author: McADAM, J.

text:
    Margaret K. Douglass v. Joseph Seiferd.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    1. Landlord and tenant—Term of lease.
    Where premises were hired “at the rate of” §35 a month, without specifying the term, the hiring was for an indefinite term.
    S. Same—Tenancy by the month—Implication.
    The tenancy was not by the month where the tenant paid one year’s rent in advance, and afterwards paid the succeeding six months’ rent at one time, though the payment of the year’s rent was made in acceptance of the landlord’s offer to allow interest on the advanced payment.
    3. Same—Surrender—Acceptance.
    It was not a surrender of leased premises that the tenant left the keys with the janitor, who does not appear to have been authorized to accept them, where the landlord promptly wrote the tenant that the keys would not be accepted as a surrender, and that the tenant would be held to the lease.

      4. District courts—Direction of verdict.
    Under Laws 1882, c. 410 (Consolidation Act), §§ 1371-1381, providing that the “ mode of conducting the trial” in district courts is the same as in courts of record, it is the duty of a judge of a district court to direct a verdict in all cases in which it would be the duty of the judge of a court of record to do so.
    5. Same—Verdict—Motion to set aside.
    The denial for supposed want of power of a motion made on the coming in of a verdict to set the verdict aside as against the law and the evidence did not bar a subsequent motion by the same party according to prescribed practice for the same relief.
    6. Statutes—Operation and effect.
    Laws 1896, o. 748, providing that a motion to set aside a verdict or to vacate or modify a judgment in the district court may be made for the causes specified in Code Civ. Proc. § 999, and declaring that the act shall take effect “ immediately,” applies to a case which was being tried on the day of its passage.
    Appeal from eleventh district court.
    Action by Margaret K. Douglass against Joseph Seiferd for rent. There was a judgment in favor of plaintiff, and defendant appeals.
    William Stanton (J. Philip Berg, of counsel), for appellant; A. M. & M. B. Maclay, for respondent.
   McADAM, J.

—The action was to recover $225 rent from November 1, 1895, to May 1, 1896, of the first flat in premises No. 327 East Eighty-Sixth Street, alleged in the complaint to have been let for one year from May 1, 1895, to May 1, 1896. The answer was a general denial, and pleaded as a separate defense that the tenant had vacated the premises and surrendered them to the landlord October 29, 1895. The issue contested at the trial was whether the hiring was by the month or by the year, it being conceded that if the hiring was by the year, and there was no effectual surrender, the plaintiff would he entitled to recover the amount claimed; if, on the other hand, the letting was a monthly one, or there had been a valid surrender, the defendant should prevail. It appeared by the evidence, without contradiction, that the defendant took possession of the premises in June, 1890, and occupied them continuously up'to about November 1, 1895, when he moved out. The husband of the plaintiff, who acted as her agent, testified that the hiring was by the year, while the defendant’s wife, who claims to have made the contract on his behalf, testified that the hiring was “ at the rate of ” $35 a month. Such a hiring, as applied to the relation of master and servant, has been considered an indefinite one (Martin v. Insurance Co., 148 N. Y. 117), and, if so construed with reference to a tenant, would not particularly specify the term.

In vew of the finding of the jury in favor of the defendant, it must he assumed that the premises were not let for the definite term of one year; and it becomes necessary to consider the effect of the statute providing that agreements for the occupation of land or tenements, in the city of New York, which shall not particularly specify the duration of such occupation, shall be deemed valid until the first day of May next after the possession under such agreement shall commence,” etc. 2 Rev. St. (9th ed.) p. 1818, § 1. By this act, unless a definite term was agreed upon, the letting would continue until the 1st of May following the time when possession was taken, and if the tenant remained in possession thereafter the yearly letting thus created would continue for another year. Haynes v. Aldrich, 133 N. Y. 287; 45 S. R. 243; Adams v. City of Cohoes, 127 N. Y. 175 ; 35 S. R. 678 ; Frank v. Railroad Co., 122 N. Y. 197, 218 ; 33 S. R. 235; Schuyler v. Smith, 51 N. Y. 309. ' The onus was therefore cast upon the defendant of proving that a specific time had been agreed upon, to' obviate the provision of the statute. To constitute a tenancy by the month, a special agreement to that effect should be made, or the tenancy must be implied from the manner in ■which the rent is paid; for where it is paid by the week, month, quarter, or year, a weekly, monthly, quarterly, or yearly hiring is presumed, according to the circumstances. 1 Wood, Landl. & Ten. (2d ed.) pp. 91, 92,126; Wilson v. Taylor, 8 Daly, 253; Woodf. Landl. & Ten. (Am. Notes by Webster) 225. Where it appears that there is an annual rent reserved, and the payment is to be made by the quarter or month or week, then the renting is a yearly letting, without regard to the periods of payment. But where there is no such letting, and there is no evidence hut the mere fact of payment at intervals of a week or month, the implication is that the renting is a monthly or weekly one, just as the payment is monthly or weekly. Steffens v. Earl, 40 N. J. Law, at pages 137, 138, citing Doe v. Raffan, 6 Esp. 4; Anderson v. Prindle, 23 Wend. 636; Witt v. Mayor, etc., of New York, 6 Rob. (N. Y.) 441. If the rent during the term of the tenant’s occupancy had been paid monthly, there might be room for the implication that the hiring was a monthly one, as in Wilson v. Taylor and Steffens v. Earl, supra. But it is undisputed that the tenant paid one year’s rent in advance from May 1, 1892, to May 1, 1893, and in May, 1895, paid six months’ rent at one time, up to November 1, 1895, and these facts destroy the, implication of a monthly hiring. The tenant endeavored to explain the payment of the year’s rent by the statement that the landlord’s agent said the landlord was short of money, that rents wmre coming in slowly, that there were many vacancies in the house, and that if the tenant paid the year’s rent in advance the landlord would allow interest on the advanced payment. But this feature does not alter the controlling fact that the tenant actually paid one year’s rent in advance, and subsequently six months’ rent in advance, which acts would have precluded the landlord from dispossessing the defendant as a monthly tenant before the expiration of the year in one case, and the six months in the other; and, as the relations between the parties were reciprocal, the defendant could not disable the landlord from asserting that the tenancy was for less than a year, and still retain the right to present that claim in defense in case the landlord insisted upon bis rights.

