text:
    Francis Shields, Resp’t, v. Alvin Russell, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Deed—Mortgage.
    E. and wife borrowed' of defendant certain moneys, and as security therefor executed a deed of lands of Mrs. E.; defendant, with her consent, giving back a lease of the premises to E., which provided that on payment in two years of the amount of the loan he would execute a deed to £., his heirs, administrators and assigns. Held, that the transaction, constituted a mortgage; that on repayment the lien would absolutely cease; and that there was no necessity for a reconveyance except to clear up the-record title.
    3. Same—Assignment.
    The lease also contained a covenant against assignment. E. assigned the lease to plaintiff, who brings action to redeem and for a conveyance to« him. Held, that the provisions of the lease in this respect 1 eing inconsistent, that providing for a conveyance to E. or his assigns upon paying the amount of the mortgage should be held paramount, and that plaintiff as-such assignee, was entitled to a conveyance.
    Appeal from judgment in favor of plaintiff, directing specific performance.

      Kellas & Munsill (John P. Kellas, of counsel), for app’lt; Badrger & Ide (John P. Badger, of counsel), for resp’t
   Herrick, J.

Eliza H. Elliott and John S. Elliott desired to-borrow the sum of $1,000 from the defendant. He agreed to loan them that amount for two years. To secure it they were to give him a deed of certain lands, and he to give back a lease of them. Eliza H..Elliott owned the fee of the real estate in question. She gave a deed of it, her husband, John S., joining with her, to the defendant; at the same time the defendant gave to John S. Elliott a lease of the same premises for two years, by the terms of which John S. Elliott was to keep the property insured and in repair, to pay to the defendant sixty dollars a year rent, and not to assign the lease ; the defendant agreed that upon the payment of said rent, the performing of the other conditions of the lease and the payment to him at the expiration of two years of the sum of one thousand dollars, he'would execute and deliver to said John S. Elliott, his heirs and assigns, a warranty deed in fee simple of the premises described in the lease. Eliza H. Elliott agreed with her husband that the lease should go to him; and she was present when it was made. The deed and the lease were made simultaneously for the same purpose; it was intended by all parties that they should take the place of and operate' as a mortgage to secure to the defendant the repayment to him ' of the $1,000 loaned to the Elliotts.

The whole transaction constituted a mortgage. Macauley v. Smith el al., 132 N.Y., 524; 44 St. Rep., 847; Thorns. Sutherland, 123 N. Y., 236 ; 33 St. Rep., 408 ; Barry v. H. B. Fire Ins. Co., 110 N. Y., 1; 16 St. Rep., 634.

And upon payment of the loan to the defendant his lien therefor would absolutely cease, and there would be no necessity for a re-conveyance from him except to clear up the record title. Barry v. H. B. Fire Ins. Co., 110 N. Y., 6; 16 St. Rep., 634; Shattuck v. Bascom, 105 N. Y., 39—13 ; 6 St. Rep , 775.

The cases cited, holding that the defendant took no title, that he simply had a lien upon the property as a mortgagee, would be an insuperable objection to the plaintiff’s recovery in this case, except for the facts already stated that Eliza II. Elliott, who, under such authorities, must be considered the mortgagor, was a party to the whole agreement, consented to the lease given to her husband, in and by which lease it was agreed that the reconveyance should be made to her husband, his heirs and assigns, which agreement is just as binding as if it was contained in the deed itself, both are to be construed together, as one instrument, and the further fact, as stated by the learned justice before whom the case was tried, without a jury, that Mrs. Elliott while upon the witness stand disclaimed any right in the premises.

The plaintiff is the assign of all the rights of John S. Elliott under the so called lease; he has offered to pay the defendant the amount of his mortgage, and asks a conveyance to him of the property in question.

The defendant says that John S. Elliott covenanted and agreed in and by the lease not to assign such lease, and that by assigning to the plaintiff all rights under the lease his right to a conveyance has been forfeited, and that the plaintiff is not entitled to a conveyance for that reason.

Practically the defendant’s position amounts to this, that by defaulting in one of the conditions of the lease, or mortgage, that which was a mortgage has been turned into an absolute deed; in fact the defendant stated that as his claim upon the trial in answer to a question of the court. “ My opinion is that I am entitled to the ownership of the property for the reason that the transfer from Elliott to Shields was without my consent; and I propose to claim a forfeiture; no other reason in particular for me refusing to deed to Shields except that I should object to him as a tenant; if he would pay up in full he would be no longer a tenant, as I understand it; so that there is no other reason except the ground of forfeiture by assignment without my consent.”

That position is one that finds no favor in equity; once a mortgage, always a mortgage. Macauhy v. Smith, 132 N. Y, 524-31; 44 St. Rep., 847.

And a mortgagor, although he has not strictly complied with the terms of the mortgage, has a right of redemption. Matthews v. Sheehan, 69 N. Y., 585-90..

As a covenant between landlord and tenant the covenant not to* assign would probably be good and the plaintiff could not occupy the premises as a tenant of the defendant; but, as we have seen, the real position of the defendant is not that of a landlord, but of a mortgagee, the mortgagors remaining in possession of the property.

I shall not discuss the question as to whether the clause forbidding an assignment was void as being in restraint of the power of alienation, nor as to what extent forfeitures are favored or frowned upon in law or in equity.

While there is that covenant on the part of Elliott that he will not assign the lease, there is also a covenant upon the part of the defendant that upon the payment of $1,000 by Elliott or his assigns he will convey to Elliott, his heirs and assigns, the property in question. Of course Elliott’s assigns could not pay nor could the defendant convey to Elliott’s assigns unless Elliott had assigned to some one; these provisions of the lease or mortgage being inconsistent, and as we have seen that equity does not favor an agreement that turns a mortgage into an absolute deed upon a default, Macauley v. Smith, supra, I think that the provisions of the lease, or mortgage, providing for a conveyance of the property to Elliott or his assigns upon his or their paying the amount of the mortgage should be held paramount, and that the plaintiff,, as Elliott’s assignee, is entitled to a conveyance of the property in question.

Let the judgment be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    Eugene C. Grantier, Ex’r, Resp’t, v. George Austin, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Deed—Covenant—Breach.
    Plaintiffs testatrix and others conveyed certain premises to defendant by warranty deed, for which he paid in part by notes. He was subsequently dispossessed of a part of the premises in an action of ejectment of which he gave notice to all the grantors except testatrix. In an action upon his notes, Held, that he was entitled to recoup or counterclaim the damages he had sustained by being dispossessed of the land.
    3. Same—Evidence.
    In such action the judgment roll in the ejectment action, and proof of the value of the land taken thereunder, that it was a part of the land conveyed and of the amount paid by defendant for costs and expenses therein, was competent and proper evidence.
    Appeal from judgment in favor of plaintiff, entered upon a verdict, and from order granting an extra allowance.
    Action upon two promissory notes given by defendant as part payment of the purchase price of a farm.

      James W. Tucker (Albert G. Tennant, of counsel), for app’lt; S. W. Putnam ( Westbrook & Borst, of counsel), for resp’t.
   Herrick, J.

The plaintiff’s testatrix united with others in giving to the defendant a deed of certain real estate, the grantors covenanting that they were the owners and well seized of the same, and that they would warrant and defend the same in the quiet and peaceable possession of the defendant against any person claiming the same or any part thereof; the defendant paid for such premises partly in cash, by the assumption of some existing mortgages thereon, and by two notes for the balance given by him directly to the plaintiff’s testatrix. The defendant entered into possession of the premises.

Some time thereafter an action in ejectment was commenced against the defendant to recover from his possession a portion of such premises, and a few days after the commencement of .such action the same grantors who had given the first deed -executed and delivered another deed to the defendant, which recited that it was given in the place and stead of the first deed, “which did not properly describe the premises thereby .and hereby intended to be conveyed; ” the deed contained the same covenants of warranty as the first deed.

The defendant claims to have given the plaintiff, who was one of the grantors, and all the other grantors except the plaintiff’s •testatrix, notice of the suit in ejectment. The action in ejectment resulted in favor of the plaintiff therein, and the defendant was ousted from the possession of a part of the premises alleged to have been conveyed to him by such grantors.

