author: Hiegerioh, J.

text:
    In the Matter of the Application of Ann McCarren to Vacate an Order Admitting Patrick McKenna to be a Citizen of the United States.

      (New York Common Pleas, Special Term,

      Filed May, 1894.)

    1. Nattjbalization—Vacation.
    An application to set aside an order of naturalization is properly maintainable only by the civil authorities.
    2. Same.
    In case that it can be maintained by a private person,' a delay for the period of twenty-seven years after knowledge of the misrepresentation, upon which it is based, is fatal to the application.
    The nature of the motion and the material facts are sufficiently stated in the opinion.

      George Bliss, for Ann McCarran and Francis McKenna, moving parties; Charles W. Dayton, for heirs of Patrick McKenna; O. C. Clarke, for Caroline Hermanny, oppose^.
   Hiegerioh, J.

This is a motion to set aside an order by this court, of date 25th October, 1866, whereby one Patrick McKenna was admitted to citizenship of the United States. The application is based upon allegations that misrepresentations were made by the appellant, in the course of the proceeding wherein such order was granted, relating to the period of his residence in this country prior to the date when his majority was attained. The motion is made by Ann McCarran, a sister, and joined in by Francis Mc-Kenna, a nephew of said Patrick McKenna, and appears to be made in support of ejectment suits brought in the supreme court by the said Ann McCarran against certain parties claiming through said Patrick McKenna, who died on April 22d, 1891, intestate; the order in question, unless vacated, being expected to materially affect the successful prosecution of such suits. As to litimations, this motion does not fail within the provisions of sections 1282 et seq. of the Code, relative to the setting aside of a judgment for irregularity, in view of the nature of the proceeding attacked. Re City of Buffalo, 78 N. Y. 363; but, apart from the provisions of the Code of Civil Procedure, the application, if based upon an alleged irregularity merely, would come too late at this time. Jackson v. Robins, 16 Johns, 537; Thompson v. Skinner, 7 Id. 556 ; Soulden v. Cook, 4 Wend. 217. It is contended, however, that the motion, being based upon alleged fraud in obtaining the order which is sought to be set aside, is barred by no limitation; but this contention is founded solely upon certain authorities holding that such a proceeding does not fall within the limitation prescribed in the case where irregularity or error of fact is assigned. These authorities do not warrant the assumption that no limitation (running from the date when the facts were discovered) may operate upon a motion of this character, especially in view of | 388 of the Code, which applies as a rule to equitable actions. Butler v. Johnson, 111 N. Y. 204; 19 St. Rep. 85, a motion being governed by the rules of limitation applicable to actions. Depew v. Dewey, 2 T. & C., 515 ; aff’d, 56 N. Y. 657. Whatever express statutory limitation may here apply, however, it is not necessary to determine, for the neglect of the parties to make this motion during the great period which has elapsed is fatal to the application. Corwithe v. Griffing, 21 Barb. 9-14; Strong v. Strong, 3 Redf., 477, 485, 486 and citations; In re Salisbury's estate, 24 St. Rep. 413; 6 N. Y. Supp. 932, 934. Ro explanation is here offered for the negligence of the moving parties in this regard, the affidavits submitted tending to show that the facts constituting the alleged fraud were known to the affiants from the commencement of the period in question.

It is well settled that an order admitting an alien to citizenship, which contains the necessary recitals, is conclusive as to the existence of facts upon which it depends for validity when attacked collaterally, Spratt v. Spratt, 4 Peters, U. S. 406; Mc Carthy v. Marsh, 5 N. Y. 263; Ritchie v. Putnam, 13 Wend. 524; but authorities dealing with such a case in the aspect of a direct attack are not abundant. The case of Commonwealth v. Paper, 1 Brewster, 263, Penn., and the Matter of Shaw, 2 Penn. Dist. Rep. 250, however, are in point, and I am well content to follow them, in the absence of any contrary ruling by the courts of this state so far as research discloses. These cases hold that the civil authorities, and not a private individual, should institute a proceeding of' this character, and, to my mind, the reasoning is founded upon sound principles.

Moreover, in view of the grave importance which attaches to the question now considered, by reason of the property rights involved, the parties to be affected should certainly have recourse to the protection afforded by the settled rules of evidence when litigating this matter, and I am by no means satisfied . that the provisions of § 829 of the Code of Civil Procedure would not oppose the successful prosecution of an action to set aside the order here attacked. This section is not in terms applicable to matter contained in affidavits submitted upon a motion, and, in my opinion, justice would require that tile parties be relegated to a proper action where the question can be determined upon whatever competent evidence may be adduced.

Motion denied, with $10 costs.


source: Caselaw Access Project

author: Pryor, J.

license: Public Domain

text:
    Samson Wallach, Pl'ff, v. Manhattan Railway Company, Def't.

      (New York Common Pleas, Special Term,

      Filed February, 1894.)

    Parties—Elevated railroads.
    Where the abutting premises are conveyed pending an action against an elevated railway for an injunction and damages, the grantees cannot be brought in as parties plaintiff.
    Motion for leave to bring in additional parties plaintiff.

      Philip Carpenter,, for motion; Davies & Rapallo (Edward G James, of counsel), opposed.
   Pryor, J.

In 1889 the plaintiff, Wallach, instituted an action in equity to restrain the maintenance and operation of defendants’ railway upon the street in front of property of which he was then owner, and for damages as incidental relief. In 1891 and 1892 he conveyed the property to.the persons whom lie now asks to have joined with himself as parties plaintiff.- He moves upon the ground that, because of a reservation by him of “all damages and claims for damages” from injury to the property, there is such a community or devolution of interest between himself and his grantees that they should properly be united in the prosecution of the suit. Having parted with the property affected by the nuisance or the trespass, Wallach cannot maintain the action for injunctive relief. Pappenheim v. Met. El. Railway Co., 128 N. Y. 436; 40 St. Rep. 445; Kernochan v. N. Y. El. Railroad Co., 128 N. Y. 559; 41 St. Rep. 110; Foote v. Man. Railroad Co., 58 Hun, 478; 36 St. Rep. 119; Filson v. Crawford, 23 St. Rep. 335; 5 N. Y. Supp. 882. The conception is impossible to a lawyer that a man may uphold an action for injury to property in which he has no interest Attorney-General v. Telegraph Co., 30 Beav. 287 (290). In McGean v. Met. El. Railroad Co., 133 N. Y. 9; 44 St. Rep. 75, the decision proceeded expressly upon the ground that the plaintiff had “ retained the title to the fee of the street.” Failing the claim for equitable relief, the action cannot be supported for incidental relief in damages. McGean v. Met. El. Railroad Co., 133 N. Y. 9, 13 ; 44 St. Rep. 75; Lynch v. Met. El. Railroad Co., 129 N. Y. 274; 41 St. Rep. 541; Dudley v. Congregation, etc., 138 N. Y. 460; 53 St. Rep. 19. Conceding that the present owners may sustain an action for damages or injunctive relief, it is an action upon their several interests, with which Wallach has no concern. But only persons having an interest in the subject of the action may be joined as plaintiffs, Code, § 446 j and it is only one who has an interest in the subject of the action who may be brought in as a party. Code, § 452. Undoubtedly, in case of a transfer of interest, the action may be continued against the transferee (Code, § 756); this, however, is not a motion to substitute such, transferee, but to join him with the original party, which manifestly can be done only when “ the case requires ” it, i. e. when a community of interest subsists between the transferee and such party. Here the interests of Wallach and the persons proposed to be brought in are obviously separate and several; Wallach. suing to recover in respect of injury to his several interest, and the other persons in respect of injury to their several interest Shepard v. Man. Railroad Co., 117 N. Y. 442 ; 27 St. Rep. 705, though not on plaintiff’s brief, I may remark is not an authority contra, for there Frances S. Shepard, as widow and administratrix of the deceased tenant in common, had a community of interest with the other plaintiff in the subject of the action. The case is plainly and essentially distinguishable from the present. Here has been no transfer of interest in the action. Wallach sues for the injury he sustained while the property was his, and the other persons may sue for the injury to the property since they became owners; and these several rights are not coincident. A trespass upon land while the property of A. has no connection with another trespass upon the land when the property of B. A. may assign his right of action to B., and then B. would be a transferee to be substituted under § 756 of the Code. But here Wallach retains his right to damages for the trespass upon him, and the other persons can sue only for injury to the property accruing after their ownership. Pappenheim v. Met. El. Railway Co., 128 N. Y 436; 40 St. Rep. 445. Snodgrass v. Railroad Co., (unreported) appears to be in point for the motion ; but it was a special term decision, and, in my opinion, is supported neither by principle nor authority.

