author: Barker, J.; Smith, P. J.

text:
    CHARLES C. STEELE, Respondent, v. ASA B. WARD and Others, Appellants.

      Evidence —physicians — admissibility of their testimony as to the menial condition of theirpatient— Code of Oml Procedure, sec. 834 — Thewifeof anhevr atlaw contesting the probate of a wiU of real property is interested in the event— she cannot testify as to peo’sonal transactions with the deceased — what arre personal transactions— Code of Oivil Procedure, sec. 829.
    The defendants in this action, heirs at law of the plaintiffs testatrix, contested tbe validity of her will, upon the grounds of a lack of testamentary capacity and of undue influence. Upon the trial the plaintiff called one Monk, the physician who had attended the deceased in her last sickness, and was allowed to prove by him what was said and done by her, at an interview had by him with her at her house at which the plaintiff was present. The plaintiff was allowed to introduce this testimony to show that the witness “made a test of the memory of the testatrix, then or thereafter, to ascertain her capacity to make a will. ” The witness having been instructed by the judge to avoid stating any information received by him, which was required to enable him to act as her physician, was allowed to answer the question, what was his impression in that interview as to the condition of the testatrix, whether rational or irrational, as follows : “ Her gestures and conversation, language, everything that I could observe, impressed me as coming from a person of ordinary sound mind.”

      Held, that the evidence was not prohibited by section 834 of the Code of Civil Procedure and was properly received. (Per Smith, P. J.)
    The defendants called the wife of one of the contestants to testify to “ the actions, conduct and sayings ” of the testatrix, on certain occasions when the witness was at her house.

      Held, that as the deceased left real estate in which the witness would have an inchoate right of dower, if the will were declared void, she was interested in the event of the action, and so disqualified, under section 829 of the Code of Civil Procedure, from testifying as to personal transactions or communications had with the deceased.
    But that as the burden of proving the incompetency of the witness rested upon the party objecting, and as it did not appear from the question, nor from the other facts proved upon the trial, that the witness would necessarily be compelled to testify as to a personal transaction or communication with the deceased in order to answer the question, that the Court erred in refusing to allow it to be put. (Smith, P. J., dissenting.)
    Appeal from an order of the Jefferson County Special Term, denying the appellants’ motion for a new trial, founded on the minutes of the trial judge, and from an order remitting the proceedings to tlie Surrogate’s Court of Jefferson County, directing that court to admit to probate the last will and testament of Lodema Ward,' deceased.
    The testatrix’s estate, consisted of both real and personal property, all of which she devised to Charles O. Steele, the present respondent. The deceased was unmarried; her heirs at law were her surviving brothers and sisters, Asa B. Ward one of the appellants being one. The respondent was named as executor of the will, and when he propounded the same for probate, the heirs at law appeared and resisted the application on the grounds : 1st. That the testatrix did not possess testamentary capacity. 2d. That the execution of the* will was procured through undue influence, duress and fraud.
    The surrogate refused to admit the will to probate; thereupon the proponent appealed to the General Term of this court, and the decree of the surrogate was reversed, and the issues of fact involved were ordered to be tried at the Jefferson Circuit. The same being settled, they were brought to trial and the verdict' of the jury sustained the validity of the will. The questions argued, on this appeal relate to the rulings of the trial judge in receiving and rejecting evidence, and are stated in the opinion.

      Wayland F. Ford, for the appellants.

      Bern Ja. Brown, for the respondent.
   Barker, J.;

Upon the trial the contestants called as a witness in their own behalf, Amelia Ward, wife of Asa B. Ward, one of the contestants, and she was sworn and gave some evidence without objection. It was then proposed, by the contestants, to prove by the witness the actions, doings and sayings of the testatrix, done and uttered in her presence, some-ten days before the execution of the will, with a view of establishing the want of testamentary capacity on the part of the deceased. This offer was objected to by the proponent on the ground that it was incompetent for this witness to relate personal transactions or communications had between herself and the deceased, as the witness was interested in the event of the suit, as the direct result of the verdict would be, in case the probate of the will was rejected, to vest in her husband, one of the contestants the fee in part of the real estate devised by the will and secure to the witness an inchoate right of dower in the same lands. This objection was sustained, on the ground that the witness was interested in the event of the suit, and an exception was duly taken.

This ruling presents the question which will be first considered. If the witness was interested in the event of the suit, then she was disqualified to prove by her own evidence personal transactions or communications had between herself and the deceased. (Code of Civil Pro., § 829.) If she was not. interested in the event of the suit, then she was a competent witness for and in behalt of her husband upon all the issues, as the common law liability arising out of the fact of coverture is removed by the provision of section 828.

Should the will be denied pr.obate, the husband would become seized in fee of an undivided portion of the land devised, and the witness would be immediately vested • with an inchoate right of dower in the same premises. The disqualifying interest of the witness must be in the event of the cause itself and must be a pecuniary one. An interest in the question to be decided, is not sufficient to make a witness incompetent. If the verdict cannot be given in evidence in other actions or proceedings, for or against the witness, then he must be considered as interested in the question only and he is not disqualified.

The interest which will operate to disqualify the witness is stated in 1 Greenleaf on Evidence, as follows :

“ The true test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment, or that the. record will be legal evidence for or against him in some other action. It must be a present, certain and vested interest, and not an interest uncertain, remote or contingent.” (Sec. 390).

This general statement of the rule is universally accepted as accurate and safe as a guide in disposing of cases where the question is involved. (Hobart v. Hobart, 62 N. Y., 83; Miller v. Montgomery,, 78 N. Y., 283.)

In this State it has been frequently adjudicated and must now be regarded as settled, that an inchoate right of dower in lands is a subsisting and valuable claim or interest, possessing a pecuniary value, which is susceptible of estimation, although there could be no right of enjoyment during the life of the husband, and-her estate in the lands of which her husband is seized, is incomplete and not consummated until after his death. This interest is not readily definable and it is difficult to select apt words to express her legal right or the nature of the same. Before the death of her husband she has no estate in the lands, nor anything which she can assign or convey to another, or which can be taken in execution for her debts, nor can she protect her interest from waste or destruction while the same is in the hands of her husband or his alienee. (1 Wash, on Beal Estate, 284, 285.)

She may. however, join with her -husband and release her inchoate right to his grantee, and by that act bar her right of dower in case she survives her husband.

In view of the more recent decisions, in which the nature, character and value of such an estate has been considered and determined, I am of the opinion that the same is a present certain and vested interest, within the rule which disqualifies a witness on the ground of interest.

In Simar v. Canaday (53 N. Y., 298) it was held, that as between a wife and any other person than the State or its delegates or agents, exercising the right of eminent domain, an inchoate right of dower in lands is a subsisting and valuable interest, which will be protected and preserved to her, and that she has a right of action to that end.

This was an action at law, prosecuted by the husband and wife, against the defendant to recover damages arising from the fraud of the defendant, in inducing the defendants to convey certain real estate, the wife joining in the deed releasing her inchoate right of dower. It was there held, that she was a proper parry to the suit, and if a fraud had been practiced which induced her to release her inchoate right of dower, it did work harm and injury to a right which she had, and she was entitled to recover the damages, which she had sustained, and a verdict in favor of herself and husband was upheld.

Witthaus v. Schack (24 Hun, 328) was an action by the wife to set aside a release of dower which she had executed, on the ground that she was induced to execute the same by reason of fraud, and it was held that the action could be maintained as the transaction related to and affected a subsisting and valuable right in her favor.

It has been held that a release by a wife, of her inchoate right of dower, by joining with her husband in the conveyance of the same, is a good consideration for setting aside a portion of the consideration money for her separate use, and equity will compel the husband to execute his promise. (Garlick v. Strong, 3 Paige, 440.)

It was also held in Doty v. Baker (11 Hun, 222), that the release by the wife of her inchoate right of dower in the lands of which her husband was seized, was a good consideration for and upheld a transfer of property made by her husband for her separate use,, and when the same was no more than a just and fair compensation, the transaction would be upheld as against the creditors of the husband. That the amount of her inchoate right of dower might be determined by a computation under the annuity tables. (See, also, Denton v. Nanny, 8 Barb., 618; Matthews v. Duryee, 4 Keyes,. 525; Mills v. Van Voorhies, 20 N. Y., 412.)

Hpon the authority of these cases, the witness had a direct interest 'in the event of the suit, for the reason that if the verdict had been in favor of the parties calling her to the stand, she would have been vested with a present and certain interest in the subject of the controversy. If she should survive her husband, then the record would be legal evidence in her favor, to prove the seizin of her husband in the lands devised and thus defeat any .title set up under the will.

Although the witness was interested in the event of the suit, yet she was competent to give any evidence pertinent to the issue, not within the prohibition of the statute, which is limited “ to personal transactions or communications between the witness and the deceased person.”

The evidence rejected was offered by the contestants, as bearing on the question of the mental capacity of the testatrix, to make a valid will. Before the objection was interposed, the witness had stated that she had an acquaintance of many years standing with the deceased, and was present on an occasion when she saw the deceased in a fit; the witness then made the further statement, that she was at the house of the deceased on another occasion, in October, covering a period of four days, which was some ten days previous to the execution of the will.

Thereupon the following question was propounded to the witness:

State Lodemas’ actions, conduct and sayings, on the sixteenth, seventeenth, eighteenth and nineteenth of October, being the days when the witness was present at the house of the testatrix.

