author: Brown, L:

text:
    MICHAEL MULRY v. JOHN L. C. NORTON et al.

      Accretion — doctrine of, only applicable where the increase is made by imperceptible degrees — an owner of a beach does not lose his title thereto, by its sudden overflow by the ocea/n — when a court of equity will restrain a trespass upon land.

    The plaintiff claimed to be the owner of a portion of the ocean beach at Far Rockaway, in the town of Jamaica, Long Island. The southerly or ocean line of the beach is now just where it was in 1797 when the land was conveyed to the plaintiff’s grantors. About four miles to the east of the plaintiff’s land is an island called Long Beach, which belongs to the town of Hempstead. Prior to 1835 Long Beach was bounded on the west by an inlet connecting the waters of Hempstead bay with the ocean. Between 1835 and 1869 the action of the tides and storms caused the inlet to move constantly to the west. As it moved the beach was first washed away, then shoals formed where the beach previously was, and finally those shoals became a bar and solid beach and attached themselves to the island. In the course of these changes the plaintiff’s land „ was overflowed and his beach washed away. Subsequently it arose again from the sea, separated from the main land by the channel of the inlet. Thereafter, as the result of some violent disturbance of the sea, the waters broke through to the east of the plaintiff’s land, at the place where the inlet originally existed, and at the same time the inlet to the west of the place shoaled and filled up and the outer beach became attached to the main land at a point to the west of the plaintiff’s land, leaving the beach in front of his land separated from it by water. The shiftings of the channel were frequent and sudden, varying from 300 yards to half a mile in a single storm or in a single night.

      Held, that the owners of Long Beach did not acquire title in the islands and beaches added to it by the shifting of the inlet, as such accretions did not occur little by little, or by small and imperceptible degrees.

      That the sudden overflowing and submergence of the plaintiff’s beach by the ocean did not deprive him of his title thereto or vest the same in the State, and that he was entitled to claim and possess the beach upon its subsequent reappearance.
    The complaint in this action alleged the ownership of the beach by the plaintiff; that it was a necessary appurtenance to a hotel which had been erected on the main land, and that he had leased it for bathing purposes with covenants of peaceable possession. It also alleged that the defendants intended to take possession thereof by virtue of a lease given to them by the owners of Long Beach which lease was alleged to he invalid It prayed that the lease be declared void and the defendants be restrained from taking possession of the beach on the grounds that the lease was a cloud upon plaintiff’s title, and that if the defendants took possession of the beach the business of the plaintiff’s tenants would be destroyed and his hotel irreparably injured.

      Held, that a case was stated calling for the interference of a court of equity.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe trial of tbis action by tbe court without a jury.
   Brown, L:

Tbe plaintiff claims to be owner of a portion of tbe ocean beacb at Far Rockaway, Long Island.

The complaint alleges that plaintiff keeps a hotel at Far Rockaway, and that tbe beach is a necessary appurtenant to tbe hotel, and has been leased by him for bathing purposes with covenants of peaceable possession.

That tbe defendants hold a lease from tbe town of Hempstead, and that it is their intention to take possession under said lease. That tbe town of Hempstead has no title to tbe lands, and that tbe lease is a cloud upon plaintiff’s title, and if tbe defendants obtained possession tbe business of plaintiff’s tenants would be destroyed and bis hotel irreparably injured.

Tbe relief sought was, that tbe lease from tbe town of Hemp-stead should be declared void and be decreed to be canceled, and that tbe defendants be enjoined from taking possession of said lands. Tbe defendant Norton answered that tbe town of Hempstead owned tbe beach, and that tbe lease in question was valid, and denied plaintiff’s title.

Tbe trial court found tbe title and possession to be in the plaintiff ; and judgment was rendered restraining tbe defendants from taking possession of sai'd beacb lands, and declaring said lease, so far as it related to plaintiff’s lands, to be void. The premises were conveyed to the plaintiff in 1872, and are described in the deed to plaintiff, as well as in all mesne conveyances as bounded by the Atlantic ocean. As far back as 1797, the southerly boundary of the beach was just where the present ocean line is. About four miles to the east of the plaintiff’s land is an island called Long Beach, which is the property of the town of Hempstead.

Prior to 1835, Long Beach was bounded on the west by Brockleface Gut, or East Roekaway Inlet, an inlet which connected the waters of Hempstead Bay with the ocean. Between 1835 and 1869 the west point of Long Beach extended into the ocean about four miles to the west. This was done by additions on its west end. From the action of the tides and storms the inlet aforesaid was constantly changing to the west. As it advanced the main land or shore was in the first instance washed away; then shoals formed where the beach previously existed, the shoals then bbcame a bar and the bar finally solid beach.

In the progress of these constant changes the beach in front of plaintiff’s lands was washed away and the land overflowed, the inlet moved from one place to another and finally moved to a point west of plaintiff’s lands, and the beach in question arose from the sea, separated from plaintiff’s main property by the channel of the inlet; then, as the result of some other violent disturbance of the sea, the waters of the ocean broke through to the east of plaintiff’s lands at the point where the inlet originally had existed; the inlet to the west shoaled and filled up, and the outer beach became attached to the main shore at a point west of plaintiff’s lands, thus inclosing the waters which were between the main shore and the outer beach, so that the waters now flow between the property upon which the hotel stands and the premises which are the subject of this action.

The defendants’ contention is, that Long Beach has extended and grown by accretion across the plaintiff’s premises, and has carried the title to the lands in dispute to the town of Hempstead, as the owner of Long Beach.

The trial court refused to find that the addition made to Long Beach constituted accretion, and the exception to such refusal raises one of the principal questions presented upon this appeal.

Accretion is defined to be an increase by imperceptible degrees. (Rex v. Lord, Yarborough, 3 B. & Cress., 91; Scratton v. Brown, 4 id., 485 ; Emans v. Turnbull, 2 Johns., 322; Bacon’s Abridgment, Title Prerogative [vol. 5], p. 500.)

The jus alluvionis, which is an increase of the land adjoining, by the projection of the sea casting up and adding sand and slubb to the adjoining land, whereby it is increased for the most part by insensible degrees. (Hale’s De Jure Maris, p. 25.)

“ As to lands gained from the sea by alluvion, the law is held to be that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. (2 Blackstone’s Commentaries, p. 61; Angel on Tide Waters, p. 249, etc.)

We do not think the facts of this case present a case of accretion. Long Beach did not grow “ little by little ” or by “ slow a/nd imperceptible degrees'’ but in part at least by the additions to it of shoals or small islands which had formed west of it, and separately, and which were separated from each other and from Long Beach by wide and deep channels of water. These channels became filled up by the action of the tides and currents of the ocean, and the shoals were thus united and joined together and all of them became united to Long Beach. It was the shifting from time to time of the main inlet which caused the changes which occurred in the shore. This shifting of the inlet was frequent and sudden. One witness says that it shifted from three hundred yards to one-half a mile in a single storm; another, that it changed half a mile in a night; another that two or three hundred yards were added to the westerly end of the beach as the result of a single storm.

Such a process is not accretion, and in our judgment would not have sustained a finding that the land thus united to Long Beach became the property of the owners of that island. Title by accretion cannot be based upon such sudden convulsions of nature, as the evidence shows were continually happening along this shore for the past quarter of a century.

Another serious difficulty in the defendant’s contention is the position of Coots bar. This bar extended from the mainland south a considerable distance on the west of Rockaway inlet and directly in the line of the extension of Long Beach. ‘ To the north of the bar was a bay or estuary, 600 to 900 feet wide, which extended to the west a distance of nearly a mile.

This bar was originally granted by the town of Hempstead to J acob Hicks and the title is now in one Lawrence.

The defendant contends that the bar disappeared altogether as the inlet changed, while the plaintiff claims that the inlet broke through to the west end of the estuary, leaving the bar south of the new inlet. The trial court refused to find that the bar disappeared, and we cannot say that the refusal to so find is not supported by the testimony.

Assuming that it did not disappear, it became joined to Long Beach, and it is very plain that the town of Hempstead could not claim title either.to the bar or to any accretion to the west of it. Owned by Lawrence, it stands an insurmountable obstacle between Hempstead’s lands and the new beach to the west.

. It is claimed by the defendant, however, that the town of Hemp-stead was in possession of the beach in front of plaintiff’s lands at the date of the deed to the plaintiff; that the title to the beach, if not in the town of Hempstead, is in the State, and that the plaintiff ' does not, therefore, make out a case entitling him to the interference of a court of equity in his behalf.

The trial court found that the plaintiff took possession under his deed, and has continued in possession ever since. We think the evidence sustains that finding, and that the plaintiff had such possession as would entitle him to maintain this action against the defendant, even though he may not be vested with the absolute title to the land.

But we find nothing in the testimony which would sustain us in holding that the plaintiff’s grantors had lost title to ,the beach by reason of its overflow or submergence by the sea.

The deeds to plaintiff’s grantors bounded the land by the ocean. This carried the title to high-water mark. As late as 1858 (some ■of the witnesses say) it was all solid beach, and you could walk down to the old high-water mark. The submergence of the beach was subsequent to that date.

The law of accretion applies between the sovereign and subject the same as between subject and subject. "When land is overflowed, and the advance of the sea is so slow and gradual that its progress is imperceptible, the sovereign acquires the title to the part of the shore submerged; but -where the sea suddenly inundates the land, the subject retains the title to the land covered with water. (Angel on Tide Waters, 265, 266 ; 2 Blacks. Com., 262; Hale’s De Mare Juris, pp. 29, 36, 37.)

The appellant cites Matter of Hull and Selby Railroad Company (5 M. & W., 327) as holding a contrary doctrine. The headnote of that case is as- follows: If the sea, or an arm of the sea, by gradual and imperceptible progress encroach upon the land of a subject, the land thereby covered with water belongs to the crown; ” but the court distinctly recognizes the principle that when the inundation is 'sudden there is no change in the title of the submerged land.