Motion denied, with costs.


author: Hatch, J.

text:
    Eliza Donahue, Pl’ff, v. William Wippert, Def't.

      (Buffalo Superior Court, Special Term,

      Filed March, 1894 )

    1. Trial—Verdict.
    The trial court cannot add to, or subtract from, a verdict in matter of substance.

      2. Appeal—Coring error.
    Error, if any, in permitting questions respecting the arrest and indictment of a witness, for the purpose of affecting his credibility, is cured by showing his conviction upon plea of guilty.
    Motion for a new trial.

      Alfred Osgoodby, for pi’if; Edward L. Jellineh, for def’t.
   Hatch, J.

The action was brought to recover damages for breach of contract. Plaintiff gave evidence .tending to establish that defendant undertook and agreed for a certain price to make over, refashion, and fit for her a sealskin cloak, and that he had failed to fulfill the contract in several particulars, among which was that the coat, when finished and tendered as complete by defendant, would not fit plaintiff, and she was unable to put it on her person, or-wear it. Defendant’s evidence controverted plaintiff’s position in this regard, and this question was submitted to the jury for determination by the court. The defendant also claimed to recover a balance of the contract price which remained unpaid. When the jury retired, they were directed by the court to bring in a sealed verdict, which they clid, saying therein that they found a verdict for the defendant, without specifying in what amount. Thereupon the court directed the jury to retire, and specify whether the verdict was one of no cause of action or for a sum due for repairing the cloak. . The jury retired, and again came into court, and rendered a verdict in these words : “We find a verdict for the defendant for the amount of $75, with interest, and that the defendant will fit the coat properly for the plaintiff.” The court, upon its own motion, directed the verdict to be entered for the defendant for $75, and struck out the remainder as surplus-age. Plaintiff’s counsel excepted to this change of the verdict, and now contends that error was committed by the court therein. I am brought to the conviction that his contention in this regard must be upheld. No doubt exists but that the court can, where the intentions of a jury are clear, and the verdict free from ambiguity, correct it by putting it in form to express clearly its intent and meaning. Such are the cases of Brigg v. Hilton, 99 N. Y. 517; Hodgkins v. Mead, 119 N. Y. 166; 28 St. Rep. 950. But the rule extends no further, and furnishes no authority to the court for adding to or subtracting from it in matter of substance. In the present case the sharply-contested issue was that defendant had not fulfilled his contract, and one of the 'particulars was that the coat would not" fit, and could not be worn by plaintiff. / Before defendant was entitled to recover at all, he was required to fulfill his contract in this respect, the same as in every other. The finding can be construed to mean that -he must comply with his contract, and fit the cloak properly, and it was only upon such contingency that he was entitled to recover anything. When the jury found that defendant must do this thing, it found upon a substantial issue, and by directing that he do this the inference can plainly arise that he had not fulfilled his contract; and, if this be so, then he was not entitled to a verdict for the amount which the court directed entered, as that was conditional upon the fulfillment by him of his contract. Under these circumstances it became the duty of the court to instruct the jury therein, and direct them to retire and make up a proper verdict. Warner v. N. Y. C. Railroad Co., 52 N. Y. 437; Hatch v. Attrill, 118 N. Y. 389 ; 29 St. Rep. 14. This case is quite like the case of Hertzberg v. Murray, 40 N. Y. Super. Ct. 271, where the jury attempted to make an equitable disposition of the rights of the parties, and where the court, as here, attempted to correct the finding. The court held it could not be done, and the same result must be reached here. There has been a mistrial of this case, with the result that it must be retried. Lee v. Mc Laughlin, 4 N. Y. Supp. 742.

It may be" conceded that error was committed in permitting questions respecting the arrest and indictment of Raynor for the purpose of affecting his credibility, but this was followed up by showing conviction upon his plea of guilty, which cured the error, if any was committed, as this was clearly competent. Pen. Code, § 714; People v. Noelke, 94 N. Y 137. The same rule applies in civil as in criminal cases. Van Bokkelen v. Berdell, 130 N. Y. 145; 41 St. Rep. 312. But, for the error already noted, the motion for a new trial is granted, and a new trial ordered ; costs to abide the event.

Motion granted, and new trial ordered ; costs to abide event.


author: Clement, C. J.

text:
    James Heffran, Resp’t, v. Brooklyn Heights Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed April 24, 1894.)

    1. Railroads — Street — Use of tracks
    A street railroad company does not have the exclusive right to the use of its tracks.

      % Same — Negligence.
    It is liable for Injuries, caused by its negligence, to persons on its track.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt; Wm. Van Wyck, for resp.’t
   Clement, C. J.

The plaintiff, on July 31, 1893, was driving a heavily loaded truck along Franklin avenue, in a northerly direction. There were pieces of iron on the load, which projected four or five feet beyond the end of the truck. When Fulton street was reached, he turned into that street in an easterly direction, and, in order to avoid striking a car standing on Franklin avenue,made a long sweep, and in doing so drove the truck on the northerly or down track of Fulton street. When the truck was almost out of the northerly track, the front wheel was struck by an electric car, and, as a result of the collision, the plaintiff was thrown from his seat, which was six feet above the ground, and sustained an injury. There was testimony tending to show that the trolley car was running at a rapid rate of speed. The counsel for the appellant raises the single point that the plaintiff should have been nonsuited on the ground of contributory negligence. The law is well settled that a street-railroad company does not have the exclusive right to the use of its tracks. Its right is paramount, and foot travelers and drivers of vehicles must respect such right Fleckenstein v. D. D., E. B. & B. Railroad Co., 105 N. Y. 665; 8 St. Rep. 32; Adolph v. Central Park, N. & E. R. Railroad Co., 76 N. Y. 530. On the other hand, if a driver, as matter of necessity, must turn his truck on a track, the motorman on an electric car cannot negligently run him down. If, in the present case, the motorman had exercised care, he could easily have avoided the collision. The truck and the car were running in nearly opposite directions, and the truck at the time was nearly off the track. The question of contributory negligence of the plaintiff was clearly one for the jury, and the verdict on that issue is conclusive.

Judgment and order denying new trial affirmed, with costs.


author: Brown, P. J.

text:
    Amelia F. Baker, Resp’t, v. Eliza A. Mott et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Deed—Right on way.
    The rule that, when land is conveyed by a deed describing it as bounded upon a road, the fee of which is vested in the grantor, the grantee acquires a right of way ovpr the road, is not confined to city and village lots.
    2. Same—Annexed to land.
    Where a grantor of a part of a tract reserves to himself and his heirs a right of way over land conveyed, such right of way passes to the grantee of the remaining portion. ,
    3. Same—Recital.
    A recital in a deed by a tenant in common, in making partition, that ,it is on condition that the grantee allows the grantor a right of way over the land conveyed, is not a condition subsequent, but a mere exception or reservation of a right of way.
    Appeal from a judgment in favor of plaintiff.

      Henry Á. Monfort, for app’lts; Frederick Baker, for resp’t.
   Brown, P. J.

This action was brought to establish plaintiff’s right to a way over defendants’ land, and to have certain obstructions placed therein by the defendants removed therefrom. There is no dispute as to the facts. The parties own adjoining lands, lying on the northeasterly side of a highway called the “Sands Point Roadand the lane in dispute extends from such highway, in substantially a direct line, to the shore of Hempstead harbor, and bounds plaintiff’s lands on the southeast The defendants are devisees of Benjamin Mott, from whom plaintiff, by three conveyances, derives title to all her land, except one plot, designated as “Ho. 4.” In two of the deeds from Benjamin Mott, the plaintiff’s lands are described as running to “the northwesterly side of a certain lane * * * running from Hempstead harbor to the highway from Sands Point to Roslynand in the third deed the lane itself is made the southeasterly boundary of the land conveyed. Prior to the execution and delivery of the two deeds first mentioned, and which conveyed to the plaintiff plots 2 and 3, Benjamin Mott delivered to the plaintiff a map of each of said plots, showing the lane thereon, and said deeds were thereafter drawn in accordance with said maps.

