author: Learned, P. J.. Bocees, J.

text:
    JOHN CHAPMAN, Respondent, v. BETSEY RODGERS and REBECCA C. SWARTWOUT, Impleaded, with others, Appellants.

      Will — action to determine validity of — all the witnesses must he called,.]

    The complaint alleged that one Rodgers died, leaving a will by which he devised certain real estate to his son, J. Rodgers, subject to an estate for life therein of his widow, and to the payment of certain legacies ; that J. Rodgers paid the legacies, bought the life estate, entered into possession of the land, and subsequently conveyed the same to the plaintiff, who is now in possession thereof; that, after the death of the widow, a sister of J. Rodgers, one of the defendants herein, claimed that the devise to him was void, for the reason that he was one of the two subscribing witnesses to the will, and that she was entitled to an undivided one-sixth of the land. The plaintiff asked that his title be declared valid, and that if this were not done, that a partition and sale of the premises might be had.

      Held, that the action was one in equity, to establish the validity of a will of real estate conclusively as against all the heirs, and that the rule in such cases was tliat all tlie witnesses thereto must be called and examined, except in the event of death, insanity or absence, or unless the heir waived his right, and that the court below erred in this case in holding that it was sufficient to call and examine one witness only. (Bookes, J., dissented.)
    Appear by defendants above named, from - a judgment in favor of the plaintiff, entered on tlie decision of the court at tbe Saratoga Special Term.
    Tlie complaint alleges tliat one Benjamin Rodgers died seized of certain land, having first made his will, of which a copy is sot forth. By that will all the property, real and personal, is given to Joseph Rodgers, subject to a life estate to testator’s widow, and Joseph is required to pay certain legacies. The complaint further alleges the payment of the legacies by Joseph and also the payment by him of a mortgage upon the land, and his purchase of the life estate; and further, that Joseph went into possession of the land, and subsequently conveyed the same to the plaintiff, who went into, and still is in possession. It avers that Betsey Rodgers claims that the will is invalid because Joseph Rodgers was a subscribing witness, and that she claims that she is entitled to one-sixth of the land. It avers that an actual partition cannot be made. It demands that the plaintiff’s title be declared valid as against all the defendants, and that if the title is not held valid that sale and partition be made. In that case it asks that the mortgage and debts paid by Joseph and the improvements on the property be declared to be a prior lien to the interests of the heirs.
    The will of Benjamin Rodgers was attested by two witnesses, Joseph Rodgers, above named, the devisee therein, and one Austin P. Graham. Against defendants’ objection the plaintiff was allowed to prove the will on the trial of this action, by the evidence of Austin P. Graham alone.
    i?. 0. Jones, for the appellant.

      J. S, Coon, for the' respondent.
   Learned, P. J..

I do not think that this action can be maintained under section 2 of chapter 238, Laws of 1853, because the plaintiff is not an heir, nor is he the grantee of a person claiming by descent, nor does he allege the invalidity of the will.

■ Nor does section 1 of that act apply, because that section limits the action by these words : In like manner as the validity of any

deed conveying or purporting to convey lands might be determined.” And, as a general rule, an action would not lie by a person in possession against one who merely claimed that a deed was invalid to establish its validity. And, as.,I think, this is not an action brought under 2 Revised Statutes (m. p. 312, § 1, and seg.), a proceeding to compel the determination of claims, etc. The allegations of the complaint do not correspond with the requirements of the statute, and .the relief demanded is not that which is there authorized. (Bailey v. Briggs, 56 N. Y., 414.)

As an action of partition, the defect is that the plaintiff is in possession and claims adversely to the defendant.

This action, however, seems to have been brought and. tried as an action to establish the validity of a will of real estate. All of the heirs were made defendants. Actions of that nature have been sustained in equity. (1 Story Eq., § 1441, cases cited arguendo; Bailey v. Briggs, ut supra; and see page 415.) The plaintiff seeks, as by a bill of peace, to have the will declared to be valid, The judgment of the court below was that the will was a valid and subsisting will of real estate.

The question, then, of the validity of the will does not arise incidentally, but is the sole issue and the matter to be established. In such cases as this the courts of equity used formerly to direct an issue demismit ml non. But whether tried before a jury or before the court, the rule was that all the witnesses to the will must be examined; except in cases of necessity, such as death, insanity or absence abroad, or unless the heir waived his right. (Bootle v. Blundell, 19 Ves., 494.) In that case Lord Eldon says that this is not a technical rule. The court before an heir shall be deprived of the opportunity, which the law gives him, by repeated ejectment to try again and again the validity of the will * * * expects that all the witnesses shall be examined on one side or the other.” The same rule is repeated several times in the ojainion.

In Tatham v. Wright (2 Russ & My., 1), Lord Brougham recognizes the same rule. In harmony with this rule of equity are the provisions of the statutes requiring the production of at least two witnesses upon probate before the surrogate, and of all if required. (Laws of 1837, chap. 460, §§ 10, 11, 12, 17.)

It has undoubtedly been held that, on the trial of other issues, where it becomes necessary to give a will in evidence, it is not necessary to call both witnesses. Such a trial does not establish conclusively the validity of the will against all the heirs. But where the object of the action, as in this case, is to establish a will, forever and conclusively against all the heirs, the rule requiring the production of all the witnesses must prevail unless waived by the heirs.

And this is reasonable. For if the statute requires the production of all the witnesses on probate before the surrogate, why should not all be produced in an action like this, which is conclusive even as respects real estate ? To hold otherwise would be to evade the provisions of 2 Revised Statutes (m. p. 65, § 45). It appeared as a fact on this trial, that the plaintiff had been a witness and had given evidence on the probate of this will before the surrogate.

If the defendant, being in possession, should be sued in ejectment by Betsey Rodgers, and on the trial of that action this will, proved by only one witness, should be offered in evidence, a differ-•mt question may arise. "W e therefore make no decision as to the validity of the devise to Joseph Rodgers. "We hold only that, in such an action as this, all the witnesses must be called except as above explained.

Judgment reversed and new trial granted, costs to abide event.

Bocees, J.

(dissenting):

I am under much embarrassment in my effort to determine precisely the class of cases authorized to be proseciited under section 1, of the act of 1853. (Sess. Laws of 1853, chap. 238, page 526.) It is there provided that the validity of a devise may be determined by action in like manner with grants of land by deed; and further, that thereupon, any party may be en joined from setting up or impeach, ing such devise, as justice may require. .Judge Folger, in Bailey v. Briggs (56 N. Y., 415), by his remarks on page 415, seems to regard this act as authorizing an action to settle questions arising on disputed wills, when their genuineness or proper execution is chai lenged by a party claiming an interest in tbe lands thereby devised. If this be the true construction of that act, which I do not intend here to assert, then this action is well founded in theory. But why is not the action well brought under the statute to compel the determination of claims to real property ? Such claims may now be prosecuted by action in this court. (Code, § 449; Burnham v. Onderdonk, 41 N. Y., 425 ; Fisher v. Hepburn, 48 id., 41; Brown v. Leigh, 49 id., 78; Austin v. Goodrich, 49 id., 266; Bailey v. Briggs, 56 id., 407; Churchill v. Onderdonk, 59 id., 134; Boylston v. Wheeler, 61 id., 521; Davis v. Read, 65 id., 566.) The complaint contains, as .is believed, all necessary averments to sustain the action under this statute. It is true that it contains much that is unnecessary — mere surplusage, under any view to be taken of the plaintiff’s rights. But the sufficiency of the complaint was not challenged on the trial, nor in the exceptions to the findings of the court. The complaint, the proof and the finding considered together manifestly are abundantly sufficient to sustain the judgment ordered, as in a case prosecuted under the statute to compel the determination of claims to real property. It should also be here noticed, that in case an objection to the complaint had been raised on the trial, an amendment might have been allowed. The same right exists as to amendments of pleadings in .this class of actions as in other actions authorized by the Code. So held in Brown v. Leigh (49 N. Y., 78). This is not a case on demurrer to the complaint, hence all rules as to the allowance of amendments at the trial have application here as in other cases. But a careful analysis of the complaint will establish its sufficiency, and especially is a ease made according to the provisions of the statute, on the complaint, the proof and the findings of the judge. The court had jmisdiction of the subject-matter of the action, and the appellants appeared and submitted to its authority. (See remarks of Earl, J., in Fisher v. Hepburn, 48 N. Y., 51, 52.) This case, too, seems to be a very proper one for the exercise of the power of the court under the statute here invoked. The plaintiff was in actual possession and had been in possession of the premises for many years. His title was challenged. He could not make improvements with certainty of protection in so doing, and the claim set up against his title would naturally impair or greatly prejudice his right of enjoyment and of sale. Was not this statute a very proper one in its application to his case ? Under it the claim made against his title could be settled. The claimant could be brought into court, and could be compelled to disclaim or to have his claim determined. (Davis v. Read, 65 N. Y., 566.) In this case the claimant set up and litigated the claim, and it has been determined. In my judgment it should stand, unless some rule of law has been violated on the trial, which requires a reversal of the judgment and a rehearing of the case.

