text:
    Adaline Matson et al., Resp’ts, v. Louise J. Abbey, Adm’rx, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Decedent’s estates—Gift of portion of estate by heirs.
    A testator, who held a policy on his son’s life, died leaving a will by which he gave his estate to executors in trust for the life of his wife, and directed them to pay the premiums on said policy. The son subsequently died, and the executors collected the policy. Thereafter the heirs and devisees executed a sealed conveyance assigning their interest in the proceeds of the policy to plaintiffs, the widow and children of said son. Held, that this was a valid, irrevocable gift, and that when the writing was received the title to that part of the estate vested in plaintiffs subject to the life estate of the widow.
    3. Same—Limitation.
    Plaintiffs had no claim against the estate until the death of the widow, • and hence the statute did not begin to run until her death.
    3. Same.
    Where a claim has been absolutely rejected, an action may be brought upon it at any time after letters of administration are issued. An action brought within a year is not premature.
    Appeal from judgment in favor of plaintiffs, entered upon a decision by the court on a trial without a jury. ■

      George H. Stevens (A. T. Clearwater, of counsel), for app’lt; Townsend, Roche & Ñason (Martin I. Townsend, of counsel), for resp’ts.
   Putnam, J.

On December 4, 1863, Austin Matson insured the life of his son, Austin Matson, Jr., in the sum of $2,000, payable to himself, his executors or assigns. Austin Matson died December 1, 1864, leaving a will, afterwards admitted to probate by the surrogate of Rensselaer county, in which he appointed his widow, Maria T. Matson, and James M. Ring his executors and trustees. They qualified on the 13th of April, 1865. After specific bequests the will devised and bequeathed the whole of his estate to his executors in trust for the purposes therein specified.

They were directed to apply the rents and income of the estate to the support of his widow during her life, and the support of his daughter, Emily, until her marriage or the death of his said widow. Among other directions they were instructed to pay the yearly premium of seventy-eight dollars upon the policy of insurance upon the life of Austin Matson, Jr., provided he should not pay the same. He died on the 19th of February, 1866. The executors of Austin Matson, Sr., thereupon collected, as part of his estate, the $2,000 insurance money. The executor, Ring, died on July 12, 1878, and the executrix, Maria, on the 13th day of June, 1891. Defendant was appointed administratrix with the will annexed of Austin Matson, Sr., on July 13, 1891. This action was begun on the 20th day of November, 1891. On January 27,1869, the children and devisees of Austin Matson, Sr., by a sealed conveyance, assigned all their interest in that part of the estate of deceased derived from the life insurance policy aforesaid to the plaintiffs, the widow and children of Austin Matson, Jr. It was shown on the trial that defendant, as administratrix, received of personal estate $8,534.26, and no debts against the estate were alleged or proven. Prior to the commencement of this action a demand was made by the plaintiffs from defendant for the sum of $2,000 out of the estate of Austin Matson, Sr., so assigned to the plaintiffs, and payment was refused.

Defendant insists that there was no valid delivery of the money claimed in this action, and no valid transfer or gift thereof, and, hence, that the trial court erred in directing a judgment for the plaintiffs.

In fact, it is well settled that to establish a valid gift a delivery of the subject of the gift must be shown to some person so as to divest the possession and title of the donor. Young v. Young, 80 N. Y., 422 ; Beaver v. Beaver, 117 id., 421; 27 St. Rep., 405.

But we have always understood that a transfer of a claim or chose in action, by a written instrument under seal, duly executed, has the effect to divest the title of the donor in the assigned property, and has the same effect as an actual delivery. The delivery of the assignment is deemed a delivery of the property conveyed.

Thus in Irons v. Smallpiece, 2 Barnwell & Alderson, 551,552, it is said by Abbott, G. J., “I am of the opinion that by the law of England, in order to transfer property by gift, there must either be a deed or instrument of gift or there must be an actual delivery to the donee.” In Fulton v. Fulton, 48 Barb. 581-592, the doctrine stated in the above case is approved. And it is held that “ a gift inter vivos is perfected by delivery of possession of the thing or delivery of a deed of gift, it is completed although made without consideration.” See Ham v. Van Orden, 34 N. Y., 257-269 ; De Caumont v. Bogert, 36 Hun, 382; Hurlbut v. Hurlbut, 49 id., 189 ; Carpenter v. Soule, 88 N. Y., 251.

We think, therefore, the donors in this case having duly executed and delivered a written and sealed assignment of that part of the estate of deceased sought to be recovered in the action, that the trial court did not err in finding a valid gift of the claim or money sought to be recovered by the plaintiffs.

The gift, being consummated by a delivery of the assignment, could not be revoked. When the writing was received by the plaintiffs the title to that part of the estate of deceased mentioned therein at once vested in the plaintiffs, subject to the life interest of the widow.

It is suggested by counsel for appellant that there was no proof of an acceptance of the gift by the plaintiffs. But acceptance by the donees in such a case may be implied where the gift" otherwise completed is beneficial to them. Beaver v. Beaver, 117 N. Y., 421; 27 St. Rep., 405.

But the learned counsel for the defendant claims that if the transaction in question amounted to a gift to plaintiffs of the money sought to be recovered in the action their claim is barred by the statute of limitations. We think this position is not well taken. Under the will of Austin Matson the widow was entitled to the use and income of all his estate during her life, including that part received from the insurance on the life of Austin Mat-son, Jr. The plaintiffs, therefore, had no claim against the estate until the death of the widow, which occurred on the* 13th day of June, 1891. It would seem, therefore, that the plaintiffs’ claim is not barred. Peltz et al., adm’rs, v. Schultes et al., adm’rs, 43 St. Rep., 216; Matter of Hodgman, 31 id., 479.

The claim of plaintiffs to said money is no more barred than that of the other legatees named in the will of deceased to the remainder of the estate, the life interest of the widow having terminated.

It is also urged by defendant that the action is prematurely brought, being so brought less than one year after the issuing of letters of administration. But plaintiffs’claim for the $2,000, it is admitted, was presented to the defendant and rejected by her. Hence the action, if not absolutely necessary, was proper. Sections 217, 218, 219, Civil Code; Peak v. Peck, 3 Dem., 548; Riggs v. Cragg, 89 N. Y., 479; Matter of Application of Macaulay, 94 id., 574.

We are not aware of any statutory provision or any reason why such an action as this, the claim being disputed, cannot be brought at any time after the issuing of letters of administration. Execution can only be issued on the judgment obtained in such an action by leave of the surrogate, and only for such a sum as is properly applicable thereon from the estate. Sections 1825, 1826, 1827, Civil Code.

We have entertained some doubt as to the propriety of awarding costs against defendant under the circumstances. But as this objection is not urged by appellant, we do not deem it necessary to discuss the question. It is doubtful whether §§ 1835, 1836 of the Civil Code apply to such an action, and whether in an action of this nature costs cannot properly be awarded under § 3246.

The judgment should be- affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    The People ex rel. Orville Crouse, App’lt, v. The Board of Supervisors of Fulton County, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)
    1. Mandamus—Order to show cause.
    Relator obtained an order at special term requiring the respondent to convene and audit his claim, or show cause why “such order or mandamus
      • should not be made peremptory.” Held, that, notwithstanding the use oí some of the phraseology of a mandamus in the order, it was merely an order to show cause, and not an alternative mandamus.

    S. Same—May be granted by judge out of the district.
    There is no objection to a judge or special term in any part of the state making an order to show cause, provided it is made returnable at a special term held in the district embracing the county wherein the issue of fact joined upon the alternative writ would he triable.
    3. Same—Costs—Court of sessions.
    Courts of sessions have power to award costs and to enforce their payment as in civil actions; and where they have been thus awarded against a town in a proceeding brought-by its overseer of the poor, and the board of supervisors fail to make provision for payment of the judgment therefor, the judgment creditor is entitled to a mandamus to compel them to do so.
    Appeal from order denying motion for a peremptory mandamus.

      Frank B. Towman, for app’lt; Smith & Nellis (Andrew J. Nellis, of counsel), for resp’t.
   Herrick, J.

In an action or proceeding prosecuted by the overseer of the poor of the town of Johnstown, Fulton county, against the relator, Orville Crouse, in the court of sessions of Fulton county, a judgment was recovered in favor of Crouse against the town of Johnstown for costs in the sum of $170.75.

The said judgment, or a certified copy of the docket thereof, was duly presented to the board of supervisors of Fulton county for audit, allowance and payment; but such board of supervisors adjourned sine die without in any wise acting upon such judgment.

The relator thereafter applied to a special term of this court, held in the county of Herkimer, on the 10th day of January, 1893, and procured an order directing the board of supervisors of the county of Fulton to convene in session, and audit and allow and provide for the payment of such judgment, on or before the 21st day of January, 1893, or that they show cause at a special term of the court, appointed to be held at chambers in the city of Amsterdam, Montgomery county, on the 24th day of January, 1893, why such order or mandamus should not be made peremptory.

The board of supervisors demurred to the order obtained at the Herkimer county special term; the same came on to be heard at the special term held in Montgomery county on the 24th day of January, 1893, and upon such hearing the learned justice holding the term held that the papers failed to show that the relator was entitled to relief, and denied the application for a mandamus.