We are of the opinion that the rule that when land is conveyed by a deed describing it as bounded upon a road, the fee of which is vested in the grantor, and which is mentioned or referred to in the deed, the grantee acquires a right of way over the road, is applicable to the facts here presented. The appellants contend that this rule is applicable only to city and village lots. It has, however, no such limitation, and the cases cited by the appellants do not so decide. In Smyles v Hastings, 22 N. Y. 217, a plot of about 400 acres was divided into nine lots, and the right of way was claimed to have attached to a lot 57 acres in extent. The easement was claimed to arise from the designation on a map of a contemplated road, and a sale in accordance with, and by reference to, the map. The court held' that a right of way over the road passed as a part of the grant, as an easement appurtenant to the lot conveyed. In neither o£ the other cases, cited is there any -intimation of such a limitation upon the rule as appellants claim. The doctrine has no reference to the dedication of the land as a public highway, but proceeds upon a construction of the deed; and a conveyance by which lands are bounded upon a street laid out or existing, or designated upon a map referred to, is held to constitute, as between grantor and grantee, and as to the lots conveyed, an irrevocable appropriation of the spaces designated as streets or ways appurtenant to the land conveyed. We have in this case the maps showing the road, and the fact that the land conveyed was bounded upon it. The plaintiff thus acquired, as against Benjamin Mott and his successors in title, a right of way over the lane in question. This right clearly extended from the land conveyed to the Sands Point road. Whether it also extended to the harbor, it is not necessary to determine, as the right to pass to the harbor exists under the conveyance of lot No. 4, which will be now referred to.

The land owned by the parties to this action is a part of a farm which prior to 1850 was owned by Henry Mott, who devised the same to his two sons, Adam and Benjamin. In 1860 the sons partitioned the farm between them. Adam and his wife quit-claimed to Benjamin 90 acres, which include the defendants’ lands, and parcels 1, 2, and 8, owned by plaintiff.J Benjamin and his wife quitclaimed the balance of the farm to Adam, including parcel 4, owned by plaintiff. Subsequently, the executors of Adam Mott conveyed parcel 4 to Marianna Wilson, who thereafter conveyed it to the plaintiff. In the deed from Adam to Benjamin Mott, following the habendus clause, is the following provision : “ And upon tfs further condition: That the party of the second part, and his\ ]ieirs and assigns, shall permit and allow the parties of the fi st part, and their heirs to have free access,, with teams, at all tin 5, to and from the waters of Hemp-stead harbor, by the road no-.r and heretofore used, through his land, for the purpose of loading and unloading vessels, and also to reach that portion of the sb,ore contiguous to such waters, belonging to the parties of the first part, for the. purpose of carting to and from the same.” '

The road there referred to Is the lane in question, and it bounds parcel 4 on the southeast. Th^^^ynother condition in this deed, relating to a road through a< but it is not of importance/ this connection, it may be stated that the thirteenth finding of fact, to which appellants excepted, is not essential to the judgment, and is not, therefore, referred to. The appellants claim that the provision of the deed quoted is a condition subsequent. If such was its character, it would not aid them, The estate vested in Benjamm Mott, and the right to re-enter for breach of.the condition would be in Adam’s heirs. Until that right is exercised, the estate would remain in the grantee. The defendants could not avail themselves of a breach of the condition. But the provision is not a condition subsequent. To create such, the intention of the parties to the deed must be clearly expressed, in some words importing that the estate is to depend upon a contingency provided for. Lyon v. Hersey, 103 N. Y. 264; 3 St. Rep. 80. No-such intention appears in the deed iffiquestion. On the contrary, quite the opposite was intended. The two deeds partitioning the farm must be read and construed as if one instrument. The intention was to divide the farm, and give, to each grantee a way out to the public highway, and to the harbor. Access to the highway was to be had over the road reserved, through the wood lot, and to the harbor over the lane in question. The legal effect of the condition was to annex the right of way to the land set off to Adam. It was an exception or reservation in his favor. Mendell v. Delano, 7 Metc. (Mass.) 176; Bowen v. Conner, 6 Cush. 132; Rexford v. Marquis, 7 Lans. 249. The easement was not personal' to him, but was annexed to the estate, and passed to the plaintiff upon her purchase of the land. The conveyances between Adam and Benjamin Mott were absolute, and it was not intended or contemplated that the estate conveyed should be dependent upon any condition whatever.

The right of way to the Sands Point road does not appear to be presented upon the pleadings. The complaint alleges a right of way from plaintiff’s lands to thé harbor, and its obstruction by the defendants; and the relief demanded is that plaintiff be adjudged to own and possess a way over said road to Hempstead harbor and that defendants be,, ordered to remove all obstructions therefrom. The judgment, however, adjudged that a right of way exists from the Sands Point road to th'e harbor; and, as no point is made that this is in excess of the lelief demanded in the com- - plaint, we have considered the question as it is presented in the evidence and findings of the court. The judgment is affirmed, with costs.

All concur.


author: Brown, P. J. Pratt, J. (dissenting).

text:
    Henry H. Fowler et al., Resp’ts, v. Zillah H. Wood et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Limitation—Co-mortgagors.
    Payments on a bond by the mortgagor’s husband does not stop the running of the statute of limitations against the right to foreclose the collateral mortgage.

      person, the absence from tin state of the obligor, who has no interest in the mortgaged premises hut joins in the mortgage, does not stop the running of the statute of limitations against the mortgage.
    Appeal from a judgment in favor of plaintiffs,

      A. J. Adams, for app’lts; Glose & Robertson, forresp’ts.
   Brown, P. J.

The only question necessary to discuss upon this appeal is whether the cause of action upon the mortgage in suit is barred by the statute of limitations. The following facts appear from undisputed evidence, or were found by the trial court: Prior to the 8d day of March, 1856, Squire Wood, the husband of the appellant, was indebted to the respondents in the sum of $5,000. To secure payment of a part of such debt, Cyrus M. Ferris, a brother-in-law of Wood, on the date aforesaid, executed and delivered to the respondents his bond conditioned to pay $750 three years after date, with interest, and, as collateral security for the payment of said bond, the mortgage in suit was executed by the appellant, who was the owner of the mortgaged property. In 1872, Ferris removed from this state to Connecticut, where he died in about the year 1891. Wood paid $250 upon the principal of the bond, mil the interest thereon each year until March, 1890. He died in »' iH. 1892. Wo payment of principal or interest was ever made by the appellant, nor did she ever ■authorize any one to make any payment on her behalf. This action was commenced in 1883. Wood and Ferris joined in the execution of the mortgage, but Mrs. Wood assumed no personal liability for the debt. The cause of action upon both bond and mortgage was complete on March 3, 1859. It was clearly outlawed at the time this action was commenced, unless the facts appearing in evidence bring it within some of the exceptions of the statute of limitations. As to Ferris and the cause of action ■existing against him upon the bond, the operation of the statute was suspended during the peiod subsequent to his removal from ■the state; and the claim is made that the mortgage could be enforced as long as there was a valid, enforceable cause of action •upon the bond. The responlcnts cite two cases to sustain this proposition—Heyer v. Pruyn 7 Paige, 465 ; Insurance Co. v. Covert, 3 Abb. Dec. 350. Slither of them touches the question ho re ¡3resented. In llvycr v P^nyn, there was a recognition of the mortgage as a valid ncumbraace by an owner of the mortgaged property within tvenpj year;', picceding A " -ommencement- of the action, and all thiSwastSecilnddixthgi, ■ • ■ at a subsequent purchaser was bound by such ackinx A vi ■_-,«<■ ■>-$;„ Insurance Co. v. Covert, discussed only the question of piueum^tion of payment. The statute of limitations does not appear to have been pleaded. The court held that the presumption of payment arising after the lapse of twenty years was not available tu the ownér of the equity of redemption to defeat a foreclosure of a mortgage whem the mortgagor had made payments within 20 years of the commencement of the suit, although not the owner Grover says, in the course of his opinion,1) that the mortgage would continue until the debt was in some mWiner discharged, unless released from the lien by some act of thé holder of the mortgage ; but this remark was said in discussing the application to the facts of the rule of presumption of payment, and does not necessarily apply to the statute of limitations. Hughes v. Edwards, 9 Wheat. 489, referred to in the cases cited, was also a case of presumption of payment. These cases sustain the proposition that the mortgage and the cause of action thereon is subject to the dealings and acts of the debtor with reference to the debt, but they are not authority for the broad proposition that the statute of limitations does not run against a cause of action upon a mortgage as long as an action can be main.ained upon the bond' to which it is collateral; and the facts of this case, in my judgment, present a case where the cause of action on the mortgage has been lost while that upon the bond remains. The obligor never, did any act with reference to the debt which took it out of the operation of the statute, and in this respect tie case here presented is different from those cited.