Thereafter the plaintiff commenced action upon the notes given by the defendant to plaintiff's testatrix in her lifetime, in part payment of the purchase price of said real estate.

The defendant, admitting the execution and delivery of the notes and their nonpayment, set up the facts herein recited in his •answer, and asked to recoup or deduct from the amount of the notes the value of that portion of the premises which bad been taken from him in the action of ejectment, together with his costs .and expenses in defending such action, and offered to allow the plaintiff to take judgment for the balance.

Upon the trial the court excluded the judgment roll in the ac~tion of ejectment, excluded evidence as to the money paid by the defendant on the judgment recovered against him in such ejectment action, excluded evidence tending to show the value of the land taken from the defendant in such action, and also evidence tending to prove that the land covered and taken in said action •of ejectment was a portion of the land described in the deeds heretofore referred to, and finally directed a verdict for the full amount of the notes. I think the defendant was entitled to recoup or counterclaim from the plaintiff upon such notes the damages which he had sustained by being dispossessed of the land conveyed to him. Gillespie v. Torrance, 25 N. Y., 306 ; McKnight v. Devlin, 52 id., 399.

The plaintiff’s testatrix had personally covenanted for its quiet possession and enjoyment, had personally warranted the title, and the notes were a part of the purchase price of the premises and of the consideration for such covenants and warranty.

It seems to me that the court erred in excluding the judgment, roll in the action of ejectment. If the plaintiff’s testatrix had had notice of the action it would, in the absence of fraud or collusion, have been conclusive; without notice it is prima facieevidence and imposes upon the plaintiff the burden of showing that there was a defense to the action and that there was no failure of title. And it is competent to prove defendant’s eviction, and what premises he had been evicted from. Comstock v. Drohan, 8 Hun, 373 ; affirmed in 71 N. Y, 9 ; Taylor v. Barnes, 69 id., 430; Konitzky v. Meyer, 49 id., 571; Bridgeport Ins. Co. v. Wilson, 34 id., 275; Adams v. Conover, 87 id., 422.

The court also erred, I think, in excluding evidence of the value of the land- from which the defendant was evicted by the judgment in ejectment; and it was also competent for the defendant to prove the amount of costs and expenses he had paid or been subjected to in defending said action. Where a party has been evicted from a portion of the premises capable of definite ascertainment the measure of damages is the ratio which the value of the premises taken bears to the purchase price of the whole, together with the costs and expenses of defending the action. Hymes v. Esty et al., 133 N. Y., 342-7; 45 St. Rep., 115 ; Staats v. Executors of Ten Eyck, 3 Caines, 111.

The last case cited was approved in Corcoran v. Judson, 24 N. Y., 106, and is, I believe, the settled law in this state.

It seems to me, also, that it was perfectly competent and proper for the defendant to prove by a surveyor that the land described in the judgment in ejectment was a portion of the same premises described in the deed given by plaintiff’s testatrix to the defendant, and that the court erred in excluding testimony tending tó* prove that such was the case.

For these reasons the judgment should be reversed and a new trial ordered, costs to abide the event.

Mayham, P. J., and Putnam, J., concur.


text:
    John E. Harrington, App’lt, v. The Franklin Fire Insurance Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Insurance (fire)—Waiver of conditions.
    After a conveyance of property insured the owner notified the agent of the company,who thereafter renewed the policy, and informed the mortgagee that it was all right. After the fire and after proofs of lo s were furnished, the company called for additional proofs, without mentioning any claim to a forfeiture. Held, that this constituted a waiver of a cause of forfeiture on the ground of change of title.
    Appeal from judgment entered upon a verdict directed by Mr.. Justice Osborn at the circuit
    Action to reform a policy of insurance, and to recover a loss.
    The policy was issued to Timothy Cooney, and bears date April 7, 1871. It was filled out above the signatures of the president. and secretary and countersigned on that date by Hiram Roosa, agent, and it is stated in the policy, above the signature of the officers, that Hiram Roosa was the agent of the company, and that the policy was not valid until countersigned by him.
    The amount of insurance was “$1,600 on his (Cooney’s) two- and-a-half story and basement 22x30 frame and shingle roof building,” and $400 on his furniture, family clothing, etc., and by the terms of the policy the defendant is to be “liable to pay, make good and satisfy unto the said insured, his heirs, executors, administators or assigns, all such damage or loss which shall, or may happen by fire to the property above mentioned.”
    On the first day of November, 1870, the said Timothy Cooney executed to the plaintiff his bond for $1,000, secured by a mortgage upon the premises in question. On the 26th day of September, 1873, Cooney, through Patrick Burns, transferred the premises in question to his wife, not being prohibited by his policy so to do.
    Of this transfer the plaintiff had no knowledge, but Cooney told Roosa, the general agent of the defendant, “ three or four ■days ” after it was made.
    On the 7th day of April, 1874, the general agent, Roosa, with full knowledge of the transfer (having certificates signed in blank by the officers), filled out, countersigned and delivered a renewal ■of the insurance for three years more.
    Subsequently, on the 22d day of April, 1874, Cooney executed "to the plaintiff his bond for $500, secured by a mortgage upon the same premises.
    Immediately thereafter Cooney agreed to have the plaintiff’s mortgage interest protected by the insurance, and went to Roosa, the general agent of the defendant, and told him he “ wanted to give Harrington (the plaintiff) a claim on the policy,” to secure his mortgage interest, and Roosa said he would put it down so; and actually made an entry in the books of the defendant, “ Loss, if any, payable to John E. Harrington, as his interest will appear,” ■and through illness or mistake failed to make any entry thereof on the policy or on the renewal attached to the policy. The date and full particulars of the agreement to protect the«plaintiff’s mortgage interest, and of his (Roosa’s) knowledge of the previous transfer by ■Cooney to his wife, do not appear, because Roosa had died, and the defendant refused to produce- its books upon the trial, but from this refusal it is fair to presume that Roosa had made an entry thereon of the transfer by Cooney to his wife, and of fuller particulars of the agreement to protect the plaintiff’s mortgage interest. Some time after the renewal, Roosa became insane, and his agency and books were transferred by the defendant to William H. Fredenburgh.
    The plaintiff and Cooney then called upon Fredenburgh to see if the plaintiff’s mortgage interest was protected, and after discussing the full particulars thereof, Fredenburgh, as agent of the defendant, assured the plaintiff that the insurance was sufficient to ■protect his mortgage interest, and wrote on the policy and renewal attached thereto, “ This policy is all right. (Signed) William H.

      Fredenburgh,” meaning thereby that it was “ all right ” to protect the plaintiff’s mortgage interest, for that was the whole object and purpose of the interview.
    The building was totally destroyed by fire on the 28th of September, 1876. Cooney assigned his interest in the loss to the plaintiff, and he joined with the plaintiff in the proofs of loss.
    Afterwards the defendant demanded additional proofs of loss,, which were furnished.

      J. E. & L. E. Van Etten (J. E. Van Etten, of counsel), for app’lt; Charles A. Fowler (Everett Fowler, of counsel), for resp’t.
   Herrick, J.

Conditions which enter into the validity of a. contract of insurance at its inception may be waived by agents, and are waived if so intended, although they remain in the policy when delivered. Berry v. Am. Cent. Ins. Co., 132 N. Y., 49— 58; 43 St. Rep., 400. And the rule is now established that a waiver of the forfeiture of a policy, in the absence of any agreement to that effect, results from negotiations or transactions with the insured after knowledge of the forfeiture, by which the insurer recognizes the continued validity of the policy, or does acts based thereon, or requires the insured by virtue thereof to do some act or incur some expense or trouble. Ronald v. Mut. Reserve Fund Life Ass., 132 N. Y., 378 ; 44 St. Rep., 407; Armstrong v. Agricultural Ins. Co., 130 N. Y, 560, 564; 42 St. Rep., 555 ; Pratt v. Dwelling House Mut. Fire Ins. Co., 130 N. Y., 206-19; 41 St. Rep., 303; Roby v. Am. Cent. Ins. Co., 120 N. Y., 510; 31 St. Rep., 560.

