author: Daniels, J.: Beady, J.:

text:
    MARTHA D. SMITH, Respondent, v. GAMALIEL G. SMITH, Appellant, Impleaded, etc.

      Malicious filing of lis pendens — token not actionable.

    The complaint herein alleged that the defendants, in an action brought by them againt the plaintiff, wrongfully, maliciously and without reasonable or probable cause filed a notice of lis pendens and a complaint affecting a lot of land belonging to the plaintiff, stating therein that the land did not belong to the plaintiff but to her husband, and that the title thereto was fraudulent as against the defendants who claimed to be creditors of her husband; that the said statements were made maliciously and with intent to injure the said lot and the building thereon, and that they were intended to and did prevent her from selling the same, thereby producing a loss to her of over $50,000; that the notice of lis pendens was subsequently canceled of record on the application ®f the said defendants. It was not alleged that the action in which the notice of Us pendens was filed had been in any way terminated, nor was that action alleged to have been brought maliciously or withput probable cause.

      Held, that a demurrer interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action should be sustained.
    (Brady, J., dissenting.)
    Appeal from an interlocutory judgment, entered upon an order overruling a demurrer to the complaint.
    The appeal was decided in December, 1880, and tbe decision then made is reported in 20 Hun, .555. In May, 1880, a reargument was. ordered, and thereafter this decision was made.
    The complaint alleged that the plaintiff was the owner of a lot and building situated in the city of New York. “That the said defendants, on the 10th day of July, 1873, through one G. S. P.. Stillman, an attorney-at-law, and tbe attorney of the said defendants thereunto duly authorized by them, as this plaintiff is informed and believes, filed, or caused to be filed, in the office of the clerk of the city and county of New York, a notice of pendency of action upon, and referring to the complaint in a certain action then pending in the Court of Common Pleas, for the city and county of New York, wherein the said defendants were parties plaintiff, and this plaintiff and others were made parties defendant, wherein and whereby it was, among other things, alleged in said notice that said action had been commenced, and was pending to recover the interest of this defendant’s husband, Alpheus F. Smith, in the premises hereinbefore described, and which was the property of this plaintiff, and the complaint in which action, which was filed in the office of the clerk of said court, and was the same complaint referred to in said notice, alleged and declared the said premises to be the property of her said husband, Alpheus F. Smith, and that her title to the same was fraudulent as against-the said defendants, who claimed to be creditors of her said husband.

      “ That the said defendants, through their said attorney, well-knowing the premises, and maliciously and without reasonable or probable cause, continuing to cause it to be suspected that this plaintiff did not own said lot of land, and the building thereon, and that she was a fraudulent owner and holder thereof, and to prevent this plaintiff from effecting a sale thereof, if she so desired, Avrongfully caused said notice to be so filed as aforesaid, giving notice of the matters therein, and in the said complaint set forth to all the world. »

      “ That the statements and allegations contained in said notice, so filed as aforesaid, and in the complaint to which the same referred, charging this plaintiff with not being the owner of said lot of land, and the building thereon, and that her ownership of the same was fraudulent and void as against the creditors of her husband, was and are wholly false, and were made maliciously and with the intent to injure the said lot of land and building, as well as this plaintiff, and to prevent her from selling the same.
    “That thereafter, and on the 27th day of June, 1874, the said notice of pendency of action was, by order of the said Court of Common Pleas, canceled of record on the application of the said defendants, through their said attorney, as she is informed and believes, whereby the same was wholly- ended.

      “ That in or about the month of August, 1873, and after the filling, as aforesaid, of the said notice, and before the same was canceled, this plaintiff had a tona fide offer, and could have sold the said lot of land, and the building thereon, together with the furniture therein contained, for the sum of $130,000, to one A. B. Band, but that in consequence of said notice, and the filing thereof, and the matters so set forth in said complaint so referred to, the said A. B. Band refused to purchase the said lot and building, and this plaintiff was prevented from effecting a sale thereof.
    “ That by reason of the premises, and of the wrongful and malicious act of the said defendants in so filing said notice, this plaintiff lost'the sale of the said lot and building erected thereon, and in consequence thereof suffered damage in the sum of $50,000.
    “ Wherefore said plaintiff prays judgment against said defendants for the said sum of $50,000, besides the costs and disbursements of this action. ,

      James Thompson, for the appellant.

      Benjamin F. Carpenter, for the respondent.
   Daniels, J.:

It appears from the complaint that an action was prosecuted by the defendants, as creditors of the plaintiff’s husband, to reach certain property which stood in her name, as the property of her husband, on the ground that her title was fraudulent as to them, The plaintiffs in that action through their attorneys knowing, as it is alleged, the property to be that of the plaintiff in this suit, maliciously and without reasonable or probable cause filed a notice of the pendency of the action, stating therein that the property to be affected was not that of the plaintiff but that it belonged to her husband and that her title was fraudulent as to his creditors. These statements are affirmed to have been at the time maliciously false, and it is alleged that they resulted in preventing a sale of the property, and in that manner producing a loss to the plaintiff of the sum of $50,000.

It was not averred that the action had been in any form terminated, neither was it alleged to have been maliciously or without probable cause prosecuted against her. For this reason the suit cannot be maintained because of her improper or inexcusable prosecution by that action. Even if an action may be maintained for maliciously and without probable cause prosecuting the plaintiff where no arrest of the person has been made and no seizure of the property has taken place, as it was held might be done in the cases of Whipple v. Fuller (11 Conn., 581); Closson v. Staples (12 Vt., 217), and was also intimated might be the case, when it produced special injury not recompensed by the costs recovered, in Cotterell v. Jones (7 Eng. Law and Eq., 475, 480), the facts constituting such a right of action have not been disclosed by the complaint made in this suit. The action is not shown to have been malicious nor without probable cause, neither is it stated to have been ended; and all those facts should have been set forth to bring the present case within these authorities, and those requiring it to appear that the prosecution complained of has reached its termination. (Clark v. Cleveland, 6 Hill, 344; Fay v. O'Neill, 36 N. Y., 10; Thomas v. De Mott, 18 How., 529.)

The facts which are relied upon as the foundation of this action are those connected with the filing of the notice which was canceled before the commencement of this suit, and they plainly differ very materially from those appearing where a malicious arrest may have been made for an amount greatly exceeding the real demand, or under like circumstances the party’s property has been oppressively seized. In those cases an action for damages occasioned by the malicious act may be maintained (Brown v. MeIntyre, 13 Barb., 311; Churchill v. Siggers, 3 Ell. & Black, 929; Bebinger v. Sweet, 1 Abb. N. C., 263), and the same principle includes an action maliciously prosecuted by another in the name of an insolvent plaintiff. (Cotterell v. Jones, supra.) But in this case there was no arrest of the plaintiff’s person nor seizure of any of her property; all that was done was the filing of' a notice substantially stating that she had no title to the property described in it as against her husband’s creditors. This notice did not prevent her from continuing to occupy or enjoy the property, nor from selling it if a purchaser willing to buy it could have been found. It simply had the effect of informing purchasers of the rights asserted in the action, and subjecting any which might afterwards be acquired by others in the property, to the judgment recovered. (Wilsey v. Dennis, 44 Barb., 354; Code of Pro., § 132.)

