author: Follett, J.

text:
    John McQueen, as Receiver, etc., App’lt, v. Tobias New, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    1. Conflict of laws —Fraud.
    The courts of this state have jurisdiction to entertain an action to recover damages against a resident of this state for a fraud committed in another state.
    2. Same — Confession of judgment.
    A judgment, confessed in a foreign state by a domestic corporation, if intended to prefer creditors in violation of the laws of this state, will be declared void by our courts, without regard to the laws of such other state.
    Appeal from an interlocutory judgment, sustaining a demurrer to the complaint.

      Henry H. Whitman, for app’lt; F. J. Mather, for resp’t.
   Follett, J.

The Powerville Felt Roofing Company, Limited,, was incorporated under the laws of the state of Hew York. December 21, 1892, by a final judgment entered in an action in this court, the corporation was dissolved because it was insolvent, and thereafter John McQueen was duly appointed permanent receiver, and entered upon the discharge of his duties. It is alleged in the-complaint that November 25, 1892, the corporation owned and was in possession of personal property in the city of Chicago, 111., of the value of $15,000 and upwards, and that on that day the corporation confessed a judgment to William H. Eberts and John M. Eberts in the sum of $81,000 damages, besides costs, and upon the same day an execution thereon was issued to thesheriff of Cook county, who thereupon levied and took into his possession all of the personal property of the corporation then in the city of Chicago. It is further alleged that at that date the corporation was insol-, vent, as was well known to Francis J. Falmer, the treasurer, and Charles E. Lockwood, the secretary, who, because of such insolvency, collusively, and with intent to defraud the creditors of the corporation, confessed said judgment to said William H. and John M. Eberts, the former being the president of the corporation. It is further alleged that December 5, 1892, William H. and John M. Eberts, under the firm name of Eberts Bros., transferred to this defendant the aforesaid judgment, and the lien which had been acquired by the levy of the execution, and -that the defendant, by a written contract dated on that day, which is set-out in the'complaint, agreed to dispose of the avails of such property and other personal property of the corporation then at Duluth, Minn., as follows: (1) Pay the expenses of managing, selling and converting said property ; (2) retain therefrom about $40,-000 in payment of notes made or indorsed by the corporation, and also indorsed by Eberts Bros., and then owned by the defendant; (3) distribute the remainder ratably among the creditors of the corporation to whom Eberts Bros., were liable as indorsers; (4) pay the surplus, if any, to Eberts Bros. It is further alleged that October 21, 1893, the defendant, by virtue of said judgment, execution, and fraudulent bill of sale, acquired from the proceeds of the property so levied on $3,381, which he has refused to pay to the plaintiff, although demanded. It is further alleged that the defendant knew when he took said assignment, and entered into* the contract set out in the complaint, that the judgment confessed, and all proceedings taken thereunder, were fraudulent and void, and were taken with intent to defeat the just claims of the creditors of the corporation, to secure an unlawful preference over them, and in fraud of the rights of the receiver. It is also alleged that the defendant is a resident of this state. March 31, 1893, the defendant filed with the plaintiff a verified claim, in which he alleged that the corporation was indebted to him in upwards of $11,000. On November 21, 1893, by an order duly made by the supreme court, the plaintiff was authorized to bring this action.

The defendant demurred to the complaint on the following grounds: (1) That the court has no jurisdiction of the subject of this action-; (2) that there is a defect of parties defendant in tho omission as parties of William H. Eberts and John M. Eberts, referred to in the agreement set forth in said complaint; (3) that several causes of action have been improperly united, one being a suit or proceeding to set aside a judgment, and the second a claim for recovery of money ; (4) that the complaint does not state facts, sufficient to constitute a cause of action.

The demurrer was sustained, on the ground that sufficient facts are not stated in the complaint to constitute a cause of action. The first ground of demurrer needs no consideration, - for it has been many times held that the courts of this state have jurisdiction to entertain an action to recover damages against a resident of this state for a fraud committed in another state. It does not appear on the face of the complaint that there is a defect of parties defendant. It is not alleged that William H. and JohnM. Eberts are residents of this state, or that they are or ever have been within the jurisdiction of the courts of this state, but, on the contrary, it is inferentially alleged that they are, and at the time of the transactions complained of were, residents of the state of Michigan; nor does it appear that they could be brought within the jurisdiction of the court by substituted service. When persons are not within the jurisdiction of the court, and there is no way by which they can be brought within its jurisdiction, they need not be made parties defendant. Story, Eq. PI. (10th ed.) § 78. Besides, it does not appear that William H. and John M. Eberts are necessary parties. This is an action found ed in fraud, and it is not necessary in such actions to make all of the wrongdoers defendants. As to the third ground of demurrer, it is apparent that only a .single cause of action is stated in the complaint, — that is, to compel the defendant to account for property which belonged to the corporation, and which, it is alleged, he fraudulently acquired. The fact that the plaintiff seeks to have the proceedings through which the defendant asserts that he acquired the property set aside does not constitute an independent cause of action.

The only real question involved is whether sufficient facts are set out in the complaint to constitute a cause of action. It is urged that it is not alleged that the judgment confessed is fraudulent in fact, but that the allegation is that it is fraudulent in law, because violative of the statute of this state prohibiting transfers of property by an insolvent corporation, in contemplation of insolvency, for the purpose of giving preferences to its officers or creditors. It seems to be conceded by the learned counsel for the defendant, and also in the opinion delivered at special term, that, , had the transfer described in the complaint been made in the state of New York, sufficient facts to constitute a cause of action are stated in the complaint. This concession is undoubtedly correct, and it disposes of the case. The corporation was organized undered the laws of this state, and its officers were bound to administer its property and its affairs in accordance with the laws of this state, and the fact that transfers of property in violation of the laws of this state were made in another state does not render the act less fraudulent in law, nor does it relieve them in liability therefor.1 A rule that officers of corporations of this state may make such transfers in another' state would enable the officers of failing corporations of this state to transfer some or all of their movables to an adjoining state, and there, by confessions of judgment or otherwise, to secure preferences to themselves or to creditors which are forbidden by our statutes. It is alleged that this ■defendant knew that the transfer which he contracted to carry out and enforce was fraudulent and void under the laws of this state. We think the complaint contains facts sufficient to constitute a cause of action, and that the interlocutory judgment should be reversed, with costs, and with leave to the defendant to withdraw his demurrer and answer, upon the payment of the costs in this court and in the court below.

All concur.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    Hannah Springer, Resp’t, v. Robert E. Westcott, as President, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Pleading — Vabiance.
    Where the court submits a ground of liability hot suggested by the pleadings, the judgment will not, in case of a general verdict, be upheld, unless the othei ground of liability be so clearly established that, had a direction of a verdict been ordered, it would be sustained.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      E. Luther Hamilton, for app’lt; B. F. Einstein, for resp’t.
   Parker, J.

The court submitted to the jury a ground of liability not suggested by the pleadings, and it is the rule that, if in such case there be a general verdict, the judgment will not be upheld, unless the other ground of liability be so clearly established that, had a direction of a verdict been ordered, it would be sustained. Baldwin v. Burrows, 47 N. Y. 199.

The action was to recover for a breach of contract in failing to deliver a trunk and contents to the plaintiff. Plaintiff delivered a check which she had received from a railroad company for her trunk to the agent of the defendant, who caused the trunk, but not its contents, to be delivered to her. She alleged in her complaint “ that on the 14th day of September, 1889, the plaintiff caused to be delivered to the said association, and the said association received, her trunk and its contents, at the Grand Central Depot in the city of Hew York,” but defendant omitted to convey the contents of the trunk to the place agreed upon. The defendant, on this trial, attempted to show by one of its expressmen that the trunk was delivered to the plaintiff in the same condition in which it was received by the defendant. When the court came to instruct the jury, however, it charged them, in effect, that, if they should reach the conclusion that the trunk was rifled while in the baggage room of the railroad company, the defendant could, nevertheless, be charged with liability for its neglect in failing to demand promptly the trunk from the railroad company, as will appear from a brief quotation from the charge:

‘As I said before, the question is with reference to the diligence of the defendant’s servants as regards that subject. Was that luggage lost because they did not get it in time, or get there .in time to claim it for the plaintiff, and to take possession of it, and deliver it at its appointed place of destination? It is for you to determine, under all the circumstances of the case, whether that is so or not. If you find that the defendant is responsible' in that way for its negligence, and if the baggage was lost by fault of the defendant in the way indicated, then the plaintiff would be entitled to recover. If you find in favor of the plaintiff upon that issue, that the defendant or its servants did not do what they should have done, and did not get the baggage from the baggage room, and that the theft or loss was accomplished by reason of that negligence, then you will come to the consideration of another question.” <

The other “ question ” referred to by the court in the concluding sentence involved the question of damages. It will be observed that the charge, in such respect, was inconsistent with the complaint, which not only did not contain án allegation of negligence in failing to demand the trunk promptly, but. on the other hand, positively alleged that, on the day mentioned, the trunk and its contents were delivered to the defendant at the Grand Central Depot.