It was to this question the objection was interposed that the witness was disqualified by the statute, as it called for a personal conversation between the witness and the deceased.

From all that is made to appear by the bill of exceptions, it cannot .be said that this inquiry necessarily called- for a personal transaction or conversation between the witness and the deceased. The question does necessarily imply that she was .at the time mentioned in the presence of the deceased, and from* the witness’ previous statement it may be inferred that it was at the house of the deceased where the occurrences called for by the question happened. The witness, in legitimate response to this inquiry, could have narrated the actions and conduct of the deceased indicating her mental condition, without necessarily relating' anything concerning a personal transaction or communication with, the deceased.

The things which the witness saw and observed in the conduct and behavior of the deceased, might come to her knowledge without a personal interview with the deceased and without the testatrix being conscious of her presence in the house. The same may be said concerning the sayings of the deceased, uttered within the hearing of the witness on the same occasions.

We cannot assume that .the witness was alone with the deceased at those times, and if such was the fact, a very different question would be presented. If the proponent who interposed the objection knew, or had reason to suppose the fact to be, that these parties were alone or had a personal interview, and an answer to the inquiry would have disclosed a personal transaction or conversation with the deceased, he should have brought out the fact by a preliminary inquiry of the witness, before interposing the objection. The incompetency of witnesses is to be made out by the party alleging the same. (Cary v. White, 59 N. Y., 336.)

The validity of the exception must be determined as the case appeared at the time the same was interposed. By other provisions of the Code parties to actions and interested persons are made competent witnesses in their own behalf. The special prohibition contained in section 829 is made an exception to tlie general rule as to competency.

The primary intent of the prohibition is very apparent, and is to prevent a surviving party from proving by his own testimony a personal transaction or communication between himself and the deceased person, which but for the prohibition he might do without fear or possibility of contradiction.” .(Pinney v. Orth et al., 88 N. Y., 447-451.)

It has been repeatedly held that the -prohibition does .not extend to conversations had between the deceased and third persons which were overheard and listened to by the witness. (Simmons v. Sisson, 26 N. Y., 277; Cary v. White, supra; Heildebrant v. Crawford, 65 N. Y., 111.) If the transaction be one wholly independent of the witness, neither induced by his solicitation or supported by his actions, one with which he in no way interferes or joins, it cannot be one of a personal character as regards him. (Holcomb v. Holcomb, 20 Hun, 159.) It does not appear by the bill of exceptions, nor is there the least reason for supposing the witness sought, or in any way was instrumental in bringing about the opportunity which enabled her to hear the sayings or witness the behavior of the testatrix.

For the purpose of illustrating the view which we take as to the relation which the witness held to the deceased, as presented by the case now before us; suppose a visitor in an insane asylum should have an opportunity to observe the actions and hear the utterances of an inmate without holding any conversation with him, can there be any doubt as to the competency of such a witness to relate all he may have -heard or seen of the “ doings or sayings,” of the inmate without -invading the rule of prohibition as set forth in the statute.

We entertain no doubt, but that under such circumstances, the observer would be a competent witness to testify to the same, although interested in the event of the suit. For the error thus pointed out, a new trial mus't be granted on the issues.

Asa B. Ward, one of the contestants, was also a competent -witness in his own behalf to give evidence as to all matters not brought within the .prohibition of the statute. The evidence which he proposed to give as a witness in his own behalf is of the same general nature and character as that offered to be proved by his wife, the rejection- of which we have just considered and found to be erroneous. In the offer made in connection with the production of this witness, there is some reason for saying that the evidence which he proposed to give related to a personal conversation and transaction, which he had with the deceased, but as the question is obscure and in doubt, and it is not likely that the question will be presented on another trial, in precisely the same form, we do not give the exception particular consideration, as what we have already said concerning the rejection of the testimony of the witness Amelia Ward, sufficiently indicates the subjects and 'evidence which do not come within the prohibition of the statute.

New trial granted, with costs to abide the event.

Hardin, J., concurred.

Smith, P. J.

(dissenting):

The issues in this case related to the testamentary capacity, and freedom from restraint, of Lodema Ward, on the 29th October, 1879, on which day, as is alleged by the respondent, she executed an instrument purporting to be her last will and testament. She was unmarried. At her death, she left real and personal property. The appellants would have been entitled to her property, or a portion- of it, as heirs at law and next of kin, if she had died intestate. By her will she gave all her estate to the respondent, who was in no way related to her, and she appointed him sole executor.

At the trial of the issues, the respondent called Sheldon Moak as a witness to testify to the mental condition of the testatrix. He testified that he was a practicing physiéian; that he attended the deceased during her last sickness, and that on one occasion when he visited her as her physician, he met the respondent at her house. He was then asked to relate what occurred on that occasion, when the three were together, the respondent’s counsel stating ^that he proposed to show that the witness was introduced to Steele by IVTiss Ward, that they had general conversation about divers matters, and that the witness “made a test of the memory of the testatrix, then or thereafter, to ascertain her capacity to make a will.” The trial judge decided to receive the testimony^ of. the witness, to the extent indicated by the counsel for the proponent as-the intended range of the examination. To that ruling the-counsel for the contestant’s excepted. The witness, after haying been cautioned by the judge to avoid stating .any information received by him which was necessary to enable him to act as her physician, testified that Miss Ward introduced Mr. Steele as an old friend of hers, and said he had befriended her on different occasions and let her have money when she was in want. The witness stated more conversation of the dike tenor. He was then asked by the proponent’s counsel to state what was his impression in that interview as to the. condition of the testatrix, whether rational or irrational. The counsel for the contestants objected, that the testimony called for was within the prohibition of the statute, evidently referring to section 834 of the Code. The court overruled the objection and the counsel for the contestants excepted. The witness answered: “ Her gestures, and conversation, language, everything that I could observe, .impressed me as coming from a person of ordinary sound mind.” We have stated the facts bearing on the question, thus fully because we think such statement shows very clearly that the information disclosed by the witness was not necessary to enable him to act in his professional capacity. It was such information as any layman would have acquired in the same interview. This feature of the case takes it out of the statute, distinguishes it from Grattan v. Metropolitan Life Insurance Company (80 N. Y., 281), relied on by the .contestant’s counsel, and puts it on all fours with the cases of Edington v. The Ætna Life Insurance Company (77 N. Y., 564), and Staunton v. Parker (19 Hun, 55). The ruling was not erroneous.

The contestant’s counsel offered Amelia Ward, the wife of the contestant, Asa B. Ward, to testify to the “actions, conduct and sayings ” of 'the testratrix, on certain occasions when the witness was at her house in October, 1879. It was objected that the witness was incompetent to testify to personal transactions or communications between herself and the deceased, and the objection was sustainedj and the- testimony excluded. Section S29 of the Code provides that a “person interested in the event” shall not be examined as a. witness “ in his, own interest,” against a “person deriving his title or interest from, through or under a deceased person, * * * by assignment or otherwise;” concerning a “personal transaction or communication between the witness and the deceased person.” That the witness was directly interested in the event, and not in the question merely, seems clear. The success of her husband would immediately and certainly invest her with an inchoate right of dower in the real estate of the deceased.

In Anstey v. Dowsing (2 Strange, 1253) the defendant was a devisee, subject to an annuity to the wife of one Hailes, for life, for her separate use. The suit involved the validity of the devise, and it was held that the annuitant, although not a party, was directly interested in the result, as her annuity depended on the validity.of the devise, and so she was not a competent witness. That case was cited with approbation by Ld. Mansfied in Windham v. Chetwynd (1 Burr., 414, 424). In all the cases cited by the contestants’ counsel, the witness was interested in the question merely, and not in the event. The proponent is within the statute. Although not an executor in fact, he is seeking to establish by his proceeding a “ title or interest ” derived by him from the deceased, and that is enough. Can it be doubted that the question called for “ personal transactions and communications ” between the witness and the deceased within the meaning of those words as used in the statute % It does not appear that any third person was present. The offer was broad enough to include whatever the deceased did and said, including “ transactions ” and “ communications ” that passed between them personally. The objection was aimed at proof 'of such transactions and communications. If the contestants’ counsel did not intend to embrace such transactions and communications in his question, he should then have disclosed such intention, or so" framed his question as to have excluded testimony of that character. We think the ruling was correct.

The objection that the contestant, Asa B. Ward, was an incompetent witness to give like testimony was properly sustained, he being not only interested in the event, but also a party. As the actions and sayings of the deceased, which the question referred to, were relevant only as evidence tending to show the mental condition of the deceased at the time, and so bore directly upon the issue, .the witness was incompetent to testify to them for the reason that the occurrences called for transpired in tbn presence of the deceased and tbe witness alone, and if the deceased bad been living her version of what occurred might have contradicted bis. Tbe case was within tbe policy of the statute.

Tbe judgment and order should be affirmed, with costs to tbe respondent. «

, Order reversed and new trial ordered, with costs to abide tbe final award of costs.


source: Caselaw Access Project

author: Hajrdin, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE GENESEE VALLEY CANAL RAILROAD COMPANY and THE BUFFALO, NEW YORK AND PHILADELPHIA RAILWAY COMPANY, Appellants.

