author: Learned, P. J.: Bockes, J.:

text:
    In the Matter of the Examination of CORNELIUS H. SLINGERLAND, in Relation to Assets of the Estate of PETER W. TEN EYCK, Deceased.

      iExamination of a person liming property belonging to the estate of a deceased person— all the executors or administrators should be parties to the proceeding — Codo of Civil Procedure, sea. 2706 — an order denying a motion to dismiss the proceeding is appealable.

    ■On the petition of one Tracy, as administrator of the estate of Peter ~W. Ten Eyck, the Surrogate’s Court of Albany county issued a citation requiring one Slingerland to appear and be examined as to certain articles of personal property belonging to the estate which were alleged to be in his possession. Upon the return day it was shown that letters of administration had been issued to the intestate’s widow, as well as to the petitioner; and that both had qualified and each had filed a separate inventory.

      Held, that the petition and citation should have been dismissed, as the administratrix should have been made a party to the proceeding.
    That an order of the Surrogate’s Court denying a motion for a dismissal of the petition affected a substantial right, and was appealable.'
    Appeal by Cornelius H. Slingerland from an order, made by the Surrogate’s Court of Albany county refusing to dismiss the petition and citation of one Tracy, as administrator of Peter W. Ten Eyck, requiring appellant to appear before the surrogate and be examined concerning the personal property belonging to the estate of the deceased.

      One Tracy, as administrator of Peter ~W. Ten Eyck, deceased,, on the 3d of December, 1884, presented a petition to the Surrogate’s Court of Albany county, praying for an order respecting certain property he alleged to belong to his intestate, and to be in. the possession or under the control of said Slingerland, accompanied by the affidavit of Peter Whitbeck, specifying the property, etc.
    The surrogate, December 3, 1884, issued a citation to Slingerland requiring him to appear on the 18th of December, 1884, “then and there to attend the inquiry concerning certain personal property belonging to the estate of Peter "W. Ten Eyck, * * * alleged to be in your possession and under your control, and to be examined personally in respect to the same.” At the time appointed Slingerland appeared and showed that letters of administration were issued upon the estate of Ten Eyck to Elizabeth Ten Eyck, his widow and Tracy, jointly, July 11, 1883; and that each qualified and that each had filed a separate inventory. • Slingerland moved to dismiss the proceedings on the grounds, among others, that the petition and proceeding was not in the name of both administrators, nor was. the administratrix in any way made a party to the proceeding The surrogate denied the motion, and Slingerland appealed to this court.

      WilUam G. MeHarg and Nathaniel G. Moah, for Slingerland,. appellant.

      James Fenimore Cooper and Matthew Hale, for Tracy, administrator of Ten Eyck, respondent.
   Learned, P. J.:

It is not necessary for the appellants to insist that the order was void. The petition did not show that there was an executrix, and therefore justified the granting of the order. It is enough for the appellants to show by other proof that it should be set aside ; as where a defect of parties plaintiff does not appear on the face of the complaint. (Code, § 498.) That the order for examination: affects a substantial right can hardly be doubted. If the appellant shows Hint it should not have been granted, then the refusal to set it aside affects a substantial right. The motion to set the order aside is not analogous to a motion to dismiss a complaint on the trial. Here an order of the court lias been granted. If improperly, it should not stand. To require the appellant to go through with the examination and then appeal would be to deny him any redress. He claims that on the facts shown he should not be examined. His appeal is more analogous to an appeal from an order requiring a party to be examined before trial. It could never be held that, under such an order, the party must submit to the examination and afterwards appeal.

The general rule is undoubtedly that in any legal proceedings against a third person all the executors must join. True, one executor of several may receive payment of a debt. So may one partner. But all partners must join in legal proceedings against a third person. The provision of section 448 that a person who refuses to join as plaintiff may be made defendant, shows the uniformity of the principle that all who are interested must be parties. Again, in an action against two or more executors, all are considered as one person. (Sec. 1817.) And section 1818 provides that one of two or more executors to whom letters have not been issued is not a necessary party to an action or special proceeding. By implication this declares that all to whom letters have been issued are necessary parties to an action or to a special proceeding.

The respondent relies on the use of the words “ an executor,” in section 2706. But it is a familiar rule that the singular should be construed to embrace the plural where good sense requires. And it will be seen by reference to section 2750 that when it was intended that one executor of several might take a special proceeding, this was expressly stated, “ an executor or administrator, whether sole or joined in the letters with another.” Expressio unvus exclusio alterius. If it is specially provided in section 2750 that in the proceedings therein authorized one of several may act, the fair inference is that all must act when the contrary is not expressly provided.

But it was urged that by the decision in Jackson v. Robinson (4 Wend., 436), one of several executors might take proceedings for the sale of real estate. That case throws no light on the present question. 1. The decision was in favor of a bona fide purchaser. 2. The petition did not show that there was another executor, and therefore the proceedings were regular on their face. 3. The Code (§ 2750) has expressly provided that one of several executors may act in that case. á. That proceeding is not strictly against a third person claiming, it may be, in opposition to the estate.

The respondent insists that by the amendment of 1881, chapter 535, the proceedings must be dismissed if the party to be examined makes oath that he is the owner, etc. Hence the respondent urges that this proceeding is not like an action, and no relief against the party is given. But it must be remembered that when, this law was adopted there was no such provision, and that by section 2712 the surrogate could compel delivery or security even against one claiming to own the property. We must construe section 2706, therefore, as the law stood when it was adopted. It then established what was equivalent to a very speedy and summary action for the recovery of property. There is no reason why, in such a summary proceeding to recover property, the same persons should not be parties plaintiff, as would be necessary in a formal action of trover or assumpsit.

We think the order of the surrogate ref using to dismiss the petition should be reversed, and the petition should be dismissed. The question is new, and the petitioner is an administrator. Therefore no costs are allowed to either party.

Bockes, J.:

On the argument of this appeal I was quite inclined to the opinion that the proceeding made Mr. Slingerland a witness merely as to the matters of inquiry, and in no way affected his rights of property. But an examination of the Code of Civil Procedure, under which action is taken (sec. 2706 etseq.), shows that the proceeding is against him as a party. A trial is provided for (sec. 2711), and either party may produce further evidence than such as may be given by the person named and proceeded against in the petition. A judgment or decree may be made against him for the possession of the property, and a warrant of dispossession may be issued thereon to the sheriff. He is none the less a party because of his right to arrest the proceeding by giving security, as provided for in section 2713. Indeed that rather emphasizes the assertion that he is a party.

Thus it appears that the action taken is a special proceeding in which the petitioner and the person named in the petition, whose examination is sought, are adverse parties — adverse parties in a legal proceeding, having for its object a trial and a judgment of a competent tribunal. Such a proceeding should be taken in the names of all the persons directly interested in its prosecution. I am quite satisfied with the opinion of Mr. Justice Learned on all branches of the case, and concur in his conclusion that the order appealed from should be reversed.

■Present — Learned, P. J., JBookes andLANDON, JJ.

Order reversed, no costs to either party.


source: Caselaw Access Project

author: Bocees, J.: Learned, P. J.

license: Public Domain

text:
    FANNY B. HAIGHT, Respondent, v. JAMES C. BRISBIN and MORGAN B. MOE, Appellants, Impleaded, etc.

      ■Sureties on an executor’s bond — when an action lies against them before any order or claim against the executor has been made in the Surrogate’s Court— Code of Civil Procedure, sec. 2607.
    In this action, brought against the principal and sureties on a bond, conditioned that the principal should faithfully discharge the trust reposed in him as executor and trustee, the complaint set forth two causes of action. The first count alleged that the executor had been guilty of gross neglect and bad faith in omitting to sell the real estate of the deceased and to invest the proceeds thereof as required by the will, and demanded judgment for the damages resulting therefrom. The sureties demurred to the entire complaint, upon the ground that it was not alleged that the default of the executor had been established against him by an order or decree of the surrogate.

      Meld, that as the demurrer was to the entire pleading, it should be overruled, if either of the causes of action was well pleaded.
    That the Surrogate’s Court had no jurisdiction over the first cause of action seeking to recover damages. That consequently no judgment or decree for that breach of the executor’s duty could be obtained in that court, and the demurrer to the complaint in this action was, therefore, properly overruled. (Learned, P. J., dissenting.)

      Mood v. Mood (85 ÍT. Y., 561) distinguished.
    Appeal from an interlocutory judgment, entered upon an order overruling a demurrer interposed to the complaint.

      P. C. Ford, for the appellants.

      E. F. Bullard, for the respondent.
   Bocees, J.:

Appeal from an interlocutory judgment overruling a demurrer to the complaint.

