author: BISCHOFF, J.

text:
    Cornelius L. Cooke v. Henry McAleenan.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    1. Secondary evidence—Contracts op foundation.
    Where there is evidence that a letter alleged to have been sent by plaintiff to defendant was in fact received by defendant, evidence of addressing, payment of postage, and mailing, so as to raise a presumption of defendant’s receipt thereof, is not necessary to render admissible against defendant secondary evidence of the contents of the letter.
    2. Appeal—Harmless .error—Exclusion of evidence.
    The erroneous exclusion of evidence is ground for reversal unless it clearly appears that no injury could have resulted from the error.
    Appeal from seventh district court.
    Action by Cornelius L. Cooke against Henry HcAleenan for conversion. There was a judgment in favor of defendant, and plaintiff appeals.
    Robert L. Redfield, for appellant; George W. HcAdam, for respondent.
   BISCHOFF, J.

—The defendant is a pawnbroker, and is sued .upon an assigned cause of action for the conversion of a watch,, the property of one Easton. Prior to the 7th day of Hovember, 1895, Easton had had dealings with the defendant, in making pledges of personal property as security for divers loans, and afterwards redeeming the .articles, which were then returned to him by express; his residence being in Decorah, Iowa, and his communication with the defendant having been by mail. The watch in question was pawned about Hovember 1, 1894, and on Hovember 7, 1894, the plaintiff claims that a letter was sent by Easton to the defendant, inclosing the pawn ticket and. a draft for the amount due, and directing that shipment be made by the United States Express Company, which company alone transported goods directly to the place of his residence. Defendant, contrary to this instruction, forwarded the watch by the Adams Express Company, and it was never received by Easton; hence this action.

We think that the plaintiff’s appeal from the judgment, as rendered in favor of the defendant, is meritorious, by reason of the erroneous exclusion of secondary evidence as to the contents of the letter sent by Easton to the defendant on November 7, 1895, wherein the instructions touching the shipment of this watch were given. The ground of the ruling was that there was no proof of addressing, prepayment, and mailing sufficient to provide a foundation for the introduction of secondary evidence, the plaintiff’s practice being correct in the other essentials to the admission of such evidence. The record discloses proof in support of the fact that the defendant actually received this letter, apart from any presumption arising from its transmission through the mails, which presumption, indeed, can generally be said to attach to evidence that the letter was sent. Steamship Co. v. Otis, 100 N: Y. 451; 3 N.. E. 485. Here, however, Easton’s testimony was that the ticket and draft were inclosed with the letter in question, and so sent to the defendant, whose letter admitting the receipt of the ticket and draft was placed in evidence prior to the plaintiff’s offer of secondary proof. Thus, not a presumption, merely, but the fact of the receipt of the letter, was made to appear, if Easton was to be believed; and the plaintiff was clearly entitled to show the contents of the document, the value of the proof to depend upon the final determination of Easton’s credibility. As a foundation, the evidence was more than sufficient. It is true that the defendant’s counsel, in the course of an argument for the dismissal of the complaint, admitted that the order had been to ship the goods by the United States Express Company, but this cannot be taken as obviating the effect of the erroneous exclusion of the proof in question. The defendant’s evidence at the trial might have been considered by the justice below as showing a ratification by Easton of the shipment by the Adams Express Company, but it did not conclusively do so ; and we cannot say that the judgment was not based upon other evidence to the effect that there was a course of dealing between the parties whereby, with Easton’s knowledge and assent, his redeemed pledges were- sent by the Adams Express Company in all cases, notwithstanding his order requiring, shipment by ‘the United States Express Company. But, so far as we can tell, the letter sent in this case may have expressly repudiated Easton’s satisfaction with this course of dealing, and have unconditionally required obedience of its terms as to transmission by the express company named; and, since there was error in exclusion of the proof, we cannot support the judgment, it not being apparent that the error was harmless. Mt. Morris-Electric Light Co. v. U. S. Horse & Cattle Show Soc., 9 Misc. Rep. 180 ; 60 S. R. 642.

The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.


source: Caselaw Access Project

author: WARD, J. ADAMS, J.

license: Public Domain

text:
    In the Matter of Application for Probate of the Will of Peter McGraw.
    (Supreme Court, Appellate Division, Fourth Department.
    October 16, 1896.)
    Wills—Capacity to make.
    A testator was taken sick Thursday, and was partially comatose until the next day, when he became fully conscious. Friday night, one M., a friend of testator, who received no substantial benefit under the will, and solely at his own instance, and after conference with the physician, suggested to testator that he should have his will drawn. The physician was present at the interview, and thought testator capable of making a will, though he was in extremis. Testator was at first reluctant to act, but afterwards'consented, and selected an attorney to draw the will. ' M. went for the attorney. When they arrived, testator was sleeping. He was awakened, and stated that he wanted to leave all his property to the “ two of them.” M. explained, in testator’s presence; that the persons meant were testator’s half-brother and his wife, with whom testator lived. M. afterwards persuaded testator to leave something to a sister from whom he had been estranged for years. The will was read to the testator by the attorney, who asked if he wanted persons present to witness it. Testator indicated assent. Testator touched the pen, and the witnesses signed in due form. Testator’s brother was in the house, and knew what was going on, but took no part in the proceedings, and was not present when the will was made. Held, that the surrogate’s finding of facts that testator was not competent to make a will, and was unduly influenced, should be reversed. Green and Adams, JJ., dissenting.
    .Appeal from surrogate’s court, Niagara County.
    Proceeding by Joseph McDonald, executor of the will of Peter McGraw, deceased, for probate of the will. From a decree refusing to admit the will to probate, the executor appeals.
    Patrick King, for appellant; W. E. Willey, for respondent.
   WARD, J.

McGraw, the deceased, at the time of his death, resided in the city of Niagara Falls, in this state. He was a bachelor, and his heirs at law were James McGraw, a half-brother, and his sister, the respondent. The sister resided in Lockport, Niagara County. The depeased lived with James McGraw, who was a married man, residing with his wife" at Niagara Falls. The deceased left but little personal property, and, as near as we can judge, about $10,000 in value of real estate. The father of the parties died some time before, leaving a last will and testament, in which he devised his property to James and Peter. This was not satisfactory to Margaret, and she contested the probate of the will for a time, and out of this controversy grew ill feeling between the deceased and the sister, which continued to the time of his death. He had not visited his sister for 20 years prior to his death. The deceased was taken ill on Thursday morning, April 11,1895, with a liver difficulty of a severe character, and during Thursday was to some extent in a comatose condition. A physician, Dr. John A. Lannigan, was called to attend him. He visited the deceased several times that day, administered medicine to relieve and stimulate him, and also visited him several times on the Friday following; the last visit being that day, about 8 o’clock in the evening. The effect of the doctor’s evidence is that the deceased was better and brighter on Friday evening, and in the possession of his faculties, talked intelligently, and. was in a condition to comprehend the extent and nature of his property, and the persons who would have natural claims upon it, from him, by reason of relationship or otherwise; and it is the opinion of the doctor that he was capable of making a will.

The proponent, Joseph McDonald, a friend and neighbor of the deceased, who had1 known and been intimate with, him for many years, learning that the deceased was very ill, and likely to die, consulted with the doctor about the propriety of the -deceased’s making his will, and they together saw the deceased shortly before the will was made, and stated to him that he was a sick man, and, while they hoped he would survive, he might not, and, if he wished to make any disposition of his property, he had better make a will. The deceased manifested some reluctance about that, without stating the ground of such reluctance, but, upon being advised further by these gentlemen to make the will, he concluded to do so; and he vas asked what attorney he would have to draw the will, and a number of attorneys were named over to him who could be obtained for that purpose, whom he did not seem to favor. Finally the name of T. F. C. Oleary was mentioned to him, and he accepted him. Mr. Griffin, a neighbor and friend of the deceased, and who afterwards became a witness to the will, and McDonald, went to Mr. Oleary’s house, and directed him to come to the deceased, and to prepare a will. Mr. Cleary soon came to the house, and he and McDonald .entered the room of the sick man, where they found the deceased with his face turned towards the xvall. He seemed to be quiet or asleep. When McDonald aroused him, he turned upon his back, where he could see the parties. He was informed that Oleary was there, and he was asked how he wished to dispose of his property. McDonald testified that the deceased said he wanted to leave it to “ Jim and his wife” (being his brother, James, and his wife). Oleary testified that he said he wanted to leave it to the “two of them,” and, upon his inquiring what the deceased meant by that, McDonald stated, “ James and his wife.” Oleary testified that the deceased appeared- to be a very sick man; that he had not been acquainted with him before, and did not know how he appeared when well; and that, aside from his statement as to the “ two of them,” he made no intelligent statement in his. hearing during the progress of the business down to the completion of the will; but when asked questions, and when the will was read oyer, the deceased gave some indication of assent, or gave some indication of what he wished. McDonald, who appears to have been closer to the deceased while the transaction was going on, testified that he heard several statements from him, as will be hereafter stated. Cleary then left the room, to draw the will in another room. A question seemed to arise between Oleary and McDonald about whether anything was to be given to the sister Margaret, and some conversation was had between those parties that it would be better if Margaret was given something, as it would show that the deceased had her in mind. At all events, it was concluded that the deceased’s attention had better be called to her. McDonald went back into the room where the deceased lay, and testified that he had the following conversation with him upon the subject:

“6 Pete [the deceased], ain’t you going to leave your sister anything ? ’ And he said: 6 No.’ Says I: ‘ Why ? ’ Says he: Because she didn’t act right the time my father made his will.’ Says I: ‘We should forgive all those things, and not. think of such things. You might die, and that would be a. queer thing to answer for; you have hard feelings against, your sister.’ He thought for a while, and says: ‘ I don’t care. He can mark down $500 for my sister.’» And I asked him when it should be payable, and he said: Whenever it will be convenient for my brother to pay it.’ ”

On his cross-examination upon this subject, he did not vary the effect of this statement, but he added to it that the deceased said the sister contested the father’s will, when she had no right to; that he and his brother had always helped her when she needed it, and she had no right to do as. she had done; and that he would leave her some property were she worthy of it, but concluded, “ I don’t care if I leave her four or five hundred dollars.” The will being prepared, it was taken to the deceased, and in the presence of Morris Griffin and of McDonald, all close to the bedside of the deceased, Oleary read the will over to him; and Cleary.testifi.es :

I read the will to the sick man, and I stated to him that it would be necessary for him to declare the will to be his will; that it would be necessary for him, or well for him, to ask those whom he wanted to subscribe as his witnesses, ancl to comply with the formalities of executing the will; and he did not ask those questions; did not seem to be able to. So I asked him if it was his will, and I asked him if he wanted myself and Mr. Griffin to sign it, and we signed it, and that is all there was to it. He was a very sick man, as sick a man as I ever met; and, of course, he did not do any talking at all. He carried on the conversation with Mr. McDonald; that he seemed to understand. He was groaning. I can’t describe just exactly how he was, but he said something or articulated something" that these people advised me was an assent. I, of course, had to take it that way, and myself and Mr. Griffin did sign as witnesses. We signed on a stand that was near the head of the bed, and I had the pen in my hand, and I brought the pen over in front of him, and then myself and Mr. Griffin both signed that, in the presence of the sick man, and in the presence of each other as witnesses.”

He further testified that the decedent made his mark to the will, he (the witness) steadying the pen; and he did testify during his examination, in effect, that, when he asked these questions of the deceased, he gave an indication of assent, but not in words. This witness stated that the will was executed about 12 o’clock on Friday night. McDonald testified that, after he had gone back into the room where Oleary was writing, and told him about the $500 for the sister—

“ Then Mr. Cleary completed the will out in the other room. He marked it down', and then himself, Mr. Griffin, and myself went back into the sick room. When we got back into the sick room, Mr. Cleary read the will, and asked him if he understood it, to which Peter said, plainly,‘Yes.’ He asked him still further, ‘ Is everything satisfactory in the way that the will is made up?’ to"which Peter responded,‘It is all right;5 and I saw the signing done. I saw Peter have his hand on the end of the pen, while Cleary was making his mark, and then I saw Mr. Cleary and Mr. Griffin sign as witnesses.”

The witness further testified that the deceased was a quiet man, and had usually nothing to say unless in response to questions asked him. In this regard several other witnesses in the case concurred.

The witness Griffin testified that he was in the room; that Cleary read the will over to the deceased; that he saw Peter sign the will, by making his mark; that afterwards he and Cleary signed the will as witnesses, which was done in the presence of the testator, and in the presence of each other. This witness stated that he saw Peter often during his sickness, and talked with him, and that, in his opinion, he was of sound mind and understanding, and competent to make a will, and under no restraint.

T. Y. Welch was sworn for the proponent, in which he testified to an intelligent conversation he had with Peter about 5 o’clock in the evening of Friday; that he had known him a long time, and was well acquainted with him; and that he noticed nothing in his condition on that evening that was unusual or different from his ordinary condition, except that he was ill with somewhat of the heaviness which comes from illness.

William Shepherd was sworn for the proponent, and testified that he had been intimately acquainted with Peter for many years; that the last time he saw him was either Friday morning or the Saturday morning following, at his home, and he detailed an intelligent conversation with Peter about his health and his business, and he was asked this question:

“ Q. Mentally, what was his condition. Í want to know what you noticed about his condition ? A. His condition was just the same as I have ever seen him, any more than he seemed to be more distressed; pain in his breast, sort of pain. He was ordinarily a very quiet man, and talked very little.”

' The witnesses we have named were the only witnesses sworn in the case before the surrogate except Peter Landrigan, a son of the sister, who simply testified that there had been difficulty between the deceased and his sister, and that their relations had been strained for many years, and that his sister had four children, and was a widow of 65 years of age.

Oleary testified to some conversation with McDonald not in the presence of the deceased; that McDonald suggested that, unless- Margaret was remembered in the will, she migjit contest it, as she had done with her father’s will, and make trouble; and that he (Cleary) said it would be well enough to mention her anyway, because it would show that the deceased had her in mind when making his will. This McDonald does not remember. It also appeared that James (the brother) said to Oleary, though not in tire presence of the deceased, that he could not pay the $500 to Margaret under four years, as it would have to be got out of the land, or something to that effect. It does not appear that either James or his wife communicated in any manner with the deceased, or sought in any manner to influence him in the making of his will. Neither of them was present at any of the interviews with him as to the making of the will, or upon its execution. They Avere both in the house at the time' of the making of the will, and James had some talk with McDonald or Oleary, and seemed to to be aware of Avhat Avas .going on, and made the remark about the payment of the $500 as above stated. The evidence utterly fails to disclose, hoAvever, any influence of either James or his Avife upon the deceased. McDonald denies that his action in the premises was instigated by James.

The counsel for the respondent severely criticises McDonald, and claims that he, substantially, made the will in question, in the interest of the beneficiaries thereunder. It seems that the names of McDonald and the brother James, as executor's, Avere inserted by Oleary in the will but not at the suggestion of either McDonald or James in his oavb behalf; and Avas only made known to the deceased upon the reading of the Avill. Nothing ■ appears against the character or integrity of McDonald, or that he Avas to receive any benefit under the Avill or otherwise, unless, possibly, such benefit as might come to him as one of the executors. Cleary, when asked as to the mental condition of the deceased at the time of the making of the Avill, stated that he was not able to give an opinion, in effect, upon the subject, giving as a reason the extreme sickness or illness of the deceased, and his want of prior knowledge of his character and condition. He, however, signed the attestation clause of the will, which contains the usual recital that the deceased, in the presence of the witnesses, declared the will to be his last will and testament, and that they had subscribed it as such in his presence, and in the presence of each other, and at the request .of the deceased. The will devised and bequeathed all the real and personal property of the deceased, after the payment of his debts, to James McGraw, and §500 to be paid to Margaret within four years after the death of the. deceased, which was made a charge upon the real estate, and appointed James and McDonald as executors. It should have been stated that, when the deceased expressed the wish to will his property to James and his wife, Oleary suggested to him that it would be better to leave it all to James, as his wife would be taken care of in that event, and it would be shorter, and to this Peter assented, as the evidence discloses.

The learned surrogate made findings of fact, and reached the conclusion of law which appears in the record. He finds : First. That the witnesses Oleary and Griffin signed the paper propounded as the last will and testament of the decedent ; that the same was not signed by the said decedent, but his mark was affixed thereto. Second. That, at the time of the execution of said instrument, the said decedent was not of sound mind and memory, and was not competent to make a will. Third. That the said decedent was unduly and improperly influenced in making and executing the said instrument. And he finds, as a conclusion of law, that “ the instrument so Propounded as the last will and testament of decedent, Peter IcGraw, is null and void, as and for the last will and testament of said Peter McGraw, deceased.”

While we do not wish to give our impressions of the effect of this evidence, as we have decided that there shall be a jury trial of the matter, as we shall provide hereafter, we must, nevertheless, state to some extent the conclusions we have reached upon this evidence, and give the reasons for our conclusions. The surrogate fails to find in express terms that the decedent executed and published the will with the formalities required by statute, but does find that, while it was not signed by the decedent, his mark was affixed thereto, and the second and third findings of fact seem to assume a proper execution of the will by the decedent under the form prescribed by statute, in finding that he was not of sound mind and memory at the time of such execution, and that he was unduly influenced in making and executing it.

