text:
    Michael H. Gillespie, Resp’t, v. John Mulholland, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Attorney and client—Relation.
    Where the transfer of a claim in suit is proposed and accepted during the pendency of the action, with the knowledge of the attorney who advised against a formal assignment being made at the time, the relation of attorney and client is, in a measure, created between such attorney and the proposed assignee.
    3. Same—Summary proceeding.
    The assertion of a lien by the attorney is not an answer to a summary proceeding to compel him to pay over money collected by him.
    3. Same—City court.
    The city court has the same power over attorneys as is possessed by other courts of record.
    4. Same—Reference.
    In a summary proceeding against an attorney, the city court has power to refer the questions of fact before it on the application.
    Appeal from an order of the city court, affirming an order directing a reference.

      James Kearney, for app’lt; Jeroloman & Arrowsmith, for resp’t.
   Daly, C. J.

This is an appeal from an order of the general term of the city court, affirming an order of the special.term directing a reference upon an application to require an attorney to pay over moneys collected by him. The moneys were collected in an action brought-by one Peck against Deering and others, and are claimed by the petitioner, Gillespie, by virtue of an assignment from Peck of his claim and'judgment in the action. The attorney Mulholland, who collected the judgment from the defendant, and retained the whole amount, resisted the application to compel him to pay, on the ground that the relation of attorney and client never existed between him and the assignee; that he was entitled to retain the whole sum, $1,442.16, to satisfy his claims for services and disbursements in this action and other litigations affecting it and in prior litigations on behalf of one Campbell, the original owner of the claim in suit, for money advanced to Campbell, and a note indorsed for his accommodation. The dispute as to the facts and as to the amount of the lien of the attorney upon the recovery required, in the judgment of the court, a reference; and the power of the court to order such reference is the question presented by this appeal, the objections urged being that the summary application against an attorney is not available to the assignee of the claim sued on; that it cannot be maintained where the amount of the attorney’s lien is in dispute; that it cannot be entertained by the city court against attorneys in actions before it; and that the power of the city court to refer questions of fact upon motions is restricted to actions, and does not include special proceedings of this character.

It has been held that the summary remedy by attachment against an attorney for misconduct is available only to the client, and cannot be assigned with the demand: Bowen v. Smidt, 49 St. Rep. 647; In re Schell, 58 Hun, 440; 34 St. Rep. 928. But an expression of opinion by the court of appeals in reviewing the order in the case last cited settles the question :

“IE we were permitted to look into the opinion of the general term for the ground of reversal and denial of relief, it would appear that the court was of opinion that the assignee of a client was not entitled to this remedy. While it would, we think, be difficult to show that the supreme court has not the power to entertain the proceedings, even upon the application of an assignee, it certainly could, in the exercise of its discretion, decline to use it; and that may have been the ground of the decision appealed from.” Schell v. City of New York, 128 N. Y. 67; 38 St. Rep. 442.

In the case quoted, the assignment was of the claim of the client against the attorney for the money collected by the latter, and the relation of attorney and client never existed between the attorney and the assignee. In the present case, the transfer of the claim in suit was proposed and accepted during the pendency of the action with the knowledge of the attorney, who advised against a formal assignment being made at that time, but, having notice of the intention and rights of the parties, must be held to have prosecuted the action for th.e benefit and on behalf of the real party in interest, the proposed assignee; and so the relation of attorney and client was thus, in a measure, created between them. The assignment of the judgment subsequently made was merely to carry into effect the prior arrangement, of which the attorney had notice.

The assertion of a lien by the attorney is not an answer to summary proceedings, but it is discretionary with the court to proceed in the matter.

“Upon motion, the court summarily disposes of the matter upon principles of equity well understood. The lien of the attorney continues throughout, and includes all the remedies open to the party.” Bank v. Todd, 52 N. Y. 489.

The court there distinguished the Case of Paschal, 10 Wall, 491, because there neither party asked the court to settle the amount of the lien. Were the application denied, the client would be left to his action against the attorney ; and with regard to that remedy the court says : from his attorney, and, if the attorney should not pay, then try the same track again.” Bank v. Todd, above.

“The law is not guilty of the absurdity of holding that after a client has spent years in collecting, through his attorney, a lawful demand, he shall be put to spending as many more to collect it

In this case the order of reference required that proof be taken of any aliens, claims, or offsets of the attorney ; and if any party ought to complain of the order it is the respondent, for the scope of the order seems to include indebtedness for which the lien of the attorney could not be enforced. Code, § 66. The court has power to determine the amount of the attorney’s lien by reference. Barber v. Case, 12 How. Prac. 351. The order which was reversed in McKibbel v. Nafis, 59 St. Rep. 101, directed the attorney to pay over the whole sum in his hands, disregarding his lien; and that decision is not an authority against the order made in this case, which recognizes and protects the lien. The city court has the same power over attorneys possessed by other courts of record. It is made a court of record by statute (Code, § 2 ; Laws 1883, c. 26), and, though there are statutory limitations of its jurisdiction of actions, they do not affect its power to enforce all remedies of parties to actions of which it has jurisdiction. As a court of. record it has power to punish an attorney for misconduct by which the right of a party to an action or proceeding pending in the court is prejudiced, and to attach in any other case where courts of record have adopted that remedy in order to protect parties. Code § 14, and subdivision 8 thereof. The city court also possesses the same power as the supreme court to refer questions of fact. The appellant assumes that its power is derived solely from section 3172 of the Code, permitting a reference of special questions of fact on motions in ordinary actions; but it may refer under sections 827 and 1015 of the Code, which by section 3347, subd. 6, are made applicable to actions and special proceedings in the marine (now city) c'ourt. Under section 827 the court, when authorized to make an examination or inquiry, may direct a reference to do so, and by section 1015 may direct a reference whenever it is necessary for the information of the court. Whether, therefore, the proceeding against an attorney for misconduct in not paying money collected is to be regarded as a motion in the action, or as a special proceeding (in Schell v. City of New York, it was entitled both ways), the city court had power to refer the questions of fact before it on the application. In this it followed precedent, the supreme court having, as before mentioned, referred the question of the amount to be allowed the attorney for services in a proceeding to attach him for not paying moneys collected. Barber v. Case, above. The order appealed from should be affirmed, with costs ,and disbursements.

All concur.


source: Caselaw Access Project

author: Pryor, J.

license: Public Domain

text:
    Sarah Frankfort, Resp’t, v. Manhattan Railway Company, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Evidence—Opinion—Hypothetical pacts.
    If the facts upon which an expert witness bases his opinion be disputed, he must assume them as only hypothetically, not absolutely true.

      :2, Same—Basis of .opinion.
    An expert witness cannot base his opinion upon facts not communicated to the jury, nor upon hearsay, nor upon the evidence of others on thetrial.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Edward B. Thomas, for app'lt; A. G. Vanderpoel, for resp’t.
   Pryor, J.

The plaintiff has recovered a verdict of $5,000 for

.an injury asserted to be the effect of the defendant’s negligence. Whether that injury was the cause of the physical and mental maladies with which she claims to be afflicted, and whether those maladies be incurable, is enveloped in obscurity, and contingent upon the inferences of experts. The surgeon by whom the plaintiff wa's treated made light of the hurt, and attributed the ailments •of which she subsequently complained not at all to the accident, while the surgeon produced on her behalf at the trial represented her condition as distressing and desperate, and imputed it entirely to her injury by the defendant. Obviously, if the testimony of the latter witness be expunged from the record, the judgment cannot :stand. In response to an inquiry detailing hypothetically the cir•cumstances of plaintiff’s injury and the symptoms of her condition, the witness affirmed that condition to be the consequence of the injury, and to be permanent. But on cross-examination he repudiated the hypothesis upon which the question proceeded, and avowed that his opinion was founded on the actual facts of the case, of which some were known to himself, some communicated by the plaintiff, and some collected from the evidence at the trial. What facts were the basis of his opinion was not apparent to the jury. Thereupon the defendant moved to strike out the answer -of the witness, and the exception to the denial of the motion duly challenges the competency of the evidence. Link v. Sheldon, 136 N. Y. 1; 48 St. Rep. 820. Manifestly, the premises, if disputed, from which an expert is to deduce his opinion, cannot be presented as the actual facts of the case. The province of the jury may not be so invaded, their verdict anticipated, and the issues they are to try determined by the witness. Hence the necessity of a hypothetical question. 1 Whart. Ev. § 452. Had counsel propounded the question in a dogmatic form, stating the facts unconditionally, the court would have instantly rejected it. Is the irregularity any the less if the witness himself repudiate the hypothesis, and say to the jury that the ground of his opinion is an absolute fact? ÍSTor ■did the witness communicate to the jury the facts upon which his opinion proceeded. The court, therefore, could not ascertain whether those facts were within the scope of the evidence; nor -could the jury determine whether they were supported by proof. People v. Smiler, 125 N. Y. 717; 35 St. Rep. 1; People v. McElvaine, 121 N. Y. 250, 258 ; 30 St. Rep. 977 ; People v. Harris, 136 N. Y. 433, 453 ; 49 St. Rep. 751. ‘‘A physician cannot be permitted * * * to take into consideration facts known to him, "but not communicated to the jury.” Railway Co. v. Falvey, 104 Ind. 409; 7 Am. & Eng. Ene. Law, p. 497, note. “The party against whom the evidence is offered is entitled, if he so. desires, to have an explicit statement made to or by the expert witness of the precise state of facts upon which his opinion is based.” Connelly v. Railway Co., 60 Hun, 495, 497 ; 59 St. Rep. 561. In Atkins v. Railway Co., 57 Hun, 102; 32 St. Rep. 214, a question was condemned because “it leaves the witness to determine what injuries-the plaintiff has received from the accident, and what her previous condition had been, without the jury having any knowledge upon what such a determination was based and because “it also makes the witness testify, not to an opinion, but to an absolute fact that the symptoms arose from the injuries which the physician assumed-the plaintiff to have received, as regards the nature of which assumptions on the part of the physician the jury were entirely ignorant.” And not only did the opinion of the witness proceed upon his own personal knowledge, but also, as he declared, upon hearsay, and “the evidence to which he had listened.” This vice alone invalidates his testimony. Link v. Sheldon, 136 N. Y. 1; 48 St. Rep. 820; In re Snelling, 136 N. Y. 515 ; 49 St. Rep. 695; People v. McElvaine, 121 N. Y. 250; 30 St. Rep. 977; Guiterman v. Steamship Co., 83 N. Y. 358 ; Reynolds v. Robinson, 64 id. 589; In re Mason, 60 Hun, 46, 55 ; Connelly v. Railway Co., 60 Hun, 495 ; 59 St. Rep. 561. The testimony of experts is not evidence which courts are disposed to accredit beyond the strict sanction of the law. Ferguson v. Hubbell, 97 N. Y. 507, 514; Roberts v. Railroad Co., 128 id. 455, 465 ; 40 St. Rep. 454. Judgment and order reversed, and new triaVordered; costs to abide the event.

