author: Gray, J.

text:
    John C. Pegram et al., as Trustees, etc., App’lt, and Resp’ts, v. The New York Elevated Railroad Company et al., Resp’ts and App’lts, Impleaded, etc.

      (Court of Appeals,

      Filed October 8, 1895.)

    1. Injunction—Elevated railway—Equity.
    Where, in an action against an elevated railway, the main relief sought is an injunction, restraining the company from maintaining and operating its road to the prejudice of the abutting property, the including in the prayer for relief of a demand for past damages does not affect or change the equitable nature of the action.

      % Same—Conveyance of fee.
    Where, upon the trial of such an action, it appears, by proof of the plaintiff's conveyance of the fee of the premises to a third party, that the legal title is no longer in the plaintiff or in any one before the court, he is deprived of his right to insist upon any relief by way of injunction against the company. Such result is not prevented by a reservation in such conveyance of a right to the damages which had been, or might thereafter be, caused to the property, because of the construction, maintenance and operation of the road, with the right to use the grantee’s name, either in the release of the easement in the street to the company or in any suit against it.
    3. Same—Jury—Waiver.
    Where the company, with knowledge of the existence of the plaintiff’s conveyance for a period long before the trial, takes no step but suffers the plaintiff to proceed and give evidence upon the trial in equity without objection, it waives any right to a trial by jury of the question as to past damages.
    4. Same—Retaining jurisdiction.
    In such ca'-e, the trial court, having acquired jurisdiction both in law and equity, may settle the litigation between the parties, so far as it is entitled to do so, by an award of the rental damage sustained by the plaintiff while holding the legal title to the premises.
    5. Same—Damages.
    The determination of the trial court as to the amount of damages sustained by the abutting property, when sustained by the general term and made without a gross violation or abuse of principle, should be left undisturbed on appeal to the court of appeals.
    Cross-appeals from judgment of the general term of the superior court of the city of New York, entered upon "an order which affirmed a judgment entered upon a decision of the court on trial at an equity term.
    The plaintiffs brought this action in equity, to restrain the defendant railroad companies from maintaining and operating a railroad in front of the premises known as Nos. 202 and 204 Pearl street and No. 113 Maiden lane, in the city of New York; and they asked, also, for a judgment against the defendants for the damages sustained to the premises.
    When the cause first came on for trial, at an equity term of the superior court of the city of New York, it appears that the defendants put in evidence a-deed, made by the plaintiffs after the commencement of their action, by which the premises in question were conveyed to one Schortemeier and a motion was made to strike the case from the equity calendar. The trial judge so ordered and his order being affirmed at the general tern, the plaintiffs appealed to this court therefrom. Upon the consent of. the defendants, however, an order was made in this court reversing the order of the superior court. When the present trial came on at an equity term again, no objection was made by the defendants to its proceeding there and nothing had been done before the commencement of the trial to obtain a trial by jury of the issues in the case. Upon the present trial the plaintiffs put in evidence the conveyance of the premises described in the complaint which had been made to Schortemeier. It contained the following provision :
    “ Said parties of the first part reserving to themselves and their successors all damages and claims for damages now or hereafter caused said property or the present and future owners thereof against the Manhattan Railway Company and the New York Elevated Railroad Company and their successors on account uf the construction and the present, past and future maintenance and operation of the elevated railroad in Pearl street and Maiden lane, and the right to convey or release in the name of the said party of the second part or his assigns to said railway companies, or either of them, or their successors, the easements in said streets now occupied and invaded by said railway companies, or either of them, and also the right to use the name of the party of the second part and his assigns (upon indemnifying them against costs) in any suit now or hereafter commenced against said railway companies, on account of the maintenance and operation of said elevated railroad in said streets, as now constructed, which right to use his and their names in such release, conveyance or suit, the party of the second part hereby contracts- for himself and his assigns to allow to the parties'of the first part.”
    The trial proceeded and upon the conclusion of the plaintiff’s case, the defendants moved to dismiss the complaint upon the ground that the plaintiffs had no interest in invoking the action of the court, inasmuch as they had no estate or right in the land and would not be capable of taking any benefit by injunction, if granted. The motion was denied and then the defendants gave their evidence in defense of the action. A judgment was ordered which awarded the plaintiffs the sum of ¡¡¡>’736.00 a year for the period of six years before the commencement of the action and until July 11th, 1889, which was the date of the conveyance to Schortemeier, as the damage inflicted upon the rental value of the-premises. The injunction asked for in the complaint was denied as were any damages sustained to the premises subsequent to July 11th, 1889. Both parties appealed to the general term; where the judgment entered upon the order of the trial judge was affirmed and both parties now appeal to this court. The plaintiffs appeal because of the refusal of the trial court to grant their demand for an injunction against the maintenance and operation of the railroad, or any damages to the rental value of the premises from July 11, 1889. The defendants appeal from so much of the judgment as awarded any damages to the plaintiffs.

      Roger Foster, for pl’ffs; Brainard Tolies and Julien T. Davies, for def’ts.

       Affirming 59 St. Rep. 576.

   Gray, J.

So much has been written in this court, in the course of the litigation which has grown out of the efforts of abutting property owners to obtain from the elevated railroad companies compensation for the deprivation of those easements of light, air and access, which were appurtenant to their property, that I deem it unnecessary in the present case to say more than what is needful in order to dispose of the questions which the cross-appeals have raised. The general principles underlying these equitable-actions have been elaborately discussed in many opinions and the right of the court, after deciding the complainant to be entitled to relief by way of injunction, to proceed to assess the damages sustained in the past, is firmly settled. If the court, sitting in equity, has gained jurisdiction of an action, wherein the main relief sought by the complainant is an injunction against the defendant, it will retain its control of the cause, generally, and, if it has happened that the acts of the defendant, which have been complained of and which are sought to be restrained, have caused, and will continue to cause, damage, the court may proceed in its own way to assess the damages sustained and to award judgment for them, as incidental to its grant of equitable relief by way of injunction. The court having the parties before it and, in order to ^prevent a multiplicity of suits and to settle up the whole matters in dispute, will so decree as to finally settle the whole controversy between them. When, as in the litigation connected with these elevated railroads, the court proceeds further and fixes the amount of the damage sustained to the fee of the property, which the defendant companies may pay in order to obviate the injunction, it does that which is a matter, not of strict legal right, but of equitable procedure and remedy, and which is resorted to by the court, that the corporation may acquire that legal right to maintain and operate its railroad in front of the complainant’s property, which' it might h.ave acquired, had it proceeded in the beginning to condemn the property owner’s rights under the law of eminent domain. The controlling idea, in the assumption by a court of equity of the authority to make a complete decree in such cases, which shall finally settle the respective rights and obligations of the parties, is, plainly, that all the parties are before it and that its decree will be effectual because operating upon all the parties who have any interest in the subject-matter of the litigation.

In the present case, when the plaintiffs commenced this action their complaint set forth but a single cause of action, which was. one purely for a court of equity ; inasmuch as the main relief ■sought was an injunction against the defendants, restraining them, from maintaining and operating their elevated railroad to the prejudice of the abutting property. Their demand for past damages, included in the prayer for judgment, did not affect or change the equitable nature of the action, for reasons which heretofore have been set forth in Lynch v. Met. E. R. Co., 129 N. Y. 274: 41 St. Rep. 541, and in subsequent cases following in the line of that decision. The action, when it reached the stage of a trial, was one which, on the pleadings, was cognizable by a court -of equity; but when it appeared, by the proof of the plaintiff’s conveyance of the fee of the premises to a third party, that the legal title was no longer in the plaintiffs, or in any one before the court, a condition of things arose which deprived the plaintiffs of the right to insist upon any relief by way of injunction against the defendants; because, in fact, they had no rights which the defendants could injure, or which an injunction could protect; unless, as the ■ plaintiffs claim, the reservation in the deed to Schortmeier had the effect to reserve to them the easements appurtenant to the premises, or, in some way, to give to them an equitable standing in court with respect to them, which would entitle plaintiffs to continue their action and to insist upon their demand for equitable relief against the defendants.

The plaintiffs were not the owners of the fee of the land occupied by the street and, when they parted with the legal title to the property abutting upon the street, they parted with every legal estáte or interest

In the reservation in the conveyance to Schortemeir, I find merely a right reserved to the plaintiffs to have all the damages which had been, or might thereafter be, caused to the property, because of the construction, maintenance and operation of the elevated railroad; with the right to use the grantee’s name, either in the release of the easement in the street to the railroad companies, or in any suit against them. If it could be assumed that the language of the reservation in the deed was sufficient to assign •easements appurtenant to the property, such assignment would be absolutely ineffectual. The easements of an abutting owner in the street, which are invaded by the construction, maintenance and operation of an elevated railway, are appurtenant to his premises and, as it was said in Kernochan v. N. Y. E. R. R. Co., 128 N. Y., at page 568; 41 St Rep. 110, “in the nature of things they are indissolubly annexed thereto until extinguished by release or otherwise. They are incapable of a distinct and separate ownership.” The right to enjoin the continuance of the trespass by the defendants upon those easements, could not be reserved upon the sale of the property. The right could only be possessed and enforced by its owner. Pappenheim v. Met. Elevated R. R. Co., 128 N. Y. 486; 40 St. Rep. 445. He is the person solely interested in the preservation of the estate in the abutting property in all its integrity, with all the incorporeal easements, or rights and privileges appurtenant thereto and he is the only person whom the law could regard as injured by a continuance of acts on the part of the defendants, which affect property and prevent its full and fair enjoyment in those ways which would be possible, if the .street were used as originally intended.

