text:
    Edmund Ashton Evans et al., App'lts, v. William L. Ogsbury et al., Resp'ts.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed March 20, 1896.)

      ■1. Appeal—Appealable order.
    An appeal does not lie from an order overruling a demurrer, but it must be taken from the interlocutory judgment entered upon the-order.
    3. Pleading—Counterclaim—Demurrer.
    Where the answer of the widow, in an action for partition, makes no mention of a counterclaim, and asks no affirmative relief, but merely that a partition be made “subject to her right of dower,’” nor demands that her dower be set out and admeasured to her,, such answer will be regarded as a defense and not a counterclaim, and a demurrer thereto on the ground that it appears upon the face of said counterclaim that the same does not state facts sufficient to constitute a cause of action, is bad.
    3. Dower—Limitataion.
    The rule that a widow loses her right of dower where there is a testamentary provision for her in lieu of dower, unless, within one year, she enters upon the landsj and commences proceedings for the recovery of her dower, is a statute of limitations, and, as such, to be available to either party, should be pleaded by the one who relies upon it.
    4. Party—Appearance.
    While it is the general rule that a person not named in the summons cannot appear and defend, yet, if he does so, the plaintiff’s remedy is to set aside such appearance.

      5. Same—Repbesentive capacity.
    Where it is necessary for the plaintiff to bring a party in for his own purpose, in a representative capacity, such party can set up her individual rights in the subject of the action, especially where in such action, she is, as an individual, a necessary party.
    Appeal from an order and judgment overruling plaintiffs’ demurrer to the answer.
    George A. French, for app’lts; Andrew J. Shipman, for respondents.
   O’BRIEN, J.

The appeal from the order must he dismissed, as, under the practice, it is not appealable. The appeal can only be taken from the interlocutory judgment entered after the order. Dick v. Livingston, 41 Hun, 455. The questions, however, are presented upon the appeal from the interlocutory judgment overruling the plaintiffs’ demurrer to the answer.

This is a suit for partition. ,The defendant .Susie S. Weeks is described in the summons and complaint as “executrix under the last will and testament of Alexander A. Ogsbury, deceased;” but the allegations are that the plaintiffs’ title, in part, was derived through the defendant Susie S. Weeks, and making such title dependent upon her acts or omissions individually. Thus, the complaint alleges that the said defendant’s husband died seized of an estate of inheritance of an undivided fourth part of the premises sought to be partitioned, leaving a last will and testament which was duly admitted to probate; that by such will his interest in the premises was devised to a trustee in trust to pay the net income thereof unto his wife, in lieu of dower, during her life, so long as she should remain his widow, and upon her death or marriage said she should remain his widow, and upon her death or marriage said premises were to go to plaintiffs and their brother, William L. Ogsbury; that the widow remarried, “and that her name is now Susie S. Weeks; and thereby all the right, title, and interest of said Alexander A. Ogsbury, or his trustee, in said premises, became vested in” the parties named. The defendant Susie S. Weeks did not answer as executrix, but individually, and by such answer she controverts the allegations of fact touching the plaintiff’s title; and though admitting the probate of her husband’s will, and its provisions, as alleged in the complaint, she denies that she never received any of the income, “or that she ever elected -to take the same in lieu of dower, or that said will ever became operative to deprive her of her lawful dower in said real property.” She, however, admits her remarriage, but repeats her denial that' thereby all the rights of her former husband or his trustees became vested in the persons as alleged in the complaint. And then, at length she sets out her marriage with Alexander A. Ogsbury, her cohabitation with him until his death, and the fact that he was seised during coverture of an estate of inheritance in an undivided fourth part of the premises, and claims that she “now is, and. lias been at all times since the death of said Alexander A. Ogsbury, entitled to a life estate in said undivided one-fourth part of said premises, as and for her dower therein, consisting of one undivided third thereof; that no admeasurement of her dower has ever been made, nor are there any proceedings to admeasure the same now pending.” The demurrer is, in form, “to the counterclaim set forth in the amended answer, * * on the ground that it appears upon the face of said counterclaim that the same does not state facts sufficient to constitute a cause of action.”

The first criticism to be made is upon the form of this demurrer, which we think is bad. If, as claimed by plaintiffs, the answer contained a counterclaim, as distinguished from a defense, then the ground of demurrer specified would apply. It will be noticed that there is no mention of a counterclaim throughout the answer, and no affirmative relief is asked, but merely that a partition be made “subject to her said right of dower.” ETor does she ask that her dower be set out and admeasured to her, specifically, .upon the premises to be partitioned.. In the absence of such allegations, or such a prayer for relief, even though there be a question as to whether the pleading was to be construed as a defense or a counterclaim, it will be regarded as a defense. Bates v. Rosecrans, 37 N. Y. 409, 412. As we must construe it, therefore, as a defense, the form of the plaintiffs’ demurrer should have been to the answer, “on the ground that it is insufficient in law, upon the face thereof.” It will thus be seen that we agree with the learned judge at special term not only in his view that the facts stated are not set forth as a counterclaim, but as a defense, .but also in his view as to the defendant’s right to controvert the allegations in the complaint “to the effect that, by reason of her marriage, all the right, title, and interest of her husband or his trustee in the said premises became vested in the plaintiff and his remaining brother and sister,” and for the reasons which he sets forth in his opinion.

The appellants insist, however, that the learned judge overlooked the provision of the Revised Statutes that a widow loses her right of dower when there is a testamentary provision for her in lieu of dower, unless, within one year, she enters upon the lands, and commences proceedings for the recovery of her dowei*. 1 Rev. St. p. 742, § 14. As he does not discuss that question, a word may be necessary. That is a statute of limitations, and, as such, to be available to either party, should be pleaded by the one who relies upon it. The complaint does not allege that this defendant elected to take the provision in lieu of dower, nor does it allege that she failed, within one year after the death of her husband, to enter on the lands, or commence proceedings for the recoverey of her dower. There being nothing in the complaint, therefore, to show that the statute applies to bar her right, it cannot be presumed to armlv in the absence of either a pleading or proof upon, the subject. The difficulty with- the plaintiffs’" position seems to he that they concluded that a simple way of disposing of this defendant’s rights or claims was to put her in the attitude of an executrix, and to compel her to appear and answer as such. She was not obliged, however, to occupy such a position, but had the right to set up such facts as would show that, as an individual she had some interest in.the controversy, and as such it was proper to set forth her rights in the premises; and, while it is the general rule that a person not named in the summons cannot appear and defend, yet if he does so the plaintiffs’ remedy is to set aside such appearance. And we can find no authority for the appellants’ view, that in an equity suit, where it is necessary to bring a party in, for their own purposes, in a representative capacity, such party cannot set up her individual rights, in the subject of the action, particularly where the Code says that in such action she is, as an individual, a necessary party. Code Civ. Proc. § 1538.

We think that the disposition made of the demurrer was right, and that the judgment should be affirmed, with costs, with leave to withdraw the demurrer upon payment of costs of this court and of the court below.

All concur.


source: Caselaw Access Project

author: HARDIN, P. J.

license: Public Domain

text:
    Philip H. Sage et al., App'lts, v. Emily E. Wheeler et al. Resp't.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed March, 1896.)
    1. Wilt,—Construction.
    A construction is to be preferred which will give meaning to all the language used by the, testator, and also that shall avoid the disinheritance of remaindermen who may happen to die before the termination of the precedent estate.
    3. Same.
    Where the person to whom a remainder after a life estate is limited, is ascertained, and the event upon which it is to take effect is certain to happen, the remainder is vested.
    3. Same.
    A devise of land to son for life, and then to grandchildren, but, in case son should leave child or children, then to him or them forever, gives a vested interest in the grandchildren upon the death.. of the testator.
    Appeal from an interlocutory judgment.
    Appeal from an interlocutory judgment entered in the clerk’s-office of the county of Lewis, on the 28th day of September, 1895,, in favor of the defendants, against the said plaintiffs, and from the whole of said judgment. The action was brought to partition-certain lands situated in Lewis county, described in the complaint, and for a sale of the same in case actual partition could not "be had without material injury to the interest of the parties-Issues of fact were brought to trial at a special term held in Lewis county in April, 1895; and findings of fact and conclusions of law were made, and exceptions thereto were served, and a judgment entered upon the findings," appointing a referee, and directing a sale of the premises and distribution of the proceeds in accordance with the findings. Among the conclusions of law, the trial court found as follows: “Second. That under the will of said Philip P. Harter, deceased, there was no gift of the premises mentioned in the first finding of fact to the grandchildren of said testator until the death of George H. W. Harter, without leaving children, and the title to said premises did not vest in the said grandchildren until the death of said George H. iW. Harter.” Philip P. Harter died in July, 187 6, having theretofore, in October, 1872, made his last will and testament, which was admitted to probate in the county of Lewis. His son, George, died in May, 1894, leaving no child or children. At the time of the death of the testator, he left, him surviving, fourteen grandchildren, two of whom “died intestate, unmarried, and childless before the death of the said George.” The question in the case depends upon the construction to be given to the fifth clause of the will, which is as follows: “Fifth. I give and devise .to my son, George H. W., those several pieces of land conveyed to me by Isaac Bostwick, sixty-nine acres; Asa D. Wright, sixteen acres; Palmer Hodge, forty-seven acres; Mrs. Copley, and Mrs. White and her heirs,—amounting in all to about one hundred and fifty acres; the Abner Townsend lot, of twenty-five acres, •with the appurtenances,—to have and to hold the same during ithe term of his natural life; if he dies without leaving children, and then to be equally divided among my grandchildren, including the children of nry adopted daughter, Jane Bedell, share and share alike; but, if the said Geoge H. W. shall leave a child or children, then to be his and theirs forever, subject to the conditions hereinafter mentioned.” The will appointed Gilbert B. Johnson sole executor, “empowering him to sell and convey all property necessary as herein directed, real as well as personal.” It is not claimed that he had any powder over the lands mentioned in the fifth clause of the testator’s will.
    John Lansing, for app’lts; Merrell, Ryel & Merrell and C. S. Mereness, for resp’ts.
   HARDIN, P. J.

