text:
    META MUHLENBRINCK and Others, Executors, etc., of JOHN MUHLENBRINCK, Deceased, Appellants, v. LEWIS J. POOLER and MARIE T. UPPINGTON, Respondents.

      Lease — when a covenant for renewal will be construed as not requiring a similar covenant in the instrument of renewal.

    In 1854 tlie owner of certain premises leased tlie same for the term of fourteen years from November 1,1854. The lease provided that the lessee should erect upon the premises four brick dwelling-houses, and that upon the expiration of the term the lessor would either pay to him, his heirs, executors, administrators or assigns, the just and full value of the buildings, or such of them as should remain on the premises, or would grant to him or them a new lease for a further term of fourteen years at a rent to be agreed upon by the parties or determined by appraisers. It then declared that the “new lease shall contain covenants, conditions and agreements,'the same as those herein contained.” Held, that but one renewal was provided for, and that the new lease need not contain the covenant for renewal.
    The authorities bearing upon this question considered and held to indicate the disposition of the courts to have been to depart from the rule of construction adopted and followed in the earlier cases, and to restrict the right of the tenant to one additional term, unless the lease itself contains an express stipulation that the second lease shall contain a covenant for a further renewal or for the creation of one or more succeeding terms.
    Appeal by the plaintiffs from an interlocutory judgment, directed by the court upon a trial of this action at the Special Term

      Nelson Smith, for the appellants.

      Qeorge JBUss and J. M. Hunt, for the respondents.
   Daniels, J.:

The testator brought this action to secure a lease for a second term of the premises situated on the corner of Elizabeth and Spring streets, in the city of New York. At the time when the action was brought the premises were owned by the defendants Peter McDonough, Marie Therese Furey and Lewis J. Eurey. The original lease was executed by Mary Davey, who was at the time the owner of the leasehold premises, and it was given for the term of fourteen years from the 1st 'of November, 1854. The lessee occupied the premises under the lease for that term, and since then for a succeeding term of fourteen years, and deeming himself to be also entitled to a third term for a like period this action was brought to secure the execution of a lease for the second term, with the same covenants contained in the lease of the first term. During its pendency McDonough departed this life, and upon his decease the defendant Lewis Furey became entitled to the lot devised to McDonough for life, as well as another lot in which he was previously vested with the title, and the third was devised to Marie Therese Furey for her life. During the action the name of the defendant Lewis Furey was changed to Lewis J. Pooler, and Marie Therese intermarried with George Uppington. Neither of the defendants except Lewis J. answered the complaint; but he being an infant an answer was served in his behalf by his guardian ad litem. This answer was in the ordinary form, submitting his-rights and interests to the protection of the court. A reference was thereupon ordered to a referee in the first instance to examine and report the facts to the court, with his opinion thereon. This was afterwards supplemented by a succeeding order, directing the referee to report all the evidence already taken and such as he might take pursuant to the second order, with his opinion. The referee accordingly took the evidence offered by the parties, and witli his opinion reported it to the court. Exceptions were filed to his conclusions on behalf of the two defendants, Lewis J. and Marie Therese. These exceptions were so far sustained that judgment was ordered in their favor, and a further reference directed to ascertain the value of the use and occupation of the property since the 1st of November, 1882, and directing the plaintiff also to account for the rent unpaid at chat time.

The objection has been taken, on behalf of the plaintiff, that the court, at the hearing which took place at the Special Term, was concluded by the facts deemed by the referee to have been supported and proved by the evidence. But as the case was not referred to him to hear and determine it, but merely to take proof and return it to the 'court with his opinion upon it, this objection is not well founded.

The reference was ordered not to determine the facts in the case, or the rights of the parties, by the action and conclusion of the referee, but to supply the court with information upon which itself could intelligently act and adjudge the rights of the parties. "When the case was brought before the court subsequent to the hearing and report of the referee, it was presented for its examination and decision upon the evidence which had been taken, and the facts that evidence was found to have proved. It was for the court to determine what were the rights of the parties upon the proof, which in this manner had been obtained. It, therefore, proceeded regularly in considering and determining whether, upon the evidence produced, the plaintiff was entitled to recover in the action.

The power to do that was not excluded by the omission of one -of the defendants to answer the complaint. For, as the facts were stated in it and ascertained upon the reference, the question was .still presented whether the plaintiff was entitled to a lease with all the covenants of the first for another term oí the leasehold property. The court considered the evidence, as well as the facts established by it, and concluded that the plaintiff was not entitled to another lease of the property with all the covenants contained in the first. And it is this determination by which the rights of the parties were disposed of at the hearing. Whether the plaintiffs, as the executors of the lessee, were entitled to a lease containing all the same covenants for another term, must depend entirely upon the construction to be given to the first lease. By this lease the lessee was obligated to erect upon the leasehold premises, within two years from its commencement, four or more good and substantial brick dwelling-houses, and the evidence proved that obligation to have been fully performed by him. Upon the expiration of the term, it was then provided that the lessor would either pay to him, his heirs, executors administrators or assigns, the just and full value of the buildings, or such of them as should remain on the premises, or would grant to him or them a new lease for a further term of fourteen years. The rental for the new lease was to be ascertained and determined either by the agreement of the parties, or the decision of appraisers selected for the purpose of appraising the valuation of the property, and the rent was to be six per cent upon that valuation, provided, however, that it should not be less in any event than the rent reserved, for the first term. It was then declared in the lease that the “ new lease shall contain covenants, conditions and agreements, the same as those herein contained.”

And it is upon this stipulation that the tenant predicated his right to a new lease, identical with the first, for a second leasehold term in the property. And authorities have been relied upon, which, if they could at the present time be followed, would sustain this claim. For in Bridges v. Hitchcock (5 Brown’s Parliamentary Cases, 6), it was held that such a stipulation or covenant in a lease entitled the lessee to succeeding leases with all the original stipulations, and that the lessee could demand from the lessor, his heirs, etc., such succeeding leases in perpetuity. This authority was afterward followed in Furnival v. Crew (3 Atkyns, 83), and in Cooke v. Booth (2 Cowper, 819). The subject was also considered in Copper Mining Company v. Beach (13 Beav., 478). But there the covenant was that the lessor would always, at any time, when and as often as required, renew the lease, which gave expression to the obligation much more favorable to the tenant than the phraseology of the lease in this action. The point was likewise considered in Iggulden v. May (9 Ves., 324), but it was left undecided by the chancellor, who suspended the action until a trial could be had and a construction given to the lease, in an action at law. That trial afterwards took place, and the court held that the tenant was not entitled to an indefinite renewal of the term, but tha't he was limited to one additional term of twenty-one years, notwithstanding the fact that the lease provided that the succeeding lease should contain “ ail covenants, grants and articles, as in the said indenture or lease were contained, and particularly such covenant for renewal as is contained therein.” (Iggulden v. May, 7 East, 237.) This is an extreme decision, marking a wide departure from the principal upon which the case of Bridges v. Hitchcock was decided, both in the Court of Chancery and the House of Lords, and it was characterized by a disposition to restrict the right of the tenant to but one additional term even when the language of the lease, if full effect had been given to it, would have entitled him to other succeeding like terms in the property. In the case of Willan v. Willan (16 Ves., 72), the lease covenanted for a renewal for a further term, and so on forever, or so long as the testator or his assigns, etc., should hold the property, and this was considered by the chancellor, as it certainly was, to be sufficient to require repeated renewals. But there the language of the lease was such as plainly to express that obligation,, while in this case it. failed to declare the intention of the parties in the same or any other equivalent manner. For what was agreed upon in the lease in suit was, that a new lease of the premises should be granted, and that it should contain covenants, conditions and agreements, the-same as those contained in the first lease. What the parties appear to have contemplated was one additional term in the premises, and the language which they used to express their intention was not enlarged by the obligation to which the tenant was subjected, of rebuilding the buildings in case of their destruction by fire or otherwise. For the portions of the lease providing for a renewal, or the-creation of another term, were in no manner referred to or enlarged by that part of it which was inserted to create this obligation. But. the right to the additional lease or term remained dependent upon what had been before inserted in the lease. And it has been the policy of the courts since the earlier decisions, to which reference has been made, were' pronounced, to consider stipulations or covenants of this description in such a manner as to limit them to one-additional term.

The rule of construction became settled at an early date that a covenant for renewal, or for an additional term, should not be held to create a right to repeated grants in perpetuity, unless some sufficient consideration for such grant was made to appear, and the parties had expressed themselves upon this subject in language devoid of all ambiguity. The case of Shepard v. Dulan (3 Drury & Warr., 1) has been cited as another authority requiring a more enlarged principle of construction to be applied to the language contained in the lease. But it does not, for the lease in that case contained no obligation requiring the second to include the right of renewal mentioned in the first. And the same is true of Harnett v. Yielding (2 Sch. & Lefr., 549).

