text:
    Mary Dillon, App’lt, v. Michael McMahon et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Lease—Complaint—When erroneous to dismiss as not stating pacts SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION.
    It appeared by the complaint that parties leased to the husband of this plaintiff a lot of land for the term of ten years ending February, 1883. Upon this lot the husband of the plaintiff had erected a building in such a manner that it could be removed at the expiration of the lease. The lease together with the building were transferred to the plaintiff by her husband through an intervening trustee. The plaintiff in 1875 was in possession of this building as owner, and during that year assigned the lease together with the building upon the premises leased to the defendants for the unexpired term and dilivered possession thereof. The complaint further alleged that on the expiration of the lease the plaintiff became entitled to the possession of the building with the right to remove it from the premises, but that prior to that time the defendants converted the building to their own use and sold and disposed of it to some third party, and that upon demand made at and since the expiration of the lease they have refused and neglected to give it to her, wherefore she demanded damages. Held, that a dismissal of the complaint on the ground that it did not state facts sufficient to constitute a cause of action was erroneous.

      Geo. W. Weiant, for app’lt; Andrew Fallon, for resp’ts.
   Barnard, P. J.

It is not clear from the record what the facts are, out of which the action arises. There was no proof taken and the complaint is the only guide, as that was dismissed for stating no cause of action.

By the complaint it appears that Gillies and Fredericks, leased a lot of land for ten years, to James Dillon. This term expired in February, 1883. In 1815 James Dillon and his wife, the plaintiff, assigned this lease to the defendants. There had been a transfer from the husband through one Farrell to the wife, and either before the transfer or after it a house had been erected on the lot. The complaint is not very plain, but the house was attached to the freehold but in such manner that the same could be removed from said lot at the expiration of said lease. Whether it is intended to assert that the building was erected for trade or manufacture or that it could be removed by the terms of the Gillies lease does not appear.

It is averred that the building was sold to the plaintiff and delivered to him. The averment in respect to the transfer to the defendant is again blind. It is stated that the plaintiff and her husband “ as security for a certain indebtedness of plaintiff’s said husband, assigned said lease of said lot, together with the building thereon, to the defendants, for the unexpired term of said lease, and delivered possession of said lot and premises to the defendants.”

Did the pleader intend to aver a transfer of the building with the lease or merely a transfer of the lease, with the right to use the building as part of and under the Gillies lease, during the remainder of the term ?

In the absence of proof, and as matter of pleading, I should feel unwilling to hold that the building was itself transferred as security. Again if the building was transferred, and if we are permitted to go beyond the answer which is denied by the plaintiff, at least in the form in which the pleadings are presented, it is seen that inferentially the building was transferred to defendants, but that the plaintiff had the full term of the lease in which to redeem.

The complaint avers that the defendants sold the building to a third party “ at and before the expiration of said lease.”

If the building was not transferred to defendants, it was a conversion to sell it, and if a right of redemption existed when they sold the building, a¡ right of action also existed, for the sale was then without right. Wheeler v. Newbould, 16 N. Y., 392.

In either case the dismissal of the complaint was erroneous.

Judgment reversed and new trial granted, costs to abide event.

Pratt, J., concurs. _


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    Phœnix Iron Company, App’lt, v. The Vessels the Hopatcong and Musconetcong, their Tackle, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    1. Fraud—Evidence—What conclusive evidence of.
    A certain firm was bankrupt, without hope of having ability to pay the notes given to plaintiff. Said firm had previously transferred the property (in payment for which the notes were given) to a third party, and had received a valuable consideration therefor. The plaintiff accepted the notes in ignorance of the condition of said firm, and also of the change in respect to the title of the vessels, in which the plaintiff was entitled to a lien, under chapter 483, Laws of 1863. Said notes extended the credit so that, as to a part of the debt, the statutory period to enforce a lien against the vessels would run out before the notes matured. Held, the evidence of fraud was conclusive, and that it avoided the suspension of the lien procured, or attempted to be procured, by the giving of the notes.
    3. Lien on vessels—Laws of 1863, chap. 483.
    Under Laws 1863, chapter 483, materials furnished for the construction of a vessel are a basis for a lien, although not actually put in the vessel at the time the action to enforce the lien is brought.
    Appeal from a judgment of the Orange county special term.

      Harvey Weed, for app’lt, Eugene A. Brewster, of counsel; Albert & Fuller, for resp’t.
   Barnard, P. J.

The firm of Ward, Stanton & Co., purchased iron work of the plaintiff which was designed to enter into the construction of the two steamers in question. The greater part of the articles ordered went into the vessels. The sale provided for no credit. The proof shows that the delivery of the iron commenced early in August, 1880, and continued until October 1884.

On the 15th of November, 1884, Ward, Stanton & Co. conveyed to the Hoboken Land and Improvement Co., the two steamers in an extremely unfinished condition. .!

The firm had contracted to build the vessels for a fixed" sum for that company and made the transfer by reason of an inability to complete them, a short time thereafter they made a general assignment for the benefit of the creditors of the firm.

On the 21st of November, 1884, the firm enclosed by letter, notes for the iron work payable at a future time. The plaintiff accepted the notes in ignorance of the condition of the firm of Ward, Stanton & Co., and also of the change in respect to the title to the vessels in which the plaintiff was entitled to a lien under chap. 482, Laws of 1862.

The judge has found that the firm at the time of sending the notes was insolvent, knew of its hopeless insolvency and of its inability to pay the notes. The court refused to find that the concealment of the insolvent condition was not with fraudulent intent. This finding seems not only to be against the finding made, but against the evidence.

If the fact be that the firm was bankrupt without hope of an ability to pay the notes and if the firm had transferred the property of the plaintiff to the Improvement Company and had received a valuable consideration therefor, and if as the law is well settled, a note with a credit suspended the hen, Happy v. Mosher (48 N. Y., 313), and if as to a greater or less part of the debt, the statute period to enforce a lien would run out before the notes matured, the evidence of fraud is conclusive.

The meré concealment in the change of the condition of the firm in respect to the vessels is sufficient to establish fraud. Anonymous, 67 N. Y., 598; Hennequin v. Naylor, 24 id., 139; Wright v. Brown, 67 id., 1.

If this conclusion be just then there should be a new trial for this failure to find a fact which destroys the notes suspending the lien. The court found the contract to be one made in this .state. The sale was not complete until delivery although the order was given for the property by a foreign company. The claim was a hen against the vessels such as the proof shows them to be. This seems to be clearly established in Phillips v. Wright (5 Sanfords Sup. Ct., 342), and also that the materials furnished were a basis for a hen although not actually put in the vessels at the time of the action to enforce the hen.

There should, therefore, be a new trial granted, with costs to abide event.

Pratt, J., concurs.


text:
    The Chester Rolling Mills, App’lt, v. The Vessels, the Hopatacong and Musconetcong, their Tackle, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1878.)

    Vessels—Lien on—Under Laws 1862, chap. 482.
    Where fraud is shown in the giving of notes in payment for materials furnished for vessels, the receipt of such notes does not suspend the lien which the vendor had under Laws 1862, chapter 482. See ante, p. 725.
   Barnard, P. J.

The facts on this appeal are so entirely similar to those in the case of the Phoenix Iron Company against the same vessels decided at this term, that a new trial must be granted for the same reason. The averments are different, and the dates of the notes and the time of maturity, but.it was proven that when the notes were sent, the firm of Ward, Stanton & Co. was insolvent; that it ■had no hope of paying the notes; that the vessels had been sold by the firm before the last two notes were given; that the purchase was made without any term of credit, and the notes suspended the lien which the vendor had under-chapter 482, Laws of 1862.

This, with the proof tending to show that the firm claimed to be able to pay its debts, and with the findings of the judge that it knew that it was not able to do so, furnish sufficient evidence of fraud to avoid the suspension of the lien procured thereby, or attempted to be procured thereby.

New trial granted, costs to abide event.

Pratt, J., concurs. _


author: Dykman, J.

text:
    The National City Bank of Brooklyn, Resp’t, v. Robert E. Westcott, as President of The Westcott Express Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    1. Check—Indorser of—Guarantees only signature of drawer.
    The acceptor of a bill of exchange, by his acceptance, guarantees only the genuineness of the signature of the drawer of the bill, and not the body of the instrument, and the same rule applies to the indorser of a ■ check.
    2. Same—Money paid upon a raised check may be recovered.
    But when money is paid by mistake upon a raised check, neither party being in fault, it may be recovered back as paid without consideration.

      Joseph Aspinwall, for resp’t; E. Luther Hamilton, for .app’lt.
   Dykman, J.

On the 13th day of November, 1884, Henry Von Deilen, one of the depositors of the plaintiff, gave to a stranger a check for six dollars, in exchange for six dollars in money, in these figures and words :

“No. 90. Brooklyn, November 13, 1884.
National City Bank of Brooklyn pay to Mrs. J. W. Smith or order $6.00.
$6.00 H. VON DEILEN.”
Without the knowledge of the drawer or the defendant, • the check was subsequently changed and made to read as follows :
“No. 94. Brooklyn, November 15, 1884.
National City Bank of Brooklyn pay to Samuel F. Allen or order $660.
$660. H. VON DEILEN.”
That check bore the following endorsements :
“Samuel F. Allen.”
“ For collection, New York and Boston Despatch Express Company. A. J. Dunlap, Gen. Agent.”
George W. Dixon.”

