author: Brady, J.

text:
    Mary M. Greenwood, App’lt, v. Edward F. Holbrook, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Will—Construction of “legal representatives.”
    Opposition to the probate of a certain will having keen made, an agreement was entered into by which it was to be abandoned upon the widow’s paying one-half of the net income to the children during her life; that is, one-eighth o each of the four children. It also pro ided, “ and it is hereby further agreed that in case of the death of either of said four children during the widowhood of the said party of the first part she will pay the one-eighth part of said income hereby agreed to be paid to the child so dying to his or her le al representatives so long as the said covenants and agreements shall be observed,” etc. One of said children died and devised and bequeathed “ all interests acquired and to be acquired by me from the estate of my late father ” to her husband. Held, that the interest being an absolute undertaking to pay a certain sum, created an absolute right to receive and transfer it, and authorized the disposition of it by will to any person or persons whom the testator thought proper to name.
    Appeal from judgment of the special term.

      Stephen P. Nash, for app’lts; G. A. Hand, for resp’t.
   Brady, J.

It appears from the record in this case that John Greenwood died May 14, I860, leaving a widow,_ the plaintiff, and four children. By his will he substantially devised all his estate to his widow during life or widowhood, his children, under the will, taking the estate given them subject to this life estate. Opposition to the probate of the will having been made, an agreement was entered into, by which it was to be abandoned upon the widow’s paying one-half of the net income to the children during her life, that is, one-eighth to each of the four children. Eliza Jane Wright, one of the children died childless on the 18th of April, 1880, leaving a will by which she devised and bequeathed to her husband all her estate. The will contained the following clause: “ And I intend to include in this devise and bequest all interests acquired and to be acquired by me from the estate of my late father and grandfather.” Her husband died in 1884, leaving a will by which the defendants Holbrook and Foote, were made executors, and who claimed that their testator, under the will of his wife, and the agreement already mentioned, acquired the right to one-eighth of the income of tho estate for the rest of the life or widowhood of the plaintiff. The learned court below sustained the claim. The appellant, however, insists that after the death of Mrs. Wright, the interest acquired by the agreement went to her next of kin. The clause of the agreement upon which the controversy herein ariises, is as follows: “And it is hereby further agreed that in case of the death of either of the said four children during the widowhood of the said party of the first part, she will pay the one-eighth part of said income hereby agreed to be paid to the child so dying, to his or her legal representatives so long as the said, covenant and agreements shall be observed,' performed and fulfilled as above mentioned.”

The learned justice in the court below thought that the phrase 1 ‘ legal representatives ” contained in the clause, means executors or administrators, that being the ordinary signification of the term where reference was made to personal estate only, and he said that a careful consideration of the circumstances under which the agreement was made, had led him to the conclusion that the words in question were meant to have this ordinary meaning.

The agreement as conceded by the learned counsel for the appellant, was equivalent to an assignment to each of the children of one-eighth of the fife estate which could have been disposed of by the owner, and would, of course, pass under her will. It was as he correctly observes, a vested interest pour autre vie-, but while the respondents contend that the clause embracing the words “his or her legal representatives ” was inserted for more abundant caution to confirm this view, he insists-on behalf of his client that the effect of it was to limit the interest granted, by providing what should become of it if either of the children should die before their mother, in which case she agreed to pay the income, not to the executor or administrator which would have been the proper phrase to use, if it had been intended to confirm and carry out the view just suggested, but to “his or her legal representatives,” that is, to his or her brothers and sisters, or their issue and next of kin. And the learned counsel proceeds in his brief to cite a number of cases in which the words legal representatives were held to mean next of kin.

Assuming that what these words means must be determined by the mode and connection in which they are used, the mode and connection in which they are used in this case makes it apparent that the interest, being an absolute undertaking to pay a certain sum, thus creating an absolute right to receive and transfer it, authorized and legalized the disposition of it by will to any person or persons whom the testator thought proper to name; and this absolute right cannot be interfered with by any interpretation hostile to that view. Where the object and design of an agreement, as understood by both parties, is to change the ordinary .signification of a phrase, there should be something in. the instrument itself, if there exists no proof which could be given aliunde to show such object and design. From the will of Mrs. Wright, however, it conclusively appears that she regarded the agreement as one conferring upon her an absolute right to receive one-eighth of the income and the right of disposition in any manner that she thought proper, .regarding it as part of her father’s estate, to which, though she was not entitled by the express clauses of the will, she acquired title by compromise, and was thus enjoying and disposing of her own property.

For these reasons, without any extended examination of the cases bearing upon the subject, which may be regarded as somewhat numerous and might lead to confusion, it is thought that the learned judge in the court below was right, and that the judgment should be affirmed.

Daniels and Churchill, JJ., concur.


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    In the matter of the application of L. E. Chittenden to compel payment by his attorney of money received by him as such.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Attorney—Moneys of client received by, may be recovered summarily.
    The petitioner employed one H. to procure, if possible, a release of his lands from certain assessments laid upon them. The employment was made under a written contract by which H. was to receive 25 per cent of the amount from which he should succeed in getting the land released, none of the expense of legal proceedings resting upon the petitioner. Subsequently, nothing having been effected by the attorney in removing the lien from the land, the petitioner paid the assessment. After this an order by the court was obtained by which the assessment was reduced 29.7 per cent in accordance with a ruling of the court of appeals holding that money could be recovered back, altho' gh paid by the person assessed after the institution of proceedings to have the same vacated. H. prepared and served a summons and complaint in an action to recover the amount illegally assessed against the petitioner’s property and no defense having been made thereto judgment was entered in the plaintiff’s favor. H. not only retains the 25 per cent under the original contract, but a further 25 per cent for services in instituting the action rendered necessary by the payment of the assessment. An application was made by the petitioner to the special term for an orddr requiring H. to pay over the sum retained in excess of that originally stipu.ated for. Held, that the petitioner had the right thus summarily to ask the court to restore him his moneys in the hands of his attorney, and that the fact that the withholding of the moneys by the attorney was done in good faith and in reliance on a just belief that he was entitled to' greater remuneration is not a sufficient answer to an order to show cause. Such circumstance would be taken into account by the court in determining whether it would entertain a summary application or whether it would require the claimant to assert his rights under the common law jurisdiction in a trial by jury.
    2. Referee—Opinion expressed by referee without authority of the ORDER OF REFERENCE UPON EVIDENCE TAKEN BEFORE HIM DOES NOT INVALIDATE AN ORDER MADE UPON THE REPORT.

      Held, that a matter having been referred to a referee to take testimony, and the referee having beside taking the testimony according to the order and returning it to the court, appended thereto an opinion on the evidence, the fact that the mind of the court was unduly influenced by the opinion in making an order in the proceeding is immaterial if the testimony was sufficient to sustain the order.
    3. Waiver of objection—Effect of.
    On appeal from an order requiring him to pay to his client moneys of his which he had received H. claimed that the client should be. required to resort 10 an action against him, and that he ought not to be thus summarily requ.red to settle with liis client: Held, that this consideration might properly have been addressed to the special term before the order of reference was made, and, also, upon the hearing after the report of the referee lias been made; also, that it might be considered on this appeal, but that H. having upon the r.turn of an order to show cause why he should not be. required to pajr over the money consented to the order of reference, waived his right to insist that he be proceeded against by common law process.
    Appeal from an order of the special term requiring the respondent, one P. A. Hargous, to pay over to the petitioner the sum of $880.

      Chittenden, Townsend & Chittenden, for petitioner; P. A, Hargous, in person, for app’lt.
   Macomber, J.

Mr. Hargous was employed by the petitioner in the year 1872 to procure, if possible, a release of the petitioner’s lands from certain assessments which had been laid upon them by the city of New York. The employment was made “under a written contract by which the appellant was to receive for his services twenty-five per cent of the amount which he should succeed in getting released as a lien upon the lands, without any expense of legal proceedings to the petitioner. In the year 1874, nothing having at that time been accomplished by the attorney by way of removing the liens, the petitioner paid the assessment which was at that time about $7,000. Subsequently to that an order was obtained by the court by which the assessment was reduced by 29 7-10 per cent, in accordance with the decision of the court of appeals in the Matter of Hughes (93 N. Y. 512), whereby it was held that the money could be recovered back, although actually paid by the person assessed after instituting proceedings to have the same vacated. The appellant prepared a summons and complaint, and served upon the proper officers of the city of New York, who made no defense thereto, and, accordingly, judgment was entered in favor of the petitioner by default for the recovery of the amount which had been illegally assessed against his property. The appellant now claims to retain not only the twenty-five per cent according to the terms of the original contract, but a further sum of twenty-five per cent for additional services in instituting suit which had been rendered necessary by the payment into the city treasury of the amount assessed against the petitioner. The attorney having paid over to the petitioner only fifty per cent of the amount recovered from the city, and refusing to pay the additional twenty-five per cent claimed to be due the petitioner, this proceeding was begun to compel the attorney to restore to his client the moneys held for him.

