text:
    THE PEOPLE ex rel. TIMOTHY F. DONOVAN, Appellant, v. WILLIAM C. CONNOR, Sheriff, etc., Respondent.
    Appeal from an order of the Special Term, quashing a writ of habeas corpus.

    The return to the writ of habeas corpus showed, that the appellant was imprisoned by virtue of process issued by the surrogate of New York, for contempt, in not paying into court, the money adjudged and decreed upon an accounting before said surrogate, to be in his hands after his removal from the positions of administrator of the estate of Dennis J. Donovan, and guardian of Patrick H. Donovan. The recitals of the process showed the proceedings, and the filial decree or order made thereon. No appeal was taken from the decree as provided by statute (2 R. S., 609, § 104). The court below held that there could be no review of the adjudication on this writ, and on that ground quashed it. The General Term held, that this was correct; that the errors asserted by the relator in his petition and affidavit, were errors affecting the decree and order, and the relator could only avail himself of them, on appeal from the decree; that the recitals of the process were sufficient, to show that the surrogate had jurisdiction of the subject-matter of the proceedings, and of the person of the relator; and held that the writ was properly quashed.

      T. F. Donovan, in person. Tremavn & Tyler, for respondent.
   Opinion by

Davis, P. J.

Brady and Daniels, JL, concurred.

Order of the Special Term affirmed, with costs against the relator to be adjusted.


source: Caselaw Access Project

author: Tappen, J.:

license: Public Domain

text:
    FRANK W. SIMSON, Respondent, v. CHARLES F. BROWN, Appellant.

      Bond for benefit of tim'd person — satisfaction of by obligee — effect of.

    A mortgagee, after having duly assigned his bond and mortgage to the plaintiff, received payment thereof from the mortgagor, who paid the same in ignorance of the assignment, believing him to be still the owner of the mortgage. Subsequently upon the demand of the mortgagor, the mortgagee executed and delivered to him a bond, conditioned to pay the full amount of the bond and mortgage to the plaintiff, and to save the mortgagor harmless therefrom, the payment of which bond was guaranteed by the defendant. Thereafter the mortgagor executed and delivered to the mortgagee satisfaction of the last mentioned, indemnity, bond, which he did not however give up or cancel, but thereafter assigned it to the plaintiff. In an action by the plaintiff to recover the amount of the bond and mortgage from the defendant, the guarantor of the bond: held, that he was entitled to recover; that the obligation under the bond, to the plaintiff, was not discharged by the act of the mortgagor.
    Appeal from a judgment in favor of the plaintiff, entered upon a trial of this action by the court without a jury.

      A. 8. Gassedy, for tbe appellant.

      Groo dé Wiggins, for the respondent.
   Tappen, J.:

The plaintiff had judgment on a trial at Circuit (a jury being waived) against the defendant for $500, as guarantor of a bond. The prominent facts, out of which the bond and guarantee were given, are briefly as follows: One Macdonald held the bond and mortgage of one Boyd, for $500, and assigned the same to the plaintiff. Boyd subsequently, and without knowledge of the assignment, paid the mortgage debt to Macdonald. Learning afterward that the plaintiff held the bond and mortgage, Boyd applied to Macdonald for indemnity, and the bond in question was given by Macdonald, and the guarantee by the defendant. On the 13th of June, 1873, Boyd executed and delivered a satisfaction of the bond; and on the 27th of June, 1873, he assigned the same bond and guarantee to the plaintiff.

The finding of the judge is that the satisfaction-piece by Boyd was without plaintiff’s knowledge. It will be seen that Macdonald was liable to the plaintiff for the amount of the bond and mortgage so paid by Boyd without notice of the assignment, and he was also liable to Boyd for any damage which the latter might sustain by Macdonald’s unlawful act. Of course Boyd could not be compelled to pay the mortgage debt again, but he could compel Macdonald to refund the money.

We come now to the substance of the language of the bond and the guarantee.

The bond is to William Boyd, in the penal sum of $1,000, to be paid to his executors, administrators and assigns, and the condition is that the obligor shall “ pay or cause to be paid to F. W. Simson, the full amount of the bond and mortgage for $500, made by Boyd to Macdonald, and to hold Boyd harmless therefrom, said bond and mortgage having been by Macdonald assigned to Simson.”

The guarantee reads: “ For value received I hereby guarantee the payment of the within bond. C. F. Brown. Dated, November 13th, 1871.”

It will be seen that this bond was for the payment of a sum of money to Simson and that such payment was guaranteed by the defendant. The discharge of the bond by Boyd did not affect the rights of Simson. At the most, it could only operate to deprive Boyd of any indemnity which the instrument might have afforded him. Nor were the bond and guarantee delivered up or cancelled, at the time of Boyd’s making the satisfaction-piece. On the contrary, they were very shortly thereafter delivered by Boyd to the plaintiff with an assignment in due form. The statement of the facts would seem to lead to the legal conclusion that no act of Boyd’s has sufficed to exonerate the defendant from his express liability to Simson. No consideration was given Boyd for the release, or satisfaction-piece.

Simson had his lawful claim against Macdonald for the money improperly received by the latter, and Macdonald’s contract, by the condition of the bond, was that this money should be paid to Simson, and the defendant guaranteed it. Boyd might obtain security for Simson, but he could not destroy that security. It is conceded that Boyd, as mortgagor, lawfully paid his debt to Macdonald, the mortgagee, without notice of the assignment, and therefore Boyd incurred no liability to be protected by the bond now in suit; his release, therefore, did no harm, it was a satisfaction of his interest in the obligation, but the other party, the plaintiff, for whose express security and payment by its terms Macdonald executed the instrument and defendant guaranteed it, that other party has not released the parties so bound and he has a right to tiie maintenance of his action unimpaired by any act of Boyd, particularly, when, as in this case, he is a holder of the obligation by due assignment. The rule of a promise for the benefit of a third person, and so intended by the promisor, will uphold the case. (Lawrence v. Fox, 20 N. Y., 268 ; Hutchings v. Miner, 46 id., 456.) But here we have a direct undertaking by the defendant to pay the plaintiff a sum of money without conditions, contingencies or reservations. The ease of Merrill v. Green (55 N. Y., 270), does not sustain the defense upon the facts herein conceded or proven. It is a principle of law, long recognized and clearly established, that when one person for a valuable consideration engages with another by simple contract to do some act for the benefit of a third, the latter, who would enjoy the benefit of the act, may maintain an action for the breach of the engagement.” (Brewer v. Dyer, 7 Cush., 337.) And if A promise B for a valuable consideration to pay C, the latter may maintain assumpsit. (Hall v. Marston, 17 Mass., 575.) To recapitulate. The bond and mortgage in plaintiff’s hand were destroyed and satisfied by the payment thereof, by Boyd the mortgagor, to Macdonald the mortgagee. Macdonald, therefore, owed the. debt to the plaintiff, and he gave a bond with surety and with defendant’s guarantee. This bond was in form to Boj^d, but its purpose was two-fold : first, _ to indemnify Boyd against any supposed liability to pay the money over again, and it is conceded that there was no such liability; and second, to pay to plaintiff the debt which Macdonald owed him. Macdonald’s liability to the plaintiff is also conceded, and the defendant guaranteed the payment of that debt. There were two parties, therefore, apparently interested in compelling payment, Boyd and the plaintiff. If Boyd needed no indemnity, he might to that extent release and satisfy the bond from Macdonald and the defendant, but the obligation to plaintiff was not thereby discharged.

The judgment in favor of plaintiff is affirmed with costs.

Present — Tappen and Talcott, JJ.

Ordered accordingly.


author: Barnard, P. J.:

text:
    MARGARRETTA P. BARNES, Responden , v. SARAH J. STOUGHTON and others, Appellants.

      Appeal — service of notice of — v/pon what parties— Gode, § 827.
    Defendant S. moved for a resale in an action of foreclosure, which was denied, and due notice of the entry of the order was served upon him by plaintiff’s attorney. Subsequently, and within the time allowed by the Code, he served a notice of appeal upon the attorney for the plaintiff, but not upon the attorney for the purchasers. Meld, that the appeal should be dismissed, on the ground that the proper parties had not been brought before the court.
    Appeal from an order, denying a motion for a resale of certain real estate, sold under a decree of foreclosure entered in this action, and requiring the purchaser to complete the purchase of the lots struck off to him.

      F. Gr. Salmon and James R. Mrvrmn, for the respondent.

      Wakema/n <& Lattmg, for the purchaser.
   Barnard, P. J.:

On the 15th oí March, 1875, an order was made by Judge Tappen, at Special Term, denying a motion for a resale in an action for the foreclosure of a mortgage.

On the 20th of March, 1875, written notice of the entry of such order was given by plaintiff’s attorney to the attorneys for the moving parties. On the twenty-sixth of March, the defendant Stoughton, who had made said motion, served a notice of appeal, upon the plaintiff’s attorney, from the order denying said resale. No notice of appeal was served on the several purchasers who had bought at the sale, and no notice of the entry of the order had been served by these purchasers upon the attorney for the defendant Stoughton. The General Term dismissed the appeal, after argument, as to Stoughton, for the reason that the appeal-did not bring up the parties to the order appealed from.

A reargument is asked, upon the ground that a notice of appeal served on the plaintiff did bring up all parties ; and that, upon the argument of the appeal, all the purchasers could be properly bound by the order made by the appellate court.

An appeal must be made by the service of notice “ upon the adverse party.” (Code, § 327.)

An adverse party is one who has an interest adverse to the reversal of the order. (Cotes v. Carroll, 28 How., 436; Hiscock v. Phelps, 2 Lansing, 106.) Only one notice is required to limit the time in which to appeal. (Code, § 332.)

• If this was not so there might be many appeals from the same order taken at different times and heard separately.