The case of Iggulden v. May (7 East., 237) is very decisive authority against the construction required to maintain the plaintiffs action. So is that of Tritton v. Foote (2 Brown C. C., 636), where the stipulation for the new lease provided that it should be subject to the same rents, covenants, reservations, conditions and agreements in all respects. The language in that case was more comprehensive than in the present lease, and still it was held to entitle the lessee to no more than one additional term. In Hyde v. Skinner (2 P. Wms., 196), which proceeded upon a similar lease, the ruling was the same, and that of Baynham v. Guy’s Hospital (3 Ves., 295) is equally as decisive against the rule of construction relied upon by the plaintiffs. This, it is true, was decided not by the chancellor, but by the master of the rolls. But the same view was approved by the chancellor in Moore v. Foley (6 Ves., 234). The lease, however, in that case was much broader in its language, providing for successive renewals as often as any of the lives mentioned in the first lease dropped out. And that was entirely consistent with the right to repeated renewals of the same term.

In Browne v. Tighe (8 Bligh, 286); Piggot v. Mason (1 Paige, 412); Rutgers v. Hunter (6 Johns. Chy., 215); Carr v. Ellison (20 Wend., 178); Abeel v. Radcliff (13 Johns., 296); Banker v. Braker (9 Abb. N. C., 411); Cunninghani v. Pattee (99 Mass., 248), the same subject was considered, but under leases not as broad in their covenants as this lease, or as the leases in many of the other authorities. But in all of them the courts referred to the rule as established, which has been maintained ■ by the modern authorities, excluding the right to more than one renewal under language similar to thatj,contained in this lease. These authorities indicate the disposition of the courts to have been to depart from the rule of construction adopted and followed in the earlier cases, and to restrict the right of the tenant to one additional term, unless the lease itself contains the express stipulation that the second lease shall contain a covenant for a further renewal, or the creation of one or more succeeding terms, The principle sustained by these authorities is obligatory upon the plaintiffs in this action, and excludes the right to another lease with covenants for a third term in the leasehold property; and for that reason this action so far cannot be sus-tainbd. There are, as has already been stated, certain attributes in the present case that did not enter into many of those sanctioning this restriction of the law. But they are not such as would, in view of the strong expressions made use of by the courts in the decisions in the later cases, justify a departure from the principle upon which they have proceeded.

In no manner was the claim brought into the case that the plaintiffs or the lessee had become liable for rent for the occupancy of the premises during a portion of the second term, or since the expiration of that term. No defense or claim of that description was, in any form, brought into the case by the pleadings, and there was no foundation for the reference ordered to ascertain the extent of the obligations of the plaintiffs for rent in arrear.

As to that part of the judgment it was unauthorized and it should be reversed, but as to the residue, as the second term had already expired, the judgment should be affirmed, but without costs of the appeal.

BRAdt, J., concurred.

Judgment affirmed, without costs.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    WILLIAM M. HOUSE, Appellant, v. JOHN L. LOCKWOOD and JULIET R. LOCKWOOD, Respondents.

      Action for the strict foreclosure of a mortgage upon land situated in another State — • when the courts of this State have ju/risdiction over it.

    This action was brought to procure a strict foreclosure of a mortgage upon lands in Cook county, Illinois, given by the defendant Juliet R. Lockwood to secure the payment of a sum of money due to the plaintiff from the defendant John L. Lockwood, her husband. The referee dismissed the complaint upon the ground that the court had no jurisdiction over the action because the land was situated in the State of Illinois.

      Held, error; that as the parties were within the jurisdiction of the court when its process was served upon them, and had appeared and served answers contesting the right of the plaintiff to maintain the action, the court acquired jurisdiction to entertain the action and to grant the relief sought.
    Appeal from a judgment dismissing tbe complaint, entered on the report of a referee.

      Nicholas Quaalcenbos, for the appellant.

      Austen G. Fox, for the respondents.
   Daniels, J.:

The object designed to be accomplished in this action was the strict foreclosure of a mortgage upon lands situated in Cook county, in the State of Illinois. The instrument alleged to be a mortgage was in form a deed, executed by the defendants on or about tbe 7th of October, 1876, to the plaintiff. The property described in it belonged to Juliet R. Lockwood, who is the wife of the other defendant in the action, and evidence was given tending to establish the fact that the instrument was executed and delivered' to secure the payment of money owing from John L. Lockwood, the other defendant, to the plaintiff. And under such evidence the fact was proven that the instrument, though in form a deed, was in reality a mortgage. And as the owner of the property was a married woman at the time when it was executed, and the debt was not her own, and she charged no other property by the execution of the instrument, the remedy of the plaintiff for the recovery of the indebtedness is confined to the land.

By the decision which the referee made the complaint was directed to be dismissed, but that direction was not given because of any deficiency in the plaintiff’s proof, but for the reason that the land being situated in the State of Illinois, this court had no jurisdiction over the action. And whether it has or not is the controlling point to be decided in the disposition of the appeal. It has been urged in opposition to the appeal, as no objection was taken by the answer to the jurisdiction of the court, that the defendant was too late in raising it upon the trial before the referee. But in taking that objection the counsel is in error, for by section 499 of the Code of Civil Procedure, the objection to the jurisdiction of the court is not waived by the omission to take it either by demurrer or answer, and the authorities cited in support of this point in no manner tend to sustain it.

The subject-matter of this controversy is capable of being wholly and completely disposed of by a decree between these parties. They were personally within the jurisdiction of the court when its process was served upon them, and the defendants have appeared and served their answers contesting the right of the plaintiff to maintain the action. They aré personally, therefore, subject to the jurisdiction of the court. And where that is the fact, and such jurisdiction has been acquired, there it has been the practice of courts of equity to decree relief, disposing of the controversy, although the subject-matter itself may be situated in another State or county. Upon this subject it has been said that “ the jurisdiction of courts of equity in regard to trusts, as well as to other things, is not confined to cases where the subject-matter -is within the absolute reach of the process of the court called upon to act upon it, so that it can be directly and finally disposed of or affected by the decree. If the proper parties are within the reach of the process of the court, it will be sufficient to justify the assertion of full jurisdiction over the subject-matter in controversy.” And courts of equity will, “ where the proper parties are within the territorial sovereignty, or within the reach of the territorial process, administer full relief, although the property in controversy is actually situate in a foreign country, unless, indeed, the relief which is asked is of a nature which the court is incapable of administering.” (2 Story’s Eq. Jur., §§ 1291, 1292.) And this principle has been applied to a large class of cases, including actions for the specific performance of contracts, the adjustment of trusts and the foreclosure of mortgages. Upon this subject it is said that courts of equity in England have an equal right to interfere with regard to judgments and mortgages upon the lands in a foreign country, as upon lands here. Bills are often filed upon mortgages in the West Indies. The only distinction is that this court cannot act upon the land directly, but acts upon the conscience of the person here.” (Id., § 1293.) The accuracy of the general principle maintained by the author is sustained by Mitchell v. Bunch (2 Paige, 606, 616, 617); Sutphen v. Fowler (9 id., 280); Bailey v. Ryder (6 Seld., 363); Gardner v. Ogden (22 N. Y., 327); Roblin v. Long (60 How., 200). And the case of Cragin v. Lovell (88 N. Y., 258) is in no manner inconsistent with this well established principle. For what was said there upon the subject of actions relating to property situated in other States was confined to actions for injuries to real property, and this was not such an action. In Toller v. Garteret (2 Vern., 494), an action of the same description as the present suit was brought and held to be maintainable by the chancellor, against a like objection to that which proved successful before the referee. This is a direct authority in favor of the right of the plaintiff to maintain this suit. And as the rights of -the parties can be fully adjusted and regulated by a judgment in it operating upon the defendants themselves, it appears to be within the protection of the general principle of equity practice already •mentioned. And that an action may be maintained in the courts of this State to foreclose a mortgage upon property within another State, has been assumed by section 982 of the Code of Civil Procedure. By section 1626 of this Code it has been declared that a sale of the property mortgaged. must be directed by the final judgment in the action. But whatever construction should be placed upon this section in other respects, it very clearly was not intended to include property situated in another State, for as to such property no sale could be made in compliance with the provisions of the Code regulating mortgage ■sales. And such a sale if made would probably be entirely inoperative where the property is in another State, as this property is. ( Watts v. Waddle, 6 Pet., 391, 400.) It must, therefore, have been contemplated by the Code, permitting the foreclosure of a mortgage upon property in another State, that the action should be for such relief as has been demanded in this suit, inasmuch as no other possible relief could be awarded by the judgment. And that such relief may be given where the rights of the parties can be no ■otherwise protected or carried into effect, results from the principle which has been applied to foreclosures of this description. (Bolles v. Duff, 43 N. Y., 469, 473 ; Ross v. Boardman, 22 Hun, 527.)