That the petitioner has the right thus summarily to ask the court to restore to him his moneys in the hands of his attorney, admits of no doubt. It has been the uniform practice of courts in this state to compel by proper order a quick and inexpensive settlement of controversies of this description between client and attorney. Nor is the fact that the withholding of the moneys by the attorney is done in good faith and in reliance upon a just belief that he is entitled to more pay a sufficient answer to the order to show cause. Doubtless such a circumstance would be taken into account by the court in determining whether it would entertain a summary application, or whether it would require the claimant to assert his rights under the common law jurisdiction in a trial by jury. Bowlingreen Savings Bank v. Todd, 52 N. Y., 493; In the Matter of the Application of Knapp, 85 id., 284.

An examination of the testimony convinces us that the petitioner had no reason to believe that there would be any further charge against him than that of the twenty-five per cent provided for by the written agreement between the parties. By his own act, however, in paying the amount of the assessment into the city treasury, he did render it necessary to take one simple formal step towards accomplishing the result which, except for the act of the petitioner, would not have been necessary. But the preparation of the summons and complaint, and the entry of judgment by default, was not a proceeding of such gravity or of such a nature as further to modify the original contract between the parties than to impose an obligation upon the petitioner to pay for such special services what they were reasonably worth. Accordingly, the referee has allowed, in addition to the twenty-five per cent, the further sum of fifty dollars for performing this purely clerical work. We think that such an allowance was ample for the services thereby rendered.

The appellant complains, however, that the referee not only returned the testimony taken before him, but also appended thereto an opinion which was not called for by •the order appointing him. It is true that the order does not require the referee to give his opinion upon the testimony that should be taken, but it by no means precluded him "from furnishing that aid to the court. If the referee, diligently considering a case, sees fit thus to render this aid in the decision of a question of fact, the court is ever ready to receive such help and cannot deem it the foundation of an error in the proceedings. It is further claimed that the opinion of the referee unduly influenced the decision of the special term, as expressed in the memorandum of the opinion handed down, but the decision of the court is contained in the order which was made by it and not in the memorandum of reasons given for that order. If the order is sustained by the testimony, as we clearly think it is, it matters not whether or not the judge who made the order gave undue weight to the examination of the case which was made by the referee.

It is further claimed by the appellant that he ought not to be thus summarily required to settle with'his client, but that the client should be required to resort to an action against him wherein he could have a trial under common law jurisdiction of the questions involved in this motion. That consideration might well have been addressed to the special term before the order of reference was made, and also upon the hearing after the report of the referee had been made. This cqurt, doubtless, also has upon this appeal power and a right to consider if. In the record, however, if is shown that upon the return of the order to show cause why the attorney should not be required to pay over this money, a reference was ordered by the consent of both parties. The appellant thereby waived his right, if it exists at all, to ask that he be proceeded against by common law process, and not under the summary provisions of th’e statute and the rules and practice of the court in controversies between attorney and client.

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

Daniels, J., concurs.

Brady, J.—In this case I think party should be left to his action.


author: Davis, P. J.

text:
    Thomas I. Madge, Appl’t, v. Josepha Madge.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Divorce—Evidence—Confession when sufficiently corroborated.
    In an action for divorce brought by the husband, the written confessions of the wife of her acts of adultery were clear and distinct, and there was undoubted proof that they were sincere and not collusive, and they were corroborated by the correspondence of the wife and by the letters of the guilty parties. Held, that the confessions were sufficiently corroborated by the letters and that a judgment of divorce should be granted.
    Appeal from order of the special term, denying motion to confirm the report of a referee and order judgment thereon for plaintiff in an action of divorce.

      Olin Hives & Montgomery, for app’lts.
   Davis, P. J.

The summons and complaint in this case' were duly served on defendant under an order of publication in the Island of Cuba, where she has resided for several years. The complaint charges adultery committed by the defendant with one Dr. Francesco Magdalena at Baracoa in the Island of Cuba, while she was on a visit to that island in June, 1881. The parties were then residents of this state, residing in Brooklyn, where the plaintiff carried on business. They were married at Baracoa in June, 1879, where the defendant’s parents then lived and still live.

After the return of the defendant from her visit to Baracoa, the plaintiff intercepted letters addressed to her from Baracoa, which aroused suspicions of his wife’s unfaithfulness. Several letters of that character came into his possession before he charged her with her misconduct. She then confessed her guilt and the plaintiff ceased to cohabit with her. She afterwards wrote to him a full confession of her guilt, stating the same in detail and acknowledging his right to a divorce, but throwing herself upon his mercy. The plaintiff refused to condone or pardon her crime, and shortly afterwards she returned to her parents in Cuba, the plaintiff remaining and still residing in Brooklyn. When this action was commenced the papers for service therein were delivered to one George W. Way-man, captain of the steamer Saxon, a vessel plying between New York and Cuba, who was personally well acquainted with the defendant. To him were also given the written confession of defendant and the various letters that had passed between the defendant and Dr. Magdalena. Capt. Wyman visited the defendant at the residence of her parents in Curacoa, served the papers in the action, and in a long, interview with her in the presence of her friends exhibited to her the various letters and other matters, as well as her written confession. She acknowledged to him their authenticity, and stated that her confession was true, and further in substance, that she was willing to make every atonement to her husband in her power and to aid him in procuring a divorce to which he was entitled. She also made and gave to Capt. Wyman an additional written confession, acknowledging her guilt as stated in her former confession. There were several other circumstances proved tending to show the -.carrespondence of the guilty parties and its criminal nature. The plaintiff was frilly examined, and denied all collusion between himself and his wife, and gave proof of such other facts, as may, under the rules be proved by the testimony of the plaintiff on such an action. The special term denied the decree of divorce on the ground that the confessions of the defendant were not sufficiently corroborated. In this determination we think the learned justice erred. The confessions' of the defendant in such an action are always admissible in evidence, but to avoid the danger of collusion, the court before granting the decree, will require such corroboration of the confessions as to remove all just suspicion of collusion. When that is satisfactorily done the confessions become a sufficient basis for adjudgment of divorce. In this case the competency of the confessions is undoubted. The circumstances under which they were made tended strongly to remove all suspicion of collusion. The plaintiff had already separated himself from his wife on suspicion of her infidelity caused by the letters he had intercepted. Those letters aroused just suspicion. He had presented them to her, and she acknowledged them as letters addressed to her by her paramour; and afterwards she voluntarily wrote and sent to him a confession in detail of her guilt, Her conduct was manifestly governed by a deep sense of contrition for her offense, and a hope that her husband might pardon and restore her to his confidence.

Long after her return to her parents in Cuba, on being served with the papers commencing the action, she repeated her confession and acknowledged the genuineness of the correspondence between herself and Dr. Magdalena. The correspondence itself was abundantly corroboratory of her confession. It is impossible to read it without being satisfied that the relations of the writers had been too intimate to admit belief of innocence. The genuineness of some of the letters was sufficiently proved also by the fact they were intercepted after the arrival and before delivery to her, and that they bore the foreign postage stamp marks indicating whence they had been sent. These facts coupled with her admissions that they were written by Dr Magdalena, were sufficient to admit them in evidence against her. Her own letters were not only acknowledged by her as genuine, but her handwriting was distinctly proved by a witness familiar with it. The letters being thus admissible, their contents became evidence highly corroboratory of the truth of her confessions.

The rule in such cases is well stated by Gibson, C. J., in Matchin v. Matchin (2 Penn., 332), in these words: “It is a rule of policy not to found a sentence of divorce on confession alone. Yet when it is full, confidential, relevant, free from suspicion of collusion and corroborated by circumstances it is ranked with the safest of proofs.”

There are a number of cases in the books in which confessions have been taken as sufficient evidence “where ” as said by Bishop (vol. 2, § 248), “the circumstances are such as to repel all suspicion of collusion, and leave in the hands of th° court no doubt of the truth of the confessions.”

In Billings v. Billings (11 Pick., 461), there was no other evidence but a letter written by the husband who had been living for fourteen years in another state, to his wife which stated that he had nved with another woman by whom he had children, but expressing penitence and a desire to be reconciled to his wife. The court held that the circumstances repelled collusion, and granted the decree on the confession of the letter alone.

In Tucker v. Tucker (11 Jurist [Eng.], 893) the confession of the wife was confirmed by letters received by her from her paramour and by declarations made by her at a subsequent period. Dr. Lushington held the proof of guilt sufficient, and granted the decree.

Williams v. Williams (L. R., 1P. & D., 29), Le Marchant v. Le Marchant (45 L. J. Rep., P. & D., 43), are strong cases showing under what circumstances admissions or confessions in writing may be sufficient.

There is in the case before us undoubted proof that the confessions were made; that they were clear and distinct; and that they were sincere and not collusive; and they are corroborated by the correspondence by letters of the guilty parties.

We think the court should have confirmed the report of the referee and granted judgment for the plaintiff.

The order must, therefore, be reversed, and judgment of divorce awarded.

