text:
    Grove M. Harwood, Resp’t, v. Oscar H. LaGrange et al., App’lts.

      (Court of Appeals,

      Filed January 17, 1893.)

    Attorneys—Contingent pees—Lien—Value op services.
    Defendant L., an attorney, was employed to bring certain suits, his compensation to be contingent on recovery. He, by his clients’ consent, employed plaintiff as counsel under a like agreement. A recovery having been had and the proceeds placed in the hands of a trustee, this action was brought for the compensation due the counsel and attorney, and the judge at special term determined the amounts due, and gave them an equitable lien upon the funds in the hands of the trustee. Held, error; that while the agreement gave plaintiff an equitable lien on the proceeds, as it did not fix the sum, plaintiff was bound to establish the value of his services upon the trial by evidence competent against all the parties interested, and that an agreement between the different counsel agreeing what share each wanted in the funds furnished no evidence of the value of them services.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment of special term.
    The plaintiff and the defendant La Grange are attorneys at law, and were, before the commencement of this action, engaged in carrying on for their clients six actions, called in the record the Santa Maria actions. The defendant Buel, also an attorney, was employed in the litigation as counsel and rendered some service therein. The plaintiff claims that he and the two defendants named were employed in .the actions under an agreement whereby they were severally to be paid only in case of success in the actions and only out of the proceeds received. The litigation was brought to a successful issue and the proceeds in money and promissory notes were placed in the hands of the defendant, Ingersoll, as trustee for the parties interested. The plaintiff commenced this action, making, besides the three already named, the plaintiffs in the Santa Maria actions defendants, and alleging in his complaint these .and other facts, and he prayed for relief among other things that the rights and interests of the plaintiff and the defendants in the funds in the hands of the trustee be determined and adjusted.
    All the defendants interposed answers to the complaint, but only the answers of the defendants, La Grange, Smith and Wibert, who alone appeal, need now be noticed. They denied many of the allegations of the complaint, and put in issue the alleged agreement as to the compensation of the plaintiff and the defendant Buel, and allege that La Grange was the only attorney employed by the plaintiffs in the Santa Maria actions; that the plaintiffs in those actions made no agreement with the plaintiff, but agreed with La Grange only that he should have a contingent fee payable out of the proceeds of those actions; that La Grange employed the plaintiff as counsel in those actions, and agreed that he should have a contingent fee payable out of his share of the proceeds of those actions. The answers also alleged that the defendants Smith and Wibert and Mrs. La Grange and I. M. Taylor were each entitled, on- account of moneys contributed to conduct the Santa Maria litigation by virtue of agreements made with them, to share in the proceeds held by the trustee.
    The action came to trial at a special term of the court, and the trial judge found, among other facts, the following: That before the commencement of the Santa Maria actions agreements were made with the plaintiffs therein that the compensation for legal services of the attorneys and counsel in those actions should be contingent upon the results of the actions, and that such compensation should be had and received out of such results only; that La Grange was originally employed by the plaintiffs in those-actions to conduct the same, and was authorized by them to employ counsel, who should be paid out of the results of such actions, if any; that La Grange did, in pursuance of such arrangement with the plaintiffs in those actions, and with their approval, associate with him the plaintiff as counsel in the several actions, and the plaintiff did render services as such in all the actions. He found other material facts as to the successful termination of those actions, and the placing of the proceeds of them in the hands of Ingersoll, as trustee, and he determined the amounts which the plaintiff, La Grange and Buell should have of the proceeds, and he ordered judgment, giving them equitable liens upon the funds in the hands of the trustee for the amounts-thus determined.
    This appeal is from the judgment affirming the judgment of the special term.

      Charles Strauss, for app’lts;

      Oliver P. Buel and Grove M. Harwood, for resp’ts.
   Earl, J.

We think there was sufficient evidence to authorize the finding of the trial judge that the plaintiff rendered services in the Santa Maria actions under the agreement, substantially alleged in the complaint, that he was to receive his compensation out of the proceeds of those actions. We think all the facts and circumstances and the just inferences from them tend to establish such an agreement. It was not important for the plaintiff to show that the agreement was made directly with the plaintiffs in those-actions. It was sufficient that he was employed under the agreement made with La Grange, who acted in making it with the authority of those plaintiffs and on their behalf.