The only question litigated on the trial was the validity of the will of Benjamin Rogers, under which the plaintiff claimed title. The devise therein to Joseph Rogers was claimed to be void because Joseph was one of the subscribing witnesses thereto, and, 'as was insisted, the will could not be proved without his testimony. This ground of defense was urged at the trial, and was the only defense there considered and passed upon. The learned judge, before whom the case was tried without a jury, held and decided, that the will might be proved and established as a will of real property in the Supreme Court by one witness according to- the common-law rule of evidence. In this, I think he is fully and indisputably sustained by numerous authorities both before and since the adoption of the Revised Statutes of this State. (Dan v. Brown, 4 Cow., 483; Jackson v. Le Grange, 19 John., 386; Jackson v. Vickory, 1 Wend., 406; Caw v. Robertson, 5 N. Y. [Per Gray, J.], 134; Harris v. Harris, 26 N. Y., 433.) In Jackson v. Le Grange (supra), it was held that a will might be established by one witness, if he was able to testify to all the requirements of the statute relating to its due execution. This rule is reiterated in all the subsequent cases above cited. In Cano v. Robertson (supra), Judge Gray, says, if the title to real estate devised should be contested only one of the subscribing witnesses, who can prove the execution of the will, need be examined.” In Harris v. Harris (supra), the same rule of evidence was recognized and followed, and the will was held established by the evidence of one witness only. If it be suggested that this rule has application only to actions at law, the answer is first, that- the distinction between actions at law and in equity are now abolished; and secondly, that this proceeding and action is given by the statute to be prosecuted in the Supreme Court as an action at law, and was never an action or proceeding in equity. The issue was made in tbe law court, and was there tried as an issue of law, and judgment was rendered by that court. (Tanner v. Tibbits, 18 Wend., 544.) But Harris v. Harris (supra), where this rule of evidence was applied, was an action of partition, formerly cognizable in an equity court. Nor is the rule only to, be applied in favor of a defendant whose title is assailed, as will be seen on reference to Jackson v. Le Grange (supra) where it was held that the plaintiff in ejectment, in order to make his title under a will need produce but one witness, so be it, that such witness could testify to all the facts required by the statute for its due execution. As was said by the learned judge in his opinion at Special Term, the statute has defined the methods and quantity of proof to establish a will in the Surrogate’s Court; but it has not undertaken to define what proof shall be recognized in the Supreme Court where a party seeks to establish and sustain a devise. In the latter case the due execution of the will may be proved the same as any other fact, and so the learned judge says, “ if one witness testifies to all the formalities required by 'the statute, and he is believed, the proof <s complete as to such formalities.” This I understand to be the settled rule according to all the authorities bearing on the question. Without further elaboration I commend the opinion of Judge Landon, given in this case at Special Term as a sound exposition of the law.

In my opinion the judgment appealed from should be affirmed with costs against the appellants.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment reversed, new trial granted, costs to abide event.


source: Caselaw Access Project

author:
.Learned, P. J.:
      Bockes, J.

license: Public Domain

text:
    ALBERT O. WHITTEMORE, Respondent, v. JAMES FARRINGTON, Appellant.

      Quit-claim, deed — incumbrance on title conveyed by — remedy af grantee.

    In tlie absence of fraud or misrepresentation the purchaser of land, who has neglected to have covenants of title inserted in his deed, has no relief at law or in equity where it is found, after his acceptance of the deed, that the property conveyed is incumbered.
    The ignorance of both parties to the deed, of the existence of the incumbrance, does not change the rule.
    In such case the existence of a mutual mistake without fraud will not justify a court of equity in compelling a defendant to give a warranty deed of the land, and to pay off all incumbrances existing at the time of the former conveyance. Where the fact is equally unknown to both parties, or where each has equal and adequate means of information, if the parties have acted with entire good faith, a court of equity will not interpose.
    Appeal from a judgment in favor of plaintiff, adjudging that the defendant James B. Farrington, upon the payment of the sum of $300 and interest, execute, acknowledge and deliver to the plaintiff a warranty deed of the lands in the complaint mentioned and described, with covenants against all incumbrances existing prior to the 10th day of December, 1873, and also adjudging the defendant to pay off the Wing mortgages, so called, or otherwise remove the same of record, and cause the same to só appear in the office of the clerk of Steuben county.
    The facts in this case were these : There was a verbal agreement between the parties for the exchange of lands. The plaintiff’s own version is this: The defendant and' one Jackson came and said to him, “We have come over to accept your proposition,” and I said, “ I will repeat it over, the proposition is this: I am to give you these two pieces of land and a note for $300 for the saw-mill property.” Subsequently, and about the middle of December, 1873, the plaintiff made out and delivered to the defendant two warranty deeds for his land, and said, “ Here are two warranty deeds, and I shall expect a warranty deed from you for the saw-mill property.” The defendant took the deeds and made no reply. Subsequently, about January 23, 1874, the defendant sent the plaintiff a deed of the saw-mill property. The defendant, the next day, returned it with a letter, saying, “I inclose the deed for correction as to boundary. Please fill up the blanks, also, where I have written in pencil. I see you have sent me only a quit-claim deed. You said you would give a warranty deed as I gave you one.” The defendant made the correction asked for, which was the insertion of the word “north,” and returned the deed to the plaintiff, and the plaintiff had it recorded.
    Prior to receiving the defendant’s deed, the plaintiff had taken possession of the saw-mill property, and had leased it to one Blanchard. Before the discovery of the mortgage, the plaintiff had spent $1,800 for improvements on the property, and since that about $500.
    About the middle of April, 1874, the defendant discovered that there was an old mortgage on the saw-mill property, made in 1863, and recorded in 1864. Neither party knew of the existence of this mortgage at the time of the contract, or at the time of delivering the deeds.
    At the béginning of the negotiation which led to the original verbal contract, the saw-mill property was about to be sold on foreclosure. The plaintiff himself had a mortgage on the property. The defendant urged the plaintiff to buy on the foreclosure sale, but he declined to do so, and thq plaintiff bought.
    After the verbal contract for the exchange had been made, the defendant proposed to have the sheriff’s deed on the sale made out to the plaintiff, and argued it was the best kind of deed, as they could never go behind it. The plaintiff did not agree to take such a d eed. There was no evidence whatever that any fraud was intended. The defendant knew nothing about the incumbrances, while the plaintiff was himself an incumbrancer.
    There is no evidence that, at the time when the defendant finally delivered his deed to the plaintiff, or before that time, he said or did, or had said or done, any thing to induce the plaintiff to suppose or believe that the deed conveyed a good title, or that there were no incumbrances. All that appears is, that the plaintiff says that the defendant and Jackson argued that a sheriff’s deed was the best kind of a deed, as they could never go behind it; but that was not the deed executed to the plaintiff.
    The court below held that the plaintiff in accepting the deed was required by law to examine for himself, and insist on such covenants as would fully protect him in regard to the title; that the plaintiff having accepted and received the quit-claim deed of the defendant, he must be deemed to have done so in full satisfaction' and performance of the parol agreement. But that the defendant having delivered and the plaintiff having accepted it under mutual mistake, as to the mortgage, the plaintiff having reason to believe from the acts of .the defendant that the deed conveyed a good title, and being guilty of no negligence in not examining the title, the plaintiff was entitled to relief from the legal effect of the acceptance and to have a specific performance of the parol agreement.

      J. MoGuvre, for the appellant.

      If. If. Mead, for the respondent.
   .Learned, P. J.:

With scarcely any variation the facts are the same as they were on the former trial. (14 S. C. N. Y., 392.) It was there held on appeal that in the absence of fraud or misrepresentation, neither of which existed in this case, the purchaser of land who has neglected to take covenants in his deed has no relief at law or in equity. (See the cases there cited.) Indeed, this view seems to be accepted in the court below, as it was held that it was the plaintiff’s duty to examine and insist upon such covenants as would protect him, and that the acceptance of the deed was in full satisfaction and performance of the parol agreement. (Burwell v. Jackson, 9 N. Y., 535.)

But the court held that there was a mutual mistake as to the existence of the mortgage, and therefore the plaintiff should bo relieved in equity from the legal effect of such acceptance. There wTas, however, no mistake as to the nature and character of the deed. The plaintiff saw wliat it was and called the defendant’s attention to it, and then of his own free will accepted it. That acceptance was a consent on his part to take the property without any warranty.

The court below, however, held that, because the plaintiff was ignorant of the existence of this mortgage, therefore the acceptance of the quit-claim deed was under a mistake and should be relieved against. This cannot be so. If it were, the grantee in a quit-claim deed might always look to the grantor foy damages, in case the 'premises should prove to be incumbered by a mortgage, of which the grantee had no actual knowledge. This rule would have the effect of turning quit-claim deeds into deeds with full covenants. It would be contrary to the contract of the parties; to settled rules of equity, and of law (2 Kent Com., 473), and to the statute (1 R. S., m. p. 738, § 160).

Nor does it help the matter that, the court adds, the plaintiff believing, and having good reason to believe from the acts of the defendant, that the deed conveyed a good title, and that there was no incumbrance thereon.

The defendant never stated, expressly or by implication, that there was no incumbrance. The plaintiff’s own account of the con versation negatives any such statement. Nor did the defendant evei say any thing as to the effect of the deed until some months after it had been delivered and accepted. The defendant did argue, as the plaintiff says, that a sheriff’s deed was the best kind of a deed; but such a deed the plaintiff did not agree to take and did not take. There is no evidence whatever, up to the time of the acceptance of the quit-claim deed, showing any representations by the defendant as to the nature or effect of a quit-claim deed, or as to the actual condition of the property in respect to incumbrance. The case is entirely wanting of all fraud or misrepresentation.

Further, the defendant never agreed to give a warranty deed, and the court ought not to make a new contract for him. Whatever contract there was, arose out of the conversation of the parties. Assuming even that this contract would have justified the plaintiff in refusing to accept an incumbered title, it gave him no right to a warranty deed.

We have already seen that there was no mutual mistake as to the contents of the quit-claim deed. But the court below held that the ignorance, as to the existence of the mortgage, entitled the plaintiff to relief. In the recent case of Grymes v. Sanders (93 U. S. Rep., 55) the court say, that mistake to be available in equity must not have arisen from negligence where the means of knowledge were easily accessible. The party complaining must have exercised at least the degree of diligence which may fairly be expected from a reasonable person. The parties, in dealing with the property, stood upon a footing of equality; they judged and acted respectively for themselves. The contract was deliberately entered into on both sides.” The court refused relief.

That language applies to the present case. The means of knowledge were equally within reach of both. Examination at the clerk’s office would have informed the plaintiff of the existence of the mortgage. Where the fact is equally unknown to both parties, or where each has equal and adequate means of information, if the parties have acted with entire good faith, a court of equity will not interpose.” The like rule will apply to all cases of sale of real estate or personal estate made in good faith, where material circumstances affecting the value are equally unknown to both parties.” (1 Story’s Eq., § 150.)