All concur.


text:
    Ralph Henry, Resp’t, v. Joseph Agostini et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Evidence—parol—Ambiguities. \

    In elucidation of an ambiguity in a written contract, evidence is admissible of conversations and circumstances attending the negotiation of the-agreement.

      2. Same—Acts and declarations.
    Acts and declarations inter alios are not admissible to affect the parties-to an action.
    3. Appeal—City court—Review of evidence.
    Affirmance of a judgment by the general term of the city court precludes-all review of the evidence by this court, except to ascertain if there be any to support the judgment.
    Appeal from a judgment of the city court, affirming a judgment in favor of plaintiff.

      Henry L. Burnett, for app’lts; Stewart & Macklin, resp’t.
   Pryor, J.

The argument of the appellants proceeds on the assumption of power in this court to reverse the judgment because contrary to the weight of evidence, whereas our only function is to ascertain whether the findings of the trial judge be supported by any competent evidence. Farley v. Lyddy, 8 Daly, 514 ; McEteere v. Little, Id. 167. In resistance to a recovery by plaintiff for work and material on defendants’ buildings, the defenses were —First, that the contract was not with defendants ; and, secondly, nonperformance of the contract by the plaintiff. As upon both issues, the plaintiff produced sufficient proof to sustain the findings, we are concluded by the affirmance at general term. Dearing v.. Pearsan, 8 Misc. Rep. 270; 59 St. Rep. 201.

Conceding such evidence, the defendants challenge its competency. By written contract the plaintiff engaged to furnish frames and sashes for “windows” in defendants’ buildings, and the question is whether paroi evidence was admissible to show that only exterior, and not interior, windows were intended. In the popular sense, undoubtedly, the opening in a light shaft is not a “window,” and yet, among builders, the word may be so understood. But susceptible, therefore, of diverse meanings, the equivocal contract was open to oral explanation,—emphatically so when the object of the evidence was to identify the subject-matter of the agreement. Manchester Paper Co. V. Moore, 104 N. Y. 680 ; 5 St. Rep. 747; Dwight v. Insurance Co., 103 N. Y. 342; 3 St. Rep. 115; De Gamp v. McIntire, 115 N. Y. 258; 26 St. Rep. 266 , Campbell v. Jimenes, 23 Supp. 333, again on appeal 7 Misc. 77 57 St. Rep. 480. Though the question calling for the contents of the plan were irregular, the answer is proper, since it speaks only to the condition of the paper when given to the witness, and not to its present appearance. If competent, claim the defendants, the same sort of evidence was allowable to them, but the court ruled otherwise. The offer rejected was of bids and estimates for the work by others, but no such proof was introduced by the plaintiff, and it was plainly irrelevant to the issue in controversy. The fact that others understood the plan to include interior windows, and proposed to furnish them for a little more than the plaintiff charged, tends in no legal sense to ascertain the intent of the contract as accepted by the parties. Besides, acts and declarations inter alios could not be received to affect the plaintiff. Newhall v. Appleton, 124 N. Y. 668; 36 St. Rep. 697; Id. 102 N. Y. 133 ; Rutherford v. Schattman, 119 id. 604, 605; 28 St. Rep. 847 ; 1 Greenl. Ev. § 52. Judgment affirmed, with costs.

All concur.


author: Daly, C. J.

text:
    John H. Wiegmann et al., App’lts, v. Ichitaro Morimuna et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Attachment—Liability.
    A plaintiff in an attachment is liable to third parties for the value of their goods seized and sold by a constable thereunder, if he receives the proceeds of the sale from his attorney in the attachment, who had notice, at the time of the levy, of the claim of such third parties.
    Appeal from a judgment of the city court, affirming a judgment dismissing the complaint.

      Ten Eyck & Remington (S. R. Ten Eyck, of counsel,) for app’lts; Lehmaier & Williams (James S. Lehmaier, of counsel), for resp’ts.
   Daly, C. J.

The proposition contended for by appellants is ■that the plaintiff in an attachment is liable to third parties for the value of their goods seized and sold by a constable thereunder, if the plaintiff receives the proceeds of the sale from his attorney in the attachment who bad notice, at the time of the levy, of the ■claim of such third parties. The contrary has been directly held in Clark v. Woodruff, 84 N. Y. 518 :

“ It is further argued that the levy on the Third avenue store was ratified by the defendants. That they received the proceeds ■of that levy is true, but it was done in ignorance of the fact. It is claimed that their attorneys knew. That is so found by the referee. But the fact does not affect defendants. Their attorney, .as such, had no authority to bind them by directing a trespass or by ratifying one when committed. Welsh v. Cochran, 63 N. Y. 181; Averill v. Williams, 4 Denio, 295. He was not the agent of the defendants for any such purpose and could not bind them.”

To the same effect is Bowe v. Wilkins, 105 N. Y. 331; 7 St. Rep. 539, where it is said that the knowledge of the attorney in the execution as to where the money came from which he took fi'orn the sheriff, there being no proof of like knowledge by the plaintiffs in the execution when they received the money, wopld be no ratification by them of the prior illegal act of the sheriff in retaining and selling the goods. The cases cited by appellants do not conflict with these decisions. Guilleaume v. Rowe, 94 N. Y. 268, was the case of an execution against the person of a defend.ant in an action which the attorney was employed to prosecute ; .and it was held that the issuing of such an execution was within the scope of his implied authority. If the attorney had caused the arrest of a stranger instead of the judgment debtor, it would not have been within the scope of his authority ; and so with attaching the goods of a stranger under an employment to collect from a debtor. Poucher v. Blanchard, 86 N. Y. 256, was a case where the attorney pursued a remedy under a void statute. He seized the property of the debtor under the act of 1862 (chapter 482), which was subsequently pronounced unconstitutional. ^ The plaintiff was held liable, the attorney having acted within-the scope of his authority, viz. in proceeding against the property of the debtor. The other cases cited by appellants are not in point. They illustrate the principle that a client who obtains security through his attorney is chargeable with knowledge of all facts which the latter acquired in the course of the transaction in which he was acting for his client; as, where an attorney employed to procure a mortgage had knowledge of a prior unrecorded mortgage upon the same premises,executed.by the same mortgagor, Constant v. University, 111 N. Y. 604; 20 St. Rep. 211; where an attorney employed to examine as to the sufficiency of certain promissory notes, offered as security to his client, learned that one -of the notes was held by the debtor as part of the assets of an estate of which he was executor, and not in his own right, and ■could not pledge it for a debt of his firm, Smith v. Ayer, 101 U. S. 320. There is another class of cases where the client profits by the fruits of a fraud accomplished with the knowledge of his counsel, and is held to be affected by such knowledge, May v. Le Claire, 11 Wall. 217, as, where an attorney obtained a judgment by default against a debtor of whose insolvency and intent to commit a fraud upon the bankruptcy laws he had knowledge, Rogers v. Palmer, ,102 U. S. 263. The case of Mott v. Ice Co., 73 N. Y. 543, has no bearing upon the question, being an action for damages for negligence of defendant’s driver.

