text:
    John Maroney et al., App’lts, v. Margaret Boyle et al., Impleaded, etc., Resp’ts.

      (Court of Appeals,

      Filed February 27, 1894.)

    1. Lien—Equitable^-Unpaid pubchase money. '
    Grantor does not waive his lien for unpaid purchase money by simply taking the individual note, bond or covenant of the grantee, unless he expressly and consciously relinquishes it.
    3. Same.
    A subsequent grantee, with notice, does not acquire a better position than his grantor had.
    3. Same.
    But such lien does not prevail against a grantee in good faith, without notice of the lien and for a valuable consideration parted with before such notice.
    4. Same.
    A purchaser on execution, who has paid the purchase price and received the sheriff’s certificate of sale, is entitled to protection against an outstanding and unknown lien for purchase money in favor of a former grantor.
    5. Same.
    His rights are not affected by the fact that the purchase price paid by him was small. ¡

    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made January 22, 1892, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at special term dismissing the complaint.
    This action was brought to enforce the equitable lien of the plaintiffs for the purchase money of land conveyed by them to the defendant Margaret Boyle.

      The facts found at the special term are substantially as follows: That on the 20th day of August, 1887, the plaintiffs were the owners of the land described in the complaint, and on that day for a valuable consideration they sold and conveyed the land to the defendant Margaret Boyle, who then paid to them $500 of the purchase' money, and gave to the plaintiff John Maroney her individual promissory note to secure the payment of the sum of $2,000, the balance of the purchase money; that at the same time the plaintiffs waived whatever equitable lien they had upon the land for purchase money; that Margaret Boyle was financially solvent and the estate of Peter Boyle, deceased, the husband of Margaret Boyle, was also solvent, and the plaintiffs in making the deed and accepting the note relied upon the individual responsibility of Margaret Boyle; that immediately after the delivery of the deed and noté Margaret Boyle entered into possession of the land, and on or about the 18th day of September, 1887, she, for the consideration of $2,000, executed to the defendant Edward D. Boyle a deed conveying the land to him; that immediately thereafter Edward entered into the possession of the land, and has ever since remained in the possession thereof ; that in the months of March and April, 1888, he paid to the plaintiffs $500 in money to apply both on the purchase money of the land due from him to Margaret Boyle, and upon the purchase money thereof due to her from the plaintiffs, and about the same time he fully paid to her, out of his distributive share of his father’s estate, the balance of the purchase money; that in purchasing the land and paying for the same Edward relied upon the belief and fact that the plaintiffs had waived their equitable lien thereon for purchase money; that at the time of his purchase Edward was financially solvent, but about the month of October, 1888, he became insolvent; that by reason of indorsing the notes of Edward his mother also became insolvent and unable to pay the -note held by John Maroney ; that during the months of October, November and December, 1888, and January and February, 1889, ten judgments were recovered against Edward D. Boyle and docketed in the office of the clerk of the county of Cattaraugus, and became liens upon his real property situated in Cattaraugus, county, which judgments amounted in all to upwards of $3,000 ; that about the months of April and May, 1889, and before the commencement of this action, the defendant Frank W. Davis purchased the several judgments from the plaintiffs in and owners thereof, and paid to them the full amounts thereof in money, and received from them written assignments thereof, whereby he became and is still owner of the same, except judgments so recovered by one Barry, by the First National Bank of Salamanca and by two other persons; that Barry refused to sell his judgment to Davis and caused an execution thereon to be issued to the sheriff by virtue of which, after due notice of sale, he, on the 20th day of April, 1889, sold the land at public auction to Davis for the sum of $86.12, and thereupon executed to him his written certificate of sale in the form required by law, and Davis immediately paid the purchase price; that Davis never had any notice until after he had purchased the judgments and received the sheriff’s certificate of sale and had fully paid for the same, that the plaintiffs ever had any lien upon or interest in the land since they conveyed the same to Margaret Boyle; that the First ¡National Bank of Salamanca caused executions upon its two judgments to be duly issued to the sheriff, who, by virtue thereof, and pursuant to due notice of sale, did, on the 27th day of May, 1889, sell the land to the defendant Charles I. Baker, at public auction, for the sum of $950, which Baker then paid to him, and thereupon the sheriff executed and delivered to him his certificate of sale thereof in the form required by law; that Baker never had any notice until after he had purchased the land, paid the $950 and received the certificate, that the plaintiffs, or either of them, ever had any lien upon or interest in the land; that at the time the plaintiffs sold and conveyed the land to Margaret Boyle, and received her note, they believed and relied upon the then supposed fact that the note was, in effect, the note of Margaret Boyle, in her capacity of administratrix of the estate of Peter Boyle, effectual to bind that estate for its payment, and not her individual obligation.
    And the court dismissed the complaint as to the defendants Margaret Boyle, Baker and Davis, who alone appear to have defended the action, and ordered judgment to that effect. The plaintiffs appealed to the general term and then to this court.

      G. S. Carey for app’lt; K D. Northrup for resp’t.

       Affirming 43 St. Rep., 902.

   Earl, J.

When Edward D.. Boyle took his deed he had notice of the plaintiffs’ claim for unpaid purchase money, and, therefore, he did not acquire a better position than his grantor had. We think there can be no doubt that, as against him and his grantor, the plaintiffs had and retained their equitable lien. They took the promissory note of their grantee for the balance of the purchase money. It was not taken as payment, but simply as evidence of the amount due and the time and mode of payment. It has been many times held that the grantor-does not waive his equitable lien for the purchase money by simply taking the individual note, bond or covenant of the grantee. He may rely in taking such an individual obligation upon the solvency and financial ability of the grantee, and he may not know that he has any lien upon the land, or actually rely upon any lien, and he may not have in contemplation the enforcement of the lien at any time, and yet, unless in. such a case he expressly and consciously waives his lien, he retains it. If, however, he takes any security for the purchase money, as a mortgage upon the same or other property, or the note or other obligation of a third party, he will be held to have waived his purchase-money lien, unless he has in some way expressly retained it. 2 Story’s Eq. Jur. §§ 1217, et seq.; 4 Kent’s Com. 152; 3 Pomeroy’s Eq. Jur. §§ 1249, et seq.; Mackreth v. Symmons, 15 Ves. 329 ; Bailey v. Greenleaf, 7 Wheat 46; Garson v. Green, 1 John. Ch. 308; Chapman v. Brown, 6 id. 398 ; Shirley v. Sugar Refinery, 2 Ed. Ch. 505; Hulett v. Whipple, 58 Barb., 224; Hallock v. Smith, 3 id. 267 ; Vail v. Foster, 4 N. Y. 312; Seymour v. McKinstry, 106 id. 230; 8 St. Rep. 580.

We find in this record no evidence whatever sufficient in law tó show a waiver of their lien by the plaintiffs. It is quite true that they relied upon the personal responsibility of their grantee. That is always so when the grantor takes the mere personal obligation of the grantee for the purchase-money of land sold, and yet it has never been held that 'the personal obligation of the grantee thus taken deprives the grantor of his lien.

The counsel for the respondents makes much of the fact that the note was signed by Mrs. Boyle, attaching to her name “administratrix to the estate of Peter Boyle, deceased.” The deed ran to her by the same description, and she deeded to her son by the same description. She, nevertheless, whatever may have been supposed at the time, took the deed in her own right, and the note was her personal obligation, and all the plaintiffs got, or intended to get, was the obligation of the real grantee.

We, therefore, think the learned trial judge erred in his finding of fact that the plaintiffs had, either as to Margaret Boyle or her son, waived their lien for the purchase-money by anything which took place at the time of their conveyance of the land. But this error was harmless, as the defendant Davis purchased the land under such circumstances that he has protection against the lien. He purchased the land at the sheriff’s' sale without any notice of the plaintiffs’ lien, and he paid to the sheriff the amount of his bid in money. He took the sheriff’s certificate of sale, and since the trial of this action he has received the sheriff’s deed, as we are now informed by the production thereof upon the argument here. We will, however, ignore the deed, and treat the case as if Davis held only the certificate.

The examination of many authorities shows that the vend- or’s lien is not now a favorite with courts of equity, and that it has many times been enforced with reluctance and misgivings. Equity judges have found it difficult to find any justifiable basis for it to rest on, and they have differed as to the grounds and reasons for its introduction into the equity'jurisprudence of England and of this country. It has been repudiated in some of the states by the courts, and in others, it has been abrogated by legislative enactments. It is against the general policy of our law, which looks with disfavor upon secret interests in real estate, and requires generally that titles to real estate shall be created by some writings which shall be spread upon the public records for the protection of those who might trust to titles apparently sound but afflicted with secret infirmities. It generally gives way to a legal interest or to a superiqr quality, and as it is a matter of purely equitable cognizance it should never be enforced when it would be inequitable to do so. Hence, it is never allowed to prevail against one who takes an incumbrance upon the land, or an interest therein, or a conveyance thereof, in good faith without notice of the lien and for a valuable consideration parted with before such notice.

