author: Tompkins, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Oliver M. Arkenburgh et al., as Executors of Robert H. Arkenburgh, Deceased.

      (Surrogate's Court, Rockland County,

      Filed August, 1895.)

    1. Executors—Accounting—Counsel fees.
    The burden of establishing that counsel fees paid by an executor are fair and reasonable and that the services charged for are necessary and proper, rests on the executor.
    '2. Same—Services for counsel.
    An executor will not be allowed, on his accounting, for fees paid by him to counsel for doing things which he should have done personally.

      3. Same—Compensation—Provision of will.
    An agreement by an executor to accept a provision in the will for his compensation does not estop him from at any time afterwards renouncing it and claiming under the statute.
    4. Same—Distribution—Creditors.
    The creditors, specified in section 2743 of the Code, are the creditors of the decedent and not the creditors of the legatee.
    Judicial settlement of the accounts of Oliver M. Arkenburgh and another, as executors of the will of Robert H. Arkenburgh, deceased.

      Robert F. Little and Frank Arnold, for executor; J. W. Feeier, for executrix ; Charles E Souther, John Larkin and A. X. Fallon, for contestants.
   Tompkins, S.

Letters testamentary were issued to Eliza J. Arkenburgh and Oliver M. Arkenburgh on the estate of Robert H. Arkenburgh on the 25th day of September, 1890. The executor and executrix made a joint petition to the surrogate of the ■ county of Rockland on the 25th dajr of October, 1893, praying for a judicial settlement of the account of their proceedings. On the return of the citation an account was filed, which was signed and verified by the executor alone. Objections thereto were filed on the 27th day of February, 1894, Robert H. Arkenburgh, Eliza J. Wiggins, Jeanette A. Knapp, children and legatees of the testator. Thereafter further and supplemental objections were filed by them, and by James Wiggins, trustee of Jeanette A. Knapp, and Edward B. Arkenburgh. After many hearings had been on the issues raised by these objections, and on the 22d day of December, 1894, the executrix filed a separate account, to which objections were filed by the executor. The two accounts are substantially alike, except so far as the several objections affect them. The executrix, by her account, seeks to support and give force to the objections filed by the legatees, except as to the amounts paid for counsel fees, in which she participated. The objections filed present a number of questions, which I will take up and consider in the order in which they were presented by counsel for the contestants on the argument and final submission.

The executor seeks credit for the sum of $9,500, paid to Robert F. Little for counsel fees and legal services from September 24, 1890, to December, 1893. This item is objected to as unreasonable and excessive. The vouchers filed by the executor in support of the charge show all the items of the service rendered, and embrace all the legal services rendered to the executor during the period stated.

The testator left an estate of about $1,000,000, consisting of valuable real estate in New York city, and largely of consolidated gas stock and government and municipal bonds; and the services charged for by counsel consist largely of matters connected with the making of contracts for the sale of real estate. At the time of the testators death there was no litigation pending against him except the McLoughlin suit, which was never revived or con•tinued against the executors. There was no litigation in which the executors or the estate was involved during this whole period. The will was not complicated, nor were any of its provisions of doubtful meaning or construction. There was real estate in several other states, in each of which states the executor’s counsel, Mr. Little, procured the will to be probated by local attorneys. The amount paid to Mr. Little for disbursements was $642.78, which is not included in the item of $9,500. The services of counsel, in brief, were as follows : Probate of the will in Rock-land county, which was accomplished without the issuing of a citation and by consent of all the parties; the procuring of an order permitting the executors to advertise for claims; the appointment of appraisers; making of the appraisement and inventory, concerning which there was .nothing unusual or extraordinary.

There were 10 contracts prepared for the sale of 10 distinct parcels of real estate, and afterwards deeds were prepared, and the attorney attended upon the closing of the title. Those contracts were in the main the usual ordinary contract. Hirsh, who contracted for sixteen lots, refused to take title to eight of them; and the executor’s counsel made a submission of the matter to the Lawyers’ Title Insurance Company, which afterwards insured the title. The executor’s counsel"had previously examined the title for the testator when he purchased the property. The executor’s counsel also procured an agreement from one Kirby, subjecting his property adjoining estate property to certain restrictions. He also secured the discharge of a mechanic’s lien ; corresponded with counsel in New Jersey in reference to assessments against estate property in the city of Rahway. He also rendered services in an effort to perfect the title of the estate to a small gore lot, which result was never accomplished ; corresponded and consulted with the board of health in reference to a complaint which had been made regarding the Seventy-Fifth street lots. He attended to the payment of two or three mortgages, procured tax bills and paid them, looked after repairs to the real estate, and received interest due the estate. He also charges in this item for work done in preparing and arranging the vouchers, etc. Many interviews with the executor and executrix are set forth in the vouchers, and the testimony of the attorney, his books and vouchers, very fully describe the exact character and extent of the services rendered b\7 him, and the contracts, submissions, and agreements which he prepared have been put in evidence.

The burden of establishing the fairness and reasonableness of. this charge for counsel fees is upon the executor, and the executor must show that the services charged for were necessary and proper. In re Archer's Estate, 23 Supp. 1041. Much of the service rendered by counsel is not the proper subject of charge against the estate. It was the executor’s duty to collect interest, look after repairs, procure tax bills, and pay them. It does not appear that there was anything in these matters that called for or required the-services of a lawyer. The fact that the executor was absent from the city, or that it was convenient for him to have his attorney dot these things, does not justify a charge being made against the estate. He must pay his attorney personally for such services. For the services of counsel whicli the executor should be reimbursed for, a fair and reasonable compensation should be allowed. In determining the amount to be allowed, I consider as the first and most important element the work actually performed ; second, the •amount involved ; third, the standing and reputation and learning of the lawyer; fourth, the result of the services. Here the work has been fully testified to, and, while the amounts involved were large, they were not involved in litigation, but were for the most part in real estate, which could not well be jeopardized, and the value of which did not depend upon legal skill or learning. The ability and integrity of the attorney are conceded, and, for such services as he rendered, he is entitled to as large compensation as any court should ever allow. For such services on the whole case, I .am convinced that $6,000 is adequate and liberal compensation; in fact, from the testimony given-by the witnesses called on both sides, it is difficult to justify a charge-of that amount.

The executor called Payson Merrill and John M. Scribner as witnesses in support of the charge. They testified generally on the direct examination, without giving any items, that the charge of $9,500 was reasonable. On cross examination Mr. Merrill gives the following items : $250 to $500 for probate of the will; $25 to .$50 for each contract and closing title. He did not separate the various items of the bills, but calculated about the number of days occupied by Mr. Little, and then estimated that his services were worth from $75 to $100 per day. Mr. Scribner says that $9,500 was a fair charge for all the work; that $1,000 would have been a reasonable amount as a retainer, and for all services on the probate of the will, including making the inventory and advertising for claims; $25 to $50 for real-estate contracts and closing title. He says that there was nothing in these contracts to justify extra -charge; $1,000 for all the work in connection with the account, -down to the engrossing of it, which he includes in the estimate of $9,500. He fixes the value of the argument and submission to the title insurance company at $1,500. After giving these items, he was asked how he made up the balance of the $9,500, and he stated: ‘‘I can’t make up the balance.’’ James K. Bishop and Edward E. De Grove testified on behalf of the contestants ; Mr. Bishop stating that all the services, exclusive of the work on the account, were not reasonably worth more than $4,000, and that the account was worth from $1,000 to $1,500. In detailing the value of the different services, lie says that the probating of the will was worth $250 ; the submission to the title insurance company, from $500 to $750 ; $10 to $25 for preparing each contract, and $25 for closing the title ; $200 for the Farley contract, sale, and procuring Kirby agreement, and he allows $1,500 for general services, including interviews, receipt of letters, etc. De Grove fixes the value of all the services, including the preparation of the account, at $5,500 at the outside figure. He fixes the services on probate of the will at about $1,000. These witnesses are not so iar apart when they give the items, but their totals widely differ. When the items of all the witnesses are taken, it will be found that the result comes very near the totals given by the contestants’ witnesses.