The rule upon this subject, which was stated to be the law by the chancellor in Lansing v. Goelet (9 Cow., 346, 356), is specially .applicable to the present action ; and that is, that where the mortgagee has no personal demand against the mortgagoi’, or where the pledge, if not redeemed) is by the agreement of the parties to be taken for the debt, a strict foreclosure would be the fit and proper remedy for the mortgagee, and would produce no injurious consequences to either of the contracting parties.” And this principle seems to have obtained the approval of the Court of Errors, inasmuch as the decree was affirmed by that body without any dissent •concerning the correctness of it.

In the present case the plaintiff has no other remedy for tho •satisfaction of his demands; and as the land is situated in another •State, the rights of the parties can be no otherwise adjusted than by a decree of this description; and as the parties themselves are within the jurisdiction of the court, and subject to its authority, a judgment in the action should be rendered declaratory of and settling tbeir respective rights in this property. Such a judgment, if it shall be recovered, will be entirely effectual in the State of Illinois; as the instrument has been there recorded and under the Constitution and laws of the United States, full faith and credit will be required to be given to the adjudication which may here be so made.

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

Brady, P. J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


text:
    WALTER L. THOMPSON, as Receiver, etc., Respondent, v. NORTON A. HALBERT and Others, Appellants.

      Pleadings — a defense may he pleaded whether it he a/n entvre or a partial one — in an action f'or the conversion of anote, the fact that the maker may plead the statute of limitations as a defense to a recovery upon it, may he set up m reduction of damages.

    This action, was brought by the plaintiff, as a receiver appointed in supplementary proceedings instituted upon a judgment recovered against one Margaret A. Frost, to recover damages for the conversion of a promissory note owned by her. The note, which was for the sum of $300, was made on March 1,1871, by one Alcorn, to become due in two years after its date, payment thereof being secured by a mortgage upon property owned by Alcorn in the State of Kansas. The defendant alleged in its answer that the maker of the note resided, and still resides, in the State of Kansas, and that by the laws of that State an action for the recovery of the debt is required to be commenced within five years after the cause of action shall have accrued, and that more than five years have elapsed since the right of action accrued upon the note, and that the debt, together with the mortgage, have been barred by the statute of limitations.

      Held, that it was error to sustain a demurrer interposed by the plaintiff to this portion of the answer.
    That if the note should be proved to be without any value whatever, on account of the effect of the statute of limitations being a defense to an action upon it, then the answer contained a complete defense.
    That if it should be shown or considered to be of some value, then the answer contained a partial defense.

      Appeal from an interlocutory judgment, sustaining a demurrer to tbe defense contained in the seventh subdivision of the defendants’ answer.

      Charles S. Simpkins, for the appellants.

      Waylcmd E. Benjamin, for the respondent.
   Daniels, J.:

This action is brought by the plaintiff, as receiver appointed In supplementary proceedings taken upon a judgment against Margaret A. Frost. It is alleged in the compla'int, as one of the causes of action, that she was the owner of a note for the sum of $300, made by William H. Alcorn and secured by a mortgage upon property owned by him at or near Fort Scott, in the State of Kansas. The note was made on the 1st of March, 1871, due in two years after its date. This note is alleged to have been in the possession of the defendants, and to have been converted by them. In the part of the answer to which the demurrer has been interposed it is alleged that the maker of the note resided, and still resides, in the State of Kansas, and that by the laws of that State an action for the recovery of the debt is required to be commenced within five years after the cause of action shall have accrued, and that -more than five years have elapsed since the right of action accrued upon the note, and that the debt, together with the mortgage, has been barred by the statute of limitations. To this defense the plaintiff demurred upon the ground that it is not sufficient in law upon the face thereof.

No informality in the manner of the presentation of the defense by the answer is stated in the demurrer; neither could it be under section 508 of the Code of Civil Procedure, which has allowed a demurrer to a partial defense, if this is to be considered of that character, only when the answer is insufficient for that purpose. Under this section of the Code the point necessary to be decided for the disposition of the demurrer is whether the part of the answer demurred to is or is not sufficient as the statement of an entire or partial defense. And such a partial defense, it is declared, will consist of matter tending to mitigate or reduce the damages in an action for an injury to property, as this action is.

While it is true that the statute of limitations is a personal matter which the debtor in the demand could rely upon or not, at his pleasure, tbe defendants are still at liberty to set forth, by way of answer, any facts which would tend to diminish the damages to be recovered. If the action can be maintained by the plaintiff, for the conversion of personal property, the law permits the plaintiff to recover no more than the value of the property which the defendant has converted, with interest upon that value. And to determine the extent of the recovery, whatever may have been done to diminish the value of the article may, under this section of the Code, be relied upon as a partial defense. And that a demand is liable to be defeated, in an action upon it against the debtor, by the interposition of the statute of limitations, is a fact which would tend very directly to reduce its value in an action against another person for its conversion. The right to present any matter having a legal "tendency to diminish the damages in an action for the conversion of personal property was considered in Booth v. Powers (56 N. Y., 22). That was an action for the conversion of a promissory note, which it was proposed to be proved had been changed by striking out the words “ the order of” and inserting the words or bearer.” That evidence was held to be admissible, because of its tendency ■to establish the fact that the note had been rendered valueless as a legal obligation by this change.

In that case it would have been as optional with the maker to defend an action for the recovery of the debt because of the alteration, as it would be in the present case because of the running o.f the statute of limitations. In neither would an action upon the note fail, if the maker for any cause neglected to rely upon the defense arising out of the facts. But the circumstance that a legal defense could be interposed to an action for the recovery of the debt would very materially tend to reduce its value as an article of property. And whatever proof may have that effect is under this authority admissible upon the trial of the action for the conversion of the note.

In Outhouse v. Outhouse (13 Hun, 130), the note had been willfully destroyed by the defendant, who was the maker, and for that misconduct it was held, whether rightly or not it is not necessary now to consider, that he had depi’ived himself of the right to interpose, by way of defense, the fact that the note was barred by the statute of limitations. The case proceeded upon the peculiar circumstances attending .the acquisition and destruction of the note, which the court considered to be sufficient to forfeit the right of the defendant to avail himself of the benefit of the statute. The defendants in this action are chargeable with no such misconduct. If they have converted the note at all, it has been done without any willful or intentional wrong on their part, and they are entitled to resort to any pertinent evidence within tbeir power to reduce its value as an article of property.

The case of Penobscot Railroad Company v. Mayo (67 Me., 470) is entirely different from that presented by this appeal. For there the court held that the plaintiff might recover against the defendant in an action for money had and received, to which the -statute of limitations was not considered to be a defense.

Neither will it follow, from the ability of the holder of the note to maintain an action upon it against the maker, in the courts of this State, that this evidence will be rendered nugatory upon the trial, for the debtor may never be within the jurisdiction of the courts of this State, or have property here, enabling any party having the right to do so, to maintain an action upon the note. That is a possibility only, and so far as it effects the demand will be a fact which the jury will consider in determining its value if the action itself should prove to be maintainable. For that purpose all evidence is admissible having a direct tendency either to prove that the note is of less value than its face or that it may in fact be a fully available demand. If the note shall be proved to be without any value whatever on account of the statute of limitations being a defense to an action upon it, then the answer contains a complete defense; while if it should be shown or considered to be of some value, then the answer contains a partial defense.

The allegations are clearly sufficient for one or the other of these objects, and the judgment sustaining the demurrer should be reversed, with costs, and a judgment ordered overruling the demurrer, with leave to the plaintiff to withdraw it on payment of the costs of the demurrer and of the appeal.

Beady, J., concui’red.

Judgment reversed, with costs, and judgment ordered overruling demurrer, with leave to plaintiff to withdraw it on payment of costs of demurrer and of appeal.


text:
    E. CRAWFORD SANDFORD, Appellant, v. HARRIET A. SANDFORD, Respondent.

      Punishment of a party for contempt in an action for divorce — he mustie brought into courtly an order to show came or an attachment — he must have leen personally sei’ved with a copy of the order alleged to have been disobeyed— the court must ascertain and adjudge that a right or remedy of a pa/riy has been affected by his misconduct.

    To obtain an order adjudging a party guilty of contempt because of Ms failure to pay a weekly allowance wMcb be has been ordered to pay to the defendant by way of temporary alimony, he must be brought before the court by the service of an order to show cause or an attachment. The service of a mere notice of motion will not suffice.
    The plaintiff cannot be adjudged guilty of a contempt for failing to comply with the directions contained in an order, until a copy thereof has been served upon him.
    To punish a party for a contempt in a civil proceeding, Ms conduct must be such as to defeat, impair, impede or prejudice a right or remedy of the party ■ affected by it, and that fact must be ascertained and adjudged by the court directing the pumshment which is to be imposed.
    Appeal from an order adjudging tbe plaintiff in contempt and directing bis commitment to prison.