The action is on a bond, conditioned tliat the defendant Giles S.. Brisbin should faithfully discharge the trust reposed in him as executor arid trustee under the will of Catharine S. Bailey, deceased. The complaint contains two counts. The demurrer is to the entire-pleading on the ground that it does not state facts sufficient to constitute a cause of action. If therefore either be good the demurrer was properly overruled. The point of the demurrer is this : that the liability of the sureties (the parties demurring) is not shown in and by the complaint, inasmuch as it contains no averment that the default of the executor had been established against him by the order or decree of the Surrogate’s Court, and we are cited to section 2607 of the Code of Civil Procedure, and to Hood v. Hood (85 N. Y., 561) in support of this objection to the pleading. The answer of the plaintiffs counsel to this objection is that the first count in the complaint charges a breach of the bond in this; that the executor had been guilty of gross neglect and bad faith in omitting to sell the real estate of the deceased and to invest the proceeds-thereof as directed and required in and by the will, and that over such breach and as to such ground of action the Surrogate’s Court had no jurisdiction. Undoubtedly, the counsel is right in lii-s position that the surrogate had no jurisdiction over this subject. If so, the plaintiff is pursuing the only remedy available, or that can be made available to her. The case of Hood v. Hood does not determine the point against the plaintiff. There the action was-brought to compel an aaooimting by the executrix and executor, and to charge the executor with funds of the estate alleged to-have been misapplied and converted by him to his own use, and to compel his sureties to pay the sum or amount with which he should properly be charged. That was a matter over which the surrogate had jurisdiction. Not so here. This suit is-for damages, not to recover a balance to be found due on an accounting. How much may be recovered, or whether the recovery can be more than nominal, is not a question here before us. That will become matter of proof on the trial. Here it was impossible to obtain a judgment or decree in the Surrogate’s Court for the breach of the bond counted on. In such case an action may be maintained for such breach by the injured party without attempting an impossibility. (Williams v. Kiernan, 25 Hun, 355; Haines v. Meyer, Id., 414, and cases there cited.) The doctrine of these cases is not impugned by the decision in Hood v. Hood. That case holds this, and this only, that where the remedies required to be pursued may be pursued, they must be resorted to. But the rule is there recognized that where special circumstances exist showing a necessity for the interposition of the court in order to the attainment of a right, and those circumstances are stated, the court will not hold that which is impossible to be a bar to an action for relief.

It is further urged, by the appellant’s counsel, that section 814 of the Code of Civil Procedure saves the pleading from the objection urged to it. It is insisted that no provision is specifically made by law for the prosecution of the bond counted on, because of the breach here alleged. Believing that the appellant’s case may well stand on the point above considered, we need not here examine this question.

We are of opinion that the interlocutory judgment appealed from should be affirmed.

Interlocutory judgment affirmed, with costs, but with liberty to answer over on the usual terms.

Landon, J., concurred.

Learned, P. J.

(dissenting):

I understand that the case of Hood v. Hood (85 N. Y., 561) holds distinctly that no action can be maintained against the sureties on an executor’s bond save in case of disobedience of some order of the surrogate. So it is expressly stated at page 574.

In the present complaint the plaintiff alleged gross neglect on the part of the executor, in failing to sell the real estate. Still, until there has been an accounting, it does not appear whether, on the whole, he is in default.

Again, the bond was given in 1882. In August, 1884, the plaintiff recovered damages against the executor in a common-law action, for neglect to execute his trust. There is no allegation th*at this neglect occurred subsequently to the execution of the bond.j, The executor had been acting since 1871.

It is suggested that on an accounting of the executor and testar mentary trustee, before the surrogate, he could not be charged with, damages for a neglect of duty in not selling the land. The surrogate has now jurisdiction to pass the accounts of a testamentary trastee. (Code, § 2802 et seq.) ■

A negligent administration of assets, defeating the rights of parties, amounts to a devastavit. (Williams’ Executors, 1801 et seq.) On an accounting, if an executor has neglected to sell stocks which he was directed to sell, and thereby has caused a loss to the estate, he may be charged on an accounting. (Daly's v. Estate, 1 Tucker, 95 ; see, also, Code, § 2817, sub. 2.) It is very common on an accounting to charge executors for loss occasioned by improper investments. I see no reason why they may not be charged for any other injury to the estate or to the parties interested. Indeed it seems to me quite doubtful whether an action at law will lie by the eestui que trust against a trustee for misconduct, while the trust is still in existence. (Dias v. Brunnell's Executor, 21 Wend., 9; Hill on Trust., 518; Pomeroy’s Eq., § 1080.) In general a trustee is only suable in equity in regard to any matters touching the trust. But if he chooses to bind himself by a personal covenant in any such matters he-will.be liable at law.” (Story’s Eq., §§ 975a, 962, 971.) A cestui que t?'ust cannot bring an action at law against the trustee while the trust is still open., (Johnson v. Johnson, 120 Mass., 465; Davis v. Coburn, 128 id., 377; Congdon v. Cahoon, 18 Vt., 49.)

It seems to me a novel doctrine that the question whether a trustee has neglected to perform some trust duty should be decided by a jury, and that a jury should award damages. I should have supposed that a trustee was entitled to the protection of a court of equity on the question between him and his cestui qux trust respecting the performance of a trust duty. But however this may be as to the executor and trustee himself, the right of sureties not to be sued until after the executor or trustee has disobeyed some order of the surrogate, appears to me to be established beyond question in Hood v. Hood.

Therefore I think the judgment should be reversed.

Judgment affirmed, with costs.


author:
Learned, P. J. :
      Bockes, J.:

text:
    JAMES STOCKWELL, as Receiver, etc., of NATHANIEL ROWELL, Appellant, v. THE NATIONAL BANK OF MALONE and NATHANIEL ROWELL, Respondents. SAME v. SAME.

      Deposit of pension in savings hank — exempt from execution under Code of Civil Procedure, section 1898.
    The plaintiff, having been appointed a receiver of the property of one Rowell in supplementary proceedings instituted upon a judgment recovered against him, brought this action to recover from the defendant bank the amount of a deposit held by it for the said Rowell. The deposit consisted of pension money received by Rowell and deposited with the bank, partly in cash and partly in a check or draft of the pension agent, under an agreement that interest should be allowed thereon.

      Held, that the fund was exempt from execution under section 1398 of the Code of Civil Procedure. (Bocees, J., doubting, and not concurring.)
    Appeal from judgments dismissing the complaint in the above-entitled actions, entered upon the trial of the actions by the court without a jury.

      W. P. Ccmlwell, for the appellant.

      Hobbs da Kilburn, for the respondents.
   Learned, P. J. :

The plaintiff, a receiver of the property of one Rowell, appointed in proceedings supplementary taken by a creditor of Rowell, seeks in this action to recover money standing to the credit of Rowell in the savings department of the National Bank of Malone. The defense of the bank and of Rowell is that the money is pension money, and therefore is exempt under Code section 1393.

For military services in the late civil war Rowell was granted a pension by the Hnited States. Having in his possession $100, part of such pension money, and also a check or draft of the pension agent for $1,000, being also a part of such pension, Rowell deposited the said money and the said check or draft to his credit in the said Eavings department; where the same stood to his credit at the time of the appointment of the plaintiff as receiver as aforesaid. At that time there also stood to his credit the sum of nineteen dollars, credited to him for interest on said deposit of $1,100, making in all $1,119 ; all of the same being such pension money and interest. The bank allows him interest on his deposit. He did not have actual possession of the $1,000 mentioned in the draft, but deposited the draft itself as above stated.

The question is whether the money is exempt. The "United States law (R. S., § 4747) does not apply. That protects pensions “ in the course of transmission.” The decisions under that law are therefore of no weight in this case. Such are Cranz v. White (27 Kan., 319); Webb v. Holt (57 Ia., 712); Jardain v. Fairton Savings Fund Association (44 N. J., 376); Kellogg v. Waite (12 Allen, 529); Spelman v. Aldrich (126 Mass., 113).

The section of the Code, omitting the parts which are not material, is: “A pension * * * granted by the United States * * * for military * * * services ” is “ exempt * * * from seizure for non-payment of taxes, or in any other legal proceeding.” The other things exempted by the same section are things which usually are in the actual possession of the person entitled to them. And it is apparent that by this section a pension is exempted, not, as by the United States statute, only when “ in course of transmission,” but after it has been received by the pensioner. Then the question is whether this money, by its deposit in a savings bank on interest, had ceased to be a pension under this section.

In Whiting v. Barrett (7 Lans., 106), under a similar statute it was held that county bonds being exempt, might be transferred by the soldier to his wife; and that such transfer would not be in fraud of his creditors, as they had no claim to the bonds. This case shows that a transfer of the exempt property did not authorize the creditors to reach it.

The case of Wygant v. Smith (2 Lans., 185) was one where the property claimed to be exempt was the result of successive dealings and transfers. As the court say it was in part the third and in part the sixth or seventh remove from the original exempt fund.” That is not the present case.