The check came to the New York and Boston Despatch Company for collection, and was • forwarded by that company to the. company of the defendant, and was received and endorsed by George W. Dixon, the agent of the Westcott Express Company, who presented it to the plaintiff, with his endorsement, and received the money called for by it, and delivered it over to the despatch company, from which the check was received, and the latter company paid the money to the person from whom it received the check in Philadelphia.

The money was paid by the plaintiff on the nineteenth day of November, 1884, but the forgery was not discovered until February 10, 1885, when immediate notice of the facts was conveyed to the defendant’s company and the payment of the difference between the checks was demanded and refused.

Mr. Von Deilen was allowed to draw against the sum of $654, which had been charged to his account when, the forged check was paid, and this action was commenced for the recovery of that amount of money from the defendant’s company.

The material facts were undisputed upon the trial, and a verdict was directed for the plaintiff, from which the defendant brings this appeal, which presents questions of law only.

It is the contention of the defendant that the endorsement of the check by its agent imposed no liability upon the company and did not constitute a warranty to the plaintiff that the instrument was genuine.

The point was decided against the defendant by the trial judge, who held that the endorser of a bill or check warrants the instrument to be genuine, and cites the case of Turnbull v. Bowyer (40 N. Y., 456) to sustain his ruling.

The judge who wrote the opinion in that case did say . therein that “The rule is well settled also that an endorsement of commercial paper is a contract with every subsequent holder that the instrument itself and all the antecedent signatures thereon are genuine,” but the statement was too broad, and in its entirety was unnecessary to the determination of the question involved. There the name of the payee alone was forged, and the remark of the judge respecting the application of the warranty of the endorser to the instrument itself was impertinent.

The case was subsequently criticised and limited in the-case of Susquehanna Bank v. Loomis (85 N. Y., 212), and now in this state the acceptor of a bill of exchange by his acceptance guarantees only the genuineness of the signature of the drawer -of the bill, arid not the body of the instrument, and the same rule applies to the endorser of a check. Clews v. Bank of New York (89 N. Y.) and cases cited.

Yet this action is properly brought for money paid by mistake, and the judgment must be upheld. Such actions have been uniformly sustained in this state. Canal Bank v. Bank of Albany, 1 Hill, 287; Bank of Commerce v. The Union Bank, 3 Comst., 230; Marine National Bank v. National City Bank, 59 N. Y., 67.

When money is paid by mistake upon a raised check, neither party being in fault, it may be recovered back as paid without consideration. Espy v. Bank of Cincinnati, 18 Wall, 604.

The judgment should therefore be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


author: Dyicman, J.

text:
    Theodore Brinckerhoff et al., Resp’ts, v. Henry Bostwick et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    1. Negligence in performance of duties by bank directors—Action FOR DAMAGES FOR, IS COMMON LAW ACTION.
    The complaint in this action charged the defendant with mismanagement and gross negligence in conducting the affairs of a bank whereby the corporate fund was wasted, there being no allegations of misappropriation of funds by them, and demanded judgment for damages. Held, that the' action was one at common law for the recovery of damages independently of statute.
    2. Same—Is triable by jury.

      Held, that the action was properly triable by jury, and that an order denying a compulsory reference of the issues should be affrmed

      Thompson, Weeks & Lowe, H. A. Wilson, J. S. Van Cleef,, ■for app’lts; J. F. Schlosser and O. D. M. Baker, for resp’ts»
   Dyicman, J.

Cross-appeals from orders are presented to the court in this action.

One by the plaintiffs from an order denying a motion to send the cause to a referee to hear and determine, and one by the defendants from an order striking the cause from the calendar of the circuit court and directing its trial by the court without a jury.

This cause, from its commencement, has presented serious and embarrassing difficulties, and the question now presented equals in importance to the parties any that have gone before it.

Uncontrolled by any intimation of that court of appeals when the cause was last in that court, we would conclude that the action sounded in tort and that the defendants had the constitutional right to a trial by jury. •

The allegations of the complaint consist almost entirely of charges of negligence and fraud of the defendants in the discharge of their duties, and the demand for judgment is for damages and not for specific relief.

The defendants are not charged with personal misappropriation of the funds of the bank, but it is alleged that they suffered the corporate fund to be wasted and lost by gross negligence and inattention to their duties.

The action is, therefore, an action at common law for the recovery of damages independently of any statute. Yet the last opinion of the court of appeals contains this language: “This is unquestionably an equitable action. * * * So this action for the purpose of determining the limitation of time applicable to it must be governed by the same law which would have been applicable if the action had been brought by the bank. The action is against the directors as trustees to call them to account for the manner in which they discharged their trust, and is one over which courts of equity always have jurisdiction.”

These words standing alone would seem to indicate that the action was one of equitable cognizance alone to be tried by the court without a jury. But the same opinion contains this language also: “It is not claimed that the liability which the plaintiffs seek to enforce in this action against the directors is one created by any statute* but as we held when the case was here before, it is a common law liability springing out of their relations to the bank and the manner in which they discharged, or omitted to discharge, their obligations and duties as directors thereof.”

Finding nothing, therefore, to aid or direct us in the former decisions in the court of appeals in this case, we are inclined to rest our decision upon principle and upon the authority of the decision in the court of appeals in the case of Hun v. Cary (82 N. Y., 65), where it was held in a case like this that the action was properly tried as an action at law by a jury because the only relief sought was a money judgment.

The order denying the motion for a reference should, therefore, be affirmed, with ten dollars costs and disbursements, and the order striking the cause from the calendar of the circuit court should be reversed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


text:
    Harry Rozelle et al, Com’rs, etc., v. Eliza Andrews.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Restitution—Of costs paid under decision subsequently reversed.
    A judgment, without costs, having been obtained by this plaintiff was affirmed, with costs, by the general term, and the costs adjusted. Upon an appeal to the court of appeals, the judgment was reversed and the complaint dismissed, with costs. Held, that the costs paid in compliance with the judgment of the court below should be restored.
   Dykman, J.

Upon the trial of this action judgment was awarded to the plaintiffs without costs, and the judgment was affirmed by the general term, with costs, which were adjusted at eighty dollars and paid by the defendant.

Then the defendant appealed to the court of appeals where the judgment was reversed and the complaint dismissed, with costs.

Now the defendant desires the restitution of the eighty dollars, and it is a proper case for such restoration. The money was paid in obedience to an erroneous decision of the court which now has been reversed. There is, therefore, no justification for its retention, and it should be restored.

The motion should be granted, with ten dollars costs. Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    William Oscar Fausten, Resp’t v. Augusta E. Weishas et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Practice—Pleadings—Complaint—Service of amended—When regular.
    This plaintiff after the denial of a motion made for the appointment of a receiver, but before the expiration of the defendants’ time to answer the complaint, served an amended complaint. Held, that plaintiff’s practice was regular and that a motion by defendant to strike out the amended complaint should be denied

      Anthony Cregg, for appl’ts; Jackson & Burr, for resp’t.
   Dykman, J.

This is an appeal from an action denying a motion made by the defendant to strike out an amended complaint.

After a motion made by the plaintiff for a receiver in the action had been denied, but before time of the defendants to answer the original complaint had expired, the plaintiff served an amended complaint.

Subsequent to the service of such amended complaint and on the same day the defendants demurred to the original complaint, and thereupon served notice of motion to strike out the amended complaint. That motion was denied and from the order of denial we have this appeal.

The practice of the plaintiff was entirely regular and the order should be affirmed with $10 costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


text:
    Campbell Printing Press and Manufacturing Co., App’lt, v. Stillman R. Walker, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

      1. Contract—Conditional sale—Rights of parties under.
    The plaintiff sold and delivered to another four printing presses under a conditional sale by which the title remained in the plaintiff until the purchase-price was fully paid. Held, that the rights of the vendee were those of a bailee only until full payment of the purchase-price, and that upon failure to pay in pursuance of the terms of the contract, the title remained in the plaintiff, as if neither sale nor delivery of the property had been attempted.
    3. Same—Rights of assignee of vendee.

      Held, that an assignee of the vendee under a general assignment for the benefit of creditors succeeded only to the vendee’s rights in the property.
    3. Same—Property included in—Lien does not exist in favor of VENDEE.

      Held, that the plaintiff having maintained an action of replevin for the property against the assignee, there remained no lien on the property in favor of the vendee or those claiming under him,

      Chas. De Hart Browe, for app’lt; Foster & Stephens, for resp’t.
   Dykman, J.

The plaintiff sold and delivered to Frank Tousey four printing presses under a conditional contract of sale by which the title remained in the plaintiff until the purchase price was fully paid. Tousey retained the possession of the machines about three years, and paid on account of the purchase money in partial execution of the executory contract of sale over $6,000, when he made a general assignment for the benefit of his creditors to the defendant in this action.

The property went into the possession of the defendant under the assignment to him, and then in the forepart of the year, 1885, the plaintiff brought an action of replevin for the recovery of the same in reliance upon that portion of the contract which reserved the title and provided for its continuance in the vendor. That action was prosecuted to a conclusion, and resulted in a judgment in favor of the plaintiff under which the property was restored to the company where it has since remained.

Thereupon the plaintiff commenced this action for the foreclosure of any lien which the defendant may have upon the property. The complaint was dismissed by the trial court, and the plaintiff has appealed from the judgment.

Under the contract of sale by which the possession of the property was acquired by the vendee, the legal rights of the parties are well defined in this state.

The rights of the vendee were those of a bailee only. He was the lawful custodian of the property, and the bailee of the plaintiff until the purchase price was paid in full, but he acquired no title against the plaintiff, and upon his failure to pay in pursuance of the terms of the contract the title remained in the plaintiff as fully as if neither sale nor delivery thereof had been made or attempted, and the defendant occupies the position of his assignee. Herring v. Hoppock, 15 N. Y,, 409; Ballard v. Burgett, 40 N. Y., 314.