How, what is the status of Davis holding the sheriff’s certifi•cate of sale? Why should he not be protected? Such a purchaser, after he obtains the sheriff's deed, is in the same position as he would have been if the deed had been executed by the judgment debtor at the time the judgment was docketed. In Hetzel v. Barber, 69 N. Y., 1, we said: “ A sheriff’s deed, given in pursuance of a judgment and a sale upon execution, is treated a= if given by the judgment debtor himself. It conveys precisely what he could have conveyed when the judgment was docketed. The sheriff, by authority of law, takes his property and conveys it to satisfy his debt, and the transfer is the same as if the sheriff had in fact acted as the authorized attorney of the debtor. The grantee in such cases holds not under the sheriff, but under the •debtor, and the deed, when recorded, is protected by and has the benefit of the recording act. See also Freeman on Judgments, § 366, 366a. Therefore, if Davis had taken the sheriff’s deed before the trial of this action, he would have had the same protection against the plaintiff’s lien as he would have had if he had in good faith and for money taken a deed from Mrs. Boyle or her son. But the mere fact that he did not then have the deed can make no difference. The sheriff’s certificate must be regarded the same as if at the time of docketing the judgment the debtor had ■executed a contract of sale embodying the same terms, and had -received the full purchase price. The debtor would in that event have held the legal title of the land as trustee for the purchaser. The title of the purchaser would have been contingent and conditional on account of the right of redemption existing in the debtor and his creditors. But, nevertheless, he would have become the purchaser of just such a right and interest as he bargained for and paid for to obtain, and he would have had protection against any outstanding secret and unknown ^ien for the purchase price. We think it is, therefore, clear that by his purchase of the land at the sheriff’s sale, and full paym'ent of the purchase price, Davis obtained protection against the plaintiff’s lien.

We cannot hold that, as matter of law, there was anything to give Davis constructive notice of plaintiff’s lien. The form of the deeds to Mrs. Boyle and her son, and the fact that the deed to the son was not recorded, are qf no significance upon the question of notice. They do not suggest the non-payment of the purchase price to the plaintiffs, or the existence of their lien. The rights of Davis are not affected by the small amount of the purchase price. There was one judgment anterior to that undér which he purchased, and he held several junior judgments, and the whole situation must be taken into account in considering the price paid. It is a significant fact that the interest he purchased was not considered sufficiently valuable to induce any one to redeem from him. Even if he made a good bargain he was entitled to the benefit of it.

The equities of the plaintiffs are not enlarged because Davis made the purchase, expecting thereby in some way to benefit or protect the family of Peter Boyle, deceased. His position and .rights would be the same if he only held the land as security.

To the suggestion made by the learned counsel for the plaintiffs that they could in some way be subrogated to the rights of Davis by payment to him of the amount paid by him, or have the right by the judgment in this action to redeem from him, or that he should be turned over to other property of the judgment debtor for his reimbursement, the plain answer is that the complaint was ■not framed for such relief, the action was not tried with the view to such relief, and there are no findings or exceptions which present the matter for our consideration.

The defendant Baker appears to have the same defense to the action which Davis has. But we have paid no attention to him •as his answer to the complaint does not appear in the record ; he was not made a respondent upon this appeal and no one appeared for him upon the argument before us.

Our conclusion, therefore, is that the judgment should be affirmed, with costs.'

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    The People ex rel. The Edison Electric Illuminating Company of New York, Appl’t, v. Edward Wemple as Comptroller, etc., Resp’t.

      (Court of Appeals,

      Filed March 6, 1894.)

    1. Taxes—Corporations.
    Under chapter 542 of 1880, as amended by chapter 463 of 1889, relief may be given as provided , where a tax has been imposed upon, and paid by a corporation which was exempt from any taxation under the act.
    2. Same.
    The fact that the payment was not made under coercion, does not deprive the corporation of the relief so granted.
    3. Same.
    The case of the relator does not come within the exception contained in §2 of the act of 1889.
    Appeal from order of the general term of the supreme court in the third judicial department, made February 14, 1893, which •affirmed the decision of the comptroller of the state and dismissed a writ of certiorari to review a determination made by him denying an application by the relator for the revision and re-settlement ■of a tax.
    The facts, so far as material, are stated in the opinion.

      Eugene H. Lewis, for app’lt; T. E. EancocJc, attorney-general, for resp’t.

       Reversing 52 St. Rep. 786.

   Peckham, J.

The relator was organized under the general law of 1848 (and the various acts amending the same) providing for the formation of gas light companies (chapter 37 of the Laws of 1848).

Pursuant to the provisions of the law providing for the taxation of certain corporations, the relator annually before November 15, in each of the'years 1886, 1887 and 1888, made a report to the comptroller, for the purpose of enabling that officer to make a valuation of the capital stock of the relator, and thus to ascertain the amount of the tax which the company was supposed to be liable to pay. The comptroller did make this valuation, and he ascertained therefrom the amount of the tax upon the relator for each of above-mentioned years, and notice of the amount thus fixed each year was sent by the comptroller to the relator, and the relator then paid the amount so fixed each year into the state treasury, without objection or protest. Subsequently the relator made application to the comptroller for a revision and readjustment of these accounts, which application was denied in November, 1890. The relator, considering the action of the comptroller to be erroneous, and believing that it was itself exempt from taxation for those years under the State Corporation Tax Act, because it was a manufacturing corporation, sued out a writ of certiorari to review the action of the comptroller in refusing to re-adjust the accounts mentioned. ' The general term upon the return of the writ held that the payments of the relator were voluntary payments, and that, therefore, the relator had no remedy under the statute, and dismissed the writ with costs. The statute under which the relator has proceeded is chapter 463 of the Laws of 1889, which amends the Corporation Act of 1880, as amended in 1881, by adding sections 19 and 20 to the act.

The amendments of 1889 are as follows:

“ Section 19. . The comptroller may at any time revise and readjust any account theretofore settled against any person, association, corporation or joint-stock company, by himself or any preceding comptroller for taxes arising under this act or the act to which it is an amendment whenever it shall be made to appear by evidence submitted to him that the same has been illegally paid or so made as to include taxes which could not have been lawfully demanded, and shall re-settle the same according to law and the facts and charge or credit as the case may require the difference, if any, resulting from such revision and ■ re-settlement upon the' current accounts of such person, association, corporation or joint-stock company.
“ Section 20. The action of the comptroller upon any application made to him by any person or corporation for a revision and re-settlement of accounts as provided in this act, maybe reviewed, both upon the law and the facts upon certiorari by the supreme court at the instance either of the party making such application or of the attorney-general in the name and behalf of the people of this state, and for that purpose the comptroller shall return to such certiorari the accounts and all the evidence submitted to him on such application, and if the original or re-settlyd accounts shall be found erroneous or illegal by that court, either in point of law or of fact, the said accounts shall be there corrected and re-stated by the said supreme court, and from any such determination of the supreme court an appeal may be taken by either party to the court of appeals as in other cases.
“ Section 2. None of the provisions of this act shall apply to any taxes heretofore paid by any person or corporation in pursuance of a judgment or order of a court or by virtue of any stipulation.”

Under the decisions of this court in People ex rel. Brush Elec. Marify Co. v. Wemple, 129 N. Y. 543 ; 42 St. Rep. 272, and People ex rel. Edison Elec. III. Co. v. Wemple, 129 N. Y. 664; 42 St. Rep. 280, the taxation upon the relator for the years above mentioned was illegal. The corporation was not subject to the exaction, and although it paid the same there was in reality no legal liability imposed upon it to make the payment. The question now for us to determine is whether the statute above quoted gives the relator any remedy whatever.

The learned general term has held that no relief could be given under that act because the payments made by relator were not made under coercion, but were what is termed voluntary payments, that is, payments which relator made under a claim from the taxing authorities that the law compelled it so to do. We think the act provides for just such cases as the relator’s. The comptroller is to revise and re-adjust any amount for taxes whenever, among other things, it shall be made to appear that the tax has been illegally paid or so made as to involve taxes which could not have been lawfully demanded. Here the payment was made in regard to taxes which could not have been lawfully demanded because as we have held the corporation was entirely exempt from any taxation under the Corporation Tax Law as it stood during these years. Language cannot as it seems to us be plainer and we are at a loss to know when the act would apply if it be not applicable to such a case as this. The various cases cited by counsel holding that voluntary payments cannot be recovered back are not in point where the question is as to the meaning of this statute. We have no doubt as to what that meaning is, nor any that it includes such a case as the relator has here proved.

Nor does the case of the relator come within the exception, contained in § 2 of the act of 1889. The payments were not made in pursuance of a judgment or order of any court, nor was the report that the relator made in each year containing facts upon which the amount of the tax was ascertained and imposed, a “ stipulation by virtue of which such tax was paid.” We think the relator was entitled to the relief which it sought. People ex rel. Edison El. Ill. Co. v. Wemple, 133 N. Y. 617; 44 St. Rep. 871.

The determination of the comptroller should be reversed and the accounts of the relator for the years mentioned should be revised and re-adjusted by him, and the full amounts paid by the relator as provided for by the act.

Eor that purpose the order of the general term quashing the writ of certiorari should be reversed, with costs and further proceedings taken in accordance with this opinion.

All concur.

Order reversed.


author: Gray, J.

text:
    The People ex rel. The Pratt Institute, App’lt, v. The Board of Assessors of the City of Brooklyn, Resp’t.

      (Court of Appeals,

      Filed March 6, 1894)

    Taxes—Exemption,
    The provision of $10, chap. 398 of 1887, exempts the property of the Pratt Institute from taxation for county as well as for city purposes.
    Appeal from an order of the general term of the supreme court in the second judical department, made December 1, 1893, which reversed an order of special term granting a motion for a peremptory writ of mandamus to compel defendants, the assessors and comptroller of the city of Brooklyn, to cancel the taxes imposed for 1893, other than for state purposes, on certain property of the relator, and denied said motion.
    The facts, so far as material, are stated in the opinion.

      Jesse Johnson, for app’lt; Henry Yonge and Albert Q. McDonald, for resp’t.
   Gray, J.