That the agreement gave the plaintiff an equitable lien on or ownership as equitable assignee in the proceeds of the actions is not open to doubt. It has been so determined in many cases. Williams v. Ingersoll, 89 N. Y., 508; Fairbanks v. Sargent, 104 id., 108; 5 St. Rep., 531, and 117 N. Y., 320; 27 St. Rep., 411; Boyle v. Boyle, 106 N. Y., 654; 8 St. Rep., 874; Chester v. Jumel, 125 N. Y., 237; 35 St. Rep., 4.

The agreement as to the compensation of the plaintiff did not fix any sum or rate, and hence he was bound to show and establish upon the trial the value of his services, and this he was bound to do by evidence competent against not only La Grange, but the defendants Smith and Wibert, who were plaintiffs in some of the Santa Maria actions, and who were interested in the proceeds of those actions. There was upon the trial' absolutely no competent evidence of the value of plaintiff’s services in those actions. The trial*1 judge took as a basis for his division and distribution of the funds in thé hands of the trustee an agreement in reference thereto ■claimed by the plaintiff to have been made between him, La Grange and Buel. It appears in the evidence that subsequent to the commencement of this action these three parties met and came to an oral agreement as to the share each one was to have in the funds. That agreement was reduced to writing, and signed by the plaintiff and Buel. But La Grange refused to sign "it. It was evidently understood that the agreement was to be in writing signed by the parties. Finally La Grange refused to sign it or to complete the arrangement. It is not important now to determine whether, under such •circumstances, he was bound by what took place between the three parties as an agreement. Such an incomplete transaction may furnish some evidence of facts stated and admitted, even if it may not be treated as a completed agreement. But the alleged .agreement, so far as we can perceive, was not of the least importance in this case. The three parties acted for themselves in making it and for no one else. La Grange did not assume to act for his clients in this action. They simply came together and agreed what share each should have in the funds. They did not even ■determine, or assume to determine, what was the fair value of the services rendered by each in the Santa Maria actions. They .simply determined what share each wanted in the funds. The three lawyers got together and divided up the proceeds of the litigation to suit themselves without consulting their clients. Such a transaction furnishes no evidence whatever of the value of their ■services, and could not properly furnish any basis for the judgment in this action. Smith and "Wibert were not bound by that arrangement. If five or more freebooters should go forth upon a foray and when they returned three of the number should divide up the plunder among themselves, that would furnish no evidence against the others of the value of their services, or the just amount of their share.

There is no possible theory upon which it can be claimed that La Grange had authority to make the settlement. As the attorney in the Santa Maria actions, he had no more authority as against his clients to adjust the compensation of counsel employed by him than he had to adjust his own compensation. As attorney for Smith and Wibert in this action, he could not, even if he had attempted to do so, make a settlement with the plaintiff and Buel, determining what share he and they should have in the funds. But, as before said, he did not assume to act for his clients in making the settlement.

There is no difficulty about the pleadings in this action. The very purpose of the action is to determine the rights and interests of all the parties' in the funds in the hands of the trustee, and unless that be accomplished the action will prove abortive.

This case should be tried again, and the value of the services of the three lawyers should be properly proved by evidence competent against all the parties interested, and should be found by the court.

It was alleged in the answer, and evidence was given upon the trial tending to show, that Taylor and Mrs. La Grange were also interested in the funds, and the suggestion is made that it would be well to bring them in as defendants in this action.

The judgment should be reversed and a new trial granted, costs to abide event.

All concur.

       Reversing 42 St. Rep., 905.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    Edward Everett, App’lt, v. Georgie Lillian Morrison, sometimes called Georgie Lillian Everett, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Divorce—Default.
    A decree of divorce will not be set aside on the ground that the defendant was induced by fraud to allow it to go against her by default, where she, in fact, has no defense.
    Appeal from order vacating a judgment in this action and giving defendant leave to answer the complaint and try the issues.

      George ZabrisJcie, for app’lt;

      Ayres & Wallcer, for resp’t.
   Barnard, P. J.

