet clearly intended the life legatee to have possession thereof and trusted to him not to waste, use or otherwise dispose of the corpus. The cases cited by the counsel for the respondent embody some such principle as is thus stated. Smith v. Van Ostrand, 64 N.Y., 278; Flanagan v. Flanagan, 8 Abb. N. C., 413; In re Settlement Wood's Estale, 35 Hun, 60; Thomas v. Waford, 1 N. Y. Supp., 610; Champion v. Williams, 36 St. Rep., 706; In re Grant, 16 N. Y. Supp., 716; 40 St. Rep., 944. This is not like any of those cases. No such simple and plain language as this will contains can properly be construed as enlarging the quality of the estate of the life tenant, and.no language can be found in it from which.it can be inferred that the intention of the testator was to intrust the'widow with this whole residue of the estate in cash, and waive the giving of any security by her. I have found no case where language similar to that employed in this will has been held to convey anything more than a life estate. That the legacy was in lieu of dower gives her no larger estate than she would have taken without those words. She had no right on that account to use or give away or otherwise dispose of any part of the corpus. The language is plain and unambiguous, and cannot be enlarged by any implication arising from the fact that it is given in lieu of dower.

Nor does such language authorize the delivery of the legacy to the legatee without exacting security. It is in lieu of dower, but the fact still remains that it is a life or during widowhood legacy of money, and the widow in a non-resident of the state. Possession of the-corpus was not at all necessary to the enjoyment of the legacy in the manner and to the extent intended by the testator, as such intent can be gathered from the language he employed in his will. If the property were chattels or something of that nature which, in order to be physically used or enjoyed, must be possessed, then the proper course would be to exact an inventory of such property, and an acknowledgment that it was held for life onfy, with the title in the remainderman subject to the precedent life estate. 1 Story Eq. Jur., § 604, note 1; Covenhoven v. Shuler, 2 Pai., 122, 132; Tyson v. Blake, 22 N. Y., 558; Livingston v. Murray, 68 id., 485.

The above cases also show that it is the right of the executor in a case like this, before paying over to a life legatee a life legacy in money, to exact security from such legatee for the forthcoming of the corpus of the legacy at the time of the termination of the life or other happening of the contingency provided for. Where the life tenant is insolvent or a non-resident of the state, it is still more certain that the remainderman has a right to demand that the life tenant shall give security before the corpus of the legacy is delivered to him. Clarke v. Terry, 34 Conn., 176; In re Petition of Camp, 126 N. Y., 377, 385; 37 St. Rep., 767.

The surrogate should have directed the payment of the moneys to the administrator with the will annexed, who should have the opportunity of proving his legitimate charges against the estate, and, after payment thereof, he should be decreed to invest the balance (after deducting costs as herein directed), and pay the interest thereon to the widow, or if she elect to take the corpus, then she should be permitted to do so upon giving security in the shape of a bond, with sureties to be approved, by the surrogate and running to the administrator with the will annexed, or his successor, conditioned for the payment of the whole corpus of the legacy to him upon the death or remarriage of the widow.

The costs at general term and in this court of the administrator with the will annexed to be first deducted from the corpus of the estate under the direction of the surrogate, together with the several allowances heretofore made by him. No costs should be allowed the life legatee in the general term or in this court.

The decree appealed from must, therefore, be reversed, and the the record remitted to the surrogate of Steuben county for further proceedings in conformity with this opinion.

All concur, except Bartlett, J., not sitting.

Decree reversed.

       Reversing 48 St. Rep., 933.


author: Earl, J.

text:
    Thomas Smith, App’lt, v. Thomas Isaac Smith et al., App’lts., et al., Resp’ts.

      (Court of Appeals,

      Filed January 16, 1894.)

    "Will—Residuary clause.
    A general, sweeping residuary clause carries everything not before effectually disposed of, unless the testator, by the language he uses, manifests a plain intention to curtail its operation.
    Appeal from judgment of the general term of the supreme ■court in the second judicial department, entered upon an order made September 11, 1898, which affirmed a judgment construing the will of Isaac Smith, deceased, entered upon a decision of the court on trial at special term.
    The nature of the action, and the facts, so far as material, are set forth in the opinion.

      Josiah 1. Marean, for app’lt; George M. Baker, for resp’ts.
   Earl, J.

This action is for the construction of the will of Isaac Smith, deceased, and the clauses to be construed are the following:

Twentieth. I give and bequeath to said Sarah A. Parish the use and income of the one equal half of all the real estate that I may die seized of, during her life, but not to exceed the full term of twenty years after my death, and it is my will that the said Sarah A. Parish shall cut no more wood off of said premises than will be necessary to keep the buildings and fence in good repair.

Twenty-first. I give and bequeath to Isaac Smith, the son of my nephew, Thomas Smith, the use and income of the remaining one equal half of my real estate during his life, but not to exceed the full term of twenty years after my death; it is my will that the said Isaac Smith shall not cut any more wood off of the premises than will be necessary to keep the buildings and fence in good repair. And in case the said Isaac Smith should chance to die before the expiration of twenty years after my death, I give the use and income of said last mentioned half part of my real estate to the eldest male issue of Thomas and Anna Smith then surviving, and if it so be that the said Isaac Smith does live for the full term of twenty years after my decease, then and in that event, I give, devise and bequeath the whole of my real estate to the said Isaac Smith, upon the condition that he pays to his surviving brothers and sisters and their issue in equal shares the sum of $3,000, the issue to take their parent’s share. In case the said Isaac Smith should die before the expiration of the said twenty years after my decease, I then and in that event give, devise and bequeath the said farm and real estate to the eldest male issue of Thomas and Anna Smith, upon the same conditions with reference to the charge of $3,000, and subject to the estate herein given to Sarah A. Parish.

“All the rest, residue and remainder of my estate I give and bequeath tomy executrix hereinafter named and her successor and successors in trust, to invest in such securities as are considered safe and proper for trustees, and out of the income thereof first to apply to the use of Sarah A. Parish and Isaac Smith, and the survivor of them, but not to exceed the term of twenty years after my decease, such sum as may suffice for the payment of all taxes and assessments which may be levied on my said farm and real estate from time to time during the period of the estate hereby given to the said Sarah A. Parish and Isaac Smith, and also the sum of $300 per annum for the purpose of purchasing manure to be used on said farm, and all necessary and proper sums of money to keep the buildings and improvements on said farm and real estate in good tenantable order and repair; and second to apply the residue of said income annually in equal shares to the use of the children of Thomas Smith and Daniel W. Smith, in equal shares annually, until the death of Sarah A. Parish and Isaac Smith, when this trust shall end and terminate unless sooner terminated by the twenty years’ limitation above declared. Upon the death of the said Sarah A. Parish and Isaac Smith, or sooner determination of the trust hereinbefore created, I give and bequeath my said residuary estate in equal shares to the children of my nephews, Thomas Smith and Daniel W. Smith, who may be then living, and to the issue of any of. such children who may then be deceased, such issue taking his or her parent’s share. ” ,

The testator died June 28,1878, Sarah A. Parish died Decemcember, 1880, and Isaac Smith died May 27,1890. At the latter date Thomas and Anna Smith had no issue living, and their eldest son, thereafter born, is the appellant Thomas Isaac Smith, who was born March 13, 1892. He claims all the real estate as devisee thereof on the ground that he is the eldest male issue of Thomas and Anna Smith. The appellant Thomas and Daniel W. Smith are nephews of the testator, and, as such, his only heirs at law and next of kin, and they claim that the devise of the real estate upon the death of Isaac Smith lapsed; that it did not pass to their children under the residuary clause; that the testator died intestate as to it, and that they take the whole of it as heirs and next of kin. The respondents are the residuary devisees, and they also claim that the devise of the real estate upon the death of Isaac lapsed, and that it passed to them under the residuary clause, and the court below has upheld their claim, and, we think, correctly.