To determine the question presented by this appeal, it is important to ascertain the intention of the testator in the use of the language found in the fifth clause of his will.

By the provisions of the Revised Statutes (volume 1, p. 722), it is provided in section 7, viz.:

“Estates, as respects the time of their enjoyment, are divided into estates in possession, and estates in expectancy.”

Section 8:

“An estate in possession, is where the owner has an immediate right to the possession of the land. An estate in expectancy is where the right to the possession is postponed to the furture period.”

Section 35 provides:

“Expectant estates are descendible, devisable and alienable, in the same manner as estates in possession.”

Manifestly, the testator intended to give and devise to his son, George, the lands mentioned in the fifth clause of the will, “to have and to hold the same during the term of his natural life;” and it is equally clear, by the language' used, that the testator intended, in case George left, him surviving, child or children, the land should descend to such child or children. At the close of the life of George, his life estate terminated. George died without leaving child or children, and therefore that clause of the will becamé wholly inoperative and inefficient. We must turn to the other language of the will in order to determine from it the intention of the testator as to the disposition to be made of his estate in the event mentioned therein. A construction is to be preferred which will give meaning to all the language used by the testator, and also that shall avoid the disinheritance of remainder man who may happen to die before the termination of the precedent estate. Moore v. Lyons, 25 Wend. 119; Scott v. Guernsey, 48 N. Y. 106; Byrnes v. Stilwell, 103 N. Y. 453; 4 St. Rep. 241. The testator evidently intended, by the use of the language, that his son, George, was to remain in possession of the lands during his natural life, and that, in the event that he should die without leaving issue, a division should in that case take place among the testator’s grandchildren, “including the children of my [his]¡ adopted daughter, Jane Bedell.” In the use of the words “and then to be equally divided among my grandchildren,” there was evidently an intention that the right to possession of the land in the granchildren was then to pass to them simultaneously with' the death of George, in the event he.died childless. The estate, vested in them upon the ceasing of the intermediate or precedent estate, and their right vested as a right upon the death of the testator; and, upon the death of George without issue, they became entitled to possession. It is quite apparent that the testaor intended to keep the property in the line of his blood.

We think the language of the whole of the fifth clause, when taken together,'falls within the principle of Hennessy v. Patterson, 85 N. Y. 98, and that the language used by Finch, J., in that case is applicable here:

“When the person to whom a remainder after a life estate is limited is ascertained, and the event upon which it is to take effect is certain to happen, the remainder is vested.”

And, in accordance with the doctrine of that case, we are inclined to think the remainder which vested in the grandchildren was contingent, “but, nevertheless, an expectant estate, as defined by the Bevisd Statutes, and, as such, alienable;” and that the interest which the two grandchildren derived at the time of their death descended to their heirs, and vested in the other grandchildren.

In Mitchell v. Knapp, 54 Hun, 500; 27 St. Rep. 604, it was held that, in order to defeat the vesting of a bequest or devise, a very clear intention should be shown. That case was affirmed in 124 N. Y. 654, on the opinion delivered at the general term.

See, also, Plet v. Wilson, 134 N. Y. 140; 45 St. Rep. 771, and cases cited.

In 1 Rev. St. 723, § 13, it was provided, viz.:

“Future estates are either vested or contingent. They are vested when there is a person in being who have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate.”

It is quite manifest that the testator, in the use of the words “then to be divided,” intended to indicate the time when the right of possession should begin, to wit, at the close of the antecedent life estate. Vanderzee v. Slingerland, 103 N. Y. 47; Van Axte v. Fisher, 117 N. Y. 401; 27 St. Rep. 257; Bedell v. Guyon, 12 Hun, 396; Wilson v. White, 109 N. Y. 59; 14 St. Rep. 46; Embury v. Sheldon, 68 N. Y. 235.

The respondents have placed considerable reliance1, as did the trial judge, upon Shipman v. Rollins, 98 N. Y. 311. In that case the testator, by his will, provided that his executors should sell certain of his real estate, and provide a fund to be invested to be (paid to bis widow during life; and, after her death, he authorized the executors to sell the residue of the estate, and add the proceeds to the amount invested; and, after paying therefrom certain items specified, he directed that the balance be then divided into eight ¡parts, four of which he gave to certain religious associations, not then incorporated. A more careful inspection of the case warrants the criticism made of it in Mitchell v. Knapp, 54 Hun, 503; 27 St. Rep. 604, where it was said: “In Shipman v. Rollins there was a manifest intent to postpone the vesting, and so it was in Delafield v. Shipman, 103 N. Y. 463; 4 St. Rep. 247.” We jthink the case, when fully examined, fails to sustain the position for which it was cited in the opinion delivered at special term.

The case of Smith v. Edwards, 88 N. Y. 92, differs very essentially from the one now in hand.. In that case the testator named executors, and directed that they keep invested until his youngest grandchild “now born, or that may hereafter be born before final distribution of my estate, shall be of full and lawful age;” and then, by a subsequent clause, he fixed the date of the final distribution; and it was held that the whole bequest was invalid because it suspended the absolute ownership for more than two lives in being at the death of the testator. We think the case does not aid the contention of the respondents.

The case of Warner v. Durant, 76 N. Y. 133, differs very essentially from the one now in hand. There the testator provided ¡jthat his gift was to be several from the general estate, and be held by the trustees for a specified time, for the benefit of the legatee* and then to he paid over to him; in the meantime the interest thereof to be paid to him. It was held that this was indicative of the intent of the 'testator that the legatee shall, at all events, have the principal, and is to wait only for the payment until the day fixed. It was held, however, in that case, that the legacy vested in the legatee immediately upon the death of the testator, and passed to his principal representatives.. We see nothing in the case which sustains the contention of the respondents.

The foregoing views lead to the conclusion that the learned trial court was in error in finding, as conclusion of law, that the “title to the premises did not vest in the grandchildren until the death of said George H. W. Harter,” as we are of the opinion that the grandchildren, upon the death of the testator, took a vested interest in the lands mentioned in the complaint.

It is suggested in behalf of the appellants that an original judgment may be entered upon the evidence found in the appeal book ment may be entered upon the evidence found in the appeal book, There are several contingencies, however, which will be affected’ by the result which we have reached; and we deem it more orderly that the interlocutory judgment should be reversed, and the case1 remitted to the special term for further action in accordance with the views expressed in the foregoing opinion.

Interlocutory judgment reversed, and a new trial ordered, with costs of the appeal to abide the final award of costs.

All concur.


author: WILLIAMS, J.

text:
    Ysidora C. Clark, Resp't, v. Robert E. Westcott, as President, etc., App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    1. Witness—Impeachment—Contradiction.
    Testimony of statements of witnesses made ont of court, inconsistent with evidence given by them on the trial, is incompetent, unless a proper foundation has been laid.
    2. Same.
    But such error does not call for a reversal, where this ground of objection was not properly brought to the attention of the court.
    3. Evidence—Value.
    In an action for personal injuries, while the amount to he allowed for medical attendance can only be such sum as it was reasonably worth, evidence of the amount actually paid is admissible in establishing this item of damage.
    4. Same.
    Where no question was raised, after the evidence was given, as to its sufficiency, or what weight should he or was given to it by the jury, there is no error with reference to the admission of the evidence calling for a reversal of the judgment.
    5. Damages—Suffering.
    In such action, the plaintiff is entitled to recover, not only Eor the pain and suffering endured up to the time of the trial, hut also fo.r, such suffering as she will endure as the immediate consequences of the accident, provided the evidence clearly and conclusively warrants such an inference.
    -6. Same.
    It is error only, if there is an entire absence of evidence upon which the jury can find there will be future pain and suffering.
    Appeal from a judgment in favor of plaintiff, entered on a verdict, and from an order denying a motion for a new trial.
    The action was brought for damages for personal injuries to plaintiff alleged to have been caused by the negligence of the defendant. ÜSTo qustion is made by the1 appellant but that there was evidence to support a verdict for the plaintiff, so far as negligence on the part of the defendant, and the absence of contributory negligence on the part of the plaintiff, were concerned. The questions raised on this appeal relate to alleged errors in the reception of evidence and in the charge of the court, and to the verdict of the jury in that the damages were excessive.
    Austen G. Fox, for app’lt; Otto Horwitz, for resp’t.
   WILLIAMS, J.