The opening of .counsel contains no suggestion that plaintiff intended a recovery upon any other ground than that mentioned in the complaint, nor was there anything done or said, so far as the record discloses, during the trial, prior to the charge of the court, to indicate that such a question was to be presented to the jury. Apparently, the form of the complaint was not brought to the attention of the court, and the jury were instructed as to the law as seemed to it proper under the facts proved. Exceptions, however, were properly taken by defendant’s counsel, and they are available to him for a reversal of the judgment, for the plaintiff’s evidence, in support of the ground of liability alleged in the complaint, was not of such a character as would have justified the court in directing a verdict in favor of the plaintiff upon that issue.

It may be said that the testimony warranted the instructions given to the jury by the court, and therefore this court should amend the complaint to conform to the facts proved. It would, doubtless, be proper to do so had the parties, in apparent disregard of the pleadings, tried the case as if the questions involved were such as the court presented to the jury. But the record shows that this case was not tried upon any such theory. Not only is it silent touching any claim of that character by plaintiff’s counsel, but it contains objections by .defendant’s counsel which show that, he not only understood the boundaries of the complaint, but intended to confine plaintiff within them. .This will sufficiently appear by quoting from the record a question asked of the plaintiff, and defendant’s objection thereto.

“ Q. Did you tell this Westcott’s expressman, or did he tell you, when this trunk would be delivered ? (Objected to as irrelevant, and because declarations are not admissible to bind defendant, and because this action is not brought for delay in delivering or delay in demanding, but on the contract which is set forth in the complaint.)”

The fundamental rule that judgment shall be secundum allegata etproliata, Day v. Town of New Lots, 107 N. Y. 148 ; 11 St. Rep. 361; Romeyn v. Sickles, 108 N. Y. 650; 13 St. Rep. 864, having been violated, the judgment cannot be sustained.

The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event..

All concur.


text:
    Edward D. Dunlap, Resp’t, v. George Wilken, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)
    Appeal — Conflicting evidence.
    A verdict, upon conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Charles A. Decker, for app’lt; Edward W. S. Johnson, for resp’t.
   Follett, J.

This action was begun March 13,1893, to recover damages for fraudulent representations made upon the sale of personal property. In August, 1892, the defendant was the lessee of real estate situated at Collegeville, Montgomery county, Pa., which was used and occupied by him as a tannery. Who was the owner of the fee does not appear, nor are the terms of the lease disclosed. The defendant was engaged in the business of selling toys at No. 501 Broadway, and the tannery was in charge of John Kiefer.

On the 7th of August, 1892, the following advertisement appeared in the New York Herald:

“Wanted party $8,000 to $15,000 ; take retiring partner’s place; manufacturing, staple as flour; seventy per cent, clear profit; address Established, 286 Herald.”

In the Nevo York Herald of August 14, 1892, the following advertisement appeared:

“Wanted party with $8,000 to $10,000 ; established ; staple as wheat; protected by high tariff; guaranty seventy per cent per year; address Manufacturer, 286 Herald.”

The plaintiff communicated with the advertiser, and in reply received a letter from John Kiefer, of Collegeville, Pa., who referred the plaintiff to George Wilken, at 501 Broadway. Negotiations ensued between the litigants, which resulted in a sale of the stock on hand tools, movable fixtures, and bills receivable for leather sold, for which the plaintiff paid on that date $5,435.85, and received from the defendant a bill of sale of the property. It is alleged in the complaint that the defendant made false representations in respect to the quality of the leather and skins on hand, in respect to the collectability of the bills receivable, and. also in respect to the profits theretofore derived from the business. On the trial the plaintiff proved that the representations alleged were made, that they were false, and facts from which the jury was authorized to find that the defendant knew they were false. The plaintiff also showed that he relied upon the representations, and was injured thereby. The defendant, by his own evidence, denied that he knew that the representations which he made were false, but the jury believed the plaintiff and his witnesses, and we thirik they were fully justified in so doing. After reading the record, we are satisfied that the verdict of the jury is right, and is sustained by the evidence. No exception was taken by the defendant to the charge of the court, and no exceptions to the admission or rejection of evidence were argued, and the only questions presented upon this appeal arise upon the defendant’s motion for a nonsuit. It is clear that a question of fact was presented, and that it would have been error in the trial judge not to have submitted the issued to the jury, and by its verdict the parties are bound.

The judgment and order should be affirmed, with costs.

All concur.


author: Van Brunt, P. J.

text:
    Jacob S. Rogers et al., Resp’ts, v. New York and Texas Land Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Trusts — Accounting — J udgment.
    An interlocutory judgment, in an action against trustees for an accounting, which provides for taking the account .of the expenses of administering the trust, is sufficient, though it does not decide whether any of the expenses should be allowed.
    Motion for a new trial on a case and excptions.

      T. G. Shearman and Noah Davis, for the motion; Julien T. Davies, opposed.
   Van Brunt, P. J.

We do not see but that the opinions heretofore rendered in this case in the court of appeals, and the opinion of the justice who tried the case in the court below, dispose of all the questions which are involved in this motion. It is true that it is claimed upon the part of the defendants that the case now before the court is an entirely different one from that which received the attention of the court of appeals. But, upon an examination of this case, it seems to us that all the material facts are substantially the same. There may be differences in the condition of the proof, but none which affect the question as to the right of the plaintiffs to maintain this action, as is shown by the opinion of the learned justice who tried the case in the court below.

It is urged that the court erred in the terms of the interlocutory judgment, because, although it provides for the taking of an account of the expenses of administering the trust, it does not decide -whether any of these expenses should be allowed or not, and that this want of decision leaves a material fact undisposed of, and hence the interlocutory judgment is incomplete and should be set aside. We do not see but what the court has the power to reserve the question as to whether certain expenses w hich are claimed as a charge shall be allowed, or not, until the coming in of the referee’s report, and the court be thus fully informed in regard to all the facts and circumstances of such accounts. And that was all that was done in this case. The court seem to have reserved nothing more than is ordinarily the practice in interlocutory judgments, — to reserve the question of costs until the coming in of the referee’s report, and then to provide for the same in the final judgment. So, here, the referee is directed to take and state the account, and ascertain the amount of the expenses of administering the trust, and report the same to the court;-and then the court can determine by its final judgment as to whether or not such expenses should be allowed, and the defendant credited therewith.

Upon an examination of the various exceptions taken to the admission and exclusion of evidence, we do not see that any of them are of such gravity as to call for a setting aside of the judgment. The motion should therefore be denied, with costs.

All concur.


author: Van Brunt, P. J

text:
    Henry N. Market, Resp’t, v. Manhattan Railway Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Elevated hail way — Special benefits.
    In an action against an elevated railway for injuries to abutting prem-ises, it is error for the court to refuse to pass upon findings requested as to special benefits upon the ground of immateriality, where the effect of such refusal was to exclude from consideration facts which were calculated to,, and should, influence its judgment.
    Appeal from a judgment rendered in favor of plaintiff.

      R. L. Maynard, for app’lts; E. M. Felt, for resp’t.
   Van Brunt, P. J

This is one of the class of actions with which the court has become somewhat familiar, brought to recover for the taking of certain easements by the elevated railroads. It is not necessary to discuss the particular facts of this case ; but it would appear that the learned court erred in refusing to pass upon certain findings which were requested by the defendants. The premises in question were partially occupied for business purposes ; and the court was asked to find that the special benefits accruing to the business portions of said premises from the said railroad stations are greater than and more than offset the disadvantages accruing from the presence and operation of defendant’s railroad in front of the said premises. This request was refused as immaterial. The court was also asked to find that the fee value of the premises in suit, exclusive of the building, has steadily increased since the construction of the defendants’ road, and the same is now more valuable that at any time prior to the construction of said road. This also was refused as immaterial. The court was further requested to find as follows:

“ Since the building and use of defendants’ railroad and stations aforesaid in Third avenue, the premises and property in the neighborhood of the same have come into greater demand for business uses, and such demand has greatly increased the fee value of Third avenue property in the locality, including the land described in the complaint The presence of the said station constitutes a material element of advantage and benefit to the premises in suit, and increases the availability thereof and the variety of uses to which the same may be profitably put.”

These .requests were also refused as immaterial.

This, we think, was error. The court made elaborate findings upon the questions which were presented ; and, in refusing to pass upon the findings requested upon the ground of immateriality, it seems to have excluded from consideration facts which were calculated to and should have influenced its judgment; and, when they were declared to be immaterial, it is impossible to say that due consideration was given to circumstances surrounding these premises which the court was bound to consider in coming to a conclusion. ' We think, therefore, that the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellants to abide the event.

