author: Daly, Oh. J. Freedman, J.

text:
    Patrick Cassidy et al., Resp’ts, v. Joseph McFarland et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 11, 1893.)

    Costs—Taxation.
    Under an order of general term, affirming an order of reference, with costs, ten dollars costs and disbursements may be taxed.

      Appeal by the defendant, Frederick Wood, from an order of the special term of this court, denying the motion for a new taxation of costs. He had appealed to the general term from an order of reference, and the order was affirmed, “ with costs.” The respondent proceeded to tax before the clerk of the court a bill of costs ($10) and disbursements ($9.06), amounting together to-$19.06. Taxation of the bill of costs was objected to, on the ground that the order of the general term did not authorize or empower the clerk of this court to tax any disbursements or costs, nor fix the amount of costs at ten dollars, or any other sum, and that no disbursements can be taxed on a motion, except disbursements for printing.

      Geo. A. Stearns, for app’lts;

      Thos. 0. Ennever, for resp’ts.
   Daly, Oh. J.

The order of the general term affirmed the order of reference, “ with costs.” It has been held that ten dollars costs, together with disbursements, can be taxed under such an order. Jones v. Sherman, 8 St. Rep., 344. The Code provides-that costs of motion shall be a sum fixed by .the court or judge, not exceeding ten dollars. Sec. 3251. But there is no provision requiring that the costs allowed upon an appeal from an order-made upon a motion shall be fixed at a certain sum by the appellate court. It is settled that motion costs ordered only can be allowed upon such an appeal, Phipps v. Carman, 26 Hun, 518, and, as the usual costs of motion are ten dollars, it is to be assumed that such sum is intended by an order affirming ll with costs,” but specifying no amount.

By § 3256 it is provided that where an allowance of costs is made in an action, the party is entitled to his necessary disbursements. It has been held that disbursements of a motion may be taxed by the clerk only where the order expressly directs it to be done. Ward v. Ward, N. Y. Law Journal, Nov. 19, 1892. That, decision prescribed the practice upon a motion, but not upon an appeal from an order. It is nowhere required that the general term shall tax the disbursements of the successful party; and,, where disbursements follow the allowance of costs by the general term and must be taxed, the authority of the clerk to tax them is, from the necessity of the case, presumed from the order allowing costs. '

The last objection made is, that only disbursements for printing-can be allowed upon a motion. Sec. 3251. There is no such restriction upon an appeal from an order.

Order appealed from affirmed, with costs.

Bookstaver and Pryor, JJ., concur.

The opinion in Ward v. Ward, at special term of the superior court of New York, referred to in the foregoing opinion, is as follows :

Freedman, J.

The questions involved arise (1) upon an appeal from the taxation by the clerk of certain disbursements incurred upon a reference, (2) upon defendant’s motion founded upon affidavit for a retaxation, and (3) upon the referee’s motion founded upon affidavit for a retaxation. The action is by wife .against husband for a separation and for support. The wife moved for alimony during the pendency of the action and a counsel fee, and upon the hearing of the motion such a conflict seems to have been created by the attorneys for the parties that the court felt bound to order and did order a reference. The referee was directed to determine whether any, and if so, what alimony and counsel fee ought to be awarded to the plaintiff. The reference terminated in a report, upon the confirmation of which an order was entered granting to the plaintiff alimony at the rate of $50 per month and an allowance of $250 as and for expense in conducting this action, and together with such a sum as shall be taxed- by the clerk of this court as costs and disbursements in this proceeding. Under this provision of the order the attorney for the plaintiff presented to the clerk for taxation a bill of disbursements amounting to $602.65, of which $375 were for referee’s fees and $221.65 for stenographer’s fees. The conduct of the attorneys for the respective parties which works such extravagant expenditure on a mere motion, the object of which is simply to provide a provisional support to the wife during the pendency •of an action which can and ought to be terminated in a few months, calls for condemnation on the part of the court. True, the main fault lies in the system which sanctions such a practica But attorneys should have due regard to the ultimate interests of their clients, and if they seem oblivious of their duty in this respect, a referee of sufficient self-respect should remind them of it. A small fortune should not be frittered away upon such a preliminary point. Entertaining these views, I shall hold every participant in the reference to strict practice. It appears that the clerk, from the proofs submitted to him, reduced the item of $375 for referee’s fees to $210, and that he reduced the item of $221.65 for stenographer’s fees to $117.30. Both the defendant and the referee complain of this ruling, the defendant contending that no referee’s or stenographer’s fees should have been allowed, and the referee, appearing by private counsel, contending that his fees should have been taxed at the sum of $350. The stenographer, at some time or other, also appeared by separate and private counsel, and submitted affidavits, but whether they were before the clerk does not clearly appear. Upon the case as submitted to me a great conflict exists as to what was before the clerk and also as to what was the real agreement between the parties and the stenographer, and, if it were necessary to determine the said conflict, much time and labor would have to be spent to arrive at the 0 truth. I do not deem it - necessary, however, to make such deter-1 mination, because I have satisfied myself that under the order referred to the clerk had no power to tax referee’s or stenographer’s fees.

My reasons are as follows. The clerk is made by statute the taxing officer for the purpose of taxing the costs and disbursements of the action preparatory to the entry of final judgment. His duties as such taxing officer are prescribed by statute, and everything he may do is regulated by statute. But these statutory provisions do not apply to a motion. If costs and disbursements: are given by the court or a judge on a motion, they must be specifically expressed in the order as entered. True, the order may refer it to the clerk to tax the disbursements so awarded, but then the order must contain a specific delegation of power to the clerk to tax the amount of the particular disbursements allowed. The costs and disbursements which may be given upon a motion for alimony and counsel fees are regulated by § 3251 of the Code of Civ. Pro. It is there provided that upon such a motion a sum fixed by the court or judge, not exceeding ten dollars, may be awarded as costs, besides necessary disbursements for printing and referee’s fees. This seems to exclude stenographer’s fees. Section 3256, on the other hand, contemplates only the costs of the action, and does not apply to motions, and consequently the amendments of 1892 are immaterial, no matter what they may amount to on the taxation of the costs of the action. The consequence of all this is that, if in the present case stenographer’s fees, as well as referee’s fees, can be allowed, they must be specifically named in the order, and if the clerk is to tax them, he must be specifically directed to do so. In the case at bar the order as entered shows upon its face that the judge who directed it to be entered struck out the specific direction to the clerk, originally inserted therein, to tax the referee’s and stenographer’s fees. This is quite significant. Moreover, the order allows to the plaintiff “ the sum of two hundred and fifty dollars as and»for expense in conducting this action.” As the main expense in conducting this action so far as has been the expense of the reference, this might, in a certain aspect, be construed as an allowance on that account. From all this it follows that the additional words “ together with such a sum as shall be taxed by the clerk of this court as costs and disbursements in this proceeding,” are too indefinite and uncertain to constitute a specific delegation of power to the clerk to tax referee’s or stenographer’s fees. For the reasons stated the taxation must be set aside so far as it allows any sum whatever for referee’s fees or stenographer’s fees, and the referee’s motion for a retaxation denied.


source: Caselaw Access Project

author: Pryor, J.

license: Public Domain

text:
    Leo C. Jakobi et al., App’lts, v. John J. Gorman, Sheriff, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 16, 1893.)

    Sheriffs—Substitution of indemnitors as defendants.
    After judgment by default against a sheriff in an action of replevin for goods levied upon by him, the indemnitors of the sheriff applied for and were allowed to be substituted in place of the sheriff. Held, that there was no abuse of discretion in granting the application, as the indemnitors were the parties really interested in the defense of the action, and should be allowed an opportunity to make good such defense.
    Appeal from order of the general term of the city court of New York, affirming order substituting indemnitors as parties defendant in place of the sheriff.

      Abraham Gruber, for app’lts ;

      John B. Brodsky, for resp’t.

       Affirming 49 St. Rep., 220.

   Pryor, J.

Upon a judgment in an action by Skieck against Schmidt, Gorman, as sheriff, levied on property in the possession )f Schmidt; the plaintiffs herein made claim to the property, and Drought replevin for its recovery ; and thereupon Schieck, Offer-nan and Selje executed a bond of indemnity to the sheriff. The notion is by these indemnitors to bO substituted as defendants in Diace of Gorman, the sheriff. An order of substitution at special ;erm was affirmed by the general term of the city court, and from ;hat order of affirmance an appeal is taken to us.

The order of substitution was entered the 20th September, 1892. But, the indemnitors had noticed and withdrawn a previous appliiation for substitution, namely, on the 12th October, 1891. It ’urther appears by the record, that, on the 17th June, 1892, before my application for substitution, judgment by default had gone against the sheriff-defendant, and execution thereon issued ; that she indemnitors had no knowledge of the default, judgment or ixecution until late in the evening, “ when they were notified by nail that judgment had been entered, and that unless the same vas adjusted the sheriff would pay the same on the 17th.” iSTo explanation is given of the withdrawal of the 12th October notion for substitution; but the obvious inference is that it was Decause of the indemnitors’ reliance upon the good faith and diligence of the sheriff in defending the action. Now that their conidence is disappointed, they seek an opportunity of protecting heir rights.

Being amply indemnified, the sheriff is in no peril from the ación ; and the entire loss, if any there be, must be borne by the ndemnitors. Their answer discloses a valid defense, and, in com-non justice, they should have their day in court to make good ;hat defense, especially since no question is made as to their sufficiency to respond in damages to the plaintiffs.

Upon the facts before us we are unable to say that, in granting she order of substitution, the court below failed to exercise a fair liscretion. Hayes v. Davidson, 98 N. Y., 22.