The insured notified the agent who issued the policy to him that he had parted with title to the real estate covered by the policy. Subsequent to that notice the company, through the same agent, took the money of the insured and renewed the policy for the term of three years. The plaintiff, who held a mortgage upon the insured property, and to whom the loss, if any, was made payable to the extent of his interest, and to whom the loss was-subsequently assigned, called upon the agent of the company, after the renewal of the policy, and was assured that the policy was all right. After the fire, proofs of loss were furnished and the defendant called for further or additional proofs of loss, without saying anything about a forfeiture. Roby v. Am. Cent. Ins.. Co., 120 N. Y, 510-17; 31 St. Rep., 560.

It seems to me that the alleged causes of forfeiture were waived, and for that reason the judgment should be reversed and. a new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concur.


author: Bischoff, J.|

text:
    Charles T. Ryan, Resp’t, v. Edward P. Jones, App’lt.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    1. Landlord and tenant—Eviction.
    To -justify the tenant’s abandonment of demised premises, it is not enough that at some time during the period of his occupancy he was deprived of their beneficial enjoyment by the wrongful act of the landlord ^

      but it should appear that the deprivation was persisted in and continued at the time of the abandonment.
    2. Same.
    A failure of the landlord of an apartment house to supply sufficient heat during the colder months of winter will not justify an abandonment by the tenant in April following.
    Appeal from, a judgment for plaintiff, rendered in the district court in the city of New York for the ninth judicial district. Action to recover rent, the defenses being an alleged surrender of the lease by mutual agreement and eviction before acerument of the rent.

      Wm. King Hall, for resp’t; Charles H Preyer, for app’lt.
   Bischoff, J.|

The action was to recover rent accruing April 1, 1892, and the defenses were surrender of the lease by mutual agreement and eviction.

The surrender was predicated of an alleged oral agreement with plaintiff’s agent, the making of which the latter, however, emphatically denied. Acceptance of the keys did not, of itself, constitute an acceptance of the surrender of the lease, Thomas v. Nelson,,,69 N. Y., 118; Winant v. Hines, 14 Daly, 187 ; 6 St. Rep., 261; Spies v. Voss, 16 Daly, 171; 30 St. Rep., 548, and a conflict of testimony respecting the alleged agreement does not afford sufficient ground for reversal if it is not apparent that justice has been perverted. Weiss v. Strauss, 39 St. Rep., 78.

On the trial it appeared that the building No. 157 West Nineteenth street, in the city of New York, comprised nine distinct tenements or “flats,” so constructed that each was substantially dependent for comfortable inhabitation during the colder season upon a furnace and boiler situated in the cellar, from which steam heat was distributed by conduits to the several tenements and there diffused by means of “radiators ; ” and that of the furnace and boiler the landlord had reserved exclusive control.

It further appeared that two of these tenements had been demised to defendant under a written lease, dated October 30, 1891, for the term of one year, commencing November 1, 1891, at the monthly rental of ninety dollars, payable in advance; that defendant was restricted in the occupation of the demised premises for the purposes of a private dwelling; and that alterations therein by the tenant were inhibited except with the written consent of the landlord. The lease did not in terms bind the landlord to supply any heat whatever which was required in the use of the tenements.

We may assume for the purposes of this appeal, as contended by the defendant, that the facts stated constituted the adequate supply of heat by the landlord an integral part of his covenant that during the term demised the tenant may quietly have, hold and enjoy the premises ; and that for the breach of it, whether due to acts of omission or of commission, whereby the tenant is substantially deprived of his right to their beneficial enjoyment, he may abandon the premises and successfully interpose as a defense to a demand for subsequently accruing rent that he was evicted by the landlord. West Side Savgs. Bk. v. Newton, 76 N. Y., 616; Denison v. Ford, 7 Daly, 384; Duff v. Hart, 40 St. Rep., 676; Lawrence v. Mycenian Marble Co., N. Y. Com. Pleas, Geni. Term, Nov., 1892; 48 St. Rep., 719. But we are, notwithstanding, of the opinion that the defense of eviction was not established.

To justify the tenant’s abandonment of the demised premises it is not enough that at some time during the period of his occupancy he was deprived of their beneficial enjoyment by the wrongful act of the landlord, but it should appear that the deprivation was persisted in and continued at the time of the abandonment, Gilhooley v. Washington, 4 N. Y., 217 ; Edgerton v. Page, 20 id., 281; Boreel v. Lawton, 90 id., 293 ; Koehler v. Scheider, 15 Daly, 198 ; 23 St. Rep., 68, and hereof the evidence is deficient.

It was conceded that the landlord did supply heat, and the utmost which may be successfully claimed for the evidence is that it established the fact of the landlord’s neglect or refusal to furnish an adequate supply during the colder season preceding defendant’s removal. Defendant, however, did not quit possession until April 1st, and from the advent and propinquity of seasons of greater clemency respecting the need of heat for .the comfortable inhabitation of the demised premises the trial justice was authorized to find that, at the time of defendant’s alleged eviction, the grounds of former complaint had ceased to be relevant, and that the full enjoyment of the demised premises had then been restored to him.

The exceptions to the rulings on the trial present no error, and the judgment should, therefore, be affirmed, with costs.

Pryor, J., concurs.


author: Bischoff, J

text:
    Lyman G. Bloomingdale et al., App’lts, v. Daniel D. Brinckerhoff, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    Husband and wife—Liability of husband for necessaries supplied to wife.
    Where a husband and wife are living apart, the husband paying a regular allowance to the wife, to render the husband liable for goods furnished to her, it must be shown not only that the articles furnished were necessaries in the ordinary sense, but also that in consequence of the inadequacy of the husband’s provision they were actually required for the wife’s proper support commensurate with his means, her wonted living as his wife and her station in the community.
    Appeal from a judgment for defendant, rendered in the district court in the city of New York for the seventh judicial district.
    Action to recover for necessaries alleged to have been supplied to defendant’s wife upon his credit.

      Samuel D. Levy, for app’lt; Ezekiel Fixman, for resp’t.
   Bischoff, J

Careful scrutiny of the evidence shows that defendant was sought to be held liable in this action upon his wife’s alleged implied authority to pledge her husband’s credit for necessaries supplied to her at her request.

For the defendant, however, it appeared without contradiction that for nearly two years before the alleged necessaries were supplied husband and wife were living in a state of voluntary separation, and that during all this time the husband had regularly paid his wife a weekly allowance of fifty dollars for her separate maintenance and support.

' That, irrespective of whether or not the person who supplies the wife with necessaries had knowledge at the time of the husband’s provision for her support, the presumption of the wife’s authority to pledge her husband’s credit is negatived by the fact of their living apart, and that the tradesman who supplies her under such circumstances upon the credit of her husband and without his express sanction or approval does so at his own peril, are propositions too well established by authority to admit of further dispute. See the rule stated and the cases collated in Hare & Wallace’s notes to Manby v. Scott. Montague v. Benedict, and Seaton v. Benedict, reported in Smith’s Leading Cases, 436, etc.; Tyler on Infancy & Coverture, § 221; Schouler's Husband & Wife, § 117; Baker v. Barney, 8 Johns., 72; Lockwood v. Thomas, 12 id., 248.

It was incumbent upon plaintiffs, therefore, to proceed still further and show that the articles supplied to the wife were not oidy of the kind usually denominated necessaries, because their need is common to all persons, but that in consequence of the inadequacy of the husband’s provision they were actually required for the wife’s proper support, commensurate with his means, her wonted living as his spouse, and her station in the community. Schouler’s Husband & Wife, § 103; Keller v. Phillips, 39 N. Y., 351; Arnold v. Allen, 9 Daly, 198; Blowers v. Sturtevant. 4 Denio, 46. This, however, the evidence wholly failed to establish.

Daubney v. Hughes, 60 N. Y., 187, seemingly cited bv appellant’s counsel in support of his contention of defendant’s liability, has no application to the question here involved. In the case cited the husband was adjudged liable for his wife’s support upon his express promise, notice of the revocation of which was not brought to the promisee’s knowledge.