The Pratt Institute was incorporated under chapter 398 of the Laws of 1887 ; for the purpose of establishing in the city of Brooklyn an educational institution, in which persons of both sexes may be taught various branches of useful and practical knowledge and through which advantages might be offered for mental improvement, in the establishment of lectures, art collections, etc., etc. It was provided in the act that “ any property in the city of Brooklyn actually occupied and used for, the purpose aforesaid, or the revenues of which are exclusively devoted to the purpose aforesaid, shall not be subject to local taxation ; but this exemption shall not apply to any property in excess of the value of three million of dollars.” The corporate property is within that limit of value and the question, which this proceeding presents, is whether the provision for exemption in the statute relates to taxation for city purposes only ; or to taxation for the purpose of both the city of Brooklyn and county of Kings. We think it very clear that the intention of the legislature was to exempt this corporation from all taxation, save for state purposes. The term “ local ” as applied to taxation would ordinarily be used, and it would be generally so understood, to distinguish it from that taxation which is general and for the whole state. As to the state, all taxation is local, which is not for the common benefit of its citizens, but only for those residing in a political subdivision or section.

When the legislature confers upon a corporation exemption from local taxation, its apparent object would fail of attainment, if the locality, from which is taken away the power to tax, be limited to the municipality, within which the property is situated; for the property would still be left subject to a local taxation for county purposes. That would not be a reasonable, nor a logical view of the legislative act. • The respondents argue that, the act fixes the locality of the exemption, when it speaks of “any property in the city of Brooklyn ” as not being subject to local taxation, and that the city only is deprived of the power to tax. The argument is forced. The legislature had in view a proposal to establish this beneficent institution in the city of Brooklyn, with all the benefits which would result to the community in that section of the state, and intended that its property, if acquired and used in that city for the corporate purposes, should not be taxed except only for state purposes. The compact with the state was that, in consideration of the grant of corporate franchises, powers and privileges, including immunity from any taxation of a local nature, the incorporators would establish and carry out their beneficent project, and the only limitation upon the exemption of property from taxation was that it should apply only to such property as was used by the corporation in the city of Brooklyn.

In our judgment this institution was given exemption from all taxation at the hands of local authorities, for the purpose of either the city or the county, and was only liable to assessment for what might be due to the state.

The order of the general term should be reversed and the order of the special term should be affirmed, with costs in general term and in this court.

All concur, except Andrews, Ch. J., dissenting, and Earl, J., not voting.

Ordered accordingly.


author: Earl, J.

text:
    Elizabeth Greenleaf et al., App’lts, v. The Brooklyn, Flatbush and Coney Island Railway Company et al., Resp’ts.

      (Court of Appeals,

      Filed February 27, 1894.)

    1. Partition— Title.
    A partition of land by action does not create title where none existed before.

      2. Ejectment—Eight to recover.
    To sustain ejectment, plaintiff, in the absence of any possession of the land, prior to the partition deed, in the parties to such action or their predecessors in interest, must show subsequent possession thereof prior to that of defendant, who was not a party to such action.
    8. Same.
    Merc payment of taxes, claims of title and assertions of ownership made even upon the land, do not show the actual possession which raises the presumption of title sufficient to maintain ejectment.
    4. Same—Admissions.
    Admissions of defendant’s grantor that plaintiff owned the land, when neither he nor plaintiff was in possession, do not bind the defendant, who subsequently took possession claiming to be the owner.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made July 21, 1893, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at special term dismissing the complaint.
    This was an action of ejectment.
    The facts, so far as material, are stated in the opinion.

      Mornay Williams .& Frederic A. Ward for app’lts; William G.

      De Witt for resp’ts.

       Affirming 54 St. Rep. 291.

   Earl, J.

The facts of this case are not materially different from those which appeared in the record when the cáse was before the second division of this court upon a former appeal Greenleaf v. B., F. & C.I. R. R. Co., 132 N. Y. 408; 44 St. Rep., 763. Now as then the plaintiffs rely mainly for their title upon a deed given under a partition of land by action between parties who are not shown ever to have had title to the land or the possesssion there-

A partition of land by action does not create title where none existed before. The sole effect can be to give title in severalty where before it was in common; and it establishes and settles the title between the parties to the action and their privies. It cannot have greater effect than a voluntary partition of the land by and between all the parties interested therein.

Such an action is not a proceeding in rem as such a proceeding is known to the law. In such a proceéding involving property the res is seized and really made defendant, and on adjudication establishing its liability or its status, if regularly made, binds the whole world. It has been found difficult to give a precise and comprehensive definition of a proceeding in rem or a judgment in rem , and we need not attempt it now. 2 Phil. Evi. 5; 2 Smith’s Leading Cases, 585; Freeman on Judgments [3d ed.], 654; Woodruff v. Taylor, 20 Vt. 65; Mankin v. Chandler, 2 Brock. 125.

In a partition action the land is not seized, and in no proper sense is it proceeded against. The action is commenced, and the court obtains jurisdiction, not by service of process upon theJand, but by service upon the persons jointly interested therein; and without the presence of persons properly made parties the court obtains no jurisdiction and its judgment would be an absolute nullity, binding upon no one. Such an action is no more a proceeding in rem than a foreclosure action, or any other action the purpose of which is to enforce or establish the rights and interests of parties in land.

Therefore, as the plaintiffs do not trace their title to the original patentee therefore, and are thus unable to show a claim of paper title, they must fail to recover the land in this action because neither they nor those under whom they hold ever had the actual possession thereof. Miller v. Long Island R. R. Co., 71 N. Y. 380 ; Roberts v. Baumgarten, 110 id. 380; 18 St. Rep., 162.

There need be no misapprehension as to what was decided upon the prior appeal. ■ It was there held that the deeds under the partition judgment were competent evidence, and yet not of themselves sufficient evidence to show title in the plaintiffs good as against the defendants in possession, and that the plaintiffs in order to establish a right to recover in this action, in the absence of any possession of the land prior to their deeds, must show subsequent possession thereof prior to the possession of the defendants. This they utterly failed to do. Mere payment of taxes, claim of title, assertions of ownership made even upon the land, mere words however emphatic, do not show the actual possession which raises the presumption of title sufficient to maintain ejectment.

The defendants do not claim title under the partition action and have no relation whatever to that action. Assuming that they took a deed from William A. Engeman, he did not claim any title under that action, and it does not appear that he ever had any title or possession, and his admission, if he made one, that the plaintiffs owned the land, neither he nor they being at the time in possession of the land, does not bind the defendants subsequently taking possession of the land and claiming to be the owners thereof, and relying upon their possession as sufficient evidence of ownership against the plaintiffs.

We, therefore, see no reason to doubt that the judgment below is right and it should be affirmed.

All concur.

Judgment affirmed.


author: Bartlett, J.

text:
    C. Elliott Minor, as Assignee, etc., App’lt, v. Cornelia A. Beveridge, Resp't.

      (Court of Appeals,

      Filed February 27, 1894.)

      1. Stock broker—Sale without notice.
    Where a stock broker, without due notice, sells stock purchased by him for a customer on a margin, he does not, as matter of law, thereby extinguish all claim against the customer for the advance made.
    3. Same—Damages.
    In such case, the measure of damages is the difference between the selling price and its market price then, or within such reasonable time after notice of sale as will enable the customer to replace it, in case such market price exceeds the price realized.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made January 13, 1893, which overruled plaintiff’s exceptions and ordered judgment in favor of defendant upon a decision of the court on trial at circuit dismissing the complaint.
    The nature of the action and the facts, so far as material, are set forth in the opinion.

      George W. Wingate and Max Stern, for app’lt; Eugene L. Bushe, for resp’t.

       Reversing 60 St. Rep., 486.

   Bartlett, J.

The plaintiff, as assignee for the benefit of creditors of P. W. Gallaudet & Co., stock brokers, sued the defendant to recover a balance alleged to be due from her on a speculative account which she had with Gallaudet & Co. at the time of their failure, November 10th, 1890.

The cause was brought on for trial at a circuit court in the city of New York and at the close of plaintiff’s case the complaint was dismissed and the exceptions ordered to be heard in the first instance at the general term. The general term overruled the exceptions and ordered judgment for defendant, dismissing complaint, with costs. The plaintiff appeals from that judgment.

The question presented is whether the trial judge was justified in taking the case from the jury. The defendant’s contention is that P. W. Gallatidet & Co. sold the stocks held in her account without notice, and for that reason their assignee cannot recover. The plaintiff insists that demand and notice were duly given to-defendant through her son, as her agent, before sale of the stocks, and that she is bound thereby; and even if there was a sale without notice, the defendant can only be allowed her actual damages-in reduction of .plaintiff’s claim. The evidence shows that Alven Beveridge, the son of the defendant, was the son-in-law of P. W. Gallaudet, and from the year 1881 to November 10th, 1890, the-day when the firm of P. W. Gallaudet & Go. failed, was a clerk of said firm; that on the 30t.h of May, 1881, the defendant, represented by her son, opened a speculative account with the firm which, with additions and changes made therein, remained open* until the day of the failure.

Our examination of the record satisfies us there is a conflict of evidence as to whether or not Alven Beveridge was the agent and representative of his mother, and accustomed for the nine years and more covered by her account, to receive the statements, demands and notices to which she was entitled, including the-demand and notice in this action.

We are of opinion that the trial judge erred in not submitting to the jury, as requested, the question, of notice, and whether it* was reasonable and legal under the circtimstances.

The plaintiff’s counsel insists that he was entitled to submit still another question to the jury.