An order of the city court opening a default is not appealable so us. Keller v. Feldmann, 49 St. Rep., 718. But, appellants irge that the default of the sheriff was unexcused and inexcusable ; and this very fact, namely, that the default was willful, apDears to us as sufficient reason for permitting the parties who were rot i-esponsible for it, and who, alone, are afflicted by its consequences, to come in and make defense.

Again, the appellants contend that in opening the default the jourt below committed legal error in this: that the sheriff, then she only defendant, as dominus litus, alone had the carriage of the litigation; and that the indemnitors, strangers to the action, had ao right to control its conduct The answer is, that the indemnitors were the parties really iirterested in the defense; that the law allows them to .intervene for the protection of their rights; and that the same order which opened the default admitted them as parties to the action.

Order affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.


author: Gray, J.

text:
    William Sperb, Jr., App’lt, v. The Metropolitan Elevated Railway Co. et al., Resp’ts.

      (Court of Appeals,

      Filed January 31, 1893.)

    1. Railroad—Elevated—Measure of damages—Running of trains.
    The passage of numerous trains at short intervals over an elevated railroad structure constitutes an inconsistent and excessive street use, and to that extent defendants have taken and will hereafter keep a part of plaintiffs easements of light and air, and this should he taken into account in fixing the amount of damages to be paid by defendant in order to obviate an injunction.
    2. Same.
    In computing the alternative damages, their extent and the elements should be the same as would be considered in the computation of the com-' pensation to be given in proceedings for the condemnation of lands for a railroad use, due regard being had to the different characteristics of the property to be taken; and so the compensation should he based upon the lessened value of the lot owner’s interest in the premises through the continued maintenance and operation of the elevated railway. To the extent that his street easements are appropriated and damaged and impaired, his adjoining property may be shown to be damaged.
    Appeal from an order of the New York superior court, general term, reversing a judgment entered upon the report of a referee in favor of the plaintiff, which awarded him damages sustained up to the commencement of the action, and enjoined the defendants from maintaining, or in any way using, the railway structure in front of the premises owned by plaintiff, and which abutted on the northerly side of West Fifty-third street, in the city of New York, unless within a certain time the defendants should pay to the plaintiff a sum of $6,000, and take a conveyance of the easements, in which case the injunction should be inoperative.

      Edwin M. Felt] for app’lt;

      Samuel Blythe Rogers, for resp’ts.

       Reversing 44 St. Rep., 216.

   Gray, J.

The only point which is presented to us upon this appeal is as to the correctness of the refusal by the referee 'to make the following findings when requested by the defendants :

Fifteenth: The sum fixed which the defendants may pay in order to obviate the injunction herein should not be greater than a sum necessary to compensate the plaintiff for the perpetual maintenance of the defendants' elevated railway structure and exclusive of the damages caused by the running of trains i h peYproY)

“Refused.—W. H. W., Ref

Sixteenth: The value of so much of the plaintiff’s easements as are taken by the perpetual maintenance of the defendant’s elevated railroad structure, and exclusive of all injuries in the future caused by the running of trains thereon, is the sum of-dollars.

“Refused.—W. H. W., Ref."

The referee’s rulings were excepted to and "these exceptions, alone, are relied upon by the respondents to sustain the reversal by the general term. The general term justices, in their opinion, took the quite unwarrantable view that the defendants, in acquiring the right to maintain their structure in the street, are not bound to make compensation for the incidental injuries produced by the running of trains upon the same, and that the future discharge of smoke, cinders and noxious gases are not items of damage which should be considered in the estimate of the compensation to be made.

The defendant’s counsel concisely states the proposition of the general term justices to be, that the plaintiff had no easement which can be taken by "the running of trains, and he earnestly and ingeniously seeks to sustain its correctness. The argument is that though such items may properly enter into the estimate of damages suffered in the past, the trespass itself consists only in the maintenance of a permanent structure in the street, and the lawful operation of the company’s franchises, in the running of trains upon the structure, whatever may be the incidents attendant, if necessarily so, cannot afford grounds for an award of compensation when the company seeks to acquire, or to condemn, the rights of the abutting property owner. The argument is rested, almost wholly, upon our decision in Fobes v. Rome, etc., R. R. Co., 121 N. Y., 505; 31 St. Rep., 828. That decision is very much misapprehended, when it is sought to make use of it as an authority for such a doctrine. In that case the question presented grew out of the operation of a steam surface railroad upon the bed of the street, and related to the right of an abutting owner, whose property was bounded by the exterior line of the street, to hold the railroad company liable for consequential injuries. We held, reversing a judgment recovered by the plaintiff, that no such liability existed, and that there was no legal distinction between the case of a surface railroad operated by horses and one operated by steam power. When the use of either becomes unreasonable, excessive or exclusive, then it might be proper to demand the interference of a court of equity ; but there is nothing in the mere change in the motive power, though constituting a different street use, which created any right in the adjoining landowner to recover damages. In reference to the Story case, 90 N. Y., 122, which had been cited, we held that it was not intended to overrule or change the law in regard to steam surface railroads, and the discussion of that case was conducted with respect to the effect claimed for it upon that law. Judge Peckham, who delivered the opinion in the Foies case, in speaking of the character of the street obstruction caused by the elevated railroad, was considering the structure itself and how it amounted to a permanent, exclusive and absolute appropriation of a portion of the street. He was not considering the question of incidental injuries caused by the interference with easements from the operation of the road by the running of trains; and his opinion, when read in connection with the subject under discussion, is not susceptible of the construction placed upon it by the court below.

In the Story case, the finding of the trial court was that the defendant proposed to construct an elevated railroad in the street and in front of the plaintiff’s premises, and the question for decision was whether the proposed structure was an appropriation of the street which invaded the complainant’s easements; and it was held that it was, and thereby took plaintiff’s property. In Judge Peckham’s consideration of the Story case, he had in mind the basis of fact for its decision, and that was the nature, and the lawfulness as to the adjoining owner, of the structure which the railroad company designed to maintain in the street. In the Fobes case we decided that there was no taking of the plaintiff’s property by the railroad company, in operating its road' under legislative authority in a public street, in the soil of which he possessed no interest; while in the Story case the question was altogether different, in the property owner’s right to restrain the maintenance of a structure in the street which, in its peculiar features of a permanent obstruction to access, and of a permanent exclusion of air and light, amounted to a deprivation or to an actual taking of the adjoining landowners’ property, in the lessened value of these appurtenant easements.

In holding, as be did, that the passage of the numerous trains, at short intervals, over the railway structure constituted an inconsistent and excessive street use, and that, to that extent, the defendants have taken, and will hereafter keep, a part of the plaintiff’s easements of light and air, the referee was clearly right, and he was perfectly justified, in fixing the amount of damages to be paid by the defendant in order to obviate the injunction, in refusing to exclude the damages caused by the running of trains.

The doctrine of the elevated railway cases has been of steady and consistent growth since its rise in the decision of the Story case, which converted many of what, under previous circumstances of street railway uses, were mere consequential injuries, into invasions of the property rights of adjoining property owners. The theory of awarding damages in actions against the elevated railway companies lias been that they are trespassers as to abutting lot owners, and are responsible to them for such injuries as may be proved to result from their wrongful acts. In their occupation and use of the street they take from the abutting lot owners a portion of their easements in the street, without making compensation, and hence they are, as to them, illegally there. See Kane v. N. Y. El. R. R. Co., 125 N. Y., 164; 34 St. Rep., 876; Amer. Bank Note Co. v. Same, 129 N. Y., 252; 41 St. Rep., 531.

The illegality is not in their making use of the street for their corporate purposes, for that right has been competently granted to them; but the illegality of their acts consists in their appropriating a portion of the adjoining owner’s property rights of easements without first acquiring them by negotiation, or by condemnation proceedings. In all of the cases the trespass has been regarded as consisting in the presence of the elevated railway structure and in the passage of cars upon it; and in none is there a suggestion that the structure and its use can be separated, in considering the effect upon the complaining property owner. In Drucker v. El. R. R. Co., 106 N. Y., 157; 8 St. Rep., 599, it was held that the structure and the passage of trains lessened the easement of light; the smoke, cinders, gases, etc., affect and impair the easement of air, and the drippings and frequent columns interfere with the convenience of access, and as abridging these easements of the landowner they were elements of damage. In the American Bank Note Co.'s case, 129 N. Y., 252; 41 St. Rep., 531, Judge Finch, who wrote in the Drucker case, referred to what it had decided as to liability for damages, and defined the limitation upon the right to recover to be found when the acts did not, “pro tanto, constitute some element of the taking.” In Kernochan v. N. Y. El. R. R. Co., 128 N. Y., 559; 41 St. Rep., 110, it was said by Judge Andrews that, under circumstances showing an intention to permanently operate the road, in the character and purpose of the structure, the powers, obligations and expenditures of the company, and the right of condemnation given by the statutes, “ the construction and operation of the road, before any consummated right has been acquired by the defendants, whereby the owner of abutting property is deprived of the full enjoyment of his property, constitutes an injury to the inheritance.” There is no authority to be found in our decisions to support the proposition contended for, that the elevated railroad structure is alone to be considered in fixing the amount to be paid by the company in order to acquire the right to continue to operate its franchises in the street. In all of them the operation of the road is deemed an element of damage as impairing and lessening the landowner’s easement, and it is to be considered as incidental to the maintenance and use of the structure.