But, granting that the contract for the exchange of these two pieces of property was made under mutual mistake, as to the existence of this mortgage, and that this was such a mistake as would authorize the plaintiff to maintain an action to rescind that contract, the difficulty is that the plaintiff does not ask for that remedy. He desires, not to rescind the contract, but to have the court make a new contract. After he had discovered the alleged mistake he spent money on the property. (Cobb v. Hatfield, 46 N. Y., 533.) The defendant might well say: I am willing to rescind the contract altogether, since there was a mistake, but I never agreed to pay a sum of money towards making the exchange.

If we take the simple facts of the case, the defendant verbally agreed to sell a piece of land to the plaintiff for so much; the plaintiff paid the price; the defendant executed a quit-claim deed; the plaintiff sent back the deed saying that the defendant said he would give a warranty deed; the defendant returned the quit-claim deed and the plaintiff kept it and had it recorded. Three months after he discovered a prior and a recorded mortgage on the premises, of which neither party knew; after the discovery he kept the property and spent money on it.

I think he must bear the loss, and that the judgment should be reversed and a new trial granted, costs to abide the event.

Bockes, J.

(dissenting):

I gave expression to my views of this ease on the merits when it was before the court on the former appeal. (14 N. Y., Sup. Ct. Rep. [7 Hun], 392.) If correct in my reasonings and conclusions then, the judgment now appealed from should be affirmed; for the 'findings of fact and law now present most unmistakably (as perhaps they did not before so fully) what I then deemed the entire case to be between the parties. On re-examination of the case I am confirmed in my views then expressed. I am of the opinion that the judgment should be affirmed.

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment reversed and new trial granted, costs to abide event.


author: Boardman, J.:

text:
    GEORGE HARVEY, Respondent, v. ALEXANDER CHERRY and JOHN H. WHITE, Appellants.

      Insnra/nee policy — party to whom loss is payable may sue on.

    A having an equitable interest in certain buildings, procured an insurance policy thereon made in form to the holder of the legal title to the premises, but payable in case of loss to A as his interest might appear. Held, that A might bring an action in his own name thereon.
    Where one of several persons interested in property, held by a trustee for such person and others, at his own expense procures an insurance thereon to protect his individual interests, his associates in case of loss are not entitled to claim any share or interest therein.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The referee found, among other things, that prior to March 2, 1872, one Charles R. Brown was the owner of certain real estate in Saratoga Springs. Brown executed a mortgage thereon to trustees named therein, for the sum of $200,000 to secure bonds sold and to be sold not exceeding that sum. The plaintiff had furnished material and performed work, labor and services in the erection of a hotel on said premises to the amount of $15,000, and had duly filed a mechanic’s lien thereon. At the time of filing said lien not more than. $44,000 of said bonds bad been issued. March 2, 1872, the plaintiff procured a judgment, foreclosing said mechanic’s lien. About that date the plaintiff procured the hotel erected on said premises to be insured to the amount of $15,000 to secure his interest therein. Before making said mortgage for $200,000 one Henry A. Clarke held a mortgage on said premises, which was a prior lien thereto. Said Clarke foreclosed his said mortgage, making all subsequent incumbrancers parties.
    Before the sale upon said foreclosure plaintiff and sundry of the holders of bonds, the defendant, Alexander Cherry, being one, entered into a combination or agreement, by which Cherry was to bid off the premises on the foreclosure sale in trust for the benefit of said associates, and to manage said property for the benefit of said associates. It was agreed between said associates that the plaintiff’s interest in said purchase should be such part thereof, as $15,000 bore to the whole amount of interests represented in said combination. The amount of said interest, exclusive of said plaintiffs, was $83,220.51. Said agreement was carried into effect. Said Cherry became the purchaser of said premises on the foreclosure sale as trustee for the benefit of said associates, and afterwards executed a declaration of trust, under his hand and seal, and managed said property, and effected said insurance for common benefit. At the time of said purchase and at any time before the fire hereinafter mentioned the value of the interest of the plaintiff in said premises exceeded $15,000. The plaintiff and other associates contributed large sums of money in dealing off incumbrances and protecting said property. After the sale to Cherry as trustee the insurance which plaintiff had effected upon said premises having become void, he caused to be issued five other policies of insurance covering said premises, amounting in the aggregate to the sum of $15,000. Plaintiff procured said policies for his own protection and paid the premiums therefor, and took said policies into his own possession. They were made payable to the plaintiff as his interest might appear. They were issued in form to Cherry, but were intended for the plaintiff’s security only. Cherry had previously declined effecting additional insurance for the benefit of the associates. Said policies were dated about July 4, 1874. "While said policies were in force, and about October 1, 1874, said premises were destroyed by fire. The insurance companies were willing to pay on said policies the sum of $9,753.64, and the plaintiff was willing to accept that sum. Before the companies would pay or could be required to pay that sum it was necessary that defendant Cherry should receipt therefor, and join in the proof. The defendant Cherry claimed that the said money belonged to him as trustee, for the benefit of all the associates, and would not consent that the plaintiff receive the same, and in order that the same might be received from the insurance companies it was agreed between plaintiff and defendant Cherry that both parties should join in procuring the same from said companies, and that the same should be received by defendant White, who should hold the same until it should be determined who was entitled thereto. Said White assented to said agreement, and sai d sum of money was paid to said White accordingly. Said White is ready and willing, and always has been, to pay said money to any party entitled thereto, and submits his rights in the premises to the judgment of the court.
    The referee found, as conclusion of law, from the foregoing facts, that the said sum of $9,753.64 was and is the property of the plaintiff, and that the plaintiff is entitled to judgment; -that said White pay the same to the plaintiff, with any interest which may have been realized thereon, and directed that judgment be entered accordingly.

      John S. Putnam, for the appellants.

      Harrington Putnam, for the respondent.
   Boardman, J.:

We are entirely satisfied with the opinion of the referee in this case. His reasoning and conclusion is correct. It is conceded that plaintiff had an insurable interest (Rohrbach v. Germania Ins. Co. 62 N. Y., 47.) It is established that he insured such interest, for his own benefit, in the name of defendant Cherry, but payable, in case of loss, to plaintiff, as his interest might appear. That gave plaintiff a right ot action in his own name against the insurers, in case of loss, on such policy. He would be entitled to recover the amount of his loss, not exceeding the amount of his insurance in such action. (Pitney v. Glen's Falls Ins. Co., 65 N. Y., 6; Cone v. Niagara Ins. Co., 60 id., 619.) The insurers have recognized plaintiff’s rights, and paid over the amount of insurance moneys agreed upon. Such moneys, by whomsoever received, belong to plaintiff. They were paid under and by virtue of a policy running to him, procured and paid for by him. The defendant Cherry could not therefore, I think, be permitted to set up a defense of which the insurers only could take advantage. These views are not seriously controverted by appellants’ counsel; but he insists that any insurance effected and paid for by plaintiff, for his own benefit only, inured to the benefit of all others having a like insurable interest. The authorities cited for defendants do not sustain the position. They are cases of partners, lessees or tenants in common, where one of the persons having a common interest takes an undue advantage of his associates to secure a benefit for himself, to their injury. (Burhans v. Van Zandt, 7 N. Y., 523; Van Horne v. Fonda, 5 Johns. Ch., 407; Mitchell v. Reed, 61 N. Y., 126; Adams v. Outhouse, 45 id., 318; Getty v. Devlin, 54 id., 403 ; Struthers v. Pearce, 51 id., 357.) But the act of plaintiff in insuring his own interest was not hostile to the others having similar interests. It did not injure them. It is not evidence of any unfair advantage. They could have insured as the plaintiff did. Because they did not is not a reason why they should share in the fruits of plaintiff’s vigilance, care and expense. A mortgagee may insure his interest in the mortgaged property. One of two several mortgagees may so insure his own interest, and the other would not be entitled to share therein. ( Waring v. Loder, 53 N. Y., 581.) So in the case of joint owners. (Miller v. Eagle Ins. Co., 2 E. D. Smith, 299; Turner v. Burrows, 5 Wend, 541; S. C., 8 id., 144; S. C., 24 id., 276.) The defendant Cherry, as trustee, declined to insure the property for the benefit of all the cestmis gue trust beyond a certain amount. It is of no consequence what his reasons were. The amount of insurance then upon the property was not sufficient to protect the plaintiff’s interest. He therefore procures an insurance of his own interest in his own name, and pays the premium therefor. Neither upon principle nor authority do I find any reason for holding such transaction invalid in its form or manner of execution, or that the others interested in the same property with plaintiff could justly be allowed to share in the proceeds of his precaution and expenditure.

For the reasons stated, we think the judgment should be affirmed, with costs.

Leaisned, P. J., concurred; Bookes, J., took no part.

Judgment affirmed, with costs.


text:
    GEORGE W. SWARTWOUT v. WILLIAM DICKELMAN.

      Malicious prosecution — What determination of the prosecution essential, to justify am, action for.

    In an action for malicious prosecution, it appeared that, on defendant’s complaint, plaintiff had been committed to jail by a justice of the peace to await the action of the grand jury ; that, before the grand jury met, he was discharged from, jail under a writ of habeas corpus, whereupon the action was brought. Held,, that such discharge was not a determination of plaintiff’s innocence ; that the prosecution was not determined until the grand jury met and the case was presented and ignored, or the plaintiff failed to prosecute the proceedings.
    Exceptions ordered to be heard in the first instance at General Term, after a verdict for $100 in favor of the plaintiff at the Sullivan county Circuit.
    The action was brought for alleged malicious prosecution of the plaintiff before a justice of the peace, on the complaint of the defendant that the plaintiff had been guilty of the offense of grand larceny.
    The complaint was made before the justice on February 25,1876. A warrant was, thereupon, issued for the plaintiff’s arrest; he was arrested', examined before the justice, and, on' default of bail, committed to the jail of Sullivan county for the space of fifty days —■ he having been committed to await the action of the grand jury. Before any grand jury had been in session in Sullivan county, and on April 15,1816, plaintiff was discharged from imprisonment upon a writ of habeas corpus by the judge of Sullivan county. Thereafter, this action was commenced, on the trial of which plaintiff recovered a verdict of $100; the defendant moved for a nonsuit before tbe submission of tbe case to tbe jury, on tbe ground that it did not appear that the prosecution complained of bad terminated favorably to tbe plaintiff at tbe time of tbe commencement of tbis action, which motion was denied.