The first error in the reception of evidence complained of was in permitting the plaintiff to testify that the defendantant’s witnesses Brown and Frasier said, while helping her in from the street where the accident occurred,.in substance, that they thought the plaintiff would be killed, and that defendant’s -driver ought to be arrested. The plaintiff had sworn that she was struck by the defendant’s horse and wagon while crossing the street, and was thereby thrown down and injured. These two men, Brown and Frasier, had testified that plaintiff was not struck by ¡the horse and wagon at all, but that she tripped or slipped down-. Frasier also testified that he heard some one inquire of plaintiff, “Who do you blame? ” and plaintiff answered, “¡Nobody but myself.” These talks were all claimed to have taken place after the accident occurred, and while plaintiff was being helped in from ¡the street, or after she,was in the house. ¡Neither Brown nor Frasier had been asked by plaintiff, when on the stand as a witness, whether they had made the statements testified to bv plaintiff. The objections to this evidence given by the plaintiff were substantially that it was not rebuttal, and was irrelevant, and an attempt to bring in irrelevant matter brought out on cross-examination, and not rebuttal. The court sustained the objections made, but still held that the plaintiff might state what the men had said, and she did state it under defendant’s exception. There was, very likely, technical error in permitting this evidence to be given. It was evidently received by the court as tending to impeach the witnesses Brown and Frasier, and would have been competent for that purpose as showing that their statements made out. of -court were inconsistent with evidence given by them on the trial, provided a proper foundation had been laid for giving such evideuce by tbe plaintiff. The real objection was that the witnesses had not themselves been asked if they made such'statements. If they had been so asked, and had denied it, it would have' been, competent for the plaintiff to have testified that they did make such statements. This ground of objection was not properly brought to the attention of the court. If it had been, the omission would very likely have been supplied, and the plaintiff’s evidence would have thus been properly given. The result would, undoubtedly, have been the same, and we think, under the circumstances, the technical error in the reception of the evidence in the form it was received could not have worked any injury to the defendant, and does not call for a reversal of the judgment. It may also be said that, Frasier having testified to some things that were said at the time these statements were made, it was competent for the plaintiff to give the balance of that conversation.

The next error in the reception of evidence complained of was in receiving evidence as to the money expended by the plaintiff for medical attendance in her efforts to be cured of her injuries. Plaintiff testified that she was attended by Drs. Mudd, Fry, Spencer, Prewitt, McBumey, and Pomeroy, and received their bills, which were not all paid; she received Dr. Fry’s bill for $25, and paid it; that she received Dr. McBurney’s bill for $129 or $123, and paid it. Dr. McBurney’s bill for $120 was produced, and received in evidence. She further testified that she received two bills from Dr. Mudd, one for $57, and the other for $75, and paid them. She further testified that she received another bill from Dr. Mudd, for $323, upon which she had paid $100, and the balance, $223, remained unpaid. Dr. Fry’s'and this last bill of Dr.' Mudd’s were not received in evidence. All this evidence as to what the bills were, and what the plaintiff paid upon them, was objected to, on the ground that there was no evidence as to the value of the services of the doctors. None of these doctors were, sworn, and there was no evidence by experts as to the value of the doctors’ services. There was more or less evidence given in the case as to the nature of the plaintiff’s injuries, as to her condition from the time of the accident down to and at the time of the trial, and as to what services the doctors rendered. The court,' in charging the jury said: “The plaintiff, if entitled to recover, will be entitled to recover * * * the amount of the medical and surgical bills which have been testified to. * * * The plaintiff is entitled to those damages which ordinarily result in cases of this kind, * * * doctors’ bills,” etc. There was no motion at the end of the case to strike out the evidence as to the doctors’ bills, and their payment, on the ground that evidence as to the value of the services was not given; nor was there any exception to the charge as made with reference to the doctors’ bills, nor any request to charge that a recovery could not be had for the whole of the doctors’ bills or the whole amount paid thereon, nor any request to limit the recovery to any of the items of such bills or payments. The only question, therefore, is whether the evi-" deuce offered was competent in the case. The sufficiency of evidence to support a recovery for any or all of the hills is not involved in this case. Xor can we say whether the jury allowed any or what amount of damages for such medical attendance. .While it is true that the amount to he allowed for medical attendance can only he such sum as it was reasonably worth, still one item of evidence to establish this item of damage, proper to be given, was the amount actually paid; and therefore the evidence cannot be said to have been incompetent at the time it was given. It might be claimed that the evidence was not sufficient, unless proof was thereafter given of the value of the services, but no such question was properly raised. Some evidence was given as to the injuries and condition of the plaintiff, and the services rendered by the doctors. No question was raised, after the evidence was given, as to its sufficiency, or what weight should be given to it by the jury nor does it appear what weight was given to it by the jury. Under these circumstances, we do not see that there was any error with reference to the admission of this evidence calling for a reversal of the judgment.

It is claimed there was error in the charge of the court as to the amount of damages for future pain and suffering. Plaintiff’s counsel requested the court to charge: “The plaintiff is entitled to recover, not only for the pain and suffering endured up to the time of the trial, but also such injuries as she will hereafter endure as the immediate consequence of the accident,”—to which the court replied: “I will charge you that that is a proper rule of law provided the evidence clearly and conclusively warrants its application. I do not say whether it does or not. She is certainly entitled to all the damages she has suffered up to this date, and anything that will follow as a logical consequence from that.” The defendant’s counsel excepted to this charge, saying he did not think there was any evidence to warrant it. The court thereupon said further: “I charge the jury, as to future pain and suffering, you can only allow that which would logically and clearly flow from the injury, as shown by the evidence in the case. Of course, you cannot speculate; your' verdict must be founded upon the evidence.” We do not see that there was any error in this charge. It could only be said to be error if there was an entire absence" of evidence upon which the jury could find there would be future pain and suffering. But there was evidence as to the plaintiff’s condition before and at the time of the trial, from which the jury might properly and fairly infer that the plaintiff would endure pain and suffering to some extent after the trial. The court very carefully instructed them as to the damages they might award for any such pain and suffering. It is also said that the damages awarded by the jury were excessive. We are not prepared to say .this. The plaintiff appears to have sustained serious injuries. The accident occurred in July, 1890, and the trial took place in October, 1895. The evidence showed her condition during these five years, her pain and suffering, and the expenses incurred by her. The jury fixed the amount of damages at $6,500. We do not think, under the evidence, the amount was excessive, so as to indicate that the jury were actuated by favor, prejudice or passion. We are not inclined to find the damages excessive, so as to call for a reversal of the judgment or a reduction of the "amount of the verdict.

We have thus considered such questions as are raised by, defendant’s counsel in his brief, and we conclude that the judgment appealed from should be affirmed, with costs.

All concur.


author: RUMSEY, J.

text:
    Isaac H. Leiter, Resp't, v. Henry Beecher et al., App'lts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    3. Arbitration—Enforcement.
    Any contract by which parties agree to submit their matters in difference to arbitration will not be enforced by the courts.
    3. Same.
    Such contract is not void in the sense that it is of no force whatever. If the parties carry out the agreement and appoint arbitrators who act in the matter, their award will be affirmed and judgment entered upon it in the usual way.

      % Same.
    But the courts will not enforce a specific performance of such contract in equity, nor will they permit such an agreement to operate as a defense, if it is pleaded as an answer to an action upon a contract.

      4. Insurance—Underwriter’s policy.
    Where it appears by the complaint that the number of underwriters is large and the expense of maintaining an action against them, the effect of which could only be to recover from each one a comparatively small sum, will be considerable, in proportion to the amount of money to be recovered, it is proper that the parties should provide by their contract that this expense shall be avoided, and that the amount to be paid shall be fixed in one action against a small number of defendants, rather than in several actions or against a great number of separate people.
    •IS. Same.
    A provision in the policy to this effect is not void.
    •6. Same.
    Such contract would authorize the court to fix the total sum to be paid and apportion it among the principals, who are parties to the contract and who have in it agreed that this very thing might be done.
    7. Same.
    If, upon examination, it shall be found that the defendants have also become personally liable to pay the amount due to the plaintiff upon the policy, the court has power to direct judgment against them, either with or without the other judgment, apportioning the amount to be paid by the several underwriters.
    8. Judgment—Stipulation.
    If a party ag-rees to be bound by the result of an action between other persons," he is bound by the judgment in that action, though he is not a party to it.

      Appeal from a judgment overruling a demurrer to the complaint.
    W. C. Beecher, for app’lts; S. G. Adams, for resp’t.
   RUMSEY, J.

This action is brought against the defendants, Henry B. Beecher and Vincent It. Schenclc, upon a contract of insurance made between the plaintiff, on the one part, and these two defendants, as agents for certain underwriters doing business under the name and style of the Metropolitan Lloyds of Hew York City. The complaint does not contain the contract in the .precise words in which it was written, but it sets up the contract according to its tenor. This, in substance, that about the 15th day of J une the defendants, acting as attorneys for the underwriters, duly entered into a contract with the plaintiff by which they covenanted, for a consideration paid by the plaintiff, to insure the plaintiff’s property against fire, for the sum of $1,000. The property is then described in the complaint, and certain privileges contained in the policy, and an agreement for the payment of the loss pro rata in certain cases, are set out, which need not be considered here. Then follows an allegation that it was further agreed that, in case of a loss or damage by fire to the plaintiff’s property, the defendants (who are the agents, and not the principals) should pay to the plaintiff the sum of $1,000 of the amount found due and payable under the contract of insurance, upon proof to the defendants of such loss, etc. The complaint then contains allegations that there was a loss, and the amount of it, and that the amount has become due, and the defendants have failed to pay. Then follows a statement that, pursuant to said contract of insurance, it was agreed that the underwriters should pay to the plaintiff the said loss in equal proportions, share and share alike. Then follows in the complaint the statement of the particular provision of the policy upon which certain questions are sought to be presented in this appeal. That statement is as follows:

“Ho action shall be brought to enforce the provisions of this policy, except against the general managers, as attorneys in fact, and representing all the underwriters, and each of the underwrites hereby agrees to abide the result of any suit so brought, as fixing his individual responsibility hereunder.”