In a decision by a general term of the same department, differently constituted, however, this same question was rightly decided, and according to the views we entertain. We are informed that this decision, which was in the case of Suarez v. The Manhattan Railway Co., was made shortly before the decision in this case; but was not known to the justices below, and in that way the conflict in opinions is accounted for. In the Suarez case it was held, on the authority of the Lahr case, 104 N. Y., 269; 4 St. Rep., 340, that the defendant was liable for the operation of its trains, and that, in giving the defendant an opportunity to pay for the easements taken, the court does not require the defendant to pay for the right to run trains, but that it required them to pay for the easements taken of light, air and access, at a price measured by their lessened value, resulting from the unlawful maintenance of the structure and operation of the road thereon. The brief opinion which was delivered by Justice Barrett is reported in vol. 15 of N. Y. Supp., at page 222, and 39 St. Rep., 549, and was concurred in by Justices Van Brunt and Patterson.

The principle which should guide an award of damages to be paid by the railroad company in order to obviate the injunction is the same as in proceedings under the statute to condemn property for the railroad use. The injunction of the court and the alternative damages are deemed to be a substitute for those proceedings. In computing the alternative damages, their extent and the elements should be the same as would be considered in the computation of the compensation to be given in proceedings for the condemnation of lands for- a railroad use, due regard being had to the different characteristics of the property to be taken. American Bank Note Co. v. N. Y. El. R. R. Co., 129 N. Y., 253; 41 St. Rep., 531. If the defendants had instituted such a proceeding in invitum the lot owner, there can be no doubt but that they would be obliged to pay for the easements of light, air and access taken and appropriated by them, a compensation based upon the lessened value of the lot owner’s interest in the premises through the continued maintenance and operation of the elevated railway. To the extent that his stréet easements are appropriated and impaired, his adjoining property may be shown to be damaged.

It is needless to further discuss the question. I think the decision below was the result of a total misapprehension of the decision in the Fobes case, and is opposed to the principle of all of our decisions in this class of litigation.

The order of the general term should be reversed and the judgment entered upon the report of the referee should be affirmed, with costs in both courts to the appellant.

All concur.


text:
    The Continental National Bank of Boston, App’lt, v. Henry W. Strauss, Impl’d, Resp’t. (2 Cases.)

      (Court of Appeals,

      Filed January 31, 1893.)

    1. Partnership—Limited—Pleading.
    In an action to charge a special partner with liability for firm debts where the complaint alleges a general partnership, the plaintiff is bound, where a-special partnership is set up in an answer, to establish affirmatively that the defendant answering was a general partner, if not as between him and the other partners, presumptively as to creditors of the firm.
    2. Same—Burden of proof.
    It is for the court to say, where the evidence is not conflicting, whether it tended to show that the statutory provisions had been violated by the special partner in such wise as to cast upon him the burden of meeting and overcoming the plaintiff’s proofs.
    3. Same—Infant partner.
    An infant may become interested in business as a general partner, and is responsible until he elects to set up the personal plea of infancy.
    Appeal from judgment of the New York superior court, general term, affirming judgments entered in favor of the defendant .Strauss, after the dismissal as to him of the plaintiff’s complaint at trial term.

      B. F. Watson, for app’lt;

      B. F. Finstein, for resp’t.

       Affirming 43 St. Rep., 68

   Gray, J.

This is an appeal of the plaintiff from a judgment of the superior court of New York city, dismissing its complaint, in an action brought upon a promissory note, as against the defendant Strauss. The complaint alleged that the firm of A. Hoexter & Company, an indorser upon the note, was composed of the defendant Augustus Hoexter, Leo W. Hoexter and Henry W. Strauss, as general partners. Strauss answered, denying the allegation, and alleged that A. Hoexter & Co was a limited partnership, duly formed under the law, and in which he was the special partner. Upon the trial coming on, the plaintiff was at first disposed to rest its case against Strauss upon certain evidence given by a clerk, who had been employed by the firm, to the effect that he had frequently seen Strauss come into the store, converse with the Hoexters and look at the books, and that his name appeared on the sign as a partner. He did not know if there was any partnership agreement, and, upon being cross-examined, he said that Strauss’ name was given as the special partner on the sign, upon which the other names appeared as general partners. The trial judge holding that this proof only showed Strauss to be a special partner, the plaintiff was allowed to put in further proofs, which •consisted in certain evidence of Strauss, given in proceedings by him as the receiver of the firm against A. and L. Hoexter, and in the pleadings and proceedings in an action instituted by him against the firm to obtain a dissolution, an accounting and the sequestration of its assets through a receivership. From this evidence it was made to appear that the difficulties of the partnership arose out of the misconduct and malversations of Augustus Hoexter, which culminated, before the expiration of the term of the partnership, in the wasting or impairment of its assets, in its financial embarrassment, and, as the result of judgments against him which were sought to be enforced as against his partnership interest, in his making an assignment for the benefit of creditors and absconding immediately thereupon.

It appeared from the evidence, also, that Strauss had paid in his contribution of $50,000 of special capital, and nothing appeared to connect him directly, or inferentially, with the firm as a general partner. The trial j udge dismissed the complaint, at the close of plaintiff’s case, as to Strauss, upon the ground that there was no evidence to make him liable as a general partner. We think he could not have ruled otherwise. The plaintiff was bound under the issue tendered to establish affirmatively that Strauss was a general partner, if not as between him and the other partners, presumptively as to creditors of the firm, before it was entitled to recover. But in this it failed; and the extent of the proof was to show that he was a special partner. If plaintiff had given any evidence tending to show that Strauss’ acts had been such as to involve him with the management or conduct of the partnership affairs; or that the provisions of the limited partnership law had been violated in some way so as to make him liable as a general partner, the burden would then have been shifted to his shoulders and he would have been obliged to repel the presumptions arising from such evidence by other evidence. But it was not for Strauss, when the plaintiff’s evidence simply exhibited him as a special partner of the firm, to show that the statute had been complied with in all respects and that in none had there been such acts of commission or of omission, in violation of the statute, as to convert his liability into a general one as to firm creditors. The maxim omnia praesumuntur rite esse acta is applicable when the validity of proceedings taken under a statute is in question, and the status of a party thereunder remains secure until his assailant has rebutted the presumption by evidence showing, or tending to - show, material violations or jurisdictional irregularities, through occurrence of which the statutory proceedings are invalidated and are no longer a defense. That question may be one of law for the court to decide, upon a construction of statutory provisions; or it may be one of fact, which, as the fact may be decided by the jury, will determine the result to the parties interested. In the present case, as the evidence was not conflicting, it was for the court, to say whether it tended to show that the statutory provisions had been violated by Strauss in such wise as to cast upon him the burden of meeting and overcoming the plaintiff’s proofs. Very correctly, the trial judge ruled that nothing militated against Strauss’ position as a special partner. His allegation in that respect had been, so far, only borne out by the evidence, and every presumption was still in his favor.

We cannot agree with the learned counsel for the plaintiff that the fact of Leo Hoexter, one of the general partners, being a minor affected the question of Strauss’ position and liability toward firm creditors. There can be no question but that an infant may become interested in business as a general partner. Nothing forbade it at common law and nothing in the statutory law now forbids it. His infancy was a factor in the situation which enabled him to disaffirm his obligations and agreements, and, in that respect, the privilege was a personal one to himself. Infancy does not disable one from entering into contracts, and so long as the infant does not avail himself of the privilege to set up his infancy in bar of, or to avoid an obligation, his position and his acts are those of any responsible person. An y other view of his. situation would lead to holding all his acts and engagements void; whereas they are voidable merely at his election. The limited partnership act, in requiring that such partnerships may consist of one or more persons, who shall be called general partners, who shall be jointly and severally responsible as general partners now are by law, has not given a definition of who may be general partners which is at variance with what has' been said. If the general partner, or one of the general partners, is a minor, he, nevertheless, is responsible for all partnership engagements, and will. be, unless and until he elects to set up the personal plea of infancy. But that he will do so is not to be presumed. To the contrary is the presumption. It would be an immoral presumption to entertain that a person who enters into engagements with others will resort to the plea of infancy to avoid them thereafter. The law has, with a great solicitude for the interests of infants, thrown about them a protecting arm and accords to them the privilege to plead their incapacity, if they desire to escape from compliance with, or the results of some contract. It does not, and cannot, perhaps unfortunately, make a distinction" in favor of those who honestly seek to be relieved of some advantage taken of them in their minority as against those who use the plea of infancy to take an advantage of others. The law does not compel them to set up the plea; any more than it stamps their engagements as void.

There is not the slightest pretense, of course, here, that Leo Hoexter ever did, or intended to, avail himself of this plea. The fact of his being a minor merely appeared in the evidence and is availed of for the argument. We hold that he might be a general partner and that nothing in the limited partnership act prohibited’him from being one of the firm ; in the letter, or the spirit of the law. The limited partnership law was intended to encourage the employment of capital in trade, by limiting the liability of the intending contributor to the capital invested, upon his compliance with the provisions of that law. While securing to the business community such an obvious advantage, it secures to them, in their dealings with the partnership, the fullest knowledge about its formation, duly and in good faith, and requires in such respect the utmost exactness'and good faith and the abstention of the special partner from any interference with, or from taking part in, the conduct of the business.

But the appellant further argues that there was an interference by Strauss with the business of A. Hoexter & Co., which was in violation of the command of the act and which fastened upon him the liability of a general partner; in that he brought the action for the dissolution of the partnership before the expiration of the term fixed in its articles and became its receiver. What the act inhibits is a dissolution by the act of the parties previous to the time specified in the articles. It would be too great a strain upon the reason, in my judgment, to say that the proceedings in question were within the contemplation and the provision of the law. One of its sections (18) especially, provides that general partners shall be liable to account to each other, and to the special partner, for their management of the concern, both in law and in equity, as other partners now are by law. This appeared to be a very plain case for the prompt intervention of a court of equity and for the sequestration of the firm assets in the hands of its receiver, upon facts showing the condition of embarrassment in the affairs of the firm, which Augustus Hoexter had brought about by his misconduct The action was in the interest of creditors, as well as of the partners, and the receiver, as an officer of the court, represented them both. Strauss had a right to take this step to compel an accounting, and meanwhile, by a receivership, to hold and to get in what assets there might be of this firm, which had been so badly wrecked by the fraudulent acts of the absconding member.