      Stewa/rt <& Read, for tbe plaintiff.

      T. F. Bush, for tbe defendant.
   Boardman, J.:

Upon tbe complaint of defendant tbe plaintiff was arrested for grand larceny, and, after tbe examination before tbe justice, was held and committed to jail for want of bail. Afterwards, and before any grand jury bad been in session in tbe county, the plaintiff was discharged from bis imprisonment, upon habeas corpus issued by tbe county judge. Tbe reason for tbe discharge from custody does not appear. Two days thereafter tbis action was commenced. Tbe crime charged was not cognizable by tbe justice. All be could do was to take bis examination and bold him for the action of tbe next grand jury. That was done. Tbe plaintiff was discharged from custody, but that was not a determination that be was innocent of tbe offense charged against him. The prosecution was not thereby determined in plaintiff’s favor, or determined at all, so far as appears by tbe case made. Until tbe grand jury met, and tbe ease was presented and ignored, or tbe complainant failed to prosecute, tbe proceeding initiated before tbe justice was not ended. (Bacon v. Townsend, 6 Barb., 426; Clark v. Cleveland, 6 Hill, 344 ; Thomason v. Demotte, 9 Abb., 242; 2 Green. on Evidence, § 452.)

We conclude, therefore, from the exceptions before us, that tbe learned judge erred in not granting the nonsuit moved for at tbe close of tbe case, upon tbe ground that tbe proceedings and prosecution bad not been terminated so as to allow this action to be brought.

The motion for a new trial is, therefore, granted, with costs to abide tbe event.

Learned, P. J., and Bookes, J., concurred.

New trial*granted, costs to abide event.


author: Learned, P. J.:

text:
    JAMES B. LATHAM and CORNELIUS FONDA, as Taxpayers, etc., Appellants, v. STEPHEN H. RICHARDS as President, etc., and others, Respondents.

      Cha/rter of Sa/ratoga Springs — chap. 220 of 1866 — Restrictions on expenditures of village— Construction of statutes— Chap. 161 of 1872.
    The charter oí the village of Saratoga Springs contained the following provision: “ Nor shall any expenditure be made or incurred until the money or tax for that specific object shall have been voted or levied.” Held, that the word “ expenditure ” should not be restricted to current expenses, but that it covered the case of a purchase, by the village, of a lot for cemetery purposes.
    The act chapter 760 of 1870 amending chapter 727 of 1869, was intended to give the right to villages to acquire title, in invitum, to land for burial grounds (the right to purchase such lands having been already given by previous statutes of 1847 and 1864), and it should not, therefore, be so construed as to remove the restrictions as to expenditures contained in the village charter passed by the legislature in 1866, the acts of 1847 and 1864 giving the right to purchase having been passed before and being clearly subject to such restrictions.
    Appeals from two orders, eacb denying an injunction in the above action.
    This is an action brought by the plaintiffs, as tax-payers of the village of Saratoga Springs, in behalf of themselves and all others similarly situated, under the act chapter 161, of 1872, to restrain the board of trustees of said village from carrying out and consummating an alleged purchase of the “Waring farm,” so called, for a new cemetery for said village, and to enjoin the said board of trustees from collecting any tax, or paying over any money belonging to said village, on or towards said purchase-price, on the ground that the said purchase was ultra vires, and hence not binding upon said village; and, therefore, that the payment therefor out of the money, property or funds belonging to said village would be a misappropriation and waste of the public funds and property of the corporation under the act of 1872, above mentioned.
    On the complaint, duly verified, and on the affidavit of A. Pond, Judge Landon granted an order requiring the village and the board of trustees to show cause, on the 16th day of June, 1877, why an order should not be made restraining them from making out any tax list and warrant to collect a tax to pay said alleged indebtedness pending the action; and, on tbe return of the order, Judge Landon denied the application for an injunction, on the ground that the board of trustees had power to make said purchase, and that the same was valid and binding on said village. The plaintiffs thereupon appealed from that order to the General Term. Afterwards, fearing that the terms of the above-mentioned order to show cause were not broad enough, and therefore might embarrass the plaintiffs on the appeal, the plaintiffs obtained another order, on additional papers, requiring the defendants to show cause why they should not be restrained from paying over any money on said purchase, and from removing the bodies from the Nelson street cemetery to the Waring farm, as it is alleged the board of trustees intended to do, and from doing any other act or thing towards ratifying or carrying out said alleged purchase, until the further order of the court in the premises, and containing also a prayer for general relief. On the return of the latter order to show cause, Judge Landon, following his former opinion, again denied the application for an injunction ; the plaintiffs appealed from the latter order also, to the General Term.

      A. Pond, for the appellants.
    ■ Lester, Qcurr cb Peters, for the respondents.
   Learned, P. J.:

This action is brought under chapter 161, Laws of 1872. The act was probably intended to change the doctrine of Roosevelt v. Draper (23 N. Y., 318). If the proceeding of the trustees which is complained of is not authorized by law, it would seem to imply a “ waste or injury to the property, funds or estate.”

The learned justice who denied the motion held that the position of the plaintiffs must be sound, unless the legislature intended to enlarge the powers of the trustees, notwithstanding the restrictions in section 61 of the village charter. (Chap. 220, Laws 1866.) That section provides: “Nor shall any expenditure be made or incurred until the money or tax for that specific object shall have been voted or levied as herein directed.” Section 17 requires the village treasurer to keep his accounts separately and divided into several heads. Among these is “ cemetery department,” which is to include all the collections, receipts, taxes and contributions for the support of that department. Section 54 specifies atid limits the amount of annual tax for several departments. Section 55 provides that, in case any more or greater amount is necessary for any corporation purposes, the same may be raised by a tax, provided that estimates by items and objects and purposes shall first be made by the board of trustees, and submitted to, and voted on by, the taxable inhabitants, etc. And the first section of the charter, among other powers, gives that of purchasing and holding real estate for public cemeteries.

It seems, therefore, that while the village had originally, by its charter, the right of purchasing land for cemeteries, it was restricted in the exercise of that right by sections 54, 55 and 61.

The defendants insist that the word “ expenditure,” in section 61, applies to current expenses. It does not seem to us that it should be thus limited. The section forbids making or incurring an expenditwre, and seems to us to be wide enough in its language to include a purchase like that in question. And, therefore, when the legislature gave the village, by its charter, the right of purchasing lands for this purpose, it then imposed the restrictions and limitations on that right which have been above set forth.

Did, then, the act of 1870 (chapter 760) take away these restrictions? That act is an amendment of chapter 727, Laws of 1869. This act of 1869 gave cities and villages the right to acquire title to grounds adjoining existing burial grounds, and gave the right to take such grounds in invitvm, and this latter provision appears to have been the main object of the act. The right of villages to pui’chase lands or additional lands for cemeteries already existed. (Laws of 1847, chap. 209; Laws of 1864, chap. 117.)

The law of 1870 extends the right of taking lands in imvitum to cases where lands are needed, although they do not adjoin existixxg cemeteries.

Now, as the law of 1847 was a general law in force at the tixne of the passage of the village charter, it must be held that the restrictive provisions of this charter controlled the provisions of that law. One of those, section 2, provided for the imposing of a tax to pay for the land. ¥e see that the main intent of the law of 1870, amending that of 1869, was to give the right to take lands by appraisement or in vrwitum where the village could not agree with the owner, and not to confer a right (which already existed) to purchase lands. We must, therefore, suppose that the legislature never intended, by that general law, to affect the special provisions of this village charter. The law of 1870 could not have been intended to confer any power of purchasing lands for cemeteries, because that power had existed since 1847. Under the law of 1847, as restricted by the village charter, the power which the defendants now claim has always been theirs.

We think, then, that this law of 1870 was not intended to remove any of the restrictions which are found in the charter. ( Village of Deposit v. Vail. 12 Sup. Co. N. Y., 310 ; Village of Gloversville v. Howell, 14 id., 345 ; In re D. and H. C. Co., 4 Week. Dig., 456.)

It may not be necessary to decide the question, but it is at least worthy of consideration whether sections 2 and 3 of chapter 209 of the Laws of 1847 are not in force, even since the passage of the law of 1870.

But, at any rate, we understand that it is not disputed that at the time when this expenditure was incurred the money or tax for that specific object had not been voted or levied. (§ 61 of the village charter.) And we think, therefore, that the order should be reversed and injunction granted, costs to abide event; the order to be settled by Learned, P. J".

Present — Learned, P. L, and Bqardman, J.; Bocees, J\, taking no part.

Order reversed and injunction granted, ten dollars costs and printing disbursements to abide event; order to be settled by Learned, P. J.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error, v. ARTHUR B. ELLIOTT, Plaintiff in Error.

      Police justices in Troy — jurisdiction of, over misdemeanors — construction of statutes.

    Chapter 18 of the Laws of 1876 gives the police justices of Troy, appointed thereunder, the same powers as Courts of Special Sessions in towns, and further provides that they, “ as such Court of Sessions, shall have jurisdiction of offenses of the grade of misdemeanors.” Held, in view of the other provisions of the act which appeared to contemplate that such police justices should exercise only the powers of Courts of Special Sessions and of previous legislation on this subject, that the word “as” should be read “ in like manner,” thus restricting the jurisdiction of the police justices over offenses of the grade of misdemeanors to that enjoyed by Courts of Special Sessions in towns.
    Certiorari to tbe judges of tbe Court of Sessions of tbe county of Rensselaer, wbicb Court of Sessions affirmed tbe conviction of tbe offense of libel, and sentence of defendant by tbe Police Court of tbe city of Troy, in the said county; wbicb conviction was removed to said Court of Sessions from said Police Court by certiorari.