There was evidence in the case tending to show that the stocks sold for defendant’s account on the 10th day of November, 1890, could have been repurchased in the open market within the next-fifteen days below the prices realized upon the sale. ,

The plaintiff’s counsel asked to go to the jury as to whether the defendant sustained loss by reason of said sale, and as to whether the defendant could not have replaced the stocks at the same price, or less price, than that for which they were sold, and within a reasonable time after the sale.

This request was refused. We think the trial judge should have submitted these questions to the jury under the settled law of this court that even where a stock broker sells without due notice stock purchased by him for a customer, on a margin, and held in pledge to secure the advance made by him for the purchase, he does not thereby, as matter of law, extinguish all claim against the customer for the advance, but the customer is entitled to be allowed as damages the difference between the price for which the stock sold and for which he received credit, and its market price then, or within such reasonable time after notice of sale as would have enabled him to replace the stock in case the market price exceeded the price realized. Gruman v. Smith, 81 N. Y. 25 ; Capron v. Thompson, 86 id. 418-420 ; Colt v. Owens, 90 id. 368-371; Porter v, Wormser, 94 id. 431-446; Wright v. Bank of Metropolis, 110 id. 237-246; 18 St. Rep. 92.

The defendant’s counsel relies on Gillett et al. v. Whiting, 120 N. Y. 402 ; 31 St. Rep. 495 ; decided by the second division of this court in June, 1890. as sustaining this last ruling of the trial judge. We are of the opinion that the point actually decided in that case does not affect the case in this court to which we have already referred.

In Gillett et al. v. Whiting, the plaintiffs were stock brokers and brought the action to recover a balance alleged to be due on account of stock transactions between the parties.

In submitting the case to the jury the defendant’s counsel requested the court to charge, that in case the plaintiffs sold the stock without notice to the defendant as to the time and place of sale, by doing so, they violated their duty to the defendant and converted the stock to their own use.

The court refused to so charge, the defendant excepted, and the jury found a verdict for the plaintiff.

The sole question presented ou the appeal was defendant’s right to have jury charged that a sale of his stocks by the broker without notice was a conversion.

The second division of this court very properly held that the judge should have so charged the jury, and reversed the judgment. The effect of the conversion, if found by the jury, was not presented on the appeal.

The remarks, therefore, of the court as to the effect upon plaintiff’s course of action if conversion of the stocks should be established were obiter.

The cases we have cited were neither referred to in the briefs of counsel nor the opinion of the court.

The judgment appealed from is reversed, new trial granted, with costs to abide event.

All concur.


author: Per Curiam.

text:
    In the Matter of John E. Mason, a Student at Law.

      (Court of Appeals,

      Filed, December 19, 1893,)

    Attorneys—Admission.
    The court of appeals will not dispense with subd. 8 of its rule 4 in favor of a student whom his academy did not notify of his failure to pass in one of the required studies.
    Appeal from supreme court, general term, fourth department.
    John E. Mason a student at law, moves the court for exemption from rule 4, subd. 3, requiring proof that an applicant for .examination for admission to practice as attorney or counselor at law, within three months after beginning his clerkship, passed the regents’ examination ; this, on the ground that applicant’s academy had failed to inform him of his failure to pass in one of the required subjects. Motion denied.

      McMahon & Ourtin, for the motion.
   Per Curiam.

This seems to be a hard case on the law student, and the blame of his failure to know that he had not passed in the particular study in September, 1890, seems to lie equally upon the Rome Academy and upon himself. Under our decision in Re Moore, 108 N. Y. 280; 13 St. Rep. 621, we think we cannot grant the present application. The motion is denied. £

All concur, except Peckham, J., dissenting.


text:
    Emma Dunckel, Resp’t v. William Dunckel, App’lt.

      (Court of Appeals,

      Filed, February 27, 1894.)

    1. Specific Performance—Prerequisites.
    In order to the' specific performance of a parol agreement for the purchase and sale of land, the agreement must be clearly proved and certain as to its terms.
    2. Same—When Decreed.
    When the consideration has been paid and possession under the contract taken, the agreement will be specifically enforced.
    3. Appeal—Discretion.
    Such performance rests largely in the discretion of the equity courts and the exercise of such discretion not reviewable in the Court of Appeals.
    4. Same—Harmless.
    Where no relief is based upon the verdict and findings, and they, in no way, enter into or affect the judgment, they are entirely harmless.
    5. Same—Objection.
    An objection, to be available, must be followed by an exception.
    Appeal from judgment of the general term of the supreme court in the third judical department, entered upon an order made September 13, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.
    This action was commenced by the plaintiff to compel specific performance of an oral agreement made with her by the defendant to execute to her a life lease of certain land owned by him.
    The facts, as alleged in the complaint, are as follows: The plaintiff married the defendant’s son, John A. Dunckel, in 1862. In 1866 he was engaged in business in Fort Plain,- and, with the approval of the defendant, he negotiated for the purchase of a dwelling house for the price of $2,500, which the defendant agreed to pay for him. - To protect the house against any misfortune in his son’s business, he agreed to take the deed in his own name and hold the title for him and his family. The son was to improve the house at his own expense, and whenever it was deemed safe and proper, or desirable by his son, he was to deed the house to his son or his family, as the situation and circumstances at the time might require. In pursuance of this agreement the house was deeded to the defendant ; his son took possession thereof, made improvements thereon to the extent of $3,000, and continued with the plaintiff to occupy the same and to reside therein until his death in February, 1883. During the life of his son the defendant frequently promised to convey the house to his son or his family, but finally refused to do so, although he did not deny his promise. At the time of his son’s death he was indebted" to various persons upon promissory notes upon which the defendant was indorser. He was anxious about such indorsements and apprehensive that he might be required to pay the notes. The plaintiff was the sole beneficiary under the will of her husband, and the executrix named therein. Soon after the death of her son, and before the probate of the will, the defendant requested the plaintiff to pay the notes, and agreed with her that if she would pay and satisfy all the notes she would not be disturbed in the possession and use of the house during her life, and that he would execute to her a lease thereof for and during her life; and she thereupon promised him that she would pay the notes as soon as possible within her means. Thereafter, from time to time, she paid the notes, paying the last of them on the 26tli day of January, 1884, the whole amount paid being $7,122.12, and she delivered all the notes properly discharged to the defendant, who retained the same. Thereafter he refused to execute the lease to her or to recognize her right in the house, and denied the agreement he had made with her, and threatened to remove her from the house. Since the purchase of the house it had largely increased in value, and was worth between $6,000 and $7,000. She prayed for felief that the defendant be compelled to execute to her a deed of the house, or a lease thereof for her life, or that he pay to her the sum of $3,000, expended by her husband in improvements upon the house. The defendant denied all the promises and agreements alleged in the complaint, and claimed judgment for the possession of the house.
    This case has been twice tried. Upon the first trial the following questions were submitted to the jury :
    “ 1. Did defendant buy the premises with the promise and agreement that he would convey the same to John or any of John’s family, at some time, without the payment of anything therefor by John or any of his family ?
    “ 2. Did John make and pay for permanent improvements upon said premises out of kis own means, with defendant’s knowledge, relying upon such agreement?
    “ 3. Did the defendant, after the death of John, agree that, if the plaintiff would pay and save the defendant from paying the notes of John on which the defendant was liable, he would give the plaintiff a lease of the property for life ?
    “ Did the plaintiff pay the notes, relying upon the agreement to give a lease for life or give her the money John had expended for repairs ? ”
    The jury answered the first two questions in the negative, and the last two in the affirmative, and the court thereafter made findings in fact and law, adopting the verdict of the jury in answer to the questions submitted to them, and gave the plaintiff judgment directing the defendant to execute to her a life lease of the premises. The defendant then appealed from the judgment to the general term, so far as the same was based upon the findings of the jury in answer to the last two questions. The general term reversed the judgment and granted a new trial. Bunded v. Bundeel, -56 Hun, 25 ; 29 St. Eep., 477. Upon the new trial the court submitted to the jury the following questions:
    “ 1. Did the defendant buy the premises with the promise and agreement that he would convey the same to John or any of John’s family, at some time, without the payment of anything therefor by John or any of his family?
    “2. Did John make or pay for permanent improvements upon said premises out of his own means, with defendant’s knowledge, relying upon such agreement ?
    “ If so, what amount ?
    “4. Did the defendant, after the.death of John, agree that if the plaintiff would pay and save the defendant from paying the notes of John on which the defendant was liable, he would give the plaintiff a lease of the property for life or that he would pay her what John put in the place ?
    “ 5. Did the plaintiff pay the notes relying upon the agreement to give a lease for life, or to give her the money John had expended for improvements ?
    “6. Did plaintiff pay any other or further sum on the notes executed on which defendant was liable as indorser on the faith of such agreement than she was legally bound to pay as executrix of the estate, and if so, what sum or about what sum? ”
    The jury answered all the questions in the affirmative, and found in answer to the third question $2,800, and in answer to the sixth question, “Yes, about $875.”
    The court subsequently made findings of fact and law, adopting the verdict of the jury in answer to the questions submitted to them, and ordered judgment against the defendant requiring him to give the plaintiff a lease of the premises for life. The defendant appealed from the judgment to the general term and then to this court

      Z. ,S. Westbrook for app’lt; B. Countryman for resp’t.

       Affirming 47 St. Rep. 933.

   Earl, J.