In the fall of 1884, the plaintiff was married to the defendant in Brooklyn by John Courtney, a justice of the peace. There had been illicit relations existing between the parties before the marriage. In April, 1888, the plaintiff obtained a decree of divorce from her on the ground that the defendant was, at the time of her marriage to the plaintiff, the wife of one William G. Morrison. After the divorce the parties continued to live together as man and wife, but in a secretive way and in places more or less secluded. In 1891 the plaintiff abandoned the defendant, and she seeks to open the decree obtained by plaintiff and put in an answer. She avers that the former marriage with Morrison was sportively made in Rhode Island. That she after-wards lived with Morrison as his wife for a few months in the state of Massachusetts, because her father insisted that as she had gone through with the ceremony, she must live with her husband, Morrison. Soon after the defendant left Morrison the plaintiff became acquainted with her and at once became attached to her, and in January, 1884, the intimacy became improper. Although the fact is disputed, I think it is fairly proven that the plaintiff knew of the Morrrison (alleged) marriage and introduced the defendant to a lawyer in Rhode Island to annul the same. Proceedings were commenced to that end, but reached no result, and were subsequently discontinued.

The defendant avers that the plaintiff obtained his divorce from her on the ground that her family would not acknowledge a marriage before a justice of the peace, and that he would have a public ceremonial marriage after he got his decree from this, Justice Courtney’s, marriage. This fact the plaintiff denies, and he avers that the subsequent relations were mutually understood to be meretricious. Assuming that the plaintiff promised to remarry the defendant in a formal manner after the divorce, should the default be opened and the defendant be permitted to answer? This depends upon the merits stated in the proposed answer. Is the formal marriage with Morrison void under the evidence? The facts in respect thereto are undisputed. Morrison presented an approved marriage certificate to the defendant’s father and mother in Massachusetts, The family acknowledged it. The parties lived for six months together as man and wife; publicly and openly in the sight of the world. The defendant left him because of ill treatment and went back to her parents. The formal marriage in Providence is doubtful. No certificate was given the wife. . No clergyman can or has been found. The common law marriage in Massachusetts is proven abundantly, even if the certificate of the Rhode Island clergyman was deceptive, and made to obtain the consent of the defendant's parents to her marriage with Morrison. The right of the plaintiff to the divorce seems clear, and it would not avail the defendant if she was induced by fraud to let a decree go against her by default if she, in point of fact, had no defense. Blank v. Blank, 107 N. Y., 91.

The order should be reversed, with costs and disbursements, and the motion denied, with costs.

Dtkhan and Pbatt, JJ., concur.


text:
    The Mathushek Piano Manufacturing Co., Resp’t, v. James Pearce, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Bill of pabticulabs.
    In an action to recover the value of certain pianos consigned to defendant for sale between certain dates the bill of particulars served consisted merely of a list of the numbers and price of certain pianos, to the amount of the balance. Held, that this was not sufficient; that defendant was entitled to a bill showing the date of delivery of all pianos during the time claimed in the complaint, and also the several payments on account, with the dates thereof.
    Appeal from order denying motion of defendant for a further bill of particulars.

      J. H. W hitelegge (D. McMahon, of counsel), for app’lt;

      J. W. Alexander (J. F. Daly, of counsel), for resp’t.
   Barnard, P. J.

The complaint avers that pianos of the value of $65.112.05 were delivered by the plaintiff to the defendant between the 14th of July, 1881, and the 10th of February, 1891, and that the defendant has paid on account thereof $43,183.09, and claims to recover a balance of $21,928.96. The defendant demanded a bill of particulars, and the plaintiff served a bill of particulars showing the balance due upon the pianos as alleged in the complaint. The bill of particulars does not show the pianos delivered between the dates and prices of the pianos stated in the complaint, nor does it show the dates and amounts of the pay-merits thereon. Without such a statement the defendant cannot properly prepare for trial. He must meet a general claim to a very large amount, with a general credit to a very large amount also ; but he will have only a statement of balance claimed on pianos designated with certain numbers and letters. This claim will be subject to the general payments, and these payments will need the entire list of property below the prices mentioned in the complaint during which the property was delivered and for which a claim is made°to be reduced by the general sum of payments. It may be that there is the balance claimed on the designated pianos less specific payments thereon and still there be no balance in the general account.

The order should, therefore, be reversed with costs and disbursements, and the motion granted that the plaintiff furnish the date of the delivery of all pianos during the time claimed in the complaint, and also the several payments in account with the dates-thereof, with ten dollars costs of the motion at special term to abide event.

Pratt, J., concurs; Dykman, J., not sitting.


author: Pratt, J.

text:
    Richard Gibbs, Resp’t, v. The Dutchess County Mutual Insurance Co., App’lt.

      (Supreme Court, General Term, Second, Department,

      Filed December 12, 1892.)

