text:
    PHILIP S. BALDWIN and GARDNER J. WALKER, Appellants, v. HARRY L. ISHAM and Others, Respondents, Impleaded, etc.

      Trust fund — right of a cestui que trust to agree to accept possession of land, on which the trustee holds a mortgage, instead of the interest on such mortgage — how fa/r such an agreement can be rescinded, so as to prejudice rights acquired by thvrd persons as judgment creditors of the cestui que trust.

    Appeal from a judgment in favor of tlie defendants, entered upon the report of a referee.
    The action was brought to foreclose a mortgage.
    The plaintiffs held $3,000 in trust to pay the interest to Myra E. Wilson during her life; the principal to go to her heirs, at- her death. She desired to buy a farm. Accordingly an arrangement was made, by which she bought the farm, paying some $500 of her own money, and the plaintiffs lent to her the $3,000, taking from her a bond and mortgage on the farm. The condition of the bond and mortgage was, in substance, that the use and occupation of the farm should be taken as the payment of interest on the mortgage, during her life; that at her death the heirs might accept a discharge of the mortgage as payment of the principal; or the trustees would foreclose and make the principal by sale of the premises. She entered into, and still remains in, possession of the farm. Her equity of redemption in the land, however, has since been sold on execution by judgment-creditors. The plaintiffs now bring-this action to foreclose the mortgage. „
    The court at General Term said: “ It is evident that nothing is yet payable on the bond and mortgage. The interest has been paid by the occupation of the land by Myra E. Wilson. She is the only person interested in the income of the trust, and she has consented to accept the occupation of the land as an equivalent for the payment of the income. So long as she has the occupation of the land therefor, the interest on the mortgage is paid.
    “Nor is the principal payable. That was not payable until her death. The plaintiffs insist that they are foreclosing by her wish. That is very possible. But others have acquired rights in the equity of redemption. And they are parties here and defend.

      “ The plaintiffs fall into the error of supposing that the land is the trust property, and therefore that these judgment creditors can have acquired no right to it. But the plaintiffs do not hold the land at all.. They only hold a mortgage thereon. The equity of redemption '(as it is usually called) or, to speak more accurately, the fee subject to the mortgage, is in Myra E. Wilson, and not in the plaintiffs. She can dispose of that, and it can be sold for her debts; leaving, however, the bond and mortgage, which is all that the plaintiffs have, untouched. The eases therefore do not apply, which are cited by the plaintiffs’ counsel, as to the rights of a cestm que trust, and as to the inability of a cestui que trust to assign or transfer his interests.
    “We have no need to inquire as to what the rights of the parties would be should Myra E. Wilson ever cease during her life to occupy the premises.”
    The judgment should be affirmed, with costs against plaintiffs personally.

      Geo. L. Clark, for the appellants.

      G. II. Beckwith, for the respondents.
   Opinion by

Learned, P. J.

Present — Learned, P. L, Osborn and Rumsey, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Rumsey, J.

license: Public Domain

text:
    NELSON POWERS, Respondent, v. THE VILLAGE OF WEST TROY, Appellant.

      Evidence — what declarations are admissible as apa/rt of the res gestae.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The plaintiff alleged that a cutter in which he was riding through the streets of West Troy was overturned by reason of a defect in the street, and that he was thrown out and injured; for the damages thus sustained he sued and recovered a verdict at the circuit.
    On the trial a witness swore that immediately after the accident, and just as they got back into the cutter, plaintiff said that he was badly hurt. To this evidence defendant’s counsel objected. Ilis objection was overruled and he excepted.
    The court at General Term said: “We think the evidence was properly admitted. It was in no sense a narrative of a past transaction, but was a statement of the present condition of the plaintiff, made at a time when it was fairly to be inferred that such condition was the effect of the overturn, and without opportunity for reflection or concoction.
    Such declarations are always admissible as part of the res gestee. (Whar. Ev., §§ 262, 263; Brownell v. Pac. R. R. Co., 47 Mo., 240; Abb. Trial Ev., 587.)”

      John PL. Gleason and R. W. Peckham, for the appellant.

      A. D. Lyon and Matthew Hale, for the respondent.
   Opinion by

Rumsey, J.

Learned, P. J., concurred; Osborn, J., taking no part.

Judgment affirmed, with costs.


author: Boardman, J.

text:
    Agnes Tinkey, Respondent, v. Charles A. Langdon, Appellant.

   Order reversed, with ten dollars costs and printing disbursements, and motion denied with ten dollars costs. Opinion by

Boardman, J.


text:
    Peter Callaghan, Respondent, v. Rome and Watertown Railroad Company, Appellant.
   Judgment and" order reversed. New trial granted, costs to abide event. Opinion by

Boardman, J.


author: Bockes, J.

text:
    In the Matter of the Application of the New York, Lackawanna and Western Railway Company to acquire real estate of the Junction Canal and Railroad Company.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Bockes, J.


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

text:
    First National Bank of Elmira, Respondent, v. John L. Patterson and others, Appellants.

   Order denying motion to set aside, etc., reversed, with ten dollars costs and printing disbursements, and motion granted with ten dollars costs. Order directing judgment reversed, with ten dollars costs and printing disbursements. Opinion by

Boardman, J.; Learned, P. J.,

dissenting.


author: Learned, P. J.

text:
    Isabella Mitchell, Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.


text:
    Marcus L Snyder, Appellant, v. The Canal Railroad Company, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Boardman, J.


text:
    Melissa Whiton, Administratrix, etc., Appellant, v. J. Harrison Snyder, Respondent.

   Judgment affirmed on opinion of referee, with costs.


text:
    Thomas Johnston, Respondent, v. Elias Mitchell, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.


author: Board-man, J.

text:
    Henry W. Winne v. The Niagara Fire Insurance Company.
   Judgment and order affirmed, with costs. Opinion by

Board-man, J.


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

text:
    Alexander Gilland, Respondent, v. Edwin R. Lawrence, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J., and by Bockes, J.,

dissenting.


text:
    Henry Gray, Respondent, v. The Grand Trunk Railway Company of Canada, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.


text:
    Isaac J. St. John, Respondent, v. William Youmans, Appellant, Impleaded, etc.

   Judgment and order affirmed, with costs. Opinion by

Boardman, J.


author: Learned, P. J.;

text:
    Riley Read, Appellant, v. The Erie Railway Company and others, Respondents.
   Judgment affirmed, with costs to respondents Wheeler, Griffis, Terwilliger and Pettingill against appellant. Opinion by

Learned, P. J.;

Bockes, J., not acting.


author: Bockes, J.;

text:
    Mary O’Day, as Administratrix, etc., Respondent, v. The Syracuse, Binghamton and New York Railroad Company, Appellant.

   Order affirmed, with costs. Opinion by

Bockes, J.;

Learned, P. J., not acting.


text:
    Burton G. Morse, Appellant, v. Jansen Hasbrouck and others, Respondents.

   Judgment affirmed, with costs; order affirmed, with ten dollars costs and printing disbursements. Opinion by

Boardman, J.


text:
    Joseph B. Shumway, Executor, etc., Appellant, v. William Graves and others, Respondents.

   Hecree of surrogate reversed and case sent to surrogate for accounting, in accordance with opinion. Opinion by

Boardman, J.


text:
    Harrison Wells, Appellant, v. William W. Thompson and others, Respondents, Impleaded, etc.

   Motion for new trial denied, and judgment for defendant on nonsuit. Opinion by

Bockes, J.


text:
    Franklin C. Cornell, as Administrator, etc., Respondent, v. The Utica, Ithaca and Elmira Railroad Company and others, Appellants.

   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Learned, P. J.;

Boardman, J., not acting.


text:
    Charity Finkle, Appellant, v. Isaac N. Collier, Respondent.

   Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. Opinion by

Bockes, J.


text:
    John M. Carroll, as Executor, and Mary A. Carroll, as Executrix, etc., Respondents, v. Henry A. Deimel and Mary Deimel, Appellants, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


author: Learned, P. J., and Boardman, J.;

text:
    The Board of Supervisors of Saratoga County, Respondent, v. Andrew Seabury and others, Appellants.

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

Learned, P. J., and Boardman, J.;

Bockes, J., not acting.


text:
    Anna E. Blackman v. Arthur Holmes and others.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    The People of the State of New York ex rel. William D. Veeder v. Henry Creble and others, Respondents.

   Order affirmed, with ten dollars costs and printing disbursements on opinion of Special Term.

Learned, P. J., not acting.


author: Boardman, J.;

text:
    Daniel W. Ford, Respondent, v. The Union National Bank of Albany, Appellant.

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

Boardman, J.;

Learned, P. J., not acting.


text:
    Cornelius A. Van Wagenen and Maria A. Elliot, Respondents, v. Thomas Botsford, Appellant.

   Judgment reversed; new trial granted; referee discharged, costs to abide eveut. Opinion by

Learned, P. J.


text:
    David P. Barringer, Appellant, v. The Delaware and Hudson Canal Company, Respondent.

   Judgment affirmed, with costs. Opinion by

Boardman, J.;

Learned, P. J., not acting.


text:
    William J. Turck and Nelson H. Burhans, Respondents, v. Thomas G. Southard, Appellant.

   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Bockes, J.


text:
    Charles A. Dake, Respondent, v. Frederick A. Brandy, Appellant.
   Judgment affirmed on opinion of county judge.


text:
    George B. Cluett and others, Respondents, v. The Rochester German Insurance Company, Appellant.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    In the Matter of the Mercantile Trust Company.
   Matter referred to A. Y. De "Witt to inquire and report. Order to be settled by

Bockes, J.


text:
    James W. Whitford, Respondent, v. Thomas Laidler, Appellant.

   Motion for leave to go to Court of Appeals granted and cause certified.


text:
    Job G. Viall and William Johnson, Respondents, v. Elizabeth Dater, Appellant, Impleaded, etc.

