text:
    John O. Heald, Assignee, Resp’t, v. Frank B. Van Siclen, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed May 4, 1891.)

    1. New trial—Surprise—Newly discovered evidence.
    Defendant, claiming to have been surprised by the construction given on the trial to a deposition of a witness, applied for a new trial on the ground that since the trial the witness had made declarations contradicting his deposition. No affidavit of the witness was presented, but the proof consisted solely of the affidavit of defendant, and its statements were contradicted by plaintiff. Held, that a new trial was properly denied.
    2. Sale—Contract.
    Defendant contracted to do certain work for and to sell to one G. certain second-hand plates, and the contract provided that if he failed to perform the work according to the contract in certain particulars he was to return the money paid for the plates and the same were to become his own property. Held, that the sale was complete on the payment of the purchase price, and before he could claim a re-sale to him under the latter clause he was bound to return the purchase price either in cash or by a credit.
    3. Conversion—Partnership.
    G. formed a partnership, and one of his partners testified that the firm took all the assets of the whole business of G. The firm afterwards made a general assignment. Held, that the title to the plates passed to the firm and under its assignment, and the refusal of defendant to deliver them on demand of the assignee constituted a conversion.
    5. Same—Damages.
    The plates in question were second-hand ones, but there was evidence that they had some value. But there was no proof that the plaintiff intended to use them or that any other person needed them. Held, that the jury had a right to infer that they were worth the amount placed upon them in the contract for their sale to G.
    . Appeal from judgment in favor of plaintiff against the defendant Van Siclen, entered upon verdict, and from order denying motion for a new trial on the minutes, and also from order denying motion to set aside the verdict and for a new trial on the ground of mistake and error of fact

      G. A. Clement, for app’lt; Henry P. Starbuck, for resp’t.
   Daly, Ch. J.

This is an appeal from a judgment in favor of the plaintiff against the defendant Van Siclen, entered upon a verdict for $800, and from an order denying a motion made upon the minutes for a new trial. There is also an appeal from an order denying a motion made upon affidavits to set aside the verdict on the ground of surprise, newly discovered evidence and mistake, and that the verdict and judgment are contrary to the actual facts.

The action was brought to recover damages for the conversion by the defendant of certain electrotype plates formerly belonging to G. H. Gardner & Co., the plaintiff’s assignors; and the defence was want of title in the plaintiff, and that question and the question of value were those litigated upon the trial.

It appears that originally G. H. Gardner, who was in the export commission business, employed Van Siclen to prepare an illustrated catalogue of manufactured goods to be distributed in foreign countries. Van Siclen had previously compiled such a catalogue for the firm of R. W. Forbes & Son, and the electrotype plates in question were those used in printing the latter’s catalogue. V an Siclen offered to procure for and sell to Gardner these plates for the sum of $800.

The contract between Gardner and Van Siclen for the preparation of such catalogue and the purchase of said plates was in writing, signed by the parties, ana dated September 1, 1883. It provided as follows: “ Upon the signing of these articles of agreement to pay to the said Frank B. Van Siclen the sum of $800 for the electro-plates of the pages of Messrs. E. W. Forbes & Son’s catalogue, said electro-plates then becoming the sole property of the said Guy H. Gardner; ” and it went on further to provide that if the said Frank B. Van Siclen should fail to deliver to the said Gardner a specified number of bound copies of the catalogue, and certain advertising contracts therefor contemplated by the agreement, within eight months, “then and in that case he is to return to the said Guy H. Gardner the sum of $800 paid to him upon the signing of these articles' of agreement for the electroplates of B. W. Forbes & Son’s catalogue pages, and the said electro-plates are to again become his sole property.” Gardner paid the $800 to Van Siclen for the said plates in September, 1883.

After making the above agreement, Gardner took into partnership the other of the plaintiff’s assignors, and they made with Van Siclen a new agreement in writing, dated March 10, 1884, superseding the previous agreement and providing for the preparation by Van Siclen of a catalogue in five different languages, but containing no provision concerning the said electro-plates; and nothing in writing between the parties concerning such plates was afterwards executed; but Van Siclen testified that after the new contract of March 1, 1884, was made, Gardner made the following arrangement in respect to the plates, namely, that Van Siclen should keep them and would refund the price paid therefor, $800, out of his compensation for the compilation of the new catalogue in five languages.

It was upon this verbal agreement that the defendant relied in disputing the ownership of the said plates by the plaintiff and his assignors. The only denial of this parol contract is found in the evidence of Gardner taken de bene esse by the plaintiff and read upon the trial of the action, Gardner being at that time out of the state. He testifies that he never sold nor in any way conveyed the plates back to Van Siclen and never received any re-imbursement of his payment for said plates, and that he never made more than one contract for the purchase of the plates.

The question as to whether there was such an arrangement was submitted to the jury on this testimony. No objection was made that the evidence of Gardner was an insufficient denial of Van Siclen’s statements. It is now contendéd that the evidence of Van Siclen was undisputed, and that Gardner does not deny the substantial truth of Van Siclen’s testimony, but this objection was not taken at the trial. The court submitted the question as a disputed question of fact upon the evidence and the defendant seems to have conceded that it was.

It is upon this point that the motion for a new trial on the ground of newly discovered evidence, etc., was afterwards made, it being alleged by the defendant that he was surprised at the trial to have the court construe the testimony of Gardner as a denial of his own verbal testimony in regard to this matter, and that after the trial he went to Hew Haven and had an interview with Gardner, and asked whether it was not the fact when the first contract was annulled that he (defendant) was to repay the $800 by having it deducted on a settlement of commissions, or what was to become due under the new contract? and that said Gardner answered “ Yes,” but declined to swear to an affidavit of the fact, promising to write a statement to the plaintiff’s attorney. In reply to this assertion the plaintiff and his attorney swear that they have been informed by Gardner that since the trial he has had no conversation with the defendant inconsistent in any way with his (Gardner’s) testimony herein read upon the trial, and, in particular, did not tell defendant, nor think, that the plates which formed the subject of this action were ever sold or conveyed back to the defendant in any way after the purchase of them by said Gardner.

It appears that when the testimony of Gardner was taken de bene esse the present counsel for Van Siclen attended on behalf of his co-defendant, MacGowan, and he makes an affidavit, saying : “ Deponent did not know what he (Gardner) would swear to, and regarded him as an adverse, unfriendly party in interest, and, as prudent, cross-examining counsel, representing the defendant MacGowan, put only such questions to said Gardner on cross-examination as were safe to put.”

It does not appear why defendant Van Siclen was not represented upon the taking of that deposition. He ought to have been, and might, on cross-examination, have elicited from Gardner either an express denial or express admission concerning the verbal agreement on which he relies. It appears that MacGowan’s counsel refrained from inquiring of Gardner on this point. As plaintiff’s counsel could not know what verbal agreement Van Siclen might swear to, it was not to be expected that-their examination should be more specific than it was. I do not think that there was any intention to surprise the plaintiff on the trial with evidence of this verbal contract, for, if there had been, defendant’s counsel would undoubtedly have been astute enough to have made the point that no express denial of it appeared in Gardner’s testimony; on the contraiy, both parties in perfect good faith .submitted the case, as I think it should have been submitted to the jury, as presenting a conflict of testimony on that point. The evidence given by Gardner that he never sold the plates back to Van Siclen, nor conveyed them to him, and never made any but the one contract for the purchase of the plates, although general, is a complete denial of Van Siclen’s testimony, and required the submission to the jury of the qestion whether the alleged verbal agreement was made. The jury found in favor of the plaintiff upon that issue, and I think they were justified. If such an agree_ ment had been made, there should have been some evidence of a credit by Van Siclen to Gardner & Co. of this sum of $800 upon his claim for moneys under the contract of March 1, 1884, upon which the $800 was, according to Van -Siclen’s testimony, to be allowed ; but, on the contrary, it appears that in the proof of claim against the assigned estate of Gardner & Co. Van Siclen gave no-credit for the price of these plates.