Daniels and Brady, JJ., concur.


text:
    Charlotte Meyer, individually and as Ex’rx, etc., Resp’t, v. James P. Cohen and Julius P. Cohen, Ex’rs, et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Wilt.—Construction op clause bequeathing property.
    The testator, by his will, devised a house, together with his books and plate, to his wife in lieu of dower, then giving a stun of money to one P P. to be held in trust, etc. All the rest, residue and remainder of his estate he directed should be converted into money, ¡,nd devised and bequeathed the same to his executor for certain uses; first, that his share and interest at the time of his death in the co-partnership, stock, etc., of J. R. M. & Co., of which he was a member, should, at the option of his executors, and with the consent of the surviving partners, remain invested in the business as long as his executor should deem proper, and that the interest thereon should be paid to his wife C. M. so long as she remained unmarried. The other was that all the balance of the rest and residue of his property not invested in the business already mentioned should be in ■ vested in securities therein designated, and the interest accruing therefrom paid to his wife as long as she remained unmarried. Held, that it was clearly the intention of the testator to give his wife during her life or widowhood, not only the interest which should accrue from his investments in the firm of J. R. M. & Co., but also the rest and residue of his estate after the payment of the legacy to P. P.
    2. Same—Specific legacy—Does not abate.

      Held, that the interest thus to be paid in reference to the fund invested in business was a specific legacy, and was not subject to contribute to make up any unexpected deficiency which might arise in regard to any other portion of the estate.

      3. Same—Devise of mortgaged premises in lieu . of dower—What INTEREST VESTS IN DEVISEE—l R. S. 740, § 4.

    The house devised in lieu of dower was owned in fee by the testator at the time of his mairiage. It is provided by 1 R. S., 740, §4, Edward’s ed., vol. 1, p. 991, that where a person seized of an estate of inheritance in lands shall have executed a mortgage of such estate before marriage, his widow shall, nevertheless, be entitled to dower out of the lands mortgaged as against every person except the mortgagee and those claiming i nder him. Held, that this was the right of the widow under the Revised Statutes, and by common law, and that her acceptance of the house and lot in lieu of dower did not give her a less estate than she had as dowress at law.
    4. Same—Clause ¿directing payment of debts.

      Held, that the bond accompanying the mortgage upon the premises devised was one of testator’s debts; that testator having directed the payment of his debts must be taken to have had this debt in contemplation when making the will.
    Appeal from a judgment rendered at the special term construing a will.

      Boardman & Boardman, for app’lt; M. L. Townsend, for resp’t.
   Brady, J.

Julius R. Meyer died on the 20th day of May, 1884, leaving a last will and testament which was duly admitted to probate. By it the defendants Cohen and the plaintiff were appointed executors, and duly qualified as such.

By his will the testator devised the house known as 155 West fifty-third street, together with all his books, plate, linen, etc., to his wife, in lieu of dower and right of dower.

He then gave to Paula Friedheim the sum of $1,000, to be held in trust by his executors until she should attain the age of twenty-one years or should marry, upon the happening of either of which events, his executors or their survivor or survivors should pay to her that sum forthwith.

All the rest, residue and remainder of his estate, whether real, personal or mixed, wherever the same might be situate, and of every character, nature and description whatsoever he directed should be converted into money, and he devised and bequeathed the same unto his executors or the survivors of them in trust for certain uses and purposes, the first of which was that his share and interest at the time of his death in the copartnership stock, capital and fund and the money invested by him in the business of the copartnership and firm of “ J. R.. Meyer & Co.” of the city of New York, of which he was a member, should at the option of his executors, and if his copartner Herman Knoble, consented thereto, remain and continue to remain invested in the business of his surviving partner, said Herman Knoble, as long as his executors shall deem proper at six per cent per annum interest, which said interest as the will provides shall be paid to his wife Charlotte Meyer, so long as she remains unmarried.” The other was that all the balance of the rest and residue of his property not invested in the business already mentioned, should be invested by his executors in good interest bearing and paying securities and first mortgages upon real estate, and the interest accruing therefrom paid to his wife as long as she remained unmarried.

The will then provides, in the event of her marriage or upon the death of his wife, if there should be no issue and the issue should die before attaining the age of twenty-one years, that all the rest and remainder of his property should be divided in equal parts and shares in the manner stated. Then follow the names of a number of legatees who were to be the recipients of such division.

It appears that at the time of the testator’s death and also at the execution of his will, he was seized of the house and lot already mentioned, which was the only real estate he possessed. But it was subject to a mortgage of $12,000, an incumbrance made by him prior to his marriage.

It also appears that the mortgage has been foreclosed since the testator’s death, the sale resulting in a deficiency of some $2,184, for which amount a judgment against the estate has been perfected since the foreclosure action.

It is contended upon this state of facts by the plaintiff that she should be indemnified to the extent of $12,000, as the value of the house and lot which were devised to her, and that the various bequests to which reference has been made, and amounting in the aggregate to $11,000, should be deferred until her death or re-marriage, and that in no case should any recourse be had to the $20,000 invested in the testator’s business, which should be kept intact and the interest paid to her until her death or re-marriage.

The defendants contend on the other hand, that she took the house in Fifty-third street subject to the mortgage thereon, in other words that she was vested only with the equity of redemption; that the executors should first set apart from the personal property other than the $20,000 invested in business, the sum of $1,000 bequeathed to Paula Freidheim, and then devote the remainder of the personal property, other than the $20,000, to the payment of the bequests mentioned in the sixth clause of the will, making up any deficiency, in the amount of the $20,000 invested in the business; and that the widow should- be entitled, until her death, or re-marriage, to the interest on what should remain of the $20,000.

The learned justice in the court below held that the plaintiff had the right to receive, during her widowhood, the interest on the fund of $20,000 invested in the business of the firm already mentioned, after paying the debts and funeral expenses of the testator, and the bequest of $1,000 to Paula Freidheim, and that for such performance it was the duty of the executors to keep the fund invested, and not to reduce it by the payment of any of the other bequests mentioned in the will, and that it is their duty to pay the debts and funeral expenses, and the bequest of $1,000 already mentioned, out of the personal estate of the testator is sufficient for that purpose, without resorting to the fund of $20,000; and further, that the - plaintiff was entitled to the income during her life, of the whole of the remainder of the value- of the personal estate, and that it was the duty of the executor to pay the bond and mortgage already mentioned; and that she be adjudged entitled to $12,000 and the interest thereon, from the 10th of September, 1885, to the sale of the premises.

The judgment pronounced by the learned justice in the court below seems to be entirely correct. It was clearly the intention of the testator, as shown from the various provisions of the will to which reference has been made, to give his wife during her life or widowhood not only the interest which should accrue from the investment in the firm of J. R Meyer & Co., and which were fixed at $20,000, but also the rest and residue of his estate after the payment of $1,000 to Paula Freidheim.

There can be no doubt that the interest thus to be paid in reference to the fund invested in the business was a specific legacy; and it is said that one important consequence of a legacy of that character is that it is not subject to contribute to make up any unexpected deficiency which may arise in regard to the other, portion of the estate. Bed. on Wills, vol. 2, § 7, subd. 9, j). 136.

The fact, however, is to be kept in view in this connection, that aside from $20,000 there was the sum of $10,000 in cash in the hands of the executors, and that the debts will not exceed $2,000. There was, therefore, sufficient money in the hands of the executors without resorting to the fund of $20,000 to pay the'legacy to Paula Freidheim.

It was not, as declared by the learned justice in the court below, the duty of the executors to pay the bequests mentioned in the sixth clause of the will during the life or widowhood of the plaintiff.

The testator left no issue, and by the fourth clause of the will, as we have already seen, it was declared that all the balance of the rest, residué and remainder of the property of the estate not invested in the business should be invested by the executors in good interest bearing securities, and the interest accruing thereon paid to his wife during her life or widowhood.

It is only in the case of the marriage of his wife or her death, there being no issue, that his executors shall convert the residuum into money and divide it into six equal parts.

The contention that the several bequests made in the will shall be paid out of what might remain of the estate independently of the sum invested in business, and before a final accounting, cannot, in view of the provisions of the will, be entertained for a moment. It is very clear, as already intimated, that these beneficiaries take nothing until the death or marriage of the plaintiff. The whole tenor of the will shows this beyond peradventure. It seems to be, therefore, clear that the plaintiff was entitled to have the amount of the bond and mortgage and the interest as provided for in the will secured to her.

It will be remembered that at the time of the marriage of the plaintiff, he was the owner in fee of the premises to which the mortgage related, and had previously executed that instrument. By his will he gave the house covered by the mortgage to his wife in lieu of dower, and she accepted the devise. It is provided by thé Revised Statutes (1 R. S., 740, § 4 [Edward’s ed.,. vol. 1, p. 991]) that “Where a person seized of an estate of inheritance in lands shall have executed a mortgage of such estate before marriage, his widow shall nevertheless be entitled to dower out of the lands mortgaged as against every person except the mortgagee and those claiming under him.” And the plaintiff was therefore entitled to dower in the house and lot freed of the mortgage as against the testators, heirs at law or other devisees or legatees mentioned in the will. Bartlett v. Musliner, 28 Hun, 235; Hitchcock v. Harrington, 6 J., 290; Collins v. Ferry, 7 id., 277; Van Dyne v. Thayre, 19 Wend., 162. This was her right under the Revised Statutes and at common law.

The plaintiff’s acceptance of the house and lot in lieu of dower did not give her a less estate than she had as doweress at law, and by accepting the provisions of the will in lieu of dower, the plaintiff became a purchaser for a valuable consideration of the house and lot, and not a naked devisee, it being well settled that where a widow elects to take a pecuniary or other provision in lieu of dower she takes the same for a consideration and is a purchaser for value. The following authorities abundantly established these propositions: Scribner on Dower, vol. 2, p. 527; Roper on Legacies, p. 431; Matter of Dolan, 4 Redf., 511; Williamson v. Williamson, 6 Paige, 305; Isenhart v. Brown, 1 Edw. Ch., 411.