There was no evidence that the defendants had indemnified the constable. He testified accidentally that bonds had been given to secure him, but it was not shown what bond was given, nor by whom, nor who were the.sureties. Defendants were not required, to prove affirmatively that the bonds alleged were not given by them. The cause of action alleged in the complaint was that the constable, acting under the instruction of defendants, disregarded the notice that the property levied upon belonged to plaintiffs, and, acting under like instructions from defendants sold the same. As it was not shown that defendants had indemnified the constable, nor that they authorized their attorney to levy upon the property in question, nor that they received the proceeds of sale with knowledge that it was realized from such property, the plaintiffs failed to prove a cause of action as alleged ; and no other cause of action was proved. This conclusion makes it unnecessary to discuss the evidence upon the question whether the bill of sale from the attachment debtors to the plaintiffs was void because not accompanied by actual and continued change of possession. Judgment and order affirmed, with costs.

All concur.


author: Bischoff, J.

text:
    Jacob F. Wyckoff, App’lt, v. Oscar H. La Grange, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Estoppel—Fraud.
    A person is not bound by his acknowledgment of an indebtedness, induced by the false representations of the alleged creditor.
    2. Trial—Objection.
    The admissibility of a question, in no way objectionable upon the ground stated, must stand or fall upon such ground, though it may be objectionable upon another ground.
    Appeal from a judgment in favor of defendant, rendered by the justice without a jury.

      B. C. Chetwood, for app’lt; William Thorp, for resp’t.
   Bischoff, J.

Plaintiff brought suit in the district court to recover $250, basing his claim upon an unpaid balance of §300 alleged to be due from defendant. The demand was founded upon a letter written by defendant to plaintiff, and relied upon variously by the latter as evidencing an account stated, acknowledgment of indebtedness, or promise to pay. Defendant interposed a counterclaim, founded upon the alleged true state of the account between the parties, and recovered $250, the full amount which the justice had jurisdiction to award. It appears from the evidence that the parties had had various transactions, extending over a considerable time, wherein plaintiff had procured loans for defendant, and was instrumental in furthering certain sales of land; and it is not contradicted that defendant trusted to the plaintiff’s statement of the account between them, and relied upon the latter’s representations in that regard ; indeed, the plaintiff so testified himself. The facts relating to the immediate transaction in question were that defendant, contemplating a sale of certain land owned by him in California, sought through the plaintiff to secure a purchaser. . Theretofore, he having asked plaintiff for information as to the state of the account between them, the latter stated that the sum of $600 was due him (plaintiff). Relying upon this representation, defendant wrote that he would pay plaintiff $600 from the proceeds of the contemplated sale, and, the sale having taken place, actually paid $300 upon a modification of the agreement, whereby the remaining $300 was to be paid in the form of promissory notes secured by a chattel mortgage. Thereafter defendant, believing, after investigation, that the plaintiff’s statement of the account was false, refused to execute the notes and mortgage, and this action was brought.

The plaintiff’s bill of particulars, furnished upon defendant’s demand, disclosed an account wherein defendant was entitled to a • credit of $466.95, but plaintiff sought to establish a credit in his own favor upon an agreement to pay him $50 a month for certain sums of money loaned in three amounts of $200, $250, and $250, respectively, the loans being noted in the account before the court. The sum claimed upon this agreement amounted to $500 for a 10-months loan. Upon tlm question whether this sum was intended to be paid as commissions for obtaining the loans or as interest thereon the facts were disputed by the parties, but upon the direct conflict between the testimony of plaintiff and defendant— the only witnesses examined upon this issue—the credit given by the justice to the latter’s version concludes as to the fact, and the defense of usury was duly raised as to the answer. A recovery having been denied the plaintiff upon this agreement, and properly, upon the facts, which the evidence supports, an indebtedness was shown in favor of the defendant much in excess of the sum awarded. Indeed, the record would sustain a finding that a further item of $500, upon a transaction involving the sale of defendant’s land in Oregon, was due to defendant from plaintiff, and omitted from the account; and from the plaintiff’s testimony it would appear that the same $500 debit, which was sought to be applied in extinguishment of defendant’s apparent balance in account, was invoked in explanation of this omission. Upon elementary principles the defendant was not bound by his letter to the plaintiff acknowledging an indebtedness of $600, the acknowledgment having been induced through a reliance upon plaintiff’s misrepresentations under the circumstances noted above, and the evidence is found amply sufficient to support the recovery below. As to the plaintiff’s contention that he assumed obligations relying upon the defendant’s letter in which this acknowledgment of indebtedness appeared, it need only be pointed out that his reliance upon a representation induced by his own misrepresentations is not a basis whereon to found an availing complaint.

From the record three exceptions appear to have been taken by the appellant. Two followed the admission of evidence offered by the excepting party, and we may assume that, if any error is thereby presented, it is that of counsel or of the stenographer in the court below. As to the third, it is clearly without weight. This was taken to the admission of defendant’s testimony that at the time that the letter referred to above was written he was not indebted to the plaintiff in any sum. The ground of the objection was that by this testimony it was sought to contradict the plaintiff, who, when called as a witness on behalf of the defendant, had given testimony tending to establish an indebtedness. Waiving the fact that the plaintiff’s testimony given to prove a balance in his favor has shown only the agreement to pay $500 upon the loans mentioned above, and that its usurious character was perhaps fairly inferable at that time, the question asked was in no way objectionable upon the ground stated, and upon which ground it must stand or fall, Boyd v. Boyd, 9 Misc. Rep. 161; 59 St. Rep. 727, although as framed it might well be said to have called for a conclusion. The fact whether or not there was any sum due the plaintiff was the direct and material issue in the case, and the objection was, therefore, properly overruled. Andrews v. Newton, 8 W. D. 507; Mayor, etc., v. Roller, 65 St. Rep. 281. The judgment must be affirmed, with costs.

All concur.


author: McAdam, J.

text:
    Robert Kenny, in Behalf of Himself and Others Similarly Situated, Pl’ff, v. James J. Martin et al., as Police Commissioners, etc., Def’ts.

      (New York Superior Court, Special Term,

      Filed March 30, 1895.)

    Injunction—Arrests.
    An injunction will not be issued for the purpose of restraining police officers from making arrests in the execution of the criminal law.
    Motion for an injunction.

      Wahle & Stone, for pl’ff; F. M. Scott and D. J. Dean, for def’ts.
   McAdam, J.

the plaintiff herein owns and carries on a billiard saloon, in which billiards are played by any persons resorting thereto, the public being invited and afforded facilities for playing billiards at the plaintiff’s establishment upon the payment of the hire or fee for the use of the paraphernalia of the game; that the plaintiff has kept his billiard room open on Sunday, and has hertofore twice been arrested for the alleged violation of section 265 of the Penal Code, which forbids sports on Sunday; that in both cases the plaintiff has been discharged on habeas corpus; that the defendants, the police commissioners, and their superintendent of police, threaten and intend to continue to arrest the plaintiff if he continues to allow billiard and pool playing in his billiard saloon on Sunday ; that because of said threats plaintiff has been injured in his business to the amount of $500. The plaintiff therefore asks judgment against the defendants in the sum of $500, and that the defendants be restrained from interfering with the conduct, management, and opening by the plaintiff and those similarly situated of a hall, place, or premises to which parties or persons may com,e and play pool or billiards, on paying to the plaintiff, or to others similarly situated, the rental for tables and other paraphernalia of the game.

If the complaint sets forth a cause of action, it is one for which there is an adequate remedy at law. It has been settled by a number of adjudications that an injunction will not be issued for the purpose of restraining police officers from making arrests in the execution of the criminal law; that the court will leave the officers to act, under peril of damages or punishment if they overstep the authority with which the law has invested them. Fincke v. Commissioners, 66 How. Pr. 327; Burch v. Cavanaugh, 12 Abb. Pr. N. S. 414; Davis v. Society, 75 N. Y. 362; Murphy v. Boardr 11 Abb. N. C. 337. See, also, People v. Moses, 140 N. Y. 214; 55 St. Rep. 403 ; Kramer v. Board, 53 Supr. 492 ; Cercle Francais de l'Harmonie v. Board, 19 Abb. N. C. 32. The police are especially charged with the duty of preventing infractions of the law on all days of the week. It is for them to decide who are guilty of offenses, and whether to apprehend the offenders, and take them before the proper police magistrate, to the end that he may determine, after hearing all the proofs adduced, if in the particular case there has been a violation or not. For a court to interpose by injunction restraining the police from interfering would be to decide in advance that certain acts done upon the Sabbath would not operate as violations of law; when the manner of doing them in a particular instance might clearly establish an infraction. It would prevent the police from exercising that surveillance which their duties call for, and might defeat rather than aid the ends of justice. If the manner of conducting plaintiff’s business on the Sabbath does not violate the criminal law, and the police wrongfully interfere, a writ of habeas corpus, always at hand, and an action for damages, furnish a complete remedy. To play billiards on the Sabbath in the privacy of one’s own house is one thing; to keep open an establishment to which any person paying the fee may gain admittance certainly gives it the character of a public place, within the meaning of that term. See People v. Bixby, 67 Barb. 221; The interference complained of seems to be directed to these places of public resort, and it may be a very serious question whether the defendants are obliged to leave them unrestrained. At all events, each particular charge must rest on its own peculiar merits, and a proper disposition can only be made as each case arises. To grant the relief prayed for here might open to the public every house in the city for the playing of billiards, and take away from the police all opportunity for supervision. This, might have a tendency which a court of equity would not want to sanction, and might lead to acts which upon proper investigation it would have to condemn. Another objection to the application is that it is asking the court to grant in advance of a trial substantially all the relief the plaintiff can obtain by final judgment. Motion for injunction denied.


author: Sanderson, J.

text:
    Minnie Thorn, App’lt, v. Adaline Whitbeck, Resp’t.

