text:
    Charles G. Doremus, Pl’ff, v. Arieanna M. Doremus et al., Def’ts.

      {Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Dower—Bar.
    Where a wife executed and delivered to the committee of her lunatic husband an instrument whereby she released to him her right of dower, in consideration of certain articles of household furniture and a sum of money, and retained such consideration given her for seventeen years afler her husband’s death, never making any claim for dower, her right thereto is -barred.
    3. Trust—When cannot be enforced.
    Where a party voluntarily makes an absolute conveyance of property by deed for a valuable con ideration therein expressed, without any notice,

      actual or constructive, that the grantor claimed any interest in the property, such grantor will not be permitted, as against third parties who have acquired interests in the property, to allege a secret trust.
    §. Partition—Sale—Notice to creditors.
    Where a purchaser at a partition sale asks to be relieved^ from his purchase on the ground that the referee’s published notice to lienors gave the names of only two share owners, and that there were judgments docketed against a share owner in favor of persons who were not made parties to the action and did not appear before the referee, it appeared from the referee’s report that the judgment and mortgage creditors of one of the owners-whose name was published in the caption of the notice appeared before the referee and proved their claims, although not made parties to the action, and that as to the owners not named, the referee caused official searches to-be made, and found no liens against them, Held, that the pui\ haser’s objection was untenable.
    Appeal from an order denying the motion of Max Lang, a purchaser of certain land an-d premises at a sale thereof by the referee in the above entitled action, to be relieved from his purchase.

      Edwin Kempton, for app’lt; George Bliss, for resp’t Charles G. Doremus; Benj. T. Kissam, for resp’ts V. E. Doremus et al.; Joseph Fettretch, for resp’ts Crosby et al.

   O’Brien, J.

The action was brought for the partition and sale of various parcels of land and premises of which, one Peter C. Doremus was alleged to have been, in his lifetime, the owner, and to have died seized and possessed. At the sale, Max Lang, this appellant, purchased for $5,600 the house and lot situated on the southwesterly side of Livingston street, in the city of Brooklyn, distant 134 feet and 11 inches southeasterly from Smith street. After examination of the title, the purchaser served upon the referee a notice in writing of his objections, and made formal deman_d for repayment of all moneys paid and expenses incurred by him on account of the purchase.

The objections still adhered to by the purchaser are:

_ First objection : One Greorge F. Wing, a predecessor in the title, died intestate, seized and possessed of the premises, on the 13th day of November, 1875, leaving him surviving Annetta Wing (now Annetta Curry), his widow, and Marion F. Derby (now Marion F. Rockwell), his only child and heir at law. On the 8th day of May, 1878, Marion F. Derby conveyed the premises to Peter C. Doremus. The widow never released to him or his grantor her dower right. Greorge F. Wing, the decedent, had been, however, prior to his death, a lunatic under commission, and his wife, in his lifetime, to wit, on the 2d day of April, 1874, executed and delivered to Samuel H. Crook, as committee of the lunatic’s estate, an instrument purporting to release to him her right of dower. But the committee was never authorized to and never did convey away the fee in the premises, and the only title of Peter C. Doremus was such as he had acquired from the heir at law of the lunatic. The purchaser, therefore, objected that, said widow being still alive, the dower right still attaches. The widow was not a party to the partition suit. This objection to the title presents the question as to whether or not it was competent for a wife to release to the committee of her lunatic husband her inchoate right of dower in her husband’s lands, so that said lands should descend to her husband’s heirs at law free and acquitted from her dower right therein. The deed, dated April 2, 1874, between Annetta Wing and Samuel H. Crook, as committee of the person and estate of George F. Wing, lunatic, and which was properly acknowledged and recorded in 1874, shows that the release of dower was made in consideration of certain articles of household furniture and the payment to her of the sum of $2,500. The question thus presented on these facts is in principle governed by the case of Jones v. Fleming, 104 N. Y., 430 ; 5 St. Rep., 695, wherein the court said:

“It is provided in the Revised Statutes, 3 Rev. St. (7th ed.), p. 2198, § 12, ‘ that if before her coverture, but without her assent, or if after her coverture, lands shall be given or assured for the jointure of a wife, or a pecuniary provision be made for her, in lieu of dower, she shall make her election whether she will take such jointure or pecuniary provision, or whether she will be endowed with the lands of her husband, but she shall not be entitled to both.’ ”

In this, as in that, case, the contract Was made with the committee of the lunatic, and it here appears that the widow retained, and still retains, the consideration given her by the committee of her husband, and that she has never made, during i he seventeen years since her husband’s death, any demand for ■m admeasurement of her dower, or any claim in regard thereto. The case of Jones v. Fleming is, therefore, an authority holding that, under such circumstances, her right of dower is barred.

Second objection : Actual notice was given the purchaser by Marion F. Rockwell that she claimed to be the owner of.the premises in question, and that Peter C. Doremus had never in reality paid her anything as a consideration for her conveyance to him, but at the time of his death held the property in trust for her, and under an agreement to secure the same to her by his last will and testament, or otherwise. In further urgency of such claim said Marion F. Rockwell has commenced an action in this court to compel a conveyance to her of the premises by the heirs at law of said Peter C. Doremus, and the summons and complaint in such action and notice of pendency of the same were filed in the office of the clerk of Kings county on the 29th day of June, 1892. Marion F. Rockwell was not a party to the partition suit, and her rights, if any, have thus not been con-eluded. In answer to this objection, it was shown that the deed given to Peter C. Doremus was a full covenant warranty deed for a valuable consideration, expressed therein, which deed was recorded in May, 1873. It is not claimed that any notice, actual or constructive, was given in any way, or that she made any claim until June, 1892, when she commenced the action referred to in the objection. It was shown that between the date and recording of the deed in May, 1878, and the beginning of the suit by Marion F. Rockwell in June, 1892, third persons had, in good faith, without notice, and for a valuable consideration, acquired interests in the property. It also appears that the summons, complaint, and notice of pendency of action were filed in this cause on May 9, 1888, and that judgment directing sale by a referee was entered in February, 1890. The purchaser concedes that the third parties who, either by purchase or by taking mortgages, acquired interests in the property, did so in good faith, and without any notice, actual or constructive, of the claim now made by Marion F. Rockwell, or “ that the deed made by her to Peter C. Doremus was given to or received by the said Peter C. Doremus under any agreement in her favor, express or implied,” and without any notice, actual or constructive, that the said deed was anything other than on its face it purported to be, namely, an absolute conveyance in fee simple for a good and valuable consideration. This concession as to the knowledge possessed of any such claim by third persons who acquired interests in the property seems to dispose of this objection, because, under such circumstances, Mrs. Rockwell, having voluntarily made an absolute conveyance, could not be permitted, as against them, to allege-a secret trust.

Third objection : The complaint and all the papers throughout the partition suit erroneously describe the premises, and place them a block away from their real location, namely, southwesterly from the southerly corner of Smith and Livingston streets, instead of southeasterly therefrom. The referee’s published notice to lienors gives the names of only two share owners, and describes the property erroneously; and there are judgments of record in Kings county against share owners, in favor of parties who never appeared before the referee, and who were not parties to the action. The referee sold the premises on February 29, 1892, under the-notice of sale containing the error of location. After sale, but before confirmation, an order nunc pro tune, dated April 2, 1892, was entered in New York county, purporting to cure this error of location. It is conceded that the deed to Wing correctly described the premises as the one from Mrs. Rockwell to Doremus, and the error which crept into the preliminary preceedings in this-action was due to a clerical mistake in describing the property as a certain distance southwesterly instead of southeasterly, from the southerly corner of Smith and Livingston streets. This error in the description was subsequently corrected by amendment, so as to describe the premises in question just as the purchaser claims it ought to be; and it is conceded that, upon such amendment, and by the referee’s supplemental report of sale, the error in the description was corrected; and, subsequent to this, by final judgment, this report of the referee and the amendments made in the proceedings with reference to the description were ratified, confirmed and approved.

The most serious question presented upon this appeal has reference to the alleged insufficiency in the notice to creditors. But this, we think, was cured by the steps taken to correct the error. The affidavit in support of -this objection shows that “ there are judgments docketed in Kings county against Charles Gr. Doremus, the plaintiff, in favor of persons not parties to the action, which were not presented to, considered by or reported upon by the referee in this action.” So far as Charles Gr. Doremus is concerned, and creditors having .claims against him, we think the notice was sufficient, for he was in express terms named in the caption of the notice published, and it appears from the ref eree’s report that judgment and mortgage creditors of Charles Gr. Doremus, not parties to the action, appeared and proved their claims pursuant to such notice. In addition, the referee reported that he had published the notices, and caused official searches to be made; and, after having passed upon the claims presented against the interest of Charles Gr. Doremus, he finds, with respect to the shares of the other parties, as follows:

“That there is no other general lien or incumbrance by judgment or decree upon the undivided share or interest of either of the parties in the premises ; and ho creditor not a party to this action, having any general lien on any undivided share or interest in the premises by judgment or decree, appeared before me on. such reference to establish his claim in pursuance of the notice published by me as aforesaid.”