I see no reason to have a reargument on the Stoughton appeal dismissed in May.

As to the appeals which have been taken after the dismissal of Stoughton appeal, and after thirty days from the service of the notice in writing, March 20, 1875, it follows that they are unauthorized, and must be dismissed as having been taken after the time to appeal had expired.

Reargument denied, with costs. Appeals dismissed, two motions, with costs.

Present — Barnard, P. J., and Talcott, J.

Reargument denied, with costs and disbursements.


text:
    JOHN LANG, Appellant, v. JOSHUA BROWN, Respondent.

      Perpetuating testimony — Discovery — Power of county judge.

    The provisions of the Revised.Statutes relating to the perpetuating of testimony are still in force.
    The word “ discovery,” as used in the Revised Statutes, was never applied to the perpetuation of testimony.
    Powers of county judge defined.
    Appeal from an order made by the county judge of Kings county, dismissing the proceedings instituted to perpetuate the testimony of one Joshua Brown in the, above entitled action.
    The above entitled action was pending in the Court of Common Pleas for the city and county of New York, and an order was made by the judge of such court, directing Joshua Brown to appear before the county judge of Kings county to be examined, that his testimony might be perpetuated for such action.
    The motion to dismiss the proceedings was made before the county judge of Kings county, on the grounds that the justice of the Common Pleas of New York had no power to make the order, and that the statute relating to the perpetuation of testimony had been repealed by the Code of Procedure.

      Abraham Kling, for the appellant.

      John 11. Bergen, for the respondent.
   Barnard, P. J.:

The judges of the Court of Common Pleas are county judges. (Matter of Morgan, 56 N. Y., 629.) County judges are clothed with the powers which a judge of the Court of Common Pleas, being of the degree of counselor of the Supreme Court and acting as a Supreme Court commissioner, could exercise. (Judiciary act, Laws of 1847, p. 638, § 27.) Such an officer can perform the duties of a Supreme Court justice at chambers.

By the Revised Statutes such an officer can perpetuate testimony. ( 2 R. S. [Edm. ed.], 414, § 33.) In all cases where an application is made to an officer authorized to take the testimony, he may make the order returnable before any other officer authorized to take the examination, in the county where the witness resides. The county judge of Kings county is such an officer.

I can discover nothing upon which a claim can be based, that the provision of the Revised Statutes as to perpetuation of testimony is repealed. It is not in terms repealed. Section 389 of the Code has no reference to it. “No action to obtain discovery under oath in aid of the' prosecution or defense of another action shall be allowed, nor shall any examination of a party be had on behalf of the adverse party, except in the manner prescribed in this chapter.”

Discovery had a definite meaning under the Revised Statutes. Chancery could compel it, and the Supreme Court also could in certain cases. It never was applied to the perpetuation of testimony, and I think this section was intended to have no effect further than to abolish all actions and proceedings for a discovery which existed at the passage of the Code.

I think the order should be reversed on both grounds, with costs.

Present — Barnard, P. J., Tappen and Taloott, JJ.

Order reversed, with ten dollars costs and disbursements.


author: Talcott, J.:

text:
    THE TRUSTEES, Etc., OF THE TOWN OF EAST HAMPTON, Appellants, v. OSIAH KIRK, Respondent.
    ‘ ‘ Beach ” — meamng of,. in deed — local me of word — evidence as to.

      A tract of land, situated in Suffolk county, was conveyed to the defendant’s grantor, the deed describing it as bounded northwesterly by the “ clift or beach.” Held, that the land conveyed extended to high-water mark. If the words “beach” and “clift” were, at that time different points, then the grantee would take to the beach, the farthest point indicated.
    The word “beach,” when used in conveyances of land fronting on the sea, or on bays, means the tract of land lying between high and low-water mark.
    After the defendant’s grantor had entered into possession of the farm, certain persons occasionally took sea-weed from the seaward front thereof. Held, that in the-absence of any proof that it was taken under claim of title, the taking was presumptively referable to a tacit license, or to casual trespasses, and did not constitute any hostile possession, sufficient to interrupt the general possession of those claiming under the deed.
    The defendant offered to prove that the word “ beach,” as used in Suffolk county, included all the sandy territory between the upland and high-water mark. Seld, that the evidence was inadmissible, and was properly rejected.
    Appeal from an order denying a motion for a new trial, made upon a case and exceptions.

      George Miller, for the appellant.

      E. A. Carpenter, for the respondent..
   Talcott, J.:

The appeal in this case is from an order of the Special Term, denying a new 'trial. The action is ejectment, and the controversy is concerning the title to a narrow strip of land lying along the sea front of the defendant’s farm, situate at a place called Northwest in the town of East Hampton, in the county of Suffolk. The only questions, presented by the appellant, relate to the construction put by the court at the Circuit upon the description contained in a deed, made in 1810, by Daniel Dayton and Miller Dayton to Jonathan B. Mulford, which was introduced as the foundation of the defendant’s title. By that description the north-westerly boundaries of the premises conveyed to the defendant, were the “ cleft, or beach.” The plaintiffs introduced in evidence, and claimed title under, “Dongan’s patent” of 1686, which patent is not printed in the case, but was assumed to be a conveyance to the town of East Hampton of a tract including the premises in question. The plaintiffs also gave evidence, from old records of the town, tending to show the original allotment, of the farm occupied by the defendant, to certain of the inhabitants of the town in 1736. The description in the record of allotments is somewhat obscure, but all the premises proved to have been allotted at that time are bounded “ westwardly by ye clift.” This word is, in the conveyances which were introduced on the trial,sometimes “clift,” sometimes “cleft” and sometimes “ cliff,” but was assumed to mean “ cliff.” As far as can be gathered from the testimony, there is no actual cliff, or steep precipice, or precipitous bank on the north-westerly side of the defendant’s farm at this time; the land, however, is more or less but irregularly elevated as it recedes from the shore of the sea. It does not appear how this was at the time of the allotments, or at the time of the execution of the deed of 1810. The kind of soil and its compactness, which exists between high-water mark, and the uplands of the defendant’s farm, embracing the premises in question, tend to show that it was formed by gradual encroachments upon, and abrasions of the uplands by the waters of the sea, and whether there was any appreciable space at the time of the allotments, or at the time of the deed of 1810, between the uplands of the defendant’s farm and high-water mark, does not appear. Jonathan B. Mulford entered into possession of the farm under the deed of 1810, and remained in possession till his death, in about the year 1813; and, although the premises in dispute were not inclosed, he claimed to own the same, and exercised such acts of possession and ownership over and upon the same as the nature of the premises was susceptible of, and according to the customs of that day. The judge, at the trial, ruled that the deed of 1810 carried the grantee entering under it to high-water mark. This ruling is excepted to, and its correctness depends upon the meaning of the word “ beach ” as used in that description, because it is conceded by the appellant that if the words “beach” and “cleft” were, at that time, in fact different points, then the grantee would take to the beach, the farthest point indicated. The court held, the word beach to be synonymous with shore, and that the grantee, under the deed of 1810, took to high-water mark. The interpretation given to the word by the court is not only in substance the same as that given by the various dictionaries in use, but is also in accordance with several judicial decisions of high authority. In Cutts v. Hussey (3 Shepley, 237), which involved the question, the court says: “ By a ‘ beach ’ is to be understood the shore or strand, and it has been decided that the seashore is the space between high and low-water mark.” In Littlefield v. Littlefield (28 Maine, 180), the language of the court is: “ The word beach must be deemed to designate land washed by the sea and its waves, and to be synonymous with shore.” Chief Justice Shaw, in delivering the opinion in Doane v. Willcut (5 Gray, 328), says: “ The word ‘ beach ’ we consider, when used in reference to places any where in the vicinity of the sea, or arm of the sea, as having a fixed and definite meaning, comprising the territory lying between the lines of high and low water, over which the tide ebbs and flows. It is in this respect like shore or strand.” It is well settled that the right of soil of owners of land bounded by the sea, the shore of the sea, of strand, where the tide ebbs and flows, extends to high-water mark. (3 Kent’s Com., 427 ; Storer v. Freeman, 6 Mass., 435.) The ruling of the judge at Circuit as to the interpretation of the description contained in the deed of 1810, was therefore correct. It was not suggested that there was, upon the evidence, any question of fact to be submitted to the jury. The evidence showed that Jonathan B. Mulford entered into possession, claiming title to the premises in dispute, under the deed of 1810, the claim, therefore, being founded upon a written instrument. This written instrument, it' the ruling was correct, embraced the premises in dispute ; and, under it, Mulford claimed title down to the beach, or high-water mark. Tie occupied the premises, so claiming title, down to his death in about the year 1843. His executors conveyed the premises by substantially the same description in 1846. And the defendant deduces a regular paper title down to himself, in 1861, with evidence of continued occupancy and claim. The evidence showed - a title, by adverse possession, in Jonathan B. Mulford, existing for thirty odd years, unless a hostile occupancy or claim during that period, or continuing uninterruptedly for twenty years afterward, was shown. The testimony did show the occasional taking of seaweed from the seaward front of the farm by individuals, without, so far as appears, any authority and without any claim of right; and that the defendant had, in such cases, when it came to his knowledge, demanded and received compensation for the seaweed so taken. Seaweed cast up by the waves upon the shore, prima facie, belongs to the owner of the soil. (Emans v. Turnbull, 2 Johns., 313; Phillips v. Rhodes, 7 Metc., 322.) And, in the absence of any proof that the seaweed was taken by the individuals who took it, under any claim of title, the taking was presumptively referable to a tacit license, or to casual trespass, and did not constitute any hostile possession sufficient to interrupt the general possession of Mulford, and those succeeding him in the title. After the verdict was directed, the plaintiff’s counsel offered to show that the people of East Hampton, after the conveyance of 1810, occupied the beach,” by getting seaweed, without objection up to the time of the conveyence to ' Rogers. The conveyance to Rogers was in September, 1850, and not within twenty years previous to the commencement of the action. The offer was also defective, because it did not contain any offer to show that the persons who took the seaweed did so under any claim of right or title, or under any authority from the plaintiffs. The plaintiff also offered to prove that the word “ beach,” as used and understood in Suffolk county, included all the sandy territory between -the upland and high-water mark. This offer was rejected. The rule on this subject is that, as to words which are purely technical or local — that is, words which are not of universal use, but are familiarly known and employed either in a particular district, or a particular science or trade — parol evidence is admissible to define and explain their meaning. (1 Greenl. Ev., § 295.) The word offered to be interpreted here, by proof of the custom of the inhabitants of Suffolk county, is a word in general use, contained in the ordinaiy dictionaries, and which has received interpretation in several judicial decisions, and it would be very dangerous to receive such evidence to show that the intention of the grantor and grantee was different from that imported by the terms used, according to their general and legal signification. A similar question was presented in the case of Littlefield v. Littlefield (28 Maine, 180), and the court there stated the principle applicable to the question as follows: “ The rule is, that parties to contracts are supposed to know and use language legitimately ; and, therefore, parol evidence that a word is used in a particular place, in a different sense from its true meaning, is inadmissible.” So, in Paull v. Lewis (4 Watts, 402), it was held, that it was not competent to prove the general understanding of a county, as to the meaning of words used in a written contract for the sale’ of land.