The motion for a new trial was properly denied, in view of the testimony in the case and the affidavits submitted. The proof of Gardner's alleged declarations since the trial, contradicting his deposition de bene esse, depends upon the oath of Van Siclen, the most interested party to the litigation; and in the absence of an affidavit from Gardner, and in view of his having denied those declarations, it would have been manifestly unjust to the plaintiff to order a new trial on an issue already fully and fairly litigated between the parties. The defendant claims another ground for supporting his title to the plates, and that is, that the first written agreement between him and Gardner, by which he agreed to sell the plates to the latter, was an executory or conditional sale, which was never completed; that although the first clause of the contract transfers the title of the plates to Gardner, the latter clause vests the title in Van Siclen again, provided he failed to furnish the specified number of copies of the book and advertising contracts. This position is untenable. The sale was completed by payment of the purchase price by Gardner to Van Siclen, and before he could claim a re-sale to him, under the last clause of the agreement, he was bound to return the purchase price, which he never did, either in cash or by a credit under the alleged verbal agreement; and the jury have found that the latter was never made.

There is no merit in the objection that Gardner & Co. did not become vested with the plates that were part of the property of Gardner under the copartnership agreement. Deggett, one of the firm, testified that the firm took all the assets of the whole business of Mr. Gardner. This is not disputed.

The title to the plates being in the firm and passing under the assignment, the refusal of the defendant to deliver them upon demand of the assignee constituted a conversion.

The only remaining question to be considered in the case is that of damages. It was contended by the defendant that the-only value of the plates was the old metal, for which he sold them, and the jury gave a verdict for the sum of $800, the amount at which defendant sold the plates to Gardner. Much evidence was received as to whether these-plates, from which a great number of pages containing cuts or illustrations of manufactured goods' could be printed either page by page or by using the cuts separately, had a value. There was no proof that the plaintiff intended to use them, or that, any other person needed them. The jury, of course, were bound to reject the conjectures concerning their value, but the evidence in the case sufficiently indicated that these cuts or illustrations, had some value, and it was not necessary to show'that they were required for immediate use. They were second-hand articles when Van Siclen sold them to the plaintiff for $800, he having obtained them for that purpose from Forbes & Co., at an outlay of $285.50, and the jury had a right to infer that, as second-hand plates, they were worth the amount he placed upon them in his transaction with plaintiff’s assignor, Gardner. o

None of the exceptions in the case requires reversal.

The judgment and orders from should be affirmed.

Bischoff and Pryor, JJ., concur.


source: Caselaw Access Project

author: Daly, Ch. J.

license: Public Domain

text:
    Theodore F. Schumann et al., Resp’ts, v. John H. Davis, Ápp’lt.

      (New York Common Pleas, General Term,

      Filed May 4, 1891.)

    1. Attachment—Fraudulent disposition of property.
    A case of presumptive fraudulent disposition of property sufficient to support an attachment is made out by allegations that the defendant’s business was sold out, a few days after purchasing goods of plaintiffs, on an execution in favor of defendant’s wife, who purchased on the sale; and that he remained in charge of the business, store and property, conducting the business the same as before without any visible change of possession.
    2. Same—Presumption of fraud.
    Under such circumstances the presumption is that the sale was made in fraud of creditors, and the presumption applies to sales made by a sheriff under process in favor of bona fide creditors.
    Appeal from an order of the general term of the city court, affirming an order of the special term denying the defendant’s motion to vacate an attachment against his property on the ground that he had assigned, disposed of, or was about to assign, dispose of or secrete property with intent to defraud his creditors.

      Goodrich, Deady & Goodrich, for app’lt; George Hahn, for resp’ts.
   Daly, Ch. J.

The point argued upon this appeal is that material facts contained in the affidavit upon which the judge granted the attachment were stated upon information alleged to be derived from one Gane and that it was not shown that the deposition of Gane could' not be procured, and that the affidavit does not state that the affiant believed the information; also that upon the motion to vacate the attachment plaintiff was permitted to read the deposition of Gane in support of the original affidavits upon which the warrant was granted; and finally, that the matters stated upon information from Gane were insufficient to support the allegation of a removal, concealment or disposition of property with intent to defraud creditors.

All of these objections relate to the grounds of attachment based upon Gane’s statements, viz.: that the defendant secretly removed goods from his store, that the stock was depleted more than the regular demands of business called for, that defendant admitted disposing of goods secretly, that he obtained goods on credit to turn over to his wife, etc., etc. •, but there was other proof in the affidavits as to which those objections do not apply and which was competent and sufficient to support the attachment.

It appears by the affidavit of Schumann, one of the plaintiffs, that the defendant was a merchant tailor doing business at 216-West One Hundred and Twenty-fifth street; that he purchased cloth of the value of $169.25 from the plaintiffs between August. 20, 1890, and September 12, 1890 ; that Schumann having heard on October 9, 189Q, that defendant had been sold out by the sheriff about September 15, 1890, under a judgment and execution in favor of his wife, called upon him at his said store and asked him if this report was true, and defendant said it was ; that. Schumann then asked him if he would pay their account, and defendant said his wife was the owner of- the business; yet defendant was in charge and his wife was not there; his sign hung over and in front of the door with his name thereon, and in all other respects the business was being conducted as usual without any change whatever.

This evidence was sufficient to sustain the charge that the defendant had disposed of his property with intent to defraud his creditors. The defendant being in charge of the business, store- and property after the 'sale to his wife, such sale was presumptively fraudulent as against his creditors, there being no actual and continued change of possession, and such presumption continued until it was made to appear that the sale was made in good faith and without any intent to defraud such creditors. 2 R. S., 136.

The presumption applies to sales of the debtor’s property made by the sheriff under process in favor of bona fide creditors, and to conveyances by the sheriff to purchasers at such sales, where the debtor after the sale and conveyance resumes and continues in possession. Betz v. Conner, 7 Daly, 550.

A case of presumptive fraudulent disposition of property was, therefore, made out by the defendant’s own admissions and. facts within the knowledge of the affiant Schumann in the original affidavits upon which the attachment was granted, and the motion to vacate for insufficiency of those affidavits was properly denied. This disposes of the only question raised by the appellant’s-brief.

The order must be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Pryor, J.

text:
    Amalie Gregory, Resp’t, v. August Fichtner, Ex’r, App’lt.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    1. Conversion—Demand and refusal.
    Plaintiff, claiming to be the owner of certain articles of personal property, demanded them from defendant’s testator, who had possession thereof. The latter “ gave her a push” and said “ Go away from here; whatever I have, I will keep.” Held, that the refusal to deliver under such circumstances furnished prima facie evidence of a conversion.
    2. Same—Limitation.
    If personal property be deposited with a bailee, not to be returned at a fixed time-or upon a fixed contingency, and an alleged conversion thereof is founded on a wrongful detention after demand, the statute of' limitations will run only from the time of such demand.

      3. Same—Proof of value.
    A person not shown to be qualified as an expert is incompetent to express an opinion of the value of articles of jewelry, even though she be the owner thereof. The mere fact of the purchase of the goods is no proof of her acquaintance with the value.
    4. Same—Evidence.
    Certain personal property, inclosed in a box, was handed by plaintiff to an intermediary, with instructions to deliver the same to defendant’s testator. The box was so delivered to said testator, the intermediary being ignorant of its contents. Held, that proof by plaintiff of the specific articles contained in said box, tending to establish delivery, necessarily involved testimony as to a personal transaction with the deceased, and was incompetent under § 829 of the Code.
    Appeal from judgment and order of the general term of the city court, affirming judgment on a verdict and an order denying motion for a new trial
    Action for conversion of several pieces of jewelry by defendant’s testator.

      John A. Straley, for app’lt; John Stacom, for resp’t.
   Pryor, J.

The contention that the proof was insufficient to authorize a verdict for the plaintiff is clearly untenable; and, upon an appeal from a judgment of affirmance by the general term we have no jurisdiction to review the weight of evidence. We are confined, therefore, to the consideration of errors in law apparent, on the record.

As intimated, the court rightly refused to dismiss the complaint, either for intrinsic defect or insufficiency of proof. The complaint alleges property in the plaintiff, possession by the defendant as bailee, his refusal on demand to deliver the jewelry and its value. Nothing more was requisite to a cause of action for conversion.