The plaintiff invoked the aid of this severe principle of law in the first action for the recovery of the possession of this property in question, and the judgment of the court was awarded to him in obedience to its dictates, and the possession and the title were united, and the rights of the plaintiff became absolute and undivided.

These considerations seem to be sufficient for the determination of this appeal. The plaintiff has been awarded the possession of the property in question because its right thereto was absolute, and no title passed from the company or vested in Tousey under the contract of sale, and now after the acquisition of that adjudication it seems to be the object of this action to procure a judgment which shall foreclose all interest of the defendant in the property.

Should the plaintiff obtain a judgment in this action pursuant to the prayer of the complaint, it would be in diametrical opposition to the theory upon which the judgment in the first action between these same parties was procured. Such a judgment could only go upon the theory of a lien .upon or interest in the property sufficiently tangible for the basis of an. action of foreclosure, while the first judgment was awarded upon the theory of an entire absence of interest in the defendant.

Why should this plaintiff be permitted to pursue these contradictive courses % Why should this company again drag this defendant into the thorny field of litigation when its rights have been fully adjudicated, and its interests well defined and protected, and when it is in the unchallenged possession of the property, upon which it may repose in security and safety without even a threat of interference.

The claim seems to be that while the rights of the company are well adjusted and protected at law, yet they may be disturbed by a court of equity, but if the rights of the plaintiff are perfect at law there can be no interference by a court of equity for their disturbance.

Whatever may be said in behalf of the defendant and his assignor, there is no reason for the interposition of a court of equity in favor of the plaintiff.

Our examination has’ proceeded upon principle but we have discovered no authority requiring any different conclusion.

There was no appeal by the defendant from the portion of the judgment dismissing his counter-claim, and therefore no consideration is given to that subject.

The judgment should be affirmed with costs.

•Barnard, P. J., and Pratt, J., concur.


text:
    Edward Fougera, Resp’t, v. Isidor Cohn et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    1. Landlord and tenant—Use and occupation—Action for—Relation OF LANDLORD AND TENANT MUST EXIST—RELATION MAT BE INFERRED.
    The plaintiff drew up an instrument purporting to he a lease of premises, to the defendants for two years and five months, at a yearly rent agreed upon. This paper, however, was not properly executed. The defendants entered into possession of the premises at the time specified in the lease, and occupied the same for one year and five months, and paid the rent reserved in the lease at that time. They then removed from the premises and left them vacant, and desired to make a surrender of them to the plaintiff. In an action brought to recover for rent of the premises for the five months next succeeding the time for which rent was paid: Held, that the conventional relation of landlord and tenant was essential to the maintainance of an action for use and occupation, but that neither a written instrument or express agreement were indispensable requisites to the formation of that relation, and that the rule might be satisfied by proof of facts and circumstances sufficient to justify an inference that the parties intended to assume that relation.
    '2. Same—Entry under void lease—Effect of.

      Held, that in this case a tenancy was created by the entry of the defendants and the payment of rent, in pursuance of the terms of the instrument intended, although it had no legal inception as a valid lease, and that in view of the circumstances, the law inferred an intention of the parties to create a tenancy from year to year, upon the terms specified in the instrument.
    3. Same—Lease from year to year—When implied.

      Held, that the tenants had the right to terminate the tenancy at the expiration of the first year, by giving a sufficient and proper notice, but that failing in" this, the law implied against them a further lease for the succeeding year, upon the same terms as the first.

      Carpenter & Roderick, for resp’t: Simpson & Werner, for app’lts.
   Dykman, J.

This action is brought to recover compensation for the use and occupation of certain premises in the City of Brooklyn.

There was a lease drawn which was designed to embody the terms of the tenancy of the defendants, and which prescribed a term of two years and five months to commence on the first day of March, 1884 and terminate on the first' day of August, 1886, at a yearly rent of $3,000, payable monthly, but it was not properly executed.

The defendants entered into possession of the premises at the time specified in the lease and occupied the same until the first day of August, 1885, one year and five months, and paid the rent reserved in the lease down to that time.

They then removed from the premises and left them vacant and desired to make a surrender of them to the plaintiff, which he refused to accept and brought this action for the use and occupation of the premises for five months ending on the thirty-first day of December, 1885.

Both parties proceed upon the assumption of the invalidity of the lease, and with that concession the defendants seek to limit their liability to actual occupation only, and as they have paid for all of that, they resist the demand made against them in this action.

The existence of the conventional relation of landlord and tenant is essential to the maintenance of an action for use and occupation. Preston v. Hawley, 101 N. Y., 588. Yet while this is a fundamental principle of law neither a written instrument nor an express agreement are indispensable requisites to the formation of that relation. The requirement of the rule may be satisfied by proof of facts and circumstances sufficient to justify an inference that the parties intended to assume that relation. Benjamin v. Benjamin, 5 N. Y., 383.

° In this case a tenancy was created by the entry of the defendant’s and the payment of rent in pursuance of the terms of the lease, although it had no legal inception as a valid instrument between them.

Further, in view of all the circumstances surrounding this case the law infers an intention of these parties to create a tenancy upon the terms specified in the lease from year to year.

The defendants were thus clothed with the right to terminate the tenancy at the expiration of any year by giving a proper and sufficient notice. Laughran v. Smith, 75 Ñ. Y., 209; Reeder v. Sayre, 70 N. Y., 180.

But as the defendants failed .to terminate their tenancy at the expiration of the first year of their holding, the law for that omission implies against them a further contract to renew the tenancy for another year upon the same terms as the year preceding. Conway v. Starkweather, 1 Denio, 113; Schuyler v. Smith, 51 N. Y., 309; Laughran v. Smith, 75 N. Y., 210.

There seems to be no escape from liability for the defendants in this action, their entry upon the premises was in pursuance of an express agreement, and both parties contemplated a yearly tenancy. The defendants occupied for more than a year and paid rent in accordance with the terms of the lease that was written, although void.

Continuing their occupation after the end of the first year of their tenancy, the defendants became bound for the rent for another year, and could not escape that liability by an abandonment of the premises.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    James S. Baker, Resp’t, v. William H. Secor, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    False Imprisonment—Damages for—Compensatory and exemplary.
    = This defendant, as attorney, secured a judgment against the plaintiff and issued thereon an execution against his person, under which he was arrested and imprisoned. The execution so issued was not justified by the judgment and was illegal and the imprisonment resulting from its issuance was false. Held, that there being no proof of malice on the part of the defendant the jury were at liberty to award the plaintiff such damages as necessarily and naturally resulted to him from the arrest, but that a verdict awarding damages manifestly in excess of these should be set aside.
    Appeal from a judgment rendered at the Queens county circuit for $5,000 damages in an action for false imprisonment.

      Benj. W. Downing, for resp’t.
   Dykman, J.

The defendant in this action is a lawyer, who obtained a judgment against the plaintiff for and in the name of his son. Upon that judgment the defendant issued an execution in his professional capacity against the person of the defendant and it was delivered to the sheriff, who arrested the plaintiff in obedience to its requirements, and locked him up in the county jail, where he remained several days.

This action is for the recovery of the damages sustained by the plaintiff by reason of such imprisonment. The exe-. cution so given out by the defendant against the person was not justified by the judgment, and was illegal, and the imprisonment which resulted from its issuance was wrongful and false.

The trial of the cause resulted in a verdict in favor of the plaintiff for $5,000, and the defendant has appealed from- the judgment and from an order denying a motion for a new trial on the ground of excessive damages.

Without a decision of the other questions presented by the appeal we have concluded to grant a new trial, because the verdict is excessive.

Under the charge of the trial judge the jury was at liberty to award the plaintiff compensation for the damages resulting to him naturally and necessarily from the act of the defendant; and he told the jury that while the defendant may possibly, under the proof, have been over-venturesome, yet he found nothing to justify the jury in viewing his conduct as inspired by malice. He placed the case before the jury as one where an attorney made a mistake and issued an execution where he had no right to do so and assumed the risk, and where the plaintiff was entitled to compensation only.

The size of the verdict is unmistakable evidence of the presence of some element besides due deliberation and .sound judgment. Probably the large verdict resulted from a failure of the jury to distinguish sufficiently between compensatory and exemplary damages.

Our conclusion is that it will be much more satisfactory to take the verdict of another jury, and for that purpose a new trial should be granted, with costs to abide the event.

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    Mary E. Jones, App’lt, v. Lillian L. Jones et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    1. Fraud—A title tainted by fraud will remain so in the hands of ONE TO WHOM IT DESCENDS.
    The father of these defendants died seized and possessed of these premises, of which the plaintiff now demands a partition. By his will, which was duly admitted to probate, he devised these premises to his wife so long as she remained his widow, and all the residue of his estate to his children, these defendants. At the death of his widow title absolute became vested in the children as tenants in common. Thereafter two of these defendants executed a conveyance in fee of their undivided share of the premises to their uncle, in possession of which he subsequently died leaving this plaintiff his only child and heir-at law. Prior to the execution of this deed one of these defendants had married this plaintiff, and possession of the premises had passed to a lessee under a lease executed by the widow of this plaintiff’s father. Held, that the plaintiff succeeded to the interest of his father, and if his title and the conveyance by which the same was acquired were vicious and tainted by fraud, the title descended to her burdened with the same infirmity.
    3. Same—When will affect title of purchaser not personally guilty.
    , Held, that the purchase made by plaintiff’s father having been made through her husband, the commission of fraud by him in conducting the negotiations vitiated the conveyance to him even if he were not personally connected with the fraud.
    3, Same—Rule as to.
    Except in the case of an innocent purchaser for value no person can enjoy the results of a fraud and retain its benefits under a claim that it was unauthorized by him.
    4. Same—Evidence—Competency op.