      (Greene County Court,

      Filed January, 1895.)

    1. Justice’s court—Replevin—Judgment.
    Section 1727 of the Code is not included among those made applicable to justice’s court.
    2. Same.
    In an action of replevin .in justice’s court, where the interest of the party-entitled to possession is limited or less than the actual value of the property replevied, the owner of the property, as against the actual owner, should be assessed only at a sum which would be equivalent to this limited interest.
    8. Boarding house keeper—Lien—Exempt property.
    The lien of a boarding-house keeper extends to property of the boarder which is exempt from execution.

      4. Appeal—First instance.
    A party who consents to the form of the verdict at the trial, cannot be allowed to object, on appeal, that it should have been different.
    Appeal from a judgment, rendered in favor of defendant.

      A. C. Griswold, for app’lt; C. H. Porter (E. A. Chase, of counsel), for resp’t.
   Sanderson, J.

The facts conceded or proved in this case show that the defendant kept a boarding house at Cairo, Greene county; that the plaintiff boarded at defendant’s house from June 3. 1893, to January 9, 1894, for the price of $4 per week, no part of which account has been paid; that one AugustosKastendyck, who is a half-brother to the plaintiff, boarded at the same place from August 25, 1893, to January 10, 1894, at the price of $4 per week, on which account $32 has been paid, leaving a balance of $46 unpaid ; that on the 2d day of January, 1894, the defendant, believing that the plaintiff and her half-brother were about to remove their personal effects and leave her house without paying -for their board, seized these effects, consisting mostly of wearing apparel, then being in her house, claiming that she had a lien on them for their board. Subsequently Kastendyck assigned to the plaintiff all his right and title to the goods belonging to him that had been seized by the defendant, together with any cause of action which he had against her for such seizure. This action was brought by the plaintiff to recover the possession of the above-mentioned personal property. In the affidavit of plaintiff, made for the purpose of procuring a requisition, it is stated that the defendant claims to hold the above-mentioued chattels for a pretended board bill. In her answer the defendant alleges that she is a boardinghouse keeper; that the plaintiff is indebted to her in the sum of $175 for board; that she has a legal lien on the baggage and goods of the plaintiff for said sum, and that she seized them by virtue of this lien. She also demands that they be returned to-her possession. The trial was had before J. Burr Hall, Esq., a justice of the peace of the town of Cairo, and a jury. The jury brought in a verdict that the defendant is entitled to the possession of the chattels in dispute, and that the value thereof was $120-The return of the justice states that the form of the verdict was written by the court and handed to the jury before they went out by consent of the counsel. The justice rendered judgment that the defendant recover of the plaintiff the property replevied, describing it, or the sum of $120 in case delivery cannot be had, and also the costs of the action $9.45, amounting in all to $129.45.

It is claimed by the appellant.that there is error in the verdict and judgment; that as the plaintiff is the general owner of the chattels, and the defendant had only a special property therein, the verdict should have awarded to the defendant a fixed sum, amounting to her bill for board, representing her interest in these chattels, and, if it is not collected, the delivery of the chattels. Code Civil Proc. §§ 1727, 1780. No objection was raised on the trial to the form of the verdict, nor was any quéstion made that it was different from what had been agreed upon. The above-mentioned sections relate to actions in courts of record, and unless provision is made therefor would not apply to. justices’courts. Section '2931" provides that section 1373, section 1731, excluding subdivision 1 thereof, and sections 1722, 1726, 1730, 1782-1735, apply to the proceedings in an action in a justice’s court to recover a chattel. Section 1727 provides, among other things, that the value of the chattel shall not be fixed where the defendant has only a special property in the chattel replevied and the value of the chattel is greater than the value of the special property or the sum charged upon the property by reason thereof, in which case the value of the special property or the sum so charged must be fixed. This section, however, is not included among those made applicable to justices’ courts.

Moreover, subdivision 1 of section 1731, which prescribes the form of an execution in a case specified in section 1727, is also not •applicable to justices’ courts. Section 3019 provides for a transcript to be made of a justice’s judgment which has been rendered for the recovery of a chattel, or for the value thereof, in case a return thereof cannot be had; but makes no provision for a transcript of the peculiar form of judgment obtained under section 1727. It seems to me obvious that the legislature did not intend to make the last-mentioned section applicable to justices’ courts, but left the practice upon this class of cases the same as it always had been. If section Í727 does not apply to justices' courts, the reference to that section in section 1730 is also nugatory, so far as these courts are concerned. This is also the view taken of it by both Bliss and Throop in their notes to the Code.

It is not necessary, however, that section -1727 should apply to justices’ courts in order to assimilate judgments recovered in such courts to those recovered in courts of record for the possession of personal property, where the interest of the successful party is special. Under the provisions of the Revised Statutes it was the settled doctrine that where the interest of the party entitled to the possession is limited or less than the actual value of the property replevied, the value of the property, as against the actual owner, should be assessed only at a sum which would be equivalent to this limited interest. Rhoads v. Woods, 41 Barb. 471, 476 ; Rus-

sell v. Butterfield, 21 Wend. 300, 303. The form of the verdict and judgment remained the same as in cases where the interest of the successful party was absolute, but the value of the goods was the value of the lienholder’s special property. The Code intended that this practice should be continued in justices’ courts, and does not require of them the more complicated course pointed out in section 1727. The counsel for the plaintiff gave his consent to the form of the verdict rendered, and should not now on appeal be allowed to object for the first time that it should have been different. See upon this last point Van Rensselaer v. Mould, 77 Hun, 553; 60 St. Rep. 394; Bradner v. Howard, 14 Hun, 420.

It only remains to be seen whether the verdict and judgment do not conform to the practice above pointed out. Section 1727 only applies where the value of the chattel is greater than the value of the special property. It must be assumed, for the purposes of this appeal, that the plaintiff was living at defendant’s under an obligation to pay for her board. The plaintiff came to defendant’s house on the 3d day of June, 1893, and remained there until January 10, 1894, a period of thirty-one weeks and two days, for which she was to pay $4 per week. This would amount to at least $124. Kastendyck boarded at the same place from August 25,1893, to January 10,1894, a period of nineteen and one-half weeks, at $4 per week. This would amount to $78, from which is to be deducted a payment of $32, leaving a balance due from him of $46. In all the defendant’s interest in the property replevied amounted to $170. With this agrees the testimony of John H. Whitbeck, who says that he heard witness Simpkins tell the plaintiff that she owed the defendant about $170,—a sum which is far in excess of the value of the property that had been replevied. For the purpose of sustaining the judgment, we have the right, in view of the evidence, to assume that the jury found that defendant’s interest in the property was greater than its value. The plaintiff was not injured by the form of the verdict and judgment rendered and suffered no injustice thereby.

The defendant contends that the goods in question, or some of them, are exempt from levy and sale on execution, and that, therefore, the defendant had no lien on them for board. It is immaterial whether these goods, or any of them, were exempt from levy and sale of execution or not. A lien may exist either by express contract or by operation of law on personal property that is exempt from a levy under an execution. The rule is that the lien of an innkeeper, which is identical with that of a boarding-house keeper, extends of property of the guest which is exempt from execution, such as a coat, for whose recovery replevin is brought against the innkeeper. 11 Am. & Eng. Enc. Law, 39; Swan v. Bournes, 47 Iowa, 501.

It is further contended by plaintiff that the defendant had no right to prove her claim against Kastendyck for board, for the reason that no such defense was set up in the answer. The plaintiff states in her affidavit for a requisition that the defendant claims to hold the property for an alleged board bill. She could not, therefore, have been surprised at the defense made on the trial. Defendant’s answer in substance alleges that she had a legal lien on the baggage and goods of the plaintiff for $175 as hoarding-house keeper. This amount must include the claim for Kastendyclc’s board. The direction of the Code is that any error or defect in the pleadings which does not affect the substantial lights of the advese party must be disregarded. Code, § 723. No rights, substantial or otherwise, are affected by disregarding this defect, if it exists, in the answer. Besides, this would be a proper case to-amend, even on appeal, if it is necessary to do so in order to sustain the judgment. Harris v. Tumbridge, 83 N. Y. 92, 97.

Plaintiff objects to the evidence of the defendant that the plaintiff boarded with her three years prior to 1893. In the conflict of testimony as to whether plaintiff was a boarder or an invited guest, this evidence would be a circumstance bearing upon this question. Even if it were not so, the testimony is immaterial, and it would not be in the interest of justice to reverse the judgment upon this ground. -The introduction of evidence as to the consideration, paid by the plaintiff to Kastendyck for an assignment of his right of action against the defendant is immaterial, and does not affect the-merits. This evidence only relates to that portion of the goods which belonged to Kastendyck, and does not in any way affect the right of the plaintiff to the goods which had been taken from her. The verdict of the jury was in favor of the defendant for the recovery of the possession of all the goods which had been seized by her. This shows that the jury were not influenced by this immaterial testimony. The lien of the defendant on the goods of Kastendyck was established beyond controversy.