J. We are concluded by the finding of the court below that the defendant made the agreement to give the life lease alleged by the plaintiff. Whatever doubt existed as to that agreement has been cleared up by the verdict of the jury and the findings of the trial court. ‘

One of the prerequisites to the specific performance of a parol agreement for the purchase and sale of land is that the agreement should be clearly proved and certain as to its terms. But that is a rule to be observed and enforced in the equity courts which deal with the facts. When the agreement has there been found upon conflicting evidence, and is certain in its terms as found, it must be taken here as clearly established within the rule, and what was before uncertain has become certain.

There is a further rule that the specific performance of contracts rests largely in the discretion of the equity courts—not wholly, but in a discretion to be governed by rules which have become established for the guidance of such courts. That, again, is a rule to be generally administered in the equity courts. So far as they exercise their discretion, violating no fixed laws of equity, such discretion is not reviewáble here.

We have, therefore, only to determine now whether there was such part performance of the agreement found below as to take it out of the Statute of Frauds, and whether any errors were committed upon the trial affecting the judgment rendered.

We think there was such an agreement partly performed as ought to be enforced. We must look at the situation as it existed when the agreement was made. At that time both parties supposed the estate of John A. Dunckel would prove insufficient to pay his debts. The defendant was fearful of his responsibility on account of his endorsements upon his son’s notes, and wished to be relieved from all anxiety about them, and he proposed to the plaintiff that if she would pay those notes and save him harmless from his endorsements thereon he would give her the life lease, and she accepted the proposal and promised to pay the notes. It was then uncertain how much she would have to pay, and she took the risk as to the amount. The will of her husband had not then been proved, and she was under no obligation to take upon herself the burden of administering upon an estate then supposed to be insolvent." How, what did she do in pursuance of the agreement? She had the will probated, and qualified as executrix thereof. She administered upon the estate. and converted the assets into money. She speedily paid all the notes, using for that purpose some of her own means. She fully protected the defendant against any liability on account of his indorsements, and she surrendered the notes discharged to him, and she remained in possession of the house under the agreement. It is thus seen that the amount of her own money paid upon the notes was not the only consideration moving from her for the lease to be given. There was also the risk and labor and the protection given to the defendant. If she should now fail to obtain the lease from the defendant she could not recover back from them any of the money paid to the holders of the.notes. The defendant has not offered to pay back any of it, and if she should attempt to enforce payment from him she would have the burden of establishing the disputed agreement, while he held the discharged notes, the most conclusive proof of the payments by her and the amounts thereof.- To all this must be superadded the fact that for nearly three years she had the undisputed possession of the premises under the agreement. We think these facts are sufficient to authorize the specific performance of the agreement, and we know of no authorities holding that under such circumstances specific performance should be refused. The authorities upon this subject are very numerous, and it would not be useful now to cite or comment upon them. Many of them will be found in the learned briefs submitted to us upon the argument of this case. We think it is a general rule to be gathered from the authorities that mere payment of the purchase price of land is not sufficient to authorize the specific performance of the contract of sale unless the peculiar circumstances of the case be such that an action at law to recover back the money paid would not give the purchaser an adequate remedy. But it is also a general rule that when the consideration has been paid and possession under the contract of sale has been taken, the contract will be specifically enforced, and to take the case out of this rule the circumstances must be peculiar and exceptional. This general rule is applicable to this case.

Upon the first trial of this action the jury answered in the negative the first two questions submitted to them in reference to the promise of the defendant that he would convey the premises to his son or his family, and in reference to the improvements to be made on the premises by his son. The findings of the jury in answer to those questions were adopted by the court and not disturbed by the decision upon the first appeal. The defendant objected to the submission of those questions again to the jury upon the second trial, and to all evidence in reference to them, and his counsel now claims that there was error in overruling those objections. The verdict of the jury answering those questions in the affirmative upon the second trial, and the findings of the court based thereon, were, as findings, entirely harmless, because no relief whatever was baséd upon them, and they in no way entered into or affected the judgment. But upon the first appeal to the general term the judgment was reversed as to the agreement made by the defendant with the plaintiff subsequently to the death of her husband that he would give her the life lease, and the whole case was thrown open for the trial of the issue as to that agreement, and the introduction of any evidence bearing thereon. Hence, the situation and value of the premises, the circumstances attending their purchase and subsequent possession, the improvements made thereon by the son, and the circumstances under which they were made, and the relation of all the parties to the premises were properly put in evidence as bearing upon the issue upon trial and the general equities of the case, and particularly to show that it would not be inequitable to compel the defendant to perform his agreement with the plaintiff. A careful scrutiny of all the evidence satisfies us that no harmful or embarrassing evidence was erroneously received against the defendant.

The further objection is made that the judgment should have been in the alternative, requiring the defendant to give the lease or pay the $2,800 expended by plaintiff’s husband upon the premises for improvements thereon. The answer to this objection is that there is no exception in the record which presents this point for our consideration. It does not appear that the defendant requested that the judgment should-be in the alternative, and for aught that appears he may have assented to the form of of the judgment. This is certainly a permissible view to take of the record, and we are the more willing take it because the - record shows that the plaintiff was willing to take in lieu of the lease what her husband had paid for improvements, and even upon the argument of this case her counsel stated that she was now willing to take the $2,800; and his offer that the judgment-might be amended in that respect if more acceptable to the defendant met with no response from his counsel.

Our conclusion, therefore, is that the jungment should be affirmed, with costs.

All concur.

Judgment affirmed.


text:
    John J. Russell, as Administrator, etc., App’lt, v. Laura S. McCall, as Executrix, etc., et al., Resp’ts.

      (Court of Appeals,

      Filed February 27, 1894.)

    1. Copartnership—Surviving partner.
    When the surviving partner misappropriates and converts the firm assets to the use of himself and others, he is so far guilty of a breach of trust that a court of equity may give appropriate relief.
    3. Same—Bar.
    A judgment, in an action against him therefor, for the amount found due the deceased partner’s estate, is not in the least inconsistent with the right to pursue other wrongdoers who have rendered themselves liable as trustees de son tort.

    3. Same—Effect of judgment.
    Until satisfaction of such judgment, it gives the surviving partner no greater rights over the assets than he had before its rendition.

      4. Same.
    Such judgment is a bar as to him in a joint action, but no defense as to the wrongdoers not previous sued.
    5. Same—Evidence.
    Such judgment is conclusive evidence against the surviving partner in the joint action, but is no other evidence against the other defendants.
    6. Same—Liability of wrongdoers.
    Each one of the several wrongdoers is severally liable for the full amount of the misappropriation.

      7. Same—Defense.
    The fact that one of the defendants claims to be a creditor of the firm, is not a defense in the conversion action.
    8. Trial—Laches.
    When the record discloess reasonable cause for the delay, a refusal to dismiss the complaint on the ground of inexcusable laches is proper.
    9. Same—Reference.
    The court may, instead of entering an interlocutory judgment and sending the matter to a referee, take the evidence himself and order final judgment to be entered in accordance therewith.
    Appeal from order of the general term of the supreme court in the first judicial department, made March 17, 1893, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term and granted a new trial.
    For some time prior to Feb. 21, 1880, one Sehamu M. Moschcowitz and Miss Mary A. Bussell, were partners with equal interest in the dress-making business in New York city, under the firm name of Moschcowitz & Bussell, having a place of business in Fifth avenue.