And of these allegations something more at least than a scintilla of evidence was adduced. The criticism of the appellant is-that the jewelry owned and demanded by the plaintiff was not identified, by proof, as the jewelry in controversy; but, as only one parcel of jewelry is indicated either by the pleadings or the evidence, the inference is irresistible that the jewelry demanded by the plaintiff was the jewelry detained by the defendant

The appellant argues that the demand and refusal in evidence was not sufficient proof of conversion, because it was not apparent that the defendant had either possession of the jewelry or had parted with it to evade delivery of it But, if a defendant has parted with possession, it is not necessary to show that he did so with a fraudulent purpose. The facts here fail to support the proposition on which the appellant relies, namely: “If, at the time the demand is made the goods are in the actual possession of another, and the person of whom the demand is made has not, and never had, any control over them, the fact that he claims the goods, and declares they are his own property, will not amount to a conversion,” Andrews v. Shuttuck, 32 Barb., 896, but the evidence presents rather that other criterion of conversion propounded by Earl, J., in Gillet v. Roberts, 57 N. Y., 28, namely: “ Where mere words are relied upon, they must be uttered under such circumstances, in proximity to the property, as to show a defiance of the owner’s right; a determination to exercise dominion and control over the property, and to exclude the owner from the exercise of his rights.” The uncontradicted evidence is, that the defendant’s testator had possession of the jewelry; and that when the plaintiff demanded it of him “ he gave her a push,” and said, “ go away from here; whatever I have I will keep.” A refusal to deliver under such circumstances, furnishes plenary proof of conversion.

The appellant further contends, that his plea of the statute of limitations was made good by uncontroverted evidence. The proof is that, in 1872, the defendant received the articles of jewelry on deposit for an indefinite period, and that in 1884 or 1885 the return of them was demanded by the plaintiff. The action was commenced in February, 1885. In the absence of evidence of any actual conversion, the refusal to deliver on demand constituted the conversion; and indisputably the statute commenced to run at the time of that refusal. It was so at common law,’ and it is so by the express terms of the Code, which provides that, “ where there was a delivery of personal property, not to be returned at a fixed time or upon a fixed contingency, the time must be computed from the demand.” Sec. 410, subd. 2. “ This section was a codification of the law as it existed at the time of its adoption and created no new rule of law,” King v. Mackellar, 109 N. Y., 215, 224; 14 N. Y. State Rep., 838, and at common law the rule was elementary, that “ where a demand is necessary to perfect a right of action, the statute runs from the demand.” 13 Am. and Eng. Ency. of Law, 721; Payne v. Gardiner, 29 N. Y., 146; Smiley v. Fry, 100 id., 262. The authority relied upon by the appellant, Ganley v.Troy C. N. Bk., 98 N.Y., 487, instead of sustaining, quite clearly discredits his contention. The distinction is, between a deposit for a determinate and a deposit for an indeterminate period; and in the latter case, the Code, § 410, expressly provides, that “the time must be computed from the demand.” Here, the jewelry was not to be returned “ at a fixed time or upon a fixed contingency,” in other words, the deposit was for an indefinite time; and so the statute of limitations is no answer to the action. Fry v. Clow, 50 Hun, 574; 20 N. Y. State Rep., 847.

So far as to allegations of error, which we find to be untenable ; we proceed to indicate others, which we deem to be well supported and of sufficient moment to require a reversal of the judgment

Although the action be against an executor, the plaintiff was not incompetent under § 829 of the Code to testify to the value of the jewelry. Burrows v. Butler, 38 Hun, 157. But, as a condition of the admissibility of her opinion, it was necessary to show that' she was competent to form an opinion; in other words, that she was an expert on the value of jewelry. That a witness cannot testify as an expert unless he be an expert is elementary law and familiar practice. 7 Am. and Eng. Ency. of Law, 514. Yet, here, without any evidence whatever of her qualification to speak as to the value of the jewelry, the plaintiff was allowed to state the value as $1,857. True, she had said that she bought the jewelry, but she did not give the price ; and the mere fact of the purchase was no proof of her acquaintance with the value. On objection to the evidence as incompetent, the learned trial judge answered : “I will allow you (defendant’s counsel) to cross-examine the witness concerning her knowledge as to the value of this jewelry,” implying that the burden is upon a party to prove the incompetency of an adverse witness, rather than upon the party producing him to show his competency.

This error in the admission of evidence was palpably prejudicious to the appellant; for the case discloses no other proof of value to sustain the verdict; and, in his charge, the learned trial judge-assumed that the value was so conclusively shown by the plaintiff’s testimony as not to be a question for the jury. In vain the-respondent cites Jones v. Morgan, 90 N. Y., 10, as establishing the sufficiency of the proof of value in the present case; for there was evidence of the cost price and of deterioration by age and use, while here neither of those facts is exhibited.

Another error in the admission of evidence is equally fatal to the judgment. It was, of course, an indispensable part of the plaintiff’s case to prove what and how much jewelry had been delivered to the defendant; and the fact was shown thus: The plaintiff testified that she put the jewelry in a box; that the jewelry consisted of such and so many pieces; and that she left the box in custody of Mrs. Immer, with directions to deliver it to the defendant’s testator.

Mrs. Immer then testified that she did not know what was in the box, but that she delivered it to the defendant’s testator; and so, and not otherwise, was it proved that the defendant’s testator received the particular pieces, and all the pieces, of the jewelry for the conversion of which the plaintiff has recovered damages. The defendant moved to strike out the plaintiff’s testimony as to what jewelry was delivered to the defendant’s testator, on the ground that it was incompetent under § 829 of the Code; but the motion was denied, with an exception. The defendant then moved the court for a dismissal of the complaint on the ground “ that there is no competent evidence of the delivery of the articles,” which was also denied, with an exception. Finally the defendant requested the court to charge the jury that there is no competent proof of the delivery of the jewelry,” and this, too, was denied, with an exception. Thus the point is duly presented that the plaintiff was incompetent, under § 829 of the Code, to testify to the delivery of the jewelry to the defendant’s 'testator.

Did the plaintiff’s testimony go to prove a personal transaction or communication with the deceased ? Mrs. Immer did not show what jewelry was delivered to the deceased, for she did not know. She proved only that she had delivered the box to him. It was by the evidence of the plaintiff that the jury were informed what jewelry was delivered to the deceased. Strike out the plaintiff’s testimony, and there is no evidence of that delivery. And the transaction was between the plaintiff and the deceased, although an unconscious intermediary was employed, as strictly and essentially as if the box had been sent by the plaintiff to the deceased through the agency of the post office or an express company. Suppose an action for the conversion of articles enclosed in an envelope and transmitted by mail: a third party proves the delivery of the envelope to the deceased, and then the plaintiff offers to testify to the contents of the envelope; would not such evidence be rejected as involving strictly and essentially a personal communication by the plaintiff to the deceased ? Disclosure of the contents of the envelope is not by the plaintiff to the postmaster, but is made, for the first time, to the deceased. So here the contents of the box were not. divulged to Mrs. Immer, and she did not reveal them to the deceased; but knowledge of those contents was, in the most literal sense, imparted to the deceased by the plaintiff. Plainly, it was a personal transaction and communication between the plaintiff and the defendant’s testator.

Statutes are to be construed so as to effectuate the remedy for which they are designed; and the mischief against which § 829 of the Code was directed is, testimony by an interested party of a transaction or communication which the decease of the other party makes incapable of contradiction. The present case involves the mischief; since the plaintiff testified to a transaction and communication as to which only the deceased could speak ; and being within the mischief of the former law, it is within the scope of the remedy which the new law contemplates. “ The statute is a beneficial one, and ought not to be limited or narrowed by construction. Although it must appear that the interview or transaction sought to be excluded was a personal one, it need not have been private or confined to the witness and the deceased. A contrary rule would defeat the reasonable intent of the statute, that a surviving party should be excluded, as one interested, from maintaining by his testimony an issue which in any degree involved a communication or transaction between himself and a deceased person.” Holcomb v. Holcomb, 95 N. Y., 316, 325; Heyne v. Doerfler, 36 N. Y. State Rep., 497.

