text:
    Elijah R. Schoonmaker, Resp’t, v. William Hoyt et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Contract—Assignment.
    P. purchased the hemlock bark growing on the land of M., and in pay ment therefor, according to their written contract, conveyed to M. certain lands, reserving the hemlock bark growing thereon. Thereafter P. assigned his purchase contract to S., describing it as a contract “for the sale and removal from the lands therein described the hemlock bark thereon.” Held, that the assignment conveyed title to the bark on M.’s lands, and also to the bark growing on the land conveyed by P. to M.

      Appeal from a judgment entered in Cattaraugus county, upon the report of a referee.

      Reynolds & Brown, for app’lts; Wm. H. Henderson, for Resp’t.
   Haight, J.

This action was brought to recover the value of n, quantity of hemlock bark which the defendants had peeled and removed from the trees on which it grew. The defense was that the defendants were the owners of the bark.

It appears that on the 8th day of December, 1869, one Job ¡Moses was the owner in fee of certain lands in Cattaraugus county known and described on a certain map made by Joseph Ellicott, surveyor of the Holland Land Company,as lots numbers 71, 60, 68, 66, 55 and 19, on which were growing a large number of hemlock trees. It further appears that Arthur Palen, Edward Palen and Gilbert W. Palen were the owners of other lands in said county known as lots numbers 2, 4, 10, and 72; that on that date Moses entered into an agreement with the Palens by which he sold to them-the hemlock bark growing upon the lands owned by him, and the Palens in payment therefor agreed to convey to him lands owned by them, they reserving however to themselves, their heirs and assigns, all the hemlock bark upon the premises to be conveyed by them together with the right of ingress and egiess for the purpose of peeling and removing the same. Thereafter and on the 10th day of January, 1873, the Palens conveyed their lands to Moses pursuant to the requirements of their contract Gilbert W. Palen ¡having died, James E. Palen succeeded to his interest, and' thereafter and on the first day of February, 1873, Arthur, Edward and James F. Palen executed an assignment of their interest in the contract to Jackson S. Schultz, of the city of Hew York, for the purpose of indemnifying and securing him for becoming surety with them upon a bond to the amount of $30,000, the material portion of which assignment is as follows:

“How, therefore, we the undersigned, Arthur Palen, Edward Palen and James F. Palen, for the purpose of indemnifying and securing the said Jackson S. Schultz from any and all losses, costs, damages and expenses by reason of his execution of said bond as aforesaid, and for a valuable consideration passing to us in addition to said execution of said bond, do hereby assign and transfer unto him, the said Jackson S. Schultz, all of our right, title and interest in and to the following described contracts, to wit: (Here follows the description of a contract not involved in this litigation) One contract between Job Moses of the first part and A., E. and G. W. Palen of the second part, dated December 8, 1869, for the sale and removal from the lands therein described of the hemlock bark thereon, and which last mentioned contract is recorded in the Cattaraugus county clerk’s office, in volume 6 of Miscellaneous Records, at page 247.”

An action was commenced against Schultz upon the bond executed by him as surety for the Palens, and a judgment was entered thereon on the 18th of December, 1874, for the sum of $16,700.77. On January 4,1875, he commenced an action against the Palens, and claimed a judgment for the foreclosure of the .contracts mentioned, and asked that the Palens should be foreclosed of all their right, title and interest in and to the contracts assigned to him, and that the same should be sold under the direction of the court; that such proceedings were had in the action that on the 1st day of February, 1875, judgment of foreclosure and sale in the action was entered for the relief demanded in the complaint, and it is conceded that in that action the court had jurisdiction of the persons and the subject matter, and that judgment was duly given. A referee was then appointed to sell the interests of the Palens in the contract, and he subsequently sold the same at a public sale to Schultz for the sum of $2,000, and thereupon in pursuance of the judgment he executed and delivered to him a conveyance thereof.

The defendants through several mesne conveyances and assignments acquired the interest of Schultz in the bark in question and have entered upon the premises, and cut and peeled the same. Thereafter and on the 3d of June, 1886, the Palens executed and delivered to the plaintiff a conveyance of all their interest in the hemlock bark on lots 2, 4, 10 and 72, with all rights of action .against any parties for cutting, removing or interfering with the same.

It will be observed that under the provisions of the contract with Moses the Palens became the owners of all of the hemlock bark growing upon his lands, and in payment therefor they became bound to deed to him the lands owned by them and described as lots 2, 4, 10 and 72, and that this requirement of the contract was subsequently carried out by tleir executing and delivering deeds pursuant to that provision. At the time of executing and delivering the deeds, the trees were still standing and would be considered a part of the realty .were it not for the contract, but under the contract the trees were deemed severed from the soil and consequently became personal property. Under the contract the bark growing upon the trees was reserved by the Palens. The bark consequently remained their property and did not pass to Moses under the deeds. True, the Palens were the owners of the bark upon lots 2, 4, 10 and 72 before the contract was executed and they remained the owners after its execution, but under the deeds the bark would have passed to Moses had it not been for the reservation in the contract, so that it is apparent that the Palens’ title to the bark is dependent upon and can be maintained only through the contract.

This contract, as we have seen, was assigned to Schultz. In assigning to Schultz they in terms transferred td him all of their right, title and interest in and to the contract, so that if they held the bark by virtue of it their title must of necessity have passed to Schultz. This assignment was made to indemnify Schultz for a liability that he had incurred in their behalf, which he subsequently was obliged to pay. A suit was then instituted for the foreclosure and sale of the Palens’ remaining interest in the contract and judgment was entered therein in favor of Schultz for the relief demanded, and all of their interest in the contract was sold at public sale and bid in by him, and it appears to us that the title to the bark on the lots in question passed to him under such sale.

The contention of the plaintiff is that the Palens did not obtain title to the bark upon the lots in question by virtue of the contract,, and that therefore their title did not pass to Schultz upon the assignment of the contract or upon the sale thereof under the foreclosure judgment. If this contention should be sustained, what would become of the plaintiff’s title? For, as we have seen, the-trees were standing uncut at the time of the conveyance by deed to Moses, and under the deed Moses would become the owner of the bark upon the growing trees. The plaintiff has not acquired Moses’ title, but stands upon the conveyance obtained from the Palens, and, as we have shown, Palens’ title can be established only through the contract.

Again, it is claimed that the word “ reserves ” appearing in the contract should be construed tornean “excepts.” That, instead of reserving the bark from the lauds to be conveyed, it was intended to except the bark from the conveyance. We shall not enter upon an extended discussion of the technical difference in the meaning of the two words further than to state than an exception appearing in a deed as ordinarily understood saves from the operation of the deed some part of the lands described, whilst a reservation is not ordinarily understood to refer to the land itself, but relates to some right, property or interest connected therewith, such as right of way over, the collection of rents, the gathering of a crop or the cutting of the timber upon it. Craig v. Wells, 11 N. Y., 315-321.

But whether the light to cut and peel the bark is to be considered as an exception or a reservation must depend upon the manifest intention of the parties. Rose v. Bunn, 21 N. Y., 275-278.

It appears to us that under the circumstances disclosed in this case there can be no doubt as to the intentions of the parties. Schultz had become surety for the Palens upon the $30,000 bond. Accompanying this bond was a mortgage upon real estate covering a tract of land in Cattaraugus county. The parties wanted the premises to be released from the lien of the mortgage. In permitting this, Schultz required indemnity. The amount of the liability was large. The indemnity offered was an assignment of the interest of the Palens in this and anotlier-contract. They in terms assigned all of their title and interest. They claimed and were'the owners of all of the hemlock bark growing upon the lands owned by Moses as well as that conveyed by them to Moses, and evidently intended that it all should be transferred to Schultz to indemnify him. Some comment has been made upon the descriptions of the contract in the assignment. As we have seen they assigned all of their right, title and interest “in and to the following described contract, to wit.,” and then for the purpose of describing the contract so assigned they state: “One contract between Job Moses, of the first part, and A., E. and Gr. W. PaJen, of the second part, dated December 8, 1869, for the sale and removal from tlie lands therein described, the hemlock bark tliereon.”

It is claimed that the words “for the sale” only referred to the bark that was purchased by the Palens upon the lands of Moses, hut this phrase must be read in connection with that which follows “ and removal from the lands therein described.” All of the lands are described in the contract. . Those of Moses and those conveyed by the Palens to Moses.