His own appointment as the receiver was a matter, or question of propriety, which concerned the creditors at the time, and it was not a matter which in any way affected or changed his legal relations as a partner under the articles of the partnership. The law does intend that a limited partnership shall continue for the term specified and that the parties shall not terminate it sooner by their agreement while a going concern.

It was not the intention to deprive the members of those equitable rights which might accrue to them as against their associates by reason of fraudulent acts, the result of which is, in fact, to terminate or to cause a stoppage of its business. In such a case as this, the special partner’s action is not hostile to the creditors, but presumably to their advantage.

These and other questions have been very fully and satisfactorily discussed at the general term below and there is no necessity to add to the discussion further than we have done.

The judgment should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Eliza A. Simmons, Ex’rx, Resp’t, v. Helena Craig et al., App’lts.

      (Court of Appeals,

      Filed January 31, 1893.)

    1. Judgment—Correction of.
    If the judgment entered in an action be not in pursuance of the decision, or be improper in form, the defendant, if he has an opportunity, should object thereto and then make a motion to correct it; and if his motion be denied, and the defect or error be matter of substance, he may appeal, in a proper case, even to this court for its correction. If the judgment be really objectionable, an appeal therefrom is not the proper remedy.
    2. Motions and orders—Affidavit.
    A statement in an affidavit that deponent denies that he had information or knowledge sufficient to form a belief, and alleging that he had no knowledge and information sufficient to form a belief, is an absolute nullity. Such form of denial is authorized only in a pleading.
    Appeal from a judgment of the supreme court, general term, first department, affirming an interlocutory judgment granted at special term;

      E. Haines, for app’lts;

      Herbert H. Gibbs, for resp’t.

       Affirming 43 St. Rep., 358.

   Per Curiam.

This action was brought by Maria W. Croome against the defendants to procure an adjudication that they were trustees of certain property for her, and to compel them to account in reference thereto. It was brought to trial at a special term, where an interlocutory judgment was rendered, in which, among other things, the defendants were ordered to account, and a referee was appointed for the purpose of the accounting. Pending the hearing before the referee, Mrs. Croome died, leaving a will in which Eliza A. Simmons was appointed executrix. Subsequently, upon her motion, she was substituted as plaintiff in the action, and the trial thereafter proceeded before the referee, and he found that there wasMue from the defendants to the plaintiff, $6,588.19, besides interest. Upon his report final judgment was entered in favor of the plaintiff, by which it was “ ordered, adjudged and decreed that said defendants, Helena Craig and Daniel H. Craig, and each of them, be and they are hereby ordered and directed to forthwith, as such trustees, pay over to the plaintiff the said sum of $6,588.19, so found due plaintiff by said report, together with the sum of $755.69 costs, and the sum of $300, allowance hereby granted plaintiff, in all the sum of $7,-643.88, and that plaintiff recover of the defendants, Helena Craig and Daniel Craig, the said sum of §7,643.88.” The defendants then appealed to the general term from the interlocutory and final judgments, and from the order substituting the plaintiff and continuing the action in her name, and the judgments and order were affirmed. They then appealed to this court, and here they allege but two errors.

(1) They say the judgment is wrong in form, in that it directs payment forthwith of the amount found due the plaintiff, and, also, adjudges that she shall recover that amount. This objection to the judgment is frivolous. It does not appear that such an objection was made in the court below. If the judgment be really objectionable in form, an appeal therefrom is not the proper remedy. Dor aught we know the defendants assented to the form of the judgment, or stood by at its entry, making no objection thereto. If the judgment entered in an action be not in pursuance of the decision, or be improper in form, the defendant, if he has an opportunity, should object thereto and then make a motion to correct it, and if his motion be denied and the defect or error be matter of substance he may appeal, in a proper case, even to this court for its correction. But there was no possible objection to the form of the judgment. It was unnecessary to insert therein a direction to pay forthwith, and that part is without any force or effect. The adjudication that the plaintiff recover the amount found due to her was sufficient, and the judgment could only be enforced by execution. Code of Civil Procedure, §§ 14, subd. 3, 16, 1240, 1241.

(2) The affidavit upon which the order of revival was based showed positively that Mrs. Groome died in the state of Massachusetts on the 26th day of March, 1890, leaving a will in which Eliza A. Simmons, the present plaintiff, was appointed executrix ; that the will was admitted to probate, and letters thereon issued to Mrs. Simmons, as executrix, by the probate court of Middlesex county, state of Massachusetts, a court of competent jurisdiction; that ancillary letters were thereafter issued to Mrs. Simmons by the surrogate of the city and county of New York, and that she duly qualified as such executrix. In opposition to the motion, an affidavit was made by the defendant, Daniel H. Craig, in which he denied that he had any information or knowledge sufficient to form a belief and alleged that he had no knowledge and information sufficient to form a belief as to the essential facts stated in the affidavit for the motion. This form of denial in an affidavit is an absolute nullity. It is authorized in the case of a pleading for the purpose of forming an issue of fact, but not in other cases. In the Matter of Sullivan, 55 Hun, 285; 28 St. Rep., 566. The want of knowledge or information was wholly immaterial. The moving affidavit stated when and where Mrs. Oroome died; when and where her will was admitted to probate, and letters testamentary and ancillary letters were granted.

It would, therefore, have been quite easy for the defendant making the affidavit to ascertain the facts, and his denial that he had any knowledge or information sufficient to form a belief did not controvert the facts positively alleged in the moving affidavit. It was for the court to determine upon the hearing whether the facts were sufficiently established, and its determination could not in any event be reviewed here. If the facts had been fairly controverted, the court had the power to order a reference that they might properly be ascertained. Here the cause of action survived, and it was the absolute duty of the court, under § 757 of the Code, to make an order continuing the action by the representatives of the original plaintiff. Code, § 757; Coit v. Campbell, 82 N.Y., 509.

This appeal is without the least justification, and the judgment should be affirmed, with costs and five per cent dama'ges on the amount of the recovery for the delay.

All concur.


author: Gtldersleeve, J.

text:
    William H. Scott, Ex’r, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App'lts.

      (New York Superior Court,

      General Term,

      Filed, January 3, 1893.)

    1. Appeal—Objections not taken below.
    It is too late to raise the question of materiality for the first time on appeal when, if the objection had been interposed on the trial, the plaintiff might, if necessary, have withdrawn the question and consented that the answer be stricken out.
    2. Railkoad—Elevated—Evidence.
    In an action against an elevated railroad for an injunction and damages, evidence of a former tenant of the premises as to his motives in removing therefrom is competent.
    Appeal from judgment of trial term, entered on verdict of a jury, and from order denying motion for new trial

      Arnold & Creen {L. H. Arnold, Jr., of counsel), for resp’ts;

      Davies, Short & Townsend (Herbert Barry, of counsel), for app’lts.
   Gtldersleeve, J.

This is an appeal from a judgment, entered on the verdict of a jury, in favor of plaintiff, for the sum of $5,722.87 damages and costs. This action was brought to recover damages for injury , done to premises No. 36 Murray street by the maintenance and operation of defendants’ elevated railroad.

The only exception taken by the appellants’ counsel to the admission or exclusion of evidence that calls for any discussion was to the ruling of the learned trial judge in allowing the former tenant to testify as to the motives which influenced him in moving away from the premises. The question objected to by appellants’ counsel is as follows:

“ Q. Now, please state to the jury what your reason was for removing from 36 Murray street to your present store in Park place? ” To which answer is made as follows: A. ^The reason was it was dark and smoky; and that was my reason.”

The learned counsel for the appellants claimed that the question was incompetent and argumentative, as the grounds for his objection. No other grounds of objection than those above stated were raised, and no motion was made to strike out the answer. The objection as to materiality, therefore, cannot now be raised. Sweet v. Tuttle, 14 N. Y., 471; Union Seminary v. McDonald, 34 id , 379. It is too late to raise the question of materiality for the first time on appeal, when, if the objection had been interposed on the trial, the plaintiff might, if necessary, have withdrawn the question, and consented that the answer be stricken out.

The witness had given similar testimony before, without objection. He had testified as follows: “ Q. After they commenced to build the elevated railroad, what effect did it have on your business there ? A. The effect was to make it dark, and the smoke and steam had an effect. We could not stay in there.” It cannot, therefore, be said that the appellants were prejudiced by the question and answer under consideration.

We are of opinion that the grounds of objection to the question urged by appellants’ counsel cannot be sustained. The question, moreover, was a proper one, since the act of moving and the reasons therefor of the character given were material to the issues. Hnless it was error for the tenant to state that the impairment of light and presence of smoke, due to the maintenance and operation of defendants’ elevated railroad, was the cause of his moving away, the objection was properly overruled. It is difficult to see what more material evidence could be produced in support of plaintiff’s claim for damages to rental value, than the fact that a tenant moved away from the premises and the foregoing reasons, from his own lips, why he could not stay. Had the removal been due to some other reason than the presence of the defendants’ railroad, the fact of removal would have been immaterial. Where the motive of a witness, in performing a particular act, or making a particular declaration, becomes a material issue in a case, or reflects important light upon such issue, he may himself be sworn in regard to it. McKown v. Hunter, 30 N. Y., 628. It is a general rule in criminal cases that where the intent is an essential element to constitute a crime for which a prisoner is on trial, he has the right to testify as to his intent in doing any act which is claimed to prove criminal intent, Kerrains v. The People, 60 N. Y., 220, and the same rule applies to civil actions where the motive or intent becomes material.

