author: '■BRADY, J.: DaNiels, J.: Davis, P. J.

text:
    ANNIE COOKE LAWRENCE, an Infant, by her Guardian ad litem, Appellant, v. SARA L. COOKE, Respondent.

      Wül — what words a/re sufficient to impress a trust upon am, estate demised.

    A testator, by the sixth clause of his 'will, gave, devised and bequeathed all the residue of his estate, both real and personal, to his daughter, the defendant, to have and to hold the same unto her and her heirs and assigns forever.” The-seventh clause reads as follows, viz. : “I commit my granddaughter, Annie C. Lawrence, child of my daughter Annie, now deceased, to the charge and guardianship of my daughter Sara L. Cooke, in whose honesty, good will and; integrity I repose the utmost confidence. I enjoin upon her to make such. provisions for said grandchild out of my residuary estate now in her hands in such manner, at such times and in such amount as she may judge .to he expedient and conducive to the welfare of said grandchild, and her own sense of' justice and Christian duty shall dictate.

      Held, that the residuary estate devised to the daughter was impressed with a valid enforceable trust in favor of the granddaughter, the amount of such trust and the time and manner at and in which it should be created being left to the discretion of the daughter. (Davis, P. J., dissenting.)
    Appeal from a judgment, entered upon tbe trial of this action by • tbe court without a jury, dismissing the plaintiffs complaint.
    By the complaint in this action it appeared that in the month of December, 1878, one Chauncey L. Cooke, the grandfather of the plaintiff, died at the city of New York, leaving a last will and testament, dated December 18, 1877, which was afterwards admitted to • probate. '
    It further appeared thereby that the residuary estate which passed to the defendant under this will was of the value of about $150,000, and yielded an income of about ■ $7,500 annually; that the plaintiff is an infant of about six years of age, and resides with her father, William EL C. Lawrence, in the State of Massachusetts, and has no-means of support of her own, except an annual income of $164.34, derived from a provision in the will of her maternal great-grandfather; and that in the month of March, 1880, and again in January, 1881, the plaintiff, through her father as her general guardian, requested the defendant to make such provision out of said residuary estate, expedient and conducive to the plaintiff’s-welfare, as was enjoined upon the defendant by the sixth and seventh clauses of the said will, and that said defendant neglected and refused, and has ever since neglected and refused to make any provision whatever for the plaintiff out of said residuary estate.
    The plaintiff, therefore, asked judgment, declaring that a trust was imposed upon the defendant in favor of the plaintiff by the ■ terms of the will, and that thé court determine and make such provision for the plaintiff out of the said residuary estate as should be conducive to her welfare within the meaning of the will of her grandfather.
    To this complaint the defendant answered, admitting the execution and probate of the will, but denying that it created any trust ira - favor of tbe plaintiff, or that the residuary estate amounted to the -sum named in the complaint, and also denying the alleged refusal ■ ©f the defendant to make any provision for the plaintiff.

      Henry W. Johnson, for the appellant.

      W. Ii. Da/rli/ng, for the respondent.
   '■BRADY, J.:

The object of this action was to obtain a construction of the ■will of Chauncey L. Cooke, late of the city of New York, deceased, who was the grandfather of the plaintiff. The dispute is predicated of the sixth and seventh clauses of the will which are as follows:

11 Sixth. The residue of my estate, both real and personal, of whatever name or kind, I give, devise and bequeath to my daughter, Sarah L. Cooke, to have and to hold the same, unto her and her heirs and assigns forever.

Seventh. I commit my granddaughter, Annie C. Lawrence, child of my daughter Annie, now deceased, t® the charge and guardianship of my daughter Sarah L. Cooke, in whose honesty, good-will and integrity I repose the utmost confidence. I enjoin upon her to make such provisions for said grandchild, out of my residuary estate now in her hands, in such manner, at such times and in such amounts as she may judge to be expedient and conducive to the welfare of said grandchild, and her own sense of justice and Christian duty shall dictate.”

It was contended, on behalf of the plaintiff, that a trust was created by the seventh clause, its language amounting to an injunction and command that the grandchild therein named should be provided for. The learned justice in the court below, after a thorough examination of the brief and authorities submitted for his consideration arrived at the conclusion that no trust was created by the seventh clause. And this view was predicated of certain American cases which, as he thought, established the rule by which he was to be governed.

It seems to have been assumed, and properly, that if the word ■seenjoin” amounted to an injunction or command the plaintiff -would be entitled to judgment; and the whole controversy depends first, upon the intent of the testator and secondly upon the meaning and force of that word as employed in the seventh clause. This view is adopted for the reason that although there are numerous cases in which it is declared that a mere request or recommendation to do the thing named in connection with the bequest or devise cannot affect the estate previously created and to which it refers, no case has been cited, and none has' been found, in which the language employed in the seventh clause by the testator has been so imperious in character as the word enjoin. The meaning of that word, as it is explained by the learned justice in the court below, referring to the lexicographers Webster and Johnson, is by the former to order or direct with urgency; to admonish or instruct with authority; to command,” and by the latter as follows: “ This word is more authoritative than ‘ direct,’ and less imperious thau a command; it has the force of pressing admonition with authority — as a parent enjoins on his children the duty of obedience. But it also'has the sense of command, as the duties enjoined by God in the moral law.” Worcester defines it “to direct earnestly; to urge, to admonish, to prescribe, to direct with authority.”

The language used by the testator in the numerous English cases cited on behalf of the defendant, does not in any one of them amount to a command or injunction. For example, in Sale v. Moore (1 Sim., 534) the testator gave the residue to his wife, recommending to her and not doubting that she would consider his near relations.

In Meredith v. Heneage (1 Sim., 542) the testator gave his real and personal estate to his wife in the full confidence that in her future disposition of it she would distinguish the heirs of his late father, by .devising his whole estate, together and entire,’ to such of his father’s heirs as she might think best deserved- her preference. And, again: I seriously and warmly entreat my said wife, at her decease to settle,” etc.

In Knight v. Boughton (11 Clark & Fin. App. Cases, 513, H. of L.) the language was: “ I trust to the liberality of my successors to reward any others of my old servants and tenants according to their deserts, and to their justice in continuing the estate in the male succession,” etc.

In Bardswell v. Bardswell (9 Sim., 319) the estate was given to a son, well knowing that he would discharge the trust that the testator reposed in him by remembering the testator’s sons and daughters (naming them). So in Lambe v. Eames (Law Rep., 1870, Eq. Cases, vol. 10, p. 267) the testator, by his will, gave his wife his freehold and personal property, to be at her absolute disposal in any way she might think best, for the benefit of herself and family. So in the case of Reeves v. Baker (18 Beav., 372) the devise was to the wife, her heirs and assigns forever, being fully satisfied that she would dispose of the estate given, by will or otherwise, in a fair and equitable manner.

And in Howorth v. Dewell (29 Beav., 18 [1860]), the devise was to the testator’s wife, with power to dispose of the same among his children or any of them for such interest, temporary or lasting, as she should see fitting. So in Brook v. Brook (3 Sm. & Griff., 280) copyholds.were devised to a married women as sole and separate property, with power to appoint the same to her children and husband, in such way and proportions as she might think fit. So in Curtis v. Rippon (5 Mad. Ch., 434) the testator gave all his property to his wife, trusting that she would use it for the spiritual and temporal good of herself and children, remembering always the church and poor. So in Winch v. Brutton (14 Sim., 379) the testator recited that he was desirous of making suitable provision for iiis wife, as well as for his daughter and grandchild; but in order to mark his unbounded confidence in his wife, and his belief that she would be actuated by the most maternal regard towards his child, he gave her all his property for her own use and benefit and disposal absolutely, implicitly relying on her attachment to his daughter and granddaughter.

In Greene v. Greene (3 Irish Rep. Eq., 629), the testator gave his property to his wife, well knowing, as he said, her sense of justice and love to her family, and feeling perfect confidence that she would manage the same to the best advantage and benefit of her children. So in Lefroy v. Flood (4 Irish Ch. Rep. [N. S.], 1, Beady, L. C.), the devisee bequeathed his property to a person named, with an earnest recommendation that a certain thing should be done.