The question put to the defendant as to her charge per week for boarders other than plaintiff and Kastendyck merely bore upon the worth of plaintiff board. The jury might arrive at the conclusion that the price of plaintiff’s board per week had not. been agreed upon; they might then take this evidence into consideration in determining what plaintiff’s board was really worth. In view of the evidence, this testimony was at least harmless. The-question put to witness Lasher by plaintiff’s counsel, whether he had not frequently taken the defendant out riding nights, was clearly within the discretion of the trial court. These are substantially all the grounds urged by the appellant for a reversal of the judgment. As all intendments should be taken in favor of sustaining the judgment, and no errors of importance occurred on the trial, justice will be better administered by affirming this judgment than by any other disposition that can be made of it.

Judgment affirmed.


author: Fitzgerald, S.

text:
    In the Matter of the Application for the Probate of the Will of Julia Ann Spratt, Deceased.

      (Surrogate's Court, New York County,

      Filed January, 1895.)

    Will—Utjdüe influence.
    The second will was held, under the .facts and circumstance of the case, to have been procured by undue influence, and was, for that reason denied probate.

      Application for the probate of a will.

      Charles H. Beckett, for the will of April 24; Robert L. Harrison, for the will of May 25.
   Fitzgerald, S.

Two papers, each purportng to be a will of Mrs. Julia Ann Spratt, have been presented for probate. The first was executed on April 24, 1893, and the second 31 days, after, on the 25th of May. The general scheme of each is the same, except that the residuary estate, which, by the first paper, is given in equal shares to three ladies therein named, in the second is left to William Nelson Le Page, who, under the first will receives nothing. A trust fund of $3,500, provided for Simon Hazelton in the first, is reduced to $3,000 in the second. The executors, three in number, are the same in each instrument,—one being Le Page the principal beneficiary named in the second paper. The estate of Mrs. Spratt consists of a house and lot on East Fortieth street, a quantity of gold coin and bank notes, some United States bonds, and a certain indebtedness of Le Page, the amount of which is in dispute. The whole estate is claimed by the contestants of the last will to be of the value of about $25,000. Mrs. Spratt was a woman of seventy years of age or over. For several years her right side had been paralyzed, and her speech was sometimes affected thereby. She was a generous nature, inclined to be confiding, but at times she was resolute in expressing her views. Both papers were executed in accordance with the requirements of the statute, when she was possessed of the mental capacity to make a will. The only question for me to decide is that of undue influence, which the beneficiaries under the first will have put in issue in respect of the paper of May 25th. Mrs. Spratt died on the 18th day of October, 1893, about five months after the execution of the pape.r last in date. She had been for several years in feeble health. None of the legatees and devisees named in either paper are of kin. There can be no doubt that the will of April 24th expressed, uninfluenced, Mrs. Spratt’s testamentary wishes at the date of its execution, and that she then not only had no thought of making a provision for Le Page, but that her settled purpose was to give her residuary estate to Mrs. Clara Spratt, Mrs. McGrath, and Mrs. McCandless, of whom she had spoken in most friendly terms, and with a sense of gratitude for their care for and their attention to her during her illness. I am convinced that she was dissatisfied with Le Page, because, in his previous transactions with her, he had gained possession of the larger portion of her personal estate, amounting to nearly $10,000, if not more, and for which she held his notes ; and,'though there is a pretense that she had received from Le Page security for his indebtedness, as matter of fact it was worthless. The circumstances attending the preparation of the will of April 24th are important to be considered. On the 8th of April, Mrs. Spratt sent for Mr. Ward, an attorney, to come to her residence. He called, and after a "brief consultation an appointment was made for the 12th, when he received from her instructions for the provisions of the will. On the 20th he again visited her, with a draft of the instrument, read it to her, and she expressed her satisfaction, except in respect to a minor matter, which she wished to have changed. Mr. Ward took the draft away, wrote the will, and on the 24th came to her residence, bringing with him Mr. Hubbard, also an attorney, to act as the second subscribing witness. The paper was then executed. No person interested in the will was present at either interview, and on the occasion of the execution no one was in the room with Mrs. Spratt, except the subscribing witnesses. All the facts proven in connection with the preparation of the paper show that it was a matter of care and deliberation with her, and that its execution was her free and unconstrained act. Atone of her interviews with Mi’. Ward she imagined that she saw Le Page passing the house. She expressed apprehension lest it be he, and stated that she did not wish him to know anything about it. Such being the facts in respect to the origin of the will, her relations with the residuary legatees, and her feelings of aversion to Le Page, the scheme of the first instrument was rational, and one which would be expected under the circumstances. These facts stand in sharp contrast with those attending the preparation of the second paper. On the 25th day of May, 1893, it came to the knowledge of Le Page and his wife that Mrs. Spratt had a month previously executed a will. Though they deny it, I have no doubt that they had learned, either by reading the paper or otherwise, that Le Page had not been named as a legatee, though appointed one of the executors. Immediately he went to the office of Mr. Harrison, his attorney, and made an appointment for him to call at Mrs. Spratt’s residence to prepare a will. On that afternoon Mr. Harrison went as requested. From Mrs. Spratt he received the instrument, and he at once wrote the instrument, and it was then duly executed. The whole transaction, from the giving of the directions to Mr..Harrison to the signing of the paper by Mrs. Spratt and the witnesses, was in the presence of Le Page, the party most deeply interested under it, and a part of the time in the presence of his wife. Thus, within a month, the residuary legatees in the first will, for whom Mrs. Spratt had expressed gratitude for their kindness, were disinherited, and Le Page, in respect of whom she desired that he know nothing about the preparation of the first will, was substituted in their place, to inherit the larger part of the estate. Mr. Harrison was not informed by Le Page of the existence of the previously will. His connection with the paper in contest was that of a reputable attorney, acting in good faith, under the belief that he was carrying out Mrs. Spratt’s wishes.

The contestants availed themselves of the right, under section 2618 of the Oode of Civil Procedure, to examine as witnesses Mr. and Mrs. Le Page. From their testimony, and the facts shown by the documentary evidence produced, Le Page appears in an unenviable light. For several years he had taken advantage of the' good nature of a feeble old woman, had obtained loans from her to the amount of nearly $10,000, if not more, without adequate, if any, security. In view of his character, as shown by his own evidence, the procurement of a will in his favor would be a natural sequence of a scheme to cancel his debt to Mrs. Spratt. Le Page’s relations to Mrs. Spratt were of such a close and confidential nature that, when all the facts are considered, a presumption of undue influence exerted by him in the procurement of the will was raised, which it was incumbent on him to rebut if the paper is to be admitted to probate. He has not only failed in this, but his testimony on many matters is contradictory. He professed not to remember many facts which he should have recalled, and, with reluctance, admitted others which told against him. His testimony is unworthy of belief when inconsistent with facts otherwise shown in the case. He is confessedly bankrupt, and his effort was to relieve himself from his embarrassments by getting possession by the will of the larger part of Mrs. Spratt’s estate. His duplicity is shown by his inducing Mrs. Spratt to begin a collusive action against him for indebtedness to the amount of $13,000, and suggesting facts to be set forth in the declaration; yet he interposed a plea denying the indebtedness. The evidence, oral and written, convinces me that the suit was a scheme devised by him in fraud of his creditors in the proceedings in bankruptcy. So far from removing the presumption of undue influence, his own testi-timony has strengthened it. If the will is to be sustained as the free act of Mrs. Spratt, it must depend wholly on the testimony of the subscribing witnesses, who saw nothing to lead them to suppose that any unlawful influence was exerted. What occurred between Mrs. Spratt and Le Page on the 25th of May, after his return from Mr. Harrison’s office, has not been shown. Mrs. Spratt is dead, and Le Page was not a competent witness to testify to communications between them. But so radical a change in the disposition of the residuary estate within a month cannot be accounted for, in view of Mrs. Spratt’s previous declarations, except on the theory of moral coercion, which was easily exerted upon a paralytic, aged woman, who was not allowed to give her instructions to the attorney except in Le Page’s presence. It is not necessary to set forth in detail the- many facts disclosed by the evidence which show" Le Page’s ways in his business transactions, and which reflect against his integrity, not only in his relations with Mrs. Spratt, but others. I am convinced that the paper of May 25, 1893, propounded by him, was the result of undue influence, and should be denied probate, and that that of April 24th should be admitted. Present a decree accordingly. Ordered accordingly.


text:
    In the Matter of the Application for the Probate of the Will of Nicholas Seagrist, Deceased.

      (Surrogate’s Court, New York County,

      Filed January, 1895.)

    1. Will—Execution.
    Intlie execution of a will, a declaration that the paper was the testator’s last will, made either directly by him in words, or as an affirmative reponse to a question, is sufficient.
    3. Same.
    Where there are no circumstances showing want of good faith, it is not necessary to prove that the testator gave the instructions for the will, that he read it, that it was read to him or that he was made acquainted with its contents at the time of the execution.
    3. Same—Capacity.
    A person, though very feeble and within a few hours of his death, is possessed of testamentary capacity, if he is able to call to mind the charter and extent of his estate, and express his wishes in regard to its final disposition.
    4. Same—Undue influence.
    In the absence of proof that any one suggested to the testator the dispositions contained in the will,, which conform to his expressed intentions, the mere fact that the principal beneficiary had the opportunity, and even the motive, to secure the largest share of the property, does not import the exercise by her of undue influence.
    5. Evidence—Declarations.
    The declarations of a party in interest, even a principal legatee in the will, cannot militate against the interest of the legatees.
    Application for probate of will.