Lord Abingeb, after stating the principle-contained in the headnote, says: “ It is different, indeed, where the change occurs by a sudden advance or recession of the water,” and then cites a case of. sudden overflow in Scotland, in which he says the owner did not lose his right to the soil.

Angel (at page 264) states the rule as follows: This increase (by reliction) has been known in some parts of the world to occur suddenly and to a very great extent. * * * In such cases the land left dry by the receding of the water is the property of the sovereign as being a part and parcel of what previously was the sovereign demesne. The right of property in the soil, in other words, is not changed by such change of the water. *' * * The right of the riparian pn'oprietoi'S to their xiplcmd which is inundated by an encroachment of the sea and then left d/ry is still retained.” The upland owner when land ís overflowed may reclaim it from the sea by artificial means.

See 7 Jac., C. & B., per Coke & Foster, cited by Lord Hale, where land was reclaimed from the river Thames which had been inundated for the space of forty years. (See, also, Angel on Tide Waters, 265.) This right to regain the land rests solely on the principle that the title to the submerged lands remains in the riparian owner.

There is nothing in the case of Trustees v. Kirk (84 N. Y., 215) to conflict with this view. That was not a case of sudden overflow.

Without entering into a discusssion of the testimony we- think it clear' that the beach in front of plaintiff’s property did not wear away by imperceptible degrees. The fact that in about thirty years over four miles of solid beach washed away and formed again, and that the inlet moved four miles and then returned to its oilginal position, leads to the irresistible conclusion that the process of inundation was not so slow and gradual that one could not perceive how much was overflowed at any one moment of time.

Our conclusion is, therefore, that the State did not gain title to the plaintiff’s lands by the overflow of the ocean. The title remained in the original proprietor, and in the absence of any proof to the contrary it is to be presumed that plaintiffs deed conveyed to him the title to the land to original high-water mark.

As the land under water, therefore, belonged to the plaintiff’s grantors they remained owners when it reappeared above the sea. . “ If the soil, when covered by watei1, belonged to an individual, then, though relicted, it continues to belong to him.” (Angel on Tide Waters, 265.)

“ When the land, as it stood covered with water, did by particular usage or prescription belong to a subject, then the recessus marts so far as the subject’s particular interest went while it was covered with water, so far the recessus mams vel brachii ejusdem belongs to the same subject.” (Hale’s De Mare Juris, 29.)

As touching islands arising in the sea, the same rule holds. “ Of common right and prima facie, it is true they belong to the crown. But where the interest of such districtus marts, or arm of the sea, or creek or haven, doth belong to a subject either by charter or prescription, the islands which happen within the precincts of such private propriety of a subject, will belong to the subject.” (Angel on Tide Waters, p. 267, 268.)

The trial court found that the beach in question was formed by shoals emerging from the sea, that they varied in length from 300 to 1,200 feet, with navigable channels of water between them, and that such shoals were the basis of the present beach, and these findings are fully sustained by the testimony. Such shoals as they emerged from the sea, within the limits of plaintiff’s lands, belonged to plaintiff’s grantors, and plaintiff’s title to the land in dispute is thus clearly established.

The only remaining question in the case is whether the facts warranted the interference of a court of equity.

An owner of land is entitled to the equitable interference of the court in his behalf to restrain and prevent an illegal entry thereon, whenever the damages which might be recovered in an action at law would be inadequate to compensate for the injury which would be sustained from the trespass. (Story’s Eq. Jur., § 918; Livingston v. Livingston, 6 Johns. Ch., 497; Carpenter v. Gwynn, 35 Barb., 395 ; West Point Iron Co. v. Reymert, 45 N. Y., 705 ; Watson v. Sutherland, 5 Wall., 74.)

The absence of a plain and adequate remedy at law affords the only test of equity jurisdiction.

Legal compensation refers solely to the injury done to the property taken and not to any consequential damages.

In this case it is apparent that the consequence of the threatened trespass would have been very serious to the plaintiff, and one for which an action at law would not have given an adequate remedy, as the injury to plaintiff’s business could not be correctly estimated or ascertained.

Under our system of practice the legal right to the property may be established and the equitable remedy afforded in the same action. (Broiestedt v. S. S. R. Co., 55 N. Y., 220.)

The remedy by injunction was, therefore, appropriate and fully warranted by the facts of the case.

Upon the whole case we think the decision was right, and the judgment should be affirmed, with costs.

Beady, J., concurred; Barnard, P. J., dissented.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J.;

license: Public Domain

text:
    ANNA L. PECK, Administratrix, etc., Respondent, v. JOHN B. VALENTINE, Appellant.

      Evidence — memoranda made at the time — when a copy. made by another person is admissible after pi'oof of the loss of the original.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought by the plaintiff’s intestate to recover ' money alleged to have been embezzled by the defendant while in charge of a lumber yard belonging to the intestate, from August, 1873, to November, 1879. The original plaintiff having died, the present plaintiff, his administratrix, was substituted in his place.
    Upon the trial a book kept by the defendant, purporting to show the amounts received hy him from July 5 to July 18,1879, was put in evidence by the plaintiff.
    The plaintiff then called as a witness G-eorge P. Leggett, who, being duly sworn, testified as follows: I reside at Hempstead; I was employed by plaintiff in his lumber yard in Hempstead in 1879; I kept an account in July, 1879, from the fifth to the eighteenth, of the moneys received by the defendant from cash sales; I kept it on a loose piece of writing paper; I made the entries each day, on continuous days, except Sundays; those entries were correct ; they correctly stated the cash received by defendant from the cash sales on the different days; I gave the paper to the'plaintiff; I never gave him any other statement of the kind; the defendant never saw this paper.
    The plaintiff, being then duly sworn in his own ’behalf, testified as follows : I recollect receiving from Mr. Leggett the memorandum he testifies to having given me ; the paper is lost; I have looked diligently everywhere for it, but cannot find it; I copied the figures off from that paper into this memorandum book. (Witness produces a memorandum book.) These entires in this book are a copy of those figures; they are a correct copy, and they have never been in any way changed or altered since they were made.
    The copy entered in the memorandum book, produced and referred to by the witness, was then offered in evidence by the plaintiff’s counsel. The defendant objected; the objection was overruled and the defendant excepted.
    This copy showed that the defendant had received more money than was shown by his account.
    The court at General Term said : “ If the witness Leggett had been in the possession of the original memorandum .made by him at the time he gave his testimony, it is clear that he could testify to its-accuracy; that he made it day by day according to the fact, and that although he had no precise present recollection of the daily entries, apart from the memorandum itself, yet that it was correctly entered at the several times. Such a paper would be a part of the testimony of the witness and not a memorandum merely. The proof of the facts so evidenced would go to the jury or referee to be weighed as direct proof of the facts. The witness did not have that memorandum when he testified. It was proper for him to give the items from memory if he could. This he probably could not do as he did not attempt it. What he could do himself the plaintiff could do with other witnesses. The witness 'Leggett gave to the-plaintiff this memorandum and he transcribed it. This copy was-admissible as proof of the lost paper, and that paper thus reproduced was part of the evidence of the witness Leggett. It is, taken together, direct, positive, and if credited conclusive proof of the fact that the defendant received one sum of money belonging to plaintiff and returned a less sum. The amount the defendant accounted for was evidenced by his own books, and the amount he-•should have paid is proven by this evidence of Leggett, .including-the paper.”

      J. T. Ma/rean, for the appellant.

      W. T. Milliksn, for the respondent.
   Opinion by

Barnard, P. J.;

Dykman and Pratt, JJ., concurred.

Judgment affirmed, with costs.


author: Dykman, J.;

text:
    JOHN BAKER, Appellant, v. JACOB HATFIELD and WILLIAM AUSTIN EDWARDS, Respondents.

      Practice — notice of entn'y of order — what is a sufficient notice to strn't the running of the thirty days, within which an appeal must be taken — Code of Civil Procedure, sec. 1351.
    Appeal from an order made at a Special Term denying a motion to compel the defendants’ attorneys to receive a notice of appeal.
    This case was on the calendar for trial at the Richmond Circuit on the 9th day of October, 1882. On that day the defendants moved the court, on affidavit, to strike out the plaintiff’s amended complaint because it had been interposed only for delay. Thereupon the court decided to allow the amended complaint to remain and directed the defendants to answer the same immediately, the cause to be set down for the ensuing Wednesday, on condition that the plaintiff should then proceed with the trial. The condition was declined by the plaintiff, and the motion to strike out was granted. The cause stood for trial, and on its regular call on the calendar the plaintiff answered not, and the complaint was dismissed.
    The order was entered and a certified copy procured, with the words “ Filed October 11, 1882. A copy, C. A. Hart,” indorsed thereon. It was also indorsed as follows: “ Supreme Court. J ohn Baker v. Jacob Hatfield and another. Copy order. De Groat, Rawson & Stafford, attorneys, Port Richmond, N. Y.” This copy, with these words, was served on the attorney for the plaintiff on the 11th day of October, 1882, by mail, with the additional words indorsed on the back of it, “ Order striking out amended complaint and dismissing cause.”
    On the 30th day of December, 1882, the attorney for the plaintiff served a notice of appeal from that order, which was returned with a statement of the ground that the same was not served within the time limited by law for that purpose. Thereupon a motion was made to compel the acceptance of the notice of appeal, which was denied, and from that order comes this appeal.
    The court at General Term said : “ Hnder the requirement of the Code of Civil Procedure (§ 1351) it was necessary to take the appeal from this order within thirty days after service of a copy of the order and a written notice of its entry. But the claim of the plaintiff is that no written notice of the entry of the order was served, and therefore his time to appeal was not set in motion. In the first place the clerk certified that it was' a copy, and then the defendants’ attorney indorsed on it the words ‘ Copy order striking out amended complaint and dismissing cause.’ This certainly amounted to written notice that the order had been entered by the clerk. No particular form of words or notice is prescribed.