The questions of fact arising in the case were properly submitted to the jury, who found in favor of the plaintiff; a fair preponderance of evidence sustains the verdict, and the amount awarded is not excessive.

It follows, therefore, that the judgment and order appealed from must be affirmed, with costs.

Mo Ad am, J., concurs.


author: Freedman, J.

text:
    Emma Hayes et al., App’lts, v. Leonard R. Kerr et al., Resp’ts.

      (New York Superior Court,

      General Term,

      Filed January 3, 1893.)

    Fraudulent conveyance—Partition—-Practice.
    An action to declare certain deeds fraudulent; to recover possession of the premises; to subject them to plaintiffs’ interests and for partition, is one for equitable relief, and such relief cannot be granted at a jury term. If there are some issues which may, of right or in the discretion of the court, be tried by jury, they should be settled and stated for trial.

      Appeal from order denying plaintiffs’ motion to strike the cause from the equity calendar.

      Geo. Carlton Comstock, for app’lts;

      Samuel G. Adams, for resp’ts.
   Freedman, J.

This is an appeal from an order made at the equity term, denying plaintiffs’ motion to strike the cause from the calendar of the equity term, and remand it to the jury calendar. The complaint demands judgment that certain deeds be declared fraudulent and void as against the plaintiffs ; that one of the defendants be adjudged liable to surrender possession ; that all others claiming under him be forever barred from all claim ; that the premises be adjudged to be subject to the interests of the plaintiffs; that the premises be partitioned according to the respective rights of the parties, etc., etc. The action is, therefore, for equitable relief, and such relief cannot be granted at a jury term. Watson v. The Manhattan Railway Co., 53 N. Y. Superior Ct., 137. If there are some issues involved in the action as to which the plaintiffs may claim a trial by jury either as matter of right or in the discretion of the court, the plaintiffs must take the appropriate steps to have them settled and stated for trial accordingly. See Mackellar v. Rogers, 52 N. Y. Superior Ct., 468; affirmed 109 N. Y., 468; 16 St. Rep., 406.

The order must be affirmed, with ten dollars costs and disbursements.

Gtldersleeve, «L, concurs.


text:
    Margaret Cotton, App’lt, v. Christina Burkelman, Resp’t.

      (New York Superior Court,

      General Term,

      Filed January 3, 1893.)

    Veedor and purchaser—Title—Will—Power of sale.
    Plaintiff’s husband died, leaving a will by which he gave to plaintiff, in lieu of dower, all his property, “to be enjoyed by her to her own use during her natural life,” and on her death gave all the estate to their adopted daughter. The will oho gave the plaintiff full power to sell any or all the real estate, as she deemed best, and to invest the proceeds as she might deem best for the benefit of said daughter. Held, that the power of sale was intended to be exercised for the benefit of both plaintiff and said daughter, and was coupled with an interest in plaintiff, and hence would survive the death of the daughter.
    Appeal by plaintiff from judgment dismissing the complaint with costs.

      Thos. McAdam (R. H. Bern, of counsel), for appl’t;

      Hamilton R. Sqider, for resp’t.
   Freedman, J.

This action is brought for the specific performance of a contract for the conveyance of certain real estate in the city of New York made between the plaintiff and the defendant. The defendant refused to take title to the said real estate and complete the said contract on the ground that the plaintiff had no ownership of the said land other than a life estate therein, and no power as executrix of the will of German Cotton, deceased, to convey the fee of the said premises. The issues were tried and the judgment rendered sustains the contention of the defendant.

The substantial facts, as admitted by both sides, are as follows :

German Cotton, who died on the 9th day of March, 1883, seized of the premises in question, left a will in and by which he gave to his wife, Margaret Cotton, the plaintiff in this action, in lieu of dower, all of his property, both real and personal, “ to be enjoyed by her to her own use during her natural life,” and upon her death he gave all of his estate to their adopted daughter, Mary E. Cotton, and to her heirs and assigns forever.

He appointed his wife, Margaret Cotton, sole executrix of his will, with full power to sell and dispose of all or any of his estate as in her judgment might seem best, and to invest the proceeds of the sales as she might deem best for the benefit of their said adopted daughter, Mary E. Cotton. After the death of the testator Mary E. Cotton married George Talbot,, by whom she had one child, and thereafter she died, leaving that child her surviving. The child is still living. The contract in question was made after the death of Mary E. Cotton. Upon these facts the specific objection made by the defendant at the trial was that the death of Mary E. Cotton deprived the executrix of the power of selling the property under the authority given in the will, for the reason that the beneficiary under that power having died, the power lapsed. The learned judge below, in his findings and decision, sustained the objection, but in this, I think, he erred.

The objection would be valid if Mary E. Cotton had been intended to be the sole beneficiary under the power given. In that event the case at bar would fall within the principle laid down in Hetzel v. Barber, 69 N. Y., 1, and other similar cases, in which it was held that when a power is given by will to sell land for a specific purpose, if the object is accomplished or ceases before a sale, the power to sell also ceases. This doctrine is firmly settled, but it does not apply here. The intention of the testator must be gathered from the whole will and the surrounding circumstances.

The property was given by the testator to his wife, in lieu of dower, for her own use and support during her life. She is not only to have the whole use and benefit of it as long as she lives, but she is not required to keep it in or as land. She is expressly authorized to sell it and convert it into money or other securities. The reason is quite apparent. The mere use of the land might not at all times furnish a support to her. Suppose the buildings should be destroyed by fire and the lots become vacant in consequence thereof, and in that condition yield no income. In such case the widow might not be able to build for the short or uncertain time that she can have the use of the land, and yet she would be required, as life tenant, to keep down the taxes. The power cannot be construed, therefore, as given for the benefit of Mary E. Cotton exclusively.

The authority is to sell first, and then to invest the proceeds in any way that, in plaintiff’s judgment, may best benefit Mary E. Cotton, and the power of sale having been intended to be exercised for the benefit of both the plaintiff and Mary E. Cotton it did not lapse by reason of the death of the latter.

Moreover, the power in this case is coupled with an interest. 'The plaintiff is the devisee of a life-estate in the land, and as .such she has an interest in the land under the will. She is to have, during her life, the use of the land and the income which may be derived from it, and, in case of a sale, she is. to have the proceeds of the sale, instead of the land, and the use and income thereof. Being thus coupled with an interest, the power for that reason survives the death of Mary E. Cotton.

In every respect, therefore, that can be properly taken, the fee taken by Edwin Talbot, as the child and heir-at-law of Mary E. Cotton, to the premises in question under the devise to her, is liable to be defeated by the exercise of the power conferred by the will upon the plaintiff.

For the foregoing considerations the conclusion is unavoidable that the merits of the present controversy have been determined upon an erroneous theory, and that this constituted error.

Ho point was made below or upon this appeal predicated upon the fact that the contract in this case was executed by the plaintiff, and the action upon it brought by her, in her individual capacity exclusively, and it seems to have been assumed by both parties, as well as the trial judge, that in this respect plaintiff’s right to the relief demanded is unassailable. That being so, the point has not been presented for review, and no opinion is expressed concerning it.

For the error stated, the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

GrlLDERSLEEVE, J., concurs.


text:
    Cornelius Hoffman, App’lt, v. Charles H. Wight, Impl’d, Resp’t.

      (New York Superior Court,

      General Term,

      Filed January 3, 1893.)