   Motion for reargument granted.


text:
    Levy Ely, Respondent, v. Hiram W. Bardin, Appellant.

   —Motion for leave to go to the Court of Appeals ana for reargument denied, with ten dollars costs.


text:
    James C. Rogers, as Administrator, etc., Appellant, v. Charles B. Guy and Wallace Elliot, Respondents.

   Motion for reargument denied, with ten dollars costs.


text:
    John Calhoun, Respondent, v. James D. Hallen, Appellant.
   Motion for leave to go to Court of Appeals and for reargument and to modify order denied, with ten dollars costs.


text:
    Casper J. Hallenbeck, Respondent, v. John P. Collier, Appellant.

   Motion for reargument denied, with ten dollars costs.


text:
    Catharine Stewart and Daniel Carmichael, Respondents, v. Richard H. Mitchell and others, Appellants.

   Order affirmed, with ten dollars costs and printing disbursements.


text:
    S. Visscher Talcott, Respondent, v. Abraham Van Vechten, Appellant.

   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Orlando P. Mixter, Respondent, v. Elvira J. Mixter, as Executrix, etc., Appellant.

   Judgment affirmed. Opinion by

Rumsey, J.


text:
    Norris G. Woodward, as Overseer, etc., v. George Straat. Same v. Abner Hobart. Same v. Joseph Maplethorp.
   Order in each of the three cases affirmed, with ten dollars costs and printing disbursements.


text:
    Nicholas Sigsbee, Appellant, v. Benjamin E. Smith and others, Respondents.

   —Judgment on demurrer reversed with costs, and

demurrer overruled with costs, with leave to answer over in twenty days on payment of costs. Opinion by

Learned, P. J.


text:
    William J. McKie v. Grace Quinlan.
   Decree reversed, with costs against respondent, and issues ordered to be tried at Sullivan Circuit. Ordered to be settled by Learned, P. J. Opinion by

Learned, P. J.


text:
    The People of the State of New York, Respondents, v. Julia Coffee, Appellant.

   Order affirmed.


text:
    Olin S. Luffman, Respondent, v. Robert T. Hoy, Appellant.

   Judgment reversed on question of law and fact; referee discharged ; costs to abide event. Opinion by

Learned, P. J.


text:
    Henry Thompson and Andrew J. Merithew, as Trustees, etc., Appellants, v. Barzillai Hodskin and Archibald Huntress, Respondents.

   Judgment affirmed, with costs against plaintiffs personally. Opinion by

Learned, P. J.


text:
    William Youmans, Appellant, v. McKendrie N. Dodge and Augustus Dodge, Respondents.

   Judgment reversed; new trial granted ; referee discharged; costs to abide event.


author: Osborn, J.

text:
    John F. Putnam, Respondent, v. Morris Cohn, Appellant.

   Judgment affirmed, with costs. Opinion by

Osborn, J.


author: Rumsey, J Learned, P. J.,

text:
    Lewis W. Wilson and others, Executors, etc., Appellants, v. Henry R. Reynolds and others, Respondents.

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

Rumsey, J Learned, P. J.,

concurred in result.


text:
    Allen Salsburgh and William Salsburgh, Appellants, v. Peter Hynds, Respondent.

   -Judgment affirmed, with costs. Opinion by

Learned, P. J.;

Osborn, J., not acting.


text:
    Oscar B. Arnold, Respondent, v. Sarah W. Wood, as Executrix, etc., and individually, Appellant.

   Judgment affirmed, with costs. Opinion by

Osborn, J.


text:
    Hugh Connaughty, Appellant, v. Cornelius Newton and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Osborn, J.


text:
    Hamilton Groff, Respondent, v. Henry Flander, Appellant.

   Judgment reversed,' new trial granted, costs to abide event. Opinion by

Learned, P. J.


text:
    William Gleason, Supervisor, etc., Respondent, v. William Youmans, Appellant.

   Motion for leave to go to the Court of Appeals denied, with ten dollars costs.


text:
    Samuel Law, Respondent, v. Luther McDonald, Appellant.

   Motion for leave to go to Court of Appeals or for reargument denied, with ten dollars costs.


text:
    Lewis Brownell and others, Appellants, v. The National Bank of Gloversville and others, Respondents.

   Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. Opinion by

Rumsey, J.


text:
    Catharine Kane, Respondent, v. Ansel K. Prentice and Catharine Prentice, Appellants.

   Order affirmed, with ten dollars costs and printing disbursements against appellants. Opinion by

Learned, P. J.


text:
    Daniel S. Gardner, Respondent, v. Edwin R. Meade, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Olive Knickerbocker, Respondent, v. Butler Vincent and others, Appellants.

   So much of the judgment and order as gives costs personally against certain defendants reversed, otherwise judgment, including extra allowance, affirmed, without costs to either party.


text:
    Charles B. Miller, Appellant, v. Samuel Root, Respondent.

   Judgment affirmed, with ten dollars costs against appellant.


text:
    Edward Hart, Respondent, v. Luther Roper, Appellant.

   Judgment affirmed, with costs.


author: Barnard, P. J.:

text:
    THE NASSAU GAS LIGHT COMPANY, Appellant, v. THE CITY OF BROOKLYN and JAMES TANNER, Collector of Taxes, etc, Respondents.

      Manufacturing corporations — what corporations are entitled to exemption from the taxes imposed hy cJiapter 542 of 1880.
    A gas company organized under chapter 87 of the Laws of 1848, for the purpose of manufacturing and supplying gas, is entitled to the exemption from the taxes imposed hy chapter 842 of 1880, created hy the third section thereof in favor of “manufacturing corporations carrying on manufactures within this State.”
    The legislature did not intend hy these words to limit the exemption to corporations organized under the general manufacturing act (chap. 40 of 1848), and the acts amendatory thereof.
    Appeal from a judgment dismissing the complaint, entered upon the trial of this action by the court without a jury.
    This action was brought to restrain the collection of a tax assessed by the board of assessors of the city of Brooklyn upon the capital stock and personal property of the plaintiff in August, 1880.
    The plaintiff is a corporation organized under the act entitled “An act for the formation of gas-light companies,” passed February 16, 1848, and claims that it is, therefore, not within the class of corporations excepted from the operation of the act entitled “An act to provide for raising taxes for the use of the State upon certain corporations, joint stock companies and associations,” passed June 1, 1880, and that being liable to pay taxes to the State under such act is, by its terms, exempt from-local taxation.

      Charles J. Lowrey, for the appellant.

      William O. De Witt, for the respondents.
   Barnard, P. J.:

The plaintiff is a manufacturing company within the meaning of the exemption contained in section 3 of chapter 54-2 of Laws of 1880. Gas companies are organized under a general act (chap. 87, Laws of 1848) “ for the purpose of manufacturing and supplying gas for lighting,” etc. Subsequently and in the same year the legislature also passed a general act (chap. 40, Laws of 1848) authorizing the formation of companies “ for the purpose of carrying on any kind of manufacturing, mining, mechanical and chemical business.” The words of the exemption in section 3 of the Laws of 1880, “manufacturing corporations carrying on manufactures within this State,” the legislature clearly did not intend by these words to limit the exemption to corporations organized under the manufacturing incorporation act, so called. (Chap. 40 of Laws of 1848.)

A foreign corporation carrying on manufactures in this State would be included in the exemption, and be exempted from the operation of the act of 1880.

The title of the act of 1848, and the purpose for which corporations are authorized by it, include other than manufacturing corporations. The gas act, by its terms, indicates that these corporations were properly manufacturing corporations. The purpose of the corporation is stated in the act to be the manufacture and sale of gas. There' is no reason why the exemption in question should only apply to corporations incorporated under any particular act. The act does not say so. The ordinary meaning of the word used comprehends the making of gas.

The judgment should be affirmed, with costs.

Dtkman, J., concurred; Gilbert, J., not sitting.

Judgment affirmed, with costs.


author: Barnard, P. J. :

text:
    PHILIP R. UNDERHILL, Respondent, v. TIMOTHY S. CRENNAN and MARY J. CRENNAN, his Wife, Appellants, Impleaded, etc.

      Satisfaction of mortgage — when an action will lie to heme it set aside and the mortgage re-established.

    The piaintifE who held two mortgages upon property of the defendant, one for $3,000 and one for $700, canceled and satisfied the same and included the amount due thereon in a new mortgage for $4,000. This new mortgage having been adjudged void for usury, in an action brought to foreclose it, in which an answer was interposed by the defendant setting up that defense, the plaintiff brought this action to have the certificates of the satisfaction of the two prior mortgages set aside and the mortgages declared valid and subsisting liens upon the land.

      Held, that the action could be maintained.
    Appeal from a judgment, entered upon the trial of this action at a Special Term, ordering the cancellation on the record of certain certificates of satisfaction of two several mortgages of real estate, executed by the defendants, Orennan and wife, to the plaintiff, and adjudging the said mortgages to be good and valid liens to secure the sums named therein with interest, and ordering the defendants to deliver the said mortgages, and the bonds secured thereby, to the plaintiff or his attorney.

      Martin J. Keogh, for the appellants.

      Francis LarJcin, for the respondent.
   Barnard, P. J. :

The plaintiff held two mortgages against the defendant Orennan, one for $2,000 and one of $700. These mortgages were canceled, and the amount due upon them entered into a new loan of $4,000. Usury was taken upon this loan of $4,000. The mortgage has been adjudged a nullity at the instance and upon the answer of the mortgagor. This action is brought to set aside the certificates of satisfaction of the two mortgages amounting to $2,700. It was admitted upon the trial that the two mortgages for which the said certificates of satisfaction were given wTent to make part of the consideration for the giving the $4,000 mortgage referred to in the complaint. The judgment restored the mortgages canceled. It has been repeatedly held that a valid claim is not invalidated by being embraced in an usurious security. (Winsted Bank v. Webb, 39 N. Y., 325 ; Cook v. Barnes, 36 id., 520; Real Estate Trust Co. v. Keech, 69 id., 248; Crippen v. Heermance, 9 Paige, 211.)

