author: Peckham, J.

text:
    Charles G. Landon et al., Ex’rs, Resp’ts, v. Mary N. Townshend et al., App’lts.

      (Court of Appeals,

      Filed December 1, 1891.)

    1. Adverse possession—Evidence of—Possession by tenant at will.
    One holding property by adverse possession may if he chooses recognize the occupation of his property by another, who claims to come in under an assignment by one who was nothing himself but a tenant at will, and such recognition would constitute such person a tenant at will the same as his predecessor.
    2. Same.
    The continuance of the same kind of tenancy by the widow of the tenant at will might be inferred by her continuing to occupy the land in the same way for market gardening as her husband had done.
    3. Same—Building of fence around premises.
    While building a fence around a lot may under some circumstances constitute a taking of possession, yet where the occupation of the other party continued through the building of the fence and in spite of it the same as it was before, and such occupation was by the same parties in the same way and for the same purpose during the whole time and for years after the destruction of the fence itself, the mere building of the fence under these circumstances is not necessarily a legal, valid termination of the adverse possession of the other party.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiffs entered upon report of referee.
    This is an action of ejectment brought to recover the possession of certain premises in the city of ¡New York and described in the-complaint.

      The plaintiffs are the surviving executors of one Benjamin H. Hutton, who died in the city of Hew York on the 17th day of February, 1884. John H. "Whiting, who is named in the will as one of the executors thereof, died 'on or about the 19th of April, 1885, leaving the plaintiffs sole surviving executors. On the 5th day of September, 1885, Edward Price and his wife conveyed to one John Scudder, in fee, the premises involved in this action. Scudder at the time gave back to Price a purchase money mortgage to secure the payment of $1,000. On the 23d of March, 1836, Scudder conveyed these premises to one Ebenezer L. Williams in fee, subject to the mortgage. On the 4th of February,' 1843, Williams, still being the owner of the premises subject to the mortgage, was duly declared a bankrupt by a judgment of the district court of the United States in the southern district of Hew York. William 0. H. Waddell was at this time the official assignee in bankruptcy in that district, and he became the assignee of Williams. On the 21st day of November, 1845, Price commenced a suit in the court of chancery to foreclose the mortgage made by Scudder to him. Heither Williams nor Waddell was made a party to this suit. On the 27th of April, 1846, a decree was therein made for the sale of the premises, and providing that the master should execute to the purchaser a deed thereof, and dispose of the proceeds of the sale as directed. The premises were, on the 8th day of June, 1846, sold under the decree, by Philo T. Euggles, the master in said court, and Edward Price, the mortgagee, became the purchaser at the master’s sale.
    On September 8, 1846, the master executed pursuant to the decree a deed, and delivered the same to Price, purporting to convey the fee in the above mentioned premises. Price entered into possession of the premises, and as is found by the referee continued in possession until his death, which occurred the 26th of June, 1855. He died intestate and left six- children as his sole heirs-at-law. On the 23d of February, 1858, one of the sons commenced an action in the supreme court in the county of Hew York, against the other children and heirs-at-law of Price, for, among other things, the partition of the premises in question among them as such heirs. Such proceedings were had in the action that a judgment of partition and sale of the premises was entered on the 17th of June, 1858, and on the 10th of August, 1858, a part of the premises described in the complaint was struck off to Benjamin H Hutton, and the remainder was sold to one Cushman, who afterwards assigned to Hutton. On the 22d of March, 1859, the referee appointed in said judgment conveyed all the premises in question to Hutton. On the 22d of March, 1859, all of the heirs-at-law of Edward Price, with their respective wives and husbands united in the execution and delivery to Hutton of a deed in fee simple of the same premises.
    On the 1st day of December, 1858, one William Coulter, as administrator of the estate of Edward Price, deceased, commenced an action in the supreme court against Ehoda Williams, the widow of Ebenezer L. Williams, and William C. H. Waddell, who were the only defendants therein, for the purpose of foreclosing the mortgage already spoken of, made by Scudder to Price. At this time Bhoda Williams was dead. The complaint in this action, among other things, set forth the fact that a suit had theretofore been commenced to foreclose the same mortgage, but that neither Williams nor Waddell had been made a party to it, and that a decree had been therein made and the premises sold to Price, who received the deed from the master and entered into possession of the premises under the deed, and had remained in possession up to the time of his death, and that the plaintiff, the administrator, had remained in possession since his death.' Judgment of foreclosure and sale in that action was obtained on the 31st of December, 1858, and on the 28th of January, 1859, the premises were sold to one Gordon, who, on the same day, assigned his bid to Hutton, to whom the referee executed a deed dated January 28, 1859.
    At the time of the execution of these three deeds just above referred to, the premises mentioned in them were in the actual occupation of Frank Surgent as tenant, and he had been in occupation of the premises, either as sole tenant or jointly with others, of Edward Price during his life, and after his death as tenant of his heirs until the conveyance of the premises to Hutton, as above described. The finding of the referee as to the character of the tenancy and occupation of the premises by Surgent after the death of Price was excepted to by the defendants’ counsel as wholly without evidence to support it.
    The referee also found that “under the three deeds to him, Benjamin H. Hutton entered into the possession of the said premises and continued in possession thereof until his death, and that during all said period from the delivery of said deeds to him in 1859 until his death said Benjamin H. Hutton claimed to be the owner of said premises, and held the same adversely to all other interests.” To this finding defendants’ counsel also duly excepted as founded upon no evidence. The referee also found that Edward Price entered into the possession of the premises undpr the master’s deed in chancery on December 8, 1846, and continued in possession until his death' on the 26th of June, 1855, and during all said period Edward Price claimed to be the owner of said premises, and held the same adversely to all other interests. The referee further found that upon Edward Price’s death his heirs-at-law came into possession of these premises and continued in possession until the same were conveyed to Benjamin H. Hutton by the three deeds to him from the referee in partition, from the heirs of Edward Price and from the referee in the foreclosure proceedings of Coulter, adm’r, v. Waddell, and that during all that period the heirs of Edward Price claimed to be the owners of the premises, and held the same adversely to all other interests. Counsel for defendants also excepted to these findings of fact as without evidence to support them. The referee found that the plaintiffs had established title to the premises in question, and gave judgment accordingly. This judgment was affirmed at general term, and from the judgment of affirmance the defendants have appealed here.

      John Townshend, for app’lts; Joseph H. Choate, for resp’ts.
   Peckham, J.

This case has already been before this court and is reported in the 112 N. Y., 93 ; 20 St. Rep., 223. The defendants’ counsel claims that the case is now res adjudicate as there is no fact existing in the case now before us which did' not exist at that time, and that this court then decided upon those facts the plaintiffs were not entitled to judgment. The counsel is mistaken in his claim. The only point decided by this court on the former appeal was as to the effect of the attempted foreclosure by the administrator of Price against Waddell, the assignee in bankruptcy, wherein Waddell was made a party, but not in his official capacity. We held that in order to cut off his interest as assignee it was indispensable that the suit should have been brought against him in his representative or official character, or that it should in some way appear on the face of the proceedings that they related to, or affected the bankrupt’s estate. We held that the complaint and proceedings in that foreclosure suit did not comply with this rule, and as the plaintiffs claimed to have made title under that foreclosure suit, the judgment founded upon it could not be sustained. The counsel for the plaintiffs asks us upon this hearing substantially to review and reverse our former determination upon this point, and he insists that the case, as now presented, differs in material respects from that which was presented before, and that upon those differences it should be held that the interest of Wad-dell, the assignee in bankruptcy, was cut off by the foreclosure suit in question. We fail to see that any material change has been made in the facts relative to this question from what they appeared upon the former appeal. It was assumed then, as it appears now, that upon the bankruptcy of Williams his title-passed to Waddell, and that Waddell took and held it in his-official and representative capacity, having no private, individual or beneficial interest of any kind. Whether Waddell knew that-the foreclosure in question related to land owned by his assignor, Williams, did not appear upon the former appeal, but that fact we-held to be immaterial. We so regard it now. It does not now, any more than on the former appeal, appear on the face of the-proceedings that they related to or affected the bankrupt’s estate.

Our attention, however, is now called to the case of Wagner v. Hodge, reported in 34 Hun, 524, and affirmed in this court without an opinion in 98 N. Y., 654. It is claimed by the counsel for the respondents that the principle decided in that case is applicable here, and that inasmuch as the assignee in bankruptcy had no other interest than as such assignee, the judgment in the foreclosure suit effectually cut that off. What was really decided in the case in Hun regards the rights of a bona jide purchaser of real estate. The learned judge in the course of his remarks said that probably the rights of the assignee were cut off by the judgment in foreclosure in that case; but the effect of such judgment' was not directly decided. The affirmance of the case in this court-without an opinion, of course, did not affirm more than was actually decided below. We see no reason to reverse our former" ruling and, therefore, we are brought to a consideration of the-other facts in the case.

