text:
    The People ex rel. Benjamin F. Young, Agent, Resp’t, v. Clarence Willis, Clerk, et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Taxes—Assessment op personal property—Land contracts.
    Under the charter of the village of Bath, the village assessors have no power to assess for taxation contracts for the sale of land situated outside the town.
    2. Same.
    Relator was assessed as agent for personal property held by him for foreign trustees, including contracts for the sale to non-residents of the town of land situated outside of the town. The court reduced the assess- ment by the amount of such contracts. Held', no error.
    Appeal from a judgment entered in Steuben county, adjudging an assessment against the personal property of the relator of $100,000 erroneous, and reducing the same to $13,085.30; also-directing the re-payment of the excessive taxes paid.

      Edward Hassett, for app’lts; M. Rumsey Miller, for resp’t.
   Corlett, J.

The relator, Benjamin F. Young, resides in Bath,, Steuben county, and was and is the agent of Henry C. Howard,. George C. K. Johnstone, Henry Chaplin and James R. Farquharson, trustees of the Pulteney estate, all residing in England. Thecestui' que trust, Sir Frederick Johnstone, also resides in England.

In 1889, Henry Faucett, Charles A. Ellas and Henry S. Bennett were assessors of the village of Bath. They completed the assessment roll of the village in May, 1889. The said Benjamin F. Young, as agent, was assessed the sum of $100,000 for personal property. On application, the board of assessors refused to correct the roll by reducing the assessment. A writ of certiorari was obtained, returnable in Rochester in June, 1889, in response to which the assessors made return, which the relator traversed. A hearing was had at special term in July, 1889, after whieh the; trial court made the following findings:

“ That the village of Bath in and during the year 1889, and for many years prior thereto, was and is a municipal corporation existing under a charter, namely: Chapter 264 of the Laws of 1851 of the state of New York, as amended by chapter 81 of the Laws of 1852, and as amended by chapter 308 of the Laws of 1880.
“ That in pursuance of such statute, the trustees were authorized to make certain by-laws or ordinances, and did make one in words and figures as follows: The assessors shall make out two assessment rolls and file a copy thereof in the office of the village clerk before the 15th day of May, in each year, according to the act of incorporation,’ and the same was the only by-law or ordinance relating to the making out and filing of the assessment roll.
“ That the defendant, Clarence Willis, in all times during the year 1889, was the clerk of the village of Bath, and the defendants, Henry Faucett, Charles A. Ellas and Henry S. Bennett, at all times during such year, were the assessors of the corporation of the village of Bath aforesaid, and as such assessors acted as such in making the assessment roll of the said corporation for the said year.
“That on or about the 4th day of May, 1889, the said assessors made and completed the said assessment roll of said village for said year, and made and completed one fair copy thereof, that being the date at which the valuations of property within the said corporation for the purposes of assessment were by law required to be taken and made, and posted the notices required by law. that they would meet on the 15th day of May, 1889, at a time and place in said village specified in said notice, to review their assessments-; that in and. upon the said roll the said assessors made an assessment against the relator, the plaintiff under the head of name Benjamin F. Young, agent for Henry C. Howard, commonly called Viscount of Andover, George C. K. Johnstone, Henry Chaplin and James R. Farquharson, trustees of the Pulteney estate, so called,’ under the head of valuation of personal estate $100,000.’
“ That such assessment roll so made, as aforesaid, in which the assessment made, as aforesaid, was contained, was and constituted the assessment roll of the corporation of the village of Bath, in and for the year 1889.
“ That the total assessed value of the real estate appearing on said roll was the sum of $1,325,515, and the total assessed value of personal property upon said assessment roll was the sum of $600,055.
“That the relator, Benjamin F. Young, now is and during the year 1889, and for several years prior thereto, was the agent of the said Henry C. Howard, -George C. K. Johnstone, Henry Chaplin and James Farquharson.
“ That said Young resides, and at all times resided, in the village of Bath, Steuben county, N. Y.
“That during all of the said times the said Howard, Johnstone, and now reside, and have been residents of England, in the kingdom of Great Britain, and during none of said time have they, or either of them, been residents of any of the states of the United States of America.
“ That the only personal property which, during the term of one year prior to and including May ,23, 1889, was in the possession of the said Benjamin F. Young, with which he had anything to do as their agent, was the property of the said Henry C. Howard, George G. K. Johnstone, Henry Chaplin and James R. Farquharson as trustees, one Sir Frederick Johnstone being cestui que trust under such trust, and he, the said Sir Frederick Johnstone, is, and during all of said years aforesaid was, a resident of the city of London, in England, aforesaid.
“ That all of the personal property which the said Benjamin F. Young as agent as aforesaid had. in his possession on the 4th day of May, 1889, or the 15th day of May, 1889, or' at any time between those-dates or with which he had anything to do as agent at either of such times was as follows: Personal property to the amount of $3,500, notes for the payment of money of the principal sum of $6,236.34 and interest accrued thereon in the sum of $400, and contracts for the sale of real estate in the sum of $2,848.-96 which contracts were made by and with persons as vendees and who were and are residents or inhabitants of village of Bath aforesaid, but that none of the real estate for the sale of which said contracts were made was situate within the corporate limits of the village of Bath, and also contracts for the sale of real estate made by and with persons as vendees who at all the dates aforesaid resided and still reside in the different counties of the state of Hew York, and none of whom reside within the corporate limits of the village of Bath, to the amount of $87,914.70.
“ That none of the real estate for which any of the contracts aforesaid were made was situate within the corporate limits of the said village of Bath.
That of the said contracts for the sale of real estate, including those before mentioned as the amount of $2,848.96, less than $5,000 were at any of the dates aforesaid contracts for the sale of real estate to vendees residing in the town of Bath, Steuben county, Hew York.
That on the 15th day of May, 1889, at the time and place mentioned in the notice given by the said assessors as aforesaid to review their assessment, the said Benjamin F. Young, agent, relator as aforesaid, appeared in person before said assessors and then and there presented and filed with the assessors the two several affidavits, copies of which are annexed to the petition herein and form a part thereof, which affidavits are hereby referred to and made a part hereof.
That at such time and place the-said relator appeared by attorney, Mr. Edward Hassett opposing as counsel on behalf of the board, and oral arguments were then and there made and had upon the subject of the said assessment; the said relator by his counsel then and there requested the said assessors, first: To remove entirely the said assessment from said roll on the ground that there was no power to assess the said property. Second : That if the assessors should hold that they had power to assess the said property, as was claimed by one of them, then that the said assessment should be reduced in accordance with the facts as there stated and as set forth in the said affidavits.
“ That at the time and place aforesaid, and after the argument aforesaid, the relator by his counsel asked the assessors if there was anything further that they desired of the relator or of his counsel and was informed by the chairman of the board that there was not
That said assessors refused to reduce said assessment in any manner or to any sum, and in all respects left the same as it had been made by them as heretofore set forth.
“ That thereafter and on the said loth day of May, 1889, the said assessors claimed to have completed their said assessment roll and all of them each severally making and subscribing the usual oath prescribed by law of verification to the said roll which is annexed thereto and signed and certified the same, and thereupon the said assessors delivered the said assessment roll to the said Clarence Willis, who then was, and still is, the clerk of the said corporation of the village of Bath, and thereafter and on the said 15th day of May, 1889, the said assessors, in pursuance of law, gave a notice that the said assessment roll had been completed and left with the said clerk for inspection, and the writ herein was sued out and served before the expiration of fifteen days thereafter.
“ I find as conclusions of law:

“ 1. That the said assessment of $100,000 of the relator’s personal property in the said village of Bath was erroneous and illegal in that it was for the sum of $87,914.70 more than it should have been, and that such assessment should be reduced to the sum of $13,085.30, that being the total amount of taxable property which the relator had in the corporate limits of the village of Bath at the time of the assessment aforesaid.

“ 2. That the relator is entitled to and may have judgment reducing the amount assessed to him as agent for Henry C. Howard, George C. K. Johnstone, Henry Chaplin and James B. Farquharson on personal property in the village of Bath, for the year 1889, so that there shall only be assessed to him on personal property for that year the sum of $13,085.30, and that all over that amount should be stricken from the said assessment roll on the ground that it is illegal.

“ 3. That the said relator shall further have judgment herein against the defendants, that there shall be audited to him and included in the next annual tax levy of said village the amount, with interest from the date of payment, which he has been required to pay for taxes assessed to him on personal property upon the assessment roll in the year aforesaid, over and above the said sum of $13,085.30.”

It is assumed by the learned counsel on each side that the findings of the special term on questions of fact were correct.

From the decision of the special term the defendants appealed to this court, upon the claim,that the reduction to $13,085.30 was erroneous. The relator did not appeal from that portion of the findings which adjudged him liable to pay taxes upon the reduced sum.

The village of Bath is a municipal corporation, and was incorporated by chapter 264 of the Laws of 1851, as amended by chapter 81 of the Laws of 1852, and also by chapter 358 of the Laws of 1880. Section 2 of the charter of Bath, as amended, is as follows:

, “ The trustees are authorized and empowered to raise money by tax, to be assessed on the estates, real and personal, within the corporation, and collect it from the several owners thereof, whether such owners be residents of the corporation or not, and pay all contingent and other expenses of the said corporation, and also carry into effect the several powers and privileges granted by this act, as hereinbefore provided.”