Ho objection was made that a mandamus was not a proper remedy for the relief sought by the relator.

The objection, however, was raised by the defendant that the order granted by the Herkimer county special term was, in itself, an alternative mandamus, that the special term had no right to grant it, that it was made returnable in too short a time, and that it was not under the seal of the court. It was, however, properly regarded, I think, by the learned justice holding the Montgomery .special term merely as an application for a mandamus.

While the order granted may perhaps be criticised as to form, and while it speaks of itself as an “ order or mandamus,” still' I think that in substance it was an order to show cause why a mandamus should not be granted.

Section 2067 of Code of Procedure provides that an alternative writ of mandamus may issue upon an affidavit or other written proof, and either with or without previous notice.

A practice has grown up, based upon the common law practice, of applying to the court or a judge in chambers, upon petition or affidavit, for an order requiring the person, officer or board to whom it is directed to do the thing asked,for by the relator, or to show cause at a special term why a "mandamus should not issue compelling the person, officer or board to do the thing specified in the order ; then, upon the return day, if the thing has not been done and there is no dispute as to the facts, a peremptory mandamus is issued in the form required by the Code; if the facts are disputed, an alternative writ of mandamus is granted in the form and manner and returnable as prescribed by chapter 16, title 2, article 4 of the Code of Civil Procedure.

This practice is convenient; the order to show cause takes the place of, and is in fact a notice, and, in many instances, results in bringing the controversy to a termination much quicker than if an alternative mandamus was issued in the first instance, returnable in twenty days after the service thereof, as required by § 2072 of the Code.

This practice enables parties to move promptly to obtain the relief they seek, it affords the party proceeded against an opportunity to comply with the demands of the relator, if he has no defense in fact or law, and is, I think, a compliance with that portion of § 2067 of the Code which says that an alternative writ may be granted “ either with or without previous notice of the application, as the court thinks proper.”

If, upon the hearing of such order to show cause, there is no dispute as to the facts, but simply a question of law, and a peremptory mandamus is issued, I think it comes within § 2070 of the Code, the order to show cause having fulfilled all the offices of, and being in fact a notice of the application.

While the order to show cause herein was granted by a judge, and at a special term, out of the district embracing the county wherein an issue of fact joined upon the alternative writ of mandamus would be tried, still it was made returnable at a special term in the proper district. If the application for the mandamus itself is made in the proper district, I can see no objection to a judge or special term in any part of the state making an order to show cause for the purposes in question, provided it is made returnable at a special term held in the district embracing the county wherein the issue of fact joined upon the alternative writ or mandamus would be triable.

While, as before stated, the order to show cause herein is not in very good form, and contains some of the phraseology and directions of a mandamus, yet it is not a mandamus, but an order to show cause why one should not be granted, and the practice followed by the relator in this case I think is substantially correct.

The other objection raised is as to the judgment that the relator seeks to have the defendants audit and allow.

The judgment purports to be a judgment of the Fulton county court of sessions, and the claim is that the court of sessions is a criminal court, and has no jurisdiction to render a civil judgment. I think this objection is without force; chapter 2, § 39 of the Code of Criminal Procedure defines the jurisdiction of courts of sessions; subdivision 3 of such section provides that they shall have jurisdiction, “To hear and determine appeals from orders of justices of the peace under the provisions of law respecting the support of bastards.” Section 861 of the Code of Criminal Procedure provides that a person who feels himself aggrieved by an order of the magistrates in bastardy proceedings, may appeal to the court of sessions of the county. Section 873 of the same code directs that the costs must be awarded in favor of the party in whose favor the appeal is determined. That section also directs the manner in which such costs are to be paid, when awarded against the overseer of the poor of a town not liable for the support of its own poor. Section 874 of the same code, provides that in other cases the payment of the costs may be enforced by the court as in civil actions.

It will thus be seen that courts of sessions have power to award costs, and to enforce their payment, as in civil actions. Section 3 of chapter 155 of the Laws of 1886 provides that the towns in the county of Fulton shall be liable for the support of their own poor; so that we have here a case where the payment of costs is to be enforced by the court as in civil actions» 2 R. S., 474, §§ 102-103 ; Birdseye’s Statutes, 26, §§ 82,83, provides for the payment by boards of supervisors of judgments for any debts, damages or costs obtained against any town, the supervisor or the overseers of the poor thereof.

It seems to me, therefore, that a court of sessions having jurisdiction to award costs, and to enforce their payment, as in a civil action, and a judgment for costs having been rendered by the court against the town of Johnstown, ana it being made the duty of the board of supervisors to provide for the payment of judgments against the town, and the defendant having failed and neglected to make provision for the payment of the judgment in this case, that the relator is entitled to the relief asked for.

The order of the special term, denying the application for a mandamus, should be reversed, with costs of the motion at special term, together with the costs of this appeal, with printing and other disbursements.

Mayham, P. J.,- and Putnam, J., concur.


author: Per Curiam.

text:
    John H. Judge, Trustee, Resp’t, v. Francis B. O’Connor, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Will—Construction.
    "Where a bequest in trust directs the income to be paid to the children of the testator for life, and on their death the principal to be paid to their children, the trustees cannot vest one of testator’s children with the legal or equitable title to any part of the principal of the trust estate.

      Appeal from a judgment of the special term of this court entered on the report of a referee in favor of the plaintiff.
    Bangs, Stetson, Tracy & Mac Veagh (Flamen B. Candler, of counsel), for app’lt; William N. Armstrong (Edward C. Perkins and Samuel V. Speyer, of counsel), for resp’t.
   Per Curiam.

June 6, 1848, Garret Furman died, leaving a will and testament, which was probated July 6, 1848. By this will he appointed four persons as executors and trustees, to whom letters testamentary were issued. By the eleventh subdivision of the" will the testator devised and bequeathed the remainder of his estate to his executors and trustees, in trust to pay out of the income arising therefrom $500 annually to his widow, and one-fourth of the remainder of the income to each of his four daughters, payable in half-yearly instalments during each of their natural lives. It was further provided that in case a daughter should die the executors and trustees should pay over to the issue of the daughter so dying the one-fourth part of the trust fund, but in case any daughter should die without issue, that the whole trust estate should be held for the benefit of the surviving daughters, and at their death should go to their issue. The remainder of the testator’s estate was set apart and held by the trustees as directed. The widow died January 14, 1867, when the four daughters became entitled to the whole of the income. Emeline, one of the daughters, was the wife of Francis B. O’Connor. On the 1st day of April, 1857, she purchased No. 25 Monroe street, in this city, and, for the purpose of securing the payment of $5,000 of the purchase price, mortgaged the premises to the trustees under her father’s will, as collateral to a bond executed by her husband to said trustees, by which he bound himself to pay said sum of $5,000 on the 1st day of April, 1860, with semiannual interest at the rate of 7 per cent. Thereafter, and until September 1, 1873, the interest was paid by offsetting it against the fourth part of the income from the trust estate payable to Emeline O’Connor. During these years the interest was adjusted in this way, and was indorsed on the bond as paid, with the assent of herself and of her husband. In August, 1867, the survivor of said trustees held in his hands $31,350 belonging to the trust estate; but between that date and October 23, 1885, he wasted a large part of the estate, and on the date last mentioned he was removed, and the plaintiff in this action was appointed as testamentary trastee in his stead. As that time the estate had been reduced to $9,500, secured by three mortgages, one of which being the mortgage in suit. On the 6th of March, 1886, this action was begun against Francis B. and Emeline O’Connor, who interposed two - defenses: (1) The statute of limitations; (2) that the bond and mortgage had been set apart as a portion of the trust estate belonging to Emeline O’Connor. The referee found as a fact, on the evidence of the two defendants, which was not disputed, that the interest had been paid by both of them, in the way hereinbefore described, up to September 1, 1873, which was less than fourteen years before this action was begun.

It is plain that the statute of limitations has not applied as a bar to this action. Under the trust, the validity of which never has been, and is not now, questioned, Emeline O’Connor was not -to become entitled to one-fourth of the principal, but was entitled only to one-fourth of the income derived from the whole trust estate during life, and at her death one-fourth of the principal was to go to her issue, if she left any. _ If not, it remained a part of the trust estate, as hereinafter stated. Under such circumstances, the trustees could not, by any act of theirs, even with the consent of Mrs. O’Connor, vest her with the legal •or equitable title to any part of the trust estate. Besides, there is no evidence in the record that they, or any of them, ever attempted to set apart the bond and mortgage as part of her one-fourth interest in said trust estate. Since the judgment was entered in this action Mrs. O’Connor has died, leaving several children. It is clear, we think, that these facts constitute no defense to this action, and that the plaintiff is entitled to collect this mortgage as part of the assets of the trust estate, for the purposes of administration, and for distribution of the principal among the issue of such of the daughters as have died, or shall die, leaving issue.

The judgment should be affirmed, with costs.