      Moira allowance— it cannot be granted where the value of the subject-matter involved is not shown— Code of Civil Procedu/re, see. 3253.
    A railroad company was authorized to construct its road along an abandoned canal from Rochester to Cuba. To avoid a heavy grade it proposed to leave the line of the canal near the village of Runda, pass to the west of it and again strike the line of the canal. An action, brought'by The People to have the road enjoined from leaving the line of the canal and to compel it to construct its road along the line thereof, was decided in favor of the defendant. Upon an application l^y the defendant for an extra allowance, affidavits were read tending to show that the new route could he much more cheaply constructed and operated by the company than could the old one.

      Meld, that the court properly denied the application upon the ground that the value of the subject-matter involved, upon which the allowance must he based, was not shown by the affidavits.
    Appeal from an order of the Ontario Special Term, denying a motion for an extra allowance.
    Action brought to restrain tbe defendant, Tbe Genesee Valley Canal Railroad Company, from building a railroad on one specified route,' and to require it to build upon another route.
    Tbe complaint was dismissed, with costs. Tbe order was refused upon tbe grounds “that the value of the subject-matter involved in this action cannot be computed, .and that this is not a proper case for such allowance.”

      Frmik 3. Smith, for the appellants.

      F. C. Peck and L. W. Russell, attorney-general, for the respondents.
   Hajrdin, P. J.:

By the complaint we find that this action was brought against the Genesee Valley Railroad Company, and the other defendant its lessee to prevent the former company from constructing its road along a proposed line, through the village of Nunda, and to require it to construct its road bed at another and different point in and through said village. By the act of the legislature (chap. 326, Laws of 1880) the commissioners of the land office were authorized and, directed to convey the Genesee Valley canal, lying- between Rochester and Cuba. 'This grantee, the railroad company, was authorized to construct a railroad track substantially on the line of the canal between the places mentioned.

To avoid an unusual and heavy grade, the Genesee Railroad Company diverged at a point about two miles north of the village of Nunda from the canal, on a line which passed west of it in a south-westerly direction, to a point about two miles west of Nunda, where it intersected the line of the canal. This line passed one-half to three-quarters of a mile west of the line of the canal where it passed through the village. The court held that the construction of this part of the line was authorized, and was a substantial compliance with the acts of the legislature.

Of course that holding must be assumed to be correct, as it was in force when the motion was made for an extra allowance, and so far as we are informed it is still in force. If the valley road had a right to construct its track where it was so doing, it was not required by any law to construct it in any other place, or on any other route.

The right to construct its track where it proposed to, and was constructing it, in the vicinity of Nunda, was challenged by the plaintiff. That right was the subject of the action. It would be difficult, if not impossible to determine upon the affidavits used at the Special Term, the value of that right in dollars and cents, so as to adjudicate an allowance upon the “value of the subject-matter involved.” (Code, § 3253 ; People v. Rockaway Beach Imp. Co., 28 Hun, 356; People v. N. Y. and S. I. F. Co., 68 N. Y., 83.) In tbe case last cited Andrews, J., said: “The subject-matter involved in the controversy was the right to erect the structure, and not the title to the materials or the value of the erections.”

In the case in hand the value of the right to construct the tracks on • the proposed route, cannot. be said to be measured by the expense of construction upon the proposed route, nor by a comparison with the cost of construction of a similar track upon another line. While that comparison of the relative expense of construction might ■ throw some light upon the question, it does not enable the court to say what is the money value of the right to construct a railroad embracing the proposed route.

,. In fine, we are of the opinion that the affidavits used upon the motion did not establish the value of the right to construct a roadr , -bed over the challenged portions of the line of road, which the Genesee Valley Railroad Company was engaged in constructing when the action was brought.

We may say, therefore, in the language of Learned, P. J., in People v. Rockaway Beach Improvement Co. (supra), “ nothing shows that it was worth one cent.” The existence of the right was disputed, and it has been adjudged to exist, but the proofs used at the Special Term do not establish its value.

Earl, J., said, in Ogdensburgh and L. C. R. R. Co. v. Vermont and C. R. R. Co. (63 N. Y., 179), that - the validity of a lease was involved, and added, viz.: The action was to determine its validity, and hence it was the subject-matter involved, and its value should have been taken as the basis of the extra allowance, and as there was no proof that it was of any value, the extra allowance of $4,000 was wholly unauthorized.” *

In Lattimer v. Livermore (72 N. Y., 183), it was said that the easement was the subject-matter involved in the litigation, and its value was proper as the basis of the allowance. That action was brought to restrain the defendant from infringing upon the alleged easement.

This case before us differs from People v. Albany and V., etc., Railroad Company, (16 Abb., 465), which was brought to compel the defendant to repair and operate its road. That was held a proper case, as the action affected property the value of which was determinable. Tbe value of the right to construct the tracks, at the points named in the complaint, near the village of Nunda," was not shown by the affidavits, and therefore we are of the .opinion that a proper case for an allowance under section 3253 was not made out.

The Genesee Yalley Railroad Company averred it had a right' to construct in the place proposed; the plaintiff denied that right. What was the value of that legal right was not established. The Special Term, therefore, properly denied the application for an extra allowance. (See Rothery v. N. Y. Rubber Co., 90 N. Y., 30).

The order should be affirmed, with ten dollars costs and disbursements. ” , '

Barker and Dwight, JJ., concurred.

So ordered.


author: Hardin, P. J.: Per Curiam :

text:
    WILLIAM H. KIMBALL, as Receiver, etc., v. WILLARD IVES and Others.

      Parties to am, action — stockholders ha/oe no legal right to he made parties to am, action hy a receiver of the compamy.

    The stockholders of a bank have no legal right to be made parties to an action, brought by a receiver thereof against certain of its directors to recover the-damages occasioned by their negligence and misconduct.
    Appeal from an order, entered in Jefferson county, refusing the application of Isaac H. Powers and others to be made parties plaintiff in this action, and from the whole of said order.
    The application seems, to have been made in order that the stockholders, seeking to be made parties plaintiff, might be enabled to prevent the receiver from accepting an offer of judgment made by the defendants, although no fraud or collusion on his part was alleged. ' A motion was made to dismiss the appeal.

      H. Smith, for the appellant.

      R. G. Williams, for the respondent.
   Hardin, P. J.:

Isaac H. Powers and others asked to be made parties plaintiff in g,n action brought by the receiver of the Merchants’ Bank of Water-town against the directors of that bank for neglect of duty while acting' as such directors. The plaintiff was regularly appointed receiver of such bank, and vested with the usual powers and charged with the duties appertaining to such receivership. He was a receiver for the creditors and stockholders. (Code, § 1788.) That section gives him power to maintain this action, and as plaintiff he is the ■ real party in interest within the letter and spirit of section 449 of the Code; and by the terms of the last cited section he was authorized to sue “ without joining with Mm the person for whose benefit the action is prosecuted.”

Appellant’s learned counsel insists it was the duty of the court to make such stockholders as he represents parties plaintiff in this action, and that the court had no discretion in the premises. We cannot agree with him. "We do not so construe section 452 of the Code upon which he relies. The section confers power upon the court “ where a person, not a party to the action, has an interest in the subject thereof.” And in a 'proper case the court must direct Mm to be made a party. Mr. Throop, in his note to that section, says such a power “ always rests in the sound judgment of the court.” The stockholders have no absolute right to be made parties to an action brought by a receiver of a corporation, to recover assets belonging to the bank or which vest in a receiver upon his appointment. Such a rule in a law action, as this is, would be an innovation, and would be burdensome and troublesome. The receiver being vested with the ownership of the cause of action, is the proper party to bring the action. If Ms conduct is improper or collusive he may be removed upon a proper application to the court for that purpose. Derham v. Lee (87 N. Y., 603) do'es not apply to the position of the appellants here as favorably as their assumption. There Sunderland had an interest in the cause of action and claimed under an assignment to own it, and he was made a party and the court held that it had the power to “ adjust the rights, not only between the plaintiff and ' defendants, but as ' between the co-defendants. The opinion óf Danforth, J"., says: “ The plaintiff’s rights depend upon the extent of Sunderland’s interest under the assignment of her intestate, and the defendant’s liability to her upon the same question.” Not so here. The receiver has a full legal title to the cause of action 'which he alleges in his complaint. Defendants are liable to answer that claim to the receiver; and payment to him thereof, or a release made by him, if sanctioned by the court, will operate to discharge them.

The appellants, who are some of the stockholders of the bank, have not such an ownership or interest in the cause of action, which the plaintiff alleges against the defendants, as entities them as a matter of right to be made parties plaintiff.

There could be a complete determination of the controversy without their being parties. (Newman v. Dickson, 5 Weekly Digest, 464.)

The Special Term exercised its discretion and applied “ sound • judgment ” in refusing the application of the appellant.

Order affirmed, with ten dollars costs and disbursements.

Per Curiam :

Without considering whether the order is appealable, we have come to the conclusion upon the merits, that the order should be affirmed.

As the notice of motion does not ask for costs, and as we have not deemed it useful to consider the question raised, as to whether the order is appealable, we deny the motion to dismiss the appeal, without costs.

Order affirmed, with ten dollars costs and disbursements ; motion to dismiss appeal denied, without costs.


author: Hardin, J.:

text:
    JOSHUA WADLEY and JOSHUA L. WADLEY, Respondents, v. JOSEPH DAVIS, now Deceased, JOSEPH H. DAVIS, Individually and not as Executor, HARRIET DAVIS and LUCY ELLEN DAVIS, Appellants.