      “ If written notice of the entry of the order was served on the plaintiff’s attorney the statute was complied with, and the time to appeal commenced to run. A substantial compliance with the statute was only necessary, and that -was accomplished.”

      Horace Barnard and Henry H. Browne, for the appellant.

      S. F. Bawson, for the respondent.
   Opinion by

Dykman, J.;

Pratt, J., concurred.

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

Order denying motion to compel acceptance of notice of appeal affirmed, with costs and disbursements.


author: Dykman, J'.;

text:
    THE DIME SAVINGS BANK OF BROOKLYN, Respondent, v. FRANK CROOK, Appellant, Impleaded, etc.

      JPoreclosure — in an action of foreclosure the mortgagor cannot set' up as a defense a defect in Ms title.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The court at General Term said : “ The defendant Frank Crook, with his father, executed and delivered to the plaintiff their bond for $30,000, and Frank Crook at the same time executed to the plaintiff a mortgage on real property to secure the payment of the bond. This action is brought to foreclose the mortgage, and Frank Crook defends on the ground that his title was defective at the time of its execution. The plaintiff is a Iona fide mortgagee and there is no allegation of fraud on the defendant. The only relief sought against the defendant is the foreclosure of his interest in the premises and the recovery for deficiency on his bond.

      “ The action is inappropriate to the settlement of. a disputed title, and there is no reason why the court should entertain a question concerning the legal title to the mortgaged premises. The purchaser under the judgment will acquire what interest the appellant had in the premises whatever that was. Such title, which was before defeasible, will then become absolute; if there be dispute respecting its nature and extent, that must be adjudicated in some proceeding in which the pleadings and proceedings are adapted to that purpose.
    “ Without examination or determination of the extent or sufficiency of the power vested in the father of the defendant, we affirm the judgment on the point already examined.”

      John II. Bergen and D. T. Walden, for the appellant.

      J. I'. Marea/n, for the respondent.
   Opinion by

Dykman, J'.;

Barnard, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    Bertrand Clover, Jr., Respondent, v. The Boynton Saw and File Company, Appellant, Impleaded, etc.

   — Interlocutory judgment of sale affirmed, with costs. Opinion by Barnard, P. J. ;

Pratt, J., not sitting.


text:
    Elixes Ratel, Respondent, v. Elizabeth Ratel, Appellant.
   Order refusing to vacate order of publication affirmed, with costs and disbursements. Opinion by Pratt, J.;

Barnard, P. J., not sitting.


text:
    John Adams and Edmund Lang, Appellants, v. The New York, West Shore and Buffalo Railway Company, Respondent.

   — Order affirmed, with costs and disbursements. Opinion by Dykman, J.;

Pratt, J., not sitting.


text:
    Arthur I. Griggs, Plaintiff and Appellant, v. John S. Brooks, Defendant. (Danforth Becker, the Attorney, Respondent.)
   Order reversed, with costs and disbursements. Costs granted to the appellant on the trial before the referee. Opinion by Barnard, P. J.


text:
    Elizabeth D. Vail, Plaintiff, v. Thomas H. Kensett and others, Defendants. In the Matter of the Application of James C. Eadie, a Referee in Partition, Relator, v. Elizabeth D. Vail, Purchaser, etc., Respondent.

   — Judgment upon submitted case as follows: That the children of the sons who held the life estate are necessary parties to the partition action, and that the referee’s title on the case is not good; judgment for purchaser. Opinion by Barnard, P. J.


text:
    Dennis Buckley, Jr., by Guardian, Respondent, v. The Gutta Percha and Rubber Manufacturing Company, Appellant.

   — Order affirmed, with costs and disbursements. Opinion by Pratt, J.


text:
    Myra E. Favor, Respondent, v. Anthony H. Dimock and another, Respondents.

   —• Order affirmed, with costs and disbursements. Opinion by Barnard, P. J.


text:
    Daniel Ritchie, Appellant, v. Robert Weir, Respondent.
   Judgment of County Court reversed and judgment of justice affirmed, with costs. Opinion by Pratt, J.;

Dykman, J., dissenting.


text:
    Ida I. Ross, Appellant, v. Joseph Ross, Jr., Respondent.

   — Reargument ordered.

Pratt, J., not sitting.


text:
    In the Matter of the Application of George C. Genet for a Mandamus, etc.
   — Order refusing mandamus affirmed, with costs. Opinion by Pratt, J.


text:
    Elias Q. Horton v. Coffin S. Brown, Executor, etc.

   — Judgment affirmed, without costs. Opinion by Pratt, J.


text:
    George W. Purdy, Respondent, v. Mary N. Bean, Appellant.

   — Judgment of County Court affirmed, with costs. Opinion by Pratt, J.


text:
    Susan Raynor and another, as Administrators, etc., Appellants, v. Samuel S. Carman, Respondent.

   — Judgment reversed and new trial granted at Special Term, costs to abide event; order -of reference vacated. • Opinion by Barnard, P. J.


text:
    Sarah Brien, Administratrix, etc., Respondent, v. Timothy Brien, Appellant.

   — Judgment reversed and new trial granted, costs to abide event; order of reference vacated. Opinion by Dykman, J.


text:
    Warren Smith, Appellant, v. Israel Smith and others, Respondents.

   — Judgment affirmed, with costs. Opinion by Pratt, J.


text:
    The People ex rel. Casey v. James Jourdan, Commissioner.

   — Motion to dismiss writ of certiorari denied, with ten dollars costs. Opinion by Barnard, P. J.


text:
    Sarah L. Tingue, Respondent, v. The Village of Portchester and John Leonard, its Treasurer, Appellants.

   — Judgment affirmed, with costs. Opinion by Barnard, P. J.;

Dykman, J., not sitting.


text:
    John J. Mason, Appellant, v. Albert Burtis and another, Respondents.

   — Judgment of County Court reversed and judgment of justice affirmed, with costs. Opinion by Dykman, J.


text:
    William P. Clyde v. Amos Rogers.
   — Order of Special Term refusing to amend order of General Term affirmed, without costs.


text:
    William P. Clyde v. Amos Rogers.
   — -Motion to correct order granted, and order of General Term of December, 1880, vacated, with costs and disbursements. Opinion by Dykman, J.


text:
    Junius N. Petty and another, Appellants, v. Esther A. Sherwood, Respondent.

   — Judgment affirmed, with costs. — Opinion by Pratt, J.;

Barnard, P. J., not sitting.


text:
    Mary Link, Respondent, v. Edward Woodruff, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P.


text:
    Christiana Harrison, Respondent, v. The Brooklyn, Bath and Coney Island Railway Company, Appellant.

   — Judgment and order denying new trial affirmed, with costs. Opinion by Dykman, J.;

Pratt, J., not sitting.


text:
    Henry Coyle, Respondent, v. The Father Mathew Total Abstinence Benefit Society, Appellant.

   — Judgment of County Court affirmed, witli costs. Opinion by Pratt, J.


text:
    Randall G. Cowenhoven, Appellant, v. George W. Ball, Respondent.

   — Judgment affirmed because of non-service of papers according to stipulation.


text:
    Frederick Achenbach, Respondent, v. The Order of Germania, Appellant, Impleaded, etc.

   —- Interlocutory judgment overruling defendant’s demurrer affirmed, with costs. Opinion by Pratt, J.


text:
    Mary Jane Van Schaick and others, Appellants, v. James A. Fickett, Respondent.

   — Decree of surrogate affirmed, with costs. Opinion by Barnard, P. J.


text:
    Samuel A. Morrow, Appellant, v. Robert H. Morrow, Respondent.
   Decree of surrogate affirmed, with costs. Opinion by Pratt, J..


text:
    Frederick Homeyer, Respondent, v. Moses May, Appellant.
   Order affirmed, with costs and disbursements. Opinion by Dykman, J.


text:
    Daniel S. Dickinson, Appellant, v. Anna B. Bush, Respondent, Impleaded, etc.

   — Order denying open commission affirmed, with costs. Opinion by Pratt, J.'


text:
    Andrew Donlon, as Administrator, etc., Appellant, v. The Long Island Railroad Company, Respondent.

   — Judgment affirmed, with costs. Opinion by Dykman, J.;

Barnard, P. J., dissenting.


text:
    Maria Kelly, Administratrix, etc., Appellant, v. Consumers’ Gas Company, Respondent.

   — Judgment affirmed, with costs. Opinion by Dykman, J.;

Barnard, P. J., not sitting.


text:
    Jane Myers, Appellant, v. James C. Martin and another, Respondents.
   Judgment affirmed with costs. Opinion by Pratt, J.;

Barnard, P. J., not sitting.


text:
    Robert H. Leys, Respondent, v. The East River Ferry Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.


text:
    Priscilla Anderson, Respondent, v. The Metropolitan Life Insurance Company, Appellant.
   Judgment affirmed, with costs. Opinion by Dykman, J.


text:
    Charlina J. Price and another, Respondents, v. Catharine Stedwell and Jeremiah H. Stedwell, her husband, Appellants, and Agnes L. Guild and another, Respondents.
   Judgment affirmed, without costs. Opinion by Pratt, J.


text:
    Mary Bauman, Appellant, v. Ludwig Holzhausen, Respondent.
   Judgment and order denying new trial affirmed, with costs, Opinion by Dykman, J.;

Pratt, J., dissenting.


text:
    Charles A. Merritt, Respondent, v. Frederica M. Kinney, Appellant.
   Judgment affirmed for non-submission of papers, with costs.


text:
    William Hewlett, Respondent, v. The Poughkeepsie Gas-Light Company, Appellant.

   — Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by Barnard, P. J.;

Dykman, J., not sitting.


text:
    Marshall F. Sprenger, Respondent, v. The Poughkeepsie Gas Light Company, Appellant.

   — Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by Barnard, P. J.;

Dykman, J., not sitting.


text:
    Charles Ike, Appellant, v. Carman Frost and another, Respondents.

   — Judgment affirmed, with costs. Opinion by Dykman, J.


text:
    Margaret Smythe, Respondent, v. William Woods, Appellant.

   — J ndgment reversed and new trial granted, costs to abije event; order of reference vacated. Opinion by Barnard, P. J.


text:
    The City National Bank of Poughkeepsie, Respondent, v. William Phelps, Appellant, Impleaded, etc.

   — Judgment affirmed, with costs. Opinion by Cullen, J.


text:
    In the Matter of the Application of the New York, West Shore and Buffalo Railway Company to Acquire Real Estate of Albertson and Nelson.
   — Order confirming report of commissioners and award of commissioners affirmed, with costs and disbursements.


text:
    Matter of E. B. Long
   — Order affirmed. Opinion by Brown, J.


text:
    The People of the State of New York v. Jeremiah White
   — Judgment affirmed. Opinion by Pratt, J.


author: Davis, P. J. :

text:
    LOUISA H. BARCLAY, Respondent, v. DELOS E. CULVER, Appellant.

      Loan of shares of stock — when the identical certificate need not he returned.

    The defendant signed an instrument by which he acknowledged that he had . received from the plaintiff 100 shares of the stock of a railroad company as a loan to be returned by him on or before a day named, or at his option to bo paid for at a price specified. The certificate loaned was in the usual form. Upon its back was a power of attorney, signed by the plaintiff, authorizing the transfer of the stock upon the books of the company.

      Held, that it was the intention of the parties that the .defendant should use the shares of stock borrowed, and if necessary put .the certificate into circulation in the ordinary way; that it was not necessary that he should return the identical certificate borrowed, but it was sufficient if he restored 100 shares of the stock of the corporation, no change having occurred by reason of which they did not represent the same proportion and value of the capital of the company as those loaned.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial, made upon tbe minutes of tbe justice' before wbom tbe action was tried. .

      Out/oer da Betts, for tbe appellant'.

      Ghas. Blandy, for tbe respondent.
   Davis, P. J. :

This action -is brought upon an instrument in the following words:

New York, January 1,1875.

Received from E. K. Alburtis, one hundred, shares of the Jersey City and Albany Railroad Company, as a loan, to be returned to him on or before the second day of April, 1875, or to be paid for at my option twenty-five per cent in par value, or say twenty-five hundred dollars for said one hundred shares of stock.

D. E. CULVER. •

It was proved that on executing this receipt, E. K. Alburtis delivered to the defendants a certificate for said stock, which was in the following form:

Number 11. 100 Shares.

The Jersey City and Albany Railroad Company. Incorporated um,der the Lanes of the States of New Jersey a/nd , New York.

This is to certify that E. K. Alburtis is the holder of one hundred shares of the capital stock of the New Jersey and Albany Railroad Company. This certificate is held subject to the by-laws of the company, and is transferable only on the books of the company by the said stockholder in person, or by attorney on surrender of this certificate.

In witness whereof, the said company has caused this certificate to be signed by its president and secretary, this fourth day of July, 1873.

E. K. ALBURTIS, President.

AMES TOMPKINS, Secretary.

On the back of which was the following power of attorney, executed by Alburtis:

Eor value received do hereby sell and transfer the shares of capital stock within mentioned of the Jersey City and Albany Railroad Company, and do hereby constitute and appoint D. E. Culver & Co. my attorney in fact to transfer the same on the books of said company, with power to substitute any person for that purpose.

In witness whereof, have hereunto set hand and seal this day of , 18 .

E. K. ALBURTIS. [l. s.]

In presence of J. A. Hayward.

Evidence was given on the part of the defendant tending to show that in the month of March, 1875, the defendant told Alburtis that he had the stock ready for him and asked him if he should have the certificate made out in his (Alburtis5) name or if he should have it made out in his own name and assign it in blank to him; that Mr. Alburtis replied that he did not know yet, he did not care for the stock then and that he should let him (Culver) know later on; that subsequently, and some time in 1876, Alburtis called upon' him and demanded the return of the identical certificate of stock which he had loaned him; that he told Alburtis that it was impossible and he knew it; that he (Alburtis) knew the purpose for which he (Culver) borrowed it and the use to which it was put and that such a demand was absurd, and that it was made for the purpose of avoiding taking stock that he (Culver) had for him, and had kept ready for him all the while, and to make him (Culver) pay the $2,500 instead.

The defendant produced a certificate for 100 shares of stock of said Railroad Company which he testified represented the 100 shares that he held for and offered to Mr. Alburtis in payment of the stock borrowed from him; that he had this stock when he called on' Alburtis in March, 1875 ; that Mr. Alburtis never elected whether he should have it issued directly to him in his own name or have it issued to defendant and assigned to him; that after Mr. Alburtis demanded a return of the identical certificate witness had borrowed, or payment of the $2,500, witness had this certificate made out to himself and assigned it to Mr. Alburtis and offered it to him but he declined to take it. The certificate was received in evidence and is identical in form with the other, except that it certifies that Culver is the owner of the stock, and on the back is a power of attorney transferring the stock duly executed by Culver to E. K. Alburtis, bearing date 4th September, 1876. The defendant offered to show, in substance, that the custom in such cases was not to return the same certificate but a certificate for the same amount and kind of stock. This offer wTas excluded and the defendant excepted. The court held substantially, and so charged the jury against the exception of the defendant, that under the contract contained in the receipt the defendant was bound to return the identical cei'tificate of stock which he received from Alburtis, and that in default of so doing he was liable to pay the sum of $2,500, and that the contract could not be .satisfied by the return of 100 shares of the same kind of stock.

In our opinion the court erred in this ruling. The loan made was not' of the instrument called a certificate, certifying ownership of 100 shares of the capital stock of the railroad company, but of 100 shares of the stock, represented by the certificate. The receipt containing the defendant’s contract is to be read in connection with that certificate, and so read, the papers show that the stock was expected and designed to be used by the defendant, and was put in such position that it could be so used, for the power of attorney on the back was completely executed by Alburtis and authorized and appointed the defendant his attorney in fact to transfer the stock on the books of the company, with power to substitute any person for this purpose. This meant that he could put the stock into circulation in the ordinary way, so that its ownership could be transferred from hand to hand, and is in conflict with the idea that the identical stock or the identical certificate was to be kept in such shape that it, and it alone, could be returned upon the contract. The loan was one for use, and was undoubtedly so designed, otherwise it was an idle transaction; and the mode of use was provided for by the power of attorney, to wit, by transfer upon the books of the company, and such transfer of necessity put the stock in condition where its identity might be lost, if its use was to be of any value to the borrower. He was at liberty to exercise the power of transfer which both parties must have understood was likely to have put the identical stock beyond reach. The court is at liberty to take notice of the usage of business in such matters, and to know that upon such loans the intention of the parties is fully answered by restoration of 100 shares of the stock of the corporation, no change having occurred by reason of which it does not represent the same proportion and value of the capital of the company.

The principle which governs such transactions is found in the early decision of the chancellor in Nourse v. Prime (4 Johns. Ch., 490; S. C. 7 Johns., 69), and it has been since followed by the court n^all similar cases. (Horton v. Morgan, 19 N. Y., 170; Baker v. Drake, 53 N. Y., 211). What a share of the capital stock of a corporation is, was defined by Burrall v. Bushwick Railroad Company (75 N. Y., 211). That a.share of the capital stock is the right to partake, according to the amount put into the funds, of the surplus profits of the corporation, and ultimately on the disposition of it, of so much of the funds thus created as remains unimpaired and is not liable for the debts of the corporation, and that these shares are intangible and rest in abstract legal contemplation, and that the share itself cannot be issued and delivered as a physical act, and that what the company can do is to issue and deliver the written evidence of the existence of such shares and of the ownership thereof, the paper usually called a stock certificate.

Each share is of course the equal of every other share, and when it comes into public business as a matter of purchase and sale its identity as a thing that passed through A.’s or B.’s hands is entirely immaterial so long as each share continues to represent the same interest in the corporate capital.

Ye think, therefore, the learned judge erred in the application of the rules of law to the transaction between the defendant and the plaintiff’s assignor, and for that reason the judgment should be reversed and a new trial granted, with costs to abide event.

Brady and Daniels, JJ., concurred.

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


author: Davis, P. J.;

text:
    ABRAHAM PISER, Respondent, v. ISAAC S. LOCKWOOD, Appellant.

      Summons — service of, upon unknown owners — requisites of such service, under subdivision 5 of section 135 of the Code of Procedure, as amended ¿«I860 — a purchaser will not be compelled to take- a doubtful title.

    In an action to foreclose a mortgage the summons was served upon the unknown heirs of one Ringland, the owner of the equity of redemption, under an order made in pursuance of subdivision 5 of section 135 of the Code of Procedure, as amended in 1860. It was granted upon an affidavit made by the plaintiff’s attorney, which stated no reason why it was not made by the plaintiff. It stated the death of Ringland; that the deponent had made diligent search and inquiry for his heirs-at-law and next of kin, but had been unable to find any of them or any of. his relations; that he had visited Ringland’s former neighbors and could only hear that he once had a sister but could not find out her name or residence.

      Held; that the affidavit, thus made by the attorney, was defective in that it did not show that the names or residences of the parties in interest were unknown to the plaintiff, and in that it failed to state the sources from which the attorney’s information was derived.
    That the title acquired at a.sale under a judgment of foreclosure entered in the action was so defective that a purchaser should not be compelled to accept it.
    Appeal from a judgment in favor of- the plaintiff, entered upon the trial of this action by the court without jury.