Now, allowing as a retainer and for the probate of the will, including all services to the advertising for claims, the sum of $1,000, which is the highest figure put upon these services by the executor’s witnesses, and the sum of $500 for the preparation and consummation of the ten contracts, the sum of $400 for the submission to the title insurance company, $50 for the Kirby agreement, .$300 for procuring probate of will in the three other states, $50 for Eahway tax matter, $50 for O'Hare lien, $150 for gore-lot services, $50 for board of health matter, $1,000 for services in reference to account; add to these amounts $2,000 for interviews, letters received, writing letters, and general advice, and services set forth in detail in the vouchers,—and we have a total of $5,650. The foregoing amounts are very liberal allowances, and are in excess of the average fixed by the expert testimony. Most of these payments were made by the executor and executrix together. It appears that all of the amounts paid to the counsel, except the sum of $1,768.22, were paid by both executor and executrix. In the payment of the last-named amount the executrix did not unite. They will be allowed the sum of $6,000 for counsel fees paid to Mr. Little, and the proportion of the difference to be borne by the executor and executrix will be fixed by me on the settlement of the decree.

The next question presented is in reference to commissions of the executor and executrix.

The will contained the following provision:

“I direct that the sum of one thousand dollars, and no more, shall be allowed to or received by each of those who shall qualify as executrix or executor hereunder, as and for their commissions; and said sum shall be in lieu of the commissions allowed bylaw.”

The will was admitted to probate on the 25th day of September, 1890, at which time letters testamentary were granted On the 29th day of May, 1893, the executor filed in this court his renunciation of the specific compensation provided by the will; and in the month of December, 1893, the executrix filed a similar renunciation. Since then the executrix has filed a retraction of her renunciation, but during the contest it was stated by counsel for 'the executrix, or by the executrix, that she desired to withdraw her renunciation retraction, and that, if the executor received full ■commissions, she wanted the same. Her former counsel was not ■explicit as to his client’s position in reference to the qnestion of commissions.

It is contended by the contestants that on the day the will was read, and before it was probated, the executor and executrix were both asked whether they were satisfied by the provision of the will for their compensation, and that they answered that they were; and it is claimed that they elected and agreed to accept the specific compensation, and were thereafter estopped from renouncing it and claiming the statutory fees. I think that this claim is not good. The Code gave them the right to renounce the specific compensation, and_ no time is fixed for that purpose. Section 2730. It lias been held that it may be done at any time before the decree is made. In re Weeks, 5 Dem. Sur. 194. Action in reference to this matter was not essential to the probate of the will, or to entitle the executors to qualify. They were under no obligations to the legatees in respect to the commissions. The elements of an estoppel do not exist, and the executor is entitled to the commissions allowed by statute. Whether the executrix has successfully retracted her renunciation, and, if she has not, the proportion of the commissions to be awarded to the executor and executrix, I will determine upon the settlement of the decree.

The contestants claim that the executor was indebted to the testator in his lifetime and at the time of his death in about the sum of $40,000. The executor charges himself in his account with the sum of $3,000, which appears on the books of the testator against him, and which he admits is a proper charge against him.. By subdivision 15 of schedule J of the account, the executor explains that charges aggregating $5,983.42, appearing on the books of the testator against him, from the date of the will, to wit, February 26, 1889, down to the testator’s dpatb, were paid to him for services rendered to the testator, and were paid to him by testator, and that he is not indebted to the estate for the same. The contestants, on the other hand, claim that the executor, during that period, and during several years prior thereto, took from his father large sums of money, including the above amount of $5,983.42, in excess of the amounts to which he was entitled .for services, and with which he should now be charged. The burden of establishing this claim rests upon the contestants. It is claimed that the executor was only entitled to receive $1,800 per year down to the date of the testator’s death. The books of the testator, kept in the main by the executor, have been put in evidence, from which it appears that sums largely in excess of that amount were received by the executor, and not returned; and testimony has been given of statements made by the executor to the effect that he would not pay any amount to the estate or charge himself with any indebtedness until it was proven, and the testimony of the executrix is given to the effect that in 1890, and a short time before the testator’s death, she saw a paper in his possession called an “ inventory,” such as the executor was in the habit of making out for the testator, made out by the executor, which showed, among other things that Oliver M. Avlceuburgh, the executor, was indebted to his father in the sum of about $15,0Q0. This is all denied by the executor. The testator was a large dealer in the-tobacco business. He had interests in Kentucky, where the tobacco was grown and purchased by him, and he had an office in New York city. He owned many valuable pieces of real estate in New York city, and was the holder oí considérale stocks and securities. In 1867, when Oliver, the executor, left college, he entered his father’s New York office, and remained there until about the year 1877, when he left. He testifies that in 1878 his father called upon him at his boarding house, and said that he wished him to come back with him immediately, and said that he would allow him a sum sufficient for his maintenance according to the way in which he was brought up. No amount was stipulated between them. Oliver went then to his father’s office, and continued in his employ down to the testator’s death, acting as his bookkeeper, confidential clerk and manager, and devoting all of his time to his father’s service; and he claims that all the moneys shown by the books to have been received by him were under the agreement made in 1878, by which he was to be supported in the manner in which he was brought up.

After a careful examination of all the testimony and the exhaustive briefs of counsel, I have concluded that the contestants have failed to establish the alleged indebtedness.

The claim of the executor that such a contract was made by his father, and that he was not limited to $1,800, is corroborated by the fact that on several occasions, in several places in the books, amounts are credited to him for services in excess of $1,800 ; and on June 20, 1888, the testator made and signed the following memorandum:

“ Whereas, Oliver M. Arkenburgh has rendered certain services to me in keeping my accounts and looking after my affairs generally, including my estate, during the years 1882, 1883, 1884, •1885 and 1886, it is hereby mutually agreed that he shall be allowed and take credit in account for the sum of $7,789.74 for the years mentioned, which sum shall be in full settlement and discharge for any and all claims he may have for services rendered in my behalf during said years above mentioned, which amount has already been paid to him, having been drawn from time to time during the aforesaid years.”

This clearly indicates the desire and intention of the testator to allow the executor for his services the amount which the books at that time showed him to have received, which was largely in excess of $1,800 a year.

It must be presumed that the testator knew the contents, or the substance of the contents, of the books. They were always accessible to him. Several times each year during all of that time he had received statements or inventories from his son containing, in brief, the state of the various accounts; and there is no proof that during all of those years any complaint was made by the testator concerning the manner in which they were kept, nor were any inaccuracies ever charged. A power of attorney was given by the testator to the executor, which was revoked at the request of the executor April 1, 1889; and he testifies that he accounted to his father for all moneys received by virtue of that power of attorney, and there are not sufficient circumstances to overcome that testimony. That the testator knew the condition of his books generally, and the character and effect of the various entries therein against his sons, is evidenced by the release" which he made on the 10th day of December. 1888, by which he released his sons, Robert, Oliver, and William, from all and every claim and liability to him by reason of the tobacco business carried on under the ■firm name of “O. M. Arkenburgh & Co.” and the name of “O. M. Arkenburgh,” and from all liability by reason of entries in his books growing out of these transactions; and those entries and the particular character of the several entries are fully set forth in the release, showing the testator’s familiarity with the books. He was concededly a shrewd and careful business man, at his office almost every day, and in almost constant contact with his business affairs and financial matters; and it does not seem reasonable that covering a period of ten or twelve years he should have been so deceived by Oliver, and blind to the fact that upward of $40,-000 was being taken from him unlawfully. It is clear that he knew during these years that Oliver was receiving much more than $1,800 per year, and that in 1888 he expressly sanctioned it by personally crediting him with the sum of $7,789.74, which had'not been previously directly credited to him; and it must be assumed that this amount included all the sums with which Oliver was then chargeable. I find from the books in evidence that, from 1878 to the death of testator, Oliver received about the sum of $69,000, making an average of about $5,400 per year, and that the same was received pursuant to the agreement of 1878, and was so understood and agreed by the testator.