The surrender pleaded was not established, because not followed by acceptance on part of the landlord. The keys were left with the janitress, and there is no evidence of any power on her part to accept them ; and the landlord promptly dis-affirmed any authority upon the part of the janitress by writing the tenant that the keys would not be accepted as a surrender, and that she would hold the tenant for the rent until the end of the year. Ryan v. Jones, 2 Misc. Rep. 65 ; 20 N. Y. Supp. 842; Spies v. Voss (Com. Pl.), 9 N. Y. Supp. 532; Johnson v. Doll, 11 Misc. Rep. 345; 65 S. R. 275; Wilson v. Lester, 64 Barb. 431.

Under these- circumstances, it seems clear to us that the hiring was by the year, that there was no valid surrender, and that the landlord was entitled to a verdict. c

It cannot be contended that the plaintiff consented to the submission of the cause to the jury (Sullivan v. Brooks, 8 Misc. Rep. 532 ; 59 S. R. 273 ; Haviland v. Price, 6 Misc. Rep. 372; 56 S. R. 402); for she requested the justice to direct a verdict in her favor, which was declined upon the ground of want of power; the justice evidently basing his decision upon Horn v. Prior (Com. Pl.), 5 R. Y. Supp. 955, in which the general term of the common pleas, following Blumburg v. Briggs, 10 N. Y. St. Rep. 242, held that a district court justice had no power to direct a verdict. The Blumburg decision was rendered on appeal from the municipal court of Buffalo,—an inferior tribunal, not of record (Code, § 3), created in 1880 (Laws, 1880, c. 344); and the statute applicable to jury trials therein is that relating to justices’ courts, contained' in sections 2990, 2995, and 3006 of the Code. The act creating the court provides (section 5) that £i said court shall have and possess the same powers and jurisdiction as are now possessed by justices of the peace in the city of Buffalo,” except as otherwise provided. The superior court of Buffalo (the appellate court which decided the Blumburg Case) said:

“ This statute confers no authority upon the municipal court to direct verdicts, if no such authority or power was vested in the justice of the peace of the city of Buffalo; and as that court had no such power it would seem clear that the only conclusion to be reached is that the judge below erred in taking away from the jury the question of the fact, and directing a verdict in favor of the plaintiff.”

The court reviews at length the different Code provisions applicable to jury trials in justices’ courts (sections 2990, 2995, 2999, 3006), not one of which concerns the district courts, in regard to which special provision is made by sections 1371--1381 of the consolidation act (Laws 1882, c. 410); section -1381 expressly providing that “ the swearing of the jury, and mode of conducting the trial, are the same in these courts as they are in courts of record.” The Blumburg decision has therefore not the slightest relevancy to the provisions of the consolidation act (particularly section 1381, referred to), for these-are essentially unlike those applicable to justices’ courts in other portions of the state. The term “ mode,” as used in section 1381, supra, means the customary manner; prevailing •style; fashion (Cent. Diet.); the manner in which a thing is done; as the mode of proceeding (And. Law Diet.),—and is applicable to every step taken in the cause. It indicates the progressive course of business from the commencement to its termination (15 Am. & Eng. Enc. Law, 699), and is broad enough to authorize the justice presiding at a jury trial to direct a verdict in any cause in which a justice presiding thereat in a court of record might direct one, and the power is governed by ' the same rules (Baylies, Trial Prac. 228). It follows that where it would be the duty of a judge of a court of record to direct a verdict the same duty devolves upon a district court justice. Hence the request of- the plaintiff should, upon the facts presented, have been granted. The justice, however, left it to the jury to determine the question whether the defendant was a yearly or monthly tenant, and the jury decided that question of law (for it was nothing else) on the evidence in favor of the defendant. The plaintiff promptly moved to set the verdict aside as against the evidence and law, but the justice declined to grant the motion for want of power ; being at the time unaware of the fact that the legislature on the day of the trial, May 20,1896, passed an act providing that:

“ A motion to set aside the verdict of a jury and vacate or modify a judgment rendered in an action thereon in the said district courts, or to vacate or modify any judgment rendered upon a, trial by the court without a jury, may Be made for the causes specified in section 999 of the Code of Civil Procedure. Notice of such motion of not less than five days nor more than eight days shall be given to the adverse party or his attorney, within five days after the rendition of the verdict, or the entry of the judgment, and if such motion be granted, the justice who presided at the trial shall make an order setting aside the verdict or vacating the judgment, and awarding a new trial and setting the cause down for trial for a time to be specified in the order, or modifying the judgment as the case may require. An order of a justice opening a default and setting aside, vacating, or modifying a judgment entered thereon, or an order setting aside the verdict of a jury and vacating or modifying a judgment entered thereon, or an order vacating or modifying a judgment rendered by a justice without a jury, shall recite and contain the grounds for the order, and from the order an appeal shall lie as from a judgment in said court.” (Laws 1896, c. 748.)

Upon discovering the existence of this act the plaintiff, following the practice therein laid down, moved to set aside the verdict and for a new trial. The court on hearing the motion f ranted the application, set the verdict aside, and put the cause own for trial, and from that order this appeal is taken. The denial of the motion on the coming in of the verdict, for supposed want of power, did not take away the plaintiff’s right to move according to prescribed practice for the same relief. Schmidt v. Cohn, 12 Daly, 134. Counsel for the defendant urges that the justice had no power to make the order, upon the ground that the act only applied to cases tried subsequent to its passage. There can be no doubt that the statute became a law on the day of its passage, Hay 20, 1896, the day on which the cause was tried, for it expressly provides (section 2), This act shall take effect immediately.” In re Miller, 110 N. Y., at page 18 S. R. 226. The rule is a familiar one that the law will not take notice of parts of a day, and to assume that this act was inapplicable the court woulcl be compelled to find that it went into effect on the same day, but at an hour subsequent to the trial of the action. We cannot so decide. In Re Welman, 20 Vt. 653, it was held that a statute which takes effect from and after its passage goes into operation the day on which it is approved, and has relation to the first moment of that day,-^-a construction by fiction of law which is operative whenever it will promote justice. See, also, In re Richardson, 2 Story, 571; Fed. Cas. Flo. 11,777. The statute affected the remedy, and applied to all proceedings pending at the time (Wade, Eetro. Laws, § 218 ; Southwick v. Southwick, 49 N. Y. 510 ; Ryan v. Waule, 63 N. Y. 57, and kindred cases), and, being remedial, must be construed to advance the remedy (Sedg. St. & Const. Law, 2d ed., Pomeroy’s Flotes, 308). This principle was applied in Dickerson v. Cook, 16 Barb. 509, to the extent of holding that the 292d section of the Code of 1849, authorizing the examination of a judgment debtor after the return of an execution against him unsatisfied applied to cases where the execution was issued before the Code took effect, as well as to those where the execution had been issued since.

The verdict of the jury was contrary to law and the evidence, and was properly set aside and a new trial awarded; and the justice had power to make the order appealed from,, which must be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Simon Rothschild v. Rio Grande W. Ry. Co.
    (Supreme Court, Appellate Division, First Department.
    October 23, 1896.)
    Appeal—Practice—Filing case.
    On appellant’s failure to have the case ordered on file within 10 days-after it has been settled, as required by Gen. Frac. Buies No. 35, under penalty of the case being deemed abandoned, the case cannot be ordered filed until his default has been set aside.

      Action by Simon Rothschild against the Rio Grande Western Railway Company. There was a judgment for plaintiff, and defendant appeals.
    George Hoadly, for the motion; C. A. Jackson, opposed.
   PER CURIAM.

—Upon reference to rule 35 of the general rules of practice, it will be seen that at the time that the appellant’s attorney procured the order to file the case from the judge who settled the same his right so to do had become lost because of his failure to have the case ordered on file within 10 days after it had been settled, the rule providing that, in case this is not done, the case shall be deemed abandoned, unless the time is extended by order. It was, therefore, the duty of the attorney, finding that he could not get his case filed within the 10 days provided by the rule, to have procured an extension of time by order; and his practice was entirely irregular-after the expiration of these 10 days in having his case signed and filed, as the case had, by operation of the rule, been abandoned. Before any action could be taken toward the filing of the case, it was necessary that this default should be opened, the judge trying the case having no right to order on file a case which, by operation of the law, has been abandoned. In cases of this description a compliance with the law seems to be considered unnecessary. But it will be observed that the default operates as an abandonment of the case, and no further proceedings towards the filing of the case can be taken except upon the opening of this default. The appellant in this case seems to have misapprehended his rights, as many other appellants appear to do, and before he can have any standing in court upon his appeal founded on a case it is necessary that he should be relieved from this default, and this should be done upon a motion to the court below. There seeming to be so general a misapprehension of the force of this rule among members of the bar, this court has not deemed it proper, under the circumstances, to grant the motion to dismiss the appeal, but think that the appellant should have an opportunity to be relieved from his default, and get his case regularly filed.

The motion to dismiss should, therefore, be denied upon payment of $10 costs of this motion.


author: GREEbT, J.

text:
    Buffalo Loan, Trust & Safe-Deposit Co., v. Dorothea Leonard et al.