Hor can we, as the plaintiffs urge, for the purposes of the suit, hold that equity will consider the transaction as if no conveyance had been made and as though the title to the property still stood in the plaintiffs’ name. The grant of the fee to Schortemeier was complete and the reservation did not operate to lessen that grant, while purporting to reserve to the vendors rights against the defendants as trespassers upon the easements which were appurtenant to the property sold. The situation brought about by the plaintiffs’ conveyance of the fee of their property to Schortemeier was that the legal title was not represented before the court and could not be bound by any decree which the court might make. There was a third person not a party to the suit, in whom were vested that legal title and the right to enforce or protect the easements appurtenant to the property. Those easements had never been conveyed, as the effect of the reservation in the conveyance. Hor had they been, in any sense, extinguished thereby. They remained, in all their integrity, still appurtenant to the property. But, as between the plaintiffs and Schortemeier, the reservation in the conveyance would, upon its face, operate to retain in, or confer upon, the plaintiffs certain rights which Schortemeier could not, or ought not to disregard. However strong the language of the reservation, or however effective might be deemed Schortemeier’s testimony upon the trial to preclude him from thereafter claiming in derogation of the rights reserved to the plaintiffs in their conveyance to him, nevertheless, it is certainly apparent that a decree in an action to which he was not a party would not be conclusive upon him. There need be no question as to the right of the parties to agree to make such a reservation as this; but the effect of it, while certain in so far as it could not sever the easements from the laud, was a question between them, in the disposition of which the concern of the defendants was that in any action relating to a damage to the property for invasion of its easements the legal owner should be bound by the result. The defendants, clearly, are entitled to have the holder of the legal title to the abutting property bound by a decree, which permits them, as a condition of being relieved from the injunction, to acquire the legal right of maintenance and operation by the payment of the sum of money fixed by the court as the due compensation to be made. If the plaintiffs had brought in Schortemeier as a party defendant in the action, the court would have been in a position to adjust the equities and rights of all the parties and to render a complete decree, which would have been binding upon each. The equities created or arising between the plaintiffs and Schortemeier, through the reservation in the deed, can only be effectively adjusted by his presence as a party to an action which had that as one of its objects. Standing, as the holder of the legal title, outside of the action, if the reservation in the plaintiffs’ conveyance to him is operative to any extent, it may be deemed to make him, as the holder of the legal' title, a trustee for the plaintiffs with respect to any damages which might, •be recovered of the defendants, for the injury occasioned to the rental and fee value of the property, through an action brought in his name, or wherein he was joined as a party. The trial court, therefore, in my judgment, committed no error, in denying to the plaintiffs relief by way of injunction and in refusing to award damages from the date of their conveyance to Schortemeier. The-result in the trial court did not necessarily deprive the plaintiffs of whatever legal or equitable rights were conferred by the reservation in their deed and, in a proper action, they remain to be enforced, unimpaired so far as the result of this action is concerned.

Witli respect to the appeal taken by the defendants, little need be said. In my judgment they waived any right to the trial by jury of the question as to past damages. Had they deemed such a trial necessary, or their legal right, they should have taken steps in that direction, either by way of supplemental pleadings, or by way of some timely objection to proceeding with the trial in equity. Although knowing of the existence of the plaintiffs’ conveyance for a period long before the present trial, they took no-step and they suffered the plaintiffs to proceed and to give evidence upon the trial without objection. Thereby they must be deemed to have waived the right to a jury trial; and it was too late to obviate the effect of that waiver by the motion to dismiss the complaint, or by the request for rulings of law at the conclusion of the trial. The superior court had jurisdiction, both in law and equity, and it was competent for the trial judge, sitting in equity and without-objection being made to the trial in that, part of the court, to retain control of the action and, within the rules of law and according to the proofs, to give the plaintiffs a judgment for the damages sustained in the past. Had the objection been raised in a proper way, or at the proper time, I think the defendants could have insisted upon a trial upon the law side of the court, as to the damage which the plaintiffs bad sustained up to the time of the conveyance of the property. But not having done so, it was not error for the court to settle the litigation between the parties as far as it was entitled to do so, by the award of the rental damages sustained by the plaintiffs while holding the legal title to the premises.

With respect to the amount of damages which the trial court awarded to the plaintiffs, I think there is no occasion to interfere with the judgment below. There was evidence showing that the occupation of the street by the defendants had injured the fee and rental values of property, and there was evidence respecting the property in question, which justified the award made to the plaintiffs. It cannot be said that the facts and figures shown by the evidence furnished no ground for the inferences upon the question of damages sustained to the fee which the trial court drew and which the general term has sustained.

The determination of these questions is not without difficulty and that it should be left undisturbed, when made without a gross violation or abuse of principle, is the wise and settled rule. The judgment appealed from should be affirmed; but, under ■ the circumstances, without costs to either party.

All q on cur.

Judgment affirmed.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    The People, Resp’t, v. Daniel W. Powers, Individually and as Trustee, etc., App’lt.

      (Court of Appeals,

      Filed October 8, 1895.)

    1. Will—Construction.
    Where the will of a decedent, who died in 1898, gave to a trustee a portion of her estate, accompanied by the following words: “ This gift and devise is made upon the trust and confidence reposed in said trustee that he will dispose of the said property among the charitable and benevolent institutions and corporations in the city of Rochester as he shall choose, and such sums and proportions as ho shall deem proper,” the trust attempted to be created is uniuforceable, for the reason of a failure to designate a beneficiary or to designate a class or kind of beneficiary to whom distribution is practicable, or that can with reasonable certainty be identified and ascertained. . ,
    8. Same—Act of 1893.
    In such case, chap. 701 of 1893 has no application.
    Appeal from an interlocutory judgment of the general term of the supreme court in the fifth judicial department, entered upon an order which affirmed an interlocutory judgment of the special term, overruling defendant’s demurrer to the complaint.
    The action was brought against Daniel W. Powers, personally, and as executor of, and trustee under, the will of Martha Dunlap, deceased, and the following corporations: The Rochester City Hospital, the Rochester Home for the Friendless, the Industrial School of Rochester, the Rochester Orphan Asylum and the Rochester Female Charitable Society.

      George F. Danforth, for app’lt; Theodore Bacon, for resp’t.

       Reversing 64 St. Rep. 879.

   Haight, J.

This action was brought to compel the defendant Powers to account for the estate of Martha Dunlap in his hands, and that he, as executor and trustee, be adjudged to pay over to the five defendant corporations, and to such others as may come in and duly establish their claims, all the estate which, upon such accounting, shall be found applicable thereto under the provisions of the will of Martha Dúnlap, etc. Powers interposed a demurrer to the complaint upon the grounds, first, that the complaint does not state facts sufficient to constitute a cause of action, and, second, that there is a defect of parties because it is not alleged that ‘‘all the charitable and benevolent institutions or corporations in the city of Rochester,” referred to in the complaint, are plaintiffs or defendants in the action.

It appears from the complaint that Martha Dunlap died on the 15th day of May, 1882, at the city of Rochester, leaving an estate of real and personal property amounting to $100,000 ; that on the 22d day of March, 1882. she made her last will and testament, in and by which she bequeathed certain specific legacies to certain persons named, and created a trust for the benefit of her sisters, Mary Dunlap and Nancy Dunlap, during their lives, and then, by the 12th clause of the will, provided as follows: “I give, bequeath and devise unto Daniel W. Powers, of Rochester, N. Y., all the property given and devised by the 11th clause of this will which shall remain after the execution and termination of the said trust at the death of the said Nancy and Mary Dunlap. This gift and devise is made upon the trust and confidence reposed in the said Daniel W. Powers, that he will dispose of the said property among the charitable and benevolent institutions or corporations in the city of Rochester as he shall choose, .and such sums and proportions as he shall deem proper.” Upon her death the will was duly admitted to probate by the surrogate of Monroe county as a will of real and personal property, and letters testamentary were issued to Powers. Mary Dunlap and Nancy Dunlap have since died. It is alleged that each of the five corporations are domestic corporations organized and incorporated under the laws of the state of New York for charitable and benevolent purposes, located in the city of Rochester; that Powers had neglected and refused to distribute the estate of Martha Dunlap or any part thereof among them, and . that notwithstanding such neglect and refusal, the defendant corporations have hitherto neglected or refused to institute any proceedings in the surrogate’s court of Monroe county or elsewhere for the establishment and enforcement of the trust.