      B. A. Parmenter, for tbe people.

      J. M. Lcmclon, for tbe plaintiff in error.
   Boardman, J.:

There is no reason for believing tbe legislature intended to give to the Police Court of tbe city of Troy, by chapter 18 of tbe Laws of 1876, greater jurisdiction than was possessed by Courts of Special Sessions in tbe several towns of tbe State. No reason is apparent why it should be done. Let us see whether it has been attempted or accomplished. Tbe second section gives to tbe Police Court, generally, tbe same jurisdiction possessed by justices of tbe peace in criminal cases in towns, or Courts of Special Sessions held by justices of tbe peace in towns in all criminal cases and matters, “ and, as such Court of Sessions, shall have jurisdiction of offenses of tbe grade of misdemeanors.” Tbe part of tbe section quoted creates tbe mischievous doubt. The third section defines tbe classes of offenses cognizable by tbe Police Court more distinctly by reference to those portions of the Revised Statutes in which the jurisdiction of Courts of Special Sessions is specifically given. (1 R. S., 638, § 1; 2 id., Til, § 1.) By the third section the power and authority of the Police Court of Troy is made the same as the Court of Special Sessions in the towns of the State. It does not give any additional power so far as the question presented by this writ is concerned.

The fourth section provides for the trial of persons charged with any crime or offense specified in the preceding (third) section of the act, but makes no reference to the second section or the offenses claimed to be cognizable thereby by virtue of the last clause above quoted. We cannot assume that a mistake exists in the fourth section, and that power was intended to be given to try persons charged with offenses specified in both the preceding sections. If there be no mistake it would follow that the Revised Statutes prescribes and limits the jurisdiction of the Police Court of the city of Troy.

But, in any event, the closing sentence of section 2 ought not to receive the construction claimed for it by the people’s counsel. It would be a strange departure from the legislative restrictions of the past. It would confer an extraordinary power upon this Police Court not justified by the circumstances surrounding it and not demanded by any public necessity. It is deemed more prudent, therefore, to construe the words “ as such Court of Special Sessions,” at the end of the second section of the act of 1876, “in like manner with such Court of Special Sessions,” or “to the same extent with,” etc. Such is the primary significance of the word “ as ” given by Webster, like, even, similar. Hence Webster says it may be explained “ in like manner.”

It follows that the Police Court of Troy has jurisdiction of offenses of the grade of misdemeanors to the same extent with Courts of Special Sessions in towns, and no further. The police justice had not, therefore, the right to try and punish the defendant upon conviction for the offense of libel.

The judgment, conviction and sentence are, therefore, reversed and set aside, and the defendant is discharged therefrom.

Learned, P. J., and Bocees, J., concurred.

Judgment reversed and defendant discharged.


text:
    LEWIS W. SCOFIELD, Appellant, v. ZIBA T. ADAMS, as Executor, etc., of MARY M. SCOFIELD, Deceased, and others, Respondents.

      Legacy for support of relative — though a general legacy, not subject to abatement.

    A. testatrix, in addition to certain legacies to others, gave to her husband the use of certain specific articles of furniture and also the use or avails of $5,000, with so much of the principal as should be necessary for his comfortable support. What remained on his decease was left to other parties. The estate of the testatrix was insufficient to pay the legacies given by the will, it having been supposed by her to be much larger than it was. Held, that the legacy to the husband was a general one; that it was not, however, subject to abatement, as it was given for the maintenance and support of a near relation of the testatrix, and hence not subject in that respect to the rule applicable to general legacies.
    Appeal from a decree of the surrogate of Saratoga county, made upon the final settlement of tbe accounts of an executor, and directing the distribution of the funds belonging to the estate. The testatrix, after providing that her husband should furnish his room after her decease with certain specific articles of furniture, further provided as follows:
    “ I also give my husband five thousand dollars ($5,000)' to be put at interest, the principal interest to be used for his comfort and benefit. When he is done with it, and after his funeral expenses are paid out of it, if there is any thing left, let the things be sold, and all of whatever is left of the money be put at interest for Mamie and G-ussie Adams, when they are of age to be given them.”
    The will also directed the payment of other legacies, the aggregate of which was far in excess of the estate of the testatrix. The surrogate decided that the legacies (including that to the husband) should be proportionately reduced.

      Pond, French & Brackett, for the appellant.

      Putnam <& Eustis, for the respondent, Mattie Blossom.
   Boardman, J.:

The will of Mrs. Schofield, brought before the court for construction on this appeal, is singularly informal and somewhat indistinct in its provisions relating to her husband, the appellant. Precisely what she intended in his behalf is left in some obscurity. Of course, her intention, when discovered, must prevail, if not inconsistent with the settled rules of law; and the intention must be determined from the language of the will itself, construed in the light of the surroundings at the time the instrument was made. There is hei’e nothing aUwide the will itself to aid in its construction, if, indeed, any extrinsic evidence could be of use in that regard. It seems, from the will, that the testatrix was a married woman who had conducted business on her own account, and had accumulated, as she supposed, property, subject to her disposal, exceeding in value $20,000. Without here noticing her gifts of various specific articles to several persons, principally as keepsakes, and probably of no very great value, and as to which no question arises on this appeal, it appears that the testatrix gave to her husband certain furniture with which to furnish his room, and $5,000, to be put at interest and to be used “ for his comfort and benefit,” with some possible addition thereto, which bequest will be presently more minutely considered. She also gave to Mervin Adams and to Mattie Blossom each $1,000, and to Prank S. Berry and to Mamie L. Adams each $500, and, by a residuary clause, she gave whatever should remain, after satisfying the previous provisions of the will, to her nephews and nieces who were “ the most needy P Whether this last clause of the will be or be not void for uncertainty is here of no importance, inasmuch as there was not any residue or remainder on which it could take effect. It is only important here to be mentioned for the purpose of showing that the testatrix supposed 'that there would be sufficient of her property to satisfy all the bequests in her -will, both general and specific, with a residuum. It turned out, however, on the settlement of the executor’s accounts before the surrogate, that there was, in fact, only $6,502.58 to meet and answer the bequests to her husband and the other four persons above named, which bequests to them amounted in the aggregate to $8,000. The surrogate held, on the accounting, that these bequests were general legacies alike, and therefore subject to abatement in equal ratio.