There seems to be no valid ground for granting a new trial presented by the exceptions.

The order denying a new trial is affirmed.

Present — Barnard, P. J., Tappen and Taloott, JJ.

Judgment affirmed with costs.


author: Taloott, J.:

text:
    MATTHEW D. BOGERT, Plaintiff in Error, v. THE PEOPLE, Defendants in Error.

      Writ of error — only final judgment can be reviewed by.

    A writ of error does not lie, either in civil or criminal cases, except from a final judgment of the court to which the writ is directed.
    Plaintiff in error, having been arraigned in the court of Oyer and Terminer, pleaded not guilty, and also interposed two special pleas, each to the whole indictment. A demurrer, interposed by the attorney-general to the special pleas, having been sustained, the plaintiff sued out a writ of error. Seld, that the judgment was not a final one, and that the writ should be dismissed.

      People v. Hartung (26 N. Y., 154) distinguished.
    Writ of error to the Court of Oyer and Terminer of Rockland county.

      O. P. Hoffman, for the plaintiff in error.

      Da/niel Pratt, attorney-general, and Charles T. Maaleam, for the defendants in error.
   Taloott, J.:

The defendant, late the county treasurer of Rockland county, was indicted at a special and extraordinary Court of Oyer and Terminer appointed by the governor for the 29th day of December, 1874. The indictment is for alleged embezzlement of the moneys of the county, in the possession of the defendant as county treasurer. On being arraigned the defendant pleaded, first, not guilty, whereof he put himself upon the country in the usual form, and he also then pleaded two special pleas, each to the whole indictment, one in effect insisting that no petit jury was summoned, or attended, at the said special Oyer and Terminer, and that the precept issued by the district attorney for the holding of such special Oyer and Terminer had not been filed at the time the indictment was found. The other, that more than three years, after the commission of the offenses specified in the indictment, had elapsed before the finding or filing of the said indictment, although during and since the alleged commission of the offense the defendant had been an inhabitant, and resident within the State. To these special pleas the attorney-general demurred, and the defendant joined in demurrer. The demurrer came on to be argued at an ensuing term of the said Court of Oyer and Terminer, when the demurrer of the attorney-general was sustained by the court, and it was ordered that the people have judgment thereupon, but no judgment was in form entered on the demurrer. Thereupon, and without any further proceedings in the Oyer and Terminer, the defendant brought a writ of error to which the clerk has returned the record, so far as it has proceeded in the case. According to the well settled rule of law a writ of error does not lie in this case at the present stage of the proceedings in the Oyer and Terminer. A writ of error does not lie, either in civil or criminal cases, except from a final judgment of the court to which the writ is directed. The action must be finally disposed of in the inferior court. If the decision had been in favor of the defendant upon the issue joined on the demurrer, a final judgment in his favor would have followed, notwithstanding the plea of not guilty remained untried, because in that case there could have been no trial on the plea of not guilty; the answer, specially made by the defendant to 'the whole indictment, having been held by the court to be sufficient, would have entitled the defendant to a final judgment, discharging him from the prosecution. But the order of the court, sustaining the demurrer to the special pleas, does not by any means authorize a final judgment against him. For aught that appears by the record, the defendant may not be guilty of the offense charged in the indictment, notwithstanding the court has held that the matters embraced in the special pleas do not, of themselves, constitute any defense to the indictment. The distinction is well illustrated in the case of The People v. Hartung (26 N. Y., 154), where judgment had been given in favor of the defendant on the special pleas, and that she be discharged, thus finally disposing of the ease. In that case Judge Selde-N, delivering the opinion of the court, says: “At common law, no writ of error lay until after final judgment in any case, either civil or criminal, and we find nothing in the statutes applicable to this case changing' in any respect that rule. If, therefore, the judgment brought up by the writ of error was not a final judgment, the writ must be dismissed.” The writ of error, however, in the case of The People v. Hartung, was sustained upon the ground, that although the plea of not guilty had been interposed, and remained untried, the decision of the court in favor of the special pleas, and the discharge of the prisoner, finally disposed of the case in the Oyer and Terminer. In Peet v. McGraw (21 Wend., 667), Mr. Justice Nelson says: “It is only upon the idea, that the whole matter is disposed of and ended in the court below, that the writ of error can be sustained, and that should be determined from an inspection of the record itself.” This court has no jurisdiction to review the decision of the Court of Oyer and Terminer before final judgment. (People v. Stearns 23 Wend., 634; see, also, The People v. Merrill, 14 N. Y., 74.) The cases referred to, and many others which might be cited, clearly explain the rule of law on this subject, and show that a case cannot be taken to a superior court, upon a writ of error, by “ piece meal,” and such has been the established law since Metcalfs Oase (11 Coke, 38). The writ of error, therefore, must be dismissed, upon the ground that no final judgment has been rendered in the Court of Oyer and Terminer, and without indicating any opinion upon the validity of the special pleas or either of them. Writ of error dismissed.

Present- — -Barnard, P. J., Tappen and Talcott, JJ.

Ordered accordingly.


text:
    PATRICK H. MURRAY, Appellant, v. URIAH BAKER, Respondent.

      Contract — condition precedent — failure to comply with.

    Tlie plaintiff did certain flagging for the defendant, in front of eight houses erected by defendant, under an agreement by which the plaintiff agreed to wait for payment “until Baker sells some of the houses for cash ; and then, when sold, I want my bill of flagging paid.” It appeared, upon the trial, that Baker had sold one house for soap, another for jewelry, and still owned the others. Held, that, as none of the houses had yet been sold for cash, plaintiff could not recover.

      Lorillard v. Silver (36 N. Y., 578) followed.

      Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      L. Baffin Kellogg, for the appellant.
    There is an implied obligation on the part of the defendant, by reason of his acting under the contract, that he will sell the houses at some time. As no definite time is fixed by the contract in which the defendant must sell, the law will imply that a reasonable time is intended. (Howe v. Woodruff', 21 Wend., 610.) The question, what is a reasonable time, is mainly one of law. (2 Pars, on Cont. [5th ed.], 535 ; Stodden v. Harvey, Cro. Jac., 201; Ellis v. Paige, 1 Pick., 13; Porter v. Blood, 5 Pick., 51; Atwood v. GlarJc, 2 Greenl., 219; Kingsley v. Wallis, 11 Me., 57.) If a reasonable time has elapsed, and the defendant, being obligated to sell, has not sold, he has failed to perform his contract, made a breach thereof, and the debt is due. (Thomas v. Fleurry, 26 N. Y., 26; Seltenrioh v. Hiemenz, 16 N. Y., 677; Bee v. Deelcer, 6 Abb. [N. S.], 392; Hanna v. Wells, 21 Wend., 90 ; McDonald v. Pierson, 38 Barb., 128 ; Tomffkins v. Lee, 2 N. Y. S. 0., 589.) The condition precedent in this case, admitting one to exist, for the sake of argument, is to sell the houses for cash, in a reasonable time. This case is to be distinguished from a class of cases such as Scanlon v. Eislord (7 Johns., 36), Cuiledge v. West (2 Denio, 377), Merritt v. Seaman (2 Seld., 168), Ferris v. Purdy (10 Johns., 359), and others, where there was no obligation on, or power in, the promisor to perform the condition, as in this case.

      E. Sprout, for the respondent.
    The right of action could not arise under the contract, “ until the said Baker sell some of the houses for cash.” (Chit, on Cont. [11th ed.], 1086 ; Thurnell v. Balbirnie, 2 M. & W., 786-790; Boyden v. Marriott, 2 Scott, 703, 710; Worsley v. Woods, 6 Term R., 710; Chit, on Cont., 1087, note s; Milner v. Field, 5 Ex., 829 ; Morgan v. Bvrnie, 9 Bing., 672: Smith v. Briggs, 3 Denio, 73; Story on Cont. [1th ed.], § 32 ; Boston v. Herman, 11 Abb., 378; Gortledge v. West, 2 Denio, 377; Franlclim, v. Robinson, 1 Johns. Oh., 157 ; 2 Pars, on Cont. [5th ed.], 510, note y.)