Sarah A. Parish having died within twenty years after the death of the testator, the provision for her needs no attention now. Isaac Smith was to have the use of one-half of the real estate for his life, but not exceeding the term of twenty years. If he died within the term the use of the one-half of the real estate given to him was to goto “ the eldest male issue of Thomas and Anna Smith then surviving.” If he survived the term then he was to have the whole of the real estate, and if he died during the term then the whole of the real estate was to go “to the eldest male issue of Thomas and Anna Smith.” We think the testator had reference to the same person and the same time in the two clauses when he speaks of the eldest male issue surviving and the eldest male issue. He did not mean, upon the death of Isaac within the term, to give the income to one person to he ascertained at a definite time, and the corpus to another person to be ascertained at another future and uncertain time. He had in mind a definite time when the estate was to vest, and did not mean that at the death of Isaac the real estate was to vest as intestate property in his heirs or under the residuary clause in the residuary devisees, and then at some uncertain and perhaps distant time to be divested, and vest in male issue then born. If he had so intended he would probably have made some provision for the disposition of the real estate intermediate the death of Isaac and the birth of male issue of Thomas and Anna Smith. It is a very obvious and natural construction of all the language used to read it as if the words “ then surviving ” were repeated in the second clause after the words “ Thomas and Anna Smith.”

Therefore, as Thomas and Anna Smith had no male issue at the death of Isaac, there was no one to take the devise, and it lapsed. What became of it? Clearly it passed under the residuary clause. It is a general, sweeping residuary clause, and carries everything not before effectually disposed of. Cruikshank v. Home, etc., 113 N. Y., 337; 22 St. Rep., 738; Matter of Crossman, 113 N. Y., 503; 23 St. Rep., 259; Matter of Bonnet, 113 N. Y., 522; 23 St. Rep., 268. Such is the general rule, and we should not, by engrafting exceptions upon it, or by subtile refinements and distinctions, render the construction of wills difficult and uncertain, and the rule should have full effect unless the testator by the language he uses manifests a plain intention to curtail its operation. The expectations of a testator and his intentions may be two different things. He never expects that any of the dispositions of his will are void, and he rarely expects that any of the devises and bequests will lapse. But when he attempts to dispose of all the property he may own at his death he never intends to die intestate, and he intends that a general residuary clause shall cany whatever as matter of fact or of law is not otherwise disposed of.

Our conclusion, therefore, is that the judgment should be affirmed, without costs to any party in this court.

All concur, except Bartlett, J., not sitting.

Judgment affirmed.


text:
    The People ex rel. The Thurber-Whyland Company, App’lt, v. Edward P. Barker et al., as Commissioners of Taxes and Assessments for the City of New York, Resp’ts.

      (Court of Appeals,

      Filed January 16, 1894.)

    1. Taxes—Corporations.
    The object of chap. 37 of 1855 was to reach non-residents for the purpose of subjecting property within this state to taxation.
    2. Same.
    This act does not contemplate the deduction of debts from the sums invested in business in this state by non-residents or non-resident associations or corporations.
    3. Same.
    Foreign corporations are included within the terms of this act.
    4. Same.
    Tire court, in this case, distinguished between assessments of foreign and domestic corporations.
    Appeal from order of the general term, supreme court, which affirmed an order of the special term in certiorari proceedings brought to review the amount of the assessment for taxation against relator for the year 1892.

      Louis C. Waehner, for app’lt; William II Clark, counsel to the corporation (David J. Dean, Qeorge 8. Coleman and James M. Ward, of counsel), for resp’ts.

      Affirming 55 St. Rep., 207.

   Peckham, J.

The relator complains of the amount of its assessment for purposes of taxation because, as is alleged, its indebtedness was not deducted therefrom by defendants. It is a foreign corporation having, according to the affidavit made by its president, a principal office at No. 76 Montgomery street, Jersey City, New Jersey, in which state it was organized under the laws thereof. Its office in New York city is stated to be at No. 116 Reade street.

It also appeared by the affidavit that the company was organized with a nominal capital of $8,000,000, of which $2,500,000 had been issued, $100,000 for cash and the rest for property consisting of merchandise, trademarks, good will, etc. On January 11, 1892, it owned merchandise within the state, exclusive of imported goods in original packages, of $500,000 in amount. It also had accounts and bills receivable owing to it within the state of New York of about $200,000, cash in bank, about $20,000, and other personal property in the state of about $50,000, or a total of $750,000. It owed on the day above named, in New York city, open accounts of about $150,000, and bills payable $1,068,904.42, or a total indebtedness of $1, 218,904.42, It was further stated in the affidavit that the balance of the capital was employed outside the city of New York, principally in the form of accounts receivable, amounting to about $1,400,000. The tax commissioners assessed the personal property of the relator at the sum of $500,000, after hearing the relator and considering its demands, and they decided that sum to be just and the amount for which the personal estate of the relator was lawfully assessable for the year.

The relator claimed that the indebtedness above set out should be deducted from the sum of $750,000, which it stated was the utmost amount of its property that could, under any circumstances, be regarded as invested in any manner in business in this state, and that if such deduction were allowed, there was no sum remaining upon which to make any assessment. Objection was made by it to the addition of any part of the above named sum of $1,400,000 to the sum of $750,000, because, as is alleged, the former sum was employed outside the city of New York, and was principally in the form of accounts receivable. The claim was that, as to such accounts they had no situs in and of themselves and were mere choses in action, and took in law the situs of their owner, and that situs was its domicile in New Jersey. It was, therefore, urged that no part of such sum could be regarded as invested in any manner in the business of the relator in the city of New York.

Prior to 1855, great numbers of persons doing business in this state, and having large amounts of moneys invested within its borders, nevertheless chose to reside just outside its confines. Although these persons, were nonresidents of the state, yet they came daily within its boundaries for the purpose of doing business here, and had here large amounts of capital invested in their business, and yet under our laws they could not be reached for taxation. Their names could not be put upon an assesment roll because they did not reside in any town or ward where an assessment could be made, and they had no agents or trustees who resided in the state against whom, any assessment on account of such property could be made. To reach the non-resident for the purpose of subjecting such property to taxation was the object of the act, chapter 87 of the Laws of 1855 : People ex rel. Hoyt v. Commissioners of Taxes, 23 N. Y., 224.

Section 1 of the act reads as follows: “All persons and associations doing business in the state of New York as merchants, bankers or otherwise, either as principals or partners, whether special or otherwise, and not residents of this state, shall be assessed and taxed on all sums invested in any manner in said business, the same as if they were residents of this state, and said taxes shall be collected from the property of the firms, persons or associations to which they severally belong.”

We are of the opinion that this act does not contemplate the deduction of debts from the sums invested in this state by nonresidents. As the person is a non-resident, it is to be assumed that he will, at the place of his domicile, have all of what might be termed his equities adjusted, and that if entitled to it anywhere it will be at such domicile that he will claim and be allowed the right to have such deduction. In his case the statute of 1885 seizes upon the certain specific sum which he has here invested in the business carried on by him, and that sum is to be assessed and taxed the same as if the person were a resident of the state. In using the expression “ the same as if they were residents of this state,” we do not think it was intended that exceptions were to be allowed here the same as if the party were a resident, or that deductions from the sum thus invested should be made as if that were the case. It meant, as it seems to us, that the sum invested in any manner in business in this state should be assessed in the same manner and form as a resident would be assessed.