Judgment affirmed, with costs.

Giegerich, J., concurs.


author: Bischoff, J.

text:
    Joseph H. Dows, Resp’t, v. Edward A. Morrison et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    Pleading&emdash;Amendment.
    A complaint in an action to recover for salary due cannot be amended by adding a cause of action for damages for breach of the contract of employment.
    Appeal from a judgment in favor of the plaintiff, rendered by the district court in the city of Hew York for the ninth judicial district. Action to recover salary due plaintiff as defendant’s employee. -
    Charles H. Preyer, for resp't; Jacob F. Miller, for app'lts.
   Bischoff, J.

On the argument of this appeal we intimated oar opinion that plaintiff’s employment by defendant’s cashier, Osborn, at the salary of ninety dollars per month, was within the latter’s apparent authority and to this, upon attentive examination of the evidence, we adhere.

We also at the time expressed our view that it was error for the trial justice at the trial, and in fact after the trial was begun, to allow an amendment of the complaint by adding thereto a new and inconsistent cause of action, to wit: damages for breach of the contract of employment, and that defendant’s exception to the allowance was well taken; but at the solicitation of respondent’s counsel the question was reserved for further consideration.

Section 2944 of the Code of Civil Procedure, which is the only alleged authoi-ity for the amendment to which we have been referred by counsel, proves to be exclusively applicable to justice’s courts. But assuming it to apply as well to the district courts in the city of New York, neither of the cases to which our attention has been directed sanctions the construction requisite to support the amendment. Nor have we been able to ascertain as the result of our own researches that the section, which is but a reenactment of former provisions affecting justice’s courts, has ever received that construction. Chap. 844, Laws of 1857.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant, unless respondent within five days consents m writing that the judgment be reduced to sixty dollars, the amount of salary due at the time of his discharge, with interest and the costs of the court below, and upon such consent the judgment so reduced is affirmed, without costs.

Pryor, J., concurs.'


text:
    Isaac Cohen, App’lt, v. Moses Salet, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    Conversion—Damages.
    In an action for conversion of the proceeds of goods consigned to defendant for sale, the defendant claimed that the goods were consigned to him by one B., to whom he had remitted the proceeds, less expenses, and a claim he held against B. Held, that the fact of plaintiff’s ownership having been determined, it was error to credit defendant with the amount of the claim against B., on account of the proceeds.
    Appeal by plaintiff from a judgment in his favor, rendered in the district court in the city of New York for the second judicial district.
    Action for conversion of the proceeds of a quantity of clothing alleged to have been consigned to defendant for sale.

      A. Morris, for app’lt; A. & L. Levy, for resp’t
   Bischoff, J.

An examination of the proceedings on the trial reveals the justice of plaintiff’s contention that the amount awarded him in the trial court is inadequate.

Plaintiff sued as the assignee of one Joseph Cohen, to recover the value of three hundred pieces of clothing alleged to have been consigned by the assignor to the defendant for the purposes of sale, and to have been worth sixty-five cents each. Defendant admitted the receipt of three hundred pieces of clothing, of which he alleged two hundred and four were worth forty-five cents each, and the remainder worthless; but be denied that the clothing was the property of plaintiff’s assignor, or consigned to him by the latter; and farther alleged that it was consigned to him for sale by one Benjamin Cohen, the owner, for whose account, it was sold, and the proceeds, after deducting therefrom the commissions and expenses attending the sale, as well as a demand existing in favor of the defendant against Benjamin Cohen, remitted to the latter.

It is apparent that the trial justice credited plaintiff’s claim of ownership, and that being so, it was error to credit the defendant with the amount of his claim against Benjamin Cohen, on account of the proceeds of the sale of the,clothing, which is evident from the fact that the amount awarded plaintiff is but $20.19.

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

Pryor, J., concurs.


author: Giegerich, J.

text:
    Bernard Schwartz, Resp’t, v. Morris Wechler et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    • 1. Associations—Action against individual members.
    An action may be maintained against individual members of an unincorporated association, without first bringing suit against its president or treasurer.
    2. Pleading—Non-joinder of defendants.
    A plea of non-joinder of defendants, without naming the persons who, it is claimed, should be joined, is insufficient.
    S. District courts—Cannot set aside verdict.
    A district court has no power to set aside a verdict of a jury and grant a new trial.
    Appeal by the defendants, Joseph Eichner, Ignatz Bleich and Mandel Friedman, from a judgment entered upon the verdict of a jury in the district court in the city of New York for the fifth judicial district, in favor of the plaintiff.
    The facts are stated in the opinion.

      Sigmund Feuchtwanger, for app’lts; Abraham H. Sarasohn, for resp’t.
   Giegerich, J.

This action was brought against Morris Wechler, Joseph Eichner, Ignatz Bleich and Mandel Freidman for services rendered by the plaintiff and his assignor, as teachers in the school known as the Oestreicher Hungnrische Talmud Torah, at No. 102 Cannon street, in this city; it being claimed by the plaintiff that the school was conducted by a voluntary association bearing said name, and of which the defendants were directors and membei’s. The defendants denied that they individually and for themselves engaged the plaintiff and his assignor, but claimed that they were originally employed bv them, or some of them, and others on behalf of the association, which is not disputed by the plaintiff and his assignor. The defendants also claimed that in or about the month of November, 1891, in consequence of the withdrawal by parents of their children from the school in question the association was unable to pay the teachers any longer, and as an inducement to them to teach it was agreed between the teachers, including the plaintiff and his assignor, on the one hand, and the association on the other, that the former were not to receive any further compensation from the latter for teaching the children, but were to look solely to the scholars of the school for compensation; that the plaintiff and his assignor expressed themselves as satisfied with that arrangement and continued to teach school under it. This was denied by the plaintiff, and the jury credited his version of the case.

The defendants contended upon the trial, and now urge as a ground for the reversal of the judgment, that the action cannot be maintained against the defendants as members of the association because no action has been brought against the president or treasurer thereof. The case of Flagg v. Swift, 25 Hun, 623, is cited in support of the contention. In that case it was decided that an action cannot be maintained against the individual members of an unincorporated association upon a debt due from the association unless an action has first been brought against the president or treasurer thereof as prescribed by § 1919 of the Code of Civil Procedure. This decision is based upon Witherhead v. Allen, 4 Abb. Court of Appeals, 628, which arose under the act of 1849, chap. 258, as amended by the Laws of 1853, chap. 153, § 4. The same provides that after judgment against the joint stock company or association and execution thereon is returned unsatisfied in whole or in part, suits may be brought against any or all of the shareholders or associates, individually, as now provided by law. The remaining provisions have no bearing on the question under consideration, and are, therefore, omitted.

As was well said by Williams, J., in Humbert v. Abeel, 1 Civil Pro., 417, 421, “under those provisions, it could not be.held otherwise than it was held in Witherhead v. Allen; but under the provisions of the Code of Civil Procedure, the rule must be held entirely different.” Section 1923 of the Code prescribes that “ This article (chap. 19, art. 1 title Y.) does not prevent an action from being brought by or against all the members of an association except as prescribed in the last section.” Section 1922 prescribes : “ Where an action has been brought against an officer, or a counterclaim has been made in an action brought^ by an officer, as prescribed in the last three sections, another action, for the same cause shall not be brought against the members of the association, or any of them, until after final judgment in the first action, and the return wffiolly or pai;tlv unsatisfied or unexecuted, of an execution issued thereupon." Mr. Throop in his notes on the new Code (edition 1891, p. 210) says: “ The provisions of this article are permissive and remedial.” Again on the same page he says : “ The prohibitory clause of § 4 of the act of 1849, as amended in 1853, has, therefore, been omitted; and to guard against a possible misconstruction of this article, an express provision, declaring it to be permissive, has been added as § 1923.”

The right to maintain an action against the memoers of an unincorporated association without first obtaining a judgment against the association is, therefore, expressly given by § 1923 of the Code, and it follows that it was not necessary for the plaintiff, as a condition to the maintenance of this action, to first bring suit against the president or treasurer of the association. This conclusion is in accord with the views expressed by the court in Humbert v. Abeel, supra; Hudson v. Spaulding, 6 N. Y. Supp., 877; 25 St. Rep., 256, regarding the light to maintain an action against the members of an unincorporated association. It is manifest that the provisions of the Code above cited were either disregarded or overlooked by the court in Flagg v. Swift, supra.