It must be borne in mind in the consideration of this subject that the testator directed the payment of his debts, and the bond which accompanied the mortgage affecting the premises given to his wife in lieu of dower was one of his debts, of which he was aware and which he must have had in contemplation when the will was made.

If any other thought were permitted to prevail in this action, the farce of giving a piece of property in lieu of dower which was not worth the amount of the incumbrance upon it would be sanctioned, notwithstanding that the testator had means to discharge the incumbrance. This result was neither contemplated nor designed. The testator did not mean to attempt to do a wrong.

For these reasons it is quite clear that the judgment pronounced in the court below was correct, and that the only interest which the legatees have in the estate depends upon the residuum left after the death of the plaintiff and the satisfaction of all just claims upon the estate.

The judgment must be affirmed, with costs.

Daniels, J., concurs.


author: Davis, P. J.,

text:
    James D. Brewster et al., App’lts, v. Walter T. Hatch et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Corporations—Actions by stockholders—When may be maintained AGAINST TRUSTEES IN CONTROL OP CORPORATIONS WITHOUT PREVIOUS REQUEST TO SUE.
    The rule is not universal that the ultimate right of stockholders are only to be sought through an action by the corporation. If ' justice cannot be reached in that way, the stockholders may sue, making the corporation a parly defendant.
    2. Same.
    When the action is sought to be brought against the officers who are in control of the corporation, a request before suit that they bring the action in their name, is a needless ceremony.
    Appeal from judgment of special term dismissing complaint.

      D. H. Chamberlain and W. B. Hornblower, for app’lts; W. G Choate, for resp’ts.
   Davis, P. J.,

Upon the theory of the plaintiffs we are of opinion that this action was well brought on behalf of themselves and all others alike situated and that it was not necessary that the action should be brought by the corporation itself, nor that it should have first refused an application to bring the same. The corporation is completely controlled by the defendants who are its trustees, and to have requested them to bring the action would have been a needless ceremony.

Where the state of things is already apparent in such a case as the plaintiffs claim this to be it is enough that the corporation and the trustees sought to be charged are made parties defendant. Robinson v. Smith, 3 Paige, 222; Heath v. Erie, 8 Blatch., 347, and see opinion of Van Vorst, J., in this case on demurrer, 10 Abb. N. C., 406.

If the plaintiff’s theory of this case had been sustained in the finding of facts by the court below, the judgment would have been erroneous under a long series of cases cited by the learned counsel for the appellant, for it would then have been established that the promoters of a mining corporation about to be organized, had induced the plaintiffs to join in its creation, and become subscribers to the original stock thereof, by withholding from them material facts not within their knowledge, of the costs of the mining properties which were about to be made the capital or property of the corporation, and to be represented by its stock to be created and issued. A failure to disclose under such circumstances the facts in respect to the purchase and cost of the property, would be in a court of equity such a fraudulent neglect of duty as would subject the defendants to an action of this character, for the purpose of placing the promotors and original corporators upon an equal footing. But the court below has found upon the evidence in the case, that the plaintiffs occupied no such relations to the promoters, and were not induced to unite in the creation of the corporation, or be original subscribers to its stock by any misrepresentations of facts, or by the withholding of any facts which they were entitled to know; but on the contrary, that they were simply contractors for the purchase of the stock of a corporation after it should have become completely organized, and the whole of its stock issued for the purpose of purchasing the mining property by sale, or other disposition of such stock, and that their relation to the defendant Brown, was that of vendee of stock owned by him in an existing corporation, at a price and on terms mentioned in their respective subscriptions. The evidence in the case justified that finding. The learned judge before whom the case was tried, pronounced an elaborate opinion, illustrating and sustaining his views of the case and the principles of law upon which his conclusions rested. Adopting that opinion as our own, we reach the conclusion upon this appeal, that the judgment should be affirmed.

Daniels and Brady, JJ., concur.


author: Daniels, J.

text:
    In the matter of the petition of Jacob Lorillard, Resp’t, v. Horace Barnard, an attorney, etc., Appl’t.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Attorney’s lien—When it does not exist.
    An action was brought by an attorney under an agreement between himself and his client, by which the latter agreed that in lieu of fees the attorney should prosecute that and other actions for one-fourth of the net amounts recovered by the judgments. As to the amount so stipulated for there was no objection made to the attorney’s holding it, but upon demand made for the remainder, he refused to pay it over, alleging as justification that he had been employed in other legal proceedings, and had rendered services and made disbursements, and that the client had violated his agreement witii him conce ning legal proceedings in actions within their agreement, thereby rendering himself liable to the attorney for damages he had sustained. Held, as to the latter claim that the law had not reserved to an attorney a lien upon his client’s papers or money for damages arising out of the non-performance of a contract, when no such right had been by agreement íeserved to the attorney; that the appropriate mode for recovering such damages is by action.
    2. Same—When it exists—And to what it extends.

      Held, that for services performed and disbursements made in other legal proceedings, for which the attorney had not already been compensated, the law maintained in his favor a lien or right of detention of his client’s papers or money.
    3. Same—Implied contract by attorney to pay oyer moneys collected IS subject to the right op lien.

      Held, that although under the agreement made between the attorney and client 'under which the moneys were collected, there was an implied obligation on the attorney’s part to pay, yet this was subject to the inciden tal rights of the attorney.
    Appeal from an order directing a reference to take proof and report how much of the sum of $9,818.35 the attorney is entitled to retain as compensation for his services in an action in the city court of Brooklyn.

      Horace Barnard, app’lt in person; Asa Bird Gardiner, for resp’t.
   Daniels, J.

The action wherein the money was collected was prosecuted by the petitioner as plaintiff against William T. Clyde and another as surviving partners. The judgment was recovered for the sum of $30,165.54, and it had all been collected by the attorney except the sum of $2,415.55. The object of the petition and the proceedings instituted by it was to obtain an order requiring the attortorney to pay over so much of the amount received by him as the petitioner was entitled to receive. The action in which the money was collected was prosecuted by the attorney under an agreement between himself and the petitioner by which the latter agreed in lieu of paying fees, that the attorney should prosecute this and other suits for one-fourth the net amounts which should be recovered by the judgments. The attorney accordingly was entitled to retain this one-fourth under the authority of this agreement. As to that no controversy seems to exist between these parties.

But as to the residue of the money collected upon the judgment the attorney has set forth by way of justification for his refusal to pay it over the fact that he had been employed in still other legal proceedings, and had rendered services and made disbursements in them for the petitioner, and that the petitioner also had violated his agreement with the attorney concerning certain legal proceedings in actions within this agreement, thereby rendering himself liable to make compensation to the attorney for the loss or damages he had so sustained. As to this latter branch of the position taken by the attorney it is not necessary that any particular time shall be devoted to its examination, for the law has not undertaken to reserve or secure to the attorney a lien upon his Ghent’s papers, or money, for damages arising out of the non-performance of a contract, when no such right shall, by their agreement, be reserved in favor of the attorney. The appropriate mode for recovering such damages is by way of an action, as in other cases where parties fail te perform or observe their agreements. But as to the services performed and disbursements made in other legal proceedings for which the attorney has not already been compensated, the case stands upon different grounds. For it has been the object of the law to maintain in the attorney’s favor a lien, or right of detention, of his client’s papers and moneys, until he shall be paid what the latter has become legally bound to pay him for his services and disbursements. This lien, or right of detention, has been urged in behalf of the petitioner to be restricted to the services performed and disbursements made in the action, in which the judgment itself has been recovered. And Williams v. Ingersoll (89 N. Y., 508) has been relied upon as conclusively establishing this proposition, but the decision does not proceed to this extent. It was considered and held there that the lien of the attorney upon the judgment itself is confined to the services and disbursements in the action, and to a sufficient amount secured by it to satisfy this hen. But the point was not then before the court whether the attorney, after he had collected the judgment and had the money in his possession, would, or would not, be entitled to retain it until his entire account for services and disbursements in other legal proceedings should be settled by the party otherwise entitled to receive the money. That is a very different question from the one which was considered and decided in that case, for it depends upon the ' obligation of the attorney to surrender what he has actually become possessed of, belonging to his client, without his other legal claims being liquidated or settled. As to the papers which may pass into his possesion, this general lien, or right of detention, has been uniformly maintai ued by the authorities.