These same characteristics are apparent in McAlinden v. McAlinden (11 Irish Rep. Eq., 219); Reid v. Atkinson (5 id., 373); Palmer v. Simmonds (2 Drewry Ch., 221); Wynne v. Hawkins (1 Brown’s Ch., 179); Ellis v. Ellis (10 Weekly Notes, 18); The American cases present the same formula. Bor example, in Hess v. Singler (114 Mass., 66), the testator said, “ I hereby signify to my son my desire and hope that he will provide by will or otherwise, that, if he have no lawful issue living, the- property which he will take under the will will go in equal shares to the children of my brother and sister.” So in Jackson v. Housel (17 Johns., 281), the words were, “ I leave and bequeath to my beloved wife, and wish her to educate my two daughters with care, and to treat them with kindness and affection, without any devise or bequest.” So in Paisley’s Appeal (70 Penn. St., 153), there was a devise by the testator to his wife of rents and profits for her support, and the support and maintenance of his children, under the direction of his executors. So in Gilbert v. Chapin (19 Conn., 342), the language was, after payment of my just debts, I give, devise and bequeath all my estate, real and personal, to my wife A., her heirs and assigns, forever, recommending her to give the same to my children, at such times and in such manner as she shall think best.” There were similar characteristics in Harper v. Phelps (21 Conn., 256); in Pennock’s estate (20 Penn. St., 268); and also in Ellis v. Ellis, Administrator (15 Ala., 296); and in Lines v. Darden mid Wife (5 Fla., 51), which was a kindred case, the testator expressed the same will and desire. In all these cases it was held that an absolute fee or estate had been given or created of the estate previously devised, and that the language of recommendation, etc., was precatory and not of command, the testator expressing his wish or recommendation, or desire, or making the suggestion which he deemed sufficient to affect the quality of the estate previously created by the terms of the will.

In the cases referred to by the learned justice in the court below, namely Foose v. Whitmore (82 N. Y., 405), the language was, “ I give and bequeath all my property, real and personal, to my beloved wife Mary, only requesting her at the close of her life to make such disposition of the same among my children and grandchildren, as shall seem to her good.” It was held that the gift was absolute, the concluding words being merely words of suggestion and not of direction or command, and did not therefore create a trust.

In the case of Parsons v. Best (1 N. Y. Sup. Ct. [T. & C.], 211), also referred to by the learned justice, the language was, perhaps, more imperative than-in any of the cases referred to; but the court, expressing the rule which is quite familiar, namely, that the intention of the testator, when it can be ascertained, is the control ing rule of interpretation, held that the wife took the whole estate in fee, such having been his intention.’

In Roseboom, v. Roseboom (81 N. Y., 356), also cited by the learned justice, there was a gift to the wife of one-third of all the testator’s property, both real and personal, and the control of his farm as long as she remained a widow, and at her death all the property, both real and personal, was to be equally divided between his eight children. In an action for the partition of the farm it was held that the widow took a fee of one-third of the premises. This case was disposed of upon the evident intention of the testator as to the share of his property which she should enjoy. »

In the case of Clarke v. Leupp ( 14 Weekly Dig., 206), also cited by the court below, the testator gave and bequeathed to his wife all his property, real and personal, and appointed her his true and lawful attorney and sole executrix to take charge of his property after his death, and retain or dispose of the same for the benefit of herself and children above named. It was held that she took an absolute title to all his estate, because it was not intended by the words succeeding to limit or cut down the absolute'gift.

From this reference to many cases, the number of which might be multiplied, it is quite apparent that none of them, in the attempted limitation or restriction of the quality or nature of the estate created, present a question precisely like that which is to be determined in this case, although they approximate. In considering such a question the first and paramount rule to be applied is to ascertain, if possible, the intention of .the testator. Yiewing the seventh clause from that standpoint, it seems to be very clear that the testator intended his granddaughter should be provided for, and he so expressed himself, committing her as he did to the charge and guardianship of his daughter Sarah, in whose honesty, good will and integrity he reposed the utmost confidence. But he did not rest upon that statement, thus merely expressing his wishes upon the subject. If he had the case would have presented features similar to tbe adjudications to which attention has been called. But he proceeded to say: “I enjoin upon her to make such provision for said grandchild out of my residuary estate now in her hands in such manner, at such" times and in such amounts, as she may judge to be expedient and conducive to her welfare and her own sense of justice and Christian duty shall dictate.”

The clause, therefore, was not one which merely expressed a hope, or wish or confidence, that the thing contemplated should be done. The testator’s confidence was expressed in the honesty and integrity of his daughter as to the character of the provision to be made out of the residuary estate in her hands, and as to the manner in which it should be employed or used for that purpose, not only as to time but amount; and to that extent, and that only, was his confidence expressed. As to thH-.appropriation it was not merely a hope, wish, desire or recommendation, but an injunction. It was a command, established by the use of the word enjoin, by which he ordered or directed a certain thing to be done with urgency, admonished or instructed with authority, commanded and coupled to his confidence already expressed a pressing admonition with authority, and earnestly admonished, prescribed and directed with authority on the subject, if wé give to the word enjoin its force as explained to us by the standard authorities.

It is said by Perry on Trusts (§ 115), that however strong the language of recommendation or request may be, a trust will not be implied if the testator declares that such is not his intention, as if he declares that the gift shall be “ unfettered or unlimited,” or if •he “ recommends but does not enjoin.” And again, “ the point really to be determined in all these cases is whether, looking at the whole context of the will, the testator intended to impose an obligation on his legatee to carry his wishes into effect, or whether having •expressed his wishes, he intended to leave it to the legatee to act on them or not, at his disco'etion.” (1 Perry on Trusts, § 114; see, also, 1 Story’s Eq. Jur., § 1068 ; 1 Jar. on Wills, 332 ; 2 Redf. on Wills, 415, 421.)

It therefore follows that the intention of the testator, as gathered from the will, was that the grandchild should be provided for by the defendant out of the residuary estate. But it is not necessary to predicate the right of the plaintiff to judgment wholly on the question of intent, inasmuch as it is thought that the words of the seventh clause are imperative and create a trust in her favor. The word enjoin, according to Bouvier (see in Law Dictionary) and authorities cited as to words “ enjoin ” and “ injunction,” means “ to command,” “ to require,” and this is 'substantially the sense in which the word is popularly used. As already intimated, therefore, the word “ enjoin,” in the seventh clause, is regarded as imperative and not precatory, and creates a trust in favor of the plaintiff. This view is sustained by the cases of Pierson v. Garnet (2 Bro. Ch. Ca., 38); Harding v. Glyn (1 Atk., 469); Ware v. Mallard (16 Jur., 492); Forbes v. Ball (3 Merivale, 437); Dominick v. Sayre (3 Sandf., 565). The seventh paragraph of the will, therefore, upon proper legal interpretation should be read: “ I commit my granddaughter Annie C. Lawrence, child of' my daughter Annie, now deceased, to the charge and guardianship of my daughter Sara L. Cooke. I enjoin upon her and command her, as an obligation which I impose in connection with the residuary estate given her, and as a condition of or charge upon such gift, to make such provision for my granddaughter as she may judge to be expedient and conducive to the welfare of such grandchild.” The only discretion attaching to the trust was that which related to the manner in which such appropriation should be made.

, The conclusion arrived at, therefore, is that the seventh clause, considered with reference to the manifest intention of the testator, meant that provision should be made out of the residuary estate by the defendant for the support of the plaintiff, and that not only was such the intention, but the words employed in the seventhclause, being imperative, created a trust for that purpose, as aburden upon or condition of the enjoyment of the residuary estate, to which it belonged and of which it immediately became a part,the residuary estate and the trust declared being created at the same moment.

The judgment appealed from should therefore be reversed, and judgment rendered for the plaintiff.

DaNiels, J.:

The object of the action was to determine the construction and effect of the will of Chauncey L. Oooke, deceased, so far as the plaintiff claimed to be entitled to be benefited by its provisions.