      Lewis Johnston and Edward W. S. Johnston, for proponents ; Bernard J. Tinney, for Theresa Seagrist; Robert E. Deyo, Edward S. Clinch, John P. Phelan, and Joseph H. Hayes, for contestants; Edwin B. Root and Gilbert W. Minor, special guardians.
   Fitzgerald, S.

Nicholas Seagrist died early on the morning of April 15, 1894. He was advanced in years, and was a bachlor. At four o’clock in the afternoon of April 14th, eight hours previous to his death, he signed the paper propounded as his will, and it was attested by five witnesses, two being physicians, a father and son, the elder of whom had been his attending physician. Two other witnesses were also a father and son, the elder a clergy-' man, neither of whom had had any previous acquaintance with the deceased. The fifth witness was a lady friend of Mrs. Theresa Seagrist, the principal legatee under the will, who was a niece of the testator and is the wife of the executor. There was also present at the execution Mr. Orrell, who had been for many years the attorney of the deceased, was his confidential friend, and had drawn the instrument in question at his own home in Brooklyn on April 13th, the previous day, as he states, from instructions that he previously received from the decedent. The probate of the paper is resisted upon all the grounds usually interposed to contested wills. ' Bach subscribing witness testified to the facts essential to a valid execution. The statements only differ in respect to details. Where the Drs. Campbell state that the declaration that the paper was his will was made by the .deceased as an affirmative response to a question put by Mr. Orrell, the Messrs. Treat and Miss Woodworth state that the declaration was in words that the paper was his will. Their testimony is confirmed by that of Mr. Orrell. Either the memoriés of the Drs; Campbell or those of the other four witnesses are at fault in respect to the form of the declaration; but that the statutory requirement in respect thereto was complied with .in one or the other form cánnot be questioned. Six respectable people, two of whom had never before met Mr. Seagrist or the other witnesses, can hardly be supposed to have entered into a conspiracy to foist a fictitious testament upon Mr. Seagrist.

The contestants claim that there is no evidence that Mr. Sea-grist knew the contents of the instrument he signed. Mr. Orrell testifies that it was drawn in accordance with the instructions received by him from Mr. Seagrist. I have already decided upon .authority that, where there are no circumstances showing want of good faith, it is not necessary to prove that the testator gave the instructions for the will, that he read it, that it was read to hita, or that he was made acquainted with its contents at the time of the execution. In re Hall's Will, 5 Misc. Rep. 461, and cases there cited. But in this case Mr. Orrell testifies to the instructions received, and that he followed them in drafting the paper.

In respect to Mr. Seagrist’s mental capacity, it is shown that while he was very ill, and near to his death, he had sufficient strength to take the pen, apd in a feeble manner sign his name to the paper, declare its character , and request the witnesses to attest it, and each of the five testify that he was of sound mind at the time. It is also shown that he was a successful and prosperous man of affairs, though modest and reticent in referring to them; that he had accumulated property of more than a quarter of a million dollars; that he had been accustomed in a small way to draw and superintend the execution of legal papers, including wills, and attending to their probate. Unless the testimony of Mr. Orrell is to be wholly discredited, for which I see no reason, Mr. Seagrist was able to call to his mind the character and extent of his estate, and express his wishes in regard to its final disposition, not only at the time he gave the instructions, but at the time of the execution of the paper, and there is nothing in the evidence to lead me to doubt that his mind did intelligently accompany the act of execution. The signing immediately afterwards of the two satisfaction pieces to mortgages, though feebly done, one with his mark, followed by his death a few hours afterwards, does not lead me to doubt his capacity to execute either the will or the satisfaction pieces. The scheme of the instrument was simply a gift of his personal estate to a favorite niece, and a devise of one-half of his real estate to her, and the residue to his other nieces and nephews, all of whom are named in the instrument.

In respect to the issue of undue influence, the relations of Mr. Seagrist to his kindred, all of the same degree, show excellent reasons for the discrimination in favor of his niece, Mrs. Seagrist. She had been left an orphan in childhood, and had been commended to his care by her father. Mr. Seagrist had been her guardian, and she was under his eye thenceforward; was a member of his household ; and when she married, with his approval, her husband also became one of the family. Mr. Seagrist spoke in affectionate terms of his niece and in praise of her husband. Hot once, but on various occasions, he stated that she should be the principal object of his testamentary consideration. In respect to his other nieces and nephews, his declarations showed that he entertained for them little or no affection ; that, while he was indifferent to all, for some he had a feeling of repugnance. Had he disinherited them, the act would not have been at variance with his expressed sentiments. There is no proof that any person suggested to the decedent the dispositions contained in the will, and I have every reason to believe that the scheme of the instrument was Mr. Sea-grist’s own. Though his favored niece had the opportunity, and even the motive, to secure the largest benefaction, the fact does-not import the exercise by her and her husband of undue influence. Those who raise the issue must prove it affirmatively. It is seldom that its exercise can be shown by direct proof. The contestants seek to sustain their case mainly by showing the declarations of the husband of the principal legatee, that the deceased did not want to make a will, but that the doctor “got around” him, and he consented, which statement the husband denies. Other statements of the husband are also proven. But in this court it is-well settled that the declarations of a party in interest, even a principal legatee, cannot militate against the interest of the legatees. La Bau v. Vanderbilt, 3 Redf. Sur. 399, 408.

The contestants also urge that the failure of certain witnesses, to disclose the fact that the satisfaction pieces were executed after the will had been signed and attested should be considered as a link in the chain of evidence to establish undue influence. They are not inconsistent with the unconstrained action of the testator. Nor does the fact that the husband of the principal legatee, in endeavoring to get letters of temporary administration, stated that, the personal estate did not exceed $8,000 have any greater significance. Such facts may raise doubts in respect to the good faith of the persons who make the statements, but they do not justify the rejection of a will which conforms to the declarations of the deceased, and are consistent with the relation!- shown to have been sustained by him to the different parties in interest. I have carefully read the able briefs of counsel, and, without presenting an. analysis of the large volume of testimony taken in the proceeding, it is sufficient to state as my conclusion that the contestants havsfailed to overcome the case presented by the proponents, and L will sign the decree admitting the paper to probate.

Probate granted.


author: Davie, S.

text:
    In the Matter of the Application to Sell Real Estate of Edward Howard, Deceased, for Payment of Debts.

      (Surrogate’s Court, Cattaraugus County,

      Filed January, 1895.)

    1. Limitation—Deceased debtor.
    Where the surety pays the debt after the death of the principal, the statute of limitations does not begin to run until the appointment of a legal representative.
    3. Executors—Sale to pat debts.
    Under § 3759 of the Code, a proceeding to sell land may be instituted, though there has been no judicial settlement of the accounts of the administrator.
    3. Same.
    Where there has been no such settlement, the petitioner assumes the burden of showing affirmatively that all the personal property applicable to debts and funeral expenses has been so applied, or that the executors or administrators have used reasonable diligence in converting and applying the personal property to the payment of debts and funeral expenses and that it is insufficient.

      4. Same.
    The fact that the claim of the petitioner is disputed in such proceeding, does not deprive the surrogate’s court of jurisdiction to determine its validity.
    5. Same—Laches.
    Such an application, instituted twenty-nine years after the death of the debtor, until which time no personal representative had been appointed, will not be denied on the ground of loches, where the contestant had a prior right to the administratorship.
    6. Same.
    A quit-claim conveyance by the devisees of their interest in such real estate to a claimant against the estate, does not deprive the latter of his right to maintain such proceeding.
    Application to sell real estate for payment of debts.

      Wm. Woodbury and D. E. Powell, for petitioner ; J. G. Record, for Julia A. Hogan; W. H. Henderson, for contestant.
   Davie, S.