To a great extent it has been made dependent on the fact of possession, and the possession of the client’s funds would seem to be within the control of the same principle. This subject 'was examined in St. John v. Diefendorf (12 Wend., 261), where it was stated in the course of the opinion that the attorney would have this right of detention of whatever belonged to his client, after it had lawfully passed into the possession of the attorney. This principle was made the subject of further consideration in section 629 of Wharton on Agency, etc., where the distinction is taken between the right of the attorney to charge a judgment by way of lien, and of retaining that of which he may have become possessed by the permission and authority of the client. In the former case it is declared that the lien will not extend beyond compensating the attorney for his services and disbursements in recovering the judgment, while in the latter the money or papers in the possession of the attorney may be retained for a general balance of his account for services and disbursements. It is said there that “the distinction between the retaining lien and the charging lien in this respect is plain. In the one case the fund is in the attorney’s hands, and the law of lien properly applies, and the attorney can charge for his general balance. In the other case, the fund is not yet recovered, and the attorney not having the fund in hand ought, if he have a lien at all, to be restricted to that for statutory fees.” And the decision made in Matter of Knapp (85 N. Y., 284), proceeds upon this distinction, for there it was said “ That an attorney has a lien for his costs and charges upon deeds or papers, or upon moneys received by him on his Ghent’s behalf, in the course of his employment, is not doubted, nor does it stand upon questionable foundations.” Id., 293. And as far as the case of Bowling Green Savings Bank v. Todd (52 N. Y., 489), extends, it sanctions this principle, which is entirely distinguishable from that which was considered and applied in the decision of Williams v. Ingersoll (supra). And these authorities maintain the rule to be, where the attorney has lawfully acquired the possession of the papers or money of his clients under the authority of the latter, he shall not be obliged by the order of the court to surrender either until his just demands against the client for services and disbursements have been settled and paid.

The contract under which these moneys were collected and received by the attorney does not exclude, and is not in any manner inconsistent with this right of detention or lien secured to the attorney, for it did not impose upon him the obligation, at all events, of paying over the money collected to the petitioner. An obligation to pay, it is true, is to be implied from the agreement, but where this may be the relation of the parties the obligation is necessarily subject to the incidental rights of the attorney, not surrendered or abandoned by the making of the agreement. Upon the subject of .the attorney’s lien upon moneys passing into his possession, the contract was entirely silent.

Neither expressly nor by implication did it attempt to regulate this right or obligation of the attorney. That was on the other hand left to the legal principle, applicable to the relation existing between the parties, that when the moneys of the client were collected by the attorney he should pay them over, after deducting what should appear to be justly due him for other services he had rendered his client, and the disbursements made in the course of such employment. In this case, therefore, the petitioner was not entitled to the payment of the moneys collected upon this judgment until the legal claims of the attorney for his services and disbursements in other proceedings, which had not been adjusted and settled, shall be ascertained and paid. The order of reference excluded the right of the referee to inquire into, or investigate, the claims made by the attorney for compensation for these services and disbursements in other proceedings. To that extent it was not entirely just to the attorney, and while the reference was proper to ascertain the amount due from the attorney to the petitioner, the order directing it should be so far enlarged as to include these other charges and demands for which the attorney claims the right to retain the other three-forths of the moneys collected by the judgment. As so modified the order should be affirmed, with the usual costs and disbursements awaiting the result of the proceeding.

Davis and Brady, JJ., concur.


text:
    Edward Wood, Ex’r, etc., App’lt, v. Karoline Kroll, Ex’rx, etc., et al., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Practice—Subpcena duces tecum—Proper process to compel production op PAPERS.
    An affidavit relating to facts bearing upon the merits of a motion for restitution was taken from the flies by plaintiff’s attorney in the action to be used upon another trial, and was, he said, by him restored to the files, hut could not be found there. The court considering plaintiff’s • attorney in fault for not producing the affidavit stayed the proceedings in the reference on the motion until the production and filing of the affidavit. Held, That this was error, that the orderly and legal course of proceeding was by issuance and service of subpoma duces tecum directing the production of the paper before the referee, and upon failure so to do that the parties served be examined concerning such failure and the search made for the paper.
    Appeal from an order staying proceedings upon a reference made in a motion for restitution.

      I). A. Hayes, for app’lt; E. P. Wilder, for resp’ts.
   Daniels, J.

The order staying further proceedings upon the hearing before the referee was made because of the failure to produce and restore to the files an affidavit made by the counsel for the respondents. This affidavit related to facts bearing upon the merits of the application for restitution and it was taken from the files to be used upon another trial, and after that it is stated to have been restored to the clerk, who, however, has no recollection of. having received it and is unable to find it on file. The court considering that the attorney for the plaintiff was in fault for the non-production and restitution of the affidavit, stayed the proceedings on the reference until it should be produced and filed. This order made in this manner will have the effect of indefinitely staying the completion of the hearing before the referee, if the affidavit shall for any reason not be hereafter produced. And as the reference has in part proceeded and the evidence in favor of the appellant has been given, this would be an improper disposition to be made of the proceeding. For instead of being-stayed it should be expedited and brought to as early a conclusion as may be practicable for the disposition of the rights of the parties included in the reference. An order to stay proceedings will in no manner promote a just disposition of the controversy between the parties. It simply has the effect of suspending their rights and excluding the possibility of such a determination without any probable prospect of the affidavit itself being produced by reason of the stay.

In addition to these considerations the affidavit does not seem to be an important document to be used in the hearing before the referee. It cannot be read in evidence in proof of the facts as they are asserted to exist in the affidavit, but the person making it will necessarily be required to be sworn and examined as a witness upon the hearing, to prove and establish these facts, and the production of the affidavit will be no otherwise important than by way of refreshing his recollection as to those facts. And it does not appear that his recollection has become so far obscured in this short period of time, as to disable him from again repeating the facts without depending upon the affidavit for that object.

But if the affidavit is important as evidence before the referee, this is not the regular mode of securing its production. The law has provided a different means, for the attainment of that end, and that is by issuing and serving a subpoena duces tecum directing the person, or persons, on whom it shall be served, diligently to search for and produce the paper before the referee, and if they fail to do that, they may be examined concerning such failure and the efforts that may have been made to obtain the paper. And from the evidence secured in that manner, the referee, as well as the court, will be able to determine whether the affidavit is still in the possession or power of the attorney for the plaintiff, and if it is, then oblige him to produce it upon the hearing. If the determination should be otherwise, then the attorney will be relieved from that direction, and the case will proceed regularly upon the evidence to be secured before the referee, to a final determination, and the rights of the 'parties adjusted and declared, and carried into effect. This is the orderly course of proceeding, and the one prescribed by law to secure the production of documents which may he supposed to be in the possession of a witness upon atrial or hearing for use as evidence in the proceeding. And it is ample for this purpose—much more so than any order staying proceedings by any possibility can be.

The order which was made should be reversed and the motion for the stay of proceedings should be denied, without costs.

Brady, J., concurs.


text:
    Joseph K. Murray, Resp’t, v. The Great Western Insurance Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Evidence—Ruling admitting illegal—When may be disbegabded.
    A ruling by which illegal evidence is admitted upon the trial of an action cannot be disregarded upon a review of the case unless the case upon the other proof should be exceedingly clear in favor of the successful party, so that it is evident that the illegal evidence in no manner biased the right of the opposite party or contributed to the success of the prevailing party.
    Motion for reargument of an appeal.

      John Sherwood, for resp’t; Joseph H. Choate, for app’lt.
   Daniels, J.

The motion has been made upon grounds which were fully examined in the decision already announced in the case. An examination of it disclosed the fact that evidence not admissable had been received and to some extent, at least, acted upon by the court in the disposition of the case. The facts of the case disclosed this to have been what was done at the trial. It is true that the evidence held to have beén inadmissible was when it was first brought to the attention of the court allowed to be received only to prove the fact of the reports containing it having been made; but that was a fact of not the slighest consequence, and there seems to have been a departure from this ruling afterwards, in the disposition which was made of the case. The stipulation concerning the proof after the jury were dismissed and the case proceeded before the court, in no manner changed this condition of the proceeding, for the evidence which had been made the subject of objection still remained in the same condition when the trial took place before the court. Without this evidence such a state of facts were not disclosed as would justify the conclusion that there had been a total loss by reason of the stranding of the steamer. It minutely and particularly stated the effects of the injury that she had received, indicating the probability that the witnesses were correct in their testimony that the cost of repairing the vessel would be such as to justify her abandonment as a total loss. This evidence cannot be disregarded and the judgment sustained upon the other proof given upon the trial. It not only tended to establish the facts indicating this right of abandonment, but it was essential by way of proving them as facts in the action. To disregard a ruling by which illegal evidence is admitted upon the trial, the case upon the other proof should be exceedingly clear in favor of the successful party, so clear as to render it evident that the illegal evidence in no manner biased the right of the opposite party, or contributed to the success of the party succeeding in the action. This cannot be held to be a case of that description, but on the contrary, testimony to prove the facts relied upon was required in the case, and the statements contained in the reports which should not have been received, was that which directly had a tendency to prove the right of the plaintiff to recover as for a total loss of the steamer. A reargument of the case could be of no possible service to the plaintiff. It would simply postpone the final hearing and trial of the action for a longer period of time, possibly "resulting altogether in the loss of the testimony, appearing to be essential to his right to maintain the action.

The motion should be denied, without costs.

Davis and Brady, JJ., concur.


text:
    Hugh Camp, as temp’y adm’r, etc., App’lt, v. Jeremiah A. Hollanan, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Judgment—Courts of record—Actions upon judgments recovered in marine court, New York—Laws 1872, Ohap. 629—Code Civ. Pro., § 382.
    A judgment was recovered in the marine court cf New York city on December 6, 1868; this court, except in a limited sense, was not at that time a court of record, hut by Laws 1872, chapter 629, was made a court of record for all intents and purposes, and its jurisdiction enlarged. At the time the judgment was recovered an act on might he commenced thereon at any time within twenty years. Code of Civil Procedure, section 383, adopted in 1876, provides that an action must be commenced within six years upon a judgment or decree rendered in a court not a court of record, held, that the marine court having been at that time declared to be a court of record for all intents and purposes, Code of Civil Procedure, section 382, subdivision 7, must be considered with reference to all of the Code provisions upon that subject, and an action might he commenced thereon at any time within twenty years.
    2. Same—Laws 1872, chap. 629—Code Civ. Pro., § 382.