By the sixth paragraph he gave all the residue of his estate, real and personal, to his daughter Sara L. Cooke, to have and to hold, the same to her, her heirs and assigns, forever. He then committed the guardianship of his granddaughter Annie C. Lawrence, the child of his daughter Annie, deceased, to his daughter Sara L. Cooke. After doing that and expressing his confidence in her honesty, good will and integrity he, in express language, enjoined upon her to make provision for the grandchild out of his residuary estate, in such manner, at such times and in such amounts as she might judge to be expedient and conducive to the welfare of the grandchild and her own sense of justice and Christian duty should dictate. It is very clear, under this language, that the testator did, in the first instance, intend to devise and bequeath the residue of his estate to his daughter as the owner thereof, and if that direction had been allowed to remain unqualified, her- title, without doubt, would have been of that description. But the testator did not leave it in that condition. He did not, in fact, intend that she should hold and enjoy the title to his estate in this unlimited and unqualified manner. The direction afterwards given by him was imperative and decisive and it was not qualified by the expression of his confidence in the honesty, good will and integrity of his daughter. That expression was made to assign the reason why he committed the guardianship of his granddaughter to his daughter Sara. And it was after commending her in this manner that he again took-up the direction deemed to be essential by him for the complete disposition of his estate, and this direction was given in such words as to operate as a qualification and restraint upon the general devise and bequest previously made in favor of his daughter. It was not merely the expression of a wish, or a desire that she should afterwards make some provision for this grandchild out of the residue of the estate, but it was equivalent to the expression of his will or command, that such a provision should be made. He used decisive language for the expression of his intention and enjoined it as a duty upon his daughter to carry this intention into effect. The design was that this grandchild should be provided for in a reasonable and suitable manner out of his property. He was probably at the time incapable of determining what that provision should be, and therefore committed the determination of the subject to tbe judgment and good sense of bis daughter, rendering it obligatory upon her that she should make the provision, and leaving it only discretionary with her as to the amount of it, and the time and the manner in which it should be made. And in that determination she was to be governed by what should be deemed conducive to the welfare of the grandchild. -His intention, by the language made use of, was to reduce and qualify the preceding devise and bequest of the residue of his estate, so far as that might be necessary to create a proper provision for his granddaughter. And the time, manner and amount of it was all that was left to the discretion of his daughter.

And this direction was obligatory upon her under even the more restricted authorities recently arising in the disposition of this class of eases. In Roseboom v. Roseboom (81 N. Y., 356), it was conceded that an estate given in this manner in one portion of the will might be reduced or abridged by subsequent clauses indicating that to have been the intention of the testator. And Clarke v. Leupp (88 id., 228), also proceeded as far as this. To give effect to a direction of this description all that -is required by the law is that the language employed to express it shall indicate it to have been the intention of the testator that it certainly should be observed and carried into effect.

Upon this subject it has been truly said, that courts seek for the intention of the parties,'however informal or obscure the language may be, and if a trust can fairly be implied from the language used, as the intention of the parties, the intention will be executed through the medium of a trust.” (1 Perry on Trusts [2d ed.], § 112.) And a statute of this State has clearly enjoined the same obligation upon the courts (2 R. S. [6th ed.] 1131, § 2).

This subject, as well as the conflicting authorities bearing upon it, was considered in 1 Jarman on Wills1 (5th Am. ed.), 385-391, where the operative effect of the direction appears to have been submitted by the authorities simply to this test.

In Broad v. Bevan (1 Russell, 511, note), a very similar direction was held to be sufficient to create a trust in favor of the person designed by the testator to be benefited by it. And the same con elusion was adopted in Cockrill v. Armstrong (31 Ark., 580). And Le Marchant v. Le Marchant (18 L. R, Eq., 414), accords with the same view. Parsons v. Best (N. Y. Sup. Ct., 1 T. & C., 211) does not conflict with this construction, for’ the provisions of the will in that case were not made as imperative as they were in this case, and besides that the action was disposed of, in part at least,'upon the ground that it could not be maintained during the lifetime of the widow. To reconcile the conflicting authorities bearing upon the consideration of wills containing somewhat similar clauses would be utterly impracticable, and. a detailed examination of the cases, therefore, would not be profitable. It is sufficient for the disposition of this case that the evidence is quite clear, afforded by the language of the will, that the testator did not intend to leave his granddaughter subject to the mere choice or volition of his own daughter, but that his design was that some substantial provision should be made for her out of his residuary estate, which was devised and bequeathed by him to his daughter. And that design, expressed as it was by him, it is the duty of the courts to carry into effect. The judgment dismissing the complaint should be reversed, therefore, and judgment directed in favor of the plaintiff.

Davis, P. J.

(dissenting):

I do not concur in the construction given to the will by my brothers Brady and Daniels.

By the sixth clause of the will the testator gave to his daughter Sarah L. Cooke the whole of his residuary estate in fee simple and absolute.

His intent to do this is so manifest by the sixth clause that it is not open to question.

By the seventh clause he intends to put his granddaughter into the care' and guardianship of his daughter.

He expresses the utmost confidence in the “honesty, good-will and integrity” of his daughter, and proceeds to “enjoin” upon her the duty of making provisions out of his residuary estate in such ■ manner and at such times aud in such amounts as she may judge expedient and conducive to the welfare of such grandchild, and as her own sense of justice and Christian duty shall dictate. The nature and force of this language are not such as to impose upon the absolute estate he had given his daughter any specific trust. On the contrary, it indicates very strongly his intention to confide wholly in the sense of justice and right of his daughter to do what she might think best for the granddaughter, leaving that sense wholly free from legal trammel or constraint.

I think, it impossible correctly to construe this language as imposing upon the property itself any charge or trust.

The authorities do not warrant it. The word “enjoin” only operates to indicate the extent to which the testator meant to impress on his daughter’s conscience the duty of doing whatever the condition and circumstances of the granddaughter should require; but to leave the duty wholly a moral and not a legal obligation.

I think the judgment must be affirmed.

Judgment reversed; judgment ordered for plaintiff.


source: Caselaw Access Project

author: BRADY, J.:

license: Public Domain

text:
    ALEXANDER V. DAVIDSON, as Sheriff, etc., Plaintiff, v. THE CHATHAM NATIONAL BANK OF NEW YORK, Defendant.
    Attachment— duty of the sheriff to collect and hold demands attached— Oode of Civil Procedure, secs. 655, 675.
    Where, under a warrant of attachment in an action, a demand due to the defendant from a third person has been attached, it is the right and the duty of the sheriff to forthwith bring an action to collect the said demand, without waiting for the determination of the action in which the attachment was issued, or for any order or direction from the court or judge.
    Controversy submitted upon an agreed statement of facts, under section 1279 of the Oode of Civil Procedure.
    On or about the 12th day of January, 1883, the plaintiff, as sheriff, received a warrant of attachment in an action entitled “ John H. Inman and others against the Fourth National Bank of St. Louis,” then pending in this court, by which he was required to attach (in the usual form) property of the defendant therein named to the amount of $5,000. He executed the said warrant of attachment by delivering a certified copy thereof to this defendant, at the same time demanding a certificate of the amount in which this defendant was indebted to the defendant named in the said warrant; and thereupon the said sheriff received from this defendant a certificate stating that it was indebted to the defendant therein named in the sum of $5,000.. The said action of “ Inman et al. against The Fourth National Bank ” is still pending and undetermined. The plaintiff herein claims that he is entitled to have and receive from the defendant, by virtue of the said warrant, the said sum of $5,000, which this defendant admits to be due and owing.from it to the said Fourth National Bank. And the defendant claims that until the termination of the action in which said warrant was issued, the sheriff is entitled to nothing more than a certificate, which has been delivered as aforesaid. The sole question submitted to the court in. this'case is whether the sheriff, is entitled to require the Chatham National Bank to pay over to him the amount of its indebtedness to the defendant named in said warrant of attachment, before the action in which said warrant was issued shall have been determined.

      W. Bourke Cochrane, for the plaintiff.

      Briesen cfs Steele, for the defendant.
   BRADY, J.:

There does not appear from the briefs submitted any serious contention between the parties to this controversy. As it is understood the chief objection to the right of the sheriff insisted upon is that the collection of debts by actions is made subject to the direction of the court or judge, by section 655 of the Code of Civil Procedure.

An examination of the provisions of the Code and some adjudications enable us to dispose of the question submitted. Section 649 provides for the manner in which the property of the debtor may be attached. And by subdivision three of that section it is declared that if the property consists of a demand other than as specified in subdivision two, a notice must be served showing the property attached, accompanied by a certified copy of the warrant of attachment. • Section 648 proclaims the effect of the levy under the attachment. It is declared to be a levy upon a seizure, and an attachment of the debt represented by it. When, therefore, an attachment debtor is the creditor of another, a service upon such creditor in the manner indicated -results in the levy upon the seizure of the demand; and when that is accomplished, under section 655, it is declared that tbe sheriff must, subject to the directions of the court or judge, collect and receive such debt; the language of the section being, must collect and receive all debts and effects and things in action attached by him.” And the same section provides that he shall maintain any action or special proceeding, in his own name or the name of the defendant, which is necessary for that purpose. And it is also provided that he may discontinue such an action or special proceeding at such time and on such terms as the court or judge directs. Section 232 of the Code of Procedure contained the same provision in reference to the right of the sheriff to commence legal proceedings. It provided that the sheriff might also take such legal proceedings, either in his own name or the name of the defendant, as might be necessary, for the purpose of collecting and receivings into his possession all the debts, credits and effects of the defendant, subject to the direction of the court or judge, and might discontinue the same on such terms as the court or judge might direct.