For the purposes of this case we shall assume that the testatrix in and by the 12th clause of her will undertook to create a trust, and that she had no intention of devising or bequeathing any part of her estate to Powers individually. The question is thus presented as to whether the trust is enforcible, or void for indefiniteness. In the consideration of this question certain general principles must be borne in mind. The provisions of the will must be considered as of the time of the testatrix’s death, and under the law as it then existed. The Law of 1893, chapter 701, has no application, for it was not within the province or power of the legislature to change vested rights or persons or parties in property. White v. Howard, 46 N. Y. 144; Dammert v. Osborn, 140 id. 43; 55 St. Rep. 586. Charitable uses are not exempt from the provisions of the statute abolishing uses and trusts except such as are authorized thereby. 1 R. S. p. 727, § 45. The system of charitable uses as recognized in England prior to the revolution, together with the cy pres doctrine available to give effect to trusts for charitable uses without any definite beneficiary has no application in the laws of this state. Bascom v Albertson, 34 N. Y. 584; Holmes v. Mead, 52 id. 332; Holland r. Alcock, 108 id. 312; 14 St. Rep. 761; Tilden v. Green, 130 N. Y. 29, 45, 67; 40 St. Rep. 512; Fosdick v. Town of Hempstead, 125 N.Y. 581; 35 St. Rep. 863. When a donee of a power has been given a discretion to exercise it for the benefit of others he must exercise the discretion, and its execution cannot be delegated to others, and in case he, for any reason, fails to exercise the discretion and the power falls upon the court for execution, the court distributes equally among the whole class in which the donee was authorized to exercise his discretion. 1 R. S. 734, § 100; Hoey v. Kenny, 25 Barb. 396-399; Crooke v. Co. of Kings, 97 N. Y. 421-453. The fact that the trustee is competent and willing to execute the trust does not validate it, for the validity or invalidity of the trust cannot depend on the will of the trustee. And in order to create a valid trust, "there must be a beneficiary designated. It may not be necessary to name him. It will be sufficient if he is so designated or described that he.can be identified. But where the gift to a charitable use is so indefinite as to be incapable of being executed by a judicial decree, the gift is void. Holland v. Alcock, 108 N. Y. 312; 14 St. Rep. 761; Holmes v. Mead, 52 N. Y. 332; Prichard v. Thompson, 95 id. 76; Read v. Williams, 125 id. 560; 35 St. Rep. 909; Levy v. Levy, 33 N. Y. 97.

As we have seen, the trust is that Powers will dispose of the property among “ the charitable and benevolent institutions or corporations in the city of Rochester as he shall choose and such sums and proportions as he shall deem proper.” Charity means one thing, benevolence quite another. Benevolence includes all acts or gifts prompted by good will or kind feelings, and may be entirely independent of any thought or intention of charity. The recipient of beneficiary may be well-to-do and in no need of charity. In England, under the law of charitable uses, bequests for charity have been sustained, whilst benevolent gifts without a ■designated beneficiary have been held to be too indefinite, and therefore, void. Norris v. Thompson, Exrs., 19 N. J. Eq. 307. It is urged, however, that the word “benevolent” 'as used in this will is coupled with the word “ charitable," and that the institution or institutions intended as beneficiaries must be both charitable and benevolent; in other words, that benevolent as here used was intended to mean charitable. This view, we think, we may properly adopt. Powers was then required to dispose of the property among the charitable institutions or corporations in the city of Rochester, either or both, or exercise his discretion in selecting from them. We think we may take judicial notice that in the prominent cities of our state there are numerous organized charities that are not incorporated as well as those that are incorporated. What are they ? City hospitals, homes for the friendless, industrial schools, orphan asylums, aged female societies and children’s homes, are common names in every city with which we are familiar. Again, we have charities connected with nearly every religious denomination and church. Many schools are supported by charity. Then come the social societies, the Masons, the Odd Fellowsi, the Knights of Pythias and numerous others, all incorporated and maintaining institutions of charity. Then there are the benevolent associations, the Ancient Order of United Workmen, Supreme Tent of the Knights of the Maccabees of the World, the Benevolent and Protective Order of Elks and numerous others of like character, organized for the purpose of affording relief to a member or his family under certain contingencies, charitable in nature. Then, if we have the list of corporations and enter the field of unincorporated institutions, we will find the King's Daughters, the Willing Workers and the sewing societies in nearly every circle and society. It will, thus, readily be seen that the including of all of the charitable institutions of a large city, both corporate and unincorporated, as the beneficiaries of the fund, was probably never contemplated or intended by the testatrix, and so including them would devolve duties upon the court which could only be discharged with the greatest difficulty, if capable of execution at all.

The special and general terms appear to have considered the ' case of Power v. Cassidy, 79 N. Y. 602, as controlling in the support of the trust. In that case the bequest was: “ I give to my executors, to be divided by them among such Roman Catholic charities, institutions, schools or churches in the city of New York, as a majority of my executrix and executors shall decide, and in such proportion as they may think proper.” It does not appear to us that the two cases are parallel, or that the decision in one should control the other. The beneficiaries in each case are limited in locality to a single city. In this respect only are the cases parallel. The Roman Catholic is a well-known religious denomination whose societies cover a goodly portion of the civilized part of the globe. The territory is divided into dioceses. It maintains churches, schools, institutions and charities in each diocese, which are under the control and management of a bishop. The Catholic charitable institutions, schools and churches in a city are, therefore, substantially under the charge and management of one man. They constitute a limited and well-defined class by themselves, as distinguished from all other religious or denominational societies, and are easily known and readily ascertained. It was upon this ground, and for this reason, the bequest in that case was sustained. That case was considered to be upon the border line, and in sustaining the bequest the court felt that it was going to the extreme limit of the rule, and, on several occasions since, it has taken the opportunity to say that the rule would not be extended beyond the facts of that case. In the will under consideration very different facts are presented. There is no limitation by class or kind; the only limitation, as we have seen, is as to locality. Roman Catholic charities, institutions, schools, etc., are included with like institutions of every other denomination. Neither are the beneficiaries limited to religious denominations, for all kinds and classes of charities, religious or otherwise, are included.

In the Levy case, supra, a testator devised a farm, together with the residue of his real and personal property, to the people of the United States, or such persons as Congress should appoint to receive it in trust for the purpose of establishing and maintaining on the farm so- devised an agricultural school for the purpose of educating children of warrant officers of the United States navy, whose fathers were dead, as practical farmers; that if the United States refused to accept the bequest, he devised the same to the people of the state of "Virginia for a like purpose, and if the legislature of Virginia declined to accept the trust he then gave it to certain- Hebrew societies, naming them, in New York, Philadelphia and Richmond, with directions for them "to carry out the trust for the benefit of the children of such societies who were between the ages of twelve and sixteen years whose fathers were dead, etc. It was held that the bequest was too indefinite to be valid. Weight, J., in delivering the opinion of the court, says with regard to the trust to the Hebrew societies: “ It is so utterly vague and indefinite that it could not be executed in the English chancery without invoking its cy pres power, a power in case of charity, as has been held by this court, having no existence in the jurisprudence of this state.”

In Holmes v. Mead, supra, a certain parcel of land was "devised to Mead and others to have and to hold the same during the-lifetime of two persons, naming them, and the survivor of them, upon n trust that the same should be used as a place of public worship for the performance of religious offices according to the doctrine and discipline of the Protestant Episcopal church in the United States of America, and upon the death of the longest liver of the two persons named then to convey the same to any trustee who may be authorized by any act of the legislature of the state to ■take and hold such church and premises as a place of public worship, and in case no such act of the legislature is then in force, to convey the same to the rector, wardens and vestrymen of St. Mary’s Church, Beachwood, if such church shall be incorporated under any act of the legislature, and if there be no such incorporation then the said premises to go to his heirs. $5,000 was also ■bequeathed to the trustees to be invested and the income thereof paid annually for the support of the rector for the time being of ■St. Mary’s Church, or for the support of the clergyman of the Protestant Episcopal church employed as a missionary, or otherwise, and who shall officiate therein, with the principal and income to be paid and transferred or disposed of in like manner as the lot of land devised to the trustees is directed to be conveyed or disposed of. It was held that the trust was invalid and could not be executed.