Tlie husband, the appellant, claimed, and here claims, that the bequest to him being declared to be “ for his comfort and benefit ” should be construed and deemed to be a specific legacy, or in the nature of a specific legacy, hence to be answered before the other money bequests, which are admittedly general legacies. The statute provides that general legacies shall abate in case the estate be insufficient to satisfy them in equal proportion. (2 K. S., 90, § 45 ; 3 id. [6th ed.], 98, § 56.) The first question, then, which arises is, whether the legacy to the husband in this case is to be deemed a general or a specific legacy. Let us, then, first see precisely how the bequest to the husband stands in the will. The testatrix, in the first place, provided for the furnishing of the husband’s room with specific articles of furniture belonging to her, and in her possession, intending, as is unquestioned, that he should use and enjoy this property during his life. She then adds as follows: “ I also give my husband $5,000, to be put at interest, the principal interest ” (so in the original) “ to he used for his comfort and benefit.” Now, if left here, the gift Vould be an absolute one to her husband of $5,000, as the fair and necessary import of the sentence, standing alone and unqualified, would be a gift of that sum to him. But immediately following this sentence she makes this declaration, “ when he is done with it ” (meaning the fund above alluded to, and apparently having in mind a separation of the fund from the interest), “ and after his funeral expenses are paid out of it, if there is any thing left, let the things be sold” (evidently referring to the room furniture first provided for 1ns use), “ and all of whatever is left of the money ” (that is, all that shall be left of the $5,000, and the avails of the sale of the room furniture) “ be put at interest for Mamie and Gussie Adams, when they are of age, to be given themP Now, to this point, construing the language employed according to its manifest import, there is no difficulty in determining what the testatrix intended. She did not intend an absolute, unqualified gift of $5,000 to her husband, for she directed it to be put at use for his comfort and benefit; and she anticipated that some of it might remain after his decease, subject to her disposition by gift to Mamie and Gussie Adams. And it is equally plain that she intended he should have the use or avails of it, with something more to be taken from it, if his necessities should require this. "While she did not intend to give this sum to him, absolutely, she evidently proposed to devote that amount to his use for his comfortable support and maintenance, and that whatever should remain of it, on his decease, should go to Mamie and Gussie Adams. This intent is, as I think, sufficiently expressed to give it effect as a testamentary disposition of the sum specified by the testatrix. Briefly and formally stated, she gave to her husband the use of certain specified articles of room furniture for life, also the use or avails of $5,000, with so much of the principal -as should be necessary for his comfortable support, and on his decease, what should remain, to go and belong to Mamie and Gussie Adams. This was a valid bequest. (Smith v. Van Ostrand, 2 Weekly Dig., 228; S. C., 64 N. Y., 278.) Nor is such purpose and intention of the testatrix at all changed or qualified by the additional sentence, that “ if the money above mentioned is not enough for his use, more is to be taken from the principal and added to it.” This is but a repetition in effect of what she had before stated. She, doubtless, here had in mind the interest or avails of the $5,000, which she calls “ the money above mentioned,” and which she feared might not be enough for his use. This sentence was probably inserted by way of explanation of what was thought to have been before vaguely stated. Then, as regards this legacy of $5,000, declared to be for the comfort and benefit ” of the legatee, or, in other words, for his comfortable support, is it to be deemed general or specific ? A legacy is general when it is so given as not to amount to a bequest of a particular thing or money of the testator, distinguished from all others of the same kind; and is specific when it is a bequest of a specified part of the personal estate which is so distinguished. (Tifft v. Porter, 8 N. Y., 516, on page 518; Wms. on Ex., 838.) In the sense of its being distinguished from other money of the testatrix, the legacy in this case is not specific. It is not a bequest of any particular specified money, distinguished from other money of the testatrix, or of any particular specified property from which the fund was to come or be made up. But it was a bequest of money as to the husband, to be employed for his support, and as regards any remainder there might be, it was general, of money to Mamie and Gussie Adams. In the sense of its being a money bequesi it was a general legacy. But there is another rule applicable to lega cies, here invoked by the appellant, to wit, that legacies for mainte nance and support of those standing in near relation to the testator, and more or less dependent upon his bounty and otherwise unprovided for do not abate with general legacies. This rule stands upon the ground that the testator must have intended to give a preference to such legacy over all others of a general character. So Lord Chancellor Hakdwick said, in Lewin v. Lewin (2 Vesey’s Ch., 415, 417), that it was natural in such case for a testator, in making a disposition of his estate, so to give it that the provision for wife and children should be in the first place, and not to abide by the contingency of his estate producing more or less at the time of his death and of sharing in proportion with others, strangers in -blood, though friends to him or collateral relations, to whom he had given legacies; ” and he added that “ it was natural he should not intend they should abide that event, though that is the general rule of law.” A like authority is found in Stewart v. Chambers (2 Sandf. Ch., 382), where the rule is laid down that legacies for support and maintenance of a wife and children otherwise unprovided for do not abate with general legacies. In the case cited, like the case in hand, the estate to be disposed of by the will was supposed much larger than it proved to be, and this fact was deemed of importance m determining the intent of the testator, as to whether the legacy for the support of the wúfe and children should or should not abate with the general legacies. The learned assistant vice-chancellor there said, in substance, that he was persuaded, from the language of the will, that if the testator had anticipated the existing state of facts he would have been explicit in giving preference to the legacy for support aud maintenance. These views apply with force to the present case. The testatrix held the comfort and happiness of her husband above all other considerations in making disposition of her property. She made it a special request “ that every thing be done for my husband’s comfort and happiness,” and then immediately added, that if the money appropriated for his use was not enough for that purpose, then that more be added to it. He was unprovided for save by this legacy, which was declared to be “ for his comfort and benefit.” Nor did she anticipate that her estate would be insufficient to satisfy all her bequests in full. The principle of law here under consideration was applied in a liberal and enlightened view in Petrie v. Petrie (7 Lans., 90), where it vras declared that a legacy for education like one for maintenance wag to be preferred to general legacies. This doctrine was also recog nized by the chancellor in Wood v. Vandenburgh (6 Paige, 277). The only case I find intimating a different rule is that reported in the New York Legal Observer (In the Matter of Williams [12 N. Y. Leg. Obs., 179]). This was a case decided by the surrogate of Kings county. The head-note is this: That the legacies for life to the widow and adopted child were general legacies, and were subject to abatement with the other general legacies in the will. On looking into this case, however, it will be found to present this important feature; that the legacies and investments were all charged alike upon the general fund. So it is stated in the case as reported. Consequently there was a clearly-expressed intention that all should stand alike in the application of the fund provided for this payment. If made to stand alike by the terms of the will, they should abate alike in case of an insufficiency of the estate fully to satisfy them. Nor does it appear in that case that the legacies to the widow and adopted child were for support and maintenance. Perhaps this might be inferred from the fact that they were annuities, but it does not appear that it was so expressly declared. It would seem, too, that these legacies had no especial claim to protection in equity on any ground whatever, as the learned surrogate held that they stood like any other gratuitous general bequest to a stranger. The learned surrogate doubtless did not intend to cast any doubt, as he could not, indeed, upon the correctness of the decisions in the cases cited, for they are well based on sound principle. The rule of law enunciated in them is reasonable, as it is natural and in accordance with common sentiments of affection, which cannot be entirely ignored in giving construction to wills. It commends itself to the conscience as just and right. It would be unnatural not to intend especial favor in the bestowal of bounties to those who were strong in the affections and dependent upon kind regard. So it will be presumed that legacies for the support a/nd maintenance of those standing in near relations to the testator, more or less dependent upon his bounty, were intended by him to have preference over others of a general character. It is then but fair and just to conclude in this case that the testatrix did not intend that the legacy to her husband, being for his comfortable support, should abate with the general legacies; that she did not contemplate its failure in the least, on account of any possible insufficiency in her estate fully to answer it. On the contrary, it must be presumed that she intended to honor it with a preference over the general bequests to others, and this conclusion seems well warranted by the tenor of the will itself. It should, therefore, be construed in accordance with such presumed intention.

An inquiry doubtless will be made as to the rights of Mamie and G-ussie Adams in view of this conclusion. In the first place, it is not certain that they will ever be entitled to any thing under the ■will. The entire $5,000 may be required by the legatee for life for iris support and maintenance. How long he may live and what expenditures his necessities may require are uncertain. What will remain of the money and property held for his use, on his decease and after payment therefrom of his funeral expenses, will belong to Mamie and Gussie Adams. The gift of such remainder, like the pecuniary bequests to Mervin Adams, Mattie Blossom, Frank S. Bay and Maurice L. Adams, will be general in character and subject to abatement in common with the other general legacies. Such remainder will be the measure of the gift on which to base the calculation for the abatement. But this will be a matter for attention after the decease of the legatee for life, so be it that any thing shall remain of the fund provided for such legatee’s use.

The decree of the surrogate must be reversed, with costs of the appeal to be paid from the estate; and the case must go back to the surrogate, to the end that the decree may be corrected so as to meet the views herein above stated.

Learned, P. J., and Bocees, J., concurred.

Ordered accordingly.


author: Learned, P. J.

text:
    JOHN JAMES COLE, Respondent, v. WILLIAM P. COLE, Jr., Executor, etc., of JOHN R. COLE, Deceased, Appellant.

      Examination of witness — conditionally, pending the trial of the action —proper.

    Appeal from a judgment in favor of the plaintiff and from an order denying a motion made on the judge’s minutes for a new trial, also from an order denying a motion for a new trial made on the ground of newly-discovered evidence, in an action tried at the Hlster Circuit. During the trial of the cause, plaintiff’s counsel stated that Lizzie Cole, a material witness, was ill and unable to be present at the trial, and offered in evidence her deposition, with the affidavits, etc., upon which the order to take the same was granted, taken during the pendancy of the trial, which deposition, against defendant’s objection, was received in evidence.
    In regard to the evidence taken conditionally of Lizzie Cole, the court at General Term said : “No objections were made on account of defects in the affidavit or any thing of the kind. The only obje^ tion was that testimony could not be thus taken pending a trial, tno illness of the witness having been of six weeks continuance prior to the trial.
    There is nothing in the statute which thus limits the power of the judge. (2 R. S. [m. p.], 391, § 1 et seq.) If the application is collusive, that maybe shown. (§ 4.) If the examination is not fair, that may be shown. (§ 8.) Generally, such examinations are had prior to the trial. But we do not think that the power may not be exercised while the trial is proceeding. Greater caution may be needed in granting the application at such a time.”

      L>. M. De Witt, for the appellant.

      A. Schoomnalcer, Jr., for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Bockes and Boardman, JJ.

Judgment and order reversed, new trial granted, costs to abide event.

Order denying new trial, on- the ground of newly-discovered evidence, affirmed.


author: Bocees, J.;

text:
    DUANE D. FOOTE, Appellant, v. HAMILTON BEECHER, Respondent.

      Illegal evidence— effect of its admission where it does not change the decision of the case— distinction between its effect in actions at law and in equity.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The court at General Term, after holding that the referee erred in admitting certain evidence, said:
    “ The question, then, is whether there is sufficient evidence, irrespective of that which should have been excluded, satisfactory and conclusive in character, to sustain the finding of the referee, that the mortgage debt was not paid. The rules of evidence have been rigorously adhered to hitherto in actions at law. So it has been repeatedly decided that where illegal evidence has been admitted, bearing at all on the result, the error is fatal. (Worrall v. Par-melee, 1 N. Y., 519; Bawd v. Qillett, 47 id., 186; Siarbwd v. Barrons, 43 id., 200; Handley v. Hatter, 16 N. Y. S. 0. Rep. [9 Hun], 134; Bragner v. Lord, 4 Weekly Dig., 77; Williams v. Fitch, 18 N. Y., 546.) In the last case cited, Judge Comstock said, that although there was evidence, after rejecting that which was objectionable; sufficient to sustain the conclusion of the referee, this would not cure the error of its admission, that the party was entitled to the referee’s judgment upon testimony which was competent. But a more lenient rule has been adopted in equity actions. In this class of actions it is uniformly held that if evidence be improperly admitted, bearing on a fact abundantly made out by other and competent proof, a new trial will not be granted for such error. (Bennett v. Austin, 12 N.-Y. S. C. [5 Hun], 538; Platt v. Platt, 2 N. Y. S. C. Rep. [T. & C.], 25,26 ; Church v. Kidd, 10 N. Y. S. C. [3 Hun], 251-267; Forrest v. Forrest, 25 N. Y., 501-510; Clapp v. Fullerton, 31 id., 190; Patterson v. Copelamd, 52 How., 160.) After carefully examining all the evidence in this case, I confess myself entirely satisfied with the conclusion of the referee that the mortgage debt was not paid, and I reach this conclusion without considering the evidence above declared to be inadmissible.”

      Johnson <& Prescott, for the appellant.

      M. J. Shoecrqft, for the respondent.
   Opinion by

Bocees, J.;

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.


author: Loardman, J.;

text:
    REUBEN COMINS, Respondent, v. SAMUEL A. HETFIELD, Survivor of ISAAC B. CULVER, Deceased, Appellant.

      Testimony of party to action — not stricken out because of death of his adrersa/ry pending the suit.

    Appeal by defendant from a judgment in favor of the plaintiff, entered on the report of a referee. The plaintiff was sworn before the referee, and testified to certain material facts. Before his examination was concluded the reference was adjourned, and thereafter Isaac B. Culver, defendant in the original action, died. Defendant’s counsel subsequently moved to strike out the evidence given by the plaintiff, on the ground that it related to a personal transaction with the deceased. This motion was denied. On appeal, the court at General Term said: ee The evidence of the plaintiff was properly taken by the referee and was wholly unobjectionable at the time it was taken. The subsequent death of defendant Culver would not justify the rejection of plaintiff’s evidence so taken before Culver’s death. It is not a case where the right of cross-examination of a witness has been lost by his misconduct, or by the fault of the party calling him. (Forrest v. Hissam, 7 Ilill, 463.) The exception to the refusal to strike out such testimony was not well taken.”