The right to maintain such an action as this was decided in the case of Kelly v. Breusing (32 Barb., 601) which was on argument affirmed in this department at a General Term. (See report of case in 33 Barb., 123.) And it was further adjudicated in that case, that it was not necessary to allege in the complaint that the action had been brought by the direction of the court or*, judge. The court said: I doubt whether positive and affirmative direction of the court or judge is at all a necessary prerequisite to the commencement of the action under section 232.” And again : “ And so far as the institution of legal proceedings is concerned, I think the approval of the court must be implied. If contained in the complaint it would not be an issuable allegation, but the remedy would be by motion to set aside the proceedings for want of such authority.”

The learned counsel for the defendant seems to assume that section 675 controls the right of the sheriff to proceed by action to collect outstanding debts due to the attachment debtor. This view cannot be maintained. That section provides simply that the court, on the application of either party, may direct the sheriff to pay into court the proceeds of a demand collected or property sold. It undoubtedly recognizes, by implication, the right of the sheriff to collect a demand, and for tbe obvious reason that it invests the court with power to direct that the amount or proceeds of such collection should be deposited in a designated bank or trust company, to be drawn out only on the order of the court. Upon these authorities and these sections of the statute, it is quite evident that the sheriffs right to maintain such an action as this is clear.

It may be added, as he is invested by virtue of his seizure under the attachment with the custody of the property attached, and required to collect such of it as exists in demands, he may incur a serious responsibility, if, failing to collect the ability of the debtor to pay ad interim by one of the numerous incidents of commercial or business life, be destroyed.

The language of section 655, which should not be overlooked, is that the sheriff must, subject to the direction of the court or judge, collect and receive all debts, effects and things in action attached by him. It is undoubtedly a better, safer and wiser course, except in special cases over which the court has control, as we have seen, by proper motion for that purpose, for the sheriff tq proceed at once to gather in all the assets of the debtor covered by his process which he has undertaken to execute.

For these reasons, the question submitted being answered in the affirmative, the plaintiff is entitled to judgment against the defendant for $5,000, but, according to the stipulation, without costs.

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

Ordered accordingly.


author: Beady, J.: Daotels, J.

text:
    ELIZA HEGERICH, as Administratrix, etc., of ALEXANDER HEGERICH, Deceased, Appellant, v. JOHN KEDDIE, as Executor. etc., of DAVID CANT, Deceased, Respondent.

      Action for a negligent killing — it will lie against the personal repi'esentatives of the wrong-doer —1847, chap. 450 ; 1849, chap. 256; 1870, chap. 78, Code of Oivil Procedure, sec. 1902.
    Under the statutes giving to the personal representatives of a deceased person a right of action to recover the damages sustained by reason of the negligent killing of such deceased person, an action may he brought by them against the personal respresentatives of the wrong-doer. (Daniels, J., dissenting.)

      Yertore v. Wiswall (16 How. Pr., 9) followed.

      Appeal from a judgment entered, upon an order sustaining a demurrer interposed to the complaint.

      Q-. V. W. Baldwin, for the appellant.

      B. W. Gohm, for the respondent.
   Beady, J.:

This action was brought by the administratrix above named, to recover from the executor of David Cant damages for personal injuries received by the plaintiff’s intestate which resulted in his death, and which injuries were alleged to have been caused by the negligence of the defendant’s testator. The defendant relies upon the statutes of 1847 and amendments (see 4 B. S. [Edm. ed.], 526, 527), and sections 1902, 1904 of the Code of Civil Procedure. 'The defendant demurred and the demurrer was sustained.

The question presented in this case is whether the action may be maintained against the personal representatives of the wrong-doer. The proposition on the part of the defendant is, that the action dies with the person causing the injuries. That this rule of law -exists as to all other actions sounding in tort there can be no doubt. (See 3 B. S. [7th ed.], pp. 2394, 2395.) With regard, however, to the statutes under which this action was brought a different rule prevails. The Court of Appeals, in the case of Whitford v. Panama Railroad Co. (23 N. Y., 465, 480), declared in reference to “them that the action therein provided appeals to no common law right and rests upon no common law principle, and that it is created by and derives all its vitality from the statute. This has been substantially reasserted in the case of McDonald v. Mallory (77 N. Y., 546, 550).

These authorities seem to establish the proposition that the right of action under the statutes mentioned is to be considered without reference to the rules of the common law, in relation to actions of tort for injuries to the person. But it is not necessary,to pursue this inquiry further, for the reason that in the case of Yertore v. Wiswall (16 How. Pr., 8), it was decided by the General Term that such an action survived and could be maintained against the representative of the wrong-doer, because it was for the enforcement of a statutory right of property. The point seems to have .been fully considered in that case and to have been determined in favor of the right of action, as already stated. This case has not been overruled by the Court of Appeals in any reported adjudication, and is regarded as controlling of the question, and to be followed until it is reversed by the court of last resort.

For these reasons, and without a more extended examination of the question, it is considered that the judgment in the court below should be reversed with costs to abide the event, and with liberty to the defendant to answer in twenty days, on payment of the costs of the demurrer.

Davis, P. J’., concurred.

Daotels, J.

(dissenting):

The action for damages for the wrongful act of causing the decease of the intestate, was provided by statute. Before the enactment of the statute it could not be maintained. This statute was first enacted in this State in 1847 (Laws 1847, chap. 450), and in neither of the acts subsequently enacted has the liability of the party in the wrong been extended. (Laws 1849, chap. 256; Laws 1870, chap. 78; Code of Civil Pro., § 1902). By the act of 1847 the person who, or the corporation which, would have been liable, if death had not ensued, is made liable to an action for damages, notwithstanding the death of the-person injured, and that is the full extent of the liability created. It is limited to the person himself, or the corporation itself, causing the injury. No right of action against his executor or administrator has been provided. But when the wrongful act has' been committed by a natural person, it is that person, and only that person, whom the statute has rendered liable. Both by the terms of this act and the general statute declaratory of the causes of action which will survive against the personal representatives of the wrong-doer (3 K. S. [6th ed.], 732, §§ 1, 2), they are exonerated from liability in this action.' A very general provision of the Code, first enacted in 1870, concerning actions for damages for personal injuries, is also to the same effect, for it only prevents the abatement of that class of actions after a verdict has been recovered. (Code of Civil Pro., § 764). It was framed in such language as to include all actions for personal injuries, and this action is not excluded from it. A different view of the act of 1847 was adopted in Yertore v. Wiswall (16 How. Pr., 9), but as it is not supported by the language of the act, and is opposed to this section of the Code, it ought not to be followed. But the judgment should be affirmed

Judgment reversed, with costs to abide event, and with leave to defendant to answer over in twenty days on payment of costs of demurrer.


author: BRAdv, F. J.:

text:
    FRANKLIN H. DELANO, as Trustee of LAURA A. DELANO, Plaintiff, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendants.

      Assessment — right of a party to have it reduced after it has been paid, and to recover the amount of his over-payment in the same action.

    The plaintiff’s agent paid the amount of an assessment imposed upon the plaintiff’s property for the paving of a portion of Eleventh avenue. The whole of the cost of the paving was assessed upon the adjoining property, while the cost of paving a strip twenty-five feet in width should have been assessed by the city upon a railroad company in pursuance of an ordinance which allowed it to lay its tracks in the street. At the time of making the payment the agent had no knowledge of the ordinance. Subsequently, upon the application of “the owner of some of the other property assessed, the amount by which his assessment exceeded the true and just assessment was stricken therefrom.

      Held, that the plaintiff could maintain an action to have the assessment imposed . upon his lots declared invalid, in so far as it exceeded the proper and just assessment which should have been imposed upon him, and to recover the sum paid by him in excess thereof.