In Prichard v. Thompson, 95 N. Y. 76, the testator bequeathed to his executors the sum of $150,000 upon the trust that they shall distribute and apply the same “to such charitable and educational uses and in such manner as shall be specified and directed in a codicil.” He then declared that it was his purpose to prepare a codicil without unnecessary delay, and provided that in case a codicil should not be executed, that then the bequest was “upon trust to distribute the sum of $150,000 to and among such incorporated societies organized under the laws of the state of Hew York or the state of Maryland, having lawful authority to receive and hold funds upon permanent trust for charitable and educational uses as my said executors, the survivor, or survivors of them shall select for that purpose and in such several sums, not exceeding in any case the amount that such incorporated body is •empowered by law to take and hold upon the use aforesaid, as they, my executors, the survivor or .survivors of them, shall determine.” He died without making a codicil. It was held that the gift was too indefinite to be capable of being executed by a judicial decree; that where a bequest embraces unknown beneficiaries to an unlimited extent so as to render it almost impossible to ascertain their number or character, it caunot be carried into' effect. Miller, J., in delivering the opinion of the court, speaking of the executors, says: “If they are unable, or for any reason fail to perform, it is difficult to see how a court of equity could enforce a performance. It could not well control their discretion or exercise the power conferred in their place and stead, or of the survivors or survivor of either of them. If they refus.e to execute it, or the power remains unexecuted, it is not apparent how the court could make a selection, from the extensive range of societies referred to, of those that should receive the bequest, or of the proportion in which it should be divided. Neither could the court select individuals to perform a duly devolving upon the trustees, who are selected no doubt by reason of personal confidence in their judgment, and their capacity for the task imposed. Another difficulty presents itself as an obstacle in carrying out the trust in question. The beneficiaries referred to, consisting of every corporation within two states of the character named in the will, would be almost innumerable and none of them could claim that any specific portion of the bequest belonged to them. Until selected by the trustees they would have no such interest as would give them a standing to compel an enforcement of the bequest. It is a well-settled and established rule that, where a gift to a charitable use is so indefinite as to be incapable of being executed by a judicial decree, the representative of the donor must prevail over the charity.” Again, he says: “Here no class is designated, and as we have already intimated, if a court of equity should be called upon, or assume to take upon itself the responsibility of carrying into effect the bequest of the testator, it would be obliged to bestow upon every charitable and educational institution within the two states named a portion of the fund in question. This would be a matter of great difficulty if not impracticability, and would inevitably lead to serious embarrassment in the discharge of the duty of disposing of the fund in question. In such a contingency it would seem to be reasonable that the fund should be equally divided among all the institutions named, and thus the right of selection which was intrusted in the judgment, good sense and kindly feelings of the executors as a matter of personal confidence would be of no avail.”

In Holland v. Alcock, 108 N. Y. 312; 14 St. Rep. 761, the bequest was to executors in trust to be applied by them for the purpose of having prayers offered in a Roman Catholic church, to be by them selected, for the repose of the soul of the testator and the souls of his family, and also the souls of all others who may be in purgatory. It was held that the trust attempted to be created was invalid; that there was no beneficiary in existence who could demand the execution of the trust.

In Read v. Williams, 125 N. Y. 560; 35 St. Rep. 909, the bequest was to charitable institutions and in such proportions as the executors by, and with the advice of the testatrix’s friend, Rev. John Hall, D. D., shall choose and designate. After the death of the testatrix the executors, with the advice of Hall, made a written designation of certain incorporated charitable institutions to take the bequest. It was held that under the language used the charitable institutions of the whole world capable of taking by devise or bequest were eligible, and that it was not such a trust as could be carried into execution by the court, and it was, therefore, void.

In Fosdick v. Town of Hempstead, 125 N. Y. 581; 35 St. Rep. 863, the bequest was to the town to keep as a fund for the support of the poor of the town. It was held that the bequest was indefinite and invalid for a want of an ascertained beneficiary, the poor of the town being too general.

In the Tilden case, 130 N. Y. 29; 40 St. Rep. 512, the bequest was to executors in trust, authorizing them upon the organization of the Tilden Trust to convey or apply to the use of the same his residuary estate, or so much thereof as they may deem expedient, but in case such institution should not be incorporated, or if for any cause or reason the executors shall deem it inexpedient to convey the residuary estate or any part thereof, or to apply the same or any part thereof to such institution, he authorized his executors and trustees to apply the rest, residue and remainder to such charitable, educational and scientific purposes as in the judgment of the executors and trustees will render the rest, residue and remainder of his property most widely and substantially beneficial to the interests of mankind. It was held that no property had been devised or bequeathed to the Tilden Trust; that the payment of any sum to it was left discretionary with the executors and trustees; that it was connected with and could not be separated from the concluding clause directing them to dispose of the estate to such charitable, educational and scientific purposes as in their judgment would most widely and substantially benefit the interests of mankind, and that the provision was too vague and indefinite to be capable of execution.

Applying the rule of these cases to that under consideration, it appears to us that the conclusion is inevitable that the trust attempted to be created is unenforceable, for the reason of a failure to designate a beneficiary, or to designate or describe a class or kind of beneficiary to whom distribution is practicable, or that can with reasonable certainty be identified and ascertained.

Upon the argument it was contended that the attorney-general or the people had no standing in court to enforce a trust for the benefit of others, but the view taken by us with reference to the validity of the trust renders it unnecessary to consider this question."

The interlocutory judgment should be reversed and the demurrer sustained, with costs

All concur.

Judgment accordingly.


author: Peckham, J.

text:
    The People ex rel. Onondaga County Savings Bank et al., App’lts, v. James Butler, as County Clerk, etc., Resp’t.

      (Court of Appeals,

      Filed October 8, 1895.)

    1. Statutes—Construction.
    In the construction of a statute, it is the intention of the lawmakers that is to govern; such intention is to be gathered from the whole statute and sometimes from statutes in pari materia; for the purpose of arriving at such intention, where there is a possible ambiguity in the phraseology of some portion of the statute if regarded in connection with and with reference to some other portion thereof, it is sometimes competent to refer to the circumstances under which and the purpose for which a statute is passed.
    3. Same—Onondaga county clerk.
    The intention of the legislature in enacting chap. 520 of 1893, and in declaring that such act shall take effect on the first day of January, 1895, was held not to be that the actual existence of the statute should commence January 1, 1895, and that the county clerk who would be elected after that date should be the first subject to its provisions, but that the provisions of the act should take effect and apply to the clerk who was to take office on January 1, 1895, and that those provisions of the act, which require action on the part of the supervisors before that date, became operative in the fall of 1894.
    Appeal from an order of the general term of the supreme court in the fourth judicial department, which affirmed an order •of the special term overruling relators’ demurrer to the return to .an alternative writ of mandamus and dismissing said writ.
    This was a proceeding to compel defendant, the clerk of Onondaga county, to make and file a search and furnish the Onondaga County Savings Bank with a certified copy thereof at and for the compensation prescribed by chapter 520 of the Laws of 1893.

      William S. Andrews and B. J. Shove, for appfits; Charles B. Jde and William Q. Tracy, for resp’ts.
   Peckham, J.

The sole question in this case' is whether the provisions of the act known as chapter 520 of the Laws of 1893, and entitled “ An act to make the office of county clerk of Onondaga county a salaried office, and to provide for the management of said office, and to fix the salary of said clerk and deputies,” apply to the county clerk whose term of office commenced on the first day of January, 1895. It would seem as if there ought not to be much difficulty in answering such a question. And yet upon reading the whole act it can be seen that a strict and literal adherence to the very words of the text leaves it somewhat open to the construction that the act does not apply to the clerk whose term of office commenced on that day. The cardinal rule in the interpretation of statutes is to arrive at and give effect to the intention of the legislative body which enacted them. This intention is primarily to be deduced from the language used in the statute itself, and it has "been said that where such language is clear and unambiguous there is no room for construction and that •effect must be given to its plain and obvious meaning. Language which, when separated from the rest of the act, is thus plain and unambiguous may, when read in connection with the whole act, be thereby rendered ambiguous' and the necessity for construction become for that reason quite apparent. Sometimes the language of some parts of a statute, when considered with reference to the ordinary meaning attributed to such language, is so clear and unambiguous that it would seem not to be open to any construction other than its plain, obvious meaning calls for, and yet, when read in connection with the whole act and in the light of what the real intention of the legislature must in the nature of things have been, the construction properly to be favored leads to a- result which is different from what it otherwise would have been. A notable instance of such a construction is to be found in the case of Smith v. People, 47 N. Y. 330. The act, chapter 137 of the Laws of 1870, by section 120, well and accurately described three preceding acts by their titles and the dates of their passage, and with other acts relating to the government of the ■city of New York, were in the language of that section “ hereby repealed.” There was no qualification or limitation annexed to the repealing clause, and it was conceded that it was in terms sufficient to accomplish all that was claimed for it, and that literally interpreted it effectually abrogated the laws of 1853 and 1857, reorganizing the criminal courts of the above-named city. In the language used in section 120 of the act of 1870 there was nothing 'that could have been called ambiguous. On the contrary, it was exceedingly plain, and in terms repealed the prior statutes, and yet when the section was read in connection with the rest of the statute, and when the effect of a literal adherence to the strict meaning of the language used in that section was considered, it was held that such could not have been the intention of the legislature, for in that event all the proceedings in and the judgments •of the two great criminal courts in New York city for two years would have been annulled, and the consequences would have -seriously affected the public as well as individuals. It was accordingly held that, notwithstanding the general language used in the section repealing the former sections, it vras not the intention of the legislature by the repealing clause to affect the organization of the criminal courts in the city of New York. Words which are plain enough in their ordinary sense will not^be given their ordinary meaning when such meaning involves an absurdity or inconsistency, or when it is repugnant -to the clear intention of the legislature, to be collected from the whole act or from acts in pari materia to be construed with it, or from other legitimate sources of intrepretation. In such case the ordinary meaning will be modified or altered so as to avoid the absurdity, inconsistency or repugnance. Miller v. Solomans, 7 Exch. R. 546, cited in Smith v. People, supra.

The reasons for the conclusion of the court in the Smith case are most admirably set forth, and'the general rules for the construction of statutes are most clearly given in. the opinion of the late Judge Allen. The cases he cited and. the illustrations of the principles of statutory construction he gives are abundant and satisfactory. The case itself has always, been regarded as an extreme illustration of the doctrine under consideration, and it is much farther than it is necessary for us to go. We here simply follow out what, from a consideration of the whole act, is plainly evident was the intention of the legislature.