The only payments ever made upon the bond and mortgage were made by Squire Wood. While the debt secured was originally his, he was not liable upon the bond or mortgage. He did not sign the bond, and the land mortgaged belonged to his wife, and the only personal covenant in the mortgage is that of Ferris. No payment was ever made on the bond by Ferris, and none by the appellant. Payments of principal and interest by Wood would not arrest the operation of the statute. The bond matured on March 3, 1859. At that date the cause of action upon both bond and mortgage was complete, and the statute of limitations began to run against it. Nothing appears in the evidence to arrest the operation of the statute as to the cppellant, except the fact that, before the expiration of twenty yea’s, Ferris removed from the state. This act suspended the ranting of the statute as against him. Whether it also suspended he statute as to the cause of action against the ovmer of the mortgaged property is a question that, so far as my examination go<s, has not prior to this case been decided in this state. The answer to the question, I think, is to be found in the statute itseL The statute of limitations does not discharge a debt, but acts upon the, remedy solely, Waltermire v. Westover, 14 N. Y. 16-20; and no exception from its operation can be claimed untos»" i; is expressly mentioned in the statute. Bucklin v Ford 5 Barb. 394 ; Levy v. Newman, 130 N. Y. 11-40 ; 40 St. Rep. 489. “ General words of a statute must receive a general construction, and, ^unless there can be found in the statute itself some ground of restraining it, it cannot be restrained by arbitrary addition or retrenchment.” Buchlin v. Ford,, supra. The Code provides that an action upon a sealed instrument must be commenced within twenty years after the cause of action accrued, but if, after a cause of action has accrued against the person, he departs from the state, etc., the time of his absence is not a part olLthe time limbed for the commencement of the action. This has reference solely to a cause of action against the person who departs from the state. It does not suspend the operation of the statute as to a person liable on the same cause of action who continues to reside within the state, nor was it intended to extend the time generally within which an action might be brought for the debt or the enforcement of a security collateral to the debt. It affects the remedy solely against the person who departs from the state. The appellant and Ferris were both liable to the plaintiffs, but their liability existed upon separate contracts and upon separate instruments. True, no action could be sustained on the mortgage without proof of the existence of the debt, but a sale of the mortgaged property would not have discharged the bond or released Ferris from his liability. In this respect the causes of action were separate and distinct. Ferris’ liability was personal, while the appellant’s -was confined to the land mortgaged. Ferris was not a necessary party to a foreclosure of the mortgage, and the appellant could not be sued personally for the debt. Assuming, however, that the two causes of action were so far connected and dependent that Ferris could, by payment or acknowledgment, have kept alive the debt on the bond, and thus have taken out of the operation of the statute the cause of action on the mortgage, no such case is presented. He never did any act with reference to the debt after the execution and delivery of the bond. His presence in or absence from the state was not material to the foreclosure of the mortgage, and did not affect the cause of action therefor in the slightest degree. Suppose he had been a nonresident at the date of the bond and mortgage, and had never made a payment on it, would the statute never run against thé mortgage ? Ho reason is apparent to my mind why the fact of his removal from the state should suspend the operation of the statute of limitations as to the mortgage. The statute does not in terms declare such to be the effect, and it neither operated as an acknowledgment of the existence of the debt nor affected the remedy on the mortgage. To hold, therefore, that the statute did not run against the cause of action upon the mortgage, is to restrain its operation by an arbi - trary addition to it. The conclusion here reached is supported by decisions in other states. 2 Jones. Mortg. §§ 1210-1212, ami cases cited in the notes. In my opinion, the bar of the statute was complete at the commencement of the action, and the judgment should be reversed, and a new trial granted, costs to abide the event.

Pratt, J. (dissenting).

— The coverture of Zillali Wood at the time she executed the mortgage is no defense. In equity, a married woman is regarded as a feme sole, and has power to dispose of her real estate, and incidentally to charge it for the debts of another. That has always been the rule in New York. The bond was not cut off by the statute of limitations, and consequently the collateral mortgage remained a valid lien.

Judgment affirmed, with costs.


text:
    Abram R. Kelsey, App’lt, v. Staten Island Rapid Transit Railroad Company, Resp't.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894)

    1. Negligence—Railroad crossing.
    A person is not required, as a question of law, to stop his horse or get out of his wagon and go upon the track and look before attempting to cross at a place where it cannot be seen except when one is only a few feet distant.
    2. Same—Contributory.
    Under the facts and circumstances of this case, it was held that the question of contributory negligence should have been submitted to the jury.
    Appeal from a judgment dismissing the complaint.

      Adelbert B. Carroll, for app’lt; Tracy, Boardman & Platt, for resp’t.
   Brown, P. J.

This action was to recover for injuries received in a collision with a train on defendant’s road at a highway crossing. There was evidence which would have permitted, the jury to have found negligence upon the part of the defendant. The complaint was dismissed upon the ground that it also showed contributory negligence upon the plaintiff’s part. The law required of the plaintiff that degree of care and caution which prudent per-, sons of ordinary intelligence usually exercise under like circumstances. Parsons v. N. Y. C. & H. R. Railroad Co., 113 N. Y. 355; 22 St. Rep. 697. And it is only when it clearly appears from the evidence that the party’s own act or neglect contributed to his injury that the case can be withdrawn from the jury. It is not enough to show that it w.as possible for the injured party to discover the train, but the question always is whether the care exercised was that which an ordinarily prudent and intelligent person would exercise under similar - conditions. I think the case should have been submitted to the jury. .The accident occurred on September 12th, between seven and eight o’clock in the morning. The plaintiff was driving a milk wagon having a wooden" top, with sliding side doors, which were open at the time of the accident. He was familiar with the crossing, knew its dangerous character, and knew that a train was due about the time of the ' accident. He was going north towards the track, and the colliding train was approaching from the east. For 1,320 feet east of the crossing the track ran through a cut fifteen feet in depth at the crossing, and running, out until it reached the level ground. The street ran through a cut for 300 feet south of the crossing, and for that distance a view of the track was obstructed to a person approaching from the south until within thirty feet of the track, when he could see 350 feet to the east. The plaintiff testified, as to the accident, as follows: “When I was up the road, where we could see, I looked to see if I could see the train. I could not see it or hear it. I listened, and my horse walked slowly down the hill. I listened all the way down the hill. I did not hear it whistle or ring a bell. When I got down within a few feet of the track, I listened with my head out on the side of the wagon. I did not hear any sound of a train. Then I started my horse right on the track. I was struck by the train. Until the horse’s head was on the crossing, the obstruction was such that no one could see an approaching locomotive at all.”

The seat occupied by the plaintiff was in the rear of the wagon, back of the doors, and the horse was on a walk. It is apparent from the evidence that when the plaintiff reached a point within thirty feet of the track, where from his seat he could look up the track to the east, his horse’s head was within a few feet of the rails. The horse crossed the track, and the engine collided with the wagon. It is entirely credible, therefore, that plaintiff did not see the trajn when he listened with his head out of the side of the wagon at the point thirty feet from the .track, and that, while his horse walked the distance of thirty feet, there was time for. the train to reach the crossing. It cannot be said, as a question of law, that .plaintiff should have stopped his horse, or gotten out of his wagon, and gone upon the track and looked, before attempting to cross. While the vigilance of a traveler must be proportioned to the known danger, it is also limited by usual and .ordinary signals and evidence of danger. Weber v. N. Y. C. & H. R. Railroad Co., 58 N. Y. 454-456. The defendant had created a dangerous crossing, and then omitted all notice of the approach of trains. The plaintiff had listened for the usual signals while he passed slowly over a distance of 300 feet, and heard none. He looked at the first point where he had a view of the track, and saw no danger.. It was possible for him to have discerned the train if he had gotten out of the wagon and gone upon the track, but whether it was negligent for him to omit that precaution was a question for the jury, not for the court. Whether his conduct was that of,an ordinary prudent and cautious man was a fact to be determined by inference drawn from the evidence, and the question was for the jury. The judgment should be reversed, and a new trial granted, with costs to abide the event.

All concur.


author: PUTNAM, J.

text:
    Edward J. McAleer, Resp’t, v. Willis H. Warren et al., App'lts.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Appeal—Harmless error.
    Where the record shows the assignee of a claim as plaintiff in an action in justice’s court, and there was no change of parties, an order of the county court, on appeal, modifying the judgment so as to he in favor of the plaintiff instead of the assignor, does not prejudice the defendant.
    Appeal from an order of the county court amending the justice’s judgment "so as to read in favor of the plaintiff instead of the assignor.

      Emmet N. Akin, for app’lts; James G. Patton, for resp’t.
   PUTNAM, J.

It seems to have been assumed by both parties that the judgment rendered-in this action in the justice’s court was not one in favor of plaintiff, but was in favor of Godson & Son, bis assignors. In this assumption, we think, the parties were mistaken. The trial before the justice was in an action in which Edward J. McAleer was plaintiff, and Willis H. Warren and William H. Buckley were defendants.' The record starts with the title of the cause, and gives a history of the proceedings, and a statement of the testimony given on the trial, and states that the jury rendered a verdict in favor of Godson & Son, instead of plaintiff, and then follows the judgment for $30 damages and $5.25 costs,—in all $35.25. No change of parties was made by the justice. The record discloses no change of the title, of the action. The suit on trial, and tried, was one in which Edward J. McAleer was plaintiff. At the end of the trial, judgment was entered as above. Such judgment must be deemed to have been one in favor of plaintiff, and against defendants. It is difficult to see how it could be regarded as a judgment in favor of Godson & Son, who 'are not parties to the action, had never appeared therein, and were not before the court. Of course, the plaintiff, on the trial, on the reception of the verdict, should have requested the justice to direct the jury to correct the evident mistake they made in their verdict, in rendering it in favor of plaintiff’s assignors, instead of plaintiff. But, failing to do so, the verdict remained in favor of Godson & Son, and the judgment in favor of plaintiff.