It appearing that the objection of the purchaser was based upon judgments and claims outstanding as against Charles Gr. Doremus, one of the parties, with reference to whom, as we have shown, the notice was sufficient, resulting in the presentation of certain claims before the referee, and it not being made to appear that there are any claims outstanding as against him or any other person having an interest or share in the premises, we fail to see how.this objection can be upheld. It would, no doubt, have been the better practice to have had the notice contain the names of all the parties to the action. But whatever injury might have resulted from a failure so to publish, it seems reasonably certain that this was ■cleared up by the official searches which were made by the referee with respect to the interests of all the parties to the suit. In view of the conclusion reached by the referee that there were no other liens against the premises than those reported by him, and, in the absence of evidence showing that any other liens existed, we think this objection untenable. It is true, as claimed by appellant, that the court will not compel a purchaser to take a doubtful title, or an unmarketable one, nor will he be required to complete his purchase in case of reasonable doubt; but the decisions which support this view do not go to the extent of holding that a purchaser can demand a title absolutely free from all suspicion or possible defect. In this case the questions presented are somewhat involved and require a marshaling of the facts, and deliberation thereon, for their srtlution. Having such facts before us, while questions respecting the title may from time to time arise, we do not think they are sufficiently grave to affect the title to the property, or place the rights of the purchaser in jeopardy. We are of opinion, therefore, that the order appealed from should be affirmed, with costs and disbursements.

Barrett, J., concurs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Charles Smith et al., Resp’ts, v. The Seattle, Lake Shore & Eastern Railway Co., App’lt

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Discovert—Application pending reargument of prior appeal.
    An order for an inspection of books and papers should not be granted while a motion for reargument of a prior appeal from a similar order is pending.
    Appeal from an order granting plaintiff’s motion for a discovery and inspection of a certain written report with the papers annexed, and denying defendant’s motion to vacate an order to show cause on which said order was founded.

      Henry Stanton, for app’lt; Carroll Sprigg and Gilbert D. Lamb (John H. V. Arnold, of counsel), for resp’ts.
   Per Curiam.

Upon the former appeal the order granting an inspection was reversed, upon the ground that the papers served on the motion were defective, in that the allegations of the petition were upon information and belief as to some of the matters material to the application, and on writings not annexed to the petition as served.” 47 St. Rep., 283. These objections may have been obviated in the new petition by service of copies of the papers referred to in the former petition, but not annexed thereto. Upon the merits of the application, the court having the power to make such an order, and the papers themselves being formally correct, we should not be inclined to disturb the discretion exercised by the judge at special term in directing an inspection. Although this appeal must be disposed of upon another ground, this expression of our view upon the merits we think proper, in order that some amicable arrangement for the production of the papers, an inspection of which is sought, may be arrived at, as suggested upon the argument, or, upon failure of the parties to agree as suggested, that the del^y and expense of another appeal may be obviated.

This order appealed from, we think, should be reversed, for the reason that it is made to appear that this general term handed down a decision in June, 1892, reversing the former order, and thereafter, and on September 19, 1892, the plaintiffs’ attorneys made a motion for an order directing a reargument or resubmission of such appeal, and, while such motion for reargument was pending, the plaintiffs procured the order to show cause upon which the order granting an inspection, and from which this appeal is taken, was made. We do not think that such practice should be encouraged. The positions thus assumed by the plaintiffs, in moving for reargument at general term, and, before a disposition of such motion, applying on other papers for the same relief at special term, are inconsistent. The objection that a motion for reargument was pending was made at special term, and, notwithstanding such objection, this order appealed from was made.

We think this was error, and should result in a reversal of the order, with costs and disbursements, and granting the motion, with ten dollars costs, with leave to renew upon payment of the costs of appeal and costs of motion below.

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.


text:
    Mary M. Ketcham, App’lt, v. William B. Elliott, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Default—Conditions on opening.
    On opening a default, where money deposited in lieu of bail has been applied on the execution, it is unreasonable to require the plaintiff to re- » turn such money, and the defendant should be required to pay plaintiff's disbursements as well as the costs of motion.
    Appeal from order opening a default and vacating a judgment entered thereon.
    The order required defendant to pay ten dollars costs, and that plaintiff to return certain moneys which had been deposited in lieu of bail and had been paid to her by the sheriff on the execution.

      Richard A. Springs, for app'lt; Henry L. Brant, for resp’t.
   Per Curiam.

We think that, in addition to the costs of the motion at special term, the defendant should at least have been required to pay the disbursements to which the plaintiff had been subjected. These disbursements amounted to $7.74, and the order should be modified so as to require the payment of these disbursements in addition to the costs of the motion. We also think that it was unreasonable to require plaintiff to return the money which had been paid to her by the sheriff under the execution. The proper course would be to permit the judgment to stand as security, and to make no requirement at the present time with regard to the sum in question. That part of the order which , required the restoration of the money should be reversed, without prejudice to any proceedings which the defendant may hereafter ’ take for restitution in case he shall ultimately succeed in the action; and the defendant must also pay ten dollars costs and the disbursements of this appeal. Order modified accordingly.

O'Brien and Barrett, JJ., concur.


author: Barrett, J.

text:
    Abraham Lowenstein, App’lt, v. Theodore W. Myers, Comptroller, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. New York City—Public markets—Regulation of.
    The comptroller of the city of New York has authority to prohibit the slaughtering of poultry in the public markets, and a rule or regulation to that effect is a reasonable exercise of his power of general management.
    2. Same.
    The fact that the board of health has supreme power over matters relating to the public health, which includes the regulation and control of the public markets, does not affect the jurisdiction of the comptroller to prescribe reasonable rules for the decent use of such markets.

      Appeal from order denying motion to continue a preliminary injunction.

      Samuel Strasburger, for app’lt; William H. Clark (George L. Sterling, of counsel), for resp't
   Barrett, J.

The comptroller is authorized by* law, for good and sufficient cause, to revoke any permit for the occupancy of stalls or stands in the public markets of this city. Consolidation Act 1882, § 125, subd. 1. By this section, the management of the markets is intrusted to the comptroller, and such management certainly implies authority to make reasonable rules and regulations for the proper use of such stalls or stands. In the present case, the plaintiff accepted a permit containing a stipulation that in the use and occupancy of such stands he should be governed by and obey the ordinances, rules and regulations now established or to be hereafter established for the management of the public markets.” He also signed an agreement “to strictly conform to all regulations as may from time to time be issued,” and, further, his permit was limited to occupancy “ only as stands for the sale of live and dressed poultry.”

He now insists that he has the further right to slaughter poultry at his stand, but in support of this claim he furnishes no written agreement or permit, and his allegation of a presumably verbal agreement is explicitly denied. It is clear that the comptroller was authorized to prohibit the slaughtering of poultry in the public markets, and that a rule or regulation to that effect was a reasonable exercise of his power of general management. Independent of any question of health, it was competent for him to put a stop to such exhibitions if he deemed them offensive to the public and an improper use of the market. In the case at bar, the comp, troller gives us the facts upon which he exercised his judgment and we think they abundantly justified the rule which he promul gated. He says that much complaint had been made of the prac tice of thus publicly killing poultry, and that he had been frequently urged by reputable citizens, including the president of thy board of health, to put a stop to it. He adds that a part of. the market building is used for school purposes, and that the truátees of the board of education had also made complaint. He acted after careful consideration, and there has certainly been no capricious violation of the rights of stand owners. It is true that the powers of the board of health -include the regulation and control of all public markets, so far as relates to the “cleanliness, ventilation, and drainage” thereof (Laws 1882, § 538), and that under these powers the board has undoubted authority to stop any practice which may injuriously affect the general healthfulness of the city. It is thus supreme in all matters relating to the public health, and it might even overrule the comptroller should he authorize a dangerous use of the markets. Here, however, the comptroller has exercised his power simply to abate a nuisance which, revolting in itself, happens also to be detrimental0 to the public health. He is not for the latter reason ousted of his jurisdiction to prescribe reasonable rules for the decen' use or. the markets, and the plaintiff, who contracted for obedience' to such rules, cannot well complain. We may add that the plaintiff seeks to extend his permit, and his position is, therefore, doubly untenable.