    Insurance (Pire)—Waiver of condition as to other insurance.
    Plaintiff procured other insurance on his property in violation of the provision of his policy prohibiting the same without consent of the company defendant, but after the loss defendant’s general agent and adjuster told plaintiff that the company would pay the loss, and thereby induced him to compromise with the other company. Held, that the adjuster had power to waive the forfeiture, and that a finding that there was such a waiver was authorized.
    _ Appeal from judgment in favor of'plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.

      Robert F. Wilkinson, for app’lt;

      T. S. Hulse (W. F. O'Neill, of counsel), for resp’t.
   Pratt, J.

This is an appeal from an order denying motion for a new trial on the minutes, and also from a judgment entered upon a verdict of a jury.

The suit was based upon a policy of insurance issued by the defendant to the plaintiff.

The policy contained a condition, that if the plaintiff obtained other insurance, without notice to and approval by the defendant, the policy should be void.

The plaintiff did procure other insurance without such consent and approval, and the policy, at the time of the loss, was void; but the plaintiff contended that this condition had been waived by the defendant, and that was the issue submitted to the jury.

There was evidence tending to show that the defendant, after it knew of the loss, sent its general agent and adjuster to the plaintiff, and said agent stated to plaintiff that the company would pay the loss, and thereby induced the plaintiff to compromise with the other insurance company for the loss.

We are of the opinion that, under the circumstances, the agent and adjuster had power to waive the forfeiture, and that the jury was justified in finding that he did waive it. Titus v. Glens Falls Ins. Co., 81 N. Y., 410.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    In the Matter of the Claim of Mary L. Van Slooten, App’lt, v. Charles H. Wheeler, Ex’r, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Gifts—Decedents’ estates.
    On reference of a claim for a diamond ring, alleged to have been given claimant by testator, the evidence tended to prove that claimant was wearing the ring before testator’s death; that testator declared to witnesses that he had given it to her; that after his death there was a dispute as to its ownership, and, upon demand, she gave it to the executor. Held, that the evidence clearly proved a gift, and the transaction with the executor had no relevancy on the question of title, as the only question was as to the title at the time of testator’s death.
    Appeal from judgment, entered upon order confirming report of referee dismissing plaintiff’s claim, and from order denying motion to set aside the referee’s report.
    Eeference of a disputed claim for a diamond ring. The facts appear fully in the opinion of the referee, as follows ;
    James McKeen, Eeferee.-—This is the second trial in a proceeding growing out of the rejection of a claim made for a ring alleged by the claimant to have been given to her by Harry R Dodge, prior to his death. The claim having been rejected was referred pursuant to the statute. Decision was made by the former referee against the claimant, which decision was reversed at the general term, and a new trial ordered. The present trial has proceeded pari passu with that of another controversy between the same parties. Previously, the cases appear to have been tried together. Here the records have been kept separate, though the witnesses have, many of them, testified in both cases. Some general views expressed by me, in an opinion in the other case, are applicable here, and need not be repeated. It appears that the decision at general term in this case, as in the other, was essentially upon the facts as they appeared in the record of that trial. It appears, also, that some witnesses, then examined, have not been produced before me.
    Mr. Dodge had made his home with the claimant several years prior to his death, which occurred at her house, 52 Sidney Place, Brooklyn, June 3, 1886. It appears, by the testimony of several witnesses, that Mr. Dodge declared he had given this ring to Mrs. Van Slooten, then Mrs. Miner. Sometimes, however, the ring was worn by her, and sometimes b}^ him. It appears that she had continuous possession of it for some weeks preceding Mr. Dodge’s death, during his illness. The fact of possession of the ring by claimant does not prove much, because of the alternate possession by Mr. Dodge and herself. It would also appear that, by reason of Mr. Dodge’s residing at her house, many other of his personal effects were, in a sense, in her possession at the time of his decease. There is no evidence of any specific delivery of the ring in consummation of the alleged gift. The declarations by Mr. Dodge, however, in connection with the claimant’s final possession, would go far to sustain a finding that the title had passed to claimant, and this appears to have been the opinion of the general term upon the record of the evidence carried up on the appeal.
    After, however, listening to the testimony before me, and rereading from the minutes that testimony, together with the documents submitted in evidence, I am persuaded that the ring was not the claimant’s property at the time of Mr. Dodge’s death; and I have no reason to doubt that this belief is a natural and rational result of the evidence. The conduct of the claimant shows that either she never accepted the ring as a gift, or that she had returned it, and that her possession at the time of Mr. Dodge’s death was not that of an owner. Her testimony as to the way in which Mr. Wheeler procured the ring from her is incredible. She attributes to him a course of conduct, deceitful and fraudulent, if not felonious. She says that he merely asked to look at the ring, and when she handed it to him, he went off with it, without a word of explanation. Such a proceeding on Mr. Wheeler’s part is utterly inconsistent with the friendly relations which certainly continued for many months afterwards. Nothing has been advanced, even by way of argument, explaining why Mr. Wheeler should capture the ring in such a manner, and charge himself with it as an item of assets, as an article for which he would be accountable as executor. His version of what occurred, on the other hand, is consistent with the claimant’s own conduct, and is inconsistent with the idea that the ring is her property. He says, in substance, that he told her some members of the family were incensed at her wearing of the ring; that it properly belonged to the estate, and should be given to him to be inventoried; that she, thereupon, took it off her finger and handed it to him.
    Mrs. Van Slooten testifies that afterwards, and on various occasions, she demanded the ring from Mr. Wheeler, and she specifies ás one of the occasions that of the meeting at Mr. Hubbard’s office in July, 1887, when the balance due her on her legacy was paid to her. Mr. Wheeler denies all these alleged demands, and I am persuaded by his testimony, and by that of Mr. Hubbard, and by the omission of Mr. Manning, who was present, to Say anything of it, that such a demand was not made by the claimant on that occasion. Some time after the legacy was paid Mr. Manning had an interview with Mr. Wheeler about the ring, at which Mr. Wheeler declined to give it up; and in September, 1887, Mr. Manning wrote Mr. Wheeler, by the claimant’s authority, asking “ for what amount he would allow her to have Mr. Dodge’s ring.” It was explained that it was thought wiser to attempt to buy the ring than to incur the cost of a litigation ; but I cannot think this course, even with the explanation, consistent with the claim by Mrs. Van Slooten that she was all the while the rightful owner. Mr. Wheeler declined to name a price, for reasons stated by him in a letter written in reply. Nothing more was done until nearly a year later, when Mr. Price, acting for Mr. Manning in the latter’s absence, wrote two letters, one in July and one in September, 1888, the latter being a formal demand for the ring. Between these dates Mr. Price had an interview with the executor, but no steps were taken to present or enforce the claim until after Mrs. Van Slooten had been served with a citation, in 1889, to attend at the judicial settlement of the executor’s account: In September, 1889, the claim was formally presented through her present attorney, which claim was rejected and became the basis of this proceeding. This course of conduct on the part of the claimant dispels the inferences which might have been drawn from the testimony as to Mr. Dodge’s declarations. In accordance with these views, I have ruled upon the requests of the parties, and have prepared a report in favor of the executor.