Subdivision 7, § 3343, of the Code of Civil Procedure, provides “that the words ‘personal property ’ include money, chattels, things in action and evidences of debt.”

Section 3, of part 1, chapter XIII, title 1 (8th ed.), of the Revised Statutes, p. 1082, provides that the terms personal estate and personal property shall be construed to include all household furniture, money, goods, chattels, debts due from solvent debtors, whether on account, contract, note, bond or mortgage, public stocks, and stocks in moneyed coi'porations.

It is a general rule that statutes relating to taxation are to be strictly construed. Central Trust Co. v. N. Y. C. & N. R. R. Co., 15 N. Y. State Rep., 178; same case, 18 id., 30; Clark v. Norton, 49 N. Y., 243.

The system of taxation for municipal purposes is ordinarily distinct and independent from that for county and state purposes. Mayor, etc., of Troy v. Mutual Bank, 20 N. Y., 387, 389.

It will be noticed that the charter of Bath seems to limit the power of taxation against the owner, whether he is a resident or non-resident.

The Revised Statutes, part 1, chap. 13, title 5, § 3, provides: “ That any contract owned by a person not a resident of this state which shall be sent to this state for collection, or shall be deposited in this state for the same purpose, shall be exempt from taxation, and nothing in the laws of taxation shall be construed to render an agent of such owner liable to be assessed or taxed for such property, provided that upon the day for reviewing assessments he appears and makes affidavit that such property belongs to a non-resident, and therein specifies the name and residence.” Williams v. Board, of Supervisors of Wayne County, 78 N. Y., 561-565.

Less than $5,000 of the land contracts were for the sale of real estate to vendees living in the town of Bath, Steuben county. The rest were scattered over the different counties in the state of New York.

Such contracts, if owned by non-residents, were not looked upon as liable to taxation until chap. 250 of the Laws of 1833, which was repealed by chap. 1-37 of the Laws of 1837; then chap. 371 of the Laws of 1851 was passed, § 1 of which provides: “All debts owing by inhabitants of this state to persons not residing within the United States for the purchase of any real estate shall be deemed personal property within the town or county where the debtor resides; and as such shall be liable to taxation in the same manner, and to the same extent as the personal property of citizens of this state.”

Bath was incorporated the same year. Section 2 of title 4 of the charter thereof is as follows: “ The assessors elected under this act shall, within the village of Bath, exercise all the powers and perform all the duties of corporation assessors in the same manner as town assessors, according to the laws of this state now in force, and any laws which may from time to time be enacted.”

Chap. 90 of the Laws of 1883, § 13, is: “Assessors of villages incorporated under the general act shall have the power of tow¡n assessors and be subject to the laws applicable to the same.”

By chap. 308 of the Laws of 1884, it was provided that, “ the assessors of a village created by special charter shall have the same powers as those incorporated under the general act, except when in conflict with the special charter.”

It will be thus seen that town assessors had no power to assess land contracts where the land was not located in their town; also that corporation assessors were limited to the exercise of the same powers. Nearly all the land contracts assessed against the nonresidents in the present case were those affecting lands outside of the town of Bath; so that it is very clear that those land contracts could not be included in the corporation assessment.

If the contention of the learned counsel for the appellant obtains to the full extent claimed by him, it would secure to the village of Bath, for the purposes of assessment for corporation purposes, the benefit of all land contracts, no matter where located in the state; while the town outside the corporation would be confined to contracts within its limits. Such could not have been the intention of the legislature; nor can the statutes above quoted be construed in such a way as to sustain any such claim.

The People ex rel. Westbrook v. Village of Ogdensburgh, 48 N. Y., 390, has no application. It does not distinctly appear in that case where the property assessed was located. The question now under consideration was not called to the attention of the court or considered. Aside from -this the charter of that village differed from that of Bath.

It is not necessary to determine whether for corporation purposes the assessment against the agent was proper to the extent allowed by the special term, for the respondent took no appeal, and that branch of the case is not before this court for review. Nor is it necessary to determine whether the land contracts in the town of which the village was a p art could be assessed for corporate purposes. No such question was presented to or passed upon by the special term.

The conclusion of the trial court as to. contracts on lands outside the town, of which the corporation was a part, was right In providing for the assessment of such contracts the legislature intended to secure to each town the benefit of lands sold in it. It was not intended that towns could assess contracts outside of its limits. If such were the case, non-residents would occupy a hazardous position. Nor did the legislature intend that such property could be assessed for the benefit of municipal corporations to a° greater extent than for town purposes.

It follows that the decision appealed from must be affirmed.

Dwight, P. J., and Macomber, J., concur.


source: Caselaw Access Project

author: Corlett, J.

license: Public Domain

text:
    Margaret C. Winters, Ex’rx, App’lt, v. Chauncey Judd et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Ihdemhity—Liability oe sureties oh bohd oe.
    Certain property of one Sally Eddy was attached and afterward sold under execution by the sheriff. At the time of the attachment and at the sale she claimed that certain articles were exempt, and other persons claimed liens by virtue of chattel mortgages. The execution creditor gave a bond to the sheriff, with defendants as sureties, which recited’ that certain goods that appear to belong to Sally Eddy are claimed to belong to L. and others, and was conditioned to indemnify the sheriff from all harm, actions, etc., that might arise for levying and selling under the execution any goods which he might judge to belong to said L. and ethers. At the time of the execution of the bond the sureties were shown a letter stating that the persons holding the chattel mortgages said they would sue as soon as the sale was made. Held, that the bond did not render the sureties liable to indemnify the sheriff against a recovery in an action against him brought by the judgment debtor for conversion in selling exempt property.
    Appeal by the plain tiff from a judgment entered in Cattaraugus county upon the report of a referee.

      Frank Rumsey, for app’lt; J. G. Record, for resp’ts.
   Corlett, J.

On the 9th day of December, 1878, an execution was issued in favor of one Henry W. Eddy against Sally Eddy to collect a judgment for $1,590.50, in pursuance of which a levy was made by direction of the judgment creditor. The property levied upon had been previously attached by the judgment creditor. The defendant in the judgment claimed, both at the time the property was attached and levy made, that certain articles of property covered by the levy, to wit: a team of horses and a melodion were exempt from levy and sale. Francis Larrabee and Stephen Laing claimed liens upon the property by virtue of chattel mortgages. The sheriff, before he would sell, required a bond of indemnity, which was executed. The following is a copy :

“Know all men by These Presents, That we, Henry W. Eddy, as principal, and Chauncey W. Judd and Wallace Ward, as sureties, of-New York, are held and firmly bound unto George L. Winters, sheriff of the county of Cattaraugus, in the sum of three thousand dollars, lawful money of the United States, to be paid to the said George L. Winters, or to his certain attorney, executor, administrators or assigns; for which payment welland truly to be 'made, we bind ourselves, our and each of our heirs’, executors and administrators, jointly and severally, firmly by these presents.
“ Sealed with our seals, dated the-day of December, one thousand eight hundred and seventy-eight.
“ Whereas the above bounden Henry W. Eddy, in the supreme court of the state of Hew York, did obtain judgment against Sally Eddy for the sum of $1,590.50 damages and costs, whereupon execution has been issued, directed and delivered to the said Greorge L. Winters, commanding him that of the goods and chattels of the said Sally Eddy he should cause to be made the damages and costs aforesaid; and whereas certain goods and chattels that appear to belong to the said Sally Eddy are claimed by Francis Larrabee and others in the execution aforesaid; now, therefore, the condition of this obligation is such that if the above bounden Henry W. Eddy shall well and truly save, keep and bear harmless and indemnify the said Greorge L. Winters, sheriff, and all and every person aiding and assisting him in the premises, of and from all harm, let, trouble, damage, costs, suits, actions, judgments, and executions that shall or may at any time arise, come or be brought against him, them or any of them, as well for the levying and making sale under and by virtue of such execution of all or any goods and chattels which he or they may j udge to belong to the said Francis Larrabee and others, as well as in entering any shop, store, building or other premises for the taking of any such goods, chattels, then this obligation to be void, else to remain in full force and virtue.
“Henry W. Eddy. [l. s.]
“ Ohauncey Judd. [l. s.]
“Wallace Ward. [l. s.] ”

After that the sheriff sold the property levied on. Then Sally Eddy brought an action for the conversion of the team and melodion and recovered a judgment against the sheriff, on the ground that the property was exempt, which he paid.

In February, 1885, an action was commenced by the sheriff on the bond to recover the amount of such payment He died and the plaintiff was substituted in his place. Issue was joined, the action was referred, a trial was had, and the referee made a report dismissing the complaint. Judgment was entered upon the report, and the plaintiff appealed to this court. The referee wrote an opinion which appears in the case.

The central question on the trial was whether the bond could be construed as covering any liability of the sheriff for selling the property because it was exempt. It will be noticed that the recital in the bond so far as material is, “ and whereas, certain goods and chattels that appear to belong to said Sally Eddy are claimed by Francis Larrabee and others in the execution aforesaid.” Then comes the condition of the bond, which in some respects is obscure and seemingly meaningless.