Another fact which very strongly corroborates the executor’s claim is the provisions of the will in reference to advances. The will was made on the 26th day of February, 1889, and after the testator had knowledge of the fact that his son Oliver had retained some, at least, of these large amount of money. The will is a very carefully drawn document, and must have been the result of much careful thought, after a thorough examination of his books and a full knowledge of the condition of his affairs.

After dividing the estate, the will provides as follows:

“Provided always, and I hereby declare, that, if I shall in my lifetime advance or give to any of my children any sum or snms of money for his or her advancement or benefit, then every such sum shall be taken in or towards satisfaction of the provision intended to be hereby made for such child, and shall be accounted for accordingly; and I hereby further declare that the only advancements which have been made to any of my children up to- and at the date of this, my will, are such ^as have been made to-my son Robert H. Arkenburgh, as follows: On the first day of January, 1885, my said son Robert had received from me the snm of twenty-four thousand dollars, etc.”

The will proceeds to specify other amounts had by the testator’s son Robert, and charges all the amounts against him, By this-provision the testator shows his familiarity with the state of the-account with Robert, incidentally with the contents of the books, at least so far as Robert was concerned. Here is a positive and express declaration that Oliver was not at that time indebted to-him, and that no advance had been made or moneys received by him which could be construed into an indebtedness. This positive statement that no indebtedness existed can only be overcome by clear and convincing evidence that the testator had been deceived by Oliver, and was ignorant of the condition of his account and of his acts and conduct. Such convincing proof is not given. After the date of the will, it does not appear that advances were made to Oliver. At least there is no proof of the receipt of any moneys by him after that date, except various sums appropriated for living expenses as before, and the sum of $3,000, which was-placed in the hands for a specific purpose, and never used, and for which he now accounts. Nor do the books show any charge against him of an advancement.

The executor seeks to charge Robert Ii. Arkenburgh with the items contained in Schedule B, aggregating $2,494, which he seeks to have deducted from Robert’s share of the profit of tobacco accounts Nos. 10 and 11. The first twelve of these items, excepting one item of $25 (November 22, 1889), are objected to. It is sought to make out these charges by an account stated between them. The executor testifies that in October, 1890, he handed to* Robert a pencil memorandum containing these charges against him, and showing a balance in Robert’s favor of $223.91, and that Robert put it in his pocket, but said nothing. Robert denies that lie ever received the statement. The executor has failed to make out an account stated between them. From the testimony, however, I find that the following items should be charged against him: $64.25, money advanced by testator to pay premium on life insurance while Robert was in Kentucky; $25, paid to Dr. Davis; $22.50, insurance on furniture in Robert’s Kentucky house. The-items for taxes and insurance on the Kentucky house are not allowed as charges against Robert, for the reason that the premises were then owned by the testator; and, while it is true that the conveyance was probably made to protect it from Robert’s creditors, nevertheless the title was in the father, and remained in him until his death, and Robert testified that he decided it to his father to secure him against certain losses. The father devised that particular property to Robert by his will, hut that fact, even if his intention to do so was known by Robert, would not cast upon the prospective devisee the duty of paying taxes in anticipation of the devise and death.' As to the other items of that account against Robert, to wit, $225, $579.80, and $100, I am not clear, and will hear counsel further in respect thereto upon settlement of the decree.

The claim of Robert to the sum of $677.71 for services in selling tobacco for the executor is disputed by the executor, and is not such a claim as can be determined upon this accounting. It must' be enforced by an action. It is not a part of the joint tobacco account between the testator and his three sons, but is an independent claim against the executor for services rendered the estate.

In an action between Oliver M. Arkenburgh and Robert H. Arkenburgh a warrant of attachment was issued to the sheriff of the city and county of New York against the interest of Robert H. Arkenburgh in this estate. The warrant was put in evidence and it is now claimed by the executor that the decree herein should recognize the lien of the said attachment, and provide for the payment over to the sheriff of whatever sum may be found to be due Robert. The surrogate has no power to determine the validity of the attachment. In fact, there is no proof before me that the attachment is still in force. The sheriff is not a creditor of the deceased, nor a legatee, nor does he stand in the position of an assignee of a creditor or legatee, within the provisions of Code, section 2748. The case of In re Gilligan's Estate, 18 St. Rep. 812, cited by counsel for the executor, is not applicable. There the intervening party was a receiver in supplementary proceedings, and represented and stood in the place of a judgment creditor whose claim was not disputed. An attachment simply secures and holds the property until the plaintiff can establish his claim. The surrogate only lias such power as is conferred by statute or necessarily implied from the powers so conferred. In re Underhill, 117 N. Y. 471; 27 St. Rep. 720. Section 2743 of the Code alone confers the jurisdiction and power of the surrogate in the making of the decree. That section only authorizes a ■distribution to the creditors, legatees, next of kin, husband or wife, or their assigns. The word “creditors” means creditors of the deceased. In re Redfield’s Estate, 55 St. Rep. 19. And nowhere is the surrogate given power to distribute to any other person. The sheriff is not either a legatee, assignee of a legatee, -or creditor of the deceased.

Costs to all parties out of the estate, to be fixed on settlement of the decree.

Ordered accordingly.


source: Caselaw Access Project

author: Beekman, J.

license: Public Domain

text:
    The People ex rel. Charles R. Gleason, Pl’ff, v. Board of Aldermen of the city of New York, Def't.

      (Supreme Court, New York Circuit,

      Filed September, 1895.)

    Apportionment—Assembly districts.
    The apportionment of the thirteenth senatorial district of Hew York city into assembly districts violates the state Constitution, in that the difference between two adjoining assembly districts exceeds the population of several blocks, which could have been placed in either district.
    Application by Charles E. Gleason for a writ of mandamus to compel the board of aldermen of the city of New York to make a reapportionment of the thirteenth senatorial district into assembly districts.

      Frank D. Pavey, for relator; Francis M Scott, Corp. Counsel, and Theodore Connolly, Asst., for resp’ts.
   Beekman, J.

By section 3 of article 3 of the constitution of this state, it is, among other things, declared that the thirteenth senatorial district “ shall consist of that part of the county of New York lying north of district number 10, and within and bounded by a line beginning at the Hudson river, at the foot of Canal street, and running thence along Canal street, Hudson street, Dommick street. Yarick street, Broome street, Sullivan street, Spring street; Broadway, Fourth street, the Bowery and Third avenue, Fourteenth street, Sixth avenue, West Fifteenth street, Seventh avenue, West Nineteenth street, Eighth avenue, West Twentieth street, and the Hudson river, to the place of beginning.’’ By section 5 of the same article, thirty-five members •of assembly are allotted to the city and county of New York, and for the purpose of setting apart and allotting assembly districts to be represented by such members it is provided that the common council “ shall assemble on the second Tuesday of June, one thousand, eight hundred and ninety-five, and at such times as the legislature making an apportionment shall prescribe, and divide such counties into assembly districts as nearly equal in number of inhabitants, excluding aliens, as may be, of convenient and contiguous territory, in as compact form as practicable, each of which ■shall be wholly within a senate district formed under the same apportionment, equal to the number of members of assembly to which such county shall be entitled, and shall cause to be filed in the office of the secretary of state and of the clerk of such ■county a description of such districts, specifying the number of each district and of the inhabitants thereof, excluding aliens, according to the last preceding enumeration.” It is, however, provided that: “ No town, and no block in a city inclosed by ■streets or public ways, shall be divided in the formation of assembly districts, nor shall any district contain a greater excess in population over an adjoining district in the same senate district than the population of a town or block therein adjoining such assembly district. Towns or blocks which, from their location, may be included in either of two districts, shall be so placted as to make said districts most nearly equal in number of inhabitants, excluding aliens; but in the division of cities under the first apportionment, regard must be had to the number of inhabitants, excluding aliens, of the election districts according to the state enumeration of one thousand eight hundred and ninety-two, so far as may be, instead of blocks."