      Merritt M Haviland (M. J. Keogh, of counsel), for app’lt;

      Hubbard & Rushmore (Q-. Q. Reynolds, of counsel), for resp’t.
   Barnard, P. J.

There is no dispute as to the facts in this case. Harry E. Dodge, the testator, died on the 3rd of June, 1886. He had lived for some years with the claimant. About two months before his death the deceased had a diamond ring on his finger. This was admired by a lady, Mrs. Chertizza, whereupon he told her “ that is not mine, I have given it to May,” meaning the claimant. Before this occasion the claimant frequently had it on her hand, and for the last two weeks of testaror’s life she wore it steadily and had it in her possession when he uied. About two or three weeks before his death the testator told Miss Halstead he had given the ring to May; and the claimant, who was called May by the testator, had the ring on her hand. Just before testator’s death the claimant mentioned to a Mrs. Leavitt, in testator’s presence, what a nice present she had, putting out her hand and showing 'the ring. The testator assented by an expression of pleasure on his face. This evidence clearly proves a gift. There was proven a delivery of the ring given with an intent to transfer the title to the claimant. ' Once given, there is no pretension that it was given back by the claimant to the deceased in his lifetime, or to his executors acting for the estate since his decease. There was a dispute as to the ownership between the executors, and the claimant gave up the ring to the executor upon a claim made by him for it. Upon the question of title, the transaction between the executor and claimant after the testator’s death has no relevancy or importance. The only question is as to the title to the ring at the death of testator. If it had then belonged to plaintiff, the executor has, under the evidence, acquired no title since from the estate.