Another instance of the action of courts in the discharge of their difficult and delicate duty of construing statutes is to be found in the recent case of Riggs v. Palmer, 115 N. Y. 506; 26 St. Rep. 198, where it was held that the legislature never could have intended that the statute of wills should "apply in favor of one who-was a devisee under a will, but who in order to prevent its revocation had murdered his devisor and testator. The legislature had not in terms made such an exception to the operation of the statute, and yet it was held that it was inconceivable that it could have'intended such a result, and the doctrine and policy of the common law, that no one should be permitted to profit by his own fraud, were allowed full effect, notwithstanding the text of the statute there under consideration. The cases are not cited as being applicable in their facts to the case now before the court, but for the purpose of showing that it is the intention of the lawmakers that is to govern, and that intention is to be gathered from the whole statute and sometimes from statutes in pari materia, and that for the purpose of arriving at such intention, where there is a possible ambiguity in the phraseology of some portions of the statute if regarded in connection with and with reference to some other portion thereof, it is sometimes competent to refer to the circumstances under which and the porpose for which a statute is passed. »

In the present case it appears that the term of the county clerk in office at the time the act in question was passed would not ex-' pire until the 31st of December, 1894. This fact must have been known to the legislature which enacted the statute in question. Of that there can be really ño doubt.

It is equally clear that it was the intention of the legislature to-change the manner of compensation of the clerk of Onondaga county from fees to a salary. This was the purpose of the act. itself, expressed both in its title and in its body. The compensation by fees had become too great and hence the proposed change. Aside from any constitutional objection to reducing the salary of a public officer like the county clerk during the term for which-he had been elected, it is obvious that there would be a seeming injustice in making such a change. The constitutional provision is itself founded upon such a plain fact. With this knowledge-on the part of those composing the legislature of 1893, and yet intending to make a change in the method of compensation of the clerk of Onondaga county, the legislature enacted in 1893 the act, the title to which is above given. The act is somewhat lengthy, but it is perhaps as well to quote it. It reads as follows :

“ Section 1. The clerk of the county of Onondaga next elected and thereafter to be elected or appointed shall receive as compensation for his services an annual salary to be fixed by the board of supervisors of said county, prior to the election of every such clerk; the salary so fixed shall be three thousand five hundred dollars per annum, and shall not be increased or diminished during the term for which said clerk shall have been elected.
“§ 2. It shall be the duty of said clerk to perform all services which he is or shall be required or authorized by law to perform, by virtue of or by reason of his holding such office, for the state, for the county and for individuals, including his duty as clerk of every court of which he is or shall be clerk and no compensation, payment or allowance shall be made to him for his own use for. any such services except the salary aforesaid.
“§ 3. All the fees, emoluments and perquisites which such clerk shall charge or receive, or which he shall legally be authorized, required or entitled to charge or receive, shall belong to the county of Onondaga. It shall be his duty to exact, collect and receive all such' fees, emoluments and perquisites now permitted by law and not exceeding the amounts now fixed by law as from time to time shall be prescribed by resolution of the board of supervisors of said county at any annual sesssion thereof, except that the charge of filing, entering or recording judgments, decrees, orders, deeds and mortgages shall be and remain the same as provided by statute; provided, however, that any resolution thus passed by said board of supervisors shall be general in its character, establishing a uniform rate of charges, and no resolution changing the fees to be charged shall be passed except at the regular annual session, after the adoption of the resolution prescribing the same after the passage of this act. Mo fee shall be charged by such clerk or assistants for any service rendered to soldiers or sailors, or the widows, minor children or dependent relations of deceased soldiers, for taking any affidavit or acknowledgment or the vouchers for the payment of pensions, or application for pensions of any soldier or sailor, or the widow, minor children and dependent relations of deceased soldiers or certifying as to the official character of any officer on any such paper relating to pensions. Said clerk shall require payment in advance for recording all papers left with him for record, and shall also, in each ■case, require payment for all other service rendered by him or his assistants in his or their official capacity by virtue of any law of this state or by order of the board of supervisors of said county. It shall be the duty of said clerk to make and certify all abstracts of title to, and incumbrances upon, real property for which he shall receive as compensation for each year for which the search is made for each name and each kind of conveyance or lien three and one-half cents. He shall also furuish and deliver the person ■ordering such abstract of title a certified copy thereof free of charge, and such original abstract shall* be kept on file by him in his office as a part of the records thereof, and certified copies thereof shall thereafter be furnished by said clerk to any person or persons ordering the same, at ten cents per folio.
“ § 4. In a proper book or books, to be provided at the expense of said county, such clerk shall keep an exact and true account of all official services performed by him or his assistants, and of all fees, perquisites and emoluments received or chargeable by him or them pursuant to law. Such book or books shall constitute a part of the records of said office, and shall at all times during office hours be open to the inspection, without fee or charge therefor, of all persons desiring to examine the same.
“ § 5. Such clerk shall make a full and true statement for each calendar month of all moneys received each day by him or his assistants for fees, perqdisities and emoluments for all services rendered by him or them in his or their official capacity, and shall transmit such statement to the county treasurer of said county within five days after the expiration thereof. Such statement shall specify in the following order the amounts so received for the calendar month; For recording deeds, for recording mortgages, for recording other documents and papers, for docketing judgments and canceling dockets, for searches and certificates thereof, for copies and exemplifications of papers and records, for filing papers and for all services, and shall also show the total receipts for said month. Each such statement shall have attached thereto an affidavit of said county clerk in effect that the same is in all respects a full and true statement as herein required.
“ § 6. At the time of rendering any such statement such cleric shall pay over to the treasurer of the county of Onondaga for the benefit of said county the whole amount of money so received by him since making the last preceding monthly statement.
“ § 7. Every county clerk elected or appointed in said county shall, before entering upon the duties of said office, execute to the people of this state, and file with the county treasurer of said county a bond in such penal sum, and with such sureties as shall be fixed and prescribed by the board of supervisors of said county. Such bond shall be conditioned that said county clerk shall well and faithfully discharge all the duties of his office, and all trusts-imposed on him by law or by virtue of his office, and shall safely keep and pay over to the said county treasurer as herein provided all moneys which shall come into his hands. Said bond shall be approved as to its form and insufficiency of sureties by the board of supervisors, and if any such clerk shall neglect for thirty days-to execute or file such bond, according to the provisions of this, act, his office shall thereupon become vacant.
“ § 8. There shall be one deputy clerk, and the board of supervisors shall have the power to designate the number of special deputy clerks, and said county clerk shall appoint such deputy and such number of special deputies as so designated by said board; also as many assistants as may be necessaay for the faithful discharge of the duties of his office, and shall be responsible-for their official acts, and the salary of said clerks and assistants-shall be paid in the same manner as the salaries of other county officers are paid. The salary of the deputy clerk shall not exceed one thousand five hundred' dollars per annum, and of the first-special deputy clerk shall not exceed one thousand two hundred dollars per annum, and of each additional special deputy clerk not to exceed nine hundredylollars per annum; and the board of supervisors may determine the number of assistants and fix their salary or compensation; provided, however, that all work done-by such assistants may be done and paid for by the piece or folio, at the discretion of the clerk, and the amount of work so performed shall be certified to by the county clerk for each colander month.
“§ 9. Any officer referred to in this act, who shall receive to-his own use, or neglect to account for any fees, perquisites or emoluments, by this act declared to belong to and be for the benefit of the county of Onondaga, or who shall neglect to render to the said county treasurer an account of all fees received at his office, or to pay over the same, as herein required, shall be deemed guilty of misdemeanor, and on conviction shall be 'punished by fine or imprisonment, or ■ both, at the discretion of the court before whom said officer may be convicted, and shall be liable to-said county in a civil action for all moneys so received and not, accounted for.
“§ 10. All acts and parts of acts inconsistent herewith are-hereby repealed.
“ § 11. This act shall take effect on the first day of January, eighteen hundred and ninety-five.”