      Henderson c& Tompkins, for the appellant.

      A. Blake, for the respondent.
   Davis, P. J.;

This action is brought upon a contract for the purchase and sale of real estate, by which the defendant agreed to convey the property in fee simple, free from all incumbrances by a proper deed to be delivered at the time specified. On the day afterwards substituted by consent of the parties each party appeared, and the defendant tendered a deed sufficient in form, and the plaintiff tendered the price called for by the contract, but refused to accept the deed on the ground that it did not convey a good title. The defendant’s title was derived under the foreclosure of a mortgage, and the objection made was that the heirs of one Ringland who had died seized of the premises, were not made parties to the foreclosure. Ringland at the time of his death was the owner of the fee. . His heirs were made parties to the action as unknown owners, and the case turns wholly upon the sufficiency of the affidavit upon which the order of publication was made against them as such unknown owners.

That order was made under subdivision 5 of section 135 of the Code of Procedure, as amended in 1860, which is as follows:

In 'actions for the foreclosure of mortgages on real estate, already instituted or hereafter to be instituted, if any party or parties, having any interest in cr lien upon such moi’tgaged premises, are unknown to the plaintiff,- and the residence of such party or parties cannot, with reásonable diligence, be ascertained by him, and such fact shall be made to appear by affidavit to the court, or to a, justice thereof, or to the county judge of the county where the trial is to be had, such court, justice or county judge may grant an order that the summons be served on such unknown party or parties by publishing the same for six weeks, once in each week successively, in .the-State paper and in a newspaper printed in the county where the premises are situated, which publication shall be equivalent .to a personal service on such unknown party or parties.”

The affidavit upon which the order in this ease was granted was not made by the plaintiff but by his attorney. No reason is stated in the affidavit why the same is not made by the plaintiff. The affidavit states that David C. Ringland was the owner of the equity of redemption in such real estate at the time of his decease, and the manner in which he acquired the «ame. ' It further states that since the decease of Ringland “ deponent has made diligent search and inquiry for' the heirs and next of kin of said David C. Ringland, and deponent has been unable to find any heirs-at-law or next of kin of said David C. Ringland deceased, nor any of his relations.

Deponent further says that he has visited the former neighbors of said Ringland and made diligent inquiry of them as to any heirs-at-law and next of kin of said Ringland and no one can give any information on the subject, excepting that said deceased once had a sister, but deponent cannot find out either her name or residence.”

In. the section above referred to it was required to be shown that the party or parties having an interest in the premises were unknown “to the plaintiff: ” and that their residence could not with reasonable diligence be. ascertained by him. Tbe affidavit fails to show these facts. For aught that appears, the heirs of Ringland may have been known personally to the plaintiff although unknown to his attorney; and they may have been known to the plaintiff to have been residents of the State of New York, where personal service could have been made, and yet all that the attorney states in the 'affidavit be true. The affidavit does not show that the residence of such unknown parties could not, with reasonable diligence, be ascertained by the plaintiff, and reasonable diligence for that purpose by the attorney is not sufficiently shown, because the attorney fails to state the source of his information on that subject. If the attorney might have made the affidavit under the provisions of the former Code, it would have been incumbent upon him to state some reasons why the diligence has not been used by the plaintiff, and to state also, inasmuch as he acts entirely upon information of -others,, from whom he received such information.

In short, we think if the sister or other heirs of Ringland should appear and file her or their bill to redeem the premises in question, her or their right to do so could not be denied, and hence the title offered was not such a one as the contract required.

One of the findings excepted to by the defendant, to wit, that of personal knowledge on the part of the defendant of the defect in the title does not appear to be sustained by the evidence, but as that finding was not material to the judgment the exception is of no value. It was enough to show as a matter of fact, whether the defendant knew it or not, that the title dependent upon the judgment recovered in the foreclosure suit was for the defects mentioned not perfect. We see no reason for interfering with the judgment, and it should be affirmed with costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.


author: Davis, P. J.:

text:
    SHERILL ROPER AIR ENGINE COMPANY, Respondent, v. WILLIAM B. HARWOOD, Appellant, Impleaded, etc.

      Arrest — an actual and guilty intent to\ defraud must he shown, to subject the , ga/rty to it.

    The fact that one member of a firm, with knowledge of its insolvency, has paid . certain of his individual debts out of the firm moneys with the intent to give them a preference over the firm debts, is not sufficient to establish such a guilty intent to dispose of his property for the purpose of defrauding his creditors • as is required to justify his arrest under the provisions of the Code of Civil . Procedure.
    - • Appeal from an order made at a Special Term denying a motion to vacate an order of arrest.

      J. M. Ferguson, for the appellant.

      Ellis 8. Yates, for the respondent.
   Davis, P. J.:

.. It appears by the papers in this case that on the 16th day of Eebruary, 1881, William A. Harwood and William B. Harwood entered into a copartnership under the firm name of W. A. Harwood & Son in the buying and selling of goods, wares and merchandise in the city of New York.

William A. Harwood furnished the capital, $30,000, which was to'be used and employed in common between them for the support and management of said business. The profits and losses were to-be divided equally, and each of the partners was to give his personal attention to the business. The health of William A. Harwood, who was the father of William B. Harwood, subsequently failed and he was able to give but little attention to the business, and on or "about the 31st of December, 1881, the parties being present at the store, he gave, by words of oral gift to his daughter, Mrs. Hattie H. Willets, $5,000 interest in the stock of goods on hand, and" $10,000 to his daughter Julia E. Harwood, retaining for himself $10,000 in said stock; and thereupon William B. Harwood purchased of his sisters their interest in the goods, giving to each of them his notes for their respective amounts. It appears in the case that at that time the firm was entirely solvent, the stock on hand and bills receivable being estimated at about $30,000 over and above the liabilities of the firm. On the 2d of January, 1882, the firm of W. A. Harwood & Sons was dissolved by mutual consent, and a new partnership was formed under the name of Harwood & Beckwith, to succeed the firm of W. A. Harwood & Son. Articles of agreement were entered into between the new partners, in which it was intended that William A. Harwood should'be-a special partner, he contributing $10,000, his remaining interest in the stock of goods of the firm of Harwood & Son. But the articles of partnership not complying with the statute, each of the parties became a general partner. By these articles it was agreed that William B. Harwood should contribute to the capital $15,000, that Beckwith should contribute $25,000 and William A. Harwood $10,000. At this time the firm appears to have been solvent, and it appears also that the sum of $10,000 contributed by William A. Harwood, was ' the interest reserved by him in the former stock and business, and that the capital of $15,000 contributed by William B. Harwood, consisted wholly of the stock so purchased from his said two sisters. In February following, William B. Harwood left for Europe to purchase goods, leaving the duty of 'caring for the business to his partner, William R. Beckwith. William A. Harwood was at that time in ill-health and gave no personal attention to the business. On or about the twenty-second of March, William B. Harwood received a dispatch while in Europe, that his stock of goods had been consumed by fire. He immediately sailed for home, reaching New York about the 16th of April, 1882, and on investigating the affairs of his firm he discovered that his partner Beckwith had fraudulently issued notes in the name of the firm, without the knowledge or consent of himself or William A. Harwood, to the amount of some $38,000, for which no consideration had been received by the firm, ■ by reason whereof the firm was hopelessly insolvent. About the fifth of May Beckwith absconded and his ’ whereabouts is unknown. He never paid in any portion of the $25,000 called for by the articles of copartnership, and the appellant asserts that the insolvency of the firm was wholly due to his fraudulent acts and his failure to pay in his share of the capital. ■

After the appellant became aware of the condition of the firm» his sisters demanded payment of their notes, and he paid the same by drawing checks against cash in bank belonging to the firm (and another smaller indebtedness) to the sum of $14,589.51. The payment of these notes to the sisters under these circumstances is the alleged fraudulent act for which he is arrested in this action. It is not charged that he.did any other act charged as fraudulent, except the making of an affidavit by which he described the firm as a limited one, but that is abundantly explained by the- fact that it was the manifest intention to create a limited firm, and that it became general merely by an omission to comply with the statute. The defendant denies an intent to defraud, and the only question is whether the act of paying the personal indebtedness to the sisters, with knowledge of all the facts, was such a disposition of the property with intent to defraud creditors as renders him liable to arrest under the provisions of the Code.

The court below disposed of the motion on the authority of Wilson v. Robertson (21 N. Y., 587) and Menagh v. Whitwell (52 id., 146). Those are cases in which assignments or other transfers had been made giving preferences to individual creditors to be paid out of the firm assets, and the court held that such assignments were fraudulent and void. The Court had no question before them in ' those cases as to -whether or not the mere proof of such an act was fraud, within the meaning of the statute which authorizes the arrest .of a debtor for fraudulently disposing of his property. In strictness they are not applicable to the case before us. The transaction between the defendant and his sisters may be void and fraudulent as against the creditors of the firm without imputing any actual fraudulent intent to either of the parties. The plaintiff holds the affirmative to establish something more than a transaction which the law will adjudge fraudulent and void as against creditors, because under the Code in order to justify a warrant of arrest there must be shown an actual and guilty intent -to defraud creditors. A mere constructive fraud which the law implies because an act done is in' violation of the statute, or of the rights of the creditors at common law, is not sufficient. ' . '

■ • We see no reason to doubt that under the peculiar circumstances disclosed, the gift by the father, while he was perfectly solvent, to the daughters, was a valid one. It is true it was not consummated by an actual physical delivery of the stock of goods, but the stock was so situated that the whole transaction of gift, followed by the purchase by the brother then in possession of the goods, .of the respective shares of his sisters to whom he gave his notes; and his continued possession, coupled with the subsequent recognition by the father of such purchase and the treatment of his interest, in constituting the new firm, as being only to the extent of the remaining estimated value, to wit, $10,000, were, we think, enough to amount in law to a consummated gift inter vivos, and we see no ground upon which any third person can attack its validity. There seems to be no reason to doubt the good faith of the gift at that time. There is nothing in the ease to show that the firm was not entirely solvent. So far as the evidence on that subject goes, the assets of the firm largely exceeded its liabilities. So that the question is reduced really to this, whether the act of preferring individual debts of William JB. Harwood, and paying them out of money belonging to the firm, is evidence of such a guilty intent to defraud the creditors of the firm as charges him within the provisions of the Code authorizing an arrest. The mere act by one partner of paying individual debts with money belonging to the firm is not per se fraudulent.