It is claimed by the learned counsel for the defendants that the -circumstances under which Edward Price entered into possession of the premises in question, under the master's deed in the first foreclosure proceedings of Price v. Scudder, rendered his possession that of a mortgagee in possession, and hence he did not inaugurate a possession adverse in its nature to the mortgagor or those claiming through him. He urges that the possession of Price being that of a mortgagee in possession, the mortgagor or his assignee had the right at any time within ten years of the -entry of the mortgagee to bring an action to redeem the property by paying the amount due on the mortgage, and that before the ten years elapsed, Price, the mortgagee in possession, died. It is then urged that there is no evidence that the heirs at law ■of Price took possession, but that the evidence is uncontradicted that his administrator, Coulter, did take such possession, and that while in possession he commenced an action to foreclose this very mortgage, and the complaint in that action was an admission that the mortgage existed and was a lien upon the premises covered by it; and hence the period of possession by the administrator cannot be added to that of the mortgagee in possession, Price, in order to make out the necessary ten years for the limitation of an action on the part of the mortgagor or his assignee to redeem the premises from the lien of the mortgage by paying the amount due thereon.

In this way the defendants claim to have shown that up to the time of the giving of the deed to Hutton in 1859, upon the sale under the second foreclosure, no adverse possession had in fact been maintained and that it is only from the time when that deed was delivered, in January, 1859, or when the other deeds from the heirs of Price to Hutton and from the' referee in the partition proceedings to Hutton were delivered, which delivery was in April, 1859, can it be said that the adverse possession on the part of Hutton really commenced. And it is claimed that the finding of the referee that Hutton from 1859, down to the period of his death in 1884, remained in possession of the premises, claiming .adversely to all interests, is without evidence and the exception on that ground is well taken.

If it can be shown that there is any evidence to support the finding of the referee as to the adverse character of the possession of Hutton from 1859 to 1884, continuously under a claim of title, the judgment must be affirmed without considering the various ■questions which the counsel for the defendants has so ingeniously presented, arising out of the facts already detailed, and occurring between 1835 and 1859. The evidence upon the question of adverse possession since 1859 shows that Louis and Frank Surgent ■entered into possession and occupation of the premises in question in 1853, as tenants of Price, the then mortgagee in possession, and that they remained there until the death of Price in 1855, and subsequently to that time and until the spring of 1858, when ■Louis Surgent sold and transferred to Frank whatever interest he had in the premises. Whether between 1855 and 1858 the Surgents were tenants of the heirs of Price, or took under the administrator of Price, it is unnecessary on this branch of the case to say; but at any rate Frank Surgent was in the occupancy of these premises at the time when Hutton took his deed in 1859, and from 1859 until 1865 Hutton was in possession of the premises (by this same Frank Surgent as tenant), and claiming to own the same in fee under the deeds above mentioned. Frank Surgent testified distinctly that he did not pay any rent after his brother left, which was in 1858, and that Mr. Hutton said it would not be necessary to pay any more rent; he was satisfied with the witness’ occupation of the land. Upon the evidence in the case it cannot be disputed that Surgent, up to the time that he left in 1865, recognized Hutton as his landlord and his occupation of the premises was under Hutton. Thus from 1859 up to 1865 there is beyond any question an adverse possession on the part of Hutton proved in this case and counsel for defendants concedes such to be the fact.

In 1865, while he was such tenant of Hutton, Surgent transferred his occupancy of the premises and all the rights that he had to one Bischoff, who paid him and who thereupon went into the occupancy of the land in the same way that Surgent had occupied it, which was as a vegetable garden. It may be assumed that Surgent was only a tenant at will, and it is at this point that the learned counsel for the defendants claims the adverse character of the holding of Hutton was determined, and he founds it upon the principle that a tenant at will cannot transfer any of his rights to an assignee or a transferee; that his tenancy is of such a nature that it necessarily ends the moment he makes a transfer and surrenders the occupancy and the person who comes in is a trespasser and does not hold under the former landlord. This is-beyond question true provided the landlord choose to so regard it; but here is the fact that Surgent assumed to transfer all the rights, which he had, including the right of occupation, to Bischoff, who assumed to come in and occupy under the same title, and none other, that Surgent had. In other words, he assumed to come in as a tenant at will in place of Surgent, and his tenancy was recognized and acquiesced in by Hutton from the time he took such 'occupation of the premises.

It has never been held that the owner of property could not if he chose recognize the occupation of his property by another who claimed to come in under an assignment by one who was nothing himself but a tenant at will. By the claim on the part of the assignee of the right of occupancy, simply by virtue of his assignment and in no other way and by no other means, the recognition of such claim and its allowance by the owner would constitute such person a tenant at will the same as his predecessor. We think the evidence, therefore, is sufficient to show that the assignment by Surgent to Bischoff of his rights in the premises and the entry of Bischoff thereunder and the acquiescence in such entry by Hutton, constituted Bischoff the tenant of Hutton, and his occupation continued the possession of Hutton until such occupation ceased.

The evidence shows that Bischoff died about the year 1872 or 1873. Here is what the defendants claim is another break in the possession by Hutton and it is claimed that there is no proof of any further possession on the part of Hutton from that time on. The referee finds that after Bischoff’s death his widow continued in possession of and cultivated the premises, holding them under Hutton, until the defendant Mary R Townshend took possession of the premises, the said widow Bischoff having meanwhile mar-' ried one Grreb. The referee found that the defendant Mary R. Townshend took possession of the premises on or about the 1st day of May, 1884, when the defendant Francis G. Wieck entered thereon as her tenant. This finding as to the tenancy by Mrs. Bischoff is also excepted to by the counsel for the defendants as wholly without evidence. The evidence is that Bischoff remained in occupation of the premises until he died, using the premises for the cultivation of vegetables and nothing else, and after he died, his wife continued in occupation of the premises, and in the language of the witness, “ ran it the same as her husband had done.” She continued this for about a year and then married one Grreb, and they continued to cultivate the land in the same way that Bischoff had done, down to 1883 or 1884, when they left, and Wieck, the florist, came on. Under these circumstances we do not think that it can be said as matter of law that neither Mrs. Bischoff nor her husband Grreb occupied the premises as tenants of Hutton. The land at that time was comparatively remote from the settled portion of the city. It was not built upon, and during the time of the tenancy of Surgent and up to the time of the death of Bischoff, it had been used as a market garden for the cultivation of vegetables and in recognition of the paramount rights of Hutton. The continuance of the same kind of a tenancy by the widow of Bischoff might well be inferred from her continuing to occupy the land in the same way that her husband had done, and such an occupation under the circumstances would not necessarily be of such a character as the law denominates trespass. From all the facts the referee or jury might find Mrs. Bischoff to have been a tenant and her rights subordinate to the paramount rights of Hutton. And we think the same may be said in regard to the continuation of the tenancy after her re-marriage. The evidence is that the occupation continued of the same nature as during Bischoff’s life time, and that the land was cultivated in the same manner and for the same purpose up to the time when Greb and his wife left the premises.

Considering the fact that Edward Price had been in possession of the premises from 1846 until his death, and that his heirs claimed to be in possession from the time of his death until the sale by the referee in the partition suit between such heirs, and that upon that sale Hutton became the purchaser and went into possession, claiming title in fee and continued so confessedly until 1865, when these various tenants succeeded each other, as already stated, we cannot say as matter of law that there was no evidence to sustain the finding of the referee that Mrs. Bischoff, after her husband’s death, continued as tenant of Hutton in occupation of the premises until she left in 1883 or 1884.

There is another fact which the defendant confidently relies upon as breaking the continuous character of the adverse possession on the part of Hutton. The referee finds that on the 10 th of January, 1873, Mary M. Townshend, the defendant, received, a deed from George Law and his wife, purporting to convey the premises in question, and she claims that Law had become the owner of the equity of redemption in the premises owned by Waddell as assignee in bankruptcy of Williams. The referee also finds that in 1875 defendant, Mary M. Townshend, built a fence around the premises in question,'and that her entry thereon for the purpose of building it was peaceable, but there was no proof that Hutton had any knowledge of it. This entry by the building of the fence is claimed by Mrs. Townshend to constitute a termination of the possession of Hutton, and the commencement, of her own. Building a fence around a lot may, under some circumstances, constitute a taking of possession of such lot, but we cannot say that in all conceivable circumstances such act does necessarily constitute as matter of law such taking possession.

