text:
    Meta Mullenbrinck et al., ex’rs, etc., Appl’ts, Louis J. Pooler, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    Practice—Pleading—Code Crv. Pro , §§ 500, 514.
    The object of this action was to obtain such a lease as would entitle the plaintiffs to a third renewal for a period of fourteen years The only answer served was the general answer for an infant defendant, submitting-in the usual form his rights to the decision and protection of the court The plaintiffs having wholly failed, Held, that the entire subject of the action was defeated, and that in order to have enabled the defendants to recover in this action the rents which had accrued during the litigation, the demand for them should have been set forth in an answer by way of counter-claim. That not having been done, there was no way to collect the rent except by a new action.
    Motion for re-argument of this appeal.

      James M. Hunt, for resp’ts; Nelson Smith, for appl’ts.

       See S. C., 1 N. Y. State Rep., 223.

   Daniels, J.

What the respondents desire to reconsider and re-argue is so much of the interlocutory judgment as directed a reference to ascertain the amount of rent owing from the plaintiffs for the use and occupation of the premises in controversy. In the decision of the appeal that was not deemed to be an appropriate direction to be given, inasmuch as the plaintiffs were held to have wholly failed in the object of their action, and the claim for the rents had been in no manner interposed, either directly or indirectly, by the pleadings in the action. The object of the plaintiffs was to obtain such a lease as would entitle them to a third renewal for a period of fourteen years. That was the entire scope and extent of the plaintiffs’ action, and if they had recovered, then as an incident to that relief they would have been required to pay the rents which had during the pendency of the htigatión accrued or arisen for the occupation of the premises. And an accounting within the authorities referred to would have been an entirely proper direction to ascertain the amount of such rents. But the plaintiffs wholly failed to maintain their rights to the lease in the form in which they insisted it should be executed and delivered, and in this manner the entire subject of the action was defeated. There was nothing left of it to which any incident whatever could be attached by way of relief to the defendants. And as that was the effect of the decision, before they could be in a condition to recover the rents of the property against the plaintiffs, the claim or demand for those rents should have been set forth in the defendants’ answer. But that was not done, and no answer whatever was served in the action except the general answer for an infant defendant, submitting in the usual form his rights to the decision and protection of the court. In no manner was any reference made to any possible claim that the plaintiffs were or would become indebted to. the defendants for the use and occupation of the premises. Whatever rights they might have in that respect would, upon the failure of the plaintiffs’ case, create a cause of action in their own favor for the recovery of the indebtedness. And as sections 500, 502 of the Code of Civil Procedure have been enacted, that has been required to be presented by way of answer, and to that answer, by section 514, the plaintiffs had the right and privilege or replying. In no other regular manner could this cause of action be brought into the case as a counter-claim after the failure of the plaintiffs’ case, and no attempt was made to add to it as a subject-matter to the litigation by any pleading whatever on the part of either of the defendants. In this respect this action very clearly differs from all those referred to and relied upon in favor of the motion. For in those cases a subject-matter was presented and so acted upon by the court as to bring the ultimate rights adjudicated and disposed of into the litigation as its incidents, while in this section there was no attribute whatever of that description.

But after it was adjudged that the plaintiffs must wholly fail in their cause of action which terminated the litigation as to them, the case depended upon pleadings presented by the defendants, if that was designed to be done, to bring in another or additional subject-matter before the court for its consideration and decision. And as there were no such pleadings, it followed there was no such subject to be litigated or determined before the court. To entitle the defendants to make a claim of the description of that presented in their behalf, it should have been disclosed by the pleadings in such a manner that the plaintiffs would have had the opportunity of replying to it and contesting it under the answer and reply upon the trial. And, as the claim was not placed in that condition, there was no authority - under the provisions of the Code for retaining the action for the trial and determination of such claims. Beyond that the plaintiffs are entitled to have their liability for the payment of the rent, as long as the controversy must now be confined entirely to that point, heard and determined by a jury, and not by a compulsory reference. Neither of the authorities which have been brought to the attention of the court justify any different disposition than that which has been directed already in the action, and the motion for a re-argument should be denied, with costs.

Macomber and Brady, JJ., concur.


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    Anna Maria Deen, App’lt, v. William Milne, as ex’r of the last will and testament of William Wilson, dec’d.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    Stipulation op counsel—When pasties bound by.
    Where no reasonable doubt can be entertained as to the validity of a stipulation made in open court during the progress of the trial, and required before the action could proceed, the parties to the action all being present and consenting thereto: Held, that the parties are bound by any act that was taken by counsel, though he may not have been the attorney of record, and will not be allowed to repudiate it. (Evidence of such consent discussed.)
    Appeal from a judgment enteréd upon the decision of the court at special term.

      Aaron J. Vanderpoel, for app’lt; John Clinton Gray and Edward C. Perkins, for resp’t.
   Macomber, J.

The action was brought against the personal representative of William N. Wilson, deceased, to establish the existence of a lost stipulation alleged to have been made in an action pending in this court in which Wilson was the plaintiff ana Anna Maria Been was defendant, which provided for the discontinuance of two actions pend-ing in the marine court of the city of New York, in one of which a judgment had been entered in favor of Anna Maria Been as plaintiff against the said Wilson as defendant, from which an appeal had been taken, and the other of which of the same title was pending in' that court undetermined.

Upon the first trial óf this case the complaint was dismissed upon the ground that the plaintiff had a remedy, by motion in the marine court to set aside the judgment in one case and to discontinue the action in the other case, based upon the alleged stipulation. Upon appeal' to the general term of this court (Deen v. Milne, 15 Abb., N. C., 350), such judgment was reversed and a new trial ordered, this court holding, in substance, that the action could be maintained upon the facts alleged in the complaint, and that the supposed remedy by motion in the marine court, if it existed at all, was but a remedy concurrent with this action. The decision now under review dismissed the complaint, after hearing the evidence, upon the facts, the learned judge holding that the evidence did not establish -the allegations of the complaint. Upon this appeal the questions of fact, as well as those of law, are before tis. Code of Civil Procedure, section 1346. Though the trial court has the benefit of the appearance and manner of witnesses before it, yet we are obliged to assume the responsibility of examining the whole case and determining from the evidence whether the conclusion of the learned trial judge was correct or not. Moran v. McLority, 75 N. Y., 25.

It appears that the actions brought in the marine court, above referred to, were begun to recover respectively a monthly instalment of rent which had accrued upon a lease executed by the plaintiff therein to the lessee and his surety. One of .these actions, as has already been stated, had proceeded to judgment and that judgment was adverse to the landlord, this plaintiff, and in favor of the tenant, and an appeal therefrom had been taken to the general term of this court. After the second action had been brought for another instalment of rent, the case of Wilson against this plaintiff was begun in the supreme court of this state, to restrain the further prosecution of the actions so pending and to prevent the beginning of other actions involving the same question. The claim made by the plaintiff in the action now under consideration is that immediately after the trial of‘the equity action had begun at special term, the judge presiding refused to entertain it until the actions in the marine court had been disposed of, holding, as some of the witnesses say, in substance that the remedy sought by that equity action could not be had while the other cases were pending in the marine court, and that thereupon, after some discussion and hesitation, a stipulation was made orally in court that both of those actions pending in the marine court should be discontinued and that such oral stipulation was reduced to writing and signed by counsel present, the court taking a short recess to enable them to perfect the papers. To maintain this contention, the plaintiff called as a witness her attorney of record and counsel in the former case and in the cases in the marine court, Mr. John K. Hill, who testifies that after the equity case had been opened for the plaintiff by Mr. Ohetwood, counsel for the plaintiffs therein, the judge spoke of the verdict and judgment in the action in the marine court and said in substance that he could not try the case then before him so long as that judgment stood in the way, and that Mr. Ohetwood, after some little talk with counsel on each side, offered to vacate that judgment and discontinue that action. He further says that Mr. Ohetwood offered to vacate that judgment and discontinue the action in number one, which was the action wherein the judgment had been entered, provided that he, the witness, would discontinue action number two, which had then been untried and undetermined. Upon that suggestion being made the witness accepted it at once, and the trial was suspended by the judge in order that the stipulations might be exchanged, that he signed one of the stipulations in each action on the part of Mrs. Deen and Mr. Ohetwood, signed another in behalf of the plaintiffs in that action, Wilson and Perry, and that the one received by the witness was signed in the name of John Ohetwood, the attorney of record, though the witness is not certain it .was signed in the name of John Ohetwood, or in the name of his brother, who was counsel in the case, and who had the conduct of the trial of that equity action. The witness further testifies that after-wards the judge returned to the bench and resumed the trial of the action, and it is an established fact throughout the whole case that the actions in the marine court were never afterwards mentioned as having any bearing upon the trial of the suit, and that neither was the appeal prosecuted in the one action, nor the trial ever afterwards moved in the other case.

