author: DaNlels, J. :

text:
    WILLIAM B. WHITNEY ahd MAHLON S. KEMMERER, Plaintiffs, v. THE NEW YORK AND ATLANTIC RAILROAD COMPANY, Defendant.

      Action to sequestrate the property of a corporation — notice of a motion to appoint a receiver must be given to the attorney general —1883, chap. 378, sec. 8 — when a second receiver of the company may object to the invalidity of the-order appointing the first — powers and duties of a receiver appointed in an action for sequestration — he takes the corporate property subject to the rights of mortgagees and their receiver — notice of motion — to whom it should be given — a judge cannot consider a paper submitted after argument by one party without notice to the other.

    The New York and Atlantic Railroad Company, by an instrument recorded in Kings county, in April, 1881, mortgaged to Bullock, as trustee, the railroad and all the rights, liberties, privileges, income, tolls, receipts, resources, and corporate franchise of the company then owned or thereafter to be owned, held and acquired by it. On July 5, 1883, Bullock was, in an action brought to foreclose the mortgage, appointed a receiver of the property mentioned and described therein, and on the following day he qualified and entered upon the discharge of his duties. On February 21, 1883, the plaintiffs had recovered a judgment against the company for goods sold to it, upon which an execution was issued and returned unsatisfied; whereupon an action was commenced by the plaintiffs to sequestrate its property and procure the appointment of a receiver. In this' action, and on July 3, 1883, George H. Henry qualified as receiver, in pursuance of an order made on July second, and on July seventh his receivership was made permanent by a judgment then entered in the said action.
    Bullock,-being unable to complete the building of a portion of the road, by reason of embarrassments arising from the appointment of Henry, moved,’ in August, to have the order and judgment appointing Henry a receiver, set aside, on the ground that no notice of the motion for his appointment had been given to the attorney general, as required by section 8 of chapter 378 of 1883. After this motion had been heard, but before it was decided, and on September twenty-eight an order was made, upon the motion of the plaintiffs and the appearance by the attorney general in pursuance of an order to show cause, confirming the order and’ judgment appointing Henry a receiver. This order was brought to the notice of the judge before whom the motion for the reversal of the order and judgment was pending, and induced him to deny the motion. Bullock had no notice of the motion to have the order and judgment confirmed, nor of the appearance and consent of the attorney general, nor of the granting of the order, nor of its being submitted to and considered by the judge.

      Held, that the action brought to sequestrate the property of the company, in which Henry was appointed receiver, was an action for “ a distribution of its assets,” within the meaning of section 8 of chapter 378 of 1883, requiring copies of all notices and all motion papers in every such action to be served upon the attorney general.
    That as the requirements of this section had not been complied with either in the proceedings for the temporary appointment of Henry as a receiver, or for his permanent appointment under the terms of the judgment, both appointments were, within the terms of the said section, void.
    That the order confirming the order and-judgment appointing Henry a receiver, entered upon the notice to and appearance of the attorney general, was improperly made, and that it should not have been submitted to or considered by the judge, as no notice of either the motion or the submission had been given to Bullock.
    That as the appointment of Henry as a receiver interfered with and injuriously affected Bullock in the discharge of his duties as receiver, he had a right to make the motion to vacate it.
    That the motion made by Bullock was an appropriate means of setting aside and vacating the appointment of Henry, and that from the order denying the motion an appeal was properly brought to secure its correction.
    That section 8 of chapter 378 of 1883 had no application to the appointment of Bullock as receiver in the foreclosure suit.

      It seems, that the service of the papers prescribed in the said section 8 is essential to the jurisdiction of the court, and that a failure to make such service cannot probably be corrected without an entirely new proceeding. (Per Daniels, J.)

      The judgment in the action for the sequestration of the property of the corporation provided that Hemy should be continued “as permanent receiver of the defendant herein, its stocks, bonds, property, both real and personal, equitable interests, franchises, contracts, things in action and effects of every kind and nature whatsoever, with the usual powers and duties .as such receiver,” etc.

      Held, that the powers and duties conferred upon the receiver exceeded the bounds prescribed by the statute.
    That the creditors were only entitled through their receiver to the property, real and personal, things in action, contracts and effects of the corporation, so far as they were owned by it at the time of his appointment.
    That the judgment should be corrected by striking out the words “ stocks, bonds and franchises,” and that the appointment should be restricted to such property of the corporation as had not been incumbered by the mortgage, or to the property and effects of the corporation, subject to the mortgage and the rights of Bullock in them under his appointment.
    That the residue of the order and judgment appointing'Henry a receiver, which did not in any way affect or injure Bullock, should not be in any way sanctioned or approved.
    Appeal by Thomas S. Bulloch, trustee and receiver, from an order denying a motion to vacate and set aside the order for judgment in this action, and from an order appointing George H. Henry receiver of the defendant, and from the judgment continuing his receivership, and from an order denying a motion for a rehearing of the preceding motion, and from an order confirming the judgment, and the order appointing George H. Henry as such receiver.
    The judgment appointing Henry the receiver of the defendant, “ ordered, adjudged and decreed that the plaintiffs herein recover of the defendant herein the sum of forty-two dollars, their costs and disbursements, and that the stock, property, both real and personal, rights, equitable interests, things in action, franchises and effects of every nature and kind whatsoever, be, and they hereby are sequestrated as provided for by section 1793 of the Code of Civil Procedure and that George H. Henry, heretofore duly appointed receiver pendente Ute herein by order duly entered herein July 3, 1883, is hereby continued as permanent receiver of the defendant herein, its stocks, bonds, property, both real and personal, rights, equitable interests, franchises, contracts, things in action and effects of every kind and nature whatsoever, with the usual powers and duties as such receiver, according to the laws of this State and the practice of this'court.”

      Burton N. Harrison, for Thomas S. Bullock, receiver, petitioner, appellant.

      J. Adrianos Bush and Charles DeHart Brower, for the plaintiffs and George H. Henry, receiver, respondent.
   DaNlels, J. :

The appellant, Thomas S. Bullock, as trustee under a mortgage executed by the New York and Atlantic Railroad Company for the security of its bonds, commenced an action in this court in Kings county for the foreclosure of the mortgage after such default on the part of the mortgagor as authorized the institution of such a suit.

By the terms of the mortgage all the rights, liberties, privileges, income, tolls, receipts, resources, corporate franchises, railroad then owned by the company or afterwards to be owned, held or acquired, were mortgaged for the security o'f its bonded debt. This mortgage, which was executed on or about the 12th day of April, 1881, was afterwards and before the recovery of the judgment upon which the action of William B. Whitney and another was commenced, recorded in the office of the clerk of the county of Kings. And ■that record of it by force of chapter 779 of Laws of 1868 rendered it a valid mortgage, not only upon the real, but also upon the personal property included in it. For its consideration and good faith have in no manner been assailed or impugned in this action. And that it was lawful to include in the mortgage property designed to be afterwards acquired by the railroad company was held in Benjamin v. Elmira, etc., Railroad Company (49 Barb., 441); Hoyle v. Plattsburg, etc., Railroad Company (51 Barb., 45). After the commencement of the action to foreclose the mortgage, and on the 5th of July, 1883, the appellant was, by an order of this court, also appointed receiver of the property mentioned and described in the mortgage, and he qualified as such and entered upon the discharge of his duties upon the following day. To the extent of the incum-brances created by the mortgage he became invested under the order with all the property, franchises and interests of the railroad company for the benefit of its bonded creditors.

On the 21st of February, 1883, William B. Whitney and Mahlon S. Kemmerer recovered a judgment against the railroad company for $3,463.51 for goods sold and delivered. An execution was issued upon the judgment to the sheriff of the county of New York, in which the company had 'its principal office or place for transacting general business. The execution was returned unsatisfied, and an action was then commenced by these creditors to sequestrate the property of the company and for the appointment of a receiver with the usual powers and duties. During the pendency of the action, and on the 2d of July, 1883, George EL Henry was appointed such, receiver, and he qualified and entered upon the discharge of his duties upon the day following. On the 7th of July, 1883, a judgment was entered in the action and the receivership of George EL Elenry was made permanent. And as, far as he was able to do so, he took possession of the office, books and property of the railroad company.