The appellants contend further that the present action is not maintainable because all the members of the association were not made parties defendant. The record shows that the defendants answered as follows: “ Defendants Bleich and Friedman, nonjoinder defendants, general denial; other defendants plead general denial.” This is clearly insufficient, because the names of the persons who, it is claimed, should have been made additional parties to the action are not stated. Hawks v. Hunger, 2 Hill, 200; Wigand v. Sichel, 3 Keyes, 120; Fowler v. Kennedy, 2 Abb. Pr., 347, 351; Wooster v. Chamberlin, 28 Barb., 602; Maxwell v. Pratt, 24 Hun, 448; Kingsland v. Braisted, 2 Lans., 17 ; Humbert V. Abeel, supra.

Even had the alleged nonjoinder been properly pleaded, the record shows that the defendants did not introduce any testimony in support of the same, and it seems that this defense was entirely abandoned by the defendants upon the trial. Upon the coming in of the verdict, the defendants made a motion to set aside the verdict and for a new trial upon the following grounds, viz.: “ That the verdict is contrary to the evidence, and con-

trary to law and is excessive; that there is no evidence authorizing a judgment for the amount of the verdict, and upon the exceptions taken upon the trial.” The justice, with the consent of the plaintiff’s attorney, reduced the amount of the judgment and denied the motion to set aside the verdict.

In doing so, he among other things said : “ This is one of the cases where, if the power given to courts of record under § 999 of the Code was conferred on this court, I would not hesitate to set aside the verdict, but the limits within which this court can act puts it out of my power in this case to afford the defeated party any relief, and the corrective remedy must be sought, if at all, in the appellate court, where, under the provisions of the Code, matters involved on this motion can be reviewed. If there was absolutely no proof to support the verdict, in other words, if without any evidence to support it a verdict should be rendered, a different conclusion might be reached by me.”

It is insisted that the court below had power to set aside the verdict, but we have not been referred to, nor are we aware of any statutory provision which authorizes the district courts of this city to set aside the verdict of a jury and grant a new trial. The district courts are courts of inferior jurisdiction, and, therefore, cannot go beyond, the authority conferred upon them by statute. They can assume no power by implication, but must keep within the powers expressly given them, and if they go beyond them their acts are void. Bowen’s Treatise, § 650; Barnaman v. Williams, 18 Abb. Pr., 158 ; Hard v. Shipman, 6 Barb., 621. The only statutory provision which we have been able to find relative to the question under consideration is § 1380 of the consolidated act, which provides that judgment must be entered immediately after the rendering of the verdict, Laws 1882, chap. 410, and it would seem from this that the legislature intended to prohibit the justices of these courts from setting aside the verdict of a jury; at all events, it is manifest that the exercise of the power to set aside a verdict is inconsistent with the provisions of the act referred to.

After carefully reading the testimony, we are unable to see on what ground the justice could have granted a new trial, had he the power to do so. The issues to be determined were purely of fact. It has frequently been held in this court that where there is a conflict of evidence the judgment will not be reversed unless the evidence be of such conflicting character as to clearly indicate that there was a mistake on the part of the jury, that they were influenced by bias, passion, prejudice or corruption, or that they had manifestly neglected to deliberate upon the whole testimony, Darrah v. Boys, 16 Daly, 209 ; 32 St. Rep., 297 ; Weiss v. Strauss,. 39 id., 78.

An examination of the evidence in this case does not lead to such a conclusion. The case turned upon the question, whether the plaintiff and his associates continued to teach under the original agreement, whereby they were to be compensated by the association, or whether a new arrangement was made by which the teachers were to look solely to the scholars for compensation. The testimony upon this point is conflicting, and as it was purely a question of fact, which was fairly submitted to the jury, the verdict should not be disturbed merely because, had the court below been on the jury,, it might have reached a different result. The verdict of the jury is sustained by the evidence, and we can find no reason to interfere with their determination of facts.

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

Bischoff, J., concurs.


author: Mayham, P. J.

text:
    Sylvester McChesney, Resp’t, v. The Panama Railroad Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Master and servant—Railroads—Train dispatcher.
    The act of a train dispatcher vested with discretion as to the time and manner of dispatching trains is the act of the company, and not that of a fellow servant, and any negligence of his in the exercise of that discretion must he treated as the negligence of the company.
    Appeal from order setting aside a nonsuit granted at the trial; made upon the minutes of the trial judge. The action was prosecuted to recover for personal injuries suffered by the plaintiff while in the employ of the defendant, alleged to have been caused by its negligence.
    The defense charged that the negligence which caused the injury complained of was that of a co-servant of the plaintiff, for which the defendant was not liable, and upon that question the whole controversy seems to turn.

      Coudert Brothers (F. R. Coudert, of counsel), for app’lt: Parker & Fiero (J. Newton Fiero, of counsel), for resp’t.
   Mayham, P. J.

The plaintiff at the time of the injury complained of was a locomotive engineer in the employ of the defendant, engaged in running an engine on the defendant’s railroad from Aspinwall across the Isthmus of Panama to the City of Panama on the Pacific coast, in which service he had been engaged for several years. The defendant’s railroad is a single track with several intermediate stations between the two termini, with sidings and switches at each intermediate station.

On the day of the injury the plaintiff was running an engine attached to a regular freight train southerly from Aspinwall to Panama, and when at a point near an intermediate station called San Pablo, his engine collided with a locomotive going in an opposite direction, drawing a special train, and the plaintiff sustained an injury for which this suit is brought.

On the trial the plaintiff was nonsuited and the trial judge on a motion for a new trial upon the minutes set aside the nonsuit and ordered a new trial, from which decision and order the defendant appeals.

The case discloses that the plaintiff in running his train was acting under the orders of the train dispatcher of the defendant, and it is not claimed by the defendant that he was guilty of any contributory negligence which resulted in or contributed to his injury.

But it is insisted that the injury resulted from the negligence or mistake of the train dispatcher, or master of trains, or the engineer of engine No. 30, in running a special or irregular passenger train, not in conformity with the rules prescribed by the defendant for running trains, and that they were fellow servants with the plaintiff for whose errors or negligence the defendant was not liable and of which the plaintiff assumed the risk by the nature of his employment.

The determination of this, controverted question must, we think, depend upon the fact of the authority vested in the train master, or train dispatcher, by the defendant.

If the authority conferred upon him by the company under its rules vested in him any discretion as to the time or manner of dispatching trains, and gave him any power to change the time of starting or running trains from those fixed in the time tables by the company, then to the extent of that discretionary authority he was the alter ego of the defendant and his negligence would be the negligence of the company.

We think the discretion was vested, by the defendant’s rules, in the train master, or train dispatcher, and was exercised in this instance, and that his act in that particular was the act of the defendant. Sutherland v. Troy & Boston R. R. Co., 46 Hun, 372; 11 St. Rep., 841; same case on subsequent appeal, 28 St. Rep., 201, affirmed by the court of appeals, 35 id., 853.

This case seems to settle the rule, before that involved in some doubt, that the act of the train dispatcher vested with a discretion is the act of the company and not that of a fellow servant, and that any negligence of his in the exercise of that discretion must be treated as the negligence of the company.

It is quite apparent that the train dispatcher exercised this discretion in ordering train Ho. 9, to which plaintiff’s engine was attached, to “leave Aspinwall and run to Boheo ahead of time.”

It is also apparent that the train dispatcher exercised his discretion in ordering engine Ho. 30, with which plaintiffs engine collided, to “run special, Panama to Aspinwall,” and, while disobedience to these orders would be the negligence of the servant, for which the defendant would not be liable, any defect or imperfection in the orders or in their manner of communication would be the negligence of the defendant, and that question would be one of fact to be submitted to the jury.

We are, therefore, of the opinion that it was error to take the case from the jury, and that the order mide by the trial judge granting a new trial was right and should be affirmed.