In this case we have the fact testified to that from the time Hutton took his deeds of these premises, up to the time when Greb and his wife left them in 1883 or 1884, they were in the actual occupation of some one other than the defendant Townshend. In other words, it appears that Surgent occupied and cultivated the premises as Hutton’s tenant until 1865; that Bischoff then went in and cultivated the premises in the same way and in the same character as Hutton’s tenant until his death in 1872 or 1873; that Mrs. Bischofí continued the occupation and cultivated the premises in the same way until she married Greb, and that she and Greb continued the occupation and cultivation of the premises until they left, as stated. The building of the fence does not appear to have interfered in any degree with the occupation of the premises as they had been theretofore occupied, and there is no proof that by the building of the fence the slightest change in the actual possession of the premises was accomplished; and it does not appear that Hutton was even aware of the building of the fence. There is no proof that any of these tenants ever by the slightest act recognized defendant Townshend as the owner or in any way as an occupant of the premises. Mow, under these circumstances, it was a question whether this act of the defendant was a mere entry upon the land in opposition to the occupants and not recognized by them, or whether it amounted to a taking possession thereof. It may be conceded that anything which amounts to an actual taking possession of property, a substantial assertion of right accompanied by the actual possession and occupation of the property, exclusive in its nature, would amount to the breaking of the adverse possession then running, and would render it necessary to commence it anew. But here, where the evidence shows that the occupation of the other party continued through this building of the fence, and in spite of it, the same as it was before, and such occupation was by the same parties in the same way and for the same purpose during the whole time of the building and for years after the destruction of the fence itself, we think that the mere building of the fence under these circumstances was not necessarily a legal, valid termination of the adverse possession on the part of Hutton then in process of maturing.

The case of Worssam v. Vandenbrande, 17 Wk. Rep., 53, is not opposed to these views. In that ease the possession of the party claiming adversely was broken by the breaking down of a fence which had enclosed the premises and by remaining on the land for three-quarters of an hour, and by erecting a post on the land, with a notice affixed, that any one wanting a lease of the land should apply to the plaintiff. Three days afterwards the post and the notice disappeared, and some years after that the defendant (the adverse claimant) built on the land. It was held that a period had been put to the adverse possession. The decision was not placed on the mere fact of the breaking of the fence. The land had been and at the time the fence was broken down was unoccupied, and the further fact appeared that from the time of the destruction of the fence for five years no act on the land hostile to the title of the true owner occurred. The absence of any such hostile act was alluded to in the judgment as one of the grounds for showing interruption of the adverse possession. After the lapse of five years the defendant, the party who had erected the fence, built upon the land; and the question, as put by the court, was, whether upon these facts there was a taking of possession of the premises by the true owner, as opposed to a mere entry ? And it was held that under these circumstances it was a taking of possession.

In Bliss v. Johnson, 94 N. Y., 235, the break in the possession was of many years duration. It was there said that where the true owner has been dispossessed and the dispossession terminates within twenty years, the possession will be considered as having returned to the true owner, and that to defeat his title the adverse possession must be continuous for twenty years.

Assuming that the dispossession here commenced in 1859, the claim of the defendant is that it terminated in 1875 by the erection of this fence. On the contrary, we think that under the facts developed the referee had the right to find that the erection of the fence by the defendant was a mere entry, and not a termination of the possession by Hutton. The referee makes this distinction in his findings, for he finds that the widow of Bischoff continued in possession and cultivated the premises, holding under Hutton until the defendant Mary N. Townshend took possession, which was on or about the 1st day of May, 1884, and he finds that the defendant made an entry upon the land in 1875, and enclosed it with a fence. Upon all the facts it is clear that the referee drew an inference that the building of the fence constituted a mere entry, as distinguished from a taking of possession, and upon the facts we think he was justified in so doing, and we cannot disturb his finding as founded upon no evidence.

Our examination of the case brings us to the conclusion that the finding of the referee that Hutton was in possession of the premises for more than twenty years from 1859, claiming adversely, etc., was based on some evidence and we cannot in this court disturb it.

We have carefully considered the other questions argued in the brief of counsel for respondents, and we think they have been properly disposed of in the courts below.

The judgment should be affirmed, with costs.

All concur.

       Affirming 38 St. Rep., 714.


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    Catherine V. Murray, App’lt, v. Thomas E. Murray, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    1. Divorce—Separation—Cruel treatment.
    The use of foul and indecent language by a husband to his wife, making serious accusations of marital misconduct, threatening her with personal injury and choking her, is sufficient to authorize a decree of separation.
    2. Same.
    The testimony of plaintiff as to ill-treatment by defendant was corroborated by her brother and mother. These charges were denied by defendant, who was sustained by the testimony of the servants that his treatment of plaintiff was always good. Held, that there was no such preponderance of the evidence as required a reversal of a decision in favor of defendant.
    Appeal from a judgment recovered on trial before the court.

      George F. Langbein,for app’lt; Howe & Hummel, for resp’t
   Daniels, J.

The action was brought by the plaintiff to secure a separation from the defendant, who is her husband. They were married on the 8th of June, 1887, and had one child, a. daughter, born on the 3d of June, 1888. And the plaintiff left the defendant’s residence on the 28th of August of the same year. The case on her part depended chiefly upon her own evidence as a witness. And in the course of it she testified that the defendant on various occasions had used extremely foul and indecent language to her, making serious accusations of marital misconduct, threatening her with personal injury, and finally on one occasion seizing her by the throat and severely choking her. And that was amply sufficient under the authorities, if her statements had been accepted as the truth, to sustain her action. Ruckman v. Ruckman, 58 How., 278; Uhlmann v. Uhlmann, 17 Abb. N. C., 236; Kennedy v. Kennedy, 73 N. Y., 369 ; De Meli v. De Meli, 120 id., 485; 31 St. Rep., 704; Lutz v. Lutz, 9 N. Y. Supp., 858; 31 St. Rep., 718.

But the difficulty with the plaintiff’s case consisted in the fact that there was but little sustaining evidence, and that was obtained from her brother and her mother.

While the defendant in his evidence positively contradicted all the statements which the plaintiff had made having a tendency to maintain her action, except that relating to the final occurrence, when her testimony was that he had choked her. That, however, he denied, but stated, by way of explanation, that a disagreement had arisen between them concerning a cloth used to cover a table in their library; that this had been once removed by himself and afterwards restored, and then cut into pieces and torn by himself to prevent it from afterwards going upon the table. And while he was employed in this destruction of the table cloth, he testified that the plaintiff appeared and exciting words were passed between them, when he directed her to leave the room, and stated that she refused to go and continued to abuse him, when he said to her that if she did not go from the room he would put her out, and after-wards took her by the shoulders and moved her out, being careful not to hurt her; that as she went out she seized him by the necktie and began to call the cook, when he got her over towards the bed and pushed her on it and tore himself loose, and then went into another room. As to the fact that his general treatment of the plaintiff was good, he was also corroborated by the cook herself, Nellie Mitchell, and by the deposition of Bridget Ryan, who was a nurse during the plaintiff’s illness. The witness Mitchell was contradicted in some of her statements by proof of what she had previously said when not under oath, but these statements in turn were also contradicted by her. The case in this manner was left in nearly a balanced condition. If there was any preponderance whatever in the plaintiff’s favor it was extremely slight. And it was accordingly for the court to determine who was entitled to credit in the evidence given in this manner upon the trial. The witnesses were there present, with the exception of Bridget Ryan, whose deposition was read. They were under the observation of the justice presiding at the trial. Their manner of testifying, as well as their apparent candor, were circumstances entering into the extent of credit which should be accorded to their statements. These features of the case were exclusively before the trial court, and cannot be reproduced in the case presented upon the appeal. And it was for that court to decide, consequently, whether the plaintiff had so far established the charges contained in her complaint as the foundation of the action as to entitle her to maintain it. That court decided that she had not done so. And the decision there made under these circumstances must be accepted as. conclusive upon an appeal. Sherwood v. Hauser, 94 N. Y., 626.

In the course of the trial several exceptions were taken to rulings upon the admissibility of evidence, but neither of these exceptions appear to have been of any substantial importance to the plaintiff. They do not sustain the appeal now brought before the court, and the judgment accordingly should be affirmed.

Lambert, J. concurs.


author: Per Curiam.

text:
    In the Matter of the Petition of Julia Blewitt, for the Appointment of a Committee of the Person, etc., of James Blewitt.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    1. Lunacy—Jurisdiction.
    A. failure to give notice to an alleged lunatic of the presentation of a petition for the appointment of a committee is a grave irregularity, but does not deprive the court of jurisdiction where the petition states the facts, necessary to confer such jurisdiction.

      2. Same—Notice to lunatic.
    A motion to set aside the proceedings in such a case was denied, with leave to traverse the allegations of the petition and to have the issue so framed tried by the original commissioners. Held, that all the rights of the alleged lunatic were thereby preserved and the error cured.
    Appeal from an order denying a motion to vacate and set aside the commission and all proceedings thereunder.

      Isaac N. Miller, for app’lt; Lorenzo Semple, for resp’t.
   Per Curiam.

We agree with the learned justice before whom this matter was heard at special term, that the omission to give the alleged lunatic notice of the presentation of the petition to the court was a very grave irregularity. Code Civ. Pro., § 2325. But we do not agree with the counsel for the appellant, that the failure to give such notice deprived the court of jurisdiction. Under the Code of Civil Procedure the jurisdiction of the supreme court extends to the custody of the person, and the care of the property of a person incompetent to manage himself, or his affairs, in consequence of lunacy, idiocy or habitual drunkenness. Code, §^2320. We think that it presumptively appeared, from the allegations contained in the petition, that James Blewitt, at the time of its presentation, was a person in whose case the court, in the exercise of its discretion, could appoint a committee, and that therefore, under the provisions of § 2327 of the Code, it acquired jurisdiction to make the order that a commission issue.