When these proceedings were taken the company had not constructed its road to such an extent as to be able to put any portion of it in profitable operation, and the receiver appointed in the foreclosure action had no funds to proceed with its further construction. An application was made by him to a Special Term of this court in Kings county for liberty to issue certificates of indebtedness as receiver for a sum not exceeding in the aggregate $61,500 for the construction and completion of the railroad under a contract authorized for that purpose. This application was- successful, and the certificates were allowed to be issued, but in no case to exceed in the aggregate $100,000. The contractor in the first instance agreed to receive the certificates, and proceed with the construction of the railroad, but after ascertaining that George H. Elenry had been appointed receiver in the action prosecuted by the judgment creditors, who claimed by virtue of his appointment the property of the company, he declined to do so, and it is to relieve the case of this embarrassment that the motions "were made by the receiver, in the foreclosure action, to vacate the order appointing George H. EEenry receiver, and the orders afterwards made practically on the basis of that application. The motion proceeded substantially upon the ground that the order appointing George EE. Henry receiver, and the judgment continuing his appointment were unauthorized, and void, because of the omission to serve the motion papers upon the attorney general. And if that position was well taken, the receiver in the foreclosure action-had the right to make the application, although be bad not in any form been made a party to the creditors’ action. For if the order or judgment was for any reason inoperative or void and it interfered with, and injuriously affected him in the discharge of his duties as receiver, for that reason he had the right to apply to the court to be relieved from it (Gould agt. Mortimer 26 How., 167), and that it did interfere with him to his prejudice in the discharge of his duties, and the exercise of his authority, was evident from the fact that it tended to discredit the certificates of indebtedness which by the order of the court he was permitted to issue to insure the completion of the railroad.

The application which was made to vacate the order appointing George H. Henry receiver in the creditors’ suit, was entertained by the court but the point upon which it was presented was not decided. This was prevented by a motion afterwards made on behalf of the judgment creditors to obtain an order, upon notice to the attorney general, confirming what 'were resisted by the receiver in the foreclosure action as a void and unauthorized order and judgment. The proceeding for this purpose was commenced after the other motion had been argued and submitted. It was brought on under a notice to show cause, made on the 27th September, 1883, and returnable on the twenty-ninth. But the hearing was not delayed even to that date, for it was brought on by the appearance of the counsel for the creditors, and the representative of the attorney general, on the 28th of September, 1883, and without opposition an order was then made confirming the order and judgment under which George H. Henry had been appointed as receiver, as of the preceding time when they were made and entered. This order, on the following day, was brought to the attention of the judge presiding at the time when the motion still under consideration had been made, and it was substantially because of the effect given to the order obtained on the twenty-eighth jof September, that the application of the receiver in the foreclosure action to vacate the appointment of George H. Henry as receiver, was denied. In the proceedings to subject the attorney general to the order and judgment appointing and continuing George H. Henry as receiver, the receiver in the foreclosure action, in whose behalf the motion'which! had been previously argued and submitted was made, was in no form brought in as a party. The order to show cause was not directed to him or his attorney, neither was it served upon either of them, and no notice whatever of the proceedings was given to either, but it was evidently taken, and the motion brought on, without the knowledge of himself or his attorney, for the purpose of over-reaching and defeating the motion at that time awaiting the decision of the court. In this form it was certainly a very improper proceeding, and one that cannot be countenanced by any court charged with the duty of maintaining the orderly administration of the law. The receiver in the foreclosure proceedings had, by the motion previously made and submitted, become a party to that extent to the creditors’ action, and was legally entitled to notice of any of the proceedings which might afterwards be taken for the purpose of rendering his application unsuccessful. And this circumstance necessarily deprived the order of the 28th of September, 1883, of all practical effect in the case. The receiver in the foreclosure suit would not, under any acknowledged principle of the law, be bound by this order as long as neither himself nor his attorney had notice of the application which was made for it. No such effect, therefore, could properly be given to this order, as it was allowed to have by, securing the denial of the preceding motion which had been heard and submitted in August, 1883. That motion had been finally heard and submitted for decision before the order of the twenty-eighth of September, or the proceedings on which it was obtained, had any existence. The creditors in whose interest it was obtained liad no legal right to submit it to the justice having the preceding motion under consideration for the purpose of influencing the determination of that motion. This was done in the absence, and without the knowledge of the receiver in the foreclosure action or of his attorney, and it resulted in securing a denial of the motion which had previously been argued and submitted. Such a practice cannot be too strongly condemned. No such effect could legally be given to the order obtained in this manner as it was allowed to have in the disposition of the motion, and for that reason the merits of the application are required to be considered precisely in'the same manner as though this order had not been obtained and submitted to the learned justice having the preceding motion then under consideration.

- The motion to vacate the order by which George II. Henry was appointed receiver, proceeded upon the omission of the creditors to. comply with section 8, chapter 378 of the Laws of 1883. It has been urged by wray of answer to this objection that the receivership, in a creditors’ suit of this nature against a corporation, was not within the spirit or intent of this section. But by its terms this section was made to include an action for the dissolution of a corporation, or the distribution of its assets. Two classes of cases are plainly the object of this legislation, and the same reason which would justify legislation for the government of an action for the dissolution of a corporation, would suggest its propriety by way of controlling an action for the distribution of its assets. For in each case the property and assets of the corporation would be committed to the administration and disposition of the receiver. And • the same propriety would exist in subjecting a receiver appointed in a creditors’ action, to the watchful observance of the attorney general, as would require an action for the dissolution of a corporation to be placed under the same -supervision. If it was necessary or proper in one case, it was equally so in the other, and as the language made use of was entirely appropriate to include both, and they were equally within the mischief intended to be corrected, the section should be construed as attended with that effect. By section 1784 of the Code of Civil Procedure, the object to be accomplished by the creditors’ action is the sequestration of the property of the corporation and the distribution' thereof; and by section 1793 the judgment has been required to provide for a just and fair distribution of the property and of its proceeds among the fair and honest creditors of the corpoi’ation. And the mode of accomplishing this result is through the appointment of a receiver under the authority of section 1788 of the Code. The language made use of as descriptive of the object to be attained is identical with that of section 8, chapter 378'of the Laws of 1883, which was made to include an order or judgment for a distribution of the assets of the corporation. And in its enactment the nature and functions of such a receivership seem to have been within the intention and contemplation of the legislature. Before the receiver in the creditors’ suit, therefore, could be legally appointed, a compliance with this section of the act of 1883 was required on behalf of the judgment-creditors, and that they wholly failed to observe. This section of the statute declared that a copy of all motions and all motion papers and a copy of any other application to the court, together with a copy of the order or judgment to be proposed thereon to the court, in every action or proceeding then pending, or afterwards commenced, for the dissolution of a corporation or a distribution of its assets, should in all cases be served on the attorney general, in the same manner as provided by the law for the service of papers on attorneys who have appeared in the action; and it is further declared that any order or judgment granted in any action or proceeding mentioned therein, without such service upon the attorney general, should be void. The provisions are broad and sweeping in their terms’ and were intended by way of correcting and preventing abuses which at that time formed a subject of very general complaint in the administration and distribution of the property of insolvent corporations. And as this section was not complied with, cither in the proceedings for the temporary appointment of Henry as receiver, or his permanent appointment under the terms of the judgment, both appointments within the terms of this section were void. This is plain and unequivocal language, and the courts are required to give it effect according to the import of the terms made use of. Anderson v. Roberts (18 Johns,, 514) contained nothing in conflict with this conclusion. It was said in the opinion of SpenoeR, C. J., in that case, that a thing is void which is done against law at the very time of doing it, and where no person is bound by the act.” (Id., 527, 528.) The acts in controversy were acts of this character, and it was the evident purpose of this section of the statute to render them utterly ineffectual, where what has been so plainly directed shall not be observed. The service of the papers upon the attorney general was made jurisdictional and a failure to make such service' could not probably be corrected without an entirely new proceeding.

The motion which was made was an appropriate means of setting aside and vacating the void appointments. (Attrill v. Rockaway B. Imp. Co., 25 Hun, 376.) And from the order denying the application the appeal was regularly brought to secure its reconsideration and correction. (Seaman v. Whitehead, 78 N. Y., 306-308.)

A receiver appointed in a creditor’s, action of the nature of that now in controversy, has been declared to have all the powers and authority conferred, and is made subject to all the duties and liabilities imposed upon a receiver appointed on the voluntary dissolution of a corporation. (Code Civil Pro., § 1788.) The Code itself has not otherwise defined the powers, authorities and duties of such a receiver, and the preceding law, therefore, still remaining in force, is required to be consulted to ascertain these powers, authority and duties, and that law has been added by what is designated as appendices A, and B, of the Code of Civil Procedure.