A mortgage security avoided for usury revives the good debt, and the satisfaction of the good debt will be set aside and the canceled mortgage enforced (Gerwig v. Sitterly, 56 N. Y., 214), and the canceled debt has been held to have passed with the assignment of the usurious mortgage which embraced it. If the case of Lafarge v. Herter (9 N. Y., 241) can be said to conflict with this principle, it conflicts with antecedent and subsequent cases. It does not, however, conflict with the principle on which this case rests. In that case the creditor held an usurious mortgage which embraced a good judgment. "While he so held the mortgage he proceeded to enforce the judgment. The court held that he could not prove his own usury to avoid the satisfaction of a prior demand. In this case the usurious mortgage was canceled at the suit of the debtor; and in such a case clearly the old debt may be enforced. (Patterson v. Birdsall, 64 N. Y., 294.)

Judgment affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    JOHN H. SIMONSON, as the Executor, etc., of BENJAMIN SIMONSON, Deceased, Respondent, v. MICHAEL A. FALIHEE, Appellant, Impleaded, etc.

      Error of county cleric in recording a release — when the mortgagee is not affected thereby — an assignee has no better title than had Ms assignor.

    The plaintiff, wlio was the owner of a mortgage covering land belonging to one Sparks, agreed to and did release a portion thereof from the lien of the mortgage. By an error of the county clerk the instrument, as recorded, released the part intended to be retained, and retained the part intended to be released. Thereafter Sparks gave a mortgage upon the part released by the record, but in fact retained, to one Falihee, who had notice of the plaintiff’s rights. Subsequently, and while the release was so recorded, Falihee assigned his mortgage to one Dowdney, who had no notice of the plaintiff’s lien.

      Held, that the plaintiff was not affected by the error of the clerk or concluded by the record, and that as against Dowdney, who acquired no better title to the Falihee mortgage than his assignor had, the plaintiff’s mortgage was entitled to priority.
    Appear from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to foreclose a mortgage given by one Hannah Sparks in September, 1861, to one "Wheaton upon the purchase from him of certain land in Westchester county. Subsequently the mortgage was, by various mesne conveyances, transferred to the plaintiff, the assignment to him being dated June 24, 1871, but not recorded until May 13, 1879.
    In December, 1873, the plaintiff, on the application of Mrs. Sparks, represented by her husband, agreeu to release from this mortgage all of the mortgaged premises except the house, barn, outbuildings and the five acres of land upon which the buildings stand, i. e., the premises described in the complaint herein. Mr. Sparks had the release prepared according to the agreement of the parties and took it to the plaintiff to have it executed. The plaintiff’s assignment not having been recorded he had the release executed by his assignor Jane A. Simonson, the assignment to whom had been recorded. After its execution the plaintiff deliverea the release to Mr. Sparks, who had it recorded on January 23,1874. In 1874, Mr. Sparks, acting for his wife, told Falihee that the plaintiff had a mortgage for about $2,100 or $2,200 on the house, buildings and five acres on which the buildings stood (being the premises in question, and that being the amount due on plaintiff’s mortgage), and that Mrs. Sparks had also ten acres of unimproved land adjoining, which was free and clear and that he (Falihee) might have a second mortgage on the buildings and five acres, or a first mortgage on the] ten acres as he pleased. Falihee after going to Pelham and examining the property took a second mortgage for $2,500 on the five acres and buildings. About August 12, 1876, Falihee assigned his mortgage to Abraham Dowdney, and in the assignment guaranteed the payment of the mortgage debt. Dowdney thereafter foreclosed the mortgage and the premises were bid in by a son of Falihee.
    The releasing part of the release above spoken of was in the following words, to wit:
    “ Doth grant, release, quit-claim and set over unto the said party of the second part all the said mortgaged land, except so much thereof as is bounded and described as follows,” etc. (Then follows a description of the premises excepted from the release.)
    The register in recording it omitted by mistake the word “ except” so that the record read:
    “ Doth grant, release, quit-claim and set over unto the Said party of the second part all the said mortgaged land, so much thereof as is bounded and described as follows.”

      John F. Gray, for the appellant.

      Mills <& Wood, for the respondent.
   Barnard, P. J.:

In December, 1873, Benjamin A. Simonson was the owner of a bond and mortgage upon premises in Westchester county. The mortgage originally had been given by one Hannah Sparks and husband to Wheaton for the purchase of the land. On the 23d of December, 1873, Simonson released a portion of the mortgaged premises to Mrs. Sparks. The release was so worded that the whole ínort^aged premises were released, except a certain particularly described portion therein. The release was recorded by mistake, omitting the word “ except,” whereby the premises designed to be released were not so released by the record, and that portion designed to be retained was released. Michael Falihee took a mortgage on the piece intended to be in fact not released. He had notice of the prior mortgage. Sparks offered him his election to take a first mortgage upon the part really released, or a second on the part really retained subject to the mortgage. As to Falihee he took with notice, and his assignees took no more rights than he had unless they are aided by the recording acts. Falihee assigned his mortgage to one Dowdny. Dowdny foreclosed it and Michael A. Falihee bought the premises in at the sale by Michael Falihee, as Ms attorney. When Dowdny bought Falihee’s mortgage the release was erroneously recorded. The mistake was discovered before the foreclosure sale. The case, therefore, presents the sole question: Did the sale of the mortgage by Falihee, who had notice of the priority of the Simonson mortgage to Dowdny, who had no notice, transfer the right to Dowdny to hold his mortgage superior to the Simonson mortgage % I think it did not. In the first place there is-no proof that either Falihee or Dowdny were deceived by the record, or that they either examined it before they took the mortgage. In the next place it has been repeatedly held by the Court of Appeals that an assignee of a mortgage takes the mortgage subject to all latent equities which existed against the assignor at the time of the transfer. This rule is not relaxed by the fact that the assignee took without notice of the defense to the mortgage and paid full value for the security. (Trustee, etc., v. Wheeler, 61 N. Y., 98; Viele v. Judson, 82 id., 38; Westbrook v. Gleason, 7 id., 30.) The record did not bind Simonson. He did not have it recorded. He is not to be deprived of his property by a failure of the clerk to record the release properly. Falihee is the subsequent purchaser or incumbrancer, and it was his duty to see to it that his title or conveyance was first “ duly recorded.” If Sparks was the purchaser he was to record it properly. The record of the release was complete when it was left with the clerk for record. (1 R. S., 760.) There are several decisions under a statute substantially similar to ours that in the absence of fraud or collusion the party is not responsible for the error of the clerk.

In the present case Simonson gave a good release, and his connection with it terminated there. Somebody made a mistake in the record to his injury. The record in such a case is not conclusive against him. He may show the mistake. (1 R. S., 759 ; Wilsey v. Dennis, 44 Barb., 359.)

The judgment should be affirmed, with costs.

Gilbert, J., concurred.

Present — Barnard, P. J.; Gilbert and Pratt, JJ.

Judgment affirmed, with costs.


text:
    PATRICK DELANEY, Respondent, v. MARY McCORMICK, MARGARET FOX, PATRICK HARNETT, ELLEN LYONS, CATHARINE HARNETT, JOHN W. WALKER, ANNIE WALKER, Appellants, Impleaded, etc.
    Will— bequest to “ next of Mn ”— when the testator’s son is not included in — at what period the next of Mn are to be ascertained— when the court will appoint a trustee to execute a power of sale.

    October 29, 1886, Jobn Walsh died leaving his widow, one son, James, and nephews and nieces. By his will he gave to his son the rents, issues and profits of his real estate during his natural life, and in case he married and had issue, then and thereupon he gave to him all his real estate absolutely. The fifth clause of the will provided as follows: “ In case of the death of my said son James without ever having had any lawful issue, I desire my executors who shall then be surviving me, or the last survivor, to sell all my real estate, and to distribute the proceeds thereof amongst my next of kin as personal estate, according to the laws of the State of New York for the distribution of intestate personal estate,” it further authorized his surviving executors or executor to sell the real estate for that purpose. The son survived his mother and died without ever having married or had issue.

      Held, that the son was not intended to take as one of the “ next of kin ” under the fifth clause of the will.
    That those who were the testator’s next of kin at the time of the son’s death were entitled to the proceeds of the sale of the real estate.
    That, as all the executors had died during the life of the son, the court had power to appoint a trustee to execute the power of sale.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the trial of this action at Special Term.
    The action was brought to procure a construction of the will of John Walsh, deceased.
    John Walsh died in the city of New York on the 29th day of October, 1836. Eliza Walsh, his widow, his son James Walsh and nephews and nieces survived him. He left a will and codicil which were admitted to probate by the surrogate of New York in November, 1836. Provision, in lieu of dower, was made for the widow from both the real and personal estate, and all the rest of the personalty was given to James Walsh, the son.
    The clauses of the will relating to the real estate, and the only ones on which there is any controversy, are as follows :

      “Thirdly.— I give, devise and bequeath unto my said son James, during his natural life, all the rents, issues and profits of my real estate; and in case he marries and has lawful issue, then and in the last mentioned event, and thereupon, I give, devise and bequeath to my said son all and singular my real estate, whatsoever and wheresoever, to have and to hold the same to my said son, his heirs and assigns forever.
    “Fifthly.— In case of the death of my said sOn James, without ever having had any lawful issue, I desire my executors who shall then be surviving, or the last survivor, to sell all my real estate,, and to distribute the proceeds thereof amongst my next of kin, as /personal estate, according to the laws of the State of New York -for the distribution of intestate personal estate, and for that purpose I authorize my said surviving executors, or the last survivor, to execute good', valid and sufficient conveyances in the law to transfer said estate and vest the same in the purchaser and purchasers in fee simple.”
    Mrs. Walsh, the son James Walsh, and Tighe Davey were named as executors. Both Mrs. Walsh and Davey died before James Walsh. The latter died in August, 1880, never having married or had lawful issue. A trustee was appointed herein by the court below to carry into effect the unexecuted provisions of the will.