All concur.


author: Brown, P. J.

text:
    Deborah L. Mangam, Resp’t, v. Village of Sing Sing, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Evidence — Ejectment.
    Where, in ejectment for land used as a public square by a village, the plaintiff claims the land as included in the description of a deed to her predecessor in title, evidence of acts of ownership by the trustees of the village before the execution of the deed to plaintiff’s predecessor in title, is admissible.
    Appeal from a judgment in favor of plaintiff, entered upon the decision of the court on a trial without a jury.

      Smith Lent, for app’lt; Frederick S. Parker, for resp’t.
   Brown, P. J.

This was an ejectment action to recover possession of a triangular piece of land in the village of Sing Sing, used as a part of a public square. The land lies at the intersection of Highland avenue and Main street. The plaintiff founds her title upon a deed from Francis Larkin and others to Daniel D. Mangam, her husband, dated March 1, 1867. The complaint alleged that plaintiff was in possession of the land in dispute oh September 29, 1886. and the court found that fact. The proof does not, however, show an actual possession and occupation of the land by the plaintiff or her husband at that or any other date. At the time of the deed to Daniel Mangam the lot' was inclosed by posts and a chain, but this fence.had been erected by the village trustees, and, beyond replacing a few of the posts and repairing the chain, there were no acts of ownership over the land shown to have been exercised by the plaintiff or her husband. There was not, therefore, such a possession as the law requires upon which to found an action of ejectment, and, if the plaintiff is entitled to recover, she must do so upon her legal title. The deed from Larkin to Mangam bounded the land conveyed as follows: Easterly by the Highland turnpike road, northerly and northwesterly by a road leading from the Highland turnpike road to the Farmers Landing, southerly by the churchyard or land of the First Baptist Church of Mount Pleasant.” It is the plaintiff’s claim that the above description bounds a triangular piece of land, and that the lot in dispute is at the apex of the triangle. The Highland turnpike road is now known as Highland avenue, and the other road is Main street. It is the defendant’s contention that the lot in dispute is not included in the description of the Larkin deed, but that originally it was a part of Main street, and at a later date a part of a public square; and to substantiate this claim testimony was given tending to show that Main street, which now runs substantially in a straight course until its westerly side intersects the west side of Highland avenue, originally curved abrubtly to the east at a point now represented by the corner of the house on plaintiff’s lot, which was formerly called the “Eagle Hotel,” and ran immediately in front of that building, until it intersected Highland Turnpike ; and that,the building that stood on the west side of Main street, referred to in the testimony as the “Ward House” was subsequently moved back, and the west side of Main street straightened to run upon substantially its present line. That, after that change was made, all the space between the Eagle Hotel and the west side -of Main street was used as an open square, and controlled, worked, and improved by the village. ' All this was claimed to have occurred long prior to the deed from Larkin to Daniel Mangam. The defendant offered oral and documentary evidence of acts of ownership by the trustees of the village prior to 1867 over and in relation to this square, including the land in question ; all of which was excluded upon the plaintiff’s objection. We are of the opinion that this evidence was admissible, and its exclusion error, for which there must be a new trial. The answer alleged that for upwards of forty years past the land had been in possession of the defendant, and in use as a public square and street by the people of the village; and, just as it would have been competent to show a use by the public of the land in dispute as a street or highway, so it was competent to show the acts of the public authorities in relation to its control and use as a public square. The construction of a reservoir thereon, its "inclosure by posts and chain, the maintenance of that as a fence, the use of the land for public meeting, and generally all acts done by the trustees in reference to it as public property, were admissible as showing its character, and contradicting the plaintiff’s claim and assertion of private use and ownership. There was very much testimony in the case tending to favor the conclusion that Main street originally ran directly-in front of the building on the plaintiff’s lot; and, if it had appeared that, after the change in the line of that street, the intervening space had always been used as a public street or square, and controlled by the village trustees, a different result might have been reached. The judgment must be reversed, and a new trial granted, with costs to abide the event.


author: O’Brien, J.

text:
    David Thomson, as Trustee, etc., Resp’t, et al., App’lt, v. Emma C. Hill et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    1. Will — Construction—Vesting.
    Where the will does not in terms give the corpus of the estate to the executors, but provides that, on the death of one of the beneficiaries named therein, the residue of the estate shall be equally divided among certain persons, such residue vests in the residuary legatees at the death of the testator.
    2. Same.
    Where the language is clear and expressive of an intention to confer an absolute interest, in terms which beyond question would so confer it, the estate thus created is not to be cut down or destroyed by the addition of equivocal expressions in another portion of the will having a contrary tendency.
    Appeal from a judgment construing a will.

      Noah Tebbetts, for app’lts, Emma C. Hill and others; Louis A. Noble, for app’lt Mary Hanson ; Henry A. Prince, for app’lts Hattie E. Beardslee and others; Jacob F. Miler and A. E. Woodruff, for resp’t Gilbert M. Husted.
   O’Brien, J.

This action was brought to obtain a construction of the will of Benjamin Lord; who died in 1851. Of those mentioned in the will who survived him, Caleb Knapp died in 1851, Lavinia Knapp died in 1863, Mary Yan Yeghten died in 1875, and Sarah Louisa Reed died in 1886. The testator having alienated the property mentioned in the third clause of the will, and the trust mentioned in the second clause having determined, there is left for construction the fourth clause, which reads as follows:

“Fourth. Upon the death of the said Sarah Louisa Reed, it is my will that the whole of the rest, residue, and remainder of my estate, both real and personal, be equally divided among the same persons, and in the same manner, as directed in the next preceding article of this my will.”

That article is as follows:

“Third. Upon the death of Mary Yan Yeghten, aforesaid, it is my will that my store, number one hundred and forty-seven (147) Cedar street, be sold, and the proceeds thereof and arising therefrom be equally divided among my brothers and sisters, and Lavinia Knapp, wife of the said Caleb Knapp, in the same manner as if the said Lavinia were my own sister, and I had died intestate; and in case either of my brothers or sisters, or the said Lavinia Knapp, shall then be dead, leaving surviving any descendant or descendants, that then, and in such case, such descendant or descendants shall take the share or portion which would otherwise have belonged to such parent, the share of said Lavinia Knapp being subject to life interest of the said Caleb Knapp therein. The income alone of the said share of Lavinia Knapp shall be paid to her said husband during his natural life, and after his death to the said Lavinia Knapp, and after her death her share be divided among her heirs.”

The testator having parted with the Cedar street property during his lifetime, and the other clauses of the will having relation only to income, it is conceded that the distribution of the entire corpus of the estate, and the interest which Lavinia Knapp took therein, which is the sole question presented for our determination on this appeal, are controlled by the construction to be given to the clauses or articles quoted. At the outset it is important to determine when the vesting occurred. On the one hand, it is insisted that it was on the death of the testator; and, on the other, as strenuously urged that it was postponed until the death of Sarah Louisa Reed, which was the time fixed for distribution. Reading the other clauses of the will, and keeping in view that the corpus was not in terms given to the executors, — who were only given the power to sell any portion of the real estate “in order to distribute and divide the same,” thus rebutting the inference that the corpus was vested in the executors, — we think that the vesting occurred upon the death of the testator, and that the interests of the various persons are to be determined as of that date. As said by the presiding justice of this court in the case of Jaudon v. Hayes, 79 Hun, 458, 455; 61 St. Rep. 268.

•“It is undoubtedly the rule in the construction of wills to favor the vesting of estates, and that, where all other things are equal, such a construction will be adopted as will coincide with this rule.”

Although the distribution was postponed until the death of Sarah Louisa Reed, and thus the right to possession and enjoy: ment was likewise postponed until that time, this in no way militates against the force of the rule which in all cases will incline the court, other things being equal, to adopt a construction favoring a vesting, rather than a suspension, of a gift or devise,

Assuming that the vesting took place at the death of the testator, the question remains as to what interest, if any, Lavinia Knapp then took in the corpus of the estate ? Did the testator intend that she should have only a life interest or a share absolutely? If the former, then the provision would be void, because he had already created one life estate therein for Sarah Louisa Reed, and a second for Caleb Knapp; and, if the view urged by the appellants-is sound, that there was a third life- estate for Lavinia Knapp, with remainder thereon to her heirs, it would be void because in contravention of the statute. Were this view adopted, she, for the reason stated, took no interest in the corpus of the estate, even though the vesting took place at the death of the testator.

The contention that Lavinia Knapp took only a life estate is based upon the last sentence of the third clause of the will, which reads:

“The income alone of the said share of Lavinia Knapp shall be paid to her said husband during his natural life and after his death to the said Lavinia Knapp, and after her death her share to be divided among her heirs.”