And by that law such a receiver has been invested with the powers and authority, and subjected. to the obligations and duties designated by what is there given as section 42, appendix B. And by the succeeding section 67 of the same appendix, such receivers are declared to be vested with all the estate, real and personal, of such corporation, and are also further invested with the power and authority conferred by law upon trustees, under an assignment of the estate of an insolvent debtor, as they have been defined iu chapter 5 of the second part of' the Revised’ Statutes. Both the order and judgment making the appointment of Henry as receiver exceeded the bounds of this authority. For beyond investing him with the property, contracts, things in action, and effects of the corporation, they in terms invested him with the stock, bonds and franchises of the corporation, for which there was no authority either in the original appointment, or the continuance of the office of the receiver. What the creditors were entitled to through the intervention of their receiver, was the property, real and personal, things in action, contracts and effects of the corporation, so far as they were owned by it at the time of his appointment. And this property could not legally include that which by the force and effect of the mortgage had been charged as security for the bonded indebtedness of the railroad company. To that extent, as the mortgage itself has not been assailed, it was a legal and valid encumbrance upon the property of the railroad company, and in the action-brought to foreclose it, the court was empowered to appoint a receiver to take charge of all the property, franchises and effects included within the terms of- the mortgage. Over that subject the creditors, by means of their suit, had no control. For the title had, previous to their judgment, been so far encumbered in favor of the trustee named in the mortgage for the bénefit of the bonded creditors of the company, For this reason also the order and judgment directing the appointment of Henry as receiver, and his continuance in the •office, required to be corrected and so limited in any event as to restrict his receivership to the property, contracts and effects of the company not included in nor encumbered by the mortgage. And'as that will secure the complete protection of the receiver appointed in the foreclosure action, it is probably as far as the court in these proceedings can be required to go in correcting the order and judgment in the creditors’ suit. To that extent certainly the receiver under the mortgage is entitled to be relieved for. the purpose ■of rendering his functions and office as efficient as they,.are required to be to carry into effect die security of the mortgage; Beyond that this receiver has no interest in resisting the 'proceedings prosecuted by the judgment creditors.

It has been suggested that as no notice was given to the attorney general of the application for the appointment of a receiver in the foreclosure suit, that the order for his appointment was inoperative under section 8, chapter 378 of the Laws of 1883. But that result does not follow from the omission to serve the motion papers for his appointment upon the attorney general, for he was not appointed .a receiver in an action or proceeding for the dissolution of the corporation or the distribution of its assets; and they are the only .actions or proceedings in which the motion papers are required to be served upon the attorney general.

The authority to make his appointment as receiver is derived irom the mortgage, and its object was to secure to the bonded creditors the benefit and effect of the mortgage security. With such a receivership these provisions of this part of the statute seem to have •nothing to do.

The orders from which the appeals have been • taken denying the motion made by the receiver, appointed under the mortgage, should be reversed, with the usual costs and disbursements, and the order and judgment appointing Henry as receiver should both be corrected by striking out from the order the words its stocks, bonds and franchises,” and by striking out the same words from the judgment entered in the creditors’ action, and the appointment of Henry ■should also be restricted to such property of the corporation as has mot. been encumbered by the mortgage or to the property and effects of the corporation subject to the mortgage, and the rights of the appellant in them under his appointment, for that is the utmost extent to which the creditors are entitled to the proceeds of the corporate property. The creditors under the mortgage hare the paramount right of payment, so far as it extends, and the creditors under the judgment are necessarily, therefore, restricted to whatever surplus of proceeds there may be afterwards remaining after the payment of the mortgage, and to the property of the corporation not encumbered by the mortgage. The appellant should be allowed the usual costs of the motion, but no- order should be made in any form sanctioning or approving the residue of such order and judgment.

Davis, P. J., and Beady, J., concurred.

Order denying motions made by the receiver, appointed under the mortgage, reversed, with ten dollars costs and disbursements. Order and judgment appointing Henry as receiver modified as directed in the opinion.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    WILT W. NORRIS and HATTIE NORRIS, Infants, etc., Respondents, v. HENRY D. NORRIS, Appellant.

      Transfer fraudulently procured from a testatrix — rigid of a devisee to hare it set aside — an aotion will lie by him although the will has not been proved — a Surrogates’ Court has no jurisdiction over such an action.

    The plaintiffs, devisees and legatees, under the will of one Eliza Wilt, brought' this action to set aside a transfer and conveyance made by her of property which by the terms of her will was in part devised to the plaintiffs. The complaint alleged that the transfer was made after the execution of the will, and that it was improperly and unlawfully obtained by the defendant while sustaining such relations to the deceased as prevented him from lawfully acquiring title to it from her; that the will was not revoked by the testatrix, but passed into the possession of the defendant, who was named therein as an executor thereof, and that the same had never been proved before any surrogate.

      Held, that the plaintiffs could maintain the action.
    ■ That the fact that the will had not been proved before the surrogate did not prevent them from so doing, as its due execution and validity might be proved upon the trial of this action.
    That the relief sought in this action could not be obtained in a Surrogate’s Court, as it had no jurisdiction over such an action.

      Appeal from an interlocutory judgment, entered upon an order overruling a demurrer to the plaintiffs’• complaint.

      Sullivan & Cromwell, for the appellant.

      William G. Choate, for the respondents.
   Daniels, J.:

The action was brought by the plaintiffs as legatees and devisees under the will of Eliza Wilt, to set aside the transfer and conveyance by her of property which, by the terms of the will, was in part devised to the plaintiffs. The transfer and conveyance of it to the defendant after the making of her will, are alleged by the plaintiffs' to have been improperly and unlawfully obtained from her, while he himself sustained such relations to her in the management of her estate as precluded him from acquiring title to it in the manner in which that was"alleged to have been obtained,: The will, it is alleged, was not revoked by the testatrix during her lifetime, but passed into the possession of the defendant who is named as executor therein It never was proved 'before the surrogate, and chiefly for that reason the right of the plaintiffs to maintain the action has been denied. But if the will had been formally proved, that circumstance would not have aided the plaintiffs in maintaining their action, for whatever title they may be able to make to the real estate must be derived from the will itself, and not from any proof which might be made to establish it before the surrogate. The proof of the will, so far as it related to the real estate, under the statute, would have been of no legal assistance or service to the plaintiffs further than to' supply presumptive evidence in favor of its validity. Before the enactment of the statute providing for the proof of wills in surrogates’ or other courts, no proceeding of that nature was essential to the light of a party to maintain sucli an action. But the right could well be asserted under the provisions of the will and proof of its execution might be made as a part of the evidence in the action for the recovery of the property or the establishment of the rights claimed to be secured or created under it. (1 Greenleaf on Evidence [5th ed.], § 672.) And such appears from adjudged cases to have been the course adopted in legal proceedings instituted for the recovery of real property where the right had been derived under the terms of a last'will. (Jackson v. LeGrange, 19 Johns., 386; Jackson v. Hasbrouck, 12 Id., 192; Jackson v. Luquere, 5 Cow., 221; Jackson v. Vickory, 1 Wend., 407; Jackson v. Christman, 4 id., 278; Bogardus v. Clark, 4 Paige, 623.) By no provision of the statute conferring authority to take proof of the execution of a will has this preceding right secured by the common law been taken away, and the party therefore whose title to real property is dependent upon a will may still proceed in that manner, although the will itself may not have been formally proved before the surrogate.

The object of the action is to set aside the transfer and conveyance of property which.it has been alleged was illegally obtained in violation of the rights secured to the plaintiffs by the will, and over that subject the jurisdiction of the surrogate has in no form been extended. His jurisdiction has been defined by statute, and no statutory provision has so enlarged it as to enable him to entertain a controversy of this description. (Code Civil Pro., §2472). Even if the will had been proved, therefore, relief could not have been obtained by any proceeding in the Surrogate’s Court by the plaintiffs. They would still have been obliged to brjng an action in another court having jurisdiction over the subject, to set aside what are alleged by them to have been unlawful conveyances of the property of the testatrix obtained by the defendant in violation of their rights. The proof of the. will would simply have aided them so far as to enable them to read it in evidence without further proof on the trial. Beyond that, proving it before the surrogate would have been of no possible benefit to them. And as the common law, under its well settled course of practice, will allow such proof to be given in actions regularly brought in other courts for relief which could not be obtained in the Surrogate’s Court, and that has not been in terms superseded or changed by statute, the proof may still be made in that manner for the purpose of sustaining the validity of the will and securing the relief invoked by the action.

The demurrer necessarily admits, for all present purposes, the allegations of the complaint, and that shows the proper execution of the will, the interest in the property provided by it for the plaintiffs, and the defeat of its provisions by the unlawful and improper conduct- of the defendant. These facts, together with the others contained in the complaint, are sufficient to constitute a cause of action entitling the plaintiffs to relief. The demurrer, therefore, was properly overruled, and the judgment from which the appeal has been taken should be affirmed, with the usual costs.

Brady, P. J., concurred.

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

Judgment affirmed, with costs.


author: Daotels, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. LOUIS D’ARGENCOUR, Appellant.

      Forgery in' the second degree — the indictment must allege an intent to defraud— Penal Oode, sec. 511 —incorporation of a foreign bank — how it may be proved on the trial of an indictment for forging its notes — the court will take judicial notice of the legal relations existing between foreign counti-ies.