The stenographer, upon that trial, made the following entry in his minutes: By consent the action in the marine court in which a verdict was rendered is discontinued without costs to either party.” The stipulation that was received by Mr. Hill was shown to have been lost or mislaid, but that the one signed by him, and which he said was delivered to Mr. Ohetwood, was, upon notice, produced upon the trial in this action, and was, in substance, for the discontinuance of the cases in the marine court. Another witness in behalf of the plaintiff, Mr. George Conover, was the clerk of Mr. Hill, and kept his law register at the time of the trial of the equity case, and testifies that at the time mentioned, namely, the second, third or fourth of December he made an entry-in the register in each action in the marine court to the effect that the case had been discontinued by stipulation. Mr. Van Burén, another witness, testifies that he was present at the trial of the equity case, and that the judge declined to hear it, and Mr. Ohetwood asked the reason, and the judge said: “You have a cause pending in another court; you cannot have two remedies going on at the same time in two different courts on the same subject; ” that Mr. Ohetwood argued the case to the judge sometime; that the judge said he would not go on with the case unless all the former proceedings were vacated, and that then Ohetwood said: “If I vacate the former case, where will we be then?” The judge said: “You will be just where you were in the commencement, as if nothing had been done.” Then the counsel for the respective parties- talked together, and the judge suspended the trial to enable them to prepare and pass the papers, and after that had been done, though he did not see the papers himself, he says that the judge came, back and the cause went on. The plaintiff herself also testified that the judge said he would not go on unless they would agree to- abandon the case in the marine court. That some papers were drawn up and there was some talk between the lawyers and that Mr. Ohetwood consented to take the case out of court.' She further says that the papers were-signed by all-parties, both seemed to be satisfied. Mr. Macklin, the stenographer, gave evidence verifying his entry in the minutes of that trial, as already mentioned. Benjamin 0. Thayer testified that he was present at the trial during a portion of the time and very soon after it was begun. He remembered that two actions were mentioned as pending in the marine court; that it came. out on the beginning of the trial that a judgment had been recovered- in the marine court, and there was some hitch in the trial of the case then going on. He does not remember distinctly how it arose, but he says that he knows there was- some objection to the case, going on, whether it came from the counsel or the- court he could not tell, because there had been a judgment already rendered in the marine court; and his recollection is it was deemed necessary to-get rid of the proceedings in the marine court. He further says that the court suggested that he would not try the case unless that- judgment was out of the way, and that then it was agreed before the court by the attorneys for the different parties that those actions should be put out of the way, and this actiori which was on trial should go on. He did not see the papers signed, but says that the attorneys'agreed to make some papers or agreed to discontinue the actions in the marine court..

The evidence in.behalf of. the defendant may,be stated in the language of his counsel, as- contained in the brief to the;case.,

John- Ohetwood, called fbr the defendant, testified that he was not present at the trial in the special term, and he did not know what took place there; that the stipulation produced had been found among his papers at the time of the trial in the United States court, which was in 1881; that the first he knew of them was that either his clerk or his brother had presented them to him at his office not very long after the trial before the special term of this court in the action of Wilson and another against Been; that they were presented to him signed by Mr. Hill, to be signed by the witness, and he never authorized his brother or Bradbury 0. Ohetwood or anyone else to sign a stipulaion on his behalf vacating the judgment in the marine court.

Bradbury 0. Ohetwood testified that the objection made by the judge was to the pendency of the appeal from the judgment in the marine court; that he (the witness) discussed the matter with the judge for some time, when Mr. Hill suggested they should let the appeal go. Some such arrangement was made and the trial proceeded; that the judge said nothing about disposing of the judgment, but only of the appeal; that he (the witness) never agreed to vacate the judgment; that no written .stipulation was prepared or signed there, certainly none vacating the judgment; that neither Wilson nor his attorney ever authorized the witness to vacate that judgment; that he remembered that the stipulation to vacate the judgment produced by the defendant was brought to his brother’s office soon after the trial and that they refused to sign it.

It will be observed that though the record of the trial of the action of Wilson and another against Been shows that John Ohetwood, who was the attorney for the plaintiffs in that action, was personally present, yet he testifies that he was not there and consequently could have taken no part either in the discussions of the questions that were raised by the court or have participated in the arrangement or agreement by which the trial finally proceeded. The only other witness for the defendant, Bradbury C. Ohetwood, who had charge of the trial of the case as counsel for the plaintiffs therein, admits that the subject-matter of the case in the marine court was brought up and was made the subject of discussion, yet, his recollection is that it was in relation to the appeal that was pending from the judgment that his clients had obtained therein against Mrs. Been upon her claim against them for rent. These several witnesses speak at a time many years subsequent to the occasion when their acts were done and consequently with more or less liability to error in their recollection in the particulars thereof. Under these circumstances, resorting to the probabilities of the case, there are many conceded facts that go to substantiate and affirm the testimony given in behalf of the plaintiff. One of those circumstances is the possession by Mr. Chetwood of the stipulations which were signed by Mr. Hill and his retention of them for a period of nearly ten years. Another circumstance is, which is also undisputed, that the court for some reason refused to proceed with the trial of the case, but that afterwards, under representations that the difficulties which he had raised had been removed, resumed the trial and finished it. What reason could the court have • had in its mind for suggesting that only the appeal be dismissed in the case of Deen v. Wilson & Perry in the marine court, particularly as Mr. Chetwood testifies he resisted any suggestion the court had made upon the subject? How can it be possible that any judge could suppose for a moment that the embarrassment of the situation would be removed by a discontinuance of the appeal? If the appeal were discontinued, there would remain the judgment absolute and unaffected in favor of W'ilson & Perry, and would lead unresistingly to a judgment in their favor in the equity action, restraining the further prosecution of actions upon the lease by Mrs. Been, yet, the counsel if his recollection serves him accurately, is placed in the attitude of resisting a suggestion of the court which would so overwhelmingly redound in his favor, if it was adopted by the parties to the proceeding then pending before him. We are of the opinion that the preponderance of the conflicting evidence, taken in connection with the well-established and conceded facts, requires us to reverse the decision of the trial court upon the principal question of fact.

No reasonable doubt can be entertained as to the validity of the stipulation of B. 0. Chetwood, if it was actually made in open court or was executed by him in writing. The act was done during the progress of the trial and seems to have been required before the action which he himself was pressing, could proceed. The parties to the action were all present and are bound by any act that was taken by counsel, though he may not have been the attorney of record. By giving his consent to vacate the judgment in favor of his clients for costs in the marine court, he secured two advantages, -one was the discontinuance of the other action in the marine court against his clients for an instalment of rent, and the other was the obtaining leave that the court should proceed with the trial of the case then in hand to the finish. We think that the defendants cannot now be permitted to repudiate any act which was done evidently with their clear consent and by which they acquired such rights and and advantages.

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

Daniels and Brady, JJ., concur.


author: Brady, J.

text:
    Stephen P. Nash et al., Resp’ts, v. Sylvester H. Kneeland and Jacob Berry, App’lts, and Joseph Stout, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    1. Attorney and client—Attorney’s services—Evidence.
    In an action for the value of attorney’s services, Held, that the court knows nothing of the charges that prevail at the bar, except as established by the evidence, and even if the court did entertain the impression that the charges in a particular case were unduly large, it would be unlawful for the court to interpose its personal opinions against the evidence of competent persons establishing the value of the services.
    3. New trial—Rule as to admission of improper evidence.
    Although the rule is that the admission of improper evidence must result in a reversal of the judgment appealed from, if it may have affected the verdict, although the court after its admission directs the jury to disregard it, yet when there was really no controversy as to the point, the defendant apparently relying upon the weakness of the evidence on the part of the plaintiff. He<d, that it was sufficient ground for a new trial on motion of defendant.
    Appeal from a judgment founded upon the verdict of a jury, and also from an order denying a motion to set aside the verdict upon all the grounds specified in section 999 of the Code.

      Wheeler H. Peckham, for app’lt; John J£. Parsons, for resp’t.
   Brady, J.

This action was brought to recover compensation for professional services rendered to the defendants and disbursements made in connection with them. The defendants interposed a general denial, and set forth as a defence, hr addition, that the defendant Kneeland alone employed the plaintiffs and for an agreed sum.

The first proposition urged on behalf of the appellants is that the verdict is without evidence, or at least greatly against the weight of evidence as to the defendant Berry.

It is not deemed necessary to go through the testimony in detail to show that the proposition suggested cannot be maintained. It is enough to say that a careful examination of the evidence is convincing that it is superabundant as to Kneeland and sufficient, though not so strong, against Berry.

The employment was a question of fact which was properly submitted to the jury to be determined by the evidence pro. and con., and was by them decided adversely to the efendants. We should not be justified from a consideration of the evidence in disturbing the verdict rendered.

The appellants also suggest that the verdict is excessive, and should be set aside for that reason. The response to this suggestion is that the subject was left to the determination of the jury upon the evidence, and according to the evidence the verdict is not excessive.

The appellants’ counsol, apparently relying upon their ability to secure a verdict for a sum compatible with their views of the value of the services, omitted to give any testimony upon that subject according to the record, stating that they would leave the question upon the plaintiffs’ own evidence and such comments as should be made, to the jury, a statement which induced the plaintiffs to rest and to offer no further the

It is also said that the plaintiffs’ bill is unjust; that no such rate of charges, as the court well knows, prevails at the bar.

The court knows nothing of the charges that prevail at the bar, except as established by evidence. And even if the court did entertain the impression that the charges were unduly large, it would be unlawful for the court to interpose its personal opinions against the evidence of competent persons establishing the value of the services, because an opinion is not evidence. Indeed, a consideration of the whole case suggests but one serious phase, and that arises from the admission of improper evidence as to the value of the plaintiffs’ services, which the learned justice conceded to have been done, and which he of his own motion directed to be stricken out.

In a series of cases it has been held, and indeed the authorities may be said to be uniform on the subject, that the admission of improper evidence must result in a reversal of the judgment appealed from if it may have affected the verdict, although the court after its admission directs the jury to disregard it. Erben v. Lorillard, 19 N. Y., 299; Newman v. Goddard, 3 Hun, 70; Tabor v. Van Tassel, 86 N. Y., 642; Green v. Hudson R. R. Co., 32 Barb., 25, 34; Worrall v. Parmelee, 1 Comst., 521; Osgood v. Manhattan Co., 3 Cowen, 621.