Acting in pursuance of the mandate contained in the constitution, the board of aldermen assembled at the time required, and proceeded to divide the various senate districts in the city and •county of New York into assembly districts. The Thirteenth •senate district was divided into three assembly districts, known and designated respectively as the Third, Fifth and Seventh assembly districts; and on or about the 18th day of June, 1895, pursuant to the requirement in that regard contained in the constitution, the said board caused to be filed in the office of the clerk of the city and county of New York a description of the said assembly districts, specifying the number of each district and the population thereof as follows: Third assembly district, population, 38,544 ; Fifth assembly district, population, 38,419; Seventh assembly district, population, 38,497. The relator, claiming to be aggrieved by the action of the board, applied to and obtained from, this court an alternative writ of mandamus, directed to the board, questioning the above action taken by it, and averring that said statements of population were not true and correct statements of the inhabitants of said districts, excluding aliens, according to the last preceding enumeration; that the three assembly districts named were not as nearly equal in number of inhabitants, excluding aliens, as might be, nor o£ convenient and contiguous territory, nor of as compact form as practicable ; that assembly district Ho. 8 contained a greater excess in population over assembly district Ho. 5, an adjoining district in the same senate district, than either the population o£ one or more blocks, or number of inhabitants, excluding aliens, of one or more election districts according to the state enumeration of 1892 therein adjoining said assembly district Ho. 5 ; and that blocks and election districts, which from their location could have been included in either of said two assembly districts Hos. 3 and 5, were not so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens. The same objection was stated upon a a comparison of the population of assembly districts Hos. 3 and 7 and assembly districts Hos. 5 and 7. The relator thereupon proceeds to demand that the board make a reapportionment, or to show cause why such command should not be obeyed. A return was filed to the writ, putting in issue all of the allegations above referred to, and the determination of the issues so raised has come on before me for trial at an extraordinary circuit court, now convened; both parties, by written stipulation filed with the court, having waived a jury.

The relator and respondents have united in a stipulation by which the facts have been agreed to, so that the only matter for me to determine is whether, as a matter of law, the grievances of which the relator complains are well founded. Upon the trial there was put in evidence a communication from the chairman of the committee on county affairs of the board of aldermen, addressed to the counsel to the corporation, furnishing a copy of the figures which were used as a basis for the reapportionment of the Thirteenth senate district. A comparison of these figures with those which were filed by the board with the county clgrk pursuant to the directions in that regard contained in the constitution shows a marked disagreement. The population of the Third assembly district, according to the filed statement, was 38,544; according to the other statement said population is placed at 40,183. The population of the Fifth assembly district, according to the filed statement, was 38,419 ; according to the other statement it was 89,652. The population of the seventh assembly district, according to the filed statement, was 38,497, whereas, according to the other statement, said population was 35,625. Th.e discrepancy existing between the two statements is sufficiently startling. The statement last furnished by the board of aldermen is much nearer the actual figures contained in the stipulation of facts than is the filed statement, but even there we find a substantial difference, existing mainly in the fifth assembly district and in the seventh assembly district, as will appear from the following table:

Last Aldermanic Statement.
Stipulation of Facts. Differences
Fifth A. D., population.........39,652 39.347 315
Seventh A. D., “ .........35,625 35 928 303

According to the facts as they appear in the case, the following is a true statement of the population according to the last state enumeration of these three assembly districts, viz.: Third assembly district, population,. 40,185; Fifth assembly district, population, 39,347 ; Seventh assembly district, population, 35,928." Bearing in mind the constitutional mandate that the assembly districts are to be as nearly equal in number of inhabitants, excluding aliens, as may be, a comparison of these figures will show how wide was the departure from the law in the apportionment which was made. The difference between the total populations of the Third and Fifth assembly districts was 838, the difference between the populations of the Third and Seventh assembly districts was 4,257, and the difference between the populations of the Fifth and Seventh assembly districts was 3,419 while, if we take the last statement which has been furnished by the board, fixing the population of the Seventh assembly district at 35,625, the difference between the populations of those two districts is found to be 4,558. It is very plain—indeed, it needs no argument, for the figures speak for themselves—that there has been a substantial violation of the constitution in the division of this senatorial district into assembly districts. Apprehending that errors such as have been disclosed in the present case would probably arise in the apportionment of assembly districts, the constitution expressly provides that the act of apportionment “ shall be subject q.o review by the supreme court at the suit of any citizen, under such reasonable regulations as the legislature may prescribe, and any court before which a cause may be pending involving an apportionment shall give precedence thereto over all other causes and proceedings, and if said court be not in session, it shall convene promptly for the disposition of the same.” This provision of the constitution illustrates the high importance attached by the people of this state to a fair, just, and exact performance of the duties intrusted to boards of supervisors and common councils in the performance of this function; a solicitude which is most natural when we consider that the act to be performed is one affecting the people in their representation in the state legislature. It is, therefore, the plain duty of the court, where it finds such a condition of things as disclosed upon the papers in this case, to set aside the apportionment, and direct the board to reconvene, and properly perform its duties in the manner prescribed in the constitution. There should be no difficulty about this. The transfer of a few election districts from one assembly district to another will bring about a much greater approximation to equality of population than now exists. For instance, as we have seen, the difference between the populations of the Third and Seventh assembly districts is 4,257. The following election districts and blocks are within the third assembly district, adjoining the Seventh assembly district, each of which contains less population than the excess of district No. 3 over district No. 7, viz. : Fourteenth election district of the old Ninth assembly district, population, 1,629; Sixteenth election district of the old Ninth assembly district, population 1,331; Seventeenth election district of the old Ninth assembly district, population 1,848; the block formerly a portion of the Fifteenth election district of the Ninth assembly district, population 426. These are not all of the details that might be given in reference to these two assembly districts, and are cited merely by way of illustration, showing the practicability of an apportionment on a more equitable basis. Similar illustrations may be given in the comparison of the Fifth and Seventh assembly districts, which show, as we have seen, an excess of population of the Fifth district over the Seventh district amounting to 8,419. The following election districts are within the Fifth assembly district, adjoining the Seventh assembly district, each of which contains less population than the excess of district No. 5 over district No. 7, viz.: Twentieth election district of the old Seventh assembly district, population 1,304; Twenty-First election district of same, population 1,507 ; Twenty-Second election district of same, population 1,557; Fourth election district of the old Thirteenth assembly district, population 1,312; Fifth election district of same, population 1,823. But it is unnecessary to go further in a critical examination of all the details affecting the apportionment It is not the function of the court to make the apportionment. Its power is confined to a review of the action of the board, and, if it finds that they have proceeded in violation of the constitution, to reverse their action, and direct them to reconvene, and make the apportionment according to the purpose and intent of the constitution, which has imposed that duty upon them, and in doing so to follow the rules which have been so plainly laid down for their guidance, and which, as the facts of this case show, can be so easily applied. Formal findings should be submitted for signature in conformity with this opinion, and remitted to the special term for the issuing of the peremptory writ which must follow.


author: Hardin, J.

text:
    Andrew S. Williams, Plaintiff, v. Frank S. Williams, Defendant.

      (Supreme Court, Herkimer Special Term,

      Filed September, 1895.)

    Pleadings—Demurrer.
    If the defendant is in doubt as to whether the language, used by the plaintiff in the reply, conveys a positive denial of all the allegation in the answer relating to counterclaims, or a denial of only some portion thereof, his remedy is not by demurrer, but by motion to make the language of the reply more definite and certain.
    Action by Andrew S. Williams against Frank S. Williams on a promissory note, and for rent due under a lease. Defendant’s answer set up three counterclaims, to which plaintiff replied, denying “the said counterclaim, each and every part thereof, and the whole thereof.” Defendant demurs to the reply.