      Held, that the question was not affected by the omission in the Laws of 1872 of language showing an intention to give it a retroactive effect or of express words constituting the marine court a court of record as to judgments then existing, inasmuch as when the Code of Civil Procedure was passed the court was not only a court of record, hut recognized as one therein.
    3. Same—Statute of limitations—Power of legislature to alter.

      Held, that the legislature had the right to change or continue the statute of 1 mtation. Such procedure affects the remedy, hut does not impair the obligation of a contract.
    Appeal from an order denying a motion for a temporary injunction.

      N. J. Waterbury, for app’lt; Henry F. Lippold, forresp’t.
   Brady, J.

The object of this action was to prevent the enforcement of a judgment existing, unsatisfied against the defendant upon the ground that it had lost all vitality under the Statute of Limitations. It was recovered in the marine court of this city which, at the time (December 6, 1868), was not a court of record, except in a limited sense, and for certain purposes, but in 1872, by chapter 629, of the Laws of that year, it was made a court of record, to and for all intents and purposes, and its jurisdiction enlarged. .

It is conceded that when the judgment was perfected, under the Code then prevailing, the period limited for the commencement of'an action upon it was twenty years (Code of Procedure, § 90;, Conger v. Vandewater, 1 Abb. N. S., 126; Delevan v. Florence, 9 Abb., 277); but it is supposed by the appellant that the Code of Civil Procedure adopted in 1876, by section 382, supplanted section 90, of the old Code, and shortened the period of twenty to six years.

The marine court, as we have seen, had at that time been declared to be a court of record, to and for all intents and purposes, and section 382, subdivision 7, must therefore, be considered with reference to any and all provisions in the Code, bearing on that subject. The provisions of section 382, so far as it applies to this case, is that an action must be commenced within six years “upon a judgment or decree rendered in a court not a court of record.” But this must be taken in conjunction with section two of the same Code, as suggested, and in which the marine court is enumerated as one of the courts of record, of the state. And thus, the period of limitation within which the judgments of that court lived, for the purposes of an action, was continued and preserved by express terms, the same as before its passage.

There can be no doubt of the right of the legislature thus to declare the law (Acker v. Acker, 81 N. Y., 143). This question it should be observed, is not affected in any way, therefore, by the omission in the statute of 1872, supra, of language showing an intention to give it a retroactive effect, or of express words constituting the marine court a court of record, as to judgments then existing, inasmuch as the Code of 1876 was passed when the court was not only a. court of record, but recognized as such therein, and the legislature had the right to change or continue the Statute of Limitations, relating to it, if necessary or expedient. Such a procedure affects the remedy, but does not impair the obligation of contracts (Acker v. Acker, supra).

This question has been passed upon by the general term of the marine court, and a similar conclusion expressed by MoAdam, J. We are not advised of the views entertained by the learned justice presiding in the court below, but we assume that he arrived at the same result from the same mode of reasoning.

We think the ordér appealed from should be affirmed with $10 costs and disbursements.

Daniels, J., concurs._


text:
    Max Hoffman et al., Resp’ts, v. Isaac Steinan, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Contract—Rescission of, on account of fraud—Tender, when not NECESSARY.
    This action was brought to recover possession of goods alleged to have been fraudulently purchased fi om the plaintiffs by the defendants. The goods were shipped from. Europe by the plaintiffs to the defendant, and by him taken from the custom house shortly before making an assignment for the benefit of c: editors. The defendant paid the duties on the goods and put them in stock. Under the assignment they came into the possession of the assignee, and were taken from his possession by the plaintiffs under the proceedings in this action, and their right to them has been established by verdict. The complaint alleges the payment of duties by the defendant and a tender of payment of such duties to the assignee on a demand of the goods and notice of the rescission of the contract. Held, That no tender need have been made; that the reimbursement of the tax was not a necessary element in the rescission of the contract.
    3. Tender and payment into court—Effect of.

      Held, that having pleaded the tender and subsequently brought the money into court to keep the tender good, the assignee was entitled to the money in court. That the effect of a tender and payment of money into court is a concession of record that the party to whom the tender is made is entitled to the amount in any event.
    Appeal from a judgment entered upon verdict.

      R. S. Newcombe, for app’lt; Blumensteil & Hirsch, for resp’ts.
   Davis, P. J.

This action was brought to recover the possession of divers goods and merchandise alleged to have been fraudulently purchased by defendants Steinan, from plaintiffs. The goods were to be shipped from Europe to the Steinans. This was done and they were taken from the custom house by the Steinans, shortly before their making an assignment for the benefit of their creditors to the defendant Max •Scheuer. Under the assignment the goods passed into the possession of the assignee, from whom they were taken in this action and delivered to plaintiffs.

The question of fact for the jury related to the alleged purchase with knowledge of insolvency and with intent not to pay for the same. The evidence was conflicting and the question was submitted to the jury by the learned judge fairly and impartially and with correct instructions as to the law governing the case. If the jury had found for the defendants we should not have felt at liberty to interfere with the verdict; and we do not think notwithstanding the ingenious argument for the appellants, that we are called upon to disturb the verdict. Nothing seems to be presented by the case so far as relates to this branch of the appeal, but the question of fact disposed of by the jury. We think on that question the judgment must be affirmed.

Another question arises upon the case and an order of the court disposing of certain moneys paid by the plaintiffs into court after tender to the assignee and his refusal to accept the same. The facts affecting that question are these. The goods arrived at the custom house in New York shortly before the assignment. The defendants, Steinan, paid the duties on them which were $439.75 and put them in stock, where they were when the assignment was made to the defendant Max Scheuer. They came under the assignment into the possession of the assignee, whose duty it was to receive them and defend his possession if the alleged frauds were denied by his assignors. The plaintiffs under the proceedings in the action took possession of the whole of the goods, and by the verdict have established their right to them with six cents damages for detention and the costs of the suit. By their .complaint they allege the payment of the duties by the defendant and a tender of the payment of such duties to the assignee on a demand of the goods and notice of the rescission of the contract.

The evidence shows that they made a tender of the amount paid for duties and brought the amount into court for the purpose of making the tender good. Under the case of Guckenheimer v. Angevine (81 N. Y., 394) they need not have done this, but could have recovered without tender, as the court held in that case that the reimbursement of the tax (or duty) was not a necessary element in rescission of the contract. The defendant in that case had sold the whiskey, and the verdict against him was for the amount at which he had sold it. This presumably embraced the enhanced value by the payment of the tax, and he had no occasion to complain, as the verdict subjected him to pay only what he had actually received.

In this case the plaintiffs get possession of the entire property, and of course have its full value as enhanced by the payment of duties. If they had chosen their ground on the principle of the case above cited, they would have been entitled to the verdict they have irrespective of any question touching the duties paid. But we think they have fixed their rights by taking quite another ground. They assert their right to rescind in their complaint only on payment of the duties to the assignee. They plead their tender made to him, and subsequently bring the money into court to keep the tender good. This course acknowledges the right of the assignee to the money tendered and fixes the rights of the respective parties. The recovery and judgment have proceeded according to such rights. The effect of a tender and payment of money into court is a concession of record that the party to whom tender is made is entitled to the amount in any event. 1 Saunders, 33, n. Z; 2 Arch. Pr., 203; Slack v. Brown, 13 Wend., 390, 394.

We do not see why the assignee was not entitled to the money in court. The plaintiffs were not at liberty to go back upon their own concessions of record, even if grounded upon mistake' of law. The court could have directed the costs of the action to be paid out of the money in court and the balance paid to the assignee.

The order should be reversed and an order to that effect made, without costs of the appeal from the order, to either party.

Brady, J., concurs.


text:
    The People, etc., Resp’ts, v. John McGrath and Mary McGrath, App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Criminal trial—Husband and wife—Charge to jury—Conviction of PARTIES JOINTLY INDICTED.
    The appellants, who are man and wife, were convicted at the court of general sessions of the crime < f arson in the second degree. The court charged the jury, “ There has been no special claim made in reference to the wife in this case.” It is claimed by the defendants’ counsel that they are both innocent; and it is fair to say, under the evidence, if one is convicted, both should be. Held, that this charge was 'erroneous because it involved the proposition that no matter what might be the evidence in the ca e, no matter whethe- an equal amount of criminality or not was established by a proper estimate of the evidence, the jury had a right to convict botn.

      Appeal from a judgment of the court of general sessions convicting the appellants, who are husband and wife, of the crime of arson in the second degree.

      Hovje & Hummel, for app’lts; McKenzie Semple, for resp’ts.
   Brady, J.