It is thought, notwithstanding the rule stated and the necessity of its application in some cases, that it is not controlling here, for the reason that the plaintiffs, on the statement of the defendants’ counsel that they intended to - call no witnesses on the subject of value, were induced not to, and did not, furnish any further evidence on that subject, and for .the additional reason that the statement of their determination to call no witnesses on the subject of value, was coupled with the further statement that they intended to leave the question to the jury upon the plaintiff’s own evidence, with such comments as their counsel should make to them.

It cannot under such circumstances be said that the evidence improperly admitted, and which the judge struck „ out, affected the verdict. If there had been any contest whatever about the value, a different conclusion might sug- , gest itself. But here there was really no controversy, the defendants apparently relying upon the weakness or infirmity of the evidence on behalf of the plaintiffs.

For these reasons, as we find no exception requiring a different result, the judgment should be affirmed.

Daniels, J., concurs.


author: Learned, P. J.

text:
    Gilbert Cronk, App’lt, v. Charles M. Barlow, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed October 15, 1886.)

    Landlord and tenant—Summary proceedings for ejectment—What NOT SUFFICIENT PROOF OF RELATION OF LANDLORD AND TENANT.
    In summary proceedings for ejectment it was shown that the defendant went into possession as tenant under the mother of plaintiff, since deceased. The plaintiff simply swore that lie was the owner of the property. On cross-examination, he stated that he had a conveyance in writing, hut did not produce it. Held, that he should have proved the descent or devise of the land and the conveyance thereof from heirs or devisees.
    This is an appeal from a judgment of the county court of Albany county reversing a judgment or final order made by a justice of the peace of the town of Coeymans to remove a tenant, Charles M. Barlow, from premises in the town of Coeymans. Plaintiff, who was the son of Sarah Cronk, served the usual notice on Barlow to deliver up possession. ' And in his petition alleged that he was the owner of the premises in question, and had been since December 1, 1883, “at which time last mentioned Hr. C. H. Barlow was in possession of and occupied one room * * * as defendant is informed and believes, as a tenant from month to month, at a monthly rent of $2.50 per month.” Barlow, in his answer, denied any knowledge of the matters alleged in plaintiff’s petition, and alleged that he had occupied the room as a law office, but never from month to month, and that on or about the 24th day of October, 1879, he “hired the room of one Sarah Cronk, and that she let and rented to him the said law office for the term of five years and one month, etc.,” which period had not expired. The testimony in regard to the giving of the lease to Barlow by Sarah Cronk was very conflicting. Plaintiff testified (under objection): “I was the owner of two-eighths; I now own the whole of it;” and, further: “I have the conveyance of these premises in writing.” Sarah Cronk died prior to the commencement of the ejectment proceedings.'

      Jacob JÉ. Oluie, for app’lt; O. M. Barlow, in person.
   Learned, P. J.

The learned county judge has not stated the reasons for which he reversed the judgment of the justice of the peace. But several reasons for that conclusion might be given.

It is doubtful whether the petition sufficiently shows the relationship of landlord and tenant. At any rate, the proof fails in that respect. The defendant evidently went into possession as tenant under Sarah Cronk, since deceased, the mother of plaintiff. It is not properly shown that he succeeded to her title. He simply swears that he is owner; that he was the owner of two-eighths and is the owner of the whole. On cross-examination he stated that he had a conveyance in writing; and yet on defendant’s motion the justice refused to strike out the testimony as to ownership, on the ground that there was higher evidence. He should have proved the descent or devise of the land and the conveyance thereof from heirs or devisees.

Again, the proof offered of service of notice to quit was altogether imperfect. The person who served the paper did not know what it was, nor did he testify when it was served.

The parties appeared on the return day, July 12, and on plaintiff’s motion the justice adjourned to-July 23—more than ten days. Code, § 2248. On this adjourned day the defendant moved to dismiss the proceedings on the ground, among other things, that the justice had lost jurisdiction.

Judgment of county court affirmed, with costs.

Bockes and Landón, JJ., concur.


author: Hardin, P. J.

text:
    Osander Bishop, Appl’t, v. Caleb V. Stebbins et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1886.)

    1. Debtor and creditor—Debtor mat pat his debts bt transfer of his _ PROPERTY
    In an action brought by a judgment-creditor to set aside a transfer of real and personal estate on the ground that they were fraudulent and void as to creditors of the judgment-debtor. Held, that it was lawful for a debtor t© pay his debts by a transfer of his property.
    3. Action to set aside transfer as fraudulent—Debtor may prefer ONE CREDITOR OVER ANOTHER IN MAKING PAYMENT.

      Held,, that a debtor has a right to prefer one or more of his creditors over the others, and so long as he exercises this right honestly and in good faith, his acts, whether the preferences be created by sale or pledge are unimpeachable.
    3. Same—Evidence of fraud in transfer—What is not conclusive.

      Held, that the fact that the transfers covered substantially all the property of the debtor was not conclusive evidence of false intent..
    4. Same—To attack transfers successfully fraud must be shown in purchaser.

      Held, that to successfully attack the transfers it was incumbent on the plaintiff to show a fraudulent intent on the part of the purchaser.

      11. Ij. Bronson, for app’lfc; B. H. Buell, for resp’t.
   Hardin, P. J.

Findings of fact have been made upon evidence warranting the conclusions stated, to the effect that the transfers and conveyances were made for the purpose of paying just debts due to Andrew Stebbins for services rendered and personal property sold, and for assuming the mortgage to Jewett and the debt to Chittenden, and the liability by reason of the provision in Titus Stebbins’ will to support Warren Stebbins, and that the transfers were made without any fraud or fraudulent intent.

We are of the opinion that all the conclusions of fact in that regard were well supported by the evidence given upon the trial. The rule is that the determination of a question of fact will not be disturbed, on appeal, where there is no decided preponderance of evidence against the view adopted by the trial court. Hoffman v. De Graaf, 23 Weekly Dig., 394. It was lawful for the debtor to pay his debts by a transfer of his property. Stacy v. Deshaw, 7 Hun, 449.

A debtor has a right to prefer one or more of his creditors over the others, and so long as he exercises this right honestly and in good faith, his acts, whether the preference be created by sale or a pledge, are unimpeachable. Board of Chosen Freeholders of the County of Essex v. Lindsley, 5 East. Rep., 117. The fact that the transfers covered substantially all the property of the debtor was not conclusive evidence of a fraudulent intent. It was a circumstance, among others, to be weighed in determining the intents and purposes of the parties. Remington Paper Company v. O’Dougherty, 36 Hun, 79; Hale v. Stewart, 7 id., 591. The plaintiff assumed the burden of establishing fraudulent intent on the part of Andrew Stebbins the purchaser. Remington v. O’Dougherty, supra; Woodworth v. Sweet, 51 N. Y., 8; Dudley v. Scranton, 57 id., 424.

To successfully attack the transfers it was incumbent upon the plaintiff to show a fraudulent intent on the part of the purchaser of the property. Remington v. O’Dougherty, supra; Parker v. Conner, 93 N. Y., 118.

Titus Stebbins, in 1844, made a will appointing his son, Caleb V. Stebbins, his executor, and m the will certain pecuniary legacies were given to parties named, and the executor was ordered and directed to maintain the testator’s son, Warren Stebbins, in the language embraced in the following statement of facts, and following that language the following provision, viz.: “I give and bequeath unto my son, Caleb V. Stebbins, all the remainder of my real and personal property.” Under the will Caleb took the farm owned by his father, at the time of his death, consisting of about 127 acres, and immediately took upon himself and assumed the care and maintenance of Warren down to December 21, 1881. Caleb supposed by taking the farm that he assumed the maintenance of Warren. We think the burden was accepted by Caleb and rested upon him at the time of the sale in 1881 to the defendant Andrew. Scott v. Stebbins, 91 N. Y., 606; Brown v. Knapp, 79 id., 136; McCorn v. McCorn, 100 id., 511; Bushnell v. Carpenter, 28 Hun, 19. When Caleb sold the farm he supposed, and as we think correctly (Bushnell v. Carpenter, 28 Hun, 19; S. C., affirmed, 92 N. Y., 270), that the burden rested upon the farm and upon him, and he took care to have that obligation assumed by Andrew, and allowed and paid $1,000 for such assumption of his liability by Andrew, and to secure the performance of the obligation took the bond of .Andrew conditioned to discharge such liability and to indemnify him against it.

We think the sum was reasonable, and that no fraud or fraudulent intent was evinced by the arrangement. Warren was advanced in years, irritable and untidy in his habits, and required unusual care, support, maintenance and management. His expectancy of life was about four and one-half years by the Northampton tables. He lived some eighty-one- weeks after the obligation given by Andrew, and was properly cared for, such care requiring valuable services and considerable expenditures.

We are satisfied with the view the trial judge took of that branch of the case. Morgan v. Potter (17 Hun, 403) does not aid the appellant. There it appeared the transfer was voluntary, no valid consideration upheld it, and that there was a fraudulent intent. Pond v. Comstock (20 Hun, 492) was unlike this case. There the conveyance was made with a fraudulent intent on the part of the grantor. The same is true of Union National Bank v. Warner (12 Hun, 306). Here the vendor sold his property for an adequate consideration, and in good faith. Though he had no other property, the sale is not for that reason to be held fraudulent. Hale v. Stewart, 7 Hun, 591; Remington v. O’Dougherty, supra; Parker v. Conner, supra.

That a debtor may prefer a creditor has been repeatedly held, or may pay a bona fide creditor even when insolvent, and even if it require the sale or transfer of all his property to satisfy an honest debt or liability. Remington v. O’Dougherty, supra; Auburn Exchange Bank v. Fitch, 48 Barb., 344. The evidence given upon the trial presented a question of fact as to the note of $331. The facts appear from interested witnesses. Some of the evidence was vague and contradictory. We cannot say that the finding in regard to the note is not supported by sufficient evidence properly interpreted. The credence to be given to the witnesses speaking in regard to it was considered and passed upon, and according to settled .authority we ought not to disturb the result. Michigan Carbon Works v. Schad, 38 Hun, 71.