The order appealed from should therefore be affirmed, with $10 costs and the disbursements of the appeal.

, Van Brunt, P. J., and O’Brien, J., concur.


text:
    Charles G. Doremus, Resp’t, v. Arienna M. Doremus et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Partition—Extba allowance.
    In an action for partition the value of the property sought to be partitioned is the subject matter of the action within the meaning of § 3253 of the Code, and not simply the plaintiff’s share thereof. The question is not affected by the fact that the action follows a successful attack upon a will.
    2. Same.
    In arriving at the value of the subject matter involved, the rents collected by a receiver pendente lite should not be added to the amount realized on the sale of the property.
    S. Same.
    The court cannot award to the parties in the aggregate more than five per cent, on the value of the subject matter.
    4. Same—G-uabdian ad litem.
    An extra allowance should not be allowed to the guardian ad litem of an infant who is adjudged to have no interest in the premises, or to oi-e whose sole interest is an inchoate dower right in the share of one of the parties.
    Appeal from that part of an order contained in the final judgment which awards and fixes the amount of allowances to the several parties to the action, in addition to costs, the action having been brought for the construction of a will and for partition.

      Fettretch, Silkman & Seybel (Theodore H. Silkman, of counsel), for app’lts; George Bliss, for resp’t.
   Barrett, J.

We do not agree with the appellants in their first contention, that the value of the plaintiff’s interest is the sole subject-matter here involved. This is an action for the partition of real estate, and the property sought to be partitioned is the subject-matter involved, within the meaning of § 3253 of the Code of Civil Procedure. The question is not affected by the fact that the partition follows a successful attack upon a will. ^ It is still an action for the partition of real estate. In such an action the plaintiff does not, as in ejectment, seek to recover his interest from the defendants. The parties are tenants in common, and the action is necessarily in the interest and for the benefit of all such tenants in common. The plaintiff, in his complaint, prays that the interests of all parties, plaintiff and defendant, may bo settled and determined by the- court, and that an actual partition in accordance with such determination may be made, according to law and the practice of the court. In case such actual partition cannot be made without material injury, then the plaintiff further prays that the property may be sold, and the proceeds divided among the parties to the action according to their respective rights and interests. In the cases cited by the appellants, Struthers v. Pearce, 51 N. Y., 365; Adams v. Arkenburgh, 106 id., 615; 11 St. Rep., 121; Weaver v. Ely, 83 N. Y., 89; Abell v. Bradner, 39 St. Rep., 5, the plaintiffs sought no judgment for the benefit of the defendants, or in their interest, but demanded rights which were withheld from them by the defendants. Even in Adams v. Arkenburgh, supra, which was an action for the dissolution of a partnership and an accounting, the plaintiff in his complaint demanded from the defendant, who, it was averred, had appropriated joint funds of the partnership, and had possession of what were claimed to be assets of the firm, his one-half share of all “ the property, securities and money mentioned as the assets of the partnership.” See opinion of Danforth, J., page 618, 106 N. Y.; 11 St. Rep., 122. The action was, therefore, for the recovery from the defendant of this one-half share, and the court held that such one-half share was the subject-matter involved in the action. The same distinction will be found in the other cases cited by the appellants. The view contended for, if sustained, would lead to great practical inconvenience, for we know that these cases frequently involve a great deal of work and responsibility, and that the plaintiff’s attorney has the laboring oar, very much for the benefit of all concerned. The action is exceptional in the particulars pointed out, and, we think, the legislature intended by the language used in § 3253 to make special provision for just such a case.

We agree, however, with the appellants in their second contention, namely, that the court cannot allow to the parties in the aggregate more than five per centum upon the whole value of the property sought to be partitioned. Section 3253, as it bears upon this question, reads as follows : “ In an action * * * for the partition of real property * * * the court may also, in its discretion, award to any party * * * a sum- not exceeding five per centum upon * * * the value of the subject-matter involved.” Clearly, the words “any party,” as here used, do not mean “ each party;” otherwise the court might, if there were twenty parties, allow 100 per centum. The object was to give the court discretion as to the proper distribution of whatever allowance should be granted within the limit fixed. But such limit was to be five per centum upon the value of the property. It was so held in Fraser v. Trustees, 33 St. Rep., 347, and we concur in the conclusion there arrived at.

Our construction is not in conflict with the views expressed in Weed v. Paine, 31 Hun, 10. It was there held that the restriction in amount contained in § 3254 applied only to each side of the litigation, and that, consequently, the court had power in a proper case to award $4,000 in the aggregate. This is entirely consistent with a primary limitation of five per centum upon the subject matter involved in the action. Undoubtedly what the court meant was that, where the value of the subject matter equalled or exceeded $80,000, the court had power to award $2,000 to each side.

We also think that allowance should not have been granted to the plaintiffs wife, nor to the guardian ad litem of his infant daughter, nor to the plaintiffs mortgagee. The appellants have a right to complain of the reduction of the fund in this manner. The plaintiff’s wife had merely an inchoate right of dower in the plaintiff’s one-seventh part, for which she has been allowed by the decree $123. Her costs, together with the allowance complained of, amount to $156.24.

The allowance to the guardian ad litem was entirely unauthorized. He was entitled out of the estate to his taxable costs, and to no more. It was expressly adjudged that this infant had no interest whatever in the estate. Her interest under the will was taken by her father through this decree which he procured, and he certainly cannot charge upon his tenants in common the expenses of his daughter’s unsuccessful contest with himself. There is nothing in the case of Weed v. Paine, supra, which would justify the court in awarding to the guardian of this infant an extra allowance out of other people’s money. The court was there speaking of a case where the infant had an interest in the subject matter. Here she has no interest whatever in the estate, nor in the money realized upon the sale. Under such circumstances, the utmost that the guardian can be allowed out of the fund is his taxable costs. Insurance Company v. Van Rensselaer, 4 Paige, 87; Gott v. Cook, 7 id., 521; Downing v. Marshall, 37 N. Y., 391, 395; In re Holden, 126 id., 589; 38 St. Rep., 504. In the case first cited the chancellor said: “ If any extra allowance is made to the guardian ad litem, of the infants, it must be paid out of their share in the surplus, as nothing but the taxable costs can be charged upon that portion of the fund which belongs to other parties.” And in Gott v. Cook he again observed: “The infant children of Mrs. Kane having no vested interest in the estate,' there is nothing out of which any counsel fees for them can be allowed; and the court is not authorized to charge a fund, which may eventually all belong to others, with anything more than the taxable costs of their guardian ad litem.” ín Re Holden the court of appeals referred to the fact that the ward had only a contin-. gent and reversionary interest in the share of one of the beneficiaries. “This,” said Ruger, Ch. J., “gave them no present interest in the trust fund, and under the cases of Insurance Co. v. Van Rensselaer, 4 Paige, 87, and Downing v. Marshall, supra, an allowance to their guardian could be made only out of the shares of the infants.” In arriving at the value of the subject-matter involved in the action, the rents collected by the receiver pendente lite should not be added to the amount realized from the sale of the property. Neither the interlocutory nor the final judgment makes any provision with regard to these rents. Their collection was pursuant to a provisional remedy, and was a mere incident to the partition. The subject-matter of the action proper' was the real estate sought to be partitioned; and its value, or the proceeds of the sale, was the value of such subject-matter.

The judgment appealed from should, therefore, be reversed, so far as it awards extra allowances to the several parties to the action, with ten dollars costs and disbursements to the appellants, payable out of the fund, and without prejudice to a fresh application at special term, upon the principles stated in this opinion.

O'Brien, J., concurs._


text:
    The Kings County Bank of Brooklyn, Resp’t, v. Edward J. Dougherty, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Discovery—Petition.
    The fact that a petition for discovery of books is in part based upon information and belief is not fatal, where the essential averments are stated positively and are supported by the affidavit of an accountant, who has made a partial examination of said books.
    Appeal from order denying application for a discovery of plaintiff’s books.
    Action upon a promissory note. The petition for the order stated that defendant received no consideration for the note ; that plaintiff paid no value for the same, and that its books would so show; that defendant had no other means of proving these facts ; that evidence thereof was necessary to his defense; and that such discovery and inspection was intended for use on the trial.

      Hildreth & Barker (John J. Adams, of counsel), for app’lt; Goodrich, Deady & Goodrich (Avery F. Cushman, of counsel), for resp’t.
   Per Curiam.