   Talcott, J.:

The defendant had built eight houses on Gates avenue and Monroe street in Brooklyn. The plaintiff agreed to do certain flagging of the sidewalk and yards in connection with such houses. The agreement between the parties was in. writing, signed by the plaintiff. After stating the rates and prices for the flagging, flie agreement concludes as follows: I further agree to put down at the above prices all the flagging that Mr. Baker wishes, on Gates avenue houses’and the four Monroe street houses, and wait for my pay until Baker sells some of the houses for cash, aud then, when sold, I want my bill of flagging paid.” The defense is, that the defendant had not at the time of the trial sold, and had not been able to sell, any of the houses for cash. The defense was sustained by the referee.

The contingency, on the happening of which the plaintiff was to be paid, seems to be in the nature of a condition precedent, and however ill-judged or'foolish it may have been on the part of plaintiff to agree to such a condition, it cannot be abrogated by the court, nor can the contract be changed. The case seems to be in principle precisely analogous to the case of Lorillard v. Silver (36 N. Y., 578). In that case, the vendee of certain premises had agreed with the vendor to pay the vendor $500 “ in case I (the vendee) realize $3,500 for said land, or any other sum that I may sell said land for, between $3,000 and $3,500, less certain interest, etc.” There was a finding in that case that the defendant bought the land to sell, and had received an offer of $1,500 by a responsible party. It was held, however, by the Court of Appeals, reversing the Supreme Court, that the plaintiff could not recover, since the defendant had not in fact “realized” or sold the land. The court, in the opinion, holds the following language : If the contract had used language importing an obligation to sell on his part, or to use diligence to effect a sale, or to exercise his judgment when an offer to sell should be made, a different question would, in such event, have been presented. The present contract, however, plants the defendant on the naked ground of selling the land and realizing a specific amount. This state of things has never been reached.” So the contract, in this case, .places the defendant on the naked ground of a sale for cash,” and upon the testimony and findings this contingency not only has not happened, but the defendant has been unable to effect a sale of any of the houses for cash, although it appears two of the houses have been sold for soap, and one for mock jewelry, leaving five of the houses still unsold. The bargain made by the plaintiff may have been improvident. For this be has only his own incautiousness to blame. We do not see how he is to be relieved upon any ground that is definitely disclosed in the case. There are no facts alleged in the complaint to show that the terms of the contract have been in any manner waived, or that the defendant has refused to do any thing which under the agreement he was bound to do. Judgment affirmed.

Present — Barnard, P. J., Tappen and Taloott, JJ.

Judgment affirmed, with costs.


text:
    THE PEOPLE ex rel. ALBERT DAY, Respondent, v. JOHN H. BERGEN, Appellant.

      Commitment for contempt — variance of requirements of warrant from those of order directing warrant to issue — section 2 of chapterr 619 of 1870 — lien of assessment made-under.

    The appellant, a referee appointed to sell certain real estate in pursuance of a decree of foreclosure, was, by an order made January 21,1873, adjudged guilty of a contempt for failing to comply with the terms of an order made December 20, 1872, by which he was directed to pay all taxes and assessments upon the premises “ which were then due and payable.”
    All the taxes and assessments had been paid, except two-thirds of an assessment for the opening of Atlantic avenue, made in pursuance of chapter 619 of 1870. Section 2 of this chapter provides that “the amount of the asesssment * * * shall be returned to the supervisors of the town and * * * he added to and make a part of the annual taxes, in equal proportion, for each of the ensuing three years, with interest from the confirmation, as the portions unpaid on the lands so assessed.” At the time of the sale only one-third of the assessment had been added to the tax rolls.
    In June, 1874, a warrant of commitment was issued directing the commitment of the appellant until he should pay “all the taxes and assessments which were due and payable or a lien upon said premises. Held (1), that it was questionable whether any portion of the assessment became a lien until it was added to the tax roll; (2), that no portion thereof became due and paycible until it was added thereto; (3), that as the order of December 20,1872, only required the payment of the taxes and. assessments “ due and payable ” at the time of the sale, and the order of January 20,1878, convicting the defendant of contempt, was to the same effect, it did not authorize the issuing- of a commitment, requiring the payment of those which were then liens upon the premises, but not due and payable.
    Appeal from an order made at the Special Term, denying a motion to vacate and set aside a commitment for contempt.

      John H. Bergen, appellant, in person.
    The .variance between the orders and the writ is fatal. (Butler v. The State, 3 McCord, 383; Com. v. Unknown, 6 Gray, 489 ; Hall v. The State, 3 Kelly, 18; State v. Petty [S. C.], — Hawk., 59 ; Wharton Cr. Law, vol. 1, § 365 ; 1 Tidd Pr. p. 293, and cases cited in note hh.)

      Albert Day, respondent, in person.
   Talcott, J.:

This is an appeal from an order made at a Special Term, in Kings county, denying a motion to set aside a process of commitment against the defendant. The process purported to have been issued under an order of the Special Term, made on the 21st of January, 1873. That order has been affirmed by the General Term of this court, and by the Court of Appeals. (33 N. Y., 404.)

The appeal before us, therefore, cannot involve any renewed discussion as to the merits of the order, or its validity; nor can we hold it to be void and incapable of execution for uncertainty. It must be assumed here that the order was, in all respects, regular and valid. The only question open on this appeal is, whether the process, which the defendant seeks to set aside, is in strict conformity with the order under which it is assumed to have been issued. The order, being in derogation of personal liberty, is, unquestionably, to be strictly construed, and not to be varied or enlarged by any intendments or presumptions. It must be held to fully express the intention of the court, neither more nor less. From the various orders, affidavits and accompanying papers it is somewhat difficult to arrive at an accurate and precise knowledge of the point in controversy between the parties. But, from the papers in this, and the accompanying motion to strike out the return of the sheriff, and from the statements and concessions of counsel, the history of the matter is understood to be substantially as follows: The defendant was a referee, appointed to sell certain premises in the town of New Lots, under a decree in the foreclosure'suit of Harvey S. Easton v. Charlotte A. Pickersgill and others. The premises were sold, and struck off to the delator on the 3d day of May, in the year 1872. By the terms of the decree, the referee was ordered that, “out of the moneys arising from such sale, after deducting the amount of his fees and expenses on such sale, and any lien, or liens, upon said premises so sold at the time of sueh sale for taxes, assessments or prior mortgage, the said referee pay to the plaintiff, or his attorney, etc.” At the time of the sale there had been no attempt at any judicial determination or ascertainment, as to what taxes and assessments were then valid liens upon the premises. After various delays and controversies between the relator, as the purchaser, and the referee, to which it does not seem to be necessary more particularly to allude, it ájipears that the referee has paid out all the money in his hands as the proceeds of the sale, except, perhaps, the fees and expenses of the sale, to the holder of a prior mortgage; to the plaintiff in the foreclosure suit; and to the collector of the town of New Lots, on account of certain assessments, conceded by the referee, to have been valid liens on the premises at the time of the sale. But there remains unpaid part of a certain assessment, hereafter more particularly referred to, and amounting to about the sum of six or seven hundred dollars, which the referee has not paid, and concerning his liability to pay or reserve which this controversy exists. If the unpaid residue of the assessment m question was a valid lien upon the premises at the time of the sale, then, as I understand the ease, the defendant has paid over to the plaintiff in the foreclosure suit, an amount equal to the unpaid balance of the assessment, in excess of what he was entitled to receive, and is held by the court, on the appeal from the order in question, to be personally liable to refund the same, with the right to pursue his remedy against the plaintiff in the foreclosure suit, to compel a repayment of the moneys paid over to him in excess; and the real matter in controversy'.between the relator and the defendant is, whether the unpaid portion of the assessment referred to, was a lien upon the premises at the time of the sale. By an order of December 20th, 1872, the defendant was order'ed, in general terms, to apply the purchase-money received by him “ to the payment and discharge of all the taxes and assessments upon the mortgaged premises mentioned in the action, and in the judgment therein,’ dated March 7th, 1872, which were due and payable thereon at the time of the sale of said premises.” The order appealed from, is made for a violation of the order of December 20th, 1872, and pursues its language as to the particular taxes which the defendant is required to pay, and neither of those orders, so far as appears by the case before the Court of Appeals, a copy of which is made a part of the papers on this motion, contains any specific adjudication, or statement, as to what particular taxes or assessments were liens on the premises, at the time of the sale; and I do not understand how the question as to the validity of the assessment for opening Atlantic avenue, or the time when the several parts of it attached as liens, could have been before the Court of Appeals, or the General Term of this court, on the appeal from the order of January 21st, 1873. After the decision of the Court of Appeals, and on the 11th day of February, 1874, an order was made, in the case of Easton v. Pickersgill and others, referring it to Jesse Johnson, Esq., to ascertain and report the amount of the taxes and assessment which were due upon the premises at the time, of the sale, over and above the amount which the referee, under a previous order, had deposited in court to the credit of the action. The order of reference to Mr. Johnson, and the papers on which it was founded, are not among the papers submitted to us, but from the recitals in the order confirming Mr. Johnson’s report, it is to be inferred, that the order of reference was made on the motion of the defendant in this proceeding, and for the purpose of having it judicially determined, whether, the plaintiff in the foreclosure suit had been paid iti excess of the amount he was entitled to receive, and if so, to have such excess refunded. This involved solely the question as to what amount of taxes and assessments constituted a lien on the premises at the time of the sale, and whether the money so deposited in court was sufficient to pay such amount, without recourse to the plaintiffs in the foreclosure suit. It appears from the report of Mr. Johnson that he was attended by the now defendant, and by the counsel for the plaintiff in the foreclosure suit; Mr. Johnson reports, amongst other amounts due for taxes and assessments at the time of the foreclosure sale, only the one-third part of the assessment for opening Atlantic avenue, which one-third had been added to the assessment roll of 1871, and that the “entire amount of taxes and assessments, with interest and defaults then (at the time of the foreclosure sale), liens on said premises,” amounted to a sum, less than the amount so deposited in court, and that after the application of the moneys in court to the payment of the amount, there would be no part of said taxes and assessments left unpaid, and that there was no deficiency to be refunded by the plaintiff in the foreclosure suit. The report of Mr. Johnson was, on the 13th of February, 1874, confirmed on the motion of the plaintiff in the action, and the order of confirmation adjudges, that there is no deficiency for the plaintiff to refund or repay. It is conceded that the relator had no notice Of the reference to Mr. Johnson, and no opportunity to appear and be heard on that reference, or upon the order confirming the report, and he claims that he is not bound by that proceeding, or the adjudication thereupon. It seems to me that this objection is well founded. The relator was materially interested in the question, as to whether the purchase-money paid by him should be applied in discharge of the entire assessment for opening Atlantic avenue, or only one-third of it. The relator, therefore, is not estopped by the proceedings on the reference to Mr. Johnson, from claiming that the entire assessment for opening Atlantic avenue was a lien upon the mortgaged premises at the time of the sale thereof. The reference to Mr. Johnson, and the proceedings in connection therewith ' seem to constitute the only attempt to have a judicial ascertainment and determination, binding upon any of the parties, specifying what particular taxes and assessments were liens upon the premises at the time of the sale. The defendant had paid over, through the clerk of tlié court, as I understand it, the entire amount of taxes and assessments reported by ‘vMr. Johnson, and, as was understood to be conceded on the argument, to the various parties, the entire amount of the purchase-money received by him on the sale of the premises, except perhaps his fees and expenses on the sale, so that the real controversy between the relator and the defendant is, whether the defendant shall be compelled to pay the remaining two-thirds ot the assessment for opening Atlantic avenue. The defendant is probably estopped by the proceedings on the reference to Mr. Johnson and their confirmation, from claiming that the plaintiff in the foreclosure suit shall refund any of the money paid over to him. On some of the various proceedings in this matter the relator, it appears, presented, attached to his motion papers, certain certificates from the comptroller’s office' at Albany, and certain written statements from the collector of the town of New Lots, which he claims, show that the residue of the tax for opening Atlantic avenue was a lien upon the premises at the time of the sale. These papers are scarcely intelligible without fuller explanation than appears upon the papers themselves, and do not appear to constitute any legal evidence of the existence and validity of the assessments therein referred to, and cannot be considered as conclusive upon the question as to when the several portions of the assessments became liens upon the premises, or became due and payable. The assessment in question, was for the opening of Atlantic avenue, through.the town of New Lots, under the second section of the act for that purpose, being chapter 619 of the Laws of 1870. By that section it is provided, that the amount of the assessment on the lands assessed therein,' (the report of the commissioners), shall be returned to the supervisor of the town, and shall, by the supervisors of the county of Kings, be added to, and make a part of the annual taxes, in equal proportion, for each of the ensuing three years, with interest from the confirmation on the portions unpaid on the land so assessed.” The statute nowhere declares that the assessments made for the lands taken to open the avenue shall be a lien upon the premises assessed ; and as it is a statute which, upon well settled principles, must be strictly construed, it is, to say the least, a matter of some doubt whether any portion of the assessment becomes a lien at any time, before such portion is, by the supervisors of the county, added to the annual taxes. And this, it was understood on the argument, is the precise question between these parties. It seems to be clear that those portions of the assessment which were not added, to the 'tax roll, at or before the sale on the foreclosure, could not be deemed to be “ due and payable ” before they were added to the tax roll. The evident intention of the legislature was to spread the assessment upon the tax rolls of three ensuing years, in equal proportions, and thus give to the parties liable to pay, a credit of three years; and that the respective portions of the tax should only become due and payable,” when added to the tax roll, to be collected as other taxes or assessments of the year. Now it will be seen that the order of December 20, 1872, for disobedience of which the order of January 21, 1873, was made, orders the defendant Bergen to apply the purchase-money to the payment and discharge of all taxes and assessments upon the premises “ which were due and payable” at the time of the foreclosure sale; and the adjudication of the contempt, in the order of January 21, 1873, is “ for failing to apply the purchase-money of said premises to the payment and discharge of all taxes and assessments upon said premises “ which were due a/nd payable thereon at the t/ime of the sale of the same by said Bergen, as referee;” and the order directs that the said Bergen stand committed, etc., until he shall apply the purchase-money aforesaid to the payment “ of all said taxes and assessments,” etc.