      Death of judgment debtor — application for leave to issue an execution upon the judgment— Code of Civil Procedure, sec. 1881— Contents of the moving papers.

    Upon an application for leave to issue an execution upon a judgment recovered against a person, since deceased, made under section 1381 of the Code of Civil Procedure, an affidavit was presented, made by one of the two plaintiffs in the judgment, in which, after stating that the judgment was recovered by him and bis co-plaintiff, be said “ that said judgment is wholly unsatisfied and unpaid and is valid-and subsisting.” ' '

      Held, that the affidavit was sufficient to justify the court in granting the application.
    It is not necessary that the moving papers should contain a description of all the judgment debtor’s lands; and where certain of his real estate is described therein, it is no defense to show that the debtor had other lands not included therein. .
    Appeal from an order of the Oswego Special Term, granting a motion for leave to issue an execution against certain property of Joseph Davis, deceased, upon a judgment recovered by plaintiffs against him.

      William Tiffany, for the appellants.

      Cyrus Whitney, for the respondents.
   Hardin, J.:

Joshua Wadley, one of the plaintiffs, made an affidavit which was used upon the motion, in which after stating the recovery of a judgment by him, and his co-plaintiff, Joshua L. Wadley, in August, 1873, he says: ‘■'■That said judgment is wholly unsatisfied and •mypaid and is valid and subsisting.”

First. Appellants contend that the affidavit is insufficient, because not made by both plaintiffs; and, secondly, because no facts are stated from which it can be seen that the affiant knew that the judgment- had not been paid to his co-plaintiff.

Section 1381 of the Code of Civil Procedure provides for proceedings of this character. It declares, viz.: “ Leave shall not be granted except upon proof by affidavit, to- the satisfaction of the court, that the judgment remains wholly or partly unsatisfied.” If we give a strict construction to the word unsatisfied, in the language of the section we have quoted, it would be enough to say that the record of the judgment. must be shown to be £ wholly or partly unsatisfied ’ before the order for an execution to issue could be granted. If we give a more extended construction to the word £ unsatisfied ’ in the section^ then we come to the inquiry as to whether the judgment is in fact £ unsatisfied ’ wholly or in part.

The court is to require proof by affidavit that the judgment “ remains wholly or partly unsatisfied.”

The burden is -put upon the judgment creditor of adding to the presumption arising from the judgment, the fact that it remains wholly or partly “ unsatisfied ” in fact.

In clear positive words the statute permits the proof to be made “ by affidavit,” thus substituting a secondary method in place of common law proof, and dispensing with the oral examination of the witnesses. The sections 1380 ánd 1381 seem to be framed in harmony with the idea that the judgment being produced gives rise to the presumption of indebtedness existing at the time of its recovery, and which fact would control proceedings upon it if the debtor was alive. They then require in case of the death of the debtor that application be made to the surrogate who granted letters testamentary, or of administration, and also to the court in which the judgment was recovered, for leave to issue execution, thus giving two opportunities to defend against proceedings for leave to issue execution. The sections gave to the heirs and terretenants the right to be heard before their property is allowed to be taken, as did section 376 of the Code of Procedure. (Wallace v. Swinton, 64 N. Y., 194.)

In the affidavit before us the fact is positively stated, that the judgment remains “ wholly unsatisfied and unpaid,” and to that is added the fact positively stated, “ that the judgment is valid and subsisting.” The substantive fact in the affidavit is, that the judgment has not been paid. And we are not 'to assume that the affiant has intentionally or improperly made the statement, without having due regard to the force of the language used by him.

He states a negative fact, and states it positively. It does not depend upon a succession of facts, as does the question whether a given state of facts give rise to an indebtedness, or another given state of facts give rise to an intention to dispose, of property with intent to defraud creditors.

The cases of Smith v. Luce (14 Wend., 237); Ex parte Haynes (18 id., 611); Smith et al. v. Davis (16 Weekly Dig., 323) are not in point. We are of the opinion that the affidavit produced at the Special Term was sufficient to answer the requirements of section 1381, in regard to the judgment remaining “wholly or partly unsatisfied.”

Section 1380 provides that a judgment may be enforced “ against any property upon which it is a lien, with like effect as if the judgment debtor was still living.”

The affidavit used furnished -a description of certain real estate of the debtor, and we think it is no defense to the application to show that the debtor had other lands upon which the judgment was a lien. There is nothing in the sections regulating the proceedings, requiring a description of all the debtors property to be given before an order is made, that a judgment he enforced * * * with like effect as if the judgment debtor was still living. (Secs. 1379, 1380, 1381; Matter of Clark, 2 Abb. N. C., 208.)

Mr. Throop says in a note to section 1381, that the double proceedings are harsh to the judgment creditor,” and we do not think we should add to the requirements of the section. Nor do we see how the heirs, or devisees in this case, could be benefited by a more full description in the affidavit of the property upon which the judgment was a lien.

The lien is not taken away or forfeited by the omission, of the affiant, of some portion of the deceased’s property from the affidavit. The questions like the one considered on an appeal from a former order in respect to the power of an adjourned term to hear contested motions, are new, and as we then reversed without costs, we may properly here affirm without costs.

Smith, P. J., and Barker, J., concurred.

Order affirmed.


text:
    MARGARET CORNWALL, Appellant, v. JOHN CORNWALL, Respondent.

      Action for a separation — acts of cruelty committed after its commencement maybe setup in a supplemental complaint — the truth of the allegations cannot be determined upon the hearing of the motion.

    In an action for a separation from bed and board the plaintiff may be allowed to file a supplemental complaint setting forth acts of cruel and inhuman treatment, alleged to have been committed by the defendant since the time of the commencement of the action. They are admissible to give color to and to explain other matters put in issue by the plaintiff.
    The truth or falsity oí the allegations contained in the supplemental complaint cannot be determined upon the hearing of the motion for leave to serve it.

      Appeal from an order denying a motion for leave to fill a supplemental complaint in an action for a divorce a mensa et thoro. The action was begun September 15, 1882, by the service of a summons, but the complaint was not served until November 24, 1882.
    The plaintiff sought to have inserted in a supplemental complaint, matters occurring in September 26, 1882; matters occurring in December, 1882, and matters occurring in January, 1883. They were denied and explained in opposing affidavits. February, 1883, an order was made directing a settlement of the issues. In April, 1883, the order appealed from was made.

      Angus McDonald, fof the appellant.

      W. E. Edmonds and J. EL. Stébbins, for the respondent.
   Hardin, J.:

Whether the allegations made in the proposed supplemental complaint are true or false, ought not to be determined on affidavits and upon hearing the motion for leave to- serve such a complaint, nor whether they constitute an independent cause of action. (Mitchell v. Allen, 25 Hun, 543; Deutsche Nat. Bank v. Sonnerborn, 6 W. Dig., 153; Kennedy v. Kennedy, 73 N. Y., 369-374.)

But the matters occurring September 26,1882, before the original complaint was served, and known to the plaintiff, as they were, do not furnish a sufficient foundation for- the motion. By omitting them from the complaint, the plaintiff must be deemed to have waived his right to present them in his pleadings in this action. (McMahon v. Allen, 3 Abb., 89; S. C., 1 Hilt., 103; Houghton v. Skinner, 5 How., 420.)

The matters occurring in December, 1882, and January, 1883, arose after the service of the complaint, and it séems proper that they should be alleged, as they may reflect upon the other matters put in issue by the pleadings. (2 Bishop on Divorce, § 652, p. 657.) Demeanor subsequent to suit brought was allowed in England. (2 Bishop, § 663.) Mr. B. says: “ Plainly the facts alleged and existing at the time of suit brought, must be the ground of the proceeding, yet it is not easy to see why they may not receive color as well from what has happened since, as from What took place before.” (2 Bishop, § 657.) Before determining what decree should be pronounced, it may be proper for the court to consider the matters we have alluded to, and it cannot injure the defendant to have them alleged, and thus an opportunity given him to meet them at the trial. Indeed, it would seem to be more conducive to his rights and more to his advantage, that they be brought before the court under appropriate averments, than that they should be received under the general averments of the original complaint,, as giving color to the specific acts and matters contained therein. Mr. Bishop says, in section 652, volume 2, that under general allegations in the complaint, “ the court will look into the general conduct of the defendant toward the plaintiff, for the purpose of understanding more fully the particular circum- . stances complained of, and the true -relations existing between the parties.” (See Whispell v. Whispell, 4 Barb., 217.)

As the supplemental complaint does not propose a new and substantial cause of action, the application is wholly unlike the one made in Milner v. Milner (2 Edw. Ch., 114), where the complaint sought to set up acts of adultery committed after the original bill was filed.

We see nothing in Prouty v. Lake Shore Railroad Company (85 N. Y., 292) adverse to the appellant. There the court sanctioned an order bringing in a third party who had become interested in the litigation. The court had ample power, under section 544 of the Code of Civil Procedure, to allow the supplemental complaint, “ either in addition to or in place of the former pleadings.” And section 1764 provides that a complaint in cases like this “must specify particularly the nature and circumstances of the defendant’s misconduct, and must set forth the time and place of each act complained of with reasonable certainty.” We think the motion was made sufficiently prompt, and that it ought not to have been denied for laches. Indeed we see nothing in the papers indicating that its denial was put upon that ground. The order should be reversed and the plaintiff allowed to renew her application at the Special Term.