Van Brunt, P. J., Follett and Parker, JJ., concur.


text:
    Caroline Amanda McCready, Resp’t, v. The Farmers’ Loan & Trust Company, Trustee, et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Trustee—Action tor accounting—Parties.
    Where a trustee resigns and thereafter brings an action for an accounting of her actions as trustee, against her successor, the executor of the will of her co-trustee, and defendant resigns as such executor, the administrator with the will annexed is a proper party to the action.
    Appeal from order denying motion made by William Whaley, as administrator, etc., to be made a party defendant.

      Charles A. Jackson, for app’lt; Seward, Guthrie & Morawetz. (Charles Steele, of counsel), for resp’t.
   Per Curiam.

October 8, 1887, Nathaniel L- McCready died, leaving a widow, the plaintiff in this action, and three children, one of whom was Louisine W. Whaley, the wife of William Whaley. McCready devised and bequeathed a certain portion of his property to trustees for the benefit of his daughter Louisine, the income arising from the use of which was to be paid to her during life: and the principal upon

her death was to be paid to such of her lineal descendants as she might, by her last will, appoint, or, in case of failure to appoint, to her issue. On the 21st of June, 1888, all of the trustees, except the plaintiff in this action and Louisine W. Whaley, resigned, and were discharged, by an order of the from the and thereafter the trust estate held by the plaintiff and said Louisine for the benefit of the lato-, They continued to act in this capacity until September 27, 1889, when the plaintiff resigned; and on the same day an order was entered discharging her from her position as such trustee, and thereupon the Farmers’ Loan & Trust Company was substituted as a trustee in the place and stead of this plaintiff. October 10, 1889, Louisine W. Whaley died, leaving an infant son, Francis Marion Whaley," who is a defendant in this action, and William Whaley, her husband. She left a last will and testament, by which she appointed her said son to receive the principal of the trust estate devised and bequeathed pursuant to the provisions of her father’s will. By her will she nominated her husband as the sole executor thereof. January 7, 1890, her will was probated, but letters testamentary were refused to Whaley; .and thereafter such letters were issued to the Farmers’ Loan & Trust Company, which was also appointed the guardian of the estate of the infant. April 18,1891, this action was begun for an accounting by the plaintiff of her actions as trustee of the trust estate. In November, 1892, the Farmers’ Loan & Trust Company resigned its position as administrator of Mrs. Whaley’s estate, and William Whaley was appointed administrator, with the will annexed, of the estate. In February, 1893, he moved for an order making him a party to-this action for an accounting, which motion was denied.

We think that the representative of a deceased co-trustee is a proper party to an action brought by a trustee for an accounting. Should any question arise whether there had been an improper administration of the estate by the trustees, it might be quite necessary to determine which of the trustees, as between themselves, was liable for the waste. In no other way could the representative of the co-trustee raise the question whether the trustee seeking for an accounting had misapplied any of the trust estate, or whether the devastavit, if any was committed, was the joint act of both trustees, or the act of one. In such an action the liability of all the trustees should be determined. It oftentimes happens that a devastavit has been committed under circumstances which render but one of them liable; and should it appear in, this action that the deceased co-trustee, Louisine Whaley, was liable for devastavit, a judgment should be rendered in accordance with the fact, and the amount of her liability charged against any sum which her representative is entitled to receive from the time of the last payment of income to her until her death. In no other way can a full and complete determination of the rights and liabilities of all the parties be had. The order should be reversed, with ten dollars costs and printing disbursements, and the motion granted, with ten dollars costs.

Van Brunt, E. J., Follett and Earker, JJ., concur.


author: Van Brunt, P. J.

text:
    Patrick J. Quinn et al., App’lts, v. Spencer Aldrich, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Contbact—Acceptance op obdeb—Dbawee’s liability.
    A person who has contracted to pay for the erection of a building in specified payments, and accepts an order drawn by the contractor, agreeing to pay it when a certain payment is due such contractor, is not liable in an action on the order in the absence of any proof that the contractor was entitled to the payment.
    2. Same.
    The mere fact that the acceptor had paid money to- the drawer on account of the specified payment, leaving enough due thereon to meet the order, does not justify the inference of fraud and is immaterial, he having a right to give the drawer any money he pleased and on what account he pleased.
    Appeal from judgment dismissing the complaint.

      A. C. Thomas, for app’lts ; W. B. Dall, for resp’t.
   Van Brunt, P. J.

The defendant had a building loan contract with one Vandewater, which provided for payments, fifteen in number, each in the sum of $10,000. Among the other payments provided for by said contract was the ninth payment, called the “ brown mortar, rough plumbing, boilers in, payment,” and the tenth payment, called the white mortar and iron stairs payment,” in the pleadings. The contract also provided that if the builder should proceed to and erect the buildings as in said contract agreed, and should produce to the defendant the certificate of W. J. Rider that the work thereon had progressed to the points in said contract mentioned, and that the same had been in all respects constructed as therein required, the defendant would advance to said Vandewater said loan, no instalment or part thereof being payable until forty-eight hours after the certificate of said Rider should have been furnished to defendant

It is also provided that if, at any time that said house should have progressed so far that an instalment of said loan was payable, there should be any lien thereon other than the lien of certain mortgages therein mentioned, the said instalment should not be advanced until said lien was removed, and also that the defendant might, at his option, advance money at other and different times than was specified, and when so advanced, the same should be considered as an advance upon the instalment or instalments next thereafter tó become due. It appears that Vandewater, on the 23d of March, 1890, gave to the plaintiffs an order upon the defendant to pay them $500 out of the ninth, or brown mortar, etc., payment, when said payment became due and payable. This order was presented to the defendant, who acknowledged its receipt, and returned the same, having had a copy made for himself ; the defendant stating that when Vandewater was entitled to the ninth payment he would reserve the said $500 out of said ninth payment, with which to pay the said order. The defendant paid to Vandewater, after notice of said order, on account of said ninth payment, sums amounting to $6,500, and also paid $500 on the tenth payment, and this action was brought to recover the $500 represented by said order.

It is urged upon the part of the appellants that the order in question was an assignment of the moneys thereafter to become due to Vandewater on the ninth, or brown mortar, payment, and constituted a first lien thereon. But it is insisted upon the part of the respondent that the plaintiffs, as equitable assignees of Yandewater, had no greater or other rights than their assignor. In considering the rights of the parties it may not be amiss to examine the terms of the acceptance of the order by the defendant, and also the claims which such order gave the plaintiffs upon the defehdant The agreement of the defendant was to pay when Yandewater was entitled to the ninth payment under the contract. It seems to be clear that there was no promise upon the part of the defendant to pay until the builder was entitled to the ninth payment according to the terms of the contract. There was no evidence that Yandewater was ever entitled to the ninth payment, he never having completed the preliminary steps to entitle him to such payment. The mere fact that the defendant chose to advance to Yandewater certain moneys on account of that ninth payment, leaving sufficient due thereon to meet the order given to the plaintiffs, does not justify the plaintiffs in claiming that they had been defrauded of any of their rights. They are only entitled to claim against the defendant when the builder is entitled to the ninth payment, and that has never been shown ; and it is entirely immaterial what arrangements the defendant and Yandewater made between themselves in reference to this payment. The defendant had a right to give Yandewater any money that he pleased, or as much as he pleased, or on what account he pleased. But when Yandewater or his assignee comes to claim, as a matter of right, money from the defendant, he must show that he has fulfilled his contract, and has done those things which the contract requires to be done, before he can insist upon such payment. This the plaintiffs have not done. They have not shown that the work was completed which entitled Yandewater to the ninth payment. Neither have they produced the required certificate.

As to the claim made by the plaintiffs that they are entitled to the first money paid upon the ninth payment, there seems to be no foundation therefor. They were to be paid when the ninth payment was due, and it is entirely immaterial whether it was the first or the last that they got. Until that whole payment was due they were not entitled to anything.

We think, therefore, that the learned court below was right in dismissing the complaint, as no causé of action was made out, and the judgment should be affirmed, with costs.

Eollett, J., concurs.


author: Lawrence, J.

text:
    In the Matter of the Petition for the Revocation of Letters of Administration, with the Will Annexed, on the Estate of Samuel Wood, Dec'd.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Administrator—Removal on ground of waste—Evidence—Sufficiency.
    An application for the removal of an administratrix, with the will annexed, on the ground of waste, in selling property for less than its value, is properly denied where the evidence as to the value of the property is conflicting.

      2. Same—Removal on ground of concealment to avoid service.
    Where the surrogate has had the matter of the will and the appointment of the administratrix frequently before him, and has been fully apprised of her acts, his order refusing to remove her on the ground that she has concealed herself so that process would not be served upon her will not be reversed unless such fact be clearly and sufficiently substantiated.
    Appeal from a decree or final order of the surrogate’s court,, which, after a trial, dismissed, denied, and finally determined a. special proceeding, having for its object the removal of the administratrix c. t. a., and the revocation of her letters testamentary.

      Julien T. Davies and Byron Traver, for app’lts; B. E. Valentine, for resp’t.
   Lawrence, J.