The assessment upon these premises for opening Atlantic avenue was made by the commissioners in 1871. And one-third thereof was, by the supervisors of Kings, added to, and made a part of the annual taxes, in November, 1871. The sale on the foreclosure was on the 3d of May, 1872. So much of that assessment was, therefore, “ due and payable ” at the time of the sale, and was so reported by Mr. Johnson, and was paid by the application of the moneys deposited in court before the issuing of the warrant of commitment, under the order of January 21, 1873. The defendant claims that it never has been adjudicated, or in any authentic manner determined, that the two-thirds of tbe assessment in question were liens on the premises at the time of the sale, indeed, that it was adjudicated that they were not such liens, by restricting the amount he was authorized and ordered to pay to the amount “ due and payable.” The warrant of commitment was prepared by tbe relator, who is an attorney of this court, and was not delivered to the sheriff till June, 1874.

The warrant purports to recite the substance of the order of commitment, and states the order to be that the defendant be committed to the county jail, there to remain charged with the contempt until he shall apply the purchase-money of the premises to the payment “ of all the taxes and assessments which were due and payable, or a lien 'upon said premises,” at the time of the sale by said Bergen, as referee; and the sheriff is ordered to arrest and keep the defendant until he shall have applied the said purchase-money to the payment of the taxes and assessments aforesaid. The defendant claims that the mittimus varies in substance from the order on which it was founded, by the addition and interpolation of - the words, “ or a lien upon said premises,” whereas the order required only the payment of such amount, as was “due and payable” at the time of the sale. As before suggested, it appears to me doubtful whether any part of the assessment can be held to be a lien under the statute authorizing the proceedings to lay out the avenue, until it shall have been added to the annual tax list, and this is a question upon which it appears to me the defendant has a right to have some distinct adjudication, from which he can appeal if so advised. We are bound to suppose that the language of the order, convicting the defendant of the contempt, deliberately and accurately expresses the full intention of the court which made it. It may be that the Special Term which made the order, intended to determine that the entire assessment became a lien on the premises from the time of the confirmation of the report of the commissioners. It may be that the relator was entitled to such a ruling, but such is not the import of the- language used in the order; on the’ contrary, I do not see but that the defendant may justly claim upon the face and language of the order, that the court intended • to hold and decide, that the lien at the time of the sale was confined to the amount then “due and payable.” It seems to me, therefore, that by the interpolation of the words in question, the relator may have materially changed the effect of the order, and the rights of the defendant under it. An order of this character, as before remarked, must be strictly construed and is not to be extended by implications and intendments, or speculations as to what the justice of the case might have authorized or required, and I can see no reason for the interpolation of the objectionable words, except to embarrass the defendant and to throw upon the sheriff, the responsibility of determining the question, as to whether the whole assessment, though not due and payable” at the time of the sale, must be paid by the defendant. If the relator considered that the language of the order of the 21st of January, 1873, was ambiguous, or was not such as he was entitled to, he should either have appealed, or moved to have it amended. The interpolation, on his ownmotion,- was unauthorized, and, I think, may be justly complained of by the defendant, and that the warrant of commitment, containing the interpolated words, ought to be set aside. The whole practice, in this case, seems to have been very loose and uncertain. I do not see how a referee, under such a decree, can safely proceed to disburse money on account of prior incumbrances, without some definite ascertainment of the amount of the prior incumbrances, by some adjudication or by some stipulation, binding on all the parties in interest! The serious difficulty with the defendant in this case, so far as the question in controversy between the parties is concerned, grows out of the omission to make the relator a party to the reference before Hr. Johnson. He may be compelled to pay the whole assessment for opening Atlantic avenue, without recourse to the plaintiff in the foreclosure action, to recover back any part of the money paid to him, if it shall be ultimately held that the whole assessment was a lien. The foregoing views lead to a reversal of the order appealed from. The order refusing to set aside the warrant of commitment is reversed, and the commitment is set aside as irregular with ten dollars costs of the motion, and ten dollars costs and disbursements of the appeal.

Present — Barnard, P. J., Tappen and Talcutt, JJ.

Ordered accordingly.


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    JOHN R. COOPER, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Physician — services rendered by, to an injwred employe — liability of company for— Biddence.

    An employe of the defendant having been injured, one Scanlon, an engineer of a gravel train, telegraphed to Martin, the station-agent at Poughkeepsie, to “ have Dr. Cooper [plaintiff] at depot, on arrival of No. 1 — a man injured.’-’ Martin handed the telegram to a hackman, with directions to give it to plaintiff. No other communication was shown between Martin or Scanlon and the plaintiff, nor was it shown that either of them had ever undertaken to employ the plaintiff on behalf of the company on any previous occasion. In an action by the plaintiff against the company to recover for services rendered to the employe, held, that he was properly nonsuited, on the ground that no employment by the company was shown.
    Plaintiff offered to prove that he had previously attended persons injured on the defendant’s road, and been paid therefor by the company, but did not offer to show that, in such cases, he had been employed by either Scanlon or Martin. Held, that the evidence was properly rejected.
    Appeal from a judgment in favor of the defendant, entered upon an order nonsuiting the plaintiff, in an action brought to recover for services rendered by the plaintiff as a physician, to a person injured on defendant’s road. Among other exceptions taken on the trial, was one by plaintiff, to the exclusion of the following question:
    Q. Upon how many previous occasions had you attended parties injured on the road of this defendant’s company, when your services were paid for by a check of the company ?

      Anthony & Lossy, for th,e appellant.