      Hughes <3 Horthwp, for the appellant.

      H. A. Pa/rmenter, for the respondent.
   Opinion by

Loardman, J.;

Learned, P. J., and Lockes, J., concurred.

Judgment affirmed, with costs.


author: Bockes, J.; Learned, P. J.

text:
    MARY QUAIN, Respondent, v. MOSES RUSSELL and MORTIMER RUSSELL, Appellants.

      “Oml damage aei ” — intoxication of husband — when wife ingwed by.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought to recover damages, under the “ civil damage act ” (chap. 646 of 1873), by the plaintiff, who is the wife of the person to whom the liquor was sold. The case has already been before the General Term (8 Hun, 319), where it was held that a good cause of action was stated in the complaint.
    Upon this appeal the General Term, after holding that the evidence given upon the trial was sufficient to sustain all the material allegations of the complaint, said:

      “ On the question whether the plaintiff was injured in person ox property or means of support, through the intoxication of her husband, caused by the selling to him of intoxicating liquors by the defendant, the evidence was abundantly sufficient to support the verdict in her favor. The proof was to the effect that the plaintiff owned a small piece of land; had six minor children under her care; that the family was supported in whole or in part by the cultivation of her land by her husband, and by his labor performed for others; that her husband squandei-ed her money during his debauch; fell down stairs and was injured so that he was unable to help himself or labor for about four weeks, during which time the plaintiff was in destitute circumstances and suffered for want of food and fuel. Certainly here was evidence tending to show, and in fact showing, that the plaintiff was injured by her husband’s intoxication in her person, property and means of support, and the jury was well warranted in this finding in the plaintiff’s favor in that regard. * * *
    The license to the defendant from the board of excise of the town giving him permission to sell intoxicating liquors, did not bar the plaintiff’s action. (Balter v. Pope, 9 N. Y. S. C. [2 Hun], 550.) The only effect of the license was to mitigate damages, and was admissible as evidence for that purpose. The verdict was for fifty dollars only. i This sum cannot be deemed excessive under the facts found in the case.”
    The judgment must be affirmed with costs.

      Albert Hobbs, for the appellants.

      B-urlte & KiTbwm, for the respondent.
   Opinion by

Bockes, J.;

Boardman, J., concurred.

Learned, P. J.

As the views taken by me, when the case was , here before, were overruled by a majority of the court, I concur in this opinion.

Judgment affirmed, with costs.


author: Barnard, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel MATTHEW J. CRAWFORD and JOHN J. DEMPSEY, Respondents, v. OLIVER DE CAMP, Appellant.

      Summm'y proceedings— omission of venue in affida/oit — affidavit of service — • sufficiency of.

    In summary proceedings to dispossess tenants, the landlord’s affidavit had no venue, nor did it appear where the justice of the peace who took it resided. Held, that the affidavit failed to show facts essential to the jurisdiction of the justice, and that there having been no appearance by the tenants such defects were not waived.
    The affidavit of service in such proceedings alleged that the constable “ served the within summons on the tenants therein named by leaving a true copy of the same with a person of mature age,” etc. Held, that the service should have been made on each; that, in fact, it was not made upon either, and that this was also a jurisdictional defect in the proceedings.
    Appeal from an. order reversing an adjudication in summai-y proceedings by a justice of tbe peace, dispossessing tbe relators of certain premises known as St. Mark’s hotel, New Brighton.
    Tbe respondent rented tbe premises in question to tbe relators. Tbe rent was not paid. Summary proceedings were taken to dispossess tbe relators’ there was no appearance bv them in such proceedings, and judgment was given for the recovery of the premises by the landlord.
    Upon review at Special Term, on cerbiora/ri, the judgment was reversed.

      Hatch & Vcm Allen, for the appellants.
    TF. T. B. MilViken, for the respondent.
   Barnard, P. J.:

There are two fatal errors in the proceedings to dispossess relators. The landlord’s affidavit has nó venue, and it does not appear therein where it was sworn to nor where the justice of the peace who appears to have taken it resides. (Cook v. Staats, 18 Barb., 407; Lane v. Morse 6 How., 394.) Jurisdiction depended on the affidavit, and if it lacked an essential requisite all subsequent proceedings were void unless the defect was waived. There being no appearance before the justice there could be no waiver. The summons was not properly served on the relators. The tenants were absent from the premises in question upon which they resided, and the service was made on both tenants by leaving one copy with a person of mature age and discretion. The service must be made upon each ; it has been made upon neither. This is also a jurisdictional defect. Without proof of the service of the summons upon the tenants the court could not proceed to dispossess them.

The proceedings were properly reversed, and the order should be affirmed, with costs.

Dvr-wan, J., concurred, Gilbert, J., not acting.

Order reversing judgment, of justice affirmed, with costs.


text:
    BENJAMIN MAY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Indictment — transfer of, from Oyer and Terminer to Sessions — when order directing it need not appear in retw’n to writ of error.

    Where an indictment was found and the prisoner pleaded not guilty in the Court of Oyer and Terminer, and he was thereafter tried and convicted in the Court of Sessions, and the return to the writ of error did not show the entry of any order transferring the indictment to the latter court nor any objection by the prisoner to the trial in such court on the ground that such order had not been entered, held, that the conviction should be affirmed.
    Writ of error to tlie Court of Sessions of the Peace of the county of Richmond, to review the conviction of the plaintiff in error of robbery.

      WilUam F. Howe, for the plaintiff in error.

      John Crook, for the defendants in error.
   Barnard, P. J.:

The plaintiff in error was convicted of the crime of robbery at a Court of Sessions, held in Richmond county. The indictment was found at the Oyer. The accused pleaded not guilty in the Oyer.

The return to the writ of error does not set forth the entry of an order transferring the indictment to the Court of Sessions for trial. No objection to the trial before the Sessions was taken for the reason that such order was not in fact entered. The Court of Sessions had jurisdiction to try the offense. We think the question arising upon the absence of the order from the return cannot now be raised. The presumption is in favor of the regularity of the proceedings. (Ferris v. The People, 48 Barb., 18.)

If the formal order was notv entered, the question was not pre sented to the court at the trial. (Thompson v. The People, 3 Parker’s Cr., 208.)

The omission to enter the order was not prejudicial to the prisoner. (2 R. S., 728, sec. 52.)

Whether any order is necessary is questioned. (H. B. Lambert v. The People, 7 Cow., 166; Meyer v. People, 8 Hun, 528.)

The conviction should be affirmed.

Gilbert and Dykman, JL, concurred.

Conviction affirmed.


text:
    ANN ELIZA HUNTER, Respondent, v. EDGAR HATFIELD, MARY JANE HATFIELD and others, Appellants.

      Lunatic — Court may appoint committee or guardian ad litem for, ex parte and without issuing a commission.

    The Supreme Court has power by an ex parte order made on the petition of a near relative, in an action pending therein, to appoint a committee or guardian for the purpose of such action of a person of unsound mind, where such unsoundness of mind is shown by affidavit, and although no commission de lunático inquirendo has issued, and upon proof that the lunacy does not exist, to vacate the order appointing him.
    Appeal from an order made at Special Term, setting aside and vacating an order appointing Odie Close guardian ad litem for Emily Hatfield, one of the defendants in the above-entitled action.

      Close & Bobertson, for the appellant.

      I. T. Williams, for the respondent.
   Barnard, P. J.:

It was within the power of the Supreme Court to appoint a guardian for an idiot or a lunatic defendant, upon application made to it for that purpose. If a lunatic be sued he must have a committee assigned to him to defend the suit. (Sackville v. Ayleworth, 1 Vern. Rep., 105.) “So if a person, who is in the condition of an idiot or lunatic, though not found such by inquisition, is made a defendant, the Court of Chancery, upon proper information of his incapacity, will direct a guardian to be appointed.” (3 Bacon Ab, [vol. 3], page 542; Mitford’s Eq. Pleadings, 95.)

The granting of a commission is in the discretion of the court, and is not jn all cases to be granted. (Ex parte Tomlinson, 1 Vesey & Beames, 58.) “ One through great age being deprived of his memory and become almost non compos 'mentis was admitted to answer by his guardian in regard to the demand in question, which was but small, but had the value been considerable the regular way had been to have taken out a commission of lunacy and have gotten a committee assigned.” Lord Chancellor Talbot (3 Peere Williams’ Rep., 111, note B.):

When the lunatic’s fortune is small, references to the master in the first instance have been ordered to ascertain what is proper to be allowed the lunatic for maintenance, to avoid the expense of a commission.” (Petersdorf Abridg. [vol. 12], page 394.) Our Court of Chancery was clothed by statute with the care and custody of all idiots and lunatics. (2 R. S., 52, § 1.)

Such power is now vested in the Supreme Oourt. The court, at Special Term, therefore properly appointed a committee or guardian for the purpose of the action upon the petition of a near relative of the lunatic. It was also proper for the court to vacate the order on being advised either that the fact of lunacy did not exist, or that the guardian appointed was not a proper person to be such guardian. This application may be made by any person in the interest of the alleged lunatic, as well by the plaintiff in the action as another.

Upon the hearing of the motion, two facts were apparent, rendering a removal of the guardian proper: He was not in a position to be appointed; he had, as attorney for one. of the defendants, an antagonistic position to the lunatic in the suit. In the second place, both parties used the affidavit of the lunatic on the motion. These affidavits disclose no necessity for the appointment of a guardian. They show vacillation but not legal incapacity. She is entirely competent to employ an attorney if she wishes to do so. The court properly vacated the order.

Order affirmed with costs and disbursements.

Gilbert, J., concurred, Dykman, J., not acting.