In Nat'l Mech Banking Ass'n v. Conkling et al., 90 N. Y., 116, the general rule was repeated that “ the liability of a surety is always strictissimi juris, and may not be extended by construction beyond his specific engagement.” The judge delivering the opinion on pages 120, 121, says: “ The recital in such bonds undertaking to express the precise intent of the parties controls the condition or obligation which follows, and does not allow it any operation more extensive than the recital which is its key, and so it has been held in many cases.” Cases are then cited, and the judge proceeds: “ In Pearsall v. Summer sett, 4 Taunt., 593, it was held, as expressed in the head-note, that the extent of the condition of an indemnity bond may be restricted by the recitals, though the-words of the condition import a larger liability than the recitals contemplate.’ ” The judge in support of this cites other cases.

The material portion of the recitals above quoted were written.

In Griffiths v. Hardenbergh, 41 N. Y, 464, it was held that surrounding and cotemporaneous facts should be considered in construing a bond or written instrument.

At the time the sureties signed the bond, a letter from the sheriff was shown them which stated, among other things, that “ the parties holding the chattel mortgages say they will sue as soon as sale is made."

So that the recitals in the bond, as well as the letter, were to the effect that the bond was required, as indemnity against claims of persons holding chattel mortgages on the property. The re- • cital is, “ and whereas certain goods and chattels which appear to belong to the said Sally Eddy are claimed by Francis Larrabee and others in the execution aforesaid.” It would be a forced construction to include the execution debtor in the words “and others.” The words on their face clearly relate to persons other than the judgment debtor. The sheriff evidently had his mind upon the claims of those holding chattel mortgages, or having liens, and, when the bond was executed, a recovery against the sheriff by the judgment debtor on account of exempt property does not appear to have been in the minds of the parties signing the instrument, or of the sheriff who took it. It was demanded and executed evidently to protect the sheriff against the claims of third persons.

The property of a judgment debtor is prima facie liable to levy and sale by virtue of an execution. When the debtor in the process relies on exemption the claim is an affirmative oneit must be proved. In the absence of proof showing exemption all the debtor’s property is liable. There is certainly nothing in this bond, especially in the recitals, which would in any way indicate that there was any fear or apprehension on the part of the sheriff that he would be proceeded against by the judgment debtor upon the claim that it was exempt It is no answer to say that she insisted upon the exemption both at the time the attachment was executed and the levy made. There is nothing to show that the sureties had any knowledge or information of any 'such claim on her part and there is certainly nothing in the recitals in the bond apprising them of any such thing, but every reasonable inference is the exact reverse. It is true that in the body of the condition there are words which might be construed as including such a claim; but the fair construction of the whole instrument including the recitals is, and at the time must have been so understood by the sureties, that their obligation was for the purpose of protecting the sheriff against the claims of persons having liens on the property other than the judgment debtor.

It cannot be argued with any plausibility that the bond contains any “ specific engagement ” to indemnify the sheriff against a recovery by the judgment debtor because the property levied upon and sold was exempt Nothing of the kind is suggested by the terms of the bond.

The learned counsel for the appellant argues with much force and ability that it is possible to include exempt property within the bond. But such a construction requires great skill and ingenuity to impart to it plausibility. It is not the ordinary one which would be attached to the instrument.

Under such circumstances it should not be construed to extend as against sureties so far as to include exempt property owned by the judgment debtor.

The letter was properly admitted in evidence together with the other circumstances proved at the time of the execution of the bond; they were all a part of the res gestee and threw light upon the construction of the instrument executed.

The judgment must be affirmed.

Dwight, P. J., and Macomber, J., concur.


author: Dwight, P. J.

text:
    The People, App’lts, v. Edward J. Rice, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Larceny—Indictment.
    An indictment charging the defendant with the crime of grand larceny in substance as follows: That having contracted with the board of supervisors to make repairs and furnish materials for the plumbing, steam heating and ventilating of the court house, and having made such repairs and furnished materials, he presented a bill therefor, and did falsely and fraudulently represent and include in said bill that he had furnished certain quantities of materials which are specified, which statements he knew to be untrue, which bill was paid on orders drawn by the board; and that with intent to deprive and defraud the county of its money and property, etc., he did take from the possession of said county, the true owner thereof, and did obtain possession of said money “by color or aid of the false and fraudulent representations, pretenses, etc., aforesaid, and so did steal said money,” is sufficient. The allegation that such moneys were obtained “by color or aid of” the false representations, is equivalent to the allegation usually employed; that it was done " by means of” such representations, and necessarily implies that the owner of the property relied on those representations.
    2. Same—False pretenses.
    Where there is no delivery of goods to the buyer, but the °use of materials in a building, which, when put in place, must be, in large part, hidden from sight, the question of the reasonable effect of false statements in a bill presented therefor is a question for the jury.
    3. Same.
    Neither the false token nor the false writing of the statute is required to make a case of false pretences.
    Appeal by the People from a judgment of the Monroe oyer and terminer allowing a demurrer to the indictment.

      Geo. A. Benton, dist. att’y, for app’lts; John Van Voorhis, for resp’t.
   Dwight, P. J.

The defendant was indicted for the crime of grand larceny in the first degree, which is, “charged in (three) separate counts to have been committed in a different manner or by different means.” Code of Grim. Pro., § 279. The defendant demurred to the indictment generally, specifying as grounds of his demurrer: 1st. That the facts stated in the indictment do not constitute a crime, or the crime of larceny in any degree; 2d, 3d and 4th. That the facts stated in the first, second and third counts, respectively, do not constitute the crime of larceny in any degree, or any crime; and, in respect to the second and third counts, respectively, that the facts and circumstances which constitute the crime are not stated as required by law; 5th. That counts for more than one crime are improperly united in the indictment, and more than one crime is charged therein, within the meaning of §§ 278 and 279 of the Code of Criminal Procedure ; 6th. -That the indictment does not conform substantially to the requirements of §§ 275 and 276 of the Code of Criminal Procedure, in that it does not specify the name of the court to which the indictment is presented, and in that it does not contain a plain and concise statement of the act or acts constituting the crime.

The sixth objection or ground of demurrer is not tenable: (1) the indictment, as set out in the record, contains the title of the action, specifying the name of the court to which the indictment was presented, § 275, sub. 1; (2) the indictment, upon its face, purports to state the act (or acts) constituting the crime, and the manner of such statement is commendably plain and concise. Id., sub. 2.

The fifth objection or ground of demurrer is -not tenable, because the indictment charges, in its several counts, only one crime, viz.: grand larceny in the first degree, § 278, although that crime is “ charged in separate counts to have been committed in a different manner or by different means,” which is expressly permitted by the statute, § 279.

The remaining four objections or grounds of demurrer are all embraced in the first, because that objection embraced all the counts. The demurrer is to the whole indictment, and the indictment is good if either count is good. That being the case, we are at a loss to understand: how this demurrer could have been allowed in the face of the third count of the indictment. That count is in these words:

“Third count. And the grand jury of the county of Monroe, by this indictment, further accuses the said Edward J. Eice of the crime of grand larceny in the first degree, committed as follows :
“■The said Edward J. Eice, on the 9th day of May, in the year of our Lord, 1889, at the city of Eochester, in this county, seven hundred and twenty-nine dollars and thirty-one cents ($729.31), good and lawful money of the United States and of this state, in bank bills, bank notes, gold and silver certificates, United States treasury notes, gold, silver, nickel and copper coins, the denominations, dates, etc., etc., unknown, and a more specific description thereof cannot, therefore, be given, but of the value of seven hundred and twenty-nine dollars and thirty-one cents($729.31), of the goods, chattels and personal property of the county of Monroe, said county of Monroe then and there being a body corporate duly created, organized and existing under and by virtue of the laws of the state of New York, unlawfully and feloniously did take, steal and carry away from the premises of the county of Monroe, with the intent then and there to deprive and defraud the said county of Monroe of its said goods, chattels and personal property, and of the use and benefit thereof, and to appropriate the same to the use of himself, said Edward J. -Rice, contrary to the form of the statute in such case made and provided, and against the peace of the People of the state of New York and their dignity.”

We are not able to see that this count lacks anything of the requisites of a good indictment for the crime charged, committed by the means of taking, stealing and carrying away. If not, then the indictment was good, and the demurrer to the indictment, generally, should have been disallowed.

But we are aware, from the course of the argument on this appeal, that the People will not rely, on the trial, upon proving the crime charged to have been committed in the manner and by the means set forth in the third .count, but rather upon proving it to have been committed in the manner, and by the means of false ánd fraudulent pretenses alleged and set forth in the first count in the indictment. In order, therefore, to anticipate future objections and avoid unnecessary delays in the prosecution of the action, it is proper that we should extend our examination to the allegations of the first count and inquire whether that count is obnoxious to the objections taken to it by the demurrer, and especially to the single objection upon which, as appears by the opinion of the learned j udge at the oyer and terminer, the demurrer was allowed.