    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    1. Residuary legatees—Liability to refund.
    An administrator with the will annexed, who was also guardian of infant legatees, sued the residuary legatee for payments wrongfully made to him by the executor of the will without first satisfying the legacies to the infants. The guardian of the infants was made a defendant on the motion of the residuary legatee, who did not dispute his liability to the infants, but claimed that by the negligence of the guardian the executor had been permitted to waste the estate, and that, therefore, the guardian should be required to pay such legacies. Held, that the residuary legatee was entitled, to avoid unnecessary litigation, to have the case considered as though the guardian was plaintiff and the residuary legatee sole defendant, so that the question, of the guardian’s liability for negligence might be adjudicated.
    2. Same—Negligence of guardian of infant legatees.
    A guardian of infant legatees, who negligently suffers the executor to waste the entire estate in his hands, is not liable to the residuary legatee, to whom the executor had made payments, and who was compelled to refund therefrom the amount of the legacies to the infants.
    3. Guardian and ward—Right to sue—Negligence of guardian.
    The guardian of infant legatees, who negligently suffers the executor to waste the entire estate in his hands, is not thereby precluded from recovering the amount of the legacies from the residuary legatee, to whom the executor had made payments.
    Appeal from judgment on report of referee.
    Action by the Buffalo Loan, Trust & Safe-Deposit Company, as administrator with the will annexed of Dorothea Leonard, deceased, against John Leonard’and another. There was a judgment in favor of plaintiff, and defendant Leonard appeals.
    This action as originally brought was by plaintiff against John Leonard as sole defendant. After a partial hearing of the case before the referee, a motion was made at special term to require the plaintiff to make the guardian of the infants, Herman A. Euf and Margaret A. Euf, a party defendant to the action, so that all parties interested would be before the court. Thereupon a supplementary complaint was served, making the infants’ guardian (which, as administrator, is also the plaintiff) a party defendant. Substantially the same facts were therein alleged as in the original complaint. Defendant Leonard, in his answers to the original and supplemental complaint, among other things alleged that the legacies sought to be recovered in this action were lost solely by and through the carelessness, negligence, and inattention to duty of the guardian of said infants, in not taking proper steps to reduce their estate to possession and to properly invest it, and in permitting it to remain unsecured in the hands of Louis K. Purviance, who gave no security for the faithful performance of his duty as executor, and that the loss should fall upon the recalcitrant guardian, and not upon the residuary legatee. The facts, as found by the referee and as conceded are these: Dorothea Leonard" departed this life in 1890, leaving a last will and testament, which was admitted to probate by the surrogate’s court of Erie County May 1,1890. In and by that will a legacy of $2,000 each was given to Margaret A. Ruf and Herman A. Ruf. Louis K. Purviance was appointed sole executor of said will, qualified, and continued to act as such until July 31, 1895. He gave no security for the faithful discharge of his duties as such executor. On March 14, 1890, the plaintiff in this action was appointed by the surrogate’s court of Erie County guardian of the estates of said infants, and has ever since remained such. Prior to March 5, 1891, said Purviance, as such executor, converted the estate of deceased into money, and received more than sufficient to pay the legacies of said infants in full and leave a residue for defendant Leonard more than the amount he has received from said estate. Said Purviance was financially responsible from the time of his appointment up to Hovember 14, 1894, on which day, in a proceeding which the defendant Leonard, as residuary legatee, had instituted to compel said executor to account before the surrogate, said guardian caused to be entered in said surrogate’s court a decree requiring said Purviance, as executor, to pay to the guardian of said infants $3,606, in full for their legacies,, on or before January 1, 1895. ' Since that date said Purviance has been and is wholly insolvent; has not accounted for, or paid to the parties entitled thereto, the moneys of said estate, but absconded to parts unknown. Prior to the year 1894 said Purviance paid over to defendant Leonard, as residuary legatee, a sum exceeding $5,000, but not the whole amount which he would have been entitled to receive had said executor paid said legacies in full and accounted for the balance of said estate. From the time of the appointment of said guardian, March 14, 1890, to Rovember 14, 1894, said guardian took no proceedings to collect the legacies due to said infants from the estate of Dorothea Leonard, deceased, or to prevent said legacies remaining in the custody and control of said executor. During that time said executor paid to said guardian divers sums upon said legacies, amounting to the sum of $675. Since the 14th day of Hovember, 1894, said infants have received from said estate the sum of $150. On July 31, 1895, letters testamentary to said Purviance were revoked by the surrogate’s court, and this plaintiff was appointed administrator with the will annexed, of said estate, in his place. Upon these facts the referee found, as conclusions of law, that the plaintiff was entitled to judgment against the defendant Leonard for $3,591.35 and costs, and upon his report judgment was entered April 4, 1896, in favor of plaintiff against defendant 1 eonard for that sum, together with $109.67 costs. Exceptions to the conclusions of law only were properly taken, and this appeal is from that judgment.
    George W. Cothran, for appellant; Wallace Thayer, for respondent.
   GREEbT, J.