This is an appeal from an order or decree of the surrogate of the city and county of Mew York, denying the application of the appellants for a revocation of the letters of administration, with the will annexed, upon the estate of Samuel-Wood, deceased, theretofore issued to the respondent, Jennie-E. Wood. The application is made under § 2685 of the Code of Civil Procedure, and is based upon four grounds: (1) That she-has wasted the estate to which the appellants would be ultimately entitled; (2) that she is completely under the influence of an attorney for persons asserting large claims against the estate, and who was using the administratrix for his own ends and purposes; (3) that she had kept herself concealed, under the advice of such attorney, so that process could not be served upon her; and (4) her connivance at the commission of a fraud on the part of said attorney in securing an opinion on a question of law from this-court upon an agreed case.

The testator, Samuel Wood, died in 1878, leaving a will and. codicil, which were duly admitted to probate by the surrogate of the county of Mew York. He devised his residuary estate to his executors, in trust to invest and provide for the payment of' certain life annuities and legacies; and, second, to create and maintain a benevolent hospital. By the codicil it was provided that, instead of a hospital, the devise and bequest of the residuary estate should be applied to the founding of a musical institution to be known as and called “The Samuel Wood Musical College,.” or “The Samuel Wood College of Music of the city of Mew York.” The gift in trust for charitable uses was finally declared to be incapable of enforcement, and void, and, therefore, so much of the residuary estate as was directed to be applied to such uses-passed to Abraham Hewlett, the nephew of the testator, and his sole heir and next of kin. Two of the executors are dead, one was removed, and the letters to the fourth were revoked as having been improperly granted. In January, 1891, the office of executor under the will and codicil being vacant, .letters of administration cum testamento annexo were issued to the respondent, Jennie E. Wood.

The allegation of waste is based upon the fact that the administratrix sold a piece of land containing one and three quarter acres to one Mesbitt for §500, which it is claimed was far below the value of the property, and that, in consequence of its peculiar situation with reference to other portions of the property, it was largely increased in value. We deem it sufficient to say in regard to this allegation that, on the proceeding before the surrogate, affidavits were produced tending to show that the sum for which the property was sold by her was its fair and reasonable value. It is true that the affidavits produced; on the part of the appellants place the value of the property at a much greater sum, but in view of this conflict of evidence we do not think the appellants have made out such a case of improvidence against the administratrix as would justify her removal.

Neither do we consider that the appellants have made out that the administratrix is so thoroughly under the control of her attorney that she ought to be removed. The submission of the case of Wood v. Nesbit, 42 St. Rep., 778, to the general term was undoubtedly done under the advice of the attorney ; but we cannot say that that act was so improper on the part of the respondent as to lead us to deprive her of her office. The general term in that case decided that the attorney was in fact the counsel for both parties, and that the controversy was not of that character which the Code contemplates, and, therefore, it recalled the decision which it had rendered upon the submitted case. 47 St.Rep.34. The conduct of the attorney may have been improper, but it is not established that respondent knew, or had reason to believe, that there was any impropriety in the action which the attorney had taken.

As to the point that the letters issued to the respondent were improperly issued, we think that the appellants are not entitled to question the validity of those letters, in view of the decision of the surrogate, made upon the application of Joseph S. Wood, 17 N. Y. Sup., 354, who claimed a prior right to the administratrix to such letters.

In respect to the allegation that the administratrix has concealed herself so that process could not be served upon her, we do not find that fact sufficiently substantiated to warrant us in reversing the decision of the surrogate. The surrogate has had the matter of this will and the appointment of the respondent frequently before him, and has been fully apprised of her acts. After a full hearing of the allegations of the petitioners and the respondent, and argument thereon, he has declined to grant the prayer of the petitioners, and, although we have the right to examine this matter as res nova, we think that upon the whole case the decision of the surrogate should be confirmed.

Various technical exceptions to the procedure of the petitioners and the regularity of their practice are discussed in the brief submitted on the part of the respondent, which it is unnecessary, in the view we have taken of this case, for us to consider. We are, therefore, of opinion that the decree or order of the surrogate should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


author: Barrett, J.

text:
    In the Matter of the Probate of Last Will and Testament, and the Codicils thereto, of Mary A. Edson, Dec’d.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Will—Undue influence.
    Testatrix, by her will, directed that “ if for any reason any legacy or legacies left by this my will, either pecuniary or residuary, shall lapse or fail, I give and bequeath the amount thereof absolutely to the persons named as my executors. In the use of the same I am satisfied that they will follow what they believe to be my wishes. I impose, upon them, however, no conditions, leaving the same to them personally and absolutely, and without any limitation or restriction.” Held, that the fact that one of the executors drew the will and was the legal adviser and personal friend of the testatrix was insufficient to show undue influence, it appearing that testatrix was a person of very strong will and frequently refused business advice given her.
    Appeal from a decree of the surrogate’s court in the county of New York admitting to probate the last will and testament of Mary A. Edson.

      Evarts, Choate & Beaman (W. F. Peddrick, Treadwell Cleveland and Joseph H. Choate, of counsel), for app’lt; Fdward M. Shepard and David B. Ogden, for resp’t.
   Barrett, J.

The appellant makes no claim with regard to the formalities attending the execution of the will in question, nor is it contended that at the time of its execution the testatrix was of unsound mind. The sole question presented by this appeal is whether there was undue influence. The appellant concedes that there was no actual fraud, but he insists that the facts surrounding the preparation and execution of the will raise a presumption of undue influence. The fact mainly relied upon is that Mr. Parsons, the attorney who drew the will, is himself a legatee thereunder. It is not contended that this fact of itself raises a presumption of undue influence, nor could it be successfully contended. Post v. Mason, 91 N. Y., 539. The claim is that, coupling all the other facts with this central fact, the presumption is made out. This requires an examination of all the facts.

A previous will was made in the year 1884. It also was drawn "by Mr. Parsons. By this previous will Miss Edson gave to her sister Susan three equal fourth parts of her estate, together with the remainder of the other one-fourth part, after the payment therefrom of certain legacies. It also provided that if she should .survive her sister, the residue of her estate, after the payment of a number of legacies, should go to her brother, Marmont B. Edson. Simultaneously with the execution of this will Miss Susan Edson made a similar will, giving the testatrix three-fourths of her estate, and also the remaining one-fourth after the payment of certain legacies. Miss Susan Edson died in June, 1886. Her will was duly admitted to probate, and letters testamentary thereon were issued to Mr. Parsons and the testatrix; Mr. Parsons thereafter occasionally advised the testatrix about her business affairs and attended to her investments.

Ho change was made in Miss Mary Edson’s will until the 2d of Hay, 1890, when the will now contested was executed. Mr. Parsons drew this will. He was called in, and had his first, consultation with regard to it, on the 12th day of April, 1890. Miss Edson was then ill, and remained ill until the 29th of the following month, when she died. By this last will Mr. Parsons, Mr. John A. Bartow and Mr. Charles S. Fairchild were appointed executors, and numerous legacies were given. Miss Edson then gave one-third of the residue of her estate to these executors, in trust for the use and benefit of her brother, Marmont, for life, with power to him to appoint by will who should take the principal of such one-third upon his death. The remainder of her estate she gave as follows:

“All the rest, residue, and remainder of my estate I give and bequeath to my executors, to be divided by them among such incorporated religious, benevolent, and charitable societies of the-city of New York, and in such amounts, as shall be appointed by them, with the approval of my friend the Bev. Dr. William R. Huntington, if living. If for any reason any legacy or legacies left by this, my will, either pecuniary or residuary, shall lapse or fail, I give and bequeath the amount thereof absolutely to the pei’sons named as my executors. In the use of the same I am satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no condition, leaving the same to them personally and absolutely, and without any limitation or restriction.”

It is this last provision which is attacked by Mr. Marmont B. Edson, and which has led to the present contest. After the execution of this will Miss Edson executed three codicils, varying the legacies, but otherwise reaffirming the provisions of the will and in the second codicil, executed two days before her death, she repeats and reaffirms the above-quoted provision, and this second codicil is likewise attacked.

We have carefully considered all the evidence which was adduced before the learned surrogate, and we fail to find any circumstance bearing upon the central fact of the legacy to the three executors as individuals which raises a presumption of undue influence. On the contrary, the evidence is all the other way, and tends to dissipate even a suspicion of undue influence. It is true that Mr. Parsons was Miss Edson’s legal adviser and personal friend, but it is not true that she implicitly followed his advice. Miss Edson was possessed of a strong will. She was quite firm in following the bent of her own mind and judgment, and she was not-readily influenced. She sometimes rejected loans that Mr. Parsons had approved of and recommended to her. At one time head vised her to sign an agreement for the consolidation of the Edison Electric Light Company, in which she was interested as a stockholder, with three manufacturing companies. She did so,, but subsequently insisted, against his judgment, upon the withdrawal of her name. ■ She insisted upon remaining in the city and taking charge of her own affairs at times when he thought she-Would be better away, leaving her troubles to him. Upon another occasion he expressed a very decided opinion to both of the Misses. Edson against their holding electric company’s stock, but he was “given to understand that they would do as they chose to.” This unwillingness to accept advice cost them considerable money, atid the testatrix subsequently admitted to Mr. Parsons that “ if she had acted in accordance with the opinions” which he had expressed, she and her sister would have been saved much loss.”