The defendants, probably, could have successfully appealed from the judgment on the ground that it was unsupported by any verdict. But they have not taken an appeal from the judgment rendered by the justice, and, such being the case, it should be allowed to stand. It appears, therefore, that it was not1 necessary for the plaintiff to take an appeal. The judgment rendered was one in his favor. Nor was it necessary for the county court to modify the judgment. But it was modified, without costs; and as it assumes to change the judgment from one in favor of Godson & Son to one in favor of plaintiff, although the judgment was in fact rendered by the justice in favor of plaintiff, defendants were not injured in any manner by the order of the county court. Under the peculiar circumstances of the case,—the defendants not being injured by^an order which does not in any way change the situation of the parties,—we think that a proper disposition of the case is to affirm the order or judgment of the county court, without costs.1

■ All poncur.


text:
    James Malloy, App’lt, v. Staten Island Rapid Transit Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Wharf—Private.
    A wharf occupied by a ferry company, to which access can he had only through a gate under the control of such company, or over private property of another, is a private wharf. 1
    Appeal from a judgment dismissing the complaint.

      Benedict & Benedict, for app’lt; Tracy, Boardman & Platt, for resp’t.
   Brown, P. J.

The plaintiff in this action received injuries under peculiar circumstances. On the 19th day of August, 1891, he went upon a wharf occupied by the defendant, in the city of New York, to fish. Bast of the wharf was a ferry slip, also occupied by the defendant. The slip was constructed of piles driven into the bottom of the river, and planked on the inside. The west side of the rack was about five feet from the east side of the wharf; and into that space plaintiff dropped his fish line, and sat down on the edge of the wharf, with his legs over the side. A ferry boat entering the slip struck against the rack, forcing it over towards the dock ; and plaintiff’s legs were caught and crushed between the rack and dock.

The foundation of the appellant’s argument for a reversal of this judgment is that the wharf where the accident occurred is a public street. I am unable to find in the case any foundation for this claim. The complaint alleges, and the answer admits, “ that the defendant is the owner of a franchise under which it operates a ferry between Staten Island and New York, * * * and the lessee and occupant of a wharf and ferry slip in the East river,” etc. The source of defendant’s title is not shown, nor does it appear that the wharf is at the river end of any street of the city. On the contrary, it does appear that it was shut off from the street in front of it' by a solid building, and access was had to it through gates controlled by the defendant. The only access to it was through this gate, or over property of other persons. A public street leased to and occupied by a private individual, and from which the public was excluded,' as they appear to have been from this, would be an anomaly. Omitting any reference to the legislation with reference to the Water front of the city of New York along the shores of the Hudson and East rivers, it is sufficient to say that numerous piers about the city are now made the subject of private ownership and control. The general course of legislation upon this subject is set forth quite fully in recent cases in the court of appeals. Langdon v. Mayor, etc., 93 N. Y. 129; Williams v. Mayor, etc., 105 N. Y. 419 ; 7 St. Rep. 529; Kingsland v. Mayor, etc., 110 N. Y. 569; 18 St. Rep. 701. While, -originally, the wharves and exterior streets which were constructed at the expense of or by riparian owneas were made public, and open to the commerce of the port and the free access of the people,' later legislation has modified the prohibitions and restraints of the earlier law ; and now many of the piers and wharves on the river front are occupied by steamship and railroad companies, and by private individuals, by titles which are, for the time being, practically that of private ownership. Under the allegations and admissions of the pleadings, and in the absence of any evidence as to the source or character of the defendant’s title, we must assume that the wharf in question was a private pier. It was inclosed from the street, and the plaintiff had no right there. The defendant had no notice that lie was there, and was under no duty or obligation to him, in reference to the management of its boat. He went upon the wharf in a roundabout way, getting access from adjoining property, and must be treated as a trespasser. Under such circumstances, there was no negligence upon the part of the defendant, and the complaint was properly dismissed. Victory v. Baker, 67 N. Y. 366; Larmore v. Crown Point Iron Co., 101 N. Y. 891. The judgment is affirmed, with costs.


author: Brown, P. J. Dykman, J. Dykman, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Julia L. Butterfield, as Executrix of the Will of Frederick P. James, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Contracts—Consideration.
    An executory contract, which is supported by a.meritorious consideration only, is not enforceable either at law or in equity.
    2. Mortgages—Foreclosure—Personal judgment.
    A personal judgment, in an action to foreclose a mortgage in a foreign state, cannot be rendered against a defendant, where he was not served with summons in such state.
    8. Corporation—Dividends—Income.
    Dividends on stock are income, though paid from sales of land which was the only property of the corporation.
    Appeal from the decree settling the accounts of the executrix.

      William H. Arnoux, for app’lts ; Frank F. Smith, for Henry A. James and others; Charles S. Clark, for guardian ad litem; William W. Goodrich and William P. Quinn, for executrix.
   Brown, P. J.

Frederick P. James died in May, 1884, leaving a last will and testament dated February 26, 1878. He left no descendants, and his heirs and next of kin were brothers and sisters, and descendants of brothers and sisters. He left a widow, now Mrs. Butterfield, who is the sole executrix of the will. The will has received judicial construction by the court of appeals, Woodward v. James, 115 N. Y. 346; 26 St. Rep. 147, and under it the .executrix is entitled to one half of the gross income, and the heirs of the téstator are entitled to the other half, subject to the payment therefrom of all expenses, and after the death of the executrix, they are entitled to the principal of the estate. Numerous questions are presented upon this appeal, which will be considered in their order.

1. As to the claim made by Mrs. James against the estate, and the mortgages upon the lands in Iowa. On October 10, 1879, the testator executed and delivered to his wife two bonds and mortgages,—one to secure the payment of §43,920, and the other the payment of $30,720,—each payable one year after date, with interest at 7 pier cent. The lands covered by the mortgages were situated in Lyon county, Iowa. In November, 1882, with the consent of Mr. James, suit was commenced in the district court of Lyon county to foreclose said mortgages, and process was personally served upon Mr. James at his residence in the city of New York. In May, 1883, upon default of appearance m the action, judgment of foreclosure and sale was entered ; and in 1885, after the death of Mr. James, the real estate was sold under the judgment, and there was realized thereon, over and above taxes, the sum of $5,15L, which was applicable to the payment of the debt. The decree of foreclosure gave no judgment against Mr. James, and none was ever recovered against him. The claim of the executrix is for the balance secured to be paid by the bond's, amounting to $127,120.10 for principal and interest, and has been allowed by the surrogate, and the decree directs that she pay that sum to herself out of the personal estate. The surrogate found that, at the time of the execution of the bonds and mortgages, Mr. James was not indebted to his wife in any sum whatever, and that the bonds and mortgages were executed and delivered “(1) as a provision for his wife, in addition to the bequests and devises in her favor contained in his will; (2) as a gift” As gifts, the bonds are not enforceable against the estate. They amount to nothing more than the donor’s naked promise to pay in the future, and being without consideration, could be enforced neither against him nor his estate. Harris v. Clark, 3 N. Y. 93; Holmes v. Roper, 141 N. Y. 64 ; 56 St. Rep. 596 ; Wilson v. Education Society, 10 Barb. 308 ; Basket v. Hassell, 107 U. S. 602; Pom. Eq. Jur. § 1148; Anthony v. Harrison, 14 Hun, 198. The presumption of a consideration arising from the seal is overcome by the findings quoted. The finding that the bonds and mortgages were given as a provision for Mrs. James in addition to the provisions in her behalf made in the will can have no meaning other than that they were gifts. The testimony to which we are referred as supporting this finding permits no other conclusion; but, if this finding gave greater support to the claim of the executrix than the fact that they were gifts, it would be insufficient to uphold the decree. The equitable rule which supports a provision made for a wife or child upon a meritorious, consideration alone is not applicable to an executory contract. The case of Whitaker v. Whitaker, 52 N. Y. 368, is conclusive upon this question. The facts there differed in no respect from those in this case. A promissory note and a bond, shown to have been executed and delivered without consideration other than natural love and affection, are of the same legal character in their relation to the makers. In the case cited, the surrogate and the general term gave judgment upon the note upon the ground that the husband’s obligation to provide for his wife after his decease was a sufficient consideration to support it; but, the court of appeals overruled this contention, reversed the judgment and disallowed the claim. This case is in harmony with the current of authority in this country and in' England. Story, Eq. Jur. § 987; Pom. Eq. Jur. § 1293; Perry, Trusts, §§ 107, 108 ; 2 Kent, Comm. 464. The cases cited in behalf of the executrix are mostly ones of executed contracts. In those in which executory contracts have been "upheld, the courts have found in the facts a consideration other than that of natural love and affection. Hunt v. Johnson, 44 N. Y. 27, was a case of an executed transfer of land by a husband to his wife. Bucklin v. Bucklin, 1 Abb. Dec. 242, was decided on the theory that the instrument was an executed contract Beard v. Nutthall, 1 Vern. 427, was of the same character. Van Amburgh v. Kramer, 16 Hun, 205, involves no question applicable to this action. In Isenhart v. Brown, 2 Edw. Ch. 341, three bonds made by the testator without valuable consideration were held to be valid claims against his estate. These bonds were all dated in May, 1820, and the testator died in the same year, leaving a will dated 1818. The doctrine laid down in that case cannot be supported under later authorities. But the bonds were dated and matured before the enactment of pur statute which makes a seal presumptive, evidence otily of a sufficient consideration, and .were probably assumed not to be affected by it, although the case was not decided until 1834. No question appears to have been raised as to the right to inquire into the consideration, and the bonds were assumed to be good without discussion. But, without further reference to the numerous authorities cited by counsel, it is sufficient, to say, upon the point under consideration, that an executory agreement, supported by a meritorious consideration only, cannot now be enforced in law or equity in this state. Wilbur v. Warren, 104 N. Y. 195; 5 St. Rep. 602; Twenty-third St. Baptist Church v. Cornell, 117 N. Y. 601; 28 St. Rep. 482. The judgment afforded in Iowa affords no support to the. plaintiff’s claim. Its effect is confined within the limitation of the court which granted it. No jurisdiction was acquired over James personally, and, under the service made, the court had no power to render judgment in personam. Lutz v. Kelly, 47 Iowa, 307. Mrs. James obtained all the relief in the foreclosure suit to which she was entitled, and the failure of Mr. James to appear and answer the complaint did not debar him from thereafter contesting his personal liability for any deficiency oh the bonds. Giving full faith and credit, to the Iowa judgment, it does not touch the question.presented here, and does not bar the defense now made. We are of the opinion, therefore,' that the plaintiff’s claim was not established, and must be disallowed.