      Held, that the conduct and conversations of the plaintiff’s husband during the negotiations were proper subjects of proof to establish the imposition and that the death of her father interposed no obstacle in the way of such testimony, none of the transactions or communications having been with him.
    5. Parties to action—Code Civil Pro., § 450.

      Held, that persons bringing themselves within the provisions of Code Civil Pro., § 450, may be admitted as parties defendant.
    6. Partition—Action por—Is equitable action.
    The fact that an issue joined in an action of partition is triable by jury-does not change the character of the action it is to be regarded as an equitable one.
    Appeal by the plaintiff from a judgment rendered at special term, held in and for the county of Queens, whereby the plaintiff’s complaint was upon the merits dismissed, with costs; also from an order made by the same court, denying plaintiff’s motion for a new trial; also from an order of same court, making the defendant Rosalie Adele Oakley a party defendant; also from an order of the same court, making the defendant Martha Louise Rutherford a party defendant.
    The facts are sufficiently stated in the opinion.

      James P. Albright, S. Jones and Q hristopher Ferri, for appl’t; Evarts, Choate & Beaman, for resp’ts, L. L. Jones and M. L. Rutherford; Blandy & Hatch, for resp’t, R. A. Oakley; J. Lyon Gardiner, for def’t, Gardiner.
   Dykman, J.

The plaintiff commenced this action for the partition of real property upon an allegation of her ownership of two-fifths of the premises involved, and founded her claim for admission into the family of tenants in common upon that assertion. But the claim thus put forward by her was destined to challenge and disallowance.

Martha Louisa Rutherford and Rosalie Adele Oakley were not made parties to the action by the plaintiff when it was instituted, but upon their subsequent application to the court for that purpose, they were permitted to intervene and become parties and interpose a defense, and they availed themselves of such permission.

The basal facts in this action are these : Oliver H. Jones, the father of the defendants Martha L. Rutherford, Rosalie A. Oakley, Lillian L. Jones, Elizabeth 0. Gardiner and Oliver L. Jones, died, seized and possessed of the premises in controversy, December 16, 1870, leaving behind a last will and testament, which attained vitality and validity by proof and admission to probate as a will of real and personal estate, April 8, 1873.

By his will, the testator devised the premises in question to Louisa L. Jones his wife, so long as she remained his widow, and all the residue of his estate, including these-premises, to his five children, named above, in equal shares. His widow died on the thirteenth day of April, 1876, and the absolute title of the premises then became vested in the five children absolutely as tenants in common.

On the 3d day of December, 1877, Rosalie A. Oakley and Martha L. Rutherford, made and executed a deed of conveyance bearing date on that day, which purported to be a. conveyance in fee to their uncle Charles H. Jones, of their ■ two equal undivided fifth parts of the premises involved for the consideration of two thousand dollars. Charles H. Jones, the grantee in that deed of conveyance, died in the possession of the premises, intestate, in the month of January, 1882, leaving him surviving Mary E. Jones, the plaintiff in this action, his only child and heir at law.

Prior to the time of the execution of the deed to Charles H. Jones, his nephew Oliver L Jones had married the plaintiff Mary E. Jones, and the possession of the premises had passed to a lessee under a lease of ten years duration, executed by the Louisa L. Jones, the widow of Oliver H. Jones, a short time before her death.

Such were the undisputed facts and such the relations of the parties to each other and to the land when the plaintiff instituted this suit for its partition or sale claiming to be the owner of the undivided two-fifth parts of the premises by inheritance from her father Charles H. Jones, deceased. ».

Having secured the right of intervention in the suit, Mrs. Rutherford and Mrs. Oakley made separate answers to the complaint in which they denied the confirmation of the lease by the remaindermen, and controverted the title of'■ the plaintiff. They charged that their deed óf conveyance to Charles H. Jones was procured from them by their brother Oliver L. Jones, by an abuse of their confidence, and by means of fraudulent misrepresentations and concealments, - and for an inadequate consideration, and for those reasons asked to have the deed set aside and adjudged void. The defendant Lillian L. Jones also interposed the same defense.

The cause went to trial at the circuit upon the issue with the plaintiff respecting the validity of her title, and as the testimony was unfolded before the jury the imposition and fraud in the procurement of the conveyance to the ancestor of the plaintiff became manifest, and a verdict was rendered in favor of the defendants, and the jury returned answers to six special questions which show a finding of imposition and fraud fully up to the allegations and charges in the answers of the defendants.

Subsequently the trial judge made findings and directed judgment against the plaintiff dismissing her complaint.

The plaintiff has appealed from the judgment, from two orders denying motion for a new trial, and from the orders permitting Mrs. Rutherford and Mrs. Oakley to intervene in the suit.

The case comes to us upon a bill of exceptions containing the evidence necessary to present the questions of law raised by the exceptions contained therein.

Yet the appeal requires from us an examination of the testimony presented to ascertain its sufficiency to support the verdict of the jury and the finding of the trial judge, and in the performance of that duty we have found the testimony not only sufficient but convincing and satisfactory.

The plaintiff in this action succeeded to the interest of her father, and if his title and the conveyance by which the same was acquired were vicious and tainted with fraud the title descended to her burdened with the same infirmity.

It is the position of these contesting defendants that the deed of conveyance from them to Charles H. Jones, the father of the plaintiff was procured from them by fraud perpetrated by their brother, Oliver L. Jones, the husband of the plaintiff, and the son-in-law of Charles H. Jones, and the plaintiff, therefore, insists that her father’s title was unassailable because he did not participate in the fraud.

The first answer is that he did, so far, participate in the wrong as to accept the deed and pay the purchase money, and he knew the negotiations for the purchase were conducted by Oliver, and not by himself, and he knew the property was purchased for him. He therefore accepted in silence the fruits of a bargain made for him by Oliver, and received the conveyance, and if that was tainted with corruption and fraud, it was vitiated in his hands even if they were chaste and free from pollution. Whelan v. Whelan, 3 Cow., 578. We have recently held the same doctrine in a case where the question was sharply presented. Bedell v. Bedell, 37 Hun, 419.

The broad and beneficent principle is that except in the case of an innocent purchaser for value no person can enjoy the results of a fraud and retain its benefits under a claim that it was unauthorized by him.

That principle justifies the course pursued on the trial of this action and disposes of many of the objections and exceptions taken by the appellant.

The plaintiff insisted continually throughout the trial that proof of fraud committed by Oliver L. Jones could not be made against her because there was no proof of his authority to transact the business for her father. But as we said in Bedell’s case the question is not one of agency, but one of fraud.

If the property of these contesting defendants was wrested from them by fraud, imposition and undue influence, and came to the hands of the plaintiff’s ancestor as a result of such imposition, then the title of the plaintiff was infected with the fraud even if it was committed by Oliver without the knowledge of his uncle-father-in-law.

Therefore the conduct and conversations of Oliver L. during the negotiations were proper subjects of proof to establish the imposition, and the death of Charles H. Jones interposed no obstacle in the way of such testimony, none of the transactions or communications were with him, and the only way to establish the fraud was to introduce the proof received over the plaintiff’s objection.

The objections to the proof of conversations and declarations of Oliver L. Jones, because they could not affect the grantee, Charles H. Jones, assumed a great variety of shapes and were all well disposed of under the principle we have enunciated.

Thus far our examination has proceeded upon the theory of the innocence of Charles H. Jones, but it is now to be remarked that the verdict for the defendant evinces the finding of the jury against that assumption.

It was the insistence of the plaintiff, upon the trial, that Oliver L. was the agent of these contesting defendants and negotiated and brought about the sale at their request and in their interest and as their agent, and his testimony was to that effect. That position was controverted and denied by the testimony of the defendants and the question was presented sharply to the jury in this way: The counsel for the plaintiff requested the court to charge the jury “that O. L. Jones owed no legal duty to either of the defendants to disclose any knowledge or information he may have had as to this Hunter’s Point property. ” In compliance with that request the trial judge charged as follows: “I charge that, provided you find that he acted as the agent of these ladies to carry the offer to their uncle, but under any other circumstances I decline,”

Under this charge the jury was required to find whether Oliver L. was the agent of the ladies, and if such had been the finding the jury would not have returned an affirmative answer to the first question by which it was determined in effect that the execution and delivery of the deed was procured by Oliver L. by undue influence while he occupied a confidential relation to the defendants in which they had the right to rely upon him for counsel and protection.

If then the grantee in the deed sustained the relation of principal towards Oliver L. Jones, then clearly he received the conveyance contaminated with the illegality impressed upon it by the fraud of his agent exerted in its procurement.

So that in either view the testimony to establish the fraud of Oliver L. was pertinent and relevant and properly received upon the trial.

Numerous other objections and exceptions were taken in the progress of the trial by the defendants and they have all received careful and deliberate examination and consideration without the detection of any material error. ,

The same remark is applicable to the exceptions to the charge and the refusals to charge as requested.

Exception is also taken to the practice pursued subsequent to the rendition of the verdict by the trial judge in making and signing findings of fact and conclusions of law.

No additional testimony was received and the findings were in entire harmony with the verdict and special findings of the jury, and their only office in the case is to carry into execution and effect the result of the jury verdict.