The defendants demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. Whatever may be the precise wording of the contract presented by this complaint, when it shall be set out in liaec verba, this demurrer must be decided upon the allegations of the complaint. It is plain from those allegations that although the defendants, who are Beecher and Schenclc, and no one else, are alleged to have signed this contract of insurance as agents of certain underwriters, yet the contract contained provisions which must necessarily have been intended to bind them personally, and which, unless so con-staled, would be entirely without any meaning. The defendants are therefore liable personally upon those provisions of the contract, although they signed only as agents. 1 Pars. Cont. 64; 2 Kent Com. 631. The complaint alleges that the defendants agreed to pay, and that of itself, in connection with the allegations of the plaintiff setting out the right of action against somebody upon this policy, would be sufficient to require the affirmance of this judgment without further consideration. But the case was not argued upon any such theory, and the. questions which are raised are fairly presented by the facts, so that we feel at liberty to decide them, and not permit the case to go off upon the grounds above cited.

It is claimed by the plaintiff that he is entitled to maintain this action upon that portion of the contract which is quoted above,, to the effect that no action shall be brought to enforce tire provisions of the policy, except as against these two defendants, as attorneys in fact, and representing the underwriters. The defendants claim that this provision of the contract is void, as against, public policy, because-it ousts the court of jurisdiction, and, being void, of course that no cause of action can be predicated upon it. There is no doubt of the rule that any contract by which parties-agree to submit their matters in difference to arbitration will not be enforced by the courts. Delaware & H. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250. Such contract is not void in the sense that it is of no force whatever, because if the parties carry out the agreement, and appoint arbitrators who act in the matter, their award will be confirmed, and judgment entered upon it in the usual way. The extent to which the courts have carried the rule is simply that they will not enforce a specific performance of' it in equity, nor will they permit such an agreement to operate as-a defense if it is pleaded as an answer to an action upon a contract. While the rule is well settled, yet it is not one which should be extended. In the case last cited the court say:

- “The better way, doubtless, is to give effect to contracts when lawful in themselves, according to their terms and the intent of the parties; and any departure from this principle is an anomaly in the law, not to be extended or applied to new cases unless they come within the letter and spirit of the decisions already made. The tendency of the more recent decisions is to narrow, rather than to enlarge, the operation and effect of the prior decisions limiting the power of the contracting parties to provide a tribunal for the adjustment of possible differences without a resort to the courts of law, and the rule is essentially modified and qualified.”

The true rule to be applied in the construction of the contracts on that subject seems to be that laid down In re New York, L. & W. R. Co., 98 N. Y. 450, and is as follows:

“Parties, by their stipulations, may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. They may stipulate away statutory, and even constitutional rights. They may stipulate for shorter limitations of time for bringing actions for the breach of contracts than are prescribed by the statutes, They may stipulate that the decision of a court shall be final, and such limitations being frequently found in insurance policies. They may stipulate that the decision of a court shall be final, and thus waive the right of appeal. And all such stipulations, not unreasonable, not against good morals or sound public policy, have been and will be enforced; and generally all stipulations made by the parties for the government of their conduct, or the control of their rights, in the trial of a cause, or the conduct of a litigation, are enforced by the courts.”

The rule is expressed by the maxim, “Modus et conventio vincunt legem.”

When we examine this contract, so far as the parties to this present situation are concerned, we see, however, that it is not a contract in any way to oust the courts of jurisdiction. It is, on the contrary, so far as these agents are concerned, a contract to subject themselves to the jurisdiction of the court in a matter as to which, probably, but for the contract, no action would lie against them. Certainly none would lie for the purpose of fixing the amount of the liability of any one else. The effect of this action is not by any means to oust the courts of jurisdiction, because the plaintiff is insisting that the courts have jurisdiction under it, and are endeavoring to sustain the right of the court to enter a judgment upon it. If the plaintiff had sued the underwriters upon this policy, and they had pleaded that under this clause of the contract no action would lie against them, then the question whether the contract was void because it ousted the courts of jurisdiction against them would arise. In that case it might be necessary to examine into the correctness of the decision of the case of Knorr v. Bates, 12 Misc. Rep. 395; 67 St. Rep. 592, but that question is not presented here. The true construction of the contract is that the fact of he liability of the underwriters, when a claim is made under this policy, and the amount to be paid by each one, if there is a liability, is to be ascertained by this action. It is of the same nature as the ordinary contract in a policy of insurance providing for an arbitration to be had in case of a disagreement between the parties. It appeal’s by tips complaint that the number if underwriters is large, and the expense of maintaining an action against them, the effect of which could only be to recover from each one a comparatively small sum, would be considerable, in proportion to the amount of money to be recovered It is very proper that the parties should provide by their contract, as they may, that this expense shall be • avoided, and that the amount to be paid shall be fixed in one action against a small number of defendants, rather than in several actions, or against a great number of separate people. Within the rule laid down in the case of In re New York, L. & W. R. Co., above cited, the contract would authorize the court to fix the total sum to be paid, and apportion it among the principals, who are parties to the contract, and who have in it agreed that that very thing might he done. If, upon examination, it shall be found that the defendants here-hay» also become personally liable to pay the amount due to the plaintiff upon the policy, there is no doubt of the power of the court to direct judgment against them, either with or without the other judgment, apportioning the amount to be paid by the several underwriters. So far as the judgment fixes the amount to be paid by each one of the underwriters who are parties to the contract, they will undoubtedly he hound by it, although they are not parties to the action. Each one of them agrees to abide the result of this suit, and therefore they are within the rule that, if one-agrees to he hound by the result of a suit between other persons he is hound by the judgment in that suit, although he is not a party to it. Rapelye v. Prince, 4 Hill, 119; Insurance Co. v. Wilson, 34 N. Y. 275, 280. There is presented here a case in the first class of those mentioned by Smith, J., in the case last cited, in which the covenantor expressly makes his liability depend on the result of a suit between others. The judgment there is evidence against him. It is said by Judge Smith, delivering the opinion of the court of appeals in that case, that the judgment is conclusive; and such we think is the logical result of the agreement of the underwriter to be bound by the result of the suit, because that is the very object for which the action is brought, and unless that object can he obtained the contract is to that extent rendered of no-avail.

Our conclusion is that by reason of the clause quoted above, by which the attorneys in fact agree to be sued upon this policy to establish the liability, the complaint- contains a good cause of' action; and judgment overruling the demurrer to it should he affirmed, with costs, with leave, however, to the defendants to-withdraw the demurrer and answer on payment of the- costs of the demurrer in the court below, and of this appeal, within twenty days. All concur.


author: PER CURIAM.

text:
    Patrick Farrell, as Administrator, etc., Resp'ts, v. New York Juvenile Asylum, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    Costs—Former action.
    Where plaintiff fails to pay the costs awarded upon opening a default and judgment dismissing the complaint is entered, with costs, a new action for the same cause will he stayed until the payment of the costs in the former action.
    Appeal from an order denying a motion for a stay of proceedings until plaintiff shall pay the costs of a former action.
    Theron G. Strong, for app’lt; Albert D. Haff, for resp’t.
   PER CURIAM.

We think this motion should have been granted. The plaintiff, as administrator, commenced an action in. the superior court to recover for the death of the plaintiff’s intestate, caused by the negligence of the defendant. When that action came -on for trial, the plaintiff suffered a default, and the complaint was dismissed. Subsequently moved to open the default, and that motion was granted, upon payment of the taxable costs-of the action. The plaintiff failed to pay such costs, and judgment was entered dismissing the complaint, with costs. Subsequently, plaintiff commenced a new action in the supreme court upon the same cause of action, the complaint being substantially the same as the complaint in the action in the superior court. It thus being perfectly apparent that the new action was commenced for the purpose of evading a compliance with the terms imposed by the superior court as a condition of opening the default, it would be opposed to orderly practice to allow a party to a litigation Ihus to trifle with the orders of the court, and, by allowing an action to drop, and commencing a new action, to obtain tlie same relief, without complying with the terms imposed for relief from the consequence of a neglect to prosecute his action.

The order should therefore be reversed, with $10 costs and disbursements, and the motion granted.


author: BARRETT, J.

text:
    Mark H. Eisner, App'lt, v. Mary E. Curiel et al., Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    1. Will—Construction,
    An imperative, general power in trust to sell real estate, after the termination of two life estates therein, effects an equitable conversion of the estate immediately upon the termination of the second life estate.
    3. Same.'
    Such trust will survive and vest in the supreme court, which has full power to direct its execution by some person appointed for that purpose.
    3. Parties—Partition.
    Those who have a contingent interest, not in the realty, but in' the personalty resulting from the equitable conversion, are neither necessary nor proper parties in an action for partition and sale of the fee of such real estate.
    Appeal from an interlocutory judgment overruling a demurrer to one defense pleaded.
    The action is for partition, and affects the premises ISTo. 322 East, Fourteenth street, in the citv of Mew York. The complaint alleges that the premises were formerly owned by Eliza Eisner,, the mother'of the plaintiff and the defendant Mary E. Ouriel; that, by her last will and testament, they were devised to the pla-intiff and the said defendant during their joint lives and the lifetime of the survivor; that,,upon the death of the survivor, the-premises were directed to be sold, and the proceeds paid over,, one-eighth part to each of six named, children of the testatrix, other than the plaintiff and the defendant Mary E. Cnriel, one-eighth part to the lawful issue of the plaintiff, and one-eighth párfc to the lawful issue of the defendant Mary E. Curiel; and that, in case of the death of any of said children before the time specified, their issue were to take collectively the share of the parent. Louis A. Eisner, one of the six children above mentioned, predeceased the testatrix, leaving two sdns. These two grandchildren and the five surviving children were made parties defendant, but children of the said five surviving sons and daughters of the testatrix, and also of the defendant Mary E. Curiel, were not made parties. The second defense in the answer of the defendant Mary E. Curiel alleges a defect of parties on account of this failure. Other facts are stated in the opinion.
    George W. Carr, for app’lt; Wright Holcomb, for resp’t.
   BARRETT, J.