      LuTce F. CoBcms and J. Woolsey Shepard, for the appellants Walker.

      John W. Goff, for the appellants McCormick, Fox, Harnett and Lyons.

      John G. McGuvre, for the respondent.
   Barnard, P. J.:

The fifth clause of the will could not have been framed so as to pass the proceeds of the real estate to the next of kin of the testator, who was such at testator’s death. That would pass the estate to the testator’s son, James, who was .then the sole next of kin. I agree with the appellants that such is not the true construction of the will. James was given a life estate in the real estate in question, with, a devise absolute if he should “have lawful issue.” It is only in ease of the death of James without “having had any lawful issue ” that the executors were directed to sell the land and distribute it as personal estate. Certainly the testator did not intend to give the whole remainder of the estate to James, as vested at the testator's death, and the time of the full possession postponed until after James Walsh’s own death. The appellants claim the true intention of the testator to be drawn from this clause is that the will speaks of the testator’s next of kin at his own death, excluding James. A great many authorities are cited showing that under words similiar to those in the fifth clause a legacy vested at the death of testator. The question is an exceedingly troublesome one, and the decisions upon the subject of when vesting takes place are many and not easily reconciled. In this case I think the will intends to name only those of the next of .kin of the testator as were living at the death of the son James. There is no illegal trust made in the land. James had a life estate subject to an annuity to his mother. This life estate might become a fee in the lifetime of James. It was land, therefore, until James died, with a direction to turn the same then into personal property in case the life estate had not become a fee. The phrase “ among my next of kin ” means the next of kin existing at the time of the creation of the fund, which was then for the first time in a condition to pass to next of kin. If this is the correct conclusion, then it is clear that the court had power to execute the power of sale provided for in the will. The executors who had the power were dead. The execution of the power devolved upon a court of equity. It is never permitted that a valid trust shall fail of execution for the want of a trustee.

The judgment should be affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment affirmed, with costs.


text:
    HELEN L. HALL, Appellant, v. JOHN P. BROOKS, Respondent.

      Warrant of attachment— examination of a person refusing to give to the sheriff a certificate as to property of the debtor in his possession — power of the court to compel him to deliver to the sheriff property admitted to be under his control. ,

    Upon an examination of one Brooks, ordered under section 651 of the Code of Civil Procedure, because of his refusal to furnish the sheriff with a certificate stating the amount, nature and description of property in his possession belonging to the defendant, against whom a warrant of attachment had been issued, it appeared that Brooks had at the time of the issue of the warrant a note belonging to the defendant secured by a mortgage, which had been put by Brooks in the safe of another person and there locked up

      Held, that the court should make an order requiring Brooks to deliver the note and mortgage to the sheriff.
    Appeal from an order made at a Special Term denying a motion for an order requiring Mr. Clark Brooks to deliver to the sheriff certain property of the defendant, against whom a warrant of attachment had been issued in this action.

      Henry G. Atwater, for the appellant.
    ■ Clark Brooks and James H. Steers, Jr., for the respondent.

       See ante, page 441.

   Barnard, P. J.:

By section 649 of the Code of Civil Procedure it is provided hat a levy by attachment upon personal property capable of manual' delivery must be made by taking the same into the sheriff’s actual custody.

By section 650 it is provided that a person holding property belonging to the defendant in the attachment suit “ must furnish to the sheriff a certificate ” specifying the amount, nature and description of the property held for the benefit of the defendant.”

By section 651, in case of a refusal to give the certificate the court may order an examination of the person refusing, before a referee. Clark Brooks had been the attorney of defendant. At the time of the issuing of the attachment he had in his possession and under bis control a note secured by a mortgage belonging to defendant. It was locked up in the safe of one Yan Ylaekj having been put there by Clark Brooks. The sheriff asked him for the note and for the certificate, and Clark Brooks refused both. There was no real denial by Clark Brooks on his examination before the referee that he had the note and mortgage and refused to give up to the sheriff the note or a certificate that he held it for the benefit of defendant. • Clark Brooks now claims that the sheriff made no levy under section 649, because he did not take the property in question into his actual possession; that under section 650 no power is given beyond a power to examine the person refusing to give up property or to give certificate. This does not seem to be the intention of the section in question. The sheriff could not levy on defendant’s property locked up in the Yan Ylack safe, and it would not aid him to have the person who had it locked up admit that fact, if there was no further remedy. By section 655, the sheriff is empowered, in his own name, or in the name of the defendant, to maintain any action or special proceeding to reduce to his actual possession property capable of manual delivery, “ but of which he has been unable to obtain possession.” This seems to cover this case. If this section is to be held to mean only attached property then the sheriff cannot levy on the note, because Clark Brooks has it locked up. ' He can examine Clark Brooks, and he cannot either get an order for the property or sue for it. This does not seem to be the trae meaning of the Code. The order should be reversed, and an order granted that Clark Brooks deliver over the note and mortgage to the sheriff.

Gilbert and Dykman, JJ., concurred.

Order reversed and motion granted that Clark Brooks deliver over the note and mortgage to the sheriff, with costs and disbursements on appeal and upon the motion.


author: Barnard, P. J.: Gilbert, J.:

text:
    In the Matter of the Administration of the Goods, etc., of BENJAMIN CURSER, Deceased.

      Married women— right of, to administer — Ohap. 782 of 1867.
    When a mother dies leaving two daughters as her next of ldn, one of whom is married and the other unmarried, it is error for the surrogate to grant letters of administration to the unmarried daughter upon her own application without giving notice of the application to her sister. (Gilbert, J., dissenting.)
    Since the passage of chapter 782 of 1867, married women are, in respect to the right to administer, to he treated as single women.
    Appeal from an order of the surrogate of Westchester county, denying an application for the revocation of letters of administration granted to the respondent.
    On the 27th of April, 1881, the appellant, a married daughter of deceased, filed a petition praying that letters of administration be granted jointly to her and respondent, an unmarried daughter of deceased; and a citation was issued returnable May 11, 1881. On the 7th of May, 1881, a petition was filed by the respondent, praying that letters of administration be granted to her. On the 9th of May, 1881, letters of administration were granted to her, she having taken the oath and filed her bond. No notice of the application was given to the appellant. On the 11th of May, 1881, upon the return of the citation of the appellant, the surrogate denied her petition for joint administration, on the ground that letters had been granted to respondent, she having duly qualified.
    On May 13, 1881, the appellant, by petition, prayed that the letters granted to the respondent be revoked. On May 27, 1881, after hearing counsel on both sides, the surrogate made and entered an order denying this last petition, from which this appeal is taken.

      Glose <& Robertson, for S. Cecilia Baxter, appellant.

      Isaac H. Goolc, for Martha E. Yarian,- respondent.
   Barnard, P. J.:

By section 2 of chapter 782 of the Laws of 1867, it is enacted that “married women are hereby declared to be capable of acting as executrixes and administratrixes and guardians of minor's and of receiving letters testamentary and of administration or of guard-ship as though they were single women.”

These words repeal that part of the Revised Statutes which give a preference to unmanned women over married women in the order to which they are entitled to administration. (R. S., § 28, tit. 2, chap. 6, part 2; 2 R. S., 74.) Married women now, m respect to right to administer, are to be treated as single women. The words are not alone to be treated as dispensing with the consent of the husband theretofore required, but they necessarily import a removal of all disability upon the right to administration by reason of being married. The two sisters being in equal degree of kindred it was erroneous for the surrogate to grant letters to the unmarried daughter alone and without notice to the appellant, and his order refusing to vacate the letters and issue joint letters to the two sisters, should be reversed, with costs.

Hykman, J., concurred.

Gilbert, J.:

I dissent, the surrogate had a discretion to appoint one or both.

Order of surrogate reversed, with costs.


text:
    JEREMIAH WINTRINGHAM, as Receiver, etc., Respondent, v. JOSEPH ROSENTHAL, Appellant.

      Stock — right to compel a purchase of shares, to pay the amount unpaid thereon.

    One Brown having subscribed for 500 shares of the capital stock of a bank, subsequently transferred fifty of them to the defendant, who took them in payment of a pre-existing debt, supposing them to be fully paid up, Brown thereafter paid forty per cent upon the shares as calls were made, and the defendant received the dividends thereon.
    In an action brought by the receiver of the bank to recover the amount still remaining unpaid upon the shares of stock, held, that the defendant was not liable for the same.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought by the plaintiff, as receiver of the Loaners’ Bank of the city of New York, to recover the amount unpaid upon certain, shares of its capital stock owned by the defendant.
    On June 6, 1870, one Edgar F. Brown subscribed for all the stock of the bank. In December of that year he sold and assigned to the defendant fifty shares of the stock, on account of a larger indebtedness then due from Brown to him. The defendant, purchased the stock as paid-up stock, and had no knowledge that it was not paid up. Thereafter Brown paid forty per cent upon the stock so transferred as called for by the bank. This action was brought to recover the balance remaining unpaid thereon. The plaintiff had been appointed receiver in proceedings instituted against the bank by creditors, who alleged that it was insolvent.

      Nelson Smith, for the appellant.