—Itis conceded by appellant’s attorney that, as between the specific legatees and the residuary legatees under this will, the specific legatees are entitled to receive their legacies in full before the residuary legatee is entitled to anything, and that as between the infants and the appellant, Leonard, the infants must be protected. TJpon the conceded facts and the concession thus made by the appellant’s counsel, this situation confronts us: The specific legatees under this will have not received all of their legacies, and are entitled to receive the unpaid portions thereof. The appellant, Leonard, as residuary legatee, has received from the executor over §5,000, and more than the unpaid balance of the infants’ legacies. The executor is insolvent, and prima facie the infants are entitled to recover that balance from the appellant. It is conceded that the moneys paid by the executor to this residuary legatee were, under the circumstances of this case, wholly unauthorized. It becomes the duty of plaintiff, as substituted trustee, to recover the amount of such unauthorized payments, and to distribute those moneys according to the terms of the will and the provisions of the law relative to the distribution of this estate. The referee has found that plaintiff is entitled to the payment by the residuary legatee of the amount necessary to pay to these infants the unpaid balance of their legacies. The facts as found, and the law governing the ' case, are conceded to entitle the plaintiff to recover; so that, if we go no further in the consideration of the case, this court will be justified in affirming the judgment entered in accordance with those facts and concessions.

The defendant, John Leonard, however, claims that, as the guardian of the infants has been made a party to this action, the rights of the parties should be considered and fixed, in order that unnecessary litigation may be avoided, and that we should consider this case as though the guardian of the infants was the plaintiff and John Leonard sole defendant, and the action had been brought in behalf of the infants to compel payment to them by Leonard of the balance of the infants’ legacies. We think it reasonable and proper, as all these parties are before the court, to so consider the case. The defendant claims that the guardian of the infant legatees is not entitled to recover of him the balance remaining unpaid of the legacies to these infants, for the reason, as defendant claims, the guardian of the infants has been negligent in the performance of its duties towards its wards, and urges that such negligence is shown in the fact that the executor was not called to an accounting by the guardian until about four years after the appointment and qualification of such executor, and that by reason of that fact the executor was thus allowed to commit a devastavit upon the estate, and that thereafter such executor became irresponsible, thus rendering it impossible to collect the amount due the infants from the estate in the hands of the executor. The difficulty with this proposition is apparent. Defendant concedes that he is liable to the infants; that, as between him and them, they should be protected. But the infants are precluded by reason of their infancy from bringing, the action in their own names. They therefore are compelled to act through their representative appointed by the court to protect their interests. Negligence or fraud on the part of the general guardian is not imputable to these infants. The infants themselves have committed' no act of negligence, and they are therefore entitled, in an action brought for that purpose, to a decree against the defendant, compelling him to return to them, through their representative, an amount sufficient to fulfill the bequests of the will relating to them. The defendant cannot complain, as he concedes that they are entitled to protection as against him.