This proceeding was instituted in view of the determination of the court of appeals in Hogan v. Kavanaugh, 138 N. Y. 417; 52 St. Rep. 884. Edward Howard died in the month of September, 1864, leaving a widow, one son, and three daughters. His will bearing date March 24, 1864, with a codicil thereto, dated April 21st of the same year, was admitted to probate January 25,1865. Ho executor was named in the will or codicil, and no letters were issued until October 9,1893, when letters of administration, with the will annexed, were issued to Deborah Kavanaugh, a daughter of testator and the wife of the petitioning creditor. She caused the usual notice to creditors to be published, and the claim of the petitioner was the only one presented. The petition in this proceeding was filed March 27, 1894. ' At the time of the testator’s death there were outstanding thirteen promissory notes, of $100 each, all signed by the testator and the petitioner, none of which were due at testator’s death. Upon or after their maturity these notes were paid by the petitioner, and the amount paid by him, with interest thereon, constitutes the claim which he seeks to enforce in this proceeding. It is claimed on behalf of the petitioner that these notes represented the individual indebtedness of the testator, and that petitioner signed them merely as surety. The contestant, on the contrary, asserts that the petitioner himself was the principal debtor, and the testator surety for him. The determination of this question necessitates a reference to the transactions out of which the indebtedness arose. On the 15th day of December, 1854, the testator was the owner of certain lands in the-town of Persia, and on that day conveyed the same to his son, George M. Howard. The deed recited the consideration to be-$700, and added that “ the lands hereby conveyed for the consideration above mentioned, which is much less than their true value, are intended and received as an advancement by the said Edward Howard, the father of said George M. Howard, to said George as and for his part and just portion of the property of his-said father, so that the said George is not entitled to inherit or receive any other property o his said father as heir or distributee. On the 5th day of March,. 1858, George M. Howard and wife re-conveyed these lands to the testator for the consideration, as expressed in the deed, of $1,080. To secure the" payment of such ■consideration, the testator delivered to George M. Howard two promissory notes, for $500 and $580, respectively. Both of these notes were signed by the testator and the petitioner. On the 27th of the samé month the testator and wife conveyed these lands to the petitioner for the consideration, as expressed in the deed, of $1,080, to secure the payment of which petitioner executed a mortgage to the testator upon the same lands, conditioned for the payment of such sum in ten equal annual payments. This mortgage was fully paid by the petitioner, and was duly discharged July 11,1864. George M. Howard transferred the two notes above mentioned to one Harry Howard, and subsequently the testator became indebted to Harry Howard, over and above-the amount of these two notes, and shortly before his death caused the two original notes to be taken up, and the thirteen $100 notes to be executed and delivered to Harry Howard. The premises conveyed to the petitioner were worth much more than the consideration stated in the deed, and it is urged by the contestant that this circumstance, taken in connection with the fact that petitioner signed all these notes in form as a maker, justifies the conclusion that the indebtedness represented by the notes was primarily that of the petitioner. The evidence, although somewhat meager and unsatisfactory, in consequence of the long lapse of time, falls far short of sustaining the claim of the contestant. It does not appear that the petitioner had any participation in the purchase and re-conveyance of the lands from George M. Howard to the testator. The testator was the grantee and purchaser, and therefore the party naturally obligated to pay the purchase price. It does not ■appear directly or inferentially that such purchase was made for the benefit or at the request of the petitioner, nor that there was any connection between the conveyance of these lands from George M. Howard to testator, and their conveyance by testator to petitioner, nor is there any satisfactory or' sufficient proof that petitioner ever assumed this indebtedness as his own, or designed or intended to incur any other or greater obligation in connection with it than that of surety for the testator. Then, again, the evidence discloses a design in the mind of the testator to dispose of this land to some extent by way of an advancement. He first transferred it to his son George for an inadequate consideration, expressly declaring in the deed that it was by way of an advancement to him. He then took a reconveyance from ■George, giving him the two notes instead, and thereupon ■deeded the land to the petitioner. The petitioner - and his family were just as naturally the objects of the testator’s Bounty as the son George. Petitioner had married the youngest daughter, and for several years had resided with his wife in the family of the testator, transacting his business and looking after and managing his affairs generally. When testator conveyed the lands to his son he expressly declared that such conveyance was in full satisfaction of the son’s share in his estate. After the lands were reconveyed, the testator made his will, in which he named the son as one of the residuary legatees, making no provision whatever for his daughter, Deborah Kavanaugh, the wife of petitioner. If testator did not design the conveyance of these lands to Kavanaugh as an advancement upon his wife’s share in the estate, but, on the contrary expected him to pay the $1,080 mortgage and the $1,300 in notes as well, which would have equalled the total value of the land, then there is no reason whatever apparent why testator should have excluded the daughter Deborah by the terms of his will from participating in the distribution of his estate. Moreover, the evidence distinctly shows that the testator regarded the' indebtedness represented by these notes as his own, for, in conversation with several of his neighbors at various times shortly before his death, he spoke of this indebtedness to Harry Howard, unequivocally recognizing it as his own. By the terms of his will he makes a special provision regarding the management of his estate so as to meet and pay off this debt. In disposing of this question I have not lost sight of the well-settled rule that claims withheld during the alleged debtor’s life," and sought to be enforced after his death, are to be carefully scrutinized, Kearney v. McKeon, 85 N. Y. 137, but from a thorough, consideration of all the evidence I am unable to come to any other conclusion than that the indebtedness represented by the notes was solely and exclusively that of the testator.

The claim of the petitioner was not barred by the statute of limitations at the time of the commencement of this proceeding. Where the statute has commenced to run against a claim before the death of a decedent, the failure to secure the appointment of an administrator does not suspend the running of the statute. The' only effect of the death in such a case is to extend the time in which an action must be brought, Code Civ. Proc. § 403 ; Sanford v. Sanford, 62 N. Y. 553; but none of these notes had matured at the death of the testator, and no right of action accrued to the petitioner until lie paid the notes in consequence of his liability as surety. The statute begins to run against the surety’s right of subrogation only from the time he pays the debt. In such a case the time intervening between the maturity of the debt and the appointment of a legal representative of the estate is no part of the time limited by the statute. A cause of action cannot accrue or exist unless there is a person in esse against whom an action can be brought and the right of action enforced. In order to put the statute in motion, there must not only be a person in esse to sue, but a person to be sued. Sanford v. Sanford, supra; Davis v. Garr, 6 N. Y. 124; 13 Am. & Eng. Enc. Law, 737.

No judicial settlement of the accounts of the administrator had been had before the commencement of this proceeding. Such prior accounting, however, is not a jurisdictional requirement. The earlier cases, holding that a judicial settlement should precede the commencement of proceedings for disposition of real estate to pay debts, were before the change in the statute regulating such proceedings. The law applicable to proceedings of this character has undergone various modifications. The original statute of 1801 authorized the personal representative to institute such, proceedings whenever he discovered or suspected that the personal estate was insufficient to pay the debts. The Revised Statutes of 1830 authorized such proceedings only when it was made to appear that all the personal property applicable to the payment of debts had been actually applied and was insufficient, leaving no discretion, whatever on the part of the surrogate. This statute was amended by the Laws of 1837 so as to restore to the surrogate a discretion in the matter. This amendment provided that the surrogate might, in his discretion, order a disposition of the real e estate, although the entire personal estate which had come into the hands-of the representative had not been applied to the payment of the debts. The scope of the present statute (Code Civ. Proc. § 2759) is quite clearly defined in Kingsland v. Murray, 133 N. Y. 175; 44 St. Rep. 515, where the court says:

“ But if the personal property left by the decedent at the time of his death was insufficient to pay his debts, or if the executors or administrators proceed with reasonable diligence in applying it to the payment of his debts, and it proves insufficient for that purpose, then, and then only, a case is made for the sale of the real estate. So, in the language of this section, before the surrogate can make a decree for the sale of the real estate, the petitioner must establish that all the personal property of the decedent which could have been applied to the payment of the decedent’s debts and funeral expenses has been so applied. If he establish that, then he need go no further, and the surrogate is authorized to make the decree. If he cannot establish that, but establishes the other alternative, that the executors or administrators have proceeded with reasonable diligence in converting the personal property into money, and applying it to the payment of the debts and funeral expenses, and that it is insufficient for the payment of the same, then, even if it has not all been so applied at the time of the petition, the surrogate is authorized to make the decree.”

It would undoubtedly be much more satisfactory if' a judicial settlement preceded the commencement of proceedings for disposition of real estate, as the decree would then show the extent of the personal estate and the disposition made of it; but, where no such settlement has been had, the petitioner assumes the burden of showing affirmatively, as a part of his application, the facts required by section 2759 of the Code.

In this case there is no pretense or suggestion that the testator left sufficient personal estate to pay his debts. What he did leave was consumed mainly in paying funeral expenses. Not a dollar of personal effects came into the hands of the representative. The exercise of the utmost diligence upon the part.of the administratrix would not have disclosed the existence of any effects applicable to the payment of this debt. The fact that the claim of the petitioner is disputed does not deprive the surrogate’s court of jurisdiction to determine its validity. In re Haxtun, 102 N. Y. 157 ; People v. Westbrook, 61 How. Pr. 138 ; Kammerrer v. Ziegler 1 Dem. 177 ; Hopkins v. Van Valkenburgh, 16 Hun, 3.

It is urged by the contestant that the application of the pctitioner should be denied in consequence of his long delay in instituting proceedings to establish his claim. The same question arose in Hall v. Brennan, 64 Hun, 394, where the court says :

From the time of the death of George B. Bixby * * * until letters testamentary were issued upon his will, * * * there was no person in being against whom plaintiffs could have brought suit to enforce their claim upon their note against his estate. This was, in effect, a statutory prohibition, and such time was no part of the time limited for the commencement of an action. Code Civ. Proc. § 406; Mead v. Jenkins, 95 N. Y. 31; Brehm v. Mayor, etc., 104 N. Y. 186 ; 5 St. Rep. 661; Church v. Olendorf 49 Hun, 439, 444 ; 19 St. Rep. 700. It is no answer to this view to say that plaintiffs might have applied for a temporary administrator under section 2668, Code. Civ. Proc. They could not procure such appointment as a matter of right. It is expressly made dependent on the discretion of the surrogate. The law did not require them to make the application under penalty of losing their debt.”