Again, it appears that this assignment was made in 1878, thirteen years before the Palens transferred their interest to the plaintiff. During many of these years the defendants were engaged in cutting and removing the bark on these lots. It appears that this was done with the knowledge of the Palens as well as that of the plaintiff, and no objection appears to have been made until about the time of the transfer to the plaintiff. It is therefore quite apparent that the Palens not only intended to transfer their interest in the bark to Schultz, but that they understood and supposed that they had in fact done so. 0

The plaintiff was one of the subscribing witnesses to the assignment. He, therefore, had actual knowledge of its existence as well as constructive notice through its record.

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

Dwight, P. J., and Lewis, J., concur.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Clara J. Bogart, Adm’rx, Resp’t, v. The Delaware, Lackawanna & Western Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Negligence—Defective bridge—Charge.
    In an action to recover damages for the death of plaintiff’s intestate through the negligence of defendant, the issue was whether a bridge on a line of railroad leased and operated by defendant contained defects with which defendant was chargeable,and after instructions as to a lessee’s right-to rely on the sufficiency of a bridge’s abutments unless there were apparent defects, the court stated that there was no evidence to show any reason for suspecting that the south abutment was not properly constructed, the evidence relating entirely to the north abutment, and said that if “the abutment ” was properly constructed and properly inspected defendant was-entitled to a verdict. The court next instructed in reference to defendant’s duty as to the size of the space between the abutments that should be maintained, and in conclusion said: “ So it will he for you to say whether the plaintiff has established by all the evidence that these abutments were improperly constructed,” and if so, whether defendant was negligent in not finding it out and making the necessary repairs. Held, that by the conclusion of the charge the court did not leave to the jury the question of whether or not there was an apparent structural weakness in the south abutment, but simply questions relating to the size of the spaces between the abutments.
    3. Evidence—Harmless error.
    It is harmless error to allow defendant’s witness to he contradicted without laying proper foundation therefor, where the subject upon which the witness testified was taken from the jury by the court on the ground of no evidence for plaintiff.

      Appeal from a judgment entered upon a verdict at the Livingston circuit and from an order denying defendant’s motion for a new trial and from an order denying defendant’s motion to set aside the verdict on the ground of irregularity.

      John G. Milburn, for app’lt; E. F. Babcock, for resp’t.
   Haight, J.

This action was brought to recover the damages sustained in consequence of the death of Hoyt M. Bogart, plaintiff’s intestate, caused by the alleged negligence of the defendant.

The deceased was a fireman on one of the passenger trains of the defendant. On the night of July 5, 1888, the engine upon which he was working plunged into McKercher creek and he was killed. A heavy storm was raging at the time and the railroad bridge spanning the creek had been washed away, including all of the south abutment and a good portion of the north abutment. The railroad, including the bridge was originally built and is owned by the New York, Lackawanna & Western Bailway Company. In 1882 it was leased to the defendant, by whom it has since been operated. It is not claimed that the defendant is liable for defects in the original construction of the bridge, but is liable if such original defects existed in its construction and were or could have been ascertained by the defendant by proper inspection after it had entered into possession under its lease.

Upon the trial it was claimed on behalf of the plaintiff that the foundation of the abutment was laid on a wet bottom containing quick sand; that instead of being laid by courses of masonry, field and cobblestones were thrown in as backing and .that the mortar used was worthless ; that in 1887 a portion of the north abutment had settled so that a crack appeared and during a freshet several of the stones were washed out, and that at that time the structural defects of the abutment were apparent. It .was then repaired, but in the following October another crack appeared. Evidence upon this contention was given pro and con.

In submitting the case to the jury the defendant’s counsel asked the court to charge that “ If under the evidence the jury shall find that thq cause of this accident was this extraordinary 'flow of water in some way causing the destruction of the south abutment, that the plaintiff is not entitled to recover.” The court refused to so charge, and to such refusal the defendant’s counsel took an exception. Upon the theory upon which the case was tried and submitted by the court the request was proper and should have been charged, unless it was a mere repetition of that which the court had already charged.

It is conceded that the court had in substance charged the matter embraced in the request, but it is claimed that in a subsequent portion of the charge the court had left it to the jury to determine whether there was an apparent structural weakness in the south abutment which ought to have been discovered by the defendant before the accident. We think, however, that1 the charge of the court is not faulty in this respect. The judge in his charge, after giving general instructions as to the duty of railroad corporations in the maintenance and inspection of their bridges, proceeds to state that “ There is not any claim on the part of anybody that when these abutments were turned over to the defendant there was any outward sign of weakness about them or that there was anything which should immediately put the defendant upon notice that the abutments were not properly built. The defendant, unless there was some outward sign of weakness about them, had a right to rely upon their being properly constructed and was not chargeable with any of the faults of the original construction, and although they may have been improperly constructed yet the plaintiff cannot recover in this action unless you shall come to the conclusion that the defendant might have discovered the imperfect construction by a proper system of inspection and failed so to do. There is no evidence whatever directly bearing upon the south abutment which tends to show there ivas any reason to suspect that it was not properly constructed; that is, there was nothing in the abutment itself or any of the indications surrounding it which should or toould give any careful man any reasonable cause to suspect that it was not properly constructed. The evidence in that regard has been devoted entirely to the north abutm.e?it.n He then proceeds to call attention to the history of the north abutment, its construction, the defects that appeared therein; and concludes: “If you shall come to the conclusion that the abutment was properly constructed, and that the defendant kept it properly inspected, and that it was properly made at the time this accident occurred, then the plaintiff is not entitled to a verdict, but the defendant performed its duty towards Bogart, and is entitled to a verdict at your hands.” It thus appears that the court did not submit to the jury any question in reference to the structural defects of the south abutment; that as to such defects he specifically limited their consideration to that of the north abutment, and this was done in such clear and concise language as to leave no room for doubt. This is in accordance with the request, and is not complained of. The court next proceeded to instruct the jury in-reference to the duty of the railroad company as to the size of the throat or the space between the abutments that should be maintained in its bridges over streams, and called attention to the magnitude of the freshet on the occasion in question, and then stated that it was the duty of the defendant to provide a bridge, the opening of which was of sufficient capacity not only to meet all the ordinary exigencies of the climate and the situation of the stream, but such extraordinary exigencies as the experience of the people about there would lead them to believe might sometimes occur, although infrequently, and in concluding charged: “ So it will be for you t'o say whether the plaintiff has established here by all the evidence in the case that these abutments were improperly constructed, and if they were improperly constructed then whether or not the defendant after it took possession of this road was guilty of negligence in failing to find out they were improperly constructed and to see that they were properly constructed.”

It is this portion of the charge that is claimed to be inconsistent with that previously referred to; but as we have already pointed ■out, the subject of the structural weakness of the abutments was ■considered and closed by the court, in which the consideration of the jury upon that subject was limited to the north abutment, and they were plainly instructed that there was. no evidence tending to show that there was any reason to suspect that the south abutment was not properly constructed. The court then proceeded to charge upon an entirely different subject, that pertaining to the size of the throat or the space between the abutments of the bridge, and as we understand the concluding portion of the charge, in speaking in reference to whether the abutments were improperly constructed, had reference to their construction as to size of the throat of the bridge, and not to their structural weakness.

Upon the trial one Hubbell was sworn as a witness for the defendant and testified that he remembered the construction of the south abutment of the bridge ; that he had charge of the digging of the south foundation pit, and gave evidence tending to show proper construction of that abutment, but stated that he did not see any of the north abutment dug. Upon cross examination the plaintiff’s counsel asked him if he did not state to either Mr. Sisson or to Mr. Miller, after the bridge fell, “ That you were surprised that the damn thing did not go out before,’’ to which the witness replied, that he had no recollection of ever saying such a word to anybody. The plaintiff then recalled Sisson and asked him as to whether Hubbell had stated to him in substance “That he was surprised that the damn thing did not go out before.’’ To this question defendant’s counsel objected as immaterial; that Mr. Hubbell was not specifically interrogated in regard to the time and place of this conversation as required by the rules, and that it was immaterial and collateral. The objection was overruled and the witness was permitted to answer the question in the affirmative.