Order vacating order appointing guardian affirmed, with costs and disbursements.


author: Barnard, R. J.:

text:
    ERNST CHARLES SNYDER, Appellant, v. CHARLES COLLINS, Respondent.

      Costs to abide event — action for assault — effect of recovery therein, of less than fifty dollar's.

    In an action for assault and battery plaintiff was nonsuited; on appeal to tbe General Term a new trial was granted, “costs to abide tbe event;” on such new trial plaintiff recovered a verdict for ten dollars. Held,, that the costs included in the judgment entered thereon should not exceed the recovery, viz.: ten dollars.
    Appeal by plaintiff from an order, setting aside tbe taxation of costs herein, and directing tbe clerk of Queens county to tax no more costs than tbe amount of tbe verdict rendered in said action.

      G. A. S. Ycm JYostramd, for tbe appellant.

      Jas. H. Stcmbrough, for tbe respondent.
   Barnard, R. J.:

There is no merit in this appeal. Tbe plaintiff brought an action against tbe defendant for assault and battery and false imprisonment. At tbe first trial be was nonsuited. Hpon appeal to tbe General Term tbe nonsuit was set aside and a new trial granted, “ costs to abide event.” Upon the second trial tbe plaintiff obtained a verdict for ten dollars. Hpon this verdict be taxed tbe costs of tbe appeal to tbe General Term and entered judgment. Tbe Special Term ordered tbe retaxation of tbe costs and directs that there shall be no more costs than damages included in tbe judgment. Tbe order was right. Tbe event upon which tbe costs of tbe appeal depended was an event which should entitle tbe plaintiff to costs by law. That event never happened to him to an extent greater in all than ten dollars.

Order affirmed, with costs and disbursements.

Gilbert and Dykman, JJ\, concurred.

Ordered accordingly.


text:
    THE AMERICAN EXCHANGE BANK, Respondent, v. BENJAMIN BRANDRETH, Impleaded with GEORGE A. BRANDRETH, and others, Appellant.

      hischarge in bankruptcy — effect of, on equitable liens based on statute of uses and trusts.

    Judgment was recovered against defendant in 1861. He was discharged in bank ruptcy in 1868. The owner of the judgment, in 1877, commenced an action to establish an equitable lien, based on the statute of uses and trusts, on certain land, which lien was alleged to have been created by said judgment in his favor and to have accrued before the filing of the petition in bankruptcy. Defendant thereupon moved, under the statute of New York (relating to tho discharge of judgments against bankrupts), that the judgment be canceled and discharged of record. Held, that equitable liens on lands, existing at the time of the discharge in bankruptcy, no action having been commenced thereon or lis pendens filed, were not protected from the operation of tho discharge.
    Appeal from an order at Special Term, denying appellant’s application for an order directing tlie clerk to cancel and discharge of record the judgment in this action so far as it affected Benjamin Brandreth, a defendant therein, who had theretofore been discharged in bankruptcy. The assignee of the plaintiff, the owner of the judgment, was, at the time of this application, seeking to enforce an alleged equitable lien of said judgment upon certain lands, such lien having accrued prior to the filing of the petition in bankruptcy and being based upon the statute of uses and trusts.

      Philo Chase, for the appellant.

      James S. Stearns, for the respondent.
    If the purpose of see tion 1268, of the Remedial Code, or chapter 52 of 1815, is to deprive the judgment creditors of their vested rights, they are repugnant to the Constitution and are void. “No State shall * * * pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.” (U. S. Constitution, art. 1, § 10; 1 Edmonds’ Stat., p. 16.) “ No person shall * % * be deprived of life, liberty or property without due process of law.” (5th amendment to IT. S. Constitution; 1 Edmonds’ Statutes, p. 26.) There is a distinction, which has been carefully observed by the courts, between mere remedies, and proceedings which tend to impair the obligation of contracts, although in the form of a remedy. Just so soon as the change in the remedy impairs the obligations of a contract, it must y„eld to the higher law, which here steps in to protect the rights of the parties. {McCracken v. Ilayward, 2 How, [H. S.], 608 [in 1844] ; Bronson v. Ki/nzie, 1 How. [U. S. R.], 311 [in 1841] ; Curran v. State of Arkansas, 15 How. [H. S.], 304 [in 1853]; Martin v. Somerville Water-power Co., 27 How. P. R., page 161; Vrooman v. Jones, 5 id., page 369.) Under the bankrupt law it is acknowledged universally that all rights acquired by creditors before the filing of the petition are preserved. {In re Hambright, 2 Rank Reg., 157; Phillips v. Bowdoin, 14 id., 43; Peed v. BulUngton, 11 id., 409; Bangs v. Strong, 1 Denio, 619; under law of 1841 — McCullotigh v. Caldwell, 5 Ark., 237: McCanee v. Taylor, 10 Grattan [Va.], 580 ; Bush v. Cooper, 2( Miss., 599; under act of 1867 — Jones v. Lellyett, 39 Ga., 64.)
   Barnard, P. J.:

The American Exchange Bank recovered a judgment upon a promissory note against Benjamin Brandreth, and others, on the 12th February, 1861, for $15,771.72. On the 30th June, 1868, Brandreth was discharged from all debts and claims provable agains¡ his estate and which existed on the 29th February, 1868, excepting such as are excepted by the bankrupt act.

In January, 1877, Austin Corben, who was then the owner of the. judgment by assignment from the bank, commenced an action against Brandreth and another to enforce this judgment and collect the same from land conveyed by Brandreth before the discharge in bankruptcy was obtained. In the case of the Ocean Bank v. Olcott (46 N. Y., 12), the Court of Appeals have decided that a judgment creditor who had what is termed an equitable lien on lands at the date of the discharge of the debtor in bankruptcy, based on the statute of uses and trusts, but which rested on the judgment alone, had no such lien as was protected from the operation of the discharge. That to have a lien which would be protected, the judgment creditor must have commenced his action thereon and filed his notice of pendency of action before the discharge.

Neither the plaintiff or its assignee, Corben, therefore, had any debt in January, 1877, upon which to base an action. The judgment was satisfied as to Brandreth by the bankrupt discharge. Chapter 52, Laws of 1875, authorized the court in which a judgment was rendered against a defendant, who has been discharged under the United States bankrupt laws from the payment of that judgment, to order the same canceled of record. As we have seen (Ocean Bank v. Olcott, supra), that judgment is discharged by the discharge in bankruptcy. Section 1268 of the new Code of Civil Procedure makes it imperative upon the court to make the order, while the law of 1875 made it permissive. If the new Code was not in effect at the date of the making the order in question, the order ought to have been granted if the facts called for the exercise of the power. These laws were passed to meet a necessity, deeply felt by those who had been discharged under the bankrupt law. There was no way by which the judgment against them could be removed from the record. The value of the lands of the bankrupt, acquired after the discharge, seemed to be subject to liens which, in reality, were not liens, and thus the merchantability and value of the lands were injured. The order should be reversed and an order granted that the clerk discharge the judgment of record.

Gilbert, J., concurred; Dykman, J., not acting.

Order denying motion to discharge judgment of record reversed and motion granted.


text:
    SAMUEL A. MORROW, as Executor, etc., of SAMUEL MORROW, Deceased, Appellant, v. ROBERT H. MORROW and ALBERT T. MORROW, as Executor, etc., of SAMUEL MORROW, Deceased, Respondents.

      Statute of limitations — what acknowledgment sufficient to avoid.

    Tile insertion in an inventory, of a note theretofore made by the executor to his testator, such inventory being signed and verified by the executor, to the effect that it was a true inventory of all just claims of the. deceased against him (the executor) is a sufficient acknowledgment of the indebtedness by the executor to take .the case out of the statute of limitations.

      Appeal from a judgment in favor of tlie defendants, entered upon the report of a referee.
    The action was brought to recover the amount of four promissory notes made by the defendant Robert H. Morrow to Samuel Morrow in 1870. Albert T. Morrow, one of the executors, having refused to be a party plaintiff was made a party defendant herein.
    Robert H. Morrow set up, among other defenses, that of the statute of limitations.

      Wm. H. Veeder, for the appellant.

      Theodore Hinsdale, for the respondent.
   Barnard, P. J.:

It is now well settled that in order to take a case out of the statute of limitations there must be a new promise — a new contract. It need not be express. An absolute acknowledgment of the existence of a debt is sufficient from which to infer a promise to pay. The facts in this case are brief: In 1870, Robert H. Morrow borrowed of his father Samuel H. Morrow $4,820, for which he gave his father four notes payable on demand. On the 23d December, 1876, Samuel H. Morrow died, leaving a will. The plaintiff and the two defendants, being testator’s three sons, were appointed executors, and have duly qualified as such. On the 12th January, 1877, the three executors made an inventory of the effects of deceased, as required by law, with the aid of sworn appraisers. Among the assets these four notes were entered as follows:

“ Pour notes of Robert H. Morrow to deceased, on demand:
“ One dated April 1st, 1870, for...................... $2, 350
“ July 1st, 1870.................................... 520
“ February 1st, 1870................................ 1,800
“ June 1st, 1870.................................... 150
“ A part of the money received on said notes was invested, for “ deceased.
“ Balance due from Robert H. Morrow to deceased, about $2,400.”

All the executors made an affidavit to the inventory in the form required by law, to the effect that the inventory was a true inventory of goods, chattels and credits of deceased, “and of all just claims of tbe deceased against me.” Tbis affidavit was signed by defendant Robert H. Morrow and bis co-executors, and completed tbe inventory. I tbink tbis fact takes tbe case out of tbe statute. Tbe acknowledgment or promise is not made to a stranger, but to tbe estate of tbe deceased creditor. It is not compulsory ; it is unqualified and unconditional. It is sufficiently signed by tbe party to be charged thereby.” (Sands v. Gelston, 15 Johns., 511; Bryar v. Willcooks, 3 Cow., 159; Stuart v. Foster, 18 Abb., 305.)

Judgment reversed and new trial granted at Circuit, costs to abide event.

- Gilbert and Dykman, JJ., concurred.

Judgment reversed and new trial granted at Circuit, costs to abide event.