But, while the judgment of foreclosure has no effect upon James’ personal liability' upon the bonds, it is conclusive as to the ownership of the mortgage and the right of Mrs. James to have the lands described therein sold, and the proceeds applied to the payment of the amount secured to her. Having been rendered by a court having jurisdiction of the subject-matter of the suit, upon due and legal notice to Mr. James, it binds the property and all persons who derive any interest therein through him. Durant v. Abendroth, 97 N. Y. 140. It cannot be attacked collaterally, and must be deemed valid until vacated or set aside in some direct proceeding brought for that purpose. It precludes, therefore, any inquiry into the question discussed by some of the contestants as to the right of the executrix to sell the land, or as to whether she held the mortgage in trust for the firm of F. P. James & Co. The contestants acquire their right in the land solely through the will of James, and they are not privy to any rights of the firm or to Mr. Taylor, the other partner. After the rendition of that judg. merit, Mr. James could not have litigated the question whether the mortgage was not held in trust for him, and the contestants are likewise debarred from raising it. Counsel for Charles D. Chase has argued at some length that, as Mrs. James is trustee of all the property under her husband’s will, it was a violation of her duty to sell the land under the foreclosure judgment; but 1 do not see how she could avoid so doing without abandoning all rights under that judgment. As already stated, it was not a judgment in personam. Its operation was confined to the land ; and in absence of proof showing misconduct in the sale, or that the property sold largely below its value, or was purchased for her benefit at an inadequate price, I think there was no violation of her duty to the estate in enforcing the decree.

2. As to the distribution between principal „and income of money received by the executrix upon certain stocks/ A part of the assets of the estate consisted of stock in three construction companies, viz.: the Hastings & Dakota Railway Company, the Minnesota Central Railway Company, and the Minnesota Railway Construction Company. The two first named, prior to Mr. James’ death, built and sold railways, and received in payment land grants. The Minnesota Railway Construction Company built and. sold a railway, and received in part payment a certificate of indebtedness secured by a mortgage on land. In reference to the last-named company the surrogate found that since the death of Mr. James' it had no other property except such certificate of indebtedness and mortgage, and that the mortgaged land had been sold from time to time, and the said company had released its mortgages and received sums of money, partly from sales of land, and partly from interest on deferred payments on sales; that it had no other business, and all the dividends paid to stockholders since the death of Mr. James had been derived from these sales, and from interest on deferred payments on contracts of sale. In reference to the two first named companies, he found that they had no other property except the lands received under said grants and no other business or source of income except the sale of such lands, and that since May, 1884, all the dividends paid to their stockholders had been derived from the sale of such lands, and from interest received on deferred contracts, or on purchase money mortgages accepted in payment for the sale of such lands. He further found that the capital of all said companies, at the death of Mr. James, consisted of said lands and certificates of indebtedness, and that, after his death, neither of them acquired any other property or assets. After the death of Mr. James, dividends were paid upon those stocks aggregating $82,504. The executrix received $61,824, and the receiver of F. P. James & Go. $20,680. The surrogate found that $66,090.06 was derived from the sale of land, and the balance from interest on deferred payments on contracts of sale; and he apportioned that derived from sales of land to capital, and that derived from interest on contracts to income. Both parties have appealed from this part of the decree. The executrix claims that the dividends on all of the stocks named must be treated as income, and the contestants that that part paid to the receiver must be treated as principal. I think the claim of the testatrix must be sustained. -The general rule applicable to dividends declared upon corporate stocks may be conceded to be as claimed by the contestants, viz., that, as between a life tenant and remainderman, all dividends paid from property in which the capital of a corporation is invested, or the proceeds thereof, belong and go to the remainderman, while all dividends from current or accumulated earnings go to the life tenant. That rule is applicable to corporations which employ their capital in business enterprises, and earn an income from such employment; but it is not necessarily applicable to the dividends of such a corporation as those under consideration. The fact that the dividend is paid from capital is not conclusive as to the right of the life tenant to receive it. Mining and coal companies and all corporations whose capital is invested in property which is quarried and sold in the market pay their dividends from proceeds of their capital." When their mines and quarries are exhausted their capital is gone, and dividends cease. But it would hardly be claimed that the annual dividends declared by such companies did not fall within the general designation of earnings. The corporations under consideration were not engaged in any “ business,” as that term is ordinarily understood. Their capital was in lands, and they had no source of income other than sales of land. Dividends were-declared out of the capital, and could not be derived from any other source. They divided, not only earnings from increase in value of lands, but capital in the proceeds of the sale of land itself. This was understood and contemplated by all stockholders in the corporation. Under the rule applied by the surrogate, if all sales were for cash, there would be no income to the estate until dividends were reinvested, but, if sales were on credit, income would be derived from interest on deferred payments. There is, in my judgment, a clear distinction between dividends paid by a corporation of the character of those named, and dividends on the stock of a corporation which employs its capital in ordinary business. Reed v. Head, 6 Allen, 174, supports this view. The corporations there under consideration were land companies. The bequest was of the income and dividends on the stock. It was decided that this meant dividends from sales of property constituting its capital stock. In that case, as the corporations could make dividends from no other source, the intent of the testator was plain; and, if the bequest was specifically of the income or dividends on the stock in question, there would be no doubt that the testator intended such dividends as should, in the ordinary course of events, be declared and paid upon the stock. The same result, 1 think, follows from the bequest as actually made. We must construe it in accordance with the intent of the testator. He gave to his wife one-half of the income of all his property, of every kind, of which he should die possessed. These stocks formed a material part of his estate. By the word “income” he clearly intended to include the dividends upon them, as they would constitute the only income to be derived from them. He knew there would be no earnings except from sales of land, and hence that the dividends would be paid from the property in which the capital was invested. He could not have intended that income should be limited to interest on contracts of sale, as there might not be any such contracts, nor to interest oil dividends after they should be received by the testatrix and reinvested, for he gave her the income on property which he possessed at his death, and not on that into which it should be converted after his death. In my opinion, be intended his widow to have such dividends on the stocks in question as the corporations, from the nature of their business and property would ordinarily make. The fact that the life tenant might possibly thus acquire the whole capital stock is incidental to the character of the corporation, and the manner in which the capital was invested; but it is an event not likely to occur. It was referred to in Reed v. Head, supra, and not regarded of much force, and is considered of little importance in the decision of this case. Hone of the cases cited by the contestants relating to dividends on corporate stocks conflict with the rule here applied. They all relate to banking or business corporations, and are in that respect distinguished from the case under consideration. For these reasons, we are of the opinion that all the dividends on the construction company stock paid to the testatrix are income, and must be so treated. The testatrix would not necessarily be entitled, however, to the full amount, of dividends paid to the receiver of F. P. James & Co. That partnership was composed of James and Horace Taylor. Both parties died within a few days of each other, Taylor dying first. A receiver was appointed, who administered upon the firm property, paid the debts, and transferred the surplus to Mrs. James, who thereafter settled with the executrix of Mr. Taylor. The question may be considered, therefore, as if Mrs. James was alone interested in the "firm property. The "receiver took possession of securities actually worth $658,724.41. The firm indebtedness was $345,446.49. There was paid to him ns dividends on the stocks of the construction company $20,680, and he received from other sources income amounting to $17,508. This latter sum, together with $4,294.32 of the first-named amount, which the surrogate held to be income, less such sum as was paid to Taylor’s estate, has been credited to the testatrix. The right of Mrs. James as life tenant was to receive the income ■on her husband’s share of the firm assets. This was the surplus after payment of the debts. The income paid to the receiver should have first been applied to pay interest on the firm debts. The balance would have been applicable to be disposed of under the will of Mr. James. I assume the firm debts drew interest, and that it was paid by the receiver. By giving to Mrs. James the whole income derived from the firm assets, the interest oh the firm debts was paid out of the principal. The income, including the dividends on the stock in the construction companies, which was paid to the receiver, should be redistributed, applying it first to the payment of interest on the firm indebtedness, and the balance to. the testatrix. If the amount of interest paid on the firm indebtedness is not proven, then it must be divided into two parts, bearing the same proportion to each other as the firm debt bore to the actual value of the securities received by the. receiver, and that part representing the debts of the firm credited to the capital of the estate, and the balance to income.