“Any fact as to which a party is prohibited from testifying by § 829 of the Code, cannot be established inferentially from his testimony.” Johnson v. Spies, 5 Hun, 468. “A fact that cannot be proved by him directly, cannot be established inferentially by his testimony.” Jacques v. Elmore, 7 Hun, 676: Grey v. Grey, 47 N. Y., 554.

We are of opinion that the evidence in discussion was incompetent, and its admission error.

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

Daly, Ch. J., and Allen, J., concur.


author: Bischoff, J.

text:
    Sarah Cain, Guardian, Resp’t, v. Rosa Flood, App’lt.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Summary Proceedings—Forcible entry.
    To authorize a recovery of premises under § 8245 of the Code, it is only necessary for the petitioner to show peaceable and actual possession at the time of defendant’s forcible entry. No time is fixed by law during which such actual and peaceable possession must have endured, and it is no defense that petitioner’s own possession originated in force.
    Appeal from a final order awarding possession to the petitioner.
    Summary proceedings to recover the possession of premises alleged to have been forcibly entered and detained by the defendant.

      James O'Neil, for resp’t; Charles Lee Brooke, for app’lt
   Bischoff, J.

Pursuant to the provisions of § 465 of the Penal Code it is an indictable offense for any person forcibly to enter upon or detain the lands or other possessions of another, and it cannot justify the accused or palliate his offense to urge in his behalf that another person had previously committed a like offense. Yet this was substantially the sole defense in the trial court and the refusal to allow it constituted the only alleged error urged for reversal of the order appealed from. These proceedings were instituted in the ninth district court under the provisions of §§ 2231-2265 of the Code of Civil Procedure regulating the summary recovery of the possession of lands unlawfully entered upon or detained by another. No jury trial was demanded. The facts were substantially conceded, and where there was conflicting evidence it was within the province of the trial justice to find in favor of the petitioner. For the purposes of this appeal therefore we must assume that he did so find. It appears then that on July 28, 1890, the petitioner, acting by her agent and attorney and his assistants, claiming the right of possession to the entire premises known as No. 166 Bast One Hundred and Ninth street in the city of New York, procured access to certain apartments therein, which were in the possession and occupation of the defendant at the time, but from which she was temporarily absent, and took possession thereof; that such access was effected by mean's of a key made to unlock the door leading into the apartments and which was securely locked at the time; that such access was had without the knowledge and consent of the defendant and without actual, physical resistance or opposition of any person; that after entry and possession, petitioner caused the door leading into the apartments to be unhinged and removed, and remained in peaceable and actual possession of the apartments for about three-quarters of an hour, when the defendant appeared upon the scene, forced her entrance into the apartments, and by means of wordy abuse and threats of serious personal violence to the petitioner’s representatives caused them to retire, while she resumed possession, refastened the door to its hinges and proclaimed her intention to do bodily harm to any person attempting to disturb her possession.

These facts were sufficient to entitle petitioner to the order appealed from. We deem it unnecessary for the purposes of this appeal to discuss the question whether or not the means employed by petitioner to secure access and effect her possession constituted force. We assume that it was. Still the fact remained that subsequent to her entry and immediately prior to the entry by the defendant she had been in peaceable and actual possession for three-quarters of an hour, and this was sufficient to entitle her to maintain her possession as against a person seeking to wrest it from her by force and violence. Code of Civil Procedure, § 2245. No time is prescribed by law for which the peaceable and actual possession must have endured to protect her against the forcible entry of others. Neither can it be material that her possession had its origin in force. All she was obliged to show was peaceable and actual possession at the time of defendant’s forcible entry and the manner in which she secured possession in the beginning is not available to the defendant as a justification of her own unlawful act. If the petitioner’s entry was also by force, both acts of violence were alike prohibited and punishable under the provisions of the Penal Code above referred to, and if defendant felt aggrieved at petitioner’s entry, instead of regaining possession by violence and threats of bodily harm, she should have availed herself of the right to recover possession in the summary proceedings for such cases by law made and provided.

The order appealed from must be affirmed, with costs.

Bookstaver, J., concurs.


text:
    Harry C. Goodrich, App’lt, v. Richard A. Dorman, Resp’t.

      (New York, Common Pleas, General Term,

      Filed June 1, 1891.)

    Manufacturing companies—Stockholders—Pleading.
    In an action to enforce the liability of a stockholder of a manufacturing company for a debt of the corporation on the ground that the capital stock had not been paid in full when the indebtedness accrued, where it appears on the trial that the entire capital stock was issued for property, evidence as to the value of such property is admissible under an allegation that the capital stock was not fully paid in; it is not necessary for that purpose that the complaint should contain allegations of fraud.
    Appeal from an order dismissing the complaint and directing exceptions to be heard in the first instance at general term, in an action by a creditor of a corporation against a stockholder to enforce the liability of the latter on the ground that at the time when the plaintiff’s debt was contracted the capital stock was not fully paid in as provided by the general manufacturing act, Laws, of Í848, chap. 40, § 10, and Laws of 1853, chap. 333, § 2.

      A. Loring Cushing, for app’lt; Payson Merrill, for resp’t
   Bischoff, J.

Upon the trial it appeared from a certificate duly made and recorded as required by law that the entire capital stock of the Avery Machine Co. was issued in payment of property. Thereupon plaintiff offered to prove the value of such property, which was objected to by the defendant on the ground that the testimony offered tended to prove a charge of fraud, and was therefore inadmissible for want of appropriate allegations in the complaint.

The complaint alleged that at the time when the indebtedness to plaintiff accrued the capital stock was not fully paid in, and under this plaintiff claimed to be entitled to the admission of the testimony offered.

Defendant’s objection was sustained and plaintiff excepted, and this exception presents the only question which we are called upon to review on this appeal.

The general manufacturing act, Laws of 1848, chap. 40, § 10, provides that the stockholders of a corporation shall remain severally and individually liable for the debts of the corporation created while the capital stock shall not have been fully paid in, to an amount equal to the amount of stock held by them respectively. By Laws of 1853, chap. 333, § 2, the trustees of a corporation are authorized to purchase property for the use of the corporation and to issue stock “ to the amount of the value ” of the property in payment thereof. Stock so issued is declared to be full paid and not liable to further calls, and the holders of such stock are exempted from liability under the provisions of § 10, chap. 40, Laws of 1848. The settled construction of the foregoing statutory provisions, taken together, is that the holder of capital stock of a corporation organized under the general manufacturing act of 1848, issued for property acquired by the corporation, is not exempted from liability under the provisions of § 10 of that act if it appears “ that the stock issued exceeded in amount the value of the property in exchange for which it was issued,” and “that the trustees have deliberately, and with knowledge of the real value of the property, overvalued it and paid in stock for it an amount which they knew was in excess of its actual value.” Douglass v. Ireland, 73 N. Y., 100 ; Boynton v. Hatch, 47 id., 225; Schenck v. Andrews, 57 id., 133; Boynton v. Andrews, 63 id., 93; Lake Superior Co. v. Drexel, 90 id., 87; Blake v. Griswold, 103 id., 429; 4 N. Y. State Rep., 221; Brown v. Smith, 13 Hun, 408 ; affirmed, 80 N. Y., 650; Dodge v. Havemeyer, 4 N. Y. State Rep., 561; The National Tube Works Co. v. Gilfillan, Ct. App., Jan., 1891; 35 N. Y. State Rep., 357.

Evidence of value of the property for which the stock was issued is, therefore, material in the determination of the stockholder’s liability, and its exclusion would constitute error unless justified because of deficiency in pleading. Thus the inquiry is presented as to what facts must necessarily be alleged to entitle plaintiff to the introduction of evidence required to establish a stockholder’s liability under the statutory provisions hereinbefore referred to.

We are of the opinion that an allegation to the effect that the capital stock was not fully paid in at the time when the debt of the corporation to the plaintiff was incurred is sufficient.