      Btrasburgh v. Mayor (87 N. Y., 452) followed.
    Motion by the plaintiff for leave to enter a judgment upon a verdict in bis favor, directed by the court subject to the opinion of the General Term.
    The plaintiff sought to have a portion of an assessment imposed upon his property, which had already been paid by his agent, set aside and declared invalid, and to recover the over-payment so made by him. The facts in the case, which were not disputed, were substantially as follows:

      Tbe plaintiff is, and at the dates hereinafter mentioned, was the owner of lands fronting on Eleventh avenue, between Fifty-second and Fifty-ninth streets, in the city of New-York. On September 12, 1875, the said lands were assessed for the paving of Eleventh avenue in the sum of $3,651,97, which was paid by the plaintiff’s agent on December 9, 1875. The total cost of the street pavement was $21,404.84, all of which sum was assessed upon the property on the line of the work.
    Prior to the pavement of the avenue the Hudson River Railroad Company had laid a track of rails thereon pursuant to permission granted to said company by an ordinance adopted May 6, 1847.
    In such ordinance it was provided, as a condition of the franchise, that the Hudson River Railroad Company should “grade, regulate, pave, and keep in repair a space twenty-five feet in width in and about the tracks in all the avenues and streets through which said tracks should be laid, whenever the common council shall deem the interest of the city to require such pavement to be done.” The width of the avenue from curb to curb is sixty feet. The Hudson River Railroad Company had paved no part of the street, and no part of the expenses had been assessed upon the company.
    The plaintiff’s agent was ignorant of the provisions of the ordinance in respect to paving by the railroad company, and of the failure of the city to charge the railroad with its proportion of the expense when he made the payment.

      John G. Shaw, for the plaintiff.

      D. J. Dean, for the defendant.
   BRAdv, F. J.:

This action was brought to recover the sum paid in excess of the proper and just assessment upon the property for which the plaintiff was trustee. And in the complaint which was prepared for that purpose, it was alleged that in certain proceedings instituted in this court the assessment was declared invalid to a certain extent, and the amount imposed upon the lots mentioned in the proceeding was proportionately reduced. See Matter of Appleby (26 Hun, 427), in which it was held that it was the duty of the city to enforce the covenant made by the Hudson River Railroad Company, referred to jn the statement of facts herein, and that the imposition of the whole expense for the pavement upon the property owners was illegal.

It will have been perceived that the plaintiff at the time of the payment had no personal charge of the property, and that his agent who made it was ignorant of the covenant mentioned, and of the failure of the city to charge the company with its. proportion of the expense. And inasmuch as the imposition of the whole expense upon the property subject to the assessment had been declared to be illegal and it had on application been reduced, it was established, if not conceded, that a sum in excess of what the city was entitled to had been paid into its treasury, and the action to recover it back could therefore be maintained upon the authority of Strasburgh agt. Mayor (87 N. Y. 452).

It is not deemed necessary to discuss the various points which are suggested in .the briefs of the respective counsel, for the reason that the case cited is regarded as an authority justifying the plaintiff’s recovery in this action. The distinction is there drawn between such an action as this and one brought to recover back money paid upon an illegal assessment which the assessors had jurisdiction to impose, and which is not void upon its face, while the assessment remains unvacated and unreversed.

In that case the relief prayed for was that the assessment be declared invalid to the extent of the overpayment and that judgment be given for such over-payment. And the court said: “Why may not such an action be maintained ? There is no case to be found in the books holding that it cannot be. There can be no objection that both kinds of relief are sought in the action. In that respect it is analogous to an action in equity to reform a written instrument and then enforce it as reformed. And such actions have been frequently sanctioned, by this court. Here is a .case where it is conceded that' the plaintiff is equitably and justly entitled to the sum -which he seeks to recover. The only obstacle in his way is the nnvacated assessment.” And further, “unless then he can have equitable relief there will be a wrong without a remedy, an absolute failure of justice.”

For these reasons' it is not considered necessary to pursue this subject further, this court resting its conclusions upon the adjudication mentioned. The result is that judgment is ordered for the plaintiff.

Daniels, J., concurred.

Present — Beady, P. J., and Daniels, J.

Judgment ordered for the plaintiff.


author: Beady, Pf J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE GLOBE MUTUAL LIFE INSURANCE COMPANY, Appellant. (Claim of MARIE OESTERLE.)

      Policy of life insurance — what must be shown to justify the refusal of the holder to pay the premiums thereon on account of the insolvent condition of the company.

    When the holder of a policy issued by a life insurance company attempts to justify his failure to pay a premium due thereon, by proving the fact of the insolvent condition of the company, he must show his readiness and willingness to perform had the company not been insolvent, and also, it seems, that the business of the company had, at the time the premium came due, been actually suspended either by some act of the company itself, or by some proceeding instituted against it for that purpose.
    Appeal from au order made at a Special Term, confirming the report of a referee.

      Raphael J. Moses, Jr., for the claimant.

      George W. Wingate, for the respondent.
   Beady, Pf J.:

On the 13th of April, 1873, the Merchants’ Life Insurance Company, a corporation duly organized and existing under the laws of this State, and doing business as a life insurance company, issued a policy of insurance upon the life of John E. Oesterle, for the benefit of bis wife, who is the claimant, in the sum of $3,000. On the 7th of May, 1875, the company named was dissolved and Edwin L. Alexander appointed its receiver. On the twentieth of • May following the receiver, by authority derived from this court, directed the Globe Mutual Life Insurance Company to reinsure all the risks assumed by the Merchants’ Life Insurance Company, upon an agreement by the receiver that he should pay four and one-half per cent reserve on such policies, and transfer to the Globe Mutual Insurance Company all the interest in the Merchants’ Life Insurance Company deposited with the insurance superintendent.

The policy issued for the benefit of the claimant Mrs. Oesterle, was surrendered to the Globe Mutual Insurance Company on October 14, 1875, its value then it would seem having been determined to be $184. A policy was then issued by the Globe Mutual Insurance Company in exchanged This, however, was.subsequently surrendered and a new policy issued by the company just named. It seems to have been issued at the same rate of premium as the original one, but in consequence of the assured having increased three years in age, the regular premium would have been twelve dollars and sixty-nine cents in addition. It appears further that the reserve value of the Merchants’ policy was allowed as a credit of twelve dollars and sixty-nine cents on each of the ten annual payments, in which the premium mentioned in the new policy was to be paid. By the understanding the assured accepted the last policy mentioned, and paid the premiums upon it up to the 15th of April, 1879, on which date a premium became due which was not paid. .

By the policy which was actually delivered, the premium was to be paid in semi-annual payments on the eighteenth days of October and April in.each year. But paragraph four in it is as follows, and is one of the express conditions and agreements upon which it was accepted, namely : “ It is understood that a special grace of thirty days is allowed on the payment of renewal premiums on all policies in this class.” It appeared also that on the 10th day of March, 1879, a notice was sent under and pursuant to the provisions of chapter 321 of the Laws of 1877, to “ J. 0. Oesterle, 45 Rivington street, City,” by depositing the same in the post-office for delivery, advising the person addressed that the premium on the policy therein mentioned would become due on the eighteenth of April, and that unless the same was paid on or before that day, the policy would be void and all previous payments forfeited to the company, unless otherwise provided by the conditions of the policy as to forfeiture.

It also appeared that on March 29,1879, the trustees of the Globe Mutual Life Insurance Company appointed a committee to investigate its condition, and that on the 15th day of May, 1879, they had agreed on the report to be made, although it was not signed until the twenty-sixth of that month ; and which report was substantially that the company was insolvent. And in consequence of such report ■on the 27th day of May, 1879, an action was commenced on behalf of the people by the attorney general of the State, to declare the corporate .existence of the company dissolved and for the appointment of a receiver, and which, according to the statements in the complaint, was instituted in accordance with a resolution passed by the board of trustees that it was for the interest of the policyholders that the attorney general should take immediate proceedings for the appointment of a receiver. On the twenty-ninth of May a receiver was duly appointed. It also appears that John C. Oesterle died on the 25th day of September, 1879, leaving his wife him surviving, and that on her behalf the receiver was notified of a claim made under the policy issued by the’ Globe Mutual Life Insurance Company.

The referee found the several facts stated, and also that the Globe Mutual Life Insurance Company was doing business as a life insur-. anee company up to the 25th of May, 1879, but that the company became insolvent on the 27th of May, 1879, that being the day on which the action was commenced by the attorney general, as already stated, and the company was enjoined and restrained from the further transaction of its business. The referee also found that J ohn C. Oesterle failed to pay the premium which was due on the 15th of April, 1S79, and as a conclusion of law founded upon that fact, 'that the claimant was not entitled to receive any sum whatever from the Globe Mutual Life Insurance Company or its receiver.

The fourth paragraph of the policy which provides for the special grace mentioned, is not alluded to in the report, and it seems to have been assumed by the referee that the premium was absolutely due on the fifteenth of April, and that the requisite notice had been served with regard to it. The proper exceptions were taken to the report, and several requests to find were made, which are sufficient to cover the proposition upon which this appeal is to be disposed ,of.