If this language stood alone, and expressly applicable to the corpus, there would be much force in the argument. In the construction of a will, however, it is not proper to take isolated portions or sentences, but the will as a whole must be read with a view to determine the intent of the testator. As thus read, in terms as expressive as language can make it, he placed Lavinia Knapp in an equally favorable position with his brothers and sisters; and, were it not for the sentence last quoted, the other portions of the third clause of the will, which should be read as though incorporated in the fourth clause, would seem to provide that upon the death of Sarah Louise Reed the property should be “ equally divided among my brothers and sisters, and Lavinia Knapp, wife of the said Caleb Knapp, in the same manner as if the said Lavinia were my own sister, and I had died intestate; and, in case either of my brothers or sisters, or the said Lavinia Knapp, shall then be dead, leaving surviving any descendant or descendants, that then, and in such case, such descendant =or descendants shall take the share or portion which would otherwise have belonged to such parent, the share of said Lavinia Knapp being subject to the life interest of the said Caleb Knapp therein.” With language so expressive, we think it would be doing violence to the declared wishes of the testator to hold that, the absolute interest which was thus given to Lavinia Knapp, subject to the life interest of her husband, Caleb Knapp, and subject likewise to be divested had she left descendants, — which it is conceded she did not, — is, by the last sentence of the third clause, above quoted, to be cut down to a life interest, and thus prevent her from obtaining an equal interest in his estate with his brothers and sisters, in the same manner as if she were “ his own sister, and he had died intestate. ” The rule to be applied where a fixed interest has been given, and subsequent language in the will is resorted to for the purpose of cutting such interest down, has been well expressed by Judge Peckham in the late case of Washbon v. Cope, 144 N. Y. 287, 297 ; 63 St. Rep. 716, as follows :

11 We are confronted, in the first place, by the well-settled rule that courts refuse to cut down an estate already granted in fee •or absolutely when the supposed terms of limitation are to be found in some subsequent portion of the will, and are not in themselves clear, unmistakable, and certain, so that there can be no doubt of the meaning and intention of the testator.”

Applying this rule, we think the provisions in the will that Mrs. Knapp should share in the estate of the testator the same as though “ she were his own sister, and he had died intestate,” is not to be destroyed by language subsequently used, which it is not shown was intended by the testator to qualify or destroy the absolute terms in which the share or interest was given. As said in 2 Jarm. Wills (Am. ed.) p. 470 :

“ It seems that, where the testator first gives the residue in terms which would beyond all question confer a vested interest, the addition of equivocal expressions of a contrary tendency will not suspend the vesting.”

So it may be said with respect to the character of the interest which one takes, as to whether it is a life or absolute interest, where the language is clear and expressive of an intention to confer such absolute interest, in terms which beyond question would so confer it, the estate thus created is not to be cut down or destroyed by the addition of equivocal expressions in another portion of the will having a contrary tendency. Caleb Knapp having died, therefore, before the time fixed for distribution, Lavinia Knapp took absolute vested interest in Benjamin Lord’s estate, which was “descendible, devisable, and alienable in the same manner as if it had been an estate in possession”; and, she having left no descendants, and it being conceded that she transferred the same will to Gilbert M. Husted, the judgment in awarding the one-eleventh to him was right.

Some exception has been taken to the finding of fact that “ the descendants, heirs, and successors of the various parties in interest are as stated in allegation six of the complaint,” upon the ground that the same is erroneous and improper. And a similar criticism is indulged in that the provision in the decision and judgment that interest vested in “ the descendants, heirs, legatees, and devisees of those of the beneficiaries who died subsequent to the death of the testator” is also erroneous, because the claims of the classes mentioned are exclusive and conflicting. While these criticisms may be justified, no injury has thereby been done appellants. They are immaterial, and do not destroy the force and effect of the conclusion reached by the judge at special term upon the main question presented for his consideration, and again raised upon this appeal, as to what share, if any, Lavinia Knapp, took in the estate of Benjamin Lord, deceased, and which, under her will, was transferred to Gilbert M. Husted Equally without force is the error claimed in the awarding of costs to the latter. We think it was entirely within the"discretion of the court below, with the exercise of which, upon the facts shown, we should not interfere.

Judgment affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Martha Haines et al., App’lts, v. William A. Patterson et al., Resp’ts. Elizabeth Patterson, Resp’t, v. Jane W. McCunn et al., App’lts. James M. Gano, as Executor, etc., Resp’t, v. Thomas McCunn, as Executor, etc., et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Costs — Laches.
    It is too late for parties, after having delayed some fifteen years before making any attempt to collect their costs, to move to amend a decree in an action, in which they are not parties, for the purpose of effecting such collection.
    Appeal from an order denying a motion to amend an interlocutory judgment.
    The cause first above entitled was commenced December 7, 1892, its object being to partition certain real estate. On Deeember 5, 1894, an interlocutory judgment therein was entered by which the rights of the owners of the property involved in the action and those of the various incumbrances thereon were determined. On January 31, 1895, Shipman, Larocque & Choate, Esqs., acting for themselves and as attorneys for James M. Glano, executor, etc., procured an order, entitled in the two actions of Patterson v. McCunn and Gano v. McCunn, to show cause why the judgments in said actions (entered respectively, November 1, 1881, and July 1, 1880, nunc pro tune as of January 10, 1877) should not be amended, and why leave to issue exception for costs in said action should not be granted. Before the hearing of the motion on said order, the same parties gave notice of motion for resettlement and amendment of the said interlocutory judgment in Haines v. Patterson, so that said judgment provide for the costs in the two other causes, with interest from January 7, 1877; and both motions came on to be heard together.

      A. Davidson, for app’lts; Christopher Fine and Chas. Fox, for resp’t.
   Per Curiam.

The parties having delayed some fifteen years, before making any attempt to collect their costs, we think it is too-late now for them to move to amend a decree in an action in which they are not parties for the purpose of effecting such collection. The order appealed from should be affirmed, with $10 costs and disbursements.


author: Follett, J. Van Brunt, P. J. O'Brien, J.

text:
    Monroe L. Simon et al., as Administrators, etc., App’lts, v. James O’Brien, as Administrator, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Insurance — Mutual benefit — Death of beneficiary.
    Where a beneficiary dies before the member of the association and no-new designation is made, the next of bin of the beneficiary are not entitled to the insurance, but it will go to the family or dependents of the member, as provided in the constitution.
    Appeal from a judgment, dismissing the complaint.

      John J. Gleason, for app’lts ; David McClure, for resp’t.
   Follett, J.

It is assumed in the record that the Catholic Benevolent Legion is a corporation, organized under the laws of this state, but when incorporated, or under what statute, is not disclosed. " We find in the record a document called “ The Charter of the Catholic Benevolent Legion,” which may be the articles of association; and also a document called “ The Constitution of Catholic Benevolent Legion,” in the second article of which the objects of the legion are stated:

“Section 1. The objects of the legion shall be: * * * (3) To establish a benefit fund, from which, on the satisfactory evidence of the death of a member, who shall have complied with all its lawful requirements, a sum not exceeding $5,000 shall be paid to his family or dependents, as such member may have directed. And from which benefit fund a sum not exceeding $2,500 may be paid to a member who shall have become permanently disabled from attending to business or granting a livelihood, and, who, having complied with all its lawful requirements, has arrived at the age of expectancy, as fixed by the printed table in our laws.”

The case contains another document, called “ The Laws of Catholic Benevolent Legion,” which we assume to be the by-laws of the corporation, chapter 2 of which contains the following sections :

“ Sec. 8. A member may at any time, when in good standing, surrender his certificate, and have a new one issued payable to such beneficiary or beneficiaries related to or dependent dpon him as he may direct, upon the payment of a certificate fee of fifty cents.
“ Sec. 4. In the event of the death of the beneficiary of a member, and no change of beneficiary shall have been made as herein-before provided, the share of such deceased beneficiary shall be paid to his or her legal representative.”

Under this constitution and these by-laws the Catholic Benevolent Legion issued and delivered to Patrick Doran a certificate, of which the following is a copy:

“ No. 14,771. $2,000.00.'
Catholic Benevolent Legion Benefit Certificate.
“ This certificate is issued to Patrick Doran, a member of Harlem Council No. 211, Catholic Benevolent Legipn, located at New York City, N. Y., upon evidence received from said council that he is a third-grade contributor to the benefit fund of the legion, and upon condition that the material statements are true which are contained in his application for membership and medical examination filed in the office of the supreme secretary, and made a part of this contract, and that he will strictly comply with the laws, rules, and regulations of the legion. These conditions being complied with, the Supreme Council Catholic Benevolent Legion hereby agree to pay out of its benefit fund to Lizzie F. Doran, wife, a sum of money not exceeding two thousand dollars, according to the provisions of law governing said fund upon the death of said member in good standing, provided he shall not have substituted another beneficiary or reduced the amount of said benefit under the rules governing disability benefits. The said supreme council agrees to pay out of its benefit fund to said member a sum not exceeding one-half of the benefit above stipulated, upon due proof that he has become entitled thereto under the provisions of law relative to permanent disability, upon the surrender of this certificate, and acceptance by him of another one-half the amount first above mentioned. In witness whereof the supreme council of the Catholic Benevolent Legion has hereunto affixed its seal, and caused this certificate to be signed by its supreme president, and attested and recorded by its supreme secretary, at the city of Brooklyn, New York, this 7th day of February, 1888.
“John McGuire, President. (L. S.)
“ John D. Carroll, Supreme Secretary.
“I accept this certificate on the conditions therein named.
“Patrick Doran, of Harlem Council, No. 211, 0. B. L.
“ (L. S.) Witnessed and delivered in our presence.
“ P. J. Casey,' President.
“J. J. Cleary, Secretary.