Andrew Stebbins bought the property in good faith, in December, 1881, for a full and fair consideration, with no knowledge of or participation in any fraud, and he acquired by such purchase a good title, and bis rights and equities in it (except as allowed by the trial court), are superior to those oi the plaintiff. Starin v. Kelly, 88 N. Y., 418; Zoeller v. Riley, 100 id., 108.

After weighing all the evidence and considering all the circumstances disclosed at the trial, we are of the opinion that the trial judge reached the proper conclusions of fact, and that those conclusions accord with the preponderance of the evidence, and that his decision upon the facts and law of the case should stand.

The judgment should be affirmed, with costs against appellant.

Boabdman and Follett, JJ. concur.


author: Habdin, P. J. Follett, J.

text:
    Hugh T. Jones, as ex’r, etc., of Thomas U. Jones, deceased, Appl’t, v. William T. Jones, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1886.)

    .1. Executors and administrators — Debtor and creditor—AdmissiBILITITY OE PROOF — EVIDENCE TO SUSTAIN AN ACTION FOR MONEY RECEIVED FROM A DECEASED PERSON.
    Where the plaintiff as executor alleged in his complaint that the defendant had received certain money which belonged to the testator, and defendant alleged a gift of it, and gave proof to that effect: Held, that plaintiff then had a right to show, by way of avoidance of the gift, that it was in fraud of his rights as executor as well as of himself as creditor; that to bring the case within the provisions of Laws of 1858, chap. 314, section 2, plaintiff had a right to show that he was a creditor of the testator at the time of the alleged gift. Also Held, that it was error to exclude a note made by the testator payable to plaintiff, dated November 7, 1882, when the transfer or gift by the testator was not until January 29, 1883. Eolizett, J., dissenting.
    2. Pleading—What sufficient allegations to bring action within Laws of 1858, chap. 314.
    Where plaintiff, who sued as executor, had alleged the taking and receipt by the defendant of testator’s property at a time subsequent to the time when the testator gave anote to him as creditor, whichnote was still unpaid, the allegations were sufficient to bring the action within the provisions of Laws of 1858, chapter 314.
    Appeal from an order denying a motion for a new trial made upon the judge’s minutes, and from a judgment entered in Oneida county upon á'verdict directed by the court in favor of the defendant.

      Walter Ballou, for app’lt; Bentley & Jones, for resp’t. '
   Habdin, P. J.

The plaintiff brings this action as executor of Thomas U. Jones, deceased, having duly qualified as such. The complaint alleges that the defendant received $1,035 in money the 13th of January, 1883, which belonged to the testator.

The fact is shown, by the evidence given upon the trial, that on the day alleged the defendant did receive that sum of money through the express from the attorney in Boon-ville. That money belonged to the testator. The defendant-sets up title to that money by a transfer in consummation of a gift alleged to have occurred on the 29th of January, 1883, and gave some evidence tending to show that a transfer and gift were made by the testator to the defendant. Thereupon the plaintiff sought to overcome the force of such evidence of a gift and transfer by showing that the gift or transfer was a fraud upon the creditors of the testator, including the executor, who was- interested in the estate and a creditor. To make such proof the plaintiff “produced and proved the execution of a note made by Thomas U. Jones, dated November 1, 1882, whereby he-promised to pay Hugh T. Jones, or bearer, the sum of eleven hundred and fifty dollars on demand with use, for value received, and offered said note in evidence. The-same was objected to and excluded by the court on the ground that it was not competent under the pleadings. ” Plaintiff excepted to the ruling.

Section 2 of chapter 314 of the Laws of 1858 declares r “that every person who shall, in fraud of the rights of creditors and others, have received, taken, or in any manner interfered with the estate, property or effects of any deceased person, * * * shall be liable in the proper action to the executors, administrators * *. * for the same, or the value of any property or effects so received or taken.”

The plaintiff, as before stated, had alleged that the defendant had received the money of the testator. Defendant had alleged a gift of it and gave proof to that effect. Plaintiff then had a right to show, by way of avoidance of the gift, that it was in fraud of his rights as executor as well as of himself as a creditor. To bring the case within the provisions of the statute of 1858, plaintiff had a right to show that he was a creditor of the testator at the time of the alleged gift. The plaintiff offered to read in evidence a note made by the testator, dated November J, 1882, for $1,150. The transfer or gift by testator was not until January 29, 1883. We think the evidence, when offered, was legitimate, and that the court erred in excluding it., Plaintiff had alleged the taking and receipt by the defendant of testator’s property at a time subsequent to the note, and those allegations were sufficient to bring the action, within the provision of the statute of 1858. The issue, at the time the evidence was offered, was as to the validity of.' the gift as against the creditors of the testator. The evidence bore upon the issue. The pleadings were sufficient to unable the plaintiff to assert the invalidity of the transfer. Laws of 1858, chap. 314; Barclay v. Quicksilver Mining Co., 6 Lans., 32; Potts v. Hart, 99 N. Y., 170.

In the case last cited the complaint was general, “alleging that the defendants wrongfully took and carried away,15 etc. The answer was a general denial, but a recovery was upheld under the statute of 1858. The act of 1858 has given a right of action in cases where none existed before. Fort Stanwix Bank v. Leggett, 51 N. Y., 554; Ceas v. Bramley, 18 Hun, 187; Southard v. Benner, 72 N. Y., 424.

In Ceas v. Bramley (18 Hun, 189), Boardman, J., says: The statute extends the remedy of a representative. In that case we find the complaint was general for. the value of the property taken by the defendant, who set up an agreement under which he claimed to be entitled to the possession of the property. The point was taken in that case that the evidence was improper under the pleadings and overruled and a recovery was upheld. Levio v. Russell, 42 N. Y., 251. The defendant here insists that the attention of the court should have been directed to the reasons for offering the evidence. If the evidence had not been admissible upon the issue as it stood there might be force in the suggestion. Knapp v. Simon, 96 N. Y., 284.

The case of Langley v. Wadsworth (99 N. Y., 61) differs from this one. Their letters had been introduced to show the note to be spurious, and then defendant moved for a verdict and that was refused. Upon appeal he sought to take another and a fresh position by claiming that the letters showed a want of consideration for the note. It was held that the position was taken too late. Thayer v. Marsh (75 N. Y., 341) was a case where there was a general motion for judgment without specifying the particular defect complained of, which was raised for the first time on appeal, and the court held it was too late.

In the case before us the court fell into an error in ruling that the evidence was not competent under the pleadings. For that error a new trial should be ordered.

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

Board max, J., concurs.

Follett, J.

(dissenting).—Chapter 314, Laws 1858 (3 R. S. [7th ed.], 2330), does not authorize the plaintiff to recover the gift unless it was fraudulent and void as against creditors. If, at the time of the gift, the testator retained sufficient property for the payment of his creditors the gift was valid. There is no evidence in the case that the testator was insolvent at the time of the gift, or at the date of his death, without proof of which a recovery could not be had. When the note given by the testator to the plaintiff was offered in evidence and excluded it was not suggested that the plaintiff proposed to show that the testator was insolvent; and this being the case there was no error in the ruling. As the case stands, the plaintiff was not entitled to a direction for the recovery of $150, upon an apportionment of the $300, which would have become due the testator had he lived until January 1, 1885. 2 Perry on Trusts, § 556.

The judgment should be affirmed, with costs.


author: Martin, J. By the Court.

text:
    Mary A. Blashfield, as Adm’x of Polly Blashfield, Deceased, App’lt, v. H. Wilson Blashfield, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1886.)

    Costs—Awarded to both parties where there is a recovery by each ON DISTINCT CAUSES OP action—Oode Oiv. Pro., §§ 8284, 3265.
    Action was brought - on'two promissory notes. As to one of which the statute of limitation was set up as a defense and sustained by thq court who dismissed the complaint as to that. On the other the plaintiff, recovered judgment. At the taxation of costs there was no certificate that the substantial cause of action was the same upon each issue as provided in Code, Oiv. Pro. § 3234, and the defendants was allowed to tax costs against the plaintiff. Oode Civ. Pro. § 8284 provides that “in an action specified in section 3228 of this act, wherein the complaint sets.for.th separately two or more causes of action, upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues and the defendant upon the other or others, .each party is entitled to costs against the adverse party, unless it is certified that the substantial cause of action was the fame upon each issue, in which case the plaintiff alone is entitled to costs.” Held, that while the plaintiff who was successful as to one cause of action, was entitled -to a bill of costs, the defendant, who was equally successful- as to the other cause of action, was also equally entitled to costs under Code Civ. Pro. § 3234.
    Appeal from an order made at the Chemung special term denying a motion to set aside the taxation of defendants’ costs herein. Judge Martin delivered the following opinion on deciding the motion from which this appeal is taken.
   Martin, J.

This was a motion under section 3265 of the Code, of Civil Procedure for a new taxation of costs. The action was brought to recover the amount of two promissory notes made by the defendant. One was for $200, dated January 18, 1886; the other was made January 18, 1872, to secure the payment of $100.13. The complaint alleged the making of the notes; the death of the payee; that' the plaintiff was duly appointed as the representative of the, deceased payee; that'spe was then the owner and holder of the said notes and demanded judgment for the .amount of both notes, with costs.- The answer set up the statute of limitations as' a defense to each of said notes. On the trial, at the close of the plaintiff’s evidence, the defendant asked “that the $200 note be stricken out and ehminated from the case, on the ground that there is no evidence upon which the plaintiff can recover on such note. That the note is barred by the statute of limitations. ” This application was granted.