Order reversed, with ten dollars costs and disbursements, and plaintiff granted leave to renew her motion at Special Term.

Smith, P. J., and Barker, J, concurred.

So ordered.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. CHARLES E. POUCHER, Jr., Appellant.

      Indictment — amendments of , as to the kind of agüeles stolen — when not allowed— Code of Criminal Procedure, sec. 293.
    Section 293 of the Code of Criminal Procedure authorizing the court upon the trial to amend an indictment where a variance, between ¿he allegation therein and the proof, in respect to time, or in the name or description of any place, person or thing, shall appear, if the defendant cannot be thereby prejudiced in his defense on the merits, does not authorize the court to amend an indictment for grand larceny, charging the taking of a ring of the value of eight dollars, and certain gold and silver coin of the value of eighty dollars, by substituting for . the allegation as to-the taking of the gold and silver coin, others charging the . taking of “bank bills,” lawful money of the United States, of a kind, number and denomination unknown, and upon banks unknown, of the value of forty-five dollars, a more particular description of which cannot be given.
    Appeal from a judgment of the Court of Sessions of Onondaga county, convicting the' defendant of the crime of grand larceny in the second degree.
    The appellant was convicted of grand larceny, in the Onondaga County Court of Sessions, and sentenced to the State prison.
    The indictment charges that by means of a draft for fifty-three dollars and twenty-five cents, drawn by the defendant upon H. M. Whitney, he obtained from Joseph Seymour and others, “ one ring of the value of eight dollars, two gold coins of the kind usually known as eagles, of the value of ten dollars each, two gold coins of the kind usually known as half eagles, of the value of five dollars each, fifty silver coins of the kind usually known as dollars, of the value of one dollar each, of the- proper money’s, yaluable things, goods, chattels, personal property and effects of the said J oseph Seymour, * * and * * did designedly receive and obtain the said ring of the value of. eight dollars, two gold coins usually known as eagles, two gold coins usually known as half eagles, fifty silver coins usually known as dollars, of the value aforesaid, of the said Joseph Seymour, * * by means of false pretenses, and representations aforesaid and with intent, feloniously to cheat and defraud the said Joseph Seymour * * of said ring, coins, and-money aforesaid of the value aforesaid.”

      By the proof it appeared that the appellant obtained the ring described in the indictment, but did not obtain any of the other property described in the indictment, but did obtain forty-five dollars in currency, and twenty-five cents in coin or change.
    Upon the trial' the court granted an order directing, “ that said indictment in this action be amended by substituting therein in the place and stead of the words fifty silver coins of the kind usually known as dollars of the value of one dollar each, and in the place and stead of the property described in, and set forth as dollars and silver coins in said indictment, wherever the same occur therein, the words following, to wit: bank bills, lawful money of the United States, of a kind, number and denomination, unknown, and upon banks unknown, of the value of. forty-five dollars, a more particular description of which cannot be given.”
    Ajl exception was taken by the defendant when the amendment was ordered. The indictment was not changed in fact. The District Attorney refused to allow the indictment to be changed, and it never was changed, he claiming that the order operated as an amendment.

      John H. Drake and Fuller <& Kellogg, for the appellant.

      H. Hoyt, district attorney, for The People.
   Hardin, J.:

Inasmuch as the jury found a verdict of guilty the prisoner was convicted of grand larceny, and sentenced for such offense ; as for the offense of grand larceny in the second degree, section 534 of the Penal Code. Therefore, it is important to inquire whether the conviction of the defendant of grand larceny, in the second degree, wvs regular and in accordance with law.

The indictment charged the defendant with obtaining one ring of the value of eight dollars, and certain coins. There was proof that he obtained the ring, under such circumstances as to bring the case within the provision of section 528 of the Penal Code. There was no proof of obtaining the coin named and described in the indictment, or of any other coin which would amount to more than eight dollars' and twenty-five cents. There - was, therefore, no proof of obtaining the things named in the indictment, of a value beyond eight dollars and twenty-five cents, and hence the proof sustained the indictment only to the extent named, and that valuation would carry the degree of the defendant’s crime within the definition of petit larceny.

But the respondents were allowed to substitute 'for the coin named another thing. They did not ask to make an amendment to the indictment which would change the description of the thing named? The name of. the thing described in a general sense was coin; in a specific sense, eagle, half eagles, silver dollars. •No proof was furnished that the name of the thing described was erroneous or imperfect.

But it turned out in proof that the defendant did not obtain the things named, and- that he did obtain currency, an entirely different thing. Section 293 of the Code of Criminal Procedure, has lodged with the court a new power in respect to indictments, and authorized their amendment in certain cases where there is a “variance between the allegation therein and the proof in respect to time, or in the name or description of any place, person or thing.” If there had been an erroneous description of the coins named in the indictment, doubtless the description might have been amended and been made to eonform to the .proof.

But we do not see how one thing named-, to wit, coin, can be stricken out and another thing, to wit, currency, be substituted in place of the thing stricken out, under the guise of amending the description of the thing named.

In short, we are of the opinion that the section does not authorize an amendment of an indictment which charges the larceny of coin enumerated, by inserting an allegation of currency or of “ bank bills, lawful money of the United States, of a kind, number and denomination unknown, and upon a bank unknown.”

Therefore we say the amendment was not warranted by section 293 of the Criminal Code, and its allowance was error, prejudicial to the defendant. If the amendment had not been allowed, the grade of the offense would have been that of petit larceny; with the amendment allowed, the general verdict established an offense of the grade of grand larceny in the second degree.

Numerous other exceptions were taken in the course of the trial, which need not be examined, as we are of the opinion that a new trial should be granted for the error we have pointed out.

Judgment and conviction, and order amending tbe indictment, and tbe order denying a new trial reversed, and proceedings remitted to tbe Court of Sessions of Onondaga county, with directions for a new trial.

Smith, P. J., and Barker, J., concurred.

Judgment, conviction, order allowing amendment and new trial ordered in tbe Court of Sessions of Onondaga county, and order denying new trial reversed.


author: Barker, J.:

text:
    THE FLOUR CITY NATIONAL BANK OF ROCHESTER, Respondent, v. GEORGE GARFIELD, as General Assignee, etc., of S. & J. A. HARWOOD, Appellant.

      Draft discounted upon the faith of goods shipped by the drawer — when the pa/rty discounting it acquires an equitable lien upon the proceeds of the qoods.

    On May 23, 1881, one Harwood, the sole surviving member of a firm, shipped on hoard of a canal boat, of which he was a part owner, a cargo of wheat belonging to the firm to be transported from Holly, Hew-York, to Ege & Otis, commission merchants in the city of New York. On the twenty-fourth Han-wood drew a draft in the firm name upon the assignees for $5,000 and procured the same to be discounted by the plaintiff, the plaintiff being then informed that the wheat had been so shipped, and understanding that the draft was drawn against the credit thereof, and relying upon the agreement that the draft was to be accepted and paid by the consignees, from the proceeds of its sale. On the same day Harwood wrote to the consignees, inclosing the bill of lading and a policy of insurance upon the wheat, both of which were taken out in the name of the firm, informing them that he had drawn the draft on the wheat and requested them to accept it.
    On May twenty-fifth, Harwood being insolvent, made a general assignment for the benefit of his creditors. The assignee seized the.wheat before it reached the consignees and sold it. The consignees having failed to accept the draft the plaintiff brought this action to have a lien upon the proceeds of the wheat established in its favor as against the assignee.

      EM, that it was entitled to the relief sought for.
    Appeal by tbe defendant Garfield, from parts and portions of a judgment, entered on tbe report of a referee.

      William E. Hobby, for tbe appellant.

      Thomas O. Montgomery, for tbe respondent.
   Barker, J.:

The purpose of the action is to secure a decree declaring a lien in the plaintiffs favor, on certain funds in the hands of the defendant Garfield, as the assignee for the benefit of the creditors of one Jeffrey A. Harwood, survivor of himself, and Simon Harwood, who did business as merchants, under the copartnership name of S. & J. Harwood. The judgment upheld the lien as claimed by the plaintiff and directed its payment. So much of the decree as determines the rights of the other defendants is acquiesced in by all parties.

The material facts upon which the plaintiff’s rights and equities are, based, are as follows: At the time of the death of Simon Harwood, which occurred on the 17th day of April, 1881, the firm were the owners of a quantity of wheat, in store, in their warehouse in Holly, N. Y. Thereafter, and on the twenty-third of May, the survivor, J. A. Harwood, shipped the same on board of a canal boat, of which he as surviving partner was part owner, consigned to the defendants Ege & Otis, commission merchants doing business in the city of New; York. A bill of lading in the usual form was prepared, signed by the master of the boat and also by the defendant Harwood, in the name of the late firm. In this instrument the quantity and variety of wheat is given, but no mention is made.on whose account the- cargo was shipped, or the rights and interest of parties therein. On the same day a policy of insurance was taken out on the wheat in which the name of the late firm is also mentioned as owners. On the next day, May twenty-fourth, the defendant Harwood, in the name of the firm,, drew his draft on the consignees for $5,000, at thirty days, payable to the order of plaintiff’s cashier, and caused the same, to be presented to the plaintiff for discount, which was arranged and the proceeds paid over in cash to the drawer.