If this is to be treated as an action solely for the partition of the life estates, the plaintiff has undoubtedly brought in all the parties required by tire statute. Upon a careful consideration of the complaint, we think his action should be thus treated. The averments and the prayer are confined to these life estates. There is no allegation upon which partition and sale generally can be decreed. The question whether an action will lie for the partition of the life estates apart from an action for the partition and sale of the fee is not before us upon a demurrer to the defendant’s plea. It cannot, therefore, be considered. Viewing the action as the appellant does, namely, as an action strictly for the partition of the life estates, and without intimating that he can sustain such an action, we think the demurrer to the plea was well taken. There is certainly no defect of parties with regard to such an action. ,

If, however, the action should be treated more broadly, as the respondent insists that it may be treated, the result is the same. There was no devise of the fee after the termination of the life estates. Consequently, the fee is now vested in the living children of Eliza Eisner and in the children of the deceased son. It is so vested subect to the life estates, and subject to the execution of the power of sale given to Mrs. Eisner’s executors. This power is a general power in trust, and is imperative. It effects an equitable conversion of the estate immediately upon the termination of the second life estate. Delafield v. Barlow, 107 N. Y. 535; 12 St. Rep. 494. This power will not die with the executors. It will survive, and vest in the supreme court, which has full power to direct its execution by some person appointed for that purpose. Delaney v. McCormick, 88 N. Y. 174. It follows that the children of Mrs. Eisner’s living children were not necessary parties in anv aspect of the case. Their contingent interest is not in the realty, but in the personality resulting from the equitable conversion. It is this personalty, and this alone, which is bequeathed by the imperative direction to sell the realty and divide the proceeds. This conclusion is not affected by tire fact that the conversion is deferred until the termination of the life estates. Even the fee vested in the parents is nominal. Under no circumstances can Mrs. Elisner’s heirs take any substantial interest in the realty. Even if they should collect the rents and profits intermediate the termination of the life estates and the sale under the power, they would be compelled to account therefor to the executor. Lent v. Howard, 89 N. Y. 169. In equity, these intermediate rents go with, and are deemed part of, the converted fund. It is quite clear, therefore, that the children of Mrs. Eisner’s living children were neither necessary nor proper parties to this action, and that the demurrer to the plea of nonjoinder should have been sustained.

The judgment should be reversed, and the demurrer sustained, with costs in this court and the court below, with leave to the defendants to amend their answer upon payment of such costs in this court and the court below.

All concur.


text:
    William Kiernan, as Executor, etc., et al., App'lts, v. Agricultural Insurance Company et al., Resp'ts.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed March, 1896.)
    1. Appeal—Discretion.
    In equitable actions, where discretion has been exercised as a part of the action of the trial court or of a referee as to costs, the discretion cannot be reviewed at special term. The party seeking to have altered or changed the discretion exercised at the trial term should appeal.
    2. Costs—Offer—Judgment.
    Where an offer of judgment is made before trial, by defendant, and not accepted by plaintiff, the latter, though the court orders judgment for him, with costs, must pay the costs incurred from the time of the offer, if he fails to obtain a more favorable judgment.
    8. Same—Equitable action.
    Section 738 of the Code applies to equitable actions.
    .Appeal from an order, made at special term requiring the clerk' of Cattaraugus county to retax and readjust the cost in said action.
    Appeal from an order made at the Erie special term in October, 1895, requiring the clerk of Cattaraugus county “to tax and allow the defendant’s costs in this action subsequent to the offer of judgment made by the defendant May 11, 1892, and to retax and readjust the plaintiffs’ costs in this action, and to allow the plaintiffs only such items of costs and disbursements as accrued prior to said offer of judgment, on the 11th day of May, 1892, and to add the same to the damages recovered by the plaintiffs in this action, and from such aggregate to deduct the defendant’s costs and disbursments as taxed by Mm, and to enter judgment in this action, in favor of the plaintiffs’ and against.-the defendant, for the amount remaining after such reduction.” The issues were brought to trial at a special term in June, 1895; and, among the-conclusions of law, is was found, viz.: “The evidence given upon the trial of this action was not sufficient to justify the court in ordering a reformation of said policy of insurance; and the plaintiffs, upon all the proofs in this case, are not entitled to a reformation thereof.” The court also found, viz.: “The plaintiffs are entitled to recover in this action for the amount of the insurance-upon said personal property in said dwelling bouse, being the sum of $300, with interest thereon from the 18th day of March, 1892; and I direct judgment to be entered accordingly in favor of the plaintiffs, and against the defendant the Agricultural Insurance Company, for the said sum of $300, and interest thereon from March 18, 1892, with costs and disbursements to be taxed.” It appears that on the 11th of May, 1892, the defendant the Agricultural Insurance Company made an offer of judgment to the plaintiffs “to allow judgment to be taken in this action in favor of the plaintiffs, and against said defendant, for $300, with interest thereon from the 18th day of March, 1892, with costs.” The offer was not accepted. Considerable litigation ensued after the offer. See 81 Hun, 373; 63 St. Rep. 146.
    E. D. Northrup, for app’lts; A. H. Sawyer, for resp’ts.
   HARDIN, P. J.

It is apparent from the pleadings in the action, as well as from the concessions made by the respective counsel upon the argument, that this was an equitable action. The general rule is that in equitable actions, where a discretion has been exercised as a part of the action of the trial court or of a referee, as to costs, the discretion cannot be reviewed at special term. The party seeking to have altered or changed the discretion exercised at the trial term should appeal. Olcott v. Maclean, 11 Hun, 394; Woodford v. Bucklin, 14 Hun, 444; McLean v. Stewart, Id. 472; House v. Eisenlord, 30 Hun, 90; Rosa v. Jenkins, 31 id. 384; West v. City of Utica, 71 id. 540; 54 St. Rep. 991; Kahn v. Schmidt, 83 Hun, 541; 65 St. Rep. 196; Schulte v. Shoe Co., 88 Hun, 226; 68 St. Rep. 258, and cases cited in the opinion at page 229, 88 Hun, and 261, 68 St. Rep. 258; Heath v. Banking Co., 146 N. Y. 260; 66 St. Rep. 632. _

_ It is contended in behalf of the plaintiffs that the action of the trial court in awarding costs to the plaintiffs should control, and that the clerk, on presentment of the decision of the trial court, should have taxed a full bill of costs in the action. We think otherwise. Section 738 of the Code of Civil Procedure provides1 that a defendant may, “before the trial, serve upon the plaintiff’s1 attorney a written offer to allow11 judgment to be taken against him, for a sum, or property, or to the effect, therein specified, with costs.” In the case in hand, an offer was made; and, under the language just quoted, the plaintiffs were entitled to costs to the time of the offer. The section further provides that “if the plaintiff, within ten days thereafter, serves upon the defendant’s-attorney a written notice that he accepts the offer, he may file the summons, complaint, and offer with proof of acceptance, * * * and enter judgment accordingly.” The plaintiffs failed to avail themselves of this provision, and they did not accept the offer. ¥e must, therefore, turn to the remaining portion of the section to determine the status of the parties, after the failure of the plaintiffs to accept the offer tendered. The further provision of the section is as follows: “If notice of acceptance is not thus given, the offer cannot be given in evidence upon the trial; but, if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time.” The language of the section applied to the case in hand excludes the plaintiffs from the right to .recover costs after the offer was made, inasmuch as the plaintiffs failed “to obtain a more favorable judgment.” It must be- understood that when the court ordered judgment for the plaintiffs, with costs, it was such costs as are authorized by the statute, read in connection with the offer served in the action and the recovery allowed. The further provision of the section also applies a rule as to costs. The words “but must pay costs from -that time” casts upon the plaintiffs the burden of the costs that accrued subsequent to the offer. The words of the section seem sufficiently broad to apply to the case in hand, and to require us to hold that the plaintiffs “must ,pay costs from” the time the offer was served. Such seems to 'have been the result arrived at at the special term.

However, it is contended strenuously by the learned counsel for the appellants that section 738 does not apply to an equitable .action. The learned counsel for the respondents, however, con'tends that the court has no jurisdiction in the matter*, and, in support of his contention, refers us to Bathgate v. Haskin, 63 N. Y. 261; Lumbard v. Railroad Co., 62 N. Y. 290; Hunt v. Chapman, 51 N. Y. 555 ; Pfister v. Stumm, 7 Misc. Rep. 526 ; Dowd v. Smith, 8 Misc. Rep. 619; 61 St. Rep. 333; affirmed 80 Hun, 604. Very extensive -argument is made by the -learned counsel for the appellants to distinguish the cases, and he asserts the conclusion that section 738 does not apply to an equitable action. We think his contention must fail.