The plaintiff urges that by the deposit of the money the identity of the pension was lost, and that Rowell became simply a creditor of the bank. Now the pension reached Nowell in the form of a draft. It would be absurd to say that if Nowell should obtain the money on that draft he would change the form, so that the money would not be exempt. Then must he hold that money in his actual custody, or may he do, as prudent men do, deposit it in a bank and use it as he needs ? It would be clearly unreasonable to hold that the quality of exemption was lost by what was only a careful mode of preserving the money. It is true that, accurately speaking, the bank becomes the debtor. Still, practically, the money is there for the depositor’s use and is so regarded by him. And none the less so because the bank allows interest.

The section did not intend to prevent the pensioner from using his pension. It would be of no benefit to him unless he could use it. We are not called upon to say in this case to what extent purchases made with this exempt money would be themselves exempt. Though we should be disposed to hold that every thing bought in the ordinary way of using and enjoying such a pension would be exempt, as the pension itself is.

But in the present ease, in all fair and reasonable meaning, this money in the savings bank is the pension, just as much as the draft was, and just as much as the avails of the draft would have been, if Nowell had received the avails in money.

An illustration of the view we have taken may be seen in Tillotson v. Wolcott (48 N. Y., 190), where it was held that a judgment recovered by a debtor against his creditor for unlawfully levying on and selling exempt property was itself exempt.

The object of the section is to secure the pensioner in the use and enjoyment of this gift of the government, and to prevent his creditors from taking it away. As far as possible the courts should protect him in such use and enjoyment. If, like a prudent man, the pensioner places his money in bank, where it will gain a little interest, it would be most unjust to make this act the ground of depriving him of that which the State intended that he should keep and enjoy. See, also, the case of Wildrick v. De Vinney, (18 N. Y. Weekly Dig., 355), which seems to be exactly in point.

Judgments affirmed in each of the two cases, with costs.

Landon, J., concurred.

Bockes, J.:

I am not free from doubt in these eases. There must be a time,. I think, after the pensioner has received his pension money and. put it to use, when the exemption declared by section 1393 of the Code of Civil Procedure will cease to operate for its protection. Pension money is protected until it comes to the hands of the pensioner under the United States statute (§4747). (Cranz v. White, 41 Am. Rep., 408, and cases cited in note on pages 411, 412, 413 ; also Friend in Equity v. Garcelon, 1 Eastern Reporter [77 Me.], 57.) These cases, or some of them, hold that the money will be deemed to be no longer exempt under that statute after the government draft is received by the pensioner, and being indorsed by him the avails are placed to his credit in a bank of his selection. Accordingly, the money in this ease was not protected by the United States statute. It had, in law, come to the pensioner’s hands; that is, was subject to his personal control, and in this case had been put by him to use.

The question then arises, under section 1394 of the Code, whether it shall continue exempt after being received by the pensioner, ever afterwards, however employed, so long as it, or its avails when converted into securities or property, can be traced ? This question is answered in the negative by the decision in Wygant v. Smith (2 Lans., 185). The question in the case cited arose under the law of 1864 (chap. 578), similar in import to the section of the Code under which the exemption is here claimed. Judge Johnson, speaking for the court, there says: “ It has never yet been held that, where a debtor voluntarily sells or exchanges property which the law exempts from levy and sale by execution, and converts it into other property which the law does not exempt, the exemption attaches to the new property so purchased or taken in exchange. On the contrary, the principle and spirit of the decisions are all the other way.” (See, also, opinion in Allen v. Cook, 26 Barb., 374, a case which arose under the homestead exemption law; also Youmans v. Boomhower, 3 N. T. S. Ct. B. [T. & C.], 21.) It seems to me that the decision? abcve referred to under the United States statute are not without application here. That law as effectually protects pension money as does section 1393 of the Code. That law declares that pension money shall be exempt, etc., and “ shall i/nure wholly to the benefit of the pensioner.” The words “ whether the same remains with the pension office, or any officer or agent thereof, or in course of transmission to the pensioner entitled thereto,” do not limit or operate in restriction of the general exception declared by the law. Those words were very manifestly not intended to be construed as restrictions, but were employed rather to remove any possible doubt as to the enlarged and comprehensive-signification to be given 'to the law; and to give additional emphasis to it in this regard there was superadded as follows: But such pension money “ shall inure wholly to the benefit of such pensioner.” Thus it will be seen that the exemption declared by the Code of Civil Procedure is no more comprehensive or extensive in its meaning than is the United States statute. But, under this statute, the decisions are to the effect that the exemption continues only until the money reaches the hands of the pensioner and is by him put to use. As suggested in Crosby v. Stephan (32 Hun, 480), through licw many mutations is the exemption to extend ? If the party buys securities and sells them and buys others, are they exempt? If not, when does the exemption cease? ^It must cease-at some time in the course of the mutations. Suppose the money had been used by the pensioner in the purchase of a farm, or had been employed in merchandise, would the property into which it. had been converted be protected under our Code ? This cannot be maintained. (Allen v. Cook, supra.) It would be the same if put in bond and mortgage, note or other security, or in bank on interest. The Code exempts “pension/” also “sword, horse, medal, uniform, arms and equipment ¡ ” all by the use of the same words and in the same paragraph. In case the sword, or horse, or medal, etc., should be converted into money or other property, would the-exemption attach to such money and property? Now, “pension” is protected by the same words of exemption. Then, would not its conversion to general use operate to discharge the exemption, the same as would the sale or exchange of the exempted sword ? I do not think that the case of Whiting v. Barrett (7 Lans., 106) at all conclusive of the question in defendant’s favor. There was a transfer, while yet the creditor had no claim upon the property either legal or equitable.. In this respect the case was an authority for the decision (in part) in Youmans v. Boomhower (supra). But I do not propose here to protract the examination of the subject, inasmuch as my brothers Learned and Landon are for affirmance. Their concurrence makes the judgment; and I will now content myself with the expression of serious doubt as to the correctness of such conclusion.

Judgment affirmed, with costs.


author: Learned, P. J.: Bookes, J.:

text:
    Supplementary Proceedings for the Collection of Tax of JACOB CONKLIN.

      Examination of delinquent taxpayers — -what facts must be stated in the affidavit— 1867, chap. 361, sec. 1, as amended by chap. 640 of 1881.
    Where an application is made, under section 1 of chapter 361 of 1867, as amended by chapter 640 of 1881, for an order requiring a resident of the county, against ■whom a tax exceeding in amount ten dollars has been returned by the collector uncollected, to appear and be examined concerning his property, the affidavit need only allege the facts stated in the said section; and need not allege facts sufficient to show that the assessors and board of supervisors had jurisdiction to impose the tax in question. (Bocees, J., dissenting.)

    Appeal from an order made by the county judge of Columbia ■county, vacating a former order made by him requiring the respondent Conklin to appear before a referee and be examined concerning his property.

      Andrews da Edwards, for Chester Miller, county treasurer of Columbia county, appellant.

      NewTdrh & Ohace, for the respondent.

       See Inman v. Coleman, Fifth Department, June, 1885; opinion of Bockes, J., 37 Hun. — [Rep.

   Learned, P. J.:

Chapter 610, Laws of 1881, provides for these proceedings, and declares that the same proceedings shall be had as in proceedings supplementary to execution. The facts necessary to authorize the application are stated in section one. Those facts (applicable to the present case) are: A tax exceeding ten dollars in amount levied by the board of supervisors of a county ; against a person a resident thereof; returned by the town collector uncollected, for want of goods and chattels ont of which to collect the same. All of these facts appear in the affidavit.

N ow, the defendant insists that the affidavit should have alleged all the facts necessary to have given the assessors jurisdiction, and all the facts necessary to have given the supervisors jurisdiction. If these are to be alleged, then it would seem to follow that they might be denied. And the county judge on the supplementary proceedings might try the questions of the jurisdiction of the assessors and of the supervisors.

It is evident that the legislature had power to specify exactly on what affidavit this application should be made. And the defendant admits that if the statute had said “ on an affidavit setting forth the preceding facts,” then these proceedings would be regular. Now, that is the plain meaning of the statute. It says: when such and such things are done, the county treasurer may apply on affidavit. What affidavit, but one stating that these things have been done ? So in proceedings supplementary to execution (Code, §§ 2435, 2458) the facts to be stated in the affidavit are those on the existence of which the statute authorizes the proceeding.

This proceeding is properly called supplementary; that-is, it is in aid of, or in addition to, the warrant issued to the officer and returned in order to discover property from which a tax may be collected. And when the legislature stated in section one the circumstances which authorized the application, they plainly intended that an affidavit which alleged these circumstances to exist, if uncontradicted, would make it the duty of the county judge to proceed. The recitals in the warrant were enough for the collector. The allegations in this affidavit were enough for the county judge.

The order is reversed, with ten dollars costs and printing disbursements, and motion to vacate denied, with ten dollars costs.

Landon, J., concurred.