      Erastus New, for the respondent.
   Barnard, P. J.:

This action is one brought under the statute to make stockholders liable for debts of a corporation. It is simply an action depending upon a contract alleged to have existed between the bank and the defendant. One Edgar E. Brown subscribed for 500 shares of the capital stock of the bank. The par value was $50,000. He sold $5,000 to defendant in payment of an old debt he owed to defendant, defendant supposed it was full paid stock. It was transferred to defendant, and Brown subsequently paid forty per cent to the bank as it was called for. The defendant received dividends on the stock. The bank failed, never having received on the stock in question but the forty per cent. It will be admitted that the defendant took the stock subject to all the liabilities thereon. If Brown had failed to pay for it, the defendant got no better title than Brown had, but the defendant did not agree to pay the bank anything.

The cases cited by plaintiff do not sustain the action. The case of Rosevelt v. Brown (1 Ker., 148) only holds that as to debts the holder of the stock is a stockholder under the statute.

The case of the Rensselaer, etc., Plankroad v. Barton (16 N. Y., 457) holds that an agreement to take stock imports a promise to pay for it. Johnson v. Underhill (52 N. Y., 203) holds that a purchaser of stock not transferred on the books of the company was liable to pay the debts of the company as if he had entered the transfer. The case of the Reciprocity Bank (22 N. Y., 9) was an action to enforce the payment of a debt against a stockholder. Dayton v. Borst (31 N. Y., 435) was a case brought by a receiver against the original subscribers for the stock. The case of Mann, Receiver, v. Currie (2 Barb., 294) is very similar in principle to the present case. There the vice-chancellor held the transferee of stock liable the same as an original subscriber. In Seymour v. Sturgess (26 N. Y., 134) the Court of Appeals, citing that case, held that no contract to pay for the stock can be implied from the mere purchase. That the effect of the purchase was to get a title conditional upon making the remaining payments, but leaves such payment optional with the purchaser. That it is only where there is an express agreement to pay that an action will lie by the corporation; “but if there be no such agreement the sole remedy for the corporation is by the sale of the shares of the delinquent members.”

The judgment should therefore be reversed and a new trial granted, costs to abide event, and the order of reference be vacated.

Gilbert and Dykman, JJ"., concurred.

Judgment reversed and new trial granted, costs to abide event. Order of reference vacated.


text:
    HANNAH McKEE, Appellant, v. THE METROPOLITAN LIFE INSURANCE COMPANY, Respondent.

      Code of Oml Procedure, sec. 1778 — an action on a policy of insurance does not fall within its purview.

    An ordinary life insurance policy is not an instrument “'for the absolute payment of money upon demand, or at a particular time ” within the meaning of section 1778 of the Code of Civil Procedure, providing that, in an action against a domestic or foreign corporation, upon such an instrument, the defendant must serve with his answer a copy of an order of a judge directing that the issues presented by the pleadings be tried.
    Appeal from an order made by Mr. Justice Pratt vacating a judgment, entered by the plaintiff on March 2J, 1881.
    The action was brought to recover fifty-nine dollars and thirty-three cents claimed to be due to the plaintiff on a policy of insurance issued by the defendant on the life of one Maria Duffy. The answer was served and the cause placed at issue March 16, 1881. On March twenty-fourth the plaintiff entered a judgment by default, upon the ground that no order was obtained and served with the answer, as required by section 1778 of the Code.
    Defendant thereupon obtained an order to show cause why the judgment should not be vacated. On argument before Mr. Justice Pratt he vacated the judgment, and an order to that effect was signed by him and filed.

      Hugh A. MoTernan, for the appellant.

      Andrew JDuteher, for the respondent.
   Barnard, P. J.:

The papers on this appeal are so defectively made up as to present no real question. The action is brought upon a policy of life insurance upon the life of Maria Duffy. The pleadings are not given in the appeal papers. The amount of the claim upon the policy is fifty-nine dollars and thirty-three cents. Whether this sum is the amount of the policy, or, if less than the amount, how it is made up the papers do not disclose. Section 1778 of the Code of Civil Procedure provides that in actions against foreign or domestic corporations to recover damages for the non-payment of a promissory note, or other evidence of debt for the absolute payment of money upon demand or at a particular time, * * * the defendant serve with a copy of his answer or demurrer a copy of an order of a judge directing that the issues presented by the pleadings be tried,” or the plaintiff may enter up judgment as if there were no answer at the expiration of twenty days after service of a copy of the complaint.

The judge at Special Term had both pleadings and policy, and he determined that the policy was not an evidence of debt for payment absolute but was conditional as, expressed in policy.”

"We think that the ordinary life insurance policy is not such a paper for the payment of money on demand or at a particular time as is contemplated by. section 1778. It is evidence of no debt in itself — it is a conditional contract. (Anonymous, 6 Cow., 41; Tyler v. Ætna Ins. Co., 2 Wend., 280.) The case of Studwell v. Charter Oak Life Insurance Company (8 Weekly Dig., 561, 562) appears to have been decided after the issue was made. It is very possible that the parties could make an issue upon a life insurance policy which would be entitled to a preference under section 791 of the Code of Civil Procedure, being in an action against corporation founded upon a note or other evidence of debt for the absolute payment of money.

The order should be affirmed, with costs and disbursements.

Gilbert and Dykman, J J., concurred.

Order vacating judgment affirmed, with costs and disbursements.


author: Barnard, P. J.: Lawrence, J.:

text:
    THE JAMAICA AND BROOKLYN PLANKROAD COMPANY, Appellant, v. THE NEW YORK AND MANHATTAN BEACH RAILWAY COMPANY, Respondent.

      Railroad company — right of, to cross a turnpike or plankroad— the damages must le appraised and paid befoi'e the land is entered upon — Ohap. 19 of 1851, sec. 4.
    Under section 4 of chapter 19 of 1851, providing that in case any railroad shall occupy or cross any turnpike or plankroad, the railroad company shall pay such turnpike or plankroad company all damages the turnpike or plankroad company may sustain by reason of such occupancy or crossing, to be ascertained and paid in the same manner as is provided, by law for the assessment and payment of damages in case of taking private property for the use of railroad companies; the damages must be appraised and paid before the land of the turnpike or plankroad company can be entered upon.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    The plaintiff is a plankroad company organized under the general law. It is alleged in the complaint that for twenty-nine years it has been seized in fee and is the owner, and is in possession of a plankroad, and also a strip of land sixty-six feet in width; that the defendant is a railroad corporation, and that in 1877 it constructed its road across the plaintiff’s road and land without its leave and without making any compensation therefor, and that it has ever since maintained the same. The relief demanded was an injunction and damages.
    The authority to cross the plaintiff’s road is given by section 4 of chapter 19 of 1851, which reads as follows: “In case any railroad shall occupy or cross any turnpike or plankroad, the railroad company shall pay such turnpike or plankroad company all damages the turnpike or plankroad company may sustain by reason of the occupancy or crossing such turnpike or plankroad, the damages to be ascertained and paid in the same manner as is provided by law for the assessment and payment of damages in case of taking private property for the use of railroad companies.”
    The court found six cents damages for plaintiff and refused to find that plaintiff was entitled to an injunction,

      Wm. A7. Dykman, for the appellant.

      Alfred C. Chapin, for the respondent.
   Barnard, P. J.:

By section 4 of chapter 19 of the Laws of 1851 it is provided that in case any railroad shall occupy or cross any plank or turnpike road the railroad company shall pay such turnpike or plankroad company all damages sustained by reason of the occupancy or crossing of their road, the damages to be ascertained and paid in the same manner as is provided by law in cases for taking private property by railroad companies. This language plainly imports payment of damages before the taking of the property. Such has been the uniform construction in reference to taking private property. Before the land is to be entered upon, the damages must be appraised and deposited or paid, as provided, for by the law. This is in accordance with principles of justice. The owner should have the right to recover the compensation provided for by the Constitution and laws, before the property is appropriated to the public use. It is proven in this case that the plankroad is of little value and almost abandoned, but the question of the extent of the damages will be one for the commissioners to be appointed under the general railroad act to determine. The entry being a trespass, the continuing use of the plaintiffs road brings the case within the equitable powers of the court to prevent multiplicity of actions.

The judgment should be reversed and a new trial granted, costs to abide event.

Lawrence, J.:

I concur in the foregoing opinion on the authority of the cases of The Ellicottville and Great Valley Plankroad Company v. Buffalo and P. R. R. Co. (20 Barb., 644), and Murdock v. Prospect Park and Coney Island Railroad Company (73 N. Y., 579), and cases cited in the latter case.

Present —Barnard, P. J., and Lawrence, J.

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


author: Oilbert, J.:

text:
    THE PEOPLE ex rel. PETER FRIES v. THOMAS M. RILEY, Sheriff.

      Contempt — when a failure to pay a judgment for money cannot be treated as — when a party is entitled to be discharged on habeas corpus, although held under an order of the court.

    In March, 1881, a judgment was entered in the City Court of Brooklyn in favor of one Lanfahrt, against Peter and Eva Pries, as trustees, for the sum of $688.67, which judgment ordered and commanded the said Peter and Eva as trustees to pay the said sum to the plaintiff or her attorney upon demand. Thereafter, upon proof of a failure to pay the said sum upon demand, an order was made adjudging the said defendants guilty of a contempt, imposing a fine upon them and committing them to the county jail until it was paid.
    Upon an application made by the relator, Peter, for his release upon a writ of habeas corpus.

      Held, that the contempt intended to be charged did not fall within the definition of a criminal contempt.
    That the judgment being one for the recovery of money only, and enforceable by execution, the order and command to pay the same was unlawfully inserted therein.
    That the relator was entitled to be discharged.
    Appeal from an order made by a justice of the Supreme Court, dismissing the petition upon which a writ of habeas corpus to inquire into the grounds of the imprisonment of the relator had been granted, and quashing the writ.
    In March, 1881, a judgment was entered in the City Court of Brooklyn in favor of one Caroline Lanfahrt against Peter and Eva Fries, as trustees, for $688.67, which contained a clause by which the defendants, as trustees, were “ ordered, adjudged, decreed and commanded to pay to the above-named plaintiff, Caroline Lanfahrt, or her attorney, forthwith, on demand, the said sum of $688.67.” March 9, 1881, a payment of $106.12 was made. June 2, 1881, upon the return of an order to show cause, an order was made by the said City Court of Brooklyn, adjudging that the defendants had “ committed the offense of willfully disobeying the judgment, order or mandate of the court,” in refusing to pay the said sum on demand, imposing upon them a fine of $610.55, and committing them to the county jail until the said sum, together with the costs and expenses of the proceeding, should be paid.