Foreign corporations are included within the terms of the act of 1855. Life Ins. Co. v. Commrs. of Taxes, 1 Keyes, 303, cited in People ex rel. Bay State, etc., v. McLean, 80 N. Y., 254 at 259. Hence it was said that a foreign corporation doing business in Hew York was properly taxable in the city of Hew York, where its principal place of business of office of the agency existed. And in this last cited case in 80th Hew York it is said that the act of 1855 points out the mode of taxation, viz., “the same as if they were residents of this state ; ” and in referring to the mode of taxing a resident corporation it is found that it is to be taxed in the town or ward where it has a principal office or place for the transaction of its financial concerns. The foreign corporation is not to be taxed in all things the same as if it were a resident, because the statute expressly provides that it is only to be taxed for the sum invested in business in this state, and in order to tax it upon that sum no indebtedness should be allowed. The percentage, the form, the mode of the assessment and taxation upon the specific sum invested in business in this state are to be the same as if the person were a resident, but inasmuch as all the subjects of assessment against a non-resident are not within the jurisdiction of the state, but only the sum here invested, it is plain that it was never contemplated by the legislature that such nonresident should have the right to make deductions from the sum by reason of debts, while the taxing authorities would have no right to balance such deductions by an assessment of other property of the nonresident not situated within the state. The resident has no right to deduct his indebtedness from any specific piece of personal property, or from any special chose in action. In a general way it may be said that he is to be charged with all his personal property, and from that total he may deduct his debts. This cannot be done in the case of a nonresident, although it may (as we may assume) be done at his domicile. All we are to do is to assess and tax the sum here invested, and the equities must, as we have said, be adjusted at the domicile of the person.

The assessment of a domestic corporation is made after a deduction for debts, because its capital and surplus are to be assessed at their actual value, which cannot be arrived at without considering and deducting debts. A foreign corporation is not to be thus taxed, and no inquiry is made as to the actual value of such capital or surplus, and as such value is not to be assessed or taxed, the debts should not be deducted from specific property here invested.

The relator having no right to deduct its debts from the sum it had invested in its business here, it is unnecessary to discuss the question whether the amount of the debts due it should be regarded as any part of the sum invested in its business in this state, because the sum assessed by the defendants is less than the amount which the affidavit of the president of the relator shows was invested in its business in this state at the time of such assessment, exclusive of those accounts.

The order of the general term should, therefore, be affirmed, with costs.

All concur.

Order affirmed.


author: FijSTOH, J.

text:
    Frank M. Gillett et al., Resp’ts, v. William I. Whiting, App’lt.

      (Court of Appeals,

      Filed January 16, 1894.)

    1. Brokers—Sale.
    Where a broker, who has purchased stock on a margin, sells it without previous notice to the custodian, and afterwards presents an account to him showing the sale and a resultant loss, and the latter, without objection as to the manner of sale, promises to pay the balance shown by the account to be due, he thereby waives the right to notice and ratifies the sale.
    2. Evidence—Brokers.
    An offer to prove by an expert what books are usually kept by stock brokers is inadmissible.
    3. Appeal—Charge.
    In an action by a stock broker to recover a balance alleged to be due from a customer where an unauthorized sale is claimed, a refusal to charge that, “to make defendant liable for a ratification of an unlawful sale, it must appear to the satifaction of the jury that he knew his legal rights,” is proper.
    4. Witness—Cross-examination.
    The limitation of a cross-examination is within the discretion of the court, and unless such discretion is unreasonably exercised, there is no error.
    Appeal from judgment of the general term of the superior court of the city of New York, entered upon an order made the first Monday of December, 1892, which affirmed a judgment in favor of plaintiffs entered upon a verdict and also affirmed an order-denying a motion for a new trial.
    This action" was brought by plaintiffs, who were stock brokers, to recover a loss incurred by them on a sale of 100 shares of Chicago and Northwest common, and 100 shares’of Ohio Southern stock, which they claimed to have purchased and carried for defendant on a margin.
    The complaint alleged, and it appeared, that on September 30, 1884, defendant deposited with plaintiffs as a margin $200, and and requested them to purchase for him 100 shares of Ohio Southern railroad stock; that on October 3, 1884, they purchased said stock at the market price, which, with their commissions, amounted to $1,100; that on October 7, 1884, defendant deposited $200 more with plaintiffs and requested them to purchase for him 100 shares of the Chicago and Northwest railroad stock; that on October 8, 1884, plaintiffs purchased the same at the market price, which, with their commissions, amounted to $9,350; that defendant gave no orders to plaintiffs as to how long he wished them to carry said stocks; that the Chicago and Northwest stock having fallen in price so that the $200 and $500 besides were lost, plaintiffs, on October nineteenth, sold it for $8,575. On or about December first plaintiffs rendered to defendant an account with interest adjusted as of November thirtieth, showing the sale and a balance then due of $1,505.08, with 100 shares of Ohio Southern stock on hand, worth about $950, and requested defendant to make good the deficiency by remitting to them $500 or $600 in cash; that defendant having failed to do so, on January 17, 1885, they sent him notice in writing that if he did not pay them $500 on account of said deficiency before January twenty-eighth they would close out the account by the sale of said stock.
    Defendant having failed to comply with their demand, plaintiffs sold the Ohio Southern stock, and a judgment was demanded for the balance due plaintiffs on the aceount.
    The further material facts are stated in the opinion.

      Joseph A. Slioudy, for appl’t; Ira D. Warren, for resp’t.

      Affirming, 50 St. Rep., 941.

   FijSTOH, J.

On a former appeal in this case it was held that the broker’s sales of the stock bought for the defendant were unauthorized for lack of notice of the time and place of sale, which amounted to a conversion, and that such unwarranted sales destroyed the foundation of plaintiff’s claim, and left him without remedy for the advances made. 120 N. Y., 402 ; 31 St. Rep., 495. It is now insisted that the second division of this court in so ruling disregarded earlier decisions to the contrary, disturbed a settled doctrine, and left it impossible to reconcile the cases. Gruman v. Smith, 81 N. Y., 25; Capron v. Thompson, 86 id. 419; Minor v. Beveridge, 67 Hun, 1, 50 St. Rep., 486. We shall certainly try to clear the doctrine of its difficulties, and end the supposed collision of authorities when the fit occasion comes; but to make the effort now would compel us to go entirely outside of the very different question involved in this appeal. For the second division further held, referring to some evidence appearing in the record, that if it should be proved that after the unauthorized sales had been made, and after due notice of them had been given to the defendant, and after an account had been presented embodying the result, the customer promised to pay the resultant loss as a balance due, it would be conclusive upon him, and justify a judgment for the plaintiff; and the case has been tried and decided on that theory. The court charged the jury that there could be no recovery unless they became satisfied that such promise had been made with full knowledge of the facts, and submitted that question, arising upon evidence quite contradictory, as the substantial issue to be determined. What remains for us to consider is simply whether there was any evidence to sustain the verdict, which was for the plaintiff, and whether any material errors occurred in reaching that result.

The promise of the defendant, if made, can operate as a waiver of the right to notice, or as a ratification of the method of sale adopted, and so does not require that the proof should reach to the extent of an account stated, a denial of which, as a proven fact, furnished the basis for the appellant’s principal argument. Without an actual agreement upon a precise balance, and a promise to pay that as such, the evidence may still show a promise on the part of the defendant which necessarily recognizes and ratifies the sales made, and the method* which the broker pursued.

The principal loss occurred from the sale of the Northwestern stock. The capital advanced for its purchase by the broker was over eight thousand dollars, and the loss on the sale about ten per cent., with only a margin of two hundred dollars to apply on the deficiency ; while the Ohio Southern cost only about eleven hundred dollars fully and sufficiently protected. The Northwestern stock was sold on or about October 18, 1884, and it is agreed on all sides that on the 2d day of the ensuing December the brokers made up an account to that date which showed the sale made, the prices given and received, the amount of the loss, and claimed a balance due from defendant of over $1,500, to be further reduced by the ■ outcome of the Ohio Southern stock still remaining on hand. With the account went a letter calling for five or six hundred dollars to apply upon the defiency, and as an approximate sum to cover the loss which could not be precisely ascertained until a sale of the Ohio Southern. This account and letter the defendant received, and with a full knowledge of the sale made and the price realized, the evidence tends to show that he promised to pay the sum demanded. Making no objection to the sale, raising no question of want of notice to him, in no manner criticising the broker’s action, the defendant accepted the result, and ratified the action which produced it, ' by promising to pay the deficiency. As it respects the Northwestern stock there is abundant evidence to sustain the conclusion of the jury that the defendant waived the objection of want of notice, and ratified the sale made.

