text:
    Charles C. Murphy, Resp’t, v. Henry J. Braker, as Receiver, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Corporation—Overissue op stock.
    In case the officers of a corporation, authorized to issue share certificates, fraudulently issue certificates for shares in excess of the number of shares the corporation is authorized to issue, the corporation is liable in damages for such overissue to an innocent holder for value of such overissueshares.

      2. Same—Surrender op genuine certificates.
    Such claim is not affected by the fact th^t the receiver of such corporation, without the knowledge or consent of the claimant, caused to be canceled genuine certificates of stock in such amount that, had they been surrendered before the stock was issued to claimant, his stock would not have been an overissue.
    Appeal from an interlocutory judgment in favor of claimant.

      Frank H. Platt, for app’lt; Carlton B. Pierce, for resp’t.
   Follett, J.

January 21, 1890, the Cassell Publishing Company-was incorporated under chapter 40, Laws 1848, and the laws supplementary thereto and amendatory thereof, with an authorized capital stock of $350,000, divided into 3,500 shares of the par value of $100 each, for the purpose of printing, publishing, and selling books. Oscar M. Dunham has been the president and a director of the corporation ever since its organization. The claimant asserts, and the referee found, that in March, 1893, the corporation, through his president, contracted to sell to him one hundred shares of its stock for $10,500. It was also alleged by the claimant, and found by the referee, that the president of the corporation represented that said shares had been issued to a stockholder who had sold them to the corporation. The claimant paid for said shares by four checks (1) dated March 16, 1893, for $7,500, payable “to the order of O. M. Dunham,” which was indorsed by the payee “for deposit,” and was snbsquently paid and the avails converted by Dunham ; (2) dated March 27, 1893, payable “to the order of Ó. M. Dunham, Esq., or Cassell Publishing Co.,” for $1,000, which was indorsed by the treasurer of the corporation, “For deposit to credit of Cassell Publishing Co.,” which check was paid, and the avails credited to the corporation; (3) dated April 1, 1893, payable “to the order of O. M. Dunham, or Cassell Publishing Co.,” for $1,000, which was indorsed by O. M. Dunham, “For deposit,” and the avails converted by Dunham, which check was paid; (4) dated April 6, 1893, payable “to the order of 0. M.' Dunham,” for $1,000, which was indorsed in blank by O. M. Dunham and by the treasurer of the corporation, “For deposit to credit of Cassell Co.,” and the avails credited to the corporation. March 15th, certificate No. 87, for one hundred shares of the stock, was issued, which was signed by the president and treasurer of the corporation, and sealed with its seal. It is alleged by the claimant, and found by the referee, that these shares were a fraudulent overissue, made by the officers of the corporation. On the 16th day of May, 1893, the plaintiff owned two promissory notes, one for $800, due, without interest, May 21, 1893, and the other for $354, due, without interest, May 29, 1893, which the claimant delivered to the corporation as a loan. These notes were indorsed by the corporation for collection for its account, were paid when due, and the avails credited to the corporation. June 17, 1893, an action wras brought by Hezekiah S. Archer, the vice-president, a director, shareholder, and creditor of the corporation, alleging that it had become insolvent .by reason of the fraudulent mismanagement of its affairs by its president, in which a receiver was appointed July 19, 1893, who is now in possession and control.of the affairs of the corporation. Pursuant to a notice published by order of the court, the claimant presented his claim, which was rejected, and thereupon the matter was referred to the referee to hear and determine.

The finding of the referee that the claimant, in purchasing the shares, dealt with the corporation, arid not with Oscar M. Dunham as an individual, is amply supported by the evidence, and upon -reading the record we are convinced that a finding to the contrary would not have been sustained by this court. All the witnesses agree that the certificate issued to the claimant represented a fraudulent overissue of shares. Section 6 of the by-laws of the corporation provides that “all certificates of stock shall be signed by the president and treasurer.” The certificate issued to the claimant was so signed, and was authenticated by- the seal of the corporation. The' fact that the avails of two of the four checks given by the claimaint in payment for the shares was fraudulently converted by the president to his own use does not affect the claimant’s right or the liability of the corporation. It is well settled that in case the officers of a corporation authorized to issue share certificates fraudulently issue certificates for shares in excess of the number of shares the corporation is authorized to issue, the corporation is liable in damages for such overissue to an innocent holder for value of the overissued shares. Railroad Co. v. Schuyler, 34 N. Y. 30; First Ave. Bank v. Forty-Second St. & G. St. Ferry R. Co., 137 id. 231; 50 St. Rep. 715; Cook, Stock & Stockh. § 293; Mor. Priv. C Gorp. (2d ed.) § 186; Dos P. Stock & Stockli. 641 et seq. Ten days after the appointment of the receiver, the claimant sailed for Europe. The day before he left he heard a rumor that his stock was an overissue. On the 1st of September, 1893, he returned to New York, and began an investigation in respect to the status of his shares, of which investigatian the officers of the corporation, its receiver, and his attorney knew. October 21, 1893, the receiver and his attorney procured two genuine certificates for shares,—No. 2, issued January 23, 1890, to Oscar M. Dunham, for 250 shares; and No. 47, issued May 19, 1890, to Oscar M. Dunham, for one hundred shares,—to be in form surrendered, and the original certificates annexed to the corresponding stubs in the book from which certificates were cut. This was done for the purpose of reducing the number of shares for which certificates were outstanding to the number which the corporation was authorized to issue. Upon this transaction the learned referee, by his twenty-seventh finding of fact, found as follows:

(27) That two days prior to the tender of stock and presentation of claims, and on the 19th day of October, 1893, the receiver’s agent, the receiver’s attorney, and two other persons, not officers of the company, met at the officr of the company, and caused the secretary of the company to cancel and pin into the stock books of the company two genuine certificates of stock, in amount such that, had they been surrendered prior to the issuing of the stock to the claimant, his stock would not have been an overissue.

Such surrender was unknown to claimant at the time, and has never been consented to by him. One of the certificates so surrendered was held by the vice-president of the company individually, as collateral to a loan, and was delivered and directed to be canceled by him, after learning of the overissue, and as an attempt to cure the same. About this transaction or its purpose there was no dispute, but it was wholly ineffectual for two reasons: (1) There was no evidence that Oscar M. Dunham authorized the surrender and cancellation of the certificates; (2) the receiver could not cut off the claimant’s right to damages for the fraudulent over-issue perpetrated upon him in March, 1893, by procuring a surrender of shares of an insolvent corporation in October, 1893, without the claimant’s consent. Had the shares béen surrendered upon his consent, and upon an agreement that he would waive his .claim for the fraud perpetrated upoti him, or had the number of shares which the corporation was authorized to issue been increased according to law, and he had consented to hold the shares previously issued to him as a part of such increase, his claim for damages would have been cut off. The claimant did not consent to the cancellation of these shares, but was at that time actively engaged in prosecuting his claim for damages, which could not be defeated by such an indefensible subterfuge on the part of the receiver of the corporation. The claim for money received on account of the notes was not defended on the merits. The corporation received the money, and its receiver is liable to the claimant for the sum received. Receivers appointed by this court should always bear in mind that it is their duty to deal justly by the shareholders and creditors, and not to engage in schemes to defeat or impair the rights of either; and that those who disregard this rule do it at the peril of removal, or, at least, of being personally charged with costs.

The findings of fact, which are amply supported by the evidence, and the conclusions of law, which are supported by the findings, clearly demonstrate that the receiver has no just defense to this claim.

The order and judgment should be affirmed, with costs.

Van Brunt, P. J., and Parker, J., concur in result.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Mercantile Safe-Deposit Company, Resp’ts, v. Collis P. Huntington et al., as Executors, etc., Resp’ts, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Interpleader—When it lies.
    An objection by one claimant of property that the depositary cannot maintain interpleader because he was fairly entitled to the possession, cannot be sustained, where the trial court has determined that the other claimant was entitled to the property.
    3. Joint tenancy—Safe-deposit vault.
    Where two combine to rent a compartment in a safe-deposit vault, there is no presumption that there is a joint ownership in all the property contained therein, even though the names of renters are disjunctively associated.
    3. Evidence—Deed—Delivery.
    In the absence of other proof, the finding of a deed in the possession of the grantee named in the deed is reasonably strong evidence that it has been delivered.
    Appeal from a judgment, adjudging that plaintiff! is entitled to interplead in respect to the property, and determine the conflicting rights of the parties.

      Andrew W. Kent, for app’lt; O. W. Pierson (P.'. B. Goudert, of counsel), for resp’ts.
   Van Brunt, P. J.