Hpon, the first ground, viz. that the decedent was” not of sound mind, we fail to discover sufficient evidence to sustain this proposition. Hot an irrational act or word on the part of the deceased in connection with this whole affair appears in the evidence. The want of ability to speak fully and to discharge the duties in connection with the execution* of such an instruxnent that testators usually perform seems to have been clue entirely to his illness. And the precise question which should be passed upon in this regard is whether he was so far gone with his illness, or suffering such pain and disquietude therefrom, that he did not properly comprehend what he wms doing, and act intelligently upon the subject. It does not follow, because a man is in extremis, that his will is to be rejected, because we know that men foolishly postpone this most important act until the shadows of the grave are creeping over them, and they feel admonished that they must act then, if at all, in the final disposition of their property; nor does it follow, because a man is weak of understanding, and physically weak, that his will is to be rejected, because the law only requires of him that he should comprehend the nature and extent of his property, and who have just or natural claims upon his bounty in its disposition. But, in determining the testamentary capacity with greater care and solicitude, we look into the case, and adopt a more rigorous rule where the decedent is weak and suffering than if m comparative health; and, applying this rule, thus laid clown, we are unable to concur with the learned surrogate in his conclusion that the deceased was incompetent to make this will. His two relatives (his brother and his sister) were the natural objects of his bounty. With his brother he lived in peace and affection, and confidence seems to have existed between them. From his sister he had been long estranged, growing out of a bitter family feud, and it is immaterial which is to blame in that controversy. A reason appears why the decedent, whether in health or in sickness, might well prefer the brother to the sister ; and therefore his will, in regard to the beneficiaries, is consistent with his natural inclinations.

As to the other ground for rejecting this will (undue influence), our conclusion is foreshadowed in the statement already made. Hnclue influence is of two kinds,—one, of coercion or threats of injury; the other, in which the mind of the person is wrought upon through constant persuasion, continued until the victim, for the sake of peace, is compelled to surrender (In re Soule [Surr.], 3 N. Y. Supp. 259); or as stated in another case: “ It must be shown that the influence exercised amounted to moral coercion, which restrained independent action, and destroyed free agency, or that, by importunity which he was unable to resist, the testator was constrained to do that which was against his free will and desire.” Aid Society v. Loveridge, 70 N. Y. 387; In re White (Sup.), 5 N. Y. Supp. 295. undue influence must be alleged by the contestant, and the burden is upon her to establish it. This is a familiar principle. Ewen v. Perrine, 5 Redf. (Surr.) 640 ; Redf. Prac. Sur. Ots. (4th ed.) 197, and note 2. At least, the undue influence must appear of the character that the rule requires in the evidence.

The respondent, however, claims that the decedent was induced to make a will at the interposition, of others, especially of McDonald, and therefore the will should be rejected. It is frequently the case that the friends of a sick man will discover what he has not discovered, that his end is near; and they give friendly advice that he should make his will, and if he, upon proper consideration, follows that advice, it is neither coercion nor undue influence, unless the person so advising takes a substantial benefit under the will, and then it may amount to a reason why the will should be rejected. McDonald did advise the making of a will. He did advise the deceased to become reconciled to his sister, and make a bequest in her favor. He did not assume to name the amount, and but for this -advice, doubtless, no provision would have been made for the sister. We do not discover in this a reason for rejecting the will, but the evidence upon this subject maybe important in considering the question of the mental capacity of the deceased.

The learned counsel for the respondent presses with great earnestness the proposition that, notwithstanding the apparent acquiescence of the surrogate in the claim that the will was executed with the formalities required by the statute, it does not appear to have been done so, and that we should pass upon that question de novo, and, if we find that the will was not properly executed, we should still sustain the surrogate’s decree; and the chief complaint that is made is that the will was not signed nor published by the testator, or witnessed by persons selected by him, as the statute requires. The will "was read over in the presence of the deceased and the witnesses. It Avas prepared by one of the witnesses. It was signed at the end of the will by the mark of the deceased, it appearing in the evidence that he could not write. He was asked by the Avitness Oleary, if he declared the will to be his last will and testament, and requested the witnesses to sign as such. He made an assent to that question,—all the assent that he AAras physically capable of making. The witness McDonald, the person nearest to deceased at the time, heard him distinctly state that it was right, and as he desired it. Any act of a testator in the presence of the witnesses at the time of the execution of the will that tends to show that he desires to publish the paper as his will, and that he wishes the witnesses to execute it, may be considered. In re Hardenburg’s Will, 85 Hun, 580, 66 S. B. 775, and cases cited.

In Be Perego’s Will (Sup.), 20 N. N. Supp. 394, 395, Judge Dwight says:

“ A man is not to be denied the right to make a testamentary disposition of his property on account of defect of speech and hearing; and a deaf and dumb man may make a will if only the formalities prescribed by statute are observed in their spirit and intent in such manner as is practicable under the condition existing.”

And in Thompson v. Sesstedt, 6 Thomp. & C. 80, affirmed in court of appeals, sub nom. Thompson y. Stevens, 62 N. Y.. 634, Judge Daniels says :

Although she [testatrix] did not, according to the testimony which was given, in words declare the instrument to be her will, it is clear that she treated it and designed the witnesses-to understand it to be such. That was equivalent to such a declaration, and sufficient to satisfy the requirements of the statute upon the subject, for that does not necessarily contemplate such a declaration in words, in order to render the instrument valid as a will.”

And the court of appeals says, in Re Nelson’s Will, 141N. Y.. 152, 56 S. R. 678, the request to sign is sufficient if made-by the person superintending the execution of the will, in the-hearing of the testator, and with his silent permission and approval.

There are some differences between the witnesses upon important questions of fact in this case, and also different inferences may be drawn from the testimony as to such facts. It. is important to the rights of these parties that the question of the due execution and publication of this will should be definitely and clearly passed upon.

We have reached the conclusion that the decree of the surrogate of Niagara County should be reversed upon questions of fact, and an order should be made directing the trial by a jury of the material questions of fact, arising upon the issues between the parties upon issues to be stated ; the trial to take place at. a trial term of the supreme court in the county of Niagara,. pursuant to section 2588 of the Code of Civil Procedure, and that the costs of this appeal be payable out of the estate.

All concur, except GREEN and ADAMS, JJ., dissenting.

ADAMS, J.

(dissenting).—I find myself unable to concur in the views expressed in the prevailing opinion in this case, and which have resulted in framing certain issues of fact to be tried by a jury, as provided by section 2588 of the Code of Civil Pro- ■ cedure. In my view of the matter, no other conclusion could or • should have been reached in this case, upon the evidence which is furnished by the record, than the one adopted by the surro- - gate of Niagara County ; and therefore I can see no propriety in subjecting the estate of th‘e decedent to the additional expense of another trial. A careful reading of the evidence in the case conveys to my mind very clearly the impression that - the instrument propounded as the last will and testament of' Peter McGraw is in no sense what it purports to be; for, at-the time it was executed by Peter McGraw, he was, apparently,. utterly incapable of making any valid disposition of his prop-erty; and, moreover, this instrument appears to have been drawn up under the supervision and direction of one Joseph McDonald, wh'o was obviously acting in the interests of' James H. McGraw, a brother of the deceased, and the principal. beneficiary under his pretended last will and testament, and,, after the instrument had been thus drawn up and reduced to form, it was presented for execution to a man who was described by the scrivener as, as sick a man as he ever saw. That Peter JVIcG-raw was in extremis at this time is denied by no one; and, after reading the testimony in the case, I am unable to see how it can be seriously claimed that he had any intelligent appreciation of the contents of the paper, to which he was unable to affix his signature. Therefore it is that I am entirely satisfied, without the intervention of the jury, with regard to every essential fact in the case, and conclude that the decree of the surrogate, refusing probate to the instrument propounded, ought to be affirmed.

GREEISF, J.—I concur in the foregoing memorandum.


author: HATCH, J.

text:
    Henry E. Roehr v. Julius Liebmann et al.

    (Supreme Court, Appellate Division, Second Department.
    Oct. 27, 1896.)
    1. Joinder of causes of Action—guarantor of lessee’s covenants.
    A cause of action on a lease against the lessee cannot be joined with a cause of action against a person guarantying, by indorsement on the lease, the performance of the lessee’s covenants.
    2. Joinder of Parties—Joint Liability.
    The lessee and a person guarantying, by indorsement on the lease, the performance of the lessee’s covenants, are not severally “liable on the same written instrument ” (Code Civ, Proc. § 454), so as to authorize a joint action against them.
    8. Appeal—Judgment on reversal.
    Where a demurrer, for misjoinder of causes of action, is improperly overruled, the appellate court, on reversal, will permit plaintiff to sever the action continuing the one against the lessee on the lease and the others against the guarantor on his guaranty.
    Appeal from special term.
    Action by Henry E. Roehr against Julius Liebmann and others. From a judgment for plaintiff on demurrer to the complaint for improper joinder of causes of action, defendant Liebmann appeals.
    Samuel Hoff, for appellant; Henry Manne, for respondent.
   HATCH, J.