      On the day mentioned Miss Russell died in New York and left a will, which was subsequently duly proved, in which she appointed her sister, Elizabeth L. Russell, executrix thereof, who •subsequently duly qualified.
    At the time of this death the partnership had large assets, consisting of stock in trade, accounts and an unexpired term in the real property in Fifth avenue, where the business had been carried •on. The surviving partner took possession of the firm assets and 6 ■continued the business until May 1, 1880, at which time is was ascertained by him and James McCall that the assets of the late firm amounted to a little over $51,000 above all liabilities, and all the liabilities of the late firm were paid and discharged, except a claim made against it by one Herman Moschcowitz, a brother of Schamu, which claim was not admitted, but provision for it was made in the - judgment hereafter referred to. In May, 1880, Schamu Moschcowitz and James McCall formed a partnership, under the name of Moschcowitz & Russell, for carrying on the same kind of business at the same place as the late firm. The capital upon which this new firm carried on the business consisted solely of the assets and good will of the late firm. Of this fact James McCall had at all times full knowlege. This capital was used by the new firm for their own purposes, and no part was paid over to the representative of the deceased partner.
    This new firm continued business until Jan., 1881, when a new partner was added in the person of the brother Herman, and the firm name was changed to that of Moschcowitz Brothers. The sole capital of this firm consisted of the assets, proceeds of assets '.and good will of the old firm of Moschcowitz & Russell, of which Miss Russell was a partner when she died. Of this fact all members of the firm had full knowledge, and the two firms appropriated to their own use all the surplus assets belonging to the old ■original firm.' In Feb., 1882, McCall commenced an action to wind dp the affairs of the partnership of Moschcowitz Brothers, .and on March 10, 1882, Schamu M. Moschcowitz was appointed receiver of all its assets. The case proceeded to judgment declaring the partnership, and ordering a reference to take an account, etc. The receiver sold assets and realized some $7,000, which were, by order, deposited, in a trust company, subject to further ■directions.
    In Oct., 1880, the executrix of the late partner commenced an action against the survivor for an accounting, and in - the complaint it was alleged that the defendant had then received sufficient assets to have paid off all its debts and have closed up the business, but that he had neglected to do so, and had continued in possession of the real estate, and carried on the same kind of business theretofore conducted in the lifetime of Miss Russell, and that he .used the assets and property of the late firm in his business, and made no effort to sell or dispose of the same, except in the course of his business, and that he had then in his possession, unsold and , undisposed of, the greater part of the assets and property of the late firm, which were becoming constantly less and less valuable. The plaintiff asked for an accounting and a judgment in her favor for the amount that might be found due, and that a receiver might be appointed, and the defendant restrained from continuing the business and from using the old firm name. Issue was joined and the case tried, and upon the accounting the amount of the plaintiff’s interest as executrix in the assets of the late firm was determined, and a judgment entered personally against the survivor, and a proviso made therein of his paying to a trust company an amount sufficient to pay any claim that Herman Moschcowitz might establish against the late firm. Judgment for the balance of some $14,000 was given, but on appeal to the general term that balance was reduced to a small sum of between three and four hundred dollars. This judgment as modified has never been satisfied, nor has the surviving partner ever complied with its terms by making the deposit provided for thereby. The judgment as modified by the general term was entered in Oct., 1886. In 1888 the executrix of the deceased partner commenced this action, and, having since died, the plaintiff has been appointed administrator of the estate of tlie deceased partner, with the will annexed, and as such has been substituted as plaintiff. The action is against the survivor, Schamu M. Moschcowitz, both individually and as receiver of the firm of Moschcowitz Brothers, also against Herman Moschcowitz, and Laura S. McCall as executrix of the will, etc., of James McCall, deceased, the partner in the two firms already mentioned.
    The plaintiff in the complaint alleged, upon information and belief, the facts above detailed as to the formation of the firms and their use of the assets of the late firm.
    A claim was also set up therein of a lien in favor of the plaintiff, upon the amount of money paid into the trust company by the receiver of Moschcowitz Brothers, after expenses of its administration, which claim of lien was founded upon the allegation that the money represented the proceeds to that extent of the assets of the old firm. Judgment against all the defendants was asked for the amount of the judgment against Schamu M. Moschcowitz already recovered, and also for an injunction restraining defendants from interfering with the fund on deposit, or the other assets.
    The Moschcowitz Brothers answered, and, among other things, alleged the commencement of the action against Schamu and the judgment therein, and claimed that the plaintiff was not entitled to another judgment against the defendants, or any of them, for the amount of assets that came into their hands, or for any other sum whatever. Laura McCall answered and denied the allegations of the complaint, set up the defense that the assets of the firm had been disposed of by the survivor under the permission of the executrix of the deceased partner, and that for her interest in the assets she had recovered a judgment against the survivor, and that the assets had been lawfully disposed of by him. Also, that all the moneys, assets, etc., claimed to be recovered in this action, were in the custody of the court of common pleas, and that the defendant was entitled to the whole of them. It also appears that, at the time of the death of Miss Russell, James McCall was a creditor of the firm to the amount of some $18,000. That sum was paid during the subsequent time by reason of transactions of McCall with the succeeding firms, by which it is claimed that he became their creditor to the extent of over twenty thousand dollars. Schamu M. Moschcowitz always denied that McCall was ever a partner in either firm, although the fact was otherwise found in the suit which McCall instituted to dissolve the partnership.
    Upon the trial it was found, in addition to the foregoing facts, that the estate of McCall was in no event liable to Herman Moschcowitz by reason of any claim he might have against the old firm in which Miss Russell was a partner. Judgment, was ordered in favor of plaintiff and against defendant McCall for the amount of the share of the assets of the old firm due plaintiff as administrator, with interest and costs. Ho further personal judgment was given against Schamu M. Moschcowitz and none was given against Herman Moschcowitz. Ho one but the defendant McCall appealed from the judgment. Upon her appeal the general term of the supreme court reversed the judgment upon the facts as well as upon the law and granted a new trial, and the plaintiff has appealed from that order, giving the usual stipulation for judgment absolute against him in case the order be affirmed.

      Peter A. Hendrick, for app’lt; George Hoadly, Barclay E. V. McCarty and Henry L. Scheuerman, for resp’t.

       Reversing 53 St. Rep., 53.

   Peckham, J.

The judgment which the plaintiff obtained in this action at special term is here assailed by the counsel for the defendant, Mrs. McCall, upon several grounds that will be alluded to in their order.'

First. The defendent claims that the executrix of Miss Russell, by commencing her action against the surviving partner to recover the decedent’s share of the partnership assets and in prosecuting the same to judgment, is barred from suing the surviving partner again, and joining with him Mrs. McCall upon the same cause of action. It is now asserted by counsel for defendent McCall that when the other action was commenced the executrix knew all the facts connecting McCall with the misuse or misappropriation of the assets of the partnership. The special term did not find that she was ignorant, and on the other hand it refused the defendant’s request to find that she had at that time full knowledge of these facts. The general term said that it could not be found, in view of the plaintiff’s allegations in the suit against the surviving partner, that she was ignorant of his misappropriation of the assets when she commenced her suit against him and yet (the court says) in the face of such allegations in her complaint the plaintiff took a personal judgment against the survivor for the value of her share therein, the -result of which the court holds was to bar the plaintiff from impeaching the title of any one who came into possession of the assets through the surviving partner. Whichever way the fact might be determined we think it is immaterial in this case, and for the further discussion of this point we will assume full knowledge on the part of the executrix of all the facts at the time she commenced her action against the survivor. In that case we think there was no election of inconsistent remedies such as should bar this action.

Upon the death of Miss Russell, the surviving partner, Moschcowitz, had certain powers, rights and obligations granted to and placed upon him by reason of such death. He had the legal title to the assets and he held them as the legal owner, and not as trustee, in the strict sense of that term. In equity, however, he was to be regarded to some extent as a trustee, and his duty was to pay the debts and dispose of the assets of the partnership for the benefit of himself and the estate of the deceased partner. Case v. Abeel, 1 Pai. 393 ; Williams v. Whedon, 109 N. Y. 333; 15 St. Rep. 265; Preston v. Fitch, 137 N. Y. 41, 56; 50 St. Rep. 72. The position is somewhat anomalous, not exactly and wholly a trustee, and yet not a full owner of the assets which he takes or retains possession of by reason of survivorship. The duties spoken of he owes the estate of the deceased partner, and when, instead of gathering in the assets, paying the debts, winding up the business and distributing the surplus, he misappropriates the same and converts them to his own use and that of others with him, he is so far guilty of a breach of trust that a court of equity will, when called upon, intervene and give appropriate relief.

This was the object of the first action. The court was asked to decree an accounting, and as a ground for the request it was alleged that the defendant was violating his duty, converting the assets to his own use in his own business and failing to apply them to the payment of the debts of the partnership. Judgment was asked for the amount which might be found due upon such accounting. In all this there was nothing inconsistent with the cause of action set forth in the complaint now under review. Even in equitable actions of account, it frequently, if not generally, results that a pure and simple money judgment will be entered against the defendant. The inquiry by means of an account is proceeded with and the result being determined, if it show an amount due the plaintiff, a judgment therefor may properly be entered. 1 Pom. Eq. Jur., third clause, § 110; id. § 140; 3 id. § 1421. But this kind of a judgment is not in the least inconsistent with the right to pursue other wrongdoers who, by intermeddling with the property and assets of the estate, have rendered themselves liable as trustees de son tort for the wrong done. 1 Perry on Trusts, § 245; Flockton v. Bunning, cited in note to Vyse v. Foster, L. R. (8 Ch. App.) 309 at 323 ; Lindley on Part. 531.

The survivor of the partnership did not become the full and absolute owner of its assets upon the entry of the personal judgment against him, nor was there any election on the part of the plaintiff by reason of that fact to look only to the one wrongdoer when there were others equally liable. If the personal judgment were paid, then indeed the plaintiff’s rights and equities in the property would be changed and he would be precluded from any further claim upon it. Until satisfaction of that judgment, however, the plaintiff could not be barred from further efforts to obtain relief against other wrongdoers. Even in an action of trover for the conversion of a chattel, a judgment unsatisfied does not change the property and is no bar to an action against any one of the other wrongdoers. Osterhout v. Roberts, 8 Cow. 48 ; Sessions v. Johnson, 95 U. S. 347, 349. And by subsequently suing other wrongdoers who had wrongfully interfered with the property, it is not a following of trust funds into other property in which they have been invested, within the rule on that subject as claimed by defendant’s counsel and of which Ferris v. Van Vechten, 73 N. Y. 113, is an example. There is no inconsistency in holding the trustee personally responsible, and also pursuing other wrongdoers and seeking relief against them as trustees de son tort by way of damages for the same wrong.

It is true that one cannot recover the purchase price of land and the land too. If one choose to hold his trustee for the amount of the price he received for trust property wrongfully sold, it may well be that the plaintiff thereby affirms the sale and seeks to recover the price. This is no such case. The plaintiff does uot seek to hold the property which has been substituted in place of trust funds and to hold the trustee also. There has been no substitution of trust property, but the funds themselves have been converted by the survivor and others to their own use, and the plaintiff asks to recover damages for that wrong. Because the survivor was proceeded against alone, and a personal judgment recovered against him which has not been satisfied, furnishes no evidence of an election of inconsistent remedies to the extent of freeing the other wrongdoers from the consequences of their wrong.

The case cited by defendant’s counsel, of which Fowler v. Bowery Savings Bank, 113 N. Y. 450; 23 St. Rep., 130; and Terry v. Munger, 121 N. Y. 161; 30 St. Rep., 746, are examples, are not in point. In the former action the plaintiff, by commencing his action against the person to whom the defendant bank had paid the money, affirmed the validity of the payment and sought to recover its amount from him. After failing to recover-the amount on a judgment entered against him, the plaintiff then commenced his action against the bank and sough to recover from it on the ground that the bank had never made a valid payment of its debt. We held the plaintiff had made an election to consider the payment made by the bank to the third person as a valid payment of such debt so far as the bank was concerned, and the plaintiff ratified it by commencing this suit.