The case is equally strong as to the later sale of the Ohio Southern. That was sold in January of 1855. The defendant admits in effect that he received a notice prior thereto that unless he made good the deficiency already existing by the 28th of January, the stock would be closed out. He thus had substantial notice of the time of sale and opportunity to protect himself if he pleased, and in view of his previous waiver and assent to the mode of sale adopted, a mere precise or particular notice was hardly requisite. And in addition, there is again proof that after all the sales were made and when he knew they were made he promised to pay the resultant loss. He denied that, but his cross-examination weakened his credibility and the conflict of testimony was settled by the verdict of the jury.

There were some exceptions taken on the trial, but rather technical than substantial. On the cross-examination of plaintiff the counsel for the defendant sought to follow through the books of account produced, not only the transaction in question, but other dealings with other people, for the avowed purpose of discrediting the alleged purchase of the brokers. That had been positively sworn to and the checks used had been produced and identified, nevertheless, the court allowed free range of inquiry except as to the names of the other customers, and that restriction is the subject of an exception. I think it was fairly within the discretion of the court and that such discretion was reasonably exercised.

The offer to prove by an expert what books are usually kept by stockholders was clearly inadmissible. What books the plaintiffs did keep was shown, and what had become of them. If there was basis for claiming that any were withheld, the counsel had his remedy and could submit his inferences to the jury.

Passing by some trivial objections based on the form of answers made, we come to the exception to the court’s refusal to charge that “ to make the defendant liable for a ratification of an unlawful sale, it must appear to the satisfaction of the jury that he knew his legal rights.” What rights were referred to, or how the plaintiff was to prove the extent of defendant’s legal knowledge, we are not told. Hor why the latter, instead of asserting ignorance, explicitly declared that he knew plaintiff had violated his contract by selling his, defendant’s, property. Ho ground existed for such a charge, even if in any conceivable case it could be justified. It cannot be necessary to argue seriously that there was no error in the court’s refusal.

The judgment should be affirmed, with costs.

All concur, except Bartlett, J., not sitting.

Judgment affirmed.


author: Finch, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of John E. Lee, Executor, etc. John E. Lee, App’lt. Joseph N. Dwight, by Charles Day, Guardian, etc., Resp't.

      (Court of Appeals,

      Filed January 16, 1894.)

      1. Will—Construction.
    Language, in a will, broad and general enough to include things not really contemplated or intended, creates an emergency in which_ the courts are permitted to say that the doubtful matter, though within the words, is not within the spirit and meaning of the phrase to be construed.

      2. Same.
    The bequest, in this case, was construed as not intended to cover a bond and mortgage made by the legatee and wife and assigned to the testatrix before her will was made.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made October 21, 1882, which affirmed a decree of the surrogate’s court of Allegany county, settling the accounts of John E. .Bee; as executor of the will of Carrie E. Dwight, deceased.
    The facts, so far as material, are set forth in the opinion. /

      William H Henderson, for app’lt; Clarence A. Farnum, V resp’t.

         Affirming 48 St. Rep., 352.

   Finch, J.

It is not at all uncommon, both in the con ,_ctibn of statutes and of wills, to find language broad and /' eral enough to include things not really contemplated or intended, and creating an emergency in which the courts are permitted to say that the doubtful matter, though within the words, is not within the spirit and meaning of the phrase to be construed. The courts below have applied that solution to a dispute in the case at bar over the scope and meaning of a bequest to the appellant which reads thus: “I will and bequeath to John E. Bee all debts, dues and demands of name, nature or kind soever I hold against him and his wife, my trunk and any keepsakes he may wish,” and have construed the language as not intended to cover a bond and mortgage made by Bee and his wife and assigned to the testatrix before her will was made. We are at liberty to consider the circumstances surrounding her when she made that will, and read it in the light which they throw upon it; not to determine what she ought to have done; but to ascertain what, within her purpose and intention, she really did. Stimson v. Vroman, 99 N. Y. 74. The testatrix was a widow, having one son, an infant about ten years of age, who was her sole heir at law and next of kin, and was in possession of an estate amounting, as inventoried, to a trifle over $7,000. Included in it were a debt due from Emma A. Bee upon a lease dated in 1885, for the sum of $170, and a claim against her for fifty-three dollars upon a chattel mortgage. There was also included a bond and mortgage on which was due at the time of the inventory $1,246, and the history of which is set forth in the record.

Edward J. Farnum conveyed to Emma A. Bee, in April of 1885, a parcel of land in Pennsylvania, taking a- bond and mortgage for the purchase money. The bond was signed by the mortgagor and. John E. Bee, her husband. In September of 1887, Farnum assigned the. bond and mortgage to Mrs. Dwight, the testatrix. In April, 1888, Mrs. Bee and her husband conveyed the mortgaged land to one S. E. Crittenden for the sum of $2,300, by a warranty deed, free and clear from all incumbrance. While the purchaser did not in form assume the outstanding mortgage, he in fact deducted and kept back the amount due upon it, and paid down only the excess. So much of his purchase money as would balance the sum unpaid on the mortgage, he never paid to his grantors at all except formally and for an obvious purpose. When Crittenden came to pay, he had his own protection in view, and did not mean to depend on a more personal covenant of very doubtful utility, and was careful to have his final payment at the same moment extinguish the mortgage, for he says that he talked with the executor about paying it, and that it was by the latter’s direction that he handed the money to Mrs. Lee, the executor at the same time giving a receipt in discharge of the mortgage. . Passing the money formally through the hands of the wife altered in no respect the actuahfaet, but was supposed to be a needed ceremony. So that while the papers in form gave Crittenden only the protection of the covenants in his deed, the transaction in fact was an assumption of the mortgage as part of the purchase price. To that extent his land was bound, and he stood practically debtor to Mrs. Dwight. That the situation was known to her must be inferred from the lapse of time during which it continued, from the relation of agency subsistitig between her and Lee, and from the fact that Crittenden paid her through Lee the interest on the mortgage, the latter receipting for it in her name. That receipt was dated April 12, 1889, which was about three months before the will was made. It does not appear what, if anything, Lee, as an individual, owed Mrs. Dwight at the latter date, but that is not very material in view of the facts which are inferentially disclosed. The chattel mortgage for fifty-three dollars was on certain “ saloon furniture,” and its existence indicates an impecunious condition of its proprietor. It is not shown who kept the saloon, and it may have been Mrs. Lee, either in form or in fact, though her husband wore the general character of agent, and if he did business at all, seems to have done it under cover of her name, a fact which indicates the possibility of unsatisfied creditors. He said at first that he did not sign the chattel mortgage, but later modified his confidence into a statement that he did not “think” he did, but was “ not positive,” and adds that at the time of Mrs. Dwight’s death, the saloon furniture was in “ our possession.” Some truth is inferable from the use of that pronoun “ our." What the “chattel lease” was, on which Mrs. Lee owed the $170, it is not easy to understand. Lee says: “ Lease was on some horses ; ’’ “were given to her husband four or five years ago;” and again, “ my wife had the horses in her possession She owned them, so far as I know, except for lease.” The nature of the transaction is not quite clear, but it evidently enabled the husband to use the horses as agent, while his wife occupied the legal position of owner. On these facts, we cannot fail to see that Mrs. Dwight, looking only at jvhat appeared, and unversed in the legal arrangements by which husbands become agents for wives who are owners, naturally regarded both debts as those of the husband and wife jointly, and may have been right in so doing, and did not puzzle over their separate relation to each, and so in her will, meaning to forgive the debts effectually, spoke of them as due from Lee and his wife.