Whatever injury may have been sustained by the plaintiff in consequence of the filing of this notice, was produced by the claim made in it. And the statements it contained on that subject were, entirely appropriate and pertinent to the description or expression of the claim asserted. Por that reason they were privileged, and as the law now stands, do not create any right of action although falsely and maliciously made. Upon this subject it has been held that, “ whatever may be said, or written by a party to a judicial proceeding, or by his attorney, solicitor or counsel therein, if pertinent and material to the matter in controversy, is privileged and consequently lays no foundation for a private action or public prosetion. * * * If what is said or written is pertinent and material to the controversy, the protection to parties and those who represent them (for all stand on the same ground), is absolute and unqualified, and no one shall be permitted to allege that it was done with malice.” (Gilbert v. People, 1 Denio, 41, 43; Gar v. Selden, 4 Comst., 91; Marsh v. Ellsworth, 50 N. Y., 309; S. C., 36 How., 532.) The notice whose statements are relied upon as sufficient to support the present action was in the usual. form sanctioned by the practice, for an action of the description of that in which it was used. What it contained was entirely pertinent and appropriate to the ease, and as that was its character, and the injury complained of was solely caused by such statements, they gave the plaintiff no> legal right to maintain the present action against the persons by whose authority and procurement it was filed. Perhaps the better rule would be to hold all persons maliciously assailing others or their property, in judicial proceedings, liable the same as though the wrong had no connection with legal investigations, as seems to have been sanctioned by the case of White v. Nicholls (3 How. [U. S.], 266.) But as the authorities in this State are plainly the other way, the court has no power now to do that. If the plaintiff can obtain redress for her asserted injury it must be after the action in which the notice was filed has been terminated, and only then by showing it to have been maliciously prosecuted, without reasonable or probable cause. The interlocutory judgment entered upon the demurrer must be reversed and an order entered sustaining the demurrer with leave to the plaintiff to amend in twenty days, but, as 'the facts are made to appear, it should be without costs.

Davis, P. <T., concurred.

Beady, J.:

I am unable to agree with my Brother Daniels. I do not think that he meets and overcomes the fact established by the effect of the demurrer, that the Us pendens was filed maliciously and for an evil purpose. The action of which it was an incident is not complained of because that did not affect the title of the plaintiff’s property and- interfere with its sale. It was the Us pendens that produced that result, and the employment of it was an abuse of the privilege of the suitor. The lis pendens was created for honest litigations, or those presumptively so, and not for malicious and dishonest purposes. There was no necessity to await the determination of the action in which the filing of the lis pendens is admitted to have been improperly, maliciously done. This means that it represented no cause of action, no claim and no demand to which it could relate. I must, therefore, adhere to the views heretofore expressed. (See Smith v. Smith, 20 Hun, 555.)

Judgment reversed, without costs. Order entered sustaining demurrer with leave to plaintiff to amend in twenty days.


source: Caselaw Access Project

author: Brady, J.

license: Public Domain

text:
    In the Matter of the Opening of Eleventh Avenue.
   Order affirmed, with ten dollars costs and disbursements to each of tbe respondents. Opinion by

Brady, J.


author: Brady, J.;

text:
    Daniel J. Noyes, as Executor, etc., of Mary R. Bailey, Respondent, v. Lewis H. Bailey, as Executor, etc., of Benjamin Bailey, Appellant, Impleaded, etc.
   Judgment affirmed. Opinion by

Brady, J.;

Daniels, J., taking no part.


text:
    Henry R. Wilkinson, Plaintiff, v. James Gill, Defendant.
   Order affirmed, without costs, and without prejudice to a further application, as suggested in the opinion. Opinion by

Brady, J.


author: Davis, P. J.

text:
    Robert S. Haward, Respondent, v. Frederick A. Conkling, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Davis, P. J.


text:
    Peter De Witt, Appellant, v. Elizabeth M. McDonald, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Thomas P. Salter and John R. Livermore, Appellants, v. John H. Kimball, Respondent.

   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Thomas Mauger, Respondent, v. John Harrison and another, Appellants.
   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    James C. Devlin, Respondent, v. John Shannon and Stewart D. Howe, Appellants. Same v. Same.
   Judgments reversed, new trial granted, costs to abide event. Opinion by

Davis, P. J.


text:
    Zachariah E. Simmons, Respondent, v. Cornelius J. Vanderbilt, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Same v. Same.
   Judgment affirmed, with costs, but with leave to defendant to answer over on payment of costs within twenty days. Opinion by

Davis, P. J.


text:
    Alfred D. Martine, by Guardian, Appellant, v. William H. Abro and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Samuel B. Utterbach, Appellant, v. Abraham P. Man and John E. Parsons, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    The Bowery National Bank of New York, Respondent, v. James Kehoe, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Mary A. Jordan and others, Respondents, v. Henry S. Wilson and others, Appellants.
   Judgment affirmed. Opinion by

Brady, J.


text:
    William H. Onderdonk, as Executor, etc., Respondent, v. Warren Ackerman, Appellant.
   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    The People’s Bank, Appellant, v. William Heerdt, Respondent.
   Judgment affirmed. Opinion by

Davis, P. J.


author: Ingalls, J.

text:
    Jesse Seligman, Appellant, v. George E. Fisher and others, Respondents.
   Order reversed, with ten dollars costs and disbursements and injunction restored. Opinion by

Ingalls, J.


author: Daniels, J.

text:
    Bank of New York National Banking Association, Respondent, v. Julius H. Hagen and others, Appellants.
   Judgment and order affirmed, with costs. Opinion by

Daniels, J.


text:
    Anna M. Dominick, Appellant, v. Augustus A. Leverich, Respondent.
   Issues of fact ordered to be framed and tried by a jury at a circuit (Part 2) to be held in this county in the month of May, 1882. Order to be settled by Brady, J. (See opinion Per Curiam.)


author: Per Curiam.

text:
    George Weyh, Plaintiff, v. Felix Boylan and others, Defendants.
   Order affirmed. Opinion

Per Curiam.


text:
    John M. White and Thomas A. Phelan, Respondents, v. Furman Pearsall, Appellant.

   .Order reversed. Order of arrest vacated, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    John R. Magruder, Respondent, v. The Terrible Mining Company, Appellant.
   Order affirmed with ten dollar’s costs and disbursements. Opinion

Per Curiam.


author: Haight, J.:

text:
    BANK OF MONROE, Appellant, v. THE STATE OF NEW YORK, Respondent.

      Board of State auditors — chap. 444 of 1876 — power of, to remew a claim allowed by the canal commissioners — may disallow it if fraudulent — agreement to proau/re the passage of an act by the legislature — when it is illegal.

    In 1869 one Hand entered into a contract with the State for the dredging and removing of deposits from Black Rock harbor, and thereafter received the price agreed to be paid therefor, viz., $39,585. In 1871 one Bennett, a partner of Hand’s, entered into an agreement with one Lord, a member of the legislature, by which it was agreed that Lord should procure the passage of an act by the legislature requiring the canal commissioners to examine into a claim made by Hand for extra compensation and, if the price paid was found insufficient, to allow such additional sum as would reasonably reimburse him, Lord to have two-thirds of any award which might be made under the act. The act was passed and the canal commissioners subsequently met and awarded the contractor the additional sum of $36,845, for which amount certificates were issued, $24,563.32 being given to one Kiley who represented Lord, $2,000 to one Davis the attorney who represented the State, $1,000 to the attorney who vepresented Lord and $9,281.60 to the contractor. Thereafter one of the certificates given to Kiley was assigned in blank and discounted by the appellant, and thereafter and in September, 1880, presented to the board of State auditors by which it was disallowed.

      Held, that the board of State auditors had power to inquire into the justice of the claim, and were not concluded by the certificate of the canal commissioners.