Bookes, J.:

This proceeding was taken before the county judge of Columbia county, under chapter 361 of the Laws of 1867, as amended by chapter 640 of the Laws of 1881, to compel the payment of a tax alleged to have been assessed against the respondent by the supervisors of that county. The law referred to authorizes a proceeding by certain officers therein specified, and among them a proceeding by the county treasurer, against a defaulting taxpayer, on return by the collector of taxes, of a tax exceeding ten dollars in amount uncollected; the proceeding to be had as in cases supplementary to execution.

In this case, on the application of the county treasurer, based on his own affidavit, an order was obtained from the county judge requiring Conklin to appear before a referee appointed to take his examination, to make answer concerning his property. Thereupon, he moved before that officer to vacate such order, on the ground of the insufficiency of the affidavit on which it was allowed, which motion was granted. The case is now before the court on appeal from the order granting such motion.

The facts stated in the affidavit are as follows: That the affiant was county treasurer; that in December, 1882, the board of supervisors levied a tax on the inhabitants of the county and issued their warrants for its collection to the several collectors of the county, and a tax list and warrant were issued to the collector of the town of Copake, in said county among others; that in and by said tax list and warrant a tax of $148.90 was levied against Conklin, then and ever since a resident of said county; and that such warrant was returned by the collector with the tax against him uncollected The objection urged successfully before the county judge was, that the affidavit failed to show the laying or levying against the respondent of a valid tax; that it did not show jurisdiction in the board of supervisors to levy any tax against him. We think this objection well grounded. The board of supervisors is a body of limited jurisdiction, having no power to exercise the right of taxation, except in the cases and in the manner prescribed by the statute. The affidavit, therefore, should show that Conklin was a taxable inhabitant of the town where he was assessed; that is, that he was a resident or inhabitant of the town, having property in his possession or under his control liable there to taxation. The affidavit does not state even in general terms that he was a taxable inhabitant of the county, much less that he was a resident or inhabitant of the town of Copake, having in his possession or under his control property there liable to be taxed. It does state in effect that the Board of Supervisors levied a tax against him for $148.90; but it may have been wholly unauthorized and invalid, and it is not shown, or even asserted in general terms, that it was rightfully imposed. We do not intend to be understood that the question whether he was rightfully assessed could be litigated on the application before the county judge ; but to make a ease against a defaulting taxpayer under the law in pursuance of which the proceeding was taken, it should be made to appear that he was liable to be assessed in the town to which the tax warrant was issued, and was assessed in such town. This was essential as a basis for the proceeding.

In this case jurisdiction was not shown by a statement of facts which would confer it; indeed jurisdiction was not asserted, even In general terms, as that Conklin was duly assessed by the board of supervisors in the town of Copake, where he was liable to assessment. Had this been so stated the case would have been quite different, and perhaps might then have been deemed sufficient as a basis for the proceeding in analogy to the form of affidavit in general use in proceedings supplementary to execution. We are of the opinion that the affidavit presented to the county judge was insufficient, and that the order based thereon was properly vacated.

The order appealed from must be affirmed; but no costs can be •..allowed, as the act under which the proceeding .was taken (Laws of 1881, chap. 640, middle paragraph of section 1) expressly provides that no costs shall be allowed in favor of the person thereby sought to be examined.

Order reversed, with ten dollars costs and printing disbursements.


author: JBookes, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE WALLKILL VALLEY RAILROAD COMPANY, Respondents, v. NATHAN KEATOR and Others, Assessors, etc., and Others, Appellants. THE SAME v. ABRAM P. KEATOR and Others, Assessors, etc., and Others, Appellants.

      Proceedings to review erroneous assessments —1880, chop. 269 — the earning capacity of real estate is a test of its value — review of a decision of the Special Term on appeal — how objections to the reception of evidence should be stated — erroneous admission of evidence — when the decision will not be reversed therefor.

    In proceedings instituted under chapter 269 of 1880, to review an assessment of real estate belonging to the relator, it is proper to make the test of the value of the property for assessment for the purposes of taxation, to consist in its earning capacity, rather than to adopt for that purpose the cost of its construction, not that its earning capacity should be taken as an absolute test of its value, but that it should be treated as an element in the problem, and as a safer and more just guide than is the cost of construction.
    This is especially the case when estimating the value of the real estate of a railroad, when the road is of small intrinsic value as compared with its original, actual cost.
    In such cases the General Term will not reverse the decision of the Special Term for an error of fact, unless it can clearly see and is able to show that the finding is opposed to the preponderance of the evidence.
    Where evidence is admitted by the referee, against the objections of either party, and it does not appear that upon the hearing before the Special Term any motion was made by the party aggrieved to strike out or expunge the evidence so objected to, or that the judge was called upon to pass upon its admissibility, or that he made any ruling in -regard to it, the objections will be deemed to have been waived, and the ruling of the referee thereon cannot be reviewed upon appeal.
    The powers conferred by the act of 1880 are not to be limited or trammeled by an application of the strict legal rules which prevail on trials and proceedings in courts of law, and a decision will not be reversed for the erroneous admission of evidence, unless it can be seen that the improper evidence which was received was actually influential in the determination of the case.
    The admission of irrelevant and immaterial evidence will only be treated as error when it can be seen to have worked harm to the party objecting to it.
    In such proceedings it is proper to receive in evidence conveyances of other property as establishing presumptively the prices for which it had been sold, and also estimates as to its value, made as a basis for procuring loans or placing insurance upon it.

      Appeal from a judgment, entered upon a decision made at a Special Term in proceedings brought to review the assessment of the relator’s real estate by the appellants.

      A. T. Olea/rwater, for the appellants.

      P. Cantvne, for the respondent.
   JBookes, J.:

This proceeding was taken under and pursuant to chapter 269 of the Laws of 1880, to review an assessment of the relator’s real •estate, made for the purpose of taxation by the assessors of the town of Rosendale, in the county of TJlster.

The case comes before the court on an appeal from the judgment of the Special Term, based on returns to a certiorari made by the respective officers to whom the writ was directed, with testimony relating to the subject taken before a referee, as authorized by section four of that act, which section provides that such testimony shall constitute a part of the proceedings upon which the determination of the court shall be made. (The People ex rel. U. and D. R. R. Co. v. Smith, 24 Hun, 65.) No point is now urged against the proceeding because of any irregularity in it prior to the taking of testimony before the referee, but the case is argued and submitted on the merits, with some objections to rulings on questions of evidence. A great mass of testimony was taken by the referee and laid before the court for its consideration in determining the question whether the relator’s property was unfairly assessed; that is, assessed at a higher proportionate value than other property appearing on the assessment-roll. This question is within the purview of the act of 1880, which has in view the redress of an injury occasioned by an “illegal, erroneous, or unequal assessment” made for the purpose of taxation. (Secs. 1, 8 )

The proof submitted was diffuse and elaborate in a very great degree, if not to excess. It varied in kind and cogency extending, as it would seem, to every point of possible materiality. It con- ■ sisted of the opinion of witnesses on estimates of value as to various pieces of property, such as farms, large and small; village property, consisting of dwellings and small lots; properties used in various industries; also railroad property and the expense of its construction and use; the productive qualities of the various kinds of property ; also the prices for which property had been sold and conveyed, as evidenced by actual contracts of sale and by deeds of conveyance to purchasers; expenses incurred in building; reputation of value as a basis for securing -loans and making insurance in so far as such evidence was admitted; and also prepared and verified tables of value — from all this proof the Special Term was required to determine the fact of the fair and just value of the property in question as compared with other property on the assessment-roll of the town. On this great volume of proof, extensive in scope and varied in character, the learned judge found in favor of the relator. He found that the defendants (assessors) had valued and assessed on the assessment-rolls the relator’s real property at a higher proportionate valuation than they did the other real property in the town, to an extent causing injury to it for the year 18S0 in the sum of $870.59, and ordered judgment because of such injury, as provided in the act under which the proceeding was taken. There is certainly much evidence in support of his conclusion. After a patient and, as is believed, a thoughtful examination of the testimony, we cannot say that his conclusion is wrong. Indeed, we think the proof made it quite apparent that the relator’s property was valued and assessed quite too high as compared with other property on the roll, showing an “unequal assessment,” deserving of and requiring correction. Of course we cannot say that the reduction was made exactly right, but we cannot say that it was actually wrong, which we should be able to do before ordering a reversal of the judgment. It does not appear that the Special Term violated any rule of law in reaching the conclusion declared in the record. There was no error in making the test of value of property for assessment to consist in its earning capacity, rather than to adopt for such purpose its cost of construction. So it has been decided. (The People ex rel. Albany and Greenbush Bridge Co. v. Weaver, 20 W. D., 565; The People ex rel. Ogdensburgh and L. C. R. R. Co. v. Pond, 13 Abb. N. C., 1; The People ex rel. Buffalo and S. L. R. R. Co. v. Barker, 48 N. Y., 70; Smith v. The Mayor, 68 id., 552, on page 555.) Not that the test of value should be absolutely its earning capacity, but that this would be an element in the problem, safer and more just as a guide than its cost of construction, especially when estimating the value of a road of no great intrinsic value as compared with its original actual cost. (The People ex rel. Albany and Greenbush Bridge Company v. Weaver and others, Assessors, 34 Hun, 321.) Now, in this case, mathematical precision in determining the question before the court is simply impossible; at best there can be but an' approximation to absolute right even under the most critical line of reasoning. In such case, when evidence is to be weighed and contrasted, the. court of review will disturb a finding of fact certified to it only on clear conviction that the finding is erroneous. If we were to apply the test given by subdivision 5 of section 2140 of the Code of Civil Procedure in reviewing questions of fact to be determined on certiorari, we could not here reverse the judgment appealed from. •Probably the section cited does not, however, have application to the case in hand. Still, before we should reverse because of an error in the finding of fact by the Special Term, we should clearly see and be able to show that the finding was against the preponderance of proof. This we are here unable to do. We are satisfied from the proof that with a view to a fair, just and equal assessment, the value of the relator’s property set down on the roll should be reduced, and we are unable to say that the reduction determined upon by the Special Term was greater than it ought to have been to answer the ends of justice and right.