The first count accuses the defendant of the crime of grand larceny in the first degree committed as follows: it then proceeds to charge, that the defendant on the 9th day of May, 1889, at Rochester, in said county, did steal, take and carry away the sum of $729.31, lawful money of etc., of the money, personal property, etc., of the county of Monroe, in manner following, that is to say: <> it then proceeds to allege the corporate character of the county of Monroe; that it exercised corporate powers by its board of supervisors ; that such board by its duly authorized trustees of court house and jail contracted with the defendant to make certain repairs and furnish materials therefor in the plumbing, steam heating and ventilating apparatus of the court house in Rochester; that the defendant made such repairs and furnished materials therefor and presented to said trustees a bill for such materials which was fully paid by said coqnty upon orders drawn by said trustees; that the defendant “did falsely, fraudulently and feloniously represent, pretend and say, and include in his bill presented to said trustees,” that he had furnished certain quanties of various kinds of materials at prices charged, all of which quantities, kinds and quices are specified in detail in the indictment; “ which said representations said Edward J. Rice, the statements so made being :among others in his said bill, then and there well knew to be false and untrue and made, and included in said bill, with intent to cheat and defraud the said county of Monroe of its money and property and to appropriate the same to his own use, etc.”

The indictment then proceeds to negative in detail the said several representations in respect to the amount of each of the kinds of material before specified, furnished by the defendant, and to state the. less amount of each which was in truth and in fact, and as the defendant well knew, furnished by him in the making of such repairs. (The excess in price of the quantities charged, over the quantities actually furnished as alleged, at the same rates of prices, is the sum of $729.31.) And the count concludes with an allegation in these words: “And so this grand jury accuse said Edward J. Rice, that with intent to deprive and defraud the county of Monroe of its money and property and of the use and benefit thereof, and to appropriate the same to 'his own use and to the use of some other person or persons to the grand jury unknown, he did then and there as aforesaid take from the possession of the said county of Monroe, the true owner thereof, and did obtain possession of said money, to wit: said sum of $729.31 by color or aid of the false and fraudulent representations, pretenses, false tokens and writings aforesaid; and so did steal said sum of $729.31, contrary to the form of the statute,” etc.

The demurrer to this indictment was allowed on the ground that it “ is insufficient because it nowhere contains any allegation that the money was paid by the committee in reliance upon the false statement of the defendant, nor any allegation equivalent thereto.” And the two cases in this state cited in support of the ruling are People v. Dumar, 106 N. Y., 502; 11 N. Y. State Rep., 19; and Clark v. The People, 2 Lans., 329. Neither of the cases is authority for the proposition that the allegation of this indictment, viz.: that the money was obtained “ by color or aid of ” the false and fraudulent representation, following as it does the language of the statute, is not equivalent to the allegation, in that respect, usually employed, viz.: that the end was accomplished “ by means of ” the fraudulent representation. In the case of Dumar the question was not as to the sufficiency of the indictment, but a question of variance between pleadings and proof; where, as Judge Danforth very tersely said, “ what was alleged was not proved, and what was proved was not alleged.” The indictment made no allegation whatever of false pretenses, and false pretense was the burden of the evidence. In the case of Clark v. People, supra, the language was “ by which said false pretenses he then did unlawfully obtain,” etc., and that was held to be “ a substantial averment that the prisoner had obtained the property from the prosecutor by means of the false pretenses made and of the latter’s belief therein, and that the indictment was not defective in that particular.”

The quotation is from the head note, which is fully borne out by the opinion of Miller, J., concurred in by Ingalls and Peck-ham, Sr., JJ., and the entire argument fully sustains the position of the district attorney in this case. Certainly to allege that the property was obtained by the false pretence, etc., is no stronger than to allege that it was obtained by color or aid of the false pretence, etc. The opinion in that case repeats and enforces in various forms the proposition that the fact that the property was obtained by false pretences necessarily implies that the owner of the property relied upon those pretences. Indeed the opinion at oyer and terminer in this case substantially affirms the same proposition in the words, “ It is quite plain that unless the owner delivered the money in part reliance, at least, upon the false representations, it cannot be said that possession of it was obtained by aid of them.” All the authorities and precedents are substantially to the same effect on this question. The form contained in Archbold’s Prac. and Pleadings, Pomeroy’s edition, page 1376, gives a form identical in this respect with that used in the case of Clark, supra, viz.: “by which said false pretence he, the said A. B., then unlawfully did. obtain, etc.”, and thé' cases on this point cited in the American notes are all substantially to the same purpose.

The other objection, and that mainly urged by counsel for the defendant, is that the false pretences were not such as could or ought to have deceived or misled an ordinarily prudent man; and he cites many cases, chiefly English, to the effect that a false statement of the amount or quantity of goods or commodities sold and delivered is not a representation which will support an indictment for false pretences. Such is undoubtedly the rule in cases like those referred to. This case seems to be of a different character. Here was no delivery of goods to a buyer, but the use and employment, by the defendant in the repairs of the piping, the plumbing, and the steam fitting of a public building, of large quantities of soil pipe, lead pipe, sheet lead, solder and oakum, which when put in place must have been in large part hidden from the eye and altogether beyond the estimate of any but an expert in the same trade or calling. In such a case the rule must apply with special force that the question of the reasonable effect of the representation is a question for the jury.

The argument of counsel for the defendant that there was in this case no “false token” or “false writing” within the meaning of the statute seems to us sound and well supported by authority. But neither the false token nor the false writing of the statute is required in order to make a case of false pretences. The statute reads “a person who with intent to deprive or defraud the true owner of his property, etc., either, (1). Takes from the possession of the true owner "x" * *; or obtains from such possession by color or aid of fraudulent or false representation or pretence, or of any false token or writing * * * any money, etc. * * * steals such property and is guilty of larceny.” Penal Code, '§ 528.

The indictment in this case charges the crime in the language of the statute and fully and plainly recounts the acts alleged to constitute a crime. It seems to us not to be obnoxious to any of the objections suggested by the demurrer or argued by counsel.

The judgment appealed from should be reversed and the case remitted to the oyer and terminer of Monroe county to proceed therein.

Macomber and Corlett, JJ., concur.


text:
    Mary S. Eldridge, Resp’t, v. Charles E. Kenning, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Adverse possession—What necessary to constitute.
    Such adverse possession as will ripen into title in twenty years need not . be under color but only under claim of title.
    3. Same.
    Forty years before the commencement of this action plaintiff’s father . purchased from the common source of title the east half of a certain lot of land, and immediately proceeded to enclose it by a substantial hoard fence; hut in doing so, by mistake, he included therein a strip of land on the west of his purchase. Since that time said land- and strip have continued in the possession of plaintiff and her father, claiming to be the owners thereof, and has been occupied and cultivated by them. Defendant, who owned the west half of such lot, attempting to remove the fence between them, this action was brought to restrain him from so doing. Held, that plaintiff’s possession was adverse under the statute.
    Appeal by the defendant from a judgment entered on the findings and decision of the court at special term.

      F. L. Durand, for app’lt; Theo. Bacon, for resp’t.
   Dwight, P. J.

The action was for an injunction to restrain "the defendant from tearing down a fence claimed by the plaintiff as marking the west line of premises owned and occupied by her on the south side of Court street in the city, of Rochester, and from erecting any building or" other structure on a strip of land lying east of such fence. The question involved was of the title to the strip of land mentioned. Judgment was for the plaintiff, adjudging her to be the owner of the strip of land in question, and requiring the defendant forthwith to remove therefrom that portion of the building (erected by him after the commencement •of the action) which encroached upon the plaintiff’s premises, and to rebuild the fence which had been removed or destroyed by him.

The judgment, and the conclusion of law upon which it was based, necessarily resulted from the facts found by the court, and those, in turn, seem to have been well supported by the evidence. They were to the effect that more than forty years before the commencement of the action the plaintiff’s father purchased by warranty deed, from the common source of title of the parties to this action, and went into possession of lot No. 48 and the east half of the adjoining lot No. 4, of a certain tract in the city of Rochester; that immediately after taking such conveyance and possession he proceeded to enclose hi$ purchase by a substantial board fence; but that by mistake in respect to the true location of the lines of those lots, the fence on the west side of the premises so enclosed was placed so far west of the true center line' of lot 4 as to include between it and such true line the strip of land in question, being one foot and a half in width on Court street, .and two feet and a quarter wide on an alley in the rear; that from the time of the erection of such fence down to the time of the defendant’s interference therewith, complained of. “ the said strip of land so enclosed continued to be in the actual, exclusive, adverse and notorious possession of this plaintiff and her grantors claiming to be the owners thereof, and occupying and cultivating the same as a part of the homestead lot of the plaintiff’s father and his family and the plaintiff.”

There is no substantial conflict of evidence in respect to the elements strictly of fact which enter into this finding. The real contention on the part of the defendant is that the facts established do not constitute such an adverse possession as will ripen into title by prescription, because such possession was not held under color of title. It is said that the conveyance under which the plaintiff claims did not purport to include the strip of land in question, but, in terms, conveyed only the east half of lot Eo. 4, and, therefore, bounded the land conveyed by the true center line of that lot, which is conceded to be the east line of the strip in question. All this is true, but it does not render the plaintiff's possession any the less adverse, within the meaning of the statute of limitations, upon the undisputed facts of this case. Such adverse possession as will ripen into title in twenty years need not be under color but only under claim of title. Section 372 of the Code of Civil Procedure prescribes what is necessary to constitute an adverse possession. in favor of one whose claim is not founded upon a conveyance or decree which actually includes the premises in question. The provision is as follows: “ For the purpose of constituting an adverse possession ' by a person claiming title not founded upon a written instrument, or a judgment or decree, land is presumed to have been possessed and occupied-in either,of the following cases * * * : (1). Where it has been protected by a substantial enclosure; (2), where it has been usually cultivated or improved.’’ In this case both of the conditions.prescribed concur, and an undoubted case is made of a possession in the plaintiff and her grantors, adverse to the legal title, for a period of more than forty years. Whereas, by § 368 of the same statute, such a possession for the period of twenty years is sufficient to overcome the presumption in favor of the owner of the legal title.