The rule is well settled that in laying the foundation to contradict a witness that his attention should be called to the time, place and persons to whom or in whose presence the alleged statement was made. Hart v. Hudson River Bridge Co., 84 N. Y., 56-60; People v. Weldon, 111 id., 569-575; 20 St. Rep., 112; Ankersmit v. Tuch, 114 N. Y., 51-55; 22 St. Rep., 300.

But we are of the opinion that the admission of this evidence, if error, was cured by the charge. As we have seen, bis evidence related solely to the south abutment The contradicting of him by the other witness' did no harm, for the judge took from the jury the subject of the structural weakness of that abutment, and limited their consideration upon that subject to the north abutment only.

We have considered the other questions raised, b.ut find nothing that requires a reversal.

The judgment and orders should, therefore, be affirmed.

Dwight, P. J., and Lewis, J., concur.


author: Rumsey, J

text:
    Judith M. Traver, App’lt, v. Thomas O. Purdy, Impl’d, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Statute op frauds—Pleading.
    In an action in equity to enforce specific performance of a contract required to be in writing by the statute of frauds, where the answer denies the existence of the contract, it is not necessary that it plead the statute. It is only where the contract is admitted or not denied that the defendant must plead the statute in order to claim its protection.
    3. Same—Promise.
    Defendants’ ancestor, who held a mortgage against plaintiff’s property which he was foreclosing, made her a promise without further consideration, that he would bid in the property on the sale and sell it, and after paying the amount of the mortgage debt and costs, to give her what was left. He bid in the property, allowed her to remain thereon, but died before carrying out the remainder of the agreement. In an action to compel specific performance, Held, that the promise was void because not in writing, and because no consideration therefor moved from plaintiff.
    Appeal from judgment in favor of defendants in an action for specific performance of a contract in relation to land.
    The following is the opinion of the court at special term:
   Rumsey, J

The defendants are the heirs at law and the personal representatives of Isaac S. Purdy. • In the latter part of the year 1874 Isaac S. Purdy owned a bond and mortgage made by the plaintiff, dated April 10, 1872, to secure the payment of $7,500 in five years, with annual interest The interest was en- . tirely unpaid, and the plaintiff was not able to pay it, nor was there any likelihood that she would be able to pay the principal sum when it should become due. The land covered by the mortgage was 153 acres, and it was worth something over $9,000. The interest due was $1,050, and the total amount of the incumbrance ■due and to become due was something more than $8,900. There was more or less valuable timber on the farm, which the plaintiff had begun to cut and take away, and to prevent this, and at the ■same time to collect what was due upon his bond, Isaac S. Purdy began an action. During the pendency of that aption the transaction occurred which is at the foundation of this suit. It is stated by the daughter of the plaintiff, who was then a girl of 12 years, that Mr. Purdy came to her mother’s house, and said to her, substantially, that if the farm did not bring at the foreclosure sale a sum sufficient to pay the amount then due on the mortgage and the costs, and something over for her, he would bid it off, and would try to sell it for as good a price as could be got, and, after paying the mortgage debt and costs and expenses, would give her what there was left. This was by parol, and not in writing. It does not appear that Mrs. Traver paid anything to Purdy for this promise, or that she either took any action, or forbore to take any action, in reliance upon it. It is true she put in no defense to the action, but then there is no claim that she had any defense. It is true, also, that she did not object to having the farm sold together, and the whole amount of the mortgage, due and to become due, paid out of the proceeds. But it appears from the judgment-roll upon the foreclosure that it was conceded that the mortgaged premises were so situated that it would be most beneficial to the parties to have the whole farm sold together. Upon that state of facts the law required that the whole sum secured by the mortgage, due and to become due, should be paid if the debt bore interest, as it did here. 2 Bev. St., 193, §.§ 165, 166. So that it is clear she waived no right by not objecting to the payment of the whole debt. It seems that she was told she need not attend the sale. But there is no pretense that if she had attended she was in a situation to bid off the premises, or that she could have, or would have, procured any one else to do so, or that she would have made any effort to do so. There is nothing in the evidence to show the existence of any relation of trust or confidence between Mr. Purdy and the plaintiff. It is sworn to by the daughter that Mrs. Travel- followed Mr. Purdy’s advice, and did as he thought best in regard to all her affairs; but it must be remembered that she was then only 12 years old, and that she could have known but little about the matter, and her conclusion upon that subject (and her testimony is only her conclusion) is in the nature of things entitled to but little weight The fact that she was stripping the farm of its timber, and that Purdy was obliged to sue her to prevent it, is pretty strong evidence that in some matters at least, and this matter was one of them, she acted without consulting him.

The plaintiff’s case then stands upon a mere verbal promise to hold this farm for the benefit of the plaintiff in a certain event, which has not occurred. There was no fraud or estoppel, no consideration, no relation of trust or confidence, no part performance, no act done or forborne by the plaintiff which puts her in any worse condition than if this talk had not taken place. It appears that Mr. Purdy allowed her to live in the house, while he occupied and worked the farm, and it may be inferred, from what took place on his deathbed, that he would have done something for her had he lived. But nothing was said there which indicated that he felt any obligation, or that he was governed by any other motive than his regard for her. What was- said to his sons clearly showed that he did not understand that he or they were bound to do anything as the result of a contract, but he left the plaintiff dependent upon their kiridness, as she had been upon his. Mr, Purdy bought the land upon the foreclosure, and entered no judgment for deficiency. The amount unpaid on the mortgage was $8,965.63, and the costs and expenses of the foreclosure suit and sale were about $120, making in all $9,085.63. This was in fact, about the value of the farm, although it seems that Mr. Purdy thought it worth more. But it is worthy of remark that, although the farm had been on the market some time, Mrs. Travel- was unable to sell it for any such price, and the highest offer stated to have been made at any time was $9,000, or perhaps $10,000; so it is quite clear that Purdy gave practically all the farm was worth when he took it on his mortgage.

There is nothing in the facts of this case to bring it within that class of cases of which Ryan v. Dox, 34 N. Y., 307, constitutes an example. The whole transaction shows a mere verbal promise to buy land and hold it for the benefit of the plaintiff, of which it has been said that, in order that the doctrine of trusts ex maleficio with respect to land may be enforced under any circumstances, there must be something more than the mere verbal promise, however unequivocal; otherwise the statute of frauds would be virtually abrogated. Pom. Eq. Jur., §> 1056. The facts of this case bring it within the rule of Wheeler v. Reynolds, 66 N. Y., 227. See also Bank v. Bennett, 76 Pa. St.. 402; Merritt v. Brown, 21 N. J. Eq. 401. But the plaintiff insists that the defendant, not having pleaded the statute of frauds, is not entitled to its protection. The statute says that no interest in lands, nor any trust over or concerning lands, shall be created or declared, unless by writing. 2 R. S., 134, § 6. In the courts of equity it had always been held that when an action to compel the specific performance of a contract to convey lands, or to enforce, a trust concerning them, had been brought, the bill or complaint need not set out a writing. Bliss Code PL, § 353. If the defendant answered admitting the contract, or not denjnng it, he must set up the statute of frauds if he relied upon that as a defense. If he did not set up that defense, the contract being established by the pleadings, there was no legal dispute as to its existence, and in that case, unless the defendant claimed the protection of the statute, no question could arise upon it. Cozine v. Graham, 2 Paige, 177; Duffy v. O'Donovan, 46 N. Y., 223, 226. In such a case it was necessary to plead the statute. But if the contract was denied, so that the plaintiff -was put to his proof, then he must make such proof as the statute required, and, if the statute required a writing, he must prove his contract by the writing, or fail in his suit. Cozine v. Graham, supra; Livingston v. Smith, 14 How. Pr., 490 ; Haight v. Child, 34 Barb., 186; Marston v. Swett, 66 N. Y., 207. This happens, not because the defendant insists-upon the statute, but because the law requires written evidence to make out the cause of action. The denial by the defendant puts the plaintiff here to her proof, and, when the proof made is not such as the law requires, the defendant who denies the existence of any contract is in a situation to insist that there is none. The case of Porter v. Wormser, 94 N. Y., 431, cited by plaintiff, was, as appears by the remarks of the judge at page 450, one of the class where the party insisting on the statute had feet up the contract in his pleading, and relied on it as the basis of his cause of action, and the court does not consider whether the contract was proved by a writing or not. In Hamer v. Sidway, 124 N. Y., 538; 36 St. Rep., 888, it appeared that the defendant had written a letter admitting the promise sued on. ETo question of the statute-could therefore arise, and the conrt held there was no such question in the case. The defendant here has not waived the statute,, but is still in a position to insist upon it. It is a bar to the action of the plaintiff.