The delay in this case is, to some extent, explained by the pend-ency of the action, Hogan v. Kavanaugh, above cited, wherein the contestant in this proceeding was the plaintiff. The petitioner undoubtedly had the right of applying for letters of administration, with the will annexed, at any time after the probate of the will, but the contestant had a prior .right to such appointment. She could have secured such appointment at any time, and, inasmuch as she neglected so to do, she is hardly in a situation to complain of the petitioner’s neglect. After the probate of the will of the testator the persons to whom the real estate described in the petition was devised quitclaimed their respective interest in such real estate to the petitioner, and it is urged that the petitioner, being the owner of such premises, is not in a situation to maintain this proceeding. Such claim is not tenable. The interests of the legatees in the real estate were subject to the rights and equitable interests of creditors. By their quitclaims to the petitioner they ■only transferred to him such interest as might remain after the satisfaction of the debts.

Application granted.


author: Kennedy, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of John Gregg, as Executor of the Will of Almira Gregg, Deceased.

      (Surrogate’s Court, Madison County,

      Filed January, 189.)
    ■Gift—Inter vivas—Declarations.
    Where the subject of the gift is the debt of the donee, the donor must deliver to the donee a receipt or some equivalent instrument, in order to make the gift effective.
    Judicial settlement of accounts of an executor.

      C. Carskadden, for executor; H. B. Coman, for contestants.
   Kennedy, S.

Almira Gregg, the testatrix, died at the town of Stockbridge, in this county, on the 23d day of March, 1892, leaving, an estate amounting to $10,416.04. She left a will, in and by which after a few specific legacies, she gave her entire estate to. eight grandchildren, four of whom are children of John Gregg, the executor, the other four being children of her deceased son, David Gregg. Mrs. Gregg’s husband died intestate, leaving considerable real estate; one of his farms, by some arrangement, becoming the property of said John Gregg. Having a dower interest in this farm, Mrs. Gregg and said John Gregg, on the 28th day of May, 1872, entered into a written agreement, under seal, which was duly acknowledged and recorded in the clerk’s office of Madison county, in and by which she demised and leased to said John Gregg her undivided one-third interest in and to said land for and during the term of her natural life, and forever; said Gregg covenanting and agreeing to pay to her for the use of said premises, during the term of her natural life, the annual rent of $150, to be paid in semiannual payments of $75 each, and, in addition thereto, all taxes that might be assessed thereon. On the 6th day of July, 1886, she gave said Gregg a written power of attorney, authorizing him to transact all business that she might need to have done, and containing also the usual general powers for the transaction of her business. Upon this accounting, the contestant asks to have the executor's account surcharged with the rent of said farm to be paid under the lease since May 28, 1872, claiming that said Gregg never pay any rent to Mrs. Gregg, the amount now due being the sum of $2,820 for rent, and the sum of $2,185.77 of interest, computed at six per cent, from the time each payment became due, making a total sum of $5,005.77.

The evidence on the part of Mr. Gregg does not show that he ever paid Mrs. Gregg any rent whatever, bat he claims to have been released from legal liability thereon by Mrs. Gregg, and, for the purpose of establishing this defense, relies upon certain declarations of hers, which are, in'substance as follows: In January, 1881, she had a conversation with one Hamilton Lamb, in which she said to him: “You know it was wrong for John to give that contract to pay me so much a year, but we had to do it to get a settlement with David.” That she gave John the rent each year for doing her business and looking after her, and that she should pay him further than that. In July, 1886, she said to her grandson James A. Gregg that John’s doing her business released him from all rent of the farm to her or the estate. In June, 1890, she said to Ralph Gregg, anothor grandson: “I want you to write it down that rent of farm is paid in full each year by his looking after me and doing my business;” and told him to make a memorandum so-he could swear to it,“for the girls will make him trouble some day; they have threatened it. I have not paid him enough for what he has-done for me.” In January, 1892, she said: “I have heard so much talk here that I want you to remember that all claims for rent for your father’s farm is paid by his services.” That Ralph Gregg said to her: “You had better give father a receipt for the rent,”' to which she replied: “He is empowered to give himself a receipt. ' He is my acting attorney.” In 1892 she said to the executor: “John, I want you to understand you owe me nothing; that you. have done more than the rent of the place;" that he had never had what he ought to have had from his father’s estate. During her last sickness she said: ‘T tell you, and this may be the last time, there is nothing due from your place to me." All these declarations were made to Mr. Gregg or to members of his family, and none are shown to have been made to other persons.

It is claimed on the part of the executor that the declarations above set forth release him from the payment of any rent that might otherwise be due upon the lease. We have no doubt that Mrs. Gregg intended to give the rent to her son, and supposed she had released him from liability upon the lease. She had sufficient means of her own to support herself, and it would be very natural for her not to insist upon the yearly payment of rent. But, notwithstanding these declarations, we do not think there was any valid release. The only way she could make the gift of her son’s indebtedness to her valid and effective was to give him a receipt for the same, or something equivalent to it, from which the law would have construed the instrument as an assignment of the rent and of the right of action to Mr. Gregg. So far, therefore, as the claim is made that the declarations of Mrs. Gregg amount to a release from the payment, we must hold that nothing was said or done to bring the case within the law as stated in Gray v. Barton, 55 N. Y. 68; Ferry v. Stephens, 66 Id. 321; Beaver v. Beaver, 117 Id. 421; 27 St. Rep. 405, and McKenzie v. Harrison, 120 Id. 260; 30 St. Rep. 934, which, we think,are controlling in tliis case. These cases hold that,, where the gift is the debt of the donee, the donor must deliver to the debtor a receipt or some other equivalent instrument, in order to make the gift effective. The intention to make the gift is clear enough, but it was never executed, and the court cannot supply the absent fact which would make the gift certain and conclusive.

But it is claimed that Mr. Gregg is not liable upon the lease for the reason that Mrs. Gregg, in her several declarations, says that the rent was paid each year by her son’s services. An examination of the evidence does not disclose the services upon which to base such declarations. Upon the settlement of her husband’s estate, her property consisted of $5,000 in Oneida Valiev Bank stock, which remained in her name until her death. She carried on no business. She had no business to transact, except to care for herself and pay the small expenses connected therewith. She was not lending her money to various persons or investing it in different enterprises. She simply drew her dividends, and, whenever the accumulations sufficiently accrued, invested them in other stock at Oneida. The only business which Mr. Gregg is shown to have transacted for her, outside of those filial attentions which are due from a child to a parent, is the purchase of some stock in the Oneida water-works, requiring no labor save drawing a check .for the amount to be paid. We are unable to discover, during the existence of the lease, any foundation for the declarations relative to her business ; for we go not find that Mrs. Gregg had any business about which, in the ordinary meaning'of the word, services could be rendered. The facts do not seem to exist upon which it is claimed she bases her reason for the non-collection of the yearly rent. We assume that this is a case where the court will not inquire into the actual pecuniary value of services rendered Mrs. Gregg, and we" heve no doubt that Mrs. Gregg had the legal right to place her own estimate upon the value of the services of her son in the transaction of her business ; and we should accept her valuation of them, and hold the rent to have been paid in the manner she declared it was paid, if we could find evidence that services had been rendered upon which it is claimed she based all her declarations relative to the payment of the rent. But all that we can find from the evidence, aside from some occasional aót of slight importance, upon which Mr. Gregg can claim exemption, is the fact that he showed his mother that natural and filial devotion due to her, and which she accepted in the kindly spirit with which it was offered and bestowed. For these she had the right to bestow upon her son the gift of the annual rent, and, if such attention to a parent could be legally classed, under the name of services or business, we should accept Mrs. Gregg’s estimate of their value, and hold that there was nothing due upon the lease ; but believing the law to be otherwise, we must hold that the facts bring the case within the decisions of the courts above cited. Had Mrs. Gregg commenced an action for the recovery of the rent, we apprehend that her declarations would not have been a defense to the claim. Mr. Gregg would have "been obliged to show payment or services rendered for her equivalent to the amount due upon the lease. Her declarations could only have "been used against her in corroboration of evidence of-payment or services rendered on the part of the defense; and we think the same rule applies in this proceeding. Not having shown a valid gift within the authorities, nor any release from liability on "his lease, his only other defense is to prove payment in some form. This he seeks to do by declarations which seem to us insufficient for that purpose. In the settlement of estates there are constant claims of gifts coming before surrogates, supported generally by proof of declarations which the dead can neither admit nor deny nor the living disprove. It is therefore a safe and just rule of the courts to require evidence óf the delivery of the gift to the donee if the property is capable of delivery, and, if the gift be a debt, that it shall be established by instruments in writing.

If we have stated the law applicable to the facts of this case correctly, the only duty remaining is to determine the amount of the claim against the executor which must be added to his account. Whether the surrogate has power to release from the large amount of interest found due upon the annual payments required to be paid by the terms of the lease may be doubtful; but in view of the evidence in this case, and the belief of each party that all had been" done which was necessary to carry out the object intended, we shall follow the direction of the court in Livingston v. Livingston, 4 Johns. Ch. 286, and hold that -the computation of rent should be without interest, because of Mrs. Gregg’s neglect to recover the same sooner. IE this view of the law should be erroneous, this large amount of interest is amply sufficient to repay Mr. Gregg for any disclosed and undisclosed services which he may have rendered for his mother. Let a decree be entered accordingly. Decreed accordingly.