—The action is brought to recover rent secured to be paid by the terms of a written lease, and for damages sustained in the restoration of the property after the termination of the lease. The complaint sets out the two causes of action in separate counts. So far as material to the disposition of the questions presented by the demurrer, the complaint alleges in the first count, and repeats the allegation in the second count, as follows : That on the 19 th day of September, 1892, the plaintiff and the said defendants entered into a written agreement, a copy of which is hereto annexed, marked ‘ Exhibit A,’ and is made a part of this complaint.” Reference to the contract which is thus made a part of the complaint shows that the defendants who demur are not parties thereto. They are not mentioned in the body of the lease, nor do they execute the same. Their undertaking is a guaranty that the lessees will fulfil the terms of the lease. The obligation is, therefore, not joint, but several, and arises out of distinct and independent contracts; the obligation under the lease being that the principal party will pay his debt, and, under the guaranty, that the guarantors will pay the debt of the lessee. These contracts have always been held to be separate contracts, even though appearing upon the same instrument. De Ridder v. Schermerhorn, 10 Barb. 638 ; Barton v. Speis, 5 Hun, 60; Evans v. Conklin, 71 Hun, 536; 54 S. R. 915 ; Harris v. Eldridge, 5 Abb. N. C. 278, and note. Nor is the rule changed from the consideration that liabilityattaches to each party at the same time and to the same extent. Tib bits v. Percy, 24 Barb. 39. Where the surety is made a party to the lease, and executes the same as such, the rule is so far modified as to permit of his being joined as a party. Carman v. Plass, 23 N. Y. 286. But this is placed upon the ground that liability is created by the same instrument, and therefore authority is found in the Code for such joinder. The same rule was also applied in Decker v. Gaylord, 8 Hun, 110. It will be found difficult, however, to reconcile the latter decision with the-current of authority as applied to the facts of that case. But it does not pretend to announce any different rule from that laid down in Carman v. Plass, supra, and the doctrine of that case only upheld the joinder on the ground that the surety was a party to the instrument. Section 454 of the Code of Civil Procedure has no application to the case, nor has it changed the rule of the cases cited. It is authority only for the joinder where the parties are liable upon the same written instrument. In this 'respect the rule remains the same as under the old Code. This interpretation has been sanctioned by the court of appeals in Nichols v. Drew, 94 N. Y. 22, where it is-said of causes of action: Those arising on contract, and affecting all the parties, may be joined. Those arising on contract, but inconsistent with each other, or not affecting all the parties, cannot be joined, and the defect may be reached by demurrer.” It follows, therefore, that the causes of action alleged in the complaint are improperly united, and that the-demurrer should be sustained.

Having reached this conclusion, we are now concerned with the disposition to be made of the action. We must assume for the present that the plaintiff has a just demand against all the defendants, and is only prevented from enforcing it from the fact that the parties, although liable for the same debt, are liable upon separate contracts. This seems to present a case where the action should be severed into two, in order thatliabilicy, if it exists, may be enforced, and plaintiff be not left remediless. This course is authorized by section 497 of the Code of Civil Procedure. The judgment should, therefore, be that the judgment appealed from be reversed, and the demurrer sustained, with leave to plaintiff to divide his action into two actions, continuing the same against the parties liable upon the lease, and against the parties liable upon the undertaking of guaranty ; that he be permitted to serve an amended complaint in the actions as divided, with allegations appropriate thereto as he shall be advised; with costs of this appeal only to the demurring defendants.

All concur.


author: BROWN, P. J.

text:
    The People ex rel. Alfred J. Schoenberg v. Hubert C. Taylor, County Treasurer.
    (Supreme Court, Appellate Division, Second Department.
    October 27, 1896.)
    Consolidation act—Claims against kings county-t-Enforcement.
    A claim against Kings-County for salary accruing after January 1, 1896, under an employment by the board of supervisors, is within Laws 1895, c. 954 (Brooklyn Consolidation Act), § 3, which provides that all liabilities “ now existing or which may hereafter accrue in the city of Brooklyn and Kings County, and which, but for this act would be charges against said county, shall, from January 1, 1896, for the purpose of enforcement, be deemed charges against said city” and therefore must be prosecuted against the city.
    Appeal from special term, Kings County.
    Application by Alfred J. Schoenberg for a writ of mandamus against Hubert C. Taylor, as county treasurer of Kings County. From an order granting the writ, defendant appeals.
    Joseph A. Burr, for appellant; John B. Meyenborg, for respondent.
   BROWN, P. J.

—We are of the opinion that this proceeding cannot be maintained against the appellant, as county treasurer, but that the relator must prosecute his claim against the city of Brooklyn, or the proper officer thereof. The consolidation act (Laws 1895, c. 954, § 3) provides that :

“ All charges and liabilities now "existing against said county or Avhich may hereafter arise or accrue in said city and county, and which, but for this act would be charges against or liabilities of said county, shall, from the date aforesaid (to wit, the 1st day of January, 1896), for the purpose of the enforcement thereof be deemed and taken to be charges against or liabilities of said corporation, the city of Brooklyn, and shall be defrayed or ansAvered unto by it.”

The relator’s claim is for salary for a period subsequent to January 1, 1896, under an employment by the board of supervisors, and falls clearly within the terms of the section quoted. It is unnecessary, therefore, to express any opinion upon the merits of the claim.

The order will be reversed, and the motion denied, with $10 costs and disbursements.

All concur.


author: BRADLEY, J.

text:
    New York Cent. & H. R. R. Co. v. Village of Hastings on Hudson.
    (Supreme Court, Appellate Division,Second Department.
    October 27, 1896.)
    Injunction bond—Discontinuance of action—Damages.
    A discontinuance against defendant’s objection is a determination that plaintiff was not entitled to the injunction granted in the action, and therefore defendant is entitled to a reference to ascertain his damages.
    Appeal from special term, Westchester County.
    Action by the. New York Central & Hudson River Railroad Company against the village of Hastings on Hudson. From an order for a reference to ascertain defendant’s damages from an injunction therein granted, plaintiff appeals.
    Ira A. Place, for appellant; Joseph F. Daly, for respondent.
   BRADLEY, J.

—The temporary injunction was modified, and afterwards, on the plaintiff’s motion, which was opposed by the defendant, leave was granted to the plaintiff to discontinue the action without costs, and it was discontinued accordingly by the plaintiff. Thereupon the order appealed from was moved for by the defendant, and granted. The undertaking on the part of the plaintiff was made pursuant to the statute, and was to the effect that the plaintiff would pay to the defendant such damages, not exceeding the sum specified in the undertaking, as the defendant might sustain by reason of the injunction, if the court finally decided that the plaintiff was not entitled to it. Code, § 620. The discontinuance of the action without the consent of the defendant was equivalent to a final determination of the court that the plaintiff was not entitled to the injunction. Wynkoop v. Van Beuren, 63 Hun, 500; 45 S. R. 325 ; Water Co. v. Bissell, 78 Hun, .176; 60 S. R. 244; Manning v. Cassidy, 80 Hun, 127; 61 S. R. 788; Steamship Co. v. Toel, 85 N. Y. 646. As we view the rule declared and adopted in those cases, the plaintiff has failed to so distinguish in principle the present case from those above cited as to deny their application to it. In Palmer v. Foley, 71 N. Y. 106, the discontinuance of the action was by stipulation of the parties. In Benedict v. Benedict, 15 Hun, 305, Id., 76 N. Y. 600,—it did not appear that the plaintiff was not entitled to the injunction. ’ And in Apollinaris Co. v. Venable, 136 N. Y. 46, 48 S. R. 848, the defendant procured the dismissal of the complaint and dissolution of the injunction for a collateral cause arising subsequently to the commencement of the action ; and, while holding that there was no final determination that the plaintiff was not entitled to an injunction to support a motion for reference to ascertain damages, the court recognized the rule above stated,—that the discontinuance of an action without the consent of the defendant, in which an injunction has been issued, is equivalent to a final determination by the court that the plaintiff was not entitled to it for the purposes of the relief, founded upon the undertaking for damages. The defendant is not aided by these or any cases to which our attention is called.

The order should be affirmed.