While therefore the failure to notify Blewitt of the presentation of the petition was, as already observed, an irregularity of a very grave character, we think that the jurisdiction of this court in the matter cannot be successfully questioned, and if the whole record now before the court shows that the alleged lunatic has been given every opportunity to be heard which he could have had in the first instance, that the irregularity is not of such a character as to require the court to vacate and set aside all the proceedings heretofore taken. It appears from the. record that James Blewitt on or about the 23d of January, 1891, presented a petition to this court, in which, after reciting that on the 12th of June, 1890, a commission in the nature of a writ de lunático inquirendo was issued out of this court against your petitioner, and that on the 23d of June, 1890, an inquisition was taken under the same' whereby “the petitioner was found a lunatic, and Julia Blewitt, wife of your petitioner, was on June 25, 1890, appointed by this court a committee of his person and estate.” .The petitioner goes on to aver that “ he is now of sound mind and understanding, and has been so for several months, and he believes that said commission of lunacy should now be superseded because unnecessary.” ■ The petitioner therefore prays “that an order be granted requiring his committee to show cause, if any there be, to this court on a day certain, why the said commission, inquisition and the proceedings therein should not be superseded and annulled forthwith, and that a writ in the nature of a supersedeas may issue for that purpose.” The hearing upon that order to show cause took place before Mr. Justice Ingraham, and after hearing counsel and perusing voluminous affidavits, the petition was in all respects denied, and the proceeding dismissed.

It may well be argued that by taking that proceeding James Blewitt cured the irregularity of which he now complains.

The present proceeding came before the court on a motion to vacate and set aside the commission and return thereof, the inquisition, the order appointing the committee and all other proceedings, for irregularity, because the said proceedings were without notice to Blewitt, and also because the said inquisition never received the confirmation of this court, and that this court had no jurisdiction to appoint the committee. Upon the hearing of that motion, Mr. Justice Beach denied the motion to vacate and set aside the commission and the return thereof, the inquisition and the order appointing the committee, but gave leave to the petitioner to traverse the allegations of the original petition, by an answer to be served upon the attorney for the committee, within five days from the entry of this order, and directing the issue so formed to be tried before the commissioners originally appointed by the court and a sheriff’s jury. The order further required that ten days notice of the time and place of said hearing be given to the said James Blewitt, and that he appear before the said commissioners and jury, for examination before them. It was further ordered that the committee pay to the said James Blewitt the sum of $250 to defray his expenses of defense.

We are of opinion that by this order all the rights of Blewitt were preserved, and that as the court, notwithstanding the irregularity heretofore referred to, had obtained jurisdiction of the matter, the whole proceeding should not be vacated and set aside. The order below will, therefore, be affirmed. But with liberty James Blewitt to serve the answer provided for in the order, and also alleging his restoration to health, within ten days after notice of the order to be entered on this decision.

Van Brunt, P. J., Daniels and Lawrence, JJ., concur.


author: Van Brunt, P. J.

text:
    Pauline Jacobs, Pl'ff, v. Lena Davis, Resp’t, and Abraham Greenberg et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Foreclosure—Surplus moneys—Evidence.
    D., who had received a deed of property subject to mortgage, conveyed a half interest therein to G, for a nominal consideration, but the deed recited an agreement by which D., although she had paid the larger share of the consideration for the premises, should not claim more than the amount expended by her in and about the premises and one-half of the profits realized by the investment, and that D. should collect the rents and apply the same to the payment of taxes, interest, etc.., the parties to share equally in the profits. In proceedings to determine their rights to a surplus remaining after a foreclosure of one of the mortgages, D. showed by a witness that she had collected a large amount of rents, made certain disbursements, and that a large sum remained in her hands. Thereafter she withdrew such account, refused to render any, and the evidence was. stricken out by 1 he referee. Held, error; that D. was only a mortgagee in possession, entitled to collect rents until her debt was paid, and that G. had a right to show that she had been reimbursed for the amounts expended by her.

      Appeal from order confirming referee’s report in proceedings to obtain surplus moneys arising on a foreclosure. ■

      A. Cohen, for app’lts ; S. Cohn, for resp’t
   Van Brunt, P. J.

The surplus in question arises upon a sale of certain premises in Forsyth street in the city of New York under a decree of foreclosure in this action.

By deed dated the 12th of July, 1889, apparently executed however on the 16th of said July, the appellant and wife conveyed the premises in question subject to $32,000 in mortgages to the respondent Lena Davis, the consideration named in the deed being the sum of $39,000. By deed dated on said 16th of July said respondent conveyed to the appellant Greenberg subject to the same mortgages an undivided half of said premises, the consideration named being one dollar.

The latter conveyance, however, was stated upon its face to be upon the following understanding and agreement, viz., that whereas the respondent had purchased the premises for the sum of .$37,000, $5,000 being paid in cash, $32,000 subject to mortgages; and whereas the respondent had paid $4,999 of the $5,000 and the appellant had paid one dollar, and whereas it had been mutually agreed that the said parties should share in the profits realized by the investment equally, and that the respondent should not claim, because of her excess of investment, more than the amount invested as should be made by her in and about the premises and one-half of the surplus, and that all the rents and profits of the premises should be subject to the payment of the interest and instalments of said mortgage, and the taxes, insurance and repairs of the premises, and the surplus, if any, applied' to the payment of the principal of the third mortgage; the respondent should have the absolute right to collect all the rents of the property and apply the same as above stated. A restriction upon alienation was placed upon both parties and a provision was made that in case either should convey his interest in the premises or institute or cause to be instituted any proceedings at law looking to a sale, that either party should have the option to consider that the party offending had contracted to purchase the entire premises for the sum of $39,000.

These deeds were recorded together. One of the mortgages referred to in these deeds having been foreclosed, the surplus arose in respect to which this proceeding is taken.

The counsel for the appellants, before the referee, does not seem to have had a very well defined idea as to how he was to reach the surplus which had arisen upon the foreclosure of this mortgage. If he claimed to consider, under the terms of the agreement above mentioned, the respondent to be the purchaser of the premises at $39,000, it was clear that he could have no claim upon the surplus because the respondent would be entitled to receive the same as purchaser.

This, however, seems to have been the claim urged before the referee by the appellant in the first stages of this reference. Upon this claim being ruled out by the referee, the counsel for the appellant claimed the right, in this proceeding, to an account of the rents and profits which the respondent had received, it being proven that she had collected the rents, and that after the respondent should be reimbursed for the advances which she had made, that he was entitled to share in whatever profits might be realized from the adventure.

The referee in the first instance-refused to take this account, but finally changed his ruling and notified the attorneys for the respective claimants of this fact, and some evidence was taken bearing upon this issue.

Among other evidence the respondent swore a witness, who testified that a large amount of rents had been collected by him as agent for the respondent and paid over to her, and also that certain disbursements had been made, and that there was a balance to a considerable amount which had been received and had been unaccounted for by the respondent.

Upon the termination of the examination of this witness, the counsel for the respondent stated that he withdrew the account which this witness had presented, and that he did not offer any evidence in regard to the accounts at all. The counsel for the appellant objected to this withdrawal, which objection was overruled, and a motion to strike out the evidence of the witness was granted by the referee, to which ruling the appellant excepted.

It seems to us that this" was clearly error. The most that could be said in favor of the respondent was that she was mortgagee in possession entitled to receive the rents, etc., until her debt was paid. The appellant had a right to show that she had been fully reimbursed out of the rents received for the amount advanced on the purchase money as recited in the deed last above named, and whatever surplus might remain after such reimbursement, the appellant was entitled to claim the half thereof according to the agreement which had been entered into between these parties at the time the respondent conveyed the one-half of the premises to the appellant

Upon the record the appellant was the owner of one-half of these premises over and above the mortgages and subject to the ■equitable lien which the respondent had for reimbursement as mentioned in the deed from her to the appellant.

We think, therefore, that the referee erred in allowing this testimony to be stricken out, and that the appellant had a right to show that the respondent had been reimbursed and to recover out of this surplus the half of that which remained.

The order should be reversed and a new order of reference made to ascertain the amount of appellant’s claim upon such surplus .moneys, costs of this appeal to abide the final event.