It appears from the evidence in this case that about October, 1882, one Martha Colton rented a compartment in the plaintiff’s vaults, and paid for the same and the box placed therein. The compartment was rented in the name of “ Miss Martha Colton, or Mrs. Abigail B. Colton.” Martha Col-ton was the only one who was identified to the company, and who ever had access to this property, except a person authorized by her. Abigail B. Colton was entirely unknown to the company, and was never identified, or so complied with the rules of the company as to have access to the safe in question. Martha Col-ton died on the 3d of November, 1892, and Abigail B. Colton died on the 30th of November, 1892. The executors of Martha Colton made a claim upon the plaintiff for the contents of the safe, which the plaintiff so far recognized as to allow them to examine the box. Subsequently the administrators of Abigail B. Colton made claim to the box, and on the 9th of November, 1893, commenced a, replevin action to recover the same. This action was begun by the deposit company, to 'be allowed to interplead the defendants, upon bringing the property into court. The defendants answered, setting up, as against each other, their respective rights, and serving their answers upon each other. The court, upon the trial, having-determined that the plaintiff was entitled to interplead then proceeded to determine the rights of the parties, and gave judgment From the judgment entered thereupon this appeal was taken.

The first question presented is, had. the plaintiff the right to maintain its suit of interpleader ? It is urged upon the part of the appellant that it had not, because the administrators of Abigail R. Colton were clearly entitled to the possession of the property, as against such administrators. The result of this action seems to be a sufficient answer to this proposition. The fact that the court below has determined that the administrators are not entitled to this property -certainly justifies, as against the claim of the administrators, an interpleader upon the part of the plaintiff.

It is further claimed, as a ground for the dismissal of the bill for interpleader, that the plaintiff was not ignorant of the rights of the respective defendants. But, as the court has decided that the defendant appellants have no interest in the property, it is apparent that they cannot raise any such objection in an action of interpleader. It would seem, from a consideration of the ques-. tians involved, that this was eminently a case in which the plaintiff had a right to be protected in the delivery of this property.

The next question presented is whether the executors of Martha Colton or the administrators of Abigail R Colton, are entitled to the possession of the property contained in the box in question. One of the points which is most strenuously urged by the appellants is that, this box standing in the name of “ Miss Martha Col-ton, or Mrs. Abigail R Colton,” they became joint tenants, entitled to the property contained therein, and that upon the death of Martha the title vested in Abigail, and upon her death, in her administrators. We think this is claiming altogether too much from the fact that this compartment in a safe-deposit company was _rented in the name of “Miss Martha Colton, or Mrs. Abigail R. Colton.” .It seems to us that all that can be deduced from that fact is that it was the intention of these parties that either might qualify herself to have access to the safe. It did not, by any means, determine the ownership of the contents of the safe. Nor could it be predicated upon this facto tket there was a joint ownership in the property contained therein, with a right of survivor-ship. We think it would be a proposition which would somewhat astonish the renters of boxes in safe-deposit companies, if it should be held that, when two combine to rent a safe, the presumption would be that there was a joint ownership in all the property contained therein, even though the names of the renters were disjunctively associated.

It is further urged on the part of the appellants that certain averments made by Martha Colton in a bill of complaint, and certain evidence given by her, show that she was not possessed of, any property whatever. But it is to be observed from the evidence in this case that Martha Colton treated fh is property and its proceeds as her own. The income thereof was deposited to her own credit in her own bank account, and it would seem—presumably, with her mother’s knowledge—that she exercised all the rights of ownership over it. Moreover, it appears that upon her death there was found in her possession a paper, under seal, signed by Mrs. Colton, by which she declared that, in consideration of love and affection, she had given, and thereby did give, to her daughter Martha, all her property, including money and securities, to have and to hold the same, and to. her own use and benefit forever. This instrument is sought to be impeached by the suggestion that the handwriting of the body of fhe instrument was not established, and that one of the witnesses who testified to the signature of Mrs. Colton simply testified that in his opinion it was in her handwriting. It is to be observed that the evidence in regard to the signature of Mrs. Colton to this paper was of such a character that it was introduced without objection, and there was no attempt whatever to prove that the signature was not Mi's. Colton’s. And, for the purposes of this appeal, we must assume what the evidence abundantly establishes,—that the signature was hers. The paper was found in the desk of Miss Martha Colton, and consequently had been apparently delivered to her. She already had the possession of the securities, they being in the box of the safe-deposit company, to which she alone had access ; and, as already suggested, she was continuously exercising the rights of ownership over these" securities,—receiving the income, and depositing it to her own «individual credit. All the elements of "a gift inter vivas were therefore established,—the gift, and the possession of the thing given by the donee. The learned counsel [or the appellant, we think, correctly states the elements necessary to the validity of a gift inter vivos: First, the donor must be competent to contract; second, there must be freedom of will; third, the gift must be complete, with nothing left undone; fourth, the property must be delivered by the donor, and accepted by the donee; and fifth, the gift must go into immediate and absolute effect. The appellant claims that in the case at bar all these essentials are wanting. We have examined the record with care and attention, to see upon whát foundation this assertion rests, and we are unable to discover that there is anything wanting to establish the validity of a gift inter vivas. We think», on the contrary, that, inátead of all the essentials being wanting, every one of them seems to be established by conclusive proof. The evidence is beyond question that, at the time of the date of this instrument, Mrs. Abigail R. Colton was entirely capable of contracting. There is not the slightest evidence that she'was resting under any compulsion. Upon the contrary, her action was that which would be most natural under the circumstances. The gift was complete, and nothing was left undone. Martha Colton had the control and custody of the securities, and the in.strument of gift seems to have been delivered to her. She accepted the gift, ^because it appears that she collected the income from these securities, and appropriated it to her own use. And" the gift went into immediate and absolute effect, because, ás has already been stated, Martha Colton had the securities, and used them as her own. It is true that there is a claim that, at the time the deed of gift bears date, Abigail R Colton was non compos mentis. But this rests entirely upon the evidence of an alleged declaration of Martha. It is true, there was also some evidence upon the part of Mr. Hunt that, prior to the date of the deed of gift, Abigail B. Colton was in poor health, and her mind began to weaken, and that her daughter never permitted her to go out alone, and also that Martha had stated that her mother had been an invalid all her (Martha’s) life,—that is, for forty years,— and been in feeble health fora great many years. But this by no means establishes the fact that Mrs. Colton, in 1893, was incompetent to contract. There is no proof that her mind was in such .an enfeebled condition that she could not transact business understandingly. It is a common experience that persons’ faculties be,gin to weaken without their being idiots.

It is further urged there was no evidence of a delivery of the instrument in question, and that the paper was neither witnessed nor acknowledged,—which has nothing whatever to do with the ■delivery. The fact is that the paper was found in the daughter's desk (it is true, upon the premises in which both mother and daughter resided), where it had been in the daughter’s possession. In the absence of other proof, the finding of a deed in the posses.sion of the grantee named in the deed is considered reasonably strong evidence that it has been delivered. The same is true in regard to the claim that there was no delivery of the property by Abigail, and acceptance by Martha. Martha had the property, used it as her own, received the income, and deposited it to her own credit, in her individual account. It seems to us, taking into consideration all these facts, that but one conclusion can be arrived at, and that is the one reached by the learned court below. The judgment appealed from should be affirmed, with separate >bills of costs to both respondents.

All concur.


author: Per Curiam.

text:
    Mark H. Eisner, Resp’t, v. Julius H. Eisner, Individually and as Executor and Trustee, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    .1. Pleadings—Partition.
    An answer, in an action for partition between devisees under a will, need not set forth the substance of the will under which the parties derive title, with more particularity than the complaint does instating the cause of action.
    ‘2. Same—Separate defenses.
    A denial that proper parties have been joined in an action of partition between devisees and a statement that certain provisions of the will preclude partition, do not Constitute such separate and distinct defenses as must be separately stated and numbered.
    •3. Appeal—Appealable order.
    An order, directing an answer to be made more definite and certain, is appealable.
    Appeal from an order, directing the defendant to make his answer more definite and certain.
    II right ITolcomb, for app’lt; George W. Garr, for resp’t.
   Per Curiam.

This action is brought—First, for a partition of :a joint life estate in certain real property, and for adjudging plaintiff to be the owner of liens thereon; and, second, for the partition and sale, or other judicial disposition, of a joint life estate in certain personal property. Interests in these properties are claimed by the plaintiff under the will of his mother, anh while the will is not set forth, nor made a part of the complaint, there is set forth a statement of what may be regarded as plaintiff’s summary of the provisions of such will, and his construction thereof; and, in addition to the pleading of other matters necessary and appropriate to complete the cause of action for partition of the real property, there is an allegation that the defendants are all the parties in being who are now in any way interested in said real property. The complaint in respect to the second cause of action relating to the personal property, contains similar allegations as to the rights derived by plaintiff, under his.mother’s will, to the personal property, the extent of his interest therein, and a statement of the others.whom he regards as persons having, under such will, an interest in such property. The defendant Julius H. Eisner admits the provision of the will creating the joint life estate in the real property, as alleged, and then denies that the defendants named are the only persons in being interested, and avers that there is a defect of parties defendant, in that there have not been joined, as defendants, certain grandchildren of the deceased, all of whose names are given, and all of whom are in being, and who, it is alleged, have contingent interests, as remaindermen, in undivided shares of said property. Plaintiff moved to compel the defendant Julius H. Eisner, both individually and as executor, etc., to make his answer more definite and certain—First, by alleging, in the words of the will, the part or portion which contains the devise under and by reason of a contingent interest, in which it is claimed that such grandchildren are necessary parties; and, second, by numbering and separately stating, in specific and unequivocal language, what parts or portions of allegations of said answer are intended to set up as distinct defenses to this action.