Even when Miss Edson was upon her death-bed this strength of will was marked. When a change of medical treatment was-suggested, she said something to the effect that she was satisfied with the treatment, and that is all there is about it.” When, subsequently, the matter was pressed, she declined to change the treatment—that is, the school of medicine—though willing to change the practitioner. Her letter on the subject indicates the correctness of a remark made by Mr. Parsons to Mr. Marmont Edson, when the latter requested him to speak to Miss Edson about a change of treatment, to the effect that “ his sister would not permit anybody to volunteer suggestions or advice about her affairs,” and it also illustrates the force of Mr. Edson’s reply, that “ he had not the courage to make such suggestion to his sister.” That letter is underlined in many places, and it speaks emphatically of the patient’s will. “I shall be able,” she says, “ to be rid of Dr. Thompson and have a new doctor, but by no means to change the practice. * * * I will to-day study ‘ the papers,’ and try to have them ready for you when you are ready for them. * * * I feel it is best to choose as I have in my case. No-

more Dr. Thompson, but a new doctor, and, in my case, no allopathic treatment” Other illustrations might be given, but they aré unnecessary. The whole matter was well summed up by Dr. Peterson when he testified that “ she had a will of her own, and did just as she wanted to.”

This is not the case, therefore, of a confidential adviser imposing-his will upon a mind naturally weak, or upon a strong mind enfeebled by age or sickness. Miss Edson’s mind was clear and her will was strong until the' end; and Mr. Parsons’ relations with her were never of an especially close, constant or confidential character. There had, in fact, been no occasion for such relations. He had had little or no law business to transact for her. The legal work attendant upon her investments had been performed by others under his general direction. He had given advice, which sometimes was followed and sometimes was not He undoubtedly had her respect and esteem, her confidence, also, as a lawyer of integrity and good judgment; but there was nothing whatever in their relations to justify the presumption of any special influence.

Coming down to the actual facts with regard to the preparation of the will, we find none of the indicia of undue influence. The-testatrix was not secluded, nor was she surrounded by Mr. Parsons’ adherents. She was perfectly free to see and advise with whom she pleased. Mr. Parsons came when he was requested to come, and even then was not an especially frequent visitor. 3STor was there haste or about the execution of the-instrument. After consultation and instructions, a typewritten draft was sent to Miss Edson, and she, in her own handwriting, altered the provision for'her brother, Marmont, from one-half of the residue to one-third. The execution of the will and codicils was deliberate, and attended with all proper precautions. The testimony on this head is clear and conclusive. When the contestant desired information with regard to the will it was readily afforded him. He met Mr. Parsons at Miss Edson’s bedside, two days before she died, and then and there the will was read to him. This meeting was at Mr. Parsons’ own suggestion. Miss Edson produced a copy of the will from a bundle of papers that she kept under her pillow, and then Mr. Parsons read it, “ pausing [we quote from the testimony] at each paragraph, or at each provision, in the progress of the reading, there being conversations between the brother and the sister, and as to this or that provision, she asking whether he had anything to say, or was that right, or something of that kind, and so the reading was completed.” This interview lasted for an hour or two, and. it affords evidence, not only of the openness of the transaction, but of Miss Edson’s clearness of mind and strength of purpose down to within two days of her death. That this interview aroused no suspicion of undue influence in Mr. Edson’s mind is apparent from what followed. Later upon the same day he told Mr. Parsons that it would be very gratifying if his sister would give more legacy to his son, Jarvis. “I told him,” said Mr. Parsons in reply, “ that I could not make to her any suggestion about this testamentary provision ; that I had limited myself to answering the questions which she put to me, and that I should continue to do so; that, as he very well knew, she was not the sort of person whom any one would be likely to venture to make suggestions to; and he suggested himself, I think, at that interview, if not at that interview at the only other interview that I ever had with him, that they (referring to the members of his family) had found fault with him that he had not influenced his sister, and that he had responded to them that they knew perfectly well that his sister was not a person whom any one could influence.”

It should be observed that Mr. Edson was not examined as a witness in the surrogate’s court, and that the testimony of Mr. Parsons stands entirely uncontradicted. Mr. Parsons, however, promised that he would repeat to Miss Edson what he, Marmont Edson, had just said about his son, Jarvis; and the result was that upon the same evening Miss Edson executed the third codicil, in which she gave a legacy of $20,000 to Jarvis Edson.

We think that, upon all the evidence, the learned surrogate was fully justified in the statement that “the contestant’s case absolutely and totally fails. ” There is really nothing left of it save the mere fact that Mr. Parsons was one of the three executors to whom individually the residuary estate was bequeathed ; and that, under well-settled rules, was insufficient to create a presumption against the validity of-the legacy. Matter of Smith, 95 N. Y., 522; Loder v. Whelpley, 111 N. Y., 239 ; 19 St. Rep., 631; Parfitt v. Lawless, L. R., 2 Prob. & Div., 462. It was, at most, a suspicious circumstance. Such a circumstance “ is,” as was said by Baron Parks in Barry v. Butlin, 1 Curt. Ecc., 637, “ of more or less weight according to the facts of each particular case, and in some of no weight at all.”

Upon the surroundings of this case it was a circumstance of but little weight. If it aroused a suspicion at all, that suspicion was completely dissipated when all the facts were placed before the court. The decree of the surrogate should be affirmed, with costs.

"Van Brunt, P. J., and Eollett, J., concur.


author: Follett, J.

text:
    In the Matter of the Application of The Manhattan Railway Company, Pl’ff, v. John F. Stroub, Def't.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Condemnation pbooeedings—Stay on appeal, when not allowed.
    Where an appeal is taken from a judgment and order confirming award in proceedings under the “ Condemnation Act,” and the judgment is in favor of one who holds the fee to certain property and against one who held the same under a lease from a former owner, the proceedings will not be stayed pending appeal where the defendant tenders no bond for the damages resulting from such stay, and when it does not appear that plaintiff is not entirely able to make good all damages assessed.
    Application for stay of proceedings pending appeal,

      Davies, Short & Townsend for pl’ff; Edward C. Perkins, for def't.
   Follett, J.

In February, 1891, the plaintiff acquired the fee of the property affected by these proceedings. The defendant is in possession under a lease granted by a former owner for a term which expires May, 1897. These proceedings were begun June 23. 1892, and the defendant'filed and served his answer, as permitted by § 3365 of the Code of Civil Procedure. The issue so joined was tried at a special term, and an interlocutory judgment rendered adjudicating that the plaintiff had the right to acquire the land and easement described in the petition. Subsequently commissioners were appointed to appraise the damages sustained by the defendant, and they awarded $2,720. On the 5th of June, 1893, their award was confirmed by a special term, and an order of confirmation was duly entered. The defendant refused to receive the award, and it has been deposited, pursuant to the order, with the chamberlain of the city. The defendant has appealed to the general term from the interlocutory judgment and from all the orders granted in the proceedings, and now applies for a stay of all proceedings on the part of the plaintiff until the appeal is decided.

The view we take of the rights of these litigants renders it unnecessary to consider the question, much debated by the counsel for the respective parties, whether, under § 3375, the court has power to stay the plaintiff from entering into possession of the property condemned. The following is a copy of the section referred to:

“Appeal may be taken to the general term of the supreme court from the final order within the time provided for appeals from orders by title 4 of chapter 12 of this act; and all the provisions of such chapter relating to appeals to the general term from orders of the special term shall apply to such appeals. Such appeal will bring up for review all the proceedings subsequent to the judgment, but the judgment and proceedings antecedent thereto may be reviewed on such appeal, if the appellant states in his notice that the same will be brought up for review, and exceptions shall have been filed to the decision of the court or the referee, and a case, or a case and exceptions, shall have been made, settled and allowed, as required by the provisions of this act for the review of the trial of actions in the supreme court without a jury. The proceedings of the plaintiff shall not be stayed upon such an appeal, except by order of the court,, upon notice to him; and the appeal shall not affect his possession • of the property taken, and the appeal of a defendant shall not be heard except on his stipulation not to disturb such possession. ”

It will be observed that by this section, and also by § 3376, the proceedings on an appeal from a judgment are to be governed by the provisions of title 4 of chapter 12 of the Code of Civil Procedure, except in so far as they are modified by the provisions of chapter 23, of the condemnation act. The section quoted provides : “ The proceedings of the plaintiff shall not be stayed upon such an appeal, except by order of the court, upon notice to him.” This cuts off the absolute right of the appellant to a stay of proceedings pending the appeal, under § 1352, by simply giving an undertaking. The appellant’s right to a stay pending appeal is not an absolute one, but whether it shall be granted or refused rests in the discretion of the court, and must be determined by the circumstances of each case. In this case the plaintiff owns the fee of the land, the defendant having only a leasehold interest, of short duration. The right of the plaintiff to acquire the property has been determined "by a judgment, and the amount awarded has been deposited with the chamberlain. The record shows that the plaintiff has expended about $250,000 on the improvement which the acquisition of this property is necessary to make available. The defendant does not tender a bond to pay the damages which will be caused by a stay in case his appeal shall be finally determined against him, and it may be doubtful whether an undertaking indemnifying against such consequences could be procured It is not asserted that the plaintiff is not abundantly able to respond in any sum by which the damages may be increased in case a rehearing is ordered. The Code provides that any additional sum awarded shall be a lien on the land taken, which, with the sum deposited, would seem to be an ample protection to defendant. If it shall be finally determined that the plaintiff is not entitled to acquire the property, it is liable for the damages, and, as before stated, it is not asserted that it is not entirely able to 1 make the damages good. Without" discussing or determining the question of power, we think the application must be denied, with ten dollars costs. ,