      The writ was dismissed upon the ground that the only remedy of the relator was by an appeal from, or a motion to correct the judgment of the City Court.

      A. H. Dailey, for the relator, appellant.

      James J. Rogers, for Caroline Lanfahrt, “ a person interested.”
   Oilbert, J.:

The contempt intended to be charged in this case falls under the definition of a contempt “punishable civilly,” and is specifically enumerated in section 14 of the Code of Civil Procedure. It is not within the definition of a criminal contempt as prescribed by section 8 of that Code. The latter section makes willful disobdience of a lawful paandate of a court a criminal contempt. The return to the writ of habeas corpus consists of the commitment of the-relator only. That contains no recital of a mandate as we understand the term. The offense charged therein consists of willfully disobeying the judgment, order or mandate of this (the city) court, bearing date the 5th day or March, 1881. A copy of that paper was presented to the judge on the return to the habeas corpus, and it purports to be the judgment rendered by the City Court of Brooklyn in an action between Caroline Lanfahrt, plaintiff, and the relator and Eva Fries, defendants, whereby it was ordered, adjudged and decreed that said Caroline recover of the relator and said Eva, as trustees, the sum of $476.47 of principal and interest, and the further sum of $212.25, costs and disbursements and allowances, and .that said relator and said Eva, as trustees, jointly and severally pay to said Caroline, or to her attorney, forthwith on demand the sum -of $688.67, which the judgment commanded them to do. Stripped of its irrelevant verbiage, that record is nothing more than a judgment for the payment of a sum of money. The fact that it was rendered against the defendants therein, as trustees, does not make it anything else. Nor is the “ direction ” or command inserted in it, “ to pay forthwith on demand, ” a “ mandate ” according to the •statutory definition of that term. (Code Civil Pro., § 3343, subd. 2.) It certainly is not a writ or process. If it might be considered a ■“ direction ” within the meaning of that section, under any circum stances, it cannot be so considered in this case, for the judgment is a final one for the payment of money only (Code Civil Pro., § 1200), and a direction ” inserted in it for the purpose of enforcing it is not one that is made pursuant to law. The Code provides that a judgment may be enforced by serving a copy thereof in certain specified cases, one of which is, “ when the judgment is final and cannot be enforced by execution,” as prescribed in section 1210. This case is not included in that specification, but is impliedly excluded therefrom. (Code Civil Pro., § 1211, subd. 1.) Section 1210 provides that a final judgment for a sum of money, or when it directs the payment of a sum of money, may be enforced by execution. The effect of these two sections is to render any other process or “ direction ” for the enforcement of a judgment for the payment of money, except an execution, illegal. The disobedience which constitutes the alleged contempt was not of a lawful mandate, and was not, therefore, a criminal contempt.

The power to punish a neglect or violation of duty which consists of the non-payment of a sum of money, ordered or adjudged by the court to be paid, is expressly limited to cases where by law execution cannot be awarded for the collection of such sum. (Code Civil Pro., §§ 11, 2266.) There exists no undefined power authorizing the commitment of citizens for-contempt in cases defined and limited by statute. (Lansing v. Lansing, 4 Lans., 377; Hosack v. Rogers, 11 Paige, 603; Matter of Watson v. Nelson, 69 N. Y., 537; O'Gara v. Kearney, 77 id., 123.)

The relator having been committed to prison in a proceeding not authorized by law, the'only remaining question is whether it was the duty of the court below to discharge him. If prior to the decision of the Court of Appeals in the case of the People ex rel. Tweed v. Liscomb (60 N. Y., 559) any doubt might have arisen respecting the power of the court on this subject, it seems to me that that decision and the statute since passed have left no room for such doubt. The court or judge before whom a prisoner is brought by virtue of a writ of habeas corpus must make a final order discharging him from imprisonment if no lawful cause therefor is shown. If it appears upon the return that the prisoner is in custody by virtue of a mandate in a civil cause, he may be discharged when the mandate is defective in substance required by law rendering it void, or when it was issued in a case not allowed by law. (Code Civil Pro., §§ 2031-2033, subs. 3, 1.) If tbe “direction” contained in the judgment of the City Court was a “mandate” then, as we have already shown, it was issued “in a case not allowed by law.” If it was not a mandate, then no lawful cause was shown for the imprisonment of the relator. In other words, no cause whatever was shown upon the latter hypothesis, and upon the former the cause shown was unlawful. The prohibition contained in section 2031 of the Code of Civil Procedure, against inquiring into the legality or justice of the supposed “ mandate,” in this ease is, by its terms, inapplicable to the proceeding under review.

The order appealed from must be reversed, with costs and disbursements, and an order must be entered discharging the relator.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order vacating writ of habeas corpus reversed, with costs and disbursments, and relator discharged.


author: Gilbert, J.:

text:
    HIRAM B. BLAUVELT and another, as Executors, etc., of REBECCA DE NOYELLES, Deceased, Respondents, v. DANIEL DE NOYELLES and Others, as Executors, etc., of EDWARD DE NOYELLES, Deceased, Appellants.

      Legacy — when it becomes a charge upon real estate by the wrongful act of the executors — when executors will be charged with interest on the arrea/rs of an annuity.

    A testator bequeated to bis wife, in lieu of dower, tbe income of $5,000 during ber life, and directed bis executors to invest that sum and pay over to ber tbe interest or income thereof as it accrued. He also, after providing for tbe payment of certain other legacies, gave to tbe persons whom be appointed bis executors, individually as residuary legatees, tbe residue of bis personal and all bis real estate, and provided that if tbe personal estate should be insufficient to provide for tbe legacy to tbe wife, that then it should become a charge upon the real estate. Tbe personal estate was, at tbe time of tbe death of tbe testator, sufficient to pay all debts and legacies, but became insufficient to pay that of tbe wife, by reason of its misappropriation by tbe executors:

      Held, that, as between the executors and tbe widow (the rights of creditors and oí the other legatees not being considered), her legacy thereby became a charge upon the real estate.
    Although ordinarily executors who have acted in good faith are not chargeable with interest upon arrears of annuities, yet, where they have betrayed their trust in investing the fund, the income of which was given to the legatee, they will be charged with interest thereon.
    Appeal from a judgment in favor of tbe plaintiffs, entered upon the trial of this action by the court without a jury.
    The action was brought by the plaintiffs’ testatrix, who died soon after the trial, to recover the arrears of interest due upon a $5,000 fund, bequeated to her by her husband, the defendants’ testator.

      George W. Weiant, for the appellants.

      Edward Wells, for the respondents.
   Gilbert, J.:

Edward De Noyelles, by his will, gave to his wife the interest or income of $5,000 for life, in lien of dower, and directed his executors to invest that sum and to pay the interest or income thereof from the time of his death to his wife as the same should accrue. The will also directed that this legacy, with others, should be paid out of the personal estate; but in case that should not be sufficient for that purpose, then that the same should be chargeable in equal proportions upon the real estate which, by the will, he devised to the executors, John and Daniel De Noyelles. The defendants, John and Daniel, are executors of the will as well as the residuary legatees and devisees therein named. The personal estate left by the testator was more than sufficient to pay all his debts and also all the legacies bequeathed by his will. But in consequence of a misappropriation thereof by the defendant it turned out to be insufficient to discharge the legacy to his widow. The question is whether that legacy has become charged upon the lands devised to the executors, John and Daniel De Noyelles. It is not disputed that they have become personally liable for the amount due to the legatee, but the charge upon their lands is contested. There is a positive direction in the will to pay the legacy. It was charged primarily upon the personal estate, and it was only in ease that should not be sufficient for the purpose that it was to become charged upon the real estate, The defendants having unlawfully disposed of the personal estate left by the testator, now set up their own breach of duty as executors to exonerate the lands devised to them. If the question were one between the plaintiff and creditors or other legatees it might be contended with reason that the legacy in question should suffer abatement. But I see no reason why executors, who have caused a deficiency of personal assets by their own misconduct, should be permitted to acquire any advantage by means of such a wrong. The will does not in terms make the charge dejDendent upon the time when this deficiency happened. If it had existed before or at the time of the testator’s death no question on that point could arise. If the personal assets received by the executors had been lost by the insolvency of debtors or depreciation of securities, or if they had perished by fire or other means of destruction, it could hardly be claimed that a deficiency of assets had not been revealed which rendered the legacy a charge upon the land devised as against residuary legatees or devisees. A fortiori, the charge should be established when the assets have been wasted by the fraud or negligence of the executors and devisees. The intention of the testator, we think, is plain. It was that his widow should be paid her legacy in any event; out of the personal estate if that should be sufficient; but if at any time when payment of the legacy might be lawfully demanded, the personal assets should be insufficient to pay it, then that it should become a charge upon the land to the extent of such deficiency. The legacy was a bequest prior and preferable to the gift to the executors, because the latter gift was one to be satisfied only from the residuum of the personal and real estate', and the legacy to the widow was not a mere bounty, but was given in lieu of dower. The executors could not retain the residuum of personal assets alone, which had been bequeathed to them, after having misappropriated a specific fund, the income of which was bequeathed to the widow. (Morris v. Livie. 1 Y. & Coll. C. C., 380.) Nor should they be permitted to defeat a legatee by having the lands, charged secondarily with the payment of a legacy, exonerated from such charge, after having committed such a breach of duty.