It may be said, too, that, besides the insuperable barrier of the statute, tlie plaintiff’s case is fatally defective in that no consideration is shown to have moved from her for the promise of Purdy. This fact is fatal to her cause of action. Pom. Eq. Jur., § 1293. ■ But it is not necessary to enlarge upon this point. 'There is no view of the case in which she could be entitled to judgment.

Charles W. Kimball, for app’lt; M. A. Leary, for resp’ts.

Judgment appealed from affirmed, with costs, upon the reasons ■stated in the opinion of Rumsey J., at special term.

Lewis, Haight and Bradley, JJ., concur.


author: Ingraham, J.

text:
    Lewis J. Phillips, Pl’ff, v. The Equitable Life Assurance Society of the United States, Def't.

      (Supreme Court, Special Term, New York County,

      Filed December 6, 1893.)

    1. Default—Non-service of complaint.
    A motion to open a default for non-service of the complaint will not he granted where the plaintiff does not allege a cause of action.
    "2. Same.
    Nor will it he granted unless the plaintiff is ready to serve the complaint.
    3. Same—Appeal.
    A motion to compel the defendant to accept service of a notice of appeal served after default in the service of the complaint will not he granted.
    4. Corporations—Parties.
    Where a suit is brought against a corporation on the claim that certain of its trustees have committed a breach of trust, in order to sustain the complaint the trustees must he made parties with the corporation.
    Motion made by the plaintiff to open a default for non-service ■of the complaint andoto compel defendants to accept service of a notice of appeal from the order denying the motion for discovery.
    The claim of the plaintiff was that certain directors of the defendant had so conducted themselves as to make a profit out of their dealings on behalf of the defendant and for an accounting; but none of the defendants were made a party to the cause. The plaintiff was in default for non-service of complaint and moved to have that default opened, but did not produce any copy of the the complaint nor aver that they were able to draw one after the ■default had been made. The plaintiff served a notice of appeal from the order for discovery.

      Allan McCulloh, for deft; Joseph B. Reily, for pl’ff
   Ingraham, J.

I think the motion made by the plaintiff should not be granted because no cause of action in favor of this plaintiff against this defendant is disclosed in the motion papers. The plaintiff is a stockholder in the defendant corporation, and it would appear that the object of the action is to compel the defendant (the corporation) to disclose certain alleged irregularities by which it is claimed the trustees have robbed, the corporation. The trustees are not parties defendant, and if the plaintiff does establish these facts he would have no remedy against the corporation which has been robbed. It seems to me to be useless to prolong such a litigation. The plaintiff does not allege that he is in a position to serve a complaint, and does not deny that the time has expired in which he was bound to serve a complaint in this action. He seeks, however, to. compel the defendant to accept a notice of appeal from an order denying his motion for a discovery when he was in default in the service of the complaint, and when the defendant was entitled to an order dismissing the action. The defendant also moves to dismiss the action for failure to serve the complaint, and that motion, I think, should be granted, with ten dollars to defendant.


author: Maynard. J.

text:
    In the Matter of the Final Accounting of Dewitt Gardner, Ex’r of Mary D. Tyler, Deceased.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Will—Power of disposition.
    A general power to dispose of property includes the right to dispose of it by will, unless the grant of the power contains words which expressly or by fair implication exclude such a method of disposition.
    2. Same.
    One T., by his will, gave the residue of his estate to his wife “ to have and to hold the same and every part and parcel thereof to my said wife, her heirs and assigns forever; provided, however, that if any of the same shall remain unexpended or undisposed of at the decease of my said wife, what shall so remain I give, bequeath and devise to my said son, his heirs and assigns, and I expect and desire that my said wife will not dispose of any of said estate by will in such a way that the whole that might remain at her death shall go out of my own family and blood relation." The wife died subsequently, leaving a will by which she gave a considerable portion of the estate to said son. Held, that the wid of T. gave his wife power to dispose by will of the estate given her, and that such power was not qualified by the precatory words of the concluding paragraph.
    3. Same—Construction—Death of residuary legatee.
    Where the will directs the executors to divide the residuum into shares, which are directly given to an equal number of legatees named, the gift to each is direct and immediate and the time of payment or enjoyment only postponed, and the share of such a legatee does not lapse upon her death before the time for distribution arrives, hut passes to the parties entitled to succeed to said legatee’s estate.
    Appeal from order of the supreme court, general term, fourth department, reversing decree of the surrogate’s court of the county of Oswego.

      C. H. David, for app’lt; Giles S. Piper and George T. Clark, for resp’ts.

      Affirming 52 St. Rep., 810.

   Maynard. J.

By the residuary clause of his will the testator gave the residue of his estate to his wife, to have and to hold the same and every part and parcel thereof to her and her assigns forever ; provided, however, that if any part of it should remain unexpended or undisposed of at her death, what should so remain he gave to his son and his heirs and assigns, adding this clause, “and I expect and desire that my said wife will not dispose of any of said estate by will in such a way that the whole that might remain. at her death shall go out of my own family and blood relation.”" The testator had but one child, .a son by a former wife. His "widow made a will in which she gave the son a considerable portion of the estate left her by the testator, and one-fourth of any residue remaining after making some specific bequests, and upon the final accounting of her executor the question arose whether,, under her husband’s will, any portion of his estate to which she; succeeded by virtue of its provisions, and which remained in her hands at the time of her death, could be effectually disposed of by her by virtue of any testamentary disposition which she might make. The surrogate held that she had no power to dispose of it by will, but the general term has decided otherwise and has reversed the decree of the surrogate, and we think the conclusion reached by that court is correct. The gift to the wife is in the first instance absolute and unlimited, with an habendum that she shall have and hold it and every part and parcel of it to her, and her heirs and assigns forever. She was thus invested with the power to dispose of it in any manner authorized by law, and it only remains to be considered how far the fee so devised to her has been cut down by the subsequent provisions of the will. There is un doubtedly a condition annexed to the grant, to the effect that if she died leaving any part of the property undisposed of at her death such part should revert to 1ns son, the appellant here.

Unquestionably, as to any portion of the estate to which this proviso might be applicable, the precedent estate granted to the wife would be converted into a qualified or base and determinable fee. But what was the contingency upon which such a change in the quality of the estate devised was to depend? Upon the true answer to this question rests the solution of this controversy. The appellant contends that it was the death of the first taker without having divested herself of the title by a grant of the fee in her lifetime, and that the alienability of her estate did not include the power to devise or bequeath it. But the terms employed are unrestricted. It is only what is “ undisposed of ” at her decease, if any, that is given to her son. A general power to dispose of property includes the right to dispose of it by will, unless the grant of the power contains words which expressly or by fair implication exclude such a method of disposition. The will took effect at the very moment of death, and there was not, therefore, any part of the pfoperty which was not disposed of “at her decease.” This construction is in harmony with the terms previously employed, which import an unlimited power of disposition. But the testator has left no room for doubt upon this point by the language used in the concluding paragraph of this clause of his will. He there explicitly recognizes her power to dispose by will of the estate given her, and indicates to her in part the course which he desires her testamentary disposition to take. He seeks to impress upon her the claims which his own family have upon her consideration, and the language is meaningless, unless it is to be assumed that he understood that by the terms of his will she had the power to devise or bequeath the estate which he had given her. He was himself learned in the law, and he evidently had a well-defined' testamentary scheme, and a clear conception of the Jegal effect of its various provisions. He had confidence in his -wife that if she disposed of the property by will she would make :a just disposition of it, and observe his wish that his own child should not be overlooked; but he anticipated the contingency that she might die intestate, and as to that' portion of his estate which might then remain he provided that it should go to the issue of his own blood, and not to her heirs or next of kin.