It is urged that error was committed in the admission of evidence offered and put in on the part of the relator. The evidence was taken by a referee for the use of the court on the hearing or trial of the case, and the rulings complained of were made by the referee. It does not appear that any motion was made to strike out or expunge the evidence challenged as objectionable; nor does it appear that the trial judge was called upon to pass upon its admissibility, or that he did, in fact, make any rulings in that regard. According to the principle of the decision in Arnold v. Parmelee (91 N. Y., 652), the rulings of the referee cannot be considered on this appeal. As there said, if the defendants had intended to rely upon the objections taken before the referee, it should have been so stated, and the judge at Special Term should have been called upon to make rulings as to the admissibility of the evidence by objecting to it, or by motion to strike it out. Not having done so,, the objections must be deemed to have been waived. The record should show that the trial judge made the rulings complained of, or what would be equivalent to that, adopted as his own those made by the referee, in order to make them available as grounds of error on appeal. There is one instance where it may seem that the ruling was by the court. But in this instance we think the ruling was entirely right. In no other instance does it appear in the record that the court made a ruling on the admissibility of evidence or adopted the rulings made by the referee; and even in the instance cited, that the ruling was by the trial judge is rather a matter of inference than otherwise.

But it may be suggested that the case was considered before the trial judge as if the rulings by the referee were accepted and adopted by him; in view of which possible fact, and of the further fact that the appeal has been argued by counsel on that hypothesis, we are constrained not to hold the appellants concluded by the omission in the record alluded to.

Now this is a special proceeding — a proceeding authorized to be taken under a special statute. It is not an action or proceeding to be conducted according to the strict rules of the common law, either in the admission of evidence or otherwise.

It is like the case of the People ex rel. Flanagan v. Board of Police Commissioners (93 N. Y., 91). As there said in regard to that case, that having in view the special powers conferred and the purpose to be attained by the proceeding, it is not to be limited or trammeled by an application of strict legal rules which prevail on trials and proceedings in courts of law. Now if it can be seen that evidence that was harmful was received and was actually made influential in the determination of the case, then its admission and use would doubtless constitute substantial ground of error; not otherwise in a case like the present. On looking over the whole case we are satisfied that the result would not or should not have been different had the evidence, subject to just exception, been excluded. There is very little, if any, material evidence belonging to this class; and none, as we think, particularly and essentially influential in character. A very considerable portion of the evidence objected to we think was competent as bearing directly or remotely upon the subject of inquiry; as one instance, the deeds of conveyance of sundry pieces of property, giving presumptively the consideration pf the sales; also estimates as basis for security for loans and the placing of insurance in so far as this class of evidence was admitted. Most of the objections interposed, indeed nearly all of them, were for irrelevancy or immateriality. It is entirely manifest that the case is greatly incumbered with evidence objectionable in this respect; but the admission of irrelevant and immaterial evidence will be ground of error, even in common law actions, only where it can be seen to have worked harm — •actually or presumptively — to the party objecting. Now no sterner rule should here obtain than that which prevails in a case of purely equitable character; in which cases reversals will not be ordered on account of the admission of irrelevant and immaterial . evidence, unless the appellate court is satisfied that the decision of the judge who heard the case was improperly influenced by it. We are unable so to hold in this case. In conclusion, therefore, upon the point of alleged errors in the admission of evidence, we find no just ground which, in our opinion, requires that the judgment appealed from should be reversed.

This conclusion with that above reached on the merits of the case, on consideration of all the relevant proof, leads to an affirmance of the judgment.

The act under which this proceeding was taken exempts the officers proceeded against from costs unless it should appear to the court that they acted with gross negligence, in bad faith, or with malice. This exemption does not, as we think, have application in the case of an appeal by them like the present.

Judgment appealed from affirmed, with costs against appellants ns in case of an appeal in a common-law action.

Present — Learned, P. J.; Bookes and Landon, JJ.

In each case order affirmed, vith costs, as in common-law action.


author: Bocees, J.:

text:
    MERRITT C. HERRINGTON, Respondent, v. THE VILLAGE OF LANSINGBURGH, Appellant.

      Negligence — when a city is not liable for the negligence of a contractor in constructing a sewer.

    The village of Lansinburgli entered into a contract with Broderick & Ellis for the building, by tbe latter, of a sewer through and along one of its streets, at and for a gross sum to be paid upon the completion of the work, the contractors agreeing to do the work to the satisfaction of the engineer in charge, and to indemnify the defendant against all loss, damages, costs and expenses arising from the nature of the work or the manner of its execution. In the course-of the execution of the work it became necessary to do some blasting, the noise of which, produced by an explosion, frightened the plaintiff’s horses which were tied to a post in an adjacent street, causing them to attempt to run away, whereby the plaintiff’s property was damaged and serious personal injuries were inflicted upon him. In an action against the village to recover the-damages so sustained :

      Held, that the defendant was not responsible for the negligent acts of the contractors or their servants, and that the action could not be maintained.

      Pack v. The Mayor (8JST. Y., ¿32), and Kellys. The Mayor (11 id.,432), followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages resulting to the plaintiff’s property and person from the frightening of his horses and their attempting to run away, by reason of an explosion in the streets of the defendant occurring in the course of the work of construction of a sewer by a village contractor. The horses were at the time tied to a post in the street.

      Henry A. Merritt, for the appellant.

      Edga/r 1. Ewrsman, for the respondent.
   Bocees, J.:

The defendant, the Village of Lansingburgh, contracted with Broderick & Ellis for the building, by the latter parties, of a sewer through and along one of its streets, with eight cess-pools to be connected therewith, at and for the gross sum of $3,971, to be paid them for the completed work. ,

The contractors, Broderick & Ellis, stipulated to do the work to the satisfaction of the engineer in charge, and they also agreed to indemnify the defendant against all loss, damages, costs and expenses arising from the nature of the work or the manner of its execution.

In doing the work so contracted for, blasting became necessary, the noise of which, produced by an explosion, frightened the plaintiff’s horses, hitched in an adjacent street, resulting in some damage to his property, and also in serious personal injury to himself when endeavoring to restrain them. On the trial the plaintiff had a recovery, against the defendant’s objection that the cause of the injury and damage was the negligence (if negligence was established by the proof) of Broderick & Ellis, the contractors, or of their servants, for which the defendant, the Tillage of Lansing-burgh, was not responsible.

This objection to the right of recovery we think well taken. It seems fully supported by the rule of law laid down in Pack v. The Mayor (8 N. Y., 222) and in Kelly v. The Mayor (11 id., 432). Here, as in the cases cited, the contract was for a completed job, to be paid for as such by a sum in gross. The defendant had no control over Broderick & Ellis or their workmen as to the manner of performing the work, or as to the persons to be employed by them in its performance; hence there was no relation of principal and agent, or of master and servant existing between the defendant and those contractors, or between the former and the employees of the latter; which relation lies at the foundation of the doctrine of respondeat superior.

It must be held in mind that the work here contracted for was not a nuisance either in its manner of performance or in its result. Nothing wrongful in itself was contracted to be done or suffered. Had this been otherwise, the rule of law applicable to the case would have been different, for the corporation could not, by contract or otherwise, create or continue a nuisance and escape the consequences resulting from it.