The question seems to be expressly adjudicated in Singleton v. Home Insurance Co., 121 N. Y. 644; 31 St. Rep. 906, in which case the section was quoted and construed, and near the close of the opinion it was said:

“We think that the defendant was entitled to its costs against plaintiff arising subsequent to the offer”, on the ground that the plaintiff failed to obtain a more favorable judgment than was offered him. We also think that the direction -of the statute are explicit, and that they refer to actions which are in the nature of equitable actions, as well as the actions at lay.”

Reading section 1022 of the Code of Oivil Procedure, as amended to take effect the 1st day of January, 1893, so far1 as it relates to the discretion of the court, in connection with section .738 and section 3262, we think it cannot he held to change the rule laid down in the case of Singleton v. Insurance Co., supra.

The f oregoing views lead to the conclusion that the order made at special term should be sustained. Order affirmed, with $10 costs and disbursements.

All concur.


author: BEEKMAN, J.

text:
    Joseph Tedesco et al., Pl'ffs, v. Richard Oppenheimer et al. Def'ts.
    (Supreme Court, New York Special Term,
    Filed January, 1896.)
    1. Chattel Mortgage—Change of possession—Fraudulant.
    A change of possession intended by chapter 279 of 1893 is physical, and not merely legal or constructive, but must be open,, visible and free from concealment; where the change of possession is not of this character, so that it fails to disclose itself to others than the immediate parties to the transfer, however honest they may have been in their intentions, the situation exists which the statute was designed to prevent.
    3. Same—Fledge.
    A bill of sale of pictures, given for the purpose of security, is a mortgage and not a pledge.
    George W. Seligman, for pl’ffs; George M. Mackellar, for deft’s.
   BEEKMAN, J.

— The defendant Oppenheimer, being indebted to the Harlem River Bank, gave the latter three bills of sale, covering a large number of pictures, as security for a past indebtedness and for future advances. The bills of sale bore date, respectively, on the 20th day of May, 1892, the 15th day of September, 1892, and the 15th day of February, 1893. In September, 1892, his indebtedness amounted to about $15,000, and in May, 1894, when the bank passed into the hands of a receiver,t it had increased to the sum of about $24,000; so that, during this intervening period, the bank had apparently continued to make advances under its arrangement with Oppenheimer. The bills of sale were absolute in form, each expressing a substantial money, consideration, and, in terms, transferred the title without qualification. The plaintiffs are judgment creditors of the defendant Oppenheimer, and bring this action to set aside these transfers, on the ground that they were intended to and did operate as chattel mortgages, and as such were void, because they were not filed as required by law, the property having remained in the possession of the mortgagor. The receiver of the bank alone contests the action, and, while admitting that the bills of sale were never filed, insists that the bank ivas in possession of the property. He also contends that the transfer was not by way of mortgage^ but that the pictures were pledged to the bank, and that the arrangement between it and the defendant Oppenheimer, which will be mentioned later, gave it sufficient control over and possession of the property to support the pledge as against Oppenheimer’s creditors.

Whether the possession was adequate for this purpose it is unnecessary to inquire, as I am of the opinion that the transaction was really a mortgage of the property, and the turning point of the case is found in the solution of the question whether the bank, as mortgagee,- had that possession of the property which satisfies the requirements of the statute.

Chapter 279 of the Laws of 1833 provides that:

“Every mortgage or conveyance intended to operate as a mortgage of goods and chattels _ hereafter made, which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely' void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed as directed in the succeeding section of this act.”

I have italicized a portion of the quotation in order to call attention to the clear and vigorous language used to define the possession which must exist in order to exclude a case from the operation of the statute. Little room is left here for judicial construction, and the conclusion is immediate that the change of possession intended is physical, and not merely legal or constructive. The mischief which the law was intended to prevent was .the deceptive and resultant injury which would inevitably arise [from the indicia of ownership being vested in one who had no title, or only a defeasible one, and who would thus be in a position to secure credit to which he was not entitled, and to perpetrate frauds upon the public, deluded by the evidence of title which •^the possession and visible dominion over property bespeaks. It is therefore a necessary feature of the possession to which the statute refers that it should be open, visible, and free from concealment. It then becomes notice in its highest form of the claim of the possessor, and the constructive notice which arises 'from the filing of the mortgage becomes unnecessary. But where the change of possession is not of that character, so that it fails to disclose itself to others than the immediate parties to the transfer, however honest they may have been in their intentions, the situation exists which the statute was designed to prevent. Crandall v. Brown, 18 Hun, 461; Hale v. Sweet, 40 N. Y. 97; Steele v. Banham, 84 N. Y. 634. In Steele v. Benham the authorities are reviewed for the purpose of showing the insistence of the courts upon a literal construction of the statute. Among these, the case of Topping v. Lynch, 2 Rob. (N. Y.) 484, referred to, where it was said that the words “actual and continued” are applied to the change of possession. They mean an open public change of possession, which is to continue and be manifested continually by outward and visible signs, such as render it evident that the possession of the judgment debtor has ceased.”

The possession claimed in this case on the part of the bank utterly fails to come within the prescription of the statute. It was not until the month of September, 1892, about the time when the second bill of sale was made, that any attempt was made to secure even a colorable custody of the property. An arrangement was then made with Oppenheimer .by which he was to hold the pictures in question on consignment for the bank.. They were then in Oppenheimer’s store,'and continued to remain there. The bank paid the rent, and agreed also to pay Oppenheimer $50 a week for liis services. But the name of the bank nowhere appeared in connection with the business; there was no visible change of possession; and, so far as the public had the means of knowing, Oppenheimer continued to be the owner and possessor of the property to to the same extent as he always had seemed to be. ITe sold some of the pictures, and the bank received the proceeds, but to the public he was acting exclusively in his own right in so doing.. Hor was this the result of any oversight on the part of the 'bank. It was quite deliberate. The vice president testifies that the- arrangemnt with Oppenheimer was that the business was to be conducted and the pictures sold in his own name, and that, when he suggested the expediency of having the business done in the bank’s name, the directors objected, on the ground that it was not the business of the bank to' sell pictures. In view of this, it is quite unnecessary to refer to the appearance of control by the bank which was kept up between it and Oppenheimer. It is sufficint to say that it was between them alone, and the public were advisedly excluded from their confidence. It is therefore quite plain that the bank did not have that possession of the property which the statute demand's, and, having failed to file the bills of sale, it must accept the consequences which the statute declares in pronouncing such a transation to be absolutely void.

The counsel for the receiver earnestly contends that the court, failing to find grounds for supporting the transaction as a mortgage, should, ex debito justitiae, sustain it as a pledge. The difficulty with this is that, upon the undisputed facts of the dase, there was no pledge. A characteristic feature of the law of pledge is that the title, except in certain cases where the property is intangible, does not pass. Here the intention that the title to the property.should vest in the bank was unmistakable. The form of the transaction shows it, and the claim made by the officers of the bank hás been that of ownership. The facts of the case must determine the legal principles which are to be applied, and the court has no right to formulate an inconsequent conclusion, although a result may thus be reached in better accord with abstract justice. I am therefore constrained to find that the bills of sale in question were intended to operate by way of mortgage; that there was no change of possession of the-property; and that, the hank having failed to file them as required by the statute, the plaintiffs are entitled to judgment setting them aside.

. Judgment for plaintiffs, wit costs.


text:
    Jacob Pfeiffer, Pl'ff, v. John Reinfrank as Executor etc., Def't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    Deeds—Executors.
    Where property is conveyed to one whose name, in the deed, is followed simply by some title or name of office, the title vests in the grantee individually and not as a trustee for the person or corporation indicated by the words which follow his name.
    Submission of controversy for the construction of a deed.
    Alfred D. Lind, for pl’ff; Thomas M. Rowlette, for. def’t.
   RUMSEY, J.

The facts stated are substantially as follows: On the 4th day of December, 1895, the defendant, John Kheinfrank, as sole surviving executor of the last will and testament of Frederick Wagner, deceased, made a contract with the plaintiff to sell to him certain premises, more particularly described in the submission. The plaintiff paid, on account.of the purchase price, the sum of $500, and the balance to be paid at the time of closing the title. It is stated that, by the last will and testament of Frederick Wagner, deceased, Catharine Wagner was appointed executrix, and John Kheinfrank, the defendant here, executor, •of the will, with another. The two above named only qualified. The will gave to the executors all the real and personal property of the testator, upon trusts yhich it is not now necessary to mention. After they had qualified, Mary Kelly conveyed to them the premises which Kheinfrank afterwards agreed to sell to the plaintiff. The deed describes the parties of the second part as follows: “Catharine Wagner, executrix, and John Kheinfrank, executor, of the last will and testament of Frederick Wagner, deceased.” The property is conveyed to the parties of the second part, and their heirs and assigns forever, and the habendum is in the same words. Catharine Wagner died on the 4th of August, 1895. Her heirs did not join in the contract to sell the premises to the plaintiff. The plaintiff refuses to accept the title to the premises which Kheinfrank agreed to sell him, upon the ground that the conveyance mentioned above conveyed the property to the parties of the second part, therein named individually, as "tenants in common, and not in their capacity as executors. The defendant, on the contrary, insists that, by that conveyance, the title to the land was vested in himself and Catharine Wagner jointly, as executors of Frederick Wagner, and that, upon the death of Catharine Wagner, he became, as sole surviving executor, the owner of the property, so that he can now convey, as such executor, a good title in fee to the plaintiff.