      That the agreement with Lord was fraudulent, corrupt and unlawful, and that the facts proved showed that the claim presented tc and allowed by the canal commissioners was fictitious and fraudulent.
    That the plaintiff stood in no better position than did its assignor.
    That the board properly disallowed the claim.
    Appeal from the decision of the State board of audit, disallowing the claim1 made by the appellant for the payment of a canal commissioner’s certificate for the sum of $16,000.
    John Hand in 1869 made a contract with the State for dredging and removing deposits from Black Bock harbor, under which he received the contract price, viz., $59,583. L. J. Bennett, a partner of Hand’s in this work, thereafter entered into an agreement with George D. Lord, a member of the legislature, by which it was agreed that Lord should procure the passage, by ’the legislature, of an act requiring the canal commissioners to inquire into a claim made by Hand for extra compensation and, if it was found that the price paid was insufficient, to allow such additional sum as would reasonably reimburse him, Lord to haye two-thirds of any award which might be made under the act. The act was passed and $36,845 was awarded the contractor. For this amount certificates were issued. Of these certificates, $24,563.32 were given to one John Kiley who represented Lord, $2,000 to Thaddeus O. Davis who appeared as counsel for the State in the proceedings before the canal commissioners, $1,000 to "William H. Bowman who appeared as counsel for Lord and $9,281.60 to Bennett and the contractor Hand. One of these certificates for $16,000 was received by the Bank of Monroe as collateral to the note of Kiley discounted by that bank. The certificate was presented to the State board of audits by which it was disallowed.

      Jamies Break Perkins, for the appellant.

      Leslie W. Bussell, attorney-general, for the State of New York, respondent.
   Haight, J.:

In July, 1869, one John Hand entered into a contract with the State for the dredging and removing of deposits from the Black Rock harbor. The contract price for such work amounted to the sum of $39,585, which was paid by the State. L J. Bennett and one Spaulding were the copartners of Mr. Hand and interested in the profits arising under such contract. Subsequently, and in the year 1871, the legislature passed an act for the relief of John Hand by which the board of canal commissioners was required to take testimony as to the sufficiency of the prices paid for dredging Black Rock harbor. If such prices were found insufficient the board was required to allow such additional sum as would reasonably reimburse him. (Chap. 585, Laws of 1871.)

The board of canal commissioners met pursuant to such act, and after hearing the parties and examining witnesses awarded the contractor the additional sum of $36,815. Such sum was divided into various amounts, and certificates were issued by the canal appraisers therefor. Among such certificates was the one in question for $16,000. This certificate was assigned by L. J. Bennett, leaving the assignee’s name blank, and was subsequently presented by John Kiley to the Bank of Monroe, and was discounted by such bank. The bank, on or about the 8th of September, 1880, presented its claim, based upon this certificate, to the board of State auditors, who, after taking the evidence submitted by the respective parties and hearing the parties, held and decided that the certificate was invalid and did not constitute a lawful claim in favor of the holder against the State. From such decision an appeal was taken to this court.

The first question presented for review ‘on the part of the appellant is, that the board of canal commissioners was a court appointed by the State itself, to pass upon the sums to be paid to the contractors, and that court having made its decision, the decision is binding upon the State, and cannot be opened, and the merits of such claim investigated by the board of State auditors.

The statute establishing the State board of audit provides, section 2: “ It shall be the duty of said board of audit, and it shall have power to hear all private claims and accounts against the State (except such as are now heard by the canal appraisers according to law), to administer oaths and take testimony in relation thereto, to determine on the justice and amount thereof, and to allow such sums as it shall consider should equitably be paid by the State to the claimants.” (Chap. 444 of the Laws 1876.) The power here given is to determine on the justice and the amount of the claim, and to allow such sums as it shall consider should equitably be paid by the State, etc. This power is doubtless equivalent to that of a board of arbitrators, and its decisions, when made upon' any question coming within its jurisdiction, are as conclusive as if made by any of the regularly constituted courts of the State. The statute gives it power to determine the justice and equity of the claim. It therefore has the power of a court of equity, as to the matters over which it is given jurisdiction. If the award made by the canal commissioners becomes a judgment against the State, and the State is bound thereby, then why should it become necessary to present this claim to the board of State audit ? The decision of one board would be no more binding upon the State than that of the other. The latter board, if the appellant’s claim is correct, would have no power to inquire into the merits of the claim as passed upon and determined by the other board. If, however, it be conceded, for the sake of the argument, that the award made by the canal commissioners is as binding as that of a judgment rendered in a court, even then a court of equity has power to grant relief as against the judgment procured by fraud; and in an action brought on such judgment, may allege and prove as a defense that it was obtained through fraud. (Dobson v. Pearce, 12 N. Y., 156; State of Michigan v. The Phoenix Bank, 33 id., 9, 23, 24, 25; Kinnier v. Kinnier, 45 id., 535.)

The case of the State of Michigan v. The Phoenix Bank (supra) was an action to recover back money paid upon an award made by a board of State auditors upon the ground that the claim was fictitious and procured by fraud and imposition on the part of the claimant. The court in that case stated the rule to be that as to the regularity of the award or decision, or of any legal errors in obtaining it, the court could not take cognizance nor exercise any appellate power or power to review, and in any collateral attempt at law to impeach the decision it must be regarded as binding and operative; but with relation to any fraudulent conduct of the parties in obtaining it the court could take cognizance. That was a question legitimately within the province of the equitable power of the court and constitutes one of the principal grounds of their jurisdiction. Again, the learned justice writing the opinion of the court, and to sustain this doctrine quotes from the case of the New York Exchange Company v. Dewolf,and states: “ Whether the means of fraud be oral or in writing, whether executed by the parties with all the solemnities of deeds under seal and by due form of acknowledgment, or even by judgment stamped by the judicial sanction of a court, if a party Lave been induced to enter into the one, or to execute the other by fraudulent devices and designs of the party who thus secures the advantage, the law when invoked declares the whole transaction a nullity.” In 45 New York (supra) the rule is stated: “Judgment may be impeached for fraud or want of jurisdiction.” And this rule applies as well to judgments of other States as to those rendered in our own. The State board of audit having been given the power to determine on the justice and equity of the claim, have the same right to determine as to whether the award of the canal commissioners was obtained by fraud as would a court of equity. The board of State audit has found as a fact that George I). Lord was a member of the legislature during the year 1871; that in the month of February, 1871, an agreement was made between Mr. Lord and L. J. Bennett by which it was agreed that Lord should procure the passage of the act of the legislature referred to, requiring the canal commissioners to examine into the claim for extra compensation, etc.; that by the terms of such agreement Mr. Lord was to have two-thirds of any award which might be made under the authority of the act. Subsequently chapter 585 of the Laws of 1871 was passed, and George D. Lord, then being a member of the legislature, used his influence for and promoted the passage of the act. Subsequently, at a meeting of the canal commissioners pursuant to such act, the award of $36,845 was made. The commissioners signed certificates of the awards and the same were delivered to Mr. Bennett and 'William H. Bowman, attorney and counselor for Mr. Lord, and to one Kiley, who was an employe of Mr. Lord; that subsequently L. J. Bennett gave one of such certificates for $2,000 to the attorney who appeared before the commissioners on behalf of the State, and another certificate of $1,000 to William H. Bowman, attorney and counselor for Lord. The State board of audit has found as conclusions of law: “ That the agreement between George D. Lord, a member of the legislature, and L. J. Bennett, one of the contractors, by which Lord was to receive two-thirds of a contingent award, was a consideration for his influence in obtaining legislative authority to hear and determine the claim for- extra compensation, was fraudulent, corrupt and unlawful and rendered said certificate of sixteen thousand dollars invalid as a claim against the State in the hands of the said George D. Lord or said John Kiley.” They also held as a conclusion of law that the Bank of Monroe took said certificate, as assignee, subject to any defenses the State might have against the same in the hands of said assignor, said Lord or said Kiley.