The case at bar seems to be precisely within the doctrine declared, per Selden, J., in Crary v. Goodman, 22 N. Y., 170, 175, viz.: “ that where a grantee in talcing possession under his deed goes unintentionally and by mistake beyond his proper boundaries and enters upon and actually occupies and improves land not included in the deed, claiming and supposing it to be his, this occupation is to be deemed adverse within the meaning of the statute of limitations, and if continued for twenty years would bar the right of the true owner.”

The doctrine of title by practical location of a boundary line under which many cases of this character have been decided, has sometimes been treated as independent of the doctrine of title by prescription under the statute of limitations; but it probably differs from the latter rather in the mode of its statement than in the principle involved. Certainly no title is gained by practical location'in any less period than under the statute of limitations, and evidence of the agreement or acquiescence under which such location is established, seems to be only another mode of proof of the adverse possession necessary to a title by prescription. But however this may be, the practical location of a boundary line either agreed to or acquiesced in, and so maintained for the period of twenty years, constitutes evidence of title of the highest character. In Baldwin v. Brown, 16 N. Y., 359, it is said to be evidence of so conclusive a nature as to preclude evidence to the contrary; and in Reed v. Farr, 35 N. Y., 113, the court say “the evidence, so furnished, of the correct location of the line, is of so high a character as to admit of no contradiction.”

We regard the plaintiff’s case in this action as fully established by evidence of the character referred to, and conclude that the judgment appealed from must be affirmed.

Judgment appealed from affirmed, with costs.

Macomber and Corlett, JJ., concur


author: Daniels, J.

text:
    George R. Gibson et al., Resp’ts, v. The American Loan & Trust Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Trustee—Removal of—Corporation mortgage.
    The C. W. Co. of Nebraska city executed a mortgage to the defendant, a corporation of this state, as trustee, to secure certain bonds. Thereafter a corporation was organized called the Nebraska C. W. & L. Co., and to this the 0. W. Co. conveyed its property and later the Nebraska 0. W. & L. Co. mortgaged all the property for a large sum. The C. W. Co. defaulted as to interest and on request of some of its bondholders the defendant began an action in Nebraska to foreclose the mortgage securing their bonds. All the attorneys in Nebraska having charge of the foreclosure on either side were interested in the Nebraska C. W. & L. Co. Such proceedings were had that certain expenditures made by the latter company upon the property after the same had been deeded to it by the C. W. Co. were preferred to the claims of the bondholders, and the defendant also refused the demand of certain bondholders to be allowed to intervene in the foreclosure action and assert thejr rights. Held, that the bondholders could maintain an action in the courts of this state to remove the trustee on the ground of bad faith and therein enjoin defendant from further action; and that some of the bondholders might sue for all others similarly situated.
    2. Same.
    The fact that the Nebraska C. W. & L. Co. cannot be brought in is not a defensé, the question being one between the bondholders and their trustee, a corporation of this state.
    8. Same.
    It was error to allow the expenditures of the Nebraska 0. W. & L. Co. to have a preference over the bondholders, the rule being that where a mortgage upon real estate has been given, improvements, fixtures or machinery subsequently added to and affixed upon the property become subordinated to the preceding mortgage.
    4. Same.
    If the defendant authorized' its attorney to consent that these expenditures be preferred to the lien of the mortgage, it would be misconduct justifying its removal.
    5. Same.
    The fact that if the present trustee is removed the court cannot in this case appoint another is not a defense, because the mortgage itself provides a method by which the bondholders can appoint a new trustee.

      Appeal from an order denying an iujunction.

      Robert L. Harrison, for app’lts; E. Ellery Anderson, for resp’ts.
   Daniels, J.

The action has been brought in favor of the holders of bonds issued by the City Water Company of Nebraska City, in the state of Nebraska. The total issue of the bonds amounted to the sum of $150,000.. Bach bond was for the sum of $1,000, and secured by a mortgage upon the property of the water company. This mortgage was executed and delivered to the American Loan & Trust Company of the city of New York in trust for the security and benefit of the holders of the bonds. The water company made default in the payment of interest upon the bonds, and at the request of the holders of sixty-one of the bonds the Trust Company commenced an action in the district •court of Otoe county, Nebraska, to foreclose the mortgage and sell the mortgaged property. Before this action was commenced, and after the execution and delivery of the mortgage, another corporation was organized in the city of Nebraska, called the Nebraska City Water & Light Company. And after .the organization of that company the City Water, Company, the mortgagor, transferred its property covered by the mortgage to a person who conveyed it to the Nebraska City Water & Light Company, which then encumbered it by a mortgage of $250,000. After this transfer and conveyance, the grantee made additions to and improvements upon the property, and these facts were alleged in the petition for the commencement of the action for the fore•closure of the mortgage. That company answered the petition, alleging that it had purchased real property and built water basins and provided apparatus for the use of the company, and had obtained the performance of architect and engineering services, and that the amount expended therefor was necessary to keep the plant in running order and retain the customers of the City Water Company, and that it amounted to the sum of $25,000, for which a priority was claimed in the action over the mortgage to the trust company. Other answers were served in the action, but containing no allegations affecting this part of the action. And •after the issues had been framed, the cause appears to have been brought on for a hearing by consent of the parties, and a decree ivas entered in conformity to the prayer of the petition, and also finding due to the Nebraska City Water & Light Company, as a first lien upon the property, this sum of $25,000. No contest appears from the docket entry in the action to have taken place concerning the allowance of this sum of money, nor any adjudication by the court determining it to be a prior incumbrance upon the property to the mortgage previously given by the City Water Company. But what took place at the trial appears from the docket entry to have been the result of consent on the part of the attorneys and counsel representing the two water companies and the trustee to which the mortgage had been given. It further appeared that one of the attorneys who had been employed to, and ¡did represent the trust company in the commencement and prosecution of the .foreclosure action, was one of the incorporators of the Nebraska City Water & Light Company. The attorney who represented the mortgagor in the mortgage was also an incorporator in that company; and so was the attorney who represented and appeared for the Nebraska City Water & Light Company. And it was accordingly to their interest to promote and maintain all such advantages as might be secured for the Nebraska City Water &' Light Company-in preference to those of the Trust Company under the mortgage, the plaintiff in the foreclosure action. There was reason for believing, in the disposition which was made of the foreclosure action by the judgment agreed to be, entered, that the rights and interests of the holders of the bonds secured by the mortgage had been so far disregarded and sacrificed, and that this had. been done under tire authority and with the connivance of the Trust Company itself.

When these facts came to the knowledge of the plaintiffs measures were taken by way of correspondence to induce the Trust Company to permit the plaintiffs to be represented in the foreclosure action to secure a proper observance and vindication of their own rights under the mortgage. But this, was declined on the part of the Trust Company, which refused to authorize or consent to such interference. And this refusal tended to confirm the belief that the Trust Company was not in good faith prosecuting the foreclosure suit for the promotion of the interests and the protection of the rights of the holders of the bonds. And this action was thereupon commenced to obtain a judgment for the removal of the Trust Company as trustee under this mortgage, and for the appointment of another trustee to maintain and enforce the trusts created by its provisions. The complaint in the action prayed for the issuing of an injunction in the meantime restraining the Trust-Company, its officers, agents, attorneys and servants from proceeding in any way in the foreclosure action, and from executing the judgment or decree which had been entered, or taking any other steps or proceedings as trustee under the trust deed. And the court, considering these facts to have been established by the proof produced in the case, continued the injunction which had previously been issued having this effect, but leaving the Trust Company at liberty to take such defensive measures, or receive such sums of. money as should be necessary for the protection of the rights of the holders of the bonds.

In support of the appeal which has been taken from this order,, the objection has been urged that the court is without jurisdiction to restrain the trustee from carrying on or consummating these proceedings in the district court of Otoe county, in the state of Nebraska. And the case of Cole v. Cunningham, 133 U. S., 107, and those cited in the course of the opinion, have been relied upon chiefly as authorities maintaining this objection.