' The statute plainly and in unequivocal terms only exempts the stockholders from liability when the property for which the stock is issued is equal in value to the par value of the stock. Hence, if the property is shown to have been of lesser value, the fact remains that the capital stock has not.been fully paid in and the stockholder’s liability thereby becomes fixed. In principle the case at bar does not appear to be distinguishable from The Nat. Union Bk. of Dover v. Reed, 12 N.Y. Supp., 920; 35 N.Y. State Rep., 572, decided by the general term of this court in January last. There it was held that as the statute made “ the intent to hinder, delay and defraud creditors ” the fact for which an assignment for the benefit of creditors can be avoided, the bare allegation in the complaint that the assignment was made with such intent was sufficient, and that it was not only unnecessary but improper to detail the particular circumstances by means of which it was proposed to establish such intent on the trial. The court, in that case, reaffirm an established principle of our system of pleading, that the facts necessary to be pleaded are the ultimate facts upon the proof of which the cause of action depends, and not the aggregation of circumstances, called tíe evidentiary or probative facts, from which the ultimate or issuable facts are to be deduced.

The Code of Civil Procedure, § 481, requiring a “ plain and concise statement of the facts constituting the cause of action,” comprehends only the ultimate facts. “ The dry allegation of the fact, without detailing a variety of circumstances which constitute the evidence of it, will suffice. The object of the pleading is to arrive at a specific issue upon a given and material fact; and this is attained, although the evidence of such fact to be laid before the jury be not specifically developed in the pleadings.” People v. Ryder, 12 N. Y., 437; The National Union Bank of Dover v. Reed, supra; Bliss on Code Pleadings, § 206, etc. In the case now under consideration the defendant’s liability is dependent upon the fact that the capital stock was not fully paid in. The non-payment of the capital stock in full may be shown by the facts that the stock was issued for property, that the par value of the stock was greatly in excess of the value of the property, and that the property given in exchange for the stock was intentionally overvalued. But these are only the evidentiary and probative facts by which the issuable or ultimate fact must be established, and have no place in a properly formed pleading.

Counsel for respondent urges that the intentional overvaluation of property in exchange for stock constitutes fraud on the part of the trustees issuing the stock, and that unless the facts relied upon to prove the fraud are set out in the complaint, evidence of them is not admissible. In support of his claim, counsel refers us to Douglass v. Ireland, 73 N. Y., 100, and it appears from the opinion of Mr. Justice Allen in that case that the complaint was resorted to with a view of ascertaining whether or not the allegations were sufficient to render evidence tending to prove an intentional overvaluation of the property admissible, and it was held that they were.

The question, however, whether or not such evidence would have been admissible under an allegation that the capital stock had not been fully paid in was not presented to the court and did not receive its consideration and the case cannot, therefore, be regarded as committing the court in favor or against the admission of the evidence.

In Boynton v. Hatch, 47 N. Y, 225, the precise question presented upon this appeal was before the court of appeals, but the omission of the defendant to object to the sufficiency of the complaint in the court below rendered the consideration of the question unnecessary. Mr. Justice Allen, writing one of the opinions for affirmance, which was concurred in by his colleagues Church and Rapallo, distinctly puts it upon the ground of such omission, while Mr. Justice Grover, also writing for affirmance, and receiving the concurring vote of his associates Peckham and Folgef, alludes to the question in the following language: “ It is insisted by the counsel for the defendant that, in order to make the defendant liable, it was incumbent upon the plaintiffs to show fraud in the purchase of the property by the corporation of the defendant, and that there being no such charge in the complaint, it was not competent for the plaintiffs to show it upon the trial. It would be a sufficient answer to this position that no such question was raised upon the trial. But the complaint was sufficient It charged in substance that the defendant was the owner of stock of a specific amount. That the capital stock of the corporation had not all been paid in, and a certificate of such payment made and recorded as required by the statute. This was all that was necessary to enable the plaintiffs to prove that such stock had not all been paid in, either in cash, as required by the act of 1848, or in property at its value, as required by the act of 1853.”

The question upon which the court was divided in Boynton v. Hatch was whether, in order to charge the stockholders, it was sufficient to prove mere inadequacy in value of the property taken for the stock, three of the six judges participating in the decision holding that inadequacy alone was sufficient, the others deeming inadequacy insufficient unless shown to have been the result of intentional overvaluation. This question was settled in Douglass v. Ireland, 73 N. Y., 100, where the court unanimously determined that the overvaluation of the property must be shown to have been the result of design. In the case last referred to the court says in substance that the overvaluation must be sufficient to establish legal fraud, but this we understand to have had reference to the intensity of the proof to be required, and not to any question of pléading, and such appears to have been the construction in The National Tule Works Co. v. Gilfillan, 35 N. Y. State Rep., 357.

The exceptions are sustained, and a new trial ordered, with costs to abide the event.

Daly, Ch. J., and Pryor, J., concur.


text:
    Hyman Benedict, Resp’t, v. Joseph Scheider, App’lt.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Master and servant—Negligence.
    Plaintiff was injured while at work for defendant at a stamping machine. In an action for such injury he testified that he was a tinsmith of twenty-six years experience; that he had worked at this machine fora week; that while arranging tins on a die the hammer descended and injured his hand; that his foot was not on the treadle which worked the hammer; that he did not know what caused the hammer to descend, and that he could not say that the machine was in need of repair. Other testimony was given to the effect that the machine was in good order both before and after the accident; that the use of the machine had been explained to plaintiff, and that a former accident at said machine was caused by the negligence of the employe who was injured thereby. Held, that it was error to submit the question of defendant's negligence to the jury, and that the complaint should have been dismissed.
    Appeal from, a judgment and order of the general term of the city court, affirming a judgment of that court in favor of plaintiff and an order denying the defendant's motion for a new trial, in an action to recover damages for injuries alleged to have been sustained by the plaintiff in the use of defective machinery while in the defendant’s employ.

      Adolph L. Sanger, for resp’t; Maurice Rapp, for app’lt.
   Bischoff, J.

The most important of all duties which devolve upon the master by reason of the contractual relation is so to conduct bis affairs to which the employment is incident that the servant is afforded all reasonable assurance of protection to life, health and limb while he is engaged in the performance of his duties; and to that end the master will be held to the exercise of due care and caution in the selection of a place reasonably safe for the servant to work in, Kranz v. L. I. R. R. Co., 123 N. Y., 1; 33 N. Y. State Rep., 46, of competent fellow servants, Mann v. The President of the D. & H. Canal Co., 91 N. Y., 495, and of implements and machinery reasonably safe and fit for the purposes for which they are intended to be used. Painton v. Northern Cent. R. R. Co., 83 N. Y., 7; Murphy v. Boston & Albany R. R. Co., 88 id., 146; Burke v. Witherbee, 98 id., 562; Hickey v. Taaffe, 105 id., 26 ; 6 N. Y. State Rep., 426.

It is likewise the duty of the master to instruct the servant " touching risks in the use of machinery which are not obvious and apparent to any person of ordinary intelligence, and to exercise reasonable care and diligence in maintaining the machinery in proper condition and repair. Wright v. N. Y. C. R. R. Co., 25 N. Y., 562. Having exercised such reasonable care and diligence in the selection of competent fellow servants and suitable machinery, and in maintaining the machinery in safe condition, the master is not thereafter to be regarded as insuring the servant against accidents arising from the negligence of fellow servants or defective machinery, Murphy v. Boston & Albany R. R. Co. 88 N. Y., 146; Lawson’s Rights, Remedies & Practice, vol. 1, § 302, and cases cited, or against dangers which are obvious, Hart v. Naumburg, 123 N. Y., 641; 33 N. Y. State Rep., 607, for these will be deemed to have been accepted by the servant as among the risks of his employment.

The master’s liability to his servant for injuries sustained by the latter rests in the personal negligence of the master, Wright v. N. Y. C. R. R. Co., supra, and to support a charge of negligence in must appear that he failed to exercise reasonable care and diligence in the performance of a duty owing by him to the servant or that he omitted entirely to perform that duty. Warner v. Erie R. R. Co., 39 N. Y., 468.