The evidence by which the people essayed to sustain the charge made against the appellants was circumstantial—a usual feature it may be said in prosecutions of this kind. But it was insisted upon the close of the evidence for the prosecution that although there was sufficient to justify the court in submitting the case to the jury upon the question of whether or not the fire was of incendiary origin, nevertheless there was not sufficient evidence to connect the appellants with the fire—a very essential element of the prosecution, for the reason that the jury were not only to find whether the fire was of incendiary origin, but whether the defendants were the incendiaries, and being such were guilty of the offense alleged against them. And it is insisted by the appellants that on the evidence, and, therefore, upon the merits, the verdict is against law and unjust. It is not necessary, however, to consider that proposition in detail, for the reason that an error was committed by the learned justice in charging the jury, in consequence of which a new trial must be granted. Upon the argument of this appeal such was the impression, and it has been confirmed by a subsequent examination and consideration of the case and of the charge.

The court charged the jury as follows: “ There has been no special claim made in reference to the wife in this case. It is claimed by the defendant’s counsel that they are both innocent; and it is fair to say, under the evidence, if one is convicted both should be.”

The learned justice, it is thought, was not justified in the administration of his office in saying to the jury that their verdict should be guilty or not guilty as to both defendants, because that involved the proposition that no matter what might be the evidence in the case, no matter whether an equal amount of criminality or not was established by a proper estimate of the evidence, the jury had a right to convict both.

It may be assumed that if the jury believed the husband guilty and the wife innocent, or vice versa, as suggested by the learned counsel for the appellants, they would, under the charge, desirous of obeying their oaths, convict both, being unwilling to permit the guilty one to escape.

The learned judge subsequently charged that when husband and wife were arraigned for the commission of the same offense, if the acts constituting it were committed in the presence of the husband, a legal presumption existed that she was acting by his coercion, although it was a presumption that could be rebutted by proof that she in fact acted upon her own responsibility.

He then, after briefly discussing a part of the evidence, repeated the charge, saying:

“Therefore, I must say to you that your verdict should be £guilty ’ or ‘ not guilty ’ as to both defendants.”

No view of the case, either upon the facts or on the law by which it is governed, furnishes any legal reason or rule by which this charge can be sustained.

Among other objectionable elements by which it is surrounded may be stated the abnegation of the rule as to reasonable doubt, which might be well applied by the jury, in the exercise of their judgment, to the one and not to the other of the appellants, and yet, under the charge, both would have to be declared guilty. It is impossible for us to say that this direction did not prejudice the appellants, or one of them. The duty of finding both guilty, or both innocent, was so impressed upon the jury that they could not have failed to understand it as an imperative obligation.

For these reasons the judgment of conviction must be reversed and a new trial ordered.

Davis, P. J., and Daniels, J., concur.


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    Susan F. Platt, App’lt, v. Annie R. Platt et al., Rep’t.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Executors and administrators—Decedent’s estate—Lien of judgments AGAINST EXECUTORS, ETC.—3 R. S. (6TH ED.), 783, § 13.
    Where judgments against executors and afterward against a receiver included a dent charged against testator’s property and payable out of the proceeds of his estate, and none of the personal estate remained for that purpose. Held, That though the judgments were not strictly statutory liens upon the lands owned by testator as it has been declared they should not be by 3 R. S. (6th ed.), 783, § 13, yet there was sufficient to supp rt an order directing a referee to inquire concerning the liens of judgments on the estate and an order confirming his report.
    Appeal by Susan F. Platt, from an order directing the referee to inquire concerning the liens of judgments, and from an order confirming his report.

      William G. Wilson, for app’lt; Edward S. Clinch, for Aaron A. DeGrauw, Eesp’t.

       See S. C., ante, p. 501.

   Daniels, J.

That these two orders were regularly made, and that the final order was supported by the evidence taken by the referee, has already been considered and held, and no reason appears on this presentation of the case for doubting the correctness of the conclusions already declared. For while the judgment against the executors, and after-wards against the receiver, were not strictly statutory liens upon the lands owned by the testator, as it has been declared they should not be by 3 R. S. (6th ed.), 733, § 12, still as the debt included in them, was a charge against his property, and payable out of the proceeds of his estate, as long as no personal estate appears to have remained for that purpose, the orders which were made were sufficiently supported. The court had the power to determine this matter in directing what should be done with the proceeds of this real estate, and for the reasons assigned in the other appeals, these orders now again brought in question upon these appeals should be affirmed.

Davis, P. J., and Brady, J., concur.


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    Elizabeth D. Vail, Resp’t, v. William M. Reynolds, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Fraudulent representations—When vendor liable for—Judge’s CHARGE.
    An action was brought to recover money paid for certain worthless mining stock, which plain,iff was induced to purchase from defendant, by reason of the fraudulent representations made by him ti.rough his agent. The judge, after instructing the jury that if the plaintiff,failed to establish any one of the alleged false representations, the defendant was entitled to a verdict in his favor, charged: “If, however, they establish to your satisfaction that any one of these representations which were mateiial were made by the defendant knowing, or having reason to know them to he false, with the intent to deceive, and that tito plaintiff relied upon that representation and parted with her money, the plaintiff in this case is entitled to a verdict at your hands for the damages that she has sustained. ’’ Held, that the charge was correct, as the representations relied upon related to the value of the mine.
    3. Trial—Practice—Error in charge of court as to measure of damage—When exceptions thereto will not be sustained.
    The trial was conducted, and the trial judge in the charge to the jury proceeded on the hypothesis that the stock was worthless. Upon an exception as to the measure of damages, as stated in the charge. Held, that a party will not be allowed to avail himself of an exception to a part of a judge’s charge where the circumstances under which the charge was made, exhibit a case where on all sides, both of the court and respective counsel, a fact was necessarily assumed to exist of such serious import as to just fv the charge, though technically with the attention 'of the court called distinctly to the subject matter, the charge would be so erroneous as to require a reversal of the judgment.
    8. Same—Exception—When general term can review judge’s charge without.
    The general term can consider an error in the judge’s charge on the trial, not excepted to, where the appeal is taken from an order denying a new trial. But it will not grant a new trial for such error where it is satisfied with the verdict of the jury.
    4. Evidence of contemporaneous fraudulent representations—When admissible.
    In an action to recover damages on account of fraudulent representatians made by the vendor at the purchase of goods: Held, that evidence in proof of contemporaneous fraudulent representations made by the vendor is admissible (not for the purpose of establishing the representations or the deceit in the action on trial), but for the purpose of showing the intent with which such representations were made and to negative the possible hypothesis of innocence, although the reprsentations -were untrue.
    o. Same—Where conversation with agent of vendor may be proved.
    The vendee h's a right to rely upon statements made to her by the agent of the vendor, provided they were the same representations that were made by the vendor, and which he designed should be in turn made to the vendee to induce her to buy. And there being eviden e to show such design, the conversations or communications between the agent and the vendee may be proved.
    Appeal from a judgment entered upon the verdict of a jury, and also from an order denying the defendant’s motion for a new trial.

      W. W. Goodrich, for resp’t; Luther B. Marsh, for app’lt.
   Macomber, J.

The action is to recover damages for fraud and deceit alleged to have been practiced upon the plaintiff by the defendants William M. Reynolds aud Robert M. Reynolds, in the sale to her of a quantity of the stock of the Cisco Consolidated Gold Mining Company. The jury rendered a verdict against the defendant William M. Reynolds, the appellant, but not against the defendant Robert M. Reynolds.

The appellant was the president of the Cisco Mining Cov a corporation which was organized under the Laws of the state of New York to work gold mines in the state of California. Its stock was divided into 100,000 shares of $100 each, amounting in all to $10,000,000 on paper. The plaint-. iff purchased of this stock, mainly if not wholly through Robert M. Reynolds, in February, 1880, 8,900 shares at $22.50 per share, giving therefor two notes, one for $73,000 payable in fifteen days, and another for $89,000 payable in thirty days, and $18,500 in cash or good securities. In April of the same year she purchased the further amount of 250 shares at twenty-five dollars per share, for which she gave her promissory note in the sum of $3,250, paying for the residue $3,000 in cash. Again, in January, 1882, she bought 200 shares at five dollars a share, paying therefor in Missouri Pacific stock $425, $75.00 in cash and the balance in her note of $500. In April, 1882, she bought 200 shares at $7.50 per share, paying therefor $500 in cash and a note for $1,000. .

The February transaction was afterwards so modified and arranged as that the plaintiff accepted 600 shares of the stock for the cash payment then made of $18,500, and received back her promissory notes already mentioned. In August, 1880, the defendant, Robert M. Reynolds, received back from her 200 shares at the rate of $12.50 per share, amounting to $2,500. Rejecting the notes, therefore, this action is brought to recover the cash payments made as aforesaid in the months of February and April, 1880, and in January and in April, 1882, amounting in all to $20,500. The analysis of the grounds of the action and of the proofs shows that the plaintiff relied, to maintain her action, upon the following false and fraudulent representations : First, that the stock so purchased by the plaintiff was worth a great deal more than the price paid for it. Second, that the specimens of ore which were exhibited to the plaintiff as coming from the mines of this corporation were borrowed for the occasion and in fact were never produced by those mines. Third, that Mr. Coe, who was represented as being desirous of becoming president of the corporation, had never expressed or had any such intention; nor had he ever offered to any person twenty-five dollars a share for 1,000 shares of the stock, and that he had no purpose or intention of investing in that stock. Fourth, that Drake B. McKay had offered to exchange Chrysolite stock for the stock of the Cisco Company. Fifth, that the mines for sixteen years had belonged to members of the family of the late Alfred Chartick, whereas in truth and fact they were never in the possession of any member of that family. Sixth, that a mill had been purchased and was about to be forwarded, whereas it had not been purchased at the time of the making of the representations. Seventh, that certain reports of assays of the gold alleged to have been taken from the mines were exhibited to the plaintiff’s son for the purpose of showing the richness of the mines, and that such assays were of gold that was not taken from the mines, all of which the defendants well knew. Eighth, that William M. Reynolds had examined the mines in the year 1879, and in consequence of such investigation had invested the sum of $35,000 therein.