      J. W. Cummings, for pl’ff; T. L. Cross and F. S. Williams, for def’t
   Hardin, J.

In section 519 of the Code it is provided, viz. ;

41 The allegations of a pleading must be liberally construed, with a view to substantial justice between the parties.” Ford v. Ames, 36 Hun, 572. Probably, the plaintiff, when the reply was drawn, assumed that the defendant’s answer, in effect, set up a counterclaim, and that the same was stated in different language in the different counts of the answer. A liberal construction of the language of the reply seems to justify a conclusion that the plaintiff, by the use of the language found in the reply, intended to controvert all the allegations contained in the defendant’s answer by way of counterclaim. The plaintiff, in his reply, avers that he denies “the whole of the defendant’s counterclaim.” The plaintiff was at liberty to deny a part of the counterclaim or to deny the whole thereof. Section 493 of the Code authorizes the defendant to demur to a reply “on the ground that it is insufficient in law upon the face thereof.” It is contended in behalf of the defendant that the reply does not controvert all the allegations of the answer set up by way of counterclaim. It was the privilege of the plaintiff to controvert, in his reply, all of the allegations of the answer set up by way of counterclaim, It was also the right of the plaintiff to controvert, by way of reply or' traverse, any of the essential allegations of the defendant’s answer containing the counterclaim. The reply, according to the contention of the parties, must be read either to deny all the allegations of the answer so far as it relates to counterclaim or some portion thereof. It is contended by the defendant that the reply is indefinite and uncertain, inasmuch as it is not clear from its language whether the intention was to traverse the whole of the allegations as to counterclaims or some part thereof.

In Pfandler P. Fermentation Co. v. McPherson, 20 St. Rep. 473, it was said by Barker, J., in the course of the opinion delivered in that case, viz.:

“ If, by the form of the denial used, it is left in doubt whether the party intends to dispute the fact charged or only the circumstances attending the fact against him, as, for instance, the time and place of making a contract set up in the pleadings, and not the making of a contract of the form' and substance of the one alleged, it is a bad or defective answer for the reason that, in legal phrase, it is pregnant with the admission that the fact alleged is in part true.”

Later on in the course of the opinion the learned judge said :

“ Ambiguity in pleading always constituted a fault, and, when that is the only objection to be urged against the pleading, then the party affected thereby, and who is in doubt as to its meaning, may require by a motion that the pleading be made more certain and definite, as provided by the Code and in the rules and practice of the court. Section 546. It is provided where one or inoredenials or allegations contained in the pleading are so indefinite or uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be definite and certain by amendment. '* * * As it is manifest that the defendants intended to deny some of the averments relative to the making of the contract, we think the plaintiff’s proper remedy was by motion to have the answer made more definite and certain ; and, as that mode of relief was not resorted to, we think the referee had the power to allow the amendment under the provisions of sections 539 and 723.”

Applying the principle enunciated in the case from which the quotation has been made? it would seem that if the defendant was in doubt as to whether the language used by the plaintiff in the reply was definite aad certain, conveying positive denial of all the allegations contained in the answer relating to counterclaims, or a denial of only some portion thereof, the remedy of the defendant was nob by demurrer, but by motion to make the language of the reply more definite and certain.

In Del Valle v. Navarro, 21 Abb. N. C. 136, near the close of the opinion, it was said that the objection “that the reply is not sufficiently definite or certain cannot be taken by demurrer. In such case the proper remedy is by motion.”

Cook v. Warren, 88 N. Y. 37, differs from the case in hand. There the defect was in the complaint, and it was held that, by reason of that defect in the complaint, the demurrer was well taken.

The foregoing views lead to the conclusion that the demurrer should be overruled, and judgment ordered for the plaintiffs on the demurrer, with costs, with leave to defendant to withdraw the demurrer within twenty days on payment of costs. See Del Valle v. Navarro, 21 Abb. N. C. 145.

Demurrer overruled, and judgment ordered for plaintiff, with costs, with leave to the defendant to withdraw demurrer within, twenty days on payment of costs.


author: Williams, J.

text:
    James B. Powell, Pl’ff, v. Harriet C. Jenkins et al., Def’ts.

      (Supreme Court, Oswego Special Term,

      Filed July, 1895)

    1. Mortgages—Foreclosure—Grantee.
    The grantee of mortgaged premises, whose deed was given, hut not recorded, before an action to foreclose was cbmmenced, and of which the mortgagee had ho express or constructive notice, is precluded by the judgment of foreclosure, though not a party.
    3. Same—Constructive notice.
    Possession, in order to have the effect of constructive notice of a conveyance of the mortgaged premises, must be actual, open and visible, and not equivocal or consistent with the title of the apparent owner by the record.
    3. Taxes—Assessment—Owner.
    Under section 6, chap. 367 of 1876, an assessment of real estate in the city of Oswego is not invalid, because it is in the name of the husband, instead of the wife who held the title.
    4. Same—Purchase by county—Delivery of deed.
    Under chap. 333 of 1883, the title to land sold for taxes, when bid in for the county, passes to the board of supervisors, though the treasurer does not actually deliver the deed to said hoard, but retains it in his office where such deeds are usually kept.
    5. Same—Certificate op treasurer.
    Where land, bid in by the county of Oswego at a tax sale, is afterwards sold by the board of supervisors, the deed to the purchaser does not become absolute until the treasurer makes and records in his office a certificate of proof of service of notice to redeem and makes a certificate that the land has not been redeemed.

      6. Same—Authority to sell.
    Under section 14, cliap. 322 of 1882, a conveyance of land, bid in by the county of Oswego at a tax sale, on the part df the county is not valid, unless authorized by the board of supervisors, and the county treasurer has no authority to direct a conveyance.
    Action by James B. Powell .against Harriet 0. Jenkins and others to recover possession of land. The land in controversy was owned by Rebecca C. Jenkins, who executed a mortgage thereon to the Mercantile National Bank of Hartford on March 13, 1890. On April 4, 1892, an action to foreclose said mortgage was commenced, and judgment was entered on June 20th following. The land was sold under the judgment of foreclosure, and on April 8, 1893, was purchased by plaintiff, and the sale was confirmed. Before the action to foreclose was commenced, Rebecca C. Jenkins conveyed the land to defendant Harriet C. Jenkins by a deed which was never recorded. After the execution of the mortgage but before the action to foreclose was commenced, the land was sold for taxes, and two deeds given to Harriet 0. Jenkins by the board of supervisors of Oswego county.

      William H. Kenyon, for pl’ff; L. 0. Rowe and W. A. Poueher, for deft’s.
   Williams, J.