If the firm be solvent no one has any right to complain of it, except his partners when it is done in violation o.f their agreement or to their injury; and if the several members of the partnership consent that one partner may pay his individual debts with firm property, the act is not unlawful, except as against creditors who have acquired some specific lien upon the property either at law or in equity by the commencement of proceedings to enforce the collection of their debts. (Dimon v. Hazard, 32 N. Y., 65; Meech v. Allen, 17 id., 300; Kirby v. Sohoonmaker, 3 Barb. Ch., 46.)

In the People ex rel. Caldwell v. Kelly (35 Barb., 444) it was said by Potter, J., that “in giving construction to this statute for the purpose of imprisoning or of justifying the imprisonment of a party,* * * the more humane interpretation should prevail.” Where there is no evidence of guilty fraud in a debtor he should not be subject to arrest for acts of merely constructive fraud. Applying that principle to this case it seems to us, upon the whole of the facts before us, that it is not affirmatively shown that the appellant acted in paying the debts to the sisters out of the firm money with any guilty intent to defraud the firm creditors, but with tbe intent to give preference to those debts upon the idea that he was justified in taking care of them before the firm debts were paid. Our opinion is that the papers fail to show any such guilty intent to defraud as the Code demands, in order to justify arrest and imprisonment.

The order should be reversed, and the order of arrest vacated, but on condition that the appellant stipulates not to prosecute for false imprisonment, and under the circumstances, without costs.

JBrady and Daniels, JJ., concurred.

So ordered.


text:
    In the Matter of CHARLES FREMONT WILLIS, to Vacate a Sale for an Assessment, Etc.

      Assessment — wiU be set aside because of the inclusion of illegal (excessive) interest, however small its amount.

    An application was made to vacate the sale of a lot for the non-payment of an assessment upon the ground that the amount of the latter was unlawfully-increased by the addition of illegal interest. It appeared that the excessive interest amounted to one dollar and arose from charging interest from November 1, 1869, the date of the confirmation of the assessment, instead of from March 31, 1870, the date of the entry of the assessment in the record of titles of assessments confirmed, kept in the office of the street commissioner, and in a like record kept in the office of the clerk of arrears.

      Held, that the assessment should be vacated.
    Appeal from an order made at the Special Term denying the prayer of the petitioner to have a sale of his land for the non-payment of an assessment vacated upon the ground that illegal interest was included in the amount for which the lot was sold.

      Moody B. Smith, for the petitioner, appellant.

      D, J. Beam, for the City of New York, respondent.
   Davis, P. J.:

The only question in this case is whether the inclusion of excessive interest upon the assessment vitiates a sale. The excess included is the sum of one dollar and it arose from charging interest on the amount from the date of confirmation, namely, from November 1, 1869, to the day of the sale for non-payment thereof, instead of from the 31st day of March, 1870, which is the date of the entry of the assessment in the record.of titles,of assessments confirmed, and kept in the office of the street commissioner, and a like record in the office of the clerk of arrears. Chapter 579 of the Laws of 1853, section 6, provides that “no assessment for any improvement shall hereafter be deemed to be fully confirmed, so as to be due and be a lien upon the property included in it, until the title thereof with the date-of confirmation shall have been entered with the date of such entry in a record of the titles of assessments to be kept in the street commissioner’s office, and which may be used as an index to a record of assessments; and until the title of the said assessment shall have been also entered, with the date of confirmation and the date of such entry, in a record of the titles of assessments confirmed to be kept in the office of the clerk of arrears.”

A precisely analogous question was presented to this court In the Matter of Austin, and it was held that a sale for any sum of interest unauthorized rendered the sale illegal.

The same point now presented by the counsel for the respondent, to wit, that the maxim de mmimis non curat lex is applicable was distinctly overruled. This is not a case of a mere mistake in the computation of interest to which the maxim referred to must properly be applied, but one in which a sum for interest was charged without lawful authority and when no right existed.

TJpon the authority of the decision of this court In re Austin (MS. opinion Per Curiam, May term, 1880) the order should be reversed and an order made vacating the sale, but under the circumstances without costs.

Beady, J.; concurred.

Present — Davis, P. J., Beady and Daetels, JJ.

Order reversed.


author: Beady, J.:

text:
    JOHN PARET, as Administrator, etc., Plaintiff, v. THOMAS KENEALLY, Defendant.

      Administrator with the will annexed — right of, to execute a power of sale given to the executor.

    The light oí an administrator -with the will annexed to execute a power to sell and convey real estate conferred by the testator upon his executor, is involved in too much doubt to justify the court in enforcing the performance of a contract to purchase the property from him.
    CONTROVERSY submitted upon an agreed statement of facts under section 1279 of tbe Code of Civil Procedure.
    Tbe agreement for submission is as follows: Tbe parties to tbe above entitled action being all of full age agree upon tbe following case for submission to tbe General Term of tbe Supreme Court for tbe First Department:

      First. Tbat tbe plaintiff was duly appointed administrator witb tbe will annexed of tbe estate of Jobn Paret, deceased, by tbe surrogate of tbe city and county of New York, Henry Paret, one of the executors named in tbe will, having died tbe 10th day of November, 1876, and the other executor and tbe executrix having renounced in favor of said John Paret.

      Second. Tbat tbe annexed exhibit, marked “ A,” is a true and correct copy of tbe will of tbe said J obn Paret, deceased.

      Third. Tbat Hester Paret, tbe widow of said John Paret, deceased, and tbe executrix named in tbe will, died on tbe 20th day of December, 1882. '

      ■Fourth. That on tbe 23d day of January, 1883, tbe plaintiff, as such administrator, was in possession of tbe property known as N.o. 405 Greenwich street, in the city of New York, and on said day offered tbe same for sale at public auction at said city, and that at such sale tbe defendant became tbe purchaser thereof for the sum of $12,100, and then and there paid to tbe auctioneer tbe sum of $1,210 on tbe purchase-money.

      'Fifth. Tbat tbe defendant refuses to complete such purchase on tbe ground tbat tbe plaintiff, as such administrator, has no power or. authority to convey a good and valid title to said property in fee simple.
   Beady, J.:

Whether the plaintiff, as administrator with the will annexed, has the power to convey and give a valid title in fee simple to the property described is the question submitted for our determination. The provisions of the Revised Statutes in relation to this subject (see sec. 22 of art 1, tit. 2, chap. 6, part 2 of R. S.; 2 R. S., 72) are as follows:

“ In all cases where letters of administration with the will annexed, shall be granted, the will of the deceased shall be observed and performed ; and the administrators, with such will, shall have the rights and powers and be subject to the same duties as if they had been named executors in such will.”

And they seem to have provoked a great deal of discussion. (See Dominick v. Michael, 4 Sandf. S. C. R., 374; DePeyster v. Clendining, 8 Rage, 310; Conklin v. Egerton’s Administrators, 21 Wend., 430; S. C., 25 id., 224; Roome v. Phillips, 27 N. Y., 362.)

In the ease of Rain v. Matteson (54 N. Y., 663), all these cases, except Roome v. Phillips, are referred to, and the court in rendering the decision said: I am not aware that the question -has again been mooted in the courts, but am inclined to think that under the language of the Revised Statutes an administrator with the will annexed in all respects takes the powers of a renouncing or deceased executor, unless a personal confidence in the discretion of the person who is named as executor is plainly expressed or to be implied. Where the power or trust appears to be annexed to the office of executor it may be executed* by an administrator, with the will annexed.” In this view all the court concurred.

In this case, as will have been seen, a personal confidence in the discretion of the person named as executor is not plainly- expressed or to be implied from the provisions of the will. The language is, “I authorize and empower my executrix and.executors hereinafter named and the survivors or survivor of them, at any time or times they'may deem advisable to sell and dispose,” etc. Whether it shall be a public or private sale rests in their discretion under the .provisions of the will, but no confidence in the discretion of the person seems to be expressed, as already suggested, and it is a case, therefore, where the power or trust appears to be annexed to the office <}f an executor, and that being so it would seem, under tbe cases just referred to, tbe power could be exercised by tbe administrator, with tbe will annexed. That there should be any serious discussion under a statute, tbe terms of which are so comprehensive seems to be extraordinary and that there has been would indicate a disposition on the part of courts to restrict its operation, which is, as we have seen, very broad, providing as it does not only that where letters of administration, with the will annexed, shall be granted, the will of the deceased shall be observed and performed, but that the administrators, with such will, shall have the rights and powers and be subject to the same duties as though they had been named executors in such will. This statute invests them, therefore, absolutely and without any qualification, and it would seem without any doubt, with all the rights and powers possessed by executors for whom they have been substituted. This is the apparent effect of ■the statute.