The bank sent the draft forward to the drawees for their acceptance, which was declined, and the draft was thereupon protested for non-acceptance and remains unpaid. On the day the draft was discounted, the drawer, Mr. Harwood, forwarded to the consignees a letter of advice, in which the bill of lading and policy of insurance were inclosed, with the request that they would accept the draft. The paragraph relating to that subject being as follows: “We inclose you bill of lading and policy of insurance, on boat load of wheat shipped on board of boat Harwood, estimate quantity seventy-eight hundred bushels. * * * We made a thirty day draft on you, at the Flour City National Bank, on the wheat for five thousand dollars, we want to use this amount now. Please accept and oblige.” On the day succeeding Harwood being in insolvent circumstances, made a general assignment to the defendant Garfield for the benefit of his creditors. Before the wheat reached the consignees, Garfield, the assignee, took possession of the same, converted it into money and thd avails amounting to $9,000 were in hand at the time of the- commencement of this suit, and are now on special deposit by an arrangement of the parties, to abide the result of the litigation. v

The plaintiff’s claim is this, that by virtue of an understanding with the drawer of the draft made at the time the same was discounted, the bank secured an equitable lien upon the wheat against which the draft was drawn and the same being converted into money, the lien followed the fund and should now be paid out of it in preference to the other creditors of the drawer, as provided for in the assignment.

The assignee disputes this claim and insists that there is no equity in the plaintiff’s favor superior to the rights of the other creditors of the insolvent. This presents the only question for our determination on this appeal. '

The learned referee in his report of the facts as to the arrangements between the drawer and the bank made at the time of the discount, finds: That at the time the bank discounted the draft it was informed that the wheat had been shipped to Ege & Otis as consignees; that such discount was made upon the credit of the wheat which had then been shipped by the drawer, and that the plaintiff relied upon the avails of the wheat for the acceptance and payment of the draft.

Upon this finding and the other undisputed facts and circum ' stances in the case the referee held that the bank acquired a lien or an interest in the nature of an equitable assignment upon the property, which followed the fund, and directed the payment of the draft out of the same. In this disposition of the rights of the parties to this appeal we fully and unhesitatingly concur.

At the time of the shipment Harwood was the owner of the wheat, as such owner could sell the same or place a lien thereon in favor of creditors, or convey the same in trust for their benefit. That it was his intention and purpose to create a fund, to be' realized on a sale of the wheat, to pay the draft discounted by the plaintiff, is a fact admitting of no controversy in view of the evidence and circumstances of the case. The letter of advice clearly expresses such intention, and invited the consignees of the property to accept the same as a surety for the holder, and placed the cargo at their disposal as an indemnity against their liability. It is a just and reasonable inference to be drawn from the consignors own acts, that hesintended to place the property in the hands of the consignees to secure from them the favor of an acceptance, and the legal inference frofn these facts is to the same effect, so far at least as these parties are concerned.

The consignees having declined to become parties to the draft, they failed to secure any interest in the consignment, and the assignee of the consignor having the legal title to the goods by virtue of the assignment was justified, and it was his duty, as against any claim which the consignees might- make, to seize the cargo and take charge of the same, subject to such liens and equities as the law gave the owner of the draft, in the property, arising out of the transaction.

The draft in connection with the agreement of the parties in legal effect, is an order upon a particular fund, for the payment of the moneys loaned thereon, and the property became hypothecated for its payment prior to the conversion of the same into money.

The draft in and by itself would not affect the fund expected to be created by the sale of the property, for standing alone, disconnected from all the other circumstances in the case, it would not indicate a purpose on the part of the drawer to pay the same out of a special fund to be realized -from a particular source. (Chapman v. White, 2 Seld., 412.)

The lien or interest of the claimant in the property or fund sought to be reached, has its foundation in a special agreement or implied understanding of the parties, entered into at the time of the purchase of the draft, and in upholding the lien and devoting the property to the payment of the debt, the courts execute the agreement and carry out the understanding of the parties.

The principle invoked by the plaintiff is the doctrine of equitable assignments, as the same is established in reported decisions upon that subject. ■ '

In Burn v. Carvalho (4 Milne & Craig, 690), the rule contended for by the plaintiff was laid down and applied to the facts as they appeared in that case. Fortunato, a merchant in Liverpool, being under pecuniary obligations to the plaintiffs, and having property in the hands of his agent Rego, at Bahia, promised and agreed with the plaintiffs to apply such property' to the discharge of his liabilities to the plaintiffs, and sent directions to his agent to convert the property and apply the same for that purpose, but became bankrupt before such instructions Could reach Rego. The chancellor held that, notwithstanding the assignment by the bankrupt, the plaintiffs had an interest in the goods in the nature of a lien, which equity would protect, stating the rule to be, that an order given by a debtor, to his creditor, upon a third person having funds of the debtor, to pay the creditors out of such funds, is a binding, equitable assignment of so much of the fund.” That the equitable lien had its foundation in the agreement of the debtor to pay the creditor out of the particular fund.

The recent case of Parker v. Baxter (the decision in the Supreme Court being reported in 19 Hun, 410), is in point. The facts in essential particulars are similar to those in this case, and it was there held that the purchasers of a bill of exchange, drawn against a consignment of property, had an interest in the fund derived on a sale of the property in the nature of an equitable assignment. A short statement of the facts is all that is necessary to bring to view the principle of law which controlled the decision. Baxter & Co. were the owners of a- quantity of corn which they had ordered aboard of a vessel in New York harbor, then loading for Liverpool, and received a bill of lading from the master of the vessel, by the terms of which the corn was consigned to the Bank of Liverpool. They then drew a bill of exchange on that bank, payable to the order of Brown, Shipley & Co., of London, which, together with the bill of lading, was presented to Brown, Brothers & Co., of the city of New York, who purchased the same for the benefit of the drawers and paid them the proceeds. On the same day Baxter & Co. wrote their consignee, the Bank of Liverpool, stating that the corn had been shipped and a draft drawn against the same, inclosing the bill of lading with a letter of advice stating that they had drawn against the corn. Before the ship left the port Baxter & Co. failed and made a general assignment for the benefit of their creditors. Thereupon Brown, Brothers & Go., the purchasers of the draft, laid claim to the corn and claimed possession for the purpose of securing payment of the draft-out of the same. Parker, the plaintiff, who sold the corn to Baxter & Co., not having received his pay, claimed title to the corn upon the alleged ground that the delivery by him of the corn was conditional, and several actions at law were commenced, each party seeking to gain possession of the corn. It was then stipulated that the corn should be sold in the New York market and the fund deposited to await the determination of the rights of the parties. All the claimants yere before the court in an action in the nature of a suit in equity, and it was held that the drawer’s order on the bank, by virtue of the arrangement between the parties, created a charge or lien upon the corn and its proceeds in favor of the parties discounting the bill; that it amounted to an equitable assignment in favor of the owners of the draft, who had advanced their money upon the faith of the arrangement.

This case was affirmed in the Court of Appeals (86 N. Y., 586). The court did not express an opinion on the auestion we are considering.

The case of the Bank of Rochester v. Jones (4 Comst., 497) is also an authority for holding that the plaintiff’s lien is superior to the other creditors of the insolvent, who are represented in this litigation by the assignee.

In that case Foster, the owner of 200 barrels of flour, procured a forwarder’s receipt for the same, and upon the strength of it procured a discount from the plaintiff’s bank upon a draft drawn by him on the defendant Jones, the same being sent forward to Jones, the consignee, for acceptance, with the receipt attached. Jones on receipt of the draft refused to accept the same, but detached the forwarder’s receipt and returned the draft dishonored, and afterwards took the flour from the boat and sold it on his own account, he at that time being a general creditor of Foster, the shipper and drawer of the draft. In an action of trover by the bank against Jones, for a conversion of the property, the bank was non-suited and the same was set aside on appeal, the óourt holding that the bant had such an interest in the property that it could maintain an action at law for the conversion of the same. In delivering the opinion of the court, Judge Paige remarked: “If the bank of Rochester had filed a bill in equity for relief, it is quite clear that the bank would have been entitled to a decree declaring their demand against Poster, for the moneys advanced on his draft on Jones, an equitable lien on the flour. * * * Having advanced their money on the faith of, and at the time of the making of the agreement, that the flour should be held as security for the acceptance or payment of the draft, their equitable claim to a lien on the flour, was both superior and prior to that of Jones for his preexisting demand for the balance of his general account against Poster.”

The case before us is in every respect parallel to this. The circumstance that Poster delivered the bill of lading to the bank at the time the draft was purchased, instead of sending it forward himself to the consignee, is not controlling, as it is only an item of evidence either way, as indicating the intention and purpose of the owner of the property to place a lien thereon, to secure the loan of money.

In this case Harwood, the drawer of the draft, himself sent forward the bill of lading with the intention, that Ege & Otis, should have in their hands evidence, that the title to the wheat was in them if they should assent to the condition imposed, an acceptance of the draft.

In Jones’ case, as well as this, the bill of lading did reach the hands of the consignee, and in each case the same was detained by the consignees, and all the other material facts are the same.