This contingency never happened, and hence the title in fee which she took was never divested or determined, but passed in accordance with the provisions of her will. The estate of the wife was not qualified by the precatory -words of the-concluding paragraph. They are merely the expression of an expectation or desire that if she made a will the whole that might then remain •should not go out of his own family or blood relations. Similar terms have sometimes been construed to create a trust, or rather a power in trust, but never, so far as we have been able to discover, where, as in this case, the words of the will in the first instance clearly indicate a disposition in the testator to give the entire interest, use and benefit to the donee. 1 Jarman [5th Am. ed.], 680, 94; Clarke v. Leupp, 88 N. Y., 228 ; Campbell v. Beaumont, 91 id., 464. But if it might be held that these words could be construed so as to imply a power in trust in favor of the testator’s son, the power was observed and fully executed by the donee thereof. It neither contemplated or required the entire residue existing at the time of Mrs. Tyler’s death to be bestowed upon the .son. She was not enjoined to give the whole of it to him. The restraint, if any, was purely negative. It was to the effect that she should not permit all that she might have to dispose of to go ■out of his family ; in other words, that his own child should be suitably remembered. This injunction, if it is to be deemed such, was obeyed by her with scrupulous fidelity. In her will she devises to him a valuable piece of real property ; many articles of personal property of considerable value, including his father’s personal effects ; and after some specific bequests makes him the legatee of one-fourth of her residuary estate, and bequeaths to a sister of her husband another fourth. The confidence of the husband in the wife was not misplaced, and his will has been faithfully and literally observed by her even where it was not mandatory, but discretionary.

We are also of the opinion that the share of the residuary estate given to Mrs. Baker in the will of Mrs. Tyler did not lapse upon her death before the time of distribution arrived, but passed to the parties who are lawfully entitled to succeed to Mrs. Baker’s estate. By previous clauses of the will this property is given to her executors in trust for the benefit of her brother during his lifetime, and after his death what remains is given to the parties named in the seventh or residuary clause of the will, of whom Mrs. Baker is one. The gift to her is direct in each of the previous clauses and also in the residuary clause. It is true that in the residuary clause the executors are directed to divide the residue into four «equal parts; but these portions are directly given to four legatees named, including Mrs. Baker, share and share alike. ' Under the scheme of this will it must be held that the gift to the residuary legatees is direct and immediate and the time of payment or enjoyment only is postponed. The gift is not to a class, there are no words of survivorship, and there is nothing to indicate that the testatrix contemplated an intestacy as to any part of her estate. She evidently intended that upon her death the title to the residue should vest in the persons named in the seventh clause subject to the trust estate given for the benefit of her brother. The case is not distinguishable in its controlling features from Goebel v. Wolf, 113 N. Y., 405 ; 23 St. Rep., 176.

The order of the general term must be affirmed, with costs, and the proceeding remitted to the surrogate’s court to be there disposed of in accordance with the views here expressed.

All concur.


author: Gray, J.

text:
    Jeremiah P. Robinson et al., Individually and as Ex’rs, Resp’ts, v. William H. Beard et al., Ex’rs, App’lts.

      (Court of Appeals,

      Filed November 28, 1893.)

    Lease—Renewals—Construction.
    Defendants’ testator, who was the lessee of certain premises under a lease containing optional covenants for renewal, executed a sub-lease to R. & W., terminating at the same time as his lease, and also containing a. covenant to grant a new lease at its expiration, to contain a covenant, at his option, to pay the value of the buildings or grant another lease. It also contained a provision at the end that any rights or privileges granted at any time to him in regard to the renewal of his lease, or in relation to* the use and enjoyment of said premises, should inure to the benefit of R. and W. The renewal lease when given contained a covenant for the payment of the value of the buildings at the expiration of the term or the granting of a further lease'which lease, “if the party of the first part shall elect to grant the same,” should contain certain covenants, but also contained the last clause of the former lease, ^estator obtained a further lease at the end of that time, but refused to renew the sub-lease, electing to pay the value of the buildings. Held, that the right of election by defendants’ testator with respect to granting a new lease was qualified by the •subsequent and last clause of the lease, and that such clause entitled the sub-lessees to as many new terms of lease as their lessor shall obtain from the owner of the property by virtue of the covenants in their lease to him.
    Appeal from judgment of. the supreme court, general term second department, affirming judgment in favor of plaintiffs.
    Action to compel the defendants to execute and deliver to the plaintiffs a renewal of a lease, which the defendant’s testator had made to Robinson and Woodruff, the predecessors in interest of the plaintiffs, of property in Brooklyn. The facts found by the trial court are not in dispute; but it is contended that a different legal conclusion should have been drawn.
    In 1849 the trustees, etc., of the Brooklyn Benevolent Society leased a certain tract of land for a term of twenty-one years to William H. Beard, by a lease which contained a covenant for a renewal, dependent upon the lessee’s performance of conditions and covenants specified. It was agreed that the second lease should contain the same covenants and conditions, except the covenant of renewal; in lien of which a covenant should be inserted giving an election to the lessors, at the expiration of .the term, either to pay the value of the buildings or to grant a new,, or third, lease for a further "term of twenty-one years; which should contain like covenants and conditions, except as to a further renewal; but wherein should be a provision that at the expiration of the term payment should be made of the value of the buildings, or for the giving of a further, or fourth, lease for another term of twenty-one years, and containing the covenants of the existing lease.
    ' In 1851 Beard made to Robinson and Woodruff a sub-lease of a portion of the leased premises for nineteen years, expiring contemporaneously with the principal lease. Beard agreed that at its expiration he would grant a new lease to his lessees for a further term of twenty-one years, for a rent to be ascertained, and to contain like covenants, etc., except the covenant of renewal; instead of which there should be inserted the optional covenant on the lessor’s part to pay the value of the buildings, or to grant a new lease for a further (third) term of twenty-one years; which lease should contain like covenants, etc., except as to further renewal, and should provide for the payment for the buildings, or for the giving of a new, or fourth, lease, etc., etc. At the end of the instrument was inserted the following clause:

      ¡ “And it is further agreed and understood .that if any rights or privileges shall at any time be granted by the said The Brooklyn Benevolent Society to the party hereto of the first part (i. e., Beard) in regard to the renewal of the aforesaid lease, made by them to the party hereto of the first part, or in relation to the use or enjoyment of said premises, then the same rights and privileges so granted shall accrue and inure to the benefit of the parties of the second part in the same manner as if they had been herein specifically granted.”
    In 1870 Beard executed a new (sub) lease of the premises to his lessees for the term of twenty-one years, with various covenants, among which was one for the payment, at the expiration of the term, of the value of the buildings, or for the granting of alease for a further term of twenty-one years, which lease, “ if the party of the first part shall elect to grant the same," shall contain like covenants, etc.., “except as to the further renewals of the said term as are hereinbefore contained,” and be for a further term of twenty-one years, at a rent to be ascertained, and shall contain a provision, either for the payment of the value of the buildings, or for the giving of a new lease for a further term of twenty-one years and with like covenants, etc., “except the covenant of renewal.” The last clause of this new or sub-lease of 1870 was similar to and in the same language as the one quoted from the first lease made by Beard. In 1891 the defendants were granted a new lease from the benevolent society for twenty-one years. They, however, claiming the right to an option on their.part, notified these plaintiffs of their election to pay them the value of their buildings. The plaintiffs claimed to be entitled to a new lease for twenty-one years. This the defendants refused, and plaintiffs brought this action to compel them to do so. The courts below have upheld the plaintiffs’ right to a new lease, and the defendants have appealed to this court.

      Henry Hinman, for app’lts ; William G. Choate, for resp’ts.

       Affirming 52 St. Rep., 931.

   Gray, J.