The board has not in terms found that the claim presented before the canal commissioners was fictitious and fraudulent, but we are of the opinion that such a conclusion is warranted from the facts found by the board, and is warranted by the evidence. It appears from the findings of fact that the claim presented before the canal commissioners, and which was allowed by them, was for the sum of $36,845. That of that sum two thirds was given to Lord, or Kiley who represented him; to the attorney who appeared for the State, $2,000; to ■ Mr. Bowman, attorney for Mr. Lord, $1,000. This would leave for Mr. Bennett and the contractor the sum of but $9,281.60. Mr. Bennett himself testifies: “ I thought it was more than I ought to have. I thought the award was a very liberal one, and it seemed more to me than I ought to have.” It is therefore quite apparent that this claim presented to and audited by the canal commissioners, was at least largely fictitious and fraudulent.

It was conceded on the argument that these certificates were not negotiable, and the claimant stands simply in the position of an assignee of a chose in action. An assignee of a chose in action takes subject to all the equities existing between the original parties. The act of the legislature in question being procured through bribery, the claim presented to the canal commissioners being fictitious and fraudulent it, will not be claimed that the State ought to pay the certificate in the hands of George D. Lord, or John Kiley, who represents him. The bank of Monroe, having taken the same, subject to all the equities existing between the State and Mr. Lord, stands in no better position to maintain the claim than would George D. Lord, himself.

From an examination of the testimony in this case, we are of the opinion that the findings of fact by the State board of audit should be sustained.

The decision should be affirmed, with costs.

Hardin, J., concurred; Smith, P. J., not voting.

Decision of the State board of audit affirmed, with costs.


text:
    HENRY BAMBER, Receiver, etc., of HENRY MILES and WILLIAM R. WARREN, Appellant, v. THE CITY OF ROCHESTER, Respondent.

      Gity of Rochester — is not responsible for the acts of its boa/rd of health.

    The charter of the city of Rochester provides that the board of health shall consist of not less .than three nor more than seven persons, of whom the mayor shall be one; that the other members shall be appointed by the common council and hold office during its pleasure. Some of the powers and duties of the board are prescribed by the charter, which also provides that the provisions of the general health act (chap. 324 of 1850, and the acts amendatory thereof) shall, when not in conflict with the charter, be applicable to the board.

      Held, that as the common council did not have power to control the board in the discharge of its duties, as a portion of them were prescribed by the general statutes of the State, and as the duties of the board did not relate to the exercise of the corporate powers of the city, nor benefit it in its local or special interests, the board should be regarded as the servant and agent of the public and not of the city, and that the city was not responsible for the acts of the board.
    Appeal from a judgment of the County Court of Monroe county, entered upon a nonsuit granted upon the trial.

      Daniel Wood, for the appellant.

      John R. Fanning, for the respondent.
   Haight, J.:

This action was brought by the plaintiff as receiver of Miles and Warren against the city of Rochester to recover the value of a quantity of rags belonging to Miles and Warren, which were •destroyed by order of the board of health of the city. The defenses set forth in the answer are:

First. That the rags were infectious and dangerous to the public health, and were lawfully destroyed by the board of health.

Second. That the defendant is not liable for the acts of the board of health.

Upon the trial the court, upon motion of the defendant’s counsel, nonsuited the plaintiff, upon the ground that the defendant was not liable or responsible for the acts of its board of health. From the judgment entered upon such nonsuit appeal is taken to this court.

The only question to be considered is as to the liability of the city of Rochester for the acts of its board of health. Chapter 324 of the Laws of 1850 provides:

“ Section 1. It shall be the duty of the common council of every •city and the trustees of every incorporated village in this State, in which there is not now a board of health duly organized, to appoint once in each year a board of health for such city or village, to consist of not less than three nor more than seven persons, and a competent physician to be the health officer thereof.

“ Section 3. The several boards of health now organized in any city or village in this State, and the several boards of health instituted under this act shall have power and it shall be the duty.” Then follow provisions describing the powers and duties of such officers.

The charter of the city of Rochester provides “that not less than three nor more than seven persons, of whom the mayor shall be one, shall constitute the board of health, and one physician to be the physician thereof ” (section 6, title 2). Section 8 of the same title provides: That the common council shall annually, or as often as vacancy exists, appoint by ballot such officers, each of which shall hold his office during the pleasure of the common council. The charter also contains some provisions in reference to the powers and duties of such board. It further provides that the provisions of chapter 324 of the Laws of 1850, and the acts amendatory thereof, not in conflict, shall be applicable to the board of health of the city of Rochester. The common council is also given power to enact by-laws prescribing the duties of officers appointed by them, and their compensation. It will be seen, therefore, that the defendant’s board of health is elected by the common council of the city, with the exception of the mayor, who, by virtue of his office, is made a member of such board; that as to such officers elected by the council, they hold their office during the pleasure of the council. That their powers and duties are in part provided for by the charter and by the'general law of the State already referred to. That the council is given power to enact by-laws further prescribing the duties of such officers; no by-law, however, can be enacted which shall be in conflict with either of the statutes quoted.

Dillon, in his work upon municipal corporations, in speaking of the liability of municipal corporations for the acts of servants or agents, says: “ If the corporatiqn appoints or elects them and can control them in the discharge of their duties; can continue or remove them; can hold them resposible for the manner in which they discharge their trust; and if those duties relate to the exercise of corporate powers a/ndfor the peculiar benefit of the corporation i/n its local or special interest, they may justly be regarded as its agents or servants, and the maxim of respondeat superior applies, but if, on the other hand, they are elected or appointed by the corporation in obedience to the statute to perform, a public service not peculiarly local or corporate, but because this mode of selection has been deemed expedient by the legislature in the distribution of the powers by the government, if they are independant of the corporation as to the tenor of their office, and the mamner of discharging their duties, they are not to be regarded as the servants or agents of the corporation for whose acts or negligence it is impliedly liable, but as public or State officers with such powers and duties as the statute confers upon them, and the doctrine of respondeat superior is not applicable.” (2 Dillon on Mun. Corp., § 772.)

This appeal’s to be the rule approved and adopted by the courts in all recent decisions bearing upon the question.

In the case of McKay v. The City of Buffalo (reported in 9 Hun, 401) a policeman while engaged in shooting and killing a dog supposed to be mad in the public streets of the city, negligently, carelessly and imprudently handled and manipulated his pistol so that he shot the plaintiff, inflicting a severe and dangerous wound. It was held that the police officers of the city are not to be deemed its servants or agents in such a sense as to render the city liable. The learned justice in writing the opinion in that case repeats the rule already quoted from Dillon and adopts ■ it as the basis of his -decision. This case was affirmed in 74 New York, 619. The case of Maxmilian v. The Mayor and Aldermen, etc., of the City of New York (62 N. Y., 160) was an action for killing the plaintiffs intestate by the careless act of the driver of an ambulance wagon in the employ of the commissioners of public charities and corrections. The commissioners of public charities were officers appointed by the mayor of the city. Their powers and duties were prescribed by statute. The rule as to the defendant’s liability in that ease was stated in substantially the .same language as the rule quoted from Dillon, and it was held that the defendant was not liable. That “ where, by legislative enactment, a municipal corporation is required to elect or appoint an officer to perform a public duty, laid not upon it but upon the officer, in which it has no private interest and from which it derives no special benefit or advantage, such officer is not a servant or agent of the municipality, and for his negligence or want of skill in the performance of his duty, or for that of a servant whom he employs, it is not liable.”