Order affirmed, with ten dollars costs and printing disbursements.

Putnam, J., concurs; Herrick, J., not acting.


text:
    In the Matter of the Probate of the Will of Patrick Donlon, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Will—Probate—Opening decree.
    Probate of a will relating solely to real estate cannot be revoked by the surrogate under the provisions of §§ 2647, 2648 of the Code, as those sections only relate to wills of personal property.
    2. Same.
    A service of citations upon a person conceitedly non compos mentis, and for whom no next friend or representative is appointed by the court, is “ sufficient cause,” under § 2481 of the Code, to authorize the surrogate to open the decree.
    Appeal from an order of surrogate,, setting aside the petitioner’s default and opening probate of will.

      Henning & McCall, (J. L. Henning, of counsel), for app’lt; J. W. Houghton, for resp't.
   Mayham, P. J.

The default of the petitioners was excused, .and the decree admitting the will to probate opened solely upon the allegations of the verified petition of the petitioners. The petition shows that the will related to real estate, and it does not appear by the petition of the respondent or by the affidavits used in opposition thereto, that any personal property was bequeathed in the will.

The will was admitted to probate on the 9th day of February, 1891, and the petition of the respondent to set aside the probate was filed January 4, 1892.

While it appears that the petition in this case was filed within one year from the time of the probate of the will, yet, as the will is not one of personal property, the probate could not be revoked by the surrogate under the provisions of §§ 2647 and 2648 of the Code of Civil Procedure, as those sections only relate to wills of personal property.

The power of the surrogate to vacate the decree of probate must, therefore, be found, if it exists in this case, in the provisions of §- 2481 of the Code. Subdivision 6 of that section provides that “ A surrogate in court, or out of court, as the case requires, has power to open, vacate, modify, or set aside, or to enter as of a former time, a decree or order of his court; or to.grant a new trial, or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers conferred by this subdivision must be exercised only in a like case, and in the same manner as a court of record and of general jurisdiction exercises the same powers.”

The same subdivision gives this court on appeal the same powers as the surrogate, and requires that his determination shall be reviewed by this court as if an original application was made in this court.

This brings us to the consideration of the question whether the petition in this case, when read in the light of the evidence offered by the appellant, furnishes sufficient facts to require this court acting upon it to set aside the decree admitting this will to probate.

The petition discloses that all the parties entitled to notice of the propounding of this will for probate were duly cited. That the infants, although not personally in attendance at the time of the probate, were duly represented by guardian ad litem appointed by the surrogate.

But it is also alleged that the widow of the deceased and the mother of these infants was at the time of such service and probate, and still is, a person of unsound mind and incapable of understanding and protecting her rights and that of her infant children.

This allegation does not seem to be in any way controverted by the appellant, and must be regarded as established on this appeal. I am of the opinion that a service of citations upon a person concededly non compos mentis, and for whom no next friend or representative is appointed by the court, would be “ sufficient cause ” under § 2481 of the Code of Civil Procedure to authorize the surrogate to open the decree in this case for the probate of the will in question and to grant a new trial therein.

It is true that the widow of the testator has not, so far as appears in this case, been judicially "declared incompetent, but as that fact now appears that she is incompetent, and as she did not appear at the hearing, it would be the duty of the surrogate to appoint a competent and responsible party to appear for her in such proceeding pursuant to the provisions of § 2530 of the Code of Civil Procedure.

The whole policy of the law is that persons not competent to protect their own interest in legal proceedings prosecuted against them, or affecting their personal or property rights, must have their day in court through a competent representative, and that right has been denied, or at least was not enjoyed, by the widow in this case, and it was to guard against the injustice that might result to an incompetent party that the power was given to the surrogate by § 2481 “ to open, vacate, modify or set aside a decree for sufficient cause.”

We think the order appealed from should be affirmed, with costs.

Putnam and Herrick, JJ., concur.


text:
    Samuel T. Barnes, App’lt, v. Edward Ryan, Resp’t.

      Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Contract—Consideration.
    In consideration of the discontinuance of an action to recover damages for obstructing the flow of water in a ditch, defendant agreed to pay plaintiff a certain sum within thirty days and open the ditch. In an action to recover said sum, Held, that it was not material whether the original claim was well founded, and that the settlement of the action furnished a good consideration for the promise to pay.
    2. Same—Statute of frauds.
    Such promise was not within the statute of frauds.
    Appeal from judgment of special term, affirming the judgment of a justice of the peace in favor of defendant, the county judge being disqualified to act.'

      H. S. Haff (George H. Beckwith, of counsel), for app’lt; W. H. Dunn, for resp’t.
   Mayham, P. J.

Appeal from a judgment entered upon the decision of a judge at special term, on an appeal pending in the Clinton county court from the judgment of a justice of the peace, and certified to the supreme court by the county judge on account of his disability to bear the same.

The action was prosecuted in justice’s court to recover fifty dollars, which the plaintiff alleged that the defendant agreed by paroi to pay him in settlement of a disputed claim made by the plaintiff against the defendant for ■ obstructing the flow of water in a ditch which passed through the adjoining lands of plaintiff and defendant

The complaint alleged the commencement of an action by the plaintiff against the defendant, and that in consideration of the plaintiff’s stopping the action, the defendant agreed to pay him, within thirty days, fifty dollars and open the ditch.

The answer is a denial; that the promise was void for want of consideration, and also under the statute of frauds; also set up the statute of limitations.

The undisputed evidence showed that the plaintiff claimed damages of the defendant for filling up the ditch and threatened litigation, and that the defendant agreed, if plaintiff would not prosecute his pretended claim, he would within thirty days pay him on such doubtful or disputed claim fifty dollars.

Upon these undisputed facts did this promise constitute a valid cause of action? We do not think that the question of the validity of the plaintiff’s claim for damages for the flooding of his land can properly be considered in answering that question.

The real question turns upon the settlement of or discharge by the plaintiff of a pretended claim, which was disputed by the defendant. It is not necessary that the disputed claim should be a valid one, which the plaintiff could enforce by action.

In White v. Hoyt, 73 N. Y., 514, the court say: “It is not necessary to uphold a promise, based upon the surrender or composition of a claim, that it was a valid claim, one that could be enforced by law. A promise made upon the settlement of a dispute and to prevent litigation is made upon a good consideration. The settlement of a doubtful claim will uphold a promise to pay a stipulated sum, or do any other lawful act.”

And the court cites numerous authorities from judicial decisions and elementary writers, to sustain the above proposition. In Stewart v. Ahrenfeldt, 4 Denio, 190, the court say: “The settlement of a suit or the compromise of a doubtful claim is a good consideration for a promise to pay money, and where an action is brought upon such promise it is no answer to show that the first suit could not have been maintained; or that the claim was not a valid one. When the parties meet on equal terms and adjust their differences, both are concluded from further litigation of the matter.”

In Russell v. Coole, 3 Hill, 504, it was held that a note given upon the settlement of a doubtful claim preferred against the maker will be upheld as founded upon sufficient consideration, without regard to the legal validity of the claim.

In such case it matters not on which side the right ultimately turns out to be; the court will not look beyond the compromise-See, also, 28 U. Y., 103; 61 id., 625; 44 Barb., 641; 44 Hun, 349; 8 St. Bep., 841. In the case at bar there was a disputed claim, or controverted claim, made by the plaintiff against the defendant growing out of the alleged damming of the ditch.

It is not material now to inquire whether the claim was, or was not, well founded, or whether, as an original proposition, an action could be maintained upon it. Upon that subject the court cannot now speculate. The undisputed evidence is, that, to settle that dispute, this agreement was made, and that settlement furnished, within the authorities cited, a good consideration for the promise to pay this money.

That promise was not within the condemnation of any of the provisions of the statute of frauds, and the action being founded upon the promise, which grew out of the settlement, and not out of the cause of action, or alleged cause of action, in dispute, which was settled, the statute of limitations had not attached to that promise when the action was commenced.

We are, therefore, of the opinion that a cause of action was made out by the proof, and was not successfully defended.

The judgment of the justice and of the special term must be reversed, with costs.