It is claimed by the learned counsel for the defendant, in a very elaborate argument, first, that the verdict is against the weight of the evidence. Upon an examination of the case, the fact is disclosed that the plaintiff was induced to buy the stock through the representations made to her as coming from William M. Reynolds by the agency of Robert M. Reynolds and of the plaintiff’s own son Ogden Vail. There is evidence from which the jury would have been warranted in holding Robert M. responsible in this action for certain of the representations which induced the plaintiff to part with her money. The jury, however, have taken the view that was perfectly permissible in the case for them to take,' and have substantially held that the defendant Robert M. Reynolds had no further interest in procuring the stock to be sold than that of a mere agent, and that he did no more than to represent to the plaintiff and her son the facts as they had been placed before him by the appellant, for the purpose of making sales to the plaintiff. They have found, from evidence which they had a right to believe, that the defendant William M. Reynolds made the false statements to Robert and caused Robert to repeat them to the plaintiff as an inducement to the plaintiff to invest her money, while they have rejected the other allegation of the complaint that the two Reynolds were engaged in a common conspiracy to defraud the plaintiff. The testimony of the defendant William M. in his own behalf, goes far, it is true, to exculpate himself in the transaction, but the jury have seen fit to take a different view of the case and to render a verdict based upon other competent testimony, which verdict we do not feel at liberty to disturb upon the facts as disclosed by the proofs. The several exceptions to the admission of evidence running through the case, eight in number, relating to conversations or communications between Robert and the plaintiff and Robert and the son of the plaintiff, do not seem to be well taken, for, as has already been stated, the appellant operated upon the plaintiff directly through the agency of his brother Robert and of the son of the plaintiff, as the jury has very properly found, and hence the plaintiff had a right to rely upon the statements made to her either by Robert or by her son Ogden, provided they were the same representations that were made by the appellant and which he designed should be in turn made to the plaintiff to induce her to buy the stock, of which there is ample evidence.

The exceptions to the proof of contemporaneous fraudlilent representations made by the defendant, were not well taken. Such evidence is admissible, not for the purpose of establishing the representations or the deceit in the action on trial, but for the purpose of showing the intent with which such representations were made, and to negative the possible hypothesis of innocence, although the representations may; be untrue. Miller v. Barber, 66 N. Y., 568.

The main questions, however, which are presented to us upon this appeal, relates to the alleged errors in the charge of the learned judge at the trial. In the first place, it is claimed that the court was in error in instructing the jury that, if any of those several representations stated in the complaint were fraudulently made, then the plaintiff had a right to recover. But the judge did not charge that proposition. He instructed the jury, however, that if the plaintiff failed to establish any one of the alleged representations, the defendant was entitled to a verdict in his favor. “If, however, they establish to your satisfaction, that any one of these representations which were material were made by the defendant, knowing, or having reason to know them to be false, with the intent to deceive, and that the plaintiff relied upon that representation and parted with her money, the plaintiff in this case is entitled to a verdict at your hands for the damages that she has sustained.” This is not an instruction that if either of the nine false representations (as they were classified by the judge at the trial), was false and deceitfully made, a right of action was given to the plaintiff to recover the amount of money which she paid out for the stock, but it was that if any one of those propositions which was material, that is to say, which was sufficient, and did in fact fraudulently induce the plaintiff to part with her money, was fraudulently made, that the jury would be justified in rendering a verdict in her favor. Most of the representations relied upon, related to the value of the gold mines, and the exhibition of ore purporting to come therefrom, and a statement of the assays of such ore. Representations of this character, certainly, if false and fraudulently made, go directly to the substance of the action and are in no respect collateral. The representations that Mr. Coe was to purchase some of the stock at a certain price and desired to become president of the company, did not to the same extent establish the ultimate fraud relied upon, but rather constituted an evidentiary fact designed to operate upon the plaintiff’s mind, which would led her to believe that the ultimate fact designed to be impressed upon her, the great value of the mine, would be affected. If one, for instance, should represent that another person was solvent, * and that his promissory note for a given amount was good, and that he owned a farm of as many acres unincumbered, it could hardly be claimed, in an action for fraud against him for the deceit, that a recovery could be had upon showing that he did not own the farm, if it appeared that the thing ultimately designed to be represented, namely, the solvency, actually existed.

No exception, however, was taken to this portion of the charge, and while it is competent for us to consider an error of the charge not excepted to where the appeal is taken from the order denying a new trial, yet it would hardly behoove us to grant a new trial for the error even as it appears to the counsel for the defendant, inasmuch as we are well satisfied with the verdict of the jury, so far as it went.

The most serious objection, however, to the regularity of the trial is the alleged error of the judge in stating to the jury the measure of damages. In this case the action . being for the deceit for the sale of property, the measure of damages is the difference between the value of the stock as represented and as determined by the value of the mines of the company, and the actual value of the stock as it really is, and as it is influenced by the actual condition of the mines. The learned judge, however, instructed the jury that the plaintiff was entitled to recover, if they found that the deceit had been established, the amount of money which she had paid out for the stock in question, namely, a balance of $18,000, to which they had the power to add interest.

The exception to this portion of the charge is as follows: “I also except to your instruction that if the plaintiff is entitled to recover, she is entitled to recover damages, the amount paid by her on the purchase of the stock, whether that purchase be intended to include or exclude interest; in either case, I except.” For this error we should feel constrained to grant a new trial, except for the fact that the learned trial judge had a right to proceed, as he actually did, upon the hypothesis that the stock held by the plaintiff was worthless. For if, throughout, the trial was conducted on that assumption, in the absence of any special request to charge a different rule, we do not think it is such an error as would require the resubmission of the case to another jury. This testimony of John Cummings is that the stock had no value in 1880 so far as he knew, in a public way. He says there were private sales made on personal assurances, but there was no general value in the market at all so far as he knew. The witness Franklin Allen says that the prices were variable and various. “What was the actual of the stock? I do not think it was worth anything.” At the close of the plaintiff’s case the counsel for the appellant said, evidently addressing the counsel for the plaintiff: ‘ ‘What do you claim? ” The counsel for the plaintiff responded: “We claim $20,500 principal, with interest on $18,500 from April 4, 1880; on $3,000 from April 22, 1880; on $1,000 from January 12, 1882, and on $500 from April 10, 1882, from which should be deducted the interest on $2,500 from August 4, 1880.” No dissent was made to this proposition of the counsel for the plaintiff and it was based upon the testimony already quoted. No request was made to the court to charge the jury a different rule, and, therefore, as it seems to us, the trial judge had a right to assume and to act upon that assumption, that the stock held by the plaintiff, and which she brought into court and offered to give to the defendant, was worthless and that no allowance should be made therefor. Doubtless, if his attention had been called to the question by way of a request to charge, the true rule, which is elementary, would have been stated to the jury, but we think that it is not permissible for a party to avail himself of an exception taken in this manner, when the circumstances under which the charge was made, exhibit a case where on all sides, both of the court and respective counsel, a fact was necessarily assumed to exist of such serious import as to justify the charge, though technically with the attention of the court called distinctly to the subject matter, the charge would be so erroneous as to require the reversal of the judgment. We are referred, among cases that are familiar to the profession, to a decision by this court in January, 1883, in the case of Masterson v. Boyce, a manuscript opinion in which has been furnished us. In that case, the true rule of damages was stated by the court to the jury, but the trouble was that the jury did not follow the instructions of the court, and rendered a verdict for the plaintiff for the full sum which had been paid out for the stock. To the favor, and not for legal error, this court granted a new trial. It was shown in that case that the stock was simply diminished in value by reason of the fact that the amount of big vein coal was not so much as it had been reported to be, and that for that reason the value of the mine was materially reduced. And it was further shown that the stock was actually of considerable value.

The Court said: “ It is evident from the manner in which the case was submitted to the jury that the shares were not considered worthless by the learned judge presiding at the trial, for substantially the only view in which the subject of damages was presented was that which authorized the jury to return the difference between the value of the stock and what it would have been if the property had conformed to the representations made concerning it. That they could render a verdict for the entire purchase price, still leaving the plaintiff the owner of the stock, did not appear to receive the sanction of the court. Certainly, under the evidence, the jury was not justified in adopting that view. It was directly in conflict with the effect of the proof which had been taken.”

There is a wide difference, therefore, between the facts of the two cases, and the one cannot be said, in any legal sense, to be a guide for the decision in the other. .

It follows from these considerations that the judgment should be affirmed, with costs.

■ Daniels and Brady, JJ., concur.