O’Brien" and Parker, JJ., concur.


text:
    Roger M. Sherman, App’lt, v. Irving Grinnell et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    False imprisonment—Variance between pleading and proof.
    In an action for false imprisonment the complaint alleged that defendants, under the color of authority of an execution issued against the person of plaintiff, which they illegally issued upon a certain judgment against him and in their favor, maliciously, unlawfully, and without legal authority assaulted the plaintiff, arrested him and detained and unlawfully deprived him of his liberty for the space of six months thereafter. Held, that plaintiff could introduce in evidence an execution which recited that a judgment was obtained against him on the date alleged in the complaint by the defendants, “ executors,” together with proof of the handwriting of one of the defendants upon such execution, and with testimony that it was the execution' under which the plaintiff was arrested.
    (Follett, J., dissents.)
    Appeal from judgment in favor of defendants entered on verdict directed by the court.

      Joseph A. Thompson (James M. Smith, of counsel), for app’lt; Evarts, Choate & Beaman (W. V. Rowe and Joseph H. Choate, of counsel), for resp’ts.
   Van Brunt, P. J.

This action was brought to recover damages for false imprisonment, the claim being that the plaintiff was taken into custody under an execution unlawfully issued at the instance of the defendants. The difficulties into which the plaintiff has fallen have arisen entirely from the fact that he has alleged much more than was necessary for the proper setting forth of his cause of action, but such surplusage in no way affected the force of the proof attempted to be offered, and which was excluded. The complaint alleged, among other things, that on the 27th of February, 1889, the defendants, under the color of authority of an execution issued against the person of this plaintiff, which they illegally issued to the sheriff of the county of New York upon said judgment (judgment having been previously referred to) at the city of New York, maliciously, unlawfully and without legal authority assaulted the plaintiff, arrested this plaintiff, and detained and unlawfully deprived him of his liberty for the space of six months thereafter. This was the gravamen of the complaint; and,- in order to prove this allegation, the plaintiff offered in evidence an execution, wherein it was recited that a judgment had been obtained on the 23d of February, 1886, in an action in the city court between Irving Grinnell and J. S. Bowdoin, executors, plaintiffs, and Roger M. Sherman, defendant, in favor of said Grinnell and Bowdoin against the said Sherman for the sum therein stated, etc., together with proof of the handwriting of the defendant Harden upon such execution, and with testimony that it was the execution under which the plaintiff was arrested. This execution was objected to upon the ground that it appeared upon its face that it was not an execution such as was complained of in the complaint, but in a wholly different action, by different persons, not at all identical with the defendants in thi-s suit, or any of them. The court thereupon excluded the execution. We think this objection was entirely untenable. The allegation in the complaint was that on the 27th of February, 1889, the plaintiff was arrested under an execution issued upon a judgment obtained in favor of the defendants Grrinnell and Bowdoin on the 23d of February, 1886, which is precisely the judgment described in the execution in question. The introduction of the word “executors” in the execution, in the manner in which it is introduced, was entirely surplusage, and meant nothing. The judgment is not recited to have been obtained by them as executors, but they are simply stated to be executors; of what or of whom there is no statement. The plaintiff had a right to introduce this paper in evidence for the purpose of showing the connection of the defendants with this arrest, and then it became necessary, for the defendants to justify the issuing of the execution by showing the existence of a proper judgment as a foundation therefor; but in the very commencement of the proof the evidence of the plaintiff is shut out by which he sought to connect these defendants with the act of the sheriff. This, we think, was error which calls for a reversal of the judgment. It is difficult to see upon what theory the defendants Grinnell and Bowdoin could be sued as executors for a wrong, if any, committed against the plaintiff, even if they did the wrong in the administration of the estate. It is a well-settled principle that for all acts of executors they are liable individually, and not in their representative capacity: and, therefore, even if the process was issued in their name as executors and was improperly issued, they would be individually liable only for the wrong.

Certain other evidence was attempted to be offered upon the part of the plaintiff which was excluded, and the court thereupon directed a verdict for the defendants, and granted the exorbitant allowance of $1,000. We cannot see upon what theorjr the court directed a verdict in favor of the defendants, because for failure of proof the most that could have been done under such circumstances was to dismiss the complaint The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event

Babbett, J., concurs;- Follett, J., dissents.


author: Follett, J. Van Brunt, P. J.

text:
    Jose F. J. Xiques, App’lt, v. The Bradstreet Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Mercantile agencies—Liability for false reports.
    A corporation organized for the purpose of collecting and disseminating information in respect to the financial standing of persons engaged in business, which stipulates in its contract with its customers “ that said company shall not be liable for any loss or injury caused by the neglect or other act of any officer or agent of the company in procuring, collecting and communicating said information,” cannot be held liable for the consequences of misinformation, unless it is so grossly negligent in acquiring or communicating it that its conduct, in effect, amounts to fraud.
    2. Same—Negligence.
    Plaintiff, a customer of defendant company, asked for a report in respect to H. B., grocer, 63 Grand River avenue, Detroit, Mich. Defendant’s reply related to H. B., grocer and saloon, 573 Russell street, Detroit, Mich., whom it reported as good. Plaintiff, without further inquiry, shipped certain goods to H. B., 63 Grand street, and not receiving pay therefor, sued defendant for their value. On the trial no evidence was offered tending to show that the defendant did not make proper inquiries of its correspondents at Detroit. Held, that defendant was not guilty of such gross negligence as would render it liable.
    3. Same.
    In such case, plaintiff was guilty of contributory negligence in shipping his goods to the Grand River street man without making further inquiry.
    Appeal from the judgment of nonsuit on a verdict directed for defendant, and from an order denying plaintiff’s motion for a new trial.

      Benjamin G. Hitchings, for app’lt; John H. Bird, for resp’t.
   Follett, J.

This action was brought to recover damages occasioned by the alleged negligent performance of a contract entered into between the parties. Since 1884 the plaintiff has been a manufacturer and dealer in cigars in the city of New York. In 1876 the defendant was incorporated under the laws of the state-of Connecticut for the purpose of 'conducting a mercantile agency and collecting and disseminating information in respect to the standing and condition of persons engaged in business within the United States and dominion of Canada. In the course of its business, the defendant for many years has published printed volumes containing the names of persons, firms and corporations engaged in business, the kind of business in which engaged, and their place of business, and also showing their supposed financial standing and business reputation., The defendant, in the course of its business, delivers a copy of this book to every one of its subscribers. On the 12th of January, 1885, the litigants entered into a written contract, of which the following is a copy:

“ (129) Original. For the Bradstreet Company.
“ The undersigned hereby employs the Bradstreet Company, from January 12, 1885, to January 12, 1886, to procure, to the best of its ability, information concerning the responsibility and character of mercantile persons inquired for within the states represented in the volumes loaned, said inquiries not to exceed 50, except as hereinafter agreed. And in consideration of such service, including the loan of the January, 1885, -:—, 188-, July, 1885, and-, 188-, volumes of its U. S. and Canada ¡Reports, the undersigned hereby agrees to pay the Bradstreet Company one hundred dollars. Pay $50 now and $50 1st July, ’85, at the commencement of the said subscription term; and for each inquiry exceeding the 50 before mentioned, thirty-three and one-third cents, on demand. And it is further expressly agreed by the undersigned that all information, whether printed, written or verbal, furnished by the Bradstreet Company to the undersigned, shall be held in strict confidence, and shall never be revealed to the persons reported; that the undersigned will neither ask for information for the use of other parties, nor permit it to be done; that the said company shall not be liable for any loss or injury caused by the neglect or other act of any officer or agent of the company in procuring, collecting and communicating said information; that the said company does not guaranty the correctness of the aforesaid information ; and that the said volumes to be loaned, as aforesaid, shall be returned to the company, without notice from it, upon the receipt by the undersigned of any subsequent edition of its books, or at the expiration of the subscription term; it being understood and agreed that the company reserves the right to reject, or, upon the return of a pro rata sum of the amount paid, to cancel, this subscription, and recall the volumes. The conditions of this subscription, as set forth above, embody and merge all the agreements and understandings heretofore made or had with said company, or its agent or agents acting in its behalf, either verbal or written. J. F. J. Xiques.
“Street address: 376 Canal St.
“Dated at Jany. 12th, New York, 188-. P. O. Box-.
“Enter here place at and date when signed.”
The volume delivered to the plaintiff contains the following:
“Herman Brinker, Grocer, Detroit, Michigan. W. D.”