The exception to the action of the trial judge at its best view discloses an irregularity merely. No malpractice subsequent to the trial could impair or destroy the verdict, and the question of practice.does not affect the merits. The defendants were entitled to a judgment that would carry the verdict into ’effect, and that is all they have obtained. The case seemed to require more than a common law judgment to settle and adjust the rights of the parties resulting from the verdict, and we find no legal error in the course pursued.

There is an appeal from the two orders permitting the intervention of Mrs. Eutherford and Mrs. Oakley, but it is destitute of merits. They brought themselves clearly within the provisions of section 450 of, the Code of Civil Procedure and their admission as parties to defend the action was judicious and lawful.

It is only essential to remark in conclusion that this action is to be regarded still as an equitable action. True, an issue of fact joined in action for partition of lands is triable by jury but that does not change the character of the action. If a sale or actual partition results, the judgment must contain specific provisions and directions beyond a simple judgment upon a verdict in a common law action.

In the case now before us the issue joined involved the validity of the deed under which the ancestor of the plaintiff claimed title. The defendants charged fraud in its procurement, and courts of equity have from their organization entertained actions for the destruction of deeds and other written instruments for fraud.

The court has only carried into effect the verdict of the jury which found and established the fraud alleged. That was the sole question in litigation, and the determination of that question adversely to the plaintiff defeated her claim of tenancy in common in the lands in question,- and terminated all her rights. The judgment which ensued and from which she has appealed was lawful and right and should be sustained. The costs allowed were within the discretion of the court and its exercise will not be disturbed.

The judgment should be affimed with costs, and all the orders should be affirmed with ten dollars costs for each order and the legal disbursements.

Barnard, P. J., and Pratt, J., concur.


text:
    The Trustees of the Town of Brookhaven, App’lts, v. Egbert T. Smith et al., Resp’ts.

      (Supreme Court, General Term,, Second Department,

      Filed February 15, 1887.)

    1. Title—Charter — Right of parties under ancient—How determined.
    The parties both claim title to the land which is the subject of this action by virtue of charters from the English crown. The grant to the town reserved something, the boundaries of which are not at this date distinctly ascertainable. In the year 1693 the defendant’s ancestor with the assent of the governor-general of New York purchased either the whole or a part of the reserved lands, to which action the town assented by vote. Thereafter and in the same year, by a warrant procured from the governor-general, the purchaser surveyed the lands so purchased, fixing the northern bounds as against the town patent and received the governor-general’s patent for those lands which was read at the town meeting and assented to. Held, that the charters being of extreme age and the boundaries uncertain, controversies should be adjusted by the explanation of the patents by long-use thereunder.
    3. Same—Long continuance of acts under—Effect of in determining rights.

      Held, that after long continued and decisive acts by the parties under the charter mutually acquiesced in, the parties could not question them.

      Nicoll Floyd, for app’lts; Wilmot M. Smith, for resp’ts.
   Barnard, P. J.

Although the charter under which the parties claim title to the land in question is very old, it abundantly appears that there was no conflict between them in respect to the several grants to each. The town claims under two grants from the. crown of Great Britain. The defendant Smith claims under a grant from the same source. The town grant reserved something, and at this lapse of time it cannot be certainly said what were the particular boundaries of the reservation. _ It appears that in 1693 the ancestor of the defendant Smith had, with the assent o£ the then governor-general of Hew York, purchased either the whole or a part thereof, being the reserved lands.

The town, by vote, assented that Smith might “purchase and peaceably enjoy the same.” Subsequently, and in the same year, Smith procured a warrant from the governor-general for the survey of these lands. Immediately after the warrant was obtained, the town and Smith fixed the north bounds of the proposed Smith purchase as against the town patent.

Smith received frorr^the governor-general the patent in the same year, 30th September, 1693, and that was read to the town authorities created under the town charter, and it was voted “that they had nothing to object against the lands ” of this patent. The freeholders assented, in May, 1694, to “forever acquiesce in the limits and bounds of the said patent.”

The validity of the grant to the town has been decided by the court of appeals in the case of The Trustees of Brookhaven v. Strong (60 N. Y., 56). These facts being established, the case seems a plain one. The charters are very old, as has been stated, and the real boundaries are uncertain, but the court of appeals, in the case of Brookhaven v. Strong, have furnished a safe rule by which to determine the controversy as to the boundaries. General words in a patent are but explained “by long use under it.”

It appears that in 1767, the town and Smith compromised a dispute by agreeing to hold certain of the lands in common, and this agreement has been followed ever since as to the lands covered by this conveyance. The next year a compromise was made in respect to another portion of the lands claimed by Smith, and this agreement has been lived under ever since. These two agreements left a part of his grant from the crown adjacent to his homestead, and these premises are those in controversy. The evidence of title in Smith as against the town seems to be decisively established by the acts of the town itself.

In 1862, Smith and the town compromised their claim as to the lands in question upon the same conditions as were contained in the previous agreements. Smith conveyed to the town, and the town accepted the conveyance, upon an agreement to divide the rents and proceeds equally.

The town entered into possession and kept it, and performed the agreement, but subsequently the parties became dissatisfied, and the trustees, in December, 1873, re-conveyed the land, to take effect in April, 1879.

By this agreement, an undisputed line was fixed between the town and Smith, and Smith released the town from all claims under the agreement, and the “ property reverts toEgbert T. Smith,” in the-words of the trustees’ resolution.

_ After these long-continued and decisive acts of the parties under the charter, mutually acquiesced in, it is too late for either party to question them. '

The judgment should, therefore, be affirmed, with costs. Pratt and Dykman, JJ., concur.


text:
    People ex rel. The Church of the Holy Communion v. Assessors of the Town of Greenburgh in the County of Westchester.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Certiorari to review assessment—Returnable before special term— Laws 1880, chapter 269.
    A writ of certiorari issued under chapter 269, Laws 1880, to review an assessment of real property, must he made returnable at a special term int the judicial district in which the assessment complained of was made.
    A motion to dismiss the proceeding herein in the general term and to strike the cause from the general calendar upon the ground that the certiorari should have been returnable at special term.

      John B. Pine, for relator; M. G. Hart, for resp’t.
   Dykman, J.

This proceeding was instituted for the procurement of a writ of certiorari under chapter 269 of the-laws of 1880 to review an assessment of real property, which the relator considers erroneous.

The writ was allowed and issued and a return was made thereto by the defendants and the cause was placed upon the calendar of the general term at Brooklyn for December, 1886.

Thereupon a motion was made by the defendants at the general term to strike the cause from the calendar because the writ should have been made returnable at a special term of the court.

Our examination of the statute convinces us that the-motion must prevail. The second section of the act contains a plain and specific rquirement that the writ shall be made returnable at a special term in the judicial district in which the assessment complained of was made.

The unequivocal intention of the legislature to send the hearing upon these writs to the special term in the first, instance is extracted from the fourth section of the act, which invests the court with power to take testimony if it shall appear necessary for the proper disposition of the matter, and that could not be done at the general term under any practice now established.

The motion should be granted, with ten dollars costs.

Barnard and Pratt, JJ., concur.


text:
    Merrit E. Sawyer, App’lt, v. Thomas J. Wayne et al., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Principal and agent—Power of agent to borrow money.
    An agent clothed with general powers for the transaction of business-. does not have power to borrow money in the name of his principal.
    This is an appeal from judgment ordered by Justice Barnard after a trial upon the merits before him.
    The action was brought by the plaintiff, a lawyer, to charge the real estate of the respondent .with about the sum of $2,100, which the appellant claims he loaned to the respondent’s son to pay certain taxes due at the time upon the said real estate.
    The defendant, respondent, denies that he ever authorized or empowered his son to procure such loan, or any other, and further that at the time mentioned he, the respondent, had in the hands of his said son large sums of money, out. of which his said son was authorized to pay taxes.

      Robert P. Getty, Jr., for app’lt; John Fleming, for resp’ts.
   Dykman, J.

The plaintiff seeks to charge the defendant and his property with the payment of money which the plaintiff advanced to the son of the defendant to be used for the payment of taxes levied upon the property of the latter.

The money was furnished by the plaintiff at the request of the son of the defendant who was engaged in the general transaction of his father’s business, but without authority to borrow money.

The claim of the plaintiff is meritorious, but not against the defendant. It would be dangerous to permit an agent clothed with general powers for the transaction of business, to borrow money in the name of his principal..

In this case the defendant cannot be charged with the adoption of the act of his son, for he had no knowledge of the loan and never acquiesced in the transaction.

The judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


author: Barnard, P. J

text:
    Warren E. Dix, Adm’r, App’lt, v. James W. Hozier, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.

    Executors and administrators—When debts have preference— Presumption as to laws of other states.
    The decedent, who lived in New Jersey, left a will and made the defendant his executor, and defendant was empowered to act as such in that state. There being no proof of the local law of New Jersey in respect to the equality of all the debts before the law, the presumption is that the common law prevails, and by that the executor has a preference over debts of equal degree.
    Appeal taken by the plaintiff from the judgment entered herein dismissing the plaintiff’s complaint, with costs.
    The facts, briefly stated, are as follows: William H. Hozier died February 28, 1873, in New Jersey, and his father, the defendant, qualified as his executor March 17, 1873, and continued to act until 1878. He received $5,000 assets of said estate on a claim against the Japanese government, on June 21, 1878, after much effort, and these were the only assets he was ever able to realize. During the five years of his trust he paid out of his own pocket all the testamentary and funeral expenses, and a number of large bills against the estate. He had supported testator’s children for some time before testator’s death. He had, during all that time, held large claims of his own, including several promissory notes, against the estate, for moneys advanced and board furnished to testator. When, after great personal effort, he succeeded in collecting $5,000 from the Japanese government for the estate, in 1878, it appears that he personally held and owned all the claims against the estate, and that these assets were not sufficient to pay these debts. There was certainly nothing for the legatees to receive, and defendant himself was one of them. He subsequently moved to this county, in the state of New York. About five years later, plaintiff obtained letters of administration on said estate in New Jersey, and then took out ancillary letters in this county, and began this action, and after a trial thereof before a referee the complaint herein was dismissed.