But did she mean more than that? Did. she intend also to give them the bond and mortgage which she knew Crittenden was to pay without in fact requiring of them .the actual disbursement of a single dollar? Technically the bond was a debt of theirs, but substantially the land in the hands of Crittenden was the debtor, and was amply sufficient to yield the amount due. The two small debts might easily be forgiven, since their collection at all was scarcely to be expected, and the bequest seemed trifling in view of that probability; but the mortgage was perfectly secure and could be collected in full without causing to Lee and his wife the sacrifice of any sum. The gift of that would simply take from the infant son about one-fifth of the very little which the mother had to give him, and for the benefit of strangers. How strongly she felt for the child is evident from the tone of the will. She speaks of him as her dear and beloved son; she gives him the whole residue and remainder after what she supposed to be a few slight gifts to others; she provides for a guardian who shall invest his portion, and use the interest for his education and support; and yet we are asked to believe, as argued out from general words, that this same mother, from an estate which nets for distribution only $5,994, deliberately intended to take away from her child, poorly provided for at' the best, the sum of $1,262, to be given, not to mother or sisters, but to strangers. One shrinks from such an unnatural conclusion, and looks about him to see how words capable of such a construction came to be used. I think we can see how. In the mind of this widow, untrained in the rules of law, the mortgage was a specific article of personal property held in her manual possession as much as if it had been an organ or trunk, articles which she bequeathed by name. Very commonly among the people, and even sometimes among lawyers and judges, the incident has usurped the place of the principal, and the conception of a debt has been overlooked in the presence and tangible character of the security. It is the mortgage and not the bond that is deemed the property and thing of value, and so if this testatrix had intended a gift of the mortgage she would naturally have given it as such and specifically, and not left it to be inferred from general words giving debts and demands. And still less would that form of expression convey to her mind the idea of a gift of the mortgage when she regarded that as the debt of Crittenden, and of the land in his hands, and had ceased to think it as involving a debt of Lee and his wife at all.

Sometimes the maxim noscitur a sociis help us to an understanding of the real meaning intended, and with its aid it becomes quite apparent that in the clauses preceding the gift of the entire residue and remainder to her infant son, the testatrix meant to give only slight and trivial things which would be of little use to her child and which could be spared without injury to him and without any serious diminution of the whole estate to be given to him. She provides for a burial lot and headstone. She gives to Bifie Dwight “ my organ, family bible, one set of silver teaspoons, one bed and bedding; to Mrs. (¡roíf, two oil paintings and willow rocking chair; ” to her sister, Mrs. Hulbert, “ all my wearing apparel; ” and then follows the gift to Lee of debts supposed to be extremely doubtful at the best, “ my trunk and any keepsake he may wish.” A construction which interjects into this sequence of kindly gifts, which would scarcely deplete the full estate intended for the son, a bond and mortgage for over $1,200 is unexpected and a surprise. The sudden elevation from a chair and clothing to such a mortgage, and the instant drop from that height to a trunk and some trifling keepsake is extremely odd and strikes one as unnatural. I do not think it was meant or intended at all, and am quite prepared to assent to the conclusion of the surrogate and the general term that the bequest to Lee did not cover or carry the bond and mortgage.

The judgment should be affirmed, with costs against the appellant personally.

All concur, except Bartlett, J., not sitting.

Judgment affirmed.


author: O’Brien, J.

text:
    Jerome D. Holmes, App’lt, v. William E. Roper et al., as Administrators, etc., Resp’ts.

      (Court of Appeals,

      Filed January 16, 1894.)

      1. Gift—Void.
    An executory promise to pay money, without consideration, and intended to operate as a gift after the death of the promisor, cannot be enforced.

      2. Evidence—Admissions.
    A former owner of a chattel or a chose in action, who has transferred his interest to another by an absolute sale or assignment, cannot, by his subsequent admissions, affect the right of the purchaser.
    3. Appeal—Improper answer.
    Where a question calls only for proper testimony, but a portion of the answer is improper, an exception to the question is not sufficient on appeal. The opposite party should, upon the trial, insist upon his right to have such testimony excluded.
    Appeal from an order of the general term of the supreme court in the fourth judicial department, entered upon an order made February 7, 1893, which affirmed a judgment in favor of defendants entered upon an order of special term confirming the report of a referee, dismissing a claim presented by plaintiff to defendants, as the administrators of Job Holmes, deceased.
    The facts, so far as material, are set forth in the opinion.

      S. D. Halliday, for app’lt; Simeon Smith, for resp’ts.

      Affirming 51 St. Rep., 940.

   O’Brien, J.

The defendants are the personal representatives of Job Holmes, who died intestate on the 7th of July, 1887. The plaintiff is a nephew of the deceased, and son of Rufus Holmes, a brother of the intestate. Within the period for presentation of claims against the estates of deceased persons, the plaintiff presented to the defendants a claim based upon an instrument, of which the following is a copy:

11 $2,000. Candor, September 14, 1885.

“ For value received, I promise to pay Jerome Holmes two thousand dollars, thirty days after my death.

“Job Holmes.”

The claim was disputed by the defendants, and having been referred under the statute, the referee reported in favor of the plaintiff. The confirmation of the report was resisted upon a case and exceptions which contained an application for a new trial upon newly discovered evidence, but the report was confirmed. The general term, however, upon appeal, set aside the report, and granted a new trial. On a second trial the referee reported against the claim, and his decision has been sustained in the courts below. As there were no pleadings, the nature of the defense must be ascertained from the evidence, and that indicates that the claim was resisted upon three grounds: 1. That the instrument was a forgery. 2. That, if genuine, it was procured by duress and fraud. 3. That the note was in the nature of a gift, and wholly without consideration. The referee found upon the evidence that the instrument was signed and delivered without consideration, and for the purpose, on the part of the deceased, of providing for a gift, to the plaintiff of two thousand dollars out of his estate. It is well settled that an executory promise of this character, without consideration, and intended to operate as a gift after death, cannot be enforced. Harris v. Clark, 3 N. Y., 93. And there is no claim made upon this appeal that the legal conclusions of the referee were erroneous. Hor is it urged that this court can review the findings of fact upon which the conclusion was based, but, on .the contrary, fit is frankly admitted that the evidence was of such a character as to render the finding conclusive upon the plaintiff here. The learned counsel for the plaintiff has directed the whole force of his argument against certain rulings of the referee in the course of the trial, to which exceptions were taken. The principal question arises upon the admission of certain declarations of Eufus Holmes, made after the note, of which the one in suit was a renewal, was given. The plaintiff attempted to establish the validity of his claim upon the theory that the deceased was indebted to Eufus in the sum of $2,000 in the fall of 1884, and that this debt was paid by giving the note to the plaintiff with the consent of Eufus, his father, and that on September 14, 1885, that note was taken up and the one in question given in its place. These facts, if proven, would establish a valid consideration for the note, as the transaction would amount to a gift of the debt by Eufus to his son, the plaintiff, and the delivery of the note in payment of the same by the deceased. The existence of the alleged debt, or any debt whatever, from the deceased to his brother Eufus became, therefore, a material and important issue at the trial. The learned counsel for the plaintiff is doubtless correct in his contention that the legal relation and situation of the parties in the same as if the deceased had given the note directly to his brother Eufus and the latter had immediately transferred it to his son, the plaintiff, and that under such circumstances the admissions or declarations of Eufus after the transfer of the note and all of his interest in the debt, are not admissible against the plaintiff in a proceeding for the collection of the claim. The general rule is that a former owner of a chattel or a chose in action who has transferred his interest to another by an absolute sale or assignment, cannot, by his subsequent admissions, affect the right of the purchaser. In some cases such admissions may be admissible, but only where there is an identity of interests between the assignor and assignee, which is deemed to exist where the transfer is merely colorable or nominal, and where a party claims through another by representation, and the declaration is not excluded by some other rule of evidence. Van Gelder v. Van Gelder, 81 N. Y., 625; Hutchins v. Hutchins, 98 id., 64; Gardner v. Barden, 34 id., 435; Christie v. Bishop, 1 Barb. Ch., 115; Fitch v. Chapman, 10 Conn., 8; Smith v. Webb, 1 Barb., 234; Brisbane v. Pratt, 4 Denio, 64; Page v. Cagwin, 7 Hill, 368; 1 Greenleaf on Ev., § 190.