Daniels and Ingraham, JJ., concur.


text:
    Charlotte W. Patten, Resp’t, v. The United Life & Accident Insurance Association, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    1. Evidence—Records of board of health.
    No question is presented to the appellate court by an exception to the exclusion of a copy of the records of a board of health in relation to the death of one insured, in an action on a policy, where the case does, not contain a copy of the certificate.
    2. Same—Physicians—Code Civ. Pro., § 834.
    In an action on a policy of life insurance, testimony of a physician that he attended t he insured in his last illness is inadmissible under § 834 of the Code, as knowledge that it was his last illness could only be ascertained by the physician in his professional capacity in attending the patient.
    Appeal from judgment entered on verdict of a jury directed by the court

      H. Wilber, for app’lt; J. A. Shoudy, for resp’t.
   Van Brunt, P. J.

This action was brought by the plaintiff to recover upon a policy of insurance issued upon the life of one Jarvis Patten for the benefit of the plaintiff.

The plaintiff alleged performance of all the requirements of the policy, which was denied by the defendant, it alleging failure to make a payment which fell due on the 16th of April, whereby under the conditions of the policy it lapsed and became void; and that to induce the defendant to reinstate Patten he certified in writing, by a certificate dated April 19, 1888, and received by the defendant on April 23, 1888, that he was in good health. He died on the 16th of May following, and it was claimed that the statement made by the decedent in said certificate in respect to his health at that time was untrue.

To sustain this issue the defendant offered in evidence an exemplified copy of the records of the health department of the city of Washington, showing the record of the death of Jarvis Patten. This was objected to by the plaintiff, the objection sustained, and an exception duly taken by the defendant.

The defendant also offered in evidence the testimony of Dr. George 1ST. Perry, taken on commission duly issued and returned. To certain interrogatories the plaintiff’s objections were sustained and the exception of the defendant was duly taken. Upon the conclusion of the trial, the court directed a verdict for the plaintiff, and from the judgment thereupon entered this appeal is taken.

The exceptions to the exclusion of evidence hereinbefore referred to form the sole basis of the appeal.

Without passing upon the question of the admissibility of the copy of the record of the health department of the city of Washington for any purpose, it is sufficient to say that no question is presented by the case on appeal upon this point, as the copy of the certificate is not contained in the case and we cannot say whether or not it contained any matter relevant to the issue presented for trial.

The exception to the exclusion of the answers to some of the interrogatories to Dr. Perry presents, perhaps, a more serious question; but upon a consideration of all that appears upon the face of this record, it appears that Dr.. Perry was the attending physician of the deceased in his last illness; and, therefore, under the provisions of the Code he was not allowed to testify in regard to any knowledge which he acquired as such attending physician. He was asked :

“Did you attend Jarvis Patten professionally in his last illness?

“ Did you continue in such attendance upon Jarvis Patten until his death ?

“ When were you first applied to in relation to the last illness •of Jarvis Patten?

“ Where did you first see Jarvis Patten concerning his last illness?

“How many times did you attend him professionally intermediate the time you first saw him in relation to his last illness as you have testified, and the death of Jarvis Patten?”

Some of these interrogatories, perhaps, it might have been ■proper to allow; but the answers thereto, no matter what they might have been, would in no way have established or tended to establish the defence interposed by the defendant.

It may be said that the interrogatory inquiring when were you first applied to in relation to the last illness of Patten, might have shown that at the time of the giving of the certificate in question the witness was attending him professionally. But that question involved the statement that he was called in relation to the last illness of Patten; and that this was his last illness could only be ascertained by Dr. Perry in his professional capacity in attending upon the patient, and therefore the interrogatory was properly excluded.

Upon the whole case there seems to have been no error which was detrimental to the defendants and the judgment should be .affirmed, with costs.

Daniels and Ingraham, JJ., concur.


text:
    Benjamin Lewis, Resp’t, v. The Chronicle Company, Limited, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    'Bill of particulars—Appeal.
    An order denying a motion for a bill of particulars will not be disturbed on appeal where the record does not show that the complaint was before the court on the hearing of the motion.
    Appeal from order denying motion for a bill of particulars. Action for libel.

      Treadwell Cleveland, for app’lt; Tracy, MacFarland, Boardman & Platt, for resp’t.
   Van Brunt, P. J.

It does not appear from the record presented on this appeal that the complaint was before the court below at the time of the hearing of this motion. It was, therefore, impossible for it to determine whether or not the defendant was entitled to a bill of particulars; and the complaint not being-before this court upon appeal, there is nothing in this record showing that any error was committed by the court below.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

Daniels and Ingraham, JJ., concur.


author: Ingraham, J.

text:
    Mary A. Poole, Resp’t, v. Burton G. Winton et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Pleading—Joinder of causes of action.
    A complaint in. an action to remove a cloud on title, which asks that certain mortgages which are liens be declared void; that the same be delivered up and cancelled, ar.d that the premises be declared free and clear of the liens thereof, and damages for breach of the contract in pursuance of which said mortgages were executed, states but one cause of action.
    Appeal from judgment overruling demurrer to complaint on the grounds, iirst, that several causes of action have been improperly united; second, that the complaint does not state facts sufficient to constitute a cause of action; third, that another action is pending between the plaintiff and the Keogh Manufacturing Company for the same cause.

      Myndert A. Vosburgh and Abner C. Thomas, for app’lts; George W. Carr, for resp’t.
   Ingraham, J.

We think that the complaint contains one-cause of action in equity whereby the plaintiff seeks to have certain mortgages which are liens upon the property described in the complaint declared void; that the same be delivered up and can-celled, and that the premises be declared free and clear of the liens thereof, and to recover damages for the breach of the contract in pursuance of which said mortgages were executed.

The complaint alleges that the plaintiff is the owner of the-premises covered by the mortgage. That a certain contract was-made between Sidney G. Poolo and the defendants, C. B. Keogh & Co. That in pursuance of such contract certain mortgages were executed and that subsequently the premises in question were conveyed to the plaintiff. That the said mortgages are apparent liens upon said premises, but were without consideration or made in violation of the said contract, and the plaintiff asks damages for a breach of the contract and that the mortgages be declared void and be cancelled.

The relief demanded by plaintiff is equitable. To remove a cloud upon the title to real estate requires the resort to a court of equity, and where the court acquires jurisdiction because of the nature of the relief asked, it retains such jurisdiction so as to give to the parties all the relief to which they are entitled, and in such an action it is proper to make all persons parties who have an interest in the property to be affected by the judgment applied for or who are necessary parties for the complete determination or settlement of all questions involved therein, Code, § 447, and it-appears that the defendants are proper parties within the provision of this section.

We think that on the facts stated in the complaint the plaintiff will be entitled to at least a portion of the relief asked for, and that it does not appear on the face of the complaint that the plaintiff can obtain such relief in the action pending between plaintiff and the 0. B. Keogh Manufacturing Company.

The demurrer was, therefore, properly overruled and the judgment should be affirmed, with costs.

Van Brunt P. J., and Daniels, J., concur.


text:
    Henry G. Keasbey et al., App’lts, v. The Brooklyn Chemical Works et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    1. Trademarks.
    A phrase which is no more nor less than a description of the compound itself, resulting from the names of the principal articles used in its production, is incapable of exclusive appropriation by any party making the compound.
    2. Same—Injunction.
    The affidavits used on an application for a preliminary injunction in an action to restrain the infringement of a trade mark were conflicting as to the fact of the prior common use of the words in question in relation to such compounds and whether they were not simply descriptive of the principal articles used in its production, and it appeared that there was no similarity in the bottles or labels used by the parties. Held, that a preliminary injunction was properly denied.
    Appeal from an order denying a motion for an injunction.

      Edward K. Jones, for app’lts; Herman Aaron, for resp’ts.
   Daniels, J.

The plaintiffs since about the year 1881 have been engaged in manufacturing and selling an article to which they have given the name of Bromo Caffeine. This article is claimed to be a compound made by themselves of a chemical nature and sold for medical purposes, and in that business a large and profitable trade has been created. The defendants engaged in the same business in or near the year 1890. The Brooklyn Chemical Works manufactured an article which it has variously called Bromide Caffeine and Bromo Caffeine, by which it is claimed on behalf of the plaintiffs that their right to the use of this term for the identification and sale of their compound has been fraudulently imitated and their profits diminished. And it was to restrain this alleged violation of right that the application for the injunction was made.

It did appear in behalf of the plaintiffs that they had produced this compound, and had placed it upon the market and secured a large sale for it under the name of Bromo Caffeine, prior to the time of the manufacture of the article produced and sold by the defendants. But in answer to the application, affidavits were produced maintaining the fact to be that this was not an entirely new compound, or one to which the name of Bromo Caffeine had been first applied by the plaintiffs. And in the affidavits reference has been made to the use of the word in chemical works indicating the, previous existence of this compound under the same name before the time when it was manufactured by the plaintiffs. The effect of these affidavits the plaintiffs endeavored to avoid by others made in their favor maintaining the manner in which their article was compounded to be different from that manufactured by the defendants, and that the word or phrase had not been so used or employed prior to their use of it in their own business. But without determining the effect of the affidavits it may very properly be said that they have left this essential part of the plaintiffs’ case in a substantial degree of controversy, and one that can hardly be expected to be satisfactorily settled without hearing and weighing the testimony of the witnesses themselves.