All concur.


author: PER CURIAM.

text:
    Oliver M. Warner v. Francis G. Babcock.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Costs—Offer of judgment—Trial.
    Under Code Civ. Proc. § 1018, authorizing the referee, “ on the trial” of an issue of fact, to allow amendments of pleadings, an amendment can only be allowed after commencement of the trial, and therefore an offer of judgment, not made until after allowance of an amendment, is not made “before the trial” (Code Civ. Proc. § 738), so as to enable defendant to escape liability for further costs if a more favorable judgment is not recovered by plaintiff. Ward, J., dissenting.
    Appeal from special term, Steuben County.
    Action by Oliver I\I. Warner against Francis G-. Babcock. From an order denying a motion for retaxation of costs, and to allow defendant certain costs to which he claims to have become entitled subsequent to the making of an offer of judgment, defendant appeals.
    The opinion of Mr. Justice Werner was as follows :
    Defendant’s right to a retaxation of' plaintiff’s costs and to an allowance of costs on his oavu behalf depends upon the question whether the trial of this action Avas actually commenced before the referee on the 1st day of February, 1894. If it Avas not actually commenced at that time, then defendant’s offer of judgment made on the 14th day of February, 1894, Avas perfectly good, and he is entitled to have his motion granted. If, on the other hand, the trial Avas commenced on said date, then defendant’s offer Avas a nullity, and the plaintiff’s counsel had a right to treat it as such, and to tax a full bill of costs. There is really no substantial dispute as to Avhat took place before the referee. It appears that a question arose as to the sufficiency of defendant’s pleading. He desired an amendment, but Avas in doubt whether the referee had the power to grant the same, or Avhether it Avould be necessary to make a motion before the court at special term. The referee resolvéd this doubt in defendant’s favor by asserting the right to grant the amendment, and this position was acquiesced in by counsel for the plaintiff. The amendment was therefore made, and an adjournment of the cause was taken, upon defendant’s motion, to the 27th day of February, 1894.- The plaintiff recovered judgment for a less sum than that stated in defendant’s offer of judgment, and, if his offer is held good, plaintiff Avas not entitled to the costs which accrued after the offer was made, and defendant is entitled to tax costs from that time. As stated before, the question Avhether the offer is good depends upon the question whether the trial Avas commenced before the referee on said 1st day of February. I am inclined to think that the trial Avas commenced. The referee had no power to grant an amendment until the case was moved before him. Code Civ. Proc. § 1018, gives a referee the right to exercise, upon a trial before him, the same poAver as the court “to alloAV amendments to the summons or to the pleadings.” The right of a referee to grant a motidn to amend pleadings in a case pending before him is derived from this statute. He has no poAver to consider or determine such a motion until the action is before him. By the very language of this statute, his poAvers are limited to proceedings “ upon the trial of an issue of fact.” The trial having been commenced, the offer which Avas made did not conform to the practice prescribed in section 738, Code Civ. Proc., which has been construed to mean that the offer must be made at least 10 days before the time of trial. Herman v. Lyons, 10 Flun, 111. The offer made and served by the defendant being a nullity, the plaintiff’s counsel had a right to disregard it. Sares v. Matthews (Sup.), 15 N. Y. Supp. 510. The plaintiff’s counsel Avas not bound to return it. Walker v. Chilson, 65 Hun, 529 ; 48 S. R. 203. Defendant’s motion for a retaxation of plaintiff’s costs and a taxation of his own costs must, therefore, be denied, with $10 costs of this motion.
    Dolson & Dolson, for appellant; De Merville Page, for respondent.
   PER CURIAM.

—Order affirmed, with $10 costs and disbursements, on the opinion of WERNER, J., delivered at special term. Decision made by the concurrence of HARDIN, P. J., and FOLLETT, ADAMS, and CREEN, JJ. WARD, J., dissenting.


text:
    The People ex rel. John Tregaskis v. George W. Palmer, Comptroller.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 27, 1896.)
    Mandamus—Appointment to office—Preference of veterans.
    Mandamus will not lie to compel the appointment of a veteran of tlie Civil War to an office to which he is entitled to preference of appointment (Laws 1894, c. 716), where another person has been appointed and is in possession of the office, and the person making the appointment also has the discretionary power to determine whether the office shall be filled or left vacant.
    Appeal from special term, Kings County.
    Application by John Tregaskis for a writ of mandamus to compel George W. Palmer, as comptroller of the city of Brooklyn, to appoint relator to an office. From an order denying a peremptory writ, relator appeals.
    Sylvester J. Tonney, for appellant; Joseph A. Burr, for respondent.
   PER CURIAM.

—The petition of a relator shows him to be an honorably discharged soldier who served in the United States army during the late Civil War. He has heretofore entered, and successfully passed, five different competitive examinations held to test the fitness and capability of applicants for clerical positions in the civil service of the city of Brooklyn; and lie alleges that defendant has not, pursuant to the laws of the state, and in obedience to the regulations of the civil service commission of the city of Brooklyn, notified said commission that there were clerical positions in his department where a vacancy existed; that twenty-five positions in said department became vacant on or since the 1st day of January, 1895 ; that, if defendant had notified said commission of these vacancies, relator would have been one of the first four to be certified as a result of his examination in accordance with the constitution of the state, its statutes, and the civil service regulations. The petition also alleges that defendant has, in violation of law, filled the aforesaid vacancies, and that the persons are holding said positions in violation of law. Upon the allegations of the petition, ive think this appeal must fail. Defendant is the head of the department of finance of the city, and has authority to determine the number of subordinates and clerks he requires in his department, and, if a vacancy exists therein, it is for him to determine whether he will fill the same or leave it vacant. Charter of Brooklyn, tit. 3, § 2 ; Id. tit. 22, § 9. Courts have no power by mandamus to compel an officer vested with discretionary power to exercise it in a particular manner (People v. Maher, 141 N. Y. 330 ; 57 S. R. 425) ; and with the exercise of it no one can interfere (People v. Sutton, 88 Hun, 175 ; 68 S. R. 494). The act creating a preference in relator’s favor (Laws 1894, c. 716) confers no right to the issuance of the writ. This act gives preference in appointment and damages where relator suffers for an act wrongfully done, and also remedy by the existing right of mandamus. But no right to a writ or mandamus existed or presently exists to interfere with the exercise of discretionary power. The preference which is given to the relator creates in him no title to any office or position. Title is only acquired by appointment, and relator has never been appointed. Nor'is there any vacancy,, for the positions now existing are filled by other persons. ■Whether rightfully or wrongfully cannot be inquired into in this proceeding. It is sufficient now to say that there is no vacancy to fill. In this aspect the proceeding is brought squarely within the decision in People v. Rupp, 90 Hun, 145 ; 35 N. Y. Supp. 349, 749. It is clear, therefore, that, whatever rights relator may possess, his remedy is not by mandamus to enforce them.

The order ajipealed from should therefore be affirmed, with $10 costs and disbursements.


text:
    Anne Minott Mitchell v. Village of White Plains.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 27, 1896.)
    Reference bt consent—New trial.
    Where an action not subject to a compulsory reference is referred by consent, and the final judgment on the referee’s report is reversed and a new trial granted, the trial court may appoint another referee, as provided by Code Civ. Proc. § 1011, relating to new trials in cases referred by consent, though the order appointing the first referee was not vacated by the appellate court, and though the action is prosecuted by the representative of the original plaintiff, who was the party to. the reference stipulation.
    Appeal from special term, Dutchess County.
    Action by Anne Minott Mitchell, individually and as admintratrix of Isabella H. Mitchell, against the village of White Plains. From an order appointing a referee, defendant appeals.
    H. T. Dykman, for appellant ; William P. Piero, for respondent.
   BRADLEY, J.

—The action was not referable in the first instance without the consent of the parties. They, by written stipulation, signed by their attorneys and filed with the clerk, did consent to refer it to Joseph S. Wood, and an order was therein granted, and entered accordingly. The trial before such referee resulted in a report and judgment in favor of the plaintiff. On appeal taken by the defendant to the general term the judgment was reversed, and a new trial granted. In the meantime the original plaintiff had died, and the action was continued in the name of the present plaintiff, who, after the new trial was granted, moved the court for the appointment of another referee. The motion was opposed by the defendant and granted by the court. It is now urged that it was not within the power of the court to grant such motion. This depends upon the statute, which provides for reference upon consent of parties, manifested by written stipulation, signed by their attorneys, and filed with the clerk, and that, “ if the referee named in a stipulation refuses to serve, or if a new trial of an action tried by a referee so named is granted, the court must appoint another referee, unless the stipulation expressly provides otherwise.” Code, § 1011. The order made on the motion to refer after the new trial was granted seems to come within the terms of that statute, which terms, in their purport, are imperative that the court, in such case, appoint another referee unless there is some limitation to the contrary expressed in the stipulation not contained in that made in this action. IIustis v. Aldridge, 144 N. Y. 508 ; 64 S. R. 40. It is contended on the part of the defendant that such provision of the statute is applicable only where there is a failure to enter a proper judgment on the referee’s, report, or it is set aside by reason of his misconduct. The statute is not entitled to, nor can it reasonably have, so limited a construction, without disregard of its terms as clearly expressed. The order appointing the first referee was not vacated by that of the general term reversing the judgment and granting a new trial, but the omission there to direct the new trial before another referee was no reason why application could not be effectually made for such purpose at special term, and without the necessity of application to the general term for modification of its order in that respect. And the effect of the order appealed from was the vacation of the order appointing the referee by whom the trial was had. It is no answer to the right of one of the parties to seek the appointment of another referee that they nfiay have consented to proceed to the new trial before the same referee, and the failure of either party to move for the appointment of another referee might be treated as such consent. Catlin v. Adirondack Co., 81 N. Y. 379. In the cited case of Maicas v. Leony, 113 N. Y. 619, 22 S. R. 149, the trial of the issues referred was not completed, and the findings of the referee upon, which the interlocutory judgment was entered ex parte were imperfect, and for that reason such judgment and report were set aside. The court held that the case should not be sent to another referee, but that the uncompleted trial should be continued before the 'same referee, as there was no charge of misconduct on his part. That case does not support the asserted view of the learned counsel for the defendant. There is no occasion, upon the facts presented, for the consideration of the question whether the court can vacate the order of reference appealed from, and thus make the action triable by the court -only. It is sufficient to say that the exercise of such power is quite questionable, against the protest of one of the parties, without causes not appearing in this case. The fact that the party plaintiff is other than the one by whom the action was -originally commenced, and who was such when the stipulation to refer was made, is not available to the defendant. The action is the same, and the present plaintiff moved for the order appealed from. The case of Wood v. Swift, 81 N. Y. 31,.has no essential application to the question presented here.