We think, however, that the question is not fairly presented by the record. It appears that Dr. Roper, the son-in-law and one of the administrators of the deceased, was examined and cross-examined at length as a witness, his testimony covering some twentyfivepages of the record. During his narrative there was interjected here and there into it various documents, writing and books of account, some of them representing transactions between the two brothers. The words of the witness and the extraneous matter taken from books and papers are so intermingled that it is sometimes difficult to distinguish between them. All of this was supposed to bear in some way either upon the genuineness of the signature to the nóte or upon the fact of indebtedness, one way or the other, between the two brothers and a settlement of the same. The witness, in the course of his examination, stated, without objection, that he heard a conversation between the two brothers in the month of December, 1884, or the early part of the month of January, 1885, with reference to the sale of property which they owned jointly. It seems that the witness and Eufus were then present at the house of the deceased, and it must be remembered that the parties were engaged in a trial without pleadings of three distinct issues: First, whether the signature to the instrument was genuine; secondly, whether, if genuine, it was not procured by fraud; and, finally, whether there was any consideration to sustain it under any circumstances.' Any fact or circumstance that had any bearing upon either or any of these issues was competent. The plaintiff’s counsel objected to the conversation as hearsay, improper, irrelevant and immaterial. The defendants’ counsel stated that it was offered on the question of consideration. The referee overruled the objection and the defendants excepted. The witness then proceeded to state that he heard them talk about selling land owned by them in common, and which it appeared from deeds produced had been subsequently conveyed. The witness then stated that he asked Eufus what his object was in selling the land, and Eufus replied, giving as one of the reasons that he was owing Job, his brother, $3,000, and the only way to pay it was by sale of the land. This latter statement is what the alleged error is predicated upon. How, it will be seen that it is not clear whether this conversation was had before or after the original note was given. It w7as certainly before the execution of the note in suit, and the question was, whether that was founded upon any consideration, as the existence of the former note was denied by the defendants, and from their standpoint they had the right to show what transpired between the brothers prior to the date of the note in question. But the question or the offer did not call for the admissions or declarations of Rufus simply, but for a conversation or transaction between the two brothers which might show a settlement or bear in someway upon the genuineness, consideration or validity of the instrument, as a promise to pay a certain sum of money after death. It might as the res gesta tend to prove a settlement between the brothers, and, instead of an indebtedness by the deceased to Rufus, just the reverse. If the witness in relating the conversation or transaction interjected into it statements or admissions of Rufus to him alone, and not in the presence of his brother, they are not covered by the exception. The plaintiff’s counsel should have brought out the facts so as to present the precise point to the mind of the referee. When the question put to a witness in itself calls for nothing but testimony which is proper, but in the course of the answer improper matter is added or intermingled with it, the remedy of the opposite party is by motion to strike out whatever appears to be improper or irresponsive to the inquiry. Bronner v. Frauenthal, 37 N. Y., 166 ; Bardin v. Stevenson, 75 id., 164; Denise v. Denise, 110 id., 562 ; 18 St. Rep., 873. When in such a case the party against whom the testimony was given, omits at the trial to insist upon his right -to have what is incompetent separated from what is competent, and the former excluded, he cannot, upon appeal, select such parts of the testimony as may appear to be improper, but were not necessarily called for by the question, and ask the court to reverse on such grounds. It is at least doubtful upon the record whether the objectionable statements by Rufus were made to the witness alone or were part of the transaction with his brother, or at least made in his presence, but in any event the objection did not present the point to the referee. This disposes of the main exception discussed by plaintiff’s counsel.- There is another exception to the admission of certain statements of Rufus in 1883, before any note was claimed to have been given, but they were all drawn out by questions calling for actual business transactions and the conversations therein of the two brothers, and tended to show the nature of the business and the state of the accounts and, while the witness sometimes departed from the strict line of inquiry called for and made statements that were not strictly responsive, yet these were not for the reasons already stated covered by the objection and are not available. The other questions in the case require no further discussion. They were properly disposed of in the court below.

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

All concur, except Bartlett, J., not sitting.

Judgment affirmed.


author: McCarthy, J.

text:
    Otis L. Remington, Resp’t, v. Edward H. Van Ingen et al., App’lts.

      (New York City Court, General Term,

      Filed December 8, 1894.)

    Fraud—Essentials.
    The representations must he known to the party making them to he false and made with intent to deceive; mere expressions of opinion are not enough.
    Appeal from a judgment in favor of plaintiff.

      Horwitz & Iiersllfield, for resp’t; Logan, Ciarle & Demond, for app’lts.
   McCarthy, J.

The evidence clearly shows that there was a contract entered into between these parties. The defendant is bound by his obligations, and can only avoid it by discharging the plaintiff for good cause shown, or by declaring the contract invalid by reason of false and fraudulent representations made at the time of the making of such contract, and which was the inducement in the making of the same. Fraud vitiates all contracts, no matter how solemn. The false representations must be made with intent to deceive and known to the person making them. Mere expressions of opinions are not enough. The plaintiff when he answered the questions of one of the defendants had no information to the contrary, and believed them to be true. No complaint had been made up to that time, and it seems the objections afterward made by Mr. Wasson were suggested by the fact of plaintiff being about to enter the employ of a rival. There was no evidence presented showing a false and fraudulent representation known to the plaintiff or made with the intent to deceive ; and this being the only cause claimed by the defendant for not carrying out his contract, the trial justice was correct in directing a verdict for the plaintiff, the amount of damages being assented to.

We find no errors.

Judgment should, therefore, be affirmed, with costs.

Van Wyck and Newburger, JJ., concur.


author: Ehrlich, C. J.

text:
    Henry Schwabeland et al., Resp’ts, v. Edmund P. Holahan, Marshall, etc., App’lt.

      (New York City Court, General Term,

      Filed December 8, 1893.)

    Trial—Request to submit.
    When there is no request to submit a question to the jury, no error is committed in omitting to do so.
    Appeal from judgment entered on verdict in favor of plaintiff.

      Charles S. Bloomfield, for app’lt; Forster, Hotaling & Klenlee, for resp’t.
   Ehrlich, C. J.

The action is in replevin to recover the possession of certain goods and chattels. The defendant, who is a city marshal, justified under an execution, issued to him against one William McGaw. The adjudication in the superior court, in the action wherein McGaw was plaintiff and the plaintiff’s herein were defendants, determined, that as betetween the parties to that record, the sale on which the plaintiffs base their title was a valid one. Whether the sale was valid as against the judgment creditors of McGaw was the real question to be'determined here. There was no request to submit that question to the jury, and consequently, no error committed in omitting to do so. The levy by the marshal is alleged in his. answer and was proved at the trial. The plaintiffs certainly made out a case sufficient to require its submission to, the jury, and their verdict is satisfactorily sustained by the proofs.

We find no force in the errors assigned by the appellant, and the judgment must be affirmed, with costs.

Rewburger, J., concurs.


author: Ehrlich, O. J.

text:
    Eliphalet L. Davis, Resp’t, v. Ella V. A. Dayton et al., App’lts.

      (New York City Court, General Term,

      Filed December 6, 1893.)

    Bills and notes.
    A bank check in the hands of a bona fide holder, who has paid full value therefor, is free from any and all equities between the original parties.
    Appeal from judgment entered on a verdict directed in favor of plaintiff.

      A. W. P. Seaman, for app’lts; Foley & Powell, for resp’t.
   Ehrlich, O. J.

The action is on a bank check made by one defendant and indorsed by the other. It was dated February 13, 1893, and was two days afterwards delivered to the plaintiff by one Ward. The plaintiff paid full value therefor, and became a bona fide holder thereof, free of any and all equities, between the original parties. In the hands of the plaintiff, there was no defense, so that the evidence ruled out, would have been of no use to the defendants, if it had been admitted.

Ro'error was committed at the trial, and the judgment must be affirmed, with costs.

Rewburger and McCarthy, JJ., concur.


text:
    Sigemund Wachmann et al., Resp’ts, v. Columbia Bank of the City of New York, App’lt.

      (New York City Court, General Term,

      Filed December 8, 1893.)

      í Bills and notes—Forgeby.
    A depositor has a right to assume that the bank, before paying his checks, will ascertain the genuineness of the indorsements.