Before the foreclosure action was commenced, the widow had deeded whatever interest she had in the property to her daughter. If, therefore, the daughter has not been foreclosed, she is, under her mother’s deed, still the owner of the property, subject, of course, to the lien of the mortgage. The deed from the mother to the daughter, was not, however, recorded, and the mortgagee had no knowledge or notice of the deed until after the for-closure was completed and the property was sold and purchased by the plaintiff in this action. It is provided by section 1671, Code Civ. Proa, that a person whose conveyance from a defendant is recorded subsequent to the filing of the notice of pendency of the action is bound by all proceedings taken in the action after the filing of such notice, to the same extent as if he was a party. The daughter ' seeks to avoid the provisions of this section by claiming she took possession under her mother’s deed before the filing of the notice, and before the action was commenced, and that such possession was notice to the mortgagee of her deed and title. It is undoubtedly true that, if the mortgagee knew, or had notice of, the daughter’s deed and title before the action was commenced and the notice was filed, he was bound to make her a party to the action, the same as though her deed had been recorded before the commencement of the action ; and it is also true, very likely, that possession by the daughter under her deed might be such as to amount to notice of such deed and title. But the possession, in order to have this effect, must have been actual, open, and visible, and not equivocal ; nor must it have been consistent with the title of the apparent owner by the record. Cook v. Travis, 20 N. Y. 400; Brown v. Volkening, 64 id. 76; Pope v. Allen, 90 id. 298; Holland v. Brown, 140 id. 344; 55 St. Rep. 725. The principle, as applicable to this case, is well illustrated by Pope v. Allen, above. Plaintiff there claimed under the record title. Defendant claimed to be the real owner, and to have been in possession at the time plaintiff, took his title. He claimed plaintiff's grantor was his agent, and had taken title wrongfully ; but it appeared, though defendant had built a'house upon the premises at his own expense, and had moved into the house, and was in occupancy and possession thereof at the time plaintiff took his deed, yet, inasmuch as his agent lived with him before the house was built, and had moved into the house with him, and lived with him until he, the agent died, therefore the possession of the defendant was not such as to amount to notice of the defendant’s title to the premises. The court said :

“Both, to all outside appearance, occupied the land ; and which was the actual possessor, and which occupation was subordinate and under the other, could only be naturally inferred from knowledge of the title; and when it appeared from the record that (the agent) had the deed, the proper inference was that defendant’s possession was under (the agent’s), and in subordination to the true title. * * * The defendant’s possession was equivocal, and consistent with (the agent’s) title on the record, since (the agent) was also in possession, and there was nothing to indicate that the defendant’s possession was not subordinate to his (the agent’s), or suggest hostility to the record title.”

• In this case it appears the Jenkinses, husband and wife,* with their children, including this daughter, lived upon this property from 1866 down to the death of the husband, July 23, 1891, and then the widow and children, including this daughter, continued to live there until the trial of this action, except as business at times called some one or more of them away. It had all the time been the home of both the mother and daughter. They had kept boarders in the house before and since March, 1892, when the daughter claims to have taken possession. Both had worked about the house, as they had been able, both before and after the alleged change of possession. There had been little or nothing to indicate to an outsider who was the mistress of the house as a residence or boarding house had been, no advertisement of the house in any one’s name, no purchase of supplies on credit, so as to create an account in some one’s name. The house was run on a cash basis. The possession was, therefore, equivocal at best, and to outsiders as consistent with the record title as in hostility to it. Under these-circumstances, in view of the principles of law referred to above,, I could not conclude that any possession the daughter, claims to> have taken in March, 1892, was such as to constitute notice to the mortgagee of her deed or title to the property. It results from the views here suggested that the record was properly relied on in the foreclosure. action; that the daughter was not a necessary party, but was bound by the proceedings therein, and was foreclosed of all interest she had in the property under the deed from, her mother, the same as though she had been a party to the action.

The deeds from the board of supervisors of Oswego county,, upon which the defendant Harriet C. also relies to defeat plaintiff’s action, were not given in subjection to the mortgage foreclosed, but adverse to it. The validity and effect of these deeds were not determined in the foreclosure action, could not have been,, except by the grantee in the deeds being made a party, and consenting to such determination. They must be considered and passed upon as original questions in this action. Cromwell v. MacLean, 123 N. Y. 474; 34 St. Rep. 85. These deeds were both quitclaim deeds, both recited the same consideration, and both were evidently given to convey the same title acquired under the tax sale of January-2, 1889. This sale was made pursuant h> chapter 322, Laws 1882. The property, when sold, was bid in for the county of Oswego at $110.40, under section 7 of that act. Two years were allowed for redemption, as provided by section 8;- and then, January 28,1891, a deed was given to the board of supervisors, as provided by section 9. Section 10 of the act provides that such a deed is conclusive evidence that the sale was regular, and presumptive evidence that all previous proceedings were regular according to the provisions of the act; that such la deed may be recorded like other deeds ; but such conveyance of lands which shall, at the expiration of the two years given for the redemption thereof, be in the actual occupancy, of any person, shall not be recorded until the expiration of a six-months notice to redeem, given in the same manner as required in case of lands sold by the comptroller, and the certificate of filing of evidence of the service of such notice shall be recorded with such conveyance. The provisions as to notice in case of lands sold by the comptroller are in section 68, chap. 427, Laws 1855, as follows: That the grantee or person claiming under him shall serve a written notice on the person occupying the land, within two years from the expiration of the said time to redeem, stating, in substance, the sale and conveyance, the person to whom made, and the amount of consideration money mentioned in the conveyance, with the addition of thirty-seven and one-half per cent, and the sum paid for the deed; and that, unless such total amount shall be paid into the treasury for the benefit of the grantee within six months after the time of filing in the comptroller’s office the evidence of the service of the said notice, the conveyance will become absolute, and the occupant and all others interested in the land be forever barred from all right or title thereto.

The objection that the assessment was void because in the name of the husband instead of the wife, who had title to the property, I do not regard as well taken. The husband lived with the wife upon the property. He was the head of the family, and might, well be regarded as the occupant for the purposes of assessment. The property could be properly assessed to the owner or the' occupant. In addition to this, it is provided by section 6, chap, 367, Laws 1876, that:

“ Ho assessment of real estate in said city (Oswego) which shall be properly described in the assessment rolls of said city, and which shall be assessed but once in said rolls, shall be deemed or held to be invalid by reason of the same not having been assessed to the real owner or occupant thereof, or of any mistake1 or error in the designation of the owner of said property, or of the .same having been erroneously put among the resident or nonresident property of said city; and any tax or assessment levied thereon, and the lien thereof, and all' proceedings and sales shall be as valid and effectual thereunder as though the same had been properly assessed and such errors or mistakes had not been made."

Under this statute, if not in the absence of it, this assessment, the levy of the tax thereunder, and the sale of this property for nonpayment thereof, must be held to have been valid.

It it said there was no delivery of the deed to the board of supervisors, and therefore no title passed. It seems to me there was delivery, so far as necessary to pass title under the circumstances. The treasurer of the county under the statute gave the deed, and although it was given, as provided by the statute, to the board of supervisors, the title was to be held by the board in trust for the county. The property belonged to the county, and itj appears these deeds were usually kept in the treasurer’s office. I do not think this objection to the title acquired by the board of supervisors well taken.

It is further said the statute was not complied with as to the notice to redeem after taking the deed for the county, in that no notice was ever served, no proof of such service was ever filed in the treasurer’s office, and no certificate of filing of proof of such service was ever made, nor was such certificate ever recorded, with such conveyance. The conveyance itself was never recorded, and no certificate was ever made that the property had never been redeemed. A notice inform complying with the statute was duly served upon the widow and mother September 22, 1891. It was signed by the county treasurer, and I think he sufficiently represented the county and the board of supervisors, so that he was a proper person to give the notice under this statute. The title to the property was in the county, In form, the board of supervisors held the title, but merely in trust for the county. The treasurer represented the grantee in the deed. The two years allowed for redemption before the giving of the deed expired January 2,.1891. At that time the husband was living, and he and his wife were in the occupancy of the premises. The husband died July 23, 1891, and the widow remained in the occupancy of the premises until the time the notice was served, September 2, 1891. The grantee had two years from January 2, 1891, within which to serve the notice. If it was, under the statute, to be served upon the person who was in the occupany of the premises at the time of the service of the notice, then certainly the widow was the proper person to serve upon, because she was then the occupant. If it was to be served upon the person in occupancy at the time the two years for redemption expired, then both the husband and wife lived on the premises. She had the legal title, and I think was sufficiently the occupant, within this statute, to make service upon her a compliance with the statute. It could not, in September, 1881, be served upon the husband, in any event. On the same day the service was made, the treasurer, who made the service, made his affidavit, in due from, of such service, and filed it and the notice in his office. So far the law was complied with, and there the matter stopped. No certificate by the treasurer of the filing in his office of such proof of service of notice has ever been made or recorded, nor has the conveyance itself ever been recorded, nor has the treasurer ever made any certificate that the property has not been redeemed, so far as appears. Were these things necessary in order to confer title upon the county, and enable it, through the board of supervisors, to give good title to the daughter, Harriet C. Jenkins? There is no express provision in the Oswego act of 1882 as to. what things must be done before the title under the tax sale shall become absolute. There is such a provision in the general tax law of 1855, hereinbefore referred to. Section 73 provides:

“If the comptroller shall be satisfied, by such copy (notice) and affidavit (as to service of notice) that the proper notice has been -duly served, and if the moneys required to be paid for the redemption'of such land shall not have been paid, as hereinbefore provided, he shall, under his hand and seal, certify such facts, and the conveyances before made shall thereupon become absolute, and the occupant and all others interested in said lands shall be forever barred of all right and title thereto.”