April 9, 1893, Lizzie F. Doran, the wife of Patrick Doran, the beneficiary in the certificate, died intestate, leaving no ancestors nor descendants, and leaving, her surviving, Patrick Doran, her husband, two brothers, and two sisters, her only next of kin. September 21, 1893, the defendant was duly appointed the sole administrator of her 'estate. May 13, 1893, Patrick Doran died intestate,, leaving no ancestors nor descendants, but leaving a brother, nephew, and nieces, his sole next of kin. June9,1893, the plaintiffs were duly appointed administators of his estate. Patrick Doran did not designate another beneficiary in the place of his deceased wife, and the-certificate remained in full force and effect at the time of his death, and was found among his papers. Both administrators claimed the $2,000 payable by virtue of the certificate, and the Catholic Benevolent Legion, admitting its liability, paid over the money, pursuant to a stipulation entered into between the rival administrators that it should be deposited with the Farmers’ Loan & Trust Company to await the decision of an action to determine who was. entitled to receive it.

Lizzie F. Doran was the ultimate beneficiary under the certificate, but she was not solely interested therein, because John F. Doran during bis life was entitled to receive one-half of the $2,000' upon proof that he had become permanently disabled. Certificate, cl. 3 ; Const, art. 2, § 1, subd. 3. The only interest that Lizzie F. Doran had in the certificate, or in the sum payable thereby, was a contingent one, subject to be wholly divested by the designation of another beneficiary, or by her death before the death of her husband. Hellenberg v. Order of B’nai Berith, 94 N. Y. 580; Smith v. Society, 123 id. 85-88 ; 33 St. Rep. 67 ; Sabin v. Phinneyt 134 N. Y. 423 ; 47 St. Rep. 903 ; Tyler v. Association, 145 Mass. 134. In Smith v. Society, supra, the interest of a beneficiary was held to be no more a vested one than that of a legatee in a will before the death of a testator; and in Heilenberg v. Order ofB'nai Berith, supra, it was held that upon the death of a beneficiary before the death of the member the case stands exactly as if no designation had been made. These decisions are conclusive against the right of any person claiming under Lizzie F. Doran to take the money, unless there is some provision in the contract by which they are expressly entitled to it. The only provision in the certificate, constitution, or by-laws, under which the defendant claims to be entitled to the money, is the fourth section of chapter 2 of the by-laws above quoted. That section does not provide for the ultimate disposition of the fund, but simply designates the person to whom the corporation may pay the sum in discharge of its liability. It is difficult to see how that section relates to contracts like the one under consideration, except in the event of the death of a beneficiary after the death of the member, in which case, if payment had not been made to the beneficiary before his death, then a payment to his legal representative is provided for by this section. By it may be that this corporation issues other kinds of certificates, to which section 4 is specially applicable.

By the constitution, the persons may be designated as beneficiaries are limited to the family and dependents of the member. Chapter 1, art. 3. But by section-3 of chapter 2 of the by-laws it is provided that when a new certificate is issued it may be made-payable to one related to or dependent on the member. The designation of a beneficiary, not within the classes specified in the contract, would be invalid, and would confer no right upon the person designated. Hellenberg v. Order of B'nai Berith, 94 N. Y. 580 ; Sanger v. Rothschild, 123 id. 577; 34 St. Rep. 258; Tyler v. Association, 145 Mass. 134. The collateral relatives of Patrick Doran’s wife were not dependent upon him, were not members of his family, nor were they related to him, within the meaning of the contract, and they could not have been legally designated by Doran as beneficiaries under this certificate, and the law cannot confer a right to this money which the parties to the contract could not confer. In case the member fails to designate his beneficiary, the amount payable by the certificate, in case the corporation is liable, is payable to the legal representative of the member, to be distributed according to the terms of the contract. Bishop v. Grand Lodge of E. O. M. A., 112 N. Y. 627; 21 St. Rep. 811. Suppose the person designated under this contract had been a dependent who was nowise related to the member, and the beneficiary had predeceased the member who died without making a new designation, it would not, we think, be seriously contended that the dependent’s next of kin would be entitled to take the fund. The member had a vested interest in the certificate, of which no one could divest him, and, in case of his failure to designate a beneficiary, his legal representatives are entitled to the fund. In the case at bar the husband succeeded to the entire estate of his wife, under the laws of this state, and the defendant has no title to the fund. The facts in this case having been agreed on, there is no occasion for a new trial. The judgment should be reversed, and a judgment ordered in favor of the plaintiffs, adjudging them to be entitled to the fund. The parties having stipulated that neither shall recover costs against the other, no costs are awarded.

Van Brunt, P. J.

I concur, except as to costs. I do not see how the parties can control the discretion vested by statute in the court by the stipulation.

O'Brien, J.

The by-laws provide :

“Sec. 4. In the event of the death of a beneficiary of a member, and no change of beneficiary shall have been made as hereinbefore provided, the share of such deceased beneficiary shall be paid to-his or her legal representative.”

As there is no ambiguity in this language, it should be construed to mean just what it says, and the money, therefore, very properly could have been paid over by the legion to the legal representatives. of the wife. I concur in the view expressed in the opinion of Mr. Justice Follett, that the wife had not vested interest during the life of the member, but, the latter having died after the beneficiary, the money should be paid to those designated in the certificate, which, read in the light of the charter and the constitution, made the right to agree upon the person or persons to whom, in the contingency named, the money should be paid. The questions, however, of who is entitled to the money, and that of who should receive it, are separate and distinct. Although in terms payable to the legal representatives of the beneficiary named (who in this case was the wife) for the purpose of administration, it by no means follows that her brothers or sisters are entitled to it. So to hold would be contrary to the certificate and the charter and constitution of the legion. They limit the benefits to the member himself, or to his family, or to dependents designated by him. I do not think, therefore, that the brothers or sisters of the wife have any interest in the fund, but it must eventually go to and constitute a part of the estate of the husband. At law surviving husband is absolutely entitled to the personal property of the wife, where she dies intestate without children. Whether, therefore, the wife had a vested interest or not, — and, as said, I concur in the view that she had not, — and though the payment of the fund by the legion under the contract was properly made to the administrators of the wife, it at once became the property of the estate of the husband ; and, as the question here is as to what persons are eventually entitled to take, I think that this must be decided in favor of the estate of the husband. I therefore concur in the result reached by Mr. Justice Follett, and, as the administrator of the wife had a right to receive payment, he should not be required to do more than hand over such fund to the plaintiffs, who, as administrators of the husband, represent his estate.


text:
    Reliance Marine Insurance Company, Resp’t, v. Henry L. Herbert et al., App’lt.
    (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Evidence — Opinion oe court.
    The opinion of the court, delivered in an action upon a question of fact is not competent evidence upon the trial of the same question of fact, arising in subsequent action between different parties.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Anson B. Stewart, for app’lts; William W. MacFarland, for resp’t.
   Follett, J.