      William B. Tullis, for the appellant.

      Roswell H. Carpenter, for the respondent.
   Daniels, J.:

The plaintiff has been adjudged in contempt and ordered to be committed for tbe non-payment of weekly allowances provided for tbe defendant by way of temporary alimony. Tbe order directing tbe payments was authorized by section 1769 of tbe Code of Civil Procedure. And for tbe failure to pay tbe amount ordered tbe plaintiff was liable to be adjudged in contempt and committed, under tbe authority of section 1773 of the same Code. But to obtain an order adjudging him in contempt and directing bis commitment, it has been made necessary, by this section, that at least an order to show cause should first be served upon him.

It has also been provided by tbe same section that tbe proceedings to punish tbe party must be taken as prescribed in title 3 of chapter 17 of the Code. And section 2269 of that chapter and title also requires that an order to show cause shall be made and served, or a warrant of attachment shall be issued to bring him before the court.

The application to punish the plaintiff was not brought on in compliance with these provisions, but it was made upon a mere notice of motion, which was not the course prescribed by these sections of the Code, and an objection to that mode of proceeding was taken upon the hearing of the motion.

It was stated in the affidavit of the plaintiff that the order directing the payment of the weekly allowance by him had not been served upon him, and there is no evidence in the papers conflicting with this statement. Until such service of the order was made the plaintiff was not liable to be brought into contempt for a failure to comply with its direction. (Coddington v. Webb, 4 Sandf. Supr. Ct. R., 639; Watson v. Fuller, 9 How., 425; McCaulay v. Palmer, 40 Hun, 38.)

To punish a party for a contempt in a civil proceeding his contempt must be such as to defeat, impair, impede or prejudice a right or remedy of the party affected by it, and that fact must be ascertained and adjudged by the court directing the punishment which is to be imposed. (Code of Civ. Pro., §§ 2266, 2281; Swenarton v. Shupe, 40 Hun, 41.) The order from which the appeal has been taken contains no such adjudication, and because of that omission it fails to comply with what has. been directed by these sections of the statute.

In each of these respects the proceeding was wholly defective, and the order from which the appeal has been taken cannot be sustained. It should be reversed, with the usual costs and disbursements, to abide the event of the action, and without prejudice to a further proceeding against the plaintiff in the form in which the law has prescribed it may be taken.

Beady, P. J., concurred.

Order reversed, with ten dollars costs and disbursements, to abide event.


author: Brady, P. J.: Daniels, J.:

text:
    In the Matter of the Judicial Settlement of the Account of Proceedings of CHARLES WEHRHANE and Others, as Executors, etc., of JULIUS HALLGARTEN, Deceased

      Charitable Request — when not defeated by an error in the name of the legatee.

    One Hallgarten bequeathed “To the Children’s Aid Society, oity of Hew York $5,000. To the Newsboys’ Lodging-House, city of New York, $5,000.”
    The Newsboys’ Lodging-House was an unincorporated department of the Children’s Aid Society, well known and recognized by the legislature. Its affairs were managed by the same board which controlled the affairs of the Children’s Aid Society, through separate officials, who reported to that board. Many bequests had been made to the Newsboys’ Lodging-House as distinct from the Children’s Aid Society; and the testator had taken a decided interest therein and was a constant subscriber to both the aid society and the lodging-house.

      Held, that the legacy to the Newsboys’ Lodging-House was valid and that it should be paid to the Children’s Aid Society.
    Appeal from a decree of the surrogate of New York, upon the-judicial settlement of the accounts of the executors of the last will and testament of Julius Hallgarten,-deceased.

      Charles A7. Whitehead and Stanley W. Dexter, for the Children’s Aid Society, appellants.

      Hoffman Miller, for Union Trust Company, general guardian of' Albert Hallgarten, respondent.

      Martin <& Smith, for the executors, respondents.
   Brady, P. J.:

Julius Hallgarten, the testator, by the sixth clause of his will, ’ bequeathed a number of legacies to charitable institutions, payable out of the residue of his estate, and, among others, the following:

“To the Children’s Aid Society, city of New York, five thousand dollars.”
“To the Newsboys’ Lodging-House, city of New York, five thousand dollars.”

Upon the hearing before the referee it was proved that the Newsboys’ Lodging-House was not incorporated but was a department of the Children’s Aid Society, well-known and recognized by the legislature. And, further, that its management was under the same-board wbicb controlled and managed the affairs of the Children’» Aid Society, although separate officials acted, who reported to that board. And, further, that many bequests had been made to the Newsboys’ Lodging-House as distinct from the Childi’en’s Aid-Society. The referee found,- and so reported, that the lodging-house was unincorporated but a branch of the Children’s Aid' Society and under its management and direction, and was a distinct department of the society’s works, the reports and accounts being-kept separate from the general accounts of the society. He held,, however, as a conclusion of law, that it had no capacity to take by-devise or bequest; that it must take, if at all, by virtue of its being a department of the Children’s Aid Society, and on the theory that the testator intended the legacy given to the lodging-house to pass to the Children’s Aid Society; and that he was unable to distinguish this from the case of Betts v. Betts (4 Abb. N. C., 317),, and the legacy must, therefore, fail. The learned surrogate confirmed the report on the adjudication mentioned and that of the First Presbyterian Society v. Bowen (21 Hun, 389). In the first of these cases a bequest was given to the Marine Bible Society, which it was said was not saved although that society was auxiliary to the American Bible Society, and this, for the reasons that provision was specifically made in the will for the corporation and the auxiliary society, had its own organization and officers. The Newsboys’ Lodging-House has ho organization except under the parent corporation by which it is managed and controlled. The second case is one in which a trust was created, the interest of the fund to-be employed when needed to improve ground used as a cemetery. The bequest was held to be void because it was to an unincorporated association, and the trust invalid because there was no trustee named to take the bequest, on the well-settled principle that there can be no valid trust unless there be a certain donee or beneficiary. There was no legal legatee capable of applying the income to the-supposed secondary purposes.

In the Children’s Aid Society v. A. Stewart Walsh et al. (see MS. opinion) the legacy was to the trustees for time being of the-Newsboys’ Home, No. 39 Park place, in the city of New York, and it was conceded as herein that the Home was maintained by the plaintiff, and that the testator was a frequent visitor to it. The learned judge, in disposing of the question, said there were numerous cases where persons were allowed to take, though not correctly named in the will, because such persons conformed to the description of the beneficiary named by the testator. He cited two cases us illustrative of this view, namely, The New York Institution for the Blind v. How’s Executors (10 N. Y., 84) and Lefevre v. Lefevre (59 id., 434). In the latter case the bequest was to the Home of the Friendless in New York, hut there was no institution ■of that name, and the legacy was claimed by “The American Female Society,” on the evidence given that the society had acquired and used the names of “ Home of the Friendless ” and “ Home for the Friendless.” The court held that the evidence thus given was properly received. The court said that a corporation might be designated by its own name or any name by which it could be distinguished from every other corporation; and when any but the corporate name was used the circumstances to enable the court to apply the name or description to a particular corporation and identify it as the body intended, and to distinguish it from all others and bring it within the terms of the will, might in all cases be proved. In this case the evidence established conclusively that the Newboys’ Lodging-House was in fact the Children’s Aid Society, acting under another name in carrying out the design of its incorporation. A boys’ lodging-house, it can be readily perceived, is a children’s aid, furnishing them with a place to sleep. It is true that the society receives a donation also, and this may be said to be conclusive of the intent of the testator to make but one donation to the society, no matter what different forms or modes of administration it might havé adopted; but this does not necessarily follow, for the testator had a decided interest in the Newsboys’ Lodging-House, designated by him, and may well have given the sum mentioned for particular application to it, while the legacy to the parent society was intended for its general work throughout the city, to be used in all the various modes in which aid could be extended to children, either through lodging-houses or otherwise. The evidence, indeed, shows that he was in the habit of contributing especially to the Newsboys’ Lodging-House, and was a constant subsci’iber to both the Children’s Aid Society and the Lodging-House, after visiting the latter, and, therefore, knew of their relations to •each other. For these reasons the decree of the surrogate should be reversed as far as it relates to the legacy to the Newsboys’ Lodging-House, the legacy there to be declared valid and directed to be paid to the Children’s Aid Society. The costs of the controversy should be paid out of the fund.

Daniels, J.:

This case is one presenting serious grounds for doubts as to its legal disposition. But for the present this doubt, under the circumstances, may justly be solved as it is suggested in the opinion of Justice Beady. I, therefore, agree to the determination directed by him.

Decree reversed as directed in opinion, costs to be paid out of the fund.


author: Per Curiam :

text:
    LEONARD LEWISOHN and Others, Respondents, v. BERTRAM NIEDERWIESEN and ALFRED APPLE, Appellants.