    1. Judgment—Foreign—Joint debtors.
    A judgment against two or more joint debtors on a citation served on but one, though authorized by the laws of the state where rendered, is not binding elsewhere upon any of the defendants who were not within the state, and who did not appear in the action. Personal judgments thus rendered have no operation out of the limits of the state where rendered.
    2. Pleading—Irrelevant allegations.
    In a common law action against two or more defendants on a joint obligation, the allegations in a pleading must affect their ultimate liability in some material respect. Those that do not will be stricken out on motion of the defendants to whom they do not apply.
    Appeal from order striking out certain allegations of the complaint.
    This action was commenced by the service of a summons and complaint on the defendant Wight, on or about the 31st day of March, 1892. This complaint alleged two judgments of record agáinst the defendants, as copartners, in the circuit court of Union county, Mew Jersey, upon service of the summons upon the defendant Hewell only.
    To this complaint the defendant Wight demurred, on the ground that it did not contain facts sufficient to constitute a cause of action as to him. The plaintiff, thereupon, served an amended complaint, alleging the original indebtedness of the defendants to the plaintiff, and the recovery of the judgments thereon. The judgment demanded was not the aggregate of the demands alleged, but the aggregate of the two judgments, which included the claims and the costs of the suit.
    To this complaint defendant Wight demurred, on the same ground as to original complaint, that is, that it did not state facts sufficient to constitute a cause of action as to him.
    This demurrer was tried before Mr. Justice McAdam. The defendant, Wight, on the trial, took the position that the action was not upon the original demands, but upon the judgments, and that those judgments, having been procured without service of process upon him, were void as to him, and that, therefore, the complaint did not constitute a cause of action against him.
    Mr. Justice McAdam directed judgment in favor of the plaintiff, saying that the judgments were null and void as to Wight, but that the causes of action were upon the original demands, and that the allegations as to the judgments were surplusage. Leave was given to withdraw the demurrer, and to answer and to make such motion as defendant might be advised. Defendant Wight, thereupon, withdrew his demurrer, and made a motion before the same justice to strike from the complaint, as surplusage, all the allegations therein contained in reference to the recovery of the said judgment, and to compel the plaintiff to properly separate and number the causes of action.
    This motion was granted, and it is from that part of the order thereon made that strikes out the allegations in reference to the judgments that this appeal is taken.
    The following is the opinion at special term:
    McAdam, J.—This court, in deciding the former appeal, said: “ The defendant Wight is correct in his contention that the judgment rendered by the court of a foreign state against Newell and Wight, as partners, adjudging that the same is collectible out of the joint property of both defendants and the individual effects of New-ell (the one served with process) cannot be made the basis of an action in the courts of this state against Wight, over whom the foreign court never obtained jurisdiction.” The doctrine stated is now reaffirmed. The plaintiff, while admitting the general proposition that one not served with process is not bound by the judgment entered against him, claims that the judgment of the New Jersey court, to the extent that it acquired jurisdiction of the parties and their property, is entitled to the same force and effect in other states, upon the broad ground that the courts of such states are commanded by the constitution and statutes of the United States to give such faith and credit to the judgment of the foreign court as the judgment has, by law or usage, in the courts of New Jersey. Constitution U. S., art. 4, § 1; United States R. S., § 905.
    So far as such a judgment is founded on personal service of process, or an appearance by the defendant, or is in rem, or quasi in rem, such faith and credit must be given as may make it effeetive: but when it is used to charge a defendant in personam in the courts of this state, in a case where such defendant was neither served with process, nor appeared in the foreign jurisdiction, such judgment cannot be recognized as the foundation for any such charge. Rigney v. Rigney, 127 N. Y., 408; 40 St. Rep., 210; Oakley v. Aspinwall, 4 N. Y., 514; Bartlett v. Spicer, 75 id., 528; Kerr v. Kerr, 41 id., 275; Shepard v. Wright, 35 Hun, 444; Shumway v. Stillman, 6 Wend., 447; Borden v. Fitch, 15 Johns., 121.
    This, upon the doctrine that every one must have his day in court, or an opportunity to know of the proceedings against him, and a sentence obtained in defiance of the maxim, audi alteram partem, deserves not the name of a judgment. R. R. Co. v. National Bank, 102 U. S., 21.
    To hear, “ implies that some one is before the court to speak, to determine, involves the possibility of forming an issue to determine.” Brown on Jur., § 41.
    .Therefore, a judgment against two or more joint debtors on a citation served on but one, though authorized by the laws of the state, is not binding elsewhere upon any of the defendants who were not within the state, and who did not appear in the action. Personal judgments thus rendered have no operation out of the limits of the state where rendered. Their effects are merely local. Freeman on Judgments, § 574 ; Black on Judgments, § 913.
    If the action on the judgment had been brought against New-ell alone, and it had been alleged that by reason of the non-service of process on Wight, the judgment as one in personam was enforceable only against Newell, the complaint as to him would have been good. This was the precise question decided in Hanley v. Donoghue, 116 U. S., 1; and to same effect, see Burt v. Delano, 4 Cliff., U. S., 611; Swift v. Stark, 2 Oregon, 97.
    The court, in these cases, held that this was giving to the judgment the effect which the United States constitution and statutes contemplated. But as to the defendant who was not served, the judgment has only a qualified validity, and is not enforceable, even in the state where rendered against his individual property. It is clear, therefore, that it will constitute no bar to an action against him in any other state on the original cause of action. Stone v. Wainright, 147 Mass., 201; Shirley v. Shattuck, 13 Met., 256.
    In Oakley v. Aspinwall, 4 N. Y., at page 521, Bronson, Ch. J., held that such a judgment was regarded as void in this state, and speaking of the old joint debtor act, applicable to domestic judgments, said that even such a judgment was, at. the most, only prima facie evidence against the defendant who was not served with process, and that where he pleaded nothing but nul tiel reóord, he might put the original cause of action in issue, or show it barred by the statute of limitations, and thus destroy the whole force and effect of the new judgment against him in the new action.
    And Mullett, J., in the same case (at p. 535) said “ such judgment is in effect no j udgment against the person who was not served with the process, and did not appear in the suit in which it was rendered.1’ Without commenting on the cases cited by the plaintiff (all of which have been carefully examined), or distinguishing them from the one at bar, it is sufficient to hold, upon principle, as well as authority, that the foreign judgment set out in the pleadings in no manner affects the liability of the defendant Wight to the plaintiff concerning the right of action pleaded. In a common law action against two or more defendants on a joint obligation, the allegations in a pleading must affect their ultimate liability in some material respect. Those that do not will be stricken out on motion of the defendants to whom they do not apply. As to them such allegations are wholly irrelevant, and they may with propriety invoke the rule that matter which is not material, nor the subject of proof, and cannot affect the decision of the court, must be stricken out. Code, § 545; Woods v. Morrell, 1 Johns Ch., 103; Lee Bank v. Kitching, 11 Abb., 435; Kurtz v. McGuire, 5 Duer. 660.
    Motion to strike out and to compel plaintiff to separate the cause of action for goods sold, and on the promissory note, granted, with ten dollars costs.

      Theo. T. Baylor {Alex. Thain, of counsel), for app’lt;

      Knee-land, Stewart & Epstein {Ira B. Stewart, of counsel), for resp’ts.
   Per Curiam.

The order appealed from is affirmed, with ten dollars costs and disbursements, on the opinion of the court below.

Freedman and Gildersleeve, JJ., concur.


author: Fbeedman, J.

text:
    George H. Stonebridge, Jr., Rec'r, Resp’t v. George F. Perkins et al., App’lts.

      (New York Superior Court,

      General Term,

      Filed January 3, 1893.)

    Corporations—Fraudulent transfer—Execution—Bar.
    Upon execution against a corporation, the sheriff sold all its right, title and interest in certain property previously transferred by it. Ño actual levy was made, the goods were not present at the sale, and the sheriff only undertook to sell the company’s interest as of a day subsequent to the transfer. Held, that under such circumstances there could be no valid absolute sale of the property itself, and that such sale was not.a bar to an action by the receiver of the corporation to set aside the transfer, as made for an antecedent indebtedness and in contemplation of insolvency.
    Appeal from interlocutory judgment setting aside a certain conveyance or transfer of personal property and ordering an accounting.
    The following is the opinion of the court below:
    McAdam, J.—The only appreciable defense arises on the sheriff’s sale founded on the $100.64 judgment recovered in the city court, August 6, 1888. The transfer to the defendants, absolute in form, was made prior to that time, and title was passed to them, so that by the subsequent sale by the sheriff of the “ right, title and interest" of the vendor, an intangible equity, the purchaser acquired no title that bars a suit in equity by a receiver representing the corporation vendor and all its creditors. The transfer to the defendants was good as against the sheriff’s sale; void as to plaintiff. The plaintiff is, therefore, entitled to a decree as prayed for. Findings passed upon and filed.

      Dill, Chandler & Seymour and Charles D. Ridgway (Frederick Seymour, of counsel), for app’lts;

      Straley, Hasbroudc & Schloeder (.Frederick R. Kellogg, of counsel), for resp’t.
   Fbeedman, J.

The only error assigned upon this appeal is that the learned judge below refused to hold that the sheriff’s sale of September 14, 1888, constitutes a bar to this action.

The action was commenced September 15, 1888, by the plaintiff, as the permanent receiver appointed by the judgment of this court in an action brought for the sequestration of the property of the Hew York Book Company, to set aside a transfer of personal property made June 1, 1888, by that corporation to Perkins, Goodwin & Co., for an antecedent indebtedness and in contemplation of the insolvency of the said corporation.

At the trial the evidence clearly established, and it is now conceded, that such transfer was void under the statutes of this state.

The sheriff’s sale, upon which the defendants rely, took place September 14, 1888, under an execution issued upon a judgment against the corporation in favor of William A. Baeder and Howard B. Kern. Inasmuch as the transfer to Perkins, Good‘ win & Co. was void, if the sheriff had levied upon the identical property and sold the same in hostility to. said transfer, the purchaser at the sale, under the ordinary rules of law applicable to execution sales of property fraudulently conveyed, might well have become vested with the whole title to the property. And such a result might well have followed whether' in such a case the sheriff in form sold the property itself or the right, title and interest of the corporation in the property.

The burden of proof rested upon the defendants, and they were bound to establish by competent evidence such a levy and sale as matter of fact. But the evidence which they did furnish did not warrant such a finding. In point of fact, the sheriff did not purport to act in hostility to the transfer to Perkins, Goodwin & Co., but only purposed to sell whatever remaining right, title and interest the Hew York Book Company had on and after August 2, 1888.

Moreover, no levy was made, and the property was not present at the sale and within the view of the purchasers. Ho valid absolute sale of the property itself could be made under these circumstances. Code Civ. Pro., § 1428 ; Roth v. Wells, 29 N. Y., 471; Hathaway v. Howell, 54 id., 97.

The defendants, therefore, had no right to a finding contrary to the real facts, and the concession made by the plaintiff that the sheriff put up for sale, and purposed to sell, all the right, title and interest of the Hew York Book Company, which it had on and after August 2, 1888, in and to the said property, is of no help to the defendants.

For the reasons stated, the learned trial judge properly refused to find an absolute sale of the property itself, and properly refused to hold that the sale, as had, constitutes a bar to the present action.

The judgment should be affirmed, with costs.

(rILDERSLEEVE, J., concurs.


text:
    Samuel Korminsky et al., Resp'ts, v. Jacob Korminsky, App'lt.

      (New York Superior Court,

      General Term,

      Filed January 3, 1893.)