      Frcmk Loomis, for the respondent.
   Talcott, J.:

The plaintiff is a physician and surgeon, and brought this suit to recover against the defendant, for professional services rendered to one Richard Haley, who had been in the employment of the defendant, and in the course of such employment was in some way injured, so that amputation of one of Haley’s legs became necessary, and was performed. The defendant denies the employment by it to render the services, for which compensation is sought in the action. No facts appear in the case, from which it is to be inferred, that the defendant was in any way liable to indemnify Haley against the consequences of the injury which he had sustained. The evidence relied on by the plaintiff!, to establish the liability of the defendant to pay for the services in question, was a telegraphic dispatch sent by one J. Scanlon, an engineer of a gravel train upon the defendant’s road, to J. Martin, a station agent at Poughkeepsie,’ in the employ of the defendant. The dispatch in question is not set forth in the case, but is given in the points of the plaintiff, and was as follows:

“ June 6. J. Martin. Have Mr. Cooper at depot on arrival of No. 1; a man hurt.
“J. SCANLON.”

This dispatch was received by Martin at the station at Poughkeepsie, and he handed it to a haekman, with directions to take the same to the plaintiff, who received it. There was no evidence given of any communication between Scanlon or Martin and the plaintiff, save the dispatch in question. Both Scanlon and Martin were examined on behalf of the plaintiff, and neither claimed to be authorized, on behalf of the company, to employ a physician in any case. The plaintiff sought to prove, that he had before this time, attended persons injured on the defendant’s road, and was paid by the check of the company, for such services, but did not offer to prove, that in such cases he had been employed either by Scanlon or Martin. The evidence was rejected, upon the objection that it was incompetent to show in this manner any authority on the part of Scanlon or Martin to employ the plaintiff. He also was asked to state, whether, he had been called upon by Martin to perform professional services for a party injured on defendant’s road, without offering to show that in such case Martin had undertaken to employ the plaintiff in behalf of the defendant, or that the defendant had paid the bill, or in any • way ratified or authorized the employment.

At this period of the trial the dispatch had not been given in evidence, or any evidence offered, to show any communication, direct or indirect, between Martin and the plaintiff. This question was objected to, and the objection was sustained until Martin was shown to be in some way connected with the transaction. Martin was afterward called as a witness for the plaintiff, and from his testimony it did not appear, that he had any communication with the plaintiff' in reference to the matter, directly or indirectly, except to send to him, by a hackman or other casual messenger, the dispatch which he had received from Scanlon. The plaintiff was non-suited for want of proof tending to show that the defendant was liable. It is said in Redfield on Railways (2 Redfield on Railways, lié), that evidence that the company had ratified similar contracts, made by this same agent, might be evidence tending to show that they had given this particular servant authority to make such or similar contracts; but not that they had given authority to all their servants to do so. The questions proposed by the defendant and rejected, were not admissible even within this rule. There was no offer, to show, that the defendant had ever ratified any contract, undertaken to be made by Martin in respect to the employment of a physician. The nature of the office he held does not call for any intendment, that to make such a contract was within the scope of his powers; nor did it in any way appear that he had ever undertaken to employ the plaintiff in behalf of the company. (See Stephenson v. N. Y. and Harlem R. R. Co., 2 Duer, 341; Cox v. Midland Counties Railway, 3 Exch. [Welsby, Hurlstone & Gordon], 268.)

We think the exceptions taken by the plaintiff to the exclusion of his questions are not sustainable, and that the nonsuit was correct.

The judgment appealed from is affirmed.

•Present — Tappen and Taloott, JJ.

Judgment affirmed, with costs.


author: Barnard, J.:

text:
    WILLIAM HITCHCOCK, Executor, etc., Appellant, v. ROSETTA THOMPSON and others, Respondents.

      Will — attestation elrnse — position of.

    A will was drawn up on a sheet of paper fastened together at the ends, only the first and third pages being written on, and the second being left blank. It was signed by the testator at the bottom of the third page, while the attestation clause was placed at the top of the second, and signed by the witnesses. Held, that the will was properly executed and should be admitted to probate.
    Appeal from an order of the surrogate of Westchester county, refusing to admit the will of one Lozerne Heady to probate.

      Trmis db lent, for the appellant Hitchcock.

      D. 8. Hemok, for the appellant Weir.

      Francis La/rkm, for the respondents.
   Barnard, J.:

This is an appeal from an order of the surrogate of Westchester county, rejecting the probate of the will of Lozerne Heady.

The only point presented, arises, from the clumsy manner of the execution of the will by the subscribing witnesses. The will was drawn on a sheet of paper fastened at the end, in common use among lawyers. The will covered two pages and was written only on one side, so that the will ended at the bottom of the third page.

The testator signed it there. The witnesses had not room to place the attestation clause on this page, and instead of folding back the will, in the way the paper was folded when the first page of the will was written, and writing out the attestation clause on the top of what would then have been the fourth page of the one paper, they left the paper folded as it was when the testator signed at the foot of the third page, and turned the entire sheet over endways, and wrote the attestation at the top of the page. This page was, of course, the blank page between the two pages of the will, and on folding the will back as it was when the first page was written, the attestation clause is in the middle of the will and upside down.

It is a mere question of folding a paper. There is no fraud. The will was duly executed. The testator signed at the end of the will. All formal regularities were complied with.

The will was, in point of fact, attested after its execution by the testator, at the end of the will. The decree of the surrogate should be reversed, and the proceedings remitted to the surrogate of Westchester county, with directions to admit the will to probate.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Decree of surrogate reversed, with costs to both parties out of the estate.


text:
    JOHN ROSS, Appellant, v. LUCRETIA TITTERTON and WILLIAM TITTERTON, Respondents.

      M'audulent representations — right to rescind contract on account of.

    This action was brought to foreclose a mortgage, given by the defendant to plaintiff’s assignor, upon the purchase of the latter’s interest in the stock and good-will of a drug store. The defendant claimed that the mortgage was invalid, on the ground that he was induced to make the purchase by the fraudulent representations of the mortgagee, as to the value of his interest in the business. It appeared that the defendant, after discovering the fraud, continued in possession of the property purchased, selling portions thereof, for six months, at the expiration of which time and before the commencement of this action, he offered to retransfer to the mortgagee his interest in the property and restore him to the possession thereof. Held, that the acts of the defendant in continuing in possession of the property and disposing of portions thereof, for the period of six months, after knowledge of the fraud, constituted a ratification of the purchase, and that the fraudulent representations of the vendor could not, therefore, be interposed as a defense to this action.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action at a Special Term, in an action brought for the foreclosure of a mortgage.