    An indictment for forgery in the second degree, under section 511 of the Penal Code, must allege that the acts were committed with an intent to defraud.
    Where the indictment does not contain this allegation, the objection must be taken by a motion in arrest of judgment made, as prescribed in section 469 of the Code of Criminal Procedure, either before or at the time when the defendant is called for judgment.
    Upon the trial of one indicted for forging bank notes, in the form and similitude of those issued by a bank situate in and incorporated under the laws of a foreign country, the law under which the bank was incorporated need not be produced or proved upon the trial. The incorporation. of the bank can be proved for the purposes of such a trial by a witness who knows the fact, or even by general reputation.
    The court will take judicial notice of the fact that the island of Cuba is a dependency of the kingdom of Spain, and subject to its government.
    Appeal from a judgment of the Court of General Sessions convicting the defendant of the crime of forgery in the second degree.

      John U. McKinley, for the appellant.

      John Vincent, assistant district attorney, for the people.
   Daotels, J.:

The conviction took place on the first count contained in the indictment. That was in the following form: The grand jury of the city and county of New York, by this indictment accuse Louis D’ Argéncour of the crime of forgery in the second degree, committed as follows: The said Louis D’ Argencour, late of the city and county of New York, on the twenty-eighth day of September, in the year of our Lord one thousand eight hundred and eighty-two, at the city and county aforesaid, with force and arms feloniously made and engraved, and caused and procured to be made and engraved, a plate in the form and similitude of a promissory note issued by El Banco Español de la Habana, for the payment of fifty centavos, the said El Banco Español de la Habana being a bank incorpo" rated under the laws of a foreign country, to wit, under the laws of the kingdom of ' Spain, without the authority of the said bank, against 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.

And in support of the appeal it has been objected that this count was substantially defective because of the omission to aver an intent to defraud. As the statute was framed under which the indictment was found an averment of this' intent seems to have been essential, for the acts charged only constitute an offense when they have been committed with the intent to defraud. (Penal Code, § 511.) This section declares these acts to be a crime only when they have been committed with the intent to defraud. And that intent may, by subdivision 5, section 718, be averred in general terms without alleging an intent to defraud any particular person, but it clearly contemplates the necessity of such an averment. Without it the indictment was probably defective, and on account of that defect a motion might have been made in arrest of judgment. (Code Crim. Pro., §§ 467 and 323, sub. 4.) But if it was designed to take advantage of this defect, section 469 of the' Code of Criminal Procedure required the motion to be made for that purpose before or at the time when the defendant was called for judgment. No motion was then made on that ground in the case. A motion in arrest of judgment and for a new trial was made, but it was confined to the exceptions taken at the trial and to the judge’s charge, and did not, therefore, include this defect. The defendant, consequently, by his own act, deprived himself of the right afterwards to complain that the indictment was defective for want of an averment of an intent to defraud.

The law by which the bank mentioned in this count of the indictment had been incorporated was neither produced nor proved upon the trial, and on account of that omission a motion was made for the acquittal of the defendant. But it was not necessary that the law should, be produced to prove the fact that the bank had probably been incorporated. This point was considered in People v. Davis (21 Wend., 309), where it was concluded that the most general evidence of the incorporation of a foreign bank would be sufficient upon the trial of an indictment of this description. The same point was also considered in Sasser v. State (13 Ohio [Stanton], 453), and in Reed v. State (15 Ohio [Griswold], 217), where the same doctrine was also affirmed. And it was held that the incorporation of the bank could legally be proved for the purposes of the trial by a witness who might know the fact, or indeed even by general reputation.

This fact was proved in this manner by the witnesses Oeballos, who had been in the bank at Cuba, and testified to the fact of its existence, the issuing of bills by it which were received and circulated as money, and that it was an incorporated institution, and by McDonough, who was an engraver connected with the American Bank Note Company, which had engraved the plates from which the notes were printed, and which plates were then in the vaults of the American Bank Note Company. The testimony given by these two witnesses was ample for the submission of the point to the jury whether such a bank as was mentioned in the indictment existed and did business as a corporation at Havana, in the island of Cuba.

'That this bank issued notes of the same description as the plate found in the defendant’s possession, was also proved by the production of such notes and the testimony of these witnesses. The plate was not entirely complete, but sufficiently so to render it certain that it was designed to be used in printing notes of the description of those issued and circulated by the bank. The description' given of it by the witness Drummond fully established that to be the character of the plate. It was not entirely completed, but as far as that had been done it bore unmistakable evidence that it was intended to be used in printing these notes.

The circumstances which were proved in the case very satisfactorily connected the defendant with the manufacture and production of the plate. The plate itself, as well as the tools and implements which were traced tó his possession with a reasonable degree of probability, indicated that he was engaged in this business, and the evidence of his own witness, Seberce, confirmed this conclusion, for he endeavored to show by him that he had been in fact employed by some stranger to manufacture the plate upon the assurance that he was an agent of the Cuban government. This interview may have taken place without exonerating the defendant from the consequences of his act, for he could have had no good reason to suppose that in the performance of such a service it was intended for anything else than to defraud the public or the bank by means of the manufacture and circulation o* spurious currency.

The evidence did disclose the fact that the plate was made without the authority of the bank, for its own plates had been manufactured by the American Bank Note Company, which retained their possession. And there was not the - slightest probability that the defendant would have been employed by it or’ under its authority to reproduce another sample of this plate.

That the island of Cuba is a dependency of the kingdom of Spain and subject to its government are facts generally accepted and known, and the court could, therefore, take judicial notice of their existence. It was not necessary that they should be proved, for courts will generally take notice of whatever ought to be known within the limits' of their jurisdiction. (1 Greenleaf Ev. [7th ed.], § 6; Smith v. N. Y. Central R. R. Co., 43 Barb., 225; People v. Snyder, 41 N. Y. 397.)

And that the court may act upon its own knowledge of the existence of foreign governments seems to be practically assumed in the enactment of the subdivision of section 511 of the Penal Code, upon-which this indictment was presented. The case of Sanabria v. People (24 Hun, 270) is not an authority upon either of these points which can afford any support to this appeal. But so far as it goes it sustains the views upon which the trial took place.

Yarious exceptions were taken to the charge of the court, and to .its refusal to charge or repeat propositions which had been submitted but neither of them can be of the least assistance to the defendant. They, as well as the other points raised, were properly disposed of at the trial, and as the case was presented and determined no legal ground can be found for interfering with the result. The judgment should, therefore be affirmed.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed.


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    JOHN DALY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Murder in fhe second degree — an intent to hill must be shoxon to sustain a eowoietion.

    Upon a Sunday evening the defendant and four other persons, all more or less under the influence of liquor, assaulted one Daly, threw him down, struck him with a stone and cut him with knives. Daly had been drinking with them, and the cause of the disagreement was not shown, nor was there any evidence to show that they intended to kill him. The wounds and cuts inflicted were not considered, by the physician who attended him, to he of a dangerous character. He died the next night, and a post mortem examination showed that his death resulted from meningitis, and that his disease had probably been produced by an injury to his head resulting from the blows or a fall.

      Held, that there was no evidence from which a jury could infer an intent to kill with sufficient certainty to sustain a' conviction of murder in the second degree.
    Weit of error to review tbe judgment of the Court of General Sessions of the county of New York, by which the plaintiff in error was convicted of the crime of murder in the second degree and sentenced to imprisonment in the State prison for life.

      Wm. F. Kintzing, for the plaintiff in error.

      John Vincent, assistant district attorney, for the defendants in error.'
   Daniels, J.:

At the close of the trial and before the cause was submitted tO' the jury, the court was requested to hold and direct them that the defendant could not be convicted of the offense charged against, him, in different counts of the indictment, as murder in the second degree, This was refused and exceptions were taken to the decisions on behalf of the defendant. By the evidence it was made to appear that the defendant and four other persons, together assaulted and beat the deceased They had him down upon the street; one of them struck him with a stone and others cut him with knives.