Ordinarily executors who have acted in good faith are not chargeable with interest upon arrears of annuities. In this case, however, the executors betrayed their trust to invest the fund, the income of which was given to the legatee. We think, therefore, that they were properly charged with interest in lieu of income, and interest upon the annual arrears thereof. Williams’ Executors, 1428; Isenhart v. Brown, 2 Edw.Ch. R., 341.)

The judgment should be affirmed, with costs.

Dykman, J., concurred; Barnard, P. J., not sitting.

Judgment and order granting allowance affirmed, with costs.


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    In the Matter of the FEES RECEIVED BY THE CLERK OF THE CITY COURT OF BROOKLYN.

      Clerk of the City Court of Brooklyn must pay over all fees and fines into the county treasury — Code of Civil Procedure, secs, 310, 3284.
    Under sections 310 and'3284 of the Code of Civil Procedure the clerk of the City-Court of Brooklyn is not entitled to retain to his own use any of the fees received by or the fines paid to him, but must account therefor and pay the same into the county treasury.
    Submission of a controversy upon an agreed, statement of facts made in pursuance of section 1279, etc., of the Code of Civil Procedure.
    The question submitted was the following: Is the clerk of the City Court of Brooklyn under existing laws entitled to have and retain in his own right the fees received by him in his official capacity since the 1st day of September, 1880, when section 3284 of the new Code went into effect, in addition to his salary, or should he pay the same into the treasury of the county of Kings ?

      Winchester Britton, for the Supervisors of Kings county.

      George IF. Bhaebel, clerk of the City Court, in person.
   Gilbert, J.:

The’ language of section 310 of the Code of Civil Procedure, taken by itself no doubt, would have the effect to increase the compensation of the clerk of the City Court by the addition of the fees of his office to the salary fixed by the supervisors of Kings county. But section 7 of the act of March 24, 1849 (chap. 125), establishing that court, as amended by section 3 of chapter 66 of the Laws of 1863, remained in force until September 1, 1877, when it was repealed. (Laws 1877, chap. 417.) The act of 1849, as amended, provided that the clerk should receive the same fees for his services as are provided for similar services by the county clerk, but required him to pay such fees and all fines to the county treasurer. The language of section 310 in respect to fees of the clerk is in legal effect the same as that of the last named act, excepting the omission of the requirement that he pay the same to the county treasurer. The fact that that requirement was preserved until the repeal of section 7 of the act of 1849, as amended in 1863, in September, 1877, is evidence of the legislative intent that section 310 should not operate to vest in the clerk a right to retain the fees of his office for his personal emolument. The supplemental act which contains section 3284 of the Code of Civil Procedure, was not passed until May 6, 1880, and that section did not take effect until September first of that year. (Code Civil Pro., § 3356.) From September 1, 1877, to September 1, 1880, therefore, there was no law requiring the clerk to pay the fees of his office to the county treasurer. On the latter day, however, the provision of section 7 of the act of 1849, as amended in 1863, was substantially restored. The clerk was then required by said section 3284 to account for all fines paid to him, and all fees received by him for his official services and pay the same into the treasury of the county of Kings as prescribed by law. We ought perhaps to take notice of the history of the legislation in respect to the Code of Civil Procedure referred to. That would show that the supplemental act of 1880 was reported to the legislature in 1877 and that that act and the repealing act of 1877 were intended by the framers thereof to take effect at the same time. But irrespective of any inference of the legislative intent drawn from that source, the language of section 3284 plainly deprives the clerk of the right apparently given him by section 310, to retain the fees of his office. For the purpose of determining the effect of those two sections with respect to each other, they are to be deemed to have been enacted simultaneously. (Code Civil Pro., § 3355.) Bringing the two sections together, the meaning of the enactment is perfectly plain. The cleric is entitled to receive the fees, but he must pay them over. From the establishment of the City Court by the act of 1849 until the present time, the only authority conferred upon the clerk to receive fees for his services was given by statutes similar to that contained in said section 310, and during no part of that period, unless that before mentioned should be excepted, has there been a plausible ground for a claim on his part to retain such fees. The only purpose of the legislation upon the subject was to create an authority for exacting fees, which without it would not have existed, to replenish the public treasury and to impose upon suitors a part at least of the expenses of the court. None of it had reference to the compensation of the clerk. That was provided for by the act establishing the court (Laws 1849, chap. 125, § 25), which gave him an annual salary, and that mode of compensation was continued by all succeeding acts. (Laws 1850, chap. 102, § 10; Laws 1863, chap. 66, § 4; Laws 1870, chap. 470, § 20, as amended by § 7 of chap. 282 of the Laws of 1871.) The last named section was not repealed by the repealing act (Laws 1877, chap. 417, § 44), nor did his right to retain the fees of his office during the period referred to, if such right existed, accrue by force of section 310 alone, but by allowing that section to remain unchanged after the repeal of section 7 of the act of 1849, as amended by the act of 1863, chapter 66. It is reasonable to presume that such a consequence was not foreseen, and that the object of the provision contained in section 3284 was to restore the law as it existed before that consequence had happened. However that may be, it is enough that the language of said section 3284 is free from ambiguity and imperative.

There is, we think, little force in the argument that because section 3284 requires the clerk to account for and pay over his fees as prescribed by law, and there is no statute prescribing the time and mode of doing those acts, he is not required to do them at ail. That requirement is a mere incident of the duty of accounting and paying over. It relates only to the time and manner of performing the duty. If there is no statute regulating those acts, the courts may enforce the performance of them in a proper mode, and thus prescribe by law how that shall be done.

There must be judgment for the county of Kings.

Barnard, P. >T., and Dykman, .1., concurred.

The clerk of the City Court of Brooklyn is not entitled to the fees, but must receive and pay them over.


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    HONORA M. HUBBARD and Others, Respondents, v. ANNA H. GILBERT and Others, Appellants, Impleaded, etc.

      Conveyance to a prn'ty other than the one paying the consideration — effect of a covenant by the grantee to convey to the appointee of the party paying for the land— rights of the hews-at-law of the party paying for the land to compel its p&rformanoe.

    In 1861 certain land was conveyed by the owner thereof, to Kingsbury, Gilbert and Fessenden, as joint tenants, at the request of said Kingsbury and in execution of a contract theretofore made by the owner with said Kingsbury to convey the same to him. All the consideration was furnished by Kingsbury, the other two furnishing no portion thereof. It did not appear that Kingsbury had at that time any creditors. At the same time Gilbert and Fessenden executed an agreement whereby they covenanted and agreed to grant and convey the land according to Kingsbury’s appointment. Kingsbury thereafter died intestate without having made any valid disposition of the said land. Thereafter Fessenden died, and finally Gilbert, who was at the time of his death in possession of the land, and the same was thereafter possessed, occupied and used by his heirs-at-law.

      Held, that the covenant of Gilbert and Fessenden gave to Kingsbury the fee of the land and a right to have it conveyed to his appointee, and that as no valid appointment was made by him during his life, and as he died intestate, his interest therein descended to his heirs-at-law.
    That if the fee did not vest in him by virtue of the deed and his absolute power of disposition over the shares of his co-tenants, he acquired an equitable right to have them compelled to convey to his appointee, which passed to his lieirs upon his death and could be enforced by them.
    Appeal from a judgment in favor of tlie plaintiffs, entered upon tbe trial of this action by the court without a jury.
    The action was brought to obtain a construction of the will of Harmon Kingsbury, deceased, and to have the rights of his heirs-at-law in certain real estate established.

      Tlie plaintiffs are the heirs-at-law of Ilannon Kingsbury, and the defendants, against whom relief is asked, are the widow, children, administrator and’administratrix of Edward Gilbert, deceased.
    In March, 1852, Harmon Kingsbury entered into a written contract with Henry H. Biddle to buy certain lands, including the premises described in the complaint, for $20,000. When the contract was executed, Mr. Kingsbury paid $7,000 and went into possession of the property. May 13, 1861, Mr. Kingsbury, who had meantime paid several thousand dollars more on account of the property, contracted with Joel Smith for a valuable consideration to sell to him his interest in said lands, and requested Biddle to convey them to the latter. Biddle did so by deed of June 10, 1861, and on the same day Joel Smith, who had covenanted in his contract with Mr. Kingsbury to convey to the latter part of the premises conveyed by Biddle, at the request of Mr. Kingsbury, conveyed the property described in the complaint to Harmon Kingsbury, Edward Gilbert and Henry P. Fessenden, to have and to hold the same to them, the survivors and last survivor of them, his heirs and assigns forever, as joint tenants and not as tenants in common. The whole consideration was furnished by Kingsbury. It does not appear that he then had any creditors.
    Mr. Gilbert was a friend of Mr. Kingsbury; Mr. Fessenden was also his friend and is said to have been his attorney. This conveyance is expressed as being in consideration of $10,000 paid by the three joint tenants. Contemporaneously with this deed, and on June 10, 1861, Gilbert and Fessenden executed and delivered to Mr. Kingsbury a sealed instrument in which they agreed with him, not naming his heirs and .executors, to convey according to his appointment all lands and other property held jointly with him, at his expense.
    Mr.. Kingsbury continued in possession of the property until his death, which occurred in 1865. He left a widow who still survives, but no issue. Mr. Fessenden died in 1867. Mr. Gilbert after this assumed the sole possession of the property, and continued in such possession until his death in January, 1874, since when his heirs have been and they now are in possession. ' While Mr. Gilbert was in possession he received the income, paid taxes and repairs, and employed the witness Elliott to look after the property. Mr. Gilbert’s heirs have paid a balance alleged to be due Elliott, and the taxes since Mr. Gilbert’s death, amounting in all to more than $1,000. They have received nothing in the shape of income.
    During his lifetime Mr. Kingsbury did not exercise his power of appointment, nor did he call upon Gilbert and Fessenden to convey. He, however, executed an instrument requesting them to convey to himself, or to some person designated by him, but the instrument was never delivered. He left a last will, executed February 14, 1860, more than a year before the deed to the three joint tenants, and more than five years before his death. By it he attempted to establish upon the property in question an educational institution, in which should be taught certain doctrines contained in works written by him. This portion of the will was adjudged by the court to be void.