On the first ground, it seems to us unreasonable for the plaintiff, who has not himself set forth the will in full, nor given the provisions thereof verbatim, to insist that the defendant here who followed his example, by setting forth what he considered to be a summary of its provisions and a construction thereof, should, by way of answer, be compelled to do more than the plaintiff did in stating his cause of action.

Upon the second ground, as we fail to find any distinct defenses, it would be difficult to comply with the plaintiff’s request that defendant should state what allegations are intended to be set up as-distinct defenses. This is a suit in equity, and as the complaint itself is to be treated as an entirety, so should this answer, which, without asking any affirmative relief, is directed to a denial of the allegation that all the necessary parties are made defendants,, and to a statement of reasons, based, upon a construction of the provisions of the testatrix’s will, which, in defendant’s view, preclude a partition or sale. We think, therefore, that they were no distinct defenses requiring to be separately stated or numbered, and that the order making such a direction was improperly granted. That such an order is appealable has been many times held by this court. It should, accordingly, be reversed, with $10 costs and disbursements, and the motion should be denied, with $10 costs.


text:
    Mark H. Eisner, Resp’t, v. Joseph Stern, as Executor, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Appeal from an order, denying a motion to direct the defendant to make his answer more definite and certain.

      George W. Carr, for app’lt; Steinhardt & Goldman, for resp’t.
   Per Curiam.

For the reasons stated in the case of Eisner v. Eisner (herewith banded down) 69 St. Rep. 779, the order should be affirmed, with $10 costs and disbursements.


author: Follett, J.

text:
    Michael B. Kenney, App’lt, v. Second Avenue Railroad Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Negligence—Pbooe.
    The fact that the key to the iron bolt which connects the brake rod with the cross-lever, by means of which the brakes are set, is not found in place after the accident, is not sufficient to authorize the jury to find that the company failed to exercise due diligence to furnish a proper car. As between the company and its driver, the happeniug of such accident is not sufficient to warrant the inference of negligence.
    2, Same—Contributor*.
    A driver who, knowing that a brake is out of order, fails to apply a remedy, cannot be held to be free from negligence.
    Appeal from a judgment, dismissing the complaint.

      Thomas P. Wickes, for app’lt; Payson Merrill, for resp’t
   Follett, J.

This action was begun October 11, 1889, to recover damages for an injury caused, it is alleged, by the negligence of the defendant and its employes. The plaintiff was employed as a driver on defendant’s road. He was first employed in 1869, and again he entered its service March 17, 1886, and continued therein until the accident. March 20,1888, the plaintiff left defendant’s depot, above Eighty-Sixth street, at 1:40 p. m., to make a down trip, driving car Ho. 71, When Twenty-Third street was reached, the plaintiff noticed that the brake did not operate properly. As he approached Chatham Square an East Broadway car was entering on the track on which the plaintiff’s car was being driven, and he attempted, by application of the brakes, to stop his car. But the brake did not work, and the car, being on a down grade, continued to move ; and in order, to prevent a collision he drew the team sharply to ‘ the right, and whipped it so as to derail the car, and prevent it from colliding with the East Broadway car. In doing this he was thrown against the hand rail of the dashboard, fracturing his hip bone. The failure of the brake to work was caused by a bolt being displaced which united the cross lever with the brake rod. The cross lever, by means of which the brakes are set, is connected with the brake rod by an iron bolt passing down through rod and lever, and is held in place by an iron key. In some way the key got out of the bolt, which worked up out of the beam, and remained in the brake rod, but so as not to unite the two, thus making it impossible for the driver to apply the brake effectually to the forward wheels of the car. This car (No. 71) was taken from the repair shop on the very day of the accident, the trip on which it occurred being.the first one of that car since it came from the shop. There is no evidence that any of the defendant’s mechanics or inspectors were incompetent or negligent. The mere fact that the key was not found in place after the accident is not sufficient to authorize the jury to find that the defendant faired to exercise due diligence to furnish a proper car. As between the defendant and its driver, the happening of the accident is not sufficient to authorize the inference of negligence. It is frequently found that such keys and pins are displaced by the motion of the moving cars.

Again, the plaintiff testified that he had long been a driver, and that he could tell by the working of the brake whether it was in good order, without looking at it. When he left the depot, at the beginning of the trip, he thought the brake was in good order, but when he reached Twenty-Third street, and attempted to apply it, he found that it was not in order; but he did not search for the cause of the difficulty, and made no attempt to remedy it, as it was his plain duty to do. In the crowded avenues of this city, it is essential to the safety of passengers and persons .using the streets that the brakes on the street cars should be in perfect order, and a driver who, knowing that a brake is out of order, faijs to apply a remedy, cannot be held to be free from negligence. We think the plaintiff was rightly nonsuited because he failed to establish that the defendant was guilty of negligence, and because he, by his own negligence, contributed to the injury. The judgment should be affirmed, with costs.

All concur.


text:
    Lavinia A. Du Bois, Resp’t, v. Union Dime Savings Institution, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    IsTBBPLBADBB—WHEH LIES.
    No interpleader, toy action or motion, is authorized, when the stakeholder denies that the full amount demanded toy one of the claimants is due.
    Appeal from an order, denying a motion to substitute a claimant in the place of the defendant.
    Prior to July 31, 1886, William F, Du Bois deposited with the defendant, to the credit of “ William F. Du Bois, in trust for Louisa Du Bois,” various sums, amounting, with the accumulation of interest, on said date to $4,086.50. This account, aiid the corresponding pass book, were numbered 188,463. Louisa Du Bois was the wife of William F. Du Bois, and, she having died, he, on the 31st of July, 1886, surrendered pass book No. 138,463, and had the fund, $4,086.50, credited on defendant’s books to “ William F. Du Bois, in trust for Ellenora H. Decker,” which account, and the corresponding pass book then delivered to him, bore the number 180,769. Ellenora H. Decker and William F. Du Bois were brother and sister. There was credited to this account, for interest, January 1, 1887, $66.29, and July 1, 1887, $67.28, so that, August 1, 1887, there was standing to the credit of said account No. 180,769, $4,218.07. Before August 1, 1887, William F. Du Bois married Lavinia A., his second wife, and on that date he opened a new account with defendant, in the name of “ William F. Du Bois, in trust for Lavinia A. Du Bois,” which, and the accompanying pass book, were numbered 186,416, and transferred to it $1,000 from account No. 180,769. July 30, 1890, William F. Du Bois opened another account, which, and its accompanying pass book, bore the number 226,331, with defendant, in the name of William F. Du Bois, in trust for Lavinia A. Du Bois,” and transferred to it, from account No. 180,769, $3,552.07, which sum, with the previous $1,000, represented account No. 180,769 and all accumulations of interest thereon. Account No. 180,769 was then closed, and the pass book surrendered by William F. Du Bois to the bank. Afterwards (the dates not appearing) William F. Du Bois drewt $25 from account No. 186,416 and $890.46 from account No. 226,331. June 12, 1894, William F. Du Bois died, and on the same day Ellenora H. Decker began an action in the superior court of this city against the' defendant to recover $4,086.50, with the accumulations of interest thereon since July 31, 1886, not crediting the two payments of $25 and $890.46, amounting to $915.46. In that action the defendant answered, setting up substantially the foregoing facts. December 3, 1894, this action was begun to recover $4,308.10, the amount standing to the credit of accounts Nos. 186,416 and 226,331, with the accumulations of interest thereon, crediting the defendant with $915.46, the amount of0the two payments before mentioned. The defendant has not answered in this action, but admits it is owing to one or the other of the rival claimants the amount sought to be recovered in this action, and moved at special term for an order substituting Ellenora H. Decker as a defendant in its stead in this action, offering to pay into court the amount claimed herein, which is $915.46 less than the amount claimed by Ellenora H. Decker in her action.

      G. K Bovee, Jr., for app’lt; G. W. H. Zeglio, for resp’t Ellenora H. Decker; Peter S, Carter, for resp’t Lavinia A. Du Bois.
   Follett, J.