The defendant further urges, however, that this appeal should be disposed of the same as though the guardian of the infants was individually made a party to this action. The guardian is not individually a party to the action, and we have no authority to make it such. It is proper, and may be useful, to consider the question raised by the defendant, to the effect that the guardian of these infants has been negligent, and that, therefore, the defendant should not be compelled to repay these moneys, but that the loss should fall upon the guardian, by reason of its negligence. The specific legatees were entitled to be paid out of the funds of the estate before any portion thereof should be paid to the residuary legatee. The latter was entitled only to the gleanings of tile estate after the payment of all debts and the specific legacies. This the defendant knew at the time he received these moneys. lie took the amount bequeathed to him subject to such payments, and subject, too, to any fraud or negligence upon the part of the executor. The amount to which this residuary legatee was entitled could not be ascertained until the estate had been administered. The testatrix herself, at the time of making the will, could not have known the exact amount which, under the terms of the will, was bequeathed to John Leonard. . The legacies of these infants were definite and fixed. The amount to which this defendant was entitled was indefinite and uncertain. The residuary legatee could take nothing but the residue after payment of the debts and specific legacies. The executor paid to the residuary legatee moneys applicable to the payment of the specific legatees. He paid those moneys before making any provision for or paying these specific legatees the amount named in the will as their legacies. The moment he did this, the executor committed a breach of trust. These moneys were received by the residuary legatee tainted with such breach of trust. As we have seen" the specific legatees knew the amount to which they were entitled by the terms of the will. The residuary legatee was ignorant of what the residuum was, or whether there would be a residuum. Before the payment was made to him, he took no steps to ascertain whether there was any such residuum, and, if any, the amount thereof. He knew at that time that until both the debts and specific legacies were paid there was no residue ; that the residue to which he was entitled had been given expressly subject to the prior payment of these legacies and of debts of the testatrix. Under these circumstances he received these moneys. It seems to me that it was the plain duty of this defendant, before receiving that money, to ascertain whether the conditions under which the money had been bequeathed to him had been performed by the trustee; whether all the debts of the testatrix had been paid; whether all the legacies had been satisfied,- and the trusts of the will performed; and whether the executor then had a right to make the application of these moneys to the residuary legatee. Failing to do this, he received those moneys subject to the future failure or negligence of the executor to fulfill the terms of his trust, and he received those moneys subject to any future devastavit by the executor. It appears clear to me, therefore, that this defendant has no cause of action against the guardian individually for negligence in the administration of its trust. The argument of defendant as to the laches of the guardian is, it seems to me, precluded by the fact that the defendant himself might have instituted proceedings against the executor, to compel pay-, ments by him under the terms of the will, and thus fixed and established the amount of the residuum, to which alone this defendant was entitled. As between the trust company,as guardian, and these infants, the relation of guardian and ward exists, and by reason of such relation the former is re^ quired to exercise a proper degree of care in the performance of its duties. The omission to act in such capacity as a reasonably prudent man, guided by those considerations which or: dinarily regulate the conduct of human affairs, would do, or the commission of such acts as a reasonably prudent man would not do, or absence of care on its part, under the circumstances, would constitute negligence, according to the established and accepted definition of that term. The violation of such care and caution, enjoined upon it in the administration of its duties as such guardian, would furnish its wards cause for complaint and grounds for an action for damages in their favor against it individually; but because this guardian was negligent, and because, by reason thereof, it is liable individually to itk wards for such negligence, it does not necessarily follow that it would be liable to this defendant for that negligence. It owed no duty or obligation to him. Its duty was to its wards. That duty was relative, not absolute, and has no existence between it and this defendant; and between them there can be no such thing as negligence, in the legal sense of the term. Further, we cannot see that what was done by this guardian was negligence on its part. The executor Avas selected by the testatrix as a person to Avhom she trusted her entire estate, and to Avhom she looked for its just and proper distribution. From time to time, after his qualification as executor, he paid to the guardian of these infants various amounts upon their legacies. It appears that down to the 14th day of November, 1894, the executor Avas entirely solvent. On the last-named date, in proceedings instituted by this defendant against the executor, a decree Avas made fixing the amount to A\rhich the infant legatees Avere entitled, and also declaring the amount of the residuary estate. This was the first time the amount of the residuum Avas fixed. By such decree the executor was adjudged to pay over to the parties named therein the amounts to which they Avere entitled, on or before the 1st day of January folioaving. On or about that date the executor absconded, and there are no funds applicable to the payment of the amounts decreed to be paid by the executor. Now it is claimed on behalf of the defendant that this guardian Avas negligent in not previously forcing the executor to make payment of the infants’ legacies, and that, if it had acted promptly and obtained such a decree, its Avards would have received the amount to Avhich they Avere entitled. This does not folloAv, as it seems to me, because we find the executor absconding when the time arrives for the fulfillment of the terms of the decree Avhich Avas made against him. Non constat but that if the guardian had procured a decree against this executor preceding the time Avhen it was made, or immediately folloAving the time when the payment of the legacies could have been enforced, the executor may have avoided the fulfillment of that decree in the same manner as he avoided the decree which Avas entered against him. It appears to me, therefore, that the plaintiff is entitled to recover from this defendant the moneys paid to him, to the extent necessary to pay over to these infants the balance of their legacies, as there are no other claims against the estate of Dorothea Leonard except the claims of the infants and the appellant Leonard. It seems to me also that, viewing the case as Ave have, as though the guardian of the infants was the sole plaintiff and this defendant the sole defendant, the plaintiff Avould be entitled to a recovery to the same extent.

The judgment herein should be affirmed, with costs

Judgment affirmed, Avith costs.

All concur.


author: GREEN, J.

text:
    James V. Bigelow et al. v. Harry A. Goble et al.

    (Supreme Court, Appellate Division, Fourth Department.
    October 16, 1896.)
    1. Chattel mortgages—Bight of mortgagee to possession.
    A mortgagee may recover the value of the mortgaged chattels from a purchaser thereof at a sale under execution against the husband of the mortgagor, without her consent, where the mortgage authorized the mortgagee to take possession if he should at any time deem himself unsafe.
    3. Same—Amount of recovery.
    The mortgagee in such case may recover the full value of the chattels, though it exceeds the amount due on the mortgage.
    5. Pleading—Amendment.
    In an action by a mortgagee to recover possession of the mortgaged-chattels, the answer cannot be amended, at the close of the evidence, so as to allege that the mortgage was fraudulent in its inception, where there was no evidence that the mortgagor owed any money when she executed the mortgage which was given to secure a debt owing by her husband.
    Appeal from circuit court, Tates County.
    Action by James V. Bigelow and another against Harry A. Goble and others to recover the value of certain chattels which defendants purchased at a sale under an execution against George W. Teeter, and to the possession of which plaintiffs claimed to have been entitled under a chattel mortgage executed by said George W. Teeter and Delphine Teeter, bis wife. From an order denying a motion for a new trial, made on the minutes after a verdict had been rendered in favor of defendants for $24, plaintiffs appeal.
    M. A. Leary, for appellants ; D. A. Marsh, for respondents.
   GREEN, J.