A perusal of this act, having in mind the fact above stated as to the time of the termination .of the official term of the clerk in office at the time it was passed (May 2, 1893) leaves no doubt in our minds as to the actual intention of the legislature. The clerk intended to be affected by it was the clerk who would be elected in the fall of the year 1894, and who would take office on the first of. January, 1895. We are at a loss to ourselves imagine any reason, and none at all adequate has been suggested to us, for the-intentional postponement of this alteration of the manner of compensation until January, 1898. Such postponement would be the result if the act really designated the clerk who should be elected after 1895 as the first one to be subject to its provisions. To be sure the clerk commencing his official term in 1895 might die while in office and his successor might be elected prior to 1897, in which case the act would apply to him, but in the regular course of events, by the construction asked for by the defendant, the legislature was engaged in the enactment of a statute in May, 1893, which would not come into actual effect until January 1, 1898, and by which the full term of a county clerk to be elected a year and a half after its passage was to elapse totally unaffected by the provisions of such act. This is a manifest absurdity. No-ingenuity cán suggest a reasonable explanation for such an extraordinary intention on the part of the legislature. We cannot attribute any such intention to that body. And yet it is claimed that just this intention is made manifest, plain, unambiguous and controlling by the language of the eleventh section, which provides, that the act shall' take effect on the first day of January, 1895. The argument is that it is only from the first day of January, 1895, that the act can be said to speak, and that it is to be regarded "in the same light as if it had been enacted on that day with a section ordaining that it should take effect immediately. As a general rule an act of the legislature speaks for the future and as of the time when it takes effect and not as of the time it was passed. The question is always, however, what meaning is to be attached to the language which provides in a general way for an act to take effect at some future time. The phrase “This act shall take effect on the first day of January, 1895,” standing alone is plain and unambiguous. So is the phrase “ Chapter 217 of the Laws of 1853, and chapter 446 of the Laws of 1857 are hereby repealed.” Yet this court held that all portions of those laws were not repealed because it was manifest the legislature did not so intend. Looking at the eleventh section of this act before us, after reading the whole act and being possessed with.the knowledge which the legislature had as to the expiration of the official term of the then county clerk, and we can come only to one conclusion as to the meaning of the section. The legislature did not mean that the actual birth and existence of the statute should commence in January, 1895, and that the clerk who would be thereafter elected should be the first subject of its provisions. By the expression used the enacting body plainly meant that the provisions of the act that was passed by it should apply to, govern and take effect upon the clerk who was to take office on the first day of January, 1895. This is too clear for any serious controversy, and we are but carrying out the plain intention of the legislature when we attribute this meaning to the language used.

It is easily capable of such meaning, and regarding the facts already stated and within the knowledge of the legislature, it is the meaning which that body undoubtedly attached to it, and it is called for by every rule of common sense. To hold otherwise would be to do violence to the plain legislative intent to be gathered from the whole act, and we should be controlled by a strict, technical and narrow construction of the language of the last section, not at all necessary in this case, the effect of which would be to thwart instead of to carry out the legislative purpose.

The counsel for the defendant cites many cases in the very learned brief he has submitted to us, in which it has been held that the legislature, in the particular acts in question, referred to periods subsequent to the times when the acts took effect, instead of subsequent to their passage. We think we should agree with the learned courts which decided them in most of the cases. This is because, we think, the legislative intent was thereby carried into effect. In this case we do but give a” reasonable meaning and effect to the phrase contained in the eleventh section, and in that way we carry out what we have not the slightest doubt was the legislative purpose. No other reasonable conclusion could be arrived at. We cannot impute an unreasonable or absurd purpose to the legislature.

The case in this court (In re Howe, Deceased, 112 N. Y. 100; 20 St. Rep. 477) is not at all in conflict with the views we have herein expressed. The act there in question contained within its body no reason whatever for its earlier application, and it took effect by virtue of the general provisions of our statute as to the acts of the legislature. A death happening before it took effect, although after its passage, was held not to render the estate passing under the will of the decendent liable to the provisions of such act. Bv holding that the act in question took effect and was applicable to the clerk who came into office on the 1st of January, 1895, we necessarily hold that those provisions of the act which required action on the part of the board of supervisors before that date became operative in the fall of 1894. The board of supervisors should, therefore, have met and fixed the salary of the clerk before his election. It did not do so until his election, but before the commencement of his term of office. In December, 1894, it fixed the salary and otherwise provided for the number of deputies, etc., as mentioned in the act. The fixing of the salary, so far as defendant is concerned, by the board, is matter of the purest formality, for the statute itself provides what sum the board shall fix upon. Whether the board has or has not complied with the provisions of the act, cannot, however, affect this court upon the question of the proper construction to be given to the act itself.

For the reasons stated, we think the orders of the courts below should be reversed, the demurrer of the relators sustained and judgment ordered for them, granting a peremptory writ of mandamus as prayed for, with costs against defendant in all courts.

All concur, except Andrews, Oh. J., not voting.

Judgment accordingly.


author: Andrews, Ch. J.

text:
    Joseph Van Camp, Resp’t, v. Edward P. Searle, as late Sheriff, etc., et al., Impleaded, etc.

      (Court of Appeals,

      Filed October 8, 1895.)

      1. Attachments—Priority of liens.
    The lien of successive attachments on real property, attached under process issued in this state, takes effect in the order in which the attachments are issued and levied, and the priority of lien is not dependent upon priority in date of the judgments obtained.
    3. Same—Vacation—Irregularities,
    Mere irregularities in attachment proceedings give no standing to subsequent attaching creditors to set aside a prior attachment. In the absence of fraud or collusion, only such defects as are jurisdictional and so affect the proceedings as to make them a nullity, are available to a subsequent lienor on such application.
    3. Trust—Remedy.
    Though the remedy of the beneficiaries against a trustee, where the trust is open and continuing and the accounts of the trustee have not been settled .and adjusted and a balance ascertained, is in an action for an accounting and an action at law, either for money had and received or in any form, will not lie in the first instance, it is otherwise where the trust has been closed and settled and the balance ascertained.
    4. Attachment—When granted.
    The jurisdiction to grant an attachment does not involve a preliminary determination by the officer to whom the application is made, whether in law the case presented by the complaint will entitle the plaintiff to the relief he asks, but it is sufficient to authorize him to grant the writ that it appears that the action is brought for one of the causes where an attachment may issue, and the other facts are shown which authorize the process to be issued.