The provision as to special grace of thirty days to which reference has already been made, extended the time of payment, by virtue of the terms and conditions of the policy, until May 18, 1879, and until which day the assured had the right to pay the premium and continue the policy. Prior to that time the committee appointed to investigate the affairs of the company had arrived at the conclusion that it was insolvent, and were only awaiting the preparation of the report to so declare. The result, had been, as already suggested,' determined upon that day, and there is no proof in the case that the company continued after that time to do business. It is true that no action had been taken by the authorities to declare the company insolvent until the twenty-seventh, which was one day after the report had been signed by the committee of investigation ; but the result, as already suggested, had been declared prior to that time, though not in the form of a report, and the company, through its officers, must be assumed to have known that they were insolvent.

The question presented upon this state of facts is, whether the insolvent condition of the company did not absolve the assured .from the obligation to pay the premium. It was held In the Matter of the Attorney General agt. The Continental Life Insurance Company (see report of decision, Daily .Register, March 25, 1882) that the consequences of the failure to pay the premium upon the .policy involved could not be avoided by an offer to prove that the company was and had been, for a long while prior to the time when the premium became due, insolvent. The court said, in deciding the case, that there was nothing to show that the failure to meet the premium was because of the insolvency of the company. Such is the case here. It was also said that if the claimant wished to be excused from the consequences of his failure to perform his part of the contract, he must at least show his readiness and ■willingness to perform. There is no offer to show anything of that kind in this case. It was also said in that case, “ there is enough to permit the inference to be drawn, from the failure to pay the premium, that the claimant intended to abandon the insurance.” There is nothing in this case to prevent such inference.

There can be no doubt that a person does not forfeit his policy by omitting to pay the annual premium when the company issuing the policy has ceased to do business, transferred its assets and become . insolvent. The implied contract it makes with its policyholders is, that it will continue business and keep able to perform its obligations (Matter Empire Mutual Life Ins. Co., opinion by Ruger, C. J., 27 Alb. Law Jour., 372), and there is no doubt that the further payment of premiums is excused by the insolvency of the company. (Atty. Genl. v. Guardian Mut. Life Ins. Co., 82 N. Y., 339.) But in the case just cited the premiums became due after the appointment of a receiver. The court said: The further payments of premiums were excused by the failure of the company, as well as by the express notice of the receiver that he would receive no more premiums.” The case of Fischer v. Hope Life Insurance Company (69 N. Y., 164, 165), and the case of People v. Security Life Insurance Company (78 N. Y., 125) are not adjudications establishing the proposition that the mere fact of an apparent or assumed insolvency, without a formal declaration thereof, in some mode, excused the payment of the premium. Indeed no case has been found in which a court has gone so far as to say that a suspicion or impression of existing insolvency in a life insurance company, excuses the payment of the premium. On the contrary, it has been held in the case of the Universal Life Insurance Company v. Whitehead (10 Ins. Law Jour., 337), that a temporary injunction enjoining a life insurance company from doing business pending an inquiry into its insolvency, did not excuse the payment of the premium or the doing of any act by which any right was to be preserved, although the agent advised the assured to await the result of the litigation before paying the premium which was due.

The Globe Mutual Life Insurance Company was undoubtedly insolvent before the last premium was payable, assuming that the time to pay w'as extended by the provision for a special grace of thirty days, which would carry it to the eighteenth of May; but no formal declaration was made to that effect and no proceedings taken to have it so proclaimed. The claimant, if the omission to, pay had been put upon that ground, might, as suggested, have the benefit of that incident, although it is not certain under the authorities that it would be of value. If the question were new I should be inclined to hold that the insolvency existing excused the payment, whether the claimant knew it or not, inasmuch as it would be,the duty of the company not to receive the premium under the circumstances. This disposes of the chief question arising upon the appeal. It may be further said that the contract which was made between tbe assured and the Globe Mutual Life Insurance Company, involved a surrender of all rights acquired by the policy issued by the Merchants’ Life Insurance Company, and the contract was one which was not prohibited by any statute or by any adjudicated case, and was one also which was made for the benefit of the assured, inasmuch as the company assumed all the liabilities incurred by the Merchants’ Life Insurance Company for deaths occurring subsequent to the year 1875. The surrender was not of the policy eo nomine, but of the damages caused by the failure of the company to perform its contract of assurance. (People v. Security Life, 78 N. Y., 125.)

As the claim of Mrs. Oesterle is understood in its presentation to the court, it is necessary, in order to sustain it, whatever the claim may be, in amount, to declare that the surrender of the policy secured in the Merchants’ Life Insurance Company to the Globe Mutual Insurance Company was invalid, because of Mrs. Oesterle’s legal disability to make any transfer of it, and also that there was no obligation to pay the premiums which became due in May, 1879, in consequence of the existing, though not proclaimed insolvency of the company, and although the company had not ceased to do business, and ostensibly at least, had continued in busiuess until the resolution adopted by the board of trustees upon the twenty-sixth of May, and which avowed the necessity of a corporate dissolution and the appointment of a receiver. The courts seem to have regarded the day on which there was an actual suspension of business, by the act of the company or by some proceeding against it preventing it from doing business, as that upon which its rights and obligations and the rights of its creditors were definitely settled. (Attorney Gen. v. N. America Life, 82 N. Y., 186.)

■ For these reasons we think that the referee was right in his conclusions ; that the order appealed from was correctly made, and that it should be affirmed, with costs.

DaNiels, -J., concurred.

Present- — -Beady, P. J., and Daniels, J.

Order affirmed, with costs.


author: Brady, P. J. :

text:
    JOHN HALSEY HAIGHT, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK and Others, Appellants.

      Taxation — the property must be assessed in the name of the owner — when a defect in the name will not invalidate the assessment —1859, chop. 802, see. 7; 1867, chap. 410, see. 5.
    Section 7 of chapter 802 of 1859 requires a detailed statement to be made of all assessable real estate in New York city which shall state, among other things, “the name of the owner or occupant, if known.” Section 5 of chapter 410 of 1867 provides that “ no tax or assessment shall be void in consequence of the name of the rightful owner, or owners, of any real estate in said city not being inserted in the assessment-rolls or lists.”
    In this action, brought to restrain the payment of a tax on the ground that it was invalid because the property was assessed to “Est. R. K. Haight:”

      Held, that the error was cured by the act of 1867.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action at a Special Term.

      E. Ilenry Lacombe, for the appellants.

      J. Alfred Davenport, for the respondent.
   Brady, P. J. :

This action was brought to have certain taxes laid upon certain real estate declared void, and the assessment thereof vacated and set aside and stricken from the rolls.. '

The plaintiff, who is one of the residuary devisees of the land, alleged in the complaint, and it was not controverted, that the executor, having possession of the estate under a, claim of right, and to protect the lease which had been granted of the premises from forfeiture, threatened to pay these taxes as executor out of the estate of Richard K. Haight, and would pay the same unless restrained. It was also alleged that such payment would work a devastavit of such estate without possession of sufficient means by the executor to make good the same if the assessments were void.

It appears that the comptroller of the city before the commencement of the action advertised the premises for sale, among others, for unpaid taxes of 1878 and 1879, by publication in the usual mode, and that an injunction pendente lite was granted. Hpon the trial, judgment was rendered in favor of the plaintiff.

The property was assessed “Est. R. K. Haight,” meaning, it seems to be conceded, the estate of R. K. Haight, deceased, and it is not questioned that such an assessment was void. (Trowbridge v. Horan, 78 N. Y., 439.) Chief Justice Chuech in that case, in which the assessment was to “ Blackwell, R. M., Est.,” said that the title to real property is always vested in some person or corporation, either absolutely or in trust, and that the statute requires the assessment to be made to the owner and it is irregular and unauthorized to make it to an estate,” and further that no title could be acquired under a sale for taxes by such an assessment. (See, also, upon this subject Du Bois v. Webster, 7 Hun, 371; Cruger v. Dougherty, 1 Lans., 464; affirmed 43 N. Y., 107, 118.) If, therefore, there were no. existing statute the provisions of which cured this error, the propriety of the judgment rendered in the court below would be beyond contention. But unfortunately for the plaintiff’s case it is supposed that by chapter 410 of the Laws of 1867, section 5, the error mentioned is cured. It is provided by chapter 302 of the Laws of 1859, section 7, it is true, that the assessors in imposing the assessment shall give a detailed statement of the property in their respective wards or districts, together with the name of the owner or occupant, if known. But by section 5 of chapter 410 of the Laws of 1867, supra, it is declared that no tax or assessment shall be void in consequence of the name of the rightful owner or owners of any real estate in said city not being inserted in the assessment-roll or lists.