Putnam and Herrick, JJ., concur.


text:
    In the Matter of the Accounting of Edward J. Maxwell, Assignee.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Assignment foe cbeditobs—Accounting—Sebvices by assignee as ATTORNEY.
    While an assignee for creditors, or other trustee, may employ counsel in the necessary management and defense of the estate, and may be allowed the expense thereby incurred, he cannot for that purpose employ himself either as an individual or firm, and charge such services against the estate.
    2. Same—Consent to allowance.
    The order on the accounting allowed the assignee a certain sum for his services on the accounting, and recited that such allowance was consented to by one of the creditor’s counsel. Held, that the creditor was bound by such consent, and could not thereafter object to the allowance.
    Appeal by Edward J. Maxwell, as assignee of John Eeddish, from a judgment and decree of the Montgomery county circuit, charging said assignee with certain alleged assets for which- he failed to charge himself in his account, and also from a refusal of said court to allow such assignee certain claims made by him for allowances and counsel fees, costs and disbursements, claimed to have been incurred by him in the prosecution of his trust. Also an appeal by the First N ational Bank of Amsterdam from that part of the decree of the court as amended in the same proceeding which allows the assignee $500 for his services on accounting.

      Edward J. Maxwell (R. A. Parmenter, of counsel), for assignee; Westbrook, Borst & Perkins (Z. S. Westbrook, of counsel), for the bank.
   Mayham, P. J.

The principal questions in controversy on the appeal arise out of the decree of the county court on the accounting of the assignee, who failed to charge himself, in the account filed, with certain items of wool and a buggy, embraced in the inventory filed by the assignee.

The inventory price of this wool was $1,101.34 and the inventory price of the buggy was $70.

The account as filed was objected to by the First National Bank of Amsterdam, a creditor of the assignor having an interest in the assigned estate, and the assignee’s account was surcharged by the bank with the amount of these items embraced in the inventory.

The assignee, in his accounts filed, credited himself and charged the assigned estate with certain services, disbursements, and counsel fees, paid for legal services of counsel employed by him and rendered by him and his law partner in various litigations in which he, as assignee, had been involved in the administration of his trust, which were objected to by the First National Bank of Amsterdam; and a referee was appointed by the court to take and state the accounts of the assignee and report to the county court.

The case discloses that hearings were had and proofs taken before the referee upon which he made his report to the county court with the proofs taken by him, and the report, as amended, was by that court in all things confirmed, and the decree from which this appeal is taken was based upon such report and is in all things conformable thereto.

The referee, by his report, charged the assignee with the wool and buggy as charged in the inventory, but deducted from the inventory price of the wool the sum of $348, being the amount of possible loss on the Philadelphia wool.

The referee rejected all of the assignee’s claims for professional services in the various litigations connected with his trust, and also the professional services of the law firm of which he was a member, except a charge of $500 for services in preparing and making his final accounts before the county court, and the assignee excepted to the decision of the referee in rejecting such claim for services, and the contestant, the bank, excepts to the allowance of the $500 on the accounting.

There were some other items of account charged against the assignee to which he excepted, but we think that there was sufficient evidence before the referee to uphold his report in reference to such items, so that the principal question left for consideration on this appeal by the assignee is whether the items of counsel fees and legal services rendered by the assignee and the assignee and his partner, as attorney and counsellor in the various litigations in which he was involved as assignee, were properly rejected by the referee and excluded by the court in making the decree.

The referee does not find the assignee guilty of bad faith in incurring these legal expenses, but assumes that if he acted in good faith he was guilty of grave errors of judgment. The referee, upon the theory that the assignee acted in good faith, allowed him credit for all disbursements in these litigations for which vouchers or satisfactory proofs are furnished, but rejected all charges for professional services performed either by the assignee or the assignee and his partner.

The rule has long been settled, both in England and this country, that while a trustee may for necessary services employ clerks, agents and attorneys in the necessary management of the trust estate, he cannot perform such outside services and be compensated for them out of the trust estate, and this rule seems to be founded upon a sound principle of public policy of removing from the trustees all temptation for involving the trust estate in complication or controversy with the purpose of increasing the trustee’s compensation.

There is great force in the contention of the assignee that some of these services were rendered in successfully defending himself from a proceeding for his removal, instituted and conducted by the bank as a creditor of the assigned estate, which it was the duty of the assignee to resist, and there is little doubt but that if these professional services had been rendered by an attorney employed by the assignee, and not by himself and partner, he could have paid them out of the assigned estate a reasonable compensation which could have been credited to him on his accounts, and the same may be said of some of the other litigations in which he was involved in his efforts to marshal and to protect the assets of the assigned estate.

But he cannot for that purpose employ himself, either as an individual or firm, and charge such services up against the estate. Such authority, if provided for in the assignment, would render it fraudulent and void. Nichols v. McEwen, 17 N. Y., 22. In this case the court say in speaking of the commissions as compensation of an assignee: “ They (commissions) are permitted in defer-

ence only to the analogies of the statutes on the subject of executors, guardians, committees and official assignees. * * * ”

“ But even in those cases no assignee, even if he be a lawyer, is ever allowed his expenses, costs, charges and commissions together with a reasonable counsel fee."

In Campbell v. Woodworth, 24 N. Y., 306, the court say: “the compensation or commission which the law allows is for the labor, time, services and attention of the assignees actually done, spent, given and bestowed in and about the business of the trust created. It is for the performance of these services that the law has fixed a certain rate of compensation which is denominated as commissions, and has adjudged that such rate of compensation is just and reasonable in all cases.”

In the Matter of the Bank of Niagara, 6 Paige, 215, the chancellor uses this language: “The employment of counsel and payment of a proper allowance for such services, when necessary, requires the exercise of sound discretion on the part of the receiver, or the trustee of the fund out of which such services are to be paid.

‘ ‘ It would, therefore, be as unsafe to allow a receiver or trustee to contract with and pay himself for such extra services, as it would be to allow him to become the purchaser of trust property which it is his duty to sell to the best advantage for the benefit of the estate. * * * Ho allowance for extra counsel fees to himself can, therefore, be made to a receiver or other trustee upon the settlement of his accounts.”

These cases were commented on and, approved in Collier v. Munn, 41 N. Y., 143, and the doctrine was again repeated; that an executor or trustee cannot receive from the estate any greater compensation than the statute commissions for his own services, however meritorious or extraordinary they may be.

This case arose when an executor, who was an attorney, at the instance of the co-executor and the legatee and devisee of the real estate solicited him to defend an action of ejectment prosecuted to recover real estate, claimed as a part of the property of the testator, and the co-executors and devisee agreed to pay him for such services, and the court in concluding its opinion in that case uses this language:

“ With the unreasonableness of the resistance of this claim of the appellant, which is for valuable services rendered in good faith, far beyond what his duty as executor required, or with the eminent propriety of payment by the adult legatees for a service from which they have apparently derived so considerable a benefit, we cannot deal.”

Within this rule we are not to speculate whether or not the trust estate was benefited by those professional services, as it would seem that within these decisions we have no duty left except to obey the rule of law to which we have referred

Nor do we see how, upon this appeal, we can charge the expense of the unsuccessful effort of the bank to remove the assignee upon the respondent. The costs of that proceeding ought to have been fixed, as they probably were by the order denying their application for the removal of the assignee, and if not satisfactorily disposed of by that order, it could have been reviewed on an appeal from it.

Many other questions are raised on this appeal, but we see no error against the appellant on this appeal for which this decree can be reversed. The remaining question is as to the appeal taken by the bank from that part of the amended decree allowing the assignee $500 as costs and allowance on his final accounting.

The amended decree recites that that allowance was consented to by one of the counsel for the bank.

Upon the motion for such amendment of the decree, the question as to whether or not such consent was made is controverted by opposing affidavits, and without undertaking to pass upon the weight of evidence before the county judge upon that disputed ■question of fact, we are not inclined to reverse the finding of the learned county judge upon that question.

But it is insisted by the appellant on this motion that if such consent was given it did not bind the bank. We cannot agree with this contention. The court must repose confidence in the authority assumed to be exercised by the attorneys, who are its officers. And when an attorney duly appears in open court or by a proper notice of retainer, in the absence of fraud or collusion, he must be deemed as representing his client, who must be bound by his acts in the regular line of his duty. Palen, as. Guardian v. Starr, 7 Hun, 422-423.