Upon examining the petition, supplemented by the affidavits of the attorney at law and expert accountant, we think a proper case was made out for the granting of the order for an inspection of the plaintiff’s books. The objection that the petition is, in part, based upon information and belief is not fatal, for the reason that the essential averments are stated positively, and receive support from the accountant, who, in the examination already made in action No. 1, states the condition of the account of Giulia Brandéis with the bank, and the necessity for requiring, in order that the defendant might obtain the information requisite for his defense, a further examination than that accorded by the former order of discovery, which limited the period over which the examination should extend. We think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and upon the settlement of the order counsel will be afforded an opportunity of presenting their views as to the extent of the examination.

O’Brien and Barrett, JJ., concur.


author: Lawrence, J.

text:
    Marie Schuler, Resp’t, v. George H. Roberts et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Trespass—Levy op execution.
    In an action for trespass, plaintiff testified that one of the defendant firm came to her bakery and demanded of her the amount of a judg-

      meat which they had obtained against her husband, threatening to ruin her business if she refused. She refused, and the same day a deputy sheriff closed her bakery under an execution on the judgment; a witness testified that another deputy sheriff said the sheriff had a bond indemnifying for the levy. There was evidence that the defendant firm acquiesced in the levy and sought to compel payment of the judgment by it. Held, that a motion to dismiss the complaint as to the defendant firm on the ground that there was no evidence to connect them with the levy, and that they were not bound by the deputy’s admission that the sheriff had obtained bonds indemnifying him, was properly denied.
    2. Same—Evidence.
    In such case^ it is proper to allow an answer to a question put to the deputy sheriff in regard to the direction given to him by the attorneys of the defendant firm to make the levy.
    3. Same.
    And when it appears that such direction was not given by such attorneys, but by a lawyer in their employ, it is not error to refuse to strike out the answer of the deputy on the ground that the lawyer’s authority was not shown.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial on the minutes of the court, in an action for trespass for levying on and holding for five days the bakery of the plaintiff under an execution issued on a judgment against the plaintiff’s husband.
    The plaintiff testified that one of the defendants came to her store and demanded payment or security fora judgment recovered against her husband and threatened to ruin her business if she did not pay or secure it; that the same day an execution was issued and her place closed by a deputy sheriff, and that another deputy said they were indemnified, and the deputy testified that the execution was levied under the direction of a lawyer employed by defendants’ counsel.

      Campbell & Murphy (James Flynn, of counsel), for app’lts ; Jacob Fromme, for resp’t.
   Lawrence, J.

There was no exception taken to the charge of the learned justice who presided at the circuit at which this cause was tried, and the law was correctly stated by him to the jury. There was a plain and palpable conflict between the evidence given on the part of the plaintiff and defendants in respect to the interview between the plaintiff and the defendant Roberts, on the 28th of January, 1891, and as to the interview between her and defendant (jollín and the witness Keck on the 29th of January, 1891, after the levy had been made and the store closed. The jury were judges of the credibility of the witnesses, and, having found for the plaintiff, their verdict cannot be disturbed unless it is apparent that some error was committed in the rulings of the court in the reception or exclusion of evidence, or that the verdict is so excessive as to show that it was the result of passion, malice, or prejudice on the part of the jury. The exception h> the refusal of the court to dismiss the complaint at the close of the plaintiff's case is not well taken. The court could not assume, as matter of law, upon the evidence then before it, that the plaintiff’s statements were untrue, nor dismiss the complaint on the ground that there was no evidence to connect the defendants, Robcrts & Collin, with the deputy sheriff; nor that they were not bound by the deputy’s admission that the sheriff had obtained bonds indemnifying him in making the levy. The motion was, therefore, properly denied. The exception to the ruling of the court, permitting an answer to the question put to the deputy sheriff in regard to the direction given to him by the plaintiff’s attorneys to make the levy, is also unavailing. The question was proper for the purpose of showing how the levy came to be made; and, even if the defendants could not be held liable, as the learned justice charged, for any wrong committed by their attorneys without their knowledge or acquiescence, the question was proper, in view of the evidence already in the case tending to show that the defendants, after learning of the levy, had acquiesced in it, and sought to compel payment by the plaintiff of her husband’s debt through its instrumentality. When it appeared that the direction to the sheriff was not given by the attorneys, but by Mr. Hallen, a lawyer, who was in their employ, it was not error to refuse to strike the testimony out on the ground that Hallen’s authority was not shown. Hallen had had chai’ge of the supplementary proceedings under which the plaintiff had been .examined as a witness, and there was nothing to justify the assertion that the defendants’ attorneys did not authorize and sanction his proceedings. The evidence already given certainly tended to show that the execution had been issued at the instigation of the defendants. It was a circumstance from which the jury could fairly infer that the execution was issued by their direction to the sheriff; that the levy was made after Roberts had had the interview with the plaintiff at the store, and on the same day.

The defendant Collin, at the interview on the 29th of January, 1891, the next day, saw that the store was locked up; and, as the case stood on the plaintiff’s testimony, he had not, in any manner, disavowed the levy. On the contrary, the plaintiff had' testified that he requested her to sign a paper, and stated that if she would do so he would, within an. hour, open her place of business, and that she could then go on with the business. After that, as the plaintiff testified, Keck, the defendant’s salesman, who had accompanied Collin, was at the store between January 29 and February 2, and nothing was done towards opening the store until the 2d of February. It is clear, then, that, if the plaintiff’s testimony is to be believed, the defendant Collin had had personal notice of the locking up of the store, under some process in the defendants’ favor, as early as January 29, 1891; that he did not disavow it; and it might clearly have been inferred that the process was issued by the direction of himself and his partner. Foo Long v. Surety Co., 41 St. Rep., 873; Duke of Brunswick v. Slowman, 8 Man., G. & S. 317. At the dose of the case the defendants’ counsel moved for a direction of a verdict in favor of the defendants, Roberts & Collin, and upon the denial of the motion excepted. He also moved to dismiss the complaint as to those defendants; which motion was refused, and he excepted. In' these rulings we find no error. The ease made by the plaintiff and her witnesses had been contradicted by the defendants and their witnesses, but the court could not usurp the functions of the jury and dispose of the case in the defendants’ favor. It adopted the proper course, and submitted the case to the jury, under a charge in which no error was complained of and to which no exception was taken. The verdict which the jury rendered was one which it was competent for them to give. If the plaintiff and her witnesses were worthy of belief, she had been the victim of a gross wrong, instigated by the defendants, Roberts & Collin. And the case was one in which the jury were not limited to awarding merely compensatory damages. In the exercise of their power, under the well-established rules of law, they have awarded to t}le plaintiff vindictive damages; and as there is no evidence of passion, anger or malice apparent in their verdict, which under equally well-established rules permits us to overthrow it, we are of the opinion that the judgment below was correct, and must affirm both it and the order appealed from, with costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.


author: Andrews, Ch. J.

text:
    Mary L. O’Flyn, App’lt, v. George A. Powers et al., Resp’ts.

      (Court cf Appeals,

      Filed January 17, 1893.)

    1. Executors and administrators—Sale of real estate—Limitation.
    The statute of limitations is suspended as against a debt due from the decedent to the executor from the time of decedent’s death to the first accounting, and he can exercise a power - of sale of real estate contained in the will, to satisfy his own claim, even though he voluntarily made his first accounting fourteen years after decedent's death, if the sale was made within six years thereafter.
    2. Same—Code, § 2750.
    The rights of creditors of decedents who died prior to September 1, 1880, and upon which estates letters had been granted more than three years prior to that date, were saved by § 3352 of the Code.
    3. Same.
    Plaintiff’s grandmother, who died in 1873, devised her residuary estate to defendant in trust for her children, with power of sale of the real estate for the purpose of paying incumbrances, or for any other purpose which, in his discretion, was advisable. Defendant accounted for the first time in 1887, and, at such time, a claim in his own -favor was allowed, and he having no personal property of the estate in. his hands to pay the same, offered the real estate for sale at public auction in 1892, to pay the same, but the purchaser refused to accept title. Held, that the claim of the executor was not barred by the statute, and that he had the right, under said power, to sell the real estate for the balance due him, and that the purchaser must accept the title.
    Appeal from judgment of the city court of Brooklyn, general term, in favor of defendant, granted upon submission of controversy without action.
    The defendant, George A. Powers, is executor and trustee under the will of Sarah Macomber, who died April 3, 1873. The will was proved in Hew York county, April 10, 1873, and letters testamentary thereon were issued to the executor on the same day. The testatrix left three children, Robert D., Edward D. and Mary L. The daughter Mary was the wife of George A. Powers, and died April 4, 1874, leaving six children, the plaintiff being one of them. By her will the testatrix devised her residuary estate, consisting of real and personal property, equally in three separate trusts to the defendant, George A. Powers, for the benefit of her three children respectively for life, remainder to their issue, and upon the death of -either of the sons without issue, the share of the son so dying to go to the daughter Mary, if living, or in case of her death, to her issue.
    Cfc.App.] O’Flyn v. Powers et al.