      Practice — an appeal will not be considered unless the appeal papers have been certified as required by section 1353 of the Code of Civil Procedure.

    Upon the hearing of an appeal taken from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, the respondents objected that the appeal book had not been certified as required by section 1353 of the Code of Civil Procedure.

      Held, that the objection was valid and prevented the court from considering the case.
    The observance of the duty imposed by the said section is regarded as extremely important.
    Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury.

      J. JE. Newberger, for the appellants,

      J. I. Bamberger, for the respondents.
   Per Curiam :

This case was submitted, and the first point taken by the respondent is that the appeal book has not been certified, as required by section 1353 of the Code of Civil Procedure. This objection we regard as valid, and the effect of it is to prevent the consideration of the case.

We refrain from any consideration of the merits, and send the-case bach to be properly certified. The observance of the duty imposed by section 1353 is regarded as extremely important. The-object of the section is undoubtedly for the purpose of securing the presentation to the appellate court of the entire proceedings-sought to be reviewed.-

Case sent bach to be properly certified.

Present — Brady, P. J., Daniels and Maoomber, JJ.

Case sent bach for such action or proceeding as counsel may deem advisable.


author:
Daniels, J.:
      Davis, P. J.:

text:
    JOSEPH F. LOUBAT, Appellant, v. HERMAN R. LE ROY, Treasurer of the Union Club of the City of New York, Respondent.

      Power of a club to expel one of its membm for misconduct — he is entitled to notice and to have an opportunity to appecor and be hewed— rules of the Union Club of the city of Sew York, in relation to this matter, considered and consti-ued.

    This action was brought by the plaintiff against the treasurer of the Union Club of the city of New Xork to have decreed as unlawful, null and void a resolution of expulsion passed against the plaintiff, at a meeting of the governing committee of the club, and to enjoin and restrain the defendant, and the other officers and members of the club, from interfering with the enjoyment by the plaintiff of his rights and privileges, as a life member of the club. At the time the resolution was adopted the committee consisted of twenty members, eighteen of whom were present at the meeting at which the resolution was adopted, fourteen of whom voted for the adoption of the resolution and four of whom voted against it. The resolution was adopted upon the report of a committee of five of its members, who had been appointed to investigate and report as to the facts. It was claimed that before bringing the action, the-plaintiff should have applied to the committee to have the resolution of expulsion reconsidered and revoked, as he was authorized to do by the rules of the club.

      Held, that the probability that favorable action might, in this manner, have been secured was so extremely remote as to relieve the plaintiff from the necessity of applying for such reconsideration, before resorting to this action.

      On May eighteenth, a committee of five of its members was appointed, at a special meeting of the governing committee, to investigate and report an exact statement of the facts in relation to the difficulties existing between the plaintiff and another member of the club' with instructions to inform thém of the resolution appointing the committee and give them an opportunity to appear. The plaintiff was served with a copy of the resolution and appeared before the committee, at a time fixed by it with his counsel, and read a written statement which he left with it. The committee took the statements of the other mem - her and of other witnesses in the absence of the plaintiff. At a meeting of the governing committee, held on May 23, 1882, the committee of five made their report, to which they added the statements so obtained by them. This report was considered by the eighteen members of the governing committee then present, including the members of the committee of five, and a resolution of expulsion adopted by a vote of fourteen to four.

      Held, that the failure of the governing committee to give the plaintiff notice of the meeting and an opportunity to be heard deprived the resolution of expulsion of all legal effect as to him. (Daniels, J., and Davis, P. J.)
    That this result was not affected by the failure of the plaintiff to request to be allowed to be present and be heard, as the committee was legally bound to extend and secure the opportunity for a hearing to the plaintiff, before its members could proceed to the hearing and consideration of the case.
    The governing committee consisted, by the constitution of the club, of twenty-four members, and ‘ ‘ a two-thirds vote of the governing committee ” was thereby declared to be necessary for the expulsion or suspension of a member. Another article of the constitution declared that “a majority of its members, exclusive of those absent by its permission, shall constitute a quorum of the governing committee.”

      Held, that a resolution of expulsion or suspension required the affirmative vote of sixteen members of the committee. (Daniels, J.)
    Appeal from a judgment rendered at the Special Term, dismissing the plaintiff’s complaint. ,

      Joseph H. Ohoate, for the appellant.

      James G. Garter and lidmond li. Robinson, for the respondent.
   Daniels, J.:

The club of which the defendant is the treasurer is a voluntary, unincorporated association, consisting of a large number of members, and owning property for their use and enjoyment, and as such may be sued by an action against the'treasurer as a joint-stock company under .the statutes of this State. The plaintiff was a member of the club, who had paid the requisite sum of money to entitle him also to life membership, and by a resolution of a quorum of the governing committee of the club, adopted on the 25th of May, 1882, he was, in form at least, expelled from his membership of the club. This expulsion was directed because of misconduct on the part of the plaintiff, in part occurring in a conversation in the clubhouse with several of its members, on or about the 28th of November, 1881. In this conversation the plaintiff indulged in what was regarded as a very improper observation. It caused an immediate altercation, in which strong expressions of condemnation of what he had said were made by this person. This afterwards led to a repetition of the censure expressed, and a correspondence further embittering the relations existing between these persons. Publicity was given to the correspondence, afterwards resulting in the investigation producing the plaintiff’s expulsion. If the case were to be disposed of upon its merits, as it was made to appear before the quorum of the committees acting upon the subject, no reluctance whatever would be felt in the way of sustaining the conclusion arrived at, as it was a matter solely to be governed by the rules and regulations of the club itself, and the authority designed to be vested in what was called the governing committee. (Dawkins v. Autrobus, Law. Rep., 17 Ch. Div., 615.) But the difficulties in the way of maintaining the proceedings which were taken do not arise out of any doubt as to the sufficiency of the charge of misconduct made against the plaintiff, or of the evidence given to sustain it, but have been created by the manner in which the proceedings were carried on for the investigation of his conduct, and resulting in the resolution of expulsion. These proceedings have been assailed by the action as having been unlawfully carried on, and upon that ground it has been insisted that the expulsatory resolution was inoperative and void. An objection to the consideration of these points has, in the outset, been made "upon the effect of the ninth rule of the club. This rule provided that in no case when a resolution has been passed at a meeting of the committee affecting the relations of a member of the club towards the club, shall such resolution be reviewed, acted upon or rescinded at a subsequent meeting without a notice in writing being sent by the secretary to each member of the committee at least ten days before the meeting, that such previous action will be brought up for review or reconsideration.”

The resolution of expulsion was adopted at a meeting of a quorum of tbe committee mentioned in this rule, and under the rule the committee had the power to reconsider the action whicli had been taken and to revoke the resolution which had been in form adopted. It is not entirely clear that the power of the committee, which might have been invoked in behalf of the plaintiff, but was not, does not present a well-founded legal objection to the right of the plaintiff to maintain this action. For the principle has been settled as to organizations of this description that an action will not be sustained to correct errors, or illegal acts, in the course of their government and administration until the remedies provided for that object by the by-laws or constitution, or both, of the association have been exhausted. (Lafond v. Deems, 81 N. Y., 507.) That case, however, differed from the present one by providing for an appeal to an officer not concerned in the ground of complaint as the foundation of the action. Where such an appeal may have been provided it is entirely just and reasonable that it shall be pursued, and the remedy exhausted before an action should be allowed to be maintained in a court of justice to rectify the alleged wrong. Rut the remedy mentioned in this section of the by-laws was not in the nature of an appeal, or an application for a rehearing, before a superior board or tribunal of the club, but it merely provided for and permitted an application to be made for a rehearing to the same persons who previously joined in the resolution of condemnation and expulsion. '' The committee, at the time when its action was taken, consisted of twenty members, eighteen of whom were present, and fourteen of the members voted for the adoption of the resolution. This was done upon the facts submitted for the consideration of these members of the committee, and the resolution which they adopted conclusively establishes the fact that they had formed and acted upon convictions adverse to the plaintiff, and after that the probability is extremely slight, indeed, that they could have been induced to change their views and act differently upon an application for the reconsideration of the resolution. The probability that favorable action might in this manner have been secured by the plaintiff is so extremely remote that, in the reasonable administration of the law, he should not be held to be required to apply for such reconsideration before commencing an action to restrain tbe enforcement- of the resolution against him, if that should turn out to have been unlawfully adopted. For if that should be required the requirement might as well be indefinitely repeated, which would have the effect of preventing an action of this description in all cases for the correction of the illegal proceedings of the association, and that would be no less than a denial of justice in this class of cases. The great improbability that the committee would reach a different conclusion upon a reconsideration of the evidence submitted to it is considered to be a legal answer to this objection, and that will require the examination and consideration of at least two of the objections presented to the proceedings which have been taken.