      2. Principal and agent—Notice.
    The rule that notice to an agent is notice to his principal, is only applicable to cases where the agent is acting in the course of his employment.
    3. Account stated—Impeachment.
    An account stated may he impeached by evidence .of fraud or mistake,
    4. Appeal—Charge.
    It is the duty of the appellant, if he desires a question to be submitted to the jury, to request it in clear and specific language.
    Appeal from a judgment in favor of the plaintiffs.

      David Leventritt, for resp’ts ; Adolph L. Sanger, for app’lt.
   McCarthy, J.

Two questions arise on this appeal from the facts in this case, one of estoppel and the other of negligence.

It seems to us from an examination of the authorities and their application to the facts, this case must be held adversely to the appellant. Weisser v. Denison, 10 N. Y., page 68, which has been approved in all the cases, seems to us to meet all the objections presented by the appellant.

Allen, J., in this case, at page 70, says:

“ The jury, by their verdict, pronounced the checks upon which the money in dispute was paid to be forgeries, and it was not claimed that the intestate, Weisser, after he had personal knowledge of the facts, did any act by which he made them his own.

“ After the forgeries were discovered by him, he did not in any manner recognize Harlin, the forger, as his agent for drawing the checks.

“ The original payment of the checks by the bank was in their own wrong, and if paid to an innocent holder the money could not bo recovered back. Price v. Noel, 3 Burr, 1354; Goddard v. Merchant Bank, 4 Comst., 147; Bank of Commerce v. Union Bank, 3 id., 230.

“ The defense in the action is based upon the alleged negligence of Weisser in omitting to examine his bank-book after it had been settled and balanced by the bank and returned with the can-celled vouchers, and to compare them with his book, by which the forgeries might have been earlier detected.”

A depositor owes no duty to a bank requiring him to examine his pass-book or returned checks with a view to the detection of forgeries; he has a right to assume that the bank, before paying his checks, will ascertain the genuineness of the indorsements. The rule that notice to an agent is notice to his principal is only applicable to cases where the agent is acting in the course of his employment. An account stated may be impeached by evidence of fraud or mistake. See Welsh v. German American Bank, 73 N. Y., 424, 426-429, and this is fully sustained in Shipman v. The Bank of the State of New York, 126 N. Y., 318-329; 37 St. Rep., 376. There is no evidence that the bookkeeper employed was not a competent person or that the plaintiff did not act in good faith.

The case of the Leather Manufacturers' Bank v. Morgan, 117 U. S., pp. 96 to 122, is not in point and does not disapprove of Weisser v. Denison, for Justice Harlan, after commenting on the authorities says: “We must not be understood as holding that the examination by the depositor of his account must be so close and thorough as to exclude the possibility of any error whatever being overlooked by him.

“ Nor do we mean to hold that the depositor is wanting in proper care when he imposes upon some competent person the duty of making that examination and giving timely notice to the bank of objections to the account.

“If the examination is made by such an agent or clerk in good faith and with ordinary diligence, and due notice given of any error in the account, the depositor discharged his duty to the bank.

“ But when, as in this case, the agent commits the forgeries which misled the bank and injured the depositor, and, therefore, has an interest in concealing the facts, the principal occupies no better position than he would have done had no one been designated by him to make the required examination, and without at least showing that he exercised reasonable diligence in supervising the conduct of the agent while the latter was discharging the trust committed to his care.

“ In the absence of such supervision, the mere designation of an agent to discharge a duty resting primarily upon the principal, cannot be deemed the equivalent of performance of the letter.

“ While no rule can be laid down that will cover every transaction between a bank and its depositor, it is sufficient to say that' the latter’s duty is discharged when he exercises such diligence as is required by the circumstances of the particular case, including the relations of the parties, and the established or known usages of banking business.”

The appeal can only be determined upon the evidence and case presented. The trial justice, it seems to us, was correct in his refusal to charge as requested by the appellant’s counsel.

The first request was clearly erroneous and the second was asking the court to determine a question of fact, which it had no right to do. This request was decidedly too sweeping. If the appellant desired the question of negligence to be presented, it was his duty to request the same in clear and specific charges, but this he did not do, and must, therefore, suffer the consequences. But we think following the authorities cited, there was no real evidence of any negligence on the part of the plaintiff. Moody v. Osgood, 54 N. Y., 488.

Judgment should be affirmed, with costs.

Newbubgeb, J., concurs.


author: Newburger, J.

text:
    Reuben Mapelsden, Resp’t, v. Thomas J. Shea et al., App’lts.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    Appeal—Dismissal.
    In an action against two defendants, where there is no evidence offered which shows any liability on the part of one defendant, a refusal to dismiss the complaint as to him, on motion, is error.
    Appeal from a judgment in favor of the plaintiff.

      Reuben Mapelsden, in person, pl’ff and resp’t; William King Hall, for def’ts and app’lts.
   Newburger, J.

In May, 1889, the defendants applied to the Harlem Savings Bank for a loan of $5,000 upon certain property at the time owned by the defendant Annie A. Shea, which was to be a first mortgage upon the premises; at the time there was a bond and mortgage held thereon by one Bertine of $1,100 made by defendant Thomas J. Shea. The plaintiff was the attorney and counsel for the bank. At the time of closing the title, the attorney for the mortgagee (Bertine) demanded an additional ninety dollars for interest claimed to be due. The plaintiff thereupon advanced and paid said amount to Bertine’s attorney. He brings this action to recover such advances, claiming the same were paid for the use of the defendants. The answer after alleging that the property encumbered belongs to .the defendant Annie A. Shea, is a general denial. On the trial, after the plaintiff’s case had been closed, a motion was made by defendant to dismiss the complaint against the defendant Thomas J. Shea, which motion was denied, and exception taken.

The trial justice erred. There was no evidence offered that showed any liability on the part of this defendant. The property belonged to the defendant Annie Shea, and whatever benefits accrued from the advances made by plaintiff accrued to her and her property.

Thomas J. Shea had no interest in the property as principal or otherwise, and the mere fact that he executed the bond which accompanied the Bertine mortgage created no liability on his part for any advances made by plaintiff. There is no evidence in the case which shows that he authorized or empowered the plaintiff to pay the additional interest. The motion to dismiss as to defendant Thomas J. Shea should have therefore been granted. As to the defendant Annie Shea, the evidence clearly shows that the moneys sought to be recovered in this action' were advanced for the benefit of real estate belonging to her. The record shows no error in the trial of the case as against her. The judgment as to the defendant Thomas J. Shea is reversed and a new trial ordered, with costs to abide the event; as to defendant Annie Shea, judgment affirmed, with costs.

Van Wyck, J., concurs.


text:
    Union Stove Works, Resp’t, v. William H. Arnoux, App’lt.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    1. Contract—Statute of frauds.
    Where, by the terms of the contract, the plaintiff is to obtain the approval of a third person, as to the materials furnished to, and labor performed for, defendant, it is an original contract of defendant.
    2. Same—Approval.
    A failure by the plaintiff to procure such approval will not defeat an action on such contract, where the defendant refused to furnish the address of the approving party or assist in obtaining such approval, in the absence of the disapproval.
    3. Same.
    In case such party unreasonably and in bad faith refuses his approval, the plaintiff may establish, by other evidence, his right to recover.

      Phillips & Avery, for pl’ff-resp’t; David F. Batcheller, for def’t-app’lt.
   Newburger, J.

This is an appeal from a judgment in favor of the plaintiff and against the defendant, entered upon the verdict of a jury and from an order denying defendant’s motion for a new trial.

This action was brought to recover the purchase price of stoves with attachments thereto, and labor performed in setting same in certain buildings in the city of New York. The plaintiff claims that the goods were delivered and the work rendered upon the credit of defendant who agreed to pay for the same provided it met with the approval of one Campbell. No question was raised on the trial as to the number of ranges or their value, or that the work performed by plaintiff was not performed in a good and workmanlike manner. On the trial, after plaintiff had rested, defendant moved to dismiss the complaint upon the ground that the allegations of the said complaint are that Joseph Campbell approved of said contract, approved of all materials and labor furnished and performed hy the plaintiff, and that on the contract plaintiff was to obtain the approval of Joseph Campbell, and for entire failure of proof to sustain these allegations, and on the further ground that the approval of Joseph Campbell to said work never having been obtained, and plaintiff’s proofs showing an absolute failure to obtain any such approval. The motion was denied and exception taken.