The judge, in his charge to the jury, said: “The defendant puts in a defense to this action on these two notes, that they are barred by the statute of limitations, and that is the issue which is brought here for trial. Now, upon that issue, the larger of the two notes I find to be outlawed, and the plaintiff cannot recover, and I have stricken that out of the case, leaving the only question for you to determine in regard to the smaller note of the two.” There was no certificate that the substantial cause of the action was the same upon each issue, as provided in section 3234 of the Code of Civil Procedure. Upon a retaxation of the costs by the clerk of Cortland county, the defendant was allowed to tax costs against the plaintiff, on the ground that the defendant recovered upon the issues of fact joined as to one of the causes of action set forth in the complaint. The correctness of this determination by the clerk is the only question involved on this motion.

Section 3234 of the Code of Civil Procedure provides that “in an action specified in section 3,228 of this act, wherein the complaint sets forth separately two or more causes of action, upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues and the defendant upon the other or others, each party is entitled to costs against the adverse party, unless it is certified that that the substantial cause of action was the same upon each issue, in which case the plaintiff only is, entitled to costs.”

In Kilburn v. Lowe (31 Hun, 237, 240), Mr. Justice Follett, delivering the opinion of the court in that case, in commenting upon this provision of the statute, says: “The apparent design was to give both parties costs in a case in which the complaint sets forth more than one cause of action, provided both parties recover upon one or more of the causes of action.” See, also, Seymour v. Billings, 12 Wend., 285; Shannon v. Howell, 36 Hun, 47. It seems to me that such was the obvious intent of the statute.

The complaint in this action sets forth, separately, two causes of action, upon which issues of fact were joined. If, however, it were otherwise, and such causes of action were not separately stated, still, as the complaint clearly contained two separate causes of action, as to one of which each of the parties succeeded, each would be entitled to costs if the defendant recovered upon one of the issues within the spirit and meaning of that section. Seymour v. Billings, Shannon v. Howell. Kilburn v. Lowe, supra.

Did the defendant recover upon the issue raised by the pleadings as to the $200 note ? That he succeeded in his defense to that note is manifest. That the jury actually found a verdict in his favor upon the issues made in regard to it is not pretended. When the plaintiff rested, on the defendant’s motion, the court, in effect held that under the evidence, as a matter of law, it was barred by the statute of limitations. It decided that the plaintiff could not recover thereon. If this had been the only cause of action it would have entitled the defendant to costs. Does the fact that the court determined this question, instead of directing the jury to find for the defendant upon it, change the result, so far as this question of costs is concerned ? The court in effect held, as a matter of law, that the plaintiff could not recover upon the issue joined in that cause of action. Would it have been more than such a holding if it had directed the jury to find for the defendant ?

In Williard v. Strachan (3 Civ. Pro. R., 452), where there were two separate counts in a complaint, to which the answer was a general denial, and on the trial the complaint was dismissed as to the first count, because it appeared that the note therein sued upon was given for the individual debt of the partner of the defendant, which defense was not specially pleaded, and the plaintiff had a verdict in his favor on the second count, held that the point on which the complaint was dismissed was not the substantial issue in the case, and the clerk under the circumstances properly refused to tax costs in defendant’s favor; that the plaintiff, having obtained the only verdict rendered by the jury, was entitled to the costs of -the action. Section 3234 of the Code applies only to cases where the defendant had a verdict on the separate count.

In Cooper v. Jolly (30 Hun, 224; affirmed, 96 N. Y., 667), in an action to recover on twenty-three causes of action for penalties for adulterating milk, the answer was a general denial. On the trial evidence was given tending to establish thirteen. A verdict was rendered “for two counts, at fifty dollars each, amounting to one hundred dollars.” The defendant claimed costs. It was held that the claim was not well founded, as the defendant had not recovered upon any of the issues within the meaning of section 3234. In delivering the opinion in that case, Haight, J., says: “It thus appears that under the statute (2 R. S., 616) the rule was that in order to entitle the defendant to recover costs there must be a verdict or finding in his favor upon one or more of the counts set forth in the declaration; that where there was a general verdict in favor of the plaintiff and no separate verdict rendered for the defendant, he could not recover costs. Applying the same rule to the section of the Code 'under consideration, and it follows that there must be a separate and distinct recovery on the part of the defendant in order to entitle him to costs.”

In Barlow v. Barlow (35 Hun, 50), the complaint set forth two causes of action: The first, upon a promise made by the defendant to pay an agreed price for work and labor performed by the plaintiff prior to March, 1868; the second, upon an implied promise to pay for work and labor performed and rendered by him after that date and prior to 1880. Upon the trial before a referee she recovered upon the first, but not upon the second cause of action. The court directed that the defendant’s costs be taxed and set-off against the plaintiff’s judgment. _ Held, that this yfas error; that the defendant was not entitled to recover costs, as the substantial cause of action was the same upon each issue within the meaning of those terms as used in section 3234 of the Code of Civil Procedure, and because the defendant had not recovered upon any issue within the meaning of the said section.

It is contended by the plaintiff that the foregoing authorities are decisive of the question under consideration. I do not think so. In the Willard case the defendant did not succeed upon the substantial issue in the case. The ground upon which the action was dismissed was not pleaded. In the Cooper case it was held that the defendant had not recovered upon any of the issues, because there had been no verdict or finding in his favor. In the Barlow case it was held that the cause of action was substantially the same on each issue. In none of these cases was the question -under consideration in this case directly involved. While there may be expressions in the opinions of those cases which might be regarded as sufficiently broad to include the question involved in this, still I cannot believe that they were so intended, or that they should be so construed. In this case two causes of action were contained, and separately stated in the complaint. The defendant tendered as issues that each was barred by the statute of limitations.

At the close of the plaintiff’s evidence it appeared conclusively that this issue as to the $200 note must, as a matter of law, be decided in the defendant’s favor. The court so decided it, instead of directing the jury so to find. The fact that it was decided by the court, instead of by the jury under the direction of the court, is not, I think, controlling upon this question. There was certainly a finding in favor of the defendant upon that issue. The court must have found that the evidence conclusively established the defense interposed by the defendant. The defendant, I think, possesses the same right to costs that he would have possessed had the court directed a verdict for the defendant on the cause of action on the $200 note. There was in this case a substantial determination of the issues in both causes of action set out in the complaint. One was determined by the court in favor of the defendant, the other in favor of the plaintiff by the jury. The plaintiff recovered upon one of the issues, defendant upon the other Hence, I am of the opinion that the taxation of costs by the clerk was correct, and that this motion should be denied, with costs.”

Frank Pierce, Jr., for app’lt; Oliver Porter, for resp’t.

By the Court.

The order allowing defendant a bill of costs for successfully defending one of two causes of action upon promissory notes, should be sustained. The defendant interposed the statute ef limitations to such cause of action, and the court held as a matter of law, upon the evidence, that the statute was a bar. While, therefore, the plaintiff, who was successful as to one cause of action, the defendant, who was equally successful as to the other cause of action, was also' equally entitled to costs under section 3234 of the Code.

The later authorities relating to this section are: Cooper v. Jolly, 30 Hun, 224, affirmed, 96 N. Y., 667; Barlow v. Barlow, 35 Hun, 50; Ackerman v. De Lude, 36 id., 44; Williard v. Strachan, 3 Brown, C. P. R., and Kilburn v. Lowe, 37 Hun, 237.

The order should be affirmed, with ten dollars- costs and printing disbursements on opinion of Mr. Justice Martin at' special term.

Present—Hardin, P. J., Follett and Boardman, JJ.


text:
    Lonzo M. Howell, App’lt, v. Thomas R. Wright, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1886.)

    Bills and notes—What is a sufficient consideration for a promissory note.
    Where the answer in an action brought on a promissory note denied the ownership of the note and. alleged that it was without, consideration and void, and upon the trial the- evidence tended to show that K as agent of one Case received from O. H., who is the payee named in the note in suit, certain notes drawn by defendant, which were then past due and that K as such agent, paid O. fi. fifty per cent of their face valué and received the past due notes. And the defendant’s testimony showed that plaintiff yielding to his request after he (the defendant) “ promised to sign the note for the balance ” took the fifty per cent of the past due notes, and. that after-wards the nóte in suit was given'by defendant to O. H. ih compliance with said promise. Held, there'was sufficient-consideration for the note shown by the evidence.

      Appeal from a judgment entered upon a verdict rendered at the Oswego circuit, and from an order denying a motion for a new trial made upon the judge’s minutes, upon exceptions, and upon the ground that the verdict was contrary to the evidence.
    The action was brought upon a promissory note which read as follows:
    “ $1,535.55. Fulton, Oswego County, N. T», \

      September 3, 1884. )
    Six months after date I promise to pay to O. Howell or bearer fifteen hundred thirty-five and 55-100 dollars at the residence of T. B. Wright, in Oswego Falls, value received with use.”
    [Signed] “T. B. WEIGHT.”
    The complaint alleged the transfer of the note for value before maturity to the plaintiff and that the plaintiff was the owner. On the trial the note was put in evidence by the plaintiff who then rested. The defendant proved by one Kellogg, that on September 3, 1884, he received from Orlando Howell, who is the payee in the note in suit, three notes drawn by the same T. B. Wright, on which there was then due $3,069.50, and that he paid the said Orlando Howell for them $1,535.55, that he received the three notes and paid the money as the agent of one George M. Case.
    The defendant was called as a witness and testified that he had a conversation with Orlando Howell, the payee of the note, on September third and that in that conversation he told said Howell he would sign a note for the other half and that the conversation was prior to his going to Kellogg and receiving the money. That he did not sign the note at that time, but advised him to take Jiis fifty cents on the dollar and “promised to sign the note for the balance,” which note was afterward given in accordance with said promise.