The letters “ W. D.” indicate that Brinker was estimated to be worth two or three thousand dollars, and that his credit was fair. A copy of the above contract was inclosed to the plaintiff in a letter, of which the following is a copy:

“Executive Offices, New York, Dec. 31, 1886. Established 1849. Charles F. Clark, Pres. Edward F. Randolph, Treas. Capital & Surplus exceed $1,500,000. The Bradstreet Company. Executive Offices, 279, 281, 283 Broadway.
“New York, Dec. 31, 1888.
“ Mr. J. F. J. Xiques, New York, N. Y.: We are to-day in receipt of your subscription, and having entered its details on our ledger, beg to hand you herewith a verbatim copy of same, that there may be no misunderstanding on your part as to its terms and conditions. We shall spare no efforts to furnish you information promptly in reply to your inquiries, and shall, in return, require at your hands a full recognition of our rights as set forth in the contract Yours, very truly,
“ Charles F. Clark, President.”

In September, 1885, the plaintiff received two letters, of which the following are copies:

“ Office of Herman Brinker, 263 Grand River Ave.
“Detroit, Michigan, Sept. 19, 1885.
“Mr. Jose F. J. Xiques, New York—Dear Sir: Please send me by express samples of your manufacture ranging in prices from $25 to $35, and from $45 to $65. Should you keep imported Havana segars, please quote the prices, and, if convenient, send also a few samples. Yery respectfully,
H. Brinker.”
Office of Herman Brinker, 63 Grand River Ave.
“Detroit, Michigan, Sept. 28, 1885.
“Mr. J. F. J. Xiques, Hew York—Dear Sir: Yours of Sept. 25th received, and would be pleased to see samples of domestic and imported cigars. Domestic to range in prices from $25 to $35, and $55 to $75, and imported up to about $150 per mille. Please send per American express.
“Very respectfully yours, H. Brinker.”

Shortly after the reception of the last letter the plaintiff sent samples of cigars, of the value of $63.17, addressed to “Herman Brinker, 63 Grand River Avenue, Detroit.” Afterwards the plaintiff received the following letter and order:

“ Office of Herman Brinker, 63 Grand River Ave.
“ Detroit, Michigan, Oct. 5, 1885.
“Mr. J. F. J. Xiques, Hew York—Dear Sir: Yours of the 1st inst. and samples at hand, and send you inclosed an order for 5 milles imp. cigars. Please ship same per Blue Line fast freight, via Canada Southern. Some of the domestics, that you sent me I think will take here, and will see what can be done with them. Please send me samples of your Picadura Cheroot, and I have no doubt that I can handle it satisfactorily if the price is not too high and goods acceptable. You did not quote price for them. If I should introduce the brand, I would, as a matter of course, expect to have sole control of same for Detroit and vicinity, as per your proposal.
“ Expecting to hear from you,
1C v ery respectfully, H. Brinker.”
“ Office of Herman Brinker, 63 Grand River AVe.
“ Detroit, Michigan, Oct. 5, 1885.
“ Order, per fast freight, Blue Line, via Canada Southern :
2 milles Fanita Medianos 77
1 “ “ Bouquets 115
1 “ Carolita Conch. Esp. 91
1 “ “ Reg. Reina Ex. 105
“ Please select medium colors. ”

On the 7th of October, 1885, the plaintiff sent the following inquiry to the defendant:

“ Bradstreet’s. Hos. 279, 281, 283 Broadway.
“Hew York, Oct. 7, 1885.
“ Give us in confidence, for our exclusive use and benefit in our business, as per contract, the results of your investigations concerning-the character, standing, responsibility, etc., of
Hame.................................... Herman Brinker.
Business.......................................... Grocer.
Street and Ho.......................... 63 Grand River Ave.
City (or P. 0. Address).............................Detroit.
County..................................................
State...........................................Michigan.
“ J. F. J. XlQUES, Subscriber,
“ 192 B’way, P. 0. Address.
“ No information will be furnished except upon the proper filling up of this blank, and the signature of the subscriber.”

Stamped on face:

“Western Department, New York, Oct. 14, 1885.
“Rec. 3, 22, 82.”

To this inquiry the defendant replied as follows:

“ Brinker, Herman. Grocer & Saloon. Detroit, Michigan. 573 Russell, cor. Ohio.

“ Additional:

“ Has continued doing quite fairly since last report, and has been making steady headway. • Property has also grown some in value, and he is now estimated worth three to $5,00.0. Reported as a cash buyer here in most instances, but would be granted a moderate line if he asked it. Is spoken of as a German of very fair character, etc.
“60. 10-21-1885. 27-3. Y. D. Oct. 12, 1885.”

Indorsed as follows:

N. Y. 10-14, 1885.

“ To J. F. J. Ñiques-: The correctness of this report is not

guarantied, but, having been obtained by us in good faith, from authorities deemed reliable, it is transmitted to you in strict confidence, for your exclusive use and benefit, and in accordance with the terms of the contract existing between us.

“ Respectfully, The Bradstreet Company.”

October 15, 1885, the plaintiff shipped 5,000 cigars, pursuant to the foregoing order, of the value of $455, via the Canada Southern Blue Line, addressed to “ Herman Brinker, 63 Grand River avenue, Detroit, Michigan,” which were delivered on the 19th of the same month to some person calling himself Herman Brinker, at No. 163 Grand River avenue. The cigars were not paid for, and, Brinker not making any reply to the plaintiff’s letters, the latter addressed the following inquiry to the defendant.

“ Bradstreet’s, Nos. 279, 281, 283 Broadway.

“ New York, Dec. 10, 1885.

“ Give us in confidence, for our exclusive use and benefit in our business, as per contract, the results of your investigations concerning the character, standing, responsibility, etc., of

Name....................................Herman Brinker.

Business...........................................Cigars.

Street and No....................63 or 263 Grand River Ave.

City (or P. 0. Address).............____..... Detroit.

County.....................................

State..... ........................ .. Mich.

“ J. F. J. Xiques, Subscriber,

“ 192 B’way. P. 0. Address.

“No infoi’mation will be furnished except upon the proper filling up of this blank, and the signature of the subscriber.”

Stamped on face:

“ Western Department, New York, Dec. 18, 1885. “ Crefc 12-10-85.”
To this inquiry the defendant made the following reply:
(20)
“Brinker, Herman. Cigars, etc. Detroit, Mich. 63, 163 or 263 Grand River Ave.
“ No such party can be found at any of the numbers given above. Neither is there such a number as 597 Russell street. The only person of above name known here is at 573 Russell street, corner Ohio.
“ Dec. 16, 1885.”

Indorsed on back:

“New York,-, 18—.
“ To-: The correctness of this report is not guarantied,
but, having been obtained by us in good faith, from authorities deemed reliable, it is transmitted to you in strict confidence, for your exclusive use and benefit, and in accordance with the terms of the contract existing between us.
“Respectfully, The Bradsteeet Company.”

On the 18th of December, the plaintiff inquired of the defendant : “ Have you any further reports of Herman Brinker, 63

Grand River Avenue, Detroit, Michigan ? ” To this inquiry the defendant made the following reply:

“7.

“ Brinker, H. Cigars. Michigan, Detroit. 163 Grand River Ave.

“ Upon a close investigation of this case it is found that such a party, who is described as a light-complexioned man, aged-about 35 or seven years, rented a small space in front room at' above location during the latter part of September last of Geo. R. McDonald, who occupies the place as a plumbing shop and dwelling, at a rental of $2 per month. He paid his rent as agreed upon, but said very little about himself, except that he admitted that he was a married man, and claimed to be making $10 or more a day. No information was, however, volunteered as to his previous abiding place or business. Was in and out every day or so, looking for mail or other matter, and replenishing his satchel from the occasional packages of goods which came to the store for him, the last one of which he emptied about six weeks ago, since which time nothing has been seen or heard of him. He left no directions as to his mail matter either with McD. or with P. 0. authorities. The Cartage Co. who delivered the goods looked for him first at No. 63 Grand River, the mdse, having been billed out to that number, but, not finding him, were referred to the one above. The different packages were receipted for and charges paid by Mrs. McDonald at B.’s request, he having exhibited bills ‘of lading to the Cartage Co., who eventually got his acknowledgment on all. of the receipts except the last one, in which instance they deemed to have neglected the matter. The last delivered to the above address was one case of cigars via. Blue Line, way bill 3351, Canada Southern Line. Car No. 15,099. Left N. Y. October 16th, arrived here October 20th, and was delivered same day. A comparison of signature on copy of letter inclosed with that of Herman Brinker, 573 Russell street, shows no similarity. Over 200 of these were carefully examined at his bank, where a savings account has been kept ever since 1876. Aside from this, he is not a man who would become a party to any such transaction as above named.

“ Dec. 24, 1885.

■“ 60, 12-24-1885. 27-3. Pass.”

Indorsed:

•‘N. Y. Dec. 28, 1885.
“ To J. F. J. Xiques: The correctness of this report is not
guarantied, but, having been obtained by us in good faith, from authorities deemed reliable, it is transmitted to you in strict confidence, for your exclusive use and benefit, and in accordance with the terms of the contract existing between us.
“ Respectfully, The Bradstreet Compahy.”