The appellants’ counsel, in contending that it was absolutely optional with his clients to grant an additional term to the respondents, has made an ingenious argument, which he bases ■upon the apparent incompatibility of a construction of the last clause in the lease which would make their right to elect contingent upon what the owners might elect in respect to a new lease to them, with the right to elect previously given to them in the body of the lease to terminate the tenancy in 1891. We think the inconsistency is more apparent than real, and that a careful consideration of the lease to the plaintiffs, in connection with the principal lease by the society, and with all the circumstances, renders it sufficiently clear that the last clause was intended to qualify the option which had preceded. Beard’s lease, in 1849, from the society gave him an absolute right to a renewal of that lease, if he had complied with the agreements therein on his part, but left it optional with the society, at the expiration of such renewal term, to grant a further, or third, lease, and again, at the expiration of the third term, to grant a further, or fourth, term. Thus Beard was assured of forty-two years of lease, and might possibly hold the premises for eighty-four years in all, if the owners did not elect to terminate the holding and pay him the value of his improvements. Two years after obtaining his lease Beard carved -out of the leasehold estate a lesser leasehold estate in favor of Robinson and Woodruff, providing in the lease to them for a first term of nineteen years, and agreeing that they should have a further term of twenty-one years, if they shall have complied with the conditions and covenants of the lease. The coterminous periods -of time and a similarity in provisions with the original lease exhibit a plan to substitute his lessees in his place in respect to that portion of the leasehold estate, which the final clause, expressly extending to them such rights and privileges as he shall, at any time, acquire from the owners, makes indubitable. The leases are drawn with great precision and prevision in the arrangement of the future relations of the parties and in the definition of their relative obligations and duties; and it is very evident that in drawing the first renewal lease of 1870 to Robinson and Woodruff Beard’s draughtsman followed as his model for covenants and conditions the first lease of 1851. In this way, doubtlessly, occurred inadvertently the insertion of the exception as to further renewals, when providing for a new lease with like covenants, etc., as were thereinbefore contained; when there was no prior covenant for renewal.

The premises leased by the society consisted of lands bordering upon and under water, which were to be improved and reclaimed by the lessees. The lessors were benefited by an arrangement under which their waste lands would be made profitable to them; while to the lessee was assured such a quality and certainty of in-Merest as to warrant the investment of his capital in the improvement of the land. In the execution of .his projects he makes a lease to others of a portion of the estate; which contemplates the improvement of the property by his lessees, and which apparently secures to them the same quality and certainty of interest as has been assured to him in the enjoyment of his estate. Considering the circumstances alluded to, in the situation of the land, and the scheme of the lease, by which a profit was contemplated through a very long leasehold, it is perfectly evident that Beard intended to give to Robinson and Woodruff the same advantages and opportunities with respect to the property as he possessed, and gave legal expression to that intention by a clause which practically substituted them in his place under any grant of rights and privileges in relation to renewals, or to use, which the owner of the property might at any time make. If we deny to that emphatic clause the force which its plain reading conveys, it seems absolutely useless. The appellants’ counsel says that because the language used is “ rights and privileges in regard to a renewal of the lease” a renewal was not intended, and that the lessor must be deemed to have referred to the terms, conditions, or compensation to govern if he should permit a renewal of the lease. We cannot agree to so refine away its meaning. The agreement therein expressed is as to “ any rights or privilege at any time granted * * * in regard to the renewal of the aforesaid lease * * or in relation to the use and enjoyment of the said premises.” This language is not ambiguous. Its reasonable construction is to give to it a two-fold reference; the expression of the intention that not only shall the grant by the owners of the future terms inure to the benefit of the sub-lessee, but, also, any future enlargement by them of the right to use and enjoy the property. Such a construction is not only reasonable, but is in accord with that just view of the transaction which seeks to give effect to every fair agreement of the parties, and deduces their intent from a consideration of the circumstances and a fair reading of the instrument. Hor does such a construction of this last clause in the lease operate to nullify the option previously given to Beard in his lease to refuse a further term and to pay the value of the buildings. It operates to qualify it, so that if Beard should obtain from his lessors the grant of another term of lease, he could not elect to terminate his sub-letting to Robinson and Woodruff. If his lessors should elect to determine their lease to him, then Beard could exercise his election to terminate the holding of his sub-tenants, pay them the value of their buildings, and obtain from his lessors that value, in addition to the other values they would be liable to pay as a condition of the termination of the tenancy. The lease might have been drawn in clearer terms in these respects, but that is no reason for refusing to give effect to an agreement on the lessor’s part so obviously desirable and beneficial to'the lessees as to suggest that it was a dominant inducement for the lease. It is right that the construction should be strictly against the lessor in such a case, for thereby a perfectly just result is reached, which is in accord with the circumstances- and probabilities of the case. In the construction of this, as of every other instrument, it is not a question of whether better and apter language could have been used to express the intentions of the parties, but whether they are so clearly inferable from the whole instrument as to outweigh the difficulties arising from the inartificial and possibly inadvertent use of words and phrases and a nicety of reasoning to prevent their effectuation.

From a careful consideration of the lease to the plaintiffs’ predecessors in interest, we think the only and proper construction is, that the right of election in Beard with respect to granting a new lease to plaintiffs was qualified by the subsequent and last clause-of the lease. That must govern the relations of the parties and entitles the sub-lessees to as many new terms of lease as their lessor shall obtain from the owners of the property by virtue of the covenants in their lease to him.

A more elaborate discussion of this case is unnecessary.

In our judgment, the conclusions of the court below were right, and the judgment appealed from should he affirmed, with, costs.

All concur.


author: Maynard, J.

text:
    Cornelia Kane Rathbone, Ex’rx, App’lt, v. The New York Central & Hudson River Railroad Co., Resp’t.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Carriers—Contract of shipment—Restriction of liability.
    Conditions in a shipping receipt providing that no property of a specified kind will be carried for the loss of which the carrier will he responsible unless a memorandum in writing is delivered with it stating the character and kind of -articles and their value, unless an extra price is paid, and that marble will only be taken at the owner’s risk of fracture or injury unless specially agreed to the contrary, do not relieve the carrier from liability for its own negligent acts.
    3. Same.
    Where the property transported is of unusual or extraordinary value, such a notice in the shipping receipt will operate to exempt the carrier from liabilit}’- even for its own negligence, unless it is informed when or before the goods are received that they are of special or unusual value.
    8. Same—Waiver.
    The requirement of a memorandum in writing is a condition which the carrier may waive, and when it is fully and truly informed as to the character of the property and that it belongs 1o the class described in the condition, and accepts it -without insisting upon the "written memorandum, it may be deemed to have waived a further observance of its terms.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment of the Albany county court, entered upon a nonsuit.

      J. Newton Fiero, for app’lt; Hamilton Harris, for resp’t.

      Reversing 52 St. Rep., 933.

   Maynard, J.

The defendant, as a common carrier, undertook to transport for the plaintiff’s testator from Albany to Mew York two boxes of marble, which in fact contained a piece of statuary called the “ Flight from Pompeii, ” of the value of $2,500. One box contained, the pedestal and the other the figure, and when delivered to the consignee the figure was found to be broken; and we think there is sufficient evidence in the record to have required the trial court to have submitted to the jury the question whether the injury was not caused en route by the negligence of the defendant’s employes. Exemption from liability for negligence is claimed, however, on the ground that the shipping receipt provided that the property was to be transported upon conditions indorsed thereon which were to form a part of the contract of carriage.

One of these conditions was that no statuary would be carried for the loss of which the defendant would be responsible unless with it, when delivered, there was also delivered a memorandum, in writing stating the character and kind of articles and their value, unless a proper extra price for the carriage and responsibility for such articles was paid. Another condition was that marble would only be taken at the owner’s risk of fracture or injury during transportation, and the loading and unloading thereof, unless specially agreed to the contrary. It is well settled that these stipulations in the contract will not be construed to relieve the carrier from liability for his own negligent acts. His duty and obligation to exercise a proper degree of care of the property while in his custody is not affected by them. Full and sufficient scope is given to their operation when it is held that they exempt the carrier from his common law responsibility as an insurer of the property. It is not reasonable to suppose that the parties intended to contract that a bailee for hire might with impunity be careless and remiss in the discharge of the trust reposed in him. If such a result is intended it must be so stated expressly and unequivocally in the contract. Glen eral words are not sufficient. Magnin v. Dinsmore, 56 N. Y., 168; Mynard v. Syracuse, Binghamton & N. Y. R. R. Co., 71 id., 180; Nicholas v. N. Y. C. & H. R. R. R. Co., 89 id., 370; Jennings v. G. T. R. Co., 127 id., 438; 40 St. Rep., 318.