And this provision would seem to be applicable to the tax sale and title in question under section 12 of the Oswego act of 1882, which provides:

“ Where no provision is made in this act, all the general laws ■of this state in relation to the assessment and collection of taxes, the sale and redemption of lands sold for taxes, and all matters relating thereto, shall, so far as they are applicable, be in force in the county of Oswego. * * * When any authority is given or duly enjoined by those laws on the comptroller of the state, the same authority shall be exercised and the same duty be devolved ■on the county treasurer of Oswego county.”

So that the making of the certificates referred to is provided to precede the deed becoming absolute, and the occupant and other persons being barred of their rights and title to the property. And under section 73 of the act of 1855, and similar provisions in the original Revised Statutes, and in the act of 1819, it seems, to have been held that these certificates, and perhaps the recording of the deed, were conditions precedent to the vesting of title in the purchases. Lockwood v. Gehlert, 127 N. Y. 241; 38 St. Rep. 261, and cases there referred to.

It is said further that the deed purporting to have been made by the board of supervisors were nullities, because not made or authorized by such board, Section 14 of the Oswego act of 1882 provides:

“ The title acquired by the board of supervisors in pursuance of this act shall be held by them in trust for said county of Oswego, and may be disposed of by them at such times, and on such terms, as shall be determined on by a majority of such board, at any regular or special meeting thereof.”

There seems to have been no action of the board of supervisors upon the subject, either at a regular or special meeting, authorizing the disposition of this property, or fixing the terms upon-which it should be disposed of, or the manner in which the conveyance should be executed. The county treasurer seems, upon having received the amount of the taxes and percentage, etc.', to which the county was entitled, the amount which would have been necessary to redeem, to have directed the chairman and clerk of the board, or those persons supposed to hold the positions of chairman and clerk, to execute the deeds, and they were executed accordingly. This could hardly be regarded as a compliance with the provisions of the statute referred to. It is said this transaction between the treasurer and Harriet G. Jenkins, wherein the amount the county had in the property was paid, and deeds were given to Harriet 0., amounted in equity, as to-the mortgage in question, merely to a redemption of the property and the extinguishment of the tax lien, and not to the vesting of any title to the property in Harriet G. as against the mortgage. The facts are not in dispute. The mortgage was taken in ignorance of the prior sale for taxes, and the mortgagee apparently had no knowledge of the sale until after the time to redeem had expired. If the mortgage had been in existence before the tax sale, notice to redeem would, under the statute, have had to be served upon the mortgagee; but, the mortgage having been given after the tax sale, such notice did not need to be served, and was not served. - The notice was served upon the mortgagor, the widow, the mother, who, with her daughter, Harriet 0., occupied the premises. This notice was served September 22, 1891. The mother did not notify the mortgagee of the service of this -notice, but, two days later, deeded all her interest in the property to her daughter, Harriet 0. Redemption could be made at any time before March 22, 1892. Harriet 0. did not notify the mortgagee of the service of this notice, but, as she herself testifies, took the deed from the board of supervisors October 15, 1891, for the purpose of securing a title to defeat the mortgage. She did not record either the deed from, her mother or the board of supervisors, but kept them a secret from the mortgagee; and immediately upon the expiration of the six months allowed for redemption, after the service of notice upon the mother, and March 22, 1892,, took the second deed from the board of supervisors, which she-at once recorded. By these means it is claimed she secured a title which defeated the mortgage, and which could be upheld as against the deed given under the mortgage foreclosure. In 25. Am. & Eng. Enc. Law, 706, it is said:

“ One whose duty it is to pay the taxes may not, by neglecting-to pay them, and allowing the land to be sold in consequence of such neglect, add to or strengthen his title, either by purchasing, at the sale himself or by suffering a third person to buy and then, purchasing from him. A purchase under such circumstances operates as a payment of the taxes, leaving the title in precisely the situation in which it would have stood had the payment been before instead of after the sale. * * * These principles are applicable to * * * a mortgagor in possession and parties claiming under him. Note 3: A mortgagor in possession, or parties claiming under him, cannot defeat the lien of the mortgagee by acquiring a tax title to the land,”—citing many cases in other states, but none in the state of New York.

The principle underlying this doctrine is well settled, and cannot be doubted. It has been frequently applied in this state to other titles than tax titles. The general rule is that a trustee cannot acquire a title as against his cestui que trust. The title will ensue to the benefit of, and cannot be vested against, the cestui que trust. This rule is not, however, confined to trustees and their cesiuis qae trustenl, but applies universally to all who come within its principle, which is that no pa-rty can be permitted to purchase an interest in property, and hold it for his own benefit, where he has a duty to perform in relation to such property which is inconsistent with the character of a purchaser on his own account Torrey v. Bank, 9 Paige, 649; Van Epps v. Van Epps, id. 237; Bank v. Torrey, 7 Hill, 260; Fulton v. Whitney, 66 N. Y. 548-555; Bennett v. Austin, 81 N. Y. 308-322.

The only question, therefore, is whether Harriet 0., the daughter, was under any obligation, as against the mortgage, to pay these taxes, and to extinguish this tax lien. These taxes were assessed and levied, and the tax sale was made, while the mother was the owuer of the property. Then she gave the mortgage, and thus created a second lien on the property. Could she have purchased the title under the tax lien, and have asserted such ' title against the mortgage ? Certainly not. It was her duty, as between herself and the mortgagee, all the time to pay the taxes and extinguish the lien. No title could be acquired under the tax sale except by reason of a continued neglect of duty on her part to pay the taxes and redeem from the sale. I do not see how the daughter stands in any better position than the mother. She knew all about the mortgage and the tax sale before she took the deed from her mother, and before she took her deeds from the board of supervisors. Indeed, she testifies her purpose in the whole matter was to defeat the mortgage lien. She paid her mother no substantial consideration. She kept the tax lien a secret from the mortgagee for the purpose of defeating the lien of the mortgage. The theory of the law is that when the occupant gets the six months notice to redeem he will let all persons interested in the premises know about it. But in this case the mother and daughter, who were the occupants, deliberately planned to keep the matter from the mortgagee, for the purpose of defeating the mortgage. Had the mortgagee known of the lien, it would have paid up the lien and redeemed, to protect its mortgage. Indeed, it tendered the money, after the six months had expired, as soon as it learned of the lien, or the purchaser did. I think the daughter acquired no further or greater rights in the property, by her mother’s deed, than the mother had; and the same duties were devolved upon her, as against the mortgage, that rested upon her mother before the deed was given. And I must hold, therefore, that the deeds by the board of supervisors vested no title in Harriet C. to the property which she could assert against the purchaser at the mortgage sale. In view of the suggestions herein contained, I must order the judgment for the plaintiff.

Ordered accordingly.


author: Gaynor, J.

text:
    In the Matter of an Application by William S. Henry for a Writ of Habeas Corpus.

      (Supreme Court, Kings Special Term,

      Filed August, 1895.)

    1. Habeas corpus—Commitment.
    The court, on habeas corpus, may go behind the commitment and ascertain -whether there was any evidence before the commitihg magistrate that the accused committed the crime.
    2. Same—Sufficiency of evidence.
    The evidence, in this case, was held to be sufficient to justify a commitment on the charge of murder.
    Application by William S. Henry for a writ of habeas corpus.