But neither that case, nor anything which was decided in Phelps v. McDonald, 99 U. S., 298, has any tendency to sustain this objection. On the contrary it is conceded, as it has frequently been held, where a necessity for the injunction appears to exist, that the courts of one state may enjoin the party within its jurisdiction from proceeding in an action pending in another state. And so it has been held, not only in this state but in others, as the authorities collated and discussed in Cole v. Cunningham clearly prove and establish. So far as objection has been taken to the jurisdiction of this court over this action, it is plainly without support. Neither can the action be defeated for the reason that all the owners of bonds secured by the mortgage are not made parties to it For it has been brought by the plaintiffs as the owners of eighty-five of the bonds, forming more than a majority of those secured by the mortgage. And they are prosecuting it under the authority of § 448 of the Code of Civil Procedure, not only for the benefit of themselves, but of the other bondholders who may elect to make themselves parties to the litigation. This section has provided where the question is one of common or general interest of many persons, or where the persons who might be made parties are very numerous and it may be impracticable to bring them all before the court, that one or more may sue or.defend for the benefit of all. And as the holders of these bonds are numerous that is a sufficient authority for the support of the action by these plaintiffs for their own benefit, as well as that of the holders of the other bonds.

The action is against the Trust Company, which is a corporation formed under the laws of this state, and it is, therefore, directly subject to the jurisdiction and authority of this court. Indeed, there would seem to be no other authority provided for the removal of the trustee beyond that which the courts of this state are authorized to exercise, for it is directly within the reach only of the process of this court and subject to any judgment which may be recovered against it in the action. And that is sufficient to answer all the requirements of jurisdiction on the part of the court. For no disability appears to exist on the part of the plaintiffs preventing the prosecution of the action by them even though a portion of them, as the affidavits show the fact to be, are not residents of the state of New York. The defendant is here and if an equitable right exists for its removal, the plaintiffs are entitled to enforce that right through the instrumentality of -this jurisdiction.

That the Water Company of Nebraska City may not be brought into the action by any proceeding which has been provided for the service of the summons upon a resident of another state will not necessarily defeat the action, for that company has no direct interest m the controversy existing between these bondholders and this trustee. It is not proposed, and could not be, to remove the trustee bn account of any misconduct on the part of the Nebraska City Water Company, but the action has been brought for its removal because of its own misconduct in consenting to the charge -of this sum of $25,000 as a superior lien upon the property covered by the mortgage, when under the authority of the law the City Water & Light Company was entitled to no such advantage. The ground of the action is the alleged misconduct of the Trust Company itself and no injury whatever can result to the Nebraska City Water Company from the removal of the Trust Company as trustee under this mortgage. And for that reason if jurisdiction shall be incapable of being acquired over that company this failure does not appear to constitute a defense to the action. But as to that no definite decision is required to be made, for the: company may still appear and make itself a party to this litigation. But if it does not, then the question will for the first time arise whether the action can be maintained without that company becoming a party..

That the consent should not have been given by which the expense of improvements upon the mortgaged property were made a superior lien to first encumbrance, appears to be reasonably well supported by the authorities. For they sustain the rule to be,, where a mortgage has been given upon real estate, that improvements, or fixtures, or machinery, afterwards added to or affixed upon the property, become subordinated to the preceding mortgage and are liable for the payment of the mortgaged debt the same as the property to which the articles are afterwards annexed.. This principle is settled by the following, as well as other authorities : Smith v. Goodwin, 2 Greenl., 173; Frankland v. Moulton, 5 Wis., 1; Winslow v.Merchants Ins. Co., 4 Metc., 306; Pettengill v. Evans, 5 N. H., 54; Butler v. Page, 7 Metc., 40; Snedeker v. Warring, 2 Kern., 170, 174, where it was said in the opinion that permanent erections, and other improvements made by the mortgagor on the land mortgaged become a part of the realty and are covered by the mortgage.” And the same rule is equally as applicable where the improvements and erections shall be made by a party acquiring title under the mortgagor subsequent to the mortgage. And to the same effect is McFadden v. Van Buren, 50 Hun, 361; 20 N. Y. State Rep., 366. And this principle has also been applied to growing crops upon land mortgaged, as will be seen by 1 Hilliard on Mortgages, 3rd ed., 180, note c.

If the Trust Company authorized its attorney and' counsel to-consent to the subordination of the lien.of the mortgage to the expenditures alleged to have been made upon the mortgaged property, then certainly it is chargeable with that degree of misconduct which may properly result in its removal. People v. Norton, 5 Seld., 176; Quackenboss v. Southwick, 41 N. Y., 117. And that this consent resulted from its preceding authority, or subsequent acquiescence, may be inferred from the papers in the case exhibiting what has taken place and the refusal of the Trust Company to permit any person representing these plaintiffs to intervene for their own protection in the foreclosure action.

The inability of this court to appoint another trustee under the mortgage, in case the Trust Company shall be removed, will not defeat the action, for by the eighth paragraph of the mortgage it has been provided that a majority in number and value of the bondholders may, by an instrument in writing under their hands, duly acknowledged or proved, and recorded in Otoe county, appoint or select one or more person or persons, or any other corporation, to be a trustee under the mortgage in case of the removal of this Trust Company. This provision secures ample authority to the bondholders to select a trustee to execute and enforce the trusts and obligations created by the mortgage if this Trust Company shall be removed by the judgment of this court from its position. And that certainly tends to restrict this litigation to the determination whether the trustee shall or shall not be removed from its office under the mortgage. And to that extent there seems to be no well founded objection to the jurisdiction or authority of this court.

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

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


author: Bartlett, J.

text:
    John P. Mahoney, App’lt, v. Mary A. Prendergast et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Former adjudication—No estoppel as between dependants in former ACTION IN WHICH THERE WAS NO ISSUE BETWEEN THEM.
    The mother of M. had a right of dower in certain premises. M. conveyed the premises through another to his wife. The mother then brought an action for dower against M. and his wife, and in that-action the conveyance by M. to his wife was declared to be without consideration. Subsequently M. brought this action against the defendant, devisee of his wife, to recover the premises. Held, that the recital in the judgment in the former action that the conveyance there was without consideration, was not an estoppel as to the defendant here; M. and his wife both being defendants in the former action, and there being no issue there as between them.
    Appeal from judgment for the defendants rendered at special term in an action to establish the title of the plaintiff to certain real estate devised to the defendant Mary A Prendergast.

      Charles Donohue, for app’lt; John J. Macklin, for resp’ts.
   Bartlett, J.

This action is founded on an ment between the plaintiff, John P. Mahoney, and his wife Anastasia B. Mahoney, now deceased. The plaintiff owned certain premises on Eighty-sixth street in the city of New York. In October, 1875, he conveyed them to Benjamin F. Hewes, and Benjamin Y. Hewes and wife thereupon conveyed them to the plaintiff’s wife. The plaintiff, in the third paragraph of his complaint, avers that these conveyances were made without consideration and under the following circumstances:

“ That said plaintiff was then engaged in business in the city of New York as a liquor dealer, and that said business was distasteful to his wife, the said Anastasia B. Mahoney, with whom the plaintiff then resided, and that on account of the many risks incident to said business, and for the better protection of the plaintiff, and in order that the said Anastasia B. Mahoney might have a support secured to her for life out of the rents and income of said premises, said plaintiff agreed to and with his wife, the said Anastasia B. Mahoney, and at her solicitation, to convey to her the premises above mentioned, upon condition that in the event of the death of the said Anastasia B. Mahoney before this plaintiff, she should devise the said premises by will to the plaintiff.”

The learned judge at special term expressly declares in his tenth finding of fact that the plaintiff, upon the trial of this action, wholly failed to prove the alleged agreement between himself and Anastasia B. Mahoney, set forth as above in the third paragraph of the complaint. -

He further found that in 1865, when the plaintiff married, his "wife was engaged as a public school teacher in the city of New York, and continued in that occupation up to the time of her death in 1887, receiving during the greater portion of that period compensation at the rate of $1,000 a year; that before the premises were conveyed to her she had expended thereon large sums of money out of her own earnings to preserve the property and pay charges upon it; that shé had also advanced large sums of money to the plaintiff out of her own earnings, so that he owed her upward of $5,000 at the time of the conveyances; and that the consideration for making such conveyances consisted of the moneys which the wife had paid out upon the property and advanced to her husband, who had become insolvent, and who intended to vest her with an absolute estate in the premises, thus preferring her to his other creditors, and securing her against loss.

Unless these findings of fact can be successfully attacked, the appeal must fail, and the judgment in favor of the defendant, Mary A. Prendergast, the sister to whom Mrs. Mahoney devised the land in controversy, must be affirmed. In the absence of any statement in the appeal book that it contains all the evidence given upon the trial, or all the evidence bearing upon the questions to be reviewed, the general term will assume that the proof before the trial judge was sufficient to sustain his findings of fact. Porter v. Smith, 35 Hun, 118; 107 N. Y., 531; 12 N. Y. State Rep., 479. The counsel for the respondents has called our attention to the omission of the appellant to procure the insertion of such a statement in the printed case before us, and we are not disposed to relax the rule which makes a certificate of this kind a pre • requisite to any review of questions of fact in this court; and certainly if the evidence suffices to support the findings we have mentioned, the correctness of the.conclusion of law that the complaint should be dismissed cannot seriously be questioned.

Indeed, upon such testimony as the appeal book does contain, whether it be all that was taken upon the trial or not, we think the result reached by the court below was fully warranted. We agree with the learned trial judge that the plaintiff’s letter to his wife, under date of September 12, Í881, clearly indicated his absolute relinquishment of all interest in the premises in suit. He would hardly have suggested a sale of the property, if any agreement had existed by which the fee was to vest in him at Ms wife’s death.