There is an almost unbroken line of judicial expression, to the effect that upon a state of facts such as are found by the referee, the purchaser of the draft has an equitable lien upon the property against which the draft is drawn, as a security for the payment of the money advanced, and the same can be enforced in a court of equity, whether the drawee accept the draft or not, and the same attaches from the time .of discounting, and continues after the goods reach the consignee, and if the draft is not paid before, the lien adheres to the funds derived from the sale of the property. (Marine Bank v. Jauncey, 1 Barb. [S. C.], 486; Hoyt v. Story, 3 id., 263; Clark v. Mauran, 3 Paige, 373; Morton v. Naylor, 1 Hill, 583; Cayuga County Bank v. Daniels, 47 N. Y., 637; Bailey v. Hudson River R. R. Co., 49 N. Y., 77.)

The evidence justifies the conclusion reached by the referee, that the draft was discounted by the bank upon the credit of the wheat which had been shipped by the drawers, and relied upon the avails of the same for the acceptance and payment of the draft. The president of the bank testified that Garfield, who acted as the drawer’s agent in procuring the discount, told him that the wheat had been shipped the day previous to Ege & Otis, and that the draft was drawn against such shipment. This evidence, in connection with the letter inclosing the bill of lading to the consignees, accompanied with the request that they accept this draft, justifies the conclusions of fact found .by the referee and they should not be disturbed.

• It appears from the report that the fund is sufficient to pay the plaintiffs’ draft in full. As the appeal is limited to such portions of the decree as directs the payment by the assignee to the plaintiffs of the amount of their draft, and the defendants Ege & Otis acquiesce in the provision establishing the plaintiffs’ priority, no other question is before us for consideration.

Judgment is affirmed, with costs.

Present — Hardin, P. J., Barker and Dwight, JJ.

So ordered.


text:
    BUFFALO LUBRICATING OIL COMPANY (Limited), Respondent, v. CHARLES M. EVEREST, Appellant, Impleaded with HIRAM B. EVEREST.

      Com/plaint — stríláng therefrom of irrelevant allegations — when no action lies for the bringing of an unfounded suit.

    This action was brought to recover the damages alleged to have been occasioned by the wrongful acts of the defendants in confederating and conspiring together to prevent the plaintiff from carrying on its business in Buffalo, and to cripple and bankrupt it and prevent it from selling the articles manufactured by it. After setting forth different acts of the defendants tending to establish the cause of action, the complaint alleged, in separate and distinct paragraphs, that the defendants, in pursuance of and to accomplish the purposes of the conspiracy, caused several actions to be commenced against it by another corporation, of which they were the chief executive officers and managers, and in which they were stockholders; that the actions were still pending and were without merit and brought for the purpose of bringing ruin and bankruptcy upon the plaintiff.

      Held, that as there was no averment or pretense that the defendants had resorted to any abuse of the process of law in the prosecution of the actions referred to in the complaint, the allegations relating thereto were irrelevant and should be stricken from the complaint.
    Appeal from an order made at Special Term denying the defendant’s motion to strike out portions of the complaint as irrelevant.
    The complaint alleges that the defendants combined and confederated together to deter and prevent the plaintiff from carrying on its business in the city of Buffalo; to cripple and bankrupt the plaintiff; to prevent the sale of the articles which it manufactured and to destroy the reputation of the same among its customers. That in pursuance of the conspiracy, and to effect the purpose mentioned, the defendants enticed from the plaintiff’s service one of its' skilled workmen, and by sending letters and the use of other means solicited various persons, customers of the plaintiff, not to purchase oil from it, and threatened them with law suits and expenses if they’continued to patronize the plaintiff and purchase its manufactured articles. It then alleges in separate and distinct paragraphs, each of which is numbered, that in pursuance of the conspiracy and to accomplish the purpose of the combination, as alleged, the defendants caused several actions to be commenced in the name of the Vacuum Oil Company against the plaintiff, and one in the name of the defendant Hiram B. Everest, stating the object and purpose of each suit and alleging that the same are without merit, and brought for the purpose of bringing ruin and bankruptcy upon it, accompanied with an averment that all of such suits are still pending.
    The plaintiff is a corporation organized under and in pursuance of the laws of the State of New York, engaged in the manufacture of oils at the city of Buffalo.
    The Vacuum Oil Company is a corporation organized under the same laws, and the defendants are its chief executive officers and managers, and are also stockholders therein^

      Thomas G. Outerbridge, for the appellant.

      Gorlett <& Hatch, for the respondent.
   Barker, J.:

Some of the paragraphs of the complaint embraced in the motion to strike out, relate to the averments concerning the commencement and prosecution of actions against the plaintiff as one of the means resorted to, by the defendants to effect the ruin and bankruptcy of fhe plaintiff, and to drive it out of the business of refining oil. As the complaint alleges' that these suits are still pending and undetermined, and there is no averment or pretense that the defendants have resorted to any abuse of the process of law in the prosecution of these actions, the matter averred concerning these suits is in my judgment irrelevant and should be stricken out.

Any unlawful act done with a view of injuring another in his reputation, business or property, is actionable if damage result therefrom. The prosecution of suits in the organized courts of the State is. a lawful and legitimate act, and so long as the result is undetermined it cannot be said to be unjustifiable. A conspiracy consists +in the unlawful combination or agreement of two or more persons to do an act unlawful in itself, or to do a lawful 'act by unlawful means. These constitute the very substance and essence of a conspiracy, as the same is understood and defined in the law.

The allegation of conspiracy between the defendants to commit the act complained of, is of no importance so far as it respects the cause and ground of action. A simple conspiracy, however atrocious, unless it results in actual damage to the party against whom the conspiracy is aimed, is not the subject of a civil action. It is only necessary to be averred and proved, where a verdict is demanded against two or more defendants. If there be a failure to prove the combination, then the plaintiff is entitled to a verdict against either defendant upon whom an unlawful act is proved to the damage of the plaintiff. (Hutchins v. Hutchins, 7 Hill, 107; Savill v. Roberts, 1 Lord R., 374; Parker v. Huntington, 2 Gray, 124; Bowen v. Matheson, 14 Allen, 499; Laverty v. Vanarsdale, 65 Pa., 507.)

If the allegations of the complaint relating to the prosecution of the suits were separate from the other averments as to the means resorted to, to affect the purpose of the conspiracy, the action would then be, in its nature and character, an action on the case for a malicious prosecution. Should these allegations be allowed to remain as pertinent averments, then the defendant is at liberty to take issue, with the plaintiff on the charge, that the suits were begun and were prosecuted maliciously, without merit or probable cause. It would be a grievance to the defendants, as well as impracticable, to compel them to try these questions in this action. The fact that the subject matter of the suit pertains to the business in which the plaintiff is engaged, does not change the case or make the acts of the defendants in instituting the suits unlawful. There is no averment in the complaint, that the defendants have resorted to any act, which can be construed to be an abuse of the process of the court. In actions of this character it is not necessary to aver and prove that the process improperly employed is at an end, nor that it was sued out without reasonable or probable, cause. (2 G-reenl. Ev., § 452; 2 Add. on Torts., 155.) Actions of this character may be maintained whenever the.person who sues out the’ process uses the same for some private purpose of his own, not warranted by the exigencies of the writ or the order of the court, and is liable for damages for such abuse.

The case of Bebinger v. Sweet (1 Abb. N. C., 263) is not an authority in support of the plaintiff’s position. In that case it was alleged that the defendant caused the plaintiff to be arrested for embezzlement as a means of accomplishing an unlawful purpose, and upon the trial it was proved that the plaintiff was arrested and gave bail, and while before the court the defendant’s counsel advised the plaintiff to settle or the defendant would send him to State prison. It was held by the court upon review, that it was not necessary to allege that the prosecution had ended; that it was essentially an action against the defendant for the abuse of the process of the court for the purpose, illegally and wrongfully, by that means, to compel the plaintiff to surrender up his property and rights to the defendant. In that case the abuse of the process consisted in making the threat, that if the plaintiff did not settle the demand which the defendant made upon him, then he would send him to prison. It was a plain attempt to make use of the process which had been issued at tlie instigation of the defendant, by virtue of which the plaintiff was at the time in custody, to intimidate and frighten him into a compliance with the demands of the prosecutor in reference to other matters of a personal character.

It is an abuse of the process of the court to issue execution upon a satisfied judgment, and seek to enforce the same by levying upon and selling the property of the defendant. (Swan v. Saddlemire, 8 Wend., 676.) And to the same effect is Barnett v. Reed (51 Penn., 190); see, also, Mayer v. Walter, 64 Penn., 283.)

Paragraphs five, six, seven, eight and ten relate wholly to the pending suits, and should be struck out as irrelevant. Paragraph four relates entirely to the acts of the defendant in enticing from the plaintiffs’ employment its servants, and should be retained.

It is urged by the defendant that the complaint in this respect does not set up sufficient facts so as to make it appear that the defendant’s conduct in this respect was actionable. It was not necessary to set out the facts with more particularity, as if relying solely upon them as the cause of action. The act charged is averred as one of the means by which the defendant sought to accomplish another and an unlawful purpose, which is the real cause of action alleged.

Paragraph two, contains pertinent matter stating, the business and pecuniary relations which the defendants hold1 towards the Vacuum Oil Company, and should be also retained.

The order appealed from is modified by striking out paragraphs five, six, seven, eight and ten and retaining paragraphs- two and four. •

No costs to either party.