The order should be affirmed.

All concur. *


text:
    Masonic Life Association of Western New York v. Susan A. Crandall et al.

    (Supreme Court, Appellate Division, Fourth Department.
    October 16, 1896.)
    1. Payment under mistake—Recovery.
    Money paid by an insurer under the mistaken belief that insured was dead may be recovered.

      2. Same—Contract.
    An insurer may recover money paid to the beneficiary under the mistaken belief that insured was dead, though the money was, by .agreement between insured and the beneficiary, transferred to a trustee to be held for a certain time, and to be repaid to the beneficiary in case it was not proved that insured was alive, and was after such time repaid to the beneficiary.
    3. Contract—Consideration.
    Where money had been paid by insurer to the beneficiary under the mistaken belief that insured was dead, an agreement between the parties for the transfer of the property purchased therewith to a trustee to be held to await an investigation as to insured’s death, and to be transferred to insurer on its being shown that insured was alive, is supported by a sufficient consideration.
    Appeal from special term, Erie County.
    ActioS) by the Masonic Life Association of Western New York against' Susan A. Crandall and others. There was a judgment in favor of plaintiff, and defendant Susan A. Crandall appeals.
    'The opinion of SPRING, J., was as follows :
    Bryant B. Crandall in 1881 was insured in plaintiff’s company ior the sum of $2,000; his wife, the defendant, Susan A. Crandall, being named as the beneficiary in the policy or certificate of insurance. In 1886 the insured was supposed to have been drowned "in Niagara river. What were then identified as his remains were buried, and the usual proofs of death, ■conformable to the conditions of the policy, were furnished, and thereupon the said $2,000 were paid to the said beneficiary by plaintiff. Crandall at the time of his supposed demise held other insurance policies on his life, aggregating, exclusive of the one held with plaintiff, the sum of $6,500, in each of which his wife was the designated beneficiary, and payment was made by each of these companies upon proofs showing the death of the insured. In 1881 rumors were rife that Crandall was alive. An agreement was thereupon entered into between Mrs. Crandall and these several insurance companies, whereby the property she had purchased with the avails of this insurance money, and the money still held by her, and a bond and mortgage which was an investment made from the avails of these policies, were paid or transferred to Charles F. Bishop as trustee. By the provisions of this agreement, Mr. Bishop was to hold the money and property in this fiduciary capacity for three years, during which period, if these companies established by satisfactory proof that Crandall was alive, then the property was to be converted into money, and distributed among them in proportion to their several interests. If, however, they failed to establish that fact within the stipulated period, then the money and property were to be paid and transferred to Mrs. Crandall, and the trust terminated. During the existence of this trust she was to be permitted to occupy the dwelling-house constructed with the insurance money received by her, and was to be paid interest at the raje of 6 per cent, per annum on the residue of the property of which Mr. Bishop was the custodian. Under this arrangement she assigned the bond and mortgage, executed a conveyance of the dwelling-house lot, and paid the money held by her to the chosen trustee; and this property amounted to about $1,900, the remainder having been used by her. After the three years had elapsed the trustee reconveyed the premises, paid the money, and reassigned the bond and mortgage to her, as no satisfactory proof had been adduced to prove Crandall was alive. In 1892 the officers of plaintiff received word the husband was under arrest at Los Angeles, in California. Mr. Tiffany, the secretary of plaintiff, went to Mrs. Crandall’s house, and urged her to make another ■agreement transferring the money and property again to Mr. Bishop as trustee, until it could be ascertained definitely if the man so apprehended was in fact the husband of defendant. Mrs. Crandall on the following day, by appointment, went to Mr. Tiffany’s office. The agreement was there executed and consummated by the conveyance of the house and lot, and of an undivided interest in a land syndicate. At that time she had deposited to her credit in the Erie County Savings Bank :$3,101.69, and in the Western Savings Bank $2,961.82, which sums were derived from the said insurance on the life of her husband. Within a few days it was positively known Crandall was the person apprehended in Los Angeles. He was brought to Buffalo, and identified as the husband of the defendant. Mrs. Crandall thereupon forbade the savings banks paying over this money, and this action is the result.
    A bare statement of these facts is all-sufficient to show how utterly without merit is Mrs. Crandall’s defense in this case. Her right to the insurance money did not attach until her kusband died, and with the fact undisputed that he was alive when the proofs of death were made, and has been ever since, she cannot evade the payment of these moneys, however much it may be hedged about by agreements that were made to give an opportunity to arrive at the truth. She was confronted with the statement that her husband was alive. Like any conscientious woman, she wished no imputation resting on her that she was the recipient of money to which she had not the semblance of title. She accordingly entered into the first agreement Avith Bishop as trustee. The rights of the parties to this fund were in no sense changed by the making of this contract. Without it she Avoukl be liable to refund the money in case Crandall were alive, for his death Avas the essential prerequisite to her right to it. Under the agreement the same condition inhered. It preserved the property intact to the insurers in case Crandall should be found, it protected her in the event there >vas no foundation for the rumors he AAras in the flesh. After the lapse of three years, had a period of time passed before repayment to her, in Avhich Crandall had been discovered, that Avould' have been an irresistible defense to her action to compel repayment. The infirmity in her case would have been that Crandall was not dead. If repayment hadf been made to her, she could not have successfully resisted recovery by these companies predicated upon the fact that her husband Avas alive. The first agreement did not in any manner assume to change the relations of the parties to this fund. The insurers did not agree to relinquish all their rights in the money after the expiration of the stipulated period. The burden would have been on them at any time to establish affirmatively Crandall Avas alive, but, beyond that, the one salient query lying at the threshold of any litigation over this fund must be, Was Crandall alive at the time the proofs of death Avere furnished ? Two years after the termination of the first agreement,, proof again came to the insurers-that Crandall Avas alive; that he had been apprehended at Los Angeles, California, and had been identified by acquaintances ; and the second agreement was entered into. Mrs. Crandall claims she executed this agreement under duress. The testimony does not impress me faArorably with that idea. The agreement is in substance like its predecessor. The same motives existed for its execution. The meeting at which it was executed was prearranged for the specific purpose of making it. She Avent to Mr. Tiffany’s office voluntarily. The paper Avas read over to her, and she comprehended its terms. But, as I AdeAv the relations of the parties to this fund, the second agreement was of no significance, so far as affecting the real rights of the parties. After it Avas demonstrated Crandall Avas alive, the Avife’s title to the money paid her must be divested, and the refunding of the money could be compelled. The agreement making Bishop its custodian did not alter this vital principle in this peculiar case. This money Avas paid on the hypothesis Crhndall was dead, and if this Avas untrue a mistake of fact existed, and the proposition is elementary that repayment to the insurers could he compelled. Pom. Eq. Jur. § 852 et seq ; Story, Eq. Jur. par. 140; Willard, Eq. Jur. p. 69 ; Rheel v. Hicks, 25 N. Y. 289 ; Bank v. Eltings, 40 N. Y. 391; Mayer v. Mayor, etc., 63 N. Y. 455. As Story says in paragraph 140 : “ The general rule is that an act done or contract made under a mistake or ignorance of a material fact is voidable and relievable in equity.” But counsel for defendant strenuously urges there was no consideration for the second agreement. It is not of the slightest moment. The form of the action, even, is not affected by that question; for if she were the custodian of this property, instead of Bishop, the action would not necessarily be one at law, but a suit in equity would be the more probable, as the property is not all in money, but in a bond and mortgage and-in real estate, and the relief sought would be the vesting of the title to this property in the insurers. If she voluntarily paid this money to the bank to await the issue of an investigation to ascertain whether or not Crandall was alive, the action would be maintainable against the custodian of the fund, and it could be in equity to restrain the payment to her. Again, the interposition of a court of equity is usually brought to compel the repayment of money paid by a mistake of fact. Even if the agreement is without consideration, it cannot materially affect the parties here, for they acted upon it as a binding agreement. They have recognized its validity, and it is only an unimportant side issue in a controversy, the pith of which is the existence or non-existence of Crandall. The vice in the defendant’s claim is in a lower stratum than this agreement. But there ivas a good consideration entering into this agreement. She Avas in imminent danger of being sued for the recovery of this money or property. It had been paid under a mistake of fact, if her husband still lived. She was Avithout a defense, if that fact existed. She Avisked to aAmrt litigation and further publicity of these distressing details; hence the agreement is as much for her benefit as that of the insurers.
    Again, defendant’s counsel urges the well-recognized principle that the first agreement Avas the adjustment of a disputed demand, and its termination vested the property irrevocably in Mrs. Crandall. Such Avas not the scope of that agreement. Title to the property was not altered by this contract! Its preservation was its aim and purpose, and the insurers did not, upon its expiration, relinquish their right of recovery if Crandall should be found aliAre. Mrs. Crandall cannot comqfiain of any maltreatment from these companies. She Avas paid the full sum stipulated in the policies. She has depleted the corpus of this fund materially. She has been paid the accruing interest upon it for nearly eight years, and during all this period the insured husband Avas alive. Judgment will be entered in favor of plaintiff for the relief demanded in the -complaint.