Besides that there is reason for believing from the statements contained in the affidavits that this phrase “ Bromo Caffeine ” is no more nor less than a description of the compound itself, resulting from the names of the principal articles used in its production. And where that appears to be the fact the phrase is incapable of exclusive appropriation by any party making the compound to which it is appropriately applied as a mere matter of description. That was the case of Caswell v. Davis, 58 N. Y., 223, where the phrase used as a designation of the product was no more than an indication of the different articles combined in its production. And as every person had the right to make the same combination, it was held, to follow that it could be designated by the same descriptive phraseology. And it necessarily must therefore follow if the article produced by the plaintiffs has been manufactured from ingredients principally included within the acquired meaning of this phrase, that the plaintiffs had no exclusive right to its use arising out of the manufacture of the article to which it has been applied by them in the course of their business.

The principle of the case just cited has been supposed to be departed from in Electro-Silicon Co. v. Hazard, 29 Hun, 369. But this position has not been sustained on account of the difference in the controlling facts of the latter case. For while the phrase whose use was protected by the decision related in part to a substance which it described, it was still held, as it was not an article of merchandise, to be relieved from the operation of the rule-maintained by this preceding authority. And the same remark may be applied to Munro v. Beadle, 55 Hun, 312 ; 28 St. Rep., 503, and Selchow v. Baker, 93 N. Y., 59. Meither of these authorities have entrenched upon the principle maintained by the case first cited, but the rule as it was there stated is sanctioned in the decision which has been last referred to. For as to names which are descriptive of the article itself, it was conceded That when a manufacturer has given to his products a new name invented by himself for the purpose of distinguishing them as his, and the article becomes generally known to the trade and to the public by that name, the name becomes public property and every one has a right to use it” Id., 66. The evidence in the present case goes even beyond the qualification to which this rule has been here subjected, for it tends to establish the fact that this phrase was employed to identify similar compounds long before the time when it was employed by the plaintiffs as a designation of their production.

Without, therefore, determining that this action may not be maintained, it is sufficient to say that in this state of the proofs it would be improper to allow an injunction to be issued. Whether the plaintiffs shall maintain their right to it must depend upon the critical consideration of the evidence obtained from witnesses who can only be examined for this purpose when the trial of the action shall take place.

A further objection to the right of the plaintiffs to the injunction was placed upon the dissimilarity of the bottles used by the defendants to those in which the plaintiffs’ compound was put up and sold, and in the labels placed upon «the bottles. There was no resemblance in the shape of the bottles to those of the plaintiffs ; neither was there any in the labels placed upon the bottles, further- than the indication of the article of the same name of Bromo Caffeine. And whether the public could be deceived into the purchase of the defendants’ production for that of the plaintiffs has also been made a matter of very doubtful import by this evidence. This, like the other, cannot be settled favorably to the plaintiffs upon the affidavits, but must, if it is to be sustained at all, result from the evidence which shall be developed at the trial. For both reasons the order was right in refusing an injunction, and it should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Ingraham, J., concur.


text:
    The National Park Bank, Resp’t, v. Warren N. Goddard et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    1. Equity—Jurisdiction.
    Equity will intervene where there is no adequate relief at law, and such interference is not limited to cases of accident, mistake, fraud or discovery.
    2. Injunction—Determination of claims in one action.
    After attachments in favor of the plaintiff had been levied on property of its debtor, actions of replevin were commenced by the defendants to recover property claimed to have been purchased by said debtor fraudulently, and said property was taken thereunder, some of the defendants claiming one portion of a garment, others other portions, the goods sold having been manufactured into garments. Feld, that an action to restrain such replevin suits and to determine the claims of the parties to'the property was maintainable, and that a receiver was properly appointed to take ca^e of the -property.
    Appeal from orders granting injunction and appointing receiver herein.

      E. F. Dwight, for app’lts, Oelberman et al.; Gilbert Putzel, for Raritan Woolen Mills et al, app’lts; Benno Loewy, for app’lts, Haas et al.; Butler, Stillman & Hubbard, for app’lts, Juillard et al.; Otto Horwitz, for resp’t.
   Van Brunt, P. J.

Levy Bros. & Co. were a limited partnership engaged in the manufacture and sale of clothing in New York and being indebted to the plaintiff in a large sum of money, their property was attached at the suit of the plaintiff by the sheriff, who took into his possession their stock of goods and some other property. At that time the defendants herein, other than the Levys and the coroner, claimed to be creditors of the insolvent firm for goods sold and delivered, but their claims had not matured.

As soon as the sheriff had levied upon and taken possession of the firm’s property these creditors, claiming that the goods sold by them to the Levys were obtained from them by fraud, assumed to rescind the sales and commenced actions in replevin to recover the goods they had respectively sold. The coroner thereupon took the goods out of the sheriff's possession. Some forty or fifty different actions of this nature were thus commenced.

The goods sought to he replevined were cloth, linings, trimmings, and other materials which had been sold by the plaintiffs in the replevin suits to the Levys and which had to a great extent been made up by the Levys into clothing; the cloth bought from one merchant being combined with the linings bought from another and the trimmings furnished by another to form the garment as it existed at the time of the levy on the attachment by the sheriff. Each plaintiff in the replevin suits claimed certain goods in whatever shape he could find them, whether in the piece or made up into garments. Entire garments were claimed by the merchant who sold the buttons or lining, or who sold the cloth or furnished other parts of the material, and at the time that this action was commenced were in the act of seizing upon and taking away property, some of which had formerly belonged to them and some of which they had never owned; the claim of the plaintiffs in the replevin suits being that these goods having been obtained by fraud they bad the right to follow them in any form that it might assume through the interference of others. The respondent thereupon commenced this action for the protection of its lien under its attachment, and to procure in one suit a determination of all the adverse and conflicting claims upon the attached property, and for an injunction and a receiver, averring that it was necessary for the protection of its lien that the attached property be held or sold for the benefit of all the lienors or claimants thereto. An order to show cause why a receiver should not be appointed having been made, an order was made temporarily enjoining the defendants from pursuing their actions in replevin, and the court appointed a receiver, two orders having been entered in respect thereto, and from these orders these appeals are taken.

It is urged upon the part of the appellants that the complaint does not disclose equity sufficient to authorize the relief granted by the order, and that multiplicity of suits is not alone a sufficient ground for the interposition of a court of equity, but^ that there must be some additional equity, of which the plaintiff, is unable to avail itself at law or which is a distinct ground of equitable cognisance, such an accident, mistake, fraud or discovery; and that in any event it must be shown that there is a common right at stake among the defendants or a common property involved in dispute.

Undoubtedly a part of this proposition is well founded, but the limitation of the interference of equity to cases of accident, mistake, fraud or discovery would seem to deprive that branch of jurisprudence of the most important part of its jurisdiction. And in the consideration of the questions presented upon this appeal it may be proper to call attention to the manner in which equitable interference has been called into existence by the necessities of the case; the cardinal principle being that the party had no adequate remedy at law, which is the foundation of all equitable interference.

In order to obviate many defects in proceedings at law, the remedy by interpleader was introduced into equity; but as it left many cases of hardship unprovided for, bills quia timet obtained which were essentially in their nature writs of prevention, and, therefore, instituted before the wrong has been or is actually being suffered. But as these did not afford relief, many cases where injury was being suffered for which the law afforded no adequate protection, as where courts of equity interposed to prevent waste or destruction or deterioration of property pendente lite or to prevent irreparable mischief, bills, of peace and writs of injunction were resorted to. The grounds upon which the jurisdiction of courts of equity, in proceedings of this character was founded arose from their ability to give a more complete and perfect remedy than is obtainable by law, in order to prevent irreparable mischief or to suppress oppressive and vexatious litigations. In fact, equity has always intervened where the law cannot afford adequate relief.

The question arises in the case at bar whether the plaintiff has brought itself within the jurisdiction of a court of equity by the facts developed upon the hearing of these motions.

It is urged that the plaintiff has no standing in court as against these parties seizing these goods under their replevin writs. But it was held in the case of the First Nat. Bank of Oswego v. Dunn, 97 N. Y., 159, that an execution creditor, if he meets with an obstruction to his levy, may, because of his general lien, proceed in equity, making all the rival claimants parties, and prevent, if need be, the transfer of the property by the plaintiff in replevin, avoid a multiplicity of suits and so determine in one action the whole controversy. In the case at bar the plaintiff had an actual lien upon the property, having levied thereon and being in possession of it Its levy is obstructed by the various claimants of this property as represented in the replevin suits, and in some cases different claimants claiming different portions of the same piece of property.

If these defendants are allowed to go on, a large portion of this property upon which the plaintiff has obtained its lien will be absolutely destroyed, and if it should finally succeed in the replevin actions it will have but a barren victory. Therefore it has brought this action in equity making all the rival claimants parties and claiming the right to prevent the transfer of the property by the plaintiffs in replevin, and also claiming to avoid a multiplicity of suits, precisely within the principle of the case cited.