Present — Hardin, P. J., Barker, and Dwight, JJ.

Order modified as stated in the opinion of Barker, J., without costs. The order to be settled by Mr. Justice Barker.


text:
    PATRICK H. AGAN, Respondent, v. GEORGE W. HEY and EMIL LAAS, Appellants.

      JBMdenee — plea of a former judgment — how the grounds of the former decision may be proved— the justice cannot testify as to the reasons for his decision.

    This action was brought to recover the rent which had fallen due, under a lease of certain rooms, for the period of one year from May 1, 1879. The defendants set up as one of their defenses, that an action to recover rent upon the same lease had been brought against them by the plaintiff in a Justice’s Court, in March, 1880, and that a judgment had been entered therein, in their favor. The plaintiff claimed that the said judgment was not a bar to this action, because it was rendered upon the ground that the rent did not fall due until the end of the year, and that none was at the time of such judgment due.
    Upon the trial of this action the pleadings used and the evidence taken in the former action were read, together with-the record contained in the justice’s docket. The justice, who was called as a witness, was asked and allowed to state that he decided the former case in the defendants’ favor upon the ground that the rent was not due at the time of the commencement of the action.
    Meld, that the court erred in allowing him so to do.
    Appeal from a judgment of the Onondaga County Court, in favor of the plaintiff, for the sum of $200 damages, and fifty-three dollars costs.
    The action was originally commenced in a Justice’s Court, and was retried in the County Court before a jury.

      Hancock <& Munro, for the appellants.

      Frank Hiscock, for the respondent.'
   Barker, J.:

This action is for rent, founded upon a parol lease for certain rooms, in a block of buildings situated in the city of Syracuse.

The property was owned by one Dr. "Wieting, who rented the same rooms to the plaintiff in this action. Agan had sublet the same to one Teal, who was in possession of the same at the time the agreement was made upon which the action is founded.

It is claimed by the plaintiff that Teal sublet these rooms to the defendants for the period of one year, commencing on the 1st day of May, 1879, at and for the annual rent of $276, to be paid to Teal, he reserving the privilege of occupying a desk, for his own use, in the same offices.

Tbe defendants admit that they did enter into an oral agreement with Teal for the use and occupancy of the rooms, and went into possession under him on the first day of May, but claim that they were at liberty to vacate at any time they elected so to do within the year, and were to pay rent at and after the rate of $275 per year. They did, in fact, vacate the rooms the first day of September, and had paid sixty-eight dollars and seventy-five cents on the lease, which was equal to one quarter’s rent.

The plaintiff gave evidence tending to show, that by an arrangement made between himself and Teal, and assented to by the defendants, the rent as it became due should be paid to him, and to this the defendants assented, so as to give the right of action to the plaintiff if they were guilty of any breach of their contract.-

The pleadings were very general, the plaintiff declaring for rent and for use and occupation of rooms in the Wieting block, amount $200. The defendant’s answer was a general denial, pleading payment and former suit in bar, and misjoinder of defendant Duell.

Upon the trial in the County Court the plaintiff’s evidence tended to prove the contract as alleged by the plaintiff, that the time was for one year, at the annual rent of $275, which entitled him, if the same had not been disputed, to a verdict in the sum of $200, as rendered by the jury.

The defendants’ evidence contradicted the plaintiff’s proofs as to the terms of the lease, and tended to maintain their position, that they had the privilege of terminating the lease at any time, and that plaintiff’s verdict' should have been limited to the sum of thirty dollars with interest.

In support of defendants’ answer of former suit in bar, they proved that in March, 1880, which was before the expiration of the year, this plaintiff commenced an action against them and one Holland Duell for rent then due, before one Hancock, a justice of the peace, and final judgment was entered therein in their favor in March, 1880.

All the questions presented for review on this appeal arise as to , .the force and effect of this judgment as a bar to a recovery in this -case, and to the rulings of the court upon questions connected with .this issue. 'The pleadings in the first suit- were very general, the .complaint being for use and occupation of rooms in Wieting’s block, and for rent due on lease $200.

The answer contained a* general denial,'a plea of payment, and a misjoiner as to the defendant Duell. In connection with the reading of the record contained in the justice’s docket, all the evidence which was given on the former trial was read in evidence upon this trial. On that trial the plaintiff sought to recover two quarters’ rent which he claimed was then due, which was $137.50.

It is admitted that this action is upon the same contract, and for the same cause of action for which the former suit was prosecuted, and no claim is made by the plaintiff but that, that suit is a bar to a recovery in this, so far as the two quarters’ rent are concerned, if at that time such rent was due.

At the time of- making the contract nothing was said as to the time when the rent should be made payable, and disregarding what afterwards occurred between the -parties to this action, the rent would be payable at the end of the year and not before, if as the plaintiff claims the lease was for one year.

The plaintiff did demand rent of the defendants at the end of the first quarter and at the expiration of the subsequent quarters, and gave some proof tending to show that in leases of this character, where the same were silent on the subject, it was the custom of the place to pay quarterly. Upon all the proofs relating to this question, I think a question was presented for the justice to determine as a mixed question of fact and law, whether the rent was payable quarterly or at the end of the year.

The defendants’ general denial put the plaintiff to his proofs as to the time when the rent became due and payable, and from the nature and character of the same as they are now presented to us, they were indecisive in their character, and the intention of the parties was to be ascertained as a question of fact. If the rent was not due, then the determination of that issue in the defendants’ favor, is no bar to a recovery for the same cause of action in this.

If by the terms of the contract any portion of the rent was due -at the time of the commencement of this action, then the suit stands as a" bar to a recovery, and if the plaintiff wished to prevent the judgment having that effect, he should have caused the justice’s judgment to be reviewed- in the proper tribunal and the erroi corrected. (Wilcox v. Lee, 26 How. Pr. R., 418; Colburn v Woodworth, 31 Barb., 381.)

The question whether the former adjudication was a harto a recovery in this action, was on' the trial made a question of fact by the rulings of the 'court, and was submitted to the'jury for their determination. The learned judge charged the jury,, among other things : “ That if the jury find that Justice Hancock decided the case for the defendants on the merits, then it is a bar and the plaintiff cannot recover, but if they find that Justice Hancock decided that case for the defendants, on the ground that the rent was not due, then the judgment is not a bar.” The defendants excepted to this proposition.

.During the trial the plaintiff was permitted to prove by the justice, as a witness on the stand, that he decided the case in the defendants’ favor, upon the ground that the rent was not due at the time of the commencement of the action. To this proof the defendants in due time excepted.

In making up his record, the justice made an entry therein, that the case was decided in the defendants’ favor, for the reason that the rent was not due, but this proof was excluded by the court on plaintiff’s offer to read the same as a part of the record. The pleadings were so general, and the record as given in evidence is such that it is impossible to determine by them alone, the real matters tried and determined in that action. With a view of ascertaining the issues and how they were determined, it was competent to prove by parol what was actually in controversy between the parties before the justice, and the grounds upon which the judgment was rendered. (Doty v. Brown, 4 N. Y., 75.)

But such evidence should be limited to proving what occurred upon the trial, the proofs which were given, the arguments and contentions of the respective parties, as to the facts and law of the case. I am of the opinion that it was error to receive the statement of the justice himself as a witness, as to the ground upon which he placed his decision in the defendants’ favor. He was a competent witness to prove all that occurred before him, for they nowise contradicted the record which he caused to be made and entered in his docket.

The question whether a former suit is .a bar to a pending one, is to be determined as a legal qnestion from the record of the former suit and the proceedings had upon the trial. Whether the rent was due or not was a question of fact, and it was not competent to prove by tbe justice how he determined that question. The mental conclusions reached by the magistrate on the law or facts of a ease tried before him and not • expressed in the record, cannot properly be given in evidence. If his conclusions were the same as those he had inserted in. the record, then there is no necessity of proving the same. If they are in contradiction to the same, then they should be excluded when offered to be proved, for the reason that they contradict the record.

It was intimated, but not necessarily decided, in The Packet Company v. Sickles (5 Wall., 593) that such proof was incompetent, and in remarking upon the case before it the court said : “ Some of the jurors on the former trial were permitted to testify as to the particular ground upon which they found the verdict. This testimony was not objected to, and therefore is not available as error here. But it is proper to say that the secret deliberations of the jury, or grounds of their proceedings while engaged in making up their verdict, are not competent or admissible evidence of the issues or finding.” .

I have been unable to find any decision holding such proofs to be competent. We are cited to the case of Royce v. Burt (42 Barb. 666), as an authority sustaining the position that such proofs are competent, but on a careful examination of that case' it will be •observed that the question was not before the court for its adjudication, for upon the trial then under review evidence of this character was excluded, and the court remarked that the case of Doty v. Brown (4 Comst., 71) was an authority justifying the receipt of such evidence. Upon examining the case of Doty v. Brown, it will be observed that it does not appear that any evidence was given, similar in any respect to that which was received in this case, as to the grounds upon which the justice placed his decision.'

As there must be a new trial in this case for the reason assigned, it is unnecessary to consider the other questions presented on the argument.

New trial granted, costs to abide the event.

Present — Smith, P. J., Barker and Hardin, JJ.

' Judgment and order reversed, and new trial ordered in the Onondaga County Court, costs to abide event.