The first of these relates directly to the manner in which the proceedings themselves were carried on. They were initiated by w'hat is called the governing committee of the club. On the 18th of May, 1882, a committee of five of its members, was appointed at a special meeting of the board of governors, to investigate and report to tbe governing committee, at a future meeting, an exact statement of facts in relation to the difficulties existing between Messrs. J. F. Loubat and Hemy Turnbull, with instructions to inform them of the resolution and giving them an opportunity to appear before the committee of five. This committee transmitted a copy of the resolution to each of these individuals, accompanied with a notice from the chairman of the committee, that its members will be glad to receive from you a statement of the facts, and hereby request you to appear before them in the sub-committee room of the club-house on Friday the nineteenth, at four o’clock p. M.” This committee took the statements of the plaintiff and Henry Turnbull and of other persons. That furnished by the plaintiff was in writing and was made when he himself and his counsel were in the presence of the committee. The other statements taken by the committee were obtained in the absence of the plaintiff, and after obtaining these statements, and on the twenty-fifth of the same month, the committee made a report to the governing committee, to which they added the statements so obtained by them. This report was considered by so many of the governing committee as were atthetimejjresent, including the members of the committee of five, and it resulted in the adoption of the resolution for the plaintiff’s expulsion.

It is clearly evident from tbe resolution under wbicb tbe committee of five was appointed, tbat tbe object of tbat appointment was one of mere investigation. It was to collect, as far as tbat could be done, authentic statements of tbe facts relating to tbe plaintiff’s conduct and tbe contention and disagreement following it. This committee bad no power, either under the resolutions' or tbe constitution or by-laws of tbe club, to act upon the evidence so ■to be obtained. Tbe power to act was vested by tbe constitution in tbe governing committee, and when tbe report of tbe committee ■of five was made to it with a statement of tbe evidence or information obtained, tbe case was first placed in the condition in wbicb effective action could be taken upon the facts. Tbe governing •committee was tbe sole body to bear and determine tbe case, and to adopt tbe conclusion or take tbe action, wbicb might be considered justifiable under tbe circumstances appearing. But in taking tbe .action wbicb they did upon tbe report and tbe information submitted with it, no notice of their consideration or tbat they designed in any manner to act upon tbe report of tbe committee of five, was given to the plaintiff. He bad no opportunity to appear before the governing committee, or to be beard concerning the action wbicb it might be considered proper to take. If be bad been, notwithstanding tbe cogency of tbe evidence against him, be might have submitted some reasons, or some considerations, wbicb would have mitigated tbe action of the members of tbe committee in .attendance, and resulted in a punishment short of tbat wbicb was provided for by tbe resolution. This probability, or even though it may be only a possibility, has in all investigations of this description been considei’ed sufficient to require, as a demand of justice, that tbe party proceeded against shall in all cases have notice of tbe bearing intended to be bad, and an opportunity to exculpate himself as far as tbat may be done, either in tbe vindication or palliation of tbe misconduct forming tbe foundation of tbe complaint. The legal principle is a general one affecting all proceedings which may result in loss of property, position or chai'acter, or any disaster to another; that -be shall be first beard by tbe board or tribunal ■considering bis case before tbat body will be legally permitted to pronounce bis condemnation. This principle has been considered u;nd applied to tbe action of associations of this description, and it bas been held in general terms that its committee is bound to act “ according to the ordinary principles of justice, and are not to convict a man of a grave offense which will warrant his expulsion from the club without fair, adequate and sufficient notice, and an opportunity of meeting the accusation brought against him.” (Fisher v. Keane, L. R., 11 Ch. Div., 353.) It was also considered in many other cases, resulting nniformally in its approval and confirmation (Hopkinson v. Marquis, etc., L. R., 5 Eq., 63; Labouchere v. Earl, etc., L. R., 13 Ch. Div., 346 ; Wood v. Woad, L. R., 9 Ex., 190), where, in the course of the decision, it was said, “ no man shall be condemned, to consequences resulting from alleged misconduct, unheard and without having the opportunity of making his defense. This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals.” (Id., 196.) A like principle was also declared in Innes v. Wylie (1 Car. & Kir., 262); Willis v. Childe (13 Beav., 117); Murdock v. Philip's Academy (12 Pick., 244), and by Mr. Justice Lawbence in a very thorough and able opinion,, considering the authorities in Hutchinson v. Lawrence (67 How., 38). This principle was violated in the proceedings taken against the plaintiff, for he was not afforded an opportunity to be present when the statements of other persons were obtained by the committee of five. Neither was he permitted to be present before-the members of the governing committee in attendance when the-report of the committee of five was received and acted upon and the resolution adopted for his expulsion. The failure on his part to request the privilege to be present is no answer to this exclusion, for he was not legally bound to ask this privilege, b.ut the committee, taking action upon the evidence which was obtained, was legally bound to extend and secure the opportunity for a hearing to the plaintiff before its members could proceed to the hearing and consideration of the case. There' was a total failure to observe this-obligation of supplying the plaintiff with notice of the hearing and an opportunity to contest the action taken against him, and that deprived the proceedings as well as the final resolution of all legal effect as to him. The cases of People ex rel. Flanagan v. Police Commissioners (93 N. Y., 97); People ex rel. Farrell v. Same (20 Hun, 402), and People ex rel. Gilhooly v. Same (23 id., 351), are in entire harmony with this principle, for in each of them the relator was afforded an opportunity to be present before the board and contest its action when the final hearings were had upon which the decisions complained of were made. Instead of being authorities sustaining the proceedings taken against the plaintiff they add further support to the necessity already suggested of observing the obligation to give notice, and afford the party proceeded against an opportunity to be heal’d before a determination can legally be made against him.

The governing committee of the club, to which its government and management was confided, was to consist of twenty-four members, and by subdivision 3 of section 4 of the constitution a two-thirds vote of the governing committee was declared to be necessary for the expelling or suspension of a member. At the time when these proceedings were taken the committee had been reduced in number to twenty members, and but eighteen were present on the occasion when the report of the committee of five was considered and the vote for the expulsion of the plaintiff was taken. Fourteen only of the members who were present voted in favor of the adoption of the resolution, the other four being opposed to it. The resolution, therefore, failed to secure the vote of two-thirds of the members of the governing committee. To constitute such a vote, that of sixteen of the members was, by this provision of the constitution, required. But it has been supposed because the twelfth article of the constitution declared that “ a majority of its members, exclusive of those absent by its permission, shall constitute a quorum of the governing committee,” that the action taken on this occasion had been in this manner provided for and sanctioned. And cases have been cited arising under the Constitutions of different States relating to the powers of legislative bodies in support of this position. These cases do not require that any special attention shall be devoted to them, for the provisions of the Constitutions under which they arose were entirely different from the constitution of this club. ■ They were so framed as to permit the quorum, designated by them, to constitute the legislative body, while the constitution of this club has not so provided, for it has not been declared that a majority of the members required to create -a quorum should be authorized to expel a member from the club. Upon this subject but one provision was inserted in tbe constitution, and that declared a two-thirds vote of the governing committee to be necessary for this purpose. • It was an extreme measure, which might be attended with very disastrous consequences to the person expelled; and there was great reason, therefore, for specially guarding this power, so that it should be exercised only upon occasions and charges fully justifying its use, and by so large a body of members as would be free from the imputation of prejudice, bias or other improper motives. That would not always be the case if the power could be exercised by two-thirds of the members required for a quorum, for as the provision of the constitution declaratory of the quorum was framed this quorum might be reduced to a very small number of members, by permitting the absence of other members of the governing committee. This permission was not restricted, but it was provided in ■such language as would enable the committee, by permitting the ■absence of members, to dispense with their attendance until the smallest possible number might be in attendance. In this manner-the committee had the power to reduce the number requisite for a -quorum to certainly no more than three persons ; and if the quorum provided for possessed the power of expulsion, it might, by permitting absences, be exercised by the votes of even two of its members, for they would constitute two-thirds if but three members should be in attendance. This, it is true, is an extreme supposition, but it is justifiable as an illustration of the effect of the construction which should confide the power of expulsion to two-thirds of •a simple quorum of the members of the governing committee. The number probably might never be so far reduced, but as long .as there is a possibility that it could be, that fact of itself indicates it to be highly probable that it was not intended to entrust a mere quorum with the exercise of this important power of expulsion. The constitution has not so provided. It has made but one declaration upon this subject, and that is, not that two-thirds of a quorum may expel a member, but that it shall be done only by “ a two-thirds vote of the governing committee.” This provision is plain, and no ■other contained in the constitution evinces the intention to have been to provide for the reduction, under any circumstances, of that vote. In this respect the provision is highly conservative, wisely providing for the protection of the rights of the members, and as long as no other provision of the constitution has declared, either in terms or by any clear implication, that any less vote than that of two-thirds of the governing committee shall expel a member, the constitution should be construed as forbidding the exercise of the power of expulsion in any other way. The courts are required to construe it as they do that of all other instruments, including the statutes of the State to be construed, and that is according to the fair or natural import of the language employed. That is to be assumed to have been expressive of the intention of the parties framing and assenting to the instrument. The language which was used in this constitution upon this subject is free from ambiguity. No other part of the constitution has referred to or qualified it in any manner whatever, and the protection intended to be afforded by it should not be cut down or reduced by the further direction as to the number of members by which a quorum may be formed. The existence of that quorum, as well as the provision of the constitution relating to it, will have full force and effect by allowing it to transact all the other business of the association by a majority vote of the members present, excluding that requiring a larger vote as the provision for the expulsion or suspension of a member very clearly does. The resolution which was adopted did not receive this vote. It failed to the extent of two votes of the designated two-thirds, and it was accordingly inoperative for this reason upon the rights of the plaintiff as a member of the club, as clearly found and stated in the decision of the learned judge presiding at the trial. No necessity, therefore, will exist for another trial of the action, but judgment upon the report and decision may be now finally pronounced, and that should be a judgment declaring the resolution of expulsion to have been adopted without legal authority and to bo inoperative and void as to the plaintiff, and restraining the enforcement of it by the officers or members of the club against him, but without prejudice, if that shall still be deemed advisable, to further proceedings to be taken against the plaintiff in conformity with the principles of the law prescribed for their conduct and government. Whether the plaintiff shall also be allowed costs in the action will be reserved for determination to the time when the order shall be settled. As to the costs and disbursements of the appeal their recovery should be provided- for by the order.