This is not an action brought by the bank against the two rival claimants of the sum of deposit to compel them to interplead, but it is a motion made, pursuant to section 820 of the Code of Civil Procedure, by the bank, the defendant in two actions brought by the claimants, to substitute Ellenora H. Decker, the plaintiff in the first action, now pending in the superior court, as a defendant in the place of the bank in the second action brought by Lavinia A. Du Bois against it. Lavinia A. Du Bois consents that Ellenora H. Decker be substituted as defendent in the place of the bank in this action. The defendant offers to pay into court, pursuant to section 820, Code Civ. Proc., or to hold, pursuant to section 115 of chapter 689 of the Laws of 1892, the sum claimed by Lavinia A. Du Bois, but it does not offer to pay into court, or to hold, subject to the final determination of the controversy, the sum which Elleanor H. Decker seeks to recover, which is $915.46, besides interest, more than the bank admits to be due from it. Section 820 of the Code of Civil Procedure is not a substitute for the action of interpleader, but is an additional and summary remedy afforded to defendants to compel rival claimants to be brought into the action. Beck v. Ryback, 9 How. Prac. 193; Cronin v. Cronin, 9 Civ. Proc. R. 137; 3 How. Prac. (N. S.) 184. The right of a defendant to compel rival claimants to be brought into an action by motion depends upon the same principles as the right to maintain an action of interpleader to compel rival claimants to litigate as between themselves.

Though the relation between a savings bank and the owner of the credit be that of debtor and creditor, rival claimants “for the same fund,” or credit, may be interpleaded and compelled to determine, as between themselves, their respective rights to the fund. Laws 1892, ch. 689, § 115 (the banking law). But the difficulty was granting the defendant the relief sought, under section 820 of the Code of Civil Procedure, is that these rival claimants do not seek to recover “the same fund,” credit, or sum. The amount which Elleanor H. Decker seeks to recover in her action being greater than the amount which the defendant admits to be due, it is not entitled to have her substituted in this action, brought by Lavinia A. Du Bois to recover a less sum, which the defendant admits to be due from it. Railroad Co. v. Arthur, 90 N. Y. 234; New England M. L. Insurance Co. v. Odell, 50 Hun, 279; 19 St. Rep. 169; Van Zandt v. Van Zandt, 26 St. Rep. 963; Sibley v. Equitable L. As. Society, 18 St. Rep. 834; Dodge v. Lawson, 19 N. Y. Supp. 904; Bender v. Sherwood, 15 How. Prac. 258; Supervisors v. Seaburg, 11 Abb. N. C. 461; Crane v. McDonald, 118 N. Y. 648; 30 St. Rep. 98; 2 Silv. Ct. App. Cas. 341, 358, note; Chamberlain v. O'Connor, 1 E. D. Smith, 665; Patterson v. Perry, 14 How. Prac. 505; Moore v. Usher, 7 Sim. 383; Glyn v. Duesbury, 11 id. 139; Diplock v. Hammond, 23 Law J. Ch. 550; 27 Eng. Law & Eq. 202; Bridesburg Manufg Co.'s Appeal, 106 Pa. St. 275; Glasner v. Weisberg, 43 Mo. App. 214; Story, Eq. Pl. (10th ed.) § 291; 2 Story, Eq. Jur. (13th ed.) § 821 et seq. ; 3 Pom. Eq. Jur. § 1323.

Had the bank admitted that there was due from it a sum equal to that claimed by Ellenora H. Decker,—the largest sum, then the rival claimants might have been compelled to litigate their claims as against each other. Koenig v. Insurance Co., 14 St. Rep. 250; 14 Civ. Proc. R. 269; Progressive Handlanger Union No. 1 v. German Sav. Bank, 7 N. Y. Supp. 3; aff’d, 29 St. Rep. 528; Yates v. Tisdale, 3 Edw. Ch. 71; Fargo v. Arthur, 43 How. Prac. 193.

But we know of no authority authorizing an interpleader, by action or motion, when the stakeholder denies that the full amount demanded by one of the rival claimants is due. The rule deducible from the authorities is : In case A. is threatened with suit, or is sued, by B. for $1,000, and by C. for $500 of the same fund, and A. admits that he holds $1,000, B. and C. may be compelled to interplead, but in case A. denies that he holds $1,000 and admits that he holds $500, he cannot compel B. and C. to interplead. The bank was not entitled to an order substituting Ellenora H. Decker as a defendant in its stead, under section 820 of the Code.

The learned counsel for the bank now insists that the motion should have been granted under section 452 of the Code of Civil Procedure, which provides:

“Sec. 452. The court may determine the controversy as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the pretense of other parties, the court must direct them to be brought in. * * * ”

The difficulty with this contention is that the motion was not made under the section last quoted. It appears, by the notice of motion, that relief was sought under section 820, and not under section 452, of the Code, and it does not appear that it was suggested at special term that Ellenora H. Decker might be brought in as a defendant under section 452, and it is too late to claim for the first time on appeal that relief should have been granted at special .term under the latter section.

The order must be affirmed, with $10 costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur in result.


text:
    Michael Bowen, Resp’t, v. Michael Sweeney et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Former adjudication—Decree refusing probate.
    A decree of the surrogate’s court, admitting a will to probate, entered on a verdict rendered on the trial of issues, will not bar a subsequent action by an heir of the testator for partition of land devised to a third person, though he was a party to the probate proceedings.
    3. Will—Hearing—Affirmative.
    In an action by an heir for partition on the ground that a devise is void, the rule that the party, sustaining the validity of the devise, is entitled to open and close, as provided by section 3653a of the Code, does not apply.
    3. Trial—Charge.
    The court, where it has already charged the jury upon an issue, need not again charge, in the language of counsel, upon the same issue.
    4. Same—Force of verdict. ,
    The verdict, under sections 970 and 1544 of the Code, is not merely for the information of the court, but is conclusive until set aside or a new trial granted; and the special term, upon its continuance of the trial, has no power to set aside the verdict and find the facts contrary thereto,

      Appeal from an order, denying a motion to set aside the verdict, and from an interlocutory judgment entered on said verdict and on a decision of the special term, and from the final judgment entered on the report of a referee, appointed to sell.
    August 27, 1885, Mary T. Hatten died seised in fee simple of a piece of land situate at the northwest corner of First avenue and Thirteenth street, which is forty-three feet and three inches wide on the avenue, and eighty feet long on the street. She left a last will, executed April 17, 1880, "by which she devised and bequeathed all of her estate to Michael Sweeney and Catherine Gallagher, to be divided equally between them. The will was admitted to probate October 18, 1886, by the surrogate’s court of the city and county of New York. 3 St. Rep. 213. August 20, 1887, the decree of the surrogate’s court was reversed by the general term of the supreme court (10 St. Rep. 19), which ordered the following issues to be tried before a jury in the court of common pleas: First. Whether the decedent ever saw the paper propounded for probate as her last will and testament until it was presented to her for execution. Second. Whether the paper propounded for probate as the last will and testament of Mary Teresa Hatten was read by her, or any one aloud in her hearing, previous to the signing thereof. Third. Whether the decedent, at the time of signing the paper propounded for probate as her last will and testament, had full knowledge of the contents of the said paper. Upon the trial of these issues, all were answered in the affirmative by the jury. On the 16th of November, 1888, the proceedings upon the trial were returned to the surrogate’s court, and on that date a decree was entered confirming the probate of the will. The litigants in this action were parties to the proceedings in the surrogate’s court, and appeared on the trial in the court of common pleas. No appeal was taken from the final decree, of November 16,1888, of the surrogate’s court. October 10,1888, this action was begun to partition said real estate, pursuant to section 1537 of the Code of Civil Procedure, upon the theory that the plain tiff was an heir at law of Mary T. Hatten, and that her apparent devise of the property to Michael Sweeney and Catherine Gallagher was void. The contesting defendants, Michael Sweeney, Catherine Gallagher, and Francis Gallagher (her husband), denied, in their answers, that the devise was void, and set up, as a bar to the action, the final decree of the surrogate’s court admitting the will to probate. The other defendants who answered admitted the allegations in the complaint. In November, 1889, the action was tried at circuit before a jury, and the following questions submitted: “(1) Did Mary T. Hatten know that the paper she executed was a last will and testament? (2) Was Mary T. Hatten procured to execute the paper purporting to be a will by the conspiracy of Michael Sweeney, Catherine Gallagher, and others? (3) Had Mary T. Hatten capacity to make a will? The first two questions were answered in the affirmative, and the third question in the negative, by the jury. Thereafter the trial was concluded at special term, the verdict confirmed, and a j udgment of sale ordered, in accordance with which a judgment was entered September 22, 1890. Upon an appeal to the general term this judgment was reversed, and a new trial granted, on the grounds that the circuit erroneously allowed the complaint to be amended, and excluded competentevidence. 63 Hun, 224; 44 St. Rep. 182. In March, 1892, the plaintiff, pursuant to leave granted, served a second amended complaint, and the issues joined thereon were tried at circuit in June,-1893, and the following questions submitted to the jury: “(1) At or immediately after the time when Mary Teresa Hatten signed the said paper writing, dated the 17th day of April, 1880, purporting to be her last will and testament, and mentioned in the complaint herein, did she publish and declare the same to be her last will and testament ? (2) Was the said paper writing obtained from said Mary Teresa Hatten by undue influence exercised upon her by the defendants Michael Sweeney, Catherine Gallagher, and Francis Gallagher, some or one of them? (3) Was the said paper writing obtained from said Mary Teresa Hatten by a conspiracy entered into by the defendants Michael Sweeney and Catherine Gallagher, and some other person or persons, for the purpose of fraudulently procuring a will in favor of said Michael Sweeney and Catherine Gallagher, in pursuance of which conspiracy they procured the said paper writing to be signed by the said Mary Teresa Hatten ? (4) Was the said .testatrix, Mary Teresa Hatten, at the time she executed said paper writing, of sound mind? (5) Is or is not the said paper writing executed by the said Mary Teresa Hatten the last will o£ the said testatrix ?” The first question was answered in the affirmative, by the direction of the court; the second and third, in the affirmative, by the jury; and the fourth and fifth, in the negative, by the jury. Upon the rendition of the verdict a motion was made, in behalf of Michael Sweeney and Catherine Gallagher, to set it aside, which was denied, and an order entered. Thereafter the trial was continued at special term, by which the verdict was confirmed, and a decision rendered directing an interlocutory judgment, which was entered July 13, 1893, adjudging that the property be sold. By the interlocutory judgment it is adjudged that the plaintiff is entitled to one-fourth of the premises; Thomas Bowen, defendant, Michael Bowen, Fanny McQueeny, one-twelfth each; Patrick Ford, Francis Ford, Michael Ford, Thomas Ford, one-sixteenth each; Mary Ann Cane and Catherine Ward, one-eighth each. In June, 1894, a motion for a new trial was made -on the judgment roll and a case, at general term, in behalf of Sweeney and Gallagher, for a new trial. The motion was dismissed for want of jurisdiction (79 Hun, 614; 62 St. Rep. 866), and an order entered, which was affirmed by the court of appeals, (143 U. Y. 349; 62 St. Rep. 306. February 7, 1895, the property was sold, pursuant to the interlocutory judgment, for $51,000, and on filling the report of sale a final judgment was (March 4, 1895) entered.