In Terry v. Munger, the owner of the property elected to treat its conversion as a sale and commenced "his action accordingly. It was held he could not thereafter commence an action against others in which his cause of action was founded upon the conversion instead of the sale of the same property upon the same occasion and in the same transaction. In all the cases cited there is an element of inconsistency involved in which the plaintiff seeks to occupy with reference to the same transaction and upon the same fapts, a position which is antagonistic with one already taken by him. I can see none such in this case. He took no position, proved no fact, asked for no relief in the first case which is in any way inconsistent with the position he now assumes, unless it be said that the recovery of the personal judgment has effected this great change. For the reason already given, I do not think it has.

The failure to have a receiver appointed in the first suit is, as it seems to me, immaterial. The point is that no absolute right to these assets, freed from any duty with regard to them, was ever transferred to the surviving partner by reason of tlie mere entry of this personal judgment so long as it remained unsatisfied. Mor are the other defendants absolved by any such reason from answering to the plaintiff for what would otherwise be a conceded wrong. Mo cause of action against them for such a wrong was waived or in any wise affected by the plaintiff’s effort to recover the value of the assets which the survivor had misappropriated, or shared with others in misappropriating. It was simply a separate proceeding against one wrongdoer, and no satisfaction.

In this case the survivor has in fact never transferred the assets to others. He has simply shared with others in the misappropriation of the firm assets, and I can see no principle upon which a proceeding against one of the wrongdoers should be regarded as an election to dismiss the others from all liability arising out of the same wrong. Under these circumstances the defendant can obtain no consolation from the entry of that judgment.

Second. The defendant also objects that the plaintiff’s right of action was merged in the judgment recovered against the surviving partner.

Where there is a joint indebtedness (not a joint and several) a judgment recovered against one of two or more joint debtors merges the original debt in the higher security of the judgment, and no action can thereafter be maintained against any of the other defendants, even though no satisfaction is received of the judgment against the" one debtor. King v. Hoare, 13 M. & W. 493, ; Olmstead v. Webster, 8 N. Y. 413; Candee v. Smith, 93 id., 349, 352, and cases cited; Mason v. Eldred, 6 Wall. 231. But a judgment against one wrongdoer unsatisfied is not a bar to the maintenance of an action against the others. Livingston v. Bishop, 1 Johns. 290; Osterhout v. Roberts, 8 Cow. 43; Lovejoy v. Murray, 3 Wall. 1, where Mr. Justice Miller reviews the cases; Sessions v. Johnson, 95 U. S. 347, 348. By taking judgment against the survivor the plaintiff did not make the partnership assets the absolute property of the survivor free from any duty on his part regarding them. Mor did he thereby vest in such survivor a legal right to convert those assets and apply them to his own use, or to transfer them to a mere volunteer free from all liability to the estate of the deceased partner. Until the judgment against the surviving partner was satisfied he took no further or greater right to the assets than he had before. Of course, as survivor and originally he could sell or mortgage them or otherwise dispose of them for the purpose of paying the debts and winding up the affairs of the partnership and making distribution of the surplus, but I think the entry of the judgment gave him no greater rights over the assets of the partnership than he had before. Satisfaction of the judgment was necessary for that result.

Third. The defendant also objects that even if the parties were all wrongdoers in such manner as to render them jointly and severally liable, then the judgment against Schamu M. Moschcowitz, one of the wrongdoers, is a bar to an action against all of them, on the ground that pursuing one of the parties severally is an election to sever the joint liability, and it cannot be revived. Counsel cites Sessions v. Johnson, 95 U. S. 347 ; Daniel on Negotiable Instrmts., § 1296, and Story on Bills, § 428, as authority for his contention, and he urges that this is a matter which the party who has not before been sued can take advantage of, because the plaintiff has elected a different remedy which operates as a general bar to the maintenance of the action.

The principle claimed is applied in the two above-cited works upon negotiable paper to contracts of a joint and several nature, while in the case of Sessions v. Johnson, supra, the court, in deciding another matter, asserts the principle that a party who sued any one of several wrongdoers and had judgment could not after-wards seek his remedy in a joint action against all, because the prior judgment against one was in contemplation of law an election op his part to pursue his several remedy. Where there is a joint and several contract it is held that the plaintiff may sue jointly or severally, but he cannot do both, and the pendency of one suit may be pleaded in abatement of the other. In such case there is, it is said, an obligation as to which character of the expressed contractual obligation the party will enforce. Ex parte Rolandson, 3 P. Wms. 405 ; 5 Robinson’s Prac. 823. In the P. Williams case above cited it is stated in a note (page 405) that if three are bound jointly and severally the obligee cannot sue two of them jointly, for this is suing them neither jointly nor severally. In regard to the liabilities of joint and several tort feasors the law is not so clear. I think there is a radical difference in principle between a joint and several obligation evidenced by an expressed contract or arising by implication from the facts proved, and a joint and several liability on the part of several tort feasors. A joint and several obligation based on a note, bond or other written contract, or one arising out of an implied contract, is a well known kind of obligation, and its legal meaning had come to be that each one was liable to a separate suit, or that all were liable to a joint suit, and in no other way could they be held. This was part of the obligation they entered- into. But a joint and several liability, arising out of a particular wrong having been done the plaintiff by several wrongdoers, is not so precisely limited. Thus, Cooley says that in such case more than one and less than all may be sued. Cooley on Torts, 133. And in suing less than all it is not an election to take one of two remedies which the defendants have by their contract consented to give the plaintiff his choice of, but have not consented to give both. It is more like- the pursuit of certain of the wrongdoers who are in any event liable, and if unsuccessful in obtaining satisfaction the right remains to pursue others, although in each case the defendants chosen may have been more than one and less than all the wrongdoers, and so the remedy may have been strictly neither joint nor several, as that term is applied to cases of joint and several contractors. Hence, when, subsequent to the first action, the plaintiff commences one against all of the wrongdoers, he has not lost the right to maintain it by reason of an election to waive such a remedy, but he has lost it only as against those whom he has already sued, and he has lost it in their case only for the reason that he has no right to vex them twice for the some cause of action. The parties who have not been already sued cannot take advantage of this ground as a defense on their part. As to them the plaintiff has made no election of remedies and their liability remain unaffected.

I think the objection to maintaining the joint action ought to be held personal to the one who has already been sued and against whom judgment has already been obtained. His objection is pertinent, he has once already been proceeded against and judgment has gone against him, and he ought not to be again vexed for the same cause. I have found no case where the objection has been made and allowed in favor of a defendant who had not before been sued. I see no reason why it should be. He has not been harmed in any conceivable way, nor his interests or defenses in the least degree jeopardized.

In this case the trial resulted in a judgment against the defendant, McCall, only, who was not before sued. The trial court refused to give a further judgment against the survivor in the „ partnership. It was in effect the same as if there had been a discontinuance as against that defendant. I do not understand the defendant to question the proposition that a plaintiff can pursue the several wrongdoers separately, although while obtaining several judgments he can have but one satisfaction. So here, if he had pursued McCall alone subsequent to the judgment against the survivor, such action, so far as this point is concerned, could be maintained. The course pursued is the same as a discontinuance, and I think that would be, in effect, the same as if the action had not been brought against the party in regard to whom a discontinuance was entered. That McCall, by taking this property and applying it, with the surviving partner, to his own uses, with knowledge of its character and without paying any consideration therefore, can be properly treated as a wrongdoer and trustee de son tort, and be made liable in an equitable action for his acts, is, as it seems to me, undoubted. Vyse v. Foster, L. R. (8 Chy. App.) 309, 323; Flockton v. Bunning, note to above case, at page 323; Perry on Trusts, § 245; Hooley v. Gieve, 9 Abb. N. C. 8; In re Jordin, 2 Federal R. 319; 2 Pom. Eq. Jur. 1079. Although the party sued the second time in this action did, by his answer, take the objection that no further judgment ought to be entered against him, yet as none was entered he has no further cause of complaint, and he took no appeal from the judgment that was entered herein against McCall. As to McCall, we think the judgment was a proper one, so far as this point is concerned.

Fourth. The objection that plaintiff is only entitled, in any event, to recover the balance over and above the amount which was ordered to be deposited by the court in the other action to meet the possible claim of Herman Moschcowitz, and which balance is only about $300, cannot prevail. ‘ Herman is a party to this suit, and it has been found that in no event is the estate of McCall liable to -him for any portion of his claim against the old firm, and Herman has not appealed. That amount cannot be properly deducted from the amount of McCall's liability for the-value of the share of the estate of the deceased partner which came into the hands of the firm, and was converted to his use. Each one of several wrongdoers is liable for the full amount of the conversion or misappropriation. Atty-Genl. v. Wilson, 2 Cr. & Ph. 1; Cunningham v. Pell, 5 Pai. 607; 2 Pom. Eq. Jur., note at end of § 1081.

By this judgment there is no danger of the defendant’s estate being made liable to pay the second time. McCall’s estate stands in no position as surety for any creditors of the original firm. It is found that the estate of McCall owes a certain sum to plaintiff as payment for one-half the assets of the old firm for which the estate is liable. Whether plaintiff, as administrator, will have to pay anything by ryay of satisfaction of the debts of the old firm will be known hereafter when Herman endeavors to prove his claim. McCall’s estate-has no interest in that question, nor has it any in the question whether the individual creditors of Miss Russell, the deceased partner, will be able to obtain payment out of the assets that are to be paid over under this judgment before a creditor of the partnership will be able to do so. These various creditors will enforce wha't rights they have without any aid from McCall’s estate as a volunteer on that subject. It is not to be assumed that any improper or undue preference will be obtained by any one after the McCall estate has made its payment to the plaintiff. A payment under this judgment will protect all the rights of the estate. And, lastly, there are no debts left excepting the claim of Herman, which is disputed.