In this action the rights of all the parties can be protected and the property or its proceeds preserved for the party who shall finally be decided to be entitled to the same. Without elaborating the propositions heretofore referred to, it seems from the facts disclosed by these papers that if there was ever a case in which a court of equity should intervene to prevent irreparable injury, it was under circumstances such as are disclosed in the case at bar.

The point made that the parties in the replevin suits are by this means deprived of their right to a trial by jury cannot have any force, because if they are entitled as matter of right to a trial by jury issues may be framed by which they may be able to have the benefit of that right. But we do not intend to intimate any opinion upon that subject because it has become familiar law that even a replevin suit may become an action in equity by an order of interpleader.

Upon the whole case, therefore, we are of opinion that it was a wise exercise of the discretion of the court to prevent the dissipation of this property and to take possession of the same itself until the determination of these rival claims and the ascertainment of the rights and interests of each.

It is claimed by some of the appellants that their actions were brought for the recovery of goods which remained in the original packages, or in the original piece, and which were not either manufactured or in process of manufacture at the time of the issuance of the writs. There may be a few instances of that kind, but there is no sufficient reason why one or two suits should be allowed to progress if all the others are to be enjoined.

The orders appealed from should therefore be affirmed, with $10 costs and disbursements.

Barrett, J., concurs.


text:
    The National Park Bank, Resp’t, v. Warren N. Goddard et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Receiver—Sale of perishable property.
    In an action to restrain the prosecution of replevin proceedings, and to determine claims to the property, in which a receiver had been appointed, it appeared that the property consisted of manufactured clothing, goods in the piece and goods in process of manufacture, portions of which were claimed by each of the defendants; that the season for the sale of such goods had nearly passed; that they would deteriorate if kept; that the goods cut up, if completed, would sell for more than .the cost of completion. Held, that it was proper for the court to direct the receiver to complete the manufacture and sell the same with the manufactured goods and hold the proceeds subject to the order of the court.
    Appeal from order directing the receiver appointed in this action to sell certain goods, etc.

      Gibson Putzel and Benno Loewy, for app’lts; George Zabriskie and Otto Horwitz, for resp’t.
   Van Brunt, P. J.

In an opinion handed down herewith the circumstances out of which this litigation arose and the receiver was appointed have been adverted to, and it is not necessary to repeat them here.

It appears from the papers that the receiver, upon obtaining possession of the goods, found that they consisted of manufactured clothing, goods in the piece and goods in process of manufacture; and that in respect to the manufactured goods portions of them only were claimed by the plaintiffs in replevin, and in other cases different plaintiffs claimed different portions of the same garments; that the season for the sale of summer clothing was nearly over, and that it was the best time of the year for the sale of winter clothing; that the cloth in piece would sell better within a short time than if held over the summer; that the goods were expensive to store and exposed to injury from dust, moths, etc., and would involve heavy expenses to keep them. The receiver had also ascertained that the insolvent firm had a method of keeping an accurate record of all the goods which they bought, by which they could be traced through the processes of manufacture into made up garments, and if they should be sold the identity of the proceeds would be preserved; and that some of the goods were cut out but not made up, and that they would sell for more than the expense of making them up if they should be completed, and that other goods were held by workmen under claim of lien for their labor. The receiver thereupon made an application to the court for instructions how he should proceed, and upon that motion various plaintiffs in the replevin suits appeared and opposed the motion. The court directed the receiver to sell the manufactured goods and hold the proceeds subject to the further order of the court, to complete the clothing in process of manufacture, to sell it and hold the proceeds subject to the order of the court, to store the piece goods, to settle in his discretion with workmen or others claiming liens, to keep by itself the proceeds of the sale of each lot of replevied goods, and to collect unpaid claims held by him as receiver due to the insolvent firm, and from this order this appeal is taken.

One of the points urged by the court below in opposition to the motion, and now before this court, is that the court below erred in assuming that the appointment of the receiver was authorized, while the papers used upon the motion show that such appointment was unauthorized by law and void. We have already reached the determination in the opinion adverted to, that under the circumstances brought to the attention of the court on the application for the appointment of a receiver it was necessary that the court should appoint a receiver in order to protect the interests of all the parties.

It is also urged that the receiver should not have been instructed to sell any part of the property in suit, for the reason that it appears that it could be duly ascertained who was absolutely entitled to each particular parcel of property held by him, and that course should have been adopted by the court which would have compelled the receiver to ascertain that fact, and that an order should then have been made restoring to each party such parcel of goods as belonged to him or them.

We are not aware of any circumstances under which such a duty is imposed upon an officer of the court. If the plaintiffs in replevin who are defendants in this action are entitled to any relief, it becomes necessary for them to show to what goods they are entitled, and then if they are entitled to the goods they will receive the proceeds of the sales thereof. The court was bound to keep possession of the property in order to protect the interests and rights of all parties, and as it is apparent that a sale was for the benefit of all if the court was to retain possession of the property there was no error in ordering such sale.

It is also urged that the order appealed from, in so far as it directs the unmanufactured merchandise to be stored and held subject to the order of the court, should be reversed because it perpetuates an apparent injustice which was initiated by the order appointing the receiver.

This point has already been covered by the opinion in the other case and proceeds upon the theory that certain plaintiffs in replevin are absolutely entitled to the possession of certain portions of this property because they are the only claimants. Until final judgment property taken in replevin is supposed tobe in the custody of the court. If the property has been delivered to the plaintiff in the action of replevin the judgment of the court in that action is that it be returned or in default thereof giving a money judgment.

All that the court has done in the appointment of a receiver is to appoint a custodian for this property pendente lite, and thus by the interposition of its equitable powers to prevent the injury which would result by refusing to exercise that power.

The order should be affirmed, with ten dollars costs and disbursements.

Barrett, J., concurs.


author: Learned, P. J.

text:
    Alice Wilsey, Resp’t, v. James Rooney, Sheriff, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Verdict—Motion to set aside.
    After the denial of a motion on the minutes for a new trial another judge has no power to set aside the verdict. To do so would practically be the hearing of an appeal from the denial.
    2. Replevin—Verdict.
    An action for the recovery of personal property in which no affidavit or requisition has been made and the facts required by §§ 1690, 1695, are not alleged, is not necessarily an action of replevin so as to require a verdict in the alternative, but a verdict for the value of the property may be rendered.
    Appeal from order denying motion to set aside a judgment entered upon a verdict.
    Action in replevin to recover possession of certain personal property belonging to plaintiff which it was alleged the defendant wrongfully took from her possession. The defendant by his answer admitted he was sheriff, denied the allegations of the complaint, and justified the taking under executions against the plaintiff’s husband.
    The jury returned a verdict for the plaintiff for $175 damages. A motion for a new trial was denied, and thereafter a motion was made before the county judge to set aside the judgment.

      Charles M. Barlow (Eugene Burlingame, of counsel), for app’lt; Galen R. Hitt, for resp’t.
   Learned, P. J.

This is an appeal from an order made by the county judge denying a motion made on affidavits to set aside a judgment upon a verdict in an action previously tried before another judge. The ground of the motion is not any irregularity; but is alleged error in the verdict. The question whether the verdict is erroneous must depend very largely upon what took place at the trial, upon what was charged by the court and what was excepted to, or not excepted to, by counsel. None of this is before us. The defendant had, at the close of the trial, made a motion for a new trial on the minutes, which had been denied. To have granted this present motion would have practically been the hearing of an appeal from that denial.

The defendant’s position is briefly that this was an action for a chattel; that in such an action the judgment must be for the value of the chattel if possession is not delivered. Code, § 1730.

The allegations in the complaint show equally a cause of action for conversion, and a cause of action to recover a chattel. The judgment demands possession. But where there is an answer the plaintiff may take any judgment consistent with the case made by him and within the issue. Code, § 1207. Therefore, there were allegations in the complaint on which plaintiff could have recovered damages.

This is specially provided in § 1718, which says that the plaintiff may recover the chattel or its value, though he has not required the sheriff to replevy it.

The previous section, 1717, requires the affidavit with the accompanying requisition to be made a part of the judgment-roll. It would seem then to be doubtful whether an action could be .said to be an action of replevin where no affidavit and requisition had been issued.

In this present case no affidavit and no requisition appear to Lave been made. And there is no proof of the facts required in §§ 1690 and 1695. They are not alleged in the complaint. We do not see, therefore, how the defendant can insist that this is “necessarily an action of replevin,” a phrase which, according to the compiler of the Code, is incorrect. Code, § 1689, note to the .article. And the compiler well says that the terms replevy and replevin should be confined to the proceedings whereby the officer takes possession of the property. If this is a correct statement, then it would seem that the actual instituting of these proceedings is necessary in order that the provisions in regard to replevin should apply. As the compiler remarks, “ It was entirely immaterial to the right of recovery whether any process to replevy the property had or had not been issued.”