      William H. Arnoux, for app’lts; Flamen B. Oandler, for resp’t Bowen; S. B Ghittenden and William J. Kelly, for other resp’ts.
   Follett, J.

As all of the litigants assume that Mary T. Hat-ten died seised in fee simple of the whole of the premises, we shall rest our judgment on that assumption, without considering its validity.

All of the litigants in this action were parties to the proceedings in the surrogate’s court to probate the will, to the appeal to the general term, and to the trial before the common pleas. The first question presented is whether the decree of the surrogate’s court, affirming the original probate entered on the verdict rendered in the court of common pleas, is a bar to this action ? At common law, the probate of a will in an ecclesiastical court was not conclusive against the heir; and a judgment in an action at law, at the suit of the heir, that the testator was incapable of making a will, was not conclusive against the executor, as to the personalty, who notwithstanding the judgment at law respecting the realty, might, if he could, establish the will, as to the personalty, in an ecclesiastical court. Montgomery v. Clark, 2 Atk. 378: Hume v. Burton, 1 Ridg. App. 277; Bogardus v. Clarke, 1 Edw. Ch. 266; 4 Paige, 623. Lord Hardwicke said in Montgomery s Case:

“ I have often thought it a very great absurdity that a will which consists both of real and'personal estate, notwithstanding it has been set aside at law for the insanity of the testator, shall still be litigated, upon paper depositions only, in the ecclesiastical court, because they have a jurisdiction on account of the personal estate disposed of by it.”

By chapter 77, 20 & 21 Vict. (7357), the rule of the common law has been changed in England, and a decree of a probate court admitting a will to probate which relates to realty and personalty is binding on the heir, in case he had notice. 97 Pick. St. pp. 420-437, ch. 77, § 62. The rule of the common law arose from its tenderness to heirs, and from the idea that none should be deprived of land except by a judgment of a court of law, after trial of the issues of fact before a jury. Under the first constitution of this state, wills relating to realty might be proved in the court of common pleas (1 Rev. Laws 1801, p. 178); and after 1813, in the supreme court, or in the court of common pleas (1 Rev. Laws 1813, p. 364). And surrogates had the power to admit to probate wills relating to personalty and to real estate, so far as it was necessary to authorize the issuing of letters testamentary. 1 Rev. Laws 1801, p. 317; 1 Rev. Laws 1813, p. 444. Persons aggrieved by any decree of a surrogate were authorized to appeal to the court of probates. 1 Rev. Laws 1801, p. 325 ; 1 Rev. Laws 1813, p. 454. Under the second constitution the court of probates was abolished, and persons aggrieved by the decree of a surrogate were authorized to appeal to the chancellor. Laws 1823, ch. 70. But the court of chancery could not, by its decree, bind the heir in respect to the validity of a will unless the question of fact had been determined in a court of law on the issue devisavit vel non,—an issue directed by a court of equity to be tried by a jury in a court of law, to determine the validity of a will. Rogers v. Rogers, 3 Wend. 505. Vanderheyden v. Reid, 1 Hopk. ch. 408, was an appeal from a surrogate’s decree admitting a will to probate which related to real and personal property, and turned upon the question of the sanity of the testator. The question arose as to whether this issue could be sent by the court of chancery to a court of law, to be determined by a jury. In discussing this question the learned chancellor said :

“ Thus, a will of personal and real estate may be there adjudged both valid and void, by different tribunals. The result of an artificial division of jurisdictions can never be proper, where it may be avoided. That a will should be adjudged valid because the testator who made-it was of unsound mind, and that the same will should be adjudged void because the same testator was insane, is a result which should never take place under one system of laws. But still more singular would be the anomaly if the same court were, in the case of a contested will of real and personal estate, bound to send the disputed question to a jury, in respect to the land, and also bound to decide the same disputed question without a jury, in reference to another species of property. Such an incongruity is avoided by taking one course of investigation, whether the bill is of real or of personal estate, or of both comprised in one instrument. The court now having jurisdiction of wills of personal goods, and also of wills of land, it may most fitly apply the same method of investigating facts to both cases.”

This language seems to indicate that the chancellor was of the opinion that a decree entered upon the verdict would be conclusive upon the heir. This judgment, however, was reversed (5 Cow. 719), but not upon the point discussed in the foregoing quotation.

In Brick’s Estate, 15 Abb. Prac. 12, and in 1 E. D. Smith, xvii., will be found a learned and instructive history of the probate courts of this state prior to the Revised Statutes, by Charles P, Daly, the accomplished chief judge of the court of common pleas.

Under the Revised Statutes, wills of real and personal property, or both, were provable before the surrogate of the proper county. 2 Rev. St. p. 57, § 7 ; id. p. 60, § 23. Any person deeming himself aggrieved by the decree of a surrogate was authorized to appeal to the circuit judge of the circuit (id. p. 66, § 55), who in a case of a reversal upon a question of fact, was required to formulate issues of fact, and order them tried before a jury (section 57), which were to be tried in the same manner as issues awarded by the court of chancery, and new trials could be granted by the supreme court (section 58.) By section 59, 2 Rev. St. p. 67, it was provided : “ The final determination of such issue, shall be conclusive as to the facts therein controverted, in respect to wills of personal estate only, upon the parties to the proceedings.” In case the decree of the surrogate was affirmed or was reversed, on question of law, by the circuit judge, an appeal could be taken to the court of chancery. 2 Rev. St. p. 609, §§ 97, 100. Under these statutes it is clear that a judgment entered on a verdict establishing a will, after a trial of issues of fact before the circuit, was not conclusive upon the heir, to whom the right remained to contest the validity of the devise in an action of ejectment; and by chapter 238, Laws 1853, he was authorized to contest the validity of a devise by an action in partition. Under the constitution of 1846, the statute authorizing an appeal to a circuit judge was changed, and an appeal was authorized to be taken to the supreme court; and, in case the decision of the surrogate was reversed upon a question of fact, the questions were directed to be tried before a jury. Laws 1847, chap. 280, § 17. The statutes remained in this condition until the adoption of the Code of Civil 'Procedure, by which the surrogate’s court is made a court of record and is vested with the power to probate wills relating to realty and personalty. By section 2626, Code Civ. Proc., the decree admitting a will to probate is conclusive as to the personalty, unless it is reversed on appeal, or revoked by the surrogate ; but the decree1 is not conclusive upon the heir, but is presumptive evidence only of the validity of the devise. Id. § 2627. When an appeal is taken to the supreme court, it may affirm or reverse the decree; and, if modified or reversed upon a question of fact, a trial before a jury of the issues of fact must be awarded. The provision of the Revised Statutes that the decision to be entered upon the issue so awarded shall be conclusive as to the personalty only is not continued by this Code, nor do we find any provision stating the effect of a judgment so rendered. By section 1537 of the Code of Civil Procedure, the provisions of chapter 288, Laws 1853, were continued in force; and an heir of a decedent is authorized to maintain an action for the partition of.land apparently devised to another, upon the ground that the devise is void. In addition to these provisions, any person interested in a will which has been admitted to probate in this state may maintain an action to cause the validity thereof to be determined. Code Civ. Proc. § 2653a (enacted in 1892); Long v. Rodgers, 79 Hun, 441; 61 St. Rep. 462. It is apparent that under our boasted reformed procedure a.will relating to realty and personalty may be declared void, because of the insanity of the testator, or for any other cause, in respect to one species of property, and valid in respect to the other kind of property, upon the ground that the testator was sane; and so there may be two final adjudications, both supposed to be verities,—one affirming a will to be valid, and the otl^er affirming it to be void. And in case a will relating to realty and personalty is admitted to probate in the surrogate’s court, and the decision is reversed by the supreme court, and the issues are tried before a jury, which are found in favor of the validity of the will, upon which an adjudication is entered by the surrogate’s court decreeing the probate to be valid, the heir may, notwithstanding, retry the question 'as to the realty, and possibly, as in the case at bar, obtain a verdict and a judgment that the will is invalid. But the remedy for this incongruous and absurd procedure, by which judgments diametrically opposed to each other may be recovered -in respect to the same will, does not lie with the courts, but with the legislature. We are compelled to hold that the decree entered upon the verdict of the jury in the court of common pleas is not a bar to this action.