Of course a different construction may be adopted, for, as said by Justice DubR, in Dominick v. Michael (supra), “ there is no difficulty in restricting them (the words of the section) to mean that the rights, powers and duties of an administrator with the will annexed, in- relation to that personal estate over which alone an executor as such has any control or dominion, shall be the same as those of an executor.” The answer to which is that there is no difficulty either in not restricting them to any such limit, and there is no difficulty in giving to them the effect which the legislature would seem to have intended by the language employed. The statute was fully discussed again in the ease of Dunning v. The Ocean National Bank (61 N. Y., 501), in which the court said : “We cannot, therefore, dispose of this case without considering the questions whether the plaintiff, as administratrix with the will annexed, succeeded to all the power in trust intended to be confided to the original executor named in the will. If such be the -law it is very obvious that the action was barred : and tbe same result will follow if the plaintiff, when appointed administratrix cum testamento annexo, or when the surplus was produced on the foreclosure sale, she had in that capacity an immediate right of action to recover it.” “ In the case at bar,” the court further said, “ it is, I think, very obvious that the testatrix intended to make her executor a trustee with large discretionary power, which he might exercise without any reference to his duty as executor. This trust duty was not annexed to the office of executor, but was devised to him as a person. He might therefore accept and execute the trust without proving the will or taking .out letters testamentary. * * * This being so it of course follows that the plaintiff, as administratrix with the will annexed, did not succeed to any right concerning the trust estate.”

This seems to carry out the proposition suggested .in the case of, Bain v. Mattison (supra), namely, that where the power of .trust appears to be annexed to the office of the executor, it may be executed by an administrator with the will annexed.

The result of an examination of these cases is that the question suggested is involved in too much doubt to require the defendant to complete the contract. As an original question, I should' say as said by Justice DeNio in the case of Roome v: Phillips, supra,I should have supposed that the statute covered the case and that the administratrix was competent to exercise the power.” J3ut, as already suggested, there seems to be too much doubt about it to warrant this court in declaring that the plaintiff shall be compelled to perform the contract which he made for the purchase of the property described. The rule is well settled and requires no .citation of cases to sustain it, that a court of equity will not compel a person to accept a doubtful title.

For these'reasons judgment should be given for the defendant according to the terms of this stipulation.

Ordered accordingly.

Davis, P. J., and Daníels, J., concurred.

Judgment for defendant ordered.


author: Ready, J.:

text:
    WILLIAM H. PARSONS and GEORGE F. HICKS, Respondents, v. DANIEL J. SPRAGUE, Appellant, Impleaded with JOHN G. TAPPAN and Others.

      Attachment — a motion to vacate it may be made after the entry of judgment— Oode of Givil Procedure, sees. 682 and 683.
    Under sections 682 and 683 of the Code of Civil Procedure a motion to vacate an attachment may be made after a judgment has been entered in the action and an execution has been issued thereon, provided the attached property or the proceeds thereof has not been actually applied to the payment of the judgment.
    Appeal from an order made at a Special Term denying a motion to vacate an attachment.

      W. Z. La/rned, for the appellant.

      Gilbert R. Hawes, for the respondents.
   Ready, J.:

Daniel J. Sprague, the appellant and one of the defendants, applied at the Special Term for an order vacating the attachment issued herein. The application was not made, however, until after final judgment and an execution had been issued thereupon. Eor that reason the learned justice who..presided at the time the motion was made denied it. He said: The motion to vacate the attachment in this case is denied, for the reason .that it appears that judgment has been entered and execution has been issued.” No other question, therefore, was considered by him, and the merits of the application were not passed on.

The views of the learned justice would seem to be erroneous. By section 682 of the Oode of Civil Procedure, it is provided that the defendant, or a person who has acquired a lien upon or interest in his property after it was attached, may at any time before the actual application of the attached property, or the proceeds thereof, to the payment of a judgment recovered in the action, apply to vacate or modify the warrant or to increase the security given by the plaintiff, or for one or more of those forms of relief, together or in the alternative, and section 683 provides for the manner in which the. application may be made, namely, upon the papers on which the warrant was granted, or upon proof, by affidavit, on the part of the defendant. It appears, therefore, clearly that the legislature intended to give the defendant an opportunity of moving to vacate the attachment notwithstanding an execution has been issued, unless there had b'een an actual application of the attached property which would necessarily involve its sale. This view is sustained by reference to section 687 which provides that the defendant may at any time after he has appeared in the action and before final judgment, apply to the judge who granted the warrant, or to the court, for an order to discharge the attachment ,as to the whole or a part of the property attached. But by section 668 upon-such application the defendant must give an undertaking. There are, therefore, two remedies provided for the defendant for relief from the presence of an attachment, one of them being by motion, which may be made at any time before the actual application of the attached property, or the proceeds of it to the payment of the judgment, and the other by application before final judgment, which must rest upon an undertaking, as we have already seen.

The right of the defendant to move after final judgment and an execution issued seems to be an anomaly, and would not be sustained except upon imperative necessity demanded by the absolute construction of the provisions of the Code, for the reason that upon the issuing of the execution aud the' levy of the attached property under it, the attachment itself for all purposes ceased to exist. Its office had been performed and the property was in custodia legis under another process, which was altogether distinct from the attachment itself and founded upon an entirely different result. But there seems to be no doubt about the intention of the legislature to extend the remedy down to the period named, because of tlie use of the words “before the actual application of the attached property or the proceeds thereof to the payment of the judgment recovered in the action.” What the particular object of this was cannot be well divined. It may have had some connection with the right of the defendant to appeal and to have his property surrendered to him during the pendency of his appeal. If that were the object it was a good one doubtless. But we are not called upon to furnish reasons why an act of the legislature was passed. It is our duty to declare what is accomplished by it and nothing more.

For these reasons the order below must be reversed, with ten dollars costs and disbursements of this apneal, and the motion directed to be heard upon its merits.

Davis, P. J., and Daniels, J., concurred.

Order reversed, with ten dollars costs and disbursements.


text:
    JOSEPH STUART, as Ancillary Administrator of the Estate of MARGARET DOHERTY, Deceased, Plaintiff, v. HENRY F. SPAULDING and Others, Trustees under the Last Will, etc., of DANIEL DEVLIN, Deceased, Defendants.

      Legacy payable on the death of a Ufe beneficiary — when it nests upon the death of the testator — when remaindermen must take the fund at the death of its life tenant in its then existing condition.

    A testator "by his will directed Ms executors to invest a sufficient sum to produce a dividend or income of $500 a year, and pay over the same to his brother during his life, and upon his death to pay over the sum thus invested to such person or persons as the brother might by an instrument in writing appoint. By a codicil this was changed by a direction that the executors were to invest a sum sufficient to produce a dividend of $1,000 a year. By a subsequent codicil they were directed to invest a sum sufficient to produce an income of £250 sterling a year, which was to be paid over to the brother, and upon his death the sum thus invested was “to be paid over to my (his) sister Margaret and her heirs.” The rest and residue of his estate was divided into six equal parts and given to different persons named in the will.

      Held, that the principal of the sum to be invested vested in Margaret at the testator’s death, and passed to her representative upon her death during the lifetime ■of her brother.
    The executors, upon their final accounting in 1878, set aside for the brother the sum of $26,390.63 and invested it in United States bonds. Subsequently the bonds were called in and the sum of $25,000 paid for them by the government; $24,650 of this amount was reinvested in government securities. The first investment produced a greater and the second a less income than that required to be paid to the brother.

      Held, that the representatives of the sister must take the fund as diminished at the time of the death of the life tenant.
    Cask submitted upon an agreed statement of facts.

      Solomon da Dulon, for the plaintiff.

      Charles E. Miller, for the defendants.
   Beady, J.:

The question presented for determination herein arises from the third clause of the second codicil of the last will and testament of Daniel Devlin, deceased. It appears that Margaret Doherty named in the clause died before the brother of the testator, to whom the income of the sum named was to be paid during his life. The defendants contend that the'legacy to Margaret Doherty lapsed upon her • death before Philip Devlin, the brother. . The plaintiff contends that it did not. The clause under which the plaintiff claims is as follows:

“ Instead of the direction to my executors to invest a sum sufficient to produce a dividend or income of one thousands dollars, as. provided in the third clause of the foregoing codicil to be paid over to my brother, I direct them'to invest, as in said clause provided, a sum sufficient to produce a dividend or income of two hundred and fifty pounds sterling per annum, which dividend or income shall be paid over to my said brother as in said sixth clause provided. The sum thus invested shall upon the death of my said brother be paid over to my sister Margaret and her heirs.”

By the sixth clause of the will the executors were directed to invest a sum sufficient to produce a dividend or income of $500 a year, which dividend they were directed to pay over to the Rev. Philip Devlin, D. D., of Newtown-limavaddy, county of Derry, Ireland, and upon his death they were directed to pay over the sum invested to such person or persons as he might by an instrument in writing appoint. By the third clause of the first codicil to his will a change was made by which the executors, were directed to invest, according to the will, a sufficient sum to produce a dividend or income of $1,000 per annum, which dividend was to be paid over as directed in the will; and the sum invested upon the death of the brother was also to be paid over in accordance with the provisions of the clause of the will, that is to say, to such person or persons as he might by an instrument in writing designate. And by the third .clause of the second codicil, as we have seen, another change was made by which the dividend was increased and the sum invested directed to be-paid over to bis sister Margaret and her heirs. It 1 must be confessed that the rules which affect the question to be considered in this case are somewhat difficult of precise comprehension and application, but, nevertheless, that which must control herein can without serious disturbance be eliminated. In the case of Warner v. Durant (76 N. Y., 133), and which presented the question whether a legacy became vested in the legatee in his life time, though he died before the time fixed for the payment, the court said: It is a general principle that where the gift is absolute and the time of payment only p&stponed; time not being of the substance of the gift, but relating only to the payment, does not suspend the gift but merely defers the payment.” And having declared that that principle would not act in that case to vest the legacy said that there was another rule to be noticed, which was this: “Where there is no gift but by a direction to executors or trustees to pay or divide, and to pay at a future time, the vesting in the beneficiary will not take place until that time arrives.” * * * “ But this rule does not act in this case; for there has been a distinction grafted upon it. It is this: Where the gift is to be severed instcmter from the general estate for the -benefit of the legatee; and in the meantime 'the interest thereof is to be paid to him; that is • indicative of the intent of the testator that the legatee shall, at .all events have the principal, and is to wait only for the payment until the day fixed.”