      5. Same—Withdrawal of execution.
    Where tlie land, from which the fund upon which priority of lien is sought to be established arose, was sold on executions on judgments some of which are paramount liens to that of the plaintiff, and the liens of the contestants were based upon judgments entered prior to the plaintiff’s judgment in actions in which attachments had been issued and levied subject to the plaintiff’s attachment, the withdrawal of the plaintiff’s execution from the sheriff on the day of and before the sale in no way affects the lien of his attachment and does not prejudice the contestants.
    6. Execution sale— Notice.
    A sheriff, having advertised a sale, cannot sell under that notice on an execution subsequently received by him.
    Appeal from portions of a judgment of the general term of the supreme court in the fifth judicial department, which modified and affirmed, as modified, a judgment in favor of the plaintiff entered upon a decision of the court on trial at' special term.
    This action was brought to determine the conflicting classes of creditors of Benjamin F. Yan Gamp to a fund of $6,423.20, in the hands of the sheriff of Orleans county, proceeds of real estate of Yan Camp sold by the sheriff upon execution on the 15th of February, 1889. In June, 1888, the debtor Yan Camp absconded from the state owing debts to a large amount. Upon the facts becoming known various suits were commenced by the creditors, in which attachments were obtained on the ground that Yan Camp, being a resident of the state, had departed therefrom with intent to cheat and defraud his creditors and to avoid the service of summons, and were levied upon his real and personal property in the county of Orleans. Judgments were subsequently recovered in favor of the several plaintiffs in the attachment actions, and executions thereon issued to the sheriff of Orleans county in the form prescribed by section 1370 of the Code of Civil Procedure. The sheriff collected several thousand dollars out of the personal property of Yan Camp, which has been distributed and as to which no question arises on this appeal. The controversy is narrowed to two questions : First, as to the correctness of that part of thedecreee of the special term which awarded payment of the Brown judgment, so called, out of the fund, in priority to the Orleans County Bank judgment and the judgment in favor of Sawyer, and, second, whether the special term correctly awarded priority of payment of the Kelsey judgment over the bank and Sawyer judgments.
    The general term affirmed the decree of the special term in both of these particulars, and from such affirmance the Orleans county Bank and Sawyer appeal. In general it may be stated that the appellants claim that the sale,of the real estate was not on the Brown judgment and execution, but was made subject thereto, and was not, therefore, entitled to be paid out of the fund. In respect to the Kelsey judgment the claim is that the hank and Sawyer judgments were prior in date, and that the Kelsey attachment, though first issued and levied, was ineffectual because the action was not one in which an attachment is allowed.
    The material facts may be briefly stated. The Brown judgment long antedated the absconding of Yan Camp. It was recovered June 17, 1882, for $418.25. In April, 1886, it was conditionally discharged by order of the court, the condition being that the lien of the plaintiffs attorneys thereon and the right to enforce it for their protection should not be prejudiced by the offset allowed. In November, 1888, the court on application of the attorneys (Keeler and Salisbury), and on proof that the plaintiff in the judgment was a non-resident, and that the lien of the attorneys for legal services exceeded the amount of the judgment, made an order permitting execution to be issued thereon against Van Gamp, and execution was issued and delivered to the sheriff December 1, 1888, and remained in his hands until after the sale of February 15, 1889. The Kelsey judgment for $2,084.11 was entered December 7, 1888. An attachment in the action was issued June 11, 1888, and was levied on the real estate of Van Camp June 12, 1888. The first of the two judgments in favor of the Orleans County Bank and the judgment in favor of Sawyer were entered September 14, 1888, on suits commenced June 14, 1888, in which attachments were issued and levied on the same real estate on the same day. The first attachments against Van Camp were issued and levied June 11, 1888, in three separate suits commenced respectively by Briggs, Buell and others, and Ilallock, and judgments, in these several actions were entered on or before September 13, 1888, these attachments being earlier in date than the Kelsey attachment and judgment, or the attachments and judgments in favor of the Orleans County Bank and Sawyer. The Kelsey attachment was issued and levied before the attachments in favor of the bank and Sawyer, bat the Kelsey judgment was subsequent to the bank and Sawyer judgments.
    The plaintiff in this action claims as assignees of the Kelsey judgment priority of lien on the fund to the lien under the bank judgment and the judgment of Sawyer. The bank and Sawyer contest the plaintiff’s alleged lien under the attachment in the Kelsey action on the ground above indicated. The judgment roll in the Kelsey action and the proceeding therein are contained in the record and disclose the following facts:
    The action was brought by one Adason Kelsey, as administrator with the will annexed of Amos Kelsey, deceased, against Benjamin F'. Van Camp. The complaint in the action alleged in substance that Van Camp had been the executor of the will of Amos Kelsey from October 24, 1881, to June 1, 1888 ; that on the 21st of December, 1883, he accounted before the surrogate of Orleans county, the county in which the will was proved, and his accounts up to that date were judicially settled, and a decree entered adjudging that he then had in his hands as executor, after payment of all expense of the execution of the will up to said date, the sum of $5,704.74, which sum he was directed by the decree to retain in his hands as executor during the life of the widow of the testator, or until the further order of the court, paying meanwhile the income to the widow ; that the widow died February 15,1887, and that no further order of the court had been made for the disposition of the fund; that the defendant Kelsey had, since the death of the widow, sold real and personal property of the estate and converted the same into money, and had received as executor the sum of at least $10,000 ; that the defendant was duly cited to render an account before the surrogate on June 11, 1888; that he failed and neglected to appear on the return day of the citation, although the citation had been duly served on him, or to i-ender any account; that thereupon, on said 11th day of June, 1888, Yan Camp was duly removed from his office as executor and his letters were revoked, and letters of administration with the will annexed were issued to the plaintiff. The complaint further alleged that the defendant had wrongfully and unlawfully disposed of and converted the said property and moneys to his own use to the damage to the estate of $10,000, for which sum judgment was demanded, with interest. The complaint was verified, and was read on the application for an attachment. In addition, the affidavit of the plaintiff was presented, stating, among other things, that “ a cause of action exists in favor of the plaintiff against the defendant above named, for the unlawful and wrongful disposing of and conversion of personal property of the estate of Amos Kelsey, deceased, of the amount of $10,000, and that the business of the estate was substantially closed a long time ago.” The affidavits presented also set forth facts tending to show that the defendant had absconded from the state, with intent to defraud his creditors and to avoid the service of a summons. A warrant of attachment was, therefore, issued, and no question is made as to the validity of the attachment, except that there was no jurisdiction to issue an attachment for the cause of action stated in the complaint.
    The sale of Yan Camp’s real estate (which produced the fund in question) was made under the following circumstances: On the 29th day of October, 1888, the sheriff of Orleans county, who then held execution on the Briggs, Buell and Hallock judgments, and also on the first judgment in favor of the Orleans County Bank and on the Sawyer judgment, duly advertised the real estate for sale on December 15, 1888. The notice recited that “ by virtue of several executions issued out of the supreme court and to me directed and delivered against the property of Benjamin F. Yan Camp, I have seized all the right, title and interest which the said Benjamin F. Yan Camp had in and to the following described real property, on the 11th day of June, 1888, or at any time thereafter, and I shall expose for sale,” etc. On December 15, 1888, the sheriff duly postponed the sale “ pursuant to the above notice ” (of October 29,1888) to February 15, 1889. Other executions had come to the sheriff’s hands after October 29, 1888, and prior to December 15, 1888, and, among others, executions on the Brown judgment, the Kelsey judgment, and a second judgment in favor of the Orleans County Bank. On the 18th day of December, 1888, a supplementary notice of sale for the 15th of February, 1889, on executions “in favor of the Orleans County Bank and Sawyer,” was advertised by the sheriff. On February 15, 1889, the sale took place. The sheriff announced that the sale was to be made on the Briggs, Buell, Hallock, Orleans County Bank and Sawyer judgments. The Kelsey execution was withdrawn immediately before the sale, and the execution on the Brown judgment, although held by the sheriff (issued after the publication of the original notice), was not one of the executions mentioned in the sheriff’s announcement.
    The judgment below directed distribution of the fund after payment of costs in payment of the judgments in the following order: (1) Brown judgment; (2) Hallock id.; (3) Briggs id.; (4) Kelsey id.; (5) bank and Sawyer id. This appeal calls in question alone the priority awarded to the Brown and Kelsey judgments and the bank and Sawyer judgments.
    Other facts are stated in the opinion.

      George Bullard, for app’lts; David N. Salisbury, for resp’ts.

       Affirming in part and reversing in part 61 St..Rep. 349.

   Andrews, Ch. J.

The l'ien of successive attachments on real property attached under process issued in this state takes effect in the order in which the attachments are issued and levied, and the priority lien is not dependent upon priority in date of the judgments obtained. This is the general understanding and is a clear inference from statutory provisions. Code Civil Procedure §§ 644, 697. It is also the general rule in other states, except where otherwise provided by statute, or where an exceptional rule has been established by the courts. Drake on Attachments, § 263; Wade on Attachments, § 217. The application of this rule as between the attachment issued in the Kelsey suit and the attachments in the suits of the Orleans County Bank and Sawyer entitles the Kelsey judgment to preferential payment out of the fund, unless for other reasons the preference must be denied. The Kelsey attachment was first issued and levied, although the judgment obtained was subsequent in date to the judgments in favor of the bank and Sawyer. There must, however, be a valid attachment to create a valid lien, and the appellants assail the attachment in the Kelsey suit on the ground that the cause of action sued upon was not one in which an attachment is authorized. It is not denied that in other respects a case was made by the affidavits presented to the judge, which justified the issuing of the process. It was held in respect of similar affidavits in the casé of Buell v. Van Camp, 119 N. Y. 160; 28 St. Rep. 947, that they were sufficient to establish the ground that Van Camp had departed from the state with intent to defraud his creditors and to avoid the service of a summons.

The record in the Kelsey suit is embraced in the record in this action. The cause of action set out in the complaint in the Kel-' sey suit was unmistakably for the wrongful conversion of personal property. It may have been defective, and perhaps would not have stood the test of a demurrer. But it expressly alleged a wrongful conversion by Van Camp of money of the estate, and demanded damages thereof in an amount stated. It alleged no contract, express or implied, and a cause of action on contract was not in the mind of the pleader. The affidavit used on the application for the attachment asserted that the action was brought for a wrongful conversion, and this was the cause of action recited in the warrant. It must be assumed on this appeal that the Kelsey action was an action for conversion, and not an action for money had and received, or upon contract express or implied, and upon this assumption the sufficiency of the cause of action set forth in the complaint to • support the attachment as against the assault now made upon it must be determined. The defendants, whose attachments were subsequently levied, have the right to assail the Kelsey attachment, and, if- invalid, to have the pretended lien vacated and the proceeds, of the attached property in the hands of tne sheriff applied upon their judgments. Code Civ. Pro. § 682. It, however, is fully established by authority that mere irregularities in attachment proceedings gives no standing to subsequent attaching creditors to set aside a prior attachment. In the absence of fraud or collusion only defects which are jurisdictional and which so affect" the proceedings as to make them a nullity, are available to a subsequent lienor who seeks to set aside a prior attachment. Irregularities may be waived by the party, and third persons cannot be heard to allege defects in the proceedings which do not concern the substance of the right. Wade on Attachments, §§ 219, 220, and cases cited.

The Kelsey action was in form an action for the conversion of personal property, and such an action is one in which an attachment may be granted. Code, § 635. The plaintiff complied with all the other conditions imposed -by section 636 in making his application. He furnished affidavits stating that a cause of action existed in his favor against Yan Camp for the wrongful conversion of personal property, and showing other facts necessary to be shown to entitle him to the writ. The primary objection taken by the appellants to the validity of the attachment, is not that an attachment cannot issue in an action for the conversion of personal property, nor that there were no sufficient grounds shown for granting an attachment in such an action, but that upon the facts alleged in the complaint, no cause of action against Yan Camp for conversion in fact existed, but only a cause of action in equity for an accounting, and that a plaintiff whose real cause of action is one which cannot be enforced by attachment (Worthington v. Merrick, 101 N. Y. 5), cannot, by bringing an action as upon contract or for conversion, procure an.attachment which will be valid as against subsequent attachments.