The question presented for consideration is whether or not the conveyance vested the title to the entire premises in the persons named therein in their representative capacity, so that the defendant, as executor, can, hy his sole deed in that capacity, convey a good tide to the premises. It seems to be very well settled that where, in any legal proceedings, the name of any person is followed simply by his title or name of office, without any other statement that he is acting in the capacity indicated by the words which follow his name, such words are merely descriptio personae, and the person is bound or charged individually only, as the case may be. Sheldon v. Hoy, 11 How. Prac. 11; Stilwell v. Carpenter, 2 Abb. N. C. 238. Such, also, is the rule where the name of a party to a contract is followed by a recital of his office, and he signs, writing his official title after his name, and the contract contains no words explaining the intention with which he signs. In that case it is held that he charges himself individually. Seaver v. Coburn, 10 Cush. 324. The same rule is laid down where property is conveyed to one whose name, in the deed, is followed simply by some title or name of office. In that case it has been held that the title vested in the grantee individually, and not as trustee for the person or corporation indicated by the words which followed his name. 3 Washb. Real Prop. 264. In Den v. Hay, 21 N. J. Law, 174, land was conveyed to several, 'after whose names, as parties of the second part, was inserted, “Trustees of the Asso. Presby. Congregation of Newark.” It was held, by the supreme court of New Jersey, that the grantees in the deed took individually, and that the congregation had no title to the land. The same thing was held, substantially, in the case of Towar v. Hale, 46 Barb. 361. The fact that the persons named in the particular instrument are in fact officers of the corporation, as they are described, or in fact executors, is a matter of no importance, and makes no difference with the construction of, the deed so far as the passsing of the legal title goes. In any case, unless it can be inferred, from something in the words of the paper, that they are acting, o that they take the title, officially, the words will be held simply to be inserted by way of description, and will not affect their rights as grantees. These authorities, with which we fully agree, dispose of this case.

Upon the face of this deed, the words “executrix” and “executor” are simply descriptions of the persons who were intended to be meant, and more particularly specify the persons who are grantees in the deed. The conveyance is not made to them and their successors, which would be proper, if it was intended that they should take in their representative capacity; but the deed runs to them and their heirs and assigns, which is only proper if they take individually. There are no words in the deed, nor are there any allegations in the statement of facts submitted, from which it could be said that the property conveyed was bought by them, with the money of the estate of which they were representatives, or that it was taken by them in any way while acting in their representative capacity. Indeed, it is doubtful if, in this proceeding, any such facts would be material. The question here is whether or not John Rheinfrank alone can convey a legal title, and it is clear that, upon the face of the deed, he cannot do it.

The foregoing considerations require us to answer each of the-questions presented by the submission in the negative. It is proper to say that what is said in this opinion is not intended to, nor does it, have any bearing upon the rights of those persons who, as cestuis que trustent or legatees, are interested in the estate of Frederick Wagner, and have the right to call his executor to account. They are not before us in this proceeding, and the fact that he has only the legal title as against this plaintiff will not prevent them, upon his accounting as executor, from showing, if such be the case, that he holds this property in trust for the estate, and is liable to account to them for it or its proceeds.

Pursuant to the stipulation in the submission, judgment must be entered in favor of the plaintiff, and against the defendant, for $500, with interest thereon from December 4, 1895, and $250 damages, without costs.

All concur.


text:
    Matilda Wallace, Pl'ff, v. Thomas Baring et al., Def'ts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    1. Deposition—Affidavit.
    Section 885 of the Code gives the party who intends to make a motion, a right to obtain the affidavit or deposition of a person, not party, who is possessed of any information which will assist the moving party.
    2. Same.
    Such section furnishes no authority for the issuing of a subpoena duces tecum requiring the production of books and papers of the company, nor to compel such person to obtain from outside sources information, nor to examine books and papers to qualify himself as an expert accountant for the convenience of a party.
    Appeal from an order denying a motion to vacate an order to-set aside subpoenas..
    Allan McCulloh, for app’lt; David Gerber, for resp’ts.
   PER CURIAM.

We think that the order for the examination of the witness was proper. Section 885 of the Code of Civil Procedure gives the party who intends to make the motion the right to obtain the affidavit or deposition of a person, not a party, who is possessed of any information which will assist the moving party. Such a deposition is simply an affidavit by a not a party, who will not voluntarily testify to facts within his knowledge, which, if necessary for the nse of a party to an action upon a motion, the court can compel him to give. Under such ¡an •order, however, we can find no warrant for the issuing of a subpoena duces tecum, such as was issued by the referee, requiring the production of books and papers of the company. As said 'in Fisk v. Railroad Co., 3 Abb. Prac. (N. S.) 433:

“The examination in section 885 -is not a discovery. If the witness does riot know the facts sought to he proved, then his affidavit is not necessary. He cannot he required either to take .any means to inform himself or to produce anything which contains such information.”

What the section provides for is an 'affidavit or deposition of facts which are within the knowledge of the person sought to he examined; and he is not required to obtain from outside sources information for a party to the action, nor is he compelled, by an examination of the books and papers of a railroad company, to •qualify himself as an expert accountant for the convenience of a party.

The order, so far as it directs the examination to be taken, -should be affirmed; so far as it refuses to set aside the subpoena, it should be reversed; and so much of the motion as sought to have the subpoena ducés tecum set aside should be granted,—without costs.:


author: HARDIN, J.

text:
    George H. Preston et al., App'lts, v. John C. Howk, as Executor, etc., Resp't,
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed March, 1896.)
    1. Will—Devise—Validity.
    Where the Ontario Congregational church has chang'ed its form of government voluntarily from Congregational to Presbyterian, and thereafter was known as the Presbyterian church, hut did not change its corporate name, and a devise is made to the trustees of the Presbyterian church at Ontario Center, the misnomer will not affect or defeat the intention of the testator.
    U. Same—Trust.
    A bequest to the trustees of a church corporation to be used by them to help defray the expense of preaching the gospel in said church from year to year, vests the property in the legatee and does not create a trust.
    -8. Same.
    The language of the will “the use and interest of all the rest, residue and remainder of the estate, both real and personal,” are held sufficient to confer upon the residuary legatee the corpus of the estate, for the purpose of aiding the corporation in the discharge of son» of its corporate functions.
    4. Costs—Extra allowance.
    The appellate court will sustain an order for an extra allowance, where no conflicting affidavits appear in the record and nothing is discovered from an inspection of the affidavits to show that the special term abused this discretion.

      Appeal from a judgment rendered at special term for defendants.
    Appeal from a judgment entered in the clerk’s office of Wayne -county on the 1st of July, 1895, and also an appeal from an order made the 24th day of June, 1895, granting an additional allowance of $150 to the defendant. The action was tried at a special term in Wayne county, and the court made findings from which it appears that Julia A. Freer, of the town of Ontario, in Wayne county, was, in her lifetime, seized in fee simple and in possession ■of the real estate described in the plaintiffs’ complaint, and that she died on the 13th day of September, 1891, leaving no parent, husband, or child, her surviving, but leaving as her only surviving heirs at law one brother, who is one of the plaintiffs, and two sisters, one of whom is plaintiff Jane E. Jackson, and the other a defendant herein, Delia C. Hicks. On the 23d day of August, 1891, the testatrix executed her last will and testament, which is fully set out in the complaint. The will was admitted to probate by the surrogate of Wayne county, and letters testamentary were issued to the defendant John C. Howk, who qualified and pntered upon the discharge of his duties as executor. It is found as a fact that Oscar F. Whitney, Edwin Harrison, and Edson Howk are trustees of the church society known as the “Presbyterian Church of Ontario Center.” It is also found “that the said society was originally incorporated as a Congregational society, hut that thereafter its form of government was duly changed to Presbyterian, and it has since been known as and called a Presbyterian church. It was the church attended by the testatrix in her lifetime, and. the only one of that name in the vicinity of her late residence.” It was also found that the personal estate of the testatrix was more than sufficient to discharge in full all debts, claims, and legacits against said estate. The court found as conclusions of law, viz.: “(1) That the fourteenth clause of said last will and testament of Julia A. Freer, by which the disposition of the residuum of her estate is attempted, is not invalid by reason of the creation of an unlawful suspension of the power of alienation of the estate bequeathed, but that, on the contrary, said clause operates to vest such estate in the trustees of the Presbyterian Church (or Congregational) of Ontario Center, subject to' the contingent interest therein of the Board of Home Missions and the Board of Foreign Missions of the Presbyterian Church, and to the duty imposed upon said trustees by the fifteenth clause of said will. (2) That said fourteenth clause is not void by reason of the fact that said will was executed within two months of the death of the testatrix. (3) That the plaintiffs are not entitled to the relief demanded in their complaint.” And the court ordered judgment dismissing plaintiffs’ complaint, and, in accordance with the findings, the judgment was ■entered from which the plaintiffs appeal.