In this case the testator by his will provided for the investment of a sum, and the payment of the interest or income of it to his brother, before the general disposition of his estate. Immediately after the sixth clause already mentioned, by the seventh clause, he provided that all the rest, residue and remainder of his estate, both real and personal, should be divided into six equal parts. It is clear therefore, to use the language of Warner v. Durant (supra), that he severed the gift from the general estate for the benefit of the persons named, i. e., his brother and Margaret, his sister, who is mentioned as the residuary legatee by the last codicil.

In the case of Loder v. Hatfield (71 N. Y., 92) the question whether legacies vested in legatees in their lifetime was considered and the court said: “ Certainly, the idea conveyed by the terms of the gift, as above stated, is of an absolute, sure and lasting bequest to belong at once and forever to the legatees named, or to those coming after them in legal succession; while the severance of the clause of bequest from the clause of time of payment repels, rather than supports, the notion that more than the time of payment was meant to be contingent. The gift is direct to the legatees and their heirs, and is independent of the direction when to pay. In such case the rule is that the direction for payment, on the happening of an event named, shall not defer the vesting of the legacy.” And the court further said that the words of the gift in the will in that case being to them and their heirs forever ” were entitled to weight, inasmuch as they showed that the testator had in mind a permanent separation from the bulk of his estate of the amount of these legacies and the transmission of it in a different course of succession. And it was also stated to be another rule that if the direction to pay at a future period be for the convenience of the 'estate or to let in some other interest the vesting of the gift was not prevented. A proposition for which the case of Packham v. Gregory (4 Hare, 398) was cited.

As already suggested, it is quite evident that the testator separated the sum to be invested for the benefit of his brother from "the bulk of his estate, and intended not only that his brother should enjoy the benefit of the income arising from it, but, originally, that he should have the power of disposing of it- in such manner as he might think proper, by an instrument in writing. "When the change in the sum to be invested took place which was accomplished by the second codicil, this intention was not in any way changed, inasmuch as it was provided that upon the death of his brother the sum invested should be paid over to his sister Margaret and her heirs— these words “ and her heirs ” having, according to the case just, cited and the rule just stated, an important effect on the question of intention._ There are several cases kindred to this holding that, where the benefit of a legacy is given for life to one and after his-death to another, the interest of the second legatee is vested, and his personal representatives would be entitled to the property, though he die in the life time of the person to whom the property is bequeathed for life. (Terrill v. Public Administrator, 4 Bradf., 245; Barker v. Woods, 1 Sandf. Ch., 129; Conklin v. Moore, 2 Bradf., 179; Packham v. Gregory, supra.)

In the ease of Bedell v. Guyon, ( 12 Hun, 396), the executors were directed by the testator to invest and to keep invested, out of his estate the sum of two thousand dollars, and to apply the increase thereof to the support of his nephew George B. Seguine and during the full term of his natural life; and at and upon the decease of the said George B. Seguine, he directed the sum named so to be invested to be paid, in equal parts, to Mary Jane Guyon, wife of Peter Guyon, Martha Jane Guyon, wife of John Wesby Guyon; and Helena Seguine, children of said George B. Seguine, and Martha Guyon, daughter of said Peter Guyon. Martha Guyon died before George B. Seguine and the defendants were her administrators. It was claimed from that circumstance that she had no vested interest in the legacy and that none passed to her personal representatives. It was held, however, that the legacy became vested at the death of the testator. And this proposition was sustained by the several cases cited.

In Betts v. Betts, (4 Abb. N. C., 317), in confirmation of the doctrine stated, Justice YaN Yobst said : “ The general rule to be extracted from the authorities is that when legacies are payable in the future, without condition annexed, or .any expressed intention of the testator to the contrary, whether they are of personal property or of real estate directed to be sold to discharge them, they vest at the death of the testator, and this though a life estate may intervene before payment.”

In addition it must -be said, as illustrated by Hemto, C. J., that the general, if not the universal rule is, that where there is a person in being in whom the estate in remainder would vest in possession if the precedent estate should immediately terminate, it is vested in interest, though it may not be certain that such person will be living or qualified to take at the actual .cessation of the prior estate. (Matter of the Trustees N. Y. P. E. Pub. School, 31 N. Y., 589; see, also, Livingston v. Greene, 52 N. Y., 118.)

It is not deemed necessary to accumulate authorities upon the proposition thus stated. It was clearly the intention of the testator to devote the sum to be invested to the'- persons named, who were his-brother and sister ; and it seems to be free from doubt, therefore, that the plaintiff is entitled to recover.

The defendant’s rely, among other cases, upon that of Colton et al. v. Fox et al. (67 N. Y., 348). The question presented in that case sprung from tlie eigbtli clause of the will, by wbicb the testator gave, devised and bequeathed all tbe rest, residue and remainder of bis estate, both real and personal, to his executors upon the trust named in it, viz.: to pay the income, rents, issues ai d profits to his brothers,'naming them, and his sisters, naming them, equally, share and share alike, during their joint lives, and after their several deaths to divide the real and personal estate among the children of his brothers and sisters respectively, the children to take the parent’s share; and he then declared as follows : “ And I hereby expressly declare that in case either of my said brothers or sisters shall die, leaving the others surviving, then the income herein intended for the one or the other so dying, shall be paid to the issue or representative of the one or the other so- dying.”

It was contended in that case, by the counsel for the plaintiff that the interests of the children of the respective brothers and sisters vested in them at the death of the testator. But this was held untenable. The court said: Here, in the first place, the title is in express terms vested in the executors, and there is no provision for paying any part of the corpus until the death of the four beneficiaries; . in fact, as we have seen, the provisions of the will repel any such idea. The testator placed the title of this portion of his property in his executors, and directed that it should remain there until the death of four persons, with a limitation over to such of their children as should be living. It is a future interest or estate contingent upon surviving the four persons named.”

That case is very different from the present, for the reason of the limitation suggested, and for another reason, namely, that the title to the estate Out of which the payment was to be made was in express terms vested in the executors. In this case the executors were directed to invest, without any prior provision that the title should vest in them.

The case of Magill v. McMillan (23 Hun, 193), was a case also in which all the property of the testator was given to the executors with power of sale and disposition and trust, to manage the estate and invest the principle and to collect the income and pay it over to his five children named in equal proportions, until Ellen, one of them, arrived at the full age of twenty-one years, or in ease of her death, until Margaret, another one of his children, became twenty-one years of age. Upon the arrival of Ellen at the age of twenty-one years, or in case of her death, when Margaret reached that age, the executors were directed to sell all his real property and convert his personal property into money, and then to divide his said estate between the said children equally, share and share alike. It was also provided that should any of his children die before such distribution, leaving issue her surviving, such issue should take the share his, her or their parent would have been entitled to if living, and in the same manner, i. e., in equal shares. One of the children died intestate leaving a husband, but was of full age at the time of her death which took place before Ellen arrived at the age of twenty one-years. The husband of Mary Ann claimed the share his wife would have received on the distribution had she lived until the time came for this purpose, on the theory that her interest vested at the death of the testator. It was held that there was no immediate, gift to the children, as all was given to the executors to divide among the children when Ellen arrived at the age of twenty-one years, until which time the title to all the property was in the executors, and none but living children could share in the distribution ; and further, that the right to share in the distribution was contingent upon the duration ■ of the life of the beneficiary Ellen, or until she became twenty-one years of age; and also that futurity was annexed to the substance of the gift and not to the time of payment.

That case is essentially different from the one in hand for the direction is absolutely to pay upon the death of the .brother of the testator to Margaret, his sister named in the codicil.

There are many cases referred to by the counsel for the defend- . ants in his able and elaborate brief which have been examined, and in regard to which it is only necessary to say that they are distinguishable from the present case and in no way conflict with the rule herein stated as controlling of the question presented according to the adjudication in this State. It must be said also that due consideration'of the entire will does not lead to the conclusion that the testator intended to do other than was expressed by the codicil, namely, to separate from the bulk of his estate the sum directed to be invested, and to give the income thereof to his brother during his life and the principal absolutely to Margaret and her heirs upon her death.

It further appears that the executors set aside and invested for Philip Devlin the sum of $26,390.63, which amount and investment were approved by the decree of the surrogate upon the final accounting in December, 1878, to- which Philip Devlin and the administrator of Margaret Doherty, the testator’s sister, were parties ; that the entire estate had been distributed under and in the manner directed by the surrogate’s decree, and, further, that this money invested in bonds of the United States was diminished by a call of the government for them. It also appears that the investment originally produced an income larger than the £250 mentioned in the codicil, which balance was paid over by the defendants to other legatees under the will. It appears, further, that the amount paid by the United States government for the bonds which became the subject of the investment was $25,000, and that in August, 1879, the defendants invested $21,650 of the first mentioned amount in bonds of the United States, commonly known as United States currency sixes, leaving a cash balance of $350 in the hands of the executors; and, further, that this last mentioned investment has not produced a yearly income of £250, but of $1,200. In addition to which a yearly income has been derived from the $350, amounting to twenty-one dollars per annum.

Under these circumstances we think that the plaintiff should take the fund in its present condition as diminution arose from no fault or neglect on the part of the defendants, and as there is no provision in the will which requires that any other than the sum invested for the particular fund set apart should be paid over. The investment involved a single act by the executors, and the fund set apart was to be paid over on the death of the life tenant.

Judgment for the plaintiff is awarded in accordance with these views.

Davis, P. J., and Daniels, J., concurred.

Judgment ordered for plaintiff.