      Jordan & Hodges, for app’lt; H. A. Wadsworth, for resp’t.
   Barnard, P. J

Upon the question of fact found by the referee there is no cause for the reversal of the judgment. The deceased testator, represented in this action by the plaintiff, was the son of the defendant. He left a will and made the defendant his executor. The deceased lived in the state of New Jersey, and the defendant was empowered to act as executor by the orphan’s court of that state.

The will is peculiar: The testator had three children; he had what he supposed to be some $14,000. Shortly before his death he transferred certain specific articles of property (all he had) to the father, and by the will, after giving $2,000 each to the three children, the residue was given to his father and mother.

The children were young, all under twenty years of age, and the will refers to them as “capable of self-support.” No mention is made of debts, but, on the contrary, the bequests seem to be carefully adjusted as if there were no debts. The defendant, however, held a note against the deceased, given for money loaned a few months before his death, in February, 1873. The entire estate consisted of a claim of $10,000 against the Japanese government, except a possible balance in the hands of a merchant firm of that country. For some months before his death the testator was sick of an incurable disease, and he and two of his sons boarded under a special contract with the defendant. He seems to have had no money, and the $1,500 is, therefore, an extremely probable one under the circumstances. The note is produced and the contract for board is proven. The defendant was a competent witness, without any objection being made to him. The general objection to proving that the defendant could not show the application of the assets to the payment of the debts of the witness, had reference only to the claim of the plaintiff that the entire estate should be received and the defendant take his chances of payment before the orphan court of New Jersey.

Upon the evidence of the defendant uncontradicted, a judgment based upon the finding that the defendant did not hold the claim against the deceased would be improper.

The note sustains the father, and the board is proven by another witness. The case then rests upon two questions of law both of which were decided in favor of the defendant.

The complaint avers a removal of the defendant as executor by the Orphans court of New Jersey. The answer is vague, denying jurisdiction and power of this court to do this act. It appears that the court had jurisdiction and power to do the act in respect to the subject matter, but it is charged that the defendant was not notified.

From the extent of the New Jersey law printed in the case, no notice appears, to be required when the executor has left the state which concededly was done by the defendant.

The respondent in his points claims that the extract is incorrect. As the case stands the plaintiff has the right to sue. The defendant received but $5,000 in all from the Japanese government, and that was received nearly five years after letters were procured.

Before this time the defendant had paid the funéral expenses, certain debts, and all except bis own, so far as disclosed, and the expense of asserting the claim, in all nearly $1,000.

There is no proof of the local law of New Jersey in respect to the equality of all the debts before the law, and in the absence of such proof the presumption is that the common law prevails, and by that the executor has a preference over debts of equal degree. Rogers v. Hasbrouck, Ex. 18 Wend., 318.

There seems to have been a notice given to creditors in 1873, and after ten years of silence the change of administration was made. From the absence of proof and from the long delay, it is easily to be inferred that there are no other debts.

The plaintiff has brought his action in this state, and it is only the balance, if any, which the defendant retains after allowing him such sums as he has disbursed in the settlement of the estate. - The action is based upon an implied assignment. Brown v. Knapp, 79 N. Y., 136.

The undisputed proof is that he has no such balance.. The debts and expenses paid, including his own debt, exceed the sum received. ,

Judgment should, therefore, be affirmed, with costs. Pratt, J., concurs.


text:
    Ira T. Curtis, App’lt, v. Manning F. Crane, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Bills and notes—Delivery—When and how proved.
    Where the defense interposed in an action on promissory notes is a denial of the delivery of the notes, and a denial that they ever had any legal inception, it becomes necessary for the plaintiff to establish the circumstances under which he became the owner of the notes and the amount he paid for them or that he paid value and was an innocent, honest holder.
    Appeal from a judgment entered upon a verdict in favor of defendant at the Kings county circuit-and from an order denying a motion for a new trial on the judge’s minutes. Moore <& Moore, for app’lt; C. E. Cuddeback, for resp’t.
   Dykman, J.

This action is based upon seven promissory notes made by the defendant, payable to the order of D. A. Moore, and transferred to the plaintiff.

The chief defense is a denial of the delivery of the notes, and a denial that they ever had any valid legal inception.

The history seems to be this: These promissory notes, with three others, making ten in all, of $100 .each, were-made by the defendant to be used and delivered in consummation of an agreement for the exchange of. real property between himself and the payee, D. A. Moore. She was represented by her husband, A. J. Moore, in the transaction, and his theory is, and his testimony upon the trial was that these notes, with the repaaining three not yet. due, were delivered to him at the time of their execution in fulfillment and performance of the contract, and so became valid and subsisting instruments in the hands of the payee. The counter theory of the defendant was that the notes were executed by him preparatory to the consummation of "the agreement respecting the land to be delivered contemporaneously with the deeds of conveyance, and that the agent and husband of the plaintiff obtained possession of them for examination only, and held them wrongfully.

The defendant testified to facts upon the trial tending strongly to substantiate his position, and his testimony was ■supplemented and corroborated by two other witnesses, .and the case was submitted to the jury by a charge to which there was no exception, and the verdict was rendered in favor of the defendant.

In such a case, with such testimony, the appellate court -can afford no relief. The sole question involved is a question óf fact to be solved by the jury, the theory_ of the defense is sustained by the testimony of three witnesses who have commanded the'belief of the jury in full view and consideration of the testimony for the plaintiff, and we can discover reasons inherent in the case for the rendition of the verdict in favor of the defendant.

In view of the defense interposed and the claim of the defendant that possession of these notes was improperly obtained, it became important and necessary for the plaintiff to establish the circumstances under which he became the owner of the notes and the amount he paid for them, or at least that he did pay value and was an innocent, honest holder. That question was in the case and was presented to the jury and solved' against the plaintiff, and no disturbance of the verdict can be expected or received from us on that question.

The judgment should be affirmed, with costs.

Barnard and Pratt, JJ., concur.


author: Barnard, P. J. Pratt, J.

text:
    People ex rel. Bennett, App’lt, v. Joseph O. Miller, Register, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

      Í. Mandamus—When granted.
    A mandamus will not be granted as a matter of right, when there is a clear remedy at law.
    U. Same—When register not a proper party to a suit.
    Where there is a contest whether a mortgage should be marked of record a as satisfied, it is not proper to put the contest upon the register of deeds, who has no interest in the question, and who is acting under the record as the parties have made it. Pratt, J., dissenting.
    Appeal from an order refusing to direct a writ of mandamus to issue directing the register to satisfy a certain •mortgage of record.

      Foster & Stephens, for app’lt; Sewell & Pierce, for resp’t.
   Barnard, P. J.

The rule that a mandamus will not he granted as matter of right when there is a clear remedy at law, is well settled. People ex rel., etc., v. Campbell, 72 N. Y., 496. The papers show no clear legal right to the cancellation of the mortgage. The mortgage was for $5,000 and was given by one Hunt and wife to the executor of Tristram Allen. Tristram B. Allen assigned his interest in this mortgage to the Stationers’ Board of Trade, to secure $400, and this assignment was dated September 12, 1883, and recorded September 19, 1883. There was no assignment by the executors to Tristram B. Allen then on record, but in January following, one was given and recorded. A mortgage as between the parties passes by delivery and Tristram B. Allen probably owned the mortgage when he conveyed it to the Stationers’ Company. At all events, proof of that fact is possible and seems probable. Assuming that the purchasers from Tristram B. Allen need not search anterior to the date of the assignment to him in January, 1884, it is still an issuable fact whether she did not have actual knowledge of the transfer to the Stationers’ Company. It is also possible to show that the consideration paid by Mrs. Bennett was not what is shown in law as bona fide. The Stationers’ Company aver these facts to exist, and the only proper tribunal to determine the facts is a court of law.

' It is entirely unreasonable to put the contest upon a register of deeds who has no interest in the question and who is acting under the record as these parties have made it.

The order should be affirmed, with costs.

Dykman, J., Concurs; Pratt, J., dissents.

Pratt, J.

(dissenting)—Appeal from an order denying a motion for a peremptory writ of mandamus to compel the register of Westchester county to accept a satisfaction piece of a mortgage recorded in his office.

The defendant is bound to discharge the general duties imposed by statute on county clerks respecting the recording of written instruments relating to land in his county. In respect to the discharge of records, the statute (1 R. S., 761, part 28) provides: “Any mortgage that has been registered or recorded, or that may hereafter be recorded, shall be discharged upon the record thereof by the officer^, in whose custody it shall be, whenever there shall be presented to him a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged or proved and certified, as hereinbefore prescribed, to entitle conveyances to be recorded, specifying that such mortgage has been paid or otherwise satisfied and discharged.”

It will be observed that this provision differs considerably from those which relate to the recording of conveyances. The recording officer must be satisfied that the satisfaction piece has been signed by and is properly proven as the act of the mortgagee or his assigns. It would, therefore, seem that the recording officer ought to require recorded evidence of the title of the person claiming to be an assignee of a mortgage before he can be compelled to take the risk of recording the satisfaction and entering on the margin of the record of the mortgage the reference to the recorded act by which it purports to have been discharged.