Davis, P. J.:

I put my concurrence in tbe conclusion of my brother Daitiels altogether upon the ground that the appellant was attempted to be removed without the trial and opportunity to be heard secured to him by the constitution and by-laws of the club. The only body clothed with authority to hear, try and remove the accused was the governing committee.” That committee had power to direct how it would take the evidence of the facts to be presented for its consideration at the trial. And they directed the same to be taken by a subordinate committee whose duties and functions were discharged whenever they made their report to the governing committee. The ease had then reached a point of readiness for a hearing. It was the duty, then, of the governing committee to have given notice to the appellant of the time and place of the trial, with reasonable opportunity to attend and defend himself against the charges, and the judgment that ought reasonably to be imposed.

They gave no such notice, but proceeded without any further hearing, notice or attendance, and rendered judgment of expulsion. It matters not whether they did this by the voting of a quorum of the committee or of the entire body voting concurrently. In either view they had no jurisdiction to pronounce an effective judgment, and their action was cor am non judice.

For this reason the judgment must be reversed and judgment ordered for plaintiff. My health will not permit me to examine the other questions of the case.

Bbadt, P. J., concurred in the result.

Judgment reversed and judgment ordered for plaintiff, as directed0 in opinion.


author: Churchill, J.:

text:
    ANN FORD, as Administratrix of OWEN FORD, Deceased, Respondent, v. JEREMIAH C. LYONS, Appellant.

      Practice — the court cannot shorten the time within which an appellant may file and setme copies of the printed appeal papers — nor ean it terminate a stay created by the giving of an undertaking as provided by section 1352 of the Code of Civil Procedure.

    On April 17, Í886, an order was made requiring the appellant to file with the clerk of the General Term, and to serve on the respondent’s attorney, the copies of the printed case required by the rules on or before the 23d day of April, 1886, and providing that upon his failure so to do the stay created by the undertaking, given upon the appeal and duly approved and filed, should cease. The next term of the General Term of the First Department was appointed to be held on May 3, 1886.
    Held, that the Special Term could not deprive the appellant of the right, conferred by General Rules Nos. 40 and 41, to serve his papers at any time before April twenty-fourth, that is eight days before the term, nor could it terminate the stay created by the giving of the undertaking.
    Appeal from an order directing tbe appellant to print, file and serve tbe case on appeal from a judgment.

      Alexa/nder Thain, for tbe appellant.

      James P. Wiemtmn, for tbe respondent.
   Churchill, J.:

Tbe order appealed from, made April 17, 1886, required tbe appellant to file with tbe clerk of tbe General Term, and to serve on tbe respondent’s attorney, tbe copies of the printed case required by tbe rules on or before tbe 23d day of April, 1886, and upon bis failure so to do provided that tbe stay, created by the undertaking given upon tbe appeal and duly approved and filed, should cease. The next term of the General Term of tbe First Department was appointed for May 8, 1886. Ry Rules 40 and 41 tbe appellant bad till April twenty-fourth, or eight days before tbe term, in which to file and serve tbe papers. Tbe Special Term could not deprive the appellant of tbe right given him by tbe rules. (Code of Civ. Pro., § 17; Batter shall v. Davis, 23 How., 383.)

Such shortening of tbe appellant’s time was not necessary to protect tbe respondent, since if tbe former failed to serve the papers within the time required by tbe rules, tbe latter could move on short notice to dismiss the appeal. (General Rule 41; 3d General Term Rules, First Dept., adopted Jan. 4, 1878.) The stay created by giving a proper undertaking on appeal to the General Term was-given by the Code, and was beyond the power of the Special Term to terminate. (Code of Civ. Pro., § 1352.)

The order appealed from should be reversed, with usual costs and disbursements.

Beady, P. J., and DaNiels, J., concurred

Order reversed, with ten dollars costs and disbursements.


text:
    ALBERT G. A. HARNICKELL, Appellant, v. THE NEW YORK LIFE INSURANCE COMPANY, Respondent.

      Bight of a person receiving a policy of insurance, conditionally, to surrender it on a breach of the condition — restrictions in a policy as to the power of an agent to bind the company, only apply afleo' the policy has been delivered and accepted.

    This action was brought to secure to the plaintiff the right to return to the defendant two policies of life insurance issued by it to him, and to receive from it two notes for $800 each made by him, and his check for seventeen dollars and thirty-seven cents. The policies were issued by the defendant under an arrangement made between the plaintiff and one Hamlin, an agent of the-defendant, by which the plaintiff accepted the policies upon the understanding that Hamlin was to realize a satisfactory amount upon the surrender of certain, other policies issued by other companies on the plaintiff’s life, or to obtain paid-up policies therefor, and that if nothing satisfactory to the plaintiff could be obtained he was to return the defendant’s policies issued to him and receive back those of the other companies delivered by him to Hamlin, with the notes and check which were delivered at the time the arrangement was made. Hamlin having been unable to make any arrangement as to the policies issued by the other companies which was satisfactory to the plaintiff, and the defendant having refused, when requested by the plaintiff, to surrender the notes and check or to accept a surrender of the policies, this action was brought.

      Held, as the defendant’s policies had never taken effect asinsurancesupon the plaintiff’s life, but had been only temporarily received by him — their delivery and acceptance being dependent upon the success of Hamlin in negotiating an arrangement as to other policies satisfactory to the plaintiff — that the provisions of the defendant’s policies restricting the powers of agents acting on behalf of the company to alter or modify the term of the contract, or to bind the company by making any promise or receiving any representation or information not reduced to writing and presented to the officers of the company at the home office, in the application, had no application to the case, and that the plaintiff was entitled to the relief sought.
    That as the policies were not under seal the rule that a deed cannot he delivered-conditionally to the grantee or his agent had no application.

      Worrall v. Munn (1 Seld., 229) distinguished.
    Appeal from a judgment dismissing the complaint recovered on the trial of this action at Special Term.

      John M. Bowers, for the appellant.

      Garter, Hornblower <& Byrne, for the respondent.
   Daniels, J.:

The action was brought to secure the right of the plaintiff to-return two policies of life insurance-issued to him by the defendant upon his life in the sum of $25,000 each, and for the surrender to him of two notes for $800 each and a check for the sum of seventeen dollars and thirty-seven cents. The policies were issued under an arrangement made between the plaintiff and M. L. Hamlin, who acted as the agent of the insurance company. ' At the time when they were received this agent entered into an agreement with the plaintiff in the following form:

“ New YoeK, May 8, 1885.
To M. L. Hamlin, Special Agent of the Hew York Life Insurance Oonypcmy:
“Dear Sir. — I have received from you policies No. 204233 for $25,000, and 204234 for $25,000, and have given promises of payment. for the premiums thereon, less rebate allowed, viz. $539 13
My two notes. 1? 600 00
My cheeque... 17 37
$2,156 50
I hand you herewith altogether:
Five policies, endowments, in Providence Co... $5,500 00
Two policies, life, in Providence Co. 10,000 00
One policy, life, in Equitable. 5,000 00
Three policies, life, in Mutual Benefit. 10,000 00
One policy, life, in IT. S. L. Co. 5,000 00 Which, it is understood, is all the policies I have now in force, besides those of jour company above mentioned, and from which I want to realize a satisfactory amount in cash, and if not obtainable then paid-up policies; and if nothing satisfactoi’y to me can be obtained, then I understand that my policies shall be left in force and the above new ones in your company if found by me necessary to wait, or omit taking them, can be returned to you and my above promises returned to me.
“ Yours truly,
“A. Gr. A. HARNICKELL.
“M. L. HAMLIN.”