      Arthur W. Hickman and Geo. W. Cothran for appellant; Charles A. Pooley, for respondent.
   PER CURIAM.

—Judgment affirmed, with costs, on the opinion of SPRING, J., delivered at special term.


author: BROWN, P. J. HATCH, J.

text:
    In the Matter of Richard S. Emmett.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 26, 1896.)
    Elections—Filing certificate of nomination—Determination as to-Validity—Review—Limitation.
    Laws 1896, c. 909 (Election Law), § 56, giving “ the supreme court or any justice thereof ” summary jurisdiction to review a determination as to the validity of a certificate of nomination by the officer with whom the certificate is required to be filed, and make such order as-justice may require, “but such order must be made on or before the-last day fixed for filing certificates of nomination,” limits the time-within which the appellate division of the supreme court may make-an effective review of such an order by a justice thereof, as well as-the time within which he may make the order. Hatch, J., dissenting.
    Appeal from special term.
    Richard S. Emmett, Jr., and Joseph E. Ennis presented to' the county clerk of Westchester County certificates of nomination for member of the assembly'for the second district of Westchester County, each claiming to be the regular nominee of the Republican party. The determination of the clerk in. favor of Emmett was, on application of Ennis, reversed by a justice of the supreme court, who ordered the name of Ennisto be put on the official ballot as the Republican nominee,, and from such order Emmett appeals.
    James M. Hunt and Roger M. Sherman, for appellant; H. O. Henderson, for respondent.
   BROWN, P. J.

—In this case, which is entitled, “In the Hatter of the Objections to the Certificate of Nomination for Member of Assembly of the Second Assembly District pf Westchester County,” the court is of the opinion that it can make no effective order in the case. The statute of 1895 provided that the court could “ make such order in the premises as justice may require.” Laws 1895, c. 810, § 56. By_ the amendment made to the law in 1896 it was further provided that “such order must he made on or before the last day fixed for fifing certificates of nominations to fill vacancies with such officer as provided in subdivision one, of section sixty-six of this article.” Laws 1896, c, 909, § 56. That subdivision requires that the certificate of nomination for member of assembly shall' be filed with the clerk 15 days before the election, so that, in compliance with that provision of the statute, it is impossible for the court to make any order that would be effective in this matter. The case from the Fourth department to which our attention was called, was decided under the act of 1895, and has no application to this case. Therefore the appeal that is taken is dismissed. That is the view of three judges of the court. Judge Hatch has dissented from that view, and he has expressed the views that he has taken in a written opinion, which will be filed with the clerk.

HATCH, J.

(dissenting).—The order appealed from was made by the court below on the 17tli day of October, 1896. The direction, by the learned judge who granted it, was in the-following words: “The county clerk of Westchester county is directed to file the foregoing order immediately upon the presentation thereof to him.” In the usual course of judicial procedure, the party obtaining an order favorable to his contention enters the same, and the party affected thereby may usually rely upon his so doing. The case presented necessity for expedition, as the time in which the rights of the parties could be determined, if it was sought to review the order by-appeal, was extremely short. Appellant appealed from the order to this court upon the day (Saturday) on which the order was made, and promptly appeared in court to argue and submit the appeal at its opening on Monday, October 19th, that day being the first day of the session of the court following the making of the order. He was met by the objection that no order had been entered by the clerk, and that, consequently, there was nothing before the court for review. This objection prevailed, and the court declined to entertain the appeal for that reason. After this dismissal, but upon the same day, the order was entered, and appellant immediately took this appeal, and has brought the matter again to the attention of the court as soon as judicial machinery permitted. Ho excuse or reason is assigned why the order was not promptly entered by respondent, and none suggests itself to the court, except that delay might allow the election statute to operate and prevent a review of the order. Such practice does not commend itself to the court, nor does it consort with fairness and justice. The court should not lend aid to its success, unless compelled thereto by an unyielding statute.

It is desired, before considering the question of power in the court to now make an effective order, to look somewhat at the merits of the application which is now "before us. It appears without dispute that the representation to the Second Assembly District of Westchester County is made up of 71 delegates from the various towns and districts in such assembly district; that of this number Eichard S. Emmett, Jr., received 48 votes, being a majority of the whole number of elected delegates at a convention claiming to be the regular Eepublican Assembly Convention, called by the regular machinery. of the party in that district, which met at Hew Rochelle, October 7, 1896. The primaries which elected these delegates were conceded to be regular, and there were no contests in any of the towns ■comprising the district, except in the town of Harrison, to which was accredited five delegates. Joseph E. Ennis, whose name is directed to be placed upon the official ballot, claims to be the regular nominated member of assembly from said district. He was nominated by a convention claiming to be the regular Republican Assembly District Convention, called by .the regular party machinery of the district, and held at White Plains, in said district, on the 6th day of October, 1896. It nowhere appears in the record before us how many delegates attended the convention. It was stated by counsel upon the argument, and not controverted, that but 23 delegates were present. We have, therefore, the fact that the delegates who represented the district which made these two nominations were the regularly accredited delegates of the whole body of Republicans composing the district. Had they all met at one time, and in one convention, the votes which were given for Emmett would have constituted him the party nominee for this office. Meeting separately, he still has a substantial majority,-—nearly two-thirds of all the delegates. Unless, therefore, some insuperable obstacle stands in the way, he ought, in good conscience and equity, to receive the benefit which almost uniformly follows the majority vote. The court below, in disposing of the present question, made the right to a place upon the official ballot to depend upon the regularity of the call of the nominating convention by the constituted authorities, and, so far as it appears, did not consider the fact that Emmett had received nearly two-thirds of the votes of the accredited delegates. It appears by the record that on August 3,1896, in pursuance of a regular call, there met at Tarry town, in said county, an assembly district convention for the purpose • of selecting delegates to attend the state, judicial, and congressional conventions of the Republican party thereafter to be held, and to perform such other duties as should properly come before it. The assembly district committee, who issued the call, as there were several contesting delegates, met for the purpose of making up a temporary roll of delegates for the organization of the convention. The call for the convention required it to meet at 12 m. At that hour the committee had not finished its labors, but the delegates had assembled at the hall. How many, does not appear. Upon motion of one of the regularly elected delegates, one John J. Mahaney was elected chairman of the convention, and possessed himself of the platform. At about this time, and at 12 minutes past 12 o’clock, the committee, having finished its labors, headed by its chairman, Jacob Ilalsted, entered the convention hall, and demanded right to call the convention to order. His demand was refused, and Mahaney insisting upon acting as chairman of the convention and proceeding with-the organization, the committee withdrew from the hall, and, proceeding to another room in the same building, organized a convention. It was stated by the learned court below that the delegates who remained in the hall constituted a majority of the delegates. ■ In fact, both conventions claimed to have a majority of the delegates, and the fact doubtless depended upon the determination of the claims of the contesting delegates. Whether the usual course in Westchester County devolved upon the committee designated to call the roll of the convention the duty of preparing a temporary roll df the delegates, in case of contest, and for the chairman of the committee to call the convention to order, or whether the delegates themselves proceeded to organize the convention, is a disputed question, upon the r.ecord before us. There must rest somewhere some power to determine who are delegates entitled to participate in the temporary organization of the convention. It is the established custom in the national convention of the Republican party for the national committee to make up the temporary roll; for its chairman to call the convention to order, and present the temporary presiding officer for acceptance by the convention as thus made up. That such rule is observed in other jurisdictions of the Republican party in this state, appellant’s affidavits tend to establish, and tÜe necessity for it in case of contesting delegations, for purposes of temporary organization, is apparent; for until that question be settled both sets of delegates have prima facie the right to participate, which may operate to the disadvantage of the rightful delegates, and gives undue representation, to the disadvantage of delegates from other localities. The right to determine preliminarily this question would seem to rest with the committee authorized to call the convention. Undoubtedly the convention has the right to organize itself in the absence of the chairman of the committee, assuming that he possessed the power to call it to order. But when the committee were engaged in the discharge of their duties, and were actually present near the hall, which it may be safely presumed was known to the delegates, a reasonable time ought to have been allowed for the committee’s appearance, and I think we may safely assume that 12 minutes was not an unreasonable time to wait.