Nor was the injury here complained of caused by any negligence, careless act or omission of duty on the part of the defendant in protecting wayfarers from danger because of the existence in a public street of some obstruction or impediment to safe travel caused or permitted by it. From liability growing out of such omission of corporate duty the defendant could not absolve itself by contract with a third party. This was clearly shown by Judge Comstock in Storrs v. The City of Utica (17 N. Y., 104), and the distinction was also there as clearly shown between such a case and one where the injury resulted from the manner of performing work which could be lawfully contracted to be done. This distinction sustained a recovery in Storr’s case and also in Dressell v. City of Kingston (32 Hun, 533). It left those cases untouched by the rule laid down in Pack v. The Mayor and in Kelly v. The Mayor, above cited. Ye do not understand that the doctrine of the cases last cited has been disturbed by the more recent decisions to which our attention has been called ; on the contrarv, they have been repeatedly cited as expressing the sound rule of law upon the subject discussed in them. (Vogel v. The Mayor, 92 N. Y., 10; McCafferty v. S. D. and P. M. R. R. Co., 61 id., 178; King v. N. Y. C. and H. R. R. R. Co., 66 id., 181; Creed v. Hartmann, 29 id., 591; See opinion of Seldon, J.; see, also, Smith v. Simmons, 103 Penn., 32; Id., 49 Am. Rep., 113.) We are of the opinion that the case of Pack v. The Mayor and of Kelly v. The Mayor are decisive of this and require its reversal.

The clause in the contract that the work should be done to the satisfaction of the engineer in charge, and also that for indemnity, do not operate to change this conclusion.

Judgment and order appealed from reversed, new trial granted, costs to abide the event.

Present — Learned, P. J., Landon and Bockes, JJ.

Judgment aud order reversed, new trial granted, costs to abide event.


author: Landon, J.: Bockes, J.:

text:
    BERTHA KLINGER, Respondent, v. MICHAEL BONDY and MORRIS POLLAK, Appellants.

      Practice — what evidence is inadmissible under a general denial —facts authorizing the defendants to attach the plaintiff’s title as fraudulent, must be pleaded.

    'The complaint in this action alleged, among other things, that on the 26th day of September, 1883, the plaintiff was the owner and entitled to the immediate possession of certain leaf tobacco; that on that day the defendant wrongfully took, carried away and sold the same. The present defendan s, the indemnitors of the sheriff, the original defendant, having been, upon their own application, substituted as defendants in his place, served an answer containing a general denial and an allegation that at the time named Klinger Brothers were the owners of the tobacco. Upon the trial the plaintiff proved that she had purchased the property at a sale upon executions issued upon judgments recovered by herself and a daughter against Klinger Brothers, and that thereafter the sheriff seized and sold the property under attachments issued against Klinger Brothers.
    The defendants offered to prove that the judgments under which the plaintiff claimed were fraudulent, and entered for the purpose of defrauding the credit" ors of Klinger Brothers, and also that the levy and sale upon the executions were irregular.

      Held, that the court properly excluded the evidence as inadmissible under the answer. (Learned, P. J., dissenting.)
    That as Klinger Brothers made no objection, the plaintiff’s title was good as against all the world, except as against such creditors of Klinger Brothers as were especially injured by the sale, who, if they desired to avail themselves of their rights, must allege the facts they desired to prove in their answer, as they could not prove them under a general denial.
    'That as the plaintiff’s px-oof showed that she had both the title to and the possession of the tobacco, the defendants could not defend by proving title in Klinger Brothers, nor could they raise any objection which Klinger Brothers could waive, without alleging and proving facts which gave them the right to stand in Klinger Brothers shoes and assail the plaintiff's title.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe verdict of a jury.
    The action was brought to recover damages for the wrongful taking, carrying away and converting to the use of the defendants •of a quantity of leaf tobacco belonging to the plaintiff.

      Julius J. Frank, for the appellants.

      Z. 8. Westbrook, for the respondent.
   Landon, J.:

The plaintiff gave evidence to the effect that Klinger Brothers were the owners of the tobacco in question; that she obtained a judgment against them ; that Rosa Klinger also obtained two judgments against them; that executions were issued to the sheriff upon the three judgments, and that the sheriff sold the tobacco in question to the plaintiff at a public sale under such executions; that after her purchase of the tobacco she left it in the custody of a Mr. Wasserman, in whose cellar it was at the time of the sale; that the sheriff subsequently seized the property upon an attachment against the Klinger Brothers as their property, and sold it against her protest.

The action was brought against the sheriff; the present defendants as his indemnitors were, on their motion, substituted in hi& place, pursuant to sections 1421-1427 of the Code.

At the close of the plaintiff’s case the defendants moved for a nonsuit upon the ground that the property was not present at the place of sale within the meaning of the statute (Code, § 1428), nor sold in parcels. The fact was that the sale was at the store of the Klinger Brothers upon one side of the street, and the tobacco in question was in a cellar on the other side directly opposite the store. The sheriff at the sale put up the entire property in the store and cellar in one parcel; he mentioned the tobacco in the cellar, and said if any body wanted to go and look at it he would wait until he returned. The motion for a nonsuit was denied. The defendants then separately offered evidence of their attachment, judgment and execution against the Klinger Brothers,, and sale of the tobacco under it. Also that the judgments against the Klinger Brothers, under which the plaintiff claimed, were fraudulent and void, as founded upon fraudulent claims, and as entered for the purpose of defrauding their creditors, and for the purpose of removing their property from the process of the court. Also that the levy and sale upon the executions under which the plaintiff claimed were irregular and therefore no title passed.

These offers were severally objected to, upon the ground that they were inadmissible under the answer. The complaint alleged title in the plaintiff and the right of possession. The answer was a general denial; also the assertion of title in the Klinger Brothers. Since the case showed that the original title to the property was in the Klinger Brothers, and that the same passed to the plaintiff by judicial sale, the court properly denied the motion for a nonsuit and sustained the objections upon the defendants’ offers of proof, unless by the plaintiff’s own showing, or by the answer, it appeared that the defendants were in a position whereby the irregularities or fraud complained of could injure them.

The direct issue between the parties was whether the plaintiff had title. She maintained her contention by showing that it passed to her from the'Klinger Brothers by judicial sale. That sale is presumed to be good, and is good against all the world, except the particular parties injured by it; if there are such parties they are an exception to the general rule, and if they desire to prove the facts bringing themselves within the exception, they should allege them.

If the title was good against the Klinger Brothers it was good in favor of the plaintiff; it was good against them, unless they objected. They did not object. No one can object for them uniese he has succeeded, or is entitled to succeed, to their rights, and the assertion that any one is entitled to succeed to their rights is not embraced in a general denial, and therefore must be otherwise alleged. But the answer also alleges that the title was in the Klinger Brothers. In a complaint like this, which alleges title and does not allege possession, such an answer asserts a fact competent to be proved; because when the testimony is closed, if it should appear that the plaintiff did not have possession, and the Klinger Brothers did have title, the plaintiff would fail. But as this case stood upon the issue whether title was in the plaintiff or in the Klinger Brothers, the plaintiff had made a case against the Klinger Brothers, and the misfortune of the defendants was they had alleged nothing giving them the right to stand in the Klinger Brothers’ shoes and assail that case. !

If the defendants, without asserting a right which the Klinger Brothers coirld waive, could prove a fact tending to show that the titlej never passed out of the Klinger Brothers, it would, upon the issue of title (not of possession), have been competent, as, for example,.' that the tobacco they seized was not the same parcel the plaintiff bought. Such evidence would show that the plaintiff’s evidence had not touched the property in dispute. ■

There are many cases in the books bearing upon the questions we have discussed, in which the doctrine is broadly asserted that in actions of trover and trespass an answer of title in a stranger, without an allegation connecting the defendant with such title, is no defense. Stowell v. Otis (71 N. Y., 36), is referred to, by the aid of which the other cases can be traced. In that case the defendant answered, admitting the plaintiff’s title, but alleging that his wife was the plaintiff’s pledgee. The court, in substance, said to the defendant, by your answer you assert that1 your wife could defend, and thereby imply that you cannot. But suppose the defendant had denied both plaintiffs’ title and possession, and had alleged both in his wife? If the latter had been true, the plaintiff had no case. If the plaintiff shows possession, his right is not touched by the defendant’s showing that a third person has a better right of possession, hence the necessity of alleging in the answer that better right, and it remains untouched until he also proves that the third person’s better right is in some way also his right, and hence the necessity of this allegation. And if the plaintiff shows title, that title must be disproved; if it is in a third person it is not in the plaintiff, and lienee may be proved under a general denial; but it is not shown to bo in a third person by simply showing that there are facts within the command of the third person which could defeat the plaintiff’s title. The defendant must make the allegations which give him also the right to command these facts. Confusion in the cases sometimes arises from the fact that although the plaintiff alleges title, he proves possession. Possession cannot be disproved by proving title out of the plaintiff, and though the denial of title may seem to answer the ease stated, the defendant will fail unless his answer is framed to meet the case proved, for possession is evidence of title. The ruling of the court was right, unless upon the case made by the plaintiff, she had precluded herself from making the objections.

In order to show why these defendants had been substituted in •place of the sheriff, the plaintiff read in evidence the defendants’ petition upon which the order of substitution was granted, and also the order. The petition recited the attachment, judgment, exeeution and seizure under which the defendants became the indemnitors of the- sheriff. It is urged that the plaintiff thereby knew all the facts, and having placed them in evidence they are in evidence generally for any purpose available to the defendants.