      Howe & Rice, for app’lt; S. H. Dada, for resp’t.
   Hardin, P. J.

When the plaintiff produced the promissory note and read the same in evidence it established prima facie a sufficient consideration. The words, “value received,” are sufficient prima facie to make out a consideration for the promise contained in the note. Hinman v. Moulton, 14 Johns, 466; Bank of Troy v. Topping, 9 Wend., 273.

It is well settled that one promise is a good consideration for another. Briggs v. Tillotson, 8 Johns, 304. However, they must be concurrent. Cooke v. Oxley, 3 D. & E., 653; Livingston v. Rogers, Coleman & C. Cases, 331. An agreement to render services or to perform an act is a valid consideration for a promise. Taylor v. Rennie, 35 Barb., 272. And an injury to one party as well as benefit to another is sufficient consideration for a promise. Miller v. Drake, 1 Caines, 45. However, the benefit to one party or the injury to the other which can avail as a consideration to support an agreement, must be a benefit to which the party is not entitled, except as a consideration of his undertaking, for the injury must be to to the legal rights. Converse v. Kellogg, 7 Barb., 590; Beckwith v. Brackett, 97 N. Y., 52.

The burden was upon the defendant to show that there was not any consideration for the note in suit to overcome a prima facie case made by the production of the note. We think the evidence given upon the trial established the fact that the note in suit was given by the defendant to Howell in pursuance of a request to Howell that he should transfer the notes of $3,000, and that on condition that they were so transferred the defendant would execute the note in suit.

We think the testimony of the defendant, viewed as evidence, or viewed as admissions on the trial, coupled with the note produced and read in evidence, with the surrounding circumstances, satisfactorily indicate that Howell consented to part with the $3,000 notes for fifty cents on a dollar, on condition that he receive the note in suit. Yielding to the request of the defendant, and making a transfer of the $3,000 indebtedness for fifty cents on a dollar to Case, and the reliance upon the promise of the defendant to give his note for the other fifty cents on a dollar, furnished a consideration for the note in suit.

But if we-view the evidence in another light, it seems to justify a conclusion that the defendant undertook and promised, with Orlaijdo Howell, in the event he would take fifty cents on a dollar for the $3,000 of debt from Case, ana transfer that indebtedness to Case (which was long past due), that he, the defendant, undertook, and his own language as he states it upon the stand, “promised to sign the note for the balance.” The note in suit was given on six months time. If it be treated as being given for the balance of the $3,000 debt, then by the terms of the arrangement the defendant secured himself an extension of fifty cents on a dollar of the $3,000 debt for the period of six months. We see no reason why the promise of the defendant, found in the note in suit, should not be upheld.

In Stafford v. Bacon (25 Wend., 384), it appeared that the defendant had compromised Ms debt by paying one-third thereof, and after the compromise had promised “to pay the balance,” and the court held “that such promise is binding, although made without any new consideration moving thereto.”

Certainly there was a precedent duty and obligation on the part of the defendant to pay to his creditor 100 cents on a dollar on the $3,000 debt, and when he requested his creditor to part with that obligation for fifty cents on a dollar, and promised to pay the other fifty cents, and executed a note in pursuance of that promise, the note was supported by a valuable consideration. Section 182 of Daniels on Negotiable Instruments. It is said in the section to which we have referred that a promissory note for the payment of a debt discharged in bankruptcy, or barred by the statute of limitations or volmitarily released '* * * would be valid as upon any other valuable consideration.” The foregoing views lead us to a conclusion that the verdict is against the evidence upon the question of consideration for the note in suit. We think there should be a new trial.

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

Boardmar and Follett, JJ., concur.


author: Follett, J.

text:
    Chauncey S. Butler and George H. Butler, Appl’ts, v. Julia A. Johnson, ex’rx, etc., of William P. Johnson, deceased, and individually, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1886.)

    1. Statute of limitations—When heir or devisee mat set it up ln PROCEEDINGS FOR THE SALE OF REAL ESTATE UNDER THE DECREE OF A SURROGATE.
    The testator of William P. Johnson, at his death in 1871, was indebted to certain persons, clajms for which debts were presented to the executrix, in pursuance to the published notice, and accepted by her. ' These claims not being paid were sued and judgment obtained against the executrix. The debts of the testator exceeded the. value of the personal property left by him, but he left real estate valued above incumbrances at $110,000. In March, 1882, the residuary legatees and devisees divided the estate between them. To one of them, M, J. B., was conveyed the land in question, together with other land, she having conveyed to the others the remainder of the estate, said others agreeing to pay all the liabilities of the estate. The plaintiffs in this action acquired title to the real estate in question by conveyance from M. J. B., and had purchased with knowledge of the situation of the estate. In 1881 the surrogate, on petition, decreed that all of the unpaid debts and the unpaid legacy should be paid by the executrix and M. J. B. out of the assets in their hands. M. J. B. appealed from the surrogate’s decree, and it was reversed as to her, but remained in full force as to the executrix, she not having appealed. In 1883 the executrix advertised to sell the premises in question (which had been acquired by plaintiffs as aforesaid from M. J. B ) to satisfy the debts of her testator and the decree of the surrogate aforesaid. This action was then commenced to perpetually enjoin the executrix from selling. XLeld, that the executrix acquired no power to sell the land under the surrogate’s decree; that her power to sell is derived solely from the will; that over ten years having elapsed between the probate of the will and the date of the advertisement under which the executrix attempted to sell, the statute of limitations had run against these claims and that the devisees could plead it against them, notwithstanding the fact that the judgment had keen recovered upon them against the executrix.
    2. Same—When plaintive can plead it.
    The plaintiffs being in possession of the land, claiming to own it, and the defendant having begun proceedings which, if concluded, would at least cast a cloud upon plaintiffs’ title, the statute of limitations may be used by the plaintiffs, the action being strictly in defense of their title.
    3. Same—When it begins to bun against legatee under 2 Rev. Sta„t., 114, § 9—Code Civ. Pbo., § 1819, not applicable '
    The right to recover a legacy accrues within one year after the issuing of letters testamentary, at which date the statute of limitations began to run, under 2 Rev Stat., 114, § 9. Section 1819 of Code of Civil Procedure is not applicable to this case, as it did not take effect until more than two' years after the right to recover this legacy had been barred. Shannon v. Howell, 36 Ilun, 47, distinguished
    4. Same—When mat be interposed bt heirs.
    The statute of limitations runs against the execution of a mere power in trust and may be interposed in favor of an heir or devisee.
    Appeal from part of judgment entered upon a trial at the special term, Otsego county.
    The executrix of the will of William P. Johnson had advertised certain land for sale, under a decree made by the surrogate, and this action was commenced for a perpetual injunction restraining the sale of the premises by the executrix.
    The testator was indebted at his death, in 1811, to three certain persons to an amount aggregating $1,500. The executrix, in 1812, advertised for the presentment of claims against the estate, and these three claims were presented and accepted-by the executrix. The testator left debts amounting to about $10,000 over and above the value of his personal property, but left real estate valued at $110,-000 over and above all his debts and liabilities. The three debts mentioned above not being paid, suit was brought against the executrix and judgment recovered against her in 1811, and these three judgments were assigned to the same person. By one of the codicils to the testator’s will,, a legacy of $1,500 was given to Emma J. Darrow, which had never been paid. All the debts and legacies have been paid except those before mentioned, and some incurred by the executrix in managing the estate. By the will the residue of the estate, after paying the legacies and providing for the trusts provided in the will, was divided between George Tunnicliff, Mary J. Butler, Harriet H. Carey and Louisa A. Blake.
    In 1881, Emma J. Darrow filed a petition in the surrogate’s court, in which petition B., who held the assignments , of the three judgments aforesaid, joined, asking for an order that the debts and legacy be paid. The surrogate made a decree that all the debts and legacy be paid by Julia A. Johnson, the executrix, and Mary J. Butler out of the assets in their hands. Mary J. Butler had this decree reversed as to her on appeal, but the executrix did not appeal.
    In 1882, the residuary legatees and devisees divided the estate, by which division Mary J. Butler received, together with other lands, the land in question, as her share, and conveyed to the other three persons named, as joint legatees heretofore, the remainder of the estate, they agreeing to pay all liabihties of the estate. These three persons are insolvent.
    The plaintiffs in this action acquired title to the land in question by a conveyance from Mary J. Butler, and purchased with knowledge of the situation of the estate, therefore they are not purchasers in good faith.
    In 1883, the executrix, who is defendant herein, advertised these premises (acquired from Mary J. Butler) for sale, to satisfy the debts and pay the legacy, and the plaintiff thereupon commenced this action to perpetually enjoin her from so doing.

      F. G. Finche, for appl’ts; James A. Lynes, for resp’t.
   Follett, J.

The defendant acquired no power to sell the land under the surrogate’s decree, her power to sell is derived solely from the will. Ten years, seven months and twenty-three days elapsed between the probation of the will and the date of advertisement under which she attempted to sell. As against the devisees, the statute of hmitations had run as against these claims, notwithstanding the fact that judgment had been recovered upon them against the executrix. Sharp v. Freeman, 9 Lans., 171; affirmed, 45 N Y., 802; Raynor v. Gordon, 23 Hun, 264. The statute (2 R. S., 101, 102, § 10) permits a devisee, as well as an heir, to plead the statute of limitations against claims for the payment of which land is sought to be sold by proceedings under the statutes. Such also is the rule under the Code of Civil Procedure (§ 2755). It is clear that in the face of the statute of limitations the land could not, after this lapse of time, have been sold under the statute-authorizing the sale of land for the payment of debts.