Assuming, however, that the question of regularity of the two conventions remains a question of doubt, upon the record, we may well rely upon the action of the constituted authorities, which had the power of review and determination of the question of regularity. It appears that each of the two conventions elected delegates to the state, judicial, and congressional conventions, respectively, of the Republican party, and also appointed committees to call the assembly district convention for the purpose of nominating a member of assembly. The delegates elected by the Halstead convention were admitted by the respective conventions to which they were sent, and the delegates from the Mahaney convention were, rejected after their claims had been heard. The question of the effect of party action by the supreme authority in the state upon the regularity of conventions and their action has not been viewed alike by judicial tribunals. Mr. Justice Adams, in Re Wood-worth (Sup.), 16 N. Y. Supp. 147, held that the court would examine the evidence and determine for itself the regularity of selection and action by the delegates in convention. Upon reflection the learned judge modified his views somewhat, and held that, where there had been action upon the regularity of. the convention by superior authority in party regulation, such action is to be regarded as binding upon the courts. In Re Redmond, 5 Misc. Rep. 369; 25 N. Y. Supp. 381. The Wood-worth Case was affirmed upon appeal (19 N. Y. Supp. 525), upon the ground that the order was not appealable, but there was no discussion of the rule which governed the action of the court in the Redmond Case. And the learned judge again adopted the same rule in Re Pollard (Sup.), 25 N. Y. Supp. 385. In Re Broat, 6 Misc. Rep. 445, 56 S. R. 750, Mr. Justice Herrick held that the determination of party conventions and committees had no weight whatever in determining whether the action of these bodies was in conformity with the laws of the state. In Re Mitchell, 81 Hun, 401, 30 N. Y. Supp. 962, this question was quite elaborately considered; and this court held that courts would inquire into the action of political conventions, irrespective of the determination by superior party authority. I conceive the rule of this case to be that so far as the action of caucuses and conventions is concerned, which are regmlated by law, it is the duty of courts to see that the law has been complied with, and will make inquiry to that end. But so far as party usage and custom is concerned, which does not find regulation by statutory authority, and is not governed by some fixed and definite rule for party action, the action of the supreme authority in the party would have great, if not controlling, weight. So far as applicable here, it does not appear that there exists any settled, definite rule governing the question as to who should make up the roll of delegates for temporary organization, or who was the proper person to call the Tarrytówn convention to order; and it may well be that, under such circumstances, we ought to regard the action of the convention in receiving the delegates of the Hal-stead convention as final, and that, therefore, the committee which was appointed by such convention had authority to call the assembly, district convention which nominated Emmett. But, aside from this, we have the fact that the delegates, who certainly had authority to act, have acted, and have, by nearly a two-thirds vote, named a candidate. The order of the court below deprives him of the rights secured thereby, and makes party regularity superior to the act of accredited delegates. It gives effect to the shadow, and not to the substance. It makes the order of the court superior to the concededly ox-pressed will of the people by their delegated authority. And it absolutely, for all practical purposes, prevents the voters from casting their votes for the nominee thus named. Hot alone does this result, but by act of the respondent, in failing to enter the order, the aggrieved party was denied his remedy. Are we now powerless to right this wrong and prevent this injustice % It is said that we are.

Claim is first made that the order is not appealable. The court so said in the Woodworth Case, supra. But it was there said, not so much in denial of the right, as for the reason that any order Avhich the court might make would be futile. In the Mitchell Case, supra, the court held the order appealable, where there remained time in which relief might be granted. In Re Cuddeback, 3 App. Div. 103, the court, upon appeal from an order which reversed the action of the county clerk in refusing to file a certificate of nomination not presented within the statutory time, entertained the same, and reArersed the order of the court, and affirmed the decision of the county clerk, although the time within which the order could be made effective had expired. The proceeding in this case still remains an appeal from an order, notAvithstanding the assertion by the respondent’s counsel that it was a proceeding by mandamus. The rule seems to be that the order is appealable, and will be' entertained Avhén it can be made effective, or where the determination involves a question of public importance, or where there exist conflicting decisions of the loAver courts. In Re Madden, 148 N. Y. 136.

It is said that any order which Ave may make cannot be rendered effective. If this be so, then we ought not to make any that interferes with the ballot. The election law contemplates that a ballot may be changed by order of the court at any time before election, if such course be necessary to correct any error or omission therein. Luavs 1896, c. 909 (Election Law) § 88. In fact, there still remains time in Avhich any order we may make in this matter can' be rendered effective. ' Excluding the day of our decision and election day, there remain seven full days. The first official act which the clerk is required to perform, following the last day of filing certificates, is provided by section 61 of the election law, when he must publish a list of the candidates. This would happen on the day following our decision. He is also required upon the same day to forward to certain officers printed lists of the candidates, and the. same are to be posted three days before the election. Aside from this, the clerk is required to do no act before this time, beyond the preparation of the ballots, and they are not to be delivered until Saturday before election. Id. § 87. It is therefore apparent that, so far as the election law prescribes duties to be performed by the clerk, our order would not have the effect of interfering with the duties charged upon him.

It is further urged that section 56 of the election law is mandatory, in that the order contemplated by the section requires that it should be made on or before thé last day for filing certificates with the county clerk, which must be at least 15 days before the election. The language of the section as it stood in 1895 authorized the court “ to make such order in the premises as justice may require.” The amendment to this section in 1896 (1 Gen. Laws 1896, p. 925) added to this language the words, “ but such order must be made on or before the last day fixed for filing certificates of nominations to fill vacancies with such officer as provided in sub-division "one of section sixty-six of this article.” This language, literally construed, does not embrace the order to be made by this court. The order was made by the court below upon application of the respondent, and was so made within the time prescribed by the statute. It is that order which is now appealed from, and which we have authority to review. Concededly, the established rule in the construction of statutes is that the intent of the lawmakers shall govern. But as was said by Judge Earl in People v. Commissioners of Taxes of New York City, 95 N. Y. 554:

“ Whenever it happens that the sense of the law, how clear soever it may appear in the words, would lead to false • conséquences and unjust decisions, the palpable injustice which would follow from its sense compels an effort to discover some kind of intepretat'ion,—not what the law literally says, but what it means.”

So, when the literal language of the act does not place a prohibition upon the act which it is sought to have done, courts are not bound to search for an intent, outside of the literal language of the statute, which would lead to a result palpably unjust. A construction which leads to an absurd result will always be avoided. Com. v. Kimball, 24 Pick. 310. And one which leads to the perpetration of a wrong ought to be avoided when possible. Usually, when an act requires a thing to be done in a particular way that manner alone must be followed. .But such questions are largely governed by considerations of convenience and justice, and when the particular manner of doing the act involves “ injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature.” End. Interp. St. § 433. In the determination of the question whether a statute is man.datory or directory, a general rule is not easily formulated, as the question must depend upon many particular considerations. But generally, when the limitation is not placed upon the jurisdiction and power itself, but only upon the manner and time of its exercise, it may be, and has been, construed to be directory. Black, Interp) Laws, § 124, p. 338; Bladen v. Philadelphia) 60 Pa. St. 464. It is also laid down as a rule of construction that, where the provisions of the law which have been disregarded form important parts of a complicated system, it is of importance to examine the other parts, in order to determine what effect the failure to comply will have upon the associated parts of the act. Black, Interp. Laws, § 123, p. 335. Applying these rules to the particular case now in hand, Ave have no difficulty in seeing that the construction Avhich prevents a revieAv of this order leads to the perpetration of injustice upon the appellant, and practically defeats the right of a large class of voters. There is no limitation placed upon our poAver to revieAv this order and render a decision thereon, as there is no prohibition in the statute.itself. The whole theory of the election Iuav seeks to formulate a plan by which the free, fair, and independent desire of the elector may find expression. The fact that some of its provisions seem destructive of this •end does not militate against this theory. This relates, not alone to the casting of the vote, but to all the steps Avhich are proAdded for placing the candidates upon the ticket. The preservation of the latter right is as important as is the preservation of the right to vote, and to have the vote made effective. In People v. Wood, 148 N. Y. 147, 42 N. E. 537, the court said:

“ The object of election laws is to secure the rights of duly-qualified electors, and not defeat them. Statutory regulations are enacted to secure freedom of choice, and to prevent fraud, and not by technical obstruction to make the right of voting insecure and difficult.”

Among the rights of duly qualified electors is the right to vote for a candidate avIio has been selected by their accredited •delegates, and, when this privilege is denied to them, their right thereto is defeated. The denial to Emmett of a place upon the ticket is a denial, not alone of a clear right possessed by him, but is, for all practical purposes, a denial of the right of the electors to vote for him. This right has been denied by the interposition of technical objections, and by sharp practice in Avithholding from entry the order made by the court below. It should not be allowed to prevail, as the court can now make its order effective, and the statute admits of a construction which does not prohibit this order. In the interests of justice and right, the appellant should prevail.

The order appealed from should be reversed, and the decision of the county clerk affirmed, and the latter should be directed to place the name of Richard S. Emmett, Jr., upon the official ballot.