It was made to preserve and carry into effect a preceding, agreement by which the plaintiff obligated himself to receive the defendant’s policies only upon the conditions that those already held by him in other companies should be surrendered and accepted by the companies, and their cash value returned to him or equivalent paid-up policies should be issued. The agent receiving these policies for this object, and placing the defendant’s policies in the possession of the plaintiff, and receiving his notes and check for the premiums, failed to carry out this arrangement. And as to the greater part of the policies it was incapable of being carried into effect, on account of the fact that they were issued for the benefit of the wife and children of the plaintiff. After the inability of the agent to make the surrender was found to exist, the plaintiff proposed to return its policies to the defendant, and demanded the notes and check executed by himself. That was refused, and this action has been brought to secure that measure of relief. It was considered at the trial that the action could not be maintained, because of certain provisions contained in the two policies issued by the defendant. By these provisions it was declared that “ inasmuch as only the officers at the home office of the company, in the city of New York, have authority to determine whether or not a policy shall issue on any application, and as they act on the written statements and representations referred to, no statements, representations or information made or given by or to the person soliciting or taking this application for a policy, or to any other person, shall be binding on the company, or in any manner affect its rights, unless sucli statements, rep.u.-entations or information be reduced to writing and presented to the officers of the company, at the home office, in the above application.”

“No agent has power on behalf of the company to make or modify this or any contract of insurance, to extend the time for paying a premium, to issue a permit for residence, travel, occupation, or to bind the company by making any promise or receiving any representation or information. This power can be exercised only by the president, vice-president or actuary of the company, and will not be delegated.”

The first of these provisions in no manner stood in the way of the assertion of the plaintiff’s rights under the agreement made with him, for the reason that the arrangement did not consist of statements, representations or information, within the language of that provision. Neither was the plaintiff deprived of the right to insist upon the observance of the agreement by the other -provision, for that was intended to include contracts or agreements modifying the provisions of the policies after they had become effectual as insurances between the parties. The theory of the plaintiff’s action was that these policies never had taken effect as insurances upon his life, but that they had been temporarily received by him only depending upon the contingency of the agreement between himself and the agent being carried into effect. In this respect the case differs from that of Chase v. Hamilton Insurance Company (20 N. Y., 52) and that of Simons v. New York Life Insurance Company, not reported, which were actions upon the policy itself. Where that may be the nature of the action, clearly the policy could not be modified or changed by any preceding agreement, arrangement, statement or understanding with the agent. : These provisions would prevent that from being done. But where the policies themselves have not taken effect as fixed and definite contracts between the parties, as they had not in this instance, the case stands upon a different principle.

While the policies were in form delivered to the plaintiff, that delivery was for the time being conditional. They were not received by him as insurances effectual from that time, unless the preceding arrangement between himself and this agent should be carried into effect. That arrangement was not carried out, and as the fact eventually turned out it could not be, and it left the plaintiff in the legal situation in which he could return the policies to the defendant and demand the obligations which had been delivered by him for the paj^ment of the premium.

The principle settled by the case of Worrall v. Munn (1 Seld., 229), that a deed cannot be delivered conditionally to the grantee or his agent, has no application to these policies, which are not under seal. As to instruments not under seal, the law allows them to “be delivered to the one to whom upon their face they are made payable, or who by their terms is entitled to some interest or benefit under them upon conditions, the observance of which is essential to their validity. And the annexing of such conditions to the delivery is not an oral contradiction of the written obligation, though negotiable as between the parties to it, or others having notice. It needs a delivery to mate the obligation operative at all, and the effect of the delivery, and the extent of the operation of the instrument may be limited by the conditions with which delivery is made. (Benton v. Martin, 52 N. Y., 570, 574.) And that these policies were subject to this condition was clearly proved upon the trial, as that was required to be done, by what was held in Hodge v. Security Insurance Company (33 Hun, 583).

The fact that the agent had no authority to bind the defendant by making a conditional delivery of the policies, will not deprive the plaintiff of his right to rescind the transaction as long as he himself assented to receive them only in that manner. When they were placed in his hands the transaction, in substance, was that he would accept them as insurances upon his life, provided the other policies should be surrendered by the agent in the manner in which they had agreed that should be done, and if they were not so surrendered that then there should be no delivery of these policies. The-intervention of the agent in this condition was not essential. It was sufficient that the plaintiff himself consented to receive the policies in no other manner. And as he did receive them in this manner, he had a right to insist upon the observance and performance of the condition before the obligation could be created upon his part to retain and hold the policies in suit. There was no waiver of this right on the part of the plaintiff by retaining the policies as he did from the eighth of May to the sixth of August, for that period appears to have been required in the efforts made to surrender the other policies and develop the inability of the agent to secure tliat end.

The judgment in the case should be reversed, and a new trial ordered, with costs to abide the event.

Beady, P. J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


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    JAMES R. FOLAND, Respondent, v. MORGAN A. DAYTON, Appellant.

      Action for services rendered to an administrator — when he is personally liable therefor.

    In this action, brought to recover the value of services alleged to have been rendered by the plaintiff for the defendant, who was the administrator of -the estate of his deceased son, the defendant claimed that if he was liable at all it was only as administrator. The court directed the jury that if it was the intention of the plaintiff to look to the defendant, as the administrator, for his compensation, then he could not recover against him individually.

      Held, error; that a mere intention on the part of the plaintiff to look to the administrator for his compensation would not prevent him from recovering a verdict against the defendant personally, if the services were rendered for him without any agreement on the part of the plaintiff to look to or confine his claim for compensation to the estate itself, or the defendant in his official capacity.
    Appeal by the defendant from an order setting aside a verdict which had been rendered in his favor and directing a new trial.

      Ira Shafer, for the appellant.

      Henry 0. Andrews, for the respondent.
   Daniels, J.:

The action was to recover the value of services stated to have been rendered by the plaintiff for the defendant, who was the administrator of the estate of his deceased son. The right of the plaintiff to recover was in part resisted upon the ground taken in favor of the defendant, that if he had become liable at all it was as administrator of the estate, and the court directed the jury that if it was the intention of the plaintiff to look to Mr. Dayton, as the administrator, for his compensation, then he could not recover against him individually. This was considered by the court when the motion for a new trial was finally heard and decided to have been a misdirection as to the law, and for that the verdict in favor of the defendant was set aside. In this view of the law the court was quite clearly correct for a mere intention, on the part of the plaintiff, to look to the administrator for his compensation would not prevent him from recovering a verdict against the defendant, personally, if the services were rendered for him, without an agreement that they should be paid for out of the estate. A point similar to this was considered, and as much as that held, in Austin v. Munro (47 N. Y., 360), but it was not probably intended to overrule the preceding case of Chouteau v. Suydam (21 N. Y., 179). It was practically also followed in New v. Nicoll (73 N. Y., 127). What these cases, considered together, require that the law shall be held to be is, that the administrator himself will be personally liable for the value of services rendered at his instance for the benefit of the estate, where there is no agreement on the part of the creditor to look to or confine his claim for compensation to the estate itself, or the defendant in his official capacity. Where services are rendered under such an employment or agreement, then the party rendering them will not be at liberty afterwards to resort to the personal representatives, individually, but he will be confined to the rights or remedie» existing for the enforcement of the agreement, as it has been made by him; and if by the agreement he has confined himself to the estate as his debtor, or the personal representative administering it, he will not be permitted to maintain an action for the recovery of his demand against the personal representative himself, individually. To produce this result the agreement of the plaintiff may be established as other agreements are allowed, to be proved in courts of justice. That may be done by the language used on the occasion when the agreement is alleged to have been made or by circumstances disclosing its nature and effect. Whether the plaintiff can maintain the action must, therefore, depend upon what the contract shall appear to have been under which the services were rendered. A mere intention to look to the estate or the defendant as administrator, is not sufficient to exclude his individual liability, but an agreement on the part of the plaintiff either expressed or to be inferred from the circumstances, to loot to the estate or the administrator as such for his compensar tion, will prevent him' from maintaining his action to recover against him individually. As the case was submitted to the jury the charge was too favorable to the defendant and the order was right, setting aside the verdict and directing another trial of the action.

It should be affirmed, as the facts have been made to appear, with costs to abide the event.

BRAdy, P. J., concurred.

Order affirmed, with costs to abide event.