3. As to the payment of $2,500 to Mrs. James upon the day of her husband’s death. This amount must be charged to her personally. The surrogate’s finding that the checks for this sum were delivered to her by her husband’s authority is not sustained by any evidence in the case. The only testimony on the subject of this payment is that of Me Donald, the bookkeeper of the firm. It fails to show any authority emanating from Mr. James to pay the money to bis wife, nor is it shown that it was applied by her for the benefit of her husband or his estate. At the time of its receipt, Mr. Ames was dying, and, in the absence of any evidence explaining why it was paid, or the purpose for which it was received and used, it must be treated as a part of the estate and charged to the testatrix.

4. As to the settlement with Taylor’s estate and the assignee of the interest. I have examined fully the evidence relating to the settlement of the Taylor interest in the firm, and am of the opinion that the surrogate’s conclusion as to that transaction must be sustained. There appears to be a small balance due the estate, which is treated in the decree as an asset. It is not chargeable personally to the executrix, unless she was guilty of some bad faith or neglect in the matter. None is found by the surrogate, and his finding has support in the evidence.

5. As to the mortgages on the Rockingham apartment house. The testatrix was not bound to pay these mortgages out of the personal estate. The contestants, as devisees of the real estate, must pay the principal of the' mortgages, while their half of the income of the estate is primarily chargeable under the will with the interest. In this situation I fail to see any ground for complaint against the action of the testatrix.

6. As to the allowance of costs to the special guardian. The surrogate had power to make this allowance. Code Civ. Proc., § 2561. But the compensation awarded to the guardian, Harlan J. Woodward, should be limited tó the services rendered .prior to October, 1889,—the date of the decision of the court of appeals in the action of Woodward v. James. It was there determined that Woodward had no interest in the personal estate, and after that ruling I do not see that it was essential that he should have been represented in this proceeding.

Other questions have, been argued, but none of them require notice. The decree of the surrogate must be modified in accordance with this opinion, and, as modified, with costs to all parties, to be paid out of the estate; the order to be settled by the presiding justice upon notice.

Pratt, J. concurs.

Dykman, J.

I concur in the foregoing opinion, except in relation to the two bonds and mortgages given by Mr. James to hia wife, and the $2,500 check received by Mrs, Butterfield on the day of the death of Mr. James. Upon those subjects I have written for affirmance of the surrogate’s decree.

Dykman, J.

(dissenting). I concur in the opinion of the Chief Justice in this case, except m two respects,—the bonds and mortgages upon the lands in Iowa and Texas, and the check for $2,500 delivered to the executrix on the day of the death of her testator. My conclusion is that the bond and mortgage were intended as a provision for the wife of the mortgagor, ana that, as there has been a valid judgment for the foreclosure of the mortgage, and there are no intervening rights of creditors, the transaction is valid. A mortgage is a conditional transfer of real property, and has been sustained as a provision for the support of a child. Bucklin v. Bucklin, 1 Keyes, 145. Why not for a wife? The relation of husband and wife is sufficient to sustain the instrument. 4 Kent, Comm. 465. Conveyances to a wife are always upheld when not prejudicial to creditors. 2 Kent, Comm. 132. A conveyance of real property by a husband to his wife, intended as a gift, may be sustained in equity. Hunt v. Johnson, 44 N. Y. 27. There is nothing in reason or natural justice prohibitive of this transaction. Here we have a man of large wealth, whose duty it was to make ample provision for the support and comfort of his wife both during his life and after his death, and any application of his property to that purpose must receive the approbation of the courts, and has ever done so. The cases of Harris v. Clark, 3 N. Y. 94, and Phelps v. Pond, 23 N. Y. 78, are no authorities adverse to this claim. In the first case the decision was made with reluctance, in obedience to authority, and in_ the second case the gift would have been sustained if a wife had Been the beneficiary of the promise. These two bonds and mortgages were instruments of a much more solemn character than bills of exchange or promissory notes. The land was the primary fund for the payment of the money, as between the parties to the instruments, and there has been a judgment for the enforcement of the mortgage. To hold that this rich man, who had no children, and no creditors, could not give his wife a bond and mortgage which she could enforce, is equivalent to a decision that he could not do what he would with his own property. I cannot bring my mind to such a conclusion, and I find no authority which obliges me to concur in such a result.

In relation to the $2,500 received by Mrs. Butterfield from the clerk of Mr. James, I can perceive no more reason for charging her with that sum. She was the wife of Mr. James, and was head of his household. As he was unable to attend to business, we must assume that his wife made the purchases for the house and paid the bills. It was a time when unexpected expenses might become necessary, and it was uncertain when or how more money could be obtained. There would be equal propriety in charging the wife personally with money received by her during the week or month previous for household expenses. I am therefore in favor of affirming the decree of the surrogate upon these two subjects.


text:
    Rosalie Adele Oakley, Resp’t, v. John Lyon Gardiner et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Municipal corporation—Assessment district.
    Where an assessment district in Long Island City is described as extending to a point on the western boundary of the city, which is low-water mark, (tlie western boundary of the assessment district is the actual line of low-water, as it existed at the time of the assessment.
    2. Same—Judgment por lien.
    In such case, a judgment declaring a lien does not extend beyond the limits of the assessment district.
    Appeal from an interlocutory decree of partition and sale.

      J. Langdon Ward, for app’lts; Thos. P. Wickes, for respondent Oakley; Evarts, Choate & Beaman, for resp’ts Rutherfurd & Remsen.
   Brown, P. J.

The question presented for our decision is, whether the pier and land under water upon the northerly side of Nott avenue, and immediately in front of lot 50, as a part of such lot, and was subject to the lien of the assessments. The land under water in front of the lot was granted tó the parties to this action by the state in December, 1871. The northerly boundary of the improvement district begins at the Intersection of the westerly boundary line of the city with a line drawn parallel with Nott avenue and 100 feet northerly therefrom. Laws 1874, chap. 326, § 1. The westerly boundary of the city is low-water mark on the east shore of the East river. Laws 1871, chap. 461, § 1. The pier in question was first constructed in 1877, and subsequently reconstructed and enlarged. The appellant contends that the westerly boundary of the improvement district is the line of original low-water mark; while the respondent claims that it is the westerly line of the city, which advances into the river, as docks, piers, and other improvements are constructed along the water front. It has been repeatedly decided that the boundary of territorial jurisdiction between the counties of New York and Kings is the actual line of low water on the Brooklyn side, whether corresponding with the original low-water line or changed by the construction of piers and docks, Tebo v. City of Brooklyn, 134 N. Y. 341; 47 St. Rep. 757, and cases cited; and that rule is applicable to Long Island City. We are of the opinion that the legislature intended that the westerly line of the improvement district should correspond to the westerly boundary line of the city as it should exist at the time the commissioners should, in accordance with the statute, file their map. On December 6, 1877, the date of the filing of the map, the westerly line of the pier was substantially the same as it is now. The jurisdiction of the city extended to that line, and there was the westerly line of the improvement district. The case of Mut. L. Ins. Co. v. Voorhis, 71 Hun, 117; 53 St. Rep. 874, does not aid the appellants. A principle of public policy and public convenience underlies the decision in Tebo v. City of Brooklyn and kindred cases. The Voorhis Cast, involved no public question. It related solely to the rights of private individuals, and there was no principle of law which could extend the mortgage to lands acquired by the mortgagor subsequent to the execution of the mortgage.