In behalf of the appellant it is insisted that proper effect was not given at the special term to a judgment which was proved to have been rendered in an action for dower brought by this plaintiff’s mother against himself and his wife after he had conveyed the property to the latter. The wife paid the amount recovered therein by her husband’s mother. One of the findings in that case recites the conveyance of the premises through Benjamin F. Hewes to Anastasia B. Mahoney and declares it to have been made without consideration and for the sole purpose of vesting the apparent legal title in the last grantee. It is argued that this finding is conclusive evidence against Anastasia B. Mahoney’s devisee, that there was no consideration for the transfer from the husband. The answer is, that the present plaintiff and his wife were co-defendants in that action; they were in no sense adverse parties to one another; no issue between them arofee, or was litigated therein; and hence no estoppel could arise against either in behalf of the other by reason of what was adjudicated in that suit as between them jointly on the one hand, and a third party on the other. The case is very different from Parkhurst v. Berdell, 110 N. Y., 386, 392; 18 N. Y. State Rep., 193, where there had been litigation between the two defendants as adverse patties.

The judgment should be affirmed, with costs.

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


author: Brady, J.

text:
    Fielding S. Williams, App’lt, v. Lucy E. Williams, Admr’x, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Pleading—Parties—Action to enforce agreement to leave property by WILL.
    The complaint alleged that the plaintiff and D. W., of whom defendant is administratrix, were co-partners; that the firm was dissolved and accounting had, by which D. W. was found to be indebted to plaintiff in a large sum ; that in consideration of a release in writing of this debt, executed by plaintiff, D. W. promised that should he die without wife or child, he would leave the income of his estate to his mother, L. E. W., for life, and the whole of said estate upon his death, or if she did not survive him, to plaintiff, if living, otherwise to plaintiff’s children, the survivor or survivors of them. On demurrer, Held, that the contract was a valid one and could be enforced by plaintiff against the administratrix as such.
    2. Same.
    If the heirs and next of kin of D. W. are necessary parties to a complete determination of the controversy, the court must order them to be brought in.
    Appeal from an interlocutory judgment dismissing the complaint upon demurrer interposed to the answer.

      Thomas Jackson, for app’lt; John Notman, for resp’t.
   Brady, J.

The plaintiff alleged that during his lifetime and for some time prior to the 31st of December, 1873, David Williams, deceased, was his copartner; that on the 31st of December, 1873, the firm was dissolved by mutual consent and an accounting had between them, on which it was found that the deceased partner was indebted to the plaintiff in the sum of $25,492.26, and then follows this allegation:

III. That on or about the 10th day of February, 1874, in consideration of a release in writing of said indebtedness which plaintiff executed and then and there delivered to him, the said David Williams promised and agreed that should he die without wife or child he would leave the income of his estate to his mother, Lucy E. Williams, for life, and the whole of said estate upon her death, or if she did not survive him, to the plaintiff, were he then living, otherwise to the children of said plaintiff, the survivor or survivors of them; which is the gist of the action.'

The defendant answered, setting up separate defenses, and to-those contained in the ninth and tenth paragraphs the plaintiff demurred. Upon the argument the defendant, invoking well established principles, assailed the complaint as one not stating facts sufficient to constitute a cause of action, and the learned justice in the court below, in considering the effect of the demurrer, held that it was well taken as to both paragraphs of the an swer demurred to, but proceeded to consider the sufficiency of the complaint, and arrived at the conclusion that as the heirs-at-law and next of kin, and not the administratrix, were the real parties in interest, therefore the plaintiff should assert his claim against them.

The learned justice conceded that the complaint stated a cause of action which was good against the heirs and next of kin, but bad against the person who was sued as administratrix," and said, that while the plaintiff’s demurrer would have been sustained as to the ninth and tenth defenses mentioned, there should be judgment for the defendant, dismissing the complaint for a failure to state facts sufficient to constitute a cause of action. The difficulty in sustaining this view arises from the fact that a defect of parties must be taken advantage of by demurrer where it appears upon the face of the complaint, or by answer if it do not appear, and if it be not thus taken it is waived. Code, §§ 488, 498, 499; Davis v. Bechstein, 69 N. Y., 440.

And it is also subject to the criticism suggested by the opinion of the learned justice, that a cause of action may be sufficiently and thoroughly stated, although there are parties interested in the controversy not before the court It cannot be held, therefore, to enter into or become a part of the statement of the cause of action when considered with regard to its sufficiency.

The contract alleged is a peculiar one. Instances of kindred contracts are found in the adjudications and have been sustained, although differing in some respects from that presented by the plaintiff. The consideration of the contract emanated from him and was for the benefit of his mother and himself and his children, and it embraced the entire estate which the intestate possessed at the time of his death, he having promised and agreed that if he died without wife or child he would leave the income of bis estate to his mother Lucy E. Williams for life, and the whole of the estate upon her death, or, if she did not survive him, to the plaintiff, if then living; otherwise to his children.

From this statement of the contract, the consideration of which was a release of the sum of twenty-five thousand dollars and upwards, it would seem, at first blush, as if Lucy E. Williams was the person to enforce it; but this view cannot be sustained for the reason that she was not the promisee, although she might perhaps bring an action to sustain the interest acquired by it with perhaps the consent of the plaintiff in this suit. But that he could enforce it there can be no question, and the propriety of his doing so is manifest from the fact that the estate might be distributed if no effort were made to fasten upon it the burden of the contract sought to be enforced. Overlooking the apparent error in amalgamating a defect of parties with an alleged insufficiency of facts stated to constitute a cause of action, the question presented is, whether the action can be maintained against the administratrix as such.

The learned justice in the court below thought that the plaintiff in this case was asking the court to make a will which the testator promised and failed to make. This was a very natural suggestion and to some extent is a correct statement; but the result might be a recovery in the action only for damages for violation of the contract or for the recovery of the sum which was paid as a consideration for it. It is in effect a contract for the payment of money or the transfer of property, and is one which is generally enforced by the laws of the state against the personal representative of the deceased promisor, a position which the defendant in this case occupies. And it is quite apparent from the character of the claim that the heirs and next of kin have no other interest in it and can have no interest in the estate other than tothe surplus remaining after the discharge of all the intestate’s obligations, which,if the contract as alleged be established herein, will be nothing.

The only persons who would have any claim upon the estate under such, circumstances would be the creditors and the administratrix for such charges as she could lawfully make for the performance of her duties. It seems to be well settled that to the personal representatives passed the interest of the deceased in whatever contracts may be outstanding at the time of his death ; and in like manner the obligation of an unfulfilled engagement survives, and his personal representative is the proper person to answer "for him. Ferrin v. Myrick, 41 N. Y., 315; Ross v. Harden, 44 Supr. Ct., 26.

The law presumes that in the absence of express words the • parties to the contract intend to bind not only themselves but their personal representatives; indeed, the representation of the deceased in matters of contract by his executor or administrator is so complete, that, generally speaking, it is not necessary, in order to transmit it to the executor or administrator, that he should be named in the terms of it, Com. Dig., Adm., 13; Kernochan v. Murray, 111 N. Y., 306; 19 N. Y. State Rep., 491, and this is particularly so where the agreement, by its terms, cannot be performed until the death of one of the parties. See also Dayton on Surrogates, 289; Williams on Exrs., 665, 666; Potter v. Ellice, 48 N. Y., 323, and cases cited.

The judgment pronounced seems, for these reasons, to be erroneous. The failure to make the heirs and next of kin parties will not result in any disadvantage to 'them or the estate, inasmuch as if, during the pendency of the action, it appears that a complete determination of the controversy cannot be had without their presence, the court must direct them to be brought in. Code, § 452.

There is no other question to be considered on this appeal, and the judgment must therefore be reversed, with costs.

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

       Reversing 33 N. Y. State Rep., 9.


author: Brady, J. (dissenting) Daniels, J.

text:
    In the Matter of the Petition of Pauline S. Pearsall for Appointment of a Trustee Under the Will of Paul Spofford.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Appeal—Motion to revive.
    Where an order was made appointing a trustee and one of the parties interested appealed and soon after died, and three years elapsed before his executors moved to revive the appeal, and the proof of the service of the notice of appeal was slight and uncertain, Held, that the application to revive should be denied.
    (Brady, J., dissents.)
    Appeal by the executors of Eugene Douglas SpoSord from an order made at the special term August 20, 1890, denying their application for leave to revive an appeal alleged to have been taken from an order made more than three years before the date of this application appointing Thomas W. Pearsall a co-trustee of the estate of Paul SpoSord, deceased.