The question is a new one in the aspect here presented. We are inclined to the opinion that if the defendants intended to rely upon such a defense they ought to have apprised the plaintiff of it, in which case she might have prepared to meet it, and she would perhaps not have read the petition in evidence.

If the defendants were confined to their pleadings, the plaintiff could safely read the petition, and when she read it she had the clear right to suppose she was there to try the issues framed and not others. The defendants did not ask to amend their answer; if they had the plaintiff might as a condition have been permitted to withdraw the petition.

The judgment should be affirmed, with costs.

Bockes, J.:

The ruling of the court at the circuit excluding the defendant’s offer of proof was grounded on the insufficiency of their answer to the complaint. The learned judge held, aud as I think correctly, that the matter of defense pi’oposed to be proved was inadmissible, because not pleaded. There was no motion to amend the answer, although its insufficiency was pointed out and made the basis of objection. The defendant must therefore be deemed to have elected at the trial to stand by it in its then present form. The question then on this appeal is simply whether the defense — the matter of proof proposed to be put in — was admissible under the averments of the answer. It seems to me very plainly that it was not. The action was for the taking and converting by the defendants (or by their direction) of the plaintiff’s property. The answer was, first, general denial, and secondly, that the property was owned by Charles and Samuel Klinger. Such was the entire answer. It amounted simply to a general denial. It only put in issue the plaintiff’s title; that is, the taking of the property by the defendants from the plaintiff’’s possession and its value. The defendants did not set up title in themselves nor title in another or others with right of possession, and connect themselves at all, as principals, agents or otherwise, with such title and right. These were matters of affirmative defense, and consequently should be averred in the pleading to be available on the trial. The plaintiff made her case on proof that the property was taken by the defendants (or by their direction) from her possession — here, from her agent or bailee whose possession was her possession — valued at $135.68. The defendants were now called upon to make defense. On the proof they stood as wrong-doers. They could not take the property from the plaintiff’s possession, even if she had no title to it, without showing either title in themselves or title in another, with right of possession, and connecting themselves in some way with such title and right. But neither of these defenses was set up in the answer, hence proof in their support, or in support of either •of them, was inadmissible under the pleading, as was correctly held by the learned judge. They did not propose to gainsay the plaintiff’s possession, that is, they did not offer to show that the plaintiff had not in fact possession. Her possession was not disputed. Had this been done, the case would have been materially different from what it is. No evidence was excluded tending to show that the property was not in the plaintiff’s actual possession when taken by the defendants; but the offer of the defendants was to justify their action in taking the property from the plaintiff’s possession, by showing that they had a right so to do. This defense was not set up in the answer.

But it is suggested that the plaintiff had herself put in proof which went part way to establish the defendant’s proposed defense. Admit this, and the difficulty is not removed. An insufficient pleading cannot be made good by proof only. But the plaintiff had a right to stop at any point in the putting in of the proof and object to all further evidence necessary to make out the proposed defense, on the ground that the defense was not set up in the answer, or might, under permission from the court, wait until the evidence was all in, and then move to strike it out, because inadmissible under the pleadings. In this case the objection to the defense, because not pleaded, was interposed before all the necessary proof to its establishment was put in. This was just as fatal to the proposed defense, if the ground of objection was well based, as if no proof whatever had been put in going part way to its .establishment. Without further considering the case, I will express my concurrence in the opinion of my brother Landón, and yote for affirmance.

Learned, P. J., dissented.

Judgment affirmed, with costs.


author: Learned, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiffs v. THE STATE BANK OF FORT EDWARD, Defendant.

      Deposit of money by a husband to the credit of his wife — when it operates as a gift— agreement of a cashier — when it is not binding upon the bank.

    May 23, 1883, John Osgood deposited with the defendant' bank $900 belonging to him to the credit of his wife Sarah, notifying the cashier that the money was his, and that he would let the amount rest in that way for a short time. The wife was sick, and the deposit was so made to appease and please her. Subsequently the wife drew checks upon this account, which were paid. Thereafter the wife died intestate, and before any administrator had been appointed, the cashier of the bank agreed with the husband that the husband should be allowed to overdraw his own account, and that the checks should be paid out of the money standing to the credit of his wife. Subsequently a receiver of the bank was appointed, Osgood’s account being then overdrawn to the amount of $313.05, and there being then standing to the credit of the wife $856.72.
    With the consent of the administrator of the wife, and of her heirs and next of kin, Osgood applied to have the debt due from him set off against an equal amount of the deposit standing to the credit of his wife and to have the balance of that deposit transferred to his credit.

      Held, that the application should be denied.
    That the deposit of the money to the credit of the wife, and her acceptance thereof, signified by her drawing checks against it, operated as a valid gift thereof to her; and that thereafter the husband could not reclaim it, nor could the bank deny its liability .to her.
    That the agreement of the cashier was not binding upon the bank, as it was ultra vires and without consideration.
    That there was no estoppel as to Osgood, as the money was received by him.
    Appeal from an order made at a Special Term, granting to the petitioner the relief demanded by him.
    John Osgood, the petitioner, on the 23d day of May, 1883, deposited $900 to the credit of his wife Sarah O., in the State Bank of Fort Edward, and gave to her the bank book showing the deposit. Subsequently, in June and July, she drew checks on 'this amount, which were paid, and when the receiver took possession of the bank there remained to her credit, including interest, $856.12. The money, before it was deposited, was the property of John Osgood. His wife was sick, and his motive in making this deposit was to appease and please her. She died intestate about four months after the deposit was made and about a year before the appointment of a receiver of the bank. Osgood himself kept an account in the bank, which, at the time of the appointment of the receiver, was overdrawn to the amount (including interest) of $313.05. The administrator of Sarah 0. conceded that the money thus standing to her credit was never her property, but was the property of John Osgood; and the heirs and next of kin of Sarah C. made the same concession.
    After the death of Sarah C., and before the a^tpointrnent of an administrator on her estate, and in April, 1884, the cashier of the bank agreed with Osgood that the amount of a check which Osgood was about to draw (and which would overdraw his account), and ' other checks which Osgood should make, should be paid out of the money standing to the credit of said Sarah 0. (then deceased), and Osgood accordingly did make such checks. These were paid by the bank, but were charged against his individual account. The bank became insolvent and a receiver was appointed September 22, 1884. Osgood now asks that the overdraft of his account be offset against the amount standing in the name of Sarah 0., and that the-balance of the amount standing in her name (above such offset) be transferred to his credit. The Special Term granted this relief, and the receiver and attorney general appeal.

      J). O'Brien, attorney general, and D. 8. Potter, for the receiver, appellant.

      Edga/r Hull, for John Osgood, respondent.
   Learned, P. J.:

If the bank were solvent, no one would be interested to oppose this application except the administrator and next of kin of Sarah C. But the bank is insolvent, and therefore the interests of other creditors are affected. The consent therefore of the administrator and of the next of kin does not determine the matter. It must be determined as a matter of strict legal right. (Van Dyck v. McQuade, 20 Hun, 262.)

The agreement alleged to have been made by the cashier in April, 1884, is of no validity. There was no consideration. It was simply an agreement to pay Osgood’s cheeks and to charge the amount thereof against the account of another person then deceased. Such an agreement could not be binding on the bank. To the extent to which Osgood overdrew he owed the bank for money received. A cashier has no authority to permit a person to overdraw his account, promising to charge the drafts against some other person, without that person’s consent. ‘ There is no estoppel in Osgood’s favor. He has had the money. No agreement between hint and the cashier could change the rights of Sarah C. or of her representatives.

Then we must go to the original deposit and arrangement. Osgood says that at the time of the deposit he notified the cashier “that the amount thereof was his money and he would let the amount rest in that way for a short time.” And the cashier says that this is true according to his recollection. Now undoubtedly the money deposited was, before the deposit, Osgood’s money. The question is whose was it, or rather whose was the credit, after the deposit. Of course the actual money deposited went into the general assets of the bank. But it gave credit therefor to Sarah 0., or became indebted to her, and issued to her the ordinary evidence of indebtedness, viz., a bank book. This made a complete gift to her. The motives of Osgood are immaterial. What he did was to give his wife $900 by depositing that amount to her credit in the bank. She accepted the gift, as is evidenced by her drawing checks on the credit. He could not reclaim the money. The bank could not deny its liability to her. Indeed, it appears that the bank treated it as her money, because it paid her checks and charged them against this credit. Osgood had done everything possible to give his wife an absolute title to this credit. And he had done this voluntarily, with no fraud practiced upon him. (Bates v. First Nat. Bank of Brockport, 89 N. Y., 286.)

The receiver cannot be permitted to give up the valid claim which he has against Osgood by setting off against it a part of the claim of the administrator of Sarah O., a claim which will be entitled only to its pro rata of the assets.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.

Present — Learned, P. <L, Bocees and Landon, JJ.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. DWIGHT HAGADORN and LOREN HAGADORN, Respondents.