The case of Ham v. The Mayor, Aldermen, etc., of the City of New York (70 N. Y, 459) was a case where the plaintiff claimed to be damaged by reason of defectively constructed water closets negligently used by a school maintained by the department of public instruction in the city of New York. The same rule appears to have been adopted, and it was held that the city was not liable although the department of public instruction was by statute declared to constitute a part of the city government. The duties of the department are of a public nature and do riot relate to the exercise of corporate power. The same doctrine was held in the case of Tone v. The Mayor, Aldermen, etc., of the City of New York (reported in 70 N. Y., 157-165).

These and numerous other cases to which our attention has been called, approve and adopt the rule declared., It now remains to be determined whether or not the defendant is brought within the rule in which the maxim of respondeat superior applies. In the first place the board of health is elected by the common council of the city. They hold their position during the pleasure of the common manner in which they discharge their trust, by removing them in case of failure to discharge it properly. So far they are brought within the rule. But the council must also be able to control them in the discharge of their duties. And those duties must relate to the exercise of corporate powers and be for the peculiar benefit of a corporation in its local or special interest. In the first place the council has not power to control them in the discharge of their duties, for a portion of those duties, at least, are prescribed by the general statute of the State. In the second place the duties devolving upon the board of health do not relate to the exercise of corporate powers, neither are their duties for the benefit of the corporation in its local or special interest. Their duties relate to the preservation of the health of the public; the individuals residing in the city may be benefited by the faithful discharge of the duties •of such officers, so may the public at large. The duties of such •officers are, therefore, public in their nature, and they should be regarded as the servants and agents of the public, instead of the corporation. "We do not understand this conclusion to be in conflict with the case of Tormey v. The Mayor, etc. (reported in 12 Hun, 542). That case was a demurrer to the complaint. The plaintiff alleged that the servants and agents of the corporation, other than the board of health, took part in the illegal removal complained of. The demurrer was overruled upon that ground. The learned justice, in delivering the opinion of the court, says: If the facts turn out as they have been alleged, and it must now be supposed that they will, then even if the wrong was in part committed by the health department, acts of an unlawful naturé are also shown' to have been perpetrated by the officers and agents of the defendant; and for them, and to the extent the plaintiff was injured by them it should be held to be legally liable.” Numerous other authorities were cited by the appellant, but in those cases the duties of the officers and agents were of a corporate character, and not of a public nature.

Ve are therefore of the opinion that the defendant is not brought within the rule, and that the plaintiff was properly nonsuited upon the trial.

Smith, P. J., and Hardin, J., concurred.

Judgment affirmed.


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    In the Matter of the Application of the NEW YORK, LACKAWANNA AND WESTERN RAILWAY COMPANY to Acquire Lands of ELIZABETH J. WAGNER and MARY GOODSELL.

      Proceedings to take land for railroad purposes — costs may be awarded to anypa/riiy— Oode of Oml Procedure, sec. 3340 — When no tidal fee should be allowed.

    In proceedings to acquire title to land instituted under tlie general railroad act the court may in its discretion, under section 3340 of the Code of Civil Procedure, award costs to any party at the rates allowed for similar services in an action brought in that court.
    Upon the presentation of a petition, presented under the said act, commissioners were appointed without opposition and thereafter a hearing was had before them, at which witnesses, subpoenaed by the land owners, were sworn and examined as to the value of the land. Upon the confirmation of the report the court allowed the land owners their witness fees and disbursements, but refused to allow them a trial fee.

      Reid, that as no issue had been joined, and as no question of fact had been raised or tried, the order of the court was proper and should be affirmed.
    Appeal by Wagner and Goodsell from so much of an order of the Monroe Special Term as denies the appellants costs of these proceedings.

      MoMaster & Parkhwrst, for the appellants.

      Miller & Nichols, for the petitioner.
   Haight, J.:

From the case it appears that the petitioner presented a petition to the Supreme Court for the appointment of commissioners of appraisal under the general railroad act; that no issue was formed or trial had; that the court appointed commissioners, and a hearing by the parties interested was had before such commissioners. On such hearing the defendants subpoenaed witnesses and had them sworn before the commissioners as to the value of the land. Hpon the confirmation of the report of the commissioners the court allowed the appellants their witness fees and disbursements, but refused to-allow them a trial fee. The real contest presented by this appeal is whether or not the appellant is entitled to a trial fee. council. The common council can hold them responsible for the

Section 3240 of the Code of Civil Procedure provides: “ Costs in a special proceeding instituted in a court of record, or upon an appeal in a special proceeding taken to a court of record, where the costs thereof are not specially regulated in this act, may be awarded to any party in the discretion of the court, at the rates allowed for similar services in an action brought in the same court, or an appeal from a judgment taken to the same court, and in like manner.”,

A prodeeding to acquire title to- real estate under the general railroad act, is a special proceeding under the statute. This has been repeatedly held by the Court of Appeals. Under the section quoted, costs in special proceedings, unless otherwise provided for, ■ shall be in the discretion of the court. The court, therefore, has power in its discretion to award costs in these proceedings, and when costs are allowed they are to be at the rate allowed for similar services in an action.

It is claimed on the part of the respondent that costs are not allowable under this section because of the provisions of section 3250 of the Code. That section provides: “ This title does not affect any provision contained elsewhere in this act, or in any other statute, remaining nnrepealed after this chapter takes efEect; whereby the award of costs is specially regulated, in a particular ease, otherwise than as prescribed in this title.” It is claimed that because some mention is made of costs in the general railroad act,, that there is a special provision for costs under that statute, and that therefore section 3240 of the Code is not applicable. Upon, reference to the general railroad act, we find that the commissioners,, in making their appraisal as to the value of the property, are also-required to determine what sum ought to be paid to the general or special guardian or committee of an infant, idiot, or person of unsound mind, or to an attorney appointed by the court to attend to the interests of any unknown -owner or party in interest, not personally served with notice of the proceedings, and who has not appeared, for costs, expenses and counsel fees. This statute also makes provision as to the compensation which shall be allowed to the commissioners for éach day of service rendered by them, and so on.

Whilst these provisions specify as to certain costs and disbursements, they do not regulate the general costs and disbursements in the proceedings. We are therefore of the opinion that section 3240 above quoted is not affected thereby. (In the Matter of the Application of the Rensselaer and Saratoga Railroad Company v. Davis, 55 N. Y., 145; Matter of Syracuse, B. and N. Y. R. R. Co., 4 Hun, 311.)

Costs being discretionary, and when allowed being at the rates allowed for similar services in actions, the only question left to be determined is as to whether or not the appellant was entitled to the trial fee in this case. Section 3251 provides that when costs are awarded to a party in an action they must be at the following rates : “ For the trial of an issue of fact, thirty dollars, and where the trial necessarily occupies more than two days, ten dollars in addition thereto.” It will be seen, therefore, that a trial fee is only allowed when there is an issue. In this case no issue was joined, no question of fact raised for trial. The commissioners were appointed without opposition. The taking of evidence by the commissioners for the purpose of determining the value of the real estate was not a trial of the action in court, and no trial fee can be allowed.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Smith, P. J., concurred; Hardin, J., concurred in the result.

So ordered.


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    WILLIAM B. MILLS, as Administrator, etc., of DAVID N. FOLLETT, Deceased, Appellant, v. FRANCES R. HOFFMAN, Respondent.

      Trustee — liability of, for receiving improper securities from, Ms pi'edeeessor — duty of, as to collecting secwrities.

    November 19,1863, one Mills was appointed administrator, with, the will annexed, of D. N. Follett, deceased, and received from the administrator of Follett’s executor, as part of the assets of the estate, fifteen shares of bank stock at the par value of $1,500, and two promissory notes given by Foilett’s widow to the executor. Follett had subscribed for the stock before his death, and the certificates were subsequently issued to his executor. Mills was at that time a stockholder in and director of the bank, and continued so to be until the failure of the bantSn 1867. After the failure of the bank he was compelled to pay to its receiver, as an assessment on the said stock, the sum of $829.40.