Notwithstanding the contract of shipment in this case,, defendant’s liability for negligence in the handling and transportation of the property remained unimpaired, unless there is some other ground upon which exemption can be predicated. Where the property transported is of unusual or extraordinary value a notice such as is contained in this shipping receipt, that the carrier will not be responsible for loss if the true character or value of the articles are not stated at the time of shipment, unless extra freight is paid, will operate to exempt the carrier from liability even for his own negligence, unless he is informed when or before the goods are received that they are of special or unusual value. Magnin v. Dinsmore, 62 N. Y., 35; 70 id., 410. In all such cases good faith on the part of the shipper is required, and his silence at the time of shipment is such a fraudulent concealment from the carrier of a material fact affecting his liability as to exempt him from his obligation to transport with due care. If the carrier omitted to give notice to the shipper that he would not be responsible for loss unless the true character and value of the goods were stated, the latter might safely remain silent. He is not bound to speak unless notice of' non-liability on the part of the bailee, in case he remains silent, is given. In the Dinsmore case there was a clause in the shipping receipt that, if the value was not stated, the holder of the receipt would not demand more than fifty dollars for the loss or detention of -or damage to the property, and this court held, Judge Folger delivering the opinion, that the contract did no's, per se excuse the defendant from liability for a loss arising from its negligence, following the decision upon a former appeal in the same case, 56 N. Y., 168. But this court also held thát where the carrier has thus given notice that it would not be liable if the value was not disclosed, the obligation was cast upon the shipper to make the disclosure, and if he was silent and there was nothing in the form, dimensions and general appearance of the package containing the goods to indicate their value, it was such a fraud upon the carrier as to relieve him from liability beyond the stipulated amount. It was held that in such cases the carrier had the right to insist upon information with reference to the kind and value of the property as a condition precedent to his liability for negligence for two reasons: 1st, that he might bestow a degree of care commensurate with the risk assumed; and 2d, that he might exact a greater reward for its transportation. If this information is withheld, hé is manifestly misled and deceived to his prejudice. He presumably omits the care which!he would otherwise give, and he loses the additional compensation to which he is justly entitled. This rule was reiterated upon a subsequent appeal in the same case, 70 N. Y., 410, and if the defendant has brought itself within the field of exemption which this rule outlines, the trial court correctly non-suited the plaintiff.

But from the record now here, it appears that some information was given by the plaintiff’s agents and servants to the carrier at the time of shipment that the boxes contained marble statuary, and hence had a special value, which would entitle the defendant to increased compensation for carriage, if he saw fit to exact it. The only description in the shipping receipt was that of two boxes of marble, contents and value unknown; but the box containing the statute was marked, according to one witness, either “marble statuary ” or “marble figure,” or “statuary," “handle with care, this side up,” and according to,another witness, “statuary” or “fine statuary,” “handle with care" or “handle with great care.” When the truckman delivered the box to the defendant for transportation he was asked, either by the agent who received it and gave him the shipping receipt, or by an employe in his presence, “ What have you here,” and he replied: “ It is a marble statute; you want to handle it carefully." After this statement the defendant’s servants took the box from the truck, and its agent signed and delivered to the truckman the shipping receipt. It also appears that the plaintiff employed a well-known art dealer of Albany to make the. shipment, and that he had been engaged in shipping valuable works of art over the defendant’s road for twenty-seven years, and that this shipment was made in the usual manner. It is apparent that the plaintiff’s testator acted in good faith. There was no actual concealment on the part of himself or his agents of the character of the property offered for shipment. The defendant knew that it was statuary which it was undertaking to carry. It knew that as a work of art it presumably had a special value greatly in excess of the value of the same quantity of unwrouglit marble. It was thus admonished that a greater degree of care would be required in handling and transporting it; and a general knowledge of its value was obtained from which it could insist, if it chose, upon the payment of an extra price for its carriage.

It is true that the condition in the shipping receipt required a memorandum in writing to be delivered by the shipper, stating the kind and value of the article, but this was a condition which the defendant could waive; and when it was fully and truly informed as to the character of the property, and that it belonged to the class described in the condition, and it accepted it without insisting upon the written memorandum, it may be deemed to have waived a further observance of its terms. If, when the defendant was notified that the box contained a piece of statuary, it was not willing to assume a carrier’s liability for its safe transportation without additional compensation, it should then have demanded it. The law insists that under such circumstances both parties shall act in good faith. The shipper must deal honestly by the carrier, and the latter must not, by his conduct, induce the former to believe that a literal compliance with the condition will not be required.

We think the plaintiff was entitled to a submission of the cause to the jury upon the questions of waiver, of fraudulent concealment and of the defendant’s negligence, and the judgment must be reversed and a new trial granted, with costs to abide the event.

All concur, except Finch, J., not voting.


author: O’Brien, J.—The

text:
    William D. Mills, Adm’r, App’lt, v. Joseph Husson, Trustee, et al, Resp’ts.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Uses and trusts—Assignment for creditors.
    Section 67 of the statute concerning uses and trusts, as amended by chap. 545, Laws 1875, does not apply alone to real estate, but embraces all the property transferred to the assignee, whatever its character may he.
    3. Same.
    One to whom the assignor, after the lapse ot twenty-five years, has made a transfer of all his rights and interest in the assigned property, has a sufficient interest in the subject of the trust to enable him to maintain an action to compel the assignee to account.
    8. Assignment for creditors—Jurisdiction of action to compel accounting.
    The supreme court has jurisdiction concurrently with the county court of actions to compel an assignee for creditors to account.
    (Gray, J., dissents.)

      Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term, dismissing the complaint on the merits.

      Fisher A. Baker, for app’lt; Dennis McMahon, for resp’ts.

      Reversing 45 St. Rep., 802.

   O’Brien, J.—The

plaintiff, claiming to represent a creditor of Jacob D. Mills, who made an assignment for the benefit of creditors, and as the assignee of the residuary interest in the assigned estate, sought to compel an accounting by the defendant, as the substituted assignee or trustee under the assignment, and has failed substantially upon the ground that he did not establish any claim against or interest in the assigned estate.

Jacob D. Mills made an assignment for the benefit of creditors to William Dolsen, his father-in-law, June 11, 1855. The assignee was directed to pay certain preferred debts described in the assignment, and among them “ all indebtedness or sum or sums of money due, or to grow due, owing by said J. D. Mills, or for which he is in anywise liable to William Dolsen, and Charles B. Hart, respectively, and for which they are respectively liable on account of said J. D. Mills.” Dolsen the assignee, entered upon the performance of the duties of" the trust, collected about $4,000, which he disbursed, except $529.58, and died in January, 1865, leaving an estate of about $30,000.

An inventory of the personal estate was filed December 6, 1866, by his daughter, Phebe A. Mills, the wife of the assignor, who had been appointed administratrix, and it contains no claim or obligation against the assignor. In January, 1872, the plaintiff was appointed administrator de bonis non of Dolsen’s estate and on March 26, 1868, the defendant was appointed assignee of Mills in place of Dolsen, deceased, and there came- to his hands as such assignee, as part of the assigned estate applicable to the payment of debts, about $4,000, which still remains in his hands, never having been distributed. The plaintiff brought this action to compel the defendant Husson, as substituted assignee, to account and make distribution of the fund in his hands. Such of the preferred creditors as were then living and the personal representatives of those that had died, or the heirs or next of kin, were also made parties defendant, all of whom, except the assignee, failed to answer. The assignee by his answer put in issue many of the material allegations of the complaint, and set up the statute of limitations and other defenses, and denied that the plaintiff, as creditor or transferee of the assignor, had any right title or interest in the estate or assets, or any right to call him to account. On the trial the plaintiff produced two written instruments in support of his claim: (1) A promissory note of $10,000, signed by Jacob D. Mills, the assignor, and another person, bearing date March 16, 1854, whereby, twelve months after date, they jointly and severally promised to pay to William Dolsen, the assignee, ten thousand dollars, -value received, with semi-annual interest. The note on its face recites that it was given under the hands and seals of the makers, and was in fact sealed. (2) An instrument under seal, and acknowledged January 12, 1884, executed by Jacob D. Mills, whereby, for considerations expressed, he did. grant, assign and transfer to his son, the plaintiff, as administrator with the will annexed of William Dolsen, deceased, and his successors and assigns forever, all accounts, dues, debts, claims, rights and demands, actions and causes of action at law or in equity, which he then held or might thereafter acquire against the defendant, as trustee or otherwise of the assigned estate, and all his right, title and interest in or to the property included in the assignment, with authority to recover the property by action at law or in equity or otherwise. The courts below have held that, considering the long period of time from the date of the note to its presentation as a claim against the assigned estate, the character of the proof as to the manner in which it came to the plaintiff’s possession and other circumstances, some of which have been-referred to, the note was not evidence of a valid claim in favor of the plaintiff against the assignee. -It was also held that, as there was no property but money in the hands of the assignee, no interest in that was acquired by the plaintiff under the transfer to him by Jacob D. Mills, the assignor, and the complaint was dismissed.