In this case, there is no question relative to the manner of proving the satisfaction piece, or of the identity of the party who signed it, with the assignee of the legal title of the mortgage. It is claimed simply that an instrument appeared on record showing that another party, who had not joined-.in the satisfaction piece, had an equitable interest in the mortgage. Hart had given his bond to the executors of Allen, secured by his mortgage (in which his wife joined), dated June 25, 1872, recorded June 27, 1872, for $5,000. While the legal title to this bond and mortgage stood in the executors, the son of their testator, assuming to have an existing “ interest ” in this mortgage, executed an instrument, dated September 12, 1883, purporting 'to assign “a part of his interest” in the mortgage to the Stationers’ Board of Trade, to hold the same to the amount of $400, and made the executors his attorneys, with power to assign and transfer that interest to that extent in the bond and mortgage, releasing the executors pro tanto, and requesting them to pay $400 to the board of trade, with the same force and effect as if that sum had been paid to him. There is no suggestion that the executors ever had possession of the bond or mortgage; on the contrary, it would appear that they never did act upon or recognize it any way; for, thereafter, and on the 24th of January, 1884, they executed an assignment of the bond and mortgage to this son, ' which was recorded March 29, 1884. The son thereafter, and on June 2, 1884, assigned the bond and mortgage to Emma E. Burnett, whose assignment was recorded October 1, 1886. She assigned the bond and mortgage to Braker & Ferris, March 9, 1886, recorded April 10, 1886, and they reassigned it to her April 23, 1886, recorded October 1, 1886, on which day the relator, who owned the land, presented her satisfaction, duly proven, to defendant, and offered to pay his fees, etc. Defendant refused to discharge the mortgage of record, or to accept said satisfaction piece for any purpose, on the ground that there appeared to he an outstanding interest in the mortgage in the board of trade, as assignee of a part thereof.

It may be observed, at the outset, that the board of trade could never claim more than $400 interest in this mortgage in any event, and that Emma E. Burnett’s title and right to give satisfaction, pro tanto, the balance cannot be questioned. It is, therefore, difficult to see why it was not the duty of the register to have, at least, accepted the .satisfaction piece and recorded it; and I cannot see why it was not his duty to have entered a reference to it on the margin of the record, and there might, perhaps, be some question whether or not the register was obliged to make any such entry until the discharge was complete. I think, however, he ought to have received the satisfaction piece and made the entry referring to it. It is assumed that the discharge must be accomplished, if at all, by the acts of both parties •claiming under the mortgage. Hence, it is assumed that there must be an entry to two satisfaction pieces; and if so, I fail to see why it was not the purpose of the statute to require an entry or entries to meet the emergencies which may arise. Certainly the register had no right to require the joint act of Emma E. Burnett and the board of trade in one instrument before he could legally relieve the owner of the land to any extent.

But this application was for a peremptory mandamus to •satisfy the mortgage in toto', and, therefore, it may be said that unless the relator was strictly right in his entire application, it was within the discretion of the special term to refuse to grant this writ for any purpose. This brings us to the question whether or not the board of trade was “an assignee of mortgage” to any extent. As bearing on this inquiry, it may be observed that it does not claim to be the .assignee of any part of the legal title. It now claims to hold only as an equitable owner pro tanto. Upon this point I regard it as entirely clear that so long, as least, as the executor held the legal title to the bond and mortgage, the so-called assignment by the son was wholly inoperative to create any interest in the mortgage or bond. He had no title to or in this particular asset which he could assign. How could he have embarrassed the proceedings of the executors in the administration of their trust by selecting this or that particular asset as the subject of his transfer? If he could thus have chosen one asset, why not another? This is a very different thing from assigning a part of the distributive share of the estate. Besides that, the instrument executed to the board of trade by the son seems to •contemplate that it shall not of itself be operative to pass .any estate in the mortgage. On the'contrary, the operative assignment was to be by the executors under the power thereby given to and the request made upon them; at least, it would seem to be necessary that there should have been some ratification of this son’s attempt to reach this particular asset before the board of trade could acquire any interest in it. It would seem, therefore, that no estate in this bond and mortgage passed to the board of trade by the son’s so-called assignment.

Its claim must, therefore, rest upon the point that the son’s after-acquired title inures to its benefit by way of estoppel—feeding the estoppel, as it is sometimes expressed. But that can only happen by virtue of a covenant of warranty or other covenant for title or quiet possession (McCusker v. McEvey, 11 Am. Rep., 295; Doe & Potts v. Dowdall, id., 757) in cases of assignment, and the same principle seems to be recognized in our own courts by the late Justice Lott in House v. McCormick (57 N. Y., 320-1). It would, therefore, seem that the entire legal title to this bond and mortgage passed under the executor’s assignment to the son, and so on down to Emma E. Burnett, so that she owned the entire estate therein.

We think it must be held that the relator’s remedy was by mandamus, and that he was entitled to that relief to this extent, at least, viz.: That the register should have been required to accept the satisfaction piece, to record it and make an entry upon the margin of the record of the mortgage of the discharge pro tanto.

A suit for damages would scarcely be regarded as an adequate remedy for the owner of land who is entitled to have the record of his title cleared under such circumstances as these.

We think, therefore, that the order should be reversed, but without costs, and that it should be remitted to the special term to proceed in the premises upon usual notice as shall then seem best for the determination of the questions, whether it be by granting the peremptory writ to the extent here indicated and denying the motion without prejudice as to an absolute discharge, or to allow an alternative writ which shall cover both points.


text:
    People ex rel. James W. Slaight, Resp’t, v. Jefferson Potter, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Witness—Reasonable time to obey subpiena—When excused.
    A. person subpoenaed to attend forthwith as a witness has a reasonable time to obey by means of ordinary methods. A witness is not bound to wait after the court has adjourned the trial of the issue in which he is subpoenaed. Pratt, J., dissenting.
    Appeal from an order punishing defendant for contempt for not obeying a subpoena.

      F. B. Oates, for resp’t; JD. Cameron, for app’lt.
   Barnard, P. J.

The right of a party to subpoena a Witness, when the subpoena is returnable forthwith, is undoubted. Still the witness in such a case is to be considered. He must be allowed time to obey by means of ordinary methods. The witness was subpoenaed at Green-point, about 11:30 A. m., of June 17, 1886, to appear at the court house in Brooklyn forthwith. It was a journey of about an hour and a half. The witness promptly obeyed and when he arrived at the court house the court had adjourned. It seems that the judge remained in the court room after the adjournment. ■

The witness, when he was informed that the court had adjourned, returned to his home. Some hour or more thereafter the plaintiff’s attorney caused the relator to be called by the calendar clerk. The witness failed to answer because the court had adjourned, at least so far as the trial of issue was concerned.

The witness was not bound to wait after that time.

The witness should not, therefore, be deemed to be- in contempt, and the order should be reversed with costs .and disbursements.

Dykman, J., concurs; Pratt, J., dissents.

Pratt, J.

(dissenting)—This is an appeal from an order finding the appellant guilty of contempt of court in failing to obey a subpoena to attend as a witness in an action about to be tried.

The service of the subpoena and the fact that the defendant was called as a witness and failed to appear is proved beyond question.

There seems to be no irregularity in the proceedings. The Code, § 2269, provides two methods for the trial and punishment of contempt; first, by an order to show cause prosecuted in the action (secs. 2273, 2283) and by an attachment prosecuted as an original special proceeding against the accused and should be on behalf of the people. Section 2273-2281. It was in the latter proceeding that the defendant was prosecuted and fined.

The proceeding involved the question of fact as to the willful disobedience of the subpoena by the defendant. We think it was properly disposed of by the judge who granted the order at special' term.

The defendant claims that he was informed by his counsel that the cause had been adjourned till the following week. This furnishes no excuse for the disobedience of the order. The order to show cause why the defendant should not be punished for his contempt, and the decision thereon, furnish no defense to this proceeding. It was not res adjudicata, being based upon the disobedience of another and different subpoena entirely separate and distinct from the present proceeding.

The proof was sufficient to establish that the defendant willfully and negligently failed to appear and that constituted a contempt, and the defendant was thereby made hable for the damages sustained by the plaintiff thereby.

People v. R. and S. R. R. Co., 76 N. Y., 294. Section 857 Code of. Civil Procedure. There was no irregularity in the proceedings. It was proper for the relator to read affidavits in rebuttal of the answer and affidavits of the defendant. Smith v. Smith, 14 Abb. Pr., 130 and 468.

We think the order should be affirmed, with costs and disbursements.


text:
    Josephine M. L. Fleet, Resp’t, v. Charles H. Kalbsfleisch et al., Appl’ts.

      (Supreme Court, General Term,, Second Department,

      Filed February 15, 1887.)

    Taxes And assessments—When and to what extent a lien on land— Laws 1863, chap. 228.
    The cost of certain improvements in a city was to be collected in twenty annual installments. Each of these installments was decreed to be a part of the tax on said land for the general expenses of the city. Feld, that no portion of the assessment therefor became a lien on the land until the portion thereof was added to the tax rate of the year and only the yearly installment then became a lien when the supervisors signed the tax levy.