      Held, that upon the passage of his accounts he was properly charged with the value of the stock, and disallowed the amount of the assessment paid by him thereon.
    That as the notes were given to the executor individually, and as his estate was solvent, Mills by accepting them made himself responsible for them and was properly charged with the amount of them, the maker having become insolvent.
    It is the duty of trustees to invest funds held by them in government or State securities, or in bonds and mortgages on unincumbered real estate. While this rule is not arbitrary and inflexible so as to admit of no possible exceptions it is the basis upon which trustees should usually act ; in any event a trustee is bound to employ such diligene'e, care and prudence in the management of the trust, as diligent, careful, prudent men of discretion and intelligence generally employ in their own like affairs; anu for a neglect to make use of such diligence, care and prudence the trustee is liable to the cestui que trusts.

    Appeal from a decree of tbe Surrogate’s Court of Cayuga county, made in a proceeding taken to require tbe appellant to render, an account of bis proceedings as administrator, etc., and to pay over to tbe respondent her portion of tbe distributive share of tbe estate of her deceased father.

      Howland & Wheeled', for. tbe appellant.

      Charles M. Baker and Amasa J. Parker, for tbe respondent.
   Haight, J.:

David N. Follett died in tbe county of Cayuga on tbe 15th day of May, 1854, leaving him surviving, Mary A. Follett, bis widow, Maadlla E. Weager and Frances B. Hoffman, bis children and heirs-at-law. He left a last will and testament, made and executed before tbe respondent was born, and in which she was not mentioned nor provided for. By such will Jesse H. Forman and Lee Ogilsbie were named as executors. The will was duly proved and admitted to probate on tbe 28th of June, 1854. Before bis death, Follett subscribed for fifteen shares of tbe-stock of the Weedsport Bank, at the par value of $1,500. After bis decease the certificates of stock were issued to Lee Ogilsbie as bis executor. This stock was never disposed of by Ogilsbie, but was retained by him until the time of bis death. Both of tbe executors named in the will died without rendering any account of their proceedings. On the 19th day of November, 1863, the appellant, William B. Mills was appointed administrator with the will annexed. Mills, as such administrator, received from the administrator of the estate of Ogilsbie, as part of the assets of the estate of Follett, the fifteen shares of stock of the Weedsport Bank, at $1,500; also two notes given by Mary A. Follett to Lee Ogilsbie, one for $101, the other for $329.57. The bank stock was retained by Mills, as administrator, as an investment, until July 22, 1867, when the bank failed, and it became worthless. The stock not only became worthless, but, as such stockholder, he became liable to the creditors of the bank, and, as such, was sued by the receiver, and compelled to pay on an assessment of the stock, the amount of $829.40. From the year 1864 until the failure of the bank, Mills, the appellant, was a director of the bank. The notes of Mary A. Follett have never been paid, and no attempt has been made on the part of the administrator to collect them by suit. She has now become insolvent. In or about the month of November, 1867, an action was commenced in this court by one James A. Follett, against Mary Ann Follett, widow, and all of the next of kin and heirs-at-law of David N. Follett, deceased, including Frances R. Follett, the respondent herein, and William B. Mills, the administrator, to determine the rights of all the parties in relation to the estate, and requiring the administrator to render an account of his administration, and to pay over the funds in his hands to the parties entitled to the same. The administrator did render an account in that action, and such proceeding were had therein, that on the 13th day of July, 1869, judgment was entered, requiring the administrator to pay over certain moneys, and deliver certain' property to the parties entitled thereto. Under such decree the administrator did pay over to the guardian of Frances R. Follett the amount therein adjudged to be going to her, but did not pay over or account for, any of the items hereinbefore referred to. On the 31st of August, 1870, the administrator, by an order of this court, was released and discharged from his duties as administrator. Subsequently, and on the 26th day of October, 1875, the judgment and order discharging the administrator referred to, were vacated and set aside as to Frances R. Follett only, for the reason that when the action was brought and prosecuted, she was an infant, and that no guardian ad litem had been appointed to take charge of her interests in that action, and -that the court had acquired no jurisdiction of her person. She having in the meantime become of . age, then appeared in the action, and interposed a demurrer to the complaint. Subsequently, and on the 13th day of April, 1876, the court, upon stipulation of James A. Follett, the plaintiff, granted an order dismissing the complaint in that action as to the defendant Frances B. Follett, without costs to either party. At this time she also settled in full with both Colvin and Beach, her guardians, they accounting to her for all the moneys received from the administrator.

The surrogate in his decree held that the administrator was properly chargeable with the amount of the bank stock and of the promissory notes mentioned, and that he was not entitled to credit for the $829.40, which he has paid the receiver of the bank as an assessment upon the stock.

The first question urged on the part of the appellant is that the respondent is estopped from again calling him to an account, by reason of the judgment and proceedings thereon, and the settlements made by the respondent. As to the judgment, the same has been vacated and set aside, so far as she is concerned. She is not, therefore, bound by the judgment, for no judgment exists as against her. She subsequently demurred to the complaint in that atftion, and thereafter a settlement was had with the plaintiff in that action, on which an order was entered dismissing the complaint' as to her. No settlement, however, was had with the administrator, who was a defendant in that action, and any right existing as between the administrator and this respondent was not and could not be affected by that settlement. She also settled with ■ her guardians, the persons to whom the administrator has paid over the money required by the judgment referred to. They rendered to her an account of all the moneys that they had had and received. She settled with them and relieved them from further duty. This she had the right to do, and the rights of the administrator were not affected or prejudiced by reason of such settlement. The money that he had paid over under the judgment, the judgment having been subsequently vacated, he had the right to recover back from her, or to charge against her in a further accounting. No claim is made against him as to many matters accounted for and paid over to her guardians. It is only as to those items which have not been accounted for that she claims to recover. We are, therefore, of the opinion that she is not estopped by reason of these settlements from calling him to account.

The next question to be considered is as to whether he should be charged with the item, Weedsport Bank stock, $1,500.

The duties of trustees in the administration of trusts becomes the first subject of inquiry. The rule as stated by Willis on Trustess, 125, is that: “A trustee is bound to manage the trust property for the benefit of his cestui que trust with the care and diligence of a prudent owner.” Another writer says: “ A trustee is called upon to exert precisely the same care and solicitude in behalf of his cestui que trust as he would do for himself; but a greater measure than this a court of equity cannot exact.” (Lewis on Trustees, 152.)