This action was not brought under section 2653a, Code Civ. Proc,, enacted in 1892, but was brought four years prior to its enact-meat under section 1537 of the Code; and the provision of section 2653a, that “ the party sustaining the will shall be entitled to open and close the evidence and argument,” is not applicable to to this case, and the court did not err in denying the appellant’s motion to be given the right to open and close the case.

It is urged that the court erred in refusing to direct the jury to find the second, third, fourth, and fifth issues of fact in favor of the contesting defendants. Upon reading the evidence, we are of the opinion that it required the court to submit every one of these issue to the jury, and that no error was committed in refusing to direct a verdict, or in denying a motion for a new trial on the ground that it was contrary to the evidence. The learned trial judge instructed the jury fully and carefully in respect to the law relating to the issues submitted, and it was no error, after the delivery of his charge, to refuse .to reinstruct the jury on these issues in the language of counsel, as expressed in nearly fifty requests. The ninth and tenth requests, at folios 1020 and 1021, are typical of all. By these requests the court was asked to instruct the jury in respect to the rules of law relating to undue influence, which requests were declined. The court had already carefully instructed the jury upon this issue of folios 966 et seq., and it was not error to refuse to reinstruct the jury on the same subject in the language of counsel. Under sections 970 and 1544 of the Code of Civil Procedure, the verdict of the jury was not merely for the information of the court, but was conclusive until set aside or a new trial granted; and the special term, upon its continuation of the trial, had no power to set aside the verdict and find the facts contrary thereto. Jones v. Jones, 120 N. Y. 589; 31 St. Rep. 940.

Our attention is called to thirteen exceptions to the admission and exclusion of evidence, in the appellants’ twelfth point. To discuss each one of them, and show why they were not well taken, would unnecessarily prolong this opinion ; and it is, we think, sufficient to say that none of them calls for the reversal of this judgment, entered upon the conclusion of a prolonged and carefully conducted trial. The judgments and order should be affirmed, with costs.

All concur.


text:
    Henry W. Hardon, as Assignee, etc., Resp’t, v. Ongley Electric Company, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Pleading—Demurrer—Pendency of another action.
    A demurrer on the ground of the pendency of another action will be overruled where such pendency does not appear upon the face of the complaint..
    3. Same—Complaint—Misjoinder of causes.
    A complaint on a note, which alleges‘that it has become due by reason of two defaults—the non-payment of interest and the suffering of an attachment, is not amenable to a demurrer on the ground that it states two causes of action in a single count.

      Appeal from an interlocutory judgment, overruling a demurer to the complaint.

      Rufus W. RecJcham, Jr., for app’lt; Treadwell Cleveland for resp’t.
   Per Curiam.

This action was begun October 8, 1894, to recover the amount of a promissory note, of which the following is a copy:

$2,783 33-100. New York, November 1st, 1892.
Two years afterdate, we promise to pay to the order of Thomas W2. Bobertson twenty-two thousand seven hundred and eighty-three 33-100 dollars, at No. 1 Broadway, New Yorlc City.
No.-. The Ong-ley Electric Co.,
with interest at 5 per cent. By Geo. B. Hopkins,
payable semiannually. Vice President.
Due Nov. 4th, 1894.

It is alleged that, by a written contract entered into between the parties to the note on the day of its date, it was agreed “that in case default should be made in the payment of the said principal sum above mentioned, or in the payment of the interest thereon, or in case the said defendant should at any time before the day of payment therein provided for, to wit, November 4, 1894, permit or suffer any attachment or other process against property to be issued against it,. * * * then the said principal sum above mentioned should become instantly due and payable. * * *” It is further alleged that the interest on the note which became due May 1, 1893, November 1, 1893, and May 1, 1894, has not been paid, and that on March 21, 1893, an attachment was issued out of the supreme court of this state, in an action brought by John F. Wiechers against the defendant under which the defendant’s property has been seized, and now remains subject to the lien of the attachment.

The defendaht demurs on the following grounds: (1) That there is another action pending between the same parties, for the same cause. (2) That the complaint does not state facts sufficient to constitute a cause of action. (3) That causes of action have been improperly united in a single count; one cause claiming the principal of the note sued upon due because of the issuance of an attachment against the property of the defendant, and the second cause of action claiming the principal of the note due because of a default in the payment of interest.

In respect to the first ground of demurrer, it is only necessary to say that it does not appear on the face of the complaint that another action is pending between the parties for the same cause of action.

The third ground of demurrer is not well taken. There is but a single cause of action stated in the complaint, which is on the note; and the fact that it has become due by reason of two defaults—the non-payment of interest and suffering of an attachment—does not constitute two causes of action. The principal of bonds and mortgages often becomes due by breach of covenants to pay interest and to insure; and it has never before, we think, been argued that an action to foreclose the mortgage, or to recover on the bond, in which a breach of both covenants is set forth, improperly joins two independent causes of action.

The learned counsel for the demurrant, in support of the second ground of demurrer, urges that the covenants in respect to the non-payment of interest and suffering an attachment are contained in a chattel mortgage given as collateral to the note, and that it simply gives the plaintiff the right to foreclose the mortgage, but not to sue on the note. The answer to this is that it does not appear that these covenants are contained in a chattel mortgage. There is no allusion to a chattel mortgage-in the complaint, and the facts upon which the appellant founds his argument are not in the record. The judgment should be affirmed, with costs, with leave to defendant to answer upon payment of costs.


author: Parker, J.

text:
    Robert A. Hollister, App’lt, v. James M. Sinclair et al., Impleaded, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Fobmeb adjudication—Motion.
    Where, in an action against three partners, the complaint was dismissed as to one and judgment against the other two entered by direction of the court, but afterwards the dismissal was reversed and plaintiff and such defendant agreed upon a day for the re-trial, but. before such trial, the latter moved for leave to serve a supplemental answer, setting up the judgment against the other two defendants as a bar, the decision of the general term overruling the motion is conclusive as to the effect of the entry of the judgment against the two defendants, and a court of equity will not intervene to enjoin further prosecution of the action against the other defendant.
    Appeal from a judgment, dismissing the complaint on the merits as against some of the defendants.
    • Reginald H. Arnold, for app’lt; Artemus B. Smith and Arthur L. Henthorn, for resp’ts.
   Parker, J.

By means of this suit the plaintiff sought to obtain from a court of equity a judgment restraining these defendants from the further prosecution of an action then pending in the city court of Hew York against three defendants, Messrs. Merritt, Tilton, and this plaintiff, all of whom were at one time partners under the firm name of William J. Merritt & Co. The city court action was founded upon a promissory note made by Wm. J. Merritt & Co., and Hollister interposed a separate answer, in which he alleged that he was not at the time.of the giving of the note, a member or the firm. The cause coming on for trial, the court came to the conclusion that Hollister was not liable, and therefore dismissed the complaint as to him, directing judgment as against the other two defendants. The entry of a judgment in accord with this direction of the court furnishes the only excuse which the plaintiff has been able to present for the bringing of this suit. Hollister contends that the action of the attorneys for the Sinclairs in entering a judgment against Merritt and Tilton constituted an election on their part to hold them, only,—an election which was made voluntary, and without fraud or deceit practiced upon them by any one, the legal effect of which was to deprive the Sinclairs of the right, theretofore existing, of prosecuting Hollister upon that cause of action. Whether the judgment was in fact entered by the Sinclairs’ attorneys or by Hollisters’ attorneys seems to be in dispute. By some inadvertence, the findings of fact upon that subject are in conflict, as are the pleadings and affidavits which the record contains. But we need not dwell upon this conflict, because, however that fact may have been determined, the judgment appealed from would not be affected. After the entry'of the judgment by some one, an appeal was taken by the plaintiffs Sinclair to the general term of the court of common pleas from so much of the judgment as dismissed the complaint as against defendant Hollister, resulting in its reversal. Subsequently the attorneys for Hollister and the Sinclairs agreed on a time for the re-trial of the cause, but prior to the day appointed Hollister moved the court for leave to serve a supplemental answer, setting up the judgment against Merritt and Tilton as a bar. Upon this motion the parties seem to have brought to the attention of the court all of the facts, together with the evidence, in support of each side of the dispute as to whether the Sinclairs’ or Hollister’s attorneys were responsible for the entry of the judgment. The court denied the motion, whereupon an appeal was taken by Hollister to the general term of the court of common pleas, where the order was affirmed after a full consideration, as will appear from the following extract, which we take from the opinion of the court:

“In the case before us the facts disclosed were sufficient to in"volce an exercise of the discretion of the court upon the question whether the appellant, Hollister, had waived his right to serve the proposed supplemental answer by agreeing to set the cause for trial on the issues raised by his original answer; upon the question whether, by delaying his motion for more than "two months after reversal of judgment in his favor, he was not guilty of such loches as disentitled him to the relief; upon the question whether ‘injustice would be wrought by allowing such defense.’” Sinclair v. Hollister, 41 St. Rep. 349.