—This action was brought to recover of the defendants the value of a pair of horses, a lumber wagon, and a double harness, alleged to have been wrongfully withheld by the defendants from the plaintiffs. On the 8th day of December, 1894, George W. Teeter and Delphine Teeter,‘his wife, for the purpose of securing an indebtedness • of $235, owing by George W. Teeter to Lorenzo Bartholomew, duly executed and delivered to him a chattel mortgage upon certain property, including the property for the value of which this action is brought, payable, with interest, one year from its date. The mortgage was duly filed in the proper office December 12, 1894. January 3, 1895, the mortgagee assigned the mortgage to the plaintiffs for the consideration of $225, which was duly paid. The consideration expressed in the mortgage was $350, which was over $100 more than was owing by George W. Teeter to Bartholomew. Bartholomew claims that the extra amount ivas inserted at the request of Mrs. Teeter, and for -that reason there was included in the mortgage property __ belonging to her, which is the property in suit. Bartholomew claims that it was agreed, if Mrs. Teeter should purchase some real property which she had in view, he would loan her $100, and exchange the chattel mortgage for a real-estate mortgage on the place to be purchased. This was never done. It is claimed on behalf of defendants and by the Teeters, who testified in the action, that the extra $100 was added to the consideration of the mortgage, and the property belonging to Mrs. Teeter was included in the mortgaged property, for the purpose of protecting the same for Mrs. Teeter against her creditors. After the assignment of the mortgage by Bartholomew to plaintiffs, one Ira Raplee recovered a judgment against George W. Teeter. Upon that judgment an execution was issued to the sheriff, and by virtue thereof he levied upon the property mentioned in the complaint, and the defendants became the purchasers at that sale. Before this action Avas commenced, a demand of this property Avas duly made upon the defendants, AA’hich was refused, and this action Avas brought.

The defendants, in their answer, allege as a defense and justification that the amount secured by the mortgage has been fully paid; that they are the oAvners of this property by virtue of the purchase thereof at the sheriff’s sale of the same; and, further, that the mortgage Avas given for more than the amount George W. Teeter OAved Bartholomew. They further allege in their ansAver that before the commencement of this action “ The said Delphine Teeter, mentioned in said complaint as one of the mortgagors, Avho, it is alleged in said complaint, with said George Teeter, mortgaged said team and said harness to one I. S. BartholomeAV, said plaintiffs’ assignor, had brought an action in the supreme court against Washington D. Hayes (who was the deputy sheriff wholeviecl upon said property by virtue of the execution on the judgment obtained by Raplee against George W. Teeter) for the recovery of the value of said team and harness and other chattels, and that at the time of the beginning of this action the same was pending undetermined.” It appears from the evidence, and is undisputed, that Delphine Teeter, at the time of executing the mortgage with her husband to BartholomeAV, was the OAvner of the property for the value of which this action is brought. It is undisputed, too, that at the time of the sale of this property by the sheriff upon execution issued upon the judgment against George W. Teeter the chattel mortgage was on file in the proper office, as provided by statute, and there was nothing upon the files of said office to show that the same had been paid, and nothing to show but that the same was a valid and existing lien at that time upon the property described therein. It appears also from the ansAver of these defendants that Delphine Teeter claimed to be the owner of that property at the time of its sale by the sheriff, as she instituted an action in the supreme court against the officer making the sale, and claimed therein that she Avas the OAvner of the property, and had been unlawfully depriAred of the same. The defendants. claimed to be the owners of, and entitled to the possession of, this property, by virtue of the purchase made at the sale thereof by the sheriff under the execution issued upon the judgment against George W. Teeter. They were not, and did not pretend to be, creditors of Delphine Teeter. In fact, there is no evidence in the record which shows that Delphine Teeter had any creditors. Upon the trial, the judgment roll in that action, the execution issued thereon, and evidence of the levy and sale, were admitted by the learned trial justice, under the objection and exception of plaintiffs. The plaintiffs insisted that the judgment of Eaplee against Teeter, the issuing of the execution, the levying upon Mrs. Teeter’s property by virtue thereof, and the purchase at the sale of such property by these defendants, was no defense to this action. That question was fairly raised upon the trial, and the learned trial justice decided adversely to the contention of the plaintiffs. We think this, was error on the part of the learned trial justice. He charged the jury to the effect that, so far as the creditors of the husband were concerned, they would have a right to take possession of this property ; “ and it seems that a levy was made upon the property to satisfy his debt; and, if Mrs. Teeter saw fit to allow that property to be taken and sold to satisfy his debt, I charge you, as matter of law, that these plaintiffs cannot question that transaction.” Again, upon the same question, he uses this language: I charge you, as matter of law, if he made the levy upon this team in question, which was in possession of Mr. Teeter and his wife, and she saw fit to let that team be sold to satisfy his debt, no person can question it except herself. These plaintiffs are not in a position to question it.” A careful examination of the evidence and of this record fails to disclose anything tending to show that Mrs. Teeter consented to this levy upon the property, or that she turned the same out in satisfaction of the judgment, or that she in any way acquiesced in any of the acts of the sheriff concerning that property. On the other hand, it appears from the answer of these defendants that she objected to the same, and promptly brought a suit against the officer who made the sale for the recovery of the value of the property, and that action was pending undetermined at the time of the commencement of this action. This appeared at the very threshold of this action, and no evidence was given upon the trial changing such situation or attitude of the parties interested in this property. The plaintiffs, after such sale, commenced this action, claiming to be the owners of the property by virtue of a chattel mortgage held by them upon the same, and entitled to the possession thereof by virtue of the clause therein which provides that, if they shall at any time deem themselves unsafe, it -would be lawful for them to take possession of the property, and to sell the same at public or private sale, previous to the time therein mentioned for the payment of the debt. In their complaint they allege that they did deem themselves unsafe, and elected to take advantage of such clause, and to enforce the payment of the amount secured by said mortgage. The property in question had been transferred into the possession of these defendants, and they claimed to be the owners thereof, and entitled to the possession of the same. The plaintiffs were unable to obtain the possession of the property upon demand of these defendants. It had passed from the possession of their mortgagor. The defendants had no claim against Delphine Teeter, and no process was in the hands of the sheriff, authorizing him to levy upon the property, or to pass the legal title thereof to any person who should purchase from him. These plaintiffs were the owners of this mortgage. The property of Mrs. Teeter, which had bean transferred into the possession of these defendants, was covered by that mortgage. The plaintiffs saw the property passing from the possession of their mortgagor, and, under the circumstances, they clearly had a right to question that transfer ; but, as we have seen, the acts of the sheriff were not acquiesced in by Mrs. Teeter, and therefore there was no basis for the submission of that question to the jury.