In Story’s Equity it is said that when a trustee has acted in good faith, and in the exercise of a fair discretion and in the same manner as he would ordinarily do in regard to his own property, he ought not to be held responsible for any losses occurring in the management of the trust property. (Sec. 1272.) In the case of Thompson v. Brown (reported in 4 Johns. Ch., 619) it was held that an executor, who puts into the hands of a surviving partner assets which he had in his hands and under his own control to trade with, will be answerable for the loss, but executors and administrators or trustees acting with good faith and without default or fraud will not be held responsible for the loss which may arise. The case of Higgins v. Whitston and others, Executors, etc. (20 Barb., 141) was a case where the trustees made a loan of $6,000 on real estate valued at $16,000. It was incumbered by a prior mortgage of $1,000. The investment was made with the knowledge and consent of the cestuA que trust, who was a man of full age and capable of comprehending his own interests and of deciding correctly as the ■ generality of men, although his mind was to some extent impaired by intemperate habits. It was held that the trustees were not liable for the loss, that it cannot be expected from trustees that they are to act upon principles different from those which actuate cautious and prudent men in the transactions of their own affairs. The case of Litchfield v. White (7 N. Y., 438) was an action to set aside a voluntary assignment to a trustee for the benefit of creditors. It was held that trustees were liable for ordinary negligence, or the want of that degree of diligence which persons of common prudence are accustomed to use about their own business and affairs. The case of Baskin and Baskin, Executors, etc., v. Baskin (4 Lans., 90) was a decision of this court in this department. The facts, as near as we can gather from the reported case, were as follows: A special administrator- had made collections and deposited the money in his own name in J. T. Rapier’s Bank. The executors when appointed did the same thing. When the deposits were made certificates were taken payable in six months after date. The executors in settling with the special administrator received from him his certificates of deposit and held the same for two years. The bank failed at the expiration of the two years and there was a loss. It was held that the executors were liable for the loss; that the special administrator had no right to loan the trust moneys in his hands; that the executors received the certificates of deposit from the special administrator upon their own responsibility; that they could not by an arrangement between themselves convert into assets the proceeds of an unauthorized transaction; that they might as well have taken his note for money improperly appropriated and attempt to make it assets. It was held further that the delay of the executors for two years in making the collection on the certificates of deposit was unreasonable and a breach of their duty as executors, and for this reason they were also liable. It was also held that the deposits made by the executors, being on time, were a loan, and for the same reasons they are liable for such deposits. The case of King v. Talbot, Executors, etc., (40 N. Y., 76), was a case where the executors were charged with the trust of investing legacies of infant children, to be used so far as required, for their maintenance and education, the principal, with accumulations thereon to be paid to them severally on their becoming of age. The executors invested their funds in canal, bank and railroad stocks. The children upon coming of age, refused to accept the stocks. It was held that they had a right to recover of the executors the whole amount of their legacies, with the interest thereon. That the law imposes -upon trustees, holding trust funds for the benefit of minor children, the duty of placing them in a state of security, of seeing that they are productive of interest, and of so keeping them that they may be subject to futui’e recall for the benefit of the cestui que trust j that investments in canal, bank, insurance, railroad or other stocks of private corporations, is a violation of duty, and of the obligations of the trust.

From our examination of the authorities and the cases referred to, we have come to the conclusion that as a general rule it is the duty of trustees to invest funds held by them, in government or State securities, or in bonds and mortgages, on unincumbered real estate. That while this rule is not arbitrary and inflexible, so as to admit of no possible exceptions, it is the basis upon which trustees should usually act; that in any event the trustee is bound to employ such diligence, care and prudence in the management of the trust, as diligent, careful, prudent men of discretion and intelligence generally employ in their own like affairs, and that for a neglect to make use of such diligence, care and prudence, the trustee becomes, liable. (See King v. Talbot, 40 N. Y., 76; Adair v. Brimmer, 74 id., 539, 551; Ormiston v. Olcott, 84 id., 339.)

In the case under consideration, the administrator was a stockholder in the bank, and from October, 1864, was a director until it failed. It was therefore his duty to take part in the control and management of the bank. lie was thus afforded an opportunity, and it was his duty as director, to inform himself as to its financial condition. For the period of three years and eight months he held this stock as administrator, and up to the very day of the failure of the bank, making no attempt to sell or convert the same into money. The debts of the testator had all been paid by the executors in their lifetime, and the heirs and legatees were awaiting the settlement of the estate. Under these circumstances we are of the opinion that he was guilty of negligence in not using that degree of care and prudence that the law requires. This negligence cannot be excused by reason of the advice of the guardian and mother of the infant, to allow the stock to remain. The duty of administering the estate was upon him. The responsibility was his, and not theirs, and it is not claimed that they had any knowledge or means of ascertaining the true condition of the bank. If the appellant, was guilty of negligence in holding on to the stock in question and not converting it into money, then it follows that he cannot be credited with the item of $829.10 paid by him on the assessment of the stock, for such liability was the result of his careless act in not converting the stock into money.

As to the notes, they appear to have been given to Ogilsbie individually. They were therefore his property on which he could, in his own name, have maintained an action. They were not assets of the estate of David .N. Follett. No claim is made but that the estate of Ogilsbie was solvent, and well able to pay every dollar it owed. The appellant accepting the notes in question from the executors of Ogilsbie, did so upon his own responsibility, and must be held liable -therefore. (Baskin v. Baskin, 1 Lans., 90.)

The decree of the surrogate should be affirmed, with costs.

Smith, P. J., and Hardin, J., concurred.

Ordered accordingly.


author:
-■Dwight, J.:
      Hardin, J.:

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    THOMAS J. CHAMBERLAIN and Others, Executors, etc., Plaintiffs, v. HASCAL L. TAYLOR and Others, Defendants.

      Conveyance of lands held adversely — when the grantee cannot me in the name of his grantor — 2 B. S., 691, sec. 5— Code of Civil Procedv/re, sec. 1501.
    A person who, in violation of section 5 of 2 Revised Statutes, 691, takes a conveyance “ of any lands or tenements, or of any interest or estate therein, from any person not being in the possession thereof, while such lands or tenements shall he the subject of controversy by suit in any court, knowing the pendency of such suit, and that the grantor was not in possession of such lands or tenements,” cannot, under section 1501 of the Code of Civil Procedure, maintain an action to recover the possession thereof in the name of his grantor.
    Motion by the plaintiffs for a new trial on a case and exceptions, ordered to be heard in the first instance at the General Term, after a verdict in favor of the defendants ordered at the circuit.

      E. D. Smith, for the plaintiffs.

      Oyreij, "Jswdl & Ramsey, for the defendants.
   -■Dwight, J.:

This was an action of ejectment brought by grantees of the land's in question, in the names of their grantors, under section 1501 of tlie Code of Civil Procedure. That section provides that an action to recover real property or the possession thereof may be maintained by a grantee * * * in the name of the grantor, * * * where the conveyance under which he claims, is void because the property conveyed was held adversely to the grantor.” The provision is equivalent to the last clause of section 111 of the former Code of Procedure, and both were doubtless intended as a legislative declaration of the law as it previously existed and had been frequently declared by the courts of this State. (See Jackson v. Vredenburgh, 1 Johns., 159; Williams v. Jackson, 5 id., 489; Jackson v. Demont, 9 id., 55; Jackson v. Leggett, 7 Wend., 377; Livingston v. Proseas, 2 Hill, 526; Hamilton v. Wright, 37 N. Y., 502.)

These cases and others to the same effect are divisible into two classes: The one relating to deeds which are merely void by reason of possession adverse to the grantor at the time of the execution of his deed (1 R. S., 739, § 147); the other to deeds taken in violation of an early penal statute of this State corresponding to a statute of 32 Henry VIII, which is not now on our statute books. It was enacted in 1788, re-enacted in 1801 (1 Rev. Laws, 173, § 8), and repealed by the Revised Statutes. It imposed a penalty of the forfeiture of the value of the land upon any person giving or taking a conveyance of lands not being in the possession of the grantor, or of which he had not received the rents or profits for one whole year before the mailing of the conveyance. In the first class of cases it was held that, the deed being void, the title remained in the grantor and might be enforced by him; and being so enforced it enured, on the principle of estoppel, to the benefit of the grantee. In the second class of cases mentioned it was held that the statute being a penal one was to be construed strictly and no forfeiture superinduced beyond its positive provisions,” and that to hold the title of the grantor extinguished would be to add the penalty of a forfeiture of the land itself to that of the forfeiture of the value of the land prescribed by the statute.