The mere happening of an accident, though shown to have been caused by the negligence of a fellow servant, or by a defect in the machinery furnished, does not raise a presumption of negligence on the part of the master, and in the absence of all evidence tending to establish the contrary the master will be presumed to have performed the duties incumbent upon him. Cahill v. Hilton, 106 N. Y., 512; 11 N. Y. State Rep., 26. The burden of proof is therefore upon him who asserts the master’s negligence as the foundation of his claim. Peering on Negligence, § 405; Shearman & Redfield on Negligence, § 12; Bailey on Onus Probandi, 216.

Now, considering the facts of the case before us, as they were developed on the trial, with reference to the duties of the defendant towards the plaintiff growing out of the contractual relation between them, and as above defined, do they in any degree tend to establish the defendant’s negligence ?

The evidence for the plaintiff, being the testimony of himself and a witness, Cohen, shows that' prior to his employment by defendant he was a tinsmith of twenty-six year’s experience; that he was received in defendant’s employ in August, 1883, and put to work on a machine for “ stamping ” tins, in the use of which he was first instructed by defendant’s foreman, Hamburger; that he had “ cut out ” several thousand tins and operated the machine for about a week, when the accident resulting in the injuries to his hand occurred, that the accident occurred in the unforeseen descent of a heavy weight, or “ hammer ” as it is called, while he was engaged in arranging tins upon the die immediately under the “hammer;” that attached to the “hammer” was a treadle to be operated by placing a foot thereon, and that by means of this treadle the “ hammer ” was caused to descend ; that he did not know what caused the “ hammer ” to descend when the accident occurred ; that he did not have his foot on the treadle, and could not say that the machine was in need of repair. Plaintiff further says that simultaneously with the happening of the accident to him he had observed that the belt attached to the “ hammer,” and by means of which it was caused to ascend, had become loosened, but how the loosening of the belt could have occasioned the accident we are left to conjecture. Cohen knew of no repairs required upon the machine after the accident. He also stated that about three months before another employe was injured while engaged in the operation of the same machine, but how, whether because of some defect or want of repair, the negligence of the person injured or of a fellow servant or otherwise, does not appear.

Upon this evidence defendant moved to dismiss the complaint, and we think the motion should have been granted. Waiving, however, the validity of defendant’s exception to the denial of the motion, and searching the evidence subsequently introduced, as we may do, Painton v. Northern Cent R. Co., 83 N. Y., 7, to supply the defect in plaintiff’s proof, we fail to find therein anything upon which negligence of the defendant can be predicated, directly or inferentially. The subsequent evidence is made up entirely of the testimony of defendant’s witnesses Cole, Alexander, Saling -and the defendant Cole described the machine as consisting of an anvil fastened to which was a die. Attached to the die were two upright slides in which the “ hammer ” ascended and descended.

The “ hammer ” was raised by means of the belt to which it was attached, and when raised to the proper height was securely held by “ catches ” projecting from the slides which could only be withdrawn by operating the treadle, thus causing the “ hammer ” to fall of its own weight. Cole further says that the machine was inspected and examined daily; that it was in good.order on the day of the accident, and was so immediately after the accident, when it was again operated without the need of repairs. He also explained that the accident to a former employe was the result of the injured person’s own carelessness. Alexander says that on the very day of and before the accident he explained the use of the machine to plaintiff, and that immediately after the accident he operated it and found it in good working order. He further stated that it was not in need of repair either before or after the accident. Saling’s and defendants testimony is mainly corroborative of Cole’s.

What is there in this evidence to charge defendant with negligence ? Does it show or tend to show that defendant did not select competent fellow servants or provide implements and machinery which were reasonably safe considering the exigencies and hazard of the business in which they were required ? Does it show or tend to show that the accident was caused by some hidden danger to which plaintiff’s attention had not been directed, or that it was due to some latent defect or impaired condition of which defendant had knowledge, or of which he could have had knowledge had he exercised reasonable care and diligence ? Does it show or tend to show that the defendant was remiss in his duty to cause frequent inspections of the machinery with a view of remedying discoverable defects and thus insure the safety of his servants? If not, then wherein did defendant’s alleged negligence consist? Candid consideration of the evidence leads irresistibly to the conclusion that the injuries sustained by the plaintiff were either the result of his own carelessness or Unavoidable accident, for neither of which defendant should be held answerable, and that the case is destitute of every element of negligence imputable to the defendant. It was error therefore to submit the question of defendant’s negligence to the jury and to refuse to dismiss the complaint.

The judgment and order appealed from must be reversed and a new trial ordered, with costs to abide the event.

Daly, Ch. J., and Pryor, J., concur.


author: Mayham, J. Landon, J. Learned, P. J., (dissenting.)

text:
    Fred H. Mead, Individually and as Adm’r, App’lt, v. Wilber D. Maben et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Will—Construction—Devise to several with provision that if one
    DIES HIS SHARE SHALL 00 TO THE SURVIVORS.
    The general rule of construction of wills is that in the case of a devise to one or more persons absolutely, followed by a provision that in the event of the death of any of them without issue the same shall go to the survivors’, the death referred to means a death in the lifetime of the testator. This rule applied to a case where a testator directed his executors to convert all his property into money and divide it equally among his seven children, and held not to be changed by the fact that there were special provisions as to the shares of two of the children.
    (Learned, P. J., dissents.)
    This is an appeal from a decree of the surrogate of Greene county, made upon a final judicial settlement of the accounts of Wilber Maben and others as executors of the last will and testament of Buel Maben, deceased.
    The settlement and distribution of the estate of deceased involved a judicial construction by the surrogate of certain provisions of the will of the testator.
    By the decree the surrogate gave a construction to the will and made a distribution of the estate in accordance with such construction, and from that decree the appellant appeals.

      M. B. Mather (E. Countryman, of counsel), for app’lt; Hallock, Jennings & Chase, for Wilber B. Maben et al., resp’ts; James R. Allaben and James B. Olney, for resp’t; John A. Griswold, for adm’rs and ex’rs.

       Reversing 32 N. Y. State Rep., 790.

   Mayham, J.

Buel Maben by his will bequeathed certain specific legacies, therein specified, to two of his children and one of his grandchildren: and by the fourth clause of that instrument gave, devised and bequeathed all the rest, residue and remainder of his estate, real and personal, to his executors therein named to be disposed of by them as thereafter provided in said will.

By the fifth' clause of his will the testator authorized, empowered and directed his executors to sell his real estate or any portion of the same when they or a majority of them should deem it for the best interest of the estate, and execute deeds therefor, and in the same clause provides as follows:

“I direct my said executors to divide my estate (not before devised and bequeathed) into seven equal parts ; each of my children is to have one of said parts; my son, Wilber B., one-seventh, Jonathan A. one-seventh, Alanson J. one-seventh, my daughter Antoinette one-seventh, except that she, Antoinette, shall be charged with $600 heretofore advanced to her, Diademia one-seventh, Fesie A one-seventh, Abigail D. one-seventh, and until my real estate shall be sold the income arising from the said estate shall be paid to the several legatees and devisees hereinbefore named according to their respective or proportional interests thereof as herein provided.”

The sixth clause provides that if Diademia shall die without a will her interest remaining shall be equally divided among his other children.

The eighth clause of the will is the one under which this controversy chiefly arises and is as follows :

“ If any of my children except Diademia shall die without leaving surviving child or children or heirs of the body; then the share or portion of my estate so given such deceased child shall go equally to my other children; but in the manner and subject to the like limitation as the specific bequests to each of them as has been hereinbefore provided and given.”

After the death of the testator his daughter Abigail married Fred H. Mead and soon thereafter died, intestate and without issue, and Fred H. Mead was duly appointed and qualified as administrator of her estate.

Jonathan A. Maben died after the testator, having made a will which has been admitted to probate, also leaving children him surviving; Antionette Teft died after the testator, leaving children her surviving.

On the hearing before the surrogate Fred H. Mead in person ,and as administrator of his deceased wife appeared before the surrogate and claimed the one-seventh of the residuum of the estate as devised and bequeathed by the testator to his wife, now deceased, under the provisions of the will.