    1. Specific performance—Agreement to devise real estate.
    Plaintiffs paid the consideration for certain land which was conveyed to their father under a verbal arrangement by which he was to devise said land to them. He made a will containing such devise, but the same has been lost or destroyed. All the heirs except defendant have conveyed to plaintiffs except the defendant. Held, that the plaintiffs having performed their part of the agreement, it could not be avoided because not in writing, and that it can be enforced against the heirs-at-law of the promisor.
    3. Same—Code Crv. Pro., § 829—Evidence.
    Testimony of plaintiffs’ sisters, who have conveyed their interests to them, as to conversations with their father, is not inadmissible under § 829 of the Code.
    Appeal by the defendant from a judgment, entered upon a decision on a trial before the court, without a jury, compelling specific performance of an agreement to devise real estate, and ordering a conveyance from defendant, one of the heirs of the estate of Abraham Korminsky, deceased, to the plaintiffs.
    Abraham Korminsky, the father of the parties to this action, died in March, 1891, leaving him surviving, as his heirs-at law, the parties to this action and Rachel Lubin, Anna Barron and Mary Harris. At the time of his death, he held the title to the premises in question, under a deed from one Eliza Basch, dated April 1, 1873. The purchase from Eliza Basch was made by the plaintiffs, and the whole consideration for the conveyance was paid by them. The conveyance was made to the said Abraham Korminsky, at the request of the plaintiffs, for the sole purpose of securing to him a home during the remainder of his life. At the time of such conveyance, the said Abraham Korminsky promised, in consideration of such purchase by the plaintiffs and the conveyance to him, that he would devise said premises to the plaintiffs in and by his last will and testament; and, relying upon such promise, the plaintiffs purchased the premises and caused them to be conveyed to the said Abraham Korminsky. who took possession thereof, and lived thereon until the time of his death. In pursuance of said agreement the said Abraham Korminsky did make a last will and testament whereby he devised to the plaintiffs said premises, but said will has been lost or destroyed. Prior to the time of the commencement of this action, the defendant was informed by plaintiffs of such agreement, and was requested to execute a conveyance to the plaintiffs, which request the defendant refused. The other heirs-at-law of said Abraham Korminsky, deceased, without consideration, have given conveyances to. the plaintiffs, for the purpose of carrying out said agreement. The defendant removed to the state of California about twenty years ago, and has not since returned to the state of New York, nor, since said removal, has he contributed anything towards the support of his father, the said Abraham Korminsky.

      Job E. Hedges (WilliamErdman, of counsel), for app’lt;

      Hess, Townsend & McClelland (IP. J. Townsend, of counsel), for resp’ts.
   Gtldersleeve, J.

The equity powers of the court are invoked by the plaintiffs in this action to compel the specific performance off the agreement entered into with their father at the time they caused the premises in question to be conveyed to him. If the agreement was established on the trial by competent evidence, and it is one which a court of equity should enforce by compelling specific performance, it follows that the judgment herein was correct and should be sustained.

The fifth finding of fact made by the learned trial court is as follows: “ That at the time of such conveyance the said Abraham Korminsky promised and agreed to and with said plaintiffs, that, in consideration of such purchase by them and the conveyance to him, he would make a last will and testament, wherein and whereby he would devise to said plaintiffs said premises, and that he would leave said premises to said plaintiffs in and by a last will and testament; and that the plaintiffs, relying upon such promise and representations, purchased said premises, and procured the same to be conveyed to the said Abraham Korminsky.”

There is abundant evidence to sustain this finding. No evidence was introduced on the subject by defendant, and the testimony of plaintiffs’ witnesses makes out the agreement beyond all doubt.

The agreement, however, is attacked by the learned counsel for defendant upon the ground that it was not in writing, and, therefore, was absolutely void under the statute of frauds. This position is not tenable, for the reason that it clearly appears from the evidence that there was a full and complete performance of the verbal agreement on the part of the plaintiffs. They paid $2,000 in cash at the time the conveyance was made. The property was taken subject to two mortgages, amounting^ to $11,000, interest on which mortgages the plaintiffs paid until such time as they paid the mortgages in full and had them discharged of record. All this was done before their father died. A paroi agreement in respect to land cannot be avoided in equity because not in writing, where there has been a part performance of it. Smith v. Smith, 51 Hun, 164; 20 St. Rep., 597. Part performance by the party seeking to enforce the contract is sufficient. Freeman v. Freeman, 43 N. Y., 39. The statute of frauds does not apply to this case.

The agreement, can be enforced against the heirs at law of the promisor. An agreement, on good consideration, and without fraud or undue influence, to devise land, is valid, and will be enforced by compelling a conveyance from the heirs of the promisor or purchasers with notice. Parsell v. Stryker, 41 N. Y., 480; Lobdell v. Lobdell, 36 id., 327; Kenyon v. Youlen, 53 Hun, 592; 25 St. Rep., 299.

There was an adequate consideration for the agreement in question, and there is no imputation of fraud or undue influence in its procurement. The transaction was a commendable one, and in every respect meritorious, and an agreement of a nature that courts of equity should view with favor.

“ The rule which courts of equity have adopted in suits for the specific performance of contracts requires that the contract be established by competent and satisfactory proof, to be clear, definite and certain, for the reason, as Judge Story expresses it, that a court of equity 1 ought not to act upon conjecturesand if the proof should end in leaving the contract uncertain, so that the court cannot say what its precise import and limitations are, a decree for a specific performance will be withheld.” Lobdell v. Lobdell, supra. The agreement under consideration seems to meet every requirement of the rule adopted by courts of equity. The decreeing of a specific performance of the contract imposes no hardship or injustice upon the defendant, while the denial of such a decree would operate as a fraud upon the plaintiffs. They executed every part of their agreement, in confidence that the other party would do the same. To permit such other party, or his heirs, now to withdraw from the performance of the contract would aid a manifest fraud against the plaintiffs. It appears from the evidence that there was never any desire or intention manifested by the father of the parties to this action, with whom the agreement was made, to avoid its performance or defeat its operation. It is found, as a matter of fact, upon competent and sufficient evidence, by the learned trial court “ that Abraham Korminsky, in pursuance of said agreement, made a last will and testament, wherein and whereby he devised said premises to plaintiffs, but that said will has been lost or destroyed, and plaintiffs have been unable, after diligent search, to find the same.” All the other heirs, except the defendant, not parties to the agreement, have conveyed to plaintiffs all the interest in said premises which may have descended to them as heirs at law of Abraham Korminsky, without consideration, and for the purpose of carrying out the agreement in question.

The equity powers of the court are ample to enforce the agreement in the manner sought. By virtue of the agreement, upon the death of Abraham Korminsky the plaintiffs became the equitable owners of the premises in question, vested with an equitable title thereto. Gerard on Titles, 477. They had not only á right to secure a legal title by conveyance, but, as they were equitable owners under an equitable title, it is within the equitable powers of the court to decree that the equitable title be a legal title. Gerard on Titles, 477, et seq; Knolls v. Barnhart. 9 Hun, 443 ; Thorp v. Stewart, 44 id., 232; 8 St. Rep., 289.

In Wait’s Actions and Defenses (vol. 5, p. 831), it is stated as-follows : “A suit for specific performance, like that of foreclosure, is of a two-fold character, partly in personam, and partly in rem. The court may enforce the contract either by operating upon the person to compel a conveyance, or may pass the title of the land by decree.”

In Bennett v. Abrams, 41 Barb., 619, the court says: “ The plaintiff herein is entitled to a specific performance of the agreement That, however, may be impracticable. If so, then he may have proximate relief in some other form, which will secure to him the substantial advantages of his contract.”

The court below committed ho error in permitting the plaintiffs, at the beginning of the trial, to amend their complaint so as to demand equitable relief. The motion was addressed to the discretion of the court, and the amendment was warranted by the allegations of the complaint.

The exceptions taken to the rulings admitting the testimony of Mary Harris and Anna Barron, sisters of the plaintiffs, as to conversations with their father relating to the agreement and the will, are based upon § 829 of the Code.x That section has no application here, for the reason that the witnesses are in no way interested in the event of the action, nor was the claim of plaintiffs derived by assignment or conveyance from them. Code, § 829 ; Lobdell v. Lobdell, supra; Kenyon v. Youlen, supra.

We find no other errors assigned by the learned counsel for defendant that call for discussion.'

The judgment of the court below must be affirmed, with costs.

Freedman and Mo Ad am, JJ., concur.


text:
    Augustus C. Pohl, Resp't, v. Charles E. Pontier et al. App'lts.

      (New York Superior Court,

      General Term,

      Filed January 3, 1893.)

    Statute of frauds—-'Must be pleaded if to be relied on.
    Where it does not appear on the face of the complaint that the agreement is one prohibited by the statute of frauds, such defense cannot be made available unless set up in the answer. If not so pleaded it is sufficient if the plaintiff’s testimony establishes a valid contract.
    Appeal from judgment, entered on verdict of a jury, and from order denying motion for new trial.

      Blumenstiel & Hirsch (A Blumenstiel, of counsel), for resp’t;

      Edward Grosse (Henry Wehle, of counsel), for .app’lts.
   Gtldersleeve, J.

This action is brought to recover damages for a breach of contract. The complaint alleges that on the 13th day of January, 1890, the plaintiff and defendants entered into an agreement, whereby the defendants employed plaintiff for one year from said date, at a weekly salary of twenty-five dollars, during said term, and the further sum of $300 at the expiration of the year; that he entered upon the discharge of his duties, and on the 5th day of May, 1890, was discharged by the defendants, without any just or reasonable cause. The answer denies every allegation in the complaint, and for a further and separate defense avers that, induced by representations made by plaintiff as to his qualifications, the defendants, on or about the 13tli day of January, 1890, entered into an agreement with the plaintiff, whereby they employed plaintiff from week to week, at a weekly salary of twenty-five dollars, and that on the 5th day of May, 1890, they discharged him for the reason that he was incompetent, negligent and unreliable.

The plaintiff’s testimony supported the complaint; while the defendants’ testimony sought to disprove the plaintiff’s position, and to establish their own version of the contract. The questions of fact were properly submitted to the jury by the learned trial judge, and the jury, by their verdict, found in favor of plaintiff’s contention. With this conclusion of the jury' the general term will not interfere.