This action was brought to recover the value of the samples first shipped, and of the cigars shipped pursuant to the order of October 5,1885. On the trial the plaintiff failed to show that he made any inquiry of the defendant before the shipment of the samples, and he abandoned all claim to recover on account of them. The gravas•men of the complaint is that “ the defendant, without any investigation or inquiry, and without having any knowledge or information concerning any man of the name inquired after, carelessly and negligently reported that Herman Brinker of Russell street was worthy of credit.” It is to be observed that by the terms of the contract entered into between the litigants it was expressly stipulated “ that said company shall not be liable for any loss or injury ■caused by the neglect or other act of any officer or agent of the .company in procuring, collecting and communicating said information.” Under this stipulation the defendant cannot be held liable for the consequences of misinformation, unless it is so grossly negligent in acquiring or communicating it that its conduct in effect amounts to a fraud.

The first question presented for consideration is, was the evidence sufficient to raise an issue of fact for the jury as to whether the defendant was grossly negligent in answering the plaintiff’s inquiry ? The plaintiff, by his letter of October 7th, asked for •a report in respect to Herman Brinker, grocer, 63 Grand River avenue, Detroit. The defendant’s reply of October 12th related to Herman Brinker, grocer and saloon, 573 Russell, corner Ohio, Detroit, Michigan. The letters written to the plaintiff by Brinker do not purport to come from a person engaged in business as a grocer, nor, indeed, do they show that the writer was engaged in any business other than as a dealer in cigars. The communication of the defendant did not purport to relate to Herman Brinker of 63 Grand Biver avenue, but distinctly referred to Herman Brinker, a grocer, engaged in business at 573 Bussell street. The plaintiff offered no evidence tending to show that the defendant did not make proper inquiries of its correspondents at Detroit, and the allegation in the complaint that it did not was entirely unsupported by the evidence. It is very plain upon the face of the defendant’s communication that it did not assume to give any information in regard to the financial standing of Herman Brinker of 63 Grand Biver avenue; and, the plaintiff having failed to show that the defendant did not make inquiries, we are unable to see how it can be1 successfully maintained that he established that the defendant was. negligent either in the inquiry which it made or in communicating the information.

The nature of the business in which the defendant is engaged' is such that reliable information as to the wealth and integrity of persons engaged in business.cannot be guarantied. Dealers are often honestly mistaken as to their own financial situations, and the means of others for learning their exact condition are limited,, and often uncertain. If the truth could in all cases be learned and reported, those giving credit would seldom, if ever, sustain a loss. All that can be demanded of such a corporation is that, it shall make due and diligent inquiries, and furnish the results to its customers. It seems to us that the evidence in this case shows that the defendant made such inquiry in respect to the business standing of the person inquired after, and. failing to find the person described engaged in business at the place designated by the plaintiff’s letter, made a report about another person, engaged in a similar business at another place in the same city. The defendant did not guaranty that the person reported was the person inquired after, which appears upon the face of the communications which it sent to the plaintiff.

Did the plaintiff, by his negligence, contribute to the loss of his goods ? After having received the defendant’s communication, which related solely to the person doing business at Ho. 573 Bussell street, without making further inquiries, he shipped his goods to a person of the same name, purporting to be engaged in business at Ho. 63 Grand Biver avenue. The evidence shows that a man by the name of Herman Brinker was at the time engaged in business at Ho. 573 Russell street; that he was in good credit, worth from three to five thousand dollars, and that the information furnished in respect to this person was correct. Whatever of negligence there was in the case was the plaintiff’s, in shipping goods to a person at a street and number about whom no information had been given by the defendant. The plaintiff having received reliable information in respect to the standing of Herman Brinker, of Bussell street, negligently shipped his goods to a Herman Brinlcer, of 163 Grand Biver avenue, at which place no person by that name was engaged in business. They were delivered by the carrier to some person who called himself Herman Brinker. at Ho. 163 Grand Biver avenue. This negligence was the cause of the plaintiff’s loss. We think that the trial court correctly ruled that there was no question of fact for the jury.

The judgment should be affirmed, with costs.

Van Brunt, P. J.

I concur. There was no attempt to fur-any as to a man on avenue. It was a man doing business at 573 Bussell street, corner Ohio, that was reported upon, and no goods were sent to him.

Parker, J., concurs.


author: Parker, J.

text:
    In the Matter of Opening Beach Avenue.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)
    Highways—Dedication—Evidence sufficient to support claim.
    In proceedings by the city of New York to acquire the fee of Beach avenue; which ""it claimed had been dedicated to the public by the executors of the deceased owner, the city in support of its claim introduced two conveyances by the executors, in which Beach avenue was made one of the boundaries of the lots conveyed, and in which reference was made to a map on which Beach avenue was laid out. At the time the conveyances were made, Beach avenue, with other lands, was inclosed by a fence, and leased to a tenant for pasturage, and remained inclosed down to the time when these proceedings were instituted. It appeared from the conveyances that no part of Beach avenue was intended to be conveyed, and the grantors, as well as the attorney who drafted the deeds, testified that the purpose in so describing the lands was to prevent any possible contention that there was an intention to dedicate the lands to the public. The map was not a public one and represented the fences as they existed when the conveyances were made. Held, that there was not sufficient evidence to show a dedication of the avenue.
    Appeal by the city from an order setting aside the report of the commissioners of estimate and assessment.

      T. Connoly, for app’lt; G. P. Hawes, for resp’t.
   Parker, J.

The city of Hew York by this proceeding seeks to acquire the fee of a certain piece of land commonly called “Beach street.” Commissioners of estimate and assessment were by the special term appointed, who, after taking evidence and hearing counsel, decided not to award to the owner of the fee of such land its value, but to allow nominal damages only. Such determination was based on the conclusion reached by the commissioners that the respondents here, who are the executors and trustees under the last will and testament of John McConville, who died seised of the premises, dedicated the same to the public, to be used as a street. A motion was thereupon made at a special term of this court to confirm the report and award of the commissioners, resulting in an order setting aside the report, and referring the matter back to the commissioners for revision and correction, with a direction that the commissioners award to the owners of Beach avenue the value of the property.

This decision, we think, was required by the evidence, but, in 4 the view which we have taken, it is unnecessary to consider one of the propositions discussed by the learned judge at special term, relating to the power of the executors and trustees under the will to dedicate to the public for street purposes any portion of the land devised, for the evidence fully justifies the conclusion that the executors and trustees did not attempt nor intend to dedicate Beach avenue to the public. The land in controversy, called “ Beach Avenue,” extended from 149th street to Kelly street. The evidence presented by the city for the purpose of showing a dedication consisted mainly of two conveyances by the executors, in which Beach avenue was made one of the boundaries of the lots conveyed, and in which reference was made to a map on which Beach avenue was laid out. It may be observed that none of the parties assessed have filed objections or appeared on this appeal; therefore no question of estoppel is presented as between grantor or grantee, and we have only to consider the bearing which this evidence has on the question of dedication for public use. The conveyances were made in January and February, 1890. At that time Beach avenue, with other lands devised by the will, was inclosed by a fence, and leased to a tenant for pasturage purposes; the lease containing a condition that the fences should be maintained as then existing, and they have been so continued substantially down to the time when these proceedings were instituted. One of the lots conveyed fronted on Kelly street, its westerly boundary being the easterly side of Beach avenue. The other conveyance was of a lot fronting on 149 th street, the easterly side of Beach avenue being its westerly boundary. Thus it ■appears from the deeds that no part of Beach avenue was intended to be conveyed; and the grantors, as well as the attorney who drafted the deeds, testified that the purpose in so describing the lands was to prevent any possible contention that there was an intention to dedicate the lands to the public, bio conveyance was made of any lot on Beach avenue between the lots already referred to, which fronted, as we have observed, one on 149th street, and the other on Kelly street. *

The map referred to in the deeds was not a public map, and on it was represented the stone walls and fences as they actually existed at the time of the execution of the deeds. The deeds and map, considered in connection with the manner in which the property was fenced and used, and the conduct of the grantors in respect thereto, compel the conclusion that the executors did not intend to offer to dedicate the land to the public; nor were their acts of such a nature as to warrant a finding of constructive dedication. But if it could be found either that the executors intended to dedicate the land, or that their acts were of such a character as to estop them from insisting that they did not so intend, there would yet be lacking an element essential to a complete dedication—the element of acceptance. Until the offer of the owner to dedicate his land for a public use be accepted, the dedication is not complete. At any time prior to such acceptance he may revoke his offer. The acceptance may be actual •or implied.-

It is actual when the public authorities having charge of the subject by some formal act or in terms accept it. It is not pretended here that such action was taken by the officers of the city. Acceptance is implied when the public use it so generally, and for such a length of time, that an interruption of such use would result in great inconvenience. In this case it cannot be said that there was such use by the public. Until 1890, at least, it was fenced. It has never been thrown open for use, nor generally, if, at all, used. The leading witness for the city was not quite sure that there was even a wagon track there. Indeed, there is no evidence that even one team was ever driven from Kelly street to-One Hundred and Forty-ninth street, through Peach avenue. The order should be affirmed, with the costs and printing disbursements.

O’Brien and Follett, JJ., concur.