    The children of the daughter Mary L., upon her death, took one-third of the residuary estate in fee. Eobert D., one of the sons of the testatrix, died January 1, 1887, without descendants. The son Edward D. is still living. Two undivided third parts of the estate have, as the result of the death of Mary L. and Eobert D., vested absolutely in the children of Mary L., and one-third part remaining in trust for Eobert D., the sole surviving son of the testatrix. The ninth clause of the will is as follows:
    “ Ninth. I hereby authorize and empower my said executor, at any time before the final division and settlements of my estate, whenever he shall think proper to do so, either for the purpose of paying off incumbrances upon my real estate or for the purpose of protecting the same, or of more equitably and conveniently dividing the same, or for any other purpose which, in his discretion, may render it advisable so to do, to sell and convey, or to mortgage any part or parts, portion or portions, share or shares, * * * in such manner and for such sum or sums, and upon
    such terms as to him shall seem meet and proper, and to execute, acknowledge, stamp and deliver good and sufficient instruments in the law for conveying or mortgaging the same.”
    There was .a large real estate which passed under the will.
    The executor, George A Powers, never filed or rendered any account, or had any accounting or any judicial settlement of his accounts as executor until the 29th of September, 1887, when he voluntarily instituted before the surrogate of the city and county of New York a proceeding for such judicial settlement, and filed an account of all his proceedings as such executor, and on April 24, 1890, a decree was entered settling his accounts. In the accounting he presented a claim for certain alleged debts owing to him by the testatrix, Sarah Macomber, and asked to prove them and have them allowed. They were contested by the plaintiff, Mary L. O’Flyn, and were, upon proof adduced, allowed by the surrogate at the sum (including interest thereon) of $183,700.32, and to the payment of which the surrogate by his decree applied the final balance found against the said George A. Powers, as executor, on the accounting of $56,845.26, less commissions and expenses, leaving the unpaid balance of said debts so allowed, $79,632.56, and it is admitted that he has no assets in his hands as executor to pay such balance.
    After the rendering of the decree on the accounting, and on March 16, 1892, the defendant, George A. Powers, professing to act as executor, offered for sale at public auction a plot of the real pi’operty devised by the will, after due public notice, and the same was bid off by Seaman L. Pettit, one of the defendants herein, for the sum of $77,100, he being the highest bidder, and the executor had offered to execute and deliver as such executor a deed of the premises, which the purchaser refused to accept on the ground that it would not convey a good title. The executor made the sale mentioned for the sole purpose of realizing money to pay to 'himself the balance of the debt against Sarah Macomber, as ascertained and allowed by the surrogate. The parties hereto, on an agreed case, submitted to the general term of the city court of Brooklyn the question whether the said executor George A. Powers has the power under the will of Sarah Macomber to make the sale and conveyance mentioned, and convey a good title in fee thereby. The court below determined that such power existed, and that a conveyance by the executor pursuant to the sale would convey a good title.

      Wm J. Gaynor, for app’lt; Edward E. Sprague, for resp’ts.

       Affirming 49 St. Rep., 325.

   Andrews, Ch. J.

It is to be accepted as a primary and undoubted fact that the testatrix, Sarah Macomber, was at her death indebted to the defendant, George A. Powers, and that of this debt there remained due and unpaid by her estate to him at the date of the surrogate’s decree, April 24, 1890, after applying thereon all the personal estate of the testatrix in his hands, the sum of $79,632.56. The only question affecting the validity of the debt, left open by the facts agreed upon, is whether the remainder of the debt remaining unpaid at that date was barred by the statute of limitations.

There is no impeachment of the facts found by the surrogate as to the amount of the original debt, the balance unpaid thereon, nor any suggestion affecting the consideration, or'which casts any suspicion upon the bonafides of the claim. The plaintiff, therefore, has not questioned and is not in a situation to question the validity of the debt of the defendant against the estate of Sarah Macomber, except upon the point of the statute of limitations.

The decree of the surrogate necessarily determined that the statute had not run against the demand. But his decision did riot bind the heirs or devisees of the testatrix, who were not, as such, parties to the accounting. That proceeding was between the executor and the creditors, next of kin and legatees_ of the testatrix, and was conclusive as to the existence and validity of the debt, as a claim against the estate, payable out of the personalty. But where real estate devised or descended is sought to be charged with the debts of the decedent, the validity and existence of the debts are open to contest by the heirs or devisees in the proceeding, and the decree of the surrogate on the_ accounting does not conclude them, and, except in case of a judgment recovered against the executor or administrator on the merits, is mot even prima facie evidence of the existence of the debts. 2 Eev. St., 102, § 10; Laws of 1843, chap. 172 ; Code Civ. Pro., §§ 2755, 2756.

Upon the only point now in controversy affecting the validity of the debt claimed by the defendant, George A. Powers, against the estate of Sarah Macomber, viz.: Whether it was barred by the statute of limitations when the sale of March 16, 1892, was made, it is clear, we think, that the bar of the statute had not then intervened. By § 33 of title 3, chap. 6, part 2 of the Revised Statutes, an executor or administrator was not allowed to retain any part of the property of the decedent for his debt until it was proved before the surrogate, and by the Laws of 1837, chap. 460, § 37, it was enacted that such proof could be made on the return of a citation for that purpose, or on the final accounting of the executor or administrator, and this section was amended by cjhapter 594 of the Laws of 1868, by adding this provision: “ But the statute of limitations shall not be available as a defense to such debt or claim, provided the same shall be presented at the first accounting, and provided the same was not barred by statute at the time of the death of the testator or intestate.” The operation of this statute was to suspend the running of the statute of limitations against the debt or claim in favor of the executor or administrator until the first accounting, and a ■similar provision is contained in the Code of Civil Procedure, § 2740.

The first accounting by the defendant, George A. Powers, was commenced September 29,1887, and terminated in a decree April 24, 1890, and he advertised the land under the power of sale, and it was sold March 16, 1892. The statute of limitations .was, by the force of the statute, suspended as to his debt until the accounting of 1887, and it is not claimed that by adding the period ■which elapsed between the accounting and the sale to the period (if any) during which the statute had run prior to the death of ■the testatrix, the six years statute would have barred the debt. There was, therefore, at the time the executor undertook to exercise the power of sale given by the will a valid debt against the •estate of the testatrix in his favor not barred by the statute of limitations and' to which there was no defense.

The fundamental proposition upon which the plaintiff’s counsel relies to establish that the executor, George A. Powers, could not lawfully sell any part of the real estate of the testatrix, for the purpose of realizing a fund for the satisfaction of his own debt, is that by the lapse of time the right of any creditor under the statute to proceed by application to the surrogate, or otherwise, to procure a sale of the real estate of the decedent for the payment of debts, was barred, and that as a consequence the discretionary power of sale given to the executor by the will could not be lawfully exercised for the payment of debts which could not be enforced against the realty devised, since it is, as claimed, a necessary limitation upon the power that it could not be exercised except to relieve the land of debts legally chargeable thereon. It is also insisted that there is an added disability upon the executor in this case, by reason of the fact that he is seeking to exercise the power for his own benefit. It is not claimed that the power of sale given by the will in question does not extend to a sale for the payment of debts. We understand that it is conceded that it comprehends this purpose, and so it seems to have been decided in Matter of Powers, 124 N. Y, 361; 36 St. Rep., 347.

We are of opinion that the remedy of the executor to apply in his capacity as creditor to the surrogate for a compulsory sale of the real estate of the decedent for the payment of his debt was not barred by the three years limitation contained in § 2750 of the Code of Civil Procedure, or otherwise. It is provided by that section that “ at any time within three years after letters were first duly granted within this state upon the estate of a decedent,” an executor or administrator, or a creditor of the decedent, may Setition the surrogate for a decree directing the disposition of the ecedent’s real property for the payment of debts. This section took effect September 1, 1880. The letters in this case were issued April 10, 1873. If this section applies to this case, then no proceeding in the surrogate’s court could have been taken by the executor, or by a creditor, after September 1, 1880, because the letters were issued seven years before that date.