It seems to us, therefore, if replevin proceedings had not been instituted, that there could be no objection to a recovery for the value of the property.

At any rate this order should be affirmed, with ten dollars costs and printing disbursements.

Landon and Mayham, JJ., concur.


author: Landon, J.

text:
    Erastus P. Backus, Sheriff, Resp’t, v. William H. Kimball, Ex’r, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Attachment—Action in aid of—Code Civ. Pbo., § 655, subd. 2.
    This action is brought by the sheriff, who holds attachments against one B., granted in actions commenced by publication, and in which B. did not appear, to reach a legacy in defendant’s hands payable to B., for the purpose of applying the same to the judgments to be obtained in such actions. Held, that the action was within the letter, but not within the spirit of § 655, subd. 2 of the Code, and hence was not authorized by it, and that the action was not necessary in aid of the attachment, as that could be levied on the legacy by service of a copy and notice.
    Appeal from an interlocutory judgment entered in St. Lawrence county upon an order overruling a demurrer to the complaint.
    The complaint sets forth the commencement of two actions in the supreme court by different plaintiffs against one Bigelow for the recovery of money upon contracts, the service of the summons in each case by, publication, and the non-appearance and default of the defendant; also, the devise of certain real estate of the value of $500 to the defendant in this action in trust and with power of sale to convert into money and pay to said Bigelow; the issuing of an attachment to the plaintiff in each of said two actions-. Judgment is demanded that this defendant pay the proceeds of said devised property to the plaintiff, to be applied in satisfaction of the judgments which may be obtained in the two actions.
    The defendant demurs to the complaint for insufficiency, in that it does not state facts sufficient to constitute a cause of action.

      N. L. Robinson, for app’lt; George C. Sawyer, for resp’t.
   Landon, J.

The complaint is within the letter of the statute. Section 655, Code Civ. Fro., was amended in 1889, by adding thereto, as follows:

“ 2. Where the summons was served without the state, or by publication, pursuant to an order obtained for that purpose, as prescribed in chap, fifth of this act; and where the defendant has not appeared in this action (otherwise than specially) but has made default and before entering final judgment, the sheriff may in aid of said, attachment maintain an action hgainst the attachment debtor, and any other person or persons, or against any other person or persons to compel the discovery of anything in action, or other property belonging to the attachmert debtor, and of any money, thing in action, or other property due to him, or held in trust "for him, or to prevent the transfer thereof, or the payment or delivery thereof, to him or any other person; and, the sheriff may, in aid of said attachment, also maintain any other action against the attachment debtor, and any other person or persons, or against any other person or persons, which may now be maintained by a judgment creditor in a court of equity, either before the return of an execution in aid thereof, or after the return of an execution unsatisfied. The judgment in any of the above mentioned actions must provide and direct that the said property shall be applied by the sheriff to the satisfaction of any judgment which the plaintiff may obtain in the attachment action.”

But the case stated in the complaint is not within the mischief the amendment was intended to remedy. The plaintiff could levy the attachment without the help of this new provision. Bigelow, the attachment debtor, holds a claim against this defendant for the legacy ; he can enforce the claim by action under § 1819 of the Code, or by proceedings before the surrogate under § 2717. This claim is therefore personal property incapable of manual delivery and can be attached under subd. 3 of § 649 by leaving with the defendant a certified copy of the warrant, with a notice showing that the legacy is the property attached. If there are any facts which would prevent, impair or defeat such a levy or make it inexpedient or impracticable, the complaint does not disclose them.

The purpose of the amendment was to provide a remedy where it was necessary and proper; not to invite or authorize an unnecessary action.

It had been held that an action could not be brought in aid of an attachment to reach property fraudulently transferred by the attachment debtor. Thurber v. Blanck, 50 N. Y., 80 ; Anthony v. Wood, 96 id., 180; Throop, etc., Co. v. Smith, 110 id., 83 ; 16 St. Rep., 831. It followed from this holding that where a non-resident, owning property in this state, fraudulently transferred it, and then was sued for money upon contract, by service of the summons without the state, or by publication, pursuant to an order, and he did not appear in the action, but made default, no jurisdiction was acquired. The person of the defendant was not brought within the jurisdiction of the court of this state, for the laws of the state cannot reach beyond its territorial limits. Freeman v. Alderson, 119 U. S., 185. The fraudulently transferred property could not be attached; the court had neither person nor thing within its power. Schwinger v. Hickok, 53 N. Y., 280; Bartlett v. Spicer, 75 id., 528. The amendment enables the court to establish the non-resident debtor’s title to the property and thereby to establish its jurisdiction of it. If the non-resident debtor holds the legal title, then jurisdiction of the property is acquired by levying the attachment by seizing it, or, if incapable of manual delivery, in the manner already pointed out.

The complaint states no facts constituting any equitable cause of action. The statute provides for an equitable action, but the provision is for those who have equities making the remedy appropriate ; not for those who have none. The law provided the plaintiff an ample remedy, and any action is needless. The plaintiff’s case is within the letter, but without the spirit of the statute, and thus without the statute itself. “ The letter killeth, while the spirit lreepeth alive.” Tracy v. Troy & Boston R. R. Co., 38 N. Y., 437.

The interlocutory judgment reversed, with.costs, and judgment directed for the defendant upon the demurrer, with costs, with the-usual leave to plaintiff to amend the complaint upon payment of costs.

Learned, P. J., and Mayham, J., concur.


author: Learned, P. J. Landon, J.

text:
    The People, Resp’ts, v. Peter Clark, Jr., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)
    Jurors—Disqualification—Relationship.
    A challenge for implied Mas is valid where the juror is a third cousin of the complainant. Third cousins are related to each other in the eighth, degree.
    Appeal by defendant from a judgment of the court of sessions, of Washington county affirming a judgment of conviction by the special sessions, founded upon the verdict of a jury, in the town of Hartford, said county, finding the defendant guilty of selling intoxicating cider without a license.
    The defendant upon impannellingthe jury in the special sessions challenged Walter Chapman “for implied bias.” Chapman was then sworn thereupon testified that he was related to the complainant, but was not nearer than third or fourth cousin, whereupon the court overruled the challenge and Chapman sat as one of the jurors. Section 377, Codé Crim. Pro., makes such challenge valid if the consanguinity or affinity between the complainant and person drawn as a juror is within the ninth degree.

      A. D. Arnold, for app’lt; Edgar Hull (W. Martin Jones, of counsel), for resp’ts.
   Learned, P. J.

A juror when called was challenged for implied bias. Code Criminal Procedure, § 377. Being sworn, he testified that he was related to the complainant, but was not nearer than third or fourth cousin.

Consanguinity with the complainant within the ninth degree is. a good ground ior challenge.

The children of brothers and sisters are first cousins to each-other, otherwise called cousins germon or simply cousins.

The children of first cousins are second cousins to each other.

The children of second cousins are third cousins to each other.

The child of a first cousin is a first cousin once removed to his father’s (or mother’s) cousin. So the child of a second cousin is a second cousin once removed to his father’s (or mother’s) cousin.

But the child of a first cousin is sometimes loosely called a second cousin to his father’s (or mother’s) cousin.

This is accurately stated in the Century Dictionary sub voce Cousin.

In the civil law first cousins were consobrini, consobrince; second cousins, sobrini, sobrina Dickson Manv.ale Latintatis. The son or daughter of a first cousin was proprior sobrino, proprior sobrina; nearer than a second cousin; the exact equivalent being a first cousin once removed. Just. Inst, by Sandars, III. 6, 5.

Third cousins then have a common great-great-grandfather. The mode of computation of degrees used by the civilians, not by the canonists, is to count from one person up to the common ancestor and down to the other. Of course the person from whom the count begins is not counted and he in whom it ends is. See 2 Blackstone’s Comm., page 207, note 6, and table of consanguinity. The rule given in § 46, Code of Civil Procedure, although differently expressed, is the same in result. It will be seen, therefore, that third cousins are in the eighth degree to each other.

For although as to inheritance the common law adopted the rule of the canon law, 2 Black. Comm., yet the rule of the civilians, prevailed in ecclesiastical law and in the matter of distribution of estates. Sweezey v. Willis, 1 Brad., 495.

Judgment and conviction reversed.

Mayham, J., concurs.

Landon, J.

Concurring in the opinion of the presiding justice, I desire to add that the recent provision of the Code of Civil Precedure, prescribing the method of computing the degrees of consanguinity and affinity of judges and jurors in civil cases, §§ 46, 1166, was doubtless intended to dispel an existing obscurity in that respect, and although it does not in terms apply to criminal cases, yet we may adopt a familiar rule applicable to remedial legislation, and extend its provisions to like cases within its spirit and intention, although not strictly within its letter, and thus-apply this method of computation to criminal cases. In this view my brethren concur. The judgment must be reversed. We-might order a new trial, Code Grim. Pro., §§ 764, 772, but we doubt whether it would be useful in this case.