"What caused their disagreement. out of which this assault upon him originated, did not clearly appear. They all drank together, and Daly and the deceased scuffled together. He was also knocked down, and at least three of these persons were engaged in beating and cutting him while he was down. In doing this a stone was used by one of them, and knives by the others. But out of their preceding relations no evidence was given indicating that the assailants had any motive, or that it was any part of their design, to kill the deceased. The weapons and stone made use of were not applied in such a manner as to be evidence that they entertained that design, for none of the wounds made upon the deceased, as they were described, were so aimed or serious as, in the judgment of the first physician who was called and dressed them, could possibly be attended with the death of the deceased. "While he had been struck upon his head, and wounds inflicted by cuts upon his body, they were neither of them, nor altogether, considered of a dangerous character, and were inflicted evidently more for the purpose of punishing the deceased on account of some unexplained disagreement, than with any intention to produce his death. This assault took place upon a Sunday night and he died the next night. A post mortem, examination was made of his body, and it was found that he had died from what was stated by the surgeon to be meningitis. His statements of the wounds confirmed the description given by the physician who first examined and treated the deceased. But he added further, that it was probable that this disease had been produced by an injury to the head from the blows it had received, or from a fall; that under the circumstances they were likely to have been the cause developing this disease. But after allowing all the weight that can be given to the evidence of the surgeon making this final examination, nothing can be held to have been added to the case which would sustain the conclusion that in the blows which were inflicted, the defendant, or either of his associates, was actuated with the design to take the life of the deceased. It is highly probable that as they were all more or less affected by drinking, that some common cause of disagreement arose between them, as is frequently the case with persons stimulated in this manner, leading them into the fight with the defendant, and that this was produced by such a provocation as induced them severely to chastise him, without intending to kill him. It was what may be called a drunken brawl, not infrequently resulting in more serious consequences than either of the persons engaged in it intend or expect. Neither the acts themselves, nor the instruments made use of, nor the wounds inflicted upon the body, with any reasonable degree of certainty, will sustain the conclusion that there was any intention on the part of either of the assailants to kill the person so assailed. The court, therefore, should have directed the jury that the defendant could not be convicted of the crime of murder in the second, degree, for the existence of an intent to kill is indispensable under the statute to the commission of that offense. The offense committed by these persons was clearly one of manslaughter, not that of murder.

The judgment should therefore be reversed and a new trial ordered.

Ready, P. J., concurred.

Present — Bbady, P. J., and DaNiels, J.

Judgment reversed, and new trial ordered.


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    ALICE J. TIERS, Appellant, v. ALEXANDER H. TIERS, Respondent.
    Will— trusts — when the power of alienation is not unlawfully suspended — when the validity of a trust cannot be passed upon, because the persons to be affected by the decision cannot be ascertained and made parties.

    Tlie defendant’s testatrix devised all' her residuary estate to her executors and directed them to divide it into six equal parts, and to invest and hold four of the said equal six parts in trust for four of her children, the income thereof to he paid to them severally during their respective lives. Upon the death of any child the share held for it was to be conveyed and transferred to its children on their attaining the age of twenty-one, and to the lawful issue of any such children who may be deceased at the time of their parent’s death; but if any such child should die before the age of twenty-one without leaving lawful issue, then its share should become and form part of the residuary estate for the benefit of all the children, in the same share and under the same trusts and limitations as were provided in the will, in all respects as if such share or portion had been included and formed part of the original division.
    The succeeding clause of the will provided that in case either of the said children died without issue, but leaving a husband or wife surviving, then the net income of the share of the child so dying should be paid to the surviving husband or wife during his or her life, the principal of the share to he divided upon his or her death according to the terms of the will.

      Held, that the main trust, providing for the payment of the income of each share to one of the children for life, and for the transfer of the principal thereof, after the child’s death, to his issue, or in default thereof to the survivors as a part of the residuary estate, was valid.
    That the validity of the provision made for the support of a surviving husband or wife could not be determined in this action, as such surviving husband or wife was not, and could not, he made a party thereto, and was not represented by any of the other parties.
    Appeal from a judgment dismissing the complaint, entered upon the trial of this action at a Special Term.
    The defendant’s testatrix Esther L. Tiers left her surviving six children, her only heirs-at-law, viz., Edward ~W., Francis H., Agnes L., Joseph L., Cornelius and Alexander, all of whom were of full age. The plaintiff, the assignee of Joseph L-, brought this action to have the will set aside. The portion of the will alleged to be invalid was contained in the third and fourth clauses. By these clauses the testatrix devised all the residue of her estate to her executors “ in trust, nevertheless to divide the same into six equal parts, and to grant convey, assign and transfer one of said equal six parts to my son Cornelius Tiers, his heirs and assigns, absolutely, and another of said equal six parts to grant, convey, assign and transfer to my son Alexander H. Tiers, his heirs and assigns, absolutely, and the remaining four equal sixth parts to lease or invest the same, or the proceeds thereof, and •to keep the same leased and invested, and receive and collect the net income thereof, and to pay and divide the same among my sons Edward W. Tiers, Francis H. Tiers and Joseph L. Tiers, and my daughter Agnes L. Miles, In equal shares equally during their several and respective natural lives, and so that the same shall not be liable for or subject to their respective debts, contracts or engagements, .not subject to the control of any'husband my said daughter Agnes L. Miles may at any time have, and upon their several and respective deaths to convey, assign and transfer the shares of the principal of my said residuary estate, producing the income of the one so dying to his or her child, or children, upon their arriving at the age of twenty-one years, and to the lawful issue of any such children who may be deceased at the time of his, or her or their parent’s death; but if any such children should die before the age of twenty-one years, and without leaving lawful issue, then the share or portion of the one so dying shall become and form part of my residuary estate for the benefit of all my children, in the same share and under the same trusts and limitations as are provided in this clause of my will, in all respects as if such share or portion had been included and formed part of the original division. In the event of either of my sons, Edward W. Tiers, Francis H. Tiers or Joseph L. Tiers, dying without issue, but leaving a wife surviving, then the net income of the share of the one so dying shall be paicj. to their surviving wife during the term of her natural life, if she shall so long remain a widow, but upon the marriage or decease of such widow the principal producing such income shall be divided according to the terms of this my will; and if my daughter Agnes L. Miles shall die, leaving her husband surviving and no children, the net income of her share shall be paid to him during his natural life, and after his death the principal producing such income shall be divided according to the terms of this my will.”

      Edward Gebhard, for the appellant.

      li. D. Harris and Ludloio Ogden, for the respondent.
   Daniels, J.:

This case was brought under authority of section 1866 of the Code of Civil Procedure, to determine the validity and construction of a will for the testamentary disposition of her property, made by Esther L. Tiers, deceased. The plaintiff was not one of the beneficiaries under the will, but claimed to be entitled to a portion of the property affected by it, under an instrument delivered to her by her husband in form conveying and transferring his interest in the devised propei’ty to her, and to maintain the action she insisted that the devise of the estate of the testatrix to the executors and trustees named in her will was void, and that she was entitled to recover an undivided sixth interest in the estate. This position was taken by her upon the ground that the will provided for an unlawful suspension of the power of alienation in the property which the testatrix, by means of it, devised to her executors. At the time of her decease, she left her surviving five sons and one daughter, and she devised to each one of two of her sons an equal sixth part of her estate. The remaining four-sixths were devised in trust to the executors to keep the same leased, and receive and collect the net income thereof and pay and divide it among her other three sous' and her daughter in equal shares during their several and respective natural lives, and upon their several and respective deaths to convey, assign and transfer the shares of the principal producing the income of the one dying to his or her child or children, upon their arriving at the age of twenty-one years, and the lawful issue of any such children deceased at the time of his or her or their parents’ death. If was further declared that if any of such children should die before the age of twenty-one years without leaving lawful issue,, then the share of the one dying should become and form part of the residuary estate for the benefit of the children of the testatrix, in the same share and under the same trusts and limitations in all respects as if such share had been included and formed part of the original division. These directions, under the statute, made a legal disposition of the property of the testatrix for and during the period of the respective lives of her children. It was a valid trust, for the executors were to receive the rents and profits during the lives of these designated persons and apply them to their respective use and maintenance. (2 R. S. [6th ed.], 1106, § 55, sub. 3.)

These directions provided for no unlawful suspension of the power of alienation, for they divided the remainder of the estate •into shares, and one of these shares was expressly devoted to the benefit of each one of thebeneficiaries. And under the will the validity of the directions given must, be determined by their application to' these distinct and severed interests (Post v. Hover, 33 N. Y., 593; Monarque v. Monarque, 80 N. Y., 320); and by no possibility could these trusts, as to either of the shares, extend beyond the life of the person first to be benefited, and of the survivors contingently to be benefited in consequence of the decease of any one of the children mentioned before the age of twenty-one years, leaving no lawful issue. The income of each share in the first instance was to be applied to the support of the son or daughter for whom it was given to the executors, and upon the decease of either son or •daughter then his or her share was to be conveyed, assigned and transferred to his or her child or children upon their arriving at the age of twenty-one years, and the lawful issue of any such children who might be deceased at the time of his or her or their parents’ death. In this event the share would become absolutely vested on the decease of the son or daughter for whom it was created. And the trust accordingly for each share under this construction would ■extend only through the life of the person for whose benefit it was ■created. If, however, any of the children to whom this ultimate disposition is to be made shall die without lawful issue before the age of twenty-one years, then the share or portion of the one so dying is directed to be added to the residuary estate for the benefit ■of all of the testator’s children, in all respects the. same as if that part of the estate had been included in the original division. The effect of this clause would be to give to each of the survivors in trust, one-third of the share of the child or children who should fail to become entitled to participate in the property by his or her decease without issue, and before their arrival at the age of twenty-one' years, and that would extend the trust in that portion of the property of the testatrix during the respective lives of these surviving beneficiaries, but under the directions which were given the ■survivors would be entitled to the benefit of each share of the property so secured to them distinct and separately from, each other, and the consequence would therefore be that the trust controlled by this construction would not extend beyond the period of two lives in being at the time of its creation,, and it would not be in contravention therefore of any of the restraints of the statutes upon this subject. This would exhaust the estate as to the ■children of the testatrix, and as the directions given upon this subject are primary in their character, and separate and distinct and in no manner dependent upon any others contained in the will, these trusts would be valid and legal even if those afterwards directed cannot be carried into effect. (Harrison v. Harrison, 36 N. Y., 543.) And as they were legal, the trustees were disabled from conveying or charging the estate vested in them to sustain the trusts, and the persons beneficially interested were also disabled from assigning or in any manner disposing of their interests. (2 R. S. [6th ed.], 1110, §§ 76-78.) After the cessation or expiration of these trusts the child whose share shall be exhausted eán under these directions have no further interest whatever in the estate of the testatrix, and as the trusts to this extent are supported by the statute, no right or interest whatsoever was transferred to the plaintiff by the instrument executed and delivered to her by her husband.