The same result would follow in every case of administration where letters have been issued more than three years before the section took effect. If in such cases there was a remedy in favor of creditors, to compel a sale of the real estate of a decedent for the payment of their debts prior and up to September 1,1880, not barred on that day, it is impossible to attribute to the legislature an intention to cut off such remedy by the enactment of § 2750 of the Code. By the law in force antecedent to the enactment of this section, an executor or administrator could apply for an order to sell real estate at any time within three years after the granting of the letters, but there was no statutory limitation upon the time within which creditors could make such application, except that it could not be made by creditors until after an accounting by the executor or administrator. Laws of 1837, ch. 460, § 72, as amended by Laws of 1843, ch. 172.

Since, in this case, there was no accounting until 1887, a creditor of Sarah Macomber could not, before that date, under the law as it existed prior to September 1, 1880, have made application to the surrogate for an order of sale. If, as claimed, § 2750 applies, his right was gone as soon as that section took effect.

We think the right of creditors of decedents who died prior to September 1,1880, and upon which estates letters had been granted more than three years prior to that date, as those rights existed when § 2750 took effect, were saved by § 3352 of the Code, which enacts : “ Nothing contained in any provision of this act other than in chapter fourth renders ineffectual, or otherwise impairs, any proceeding in an action or a special proceeding had or taken pursuant to law, or any other lawful act done, or right, defense or limitation lawfully accrued or established before the provision in question takes effect, unless the contrary is expressly declared in the provision in question. As far as it may be necessary for the purpose of avoiding such a result, or carrying into effect such a proceeding or other act, or enforcing or protecting such a right, defense or limitation, the statutes in force on the day before the provision takes effect are deemed to remain in force notwithstanding the repeal thereof.” The right which a creditor of the testatrix, Sarah Macomber, had on the day prior to September 1, 1880, to apply for an order to sell real estate whenever an accounting should occur, was, we think, a right accrued to him within the meaning of this section and was not, we think, affected by § 2750.

The fundamental proposition of the plaintiff's counsel, therefore, that no creditor could proceed to enforce the sale of the real estate of the testatrix at the time the executor proceeded to sell under the power, fails. The executor had a valid debt, not barred by the general statute of limitations; there had been an accounting and the condition existed under which he, as creditor, could have applied to the surrogate for an order to sell real estate for its payment. It was a proper case, therefore, for the exercise of the power of sale given by the will, unless certain other objections which have been urged should bar its exercise. The fact that the executor voluntarily rendered an account, and this, after the time had elapsed when an accounting could be compelled by creditors or legatees, does not deprive him of the benefit of such accounting in determining the question whether there was an en-forcible claim for the sale of real estate, which could have been prosecuted by a proceeding before the surrogate. No fraud on his part in instituting the accounting is alleged or proved, and an accounting was essential to enable him to obtain an order establishing his debt and to secure the application thereon of the personal property in his hands as executor. The appellant was a party to the accounting and any defense thereto should have been made in that proceeding.

As devisee she cannot deny the efficacy of the proceeding as a compliance with the condition precedent to the enforcement of the claim of a creditor against the property devised.

The point that the executor could not exercise the power of sale for the payment of his own debt is not well taken. His debt is established as a valid claim. It was probably the principal debt owing by the testatrix. We are not aware of any authority which excludes an executor, upon whom the will confers a power of sale for the payment of debts, from exercising it for the payment of an honest debt of his own. He cannot become the purchaser on such a sale, and his proceedings are open to the scrutiny of the court. If he should undertake to sell for an invalid or outlawed debt, the court, on the application of the heir or devisee, would interpose for his protection. Butler v. Johnson, 111 N. Y., 204; 19 St. Rep., 85. There is no claim that the sale of March 16,1892, was in any respect unfair or that the price for which the property was sold was inadequate.

The question submitted related to the power of the executor to sell under the circumstances stated.

We think the power existed and the judgment below should, therefore, be affirmed.

Judgment affirmed, with posts.

All concur.


author: Earl, J.

text:
    The Trustees of the Freeholders, etc., of the Town of East Hampton, Resp’t, v. John A. Bowman, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    Towns—Unauthorized deed—Ratification.
    A resolution of the board of trustees of respondent, appointing a committee, was altered by one of its members so as to give them power to sell and convey lands belonging to the town. By means of said forged resolution said trustee, one D., induced defendant to accept a deed of lands from him and to pay him the purchase price thereof, and thereafter forged a resolution confirming the sale. Subsequent town officials, who found the record, sued D. for the proceeds, and did not discover the fraud until the execution was returned unsatisfied. Held, that as the trustees who brought the action against D. for the accounting at the commencement of the action had no knowledge whatever of the fraud perpetrated upon the town by the unauthorized execution of the deed, the ratification on the part of the town was not so clearly established as to authorize a reversal of the judgment, but as plaintiffs now hold a judgment against D., in which the money paid to him is included, plaintiffs should be required to assign to defendant so much of the judgment as relates to the money paid toD.

    Appeal from judgment of the supreme court, general term, second department, affirming judgment for plaintiff.
    The town of Bast Hampton is a municipal corporation incorporated under and by virtue of a colonial charter or patent known as the Dongan patent, dated December 9, 1686. By virtue of the patent it is the owner of all the common land and land under water within the limits of the town, and it is represented by and acts through twelve trustees who are elected by the people at the annual town meetings on the first Tuesday in April in each year. The trustees are clothed with full power over the town lands and have authority to sell and lease them. At the town meeting in April, 3882, among the trustees elected were Seymour L. Tooker and Nathaniel Dominy, and Tooker was during the year following his election president and clerk of the board of trustees. On the 17th day of April, 1882, the following resolution, except the words italicised, was adopted at a meeting of the trustees:
    “ Resolved, that Marcus B. Hand, Charles J. Mulford, Nathaniel Dominy, Sr., William Cullom, William D. Conklin, GeorgeB. Edwards, be and are hereby appointed a general prosecuting committee with power to sell or convey, and also a committee on privileges, with power to act as they deem expedient, Nathaniel Dominy, chairman of above committee.” Subsequently the words italicised were inserted in the resolution by Dominy without the knowledge or consent of the other trustees, and without any authority. The resolution as passed was recorded in the book of records kept by the trustees and the italicized words were interlined. Dominy also wrote in the book of records another resolution, conferring authority upon the committee to sell the town lands, which resolution was not passed by the board of trustees, and was written in the book of records without their knowledge or consent. In the fall of that year the defendant entered into negotiations with Dominy to purchase a large quantity of town lands, and these resolutions were shown to his agent who 'conducted the negotiations, and a deed in due form was executed by Seymour L. Toober, one of the trustees, who affixed the seal of the town thereto, and the defendant paid $200, the purchase price thereof, to Dominy and tookthe deed. The deed was dated and executed on the 14th day of December, 1882. This action was commenced in February, 1888, to set aside and cancel that deed on the ground that it was executed without authority of the trustees and was, therefore, void and a cloud upon the title of the plaintiff to the land. The plaintiff, in its complaint, alleges that the deed was made, executed and recorded without any authority, and that it had no validity whatever, and it demanded judgment that it be set aside and canceled of record as a cloud upon its title. The answer of the defendant put at issue the material allegations of the complaint, and the action came on for trial at a special term of the supreme court, and the trial judge found that the deed was executed without authority and ordered it to be set aside and canceled of record. The general term having affirmed the decision of the special term, the defendant appealed to this court.

      Thomas Young, for app’lt; Wilmot M. Smith, for resp’t.

       Modifying 38 St. Rep.,737.

   Earl, J.

There was no dispute at the trial that the deed from the town to the defendant was, in fact, executed without authority, and that the apparent authority found in the town records was actually forged and spurious. The town was not bound by the representations of Dominy as to his authority to deal with the defendant, because he was not, in fact, the agent of the town for the sale of these lands, and had no apparent authority to dispose of them. Separate from the other trustees, he had no agency or authority whatever. The trustees as a body were the agents of the. town, and no one trustee could act separately and independently for the town unless duly authorized to do so by the trustees acting' as a body, and hence no representations that he could make, and no action that he could take individually, could in any way affect, the rights of the town. Hence the rule laid down in Morawetz on Corporations (vol. 2, p. 610), and in the authorities there referred to, to which our attention is called by the defendant’s counsel, has no application to this case. We, therefore, start in the discussion of this case with the fact that the defendant has placed upon record and holds a deed which is, in fact, invalid,, under which he asserts title to the lands.