      Gilbert H. Crawford, for infant heirs of Edward Gilbert, appellants.

      John A. Mcvpes, for the respondents.
   Gilbert, J.:

This action, so far as it seeks a construction of the will of the testator, cannot be sustained for the reason that the plaintiffs claim in opposition to the will (Shipman v. Montgomery, 63 N. Y., 221), but that claim was merely incidental to the real objects sought to be attained by the suit, namely, the fastening of a trust upon the real estate in controversy, and an accounting by the representatives of Edward Gilbert, deceased. The questions presented, no doubt,' involve the title to that real estate and the right to the possession thereof. Ordinarily such questions can be litigated only in an action of ejectment, in which the parties have the right of trial by jury. But it is immaterial to consider whether the defendants have been deprived of that right, because no objection was taken to the mode of trial adopted. All the questions were litigated before the court, and we think it is too late to urge that objection. Indeed it was waived by the express provision of the Code, and no objection to the form of trial has been raised on the appeal. (Code Civ. Pro., § 1009, subdiv. 4.) The facts in the case are undisnuted. The deceased, Mr. Kingsbury, was the real purchaser of the premises in controversy, and paid the entire consideration therefor. For some purpose, not satisfactorily disclosed, the premises were conveyed by the seller to Kingsbury, Fessenden and Gilbert, as joint tenants. By an instrument bearing the same date as the conveyance, Gilbert and Fessenden covenanted with Kings-bury to grant, assign, convey and dispose of, according to his appointment, all lands, real estate, mortgages, covenants and things in action held by or conveyed, assigned or made to them jointly with him, etc. It is a familiar rule that a deed and an instrument in the nature of a defeasance are to be read as one instrument, and the intent of the parties thereto as far as the same can be collected from the whole instrument and is consistent with the rules of law, must be carried into effect. k (1 it. S., 748, § 2.) The instrument accompanying the deed mentioned is in form a covenant with Kingsbury to convey the lands according to his appointment. It contains no limitation or restriction whatever upon the exercise of that power of appointment. That the covenant had the effect to vest in Kingsbury a power of appointment is unquestionable. No form of words is requisite to create a power. (1 Sugd. [Pen. ed. 1856], 120, 134, and notes; 4 Kent’s Com. [7th ed.], 334.) The power was general and beneficial. Under it Kingsbury might have appointed to himself or any other person. The power was absolute inasmuch as no restriction either as to the mode of its exercise or the persons to be benefited thereby was imposed. It enabled Kingsbury to dispose of the entire fee of the shares of Gilbert and Fessendon, derived from said deed, in his lifetime and for his own benefit. Such a power of disposition vests in the grantee an absolute fee. (1 R. S., 732, 733, §§ 81-85.) The effect of the conveyance from Smith to Kingsbury, Gilbert and Fessendon, therefore, in connection with the covenant aforesaid, was to vest in Kingsbury the entire fee of the estate conveyed by that deed. The law of this State does not tolerate the holding of the title to lands by persons not beneficially interested therein, except upon some valid trust properly manifested. (1 R. S., 727, § 47; 4 Kent’s Com. [7th ed.], 366.) The grant contained in said conveyance being to the grantees as joint tenants does not affect the principles mentioned. For although joint tenants are seized per mie et per tout, yet it is in the power of any one of them to dispose of his own share of the lands in his lifetime, subject to the right of survivorship of his co-tenants. (Co. Litt., 186, a.; Meeker v. Wright, 76 N. Y., 271, 272.) If the foregoing views are correct they dispose of the case. But if any doubt could arise respecting the fact that the fee of the land was actually vested in Kingsbury, the facts proved are sufficient to raise a trust in his favor embracing the entire equitable interest in the shares of Gilbert and Fessendon. The provision of the statute (1 B. S., 728, § 51) that where a grant shall be made to one person, and the consideration therefor shall be paid by another, no trust shall result to the person by whom such payment shall be made, but the title shall vest in the alienee named in the conveyance, is not applicable to this case; but if it were applicable the statute would vest the title precisely where it was vested by the grant from Smith. The statute, therefore, would produce no change in the interest of the alienees named in the conveyance, namely, Kingsbury, Gilbert and Fessenden. It is not necessary to consider what was the effect of the conveyance from Smith and' the covenant of Gilbert and Fessenden with Kingsbury, upon the rights of the creditors of the latter, for it does not appear that he had any creditors. It is sufficient to say that the legislature have clearly manifested their intention that the grant of Smith should not vest in Gilbert and Fessenden any interest in the estate granted contrary to the equitable interest of Kingsbury, by preserving the equitable doctrine of trusts which arise by operation of law. (1 B. S., 728, § 50.) The covenant of Gilbert and Fessenden gave to Kings-bury a clear right to have the land conveyed to his appointee. No valid appointment having been made by Kingsbury, during his lifetime, and he having died intestate as to the lands in controversy, his interest in said lands has descended to his heirs. If the fee thereof did not vest in him by virtue of the grant from Smith and of his absolute power of disposition of the shares of his cotenants, then his heirs acquired the whole equitable interest in the lands; for a trust to that effect arose from the payment of the consideration of the purchase thereof by Kingsbury, and the covenant of his cotenants to convey to his appointee, the execution of which equity would have enforced in favor of Kingsbury in his lifetime by compelling a conveyance to himself, if he had so appointed, and we tliink his heirs are entitled to have the trust enforced for their benefit. (Lewin Tr., 140, note 2; Siemon v. Schurck, 29 N. Y., 614; Carr v. Carr, 52 id., 260; Foot v. Bryant, 47 id., 547.) Equity also regards that as done which ought to be done. We are of opinion, therefore, that the judgment correctly disposed of the question of the title to the lands. No objection has been taken on this appeal respecting the decision of the court below in any other respect.

The judgment must be affirmed, with costs.

Dykman, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN F. SCHLOSSER v. CHARLES H. PORTER.

      Justice of the peace — commitment hy.for a criminal contempt — right of the accused to produce evidence— Oode of Oml Procedure, secs. 2870-2874.
    In proceedings before a justice of tbe peace to procure the commitment of one alleged to have been guilty of a criminal contempt, as provided by sections 2870 to 2874 of the Code of Civil Procedure, the party accused is entitled to be sworn and to testify in his own behalf, and to have the testimony of witnesses produced by him taken, and a refusal of the justice to receive such testimony will render the commitment void.
    Certiorari to review the conviction of the relator of a criminal contempt.
    Upon his trial the relator sought to give testimony himself, and to have the testimony of certain witnesses produced by him taken, in order to establish the truth of the facts set up as a defense. The justice refused to receive the evidence.

      II. II. Bustis, for the relator
   Gilbert, J.:

Justices of the peace have no inherent power to commit for .criminal contempt, but the legislature has conferred the power • upon them in certain specified cases. Their jurisdiction is limited to those cases. No question has been raised whether the power can be exercised when the alleged contempt was committed while the justice was sitting as a Court of Special Sessions, nor have we examined that question. The only statute on the subject that we are aware of is contained in sections 2870 to 2874 of the Code of Civil Procedure. That authorizes a justice of the peace to punish for a criminal contempt a person guilty of disorderly, contemptuous or insolent behavior towards him while engaged in the trial of an action, the rendering of a judgment, or any other judicial proceeding, when such behavior directly tends to interrupt or to impair the respect due to his authority. But the accused cannot be punished until an opportunity has been given him to be heard in his defense. The justice also is required to make up, subscribe and file a record of conviction, stating therein the particular circumstances of the offense. Provision is made for a review of the proceedings of the justice by certiorari (Code of Civil Pro., §§ 2120, 2148), the questions involving the merits which may be determined by this court are specified (sec. 2140), and power is given to the court upon the hearing to annul or modify the conviction. • (Sec. 2141.)

The return in this case is defective in not setting forth the record of conviction. But the view we have taken of the case as presented renders a correction of the return unnecessary. We are of opinion that the respondent did not afford the relator the opportunity of being heard in his defense which the law required. (Code of Civil Pro., § 2872.) The practice governing such a proceeding is not prescribed by statute. Some mode of proving that the alleged contempt was not committed, however, is necessarily implied in a hearing of a party accused in his defense, for otherwise the opportunity of being heard would be unavailing. A hearing of allegations merely, without evidence to sustain them, would be nugatory as a defense. Accordingly such evidence has always been received in courts of record, in some cases in the form of answers to interrogatories, in other cases in the form of affidavits. In cases of contempt committed before courts of justices of the peace the defense may be made in a less formal manner, by an oral examination of the accused and his witnesses, or it may be made by affidavit. The mode of making the proof, there being no statute on the subject, is not material, provided it is conformable to the usual practice in analogous cases. But tlie right of making tbe proof in some mode is a substantial one and rests upon an invariable maxim of the common law. The recitals in the warrant of arrest are by no means conclusive. Such a doctrine would be subversive of the protection which the law affords to every person accused of an offense. The accusation must be distinctly made, the accused must be allowed to disprove it, and then the determination of the justice of the peace may be reviewed upon the facts as well as the law. (Code of Civil Pro., § 2140, sub. 5.) The remedy by certiorari has been thus greatly enlarged.

We think that the exclusion of the evidence offered by the relator was erroneous and rendered the commitment void. {Pitt v. Davison, 37 N. Y., 235 ; People ex rel. Mayor v. Nichols, 79 id., 588; In re Pollard, Law Rep., 2 P. C. App., 106.)

The conviction must be reversed.

Barnard, P. J., and Dykman, J., concurred.

Conviction reversed.