      E. B. Kissam for resp’t; Bergen & Dykman, for app’lts.
   Barnard, P. J.

If the improvement under chapter 228, Laws of 1863, had been done under state authority, upon the credit of the whole city and a tax of five per cent of the gross amount had been directed to be raised by taxation yearly, there would be no serious question but that the land in question would have been free from lien. If the bonds of the city had been authorized for the improvement, to be repaid by taxation at the rate of five per cent a year, the result would not have been different. By the law in question a district assessment was created and the total cost of the work was to be imposed upon this district. Bonds of the city were given and the total cost was to be collected in twenty annual installments. Each of these installments was decreed to be a part of the tax on said lands for the general expenses of the city. It seems plain to me that no portion of the assessment became a lien on the land until the portion thereof was added to the tax rate of the year. The assessment was spread over twenty years, a district of assessment was created and the basis of taxation was established, but only the year installment became a lien technically so called when the supervisors signed the tax levy.

Assuming, therefore, that the original decision was based upon the illegality of the assessment, the judgment itself was right.

The time is too long and the neglect too great to justify the application. The case was tried in 1876, and decided at once. The assessment was held legal in 1877. The judgment was silently accepted. No formal decision was made and the executors and apparently Mr. Fleet acquiesced in it. The executors had paid out so far, that if this assessment is put on the estate they will be losers.

The motion should therefore be denied for the long delay Judgment reversed upon condition that the Powers Street assessment is paid by the executors with interest as required by the law imposing the assessment.

Pratt, J., concurs._ .


author: Pratt, J.

text:
    John Faherty, Resp’t, v. Schuyler Steam Tow Boat Line, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Practice—Right to amend—Change of venue—Code Civ. Pro., § 542.
    The court has no power to allow the summons and complaint to be amended by changing the venue, except within twenty days after they were served. Following Rector v. Ridgewood Ice Company, 101N. Y., 656.

      E. A. Brewster, for resp’t; W. Frothingham, for app’lt.
   Pratt, J.

As an original question we incline to affirm the disposition of the motion at the special term. The change in the phraseology of par. 417 seems only to indicate that plaintiff must specify his desire about venue in summons, whereas under the old code he need not have done that. The word designate is used of the matter of venue in the complaint (par. 481), and the same word is used in all the subsequent references to the same point (paragraphs 985, 987 and 988). It is a stronger and more suggestive word than desire. Again the right to demand a change is predicated in the designation in the complaint, and not in the desire specified in the summons.

When the demand is made the defendant must do just what the plaintiff did in the summons, i. e., specify what he requires, which is one of the meanings of the term desire, except that he must specify a proper county, while plaintiff might specify any county, and the action could be properly tried in the county thus specified by plaintiff in his summons unless defendant made the demand, and plaintiff consented or the court ordered a change. The word may is used of the action of the court, while must is used of the other cases. And again, if the summons is to control, why require any designation in the complaint at all ?

Besides this, the old rule was according to the plaintiff’s contention; and, generally speaking, the code was intended only to express the judicial interpretation of the old 'rule. And again, the only right which defendant gained by Ms demand was to have the action tried in a proper county. His mere specification of the county which he desired would not seem to render the county of plaintiff’s residence an improper county, or make that of the defendant’s the only proper county.

But Rector v. Ridgewood Ice Co. (22 Week. Dig., 551; affirmed 101 N. Y., 656), seems in point and to rest on a change respecting the right to amend, as of course within twenty days, under section 542, i. e., the amendment must be without prejudice to the proceedings already had. It assumes that the demand for a change to the county specified by defendant in his demand is a proceeding giving a right. That does not seem to us to be the purpose; for if the demand was not followed by consent (under par 985), the court does, not seem bound to make the order. It may do it (par. 981). Why go to the court at all to effect the change if the demand resulted in a right ? It may be that the case was affirmed on a question of discretion by the general term, but as briefly reported, it seems .to hold the right to amend, as of course, is abridged as matter of law, that it was too late in that case as matter of law; and, if so, it was too late in this one.

We, therefore, reverse the order, with costs, on the quesr tian of power above, following what seems to be the rule established by the affirmance of the Rector case. But the order should especially show tMs fact so that plaintiff may have the benefit of the point in the question of power.

We exercise no discretion.


text:
    William P. Willis et al., Resp’ts, v. Aurelius S. Sharp, Ex’r, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Practice—Executors and administrators—Demurrer—Code Civ. Pro., § 1814—When suit properly brought against executor in his representative capacity.
    The complaint in an action stated that the defendant was sole executor of testatrix, who was his wife; that her will directed expressly that a certain business be carried on by her executors for the benefit of her son; that s.uch business was carried on under the will by the defendent as such executor; that in that capacity he purchased goods necessary for said business and used in it; that he is personally insolvent; that the estate is solvent, and that the plaintiffs have no way of obtaining payment except out of the funds of the estate. Upon demurrer, held, that it stated facts sufficient to constitute a cause of action.

      W. S. Logan, for resp’ts; A. V. Campbell, for app’lt.
   Pratt, J.

This is an appeal from a judgment entered overruling a demurrer.

The complaint states that the defendant is the sole executor of Mrs. Sharp, who was his wife; that her will directed expressly that the business be carried on by her executors for the benefit of her son; that such business was carried on under the will by the defendant as such executor; that in that capacity he purchased goods necessary for such business, and used in it; that he is personally insolvent; that the estate is solvent and that the plaintiffs have no way of obtaining payment except out of the funds of the estate.

The demurrer is upon the ground that the complaint does not state facts sufficient to constitute a cause of action.

This is not an action at law to charge an executor personally upon a contract, but a suit in equity to charge an estate which has received the use and benefit of the goods in a business authorized to be carried on by the testatrix.

The will provides, in. paragraph fourth, as follows: “It is my wish and I hereby direct that after my.death some legitimate business shall be carried on by my executors for the benefit of my said son Harry, and that my said husband shall be retained as the manager thereof. ” The debt in question was contracted in pursuance of this provision of the will, in a business carried on for the benefit of the estate. By carrying on a business, he created a charge upon the estate.

It was stated in the prevailing opinion in the case of Ferrin v. Myrick (41 N. Y., 315). “It ought to be added that, in case of fraud or insolvency of the executor, an equitable cause of action would probably be thereby created against the estate which could be enforced in behalf of the creditor and would enable him to maintain a claim against against the estate directly.”

In this case the contract was with the executor solely, as such, the executor had power under the will to make it, and the estate received the benefit of it. In no sense was it a claim against the executor individually, but it was a charge upon the estate in his hands. The suit was, therefore, properly brought, under section 1814 of the Code against him in his representative capacity.

Considering the insolvency of the executor, in connection with the other facts stated in the complaint, the plaintiff was clearly entitled to relief against the estate of the testatrix.

Can it be doubted, under this law, that the executor would have the right to carry on the business and to charge to the estate such money as he should properly pay out for its benefit ? If this be so, then the estate ought to pay the debt; then what matters it, whether it pays it directly to the creditor or by reimbursing the executor ? To hold that the executor was individually hable only, would permit the executor to carry on business for the benefit of the estate and the legatees, and leaves the creditors without remedy. Such a result cannot be tolerated in a court of equity. The case of Austin v. Munroe (47 N. Y., 360,) has no application to the present case as that was a strictly legal action based on the executors contract and no insolvency was alleged.

We think the complaint stated a good cause of action in equity, and that the demurrer was properly overruled.

Baenaed, P. J., concurs; Dykman, J., not sitting.


text:
    The People, Resp’ts, v. W. T. Monteverde, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 15, 1887.)

    1, Public nuisance—What necessary constituent oe—Penal Code, § 885.
    That a person may be adjudged guilty oí the commission of a public nuisance there must be an unlawful act or omission brought home to him. Penal Code, § 385.
    3. Same—Conviction op—When improper.
    Where the defendant owed no duty which he omitted to perform and did no unlawful act Held, that he was improperly convicted of the commission of a public nuisance.

      J. Fleming, for the people; B. W. Downing, for app’lt.
   Dykman, J.

The defendant was indicted for a public nuisance, and when he was arraigned he interposed a demurrer to the sufficiency of the indictment, which was overruled He was then tried upon a plea of not guilty and convicted, and the case comes here upon the indictment, the charge of the trial judge and the exceptions thereto, without the testimony brought forward on the trial.

The serious question in the case is presented by the indictment, which fails to charge the defendant with the ■commission of any unlawful act, or the omission to perform .any duty, and in this state no person can commit a public nuisance without being guilty of an unlawful act or omission. Penal Code, § 385.

The indictment charges that the defendant, on the ninth day of May, 1886, and on divers other Sundays, was the owner, occupant, proprietor or lessee of a certain park and premises in Queens county, at which time and place he wilfully," wrongfully and unlawfully did permit and allow ■a large number of people to assemble to play and witness a game of base ball, and then and there afiowed and permitted bad language and great noise, confusion and uproar.

There is no charge that he was present at the game or was aware of the assemblage of the spectators, or that he induced the people to play or witness the game, or derived any benefit therefrom. Every allegation in the indictment may be true, and yet the defendant be perfectly innocent of any crime. If the people invaded the premises of the defendant and played the game, and he found it beyond his power to prevent them and walked away, he permitted and allowed the. transaction by not preventing the same, and yet such conduct on his part would not constitute the crime of nuisance.

He owed no duty which he omitted to perform, and he did no unlawful act. There must be something more than mere negative tacit admission or allowance to constitute the crime of nuisance. There must be some unlawful action or participation of the accused, and that element is entirely wanting in this indictment.

The demurrer to the indictment should have been sustained, and the conviction of the defendant thereon is erroneous, and should be reversed.

Pratt, J., concurs; Barnard, P. J., dissents.