The fund in the hands of the defendant represented in part, at least, the proceeds of real estate which belonged to the assignor, converted into money by the assignee. Assuming for the purposes of this appeal that the plaintiff’s claim under the note has been correctly disposed of as a question of fact, his right under the transfer remains to be considered. The sixty-seventh section of the statute concerning uses and trusts, as amended by chapter 545 of the Laws of 1875, reads as follows :

§ 67. When the purposes for which an express trust shall have been created shall have ceased, the estate of the trustees shall also cease. And where an estate .has been conveyed to trustees’for the benefit of creditors, and no different limitation is contained in the instrument creating the trust, such trust shall be deemed discharged at the end of twenty-five years from the creation of the same; and the estate conveyed to trustee or trustees, and not granted or conveyed by him or them, shall revert to the grantor or grantors, his or their heirs or devisees, or persons claiming under them, to the same effect as though such trust had not been created.”

The power conferred upon the assignee was to convert the assigned property into money and to distribute the same pro rata among certain persons named. After the lapse of nearly forty years the changes produced by death have rendered it difficult and perhaps impossible to execute this power, and in some analogous cases it has been held that under such circumstances the trust ■ became extinct.. Sharpsteen v. Tillow, 3 Cow., 661; Hetzel v. Barber, 69 N. Y., 13. In this case, however, the trust was clearly discharged by force of the statute at the end of twenty-five years, and the property reverted to the assignor, and through him to the plaintiff, under the transfer, unless, as the learned counsel for the defendant claims, the statute relates solely to real estate. A construction of the statute which discharges the trust at the-end of twenty-five years as to real estate, but preserves it indefinitely as to personalty, must rest upon the language alone,, as no support for that view can be found in consideration's-based upon reason or justice. The language is that “ such trust shall be deemed discharged at the end of twenty-five years from, the creation of the same.”

This means the whole trust, and not a part of it. It refers to-all the property embraced in the trust, and not to a part of it only. It refers to a case where all the assigned property was personalty as well as to the case of an assignment where the property is all or in part realty. It is true that the words used are all apt to describe real estate, but they are comprehensive enough to-include personal also, and there is no reason to suppose that all. the property of every kind was not within the purpose of the act or the legislative intent. It applies when an estate has been conveyed to trustees for the benefit of creditors, and that word in the law governing such assignments is used to describe the assigned property without regard to its character. So that even if we had no other guide in the solution of the question except considerations drawn from the language employed in framing the amendment, the nature of the question which we must presume was present to the legislative mind, the purpose that was evidently in view and the evil to be corrected, it would be difficult to say with any great degree of confidence that personal property was not intended to be included in the operation of the act.

This conclusion is fortified bv the decisions of the courts in analogous cases in which it has been quite uniformly held that the rules governing estates or interests in lands, whether founded upon statutes or upon general principles of law, should, as far as-practicable, be applied to estates or interests of a like character in personal property. The statute -itself declares that certain limitations of future or contingent interests in land shall also be applied to personal property. 1 R S., 773, § 2. This court has held that the provision of the statute in regard to estates in real property, 1 R S., 726, § 40, providing that, when, in consequence of a valid limitation of an expectant estate, there shall be a suspense of the power of alienation, or of the ownership,, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate, applies to personal' property. Cook v. Lowry, 95 N. Y., 103, 108 ; Delafield v. Shipman, 103 id., 463 ; 4 St. Rep., 247.

The statute declaring that every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be a joint tenancy,, applies to personal estate. 1 R. S., 727, § 44; Everett v. Everett, 29 N. Y., 72 ; Bliven v. Seymour, 88 id., 478; Van Brunt v. Van Brunt, 111 id., 179. 187; 19 St. Rep., 251.

In Graff v. Bonnett, 31 N. Y., 13, a creditor sought to reach; the income of a fund for the benefit of the debtor under a bequest in a will. It was héld that the sixty-third section of the statute-of uses and trusts, which provides that no person, beneficially interested in a trust for the receipt of the rents and profits of lands,, can assign or in any manner dispose of such interest, applied to a trust of personal property. This result was reached by the application of a principle thus stated by the learned judge who expressed the views of the majority of the court: “ Even if the provisions of the statute were not sufficiently comprehensive absolutely to require as .a peremptory injunction of statute law their application in all their length and breadth, and in the same degree to both classes of property, the argument to be derived from the general similarity of the legislative enactments in regard to both classes of property, from the similar if not equal mischiefsto be remedied, and from the general policy of the law, would authorize a court of equity, in the exercise of its acknowledged powers, to apply the same rule of construction to both.”

Section 57 of the same statute provides that where a trust is-created to receive the rents and profits of lands, and no valid direction for accumulation is given, the surplus bejmnd what may be necessary for the education and support of the person for whose benefit the trust is created, shall be liable in equity to the claims of his creditors, and it has been held that this applied to trusts of personal property-for a like purpose- by the analogy which the courts have aimed to preserve between interests or estates in land, or the income thereof, and similar interests in personal property. Williams v. Thorn, 70 N. Y., 272. The one hundred and twenty-sixth section of the article on powers provides that “ lands embraced in a power to devise shall pass by a will purporting to convey all the real property of the testator,”' unless the contrary intent appears. This court has held that the-section applies to personal estates. Cutting v. Cutting, 86 N. Y., 544. “There is certainty,” said the court in.that case, “much force in the position that one body of law should not declare a. different rule for two kinds of property, when there is nothing in the nature of either kind of property, or in the nature and effect of the rule, that calls for it.” There is nothing in the nature of the trust authorized by the-statute for the benefit of creditors that would require or warrant the application of one rule to real estate and another to personal, and so we think that the amendment of 1875, above referred to, should be understood as embracing all the property transferred to the assignee whatever its character may be.

It follows that there was a material error committed in the disposition of the case in the courts below. As the case turned substantially upon this point, we will not now inquire as to the effect of the statute of limitations or the lapse of time. There is nothing in the defendant’s position to induce us to discover some ground for sustaining the judgment that was not apparent to the courts below. The assignee had no personal or equitable right to the fund in his hands, and he should pay it over to the parties, entitled to it, whoever they may be.

There is no point made as to the jurisdiction of the supreme court to entertain the action or that the jurisdiction of the county court is exclusive. Whatever the law was before the passage of the act, chapter 380 of the Laws of 1885, the supreme court has now jurisdiction in such cases concurrently with the county court. 'There is another feature of the case that perhaps deserves some notice. The assignor himself, as well as the creditors, was competent to institute proceedings to call the assignee to account. Every right which was capable of transfer passed to the plaintiff under the instrument executed to him by the party creating the trust, and I am unable to see why the plaintiff does not occupy the same position that the assignor himself would had he brought the action. We do not mean to decide upon the record now before us that the plaintiff is entitled to the fund, or that distribution to the creditors or their personal representatives cannot still be enforced, notwithstanding the long delay, as the statute of limitations ordinarily does not commence to run in favor of the trustee of such a trust until a denial or repudiation of its existence or obligations. Zebley v. Farmers' Loan & Trust Co., 139 N. Y., 461; 54 St. Rep., 721.

It is not necessary now to decide any question with respect to the application of that statute. It is sufficient to say that it is not a case where we should now attempt to uphold the judgment that turned upon other grounds for any reasons based upon the lapse of time. There is no question made with respect to the applicacation of the amendment of 1875 to pre-existing assignments or its constitutional validity. Kip v. Hirsh, 103 N. Y., 565; 4 St. Rep., 257; Morse v. Goold, 11 N. Y., 288. There are some other -questions suggested by the record that are liable to disappear upon a new trial. Without expressing any opinion in regard to them, we think it only necessary now to hold that the plaintiff at the trial showed a sufficient interest in the subject of the trust to enable him to maintain the action, and as the courts below arrived at a contrary conclusion, the judgment should be reversed, .and a new trial granted, costs to abide the event.

All concur, except Gray, J., dissenting.