It is claimed by these defendants also, that the mortgage was fraudulent in its inception, and evidence was given which they claim tends to substantiate that position. That the mortgage was fraudulent at its inception was not alleged in the answer. At the close of the evidence, however, the court, under objection by plaintiffs’ counsel, allowed the defendants to amend their answer to conform with evidence in the -case upon the question of fraud. The plaintiffs excepted to the allowance of the amendment. We are of the opinion that this ruling was error. It ivas claimed by the defendants that the evidence of plaintiffs disclosed that at the time of the inception of the mortgage the consideration of the mortgage was expressed as the sum of $350, and that this was $100 more than the debt of George W. Teeter, which it was the original intention of the parties to secure by this chattel mortgage; and that it appears from the testimony of defendants’ witnesses that the mortgagee and Delphine Teeter agreed that her property should be included in the mortgage, and the $100 added to the consideration thereof, for the purpose of covering the property of Mrs. Teeter, so that the same could not be reached by her creditors. It is claimed, therefore, that this mortgage was fraudulent, so far as the property of Delphine Teeter is concerned, because it was given and taken with the intent to defeat, defraud, and delay the creditors of Mrs. Teeter in the collection of their debts. The difficulty with this position is that nowhere in the evidence is it disclosed that Delphine Teeter owed a dollar or had any creditors a-t the time of the execution of this mortgage,and therefore the claim that this mortgage was fraudulent utterly fails.

The defendants were undoubtedly entitled to show in the trial of the action that the amount secured by this mortgage had been fully paid. In that event these plaintiffs would have Lad no title to this property, and would not have been entitled to the possession thereof; but, further than this, the only question to be considered between these parties was the value of the property converted. This is an action at law, and the defendants, who were strangers to the mortgage under which plaintiffs claimed, had no right to an accounting from these plaintiffs as to the amount still remaining unpaid upon this mortgage. It is true that, had this action been against Delphine Teeter, the mortgagor, or against those standing in her shoes,” the recovery would have been limited to the amount due on the mortgage. Parish v. Wheeler, 22 N. Y. 494, 511, 515; Hinman v. Judson, 13 Barb. 629; Haskins v. Kelly, 1 Rob. (N. Y.) 171; Livor v. Orser, 5 Duer, 501, 506; King v. Van Vleck, 40 Hun, 71. But these defendants did not stand in such position. They are neither general creditors nor judgment creditors of Delphine Teeter, and, not having any right to redeem, are not in a position to mitigate the damages to the amount unpaid on the mortgage. We are of the opinion, therefore, that the charge of the learned trial justice that the plaintiffs would be entitled to recover only the amount shown to be unpaid upon their mortgage was error, calling for a reversal of the order. In an action against a stranger, who shows no right or title to the property, the mortgagor may recover the full value, though it exceeds the amount of the mortgage debt. Parish v. Wheeler, supra; Adamson v. Petersen, 35 Minn. 529 ; 29 N. W. 321; Jones, Chat. Mortg. § 448. But the sum recovered must be held by him upon a trust corresponding with the interests of the mortgagor in the property. Id. The jury in0 this action rendered a verdict representing, as it appears, only the balance unpaid upon the mortgage. It appears from this verdict, therefore, that the jury must have found that some portion of the mortgage still remained unpaid. The plaintiffs then were entitled to the possession of the property at the time of the demand made therefor upon the defendants. The defendants refused to deliver the same, and thereupon they became liable to these plaintiffs for damages to the extent of the value of the property converted by them. But, under the ruling of the learned trial justice, the jury have ignored the rule of damages which should Lave governed them in rendering their verdict, and they found as damages only the balance unpaid upon the mortgage, instead of the value of the property converted. The record contains no certificate that the case contains all of the evidence. It, however, clearly appears that the question of damages was submitted to the jury upon an erroneous theory of the law governing that question, and that plaintiffs were prejudiced thereby. A new trial should be ordered.

Order reversed, and new trial ordered, with costs to abide the event.

All concur.