      Bale of land for taxes — duty of the board of supervisors to extend the tax — an illegality in any of the taxes, for which land is sold, vitiates the whole sale —1855, chap. 427.

    This action, was brought to recover damages for the wrongful conversion of logs which were upon land to which the plaintiff claimed title under a deed from the comptroller of the State, made in 1877, at a sale had for the non-payment of the taxes levied thereon in the several years from 1866 to 1870. It appeared that during the years 1868, 1869 and 1870 the board of supervisors, after fixing the total equalized valuation of the town and determining the tax to be raised therein, had signed, sealed and delivered to the supervisor of the town their warrant for the collection of the tax, and had affixed the same to the assessment-roll and adjourned sine die, having previously directed the said supervisor to extend the taxes against the persons and property named therein. Neither the warrant nor the assessment-roll contained a statement of the rate of taxation.

      Held, that the statute (sec. 33 of 1 R. S., m. p. 395) required the board itself to estimate and set down upon the roll the sums to be paid as a tax upon the valuations as therein set down, and that it could not delegate the power so to do to one of its members.

      Bellinger v. Gray (51 N. Y., 610), followed; Bradley v. Wan'd (58 id., 401); Colman v. Shattuch (62 N. Y., 348) ; Mrst National Bank of Utica v. Waters (7 Red. R., 152), distinguished; Tattmadge v. Supervisors (21 Barb., 611), overruled.
    That the fact that the validity of the rolls in the years 1866 and 1867 was not attacked did not aid the plaintiff, for the reason that as the statute did not allow the owner to redeem from the legal taxes and treat the sale for the illegal taxes as a nullity, the illegality of a part of the taxes, for the non-payment of which the land was sold, vitiated the whole sale.

      Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    The action was brought to recover damages for the wrongful talcing of logs from a lot in the town of Stratford, Fulton county, which the plaintiff claimed to own.
    The plaintiff claimed title under a deed from the comptroller of the State, given at a sale of the land for certain unpaid taxes more particularly specified in the following opinion. Neither the warrants or the assessment-rolls to which they were attached contained any statement as the rate or per centage of the taxes levied.

      D. O'Brim, attorney-general, for the People.

      George W. Smith, for the respondents.
   Learned, P. J.:

The plaintiff’s title rests upon the comptroller’s deed. This was in proper form and was in pursuance of a sale made in 1877 for taxes in the years from 1866 to 1870. The defendants claim to have shown a defect in the levy of the taxes for the years 1868, 1869 and 1870. During tiiose years one Bliss was supervisor of the town where the lands were situated. In each of those years, •after the board of supervisors had fixed the total equalized valuation of the town, and had determined the tax to be raised therein, and had signed, sealed and delivered to the supervisor of the town their warrant for the collection of the taxes, and had affixed the same to the assessment-roll, they adjourned sine die, having previously directed said Bliss, the supervisor, to extend the taxes against the persons and property named therein. After the adjournment Bliss, in pursuance of such directions, extended all the taxes on the roll and delivered the same with the warrant to the collector. The question is whether this made the warrant void and, therefore, vitiated the future proceedings to enforce the tax. There is no other irregularity or defect than this.

If we look at the provisions relative to taxes, we shall find nothing which requires the warrant or the corrected assessment-roll to contain a statement of the rate of taxation. (1 R. S., m. p. 395.) Section 31 provides for increasing or diminishing the aggregate valuations of real estate, and section 32 for altering descriptions of lands of non-residents or expunging them. Section 33 then requires the board of supervisors to estimate and set down in a fifth column, opposite the several sums set down as valuations, the respective sums to be paid as a tax thereon. And section 37 requires that the warrant shall be annexed, requiring the collector to collect from the several persons the sums mentioned in the last column.

The question there presented to us is whether the estimating and setting down in the fifth column of the sums to be paid as a tax, is a merely clerical duty which may be performed, after the final adjournment of the board, by any person to whom they may intrust it. What the per centage is, probably appears in the record of their meetings. But so far as the collector is concerned, he is simply to collect the amounts stated in the fifth column, without any right to inquire whether they bear a uniform ratio to devaluations. The expression “extending the tax” is not in the statute. So that there is nothing in the language of the statute-implying that the duty of the board is ended when they have fixed the rate of taxation and signed a warrant.

In the ease of Bellinger v. Gray (51 N. Y., 610) the board had equalized the valuation of the real estate by having established a per centage which should be added to the valuation of the town. The board had also determined the amount of State and county taxes and had added the amount to be raised by the town. They delivered the assessment-roll and warrant to the supervisor of the town. Subsequently and after the adjournment he made the necessary computations according to the per centage established by the board andinserted the proper results in the assessment-roll. That case is closely analogous with the present. It is true that the board of supervisors in that case, after establishing a per centage to be added for the purpose of equalization, left the labor of computing that, as well as the labor of computing the tax, to the supervisor. But one was as much a matter of mathematical computation as the other. The board had decided to add fifty per cent to the valuation of the town ; and then had determined the rate of taxation at (say) four per cent. Now, it was as much a clerical matter to add fifty per cent to the valuation of each piece of real estate as to compute foui per cent on the total value when thus increased. Yet the court held that the assessment and warrant were void. And they said that the ■merely ministerial duties are those imposed by sections 35, etc. They notice, in confirmation of the opinion, that the assessment-rolls must be complete before they are delivered ; that by section 38, as soon as the board has delivered the rolls and warrant to the ■collector, they are to transmit to the county treasurer an account thereof stating, among other things, the amounts the collectors are respectively to collect, and the county treasurer, on receiving the .account, is to charge each collector with the sums to be collected by him. Therefore the board must have the rolls, with the tax to be collected of each person stated therein, before they can send this statement, which is the aggregate of those taxes.

In the case of Bradley v. Ward (58 N. Y., 401) the case just cited is referred to without criticism. .An offer was there made to show that when the warrant was executed the amounts were not inserted, but that they were afterwards inserted by one Brick. The court said that the offer was somewhat vague; that the circumstance of signing first and filling the amounts afterwards, if done by the board or their direction at the time, would not invalidate. And the court further remarked that it might be doubted whether such an irregularity could be urged against the collector, that action being against him.

The special term case of Tallmadge v. Supervisors (21 Barb., 611), must yield to these two decisions. Colman v. Shattuck (62 N. Y., 348) is not inconsistent with them. Overing v. Foote (43 id., 290) does not apply. The plaintiffs cite First National Bank of Utica v. Waters (7 Fed. Rep., 152), as exactly in point. But the language of the court there points out the difference. The court say: “ It was the duty of the city clerk of Utica to extend the tax. * * * The computation and insertion of the amount of the tax, after the roll had been delivered to the treasurer was an irregularity. It was done by the person whose duty it was to do it.” That will be understood by reference to chapter 539, Laws 1880, section 1; amending (among others) section 134, chapter 18, Laws 1862. By this it will be seen that it is the duty of the city clerk •of Utica to insert the tax in the proper column. And by further reference it will be found that after the roll has been delivered by him to the city treasurer, it is the city treasurer who issues a warrant to the collector. Thus, in the case cited, the insertion of the tax was done by the person whose duty it was to do it; and it was done before any warrant had been signed or delivered. In the present, case the insertion of the tax was not done by the person whose duty it was to do it; and it was done after the warrant had been signed and delivered.

Of course the individual supervisor has no more authority to alter or add to the warrant than any other person would have. So that the question is whether the board of supervisors can issue a warrant in blank, authorizing some person to fill in the proper amounts to be collected.

If the form of the warrant had directed the collection of four per cent (or any other per centage) on the corrected valuation, and then the supervisor had made a computation of the per centage, a different question would be presented. But, as it is, we think that the decisions above cited are conclusive.

Another point is made, viz., that admitting the warrants and rolls for the years 1868, 1869 and 1870 were void, yet there was no evidence that the warrants and rolls for 1866 and 1867 were not valid; that the sale was for all of these taxes, and was, therefore, valid. If we examine chapter 427, Laws 1855, we shall find that, by section 44, so much of each parcel assessed is to be sold as will pay the taxes, interest and charges. If there is no bid, the comptroller is to bid in for the people. (Sec. 66.) The amount which must be paid for redemption is the amount mentioned in the certificate, with ten per cent' interest (sec. 50); that is, the amount of the taxes, interest and charges, and ten per cent interest thereon. It follows, then, that there can be no separation as to the taxes of several years. The sale is entire, and the amount bid, as well as the amount required to redeem, must include the illegal as well as the legal taxes. The notice required to be given for redemption must state an amount which includes all the taxes, legal or illegal,, for which the lands were sold. (Sec. 61.) The owner could not redeem from the legal taxes, and treat the sale as a nullity in respect to the illegal taxes. We think, therefore, that the illegality of some of these taxes vitiated the sale.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bookes and Landon, JJ.

Judgment affirmed, with costs.