This claim was resisted by the executors and other parties interested in the estate, and the surrogate thereupon adjudged and determined and ordered as follows:

“And it is further ordered, adjudged and decreed that by virtue •of the provisions of said will, the said Fred. H. Mead, as administrator of the goods, chattels and credits of Abigail D. Mead, formerly Maben, deceased, takes no interest whatever in said estate; as the said Abigail D. Mead, formerly Maben, died without leaving surviving child or children or heirs of the body.”

To this finding and determination Fred. H. Mead duly excepted.

This ruling, decree and determination, and the exception thereto, bring up the only controverted question in this case.

The question for determination on this appeal is sharply presented ; and is, did the contingency of the death of a legatee or devisee without issue refer to the death before or after the death of the testator ? The answer to this question is decisive of the point raised on this appeal.

If before, then the contention of the appellant is correct and the decree should be reversed; if after the death of the testator, then on the death of the appellant’s intestate without issue the devise and bequest to her failed, and the seventh devised and bequeathed to her fell back into the bulk of the estate to be distributed to the surviving legatees and devisees of the testator, and the appellant, as personal representative or next of kin of his deceased wife, took no interest in the estate.

The rule seems well settled that when a testator provides in his will that if one of his legatees or devisees die without children, the share devised to him shall go to the survivors, without anything in the will to qualify the effect of that language, the death must occur prior to that of the testator before the limitation over can attach, and on the death of the testator the title vests absolutely in the legatee or devisee.

In Vanderzee et al. v. Slingerland et al., 103 N. Y., 53 ; 2 N. Y. State Rep., 732, Andrews, J., says: “This rule applies to both real and personal estate, and, as far as I know, the authorities in this country uniformly sustain the construction that where there is a devise or bequest simpliciter to one person, and in case of his death to another, the words refer to a death in the lifetime of the testator.”

In Quachenbos, Exr, v. Kingsland, 102 N. Y., 128; 1 N. Y. State Rep., 175, the testator after certain specific devises and bequests, gave the residue of his estate to his son Daniel and his heirs; then follow these words: “ But in case my son Daniel shall die without lawful issue, I give and bequeath it to my remaining children, share and share alike.” Daniel survived the testator and it was held that in the absence of other words showing a contrary intent the death referred to was the death of the beneficiary during the life of the testator; and that upon his death Daniel took an absolute estate; and Danforth, J., in delivering the opinion of the court says: “ It (the will) gives the remainder of his estate to his son Daniel and to his heirs. So far absolutely, but as this interest could not vest until his death, the testator to provide against the consequence of a lapse says: " In case my son Daniel shall die without lawful issue I give the estate to my remaining children.’ These words we must hold upon principle and authority relate to the death of the testator and upon that event during the lifetime of Daniel Kingsland, Jr., the latter became vested with the residuary estate, and was entitled to its possession.

“This conclusion is required by the decision of this court in many similar cases.” And the court cites in support of this conclusion, Embury v. Sheldon, 68 N. Y., 227, and Livingston v. Greene, 52 id., 118, to which might be added Moore v. Lyons, 25 Wend., 119 ; Kelly v. Kelly, 61 N. Y., 47, and others.

In the recent case of Austin v. Oakes, 117 N. Y., 595; 28 N. Y. State Rep., 834, the court reasserts the doctrine upon this point of Vanderzee v. Slingerland, supra, so that the recent authoritative declaration and reiteration of this doctrine by the court of appeals make further discussion or citation of authority upon that point unnecessary.

The general doctrine that a devise or bequest to one or more persons absolutely and in case of the death of the devisee or legatee without issue, then such share over to the survivor or survivors, that such words of contingency refer to a death of the devisee or legatee in the lifetime of the testator, is too thoroughly established by recent and controlling authority to be ignored, or unheeded by this court; and must control in this case unless there is a clear intention manifested by the testator in his will to apply that contingency to the death of a beneficiary without issue, to a time after as well as before the death of the testator.

The rule as above stated does not seem to be seriously attacked by the learned counsel for the respondents by a reference by them or either of them to authorities to overthrow the doctrine of the cases to which we have referred; but we are referred to the harshness of the rule as applied to the facts in the case and urged to spell out from the will an intention on the part of the testator to retain this property entirely within the control of his lineal descendants, to the extent that under certain conditions it would be inalienable by his legatees and devisees.

It is undoubtedly the duty of the court to give effect to the in-, tention of the testator.

But it should not be so read as to contradict itself and if capable of two constructions, one consistent and the other inconsistent with the law, the former will be preferred, as it is presumed ' the testator intended to comply with the law. Crozier v. Bray et al., 120 N. Y., 375 ; 31 N. Y. State Rep., 506. In The Matter of the Application of the N. Y, L. & W. R. R. Co., 105 N. Y., 89 ; 6 N. Y. State Rep., 851, it was held that where there is a devise to one person absolutely and in the case of his death to another, the contingency referred to is the death in the lifetime of the testator, but that rule only 'applies where the context of the will is silent and affords no indication of a different intention, and where the devise over is dependent upon death without issue, the- tendency of the court is to lay hold of slight circumstances in the will to vary the construction and give effect to the language in its natural import; but the intention of the testator in that case was clearly indicated in the will by a positive provision that “ the devise over to my husband, sister and brothers, to depend upon the contingency of my daughter Minnie dying without issue.”

The daughter named survived the testatrix and it was held that she took a conditional fee; that her children, should she leave any, would take from her by inheritance, but a conveyance by her in her lifetime would be effectual as against them.

In Beck v. Ennis, 54 Hun, 126; 26 N. Y. State Rep., 749, the -contingency was in express terms made to depend not on the legatee’s death before the testator, but upon the death of a brother -or sister in case the legatee died before them without issue.

It is apparent that that case did not come within the rule to which we have referred, and the court so hold.

In Goerlitz v. Malawista, the contingency suggested was the death or marriage of the wife of testator, and the court held that the contingency related to the death of the life tenant and not to that of the testator.

It is apparent that the event upon which the estate was contingent could not arise during the life of the testator, and was, therefore, upon the face of the will not contingent upon the death of the beneficiary before that of the testator. Goerlitz v. Malawista, 56 Hun, 120; 30 N. Y. State Rep., 126.

In the case at bar, there is no express provision of the will from which it appears that the testator intended that the death referred to, and upon which the estate was contingent, might occur after or before that of the testator.

The fact that the estate devised and bequeathed to Jonathan and Diademia depended upon the other conditions, does not, we think, afford any evidence of the intent of the testator in reference to the share of Abigail to take her share out of the operation of the general rule of law applicable to devises and bequests of that character.

We think the learned surrogate erred in ruling and holding in effect that the death of Abigail without issue after the death of the testator carried her one-seventh of the estate back into the bulk of the estate, to be distributed to the surviving legatees and devisees.

As the question as to what interests the appellant took of her share as her personal representative and husband has not been raised on this appeal, we do not feel called upon to consider that question.

Nor do we see that the point raised by the counsel for the special guardian of Tillie and Frank Maben was raised before the surrogate.

If the return is defective, we do not see how this court can furnish relief. It should, we think, be first sought before the surrogate.

The decree must be reversed, and the case remitted to the surrogate for a new trial.

Landon, J.

The general rule is that in case of a devise or bequest to one or more persons absolutely, followed by a provision that in the event of the death of any one of them without issue the same shall go to the survivors, the death referred to means a death in the lifetime of the testator. A death subsequent to that of the testator will not be inferred unless the language or terms of the will express or suggest it It is not necessary to repeat the authorities cited by my brother Mayham.

The question here presented is whether the language or terms of the will suggest that the testator by the eighth paragraph of his will intended to make an exception to the general rule. A careful examination of the entire will leads me to conclude that he did not.

By the first, second and third paragraphs of the will the testator made absolute bequests of his household furniture, a musical instrument, and also two pecuniary legacies. By the fourth paragraph he devised and bequeathed the rest and residue of his estate to his executors, to be disposed of by them as afterwards provided.