      E. More, for the appellants.

      W. Howard Wait, for the respondents.
   Talcott, J.:

This is an action to foreclose a mortgage, brought by the assignee thereof, and of the bond accompanying the same. The bond and mortgage bear date on the 14th day of April, 1871, and were given to secure the payment of $7,464, with interest, at the expiration of one year from the date thereof. The bond and mortgage were executed to Marcus Rich, deceased, and were given to secure to him the unpaid part of the sum of $8,464, the purchase-money agreed to be paid by Titterton to said Rich, on the purchase by Titterton from said Rich, of the interest of said Rich in the “stock in trade, fixtures, furniture, effects, trade marks, labels, book accounts, bills payable, and good-will of business of the firm of Curtis & Rich,” carrying on the wholesale and retail drug business on Greenwich street in the city of New York. The defense set up in the answer of the defendants is, false representations and fraud and deceit by Rich, in the negotiations between himself and Titterton, which resulted in the sale and purchase of the property. The misrepresentations alleged in the answer are various, but relate directly or indirectly to the amount of capital invested in the business, and as to whether the business theretofore conducted by Curtis & Rich had been profitable. The bill of sale of Rich’s interest was executed to Titterton on the 14th day of April, 1871, and at that time he went into the possession of the property. The defense is founded on the claim of a rescission of the contract, upon the ground of the alleged fraud and misrepresentation. The action was tried before the court, and the justice has found that Titterton was induced to purchase Rich’s interest in the business, “ by means of the false and fraudulent representations made to him by said Rich, in respect to the property' and character of said business set out in the answer, and that such representations were in respect to material matters, and were calculated to and did deceive the said William Titterton, and also calculated to and did influence him in making said purchase, and in procuring the execution and delivery of said bond and mortgage, and were so made by the said Rich, knowing, their falsity, and for the purpose and with the intent of deceiving and of cheating and defrauding the defendants.” This is the only specification of the particular fraud, or fraudulent representation, contained in the findings, but from a careful examination of the case, it would seem, that the representation mainly relied on by the justice, as the ground of this finding, must have been a misrepresentation as to tbe value of the interest of Rich in the concern, depending principally on the amount of the property on hand, that is goods, fixtures, etc. It is earnestly insisted by the plaintiff, that no material fraud or false representation on the part of Rich is established. However, in the view which I take of the case, it should have been disposed of upon another ground, which renders a close analysis of the testimony, bearing upon the question of fraudulent representation, unnecessary. The representations relied upon as fraudulent, were in substance, as to the extent ofj and value of the interest of Rich, in the business. And the falsity of these representations depended, as is claimed by the defendants, in great part, on the amount and value of the stock and fixtures. A preliminary contract for the sale and purchase was made on the fourth of March; and between that time and the consummation of the transaction, on the fourteenth of April, the defendant Titterton had spent a large portion of the time at the store of Curtis & Rich, overlooking the business, with- full access to the books, and had taken an inventory of the stock on hand, but without naming the prices, which it was understood w-ere to be fixed at the cost-price. The statement of Titterton on the subject is: “The inventory was taken before I went into possession, but not completed, that is to say, the prices were not arrived at.” Neither Titterton nor Rich was a practical druggist; and it appears, from Tittertonjs testimony, that the inventory, was left to be completed, by the addition, of the prices and estimated quantities, by Curtis, who was relied on as a person of knowledge and experience in the drug business. Tin's inventory was finished by the addition of prices and quantities on the 1st of July, 1871. Hpon the execution of the bill of sale, Titterton went into possession of the property, and continued the business in conjunction with Curtis; selling the goods, and purchasing to some extent, though to what extent does not appear, until about the 1st of April, 1872, when their fixtures were sold out on a chattel mortgage, subject to which Titterton purchased; and the remaining stock of goods on a judgment, by whom, or on what account obtained, does not appear. During the period from the fourteenth of April to and including the first of July, when the inventory was completed by the addition of the prices and quantities, Titterton learned all the material facts concerning the representations, which he claims to have been fraudulent. He, however, in conjunction with Curtis, continued to sell and dispose of the goods, and collect the outstanding debts; and no account is given of the proceeds received in the business, though it appears that the sales were largely diminished after Titterton took the place of Rich in the firm. It is well settled, that a party who seeks to rescind a contract on the ground of fraud, must make his election to do so promptly, and, except under special circumstances, must be in a position to restore to the other party all that has been received, and must do so, or offer to do it. The finding in this case is, “ that the defendant, before the commencement of this action, offered to said Rich to retransfer to him his interest in the said business, and tendered to him a retransfer thereof, accompanied with an offer to restore to him the possession of his said interest, and demanded of him a surrender of said bond and mortgage, and the execution of a satisfaction-piece of the said mortgage, which said Rich refused to make or execute.” All the evidence on this subject is to be found in a stipulation at.the close of the ease, which only states the tender to have been made before the commencement of this action. The action, as appears from the date of the summons, was commenced on the 1st day of February, in the year 1872. The finding and the evidence in support thereof only established an attempt to rescind as late as the last day of January, 1872. So that, assuming that Titterton did not discover the discrepancy between the representations and the value of Rich’s interest until July, 1871, he omitted, so far as the case shows, to make any election to rescind the contract, for six months after a full discovery of the falsity, of what are now claimed to have been the fraudulent representations ; and, moreover, continued in the mean time, to carry on the business and sell and dispose of the property. Thus voluntarily putting it out of his power, to restore Rich to the statu quo at the time of the purchase. These facts, I think, present a sufficient reason, for denying the right of Titterton to rescind the contract, upon the settled principles of law applicable to such cases. That the rescission of a contract on the ground of fraud must be prompt, as soon as the party has had a reasonable opportunity to discover the fraud, is so often repeated in the adjudications that any reference to particular cases on this subject is unnecessary. It is also well settled, that in order to a rescission, the party rescinding must be able, and at least offer to restore the other party to the same situation in which he was before. In the case of Curtiss v. Howell (39 N. Y., 211), where the purchaser of bark, to be delivered at a certain rate per year for a series of years, to be used in the purchaser’s tannery, had received a portion of the bark, which he had consumed in his tannery, but which had been paid for under the contract as delivered, it was held that he could not rescind, the court saying: “ It is no answer, to say that he could not because the bark had been consumed. If this was so, the right of rescission no longer exists, for this is a right that can only be exercised by restoring all that has been received; and wdien the power to do this ceases, the right is also at an end. In Cobb v. Hatfield (46 N. Y., 533), the court says: “In order to rescind a contract on the ground of fraud, there must not only be a disaffirmance at the earliest practicable moment after the discovery, but a return of all that has been received under it, and a restoration of the other party to the condition in which he stood before the contract was made. * * * The taking of any benefit under the contract after knowledge of the fraud, or changing the condition of the property, the subject-matter of the contract, is a ratification of it.” So, in the case of Pullman v. Alley (53 N. Y., 637), where the question was of the right to rescind the purchase of a stock in trade on the ground of fraud, it was held, that as the evidence showed, that the vendee before offering to rescind, had sold most of the stock purchased, and 'had sublet the premises, and so was not in a condition to restore the vendors substantially to the situation occupied by them before the sale, he could not rescind, but must seek his remedy in damages. It appears, in this case, that the vendee, who seeks to rescind the contract, continued in the possession of the property, selling and disposing of the same, not only from the time of the purchase, but for about six months after full discovery of whatever fraud may have been practiced upon him by the vendor. During this time the sales fell off, and the business was less valuable and remunerative than it had been for the year preceding the purchase, until, soon after the commencement of the suit, all the tangible property of the concern was seized and sold upon the chattel mortgage, and upon a judgment. At the time of the attempted rescission, no account was given as to the proceeds of the sales of the property, or of the amounts collected on the debts due. The property could not be restored, and no offer was made to account for the proceeds; and it is evident that, in the hands of Curtis & Titterton, the business had diminished; that the good-will, which, it is evident, was looked upon as an important item in the sale, and which, it is admitted in the answer, was the chief inducement to the purchase rather than the intrinsic value of the stock of goods, must have been rendered nearly, if not altogether valueless. The defense is set up against an assignee of the mortgage, who, so far as appears, had nothing to do with the transaction as to which fraud is alleged, and as to whose title, aside from the alleged fraud in the transaction between the original parties, no impeachment appears in the evidence. He has the right to appeal to the most rigid and technical rules in answer to .the defense ; and, we think, for the reason stated, that, so far as appears from the case, the right to rescind at the time and in the manner in which the rescission was attempted, did not exist. But the vendee must be left to his remedy, sounding in damages. New trial granted, costs to abide the event.

Present — Barnard, P. J., Tapper and Taloott, JJ.

Judgment reversed on questions of law and fact, and new trial granted, costs to abide event.


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    GEORGE H. WOOSTER, Respondent, v. RUSSELL SAGE, Appellant.

      Sate of bonds — agreement to repurchase — statute of frauds.

    The defendant sold two bonds to the plaintiff, making certain representations as to their value, and agreeing that if at any time the plaintiff got sick of the bonds he might redeliver them to the defendant, who would refund the purchase-money. Two years afterward the plaintiff tendered the bonds to the defendant and demanded the purchase-money, and upon defendant’s failure to pay the same, brought this action to recover it. Held, that the agreement to.refund the purchase-money was not affected by the statute of frauds, as the contract was taken out of the statute by the delivery and receiving of the property and payment of the price.
    After the plaintiff had purchased the bonds he sold them to other persons, upon the same condition as to their repurchase by him, and, upon their request, took them back and refunded the price received for them. EM, that the defendant’s agreement was not affected by the sale.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions, in an action to recover the purchase-price of two bonds purchased by plaintiff from defendant under an agreement that the plaintiff should have the privilege of returning the bonds and receiving the purchase-price thereof.

      F. N. Bangs, for the appellant.
    A contract of sale or return is not a contract of sale and repurchase. The seller does not agree to buy a new title to the article contracted for; the buyer does not bind himself to resell and reconvey (with an implied warranty of title or otherwise). The contract is strictly a contract of rescission at the option of the buyer. (lord v. Kinney, 13 Johns., 219 ; Blanchard v. Trim, 38 N. Y., 225 ; Taylor v. Tilottson, 16 Wend., 493.) The title becomes absolute, and the purchaser becomes liable for the price, (if he has not paid it), by his simple omission to avail himself of the privilege of rescinding the sale, and annulling the contract at the time specified, if a time has been agreed upon; or by his omitting so to do within a reasonable time, if no time has been agreed upon; or by his asserting a dominion or control over the property; or if it has passed into the hands of third persons, or been attached by creditors; or if the property is injured or depreciated while in the hands of the vendee; or if it is kept by the vendee away from the vendor, and out of his reach. And if the vendee has paid the price, he forfeits his option by the same means, and no right of action accrues to him. (.Bcdley v. Goldsmith, Peake’s N. P., 56 ; Neat v. Ball, 2 East, 117; Holbrooh v. Armstrong, 1 Eairf., 31; Taylor v. Tillotson, 16 Wend., 493; Bianchi v. Nash, 1 M. & W., 545 ; Beverly v. Gas-light Go., 6 Ad. & E., 829 ; White v. Parley, 15 Maine, 470; Dearborn v. Turner, 16 id., 17; Buswell v. Bicknell, 17 id., 344; Perhins v. Douglass, 20 id., 317; Moss v. Sweet, 3 Eng. L. and E., 311.)

      De Witt Stafford, for the respondent.
    The statute of frauds' does not affect the case. ( White v. Knapp, 47 Barb., 551; Blanchard v. Trim, 38 N. Y., 225.) Whether the original contract was within the statute when made is of no consequence. It was completed by both parties and taken out of the statute. (McKnight v. Dunlop, 5 N. Y., 537; Sprague v. Blaise, 20 Wend., 61; Bissell v. Malcom, 30 N. Y., 275; Allis v. Read, 45 id., 142.) Nor can it be said that it was not a contract to be performed within a year, for it might have been performed at any time, and such contracts are not within the statute. (Moore v. Fox, 10 Johns., 244; Malees v. Hale, 10 Wend., 426; Plimpton v. Curtis, 15 Wend., 336 ; Archer v. Zeb, 5 Hill', 200.) And the contract was not void for want of mutuality and consideration. {Eno v. Wood/ward, 4 Comst., 249, supra.) Plaintiff had a right by the contract to return the bonds, and this action was well brought for the whole purchase-money. {Dustan v. Me Andrew, 44 N. Y., 72; George v. Brader, 70 Penn. St., 56; Bement v. Smith, 15 Wend., 493; Shannon v. Comstock, 21 id., 460, 461; Slade v. Morley, 4 Coke, 92 b ; Orr v. Bigelow, 14 N. Y., 556 ; Sedg. on Dam., 282, 283; Eno v. Woodward, 4 Comst., 249, supra; Giles v. Bradley, 2 Johns. Ch., 253, supra, and other cases cited.)
   Taloott, J.:

This is an appeal from the judgment, and from an order of the Special Term denying a new trial. The plaintiff purchased from the defendant, in March, 1870, for the sum of $1,800, two bonds of the “ Des Moines Yalley R. R. Co.,” of the par value of $1,000 each, after certain representations of the defendant touching the value thereof, and upon the agreement by the defendant, that if at any time the plaintiff got sick of the bonds, he might redeliver them to the defendant who would return the purchase-money. The plaintiff immediately sold the bonds to two ladies, one to each, for the same price which he had given the defendant, and upon a statement to them of the representations which the defendant made concerning the bonds, and upon the same agreement to take them back if, and when, they should become dissatisfied with the bonds. The ladies held the bonds for nearly two years, and becoming dissatisfied, returned them to the plaintiff, who, in some manner reimbursed them for the amounts which they had paid, then took the bonds to the defendant, offered to return them and demanded a return of the purchase-money. The defendant insisted, that the sale of the bonds by the plaintiff to the ladies, put an end to the right of the plaintiff to return to the defendant. But the court ruled that the fact was immaterial. The defendant also claimed, that the contract to receive the bonds back was void by the statute of frauds; also, that no damages were alleged or proved, and that the plaintiff was at most entitled to recover only nominal damages, and that the complaint did not state facts sufficient to maintain an action. The plaintiff recovered on the trial, and the above is understood to be the substance of the legal objections to the recovery, which were made on the trial by the defendant, although they were stated in various forms. We do not think any of these objections were well taken. We understand the rule to be, that such a contract, being taken out of the statute by having been consummated by the delivery and receipt of the property and the payment of the price, the statute has no application to it. In White v. Knapp (41 Barb., 549), where the plaintiff in a similar action had been nonsuited on the ground of the statute of frauds, the nonsuit'was set aside on the ground, that the statute formed no objection to the recovery. It was held in Eno v. Woodworth (4 Comst., 249), that in such a case an action lay on the agreement, to recover back the purchase-money, and the plaintiff was not required to sue for damages for breach of the contract; and also that, since the Code, it was proper to state the facts and circumstances of the case, instead of suing for money had and received. (See, also, George v. Braden, 70 Penn. St., 56.) We do not think that the right of the plaintiff to return the bonds was divested by the circumstance that he made a sale of them to other parties on the same condition. If there had been any option or right of election to be exercised by the defendant, the disposition of the bonds by the plaintiff might have discharged the defendant from liability, inasmuch as it would have put it out of the power of the defendant to reclaim the bonds during the time they were held by the third parties, but since the option was vested solely in the plaintiff we do not see how the defendant could have been injured, or his rights in any way impaired by the temporary ownership of the third parties. There were various communications concerning the bonds, and their value and the probabilities and prospects in regard to them, passing between the plaintiff and the defendant, from a period soon after the plaintiff’s purchase, and it is claimed that the defendant treated the matter in such a way as to amount to a waiver, or furnish evidence of a waiver of an earlier exercise of the plaintiff’s option to return. It is argued that the right to return had ceased to be operative, upon the ground that there was no attempt to exercise that right within a reasonable time. This, as it seems to us, might have been, an important point, either as a question of law or fact, to be determined in the case, but we fail to discover that any such objection was taken on the trial, or that the attention of the court was in any manner called to the question, whether, the 'offer of a redelivery of the bonds and a demand for a return of the purchase-money was made within a reasonable time, or that any ruling of the court was made in reference to it. The defendant’s counsel, in his points on the argument of this appeal, claims that one of the objections to the recovery was, that the offer to return the bonds was not made within a reasonable time, but from a careful examination of the case we are compelled to consider this a mistake. If the objection had been distinctly taken on the trial, or the attention of the court in any manner called to it, perhaps additional proof on the subject might have appeared. (Henry v. Salina Bank, 1 N. Y., 83.)

It appears that from each of the bonds two coupons are missing, namely, one falling due on each bond October 1, 1870, for forty dollars, and one for. the same amount from each bond falling due April 1, 1871. This appears to have escaped attention on the trial, and no point was made on this account. It is, however, agreed that the amount of such coupons, with interest to the date of the judgment, ought to be deducted from the judgment. This appears to amount to the sum of $211.20, which amount will be deducted from the judgment, which must be affirmed for the residue.

Order denying new trial affirmed, and judgment affirmed, less the sum of $211.20 to be deducted therefrom.

Present — Tappen and Talcott, JJ.

Judgment, and order denying new trial, affirmed, with the modifidation reducing the judgment by the sum of $211.20, with costs to respondent.


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    AUSTIN D. MOORE, Respondent, v. JOSEPH HEGEMAN, Executor, etc., Appellant.

      Trust estates — actions relating to —parties to.

    Tlie defendant’s testator, by his will, created a trust for the plaintiff for life, with remainder over to the children of two deceased sisters. This action was brought by the plaintiff to have it declared that the trusts created by the will were void, and that he was entitled to an estate in fee simple, instead of one for life, in the property devised by the will. Held, that the children of the deceased sisters were necessary parties to the action.
    Appeal from- an order made at the Special Term, overruling a demurrer interposed to the complaint herein.
    The defendant’s testator, by his will, devised all his property in trust for certain purposes therein specified. And, as to the rest and residue of his estate, he directed the same to be divided into three equal shares, one to be held in trust for each of his children for their respective lives, with remainder over upon their deaths. He then directed that: “ As to the share held in trust for the last survivor of my children, the same, at his or her death, shall go in fee to his or her lawful issue, if such there be ; and, if none, then in fee to the lawful issue of the two children who shall have died: one-half to each stock, if both shall have left lawful issue; or, if only one-half left such issue, then all to such issue ; but, if neither of such children shall have left lawful issue, then to my heirs at law. Such is the disposition to be made of the share held in trust for the last surviving of my children. ”
    The testator left three children him surviving, two of whom Julia L. and Sarah Augusta, have since died, leaving- issue, the plaintiff being the survivor. This action was brought by him to have the trusts created by the will declared void.

      Smith <& Woodwa/rd, for the appellant.
    The lawful issue of Julia L. Rhodes and of Sarah Augusta Lyon, sisters of the deceased, should have been made parties defendant in this action. The general rule is, that in suits respecting the trust property, brought either by or against trustees, the cestui que trusts as well as the trustees are necessary parties. The trustees have the legal interest, and therefore they are necessary parties. The cestui que trusts have the equitable and ultimate interest to be affected by the decree, and therefore they are necessary parties. (Story’s Eq. PL, § 207; Cooper’s Eq. PL, 34; Mitford’s Eq. PL, 176; Wiser v. Blacldey, 1 John. Ch., 437; Ghamplin v. Ghamplin, 4 Edw., 228 ; Bowers v. Smith, 10 Paige, 201; Burney v. Spear, 17 Geo. R., 224; Bailey v. Inglee, 2 Paige, 278; Lagrange v. Merrill, 3 Barb. Ch., 625; • Sherman v. Burnham, 6 Barb., 403; Nodvne v. Greenfield, 7 Paige, 544; The Eagle Fwe Ins. Go. v. Oammet, 2 Edw., 127; Hill on Trustees, 545; Brevoort v. Grace, 53 N. Y., 245; Holland v. Baiker, 3 Hare, 69; Mead v. Mitchell et al., 17 N. Y., 210; Bussell v. Lasher, 4 Barb., 232.)

      John DiTcemam, for the respondent.
   Talcott, J.:

It appears from the complaint that Julia L. and Sarah Augusta have died leaving lawful issue now in esse, and the plaintiff is the last survivor of the three children of the testator. The will provides : As to the share held in trust for the last survivor of my children, the same, at his or her death, shall go in fee to his or her lawful issue, if such there be, and if none, then in fee to the lawful issue of the two children who shall have died, one-half to each stock, if both shall have left lawful issue.” The children of the two daughters are not made parties to the suit, and upon this ground the demurrer is interposed. Assuming the provisions of the will to be valid, then these children of the daughters have now a vested interest, for they are now persons in being, who would take upon the termination of the precedent estate in the trustee for the life of the plaintiff. (Mead v. Mitchell, 17 N. Y., 210.) As a general rule, all parties having any legal or equitable interest tobe affected by the decree are necessary parties to the bill. To this there are some exceptions in practice, as in an action against an executor or administrator, or against an assignee for the .benefit of creditors, to set aside the assignment, which exceptions probably have arisen from the circumstance, that the other creditors and cestui que trusts are numerous and may be unknown, and because the party made defendant is strictly a representative of the cestui que trusts; so a party entitled to the first estate of inheritance may be held to represent those whose claims are subsequent. The rule is thus stated in Story’s Equity Pleadings, section 207: “ In cases of trust. The general rule in cases of this sort is, that in suits respecting the trust property, brought either by or against the trustee, the cestui' que trusts, or beneficiaries, as well as the trustee are necessary parties.” This suit is commenced to have the trusts of the will declared void, and that the -estate of the plaintiff, which was intended by the will to be only a life estate, be turned into a fee simple; in effect cutting off all claims of the sister’s children; and the plaintiff insists strenuously that the provisions of the will, creating the life estate in trust, with remainder off as void, and that, therefore, the children of the daughters have no interest and need not be made parties. This may be so, but ought not to be so decided or decreed without an opportunity for those claiming to be interested in the remainder to be heard on this very point. Unless the children of the daughters are made parties there will be no person before the court who is specially interested in maintaining the validity of those provisions of the will under which their claim to the remainder arises. The plaintiff objects to the form of the demurrer, upon the ground, as stated, that it is a “special demurrer.” We do not precisely apprehend the nature and force of this objection. A demurrer for want of proper parties, where the objection appeared on the face of the bill, could always be interposed in equity, and such a demurrer as this, is now expressly authorized by the statute. (Code, § 144.)

The order overruling the demurrer is reversed with costs of the appeal, and the plaintiff allowed to amend within twenty days and upon the payment of costs of the demurrer.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Ordered accordingly.