      W. Martin Jones, for appel’ts; S. B. McIntyre, for trustees of the church; H. R. Durfee, for resp’t Howk.
   HARDIN, J.

Plaintiffs' complaint particularly described! two parcels of real estate owned by the deceased at the time of her death, and is framed for the purpose of having partition of such! real estate between the plaintiffs and the defendant Delia C.! Hicks, who are alleged to be the heirs at law, and to whom it is alleged the property of the testatrix descended. The prayer of the complaint, among' other things, asks that “the pretended devise to the trustees of the Presbyterian Church at Ontario Center,” mentioned in the will, “he declared null and void, and that the said instalment, so far as the said bequest to said trustees andj to said church is concerned, be adjudged to be invalid, and in no' wise to affect the disposition of her said real estate.” It demands1 further relief according to the usual course and practice in an1 action to partition. Upon the trial, proof was given tending to show that in 1844 the Ontario Congregational Society was-organized at Ontario Center, and that in 1868 the form of the government of the church was changed, voluntarily, from Congregational to Presbyterian, and that thereafter the church was, known as “The Presbyterian Church.” It was shown by the* evidence that there was no other church known or called “The Presbyterian Church” in the town of Ontario, and that the testatrix for many years attended that church; being a member thereof, and being “a resident and regular attendant upon the church services” until a few weeks before her death. Apparently the-church was incorporated under the statute of 1813 (chapter 60, Laws 1813). Union Church v. Picket, 19 N. Y. 482. The statute of 1813, as amended by chapter 79 of the Laws of 1875, gave to the church power to—

“Take and receive by bequest or devise • any real or personal estate, the net annual income of which shall not exceed $12,000. Subject, however, to the provisions of chapter 360 of the Laws, of I860, entitled, ‘An act relating to wills.’”

See, also, chapter 443 of the Laws of 1875.'

In the fourth section of the act of 1875 it was provided, viz. ;•

“That trustees of any church, congregation or religious society,, incorporated under said section three of the above mentioned act, shall administer the temporalities thereof, and hold and apply the estate and property belonging thereto, and the revenues of the same, for the benefit of such corporation. * * *”

The proofs given at the trial were sufficient to warrant the finding that the Congregational Society had changed to Presbyterian, and that the Presbyterian church mentioned in the will was the one known in law as the “Ontario Congregational Society,” and that the misnomer does not affect or defeat the intention of the testatrix. Lefevre v. Lefevre, 59 N. Y. 440. In the fourteenth clause of the will the testatrix uses this language:

“I give and bequeath the use or interest of all the rest, residue, and remainder of my estate, both real and personal, to the trustees of the Presbyterian Church at Ontario Center, N. Y., which is to be used by them to help defray the expense of preaching the gospel in said church from year to year. * * *”

It is contended in behalf of the appellants that the effect of the language used is to create a trust in the trustees named. It is quite apparent, however, that the language used, which has just been quoted, together with the other language found in the will, 'was employed by the testatrix for the purpose of giving to the corporate body the property mentioned in the will, and that the ¡property vested at the close of the testator’s life. In re Wesley, 43 St. Rep. 952; Currin v. Fanning, 13 Hun, 458; Institution v. How’s Ex’rs, 10 N. Y. 84; Chamberlain v. Chamberlain, 43 N. Y. 424; Wetmore v. Parker, 52 N. Y. 450. In the further provisions of the will the testatrix authorized her executor to convert all of her estate, real and personal (not otherwise disposed of), into money, and gave to him authority to bargain, sell, and alien, in fee simple, all of her lands, and gave to him full power and authority to grant, bargain, alien, sell, and convey and assure “all the same lands to any person or persons, and their heirs forever, in fee simple.” Tins language does not seem to be used for the purpose of creating a trust in the executor for the benefit of another person. It seems to be used for the purpose of granting a power to enable the beneficiary to have and enjoy the estate of the testatrix intended to be carried by the residuary clause of her will to the church. The language of the will is sufficient to confer upon the residuary legatee “the use and interest of all the rest, residue, and remainder of the estate, both real and personal”; and by the use of this language there was a gift by implication, of the corpus of the estate.to the church, for the purpose of aiding the corporation in the discharge of some of its corporate functions. Bird v. Merklee, 144 N. Y. 544; Patterson v. Ellis, 11 Wend. 298; Smith v. Post, 2 Edw. Ch. 526; Hatch v. Bassett, 52 N. Y. 359-362. That case was approved in Locke v Farmers’ L. & Trust Co., 140 N. Y. 146; 55 St Rep. 546; Whitney v. Whitney, 63 Hun, 59; 43 St. Rep. 841, and cases cited at page 78, 63 Hun, and 43 St. Rep. 841. The foregoing views lead to the conclusion that the special term committed no error in stating the conclusions of law found in its decision, and the judgment thereon should be affirmed.

2. Hpon affidavits presented at a special term held by the same judge who heard the case on its merits, an application was made for an additional allowance. Affidavits were read in behalf of the •defendants tending to show the value of the property involved, and a moderate allowance was authorized, to wit, $150. FTo conflicting affidavits appear in the record, and we discover nothing, .upon an inspection of the affidavits used, and the circumstances disclosed by the appeal book, indicative that the special term abnsed its discretion. We therefore should sustain its order. Burke v. Candee, 63 Barb. 552; Delcomyn v. Chamberlain, 48 How. Prac. 413; Tolman v. Railroad Co., 31 Hun, 403; Gooding v. Brown, 21 Wkly. Dig. 47; Brake Co. v. Prosser, 88 Hun, 348.

Judgment and order affirmed, with two bills of costs, payable out of the estate. All concur. ..........


text:
    People ex rel. Jacob Simermyer, App'lt, v. Theodore Roosevelt et al., as Commissioners, etc., Resp'ts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    1. _ Municipal corporation—Police—Removal.
    The question whether or not a member of the police force is-guilty of the offense with which he has been charged, can only be determined upon evidence before the commissioners; and, if it appears by the return that the commissioners have considered other-facts, not introduced in evidence before them, it is the duty of the-court to reverse the conviction.
    2. Same.
    In determining such question, the commissioners have a right to consider the relator’s record, or any other fact that is within their personal knowledge.
    8. Same—Presumption.
    The presumption is that the commissioners performed their duty and observed the rules that the law prescribe for the trial of such cases; and, before the court can reverse their decision on this-ground, it must affirmatively that this rule.
    4. Same—Return—Recitals.
    Where the return states that, at the termination of the trial or hearing- of the said charg'es and specifications, the proceeding's and the relator’s record were duly considered by the respondents, and that after due consideration thereof, they determined that the relator was guilty as charged, and they 'thereupon passed a resolution dismissing him from the police force, there is nothing to show that the respondents considered the record of the relator in. determining' his guilt or innocence.
    5. Same.
    Ima return of this kind, it is the duty of the commissioners to state specifically just what they consider in determining the question as to the guilt or innocence of the person charged with the oifense.
    6. Detective—Corrobortion.
    An officer of a society organized for the purpose of aiding in the enforcement of the law and the suppression of crime, without personal ends to serve, is not a private detective, employed and paid an individual who, for some personal reason, wishes to show that another has been guilty of an offense.
    7. Same.
    In such case, his testimony need not be corroborated, to be considered by the board of police commissioners.
    Motion for reargument.
    Robert J. Robeson, for the motion; Theodore Connoly, opposed.
   PER CURIAM.

The counsel for the relator entirely misapprehends the rule as to the effect of the consideration of the' record of the relator by the commissioners. In determining; charges against a member of the police force, the commissioners, first have to determine whether or not the person charged is guilty of the offense with which he has been charged. That question can only be determined upon evidence before the commissioners ^ and if it appeared by the return that the commissioners had considered other facts, not introduced in evidence before them, it. would be our duty to reverse the conviction. "Where, however, the commissioners have determined the question as to the guilt or innocence of the relator under the charges preferred, they then have to determine what punishment should follow; and, in determining that question, they have a right to consider the relator’s record, or any other fact that is within their personal knowledge. This principle was established in the case of People ex rel. McAleer v. French, 119 N. Y. 505; 30 St. Rep. 72. The respondents, therefore, had the right to have before them the record of the relator; and, while they had not the right to consider that record in determining whether or not the relator was guilty, it was properly before them for the purpose of considering the punishment.

The presumption is that the commissioners, being public officers, properly performed their duty, and observed the rules that the law prescribes for the trial of cases of this kind; and, before we can reverse the decision on this ground, it must appear affirmatively that they disregarded this rule, and considered, upon the trial of the relator,, his record, which was before them; and this nowhere appears. The return state that, at the termination of the trial or hearing the said charges and specifications, the proceedings and the relator’s record were duly considered by the respondents, and that, after due consideration thereof, they determined that this relator was guilty as charged, and they thereupon passed a resolution dismissing him from the police force. There is nothing here to show affirmatively that the respondents considered the record of the relator in determining his guilt or innocence. If the relator had wished to present that question, he should have moved to compel the commissioners to make a more specific return, stating expressly upon what they based their findings. As to the guilt or innocence of a person charged with an offense against the rules and regulations of the departments, we think that, in a return of that king, it is the duty of the commissioners to state specifically just what they considered in determining that question. But, as the return does not show specifically that they did consider anything except the evidence before them upon that question, we are not required to reverse their proceedings.

In deciding the question, no notice was taken of the point made that the evidence of Bennett, the person making the charge, was-hot to be considered unless corroborated, on the ground that he was a detective, because we deemed it- quite unworthy of consideration. The plain distinction between an officer of a society organized for the purpose of aiding in the enforcement of the law and the suppression of crime, without personal ends to serve, and1 a private detective, employed and paid by an individual who, for some personal reason, wishes to show that another has been guilty of an offense, is so apparent that we thought it entirely unnecessary to call attention to it. It is clear that whatever criticism; the courts have made upon the evidence of such private detectives' had no application to a ease like the present. Dennett was no more a private detective, within the meaning of the criticism of the witnesses in the case cited by the relator himself, who was a police officer, and whose dnty it was to enforce the law.

All concur.

The motion for reargument should be denied, with $10 costs.