By the fifth paragraph his executors were directed to convert his real estate into personal, and to divide the whole residue of his estate into seven equal parts, and the testator gave one of such parts to each one of his seven children, and directed his executors to pay to each of his children one-seventh of the income accruing up to the time of the conversion of the real estate. Thus his whole estate was absolutely disposed of. Then follow four further paragraphs as follows: “ Sixth. If my said daughter Diademia shall die without leaving her will all the share and interest remaining hereby given to her shall be equally divided among my other children.”

“ Seventh. If my son Jonathan shall die without having left his will, then I direct my executors, if they shall deem it proper and expedient, that they may give to any child or children of my son Jonathan the whole or any part of the share remaining herein given him; otherwise such remaining share or interest shall be equally divided between my other children.

Eighth. If any of my children, except Diademia, shall die without leaving surviving child or children, or heirs of the body, then the share or portion of my estate so given to such deceased child shall go equally to my other children, but in the manner and subject to the like limitations as the specific bequests to each of them as has been hereinbefore provided and given.

“Ninth. Any legatee or devisee who shall cause any trouble in law by contesting my will or any portion thereof, or the husband" or wife of any of my children who shall make any claim against my estate, unless a written obligation with my signature thereto, the share or portion of said legatee or devisee who shall contest my will, or the child whose husband or wife shall make charge or claim except as herein provided, shall receive no portion of my estate, but the share or portion of such shall be equally divided between those agreeable to and who acquiesce in this my will in the manner of each original respective bequest.”

It will be seen that the sixth and seventh paragraphs provide for the contingency of Diademia and Jonathan dying without leaving a will, and that the eighth paragraph provides for the contingency of any of his children except Diademia dying without leaving issue. For reasons which in the testator’s mind were applicable to Diademia and Jonathan, he made the peculiar provisions of the sixth and seventh paragraphs. He did not make any such provisions with respect to his other children. The circumstances detailed in the case indicate why the testator thought proper to try to dispose of whatever unspent part of the bequest to them they themselves should not by will or otherwise dispose of. Plainly, the death specified in the sixth and seventh paragraphs means a death subsequent to that of the testator. The fact that no such exceptional provisions were made with respect to the whole or the remaining part of the bequests given to the other children is satisfactory evidence that the testator limited his exceptions to those to whom he applied them, namely, to Diademia and Jonathan.

The eighth paragraph expresses a different contingency, namely, death “ without child or children or heirs of the body.” The contingency being different, and the testator refusing to suggest in this paragraph, as he had done in the sixth and seventh paragraphs, that the death he meant was death subsequent to his own, the general rule of construction applies and refers the death here spoken of to death in his own lifetime. Other considerations support this construction.

The will converts the real into personal property and bestows it as personal. The executors are not directed to hold it during the lifetime of the legatees. The testator left his executors at liberty to deliver to each legatee the greater part of his or her share in money.

The futility of delivering cash to his legatee, and then trying to tie it up by a sort of entail, we learn -from the sixth and seventh paragraphs of his will was present to the testator’s mind. Peculiar circumstances, applicable alone to Diademia and Jonathan, lead him to make provisions in their case to meet a possible contingency, which he probably felt would not occur in the case of any of the other children, or if it should occur would not require his control, and therefore he attempted no like ulterior disposition in their cases. If he intended to put any restrictions upon the .shares of his other children after they received them, why did he not state them ? To name the second object of his bounty in case death prevents the first named from receiving it, is an obvious caution; but to bestow it absolutely in the first instance upon the first named, and then to cut it down so that the second named shall finally receive it, requires a clear indication of such intention. We do not perceive that the testator anywhere expressed or suggested any such intention.

The seventh paragraph shows that the testator contemplated the probability that his son Jonathan would survive him and take his share; the eighth paragraph shows that the testator also contemplated the possibility that Jonathan might die without issue in the testator’s lifetime. Hence the two alternative ulterior dispositions in his case depended upon one or the other contingency.

The exception of Diademia from the first clause of the eighth paragraph is due, I think, to the testator’s tenderness and delicacy of feeling. She was forty years of age, had never married, and had always resided with her parents. The testator distinguished her by the gift of additional bequests. He shrunk from contemplating her death as possible prior to his own, and from reminding her of her single and childless state. He could speak in the sixth paragraph of her remote death, as a natural event, but •could not speak of it in the eighth paragraph as he spoke of it in respect of his other children, without doing violence to his feelings and sense of propriety.

The final clause of the eighth paragraph introduces no new rule. Thus if Abigail had died in the testator’s lifetime, the surviving children would have taken one-sixth part upon the same terms as they now take one-seventh part. This clause preserves, as to each legatee, the same rule as to the addition to his or her one-seventh part as exists with respect to the one-seventh. It does not .attempt to bestow or impose upon Alanson, Antoinette or Abigail any of the special and peculiar privileges or conditions bestowed or imposed upon Diademia or Jonathan. The same may be said •of the final clause of the ninth paragraph.

I concur in reversing the decree.

Learned, P. J., (dissenting.)

The rule of construction is clearly stated in Britton v. Thornton, 112 U. S., 526. “ When a devise is made to one person in fee and, ' in case of death,’ to another in fee, the absurdity of speaking of the one event which is sure to occur to all living as uncertain and contingent has led the courts to interpret the devise over as referring only to death in the testator’s lifetime. But when the death of the first taker is coupled with other circumstances, which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death under the circumstances indicated, at any time, whether before or after the death of the testator.”

And it is well said that this is “ the ordinary and literal meaning of the words.” Ro one would probably have any doubt as to what the testator intended. And when he declares that, in the event of one child dying without leaving issue surviving, he wishes-his property to go to another child, it is difficult to believe that he referred only to a death preceding his own. Testators expect, that their children will survive them, and they make their wills accordingly.

In O'Mahoney v. Burdett, L. R, 7 Eng. & Irish App., 388, this subject was very carefully considered in opinions by Lords-Cairns, Hatherley and Selborne. They hold that a bequest to A. and if she shall die unmarried or without children to B., is an absolute gift to A., defeasible by an executory gift over in the event-of A. dying at any time unmarried or without children; that this-construction can be affected only by a context which renders a different meaning necessary. This is the doctrine of 2 Jarman on. Wills, m. p. 688.

This rule is recognized in the opinion in Vanderzee v. Slingerland,. 108 N. Y., 54; 2 N. Y. State Rep., 732, citing Jarman, and stating that this rule relates to personal property, but giving a different-rule in the case of real estate.. And the court remarks, in regard to real estate, that the rule “ rests more upon authority and precedent than reason; for it is by no means certain that it was not' the intention of the testator to control and provide for the ulterior-devolution of the title after it had béen enjoyed during life by the primary devisee, in case he then died without issue; and such a construction would, it would seem, give effect more completely to the-language used." That last remark is'forcibly true.

A testator looks forward to time and to events after his death.. He does not usually contemplate events which may be previous thereto.' If he does, he indicates this by specific language.. When he says, “if any of my children shall die,” he speaks of their death after his. If he were thinking of the death of a child prior to his own he would say, “ if any of my children shall die before me not leaving children.” And since the object of courts-should be to carry into effect the intention of the testator, they would do this better by following the literal meaning, rather than artificial rules. The will directs the executor to sell the land. Therefore there is a conversion into personalty, and the rule as to-real estate does not apply. All or nearly all the cases cited in opposition to the decree were cases of devises of real estate.

Nor do I see anything in other parts of this will to take it out. of the rule laid down in Britton v. Thornton and O'Mahoney v. Burdett. On the contrary item 7 provides for the distribution of Jonathan’s share, if he died intestate, among his own children according to the discretion of the executors. If he died before his father then he could not make a wall which would dispose of his share of his father’s estate. Therefore this provision must have reference to Jonathan’s dying intestate after his father’s death. In that case the executors were to distribute in their discretion his share among his children. Hence Jonathan was not to take an absolute title; and his death mentioned in item 7 was a death at any time. There is no reason to suppose that the testator had any different time in his mind when in the item 8th he provided for the contingency (in Jonathan’s case as well as in the case of others), of dying “ without leaving surviving child or children or heirs of the body.” He did not intend in any case that his property should, under the will, pass from his descendants, at least till it had reached his grandchildren.

I think the decree should be affirmed.

Decree reversed and case remitted to surrogate.