It was held in Butler v. Bloomfield (MS. op., gen. term, third dept., May, 1882, Appeal Book, p. 96), that the executrix did not take the fee under the will, but that the fee passed directly to the residuary devisees, subject to the execution of the power in trust to pay debts and the legacy, if the legacy is a charge, and that there was no equitable conversion of the real estate into personalty. The statute of limitations runs against the execution of a mere power in trust, and may be interposed in favor of an heir or devisee. Dickinson v. Teasdale, 31 Beav., 511; affirmed, 1 De Gex, J. & S., 52; Coope v. Cresswell, Law Rep., 2 Ch. App. Ca., 112.

The more serious question is, whether the defendant could, as against the devisees, voluntarily execute the power of sale for the payment of claims which creditors ' could not enforce by reason of the lapse of time. The learned justice who decided this case at the special term held that the plaintiffs were not entitled to a decree restraining the sale, because the statute was designed as a shield and could not be invoked in aid of affirmative relief. Without questioning the correctness of the general rule laid down, we think it was misapplied in this case. The plaintiffs were in possession of the land, claiming to own it. The defendant had begun a proceeding which, if concluded, would at least cast a cloud upon plaintiffs’ title. This action is prosecuted strictly in defense of the plaintiffs’ title, seeking no affirmative relief as such against the defendant, except to prevent her from clouding their title. Suppose a statutory foreclosure of- a mortgage be commenced, all rights of action upon which are barred by the statute, would the owner of the fee be compelled to he by and permit his title to be clouded by a sale and defend an action of ejectment brought by the purchaser % We think not. The statute of limitations may be used defensively by a plaintiff when, as in this case, he is without an adequate legal remedy.

Emma Jane Barrow’s right to recover her legacy accrued June 28, 1872, one year after issuing letters testamentary (2 R. S., 114, § 9), at which date the statute of limitations began to run upon her to recover the legacy by an action at law, or by a proceeding in the surrogate’s court; and when defendant advertised the land for sale, February 21, 1883, the statute had been running ten years, seven months and twenty-three days, and her right to recover the legacy was barred. McCartee v. Camel, 1 Barb. Ch., 455; Smith v. Remington, 42 Barb., 75; American Bible Society v. Hebard, 51 id., 552; affirmed, 41 N. Y., 619, note; Clark v. Ford, 1 Abb. Ct. App. Dec., 359; S. C., 3 Keyes, 370; S. C., 34 How., 478; Loder v. Hatfield, 71 N Y., 92. Section 1819 of the Code of Civil Procedure, providing that the statute shall not begin to run until the executor’s account is judicially settled, did not take effect until September 1, 1880, more than two years after the right to recover the legacy had been barred, and it is not applicable to this case. Code Civil Pro., § 3352.

The question arising over this legacy is not governed by ' Shannon v Howell (36 Hun, 47), for the reason that the legatee had the right to compel the payment of the legacy at any time within one year after the letters were issued; while in the case cited, no person had become liable to pay the legacies when the assignee of the legatees sought to sell the land upon which the legacies were expressly charged. In that case the legatees had not concurrent remedies.

Any person interested in an estate as heir, devisee, legatee or creditor may, without the concurrence of the executor, interpose the statute of limitations as a defense to a claim brought against the estate. Partridge v. Mitchell, 3 Edw. Ch., 180; Shewen v. Vanderhorst, 1 Russell & Mylne, 347; Kendrick's Estate, 15 Abb. N. C., 189; S. C., 3 Dem., 301; Warren v. Paff, 4 Bradf., 260; Sharp v. Freeman, supra.

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

Hardin, P. J., and Boardman, J., concur.


author: Hardíi-t, P. J.

text:
    Acksuh Gunn, Resp’t, v. Adelbert Fellows et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1886.)

    1. Pleadings—Separation and numbering op causes op action required —Code Civil Pro., § 483—Remedy by motion.
    The plaintiff by her complaint alleged as follows, viz.: That the defendant and divers other persons, at the town of T., said county, on or about the 30th day of September, 1885, in the night time, and after the said plaintiff had retired, and while she was in bed, did wrongfully, wilfully, maliciously, feloniously, burglariously, riotously and notoriously break and enter the dwelling-house and premises, then occupied by the said plaintiff as a dwelling, in said town of T., and did then and there injure, break and destroy the said building and property, and furniture in and about said dwelling, and did make loud and boisterous noises, and did then and there threaten, insult, assault, beat, wound, terrify, frighten and injure this plaintiff in mind, person and health, so that she became frightened feeble and sore, and so remained for a long paces of time. * * * On a motion that the plaintiff be required to serve an amended complaint, wherein she should separately state and number the statement of facts constituting the cause of action against the defendant for trespass to the real and personal property of the plaintiff, and the facts constituting her cause of action for assault and battery * * * Held, that Code Civil Procedure, § 483, requires the statement of facts constituting each cause of action to be separate and numbered when the complaint sets forth two or more causes of action. That the remedy for an omission to comply with the requirement of that section is by motion and not by demurrer.
    3. Same—Causes of action—Trespass and assault—Must be separated AND NUMBERED.

      Held, that this requirement of Code Civil Pro., § 483, was not complied with in this complaint. That the first part of the complaint made out a distinct cause of action for trespass and the statement thereof should have been separated and numbered, and that the latter part of the complaint contained a statement of facts constituting another cause of action for assault and battery, and such statement should have been numbered and separated from the first cause of action.
    Appeal from an order of the special term of Onondaga county denying defendant’s motion that the plaintiff be required to serve an amended complaint, setting forth separately and numbering the statement of facts constituting the cause of action for trespass to the real and personal property of plaintiff, and the statement of facts constituting her cause of action for assault and battery against the plaintiff. The complaint alleged as follows: “That the defendant and divers other persons, at the town of Tully, said county, on or about the 30th day of September, 1885, in the night time and after the said plaintiff had retired, and while she was in bed, did wrongfully, wilfully, maliciously, feloniously, burglariously, riotously and notoriously break and entre the dwelling-house and premises, then occupied by the said plaintiff as a dwelling, in said town of Tully, and did then and there injure, break and destroy the said building and property and furniture in and about said dwelling, and did make loud and boisterous noises, and did then and there threaten, insult, assault, beat, wound, terrify, frighten and injure this plaintiff in mind, person and health, so that she became frightened, sick, feeble and sore, and so remained for a long space of time,” etc.
    The motion was denied on the ground that one cause of action was alleged in the complaint.

      Pierce & Stone, for app’lts; E. P. Moore & M. M. Waters, for resp’t.
   Hardíi-t, P. J.

Section 483 of the Code of Civil Procedure requires “the statement of the facts constituting each cause of action” to be “separate and numbered,” when “the complaint sets forth two or more causes of action.” The remedy for an omission to comply with the requirement of that section is by motion and not by demurrer. Bass v. Comstock, 38 N. Y., 21; S. C., 36 How., 382; Freer v. Denton, 61 N. Y., 496. If causes of action are improperly united, the remedy is by demurrer, whether properly separated and numbered or not. Goldberg v. Utley, 60 N. Y., 427. The facts stated in the first branch of the complaint, under the former system of pleading, would have justified a classification of the action as one for trespass. That term, “in its most extensive signification, includes every description of wrong.” ' 1 Chitty’s Pleading, 166. It was an action “for injuries committed with force.”

The same author says: “And the plaintiff may, in a declaration in trespass, unite a count for the battery or seduction of his servant, per quad servitium amisit, with a count for battery of the plaintiff himself. * * * PIowever, if these injuries be joined with a count in trespass then each should be stated to have been committed vi ei armis. ” 1 Ohitty’s Pleadings, 200.

The same learned author, at page 398, volume 1, says “ Thus, iu trespass for breaking and entering a house, the plaintiff may, in aggravation of damages, give in evidence the debauching of his daughter, or the battery of his servants under the general allegation alla enormia, etc., and yet the matter may be stated specially; but he cannot under the alla enormia give in evidence the loss of service, or any other matter which would of itself bear an action, for if it would, it should be stated specially.” Chitty’s Pleadings, 397; Handy v. Chatfield, 23 Wend., 35.

In Richardson v. Northrup (66 Barb., 87) Mullin, J., says: The rules of pleading at common law required distinct causes of action of the same nature to be stated in separate counts. And the joinder in the same count of several distinct causes of action, was consequently fatal on demurrer.”

We think the requirement of section 483 of the Code of Civil Procedure that “the statement of the facts constituting each cause of action must be separate and numbered ” was violated by the pleader who drew the complaint now before us. The first part of the complaint states a cause of action for breaking and entering the plaintiff’s dwelling house and injuring the building and property and furniture, which allegations make out a distinct and separate cause of action, and the statement in that regard should have been separated and numbered; and the other portion of the complaint contains a “statement of the facts constituting” another cause of action for assault and battery to and upon the person of the plaintiff, and such “statement of facts” should have been numbered and separated from the first cause of action.

We, therefore, differ from the special term and its order which denied the defendant’s motion “on the ground that but one cause of action, namely, trespass, is alleged in the complaint. Code of Civil Procedure, sections 481-483; Case v. Shepard, 2 Johns. Cases, 27; Benedict v. Seymour, 6 How., 298; Wiles v. Suydam, 64 N. Y., 175; Pomeroy’s Remedies and Rights, sections 452-462; Anderson v. Hill, 53 Barb., 238; Langdon v. Guy, 91 N. Y., 660; Fisher v. Conway, 21 Kan., 18; Durkee v. S. and W. and W. R. R. Co., 4 How. Pr., 226; Gooding v. McAlister, 9 How., 123; Zimmerman v. Shreever, 27 Albany Law Journal, 499.