The plaintiff is an insurance corporation, organized under the laws of the United Kingdon of Great Britain and Ireland, and the defendants are partners under the firm name of H. L. Herbert & Co., and engaged in the business of buying, shipping, and selling coal. The Lehigh & Willcesbarre Coal Company is a Pennsylvania corporation, engaged in mining, shipping and selling coal. March 5, 1891, the plaintiff, by an open policy, insured the Lehigh & Wilkesbarre Coal Company “on coal to be laden on vessels, boats or barges sailing on or after March 5,1891, against perils of the seas and all other perils, losses, and misfortunes that might come to the hurt, detriment, or damage of the said coal.” November 5, 1891, the Lehigh & Wilkesbarre Coal Company shipped at Port Johnson, in the state of New Jersey, on board the barge Macy, 461 tons of anthracite coal, to be carried to the foot of Fifty-Third street, on Bast river, in the city of New York, there to be delivered to the defendants. November 6, 1891, the plaintiff entered in a pass book accompanying said policy, and forming a part of it, an insurance on said cargo of coal of $1,900. On the same day the Macy was taken by a tug to be towed across the bay of New York to "her destination, and on the voyage the Macy was capsized, and all of the coal on board, except 34 18-20 tons, was lost. On March 2, 1892, the Lehigh & Wilkesbarre Coal Company made proof that the value of the coal lost was $1,756.14, and on the same day the plaintiff paid to said coal company said sum, and received an assignment of all its interest in said coal, and of all clauses of action arising out of its loss. Afterwards the coal company paid the sum so received to the defendants herein. In April, 1892, the plaintiff in this action filed a libel against the Macy in the district court of the United States for the southern district of New York, to recover its damages, alleging that the loss was not caused by any of the dangers insured against, but by the carlessness and neglect of the persons in charge of the boat. Charles Tice appeared in that action, alleged that he was the owner of the Macy, and among other defenses, alleged that the Macy was’ when loaded and wrecked, under the direction, control, and in the possession of said H. L. Herbert & Co., the owners of said cargo. On the trial of the action the libel was dismissed, on the ground that H. L. Herbert & Co., were at the time of the loss in possession and control of the Macy, — were in the situation of owners pro hac vice; that the captain of the barge was their agent, and that H. L. Herbert & Co. could not sue the barge or the owner thereof for the neglect of the captain overloading; that they had no maritime lien on the barge for the loss of its cargo; and the plaintiff had acquired no cause of action by subrogation. On the 4th of January, 1893, this action was begun, to recover from the defendants the amount paid by the plaintiff to the Le-high & Wilkesbarre Coal Company, and by it paid to the defendants on account of the loss. As grounds of recovery, it is alleged in the complaint: (1) That the coal was not lost by sea perils, but because the M acy had been improperly loaded by the defendants, and that the loss occurred by their neglect and by the neglect of their agents and employes in the management and navigation of the barge; (2) that, by a contract between the owner of the barge, and the defendants, they had assumed the management and control thereof, and were carrying their own coal on their own account and that by said contract the cause of action that would have existed in favor of the owners of the coal against the owner of the barge for the loss of the coal was cut off, and that the plaintiff’s right to be subrogated to H. L. Herbert & Co.’s right of acfion against the barge was lost; (3.) that the plaintiff paid the insurance without knowing that defendants were in control of the barge, .and in the belief that a cause of action existed in their favor against it, and that the plaintiff would be subrogated to a right of action against the barge.

On the trial of this action two questions of fact were submitted to the jury : (1) Was the coal lost through the negligence .of the defendants, or their servants or agents ? (2) Did the plaintiff pay the loss in ignorance of the.facts ? Both of these questions were found in favor of the plaintiff. On the trial the judgment roll in the libel action was read in evidence. Annexed to the roll was the opinion of the district judge, which was also admitted in evidence over the objection and exception of the defendants. In that opinion the learned judge stated that the accident was caused by overloading the boat. The opinion of the district judge upon the issue of fact in that case was not competent evidence in this case upon the issue whether the accident was caused by the neglect of the defendants in overloading the barge. When a question arises as to what issues were submitted to and determined by a jury, and the charge of the court discloses the questions of fact submitted, the charge is competent on that question; and so, for the purpose of determining the issues passed on by the court on a trial without a jury, its opinion upon disposing of the issues is sometimes competent. But the opinion of the court delivered in an action upon a question of fact is not competent evidence upon a trial of the same question, of fact arising in a subsequent action between different parties. The opinion of the district court upon this vital question of fact was well calculated to influence the jury in its determination of the same question- on this trial. For this error° the judgment must be reversed, and a new trial granted, with costs to the.appellants to abide the event.

, All concur.


text:
    Adolph Ladenburg et al., Resp’ts, v. Commercial Bank of Newfoundland, Def’t. New York Produce Exchange Bank, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    1. Attachment — Foreign corporation.
    An attachment against a foreign corporation is void, where it is granted on papers which do not affirmatively show that the case is within the provisions of section 1780 of the Oode.
    2. Same — Jurisdiction.
    Section 1780 of the Oode does not restrict the constitutional jurisdiction of the supreme court, but confers jurisdiction of foreign corporations in cases where it did not exist before.
    3. Same — Residence.
    An allegation in an affidavit for an attachment against a foreign corporation that the plaintiffs are a firm doing business as bankers in the city of Hew York, is not equivalent to an averment that they reside in Hew York.

      4. Same — Vacation.
    Upon a motion to grant an attachment on the papers on which it was granted, additional papers cannot be filed nunc pro tune for the purpose of sustaining it.
    5. Same — Sources of information.
    An affidavit, which alleges that deponent’s source of information and belief is a cablegram received from a foreign correspondent, is insufficient.
    Appeal from an order, denying a motion to vacate an attachment.

      J. A. Mapes, for app’lt; Jacob Sleinhart, for resp’ts.
   Van Brunt, P. J.

This is an appeal from an order made upon a motion by a subsequent attaching creditor to set aside a prior attachment upon the papers upon which it was granted. No question is presented as to the status of the moving party; and the only points brought up for review are those arising on the papers upon which the first attachment was granted, and the right of the court, after the making of the motion, to set the same aside upon the papers upon which it was granted, to allow the introduction of amendatory affidavits. The attachment sought to be set aside was granted upon the affidavit of one of the plaintiffs, which alleged that the defendant was a foreign corporation, organized and existing under the laws of the dominion of Canada, doing business at St. Johns, Newfoundland ; that a cause of action existed in favor of the plaintiffs against the defendant to recover a sum of money, of the character mentioned in the act authorizing attachment ; that the plaintiffs were bankers in the city of New York, and the defendant was a banking corporation; and that on the 19th of November, 1894, at St. Johns, Newfoundland, the defendant made certain bills of exchange, dated on that day, and directed the same to the London & Westminster Bank of London, and by said draft required said Loudon & Westminster Bank to pay to the order of themselves (evidently meaning the drawers of the drafts), sixty days after sight, a certain sum of money. The affidavit further stated that thereupon the said defendant indorsed and delivered said bills of exchange to the National Bank of the ¡Republic of the City of New York, who sold the same to the plaintiffs. The affidavit then alleges, upon information and belief, that said bills of exchange were thereupon presented to the London & Westminster Bank at London for acceptance on or about the 7th day of December, 1894, but the same were not accepted, and were thereupon duly protested for nonacceptance, of all of which due notice was given to the defendant, and payment of the defendant was thereupon demanded. The affidavit further alleges that the source of the deponent’s information and belief was a cable received from the correspondent of deponent’s firm in London; and that no part of said acceptance had been paid, and there was then due from the defendant to the plaintiffs a certain sum over and above all counterclaims.

The ground which was insisted upon in the court below for the vacation of the attachment was that it appearing that the defendant was a foreign corporation, and that the cause of action arose out of this state, and it not appearing that the plaintiffs, or either of them, were residents of this state, this court had no jurisdiction to entertain the action. It has been held repeatedly in this department that, unless the jurisdictional facts appear in the papers upon which an attachment is granted against a foreign corporation, the attachment must be set aside, and that the plain meaning of the Code is that it must appear by affidavit that a cause of action of which the court has jurisdiction exists, to the satisfaction of the judge granting the warrant It is undoubtedly true that, ordinarily, jurisdiction in a court of general jurisdiction need not be alleged. But, where the provisions of the law are that a court shall have jurisdiction of a certain class of cases only, where certain facts exist, it is necessary to allege, in order to show that a cause of action exists against'such a defendant, that the facts essential to jurisdiction are present. It would be idle to require the establishment by affidavit of the existence of a cause of action of which the court had no jurisdiction as a prerequisite to the issuing of this extreme remedy. As has already been shown, it was1 the intention of the Code, before the issuing of the writ, to require that the judge called upon to issue the same should be satisfied that there was a right of recovery ; and in an action against a foreign corporation no right of recovery exists unless the jurisdictional facts are shown.

It has been suggested that the legislature had no power to limit the j urisdic-tion of the supreme court by the alleged restrictions which it has placed upon it by the provisions of the Code. An examination of the law, however, seems to establish the fact that every provision of the statute, instead of being a restriction of jurisdiction, has been an extension thereof. The supreme court, prior to the provisions contained in the Revised Statutes (volume 2, page 459, section 15), had no jurisdiction against foreign corporations, unless it could obtain jurisdiction of the persons of such corporations. Then this jurisdiction was enlarged by the enactment in question, which provided that suits brought in the supreme court by a resident of this state against any corporation created by or under the laws of any other state, government, or country, for the recovery of any debt, claim, or demand, might be commenced by attachment. This seems to have been the first legislation authorizing a proceeding in rem against a foreign corporation, and then such proceedings could only be instituted by a resident of the state.

In 1849, by chapter 107, the fifteenth section of the Revised Statutes was amended as follows :

“Suits may be brought in the supreme court, in the superior court of the city of New York, and in the court of common pleas in and for the city and county of New York, against any corporation created by or under the laws of any other state, government or country for the recovery of any debt or damages, whether liquidated or not arising upon contract made, executed or delivered within the state; or upon any cause of action arising therein. Such suits may be commenced by complaint and summons, together with an attachment as provided by law.” etc.