The court had jurisdiction to pass upon the question whether a supplemental answer should be served, and the application .for leave to serve was necessarily addressed to the judicial discretion of the court. In the performance of its duty it determined to exercise that discretion against the applicant Hollister, and when that question had been reviewed by the only tribunal having authority to determine whether or not the. discretion of the special term of the city court was properly exercised, it was disposed of for all time. It is not the duty of a court of equity, nor has it the power, to constitute itself in effect, an appellate tribunal for the purpose of determining whether the discretion was exercised in a manner agreeable to its conscience. Waiving further comment under this head of the procedure in the city court case, we come to the motion made by the Sinclairs at a special term of the city court for an order vacating the judgment against Merritt and Tilton, which was granted. In the memorandum granting the motion the court said: “This is in furtherance of justice, works no hardship on either party, and removes the technical objection the defendant Hollister raises.” From this order Hollister took an appeal to the general term of the .court of common pleas, where it was affirmed. We do not understand Hollister to contend on this appeal that the vacation of that judgment was without authority on the part of the court. But, however that may be, the authority conferred by Code, § 724, is sufficient to justify the order made. Hollister then made a motion for a perpetual stay of any further prosecution of the action against him, which was denied; and as he asserts that the motion was, “perhaps very properly, denied by it, for the reason that such an application should more properly be made to this court,” we may pass it without further comment. Indeed, there remains nothing further to do except to express the conclusion at which we have arrived, namely, that the trial judge properly dismissed the complaint (1) because the acts, of which complaint is made, were performed by a court having jurisdiction over the subject-matter of the action, and full authority for the procedure taken ; (2) if the power of a court of equity to grant the relief asked for could be assumed, its exercise in this case would not be in harmony with equitable procedure.

The judgment should be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    In the Matter of the Application by the Board of Street Opening to Acquire Title to Real Estate of Giovanni Guarino. In the Matter of Mulberry Bend Park. In the Matter of Giovanni Guarino et al.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

      1. Jurisdiction—Exclusive.
    The court of common pleas does not, by reason of having appointed the committee of a lunatic, acquire, under the rule making exclusive the jurisdiction of the court which first acquires jurisdiction of a matter, power to direct the disposition of an award made for land taken in condemnation proceedings.
    2. Lunacy—Award in condemnation proceedings.
    An award for land taken in condemnation proceedings is real estate, and .the committee of a lunatic husband, who held such land in entirety with his wife, is not entitled to its possession.
    3. Same—Compensation oe committee.
    The question as to what should be allowed to the committee of a lunatic for his compensation and counsel fees and his claim against the lunatic for board and maintenance and the costs in lunacy proceedings, should not be determined in a proceeding to compel the payment to him of an award for land of a lunatic taken in condemnation proceedings, but is a matter to be passed upon when the committee accounts in the court of his appointment.
    Motion to confirm the report of a referee in proceedings for the condemnation of land.

      Weelces Bros, and William Gasten, for motion; Andrew G. Oropsey, opposed.
   O’Brien, J.

This is a motion by the committee of the estate of Giovanni Gnafino, who was adjudged a lunatic, to direct the chamberlain to pay to him, as committee, the whole of an award in condemnation proceedings for the value of real estate of which the lunatic and his wife were seised as tenants by the entirety. It comes up upon the report of a referee to whom it was referred to take and report with his opinion. He reported that the fund should be deposited in a trust company, to be invested ; that one-half of the income from the investment should be paid to the committee, and the other half to Julia Guarino; that the attorneys who appeared for the Guarinos in the condemnation proceedings should have a lien" on the award for $1,102, for their services ; and that the taxes on the property should be paid out of the income of the property.

It is conceded that the estate acquired by husband and wife was one by the entirety ; that the awards, being the proceeds of such real property,, are held by the same tenure; that the husband and wife are life tenants in common, as to the usufruct of these proceeds, during their joint lives, the survivor to take the whole of the principal. Bertles v. Nunan, 92 N. Y. 152, 156; In re Blauvelt, 131 id. 249; 43 St. Rep. 285; In re Camp, 126 N. Y. 383; 37 St. Rep. 767. notwithstanding such concessions, the committee excepts to the conclusions reached by the referee, and insists that as the committee was appointed in a proceeding in the court of common pleas, which adjudged the husband a lunatic, the question of the disposition of the awards should be referred to that court, upon the ground that, having first assumed and acquired jurisdiction, such jurisdiction was exclusive, and that if this position is not-tenable, and this court should assume jurisdiction over the disposition of the awards, then one-half of the principal should be paid to the committee, upon giving a bond; that the attorneys who appeared in the condemnation proceedings should have no lien upon the fund; and that the taxes should not be deducted. A brief consideration of the questions thus presented will lead to the conclusion that the referee was correct in his recommendations.

It is true that the court of common pleas first exercised jurisdiction over the person and property of the lunatic, and such jurisdiction being concurrent with the supreme court, and because first exercised, exclusive (Code Civ. Proc. §§ 2320, 2344), this court with respect to matters over which such court of common pleas had jurisdiction, would not interfere. In regard, however, to the disposition of awards made in condemnation proceedings for the purposes of public parks, the court of common pleas has no jurisdiction ; that having been conferred upon the supreme court by chapter 320 of the Laws of 1887, which expressly provides for the payment into the supreme court, “ to be secured, disposed of, improved and paid out as the said court sitting at a general term for said district shall direct.”

This court having jurisdiction, therefore, we pass to a consideratian of the second question presented,—as to whether or not the awards should be divided, and half paid to the committee, and half to the wife. We do not think the committee is entitled to the possession of any award, but that he is only entitled to collect one-half of the income ; and we think that the suggestion of the referee that the entire award should be deposited in a trust company, to be retained until the death of one of the tenants by the entirety, and then paid over to the survivor, is both legal and just. It has been many times held that the proceeds of real property sold by the court, belonging to lunatics or infants, will be considered real estate, so long as the incompetency continues. On the death of the lunatic or infant the money will go to his heirs. Horton v. McCoy, 47 N. Y. 21. The-rights of the parties, therefore, are not affected by condemnation, and each has the same rights in the award as he or she formerly had in the land itself; the sum awarded, for all purposes, to be regarded as real estate. Each tenant by the entirety is seised in the whole estate, and to permit the committee to have the absolute control of one-half of the money in which the wife has an interest would be to wrest it from her, and award its custody to a stranger. Upon the husband’s death the wife instantly becomes entitled to the whole fund, and, even though a bond were given by the committee, the wife would not then receive the money, unless it was voluntarily paid over to her, but would have, as a substitute, a right of action on a bond. Upon no theory can we predicate the committee’s right to the possession and custody of one-half of the award. At best, he is but a mere bailiff, or servant, and has no title to the property. Pharis v. Gere, 110 N. Y. 336; 18 St. Rep. 534. We think, therefore, thas the fund should be held entire, and, as already intimated, the income should be divided; one-half going to the wife, and the other half to the committee.

Upon the remaining questions,—as to the lien of the attorneys who appeared in the condemnation proceedings, and the deduction of the taxes from the interest allowed on the awards, or the income from the estate,—we think the referee was right. As to what the committee should be allowed for his compensation and counsel fees, and his claim against the lunatic for board and maintenance, and the costs in-the lunacy proceedings, these should not be determined in this proceeding, but are matters to be passed upon when the committee accounts in the court of common pleas, where he was appointed. The disposition of the'awards, therefore, should be made in accordance with the views herein expressed.