Our attention is called to Van Leuven y. Lyke (1 Comst., 517), which was an action for trespass for injury to plaintiff’s animal’s by defendant’s animals, and the damages were described in the complaint, and it was not alleged or proven that _ defendant had knowledge of the vicious propensities of his animals. It was held damages could not be recovered. It does not aid the respondent here.

We have looked into the other cases cited by the respondent and do not find anything in conflict with the-views already expressed. In case the plaintiff recovers less than fifty dollars for trespass, a different rule as to costs would be applicable than would prevail in an action where the recovery was for an assault and battery for less than fifty dollars. In case the causes of action are separately stated and numbered, confusion and difficulties in regard to the rule respecting costs may be avoided. Code, sections 3228-3234.

We think the order appealed from in this ana the other eight cases should be reversed, with ten dollars costs and disbursements in one case, and the motion granted in all the cases, with ten dollars costs of motion in one case,, plaintiff to serve amended complaints within ten days from the service of a copy of this order.

Boardman and Follett, JJ., concur.


text:
    Lorinda P. Bennett, Resp’t, v. Lucy Crain, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1886.)

    Surrogate—Partnership—Judgment against surviving partner does NOT BIND THE REAL ESTATE OP THE DECEASED PARTNER—SUBROGATE NO POWER TO DIRECT PAYMENT OF SUCH A JUDGMENT—HlS ACTS REGULATED BY STATUTE.
    The defendant’s testator, Almeron W. Grain, and one Perry P. Crain, were partners, and as such, gave a note on which there remained a balance unpaid, for which balance judgment was recovered by the plaintiff herein against Perry -P. Crain, as surviving partner, and after exhausting her remedy against him, she (the plaintiff herein) presented a petition to-the surrogate, who issued citations to the_ executors of the will of Almeron. W. Grain, and on the return of the citations made a decree declaring the-plaintiff’s demand a valid claim against the estate of decedent, and ordered, his executors to pay the balance of the judgment out of the assets of the-estate. On their failure to do so an execution was issued by the surrogate: to the sheriff, under which he sold and executed a deed of the land in. question, which land had been devised to the defendant, Lucy Crain, the widow of the decedent. The defendant, being in possession, was evicted: from the premises by summary proceedings instituted before the county judge. Held, that the plaintiff failed to make a case entitling her to the-possession of the premises described in the proceedings before the county judge. That the surrogate exceeded his jurisdiction, and that plaintiff acquired no title to the land under the sale upon either of the executions.
    Appeal from an order of the county judge of Cortland county. The order was made in summary proceedings,, and awarded to the plaintiff the possession of certain land,
    Almeron W. Crain, the testator of defendant, who is his-widow, and Perry P. Crain, were partners in business at the time of decedent’s death under the firm name off Almeron W. Crain & Son. The firm had given a note for $1,000 to plaintiff, on which suit was brought against the-surviving partner, and judgment recovered and execution issued.
    Perry P. Crain and Charles A. Pierce were appointed. executors by the will of Almeron W. Crain, and upon the plaintiff failing to realize the amount of her judgment on the execution issued against the surviving partner, citations were issued to the above named executors by the surrogate to show cause why the balance of the judgment should not be ordered paid out of the decedent’s estate. On the return of the citations a decree was entered declaring the plaintiff’s claim against the estate to be valid and ordering the executors to pay it out of the assets of the estate. Upon their failure to do so an execution was issued to the sheriff under which he advertised and sold the real estate which Lucy Crain was in possession of as legatee of decedent. The deed given by the sheriff was duly recorded and defendant was evicted by summary proceedings, instituted before the county judge, the right of possession of plaintiff being based on the sheriff’s deed aforesaid. The will of the testator contained the two following clauses.
    “ Second. I give and bequeath to my wife, Lucy Crain, the house and lot where I now reside, together with the-household furniture and all appurtenances thereto belonging 'unconditionally. I also give and bequeath to my said wife, Lucy Crain, the use of all the remainder of my real estate and woolen machinery during her natural life; and if the said real estate and machinery shall fail to rent for a sum sufficient for her comfortable support and maintenance, then, and in that case, I order, direct and authorize that the amount may be raised either by mortgage or sale of the-said property.”
    “ Third. I give and bequeath to my son, Perry P. Crain, his heirs, executors, administrators and assigns all the rest, residue and remainder of my real and personal estate after paying the above named legacies, hereby empowering, ordering and directing him to pay all my debts, and collect all my dues, and to settle all demands for and against the several co-partnerships with which I have heretofore been connected.”
    In the proceedings before the county judge defendant objected to the proceedings on the ground that the surrogate did not have jurisdiction to make the decree, nor the sheriff to sell the property under the decree made.

      A. P. & D. C. Smith, for app’lt; I. H. Palmer, for resp’t.
   Hardin, P. J.

Appellant took title to the premises in question upon the death of Almeron W. Crain under his will, subject, however, to any equitable lien thereon which, might arise in favor of the creditors of the deceased.

A recovery of a decree or judgment against the personal representatives, as such, created no lien upon the said real estate. In the Matter of the Estate of James, 4 Redf., 236 Lynch v. Patchen, 3 Dem., 58. The judgment against the personal representatives of the deceased was not obligatory upon the heirs-at-law, the widow or devisees of the testator. Sharpe v. Freeman, 45 N. Y., 802. Such a judgment is not sufficient to render the plaintiff a judgment creditor of tho widow or heirs-at-law.’ Id.

The judgment or order which is authorized by section 2553 of the Code of Civil Procedure, is not a hen upon the real estate of tho decedent. Such a judgment' or decree may be enforced .by an execution against the property of tho party directed to make the payment. Code of Civil Procedure, section 2554. The defendant here was not such a party.

Whenever the surrogate goes beyond his statutory power he exceeds his jurisdiction, and his acts are not effectual in such case. Code of Civil Procedure-, section 2472. His power over real estate of a testator or intestate, in respect to its sale, depends upon the statute, which authorizes proceedings to sell or mortgage, to enforce payment of debts in case there be not personal property applicable therefor. No. such decree, as the statute referred to authorizes was held by the respondent, who recovered a decree declaring her claim valid against the estate of A. W. Crain, deceased, “and that1 the executors shall pay the' same out of the assets of the estate of Akneron W. Crain, now in their hands.” That, decree did not authorize the sheriff to sell the real estate of the appellant, and the sale under that decree did not divest the appellant of her title to or interest in the real estate devised to her by her husband. The respondent failed to make a case entitling her to the possession of the premises described in the proceedings had before the county judge of Cortland county.

The learned county judge, in his opinion, refers to The People v. Mc Adam (84 N. Y., 294), and opinion of Folger, Ch. J., for his conclusion that the proceedings may be maintained. That case differs from this one. There the property which fell to the hands of the executors was leasehold estate, and, therefore, passed to the executors as personal property as assets and for distribution. The learned chief judge so declared, and referred to his:opinion in Despard v. Churchill (53 N. Y., 199), in which latter opinion he says of such property that “at common law it is personal property.” The statutes of this state have for some purposes modified its character; estates for years are denominated estates in lands. 1 R. S., 722, 1, etc. They are still chattels real (id., 722, § 5), and are not classed as real estate in the chapter of “title to property by descent.” A judgment binds and is a charge upon them as assets for distribution. 2 id., 82, section 6; see Pugsley v. Aikin, 11 N. Y., 499. “They vested in the executors as a part of the testator’s personal estate.” The case People v. McAdam (supra) is, therefore, unlike the one before us.

Our attention is called to Haight v Brisbin (100 N. Y., 223), where it is said an executor who has failed to sell personal property, and a loss has happened without adequate excuse, the executor may be charged, and that in a proper case a similar remedy may be had in case of failure to sell real estate, but that does not aid the respondent here.

If an executor has been dilatory in the sale of real estate he may be hable. That furnishes no power to or reason why the surrogate may make a decree against him or in proceedings against him which will bind the devise of real estate or an heir-at-law, without a day m court.

Second. The judgment recovered against a surviving partner of Crain & Co. did not give any hen upon the individual property of the deceased member of the firm, under which the property of the individual member of the firm had passed to the appellant by will of the deceased member of the firm. The appellant was not a party to that action, nor were her lands bound by the hen of that judgment. It may be conceded that a creditor may compel an executor, with power of sale, to sell real estate for the payment of debts. Code of Civil Pro., § 2804 However, before a decree to that effect may be made, a citation must be issued to the persons whose rights in the estate or fund might be affected by such a decree. Code of Civil Pro., § 2806. No such citation was issued to the appellant and her estate in the lands in question has not been cut off by a proper decree or judgment, or the title thereto transferred to the plaintiff.

By section 2749 of the Code of Civil Procedure authority is given to direct the disposition of real estate for the payment of debts and funeral expenses of the decedent, but all devisees and heirs-at-law of such real estate must have citations. Section 2754. Arid they may appear and contest before the surrogate, upon the return of the proper citation. Section 2755. In such a proceeding though a judgment has been “rendered against an executor or administrator for a debt due from the decedent, the debt is nevertheless deemed a debt of the decedent to the same extent and to be established in the same manner ” as other debts, though the judgment is presumptive evidence. Code, § 2756.

The provisions of law already referred to, and others as to details of sale of real estate of deceased parties to pay debts are to the effect and for the purpose of working out a pro rata distribution among creditors of the proceeds of real estate ■ arising by reason of the same being, mortgaged or sold to pay the debts of the deceased. In the Matter of the Estate of Fox, 92 N Y, 96

We are of tire opinion that the order of the county judge of Cortland county should be reversed.

Boardman and Follett, JJ , concur.