The reason assigned in support of the proposition that the will provided for an unlawful suspension of the power of alienation was that on either of the sons or daughter dying without issue, then the trust was directed to be continued for the benefit and through the life of his or her surviving wife or husband as the case might be. And as the person so dying might marry a person not in being at the death of the testatrix, this direction might extend this part of the trust beyond the expiration of two lives in being at the decease of the testatrix, and therefore be in conflict with the provisions of the statute upon this subject. (2 R. S. [6th ed.], 1101, §§ 14, 15.) Whether this result might follow or not is not a point now to be determined, for if this direction is unauthorized then the estate of the son or daughter so dying will vest in the legal heirs of the testatrix as an absolute legal estate. And to recover it or determine the right to it, the surviving wife or husband of the deceased owner of the share would be a necessary party to the controversy. And as that person may not now be living and consequently cannot be made a party to this action, the determination of the controversy must be relegated to that time.

It is not now and cannot be a point before this court. It may never arise, and will not unless the persons entitled to the rents and profits of either of the shares shall die without a child or children to whom the share can be absolutely transferred. As the case now stands, that contingency is too remote for consideration, and whether it will arise or not can only be known after the decease of one of the persons provided for by the will, and that decease taking place without issue. For all the present purposes of administering the estate, it has been legally vested in the executors and will continue so during the life of the person for whom each respective share has been provided by the will, or for whom any contingent interest has been declared dependent upo the decease of any of his or her children without lawful issue before the attainment of the age of twenty-one years.

The judgment was warranted by the circumstances and it should be affirmed, with costs.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed, with costs.


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    THE TORONTO GENERAL TRUST COMPANY, as Trustee, Appellant, v. THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Respondent, Impleaded, etc.

      Cause of action — where it arises— Code of Civil Procedure, section 1780, subdivision 3 — when the court has jurisdiction of an action between two foreign corporations.

    One Muirliead, as trustee under the will of Gr. H. Dunscomb, bad caused 295 shares of the capital stock of the defendant, which came into his hands as trustee, to be transferred upon the books of the defendant at its transfer agency in the city of Dew York. The trustee died insolvent, whereupon the plaintiff, a foreign corporation, was appointed his successor in proceedings instituted for that purpose in the High Court of Chancery of the Province of Canada where the will had been proved. This action was brought to recover the said shares of stock, with the dividends that had been declared thereon, upon the ground that Muirhead had no power to cause such transfer to be made, and that the defendant and the transfer agent knew that he had no authority to make the transfer at the time of his making it.

      Held, that although both the plaintiff and defendant were foreign corporations, the court had jurisdiction over the action, under subdivision 3 of section 1780 of the Code of Civil Procedure, as the cause thereof arose in this State.

      Hibernia National Bank v. La Combe (81 N. Y., 367) followed.
    Appeal from an order made at a Special Term setting aside the service of a summons on a director of the defendant, a foreign corporation.

      F. K. Pendleton, for the appellant.

      Elihu Foot, for the respondent.
   Daniels, J.:

The summons was regularly served upon one of the officers of the corporation, as that 'was authorized by section 432 of the Code of Civil Procedure, and it could only be set aside in ease tlie court had no jurisdiction over the subject matter of the action. The subject matter disclosed by the complaint as the cause of action was that the defendant through its transfer agency, the National Bank of Commerce in New York, had transferred on the books of the Company, and issued certificates therefor, certain shares of the capital stock 'of the appealing defendant, belonging to the estate of George Hoyles Hunscomb. By his will this stock had been bequeathed to Charles H. Muirliead as trustee to collect the income and pay the same to the widow of the testator, and after her decease to sell and dispose of the shares with other property of the testator, and pay the principal over to his child or children. Under the terms of this will it is alleged that the trustee , became possessed of 295 shares of the capital stock of the defendant and that at his instance the transfers of them were made upon the books of the corporation through this local agency at the city of New York. That at the time of such transfer this defendant as well as the other defendant, the transfer agent, had notice of the terms of the will and the powers conferred by it upon the trustee, and that he was not authorized or empowered to sell or dispose of such securities while the wife of the testator was living. And that she was at that time living and that the transfer of these shares was wrongful. That the trustee nominated in the will afterwards died and by means of proceedings taken in the High Court of Chancery of the Province of Canada the plaintiff had been appointed the successor in and for the execution of the trust, and this action was brought by it to recover from the defendant the 295 shares of stock with the dividends thereon since their unlawful transfer and after a demand for that purpose made upon each of the defendants. The preceding trustee is stated to have died insolvent and for that reason, if the plaintiff shall be unable to maintain this action, the estate committed to the care of the trustee will lose the amount or value of the stock.

The plaintiff is a foreign corporation existing in and under the laws of the province of Ontario, and its right to maintain this action against the respondent defendant, which is also a corporation formed and existing under the laws of another State, depends upon the point whether the cause of action set forth in the complaint arose within this State. The plaintiff’s title and right to rely upon it as a ground of action was derived under the will executed and a decree made in tbe province of Ontario. But those facts in reality constitute no part o.f the cause of action. They simply created the title upon which the right to maintain it has been asserted. The' cause of action itself consists of the facts which are alleged to have transpired in the city of New York between the trustees nominated in the will and the transfer agent of the respondent defendant. It was at this city that all these acts occurred, and that within the definition of the phrase “ cause of action ” which was approved in Hibernia National Bank v. La Combe (84 N. Y., 367, 384), constitutes the plaintiff’s cause of action. By that definition, the cause of action arises when that is not done which ought to have been done, or that is done which ought not to have been done.” And the place where the cause of action arises is the place where such acts are done, or are omitted. In this case the acts alleged, by which the estate was deprived of this stock, upon which the claim for its recovery o'r reimbursement lias been made, took place in the city of New York, and the cause of action disclosed by the complaint therefore arose here, and for that reason, within subdivision 3-of section 1780 of the Code of Civil Procedure, the plaintiff, although a foreign corporation, has the right to maintain an action upon it in this court. Neither Cushman v. Jewelry Company (76 N. Y., 365) nor Pollock v. National Bank (7 id., 274) is in any respect inconsistent with this construction of the allegations contained in the complaint. On the contrary, they are in entire harmony with the view that it should be held to have presented a. cause of action arising within this State. As the summons was regularly served 'upon one of the officers of the respondent defendant, the court could not regularly set it aside because of the want of jurisdiction over the subject matter of the action. The order should be reversed and the motion denied, but under the circumstances, with costs to abide the event.

Davis, P. J., concurred.

Present — Davis, P. J., Daniels and Haight, JJ.

Order reversed and motion denied, with ten dollars costs to abide-event.


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    KATE T. RYCKMAN, Appellant, v. GARRET W. RYCKMAN, Respondent.

      Attachment — what must be shown to authorize the issuing of one on the ground of the non-payment of alimony. ,

    To authorize the issue of an attachment against a defendant for refusing to comply with the directions, for the payment of alimony, contained in a judgment recovered against .him, it must be shown that a certified copy of the judgment has been served upon him and that a specific demand has been made for the amount alleged to be due.
    Appeal from an order made at a Special Term denying a motion made for. the punishment of the defendant for the non-payment of alimony recovered against him in an action for a limited divorce.

      John Henry Hull; for the appellant.

      Stephen W. Fullerton, for the respondent.
   Daniels, J.:

Under the authority of Park v. Park (80 N. Y., 156). the defendant would be liable to punishment for contempt for refusing to comply with the directions contained in the judgment for the payment of alimony; for it would be a disobedience of a lawful mandate of the court, and as such the proper subject of punishment by proceedings for a contempt. (Code, §§ 14, 2266.) But to subject him to such punishment under the authority of the provisions of the present Code, or of the practice preceding it, a certified copy of the judgment has been required to be served upon him and a demand for the money made upon him. (Code, §§ 1246, 2268.)