All concur.


text:
    Thomas Crimmins, Resp’t, v. Metropolitan Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Damages—Elevated railway.
    A lessee is not entitled to damages caused by the construction and operation of an elevated railroad, where it does not appear that his term began before the road was constructed, though the present lease recites that it is a renewal of a former lease which began before such construction and named a different lessor, in the absence of proof of the manner in which the lessor of the so-called renewal lease acquired title.
    Appeal from a judgment in favor of plaintiff.

      Frederick Allis, for app’lts; Benjamin Yates, for resp’t.
   Per Curiam.

We see no way in which a reversal of this judgment can be avoided, because of the failure to show any devolution of the title of the first lessor upon the last lessors.' The attention of the counsel was pointedly drawn to that point upon the trial, but, without showing the slightest connection between the lessors in the two leases, a recovery is sought upon the ground that the second lease is a renewal of the first. It is true that the second lease recites that it is a renewal of the old lease, but the lessors are different, and there is no proof of how the lessors of the so-called “ renewal lease” acquired title if any they had. We do not see how we can avoid this objection. The case seems to have been tried in all other respects, but the point urged is fatal.

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


text:
    Dennis Doyle, App’lt, v. Mitchel A. C. Levy, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Slander—Justification.
    The defense of justification, in an action of slander for saying that plaintiff kept a house of prostitution, is established by proof that it was resorted to by prostitutes and disorderly persons.
    2: Evidence—Slander.
    Where the character of a house is in dispute, what anybody could have believed in respect to it is irrelevant.
    3. Same—Compromise.
    Evidence, tending to show an offer of compromise, is not admissible.
    4. Same—Slander—Res inter alios acta.
    «Where, in an action for slander, the character of plaintiff’s house is in dispute, evidence that a police captain, in the absence of the defendant, asked the plaintiff to permit him to inspect the premises, is inadmissible,
    5. Same—Immaterial.
    In such action, the character of the house in question cannot be established by proving the character of the adjacent house.
    6. Same—Disorderly house.
    One who harbors disorderly persons keeps a disorderly house.
    7. Same—Prior slanders.
    In such action, it is incompetent for plaintiff to prove the utterance of prior slanders, for which actions are not barred by the statute of limitations.
    8. Slander—New trial—Surprise.
    In such action, the plaintiff cannot claim to have been surprised by evidence on the part of the defendant which justified the alleged slanderous statement.
    Appeal from a judgment, entered on a verdict in favor of defendant, and from an order denying a motion for a new trial made on the minutes, and from an order denying a motion for a new trial on the ground of surprise and newly-discovered evidence.

      Thomas F. Byrne, for app’lt; Franklin Pierce, for resp’t.
   Follett, J.

This action was begun March 18, 1892, to recover damages for an alleged slander. It is alleged in the complaint that November 1,1891, and March 3,1892,—two causes of action not separately stated,—the defendant, in the hearing of a number of persons, spoke concerning the plaintiff these words: “ That man Doyle is keeping a disreputable house at No. 34 West Fourth street. I mean that, it is a house of prostitution, and especially on the upper floor.” By his bill of particulars the plaintiff substituted for the first cause of action an alleged libelous letter of October 28, 1891, of the writing of which no evidence was given. The defendant, in his answer, set up three defenses: (1) He denied speaking the words. (2) That the plaintiff, at the dates mentioned, was keeping, at 34 West Fourth street, a house of prostitution,—a justification. (3) That he (defendant) was the owner of the premises, that plaintiff was in possession under a lease from a former owner, and that whatever he said in respect to the character of the house was to police officers and to the members of the board of excise, and was privileged. The plaintiff kept a liquor saloon at No. 34 West Fourth street, which his own witnesses testified was frequented by prostitutes, but they do not testify that the frequenters carried on their occupation in that building. Without stating the evidence, it fully justified the jury in finding a verdict of no cause of action, on the ground 'that plaintiff’s saloon was the resort of prostitutes and disorderly persons.

The exceptions at folios 58, 64, 67, and 141 are so clearly frivolous as not to require discussion. At folio 70 the court refused to permit the plaintiff to prove what the defendant said about the steps he was taking to break the lease. There was no dispute on the trial about the fact that the defendant was trying to get rid of the tenants in Nos. 34 and 36, occupying under leases from the former owner, because of the disreputable character of the places kept at those numbers, and the fact that one witness was not permitted to state precisely what defendant said about the steps he was taking was not error. At folio 77, the witness Harmon, called by the plaintiff, who had been employed by the defendant to obtain evidence as to the character of the business conducted at No. 34, testified that he was employed “ with regard to the excise of No. 34.” “Q. What did he say in regard to that?” This was objected to by the defendant, and excluded. What fact the plaintiff proposed to show, is not disclosed by the record. On the face of the record, it does not appear that the plaintiff proposed to prove any fact relevant to the issue. At folio 84 the witness Haggerty, called by the plaintiff, was asked: “Q. Was any part of that house so used that anybody could have any belief that it was kept as a disreputable house?” This was objected to, and the objection sustained. This question, on the face of it, is improper. What anybody could have believed in respect to it was entirely irrelevant. At folio 86, Matthews, a witness called by the plaintiff, testified that, three or four month before the plaintiff took possession of the premises, he occupied a portion of them for himself and family. An objection and an exception were taken to this evidence, and sustained. •Whether the objection was taken to the evidence which had been given, or to evidence which it was anticipated that he might give, does not appear, and the court did not err in sustaining the objection. At" folios 91 and 92 the plaintiff was asked whether the defendant offered to give him a new lease if he would discontinue this action, which was objected to and excluded. It is difficult to see how a proposition to give a new lease, based upon a settlement of the suit, was competent. The fact that the defendant offered to compromise the suit was not competent. At folios 94 and 95 the plaintiff was not permitted to testify that the police captain of the precinct, in the absence of the defendant, asked to examine the premises, to see whether they were disreputably kept or not. This was an occurrence between others when the defendant was not present, and was immaterial. At folio 105, Ryan, a witness called in behalf of the plaintiff, was asked: “ Q. In March, 1892, did Levy complain to you of Mo. 36, as being a house of prostitution?” This was objected to, and the objection sustained. The plaintiff did not occupy Mo. 36, and this action relates to his conduct in respect to Mo. 34. It was not error for the court to refuse to strike out, at folio 129, the word “solicited,” and-require the witness to state the precise words used by the female who accosted him. The words were not in issue, and it was entirely permissible for the witness to describe in general terms the conduct of the woman. Whether the neighborhood of the plaintiff’s place of business was frequented by lewd women was not material. If he harbored them, and kept aplace for their resort, he was as guilty of keeping a disorderly house as though his place of business had been in a part of the city not infested with them. At folio 149 the defendant was permitted to show that colored women went to and fro between the plaintiff’s place of business and a negro bath house, which, the witness testified, was reputed to be a disorderly place. The witness described the persons who passed between these places, and his statement that the bath house was represented to be a “fancy house” does not call for a reversal of the judgment. The rulings upon the admission and exclusion of evidence, above discussed, are typical of all those urged as erroneous in the brief of the appellant, and we are unable to see that any of them could by any possibility have pre-_ judiced the plaintiff’s case.

Prior to May, 1890, the plaintiff occupied Mo. 30 West Fourth street, and on the 24fh of that month he removed to Mo. 34, where he. kept a liquor saloon for three years. The plaintiff testified: “I first saw Mr. Levy (defendant) about May, 1890, at the excise board. He wrote a letter having my license—” At this point an objection was raised, which was sustained, and the plaintiff’s sentence was not completed. It is not alleged in the complaint that the defendant, in May, 1890, libeled or slandered the plaintiff; and it was incompetent for the plaintiff to prove the utterance of prior slanders, or the publication of prior libels, actions for which were not barred by the statute of limitations. Distin v. Rose, 69 N. Y. 122. The plaintiff did not offer to show that the defendant wrote or said any particular thing to the excise boa.rd in May, 1890, or in May, 1891. If the letter was deemed to be competent, it should have been offered, so as to enable the court to determine whether it was admissible or not. If the plaintiff wished to show that the defendant entertained malice towards him, he should in some way have indicated that the testimony called for related to that subject. There was no foundation for the plaintiff's motion for a new trial on the ground of surprise, or newly-discovered evidence, The defendant justified in his answer the speaking of the words alleged in the complaint, and the plaintiff should have been prepared to meet this issue; and he was, for he gave evidence upon that issue. The fact that witnesses not ■called and sworn on this issue will testify that they knew the place, aud did not know that it was the resort of disorderly persons, is no. reason for granting a new trial. The plaintiff kept this place for three years, knew his customers and the persons who were accustomed to resort there, and should have been prepared to •meet the issue tendered by the answer.

After reading the evidence, we are satisfied—First, that it was not established that the defendant uttered the precise words -charged in the complaint; second, that, if he did, they were true; and, third, that whatever the defendant did or said was to rid the premises of disorderly tenants who were in occupation under a lease from a former owner. The verdict was right, on the merits, and the judgment and orders should be affirmed, with costs.

All concur.