The counsel for the defendant, however, contends that the action cannot be maintained for the reason that no facts are alleged in the complaint, or found by the trial judge, which entitled the plaintiff to maintain this equitable action to remove the cloud upon its title caused by the defendant’s void deed, and he cites Moores v. Townshend, 102 N. Y., 391; 2 St. Rep., 440. No such objection was made at the trial. It was not there claimed that the complaint was not sufficient, or that the facts proved on the-part of the plaintiff did not entitle' it to equitable relief. If any objection had there been made to the complaint, an amendment thereof might have been allowed, and the objection cannot be taken here for the first time. Even if there should have been some other findings to justify the equitable relief, the judgment .should not, for that reason, be reversed, if evidence be found in the case which would justify other findings necessary to uphold the judgment. When we-look into the evidence, what do we •find? That there is a void deed placed upon record constituting .a cloud upon the plaintiff’s title. This invalidity of the deed can be shown only by paroi evidence, and is not matter of record; and the evidence does not show that the defendant is so in the possession of the land that the plaintiff could maintain an action of ejectment. Under such circumstances we think it cannot be successfully disputed that the plaintiff is in a position to maintain this equitable action for relief, and we know of no authority in this court for holding otherwise. Lattin v. McCarty, 41 N. Y, 107; Remington Paper Co. v. O' Dougherty, 81 id., 474.

But the main defense relied upon by the defendant at the trial, and now relied upon, grows out of the facts now to be stated. The defendant paid Dominy for the land $200, which he kept and appropriated to his own use. In August, 1884, the trustees of the town, then in office, commenced a suit against the persons who were trustees during the year in which the deed to the defendant was given, to compel them to account for and pay over certain moneys belonging to the town, and in that action, among other claims made against Dominy as a defendant therein, the plaintiff claimed to recover the $200 paid to him by the defendant. That action was tried and proceeded to judgment, and the plaintiff, among other things, recovered judgment against Dominy for that $200, and execution upon that judgment was issued against him and returned unsatisfied. Thus the town has failed to collect or receive the money paid to Dominy by the defendant for the land. The claim on the part of the defendant is that the plaintiff in that action proceeded to judgment and execution, knowing that the deed was executed without authority and that the money was received by Dominy without authority, and that thus it ratified Dominy’s unauthorized act and became bound thereby. It is quite true that the trustees, acting for the town and clothed with authority to convey these lands, could ratify the unauthorized conveyance which had already been made to the defendant, and that the town could be bound by their ratification. But before a principal can be held to have ratified the unauthorized act of an assumed agent, he must have full knowledge of the facts, so that it can be said that he intended to ratify the act. If his knowledge is partial or imperfect, he will not be held to have ratified the unauthorized act, and the proof of adequate knowledge of the facts should be reasonably clear and certain, particularly in a case like this, where, so far as the record discloses, no substantial harm has come to the defendant from the delay or the acts of the principal. In this case it is found, and appears from the evidence clearly, that the trustees who brought the action against Dominy and others for the accounting, had, at and before the commencement of the action, no knowledge whatever of the fraud perpetrated upon the town by the unauthorized execution of the deed. During the progress of the trial of that action, however, there was some evidence tending to show the unauthorized execution of the deed by Dorniny; but the proof was given by the defendants who were resisting payment to the plaintiff in that action, and, as the trial judge found, the trustees of the town did not believe that evidence thus given by the parties sued in their defense to that action, and it is found that they proceeded to judgment and execution in ignorance of the fraud which had been perpetrated by Dorniny upon the town.

We do not, therefore, think that the ratification on the part of the town by its trustees was so clearly and unequivocally established that we would be authorized to reverse this judgment ►Before a municipal corporation can be held to have ratified the unauthorized act of its officers or assumed agents, the facts constituting the ratification should be fully and clearly proved, so-that it can fairly be said that there was an intention to confirm the unauthorized act and receive the fruits' thereof. Here there is no conclusive proof to that effect.

But as the plaintiff now holds a judgment against Dorniny, in-which the $200 paid to him by the defendant is included, we think that as a condition of relief in this action it should be required to assign so much of that judgment as relates to the $200-to the defendant.

Our conclusion, therefore, is that the judgment entered at the special term should be so far modified as to require the plaintiff to assign to the defendant so much of the judgment recovered by it against Dorniny as represents the $200 paid by the defendant to him, and, as thus modified, it should be affirmed, with costs.

All concur.


author:
Earl, J.
      Maynard, J.

text:
    The People ex rel. William J. Cramond, Resp’t, v. The Common Council, etc., of the City of Rome, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    Veterans—Relief fund—Laws 1887, chap. 706; Laws 1888, chap. 261. The common council is the judge of the amount of money necessary to be provided for the relief of indigent and suffering soldiers and sailors, under chapter 706 of the Laws of 1887, as amended, and a writ of man-damns should not he granted a grand army post commanding the common council to make such an appropriation as to the former seems necessary for such relief.
    (Maynard, J., dissents.)
    Appeal from judgment of the supreme court, general term;, fourth department, affirming order of special term allowing a peremptory writ of mandamus.

      Charles Carmichael and A. D. Kneeland, for app’lt; D. F. Searle.. for resp’t.
   Earl, J.

Chapter 706 of the Laws of 1887, as amended by-chapter 261 of the Laws of 1888, makes provision “ for the relief of indigent soldiers, sailors and marines, and the families of those deceased.” Section 1 provides that, “for the relief of indigent and suffering soldiers, sailors and marines, who served in the war of the rebellion, and their families, or the families of those deceased, who need assistance in any city or town in this state, the proper auditing board of such city or town, or in those counties where the poor are a county charge, the superintendent, if but one, or superintendents of the poor, or said auditing board in those counties, shall provide such sum or sums of money as may be necessary, to be drawn upon by the commander and quartermaster of any post of the Grand Army of the Republic in said city or town, upon the recommendation of the relief committee of said post, in the same manner as is now provided by law for the relief of the poor, provided said soldier, sailor and marine, or the families of those deceased, are and have been resident of the state for one year or more, and the orders of said commander and quartermaster shall be the proper vouchers for the expenditure of said sum or sums of money.” Section 2 provides that “incase there be no post of the Grand Army of the Republic in any town in which it is necessary that such relief as provided for in § 1 shall be granted, the town board of said town or the superintendent or superintendents of the poor shall accept and pay the orders drawn, as hereinbefore provided, by the commander and quartermaster of any post of the Grand Army of the Re-. public, located in the nearest city or town, upon the recommendation of a relief committee who shall be residents of the said town in which the relief may be furnished.” Section 3 provides that “ the commander of any post of the Grand Army of the Republic which shall undertake the relief of indigent veterans and their families, as hereinbefore provided, before the acts of said commander and quartermaster may become operative in any city or town, shall file with the city clerk of such city, or town clerk of such town, or the superintendent or superintendents of the poor of such county, a notice that said post intends to undertake such relief as is provided by this act. Such notice shall contain the names of the relief committee of said post in such city or town, and of the commander and other officers of said post. And the commander of said post shall annually thereafter, during the month of October, file a similar notice with said city or town clerk, or the superintendent or superintendents, and also a detailed statement of the amount of relief furnished during the preceding year, with the names of all persons to whom such relief shall have been furnished, together with a brief statement in each case from the relief committee upon whose recommendation the orders were drawn.” Section 4 provides that “ the auditing board of any city or town, or the superintendent or superintendents of the poor of those counties where the poor are a county charge, may require of the said commander or quartermaster of any post of the Grand Army of the Republic undertaking such relief in said city or town, a bond with sufficient and satisfactory sureties for the faithful and honest discharge of their duties under this act.” Section 5 provides “ that superintendents and overseers of the poor are hereby prohibited from sending indigent soldiers, sailors and marines (or their families or the families of those deceased), to any almshouse or orphan asylum without the full concurrence and consent of the commander and relief committee of the post of the Grand Army of the Republic having jurisdiction as provided in sections one and two.”

We are called upon to construe some of the provisions of this act. It is the contention of the plaintiff that the relief committee of a Grand Army post may absolutely determine under the act who are the persons and families who are indigent and suffering, the necessity for their relief, the measure thereof, the place where and the circumstances under which the same shall be administered, and that the proper officers of any town, city or county having jurisdiction to raise and appropriate money for the relief of the poor can have no control or supervision over them. The committee and officers of a Grand Army post are not public officers and do not act under the sanction of any official oath, and are under no obligations or responsibility to the public. It is true that the commander or quartermaster is required to give a bond for the faithful and honest discharge of his duties. But the bond reaches only to the application of the money to the relief of the persons and families designated in the act upon the recommendation of the relief committee. The persons relieved may belong to the army post, and in a measure control the appointment of the relief committee, and thus the public money appropriated may be used by the post for the relief of its own members subject to no practical control whatever. It is not needful that the persons to be relieved shall be paupers, but they may be relieved, if within any meaning of the terms the relief committee can determine that they are indigent and suffering. The persons to be relieved are required only to be residents of the state for one year or more, and they may not have resided in the town, city or county for such a length of time as under the general laws in relation to the poor would make them chargeable thereon.