By this legislation the jurisdiction of the supreme court was extended to all causes of action arising within this state. In the same year, section 427 was added to the Code of Procedure, which gave the courts above mentioned jurisdiction in actions against foreign corporations in cases where such action was brought by a resident of this state for any cause of action, and in cases where such action was brought by a nonresident of this state when the cause of action should have arisen or the subject of the action should be situated within the state; again increasing the" jurisdiction of the courts in actions against foreign corporations. This jurisdiction remained in this condition until the enactment of section 1780 of the Code of Civil Procedure, where it was provided that an action against foreign corporations might be maintained by a resident of the state or by a domestic corporation for any cause of action, and that an action against a foreign corporation might be maintained by another foreign corporation or by a nonresident in one of the following cases only : (1) Where the action is brought to recover damages for the breach of a contract made within the state, or relating to property situated within the state at the time of the making thereof. (2) Where it is brought to recover real property situated within the state, or a chattel which is replevied within the state. (3) Where the cause of action arose within the state, except where the object of the action is to affect the title to real property situated without the state.

It will thus be seen that by the legislation which has taken place there has been no restriction of jurisdiction, but rather an enlargement thereof. Such being the case, such legislation cannot be held to have in any way infringed upon the constitutional protection of the jurisdiction of the supreme court; and therefore in the case at bar, the cause of action having arisen out óf this state, the supreme court has no jurisdiction unless the plaintiffs were residents.

It is urged upon the part of the respondent that the allegations in the affidavit allege that the plaintiffs were residents of the state of New York. An examination of this affidavit, however, will show that it contains no such allegations. All that it alleges is that the plaintiffs are a firm doing business as bankers in the city of New York. They may have resided in New Jersey, in Connecticut, or in Europe, and yet this allegation be perfectly trne. It is urged that no case can be found in the books that any similar statement is held to be an insufficient allegation of residence in the absence of express contradictory evidence. It may possibly be that no such case can be found, because it never before, perhaps, had been claimed that such an allegation is equivalent to an allegation of residence. In fact, we find in the provisions of the law in regard to supplementary proceedings an express 'provision recognizing the fact that doing business m a location is not residence, because an execution, to form the foundation for the examination of a debtor in such proceedings, may be issued to the sheriff of the county where the judgment debtor has at the time of the commencement of the proceeding a place for the regular transaction of business in person, or to the sheriff of the county where he resides if he is a resident of the state. It is apparent, therefore, that an allegation that a party is doing business is by no means an allegation of residence. Our attention is called to cases where presumptions have been indulged in for the purpose of establishing residence. But presumptions cannot be indulged in to sustain an attachment, because the facts necessary to sustain the attachment must be proved by affidavit to the satisfaction of the judge granting the same; not by presumption, but by affidavit. It would seem, therefore, the allegations contained in these papers were insufficient to establish residence.

We then come to consider the question as to whether additional papers could be allowed to be filed nunc pro tune for the purpose of sustaining the attachment. The rule seems to be thoroughly well settled that, where a motion is made to vacate an attachment upon the papers upon which it was granted, the attachment must stand or fall according to the sufficiency of the papers, Book-binding Co. v. Hart, 85 N. Y. 500; Bank v. Alberger, 75 id. 179 ; Yates v. North, 44 id. 271; Smith v. Arnold, 33 Hun, 484; Kahle v. Muller, 57 id. 144; 32 St. Rep. 448.

There is another defect in the papers presented, which, although attention has not been called to it by the counsel for the appellant, in view of the conclusion at which we have arrived upon the other branch of the case, we do not think should be passed unnoticed. The allegation is that the source of deponent’s information and belief as to the presentation and protest of the note in question, and the giving of notice, is founded upon a cable received from the correspondent of the deponent’s firm in London. This is wholly insufficient to form any basis of judicial action. The judge granting the attachment must be satisfied by the evidence presented, and he cannot be satisfied by the satisfaction of the affiant. It is not the plaintiff that is to be satisfied ; it is the judge granting the attachment. And there is no judicial reason for the judge’s satisfaction simply because the plaintiff is satisfied, which is all that such an allegation amounts to. The affiant is satisfied of the fact because of the cable ; but what is in the cable the courtis not informed, and it is impossible for it to tell whether the affiant’s satisfaction is justified by the cable or not. Being a party interested, he may have been satisfied, and have believed without the slightest foundation for any such satisfaction or belief. Where a party alleges upon information and belief, and states, that the sources of his information are certain writings, the court is entitled to know what the writings are, in order to see whether the affiant is justified in his belief or not. In other words, on these applications, facts, not inferences, must be presented. Bank v. Alberger, 78 N. Y. 252 ; McCulloh v. Aeby & Co., 31 St. Rep. 125 ; and other cases might be cited. To sum up the whole matter, it would seem that it is necessary that there should be presented to the court, upon the face of the papers, facts establishing a reasonably certain right of recovery; and where the existence of certain facts is necessary to a recovery, unless such facts are shown, there is presented no right to recover, nor is any cause of action shown to exist.

Notwithstanding that the main question involved on this appeal has been determined by this court repeatedly, in view of the magnitude of the interests involved, and the interesting argument presented upon the part of the appellant, it has been thought necessary to amplify somewhat, in order that the position of the court might be clearly understood.

The order appealed from should be reversed, with costs, and the motion to vacate the attachment granted, with costs.

. All concur.


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    Adolph Lewinsohn, Resp’t, v. Kent and Stanley Company, Def't. William G. McGrath, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    1. Bills and notes — Fictitious payee.
    An instrument payable “to the order of the estate of” a decedent is, it seems, a promissory note payable to a fictitious payee.
    3. Attachment — Affidavit.
    An affidavit for an attachment, which states that “the said indebtedness arose as followsthat at a certain time and place defendant for value made its “promissory note * * * to the order of the estate of” one L., deceased, for a certain sum, and that said “note” for a valuable consideration was indorsed and delivered to plaintiff, is sufficient, whether the instrument referred to is, or is not, a note.
    Appeal from an order, denying a motion to vacate a warrant of attachment.

      Britton Havens, for app’lt; John F. Horan, for resp’t.
   O’Brien, J.

A motion was made by a subsequent lienor and junior attaching creditor to vacate, upon the papers on which it was granted, a warrant of atttachment issued in plaintiff’s favor against defendant. The plaintiff, against objection, was permitted to read in opposition the judgment roll, showing that his attachment had merged into a judgment. ’ The two grounds urged upon this appeal for reversal are that it was error to permit the plaintiff, in opposition to the motion to vacate, to read and present the judgment roll in this action; and, second, that the affidavit upon which the warrant of attachment was granted was insufficient, as not setting forth facts to establish a cause of action against the defendant.

In considering this second objection it is necessary to refer at length to the affidavit upon which the attachment attached was based. After reciting the residence of the plaintiff arid the non-residence of the defendant, and that the latter was indebted in a certain sum over and above all counterclaims, it reads as follows:

“ The said indebtedness arose as follows: In the city of Pawtucket, Rhode Island, on or about the 12th day of May, 1894, the defendant, for value received, made its certain promissory note in writing, dated on said day, wherein and whereby the defendant promised to pay, four months after the date thereof, to the order of the estate of D. G. Littlefield, the sum of ten thousand dollars, at First National Bank of Pawtucket, Rhode Island, and thereafter, before maturity, for a valuable consideration, duly delivered the said note to the said estate of D. Gr. Littlefield, which said estate thereafter duly indorsed the same, but without recourse as against the said estate of D. Gr. Littlefield, and for a valuable consideration delivered the same to James C. McCoy, who thereafter duly indorsed the same, but without recourse as against the said James McCoy, and for a valuable consideration delivered the same to the plaintiff herein, who is still the lawful owner and holder thereof.”

Then, omitting a statement as to where the second instrument was made, it in similar language states that the defendant made its certain other promissory note. It will thus be seen that the plaintiff based his right to recover the sums specified from the defendant upon two alleged promissory notes made by the defendant to the order of the estate of D. Gr. Littlefield, and delivered to the said estate, which said estate thereafter duly indorsed the same, and delivered them, to James C. McCoy, who thereafter duly indorsed and delivered the same to the plaintiff. It is insisted that, as there is no such legal entity as the estate of D. Gr. Littlefield, the alleged notes could not have been delivered to it, or indorsed or delivered by it, and that for this reason the instruments set forth are not promissory notes, they could not have been “ indorsed,” and such a statement without other facts is not an allegation of assignment of them to the plaintiff, nor would the title so pass to him as to enable him to recover upon them against the maker, upon the facts alleged.

There is undoubted conflict in the authorities as to whether an instrument such as here described is or is not a promissory note. Thus, in Daniel on Negotiable Instruments (section 100) it is said:

“ Where the writing ran, 11 owe the estate of A. B, $190,’ it was held that no payee was sufficiently designated, and it was inferred under the circumstances to be a mere memorandum of a. balance due. But it has been held that a note regular in form, payable 1 to the estate of T. A. Thornton,’ might be sued on by Thornton’s personal representative. The contrary view, however, has been taken.”