.When that may appear to have been done a case for an attachment will be made out. For it is only for the costs in such an action that an execution has been authorized to be issued. (Code, § 1769.) And where that process cannot be resorted to for the collection of a judgment, an attachment may be issued under the authority of section 1241 of the Code.

But by the affidavit which was made the foundation of the application, it was not made to appear either that a certified or any other copy of the judgment had been served upon the defendant, or that tbe amount claimed to have become due under its direction had been demanded of him. In both these respects the application was without legal foundation and because of their absence the motion to punish the defendant was properly denied. He could not under these provisions of the Code, which in these respects are substantially the same as the preceding law, be punished for a contempt simply because he had neglected to pay the alimony. And that is all the default charged against him by the affidavit-of the plaintiff. ' More than this has been clearly required. For' if the judgment itself has been properly served, a specific demand for the money alleged to be due must be made before a proceeding of this nature can' be successful. - "

The order from which the appeal has been taken should be affirmed, but 'as "the application is in favor of the wife, who is dependent upon the performance of the directions in the judgment, it should be without costs.

Davis, P. J., and Bisady, J\, concurred.

•Order affirmed, without costs, and without prejudice to another application.' ‘


author: DaNiels, J.:

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    WALTER J. WELCH, Appellant, v. EDWARD C. PLATT, Respondent.
    Appeal— does not lie from an order sustaining a demurrer — when the facts stated .in a complaint constitute hut a single cause of action.

    No appeal lies to the General Term from an order sustaining a demurrer to the complaint; the appeal must be taken from the judgment entered thereon.
    The complaint alleged, as a first cause of action, an usurious loan of money, and the execution and delivery of a chattel mortgage to secure it; that the' mortgage was void and that it should be surrendered and canceled. It then set forth, as a second cause of action, that the plaintiff owned certain articles of personal property which were included in the said mortgage; that the defendant, without process of law, wrongfully took this property from the possession of the plaintiff and unjustly detained it.

      Held, that the complaint set forth but a single cause of action, for the taking and conversion of the property. That the statements as to the loan and chattel mortgage were made to disclose the plaintiff’s title to the property, and amounted, legally, simply to an allegation of their ownership by him.

      Appeal from an order made at a Special Term sustaining a demurrer to the complaint.

      W. J. Hardy, for the appellant.

      William Wheeler, for the respondent.
   DaNiels, J.:

While an appeal has been taken from the order, and as such could not regularly be heard under the provisions of the present Code, it was agreed upon the argument by the counsel that it shoúld be considered an appeal from an interlocutory judgment, in order to have the point involved decided without any further delay.

The question therefore is presented whether the demurrer should have been sustained, as it was, on the trial at Special Term. The objection taken by it was that the complaint improperly united two causes of action. It set forth a usurious loan of money, the execution and delivery of a chattel mortgage to secure the loan, and alleged it to be void on that ground, and that it should be surrendered up and canceled. The complaint then proceeds to allege that the plaintiff was the owner of one sorrel gelding, two side bar wagons, one single and one double harness, which were included in the mortgage, and that the defendant without process of law wrongfully took this property from the possession of the plaintiff and unjustly detained it to the damage of the plaintiff in the sum of $3,000. These facts present but one cause of action, and that is for the taking and conversion of the property. The action has been brought solely for that, and the relief demanded is the recovery of its value. The preceding statements concerning the loan and the chattel mortgage are made to disclose the plaintiff’s title to the property and his right to maintain the action for its conversion. Legally it was no more tha,n alleging that the plaintiff was the owner of the property, for the taking and conversion of which the action was brought. Instead of making a brief statement of that fact, the circumstances themselves upon which it was intended to maintain it, are set forth in detail in the complaint. . But their effect was no greater than would have been a general allegation of ownership of the property, and together with the taking and conversion, presented but one cause of action. The case in this respect is within the principle of Lattin v. McCarty (41 N. Y., 107), and Smith v. Schulting (14 Hun, 52). And it materially differs from those of Higgins v. Chrichton (63 How., 354), and Sullivan v. New York and New Haven Railroad Company (1 McCarty’s Civil Pro., 285). There would have been no difficulty in the adoption of this view of the pleading by the defendant’s counsel, if it had not been for the division of the statement made of the plaintiff’s right of action in the complaint. After setting forth the loan, the usury, and the mortgage, the complaint stated the residue of the right of action as a second cause of action, and it was probably because of that statement that the-demurrer was interposed. While this should not have been inserted in the complaint, it still by the division did not make two causes of action of the facts which in judgment of law created but one. Notwithstanding this division but a single cause of action was set forth in the complaint.

The order and judgment should be reversed, and judgment on the demurrer ordered for the plaintiff, but as the complaint was so framed as to invite the demurrer served on behalf of the defendant, the costs of the appeal should abide the event of the action, with leave to defendant to answer in twenty days on the usual terms.

Davis, P. J., and Beady, J., concurred.

- Judgment reversed and judgment ordered for plaintiff on demurrer, with leave to defendant to answer in twenty days on the usual terms.


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    In the Matter of CARLISLE NORWOOD, Receiver of the Lorillard Insurance Company. (Claim of SAMUEL JONES.)

      An action against a corporation is abated by its dissolution — its attorneys bare no pomr thereafter to act for it— a judgment rendered against it in another State after its dissolution is not protected by section 1 of article 4 of the United States Constitution.

    In October, 1871, the Lorillard Fire Insurance Company was dissolved and one Norwood was appointed its receiver. In March, 1873, a judgment was rendered against the company, in an action brought against it in the State of New Jersey by the claimant prior to, and continued against it after, its dissolution. The receiver was not made a party to the action. The judgment was entered in pursuance of a stipulation, signed after the dissolution of tlie company by the attorneys who had apDeared for it, by which the decision of this action was made to abide the event of another action brought upon another policy of insurance for the recovery of damages occasioned by: the same loss.

      Held, that the action against the company abated by its dissolution, and that no judgment could thereafter be entered against it.

      MeOulloch v. Norwood (58 N. Y., 568) followed.
    That as the power of the attorneys of the company to act for it ended upon its dissolution, the stipulation signed by them did not authorize the entry of the judgment.
    That the dissolution of the company divested the court in New Jersey of juris- ’ diction over it, and the judgment thereafter entered there was not within the provisions of the United States Constitution declaring that full faith and credit should be given in each State to the records and judicial proceedings of every ■other State,
    Appeal by Samuel Jones from an order made at a Special Term,denying a motion made in bis behalf to have a claim admitted and paid, so far as that could be done, by funds in the hands of the receiver.

      Luden McAdam, for the appellant, Samuel Jones.

      Carlisle Norwood, Jr., for the receiver, respondent.
   Daniels, J.:

The receiver was first appointed on the 17th of October, 1871, :and that appointment was continued by a judgment recovered on ■or about the twenty-fourth of October the same year, by which judgment the corporation was wholly dissolved.

The applicant’s claim depended upon a judgment recovered by him in the Supreme Court of the State of New Jersey, on the 11th ■of March, 1873, in an action brought by him against the insurance ■company itself. The receiver was not made a party to this action, ¡but it continued in form against the corporation after the- time' it was dissolved by a judgment of this court. The judgment so recovered by the applicant was inoperative under the authority of McCulloch v. Norwood (58 N. Y., 563), which, in general terms, 3ield that an action against a corporation abated with its dissolution, where no statutory authority at the time existed for its subsequent ■continuance. It is true that in the authority referred to, notice of tthe appointment of the receiver and the dissolution of the corporation was brought to the attention of the court in the State of Ohio in which the action was pending. But the judgment afterwards there recovered was not held to be inoperative because of these facts. But it was ±ot the reason that upon the dissolution of the corporation all actions pending against it under the settled principles of the common law, from that time abated. .That deprived the court of New Jersey of its authority to proceed to judgment in the action after the corporation against which the action had been brought, was in fact dissolved by the judgment of this court. After the coi’poration had been dissolved, and on the 8th of May, 1872, a stipulation was entered. into by the attorneys in that and other similar suits to which the present applicant was a party, stipulating that his action against the Lorillard Fire Insurance Company should abide the event of another action brought upon another policy of-insurance-for damages occasioned by the same loss, and it was under that stipulation that judgment was finally in form recovered by the-applicant. But as this stipulation was made after the Lorillard Fire Insurance Company had been dissolved by the judgment of this court, and neither -of the attorneys making it had ever been employed or authorized to enter into it by or on behalf of the receiver, the stipulation was without authority. The power of the attorneys for the insurance company to act was terminated by its dissolution, and as the stipulation was entered into after that event had taken place and without any authority to make it on behalf of the receiver,.it secured no right to the applicant for the recovery of this judgment. The cases of Cox v. New York Central Railroad Company (63 N. Y., 414); Roberts v. Marsen (23 Hun, 486); McGuire v. New York Central Railroad Company (6 Daly, 70), are therefore inapplicable, to this controversy and do not tend to sustain the claim made by the petitioner.