In that case she (defendant) admitted that a summons was duly served upon her, that she employed an attorney to appear for her. “She now denies any specific authority to her attorney to allow •such judgment to be taken against her. But this is of no consequence since the attorney has general powers.”

The county judge having found and recited in the order the consent of the attorney for the bank, under it we think he had authority to" make the allowance.

The decree should be affirmed, with costs, on the assignee’s appeal, and the order amending the decree, from which the First National Bank of Amsterdam appeals, should be affirmed, with ten dollars costs and printing disbursements against said bank. Orders may be entered in accordance with this determination. Putnam and Herrick, JJ., concur.


author: Mayham, P. J. Herrick, J.

text:
    Mahala Getman, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Constitutional law—Laws 1882, chap. 410, § 1103.
    Section 1103 of chapter 410, Laws 1882, giving exclusive jurisdiction of actions against the mayor, etc., of New York to the supreme court of the first district, the common pleas and superior court, while unconstitutional in so far as it restrains the jurisdiction of the supreme court outside of New York city, is valid as a statute for the purpose of making such actions local ones, leaving them legally triable in other counties; subject to the power of the court to change them to the proper county.
    Appeal from order denying a motion to change the place of trial in this action from the county of Saratoga to the city and county of New York. •
    The action was for an alleged injury to the plaintiff by falling on the sidewalk on One Hundred and Sixth street, in the city of New York. Before making the motion the defendant demanded in writing that the place of trial be changed to the city and county of New York, on the ground that that county was the proper place of trial.

      William H. Clark (Terence Farley, of counsel); for app’lt; William P. Butler (E. T. Brackett, of counsel), for resp’t.
   Mayham, P. J.

This motion to change the place of trial was, as appears by the order, denied by the learned justice at special term, not in the exercise of the discretion vested in the special term on motions of this character, but upon the sole ground that § 1103 of chapter 410 of the Laws of 1882, by which actions against the mayor, aldermen and commonalty of the city of New York were made local and triable in the city and county of New York, is unconstitutional.

The only question raised for consideration on this appeal is as to the correctness of that conclusion.

The language employed in the section referred to upon this subject is as follows: “ The supreme court of the first judicial district, the court of common pleas and the superior court shall have exclusive jurisdiction of all actions ot special proceedings wherein the mayor, aldermen and commonalty thereof are made parties defendants.”

The language of this act relates to the jurisdiction of the court, and not to the methods of proceeding in the court after it has acquired jurisdiction.

' The legislative attempt to confer on the courts named in the act exclusive jurisdiction by necessary implication excludes the supreme court in any other part of the state from entertaining jurisdiction of an action against the mayor, aldermen and commonalty of New York, and thus deprives the court having_ general jurisdiction of its exercise of that jurisdiction over a municipality or artificial person within its territorial jurisdiction.

This we have held is a violation of article 6, § 6 of the State constitution, which confers upon the supreme court jurisdiction as wide as the boundaries of the state, and embraces every person, natural or artificial, within its boundaries. Mussen v. Ausable Granite Works, impleaded with the Mayor, Aldermen and Commonalty of New York, 63 Hun, 368; 43 St. Rep., 609.

It is true that this constitutional provision does not prohibit the legislature, in a proper case, from fixing the place of trial of an action, or from declaring what are local and what are transitory actions, and we are left on this motion to determine whether this provision of the statute, while unconstitutional in so far as it restrains the jurisdiction of the court, is not valid as a statute for the purpose of fixing the place of trial of an action against this municipality.

This motion does not proceed upon the theory that the bringing of this action is a nullity because not brought in Hew York county, but rather, treating the action as well brought, seeks to change the place of trial from the county of Saratoga to the county of Hew York because by § 1103 of chapter 410 of the Laws of 1882, Hew York county is the county in which it must be tried.

The question involved is not precisely like the one that was before this court and disposed of in 63 Hun, 368 ; 43 St Rep., 609, supra. In that case the demurrer struck at the very root of the action. It assumed that by the provisions of § 1103 of the statute the jurisdiction of the court was restricted, and that the supreme court of the state was shorn of the power of exercising its jurisdiction over a party within the state limits.

On this motion the jurisdiction of the court of the persons and subject-matter is recognized and conceded; but the place of trial is sought to be regulated by the statute.

This I think may be done, provided this action by reason of its being prosecuted against the municipality in this form is made a local action by this provision of the statute.

While the language of this act is broad enough, if the legislature had the power, to limit the territorial jurisdiction of the supreme court, and to deprive the court outside of the county of Hew York from the exercise of any of its judicial functions in an action against the mayor, aldermen and commonalty of that city, and as we have seen is to that extent unconstitutional and void; yet I am inclined to the opinion that the legislative intent was only to make actions prosecuted against the city in that form local actions, and to make them triable in that county, and that the action, notwithstanding that provision of the statute, might be legally tried in Saratoga county, subject to the power of the court on motion to change it to the proper county under the provisions of § 985 of the Code of Civil Procedure.

That section provides that, “ If the county designated in the complaint as the place of trial is not the proper county, the action may, notwithstanding, be tried therein unless the place of trial is changed to the proper county, upon the demand of the defendant followed by the consent of the plaintiff, or the order of the court.”

It follows, therefore, that the action was properly brought in Saratoga, so far as giving the court jurisdiction of the parties and subject matter; subject to the right of the defendant to have the place of trial changed to the proper county, and that § 1103 of chapter 410 of the Laws of 1882 could not, and does not, divest the court of jurisdiction, but only affects the location of the action as to the place of trial, and this construction was given by this court at general term in the second department to the provisions of § 8 of chapter 853 of Laws of 1868, the provisions of which are substantially like § 1103 now under consideration.

In that case the court changed the place of trial from Kings to Hew York, and in discussing this statute say: “ The intention of the legislature evidently was to require that actions brought against the defendant should be brought in the city and county of Hew York.

“That the legislature has power to prescribe the county in which particular actions shall be brought and tried admits of no dispute."

After this judicial construction of the effect of the provisions of § 8 of chapter 853 of Laws of 1868, the same provision was incorporated in § 1103 of chapter 410 of Laws of 1882, and we think its provisions under similar circumstances should receive a similar construction.

The order of special term should be reversed, with ten dollars costs and printing disbursements.

Putnam, J., concurs.

Herrick, J.

I am not prepared to assent to the proposition that the legislature can compel all classes of action to be brought and tried in a particular county, and thus deprive the supreme court of its power, in furtherance of justice, to change the place of trial from one county to another; that is a power that was possessed by the supreme court at the time of the adoption of the constitution of 1846; a power which was possessed by the king’s bench of England.

Actions relating to real estate have from the beginning been regarded as local actions, and statutes or decisions rendering or holding them triable in the county where the real estate is situated do not affect this question, the supreme court never having had the power to change the place of trial of such an action when it was brought in the county where the real estate was situated; a statute confining the trial of such actions to the county where the property is situated deprives the court of no power it ever possessed.

It seems to me that a construction that holds that § 1103 of chapter 410 of the Laws of 1882 is to be regarded not as limiting the jurisdiction of the court, but simply as making certain actions local, is rather too delicate to be substantial; the result is the same, the court cannot change the place -of trial to any other county.

I see no reason to change the views expressed in Mussen v. Ausable Granite Co., 68 Hun, 367; 43 St. Hep., 609. But it does not, it seems to me, follow that because the law in question is held unconstitutional, that therefore the motion for a change of venue in this action should be denied. The constitutionality of the law is not necessarily involved in the decision of this case. The motion is made upon the grounds that Hew York is the proper county, and for the convenience of witnesses. The cause of action arose in Hew York county, the accident happened there, and while the court has jurisdiction to try it in some other county, yet when a motion is made to change the place of trial to the county where the transaction giving rise to the action took place, and no reasons are given for denying the motion except such as are advanced in this case, I think the motion should be granted, and that the order of the special term should be reversed.