      Foster L. Backus, for petitioner; James IP. Bidgway, Disk A tty., opposed.
   Gaynor, J.

The petitioner sues out the writ of habeas corpus, claiming to be illegally deprived of his liberty by the sheriff of Kings county. That officer makes return to the writ and he holds him under a commitment of Henry F. Haggarty, Esq., a police justice of the city of Brooklyn. The commitment recites that the petitioner is held under an order of commitment to answer a charge of murder in the first degree, made by the said magistrate after examination. The petitioner traverses the return, by alleging that no evidence was given before the magistrate tending to show that the petitioner committed the said crime.

There is such a diversity of expression by text writers and judges in respect of whether such a commitment is conclusive, or whether, on the contrary, inquiry may go behind it upon the writ of habeas corpus, to ascertain whether the committing magistrate had any evidence before him upon which to make it, that I shall state what I concluded while at the bar and still believe the rule in this state to be. The question is one of jurisdiction in the magistrate. The jurisdiction of magistrates is limited. They may not arbitrarily commit one to answer a charge of crime. If an accused demand an examination, the magistrate may not commit him to answer to a court having cognizance of the crime, unless “ it appear that a crime has been committed, and that there is sufficient cause to believe the defendant guilty thereof.” Or.. Code, § 208. It is not necessary that the evidence be conclusive or sufficient to secure a conviction upon a trial. It may be less than that. In fine, if there be any evidence that the accused committed the crime, it is sufficient. If there be no such evidence them the magistrate is without jurisdiction to-commit him. The present inquiry, therefore, is whether there was any evidence before the-magistrate that the accused committed the crime; for that is the test of his jurisdiction. Church, Hab. Corp. § 236. The petitioner having alleged in his traverse that there was no such evidence, the burden was upon him to show that to be the case. To do so, lie put in evidence all of the testimony taken before the magistrate. I have therefore to read it, and determine whether it contains any evidence that the accused committed the crime.

The accused lived with his father and mother, old people. He had no occupation, and was addicted to the drinking habit. He and the mother were on bad terms with the father, and there were quarrels. The father was comparatively wealthy. They left the house on Saturday, with the avowed purpose of taking legal proceedings to have the father and his property put in charge of a committee. They did not return. On Monday they consulted a lawyer, but he advised them that their wish to have the father declared lunatic or incompetent so as to have a committee appointed,, could not be carried out. They went that night to the residence-of the other son, Walter, at Flatbush, and spoke with him on the same subject. The father, left alone at home, was seen in and out by the neighbors as late as Wednesday. Walter called there and saw him about 5:30 o’clock Wednesday evening. The next morning, about 7 o’clock, the accused was seen by a neighbor hurrying from the house. That day the blinds of the house were not opened. The son Walter called at 5:30 and 8:30 that evening, and again on Friday morning, but he could not get in. He called again Friday afternoon, and, finding the house still closed, he notified the police, and, entrance being obtained by an upper window, the father was found dead in the basement hall He had been murdered by many gashes and blows upon the head. No-entrance to the house was found. It was securely closed as for the night The accused surrendered himself on Saturday, and was questioned by the police. He bad slept Sunday, Monday and Tuesday nights at an hotel in New York city, and had in his possession about §30 on Sunday. He denied that he had been at his-father’s house on Thursday morning. He accounted for Wednesdan night by saying that he had stayed in Prospect Park. He had a cut on the right wrist He first said he got it in cleaning the range, and then, by catching on a nail getting over the fence of Prospect Park, when ordered out by a policeman. The right sleeve of his white shirt was xvater-stained from recent washing. An expert cut out several pieces of it, and, upon test, found in each corpuscles of human blood. These are some of the facts. From them the magistrate was, in the exercise of due judicial prudence and discretion, warranted in concluding that there was probable cause to believe- that the accused was guilty of the deed. There is some evidence favorable to the accused, and it may be said that the evidence against him is not conclusive. But the law does not allow me to weigh the evidence, pro and con, to form an opinion of guilt or innocence. The sole question is whether there was any evidence upon which the magistrate could make the order of commitment. I think there was. The writ is dismissed, and the prisoner remanded.

Writ dismissed, and prisoner remanded.


author: Gaynor, J. Gaynor, J.

text:
    The People ex rel. Edward M. Goring, Pl’ff, v. President and Trustees of the Village of Wappingers Falls, Def’ts.

      (Supreme Court, Kings Special Term,

      Filed August, 1895.)

    Mandamus—Damages.
    Where, from the fact that no question of fact is raised on an application for a writ of mandamus, a peremptory writ is granted in the first instance, the relator is not entitled to have damages assessed on motion therefor. .
    . Application by Edward M. Goring for a writ of mandamus to compel the president and trustees of the village of Wappinger’s Falls to recognize relator as police justice of said city. The application was granted, and relator now moves for an assessment of ■damages against defendants.

      Bernard J. Tierney, for relator ; Frederic Barnard, for def’ts.
   Gaynor, J.

The relator cannot recover damages herein. At ■common law, when an issue of fact was raised by a return to an alternative writ of mandamus, such issue could not be tried in the mandamus proceeding. The return was conclusive until falsified, and the only way to falsify it was by a judgment for plaintiff in an action by the relator for damages for a false return. If the relator prevailed in that action, he not only got judgment for his damages, but was also entitled to have a peremptory writ of mandamus issue. But this method being too dilatory, statutes were •enacted that the issue of fact should be tried in the mandamus proceeding itself, and that, if the relator succeeded, he might have assessed therein the same damages which he could recover in an action for a false return. Bac. Abr. “Mandamus,” K. And this is the method prevailing in this state. An issue of fact raised by a return to an alternative writ is triable by a jury, and the relator is entitled to a verdict in case he would be entitled thereto if he had brought an action for damages for a false return (Code Civ. Proc. § 2083); and, if he so elect, he may at the same time recover the damages which he could recover in such an action (Id. ■§ 2088). In this case there was no false return. On the contrary, a peremptory writ was granted in the first instance, there being no question of fact raised ; and hence, the relator having no cause of action for damages for a false return, there can be no such damages to be assessed.

The application is denied, without costs.

On Motion for Reargument.

Gaynor, J.

The questions raised upon the reargument were not overlooked in the first disposition of the case. The peremptory writ was granted in the first instanced Therefore there was and could be no “final order” herein. The final order is the “final judgment” upon the trial of an issue of fact raised by a return to an alternative writ, or of an issue of law raised by a demurrer to such writ, or to the return thereto. Code, § 2082. “Where are-turn has been made to an alternative writ,” the court, “upon making a final order,” may award “the same damages, if any, which the relator might recover” in an action upon such return as false. Id. § 2088. This same section continues, that if the trial be of an issue of fact (i.e. the issue raised by a return to an alternative writ), the relator, if he “so elects,” may have such damages assessed upon the trial thereof; and that “where he is entitled to a final order for any other cause” (which could only be upon trial of an issue of law raised by demurrer to an alternative writ or to the return thereto, as we have seen), “he may require them" {i.e. “the same damages" which he could recover in an action for a false return), “to be assessed as in an action.” Now, in this case —First, no “final order" was or could be made, and, therefore, no such damages could be assessed ; second, if the order allowing the peremptory writ in the first instance could be deemed the “final order," it is now too late to assess the damages in this proceeding, as they had to be assessed before the final order was made, the relator having to “elect,” before it was made, whether he would have them assessed in the mandamus proceeding, or have recourse to his action for a false return (section 2088); and, third, as no action for damages for a false return could be maintained by the relator (for the reason that there was no return), there could be no ^damages to assess herein ; for the fact that the relator may have a right to recover damages by some other form of action does not give him the right to assess the same here.

The motion for a reargument is denied.