No one of these cases, nor any case to whiclu-we 'are referred, relates to a deed which is obnoxious to our existing statute, which, makes it a criminal offense to take a conveyance of lands from any person not being in possession, which are the subject of controversy by suit in any court at the time of the conveyance, the grantee having knowledge of the facts. Such is the existing statute (2 R. S., 691, § 5), and the case at bar is precisely within the category there described. In this case the grantees, the real plaintiffs in this action, had themselves commenced an action for the recovery of the same lands against the same defendants, as in this action, and while such first action was pending they took from the nominal plaintiffs in this action a conveyance of the same lands, of course with full knowledge that their grantors were out of possession, and that the lands conveyed were at the time the subject of controversy in a suit begun and prosecuted by themselves.

The case, therefore, presents the naked question whether, by an act or contract in direct violation of a criminal statute of this State, a person can acquire rights which he can enforce by action in our courts. The question answers itself upon elementary principles of law and common sense. The courts do not lend themselves to the enforcement of pretended rights, the very acquisition of which is a crime. And there is nothing in the provision of the Code of Civil Procedure referred to, to countervail a principle so necessary to a decent administration of the law. It is not the province of a rule of practice in civil actions to override or nullify a criminal statute, and such is not the purpose or effect of the rule of practice here invoked. That rule may have application in cases where, under the statute first above cited, the deed is void by reason of adverse possession merely; or to cases ■ where, for want of the scienter required by the statute applicable to this case, the act of taking the deed is not a criminal offense.

The conclusion already indicated does not result in the extinguishment of the title of the grantor in such a deed, if he has any; that title still remains in him and may no doubt be enforced by him. It cannot be enforced by his criminal grantee either directly or by the indirection of an action in the name of his grantor.

•On the ground here considered, the judge at the circuit was clearly right in directing a verdict for the defendants.

The motion for a nonsuit must be denied.

Smith, P. J., concurred.

Hardin, J.:

I concur in the foregoing opinion of Brother Dwight. I think the case falls within the principles laid down by Allen, J., in Pepper, Administrator, v. Haight (20 Barb., 429).

New trial denied; judgment ordered for the defendants on the verdict.

Present — Smith, P. J., Hardin and Dwight, JJ.

New trial denied.


author: Smith, P. J.:

text:
    GEORGE ALBERT GERMAIN and Others, Respondents, v. THE BROOKLYN LIFE INSURANCE COMPANY OF NEW YORK, Appellant.

      Evidence — presumption, against suicide — does not apply to the insane.

    The presumption of law, that a sane man found dead has not committed suicide, does not extend to the case of an insane man so found.
    Appeal from a judgment, entered on a verdict rendered at the Erie Circuit, and also from an order denying the defendant’s motion for a new trial on a case containing exceptions, and upon the ground that the verdict was against the weight of evidence.

      Sherman S. Rogers, for the appellant.

      George Wadsworth, for the respondents.
   Smith, P. J.:

Action upon a policy of insurance upon the life of Charles Ger-main. The policy provided that if the insured should die by his own hand or act, whether sane or insane, the insurer should not be liable for an amount greater than the reserve for said policy computed by the New York standard. The plaintiffs recovered the entire amount of the policy with interest. Germain died from a gun-shot wound in his breast inflicted a few minutes before his death. At the time when he was shot he was alone in a room of bis dwelling-house, and there was no direct evidence as to the manner in which the shooting occurred. The testimony established very satisfactorily, however, that the shooting was done with a shot gun which was with him in the room, and that the gun was discharged in some manner by his agency, but whether intentionally or accidentally was a litigated question. The theory of the defense was that Germain laboring under a suicidal mania purposely took his own life. Much evidence of a very cogent character was given in support of that theory, so much so that the appellant insists now, as he did at Special Term, that the verdict is against the weight of evidence. But although the evidence in support of the defendant’s theory was strong it did not absolutely exclude the idea that the discharge of the gun was accidental, and as the burden of proof was on the defendant it can hardly be said that the jury were bound to conclude that the shooting was intentional.

A more serious question, however, arises upon an exception taken to the refusal of the judge to charge as requested by the defendant’s counsel, that in case the jury were satisfied that Germain was insane at the time he came to his death, there is then no presumption of law that he did not commit suicide. The learned judge, in answer to the request, said to the jury: “My charge upon the question of presumption is just this : That in case you should find a corpse, a body at any place, with no evidence, nothing to show as to the cause of his death, the presumption then would be that the death was natural or accidental. The presumption would be against its being caused by its own hand. Now, any evidence that you discover in reference to the cause of the death, whether it be that of insanity or any other evidence, it is evidence that goes to the jury for the purpose of enabling them to determine the cause of death. If you find as a question of fact that he was insane, it is one of the facts that you may take into consideration for the purpose of enabling you to determine whether it was done intentionally or not. I will decline to eharge otherwise.” We incline to the opinion that the request ought to have been granted. The proposition embraced in it was simply this: That the presumption of law that a sane man found dead has not committed suicide, does not apply to the case of an insane man so found. According to the evidence, if Germain was insane, his insanity took the form of a suicidal mania. Assuming that to be the case, it is unreasonable and against common experience to say that it is to be presumed he did not commit suicide. The presumption in the case of a sane man is based upon his sanity, and the fact of insanity being shown, the ground of the presumption is gone.

If it be suggested that in the case of an insane man there is no presumption one way or another, then on that very ground the defendant was entitled to the instruction ashed for. The request was not to charge that the presumption is that Germain, if insane, did commit suicide, but simply that in such case there is no presumption that his death was not the result of his own intentional act.

For the reason above stated, the judgment and order should be reversed,- and a new trial ordered, costs to abide event.

Hardin, J., concurred ; Haight, J., not sitting.

So ordered.


author: Smith, J.:

text:
    GEORGE J. FLINT, Respondent, v. ABRAM VAN DUSEN, Executor, etc., and Others, Appellants.

      Lien of attorney on judgment or decree — none acquired in courts not of record.

    While the Surrogates’ Courts were courts not of record no lien could be acquired upon a decree entered therein, by the attorney for the successful party for the services rendered by him in the proceeding.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      Isaac E. Maynard, for the appellants.

      James A. lynes, for the respondent.
   Smith, J.:

This action was brought to enforce an alleged lien upon a surro- . gate’s decree for services rendered by the plaintiff, who is an attorney of this court, in the proceedings before the surrogate which resulted in the said decree. By the decree, the appellant herein was directed, as executor, to pay certain moneys to the plaintiff’s clients in the proceedings before the surrogate, and he has paid the same accordingly. By the judgment herein he is required to pay the amount of the plaintiff’s claim, on the ground that at the time when he made the payments under the decree, he had notice of the plaintiff’s claim, which was adjudged by the referee to have been a valid lien on the moneys so paid by the executor.

We think the plaintiff had no lien. We are not aware of a case holding that a lien exists upon a judgment rendered in a court not of record, for services performed in such court in obtaining such judgment. In those courts there are no attorneys, in the sense in which that term is used in courts of record (Fox v. Jackson, 8 Barb., 355), and it is only in respect of the party’s character of attorney or solicitor, that the claim to a lien exists. And it would seem that oourts not of record, possessing only a limited jurisdiction, have no such equitable control over their judgments as will enable them to adjudicate upon and enforce liens thereon. No one will contend that a lien exists for services rendered by an attorney in a Justice’s Court. At the time when the services in question were rendered, Surrogate’s Courts were not courts of record. The fact that the statute making them courts of record was passed before the decree in, question was rendered, does not affect the ease, as the decree did not recognize the plaintiff’s claim, and the services on which the alleged claim is based were all rendered'before the statute referred to was passed.

The judgment should be reversed, and as the facts cannot be changed, bearing upon the point on which the case is decided, another trial is unnecessary, and judgment is ordered for the defend-, ant, with costs.

Hardin J., concurred; Taloott, P. J., not voting.

Judgment reversed, and judgment ordered for defendant, with costs.