In assessing the property to “ Est. R. K. Haight,” there was an attempt on the part of the assessors to name the owner, which was a failure for the reason assigned by Chief Justice Chuech in the case cited ; and as the estate mentioned was not the rightful owner of the property, the statute of 1867 must necessarily apply and the assessment be protected and saved. If there had been no person named, that statute would not cure the defect. This seems to be a self-evident proposition, springing from the language of the statute itself. It requires, therefore, nothing more than a statement of it.

It was supposed by the learned justice in the court below who granted the injunction, and whose opinion was adopted by the learned judge who presided at the trial, that the case of Trowbridge v. Horan (supra), was an authority to the effect that the statute of 1867 contained no saving clause. This was an erroneous view of that case. A similar provision in another statute was cited and commented upon it is true, by Chief Justice Oi-iubch, but there was no question presented in the case either by the appellant or the respondent arising from that statute. The learned judge said, in reference to it: “ The owner’s name was not amended in the corrected assessment of 1877. In both assessments there was an ©mission to specify any owner, and it is questionable at least whether the curative provision in section 2 would reach such a case.”' But he said, the action is not based upon this point, nor could an equitable action be maintained upon this ground,” for reasons which he expressed.

It will be perceived, therefore, that it was not decided in that case, nor was it intended to be decided, that the curative provision of the act referred to, and which is kindred to that in the act of 1867 already mentioned, was not sufficiently broad and active to overcome the error committed in not naming the rightful owner. Indeed the intimation is that it was, and for the reason that the learned chief j'ustice said only, that it was questionable at least whether the curative provision was sufficient. It is supposed, as already suggested, that the act of 1867 cures the error, because there was a statement of the owner which was not a rightful statement, and not being a rightful statement the assessment was not void under its provisions. On this ’ subject it is very justly suggested by the counsel for the appellant that in a large city like this, it is not practicable to make an accurate statement of the names of the owners of property, and, therefore, the passage of the statute of 1867 supra. Indeed in that respect it may be said that the statutes should be liberally construed to accomplish the object designed.

Having arrived at the conclusion that the act of 1867 cures the defect which undoubtedly exists and which would unquestionably be fatal to the assessment were it not for the provisions of that statute, the judgment should be reversed and judgment absolute ordered for the defendants.

DaNIEls, J., concurred.

Present — Beady, P. J., and Daotels, J.

Judgment reversed; judgment absolute ordered for defendant.


author: Ready, J.:

text:
    JOHN COLLINS, Appellant, v. SARAH JANE COLLINS, Respondent.

      Tenant for life of real estate — right of one interested in the remainder to prevent hie alienating the estate.

    The complaint in this action alleged that E. K. Collins, the deceased husband of the defendant, conveyed to her through a third person certain real estate, under and in pursuance of a written agreement duly executed by the defendant, providing that, notwithstanding the conveyance, she should take but a life estate therein, and that at her death the same should revert to and become a part of the estate of E. K. Collins, the conveyance being made to give her the • net income of the property during her life. The complaint further alleged that the said real estate had been exchanged for other, property, with the understanding that the latter was to be held under the same agreement; that the defendant had sold a portion of the said property and mortgaged it to secure money loaned, and had converted the proceeds to her own use, and that she was a person of no pecuniary responsibility.
    It further .alleged that the plaintiff was the oldest son of one of the heirs of E. K Collins; deceased, and that he was largely interested in the estate, and that E. K. Collins was, at the time of his death, indebted to the plaintiff for money loaned.

      Held, that the plaintiff could maintain an action to have the defendant restrained frpm conveying the property, and to compel her to account for the proceeds of the property sold and mortgaged.

      Moyer v. Moyw (21 Hun, 67) followed.
    Appeal from a judgment dismissing the complaint, entered upon the trial of this action by the court without a jury.

      W. T. Birdsall, for the appellant.

      Philip Jordan, for the respondent.
   Ready, J.:

The complaint alleges that one Edwin K. Collins, the husband of the defendant, and the defendant herself, executed and delivered to one Jacob Holwegs, a deed of certain property in "Westchester county, and that at the time of such conveyance the property mentioned in the deed belonged to Edwin K. Collins ; and further, that the said Jacob Holwegs and his wife conveyed the same property to the defendant, and that such conveyances were executed under and in pursuance of a duly executed declaration and 'agreement in writing, made by the defendant, that she was to hold the property during her life, and that notwithstanding such conveyances she took but a life estate therein, and at her death the same would revert to and become a part of the estate of the said Edwin K. Collins ; and further, that the said conveyances were made only for the purpose of giving to the defendant the net income of the property during her life. The complaint further alleges that an exchange was made of that property for property in the city of New York, which was duly conveyed to the defendant by the person with whom the exchange was made; and it is further alleged that such conveyance was made also upon the understanding and agreement, between Edwin K. Collins and herself, and a duly executed declaration by the defendant, that the property then conveyed to her was held in the same manner and for the same purpose only as the property which was exchanged. The plaintiff then alleges the death of Edwin K. Collins, leaving him surviving the said defendant and various heirs at law. He further alleges that the defendant has sold, a portion of the property and mortgaged it to secure the payment of a sum of money named, and has wrongfully converted the moneys arising from such proceeds to her own use.' He also alleges that the defendant is a person of no pecuniary responsibility, and unless restrained he fears that she will convert the property into cash; that she has no means to' respond to the estate for her misappropriations ; that he is the oldest son of one of the heirs of the said Edwin K. Collins, deceased, and largely interested in his estate. He further alleges that Edwin K. Collins was at the time of his. decease indebted to him for moneys loaned and advanced, no part of which has been paid. He also alleges that the conveyances to the defendant were made without consideration.

The defendant denies that the deeds mentioned were without consideration. She alleges that there was a consideration of $15,000 given by' her several years prior to the date of the conveyance, and Edwin K. Collins was not, at the time of the conveyance executed by him, the owner of the property. She denies that there was any declaration or agreement ever made by her to hold it as alleged in the complaint, and alleges that the conveyances were made to vest in her an absolute ownership of the fee, and that ever since the conveyance she has been the owner in fee of the property in this city; and further, that neither her deceased husband nor any person whomsoever besides herself has any right, claim or interest in such property. She denies that Edwin K. Collins made any trade at all, and asserts that every transaction in regard to the sale or exchange was made by her as the owner in fee. She admits selling and-mortgaging the property charged in the complaint, but denies that she has unlawfully or wrongfully converted the moneys to her own use. She also denies that she is a person of no pecuniary responsibility, and charges that the plaintiff has no interest in that question, .and that neither he nor any other person has any right, title or interest to the property mentioned and described in the complaint, •of which she is the sole and absolute owner. She denies also that the estate of Edwin K. Collins is indebted to the plaintiff or that any accounting was had between the plaintiff and her husband deceased, and alleges that, in addition to being the sole and absolute •owner of the premises mentioned and described, she is a creditor ■of the estate to the amount of $5,600. Upon the issues thus created the case was brought to trial at the Special Term, whereupon the plaintiff moved to amend the complaint, by alleging that he was ignorant of the transfers alleged in the complaint in the •action or the arrangement under which the sale was made, until ■after the death of his father. The motion was denied and an, •exception taken. It appeal’s from the case as submitted that thereupon the defendant’s counsel moved to dismiss the complaint upon the pleadings, which motion was granted and an exception taken. The grounds on which the motion was predicated are not stated, and no reason is assigned by the learned justice presiding at the trial why the complaint was dismissed. From the points submitted •on behalf of the respondent it would seem, however, that the complaint was assailed because there was an allegation of an executed declaration and agreement, in reference to the defendant’s holding the property, without giving its contents or. dates, and that it was claimed by the plaintiff’s own showing that the defendant was ■entitled to hold the property during life, and such being the case the plaintiff had no standing in court because he was not a judgment-creditor, invoking the rule that a creditor at large has no status in a court of equity, and the right of a judgment-creditor depends upon the fact of his having exhausted his legal remedy.