Reliance has been placed upon a statute of the State of New .Jersey which by its language authorizes an action pending against a corporation to proceed to judgment after its dissolution. But this section of the statute does not appear to have been in existence prior to the revision of the New Jersey laws in the year 1877, and consequently it could have no effect whatever upon the proceedings taken in the action prosecuted by the applicant. It has also been stated in the affidavit of the counsel for the applicant that “he is advised by counselors at law Of,‘the State of New Jersey that such actions do not abate, but it may be continued to judgment against the corporation.” This statement, however, in no manner aided the applicant in the way of supporting the claim made by him, for it did not tend to establish the fact, that at the time when this corporation was dissolved or the applicant’s judgment was recovered, that this was the law of the State óf New Jersey. - '

The judgment which was in form recovered' against the insurance company after its dissolution was without the authority of law. The court in which it was recovered had at the time no jurisdiction over the defendant in the action,- for the reason that it had ceased to exist. Such a judgment is not conclusive against any party, and it is not within the provision of the Federal Constitution declaring that full faith and credit shall be given in each State to the records and judicial proceedings of every other State. After the dissolution of the corporation, the power to proceed judicially against it in the action brought by the claimant was wholly divested, and what the court afterwards did in that respect was without jurisdiction. The judgment was a nullity, as a similar judgment was held to be which had been recovered in the State of Ohio in McCulloch v. Norwood (supra).

For these reasons, and those contained in the opinion of Mr. Justice Lawrence, the order from which the appeal has been taken was right, and it should be affirmed, with the usual costs and disbursements.

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

Order affirmed, with ten dollars costs and disbursements.


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    In the Matter of the Final Accounting of PETER A. H. JACKSON, as Testamentary Trustee, etc.

      Commissions —- when allowed upon a fund held by an executor as trustee, in addition to those allowed to him as executor — when an executor will be charged with interest because of his failure to invest a fund in his hands — what errors,can be corrected upon an appeal from such a decree without any case being prepa/red and settled — Code of Civil Procedure, sec. 998.
    The defendant’s testatrix gave to her executors, and the survivor of them, the sum of $3,000, to invest the same in good securities and collect and pay over the income thereof to her niece, Catharine Paulding, for and during the term of her natural life, and upon her decease to pay the principal sum to her husband, Peter B. Ross. Upon the settlement of the accounts of the executor before the surrogate, as it appeared that there was hut $1,320.26 applicable to the payment or this legacy, he was directed to retain in his hands that sum and to invest the same in good securities and collect the income thereof and pay it over to the said Catharine for and during the period of her natural life, and, upon her decease to pay the same to the said Peter B. Ross, The executor deposited the said sum of money with a 'trust company, where it remained during the life of Catharine for her benefit. Upon the final settlement of the account by the executor as to this fund, the surrogate refused to allow him commissions thereon, upon the ground that he had already received commissions upon it on the former settlement of his accounts.

      Held, that he was entitled as trustee to receive commissions upon it.
    The defendant neglected for two months to invest the said sum' as directed by the first decree, and then deposited it with the trust company. The surrogate charged him with interest on the said sum for the said two months at the rate which it would have drawn if it had been deposited in the trust company. Held,no error.

      Held, further, that the defendant could have the erroneous decision of the surrogate reviewed,’ upon an appeal from the decree, without having any case prepared and settled, as provided by section 2576 of the Code of Civil Procedure.
    Appeal by the trustee from so much of the decree of the surrogate as charged him with interest and denied him commissions on the settlement of his accounts.

      H. M. Collyer, for the trustee, appellant.

      Jeróloman efe Arrowsmith, for Peter JB. Ross, respondent.
   DaNiels, J.:

The objection has been taken that the points urged in support of the appeal are not regularly before the court for its decision, for the reason that no case has been prepared or made as that has beendirected by section 2576 of the Code of Civil Procedure, but as the decree was not made upon a trial by the surrogate of an issue of fact, it is not within the practice prescribed by this section. The objections taken to it arise upon the decree itself and the will of the testatrix, and they may properly be heard and disposed of without a case and according to the practice provided for by the latter part of section 998 of the Code. The case is analogous to those provided for by that part of this section, and it may be heard and disposed of in the same manner. The- executor accounted before the surrogate and a decree was made settling his accounts on the 16th of March, 1883. By this decree it was directed also: “that he retain in his hands the sum of $1,320.26, to be invested by him in good and valid securities and keep the same invested and collect and receive the dividends, interest and income thereof, and to pay the same unto Catharine Paulding Ross, to her own use for and during the period of her natural life, and upon her decease to pay the same to Peter B. Ross.” ■

This direction was authorized by the eighth paragraph of the testatrix’s will in the following language: “ Eighthly. I give and bequeath and appoint that my said executors, and the survivor of them, shall also invest the further sum of $2,000 in good and valid securities, and keep the same invested, and collect and receive the dividends, interest and income thereof, and shall pay the same to my niece Catharine Paulding, wife of Peter B. Ross, to her own use during the term of her natural life, and that upon her decease my said executors shall pay the said principal sum of $2,000 to the said Peter B. Ross forever.”

The condition of the estate did not permit the full sum of $2,000 to be invested in this manner, and the direction for that reason was limited to the actual balance which could be appropriated for this purpose, and thac was the sum of $1,320.26. It is ndt necessary to' inquire whether this decree was made upon a full and final settlement of the accounts of the executor, although that seems to have been its character, for the direction was explicitly given by it requiring the executor to invest this precise sum of money, and collect and receive its dividends, interest and income, and pay the same to the beneficiary- named .in this clause of the will. It was shown by the petition, upon which the final accounting as to this particular sum of money took place, that it was separately deposited by the executor with the New York Life Insurance and Trust Company under- this direction; and that was admitted to have been done by the answer of tbe legatee, to whom the principal of the sum has now, in consequence of the decease of Catherine Paulding Ross, become payable. During her life the deposit was held for her benefit. She died on the 19th of (July, 1883, and the right to the fund then vested absolutely in Peter B. Ross. The executor received his commissions upon the settlement of his accounts as executor, but he was denied commissions upon the settlement which took place concerning this legacy. That denial was placed upon the authority of Hall v. Hall (78 N. Y., 535). But in that case the legacy upon which commissions were claimed was paid directly out of the. aggregate amount of the estate in the hands of the executor to the legatee. There had been no division or separation of it, as there was. in this case, under the direction of the surrogate and of the will of the testatrix. Where such a division or separation has been made and the amount has been invested, or is separately held for a beneficiary entitled to receive its income, profits or interest, this authority does not deny the right of the executor to commissions, upon the investment of the amount, on its final payment to the legatee entitled to receive it, after the decease of tlie beneficiary for life.

■ This is manifest from the opinion delivered in the case. (Id. 534.) This language is specially appropriate to the present case, for the money in controversy was separated from the estate and afterwards held during the life of Catharine Paulding Ross for her benefit. By the terms of the decree a trust was created in this fund for her, and active duties were imposed upon the executor to keep it invested and receive and pay over to her its dividends, interest and income for her use during the period of her natural life.

As to this amount he was from the time of the special appropriation a trustee entitled under its authority to commissions upon the sum passing into his hands in that capacity. The same point was further considered in Laytin v. Davidson (29 Hun, 622) and Hurlburt v. Durant (88 N. Y., 121, 126), which sustain the right of the 'party to commissions under the state of facts presented-in this case.

The executor was charged with interest upon the amount of the legacy for a period of two months after he was directed to invest it, and to that an exception was filed, and the same objection has been taken by him on the hearing of the appeal. Ordinarily an executor or trustee is entitled to a longer period than this, for the purpose of 'obtaining and making a proper investment of funds-’ committed to his charge. (Shuttleworth v Winter, 55 N. Y., 625; Lent v. Howard, 89 N. Y., 169.)

■ But in this case no special investment of the fund was’ at any time made, but it Was deposited by him with a trust company, and ^as that could as well have been done immediately after the fund was placed in his hands as trustee, there was no impropriety in charging him with the rate of interest which might have been obtained upon it by means of such a depo'sit, and that was all that was done by the decree in this instance. The amount so charged .was very small and furnished no ground for special .complaint against the disposition of the case made by the surrogate.

As to this interest the decree -should be affirmed, but as to so much of -it as deprived the trustee of his commissions on this fund it should be modified in such a manner as to direct the allowance of such commission. And as the trustee cannot be wholly permitted to succeed upon his appeal, this modification should be without costs, but he should be allowed his disbursements on the appeal.

Davis, P. J., and Beady, J., concurred.

Decree modified as directed in opinion, with the disbursements of the appeal to the appellant.