It is undoubtedly the general doctrine that the remedy of the beneficaries of a trust against a trustee where the trust is open and continuing and the accounts of .the trustee have not been settled and adjusted and a balance ascertained, is in an action for an ac: counting in equity, and that an action at law, either for money had and received, or in any other form, will not lie in the first instance, but it is otherwise where the trust has been closed and settled and the balance ascertained. Weston v. Barker, 12 Jo. 276; Johnson v. Johnson, 120 Mass. 465; McLaughlin v. Swann, 18 How. (U. S.) 217; Perry on Trusts, § 843. But whether a plaintiff, having the right, has brought his action in the proper form, or pursued the appropriate remedy, is a question to be determined on the trial of the action upon an issue of law or fact in case a defense is interposed. The jurisdiction to grant an attach-merit does not, we think, involve a preliminary determination by the officer to whom application for the writ is made, whether in law the ease presented by the complaint will entitle the plaintiff to the relief lie asks. It is sufficient to authorize him to grant the writ that it appears that the action is brought for one of the causes where attachment may issue, and the other facts are shown which authorize the process to be issued. All the requisite facts, both as to the cause of action and as to the fraudulent absconding of Van Camp, were presented to the judge, and we think the warrant was not void for want of jurisdiction. No application was made to set aside or vacate the writ until the present application, which was after final judgment in the action of Kelsey had been recovered. If the judgment had been obtained by fraud or collusion between the parties thereto to defeat or pi'ejudice subsequent attachment creditors, a different question would be presented. But this was not found, nor does the record show that fraud or collusion was claimed on the trial of this action. It does appear that after the trial of the Kelsey suit had proceeded and a large amount of evidence had been taken before the referee which tended to show that Van Gamp had wasted the assets of the estate, he appeared in the action and his attorney stipulated that judgment should be entered against him therein. The referee made his report in favor of the plaintiff, in which he found that the facts stated in the complaint were true, and upon the pleadings, the report of the referee, the notice of appearance by the defendant and the stipulation, judgment was entered. When the suit was commenced Van Gamp had been removed as executor, and his letters had been revoked. His trust relation was terminated. It was his duty to turn over the estate in his hands to his successor in the trust. He had absconded, having as may be inferred, wasted the assets. Whether, under the special circumstances, an action for conversion would lie against him in behalf of Kelsey, his successor in the administration, it is not important to determine. Such an action was brought, judgment found for the plaintiff, and the judgment stands unreversed and in full force. The judge granting the attachment bad jurisdiction, and it was not invalid as to the present appellants.

The appellants further claim that the withdrawal of the Kelsey execution from the hands of the sheriff on the day of and before the sale of the land discharged the lien of the Kelsey attachment. We think this act in no way affected the lien. The land was sold on executions on judgments, some of which were paramount liens to that of Kelsey. Title under the sale would cut off the lien of the Kelsey attachment and judgment. By withdrawing the excution Kelsey put himself in a position where he could redeem from the sale. But if the sale brought a surplus over the prior liens it would be applicable to the payment of his judgment, and if sufficient to pay it redemption by him would not be necessary. The appellants were not prejudiced bv the withdrawal of the Kelsey execution. The attachment liens were matter of record, and if the land were worth more than the liens prior to their judgments they could have protected themselves by bidding up to the value of the land.

The decision of the special term declaring that the Brown judgment should be paid out of the fund cannot, we think, be sustained. The land was not sold on that judgment, but in legal effect was sold subject thereto. The execution on the Brown judgment was not issued until after the commencement of the publication of the notice of sale on the 29th of October, 1888. The notice was of a sale “upon executions (then) in the sheriff’s hands.” The postponement on the 15th of December, 1888, to the 15 th of February, 1889, was a sale “pursuant to the above notice.” The Brown execution had been issued before the postponement. • But the sheriff gave no notice that the sale was to be made on any execution other than those in his hands when the first publication was made. In the form of the notice of postponement was a distinct intimation that the sale was to be made in pursuance of the original notice, and not otherwise. Nor was the sale in fact made on the Brown execution. The sheriff announced at the sale that the sale was to be made on the judgments and executions of Briggs, Hallock, Buell, Orleans County Bank and Sawyer, and the sale was made on these judgments alone. The Brown judgment and execution was excluded from the enumeration. The certificate of sale specifies the judgments and executions on which the sale was made, conforming in that respect to the announcement. Moreover, the notice of sale was the interest which Van Camp had in the land on the 11th day of June, 1888, the day when the first attachment was issued, and the Brown judgment was recovered June 17, 1882. It is shown beyond controversy that the Brown execution was not in the sheriff’s hands when the publication of the notice of sale was commenced ; that the sale was not advertised on that execution; that it was not made or intended to be made thereon. ■ Although more than the requisite time of publication elapsed between the day of postponement and the sale, yet the postponement was by its terms a mere continuation of the original notice, and was not intended to refer to or include executions other than those held by the sheriff when the original publication was commenced. The case of Mascraft v. Van Antwerp, 3 Cow. 334, which so far as we know has never been questioned, and which is cited in the text books, seems to be a decisive authority for the proposition that a sheriff having advertised a sale, cannot sell under that notice on an execution subsequently received by him. See, also, Husted v. Daken, 17 Abb. Pr. 137; Brewster v. Copsey, 4 How. Pr. 220.

Our conclusion is that the part of the judgment should be affirmed which awards priority of payment out of the fund to the holder of the Kelsey judgment, and that the part be reversed which awards out of the fund of the Brown judgment, without costs of this appeals to either party.

All concur, except Haight, J., not sitting.

Judgment accordingly.


author: Brown, P. J.

text:
    Bessie Moore, App’lt, v. John H. Murphy et al., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Deeds—Restrictions—Estoppel.
    A person who has acquiesced in repeated violations of a building restriction not to build within a specified distance from the frontline, is estopped from enjoining a person who is acting upon the assumption that such restriction is no longer to be observed.
    Appeal from a judgment, dismissing the complaint.

      Roger M. Sherman, for app’lt; Frederick P. Foster, for resp’ts.
   Brown, P. J.

This action was brought to restrain the erection of a dwelling house which, it was alleged, defendant was constructing in violation of a covenant contained in his deed. The common source of title of both parties is J. Henry Hentz, who, in September, 1888, conveyed a tract of land including the property in question to the defendant John H. Murphy, Richard M. Win-field, and Edward J. Lucas. The deed from Hentz contained a covenant that “neither the parties of the second part nor their heirs or assigns shall or will at any time hereafter * * * erect any dwelling or other building within thirty feet of a front line.” Thereafter, Winfield and Lucas, by quitclaim deed, conveyed the property to Murphy, who on December 5, 1890, conveyed to plaintiff lots described on a map of said tract as Hos. 86 and 87, and said deed contained a covenant on the part of the plaintiff similar to that contained in the Hentz deed. The map referred to in plaintiff’s deed was made after the deed from Hentz, and designated thereon Summit avenue as a street. Summit avenue was subsequently opened, and plaintiff’s and defendants’ lots fronted thereon. The plaintiff’s was the first house erected on the street. The front wall of her house was placed twenty-nine feet seven inches from the front line of the lot, and the piazza and steps were wholly within the thirty-foot line. The front wall of the defendants’ house is thirty feet from the front line of the lot, but. there is a bay window which projects three and a half feet within the thirty-foot line, and the piazzas and steps project further from the house than the piazza and steps on plaintiff’s house. Four other houses have been built on the same side of Summit avenue as the plaintiff’s house, all upon lots included within the property conveyed by the Hentz deed, and it was conceded by the plaintiff that all of the piazzas and all of the steps on the said houses were built within the thirty-foot line of the lots.

It is the claim of the appellant that the construction of the bay window on defendants’ house was a violation of the covenant contained in the Hentz deed. If the decision of this appeal depended upon the determination of the question whether the bay window was a part of the building, and therefore within the restriction of the deed, I should be inclined to answer it in the affirmative. But the case does not call for a decision of that question. The parties have given a practical construction to the covenant in the erection of their several dwellings. All piazzas and steps have been placed within the thirty-foot line, and, as I understand the testimony, at least three houses besides the defendants’ have bay windows which are within said line. While that fact is not expressly stated by any witness, it appears to have been assumed throughout the trial. It is so alleged in the answer as to the houses of Low, Lucas, and Malle, and the distance from the front line of the lot stated as to each. The defendant Murphy testified as follows: “I have measured the bay windows of the various houses on that block. They are all built within thirty front feet of the lots in every instance. * * * You can sit in the bay window of Mr. Low’s house and see the front windows of the plaintiff’s house.” On cross-examination he was asked by the plaintiff’s counsel to state how many feet and inches the bay windows of Low's and Lucas’ houses extended into the thirty-foot space. The witness, Edward J. Lucas, testified: “ The piazza of every house on that block to a certain extent interferes with the view of the other houses. * * * The same thing applied to each and every bay window, to a certain extent.” To the same effect is the testimony of the witness Tier. The plaintiff introduced no evidence to show that there were not bay windows on the other houses on the block, or that they were not constructed within the thirty-foot space, and the testimony I have quoted stands uncontradicted. These facts, we think, preclude the plaintiff from enforcing the covenant against the defendant. She must either be deemed to have acquiesced in the construction of the covenant,—that it applied only to the front wall of the main building and did not restrict the construction of piazzas and bay windows within the thirty-foot space,—or else, having acquiesced in repeated violations of the covenant, she is not now entitled to enjoin a person who acts upon the assumption that the restrictions are no longer to be observed. The rule is well settled that a person who seeks to enforce a covenant of this character must suffer no such breach of the stipulation as will frustrate all the benefit that would otherwise accrue to the other parties to the agreement.

It is unnecessary to consider the other questions discussed by the counsel, as, for the reasons above stated, we are of the opinion that the judgment must be affirmed.