The Grand Army post need not be incorporated. It may be a mere voluntary association of individuals, and it is not required to submit the items of its disbursements under the act to any official board for audit. Such an extraordinary statute, which thus places the public money at the uncontrolled disposal of irresponsible persons, not chosen by the people or appointed by any public body, or under the control of any public officer, should, so far as possible, be limited in its operation and scope,, and public policy requires that it should be strictly and narrowly construed. I am not disparaging Grand Army posts, but simply speaking of their legal status, and the course of action they can pursue under the law without accountability to any one. ÍTnder § 1 the common council was bound to provide such sum or sums of money as was necessary for the relief of the persons and families named in the section. Somebody was to judge of the amount of money that was necessary. Who was to judge? Clearly, the common council. The Grand Army post may apply to the auditing board for the appropriation of such money as it deems necessary for the purposes of the act. And, in their application, they may place before the auditing board such facts as they deem appropriate and necessary bearing upon the application, and then the auditing board must exercise its discretion as to the amount to be appropriated. It having appropriated the money, the commander and quartermaster, upon the recommendation of the relief committee, may draw upon the money thus appropriated, and can draw only to the extent of the appropriation. It may be said that, under this construction of the act, the auditing board may not appropriate a sufficient sum to meet the necessities of the indigent and suffering persons mentioned in the act, as determined by the relief committee of the army post.

It is quite true that that might occur, and it is also equally true that the relief committee and officers of the Grand Army post might abuse their discretion in asking for more money than was necessary for relief in a prudent and appropriate manner under the .act. We must assume that the auditing board, under tins act, will discharge its duty faithfully and honestly as public officers, .as they would discharge any other duty imposed upon them by law. They are public officers and responsible to the people of the community in which they live for the faithful discharge of their duties, and if they abuse the trust reposed in them by law, the people have the remedy in frequent recurring elections by choosing other persons to take their places. It is not to be supposed that they would any more refuse or neglect to make pro- | vision for these indigent persons than they would for the poor of the municipality, for whom, under the general laws of the state, they are obliged to provide.

Now, what are the particular facts of this case? On the 17th day of November, 1890, the Grand Army post of the city of Rome filed a written notice with the city chamberlain signed by the commander, quatermaster and relief committee of the post, in which they estimated that the sum of $1,000 was a sufficient sum for the support in the city of Rome of the indigent persons named in the act for one year thereafter, and they requested that that sum should be appropriated. A short time after the filing of this notice and request the common council acted thereon and appropriated the sum of $500. On the second day of February, 1891, the post applied to the common council for a further appropriation -of $500, stating that that sum would be necessary for the support ■of the veterans for the balance of the year and that they had exhausted the former appropriation. In pursuance of that application, the common council appropriated $220. In the fall of 1891 the post made an application for a further appropriation of $280, under the act, and the common council refused to make the appropriation. Thereafter the relator, as commander of the Grand Army-post, made application for a writ of peremptory mandamus, directed to the defendants, commanding them to make the appropriation, and the writ was granted. We are of opinion, under the construction we have given to the act, that the writ should not have been granted.

It is quite true that in the petition and affidavit upon which the application for the mandamus was based it is alleged in very positive terms that the sum of $280 was necessary for the relief of the persons and families named in the act, but that was not the allegation of a concrete fact. It was at most the opinion and judgment of the relief committee, and the officers of the Grand Army post. In looking over the ground, they had determined that certain persons needed relief, and the amount thereof, and upon that determination they based an allegation that the sum asked for was necessary. In opposition to the application, the common council shows that it exercised its discretion when it made the first appropriation of $500. It is shown by the affidavit of one of the members of the common council who was chairman of its committee on poor, and poor accounts, that within a short time after the first application for the appropriation of money, the common council, after investigation, and in the exercise of the judicial discretion vested in it by law, appropriated for the maintenance of the indigent veterans and their families the sum of five hundred dollars, to be distribute^ by the proper officers of the post, and immediately thereafter the entire amount was drawn from the city treasury by a single order or draft, signed by the officers of the post; that when the application was made for the further sum of $500, the common council proceeded to consider the matter set forth in the application, and to consider the fact that the post officials had expended $500 within three months, one-half of the sum which in their application they had estimated sufficient for one year; that the common council referred the matter to its committee on paon and poor accounts, to investigate and report the amount necessary j for the relief of veterans and their families, under the act; that upon the report of its committee on poor and poor accounts, and in the exercise of its lawful judicial power and discretion vested in it under the act, the common council adjudged and decided that in addition to the sum of $500 theretofore appropriated, the further sum of $220 was sufficient for the purpose required under the act for the year ending October, 1891; that afterward, when the application was made for the further sum of $280, the common council duly considered the question of the amount necessary for the support and relief of the indigent veterans and decided that no further sum was necessary for that purpose during the current year. Other facts are alleged in the affidavit bearing upon the proper exercise of the discretion vested in the common council. It will be seen from these facts-that the common council did not refuse to act; that in appropriating and refusing to appropriate moneys it did not act arbitrarily. It exercised its judgment and discretion, and determined that the $280 applied for was not necessary. That determination was not subject to the review of any court and was final. Any other construction of the act would enable an irresponsible body of men to obtain the funds of any municipality in the state and distribute them among such persons as they might select, subject to no practical control by the municipality or any public officer.

Our conclusion, therefore, is that the orders of the general and special terms should be reversed and the application for a mandamus denied, without costs to either party.

Maynard, J.

(dissenting).—I think the orders of the special and general terms should be affirmed.

The act of 1887, chap. 706, as amended by the act of 1888, chap. 261, imposes Upon the appellants the duty of appropriating whatever sum may be necessary for the relief of the indigent veterans and their families residing in the city of Rome.

The moving papers allege that $280 more than has been appropriated is required for such purposes for the year ending November 1, 1891, and specific facts are given showing the actual necessity for the use of that sum.

These averments are nowhere denied in the opposing affidavits; if they were, it would have been the duty of the special term to have awarded an alternative writ. But the appellants" have rested their defense upon the allegation that they have judicially decided that no more should be expended for such relief by the officers .and committee of the Grand Army post. They do not deny that the number of families to be relieved is correctly stated by the respondents, or that the moneys previously appropriated have been actually and faithfully applied in accordance with the design of the statute. It even affirmatively appears from the appellants’ papers that the sum appropriated is inadequate for the support of this class of poor persons, for they affirm that from February 2 to April 6, 1891, they relieved the necessities of the same persons and families which the respondents are by law authorized to have ¡the care of, and that since October 26, 1891, they have been and are now using the poor funds of the city for their support. There is no charge here of extravagance or abuse of trust. It is admitted that the average monthly expenditure by the respondents for the year ending November 1, 1890, was $93.86, and the amount desired for ten months of 1891 is at the rate of $100 per month, while the cost to the city for the months of February and March, including six days of April, when the poor authorities disbursed the moneys for the same purpose, was over $120 per month. A denial of relief to the respondents in this proceeding cannot, therefore, be placed on the score of economy. The fifth section of the act of 1887 prohibits the public authorities of the city from .sending any indigent soldier or his family, or the family of a deceased soldier, to the alms-house without the concurrence and consent of the commander of the Grand Army post, and provides that indigent veterans and their families, and. the families of deceased veterans, shall, whenever practicable, be provided for and relieved at their homes in the city in the manner specified in §§ 1 and 2 of the act; that is, through the instrumentality of the ofii■cers and relief committees of the local post. There is here a plain statutory mandate which the city authorities are required to observe. They are not intrusted with any discretion in the premises.

It does not follow that the amount which may be thus drawn is unlimited. The first section declares that it is only the sums necessary for the relief of this class of poor persons which must be furnished. Neither the public authorities, nor the Grand Army officers, can arbitrarily fix the amount that shall be so appropriated. If there is any controversy as to the required sum, it can "be judicially determined as other issues of fact are.

The persons to be relieved are also specifically pointed out. They must not only be veterans, or the families of veterans, but they must be such as are entitled to relief under the poor laws of the state. If relief is demanded for persons not answering this description, the moneys may be refused, and the applicants compelled to establish their right to relief in the courts.

But, in the present case, it is not disputed that the moneys demanded are required for the use of the very class which the statute contemplates as the objects of public relief.

The appellants admit the necessity for the expenditure, but refuse to allow it to be made through the medium which the statute has prescribed, and if their position is maintained, the whole scheme and purpose of the law will be. defeated.

Orders of general and special terms reversed, and application for mandamus denied, without costs to either party.

All concur, except Maynard, J., dissenting.

       Reversing 47 St. Rep., 782.