      Wm. Pierrepont Williams, for app’lt; Thos. G. Shearman, for resp’t.
   Brady, J. (dissenting)

On the 14th of February, 1887, Pauline S. Pearsall and Edward Clarence SpoSordj children and beneficiaries under the will of Paul SpoSord, deceased, asked by petition for the appointment of Thomas W. Pearsall as one of the trustees under the will of their deceased father, which had been admitted to probate in 1869, and under which there had been orignally four co-trustees, namely, the widow and her three sons, Paul EL. JosephL. and Gardiner'S. SpoSord. ■ The widow and Gardiner S. died prior to February, 1887, and there then remained only two trustees, of whom one was Paul N. SpoSord, who was insolvent and incapacitated by bodily infirmity from taking any active part in the management of the estate, and Joseph L. SpoSord, whose health was then seriously impaired and who was at the time about to take a trip to Europe designing to be away for a long time, and who did shortly afterward actually sail for that country and was absent when the motion was argued. The petition prayed for the appointment of Mr. Pearsall without requiring him to give security. To this all parties interested in the estate consented with the exception of Eugene D. SpoSord, whose sole objection was to the order requiring no security from Mr. Pearsall unless Eugene himself could be appointed a trustee. The other beneficiaries objected to the appointment of Eugene solely on the ground of his youth and his lack of business experience, he being then twenty-eight years -old and never having been in business of any kind except that of a nominal cleric to his brothers Paul and Joseph at a very small salary.

The learned justice at special term in a well considered opinion determined to appoint Mr. Pearsall alone as co-trustee, and inasmuch as it appeared that the trust property consisted almost exclusively of real estate he ordered and required Mr. Pearsall to give a bond to Eugene D. Spofford for $50,000 and ordered that all moneys coming into the hands of the trustees aggregating $5,000 should at once be deposited in the United States Trust Company to the credit of all the trustees and to be drawn out only upon their joint order. This order was entered May 4,1887, and served upon Messrs. Evarts, Choate & Beaman, attorneys for Eugene D. Spofford on the 10th of May, 1887.

On the 23d of August Eugene D. Spofford, who was the only person making serious objection to the selection of Mr. Pearsall as trustee, died, leaving a will.

Mr. Pearsall duly qualified as trustee, and filed his bond, to winch no objection appears to have been made.

Ho further steps were taken under this appeal for over three years, and until July 21, 1890, when the present executors of Eugene applied for leave to revive and continue it, and upon the allegation that they did not know until within a comparatively short time prior to their application that an appeal had been taken.

The application which results in this appeal was one to revive the appeal taken by Eugene D. Spofford from the appointment of Mr. Pearsall. An examination of the record presented for our consideration now indicates that the opposition to Mr. Pearsall was very slight, and it would seem to have been prompted rather by personal feeling than good judgment, and there are many reasons for believing that the appeal would be unsuccessful; but with that we have nothing to do.

The question is an abstract one, that is whether, the appeal having been taken, as it undoubtedly was, however imperfectly it may have been inaugurated, the executors should be permitted to revive it Section 1303 of the Code provides that when the appellant seasonably and in good faith serves the notice of appeal either upon the clerk or upon the adverse party, or his attorney, but omits through mistake, inadvertence or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal, or stay the execution of the judgment or order appealed from, the court, in or to which the appeal is taken, upon proof by affidavit of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made upon such terms as j ustice requires.

The appeal having been initiated, however irregularly, under the section just quoted the court has the power, and it is one which is frequently exercised, of permitting the omission to be supplied. Here there is more than that to be done, it is true. The omission suggested is to be supplied, and also the order appealed from denying the application for leave to revive the appeal reversed in order to put the executors of Eugene rectus in curia.

The right of appeal is a sacred one, and should not be lightly treated even although in all probability it will be unsuccessful, and it is thought, therefore, that the petitioners should be allowed to revive the appeal, but without a stay of proceedings; so that the management of' the estate shall go on uninterruptedly without reference to the appeal itself. We think that should only be done, however, in consequence of the laches which marked the proceedings on the part of the executors, upon the payment of the costs of the motion, and ten dollars costs and the disbursements of this appeal

Daniels, J.

proof to establish the fact that an appeal had ever been taken from the order, or that the notice had been served on either of the opposing parties, is too indefinite and too uncertain to maintain, that as a matter of fact. In addition to that the long delay of the executors before their first endeavor was made to discover the fact was such as to require the denial of the motion to waive the appeal if one had ever been taken. The order on these grounds should be affirmed, with costs.

Van Brent, P. J., concurs.


author: Brady, J. Daniels, J.

text:
    Charles Riley, Resp’t, v. John T. Ackley, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Vendor and purchaser—Counterclaim—Fire escapes.
    The plaintiff built certain tenement houses in Now York which defendant examined and afterwards these were exchanged for a farm of the defendant. There was at this time one fire escape upon the houses. Subsequently the fire department o'rdered the defendant to construct another. Held, that this expense was not a proper counterclaim in favor of defend‘ant against the plaintiff.
    Appeal from judgment in favor of plaintiff, entered on report of referee.

      E. B. Barnum, for app’lt; E. T. Rice, for resp’t.
   Brady, J.

This action was brought to compel an accounting. It appears that during the year 1883 the plaintiff built on Forty-eighth street a number of first-class tenement houses for the purpose of salej ands during the summer as some of the houses approached completion they were placed in the hands of a broker for sale. Through his instrumentality the plaintiff and defendant were brought together and they entered into a contract dated August 18th, whereby the plaintiff contracted to sell to the defendant four of the houses, and purchased from the defendant a dairy farm at Groshen, upon which the defendant had lived for many years. The contract in' relation to the farm covered the stock, crops, implements, etc., therein as per schedule annexed.

The plaintiff visited the farm for the first time on the day the contract bears date. The deeds of the houses and the farm were dated respectively September 15,1883, when it was arranged that the defendant should continue to keep the farm until April 1, 1884, to supervise the working of it and account to the plaintiff for the result. The defendant kept the farm until May 1st but rendered po account to the plaintiff. The defendant averred by his answer that he had accounted and set up matters of counterclaim, and a reference was ordered to hear and determine all the issues.

The counterclaim of the defendant was for damages sustained by reason of the plaintiff’s failure to complete certain of the buildings he had purchased from the plaintiff, and also for house furnishing and farming implements sold to the plaintiff.

The learned referee decided that there should be an accounting and it was accordingly had. This accounting involves a great many details and presents evidence elaborately given.

On the evidence revealed by the record there can be no doubt that the accounting was properly ordered, and it is equally certain so far as may be ascertained by reading such testimony that except in three particulars the referee was right in his conclusions in reference to the state of the accounts.

There was an item placed to the credit of defendant of $25.66 for grinding feed which was not allowed among the items credited, although found in the defendant's favor by the referee.

There was next an item of $577.20 for starch feed, as it was designated by the vendor in the bill, to which plaintiff objected and which was disallowed.

It appears to have been bought before the contract made between the parties, and -with the exception of one load to have been delivered before the farm was in possession of the plaintiff. It is claimed, therefore, not to have been a purchase made on his account, and that he should not be called upon to recognize it. But it appears that it was not embraced in the schedule annexed to the bill of sale, and further, that it was used for the plaintiff’s cattle under the agreement by which the defendant was to take charge of the farm. It is not denied that it was so used, but an objection is interposed resting upon the fact that starch feed being a residuum left from grain after the starch has been extracted, is prohibited by the statute, Laws of 1885, chap. 183, § 16 ;. Laws 1887, chap. 430, §• 1, and which provides that milk drawn from cows fed from distillery waste or any substance in a state of fermentation or putrefaction, or upon any unhealthy food whatever, shall be declared unclean, unhealthy, improper and unwholesome, the plaintiff contending that the process by which the starch was extracted was fermentation. But there is no proo’f on this subject and there is no finding relating to it by the referee, and it will be observed from the extract given of the statute that it relates to milk drawn from cows so fed. c

The absence of proof that the feed was in contravention of the statute prevents the application of its provision, and is a complete answer to the objection vesting on that proposition.

It also appears that nineteen window shades were sold to the plaintiff by the defendant The plaintiff does not deny the purchase, but insists that he was only tp pay what they were worth, upon which subject there is no evidence other than that given by himself, viz.: that they were worth from thirty to forty cents apiece. It is thought that upon such a condition of things that an allowance of at least forty cents each should have been made, which would amount to $>7.60.

An examination of the testimony relating to the other items in dispute has led to the conclusion that the referee’s judgment upon them should not be disturbed. There is no rule of evidence which may be invoiced in defendant’s favor which would justify any other disposition. '

In regard to the counterclaim founded upon the alleged failure to complete the buildings, it is only necessary to say that the testimony is extremely conflicting, and that it is not possible to say with any certainty that the testimony on the subject preponderates in favor of the defendant, and the result must be that the judgment cannot be disturbed.

It is only necessary to make one further allusion to the' counterclaim, and that is with respect to the item for the construction of a fire escape in front of the building. One fire escape was put on the buildings by the plaintiff, and they were accepted by the defendant as complete with the exception of apparently insignificant matters for which the referee has made the proper allowance. The fire department however, in the exercise of its discretion, and after the buildings were completed and accepted by the defendant, directed that fire escapes should be placed upon the front of .the building. This they had a right to do in the exercise of the discretion vested in them by the Laws of 1882, vol. 2, p. 137, § 499 ; a discretionary power which has been held to be continuous and not exhausted by a single exercise of it. Fire Department v. Chapman, 10 Daly, 367.

It may be said also that the defendant knew of their condition when he accepted the houses, four of them in September, and three in December, 1883.

The judgment should be modified so as to give credit to the defendant for the items hereinbefore mentioned, and as modified affirmed, 'without costs.

Daniels, J.

I concur with the understanding that the respondent consent to the modification.-

Van Brunt, P. J., concurs.