But it is unnecessary for us to determine this conflict, because there are other considerations which we deem controlling as to the-sufficiency of the affidavit. The plaintiff was not bound to show that he had a cause of action upon the promissory note, but he was "obliged to show that he had an action upon a contract; and in this connection it is immaterial whether an instrument is described in the affidavit as a promissory note, if sufficient facts are otherwise presented to justify the conclusion that the plaintiff had a good cause of action ; and therefore it is unnecessary to determine whether the instrument is a promissory note, or an evidence of indebtedness, or of an assignment of a contract to pay, the question being, is there furnished evidence of a prima facie right in the plaintiff to recover as against the defendant ? If the instrument described is a promissory note, then there is no question but. that a good cause, of action is set forth. If, however, we take °the view most favorable to the ' appellant, that there is no such legal entity as the estate of D. Gr. Littlefield, it being alleged that the defendant, as the maker of the instrument described, for a valuable consideration, duly delivered said note to the said estate of D. Gr. Littlefield, which said estate thereafter duly indorsed the same, then we think it was a promissory note with a fictitious payee.

The question then presented is, what is the binding nature of such an instrument ? Under our Revised Statutes, it is provided, that notes made payable “ to the order of a fictitious person shall, if negotiated by the maker, have the same effect * * * as against the maker * * * as if payable to bearer.” 4 Rev. St. (8 th ed.) p. 2499, § 5. It appearing, however, that this was an instrument made in Rhode Island and payable" there, it is to be construed under the Rhode Island law ; and, in the absence of proof to that effect, it will not be presumed that the statute law in that state and this is the same, though there is a presumption that the common law is the same in both states. An examination of the common law of this state on the subject prior to the enactment of the provisions of the Revised Statutes quoted will show that the statute but expresses such common law, and, in accordance with the presumption that may be indulged in as to the similarity of the common law of both states, we think that thereunder a note payable to the order of a fictitious person, if negotiated by the maker, as against him, is equally as binding as though payable to bearer. That such is the construction to be given to such an instrument as the one under consideration, we think, is sustained, not only by decisions, but also by the best text writers. Thus, it is said in Daniel on Negotiable'Instruments (section 93):

“By executing a promissory note, the maker engages to pay the amount therein named to the bearer, if it be payable to bearer; to the payee or order, if it be payable to a particular person or order. By the very act of engaging to pay to a particular payee, he acknowledges his capacity to receive the money, and also his capacity to order it to be paid to another. And therefore, if the maker Is sued by an indorsee of the payee, he cannot defend himself on the ground that the payee had no capacity to indorse it by reason of being an infant, a married woman, "a bankrupt, a fictitious person, a corporation without legal existence,” etc.

See, also, Scott v. Par Jeer, 25 St. Rep. 865.

We think, therefore, that the instrument was a promissory note,, payable to a fictitious payee, and, having been negotiated by the-maker, was payable to bearer; and there being an allegation that it was delivered to the plaintiff, and that he is the owner and holder thereof, we think there was a sufficient statement of a cause of action. But, even if the question should be raised as to the validity of the instrument as a promissory note, this, as stated, would not be fatal to the plaintiff’s right to the attachment. As correctly urged by the respondent, considerations which are important only in connection with questions turning upon the negotiability of a note' can have no bearing upon questions dealing wholly with the debt upon which the note is based; and, though we should regard it as neither a promissory note nor negotiable, there is a statement in the affidavit of the existence of a valid indebtedness in favor of the plaintiff and against the defendant.

We have examined the cases upon the authority of which the appellant insists that, if the instrument is not negotiable, it could not be assigned or transferred by indorsement, and we find that no such question was therein determined. Richards v. Warring, *40 N. Y. 576, and Cromwell v. Hewitt, 40 id. 491, are not authorities for the claim advanced by appellant that the instruments, if not negotiable, could not have been indorsed, and that such a statement, without other facts, is not an assignment of them to the plaintiff, nor would the title to them so pass to him. In those cases the question was whether one who writes his name upon the back of a nonnegotiable note was tó be held by the holder as the guarantor or maker, and as to whether he was entitled to notice of demand or nonpayment; and they are authority for the proposition that if the person so sued was not an indorser of a negotiable note, but could be held as guarantor or maker, a recovery could be had against him without notice of demand or nonpayment. Under our Code of Civil Procedure (section 534), where one claims upon an instrument for the payment of money only, all that is necessary is to set forth a copy of the instrument, and state the amount due thereon. Such an allegation is equivalent "to setting forth the instrument according to its legal effect. Here the plaintiff not only describes the instrument, but goes further, •and shows that it was negotiated by the maker for value, what payments were made thereon, the amount now due. and that plaintiff is now the lawful owner and holder thereof. We think, therefore, that the affidavit on which the warrant was granted afforded prima facie legal evidence of the existence of a cause of action on a contract.

As to the presentation and reading of the judgment roll in opposition to the motion, since we attach no importance to the fact, and as no injury was done the appellant, because, in our view, the •original affidavit upon which the warrant was based was sufficient, the question need not be discussed further than to say that the contention of the appellant that, because the motion was founded only upon the papers on which the warrant was granted, no other papers could be employed to supply defects in the original papers, is supported, not only by the cases in the court of appeals of Bookbinding Co. v. Hart, 85 N. Y. 500; Bank v. Alberger, 75 id. 179, and Yates v. North, 44 id. 271, but also by the cases in this court of Smith v. Arnold, 33 Hun, 484, and Kahle v. Muller, 57 id, 144; 32 St. Rep. 448, and in the case of Labenburg v. Bank (herewith handed down) 67 St. Rep. 466.

The order, therefore, should be affirmed, with $10 costs and disbursements.

All concur.


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    The People, Resp’t, v. John V. Alexander, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Appeal — Finding.
    Upon the trial of an indictment for larceny, a finding as to the value of the goods stolen, for the purpose of fixing the degree of the crime, will not be disturbed on appeal, where the evidence introduced on the part of the people was that the value of the undisputed articles exceeded twenty-five dollars, and the court charged that the jury were not bound by the testimony of the people’s witnesses, but could judge of the value for themselves, and at the same time directed their attention to the importance of such determination to the defendant.
    Appeal from judgment of conviction for grand larceny in the second degree.

      Uriah W. Tompkins, for app’lt; John B. Fellows, Dist. Atty., for the People.
   Parker, J.

The defendant was convicted of grand larceny in the second degree in the court of general sessions of the peace, in June, 1894. The articles for the stealing of which he was convicted consisted of a traveling rug, an overcoat, undercoat, and vest. The circumstances under which the theft is alleged to have been committed are as follows: The defendant procured an assignment of a chattel mortgage, executed by Ferdinand Pontrichet and wife, covering household furniture, goods, and wearing apparel, under which he had a right to enter, as he did, the premises where the articles were, to get possession of them. The seizure of the mortgaged property was made by the defendant personally, or by those there present with him, acting under his directions. It was proved that he either took or caused to be taken away other articles than those described in the mortgage and those already named, which he was charged with stealing, but such articles were returned by the defendant after he 'had been arrested and arraigned in the police court. The evidence bearing upon the taking of the articles in question was of such a character as to support the finding of the jury that he did take them. With much elaboration and perfect fairness the court submitted to the jury the question of intent, and, they having passed upon it adversely to the defendant, and upon evidence sufficient to sustain the finding, their verdict is conclusive. Carrington v. People, 6 Parker, Cr. R. 342 ; People v. McInerney, 2 N. Y. Cr. R. 47. Indeed, the defendant does not contend, upon this review, that the evidence bearing upon the question of intent was not of such a character as to present a question for the jury. His view seems to be that, under the evidence, the only crime of which defendant should have been convicted was that of petit larceny. In' support of this position he insists that the traveling rug was included in the chattel mortgage, leaving but three secondhand articles, which he claims were of less value than $25. The difficulty with his contention is twofold : (1) There is evidence that the rug in dispute was not included in the articles covered by the mortgage, and whether it was, therefore,-was a question for the jury, and it was submitted to them by the court in a manner wholly unobjectionable. Under this state of the record it- would be assumed in support of the judgment that the jury found the fact to be as claimed by the evidence on the part of the people. (2) If it could be held that the jury did not find, or had no right to find, that the defendant took the rug, still the evidence as to the value of the other three articles is of such a character as to sustain the verdict. The-evidence adduced on behalf of the people was that the four articles were worth $54, but the court was careful, not only in its charge to the jury in the first instance, but later on, and in response to their request for further instructions, to inform them that they were not bound by the valuation placed upon the articles by the people’s witnesses, bnt could judge of the value for themselves; at tlje same time directing their attention sharply to the importance of such determination to the defendant, pointing out with perfect clearness that defendant could not be convicted of any graver offense than that of petit larceny should they find the value of the articles to be $25 or less. With such instructions in mind, the jury reached the conclusion that the articles stolen were of greater value than $25, and rendered their verdict accordingly. With that, determination, in the light of the evidence bearing upon the question of value, this court cannot interfere. No other questions are presented by the appellant. The judgment rendered upon the verdict of conviction should be affirmed.

All concur.