If this judgment is paid it will satisfy the judgment against Schamu M. Moschcowitz, obtained by this plaintiff, and if that judgment should be paid, it will satisfy this one as to principal and everything but costs. There is no difficulty in providing for but one payment and a satisfaction of both judgments thereby.

Fifth. The judgment against the surviving partner was not used as evidence against the McCall defendant as to the amount or value of the assets converted. The learned judge held it was conclusive against the plaintiff, but that it was no evidence against defendant as to what the value of the property was, and he said that upon the evidence in the case outside of the judgment he thought the value was greater than had been allowed in the former suit, yet he held the defendant only liable for that amount.

Sixth. There is nothing in this case showing any following of any trust funds or any lien upon their proceeds. If there had been any such, it would in such an action have been to the benefit of the defendant by lessening the amount of a recovery against it by just the amount of the funds identified and obtained. But as to the $7,000 deposited by the receiver of Moschcowitz Brothers in the trust company, it appears the expenses were more than enough to eat them up and no judgment for their payment has been recovered.

Seventh. Nor is the fact that Herman Moschcowitz claims to be a creditor of the old firm while he is one of the defendants charged with this conversion of assets, an answer to the plaintiff’s demand, Herman could not by his illegal interference with these assets, pay his debt, nor had he the right to take possession of the property for that purpose. When the surviving partner violated his duty and was one of the parties that converted the assets of the partnership to his own use, so that judgment was recovered against him for the amount of one-half of the assets after he had deposited in the trust company by the direction of the judgment all that was necessary to meet all the debts of the firm, his further rights as surviving partner ceased. There are no'other debts. If, being insolvent, or for any other reason, he has failed to make the deposit as directed by the judgment, he did not after the judgment was entered have the right to demand from defendant McCall any portion of the money which the latter was liable to pay to plaintiff on account of his own wrong in converting the assets of the partnership in connection with the surviving partner. The only debt outstanding is the Herman Moschcowitz claim, which is disputed and which does not appear to be prosecuted as if it had much merit. And it must be upon these facts that the rights of the parties are to be adjudged.

Eighth. The defendant also contends that the plaintiff’s complaint should have been dismissed on the ground of inexcusable laches in bringing the action. The litigation arising out of the attempt to make the surviving partner responsible for his misconduct was not concluded until the entry of the modified judgment of the general term late in the year 1886, and a short time thereafter the plaintiff probably discovered the ineffectual character of his attempt at redress in that direction. Early in the year 1888 this action was commenced. We think the record discloses reasonable cause for the delay in bringing this action, and the plaintiff is not within the principle regarding stale claims invoked by defendant.

Ninth. We think the trial judge committed no error in practice when, under the circumstances, instead of entering an interlocutory judgment and sending it to a referee to inquire whether there was anything left of the $7,000 paid by the receiver over and above the expenses consequent upon its collection, etc., he took the evidence upon that point himself and ordered final judgment in accordance therewith to be entered.

These are the principal grounds urged by respondents for an affirmance of the order of the general term. It is unnecessary to more fully mention the other points, and is it enough to say we do not think them sufficient to reverse the special term judgment.

We have given this case and the very able argument of the counsel for the defendant all the consideration possible, but for the reasons given we are unable to agree with the conclusions arrived at by the general term. We think on the contrary the learned judge at the special term arrived at the correct result, and, therefore, the order of the general term must be reversed and the judgment of special term affirmed, with costs in the general term and in this court to the appellant here.

All concur.

Ordered accordingly.


text:
    Belle I. Woodrick, App’lt, v. William Woodrick, Resp’t.

      (Court of Appeals,

      Filed February 27, 1894.)

    1. Witness—Impeachment.
    In an action for limited divorce, in which a counterclaim for absolute divorce is interposed, a question to the co-respondent, on cross-examination as to whether he did not, at a time and place specified, admit to a person named that his relations with plaintiff were illicit, is competent as laying the foundation for collateral impeachment.
    2. Evidence—Separation.
    In an action for a separation, the defendant may testify to certain alleged communications of plaintiff’s mother to him concerning her conduct with
    . other men, which he communicated to her.
    3. Same.
    Defendant was permitted to give in evidence certain salacious verses alleged to be in plaintiff’s handwriting and to have been found in her writing desk.
    4. Same.
    He was allowed to detail an interview between himself and plaintiff, in which he informed her of certain incriminating statements he had heard concerning her.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made August 20, 1892, which affirmed a judgment in favor of defendant entered upon a verdict, and also affirmed an order denying a motion for a new trial.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      jPatríele Keady, for app’lt; Henry A. Montfert, for resp’t.

       Affirming 48 St. Rep., 348.

   Bartlett, J.

This is an appeal from a judgment of the general term of the second department, affirming a judgment in favor of defendant for an absolute divorce, and from an order denying motion for a new trial.

The plaintiff sued for a limited divorce, alleging that defendant was guilty of cruel and inhuman treatment. The defendant denied the charges of the complaint, and set up by way of counter.claim the adultery of plaintiff and prayed for a judgment of absolute divorce.

The jury found against the plaintiff on her own cause of action, and also on the defendant’s counterclaim.

It is now' insisted on behalf of plaintiff that she was entitled to j udgment of separation on the evidence; that the finding of the jury that she commited adultery is unsupported by evidence; and that there were errors of law on the trial that must lead to a reversal of the judgment. In view of the very serious consequences to the plaintiff following the affirmance of the judgment and the insistance of her counsel that finding her guilty of adultery was legal error, we have looked into the facts of this case with great care and are unable to say that either of the findings of the jury is unsupported by evidence. This case was properly submitted to the jury and their verdict is conclusive on the questions of fact.

Passing to the alleged errors of law, we will consider those upon which the learned counsel for the appellant principally relies for the reversal of this judgment. At the trial the plaintiff’s counsel pursued the rather unusual course before resting his case, of anticipating the proofs of defendant to support the cause of action set up in the counterclaim. The co-respondent was placed on the stand by plaintiff and denied the acts of criminal conversation alleged in defendant’s counterclaim.

On cross-examination he was asked if he did not, on a certain occasion, admit to Eobert Phillips that his relations with the plaintiff were illicit. The witness was allowed to answer against the objection of plaintiff. The question was competent as laying the foundation for the collateral impeachment of the witness. The defendant subsequently put Eobert Phillips on the stand, to whom this admission was alleged to have been made, and he testified it was made.

The plaintiff set up in the complaint that defendant prohibited her from visiting her parents and from going into society even among her neighbors. The defendant alleged that the reason the plaintiff did not visit her mother was they had a falling out between themselves. The defendant was allowed to testify, the plaintiff objecting, to certain alleged communications of plaintiff’s mother concerning the conduct of plaintiff with other men which defendant commu nicated to plaintiff. This was competent evidence as showing great provocation for the use of violent language by defendant addressed to his wife; it also tended to disprove the charge that defendant had separated the mother from her daughter It is true the mother denied, on the stand, the conversation testified to by defendant, but all this evidence was clearly competent and was properly submitted to the jury on the issue of cruel and inhuman treatment. Kennedy v. Kennedy, 73 N. Y. 369.

The next exception refers to the admission in evidence of defendant’s exhibit Ho. 2, being salacious verses, alleged to have been in the handwriting of plaintiff and found in her private writing desk by defendant. We think this exhibit was properly admitted, and that the evidence as to its discovery, and as to its being in plaintiff’s handwriting, was sufficient to go to the jury.

The next exception was strenuously urged upon our attention on the argument. The defendant, a sea captain, on returning from a voyage, was .met on board his vessel at the wharf by Robert Phillips, a cousin on the co-respondent, and informed of certain incriminating evidence against his wife. Defendant was allowed, notwithstanding plaintiff’s objection, to testify that he proceeded at once to his house and informed his wife "of the incident; he was permitted to state to the jury the interview in detail. The plaintiff’s counsel insists the evidence was received in violation of § 831 of the Code of Civil Procedure, which provides that a husband or a wife is not competent to testify against the other upon the trial of an action founded upon an allegation of adultery, ex-ept to prove the marriage or disprove the allegation of adultery.

We think this evidence was competent on the issue of cruel and inhuman treatment, and the trial judge properly admitted it, stating as he did to the jury that it was not admitted as bearing on the question of adultery. It is urged that this testimony was calculated to greatly prejudice the plaintiff in the minds of the jury. Where the issues in the case like the one at bar are tried together this difficulty seems to be inherent. Testimony competent on, either issue must be admitted. De Meli v. De Meli, 120 N. Y. 485; 31 S. Rep. 704. A separaté trial of the issues would enable parties to limit evidence to its legitimate scope. A further answer to the exception under consideration is that plaintiff was not prejudiced by this evidence, as defendant subsequently put Robert Phillips on the stand, and he swore to incriminating facts communicated to the defendant on his ship, the plaintiff’s counsel withdrawing his objection to the testimony.

The plaintiff excepts to the finding of the jury that defendant had not condoned . plaintiff’s offense. There was sufficient evidence to submit to the juiy on this point, and their answer to this question is conclusive. We have examined the other exceptions in the record, and are of opinion that none of them is tenable.'

Judgment and order affirmed, with costs.

All concur.