The defendant was not a guarantor as is claimed in the elaborate brief submitted. The adding of the words “ Joseph. Campbell must appi’ove ” did not change the relation of the parties.

Plaintiff’s witnesses testified that the credit was given to the defendant only. It was an original contract for labor and materials, made with the defendant and upon bis contract. But says the defendant the plaintiff has failed to show “ approval by Campbell.” Plaintiff did all that could be expected or was required by him. Two of plaintiff’s employes testified that they called on defendant and requested the address of Campbell for the purpose of procuring his approval. Defendant failed however to furnish such address or assist plaintiff either in getting such approval or a disapproval, nor is there any evidence in the case that Campbell at any time disapproved of the goods sold, or work furnished by plaintiff.

Campbell was the defendant’s agent, and if he unreasonably and in bad faith refused his approval the plaintiff is not to be held responsible, but he may establish by other evidence, his right to recover. The trial justice therefore properly denied the motion to dismiss. The case was properly submitted to the jury, and there are no exceptions that would warrant us in disturbing the verdict.

Judgment affirmed, with costs.

Van Wycic and McCarthy, JJ., concur.


text:
    Henry J. Newton, App’lt, v. Henry H. Browne, Resp’t.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    Pleading—Demurrer.
    The complaint, in an action to recover an indebtness, is demurrable if it fails to aver the non-payment of the alleged debt.

      Appeal from an interlocutory judgment overruling a demurrer.

      B. W. Brenen, for app’lt; 27. Huffman Browne, for resp’t.
   McCarthy, J.

The complaint in this action was demurrable. It fails to allege the non-payment of the alleged debt of $100. This is an essential allegation. “ See Lent v. N. Y. & H. R. Co., 130 N. Y., 510, 511, 512 and 513; 42 St. Rep., 592.

The judgment and order overruling demurrer should be reversed, and demurrer sustained, with costs, with leave to the plaintiff to serve an amended complaint on payment of twenty dollars costs and the costs of this appeal.

Yah Wyck, J., concurs.


author: Mewburger, J.

text:
    James R. Smith, Resp’t, v. Stuart Robson, App’lt.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    Contract—Services.
    A clause in a contract which provides that the employer may discharge the employe if he is inattentive to business, careless in the performance of his duties, and guilty of a violation of the rules, does authorize an arbitrary discharge.
    Appeal from a judgment in favor of plaintiff.

      Howe & Hummel, for pl’ff and resp’t; W. W. Culver, for def’t and app’lt.
   Mewburger, J.

This action was brought to recover damages for the wrongful discharge of plaintiff from the defendant’s employment under a contract in writing entered into between the parties. The answer admitted the making of the contract, denied a wrongful discharge, and alleged that by reason of a clause in the contract the defendant was authorized to and did discharge, because the plaintiff was inattentive to business, careless in the performance of the duties by him undertaken, and guilty of a violation of the rules. The trial justice, at the close of the plaintiff’s case, properly denied defendant’s motion to dismiss the plaintiff’s complaint. The only question in this case is whether the defendant had a right to discharge plaintiff. The contract between the parties did not give the defendant, at his mere pleasure, the right to discharge the plaintiff. It appears that plaintiff had been an experienced actor of years standing, and was engaged only after defendant’s agent had witnessed his performance. The case was properly submitted to the jury, who found that the plaintiff had performed his duties fairly. It has.been repeatedly held by this and other courts in this state that contracts similar to the one at bar did not give a party the right to discharge an employe summarily. See Brandt v. Goodwin, 3 N. Y. Supp., 807; 24 St. Rep., 305; 15 Daly, 456; Grinnell v. Kiralfy, 55 Hun, 422 ; 29 St. Rep., 362.

The judgment appealed from must, therefore, be affirmed with costs.

Yah Wyck and McCarthy, JJ., concur.


text:
    Henry C. L. Peetsch, App’lt, v. William H. Quinn, Resp’t.

      (New York City Court, General Term,

      Filed Novemmber 27, 1893.)

    1. Abatement and revivor—Entry of decision.
    In the absence of positive proof as to the exact time of the defendant’s death on the day when the decision was handed down and filed, the presumption is that it was filed during the lifetime of the defendant.
    2. Same.
    In such a case it is not necessary to revive the action in order to enter the order of affirmance.
    3. Same.
    The court may direct that the order be entered nunc pro tunc.

    4. Same.
    An attorney, who has a lien on the costs, is entitled to enter a judgment and issue an execution for the collection of the same.

      Johnson & Johnson, for app’lt; Michael H. Curran, for resp’t.
   McCarthy, J.

This is an appeal from an order denying a motion to vacate a judgment entered in this action on June 22, 1893, and also directing that the order of affirmance entered November 20,1801, and the judgment entered June 22, 1893, be entered nunc pro tunc as of the date of the decision of the general term of this court, to wit, November 16,1891. The affidavits on this motion as to the time of the death of the defendant are conflicting, and in the absence of positive proof as to the exact time of his death on the day when the decision of the general term of this court was liandéd down and filed, we must hold and the presumption is that it was filed during the lifetime of the defendant. It was, therefore, not necessary to revive the action in the personal representatives of the defendant in order to enter the order of affirmance not the judgment of affirmance. See § 763, Code of Civil Procedure. The appellant’s counsel concedes this to be correct, if the decision occurred before the defendant’s death. All his authorities refer to cases where the party died before the decision was made. The fact of the time of defendant’s death was found against him by the justice who heard the motion, for such me must assume he did in arriving at his decision. Under the prayer, “ for such other and further order or relief, or both, as to court or justice may seem proper,” the justice had a right and power in the interest of justice and the exercise of his sound discretion to direct that the order and judgment spoken of should be entered nunc pro tunc. See Bergen v. Wyckoff, 1 Civil Proc. Rep., pp. 1-9, also in 84 N. Y., pp. 659, 660; Long v. Stafford, 103 N. Y., 274, 281, 282; 3 St. Rep., 87.

The only other question to consider is, did the attorney have the power to enter this order of affirmance and judgment. I think from an examination of the papers he had. It appears uncontradicted that Curran was the attorney for the defendant from the commencement of the action; both at the trial through which under the rules and practice, a judgment for costs in favor of the defendant amounting to the sum of $19.12 was. entered. That the plaintiff appealed to the general term of this court which affirmed the judgment, and Curran, the attorney, thereupon taxed his costs and entered judgment for the same, amounting to $89.45. That he, Curran, paid all the disbursements in the case on appeal and also the disbursements included in the original judgment. He then had an attorney’s lien on these costs and most be deemed an equitable assignee of the same, and was entitled to enter the judgment and was entitled to issue an execution for the collection of the same. See Lachenmeyer v. Lachenmeyer, 65 How. Prac. Rep., 422. This case had not been overruled. The cases cited by the appellant are not in point, and are all determination of various points which do not arise in this case. In none of them is the point raised here presented. Neither can I perceive any analogy to the case at bar. For these reasons the order should be affirmed with costs.

Yan Wyck, J., concurs.


text:
    Henry C. L. Peetsch, App’lt, v. William H. Quinn, Resp’t.

      (New York City Court, General Term,

      Filed November 27, 1893.)

      Johnson & Johnson, for app’lt; Michael H. Curran, for resp’t.
   McCarthy, J.

This is an appeal from an order granting leave to the defendant’s attorney to issue execution on the judgment entered on March, 20, 1891, and the judgment entered the 22d day of June, 1898.

The question raised on this appeal having been presented and considered in actions Nos. 1 and 3, the order is affirmed on the opinion of action No. 3, with costs.

Yan Wyck, J., concurs.