The learned counsel for appellants urges one ground for reversal, which, he claims, arises from the refusal of the court below to charge, in behalf of defendants, the following request: “If the contract was made on the 7th or 8th of January, as testified to by Mr. Pontier, the plaintiff cannot recover, even if it had been a contract for a year; that such a contract would be void under the statute of frauds.”

The form of the request is somewhat misleading, as the defendant Charles E. Pontier did not testify that the contract was made on the 7th or 8th of January,, but that “ he (plaintiff) came again between the 7th and 13th of January, and we talked the matter over again, and it was settled he was to come on the 13th of January.” The defendant, further testifying, goes on to say, however, that no conversation took place on the 13th of January with regard to the contract; that he (plaintiff) merely came in and said that he was ready to work, and that he (the defendant Charles E. Pontier) said “ All right.” Neither the complaint nor the answer state whether the contract was oral or in writing, and the answer does not set up as a defense the statute of frauds.

We are oE opinion that no prejudicial error was committed by the learned trial judge in refusing to charge as requested by defendant's counsel.

The general rule is that the defense of the statute of frauds must be pleaded, except where the complaint on its face discloses a case within the statute. Porter v. Wormser, 94 N. Y., 431. It does not appear on the "face of the complaint that the agreement is one prohibited by the statute of frauds, and, therefore, such a defense cannot be made available, unless set up in the answer. Hamer v. Sidway, 124 N. Y., 538; 36 St. Rep., 888. No such defense is pleaded, and it is not raised by the averments of the complaint; and without one or the other of these conditions, the defense, if existing, cannot be made available. Wells v. Monihan, 129 N. Y., 161; 41 St. Rep., 409. In such a case it is sufficient that plaintiff’s testimony establishes a valid contract.

Eor the reasons above stated, the judgment and order appealed from must be affirmed, with costs.

Freedman and McAdam, JJ., concur.


author: Macomber, J.

text:
    William Selover, Resp't, v. Absalom Lockwood et al., App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Pleading—Demübber.
    In a foreclosure action, defendant demurred to the complaint on' the ground that it did not state facts sufficient to constitute a cause of action, in that it contained no allegation of an existing debt, or that any obligation to pay existed, and that it affirmatively showed that no debt existed, but that the mortgage was given by way of a testamentary gift or provision for the mortgagor’s wife. Plaintiff moved for judgment on the ground that the demurrer was frivolous, which was granted. Held, error; that there was sufficient question presented by the demurrer to require the justice to refuse to dispose of it in a summary manner.
    Appeal by the defendants, Absalom Lockwood, Mary Lockwood, his wife, Harriet Hoyt and Esther Bedient, from an interlocutory judgment entered "in Cayuga county, August 13, 1892, ■overruling their demurrer to the plaintiff’s complaint as frivolous, and directing j udgment to be entered for the plaintiff thereon for the relief demanded in the complaint, but with leave to the defendants to answer on terms.
    James R. Cox, for app’lts;

      James Lyon, for resp’t.
   Macomber, J.

The notice of motion given to the appellants was, that application for judgment in accordance with the prayer ■of the complaint would be made before a justice of the supreme court at chambers, upon the ground that the demurrer interposed by them was frivolous. Subsequently, an order was made, apparently a court order, directing judgment tó be entered for the plaintiff, upon the demurrer, for the relief demanded in the complaint, with ten dollars costs of the motion, upon the ground that the demurrer was frivolous. This was followed by the ■entry of an interlocutory judgment as upon a trial at special term of issues of law arising on a demurrer. Leave, however, was granted to the appellants to serve an.answer within twenty days from the date of the order upon paying to plaintiff’s attorney ten dollars costs of motion and ten dollars costs for leave to answer.

The learned counsel for the respondent has filed one brief in whibh he takes the position that this order, from which the appeal by the appellants was taken, is not appealable because it was not rendered at special term or trial term or a circuit of the supreme court, and he contends that there is no authority for entering such an order as was done in this instance.

The practice pursued was not the usual one in motions of this description; but we think the respondent is estopped to allege that it was irregular, for it was attributable to himself, in whose behalf the order from which the appeal was taken was entered. We must, therefore, consider the case upon the merits as they were developed upon the hearing at chambers.

The action was brought for the foreclosure of a mortgage upon, lands in the town of Sennett, N. Y. The mortgage was executed by one Horace W. Lockwood, now deceased, in the sum of $2,400 and interest, and payable to Margaret Selover, her heirs and assigns, and dated April 1) 1864. The plaintiff alleged the assignment of the mortgage by the mortgagee to one Gertrude Lockwood, on the 5th day of July, 1866, and the record of such assignment; also, the assignment by Gertrude Lockwood to the plaintiff, William Selover, on the 30th day of May, 1892, together with an allegation that the plaintiff is the owner thereof. The complaint further sets forth the death of the mortgagor on the 13th day of April, 1892, intestate; that he left surviving him a widow, the said Gertrude Lockwood, and certain heirs-at-law, the appellants in this case; the marriage of the defendant, Gertrude Lockwood, to the said Horace W. Lockwood, with the allegation that inasmuch as she, his wife, did not join in the execution of the mortgage, she is entitled to her light of dower to the premises, prior and superior to the mortgage; that Horace W. Lockwood, in his lifetime, failed to comply with the conditions of the mortgage, by making payment upon the principal sum of $2,400, which he had the option to pay upon giving thirty days notice, and that his heirs had wholly failed to comply with the conditions of the mortgage to pay such principal and interest from April, 1864, amounting in all to $6,437.20; also, that no proceedings at law have been had for a recovery of the debt.

The demurrer was interposed upon the ground that the complaint did not state facts sufficient to constitute a cause of action. It was based upon the proposition that the complaint contained no allegation of an existing debt, and that it did not appear that any obligation to pay existed, and also that not only was there an omission to aver the existence of a debt, but that it affirmatively appeared by the complaint that no debt existed, but that, on the contrary, the mortgage was given by way of a testamentary gift or provision for the mortgagor’s wife. Many cases are cited to support this contention.

It is argued in behalf of the respondent, that the seal to the mortgage sufficiently implies a consideration, and that the amount of security being ascertained by the terms of the instrument itself, the land covered by the mortgage may be charged with the payment of this sum.

The mortgage contained this provision as set forth in the complaint : “ This grant is intended as a security for the payment of two thousand four hundred dollars, to become due and payable at the option of the parties hereto (meaning the mortgagor and mortgagee), their or either of their assigns, by giving the other party thirty days notice; nevertheless, if such sum or principal is not paid during the lifetime of the party of the first part, and provided this instrument (meaning said mortgage) shall be assigned to and be held and owned by Gertrude Lockwood; also provided the said Gertrude Lockwood shall survive said party of the first part, then at the death of said party of the first part (meaning the mortgagor), said principal sum shall become due and payable to the party of the second part (meaning the mortgagee), her heirs or assigns, without notice as is above mentioned, together with interest from the date of this instrument (meaning the date of said mortgage), and that said mortgage-shall be void if such payment be made as therein specified.”

The complaint also averred, that said mortgage contained the-further provision, that if the said mortgagor should not pay the moneys thereby secured, according to the terms thereof, then the-said Margaret Selover, her executors, administrators or assigns, were empowered to sell the said mortgaged premises in due form of law, and out of all the moneys arising from such sale, tor pay the said sum of money and interest in and by said mortgage secured to be paid, with the costs and expenses of all proceedings-thereupon ; the surplus, if any there should be, to be returned to-said mortgagor, his heirs or assigns.

In behalf of the appellants, it is argued, that this instrument, appears to be an inchoate and incomplete attempt to make a post-mortem gift in the nature of a testamentary bequest, charged upon the lands, and which is not permitted to be done by the-statute of wills. Upon this proposition are cited: Morrell v. Dickey, 1 Johns. Ch., 153; Harris v. Clark, 3 N. Y., 93; Phelps v. Pond, 23 id., 76; Worth v. Case, 42 id., 367, and many other authorities and text writers.

The learned counsel for the respondent concedes that the instrument appears to be of the nature of a testamentary provision for his wife in lieu of a will.

Both counsel, therefore, appear as contending upon the one assumption, namely: that there was no debt in existence at the time-of the execution of the mortgage; but the one argues that the mortgage cannot be enforced upon that ground, and the other that-it may be enforced as being in the nature of a testamentary gift-to the mortgagee.

We purposely refrain from passing upon this question at the present time, for, in our judgment, the practice has been mistaken by the counsel for the plaintiff. The very statement of the question involved shows that it is one of much interest and moment, and a demurrer so presenting it is a pleading that should be examined, and the case made by it tried in the usual way of trying-demurrers.

Section 537 of the Code"of Civil Procedure permits an application to be made in a summary manner to a judge or court for a judgment upon a frivolous pleading, and authorizes a judgment to be given accordingly. This section does not contemplate the entertaining of a motion for a judgment upon this grourfd when the pleading interposed presents any question for trial; it is only where the faulty pleading is an obstruction that an application-may be made. The section further provides:

“ If the application is denied, an appeal cannot be taken from the determination, and the denial of the application does not-prejudice any of the subsequent proceedings of either party.”

This clause of the section shows that the case contemplated by this provision is only one where manifestly and clearly the pleading presents no question for the consideration of the court, but-appears to have been put in in bad faith, and upon a mere pretense.

Without, therefore, expressing an opinion upon the merits of' this question as they shall appear when the same shall have been brought on for trial in the usual way, we think that there was sufficient question presented by the demurrer to the complaint as to require the learned justice at chambers to refuse to dispose of it in the summary way contemplated by this section of the Code.

It follows that the order appealed from should be reversed.

Interlocutory judgment appealed from reversed, with costs.

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