These grounds would seem ordinarily to be sufficient to justify the disposition of the case made at Speeial'Term. But the case of Moyer v. Moyer (21 Hun, 67), decided in the Fourth Department, is an authority for the maintenance of the action in its present form. In that action there was a conveyance of property by the owner, who occupied it with his wife and family, to his son, the defendant, upon the verbal understanding and agreement that the farm should be kept and held by the latter as a home for the family during the minority of the children, and when the youngest child should come of age it or its proceeds should be divided among them .all. The defendant repudiated the trust, asserted that the farm was conveyed to him after the father’s decease, and claimed to be sole owner; whereupon an action was brought by one of the children to have it adjudged that he held the farm as trustee for the surviving ■children, and to compel him to convey to them their respective shares therein. The court held, upon a consideration of these facts and upon all the authorities bearing upon the questions springing from them, that the judgment of the referee in favor of the plaintiff should be confirmed. That case is regarded as decisive of the present one, and as having imposed upon the learned judge presiding in the court below the duty to hear the evidence relating to the issues, •and to determine upon such evidence whether the plaintiff’s case was ■established or not. If the defendant were not pecuniarily responsible, it was a proper case, during her life, for an injunction restraining her from making any disposition of the property. And, indeed, whether she were insolvent or not, if she occupied such a relation •towards the heirs-at-law of Edwin K. Collins, as asserted, she should not be permitted to dispose of the property, for she was invested with a conditional or qualified title only..

For these reasons it is thought, without any more extended consideration of the case, that the judgment of the court below should be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J, and DaNiels, J, concurred.

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


author: Daniels, J.:

text:
    MARGARET BECKENBAUGH, Appellant, v. THOMAS H. NALLY and WINNIFRED NALLY, Defendants. CHARLES E. APPLEBY, Purchaser, Respondent.

      Agreement to purchase real estate — what will justify the purchaser in refusing to accept the title.

    Upon the sale of certain property upon the foreclosure of a mortgage, the terms of sale stated that it would be made “subject to a lease of the present upland of said property, to expire May 1, 1884.” At the time of the sale a brick building, claimed to be worth about $5,000, was standing upon the upland. By the terms of his lease the tenant was entitled to remove the building. No notice of this right was given at the time of sale.

      Held, that the buyer was not bound to complete his purchase.
    Appeal from an order made at a Special Term, releasing and discharging Charles E. Appleby from his purchase of certain premises sold under a judgment of foreclosure, and directing the return to him of the money paid by him under the terms of the sale*

      P. D. Mitchell, for the appellant. -

      Arnold H. Wagner, for Charles E. Appleby, respondent.
   Daniels, J.:

The purchaser was relieved from his obligation to complete the sale for the reason that a tenant under a lease of a portion of the property was, by the terms of his lease, entitled to ■ remove a brick building situated upon the property. This building is alleged tO' have been of the value of $5,000, and that it was a substantial brick building. At the time when the sale took place no notice was given of this right of the lessee to remove the building, but in the statement of the terms of sale it was merely stated that it would be made “ subject to a lease of the present upland of said property, to expire May 1, 1884.” But from this notice of the-lease the purchaser at the sale would not be required to infer that the right to remove the building was reserved by its terrhs. For, as the statement in the notice was made, it was simply of the existence of the lease, without any information concerning any additional or peculiar stipulations or covenants contained in it. And what a. purchaser with such notice given would infer from its language was that the upland portion of the property was subject merely to the right of the continued occupancy of the tenant until the 1st of May, 1884. That would be the ordinary understanding produced by this statement. Fairness to him should have added that under the lease, in addition to the right of .occupancy, the tenant was also secured the right to remove the building, for without that information no suspicion would ordinarily be created that such a right was vested in the tenant. And as the purchaser made his bid under a misapprehension on this subject, and it was a material circumstance affecting the propriety of the bid, it would be inequitable to require him to comply with it after it had been made under this mistake. Fair dealing required that the fact itself should have been stated,- and that the purchaser should not have been permitted to make his bid without understanding that this important right had been reserved to the tenant.

The case of Riggs v. Pursell (66 N. Y., 193) has been relied upon as in conflict with the order from which the appeal has been taken. But that is not its effect. The sale there was of a leasehold interest in premises, and the terms stated the date, time and place of recording the lease, and it was held that the purchaser was chargeable with at least a constructive notice of the contents of the lease at the time when he made his bid. But in the decision of the case it was held that “ purchasers are entitled to all'the property and title which the referee undertook to sell, and which they rightfully supposed they were to receive.” (Id., 198.) This purchaser by completing his purchase would not obtain the premises, as he had reason to-believe they were put up for sale, for as they were offered it was the entire property, as it appeared, subject only to the lease of the upland for the period mentioned, while as they were sold they were subject to the additional right of the tenant to remove the building, to which no title could be acquired by the purchaser, and by the exercise of that right the purchaser would be deprived of a part of the property he had reason to believe he was to obtain by means of his purchase, and that under the authority of this case the court could not authorize, neither would justice permit him to be subjected to it. On his part there was a plain mistake as to the property he was to obtain, and on the part of the party selling a ’ concealment, either accidental or intentional, of the want of title to an important part of the property sold, and the court will not oblige á purchaser to complete his purchase under such circumstances. (Riggs v. Pursell, 74 N. Y., 370.) He will not be required to accept even a doubtful title. (Piser v. Lockwood, 30 Hun, 6; Lockman v. Reilley, 29 id., 434.) And within that rule he certainly cannot be obliged to accept property, to an important part of which he could obtain under the sale no title whatsoever.

It has been urged that as the grade of this portion of the city had not been fixed, that the building would ultimately be required to be removed, and for that reason would be of little value. But this fact, even if it be conceded, will not affect the disposition which should be made of the case, for. in any event the purchaser, under the térms of sale, had good reason to believe that he would acquire the building as a part of the property, and he was entitled to all the chances of benefit which might be derived from that circumstance, and having failed to obtain that title he was not bound to take the property.

The order from which the appeal has been taken should be affirmed, with ten dollars costs and disbursements.

Davis, P. J., and Bbadt, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: DaNiels, J.:

text:
    CHARLES A. CLEGG, Appellant, v. WILLIAM E. CRAMER, ANDREW J. AIKEN and JOHN F. CRAMER, Respondents, Impleaded, etc.

      Counter-claim — when one existing in favor of a part of the defendants mag he set up hy them.

    la an action brought by the plaintiff against several defendants, for,the breach of a contract alleged to have been made with them, three of them answered, alleging that the contract, whatever were its terms, was made with them, and setting up a counter-claim for breaches of the contract made by the plaintiff with them.

      Held, that as the three defendants alleged that the contract sued upon was made exclusively with them, they were entitled to set up the counter-claim, although the other defendants had no interest therein.

      Appeal from an interlocutory judgment, entered upon an order overruling a demurrer to counter-claims set up in an answer served by three of the defendants herein.

      William H. O'Dwyer, for the appellant.

      John K. Porter, for the respondents.
   DaNiels, J.:

The action was brought by the plaintiff for the breach of a contract alleged to have been made with the defendants for the publication of advertisements in various newspapers printed in different portions of the United States, and for the recovery of an amount alleged to have been paid for the expenses of advertisements not actually made. Three of the defendants answered, alleging in substance, that the contract, whatever may have been its terms, was made with them, and then by way of further’ defense they set forth a large number of counter-claims upon the contracts alleged to have been made with them by the plaintiff which he failed to perform. And' it was to the portions of the answer presenting these counterclaims that the plaintiff demurred. His demurrer proceeded upon the ground that as the counter-claims were not alleged to exist in favor of all the defendants in the action, that they were improperly set forth in the answer of the three defendants. And this position would undoubtedly be true if the answer conceded a joint liability to the plaintiff by all the defendants. But it did not. The three defendants answering, in effect, alleged that the contract was made exchisively with them. And if that fact shall be established at the trial, then the complaint must be dismissed as to all the remaining defendants. For even if it be assumed that a joint contract has been set forth in the complaint as the ground of the action, the court, at the trial, can still award judgment in favor of the plaintiff against these three defendants, if, as a matter of fact, it shall be made to appear that they were the only persons liable to the plaintiff. (Code Civil Pro., § 1204; McIntosh v. Ensign, 28 N. Y., 169.)

And by the answer of the three defendants, they asserted that to be the nature of the liability. They were not concluded upon this subject by any allegations contained in the complaint, but were at liberty to deny the alleged joint liability, and further to allege the fact to be that whatever contract had been made was made by themselves alone with the plaintiff. And if they should turn out to be correct in those allegations, then the action would become an action between the plaintiff and themselves. And in that contingency the counter-claims set forth by them in their answers would be legally applicable to any claim which might exist in favor of the plaintiff, under the agreement or agreements, relied upon by him. This was an entirely proper mode of proceeding. The three defendants were clearly entitled to aver that the liability relied upon by the plaintiff was wholly confined to themselves, and to follow that averment with such counter-claims as existed, or might be alleged to exist, in their own favor against him. This was the course of practice which they followed. It was entirely right, and the judgment from which the appeal has been taken should be affirmed,.with costs.

Davis, P. J., and Brady, J., concurred.

J udgment affirmed, with costs.