A part of the pier in question lies north of the northern boundary of the improvement district, and the appellants claim that such part is by the judgment declared to be subject to the lien of the receivers’ certificates. The assessment could not extend beyond a line 100 feet north of the northerly line of Nott avenue, and the receivers’ certificates attach to the same property. But. I do not understand the judgment to extend the lien beyond that line. The twenty-sixth paragraph of the judgment is as follows; “ The holders of certificates * * * have a lien upon the portion of said property lying southerly of a line drawn parallel with Nott avenue and one hundred feet northerly therefrom, * * * including the dock or pier extending from said property into the Bast river, together with all the right, title, and interest of the parties thereto in, to, and over the lands under and between high and low water mark of the Bast river opposite the same, and southerly of the aforesaid line, drawn parallel with the northerly side of Nott avenue and one hundred feet northerly therefrom.”

The description is qualified by the last sentence, and the lien is limited to that part of the pier and land under water south of the north line of the improvement district. The same qualification appears in the twelfth paragraph of the judgment, declaring the extent of the lien of the assessments. If, however, the form of the expression used is regarded by either party as equivocal or uncertain, it can be corrected by motion made to the special term. The judgment is affirmed, with costs to be paid by the appellants, with leave to either party to move at special term to make more definite the provision of the judgment relating to the extent of the lien of the certificates. All concur.


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    Robert S. Orsor, Resp’t, v. Metropolitan Cross-Town Railway Company, App’lt.

      (Supreme Court, General Term,, Second Department,

      Filed May 14, 1894.)

    Damages—Personal injuries.
    In an action for personal injuries, the plaintiff has a right to recover for his pecuniary loss caused by his inability to perform his usual work, and a question calling for his income from his personal services is admissible if he knows what his earnings were.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Henry Thompson, for app’lt; F. M Brigham,for resp’t.
   Brown, P. J.

The plaintiff was injured by being thrown from the platform of one of the defendant’s cars, on account of the mismanagement of the car by the driver and conductor. Upon the trial he was asked the following question: “ Q. What were your average earnings during that ten months, as near as you can estimate them?” The plaintiff answered, over the defendant’s objection and exception: “ I think my earnings would average about $40 a week during that ten months.” The court was asked to charge the jury that plaintiff could not recover for loss of time and business, which request was refused, and the jury were told that they might allow him, as one element of his damages, “ the pecuniary loss sustained in the way of wages,” and to this charge defendant excepted, upon the ground “ that it was not proven in the evidence, but left so vague and indefinite that it ought to be thrown out.” Prior to being asked the .question referred to plaintiff had testified how the injury that he received affected his ability to do the work he -was engaged in prior to the ‘accident; that at the time of the accident he had an interest in a business of one-third of the profits, which he received, not as a partner, but as compensation for his services as an employee; and that an agreement had existed for ten months preceding the accident. Before that period he had been with the same persons, having a half interest. The following question was then asked: “By the court: Q. What were your average earnings for that ten months? A. I have not prepared the earnings, as I did not think that would come up. I couldn’t tell that. Q. Did you lose your pay from the time you were sick ? A. I received one small amount after I was injured, but I couldn’t get out, and they objected to my drawing money.”

Upon cross-examination he testified: “The concern I was with six years' was : Orsor and Anderson.’ Orsor was my wife, and Anderson was his wife. They went gut of business. B. Anderson took up the business then. He is the husband of the Anderson gf the old firm. My arrangement with him was that I was to have one-third of the profits. I never had a settlement with Anderson, so I don’t know what the profits were for those ten months.”

The question as to the plaintiff’s earnings was admissible and the objection was properly overruled. Ehrgott v. Mayor, 96 N. Y. 264. The plaintiff had a right to recover for his pecuniary loss caused by his inability to perform his usual work, and the question called for his income from his personal service, and did not involve any element Of income from invested capital. In this respect the case is distinguished from Masterton v. Village of Mount Vernon, 58 N. Y. 391, and Johnson v. Man. Railway Co., 52 Hun, 111; 23 St. Rep. 388. But the jury should not have been permitted to consider this element of the case, foi; the reason that it was evident plaintiff did not know what his earnings were. He so stated in answer to the court and upon cross-examination. He was injured on February 9, 1893, and the trial took place in October, 1893. The period covered by his arrangement with Anderson was from April, 1892, to the time of the accident. It would have been entirely competent for him to have stated the amount that he had actually received during that period, but he was no-asked that question. Notwithstanding he stated that he had had no settlement with Anderson, and was not prepared to say, and , could not tell, what his earnings were, he was "permitted to say what he thought they would amount to, and the jury were permitted to consider that evidence as one ofethe elements of his damages. The evidence was insufficient to support any finding as to the plaintiff’s income, and the exception to the charge was well taken. The judgment should be reversed and a new trial granted, costs to abide the event.


author: Putnam, J.

text:
    The People, Resp’t, v. Philip W. Frederick, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Disorderly person—Support op wipe.
    In a prosecution for being a disorderly person, in that the defendant failed to support his wife, it is a question for the trial magistrate whether Ms offer to support his wife was Iona fids.

    Appeal from a judgment of conviction for being a disorderly person.

      Frank L. Anderson {H. Peck, of counsel), for app’lt; H. 1?„ Wright, district attorney, for resp’t.
   Putnam, J.

Defendant was convicted before a magistrate as a disorderly person, under the provisions of section 899 of the Code of Criminal Procedure, and the judgment of conviction was affirmed by the court of sessions of Fulton county. The complainant and defendant were married on January 1st, 1891, and it was alleged that defendant had abandoned his wife, and failed to support her, since April 1st, 1892. There was testimony before the magistrate tending to establish the truth of the charge made. But the defendant, on the trial, proved that on several occasions he had offered to provide the complainant with a home and support at his father’s house, and that she had declined to accept such offer; and defendant testified that he was unable to furnish her with support at any other place. The appellant insists that the offer and complainant’s refusal to accept it was an answer to the charge made against him, and that the magistrate erred, therefore, in rendering a judgment of conviction, within the cases of Lutes v. Shelley, 40 Hun, 197; People v. Pettit, 74 N. Y. 320. In the eases cited the offers of the husband were held to have been made in good faith, and tendered a suitable home for the wife; and hence, if she failed to accept the support so provided by the husband, he could not be deemed a disorderly person. The rule la,id down in those cases must govern this if the evidence was such that the magistrate could have found that defendant’s offers were made in good faith, and not with a fraudulent intent to evade the provisions of the statute. It -was shown on the trial that the defendant had offered to provide a home and support for the complainant at his father’s house. That she went there on December 29th, 1891, and saw' defendant, his father, and sisters. She told the defendant that she had. come to see the rooms prepared for her. He answered he was sick, and could not show them that day, and closed the door, leaving her on the outside. On January 4th, 1892, she again went there, and was told by appellant’s mother that she wanted her to get out of there, and the door was closed in her face. Afterwards complainant again went to the house of appellant’s father, and said to defendant’s mother, who came to the door : “ Philip told me here was where I was to get my support, and I have now come to accept his offer.” She was unable to obtain access to the house, and was told to go home. The witness Palmateer also testified to the statement of defendant that, “as circumstances stood now, bis hair would be grayer than it is now before he would support or live with his wife.” Whether complainant, after trying three time unsuccessfully to obtain admission to the house of defendant’s father, should have made another attempt/ was, we think, under the evidence, a question for the magistrate. He could very well find, under the circumstances of the case, that defendant’s offer was insincere, and made with intent to evade the provisions of the statute. We think this case is similar to that of People v. Harris, 38 St. Rep. 316; 14 N. Y. Supp. 830, and, as held in that case, it was a question for the magistrate to determine whether the offers of the appellant were made in good faith, and with intention to carry- out the offer; “and that, under the circumstances, a conviction based on the belief that it was not would not be interfered with.” We have examined the various exceptions taken on the trial, and the rulings of -the magistrate, and are- of opinion none of them require a reversal of the judgment. It follows that the judgment should be affirmed.

All concur.