The judgment should be reversed and a new trial granted, costs to abide event

Dykman and Pratt, JJ., concur.


text:
    Ferdinand R. Minrath, Resp’t, v. The Teachers’ Land & Improvement Co., Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Trial—Notice—Amendment op answer.
    Where it is clear that an amended answer served after the cause has been noticed for trial was not interposed in good faith, the court may require the trial to proceed on the notice of trial originally given.
    2. Same—Usury.
    A defense of usury does not call for especial favor, especially where it is not interposed by the borrower, but by a purchaser of the mortgaged premises with notice of the mortgage.
    Appeal from final judgment in foreclosure, and from order denying application to compel plaintiff to receive an amended answer and renotice the cause for trial.
    The action was begun December 17, 1891.
    January 22, 1892, the defendant-appellant served its answer by Harriman & Fessenden, its attorneys. The plaintiff refused to receive it and returned it, but upon application to the court an order was made and entered February 9th granting defendant’s motion to compel plaintiff to accept it and ordering it to be served within five days from date.
    The said answer was served and received February. 13th.
    Then the plaintiff noticed the cause for trial for March 5th, but on March 3d defendant-appellant served an amended answer, which was immediately returned with a notice that it was served too late.
    Then defendant got an order returnable at the same time and place for which the trial had been noticed, and at the opening of court, prior to plaintiff’s moving the cause for trial, defendant’s attorneys moved on their order to show cause and affidavits that plaintiff be compelled to receive the amended answer and to re-notice the cause for trial; plaintiff's attorneys opposed the motion, read affidavits and moved for trial; defendant read another affidavit and the court directed the plaintiff to receive the amended answer, which counsel for plaintiff consented to do, and to proceed at once to trial on the amended answer ; it was so ordered ; defendant’s counsel objected to going to trial; the court determined that the amended answer raised no new issues; that it was unnecessary and put in for purpose of delay, struck it out and directed the trial to proceed on both answers.
    Defendant’s counsel excepted, and further objected to proceeding on the ground that the issue had been that day joined ; that the cause had not been, properly noticed for trial and then withdrew. The plaintiff proceeded to give his proof and took judgment.

      Harriman & Fessenden, for app’lt;
    Hoadly, Lauterbach & Johnson (F. R. Minrath of counsel), for resp’t.
   Pratt, J.

The practice is probably not entirely settled as to whether a new notice of trial must be given where an amended answer is, in good faith, served after a cause has been noticed for trial.

The case of Ostrander v. Conkey, 20 Hun, 421, seems to hold that a new notice should be given. But it is clear that where the amended answer is not interposed in good faith the court may require the trial to proceed at once upon the notice of trial originally given. That course was taken by the court below. The amended answer was deemed to be unnecessary, and not interposed in good faith.

Entertaining such views the court properly required the trial to proceed at once.

We cannot say that the court was in error in taking that view of the answer. Its substance was such as to expose it to strong suspicion.

The defense of usury does not call for especial favor, especially where, as in this instance, it is set up, not by a borrower, but by his vendee, who purchased knowing of the mortgage.

We do not think error was committed, and affirm the judgment, with costs.

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


author: Dykman, J.

text:
    Susie McGuiness, Resp’t, v. The Town of Westchester, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Towns—Highways—Negligence—Laws 1889, chap. 453.
    The commissioners of highways of a town are not superseded by the commissioners of improvements under chap. 453, Laws 1889, nor are their powers or duties abridged by said statute, but it is their duty to maintain a highway in a safe condition for public travel, and exercise reasonable diligence to accomplish that end, although the commissioners of improvement are engaged in work thereon, and a failure to perform such duty is negligence for which the town will be liable.
    3. Same—Charge.
    In an action for injuries caused by falling in a trench in the highway, the court charged that the question was whether the accident happened in a part of the avenue which the improvement commissioners undertook to improve. Meld, error.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      Martin J. Keogh, for app’lt;

      David H. Hunt, for resp’t.
   Dykman, J.

The law imposed no liability upon the towns of this state for injuries resulting from defective highways prior to the year 1881. The underlying reason for such immunity was the theory of law that the highway commissioners, to whom the conservation of the reads and bridges was assigned, were in no legal sense the servants or agents of the town, and, therefore, the towns as corporations were, not responsible for any default or malfeasance in the performance of their duties. Lorillard v. The Town of Monroe, 11 N. Y., 392.

The statutes of this state relating to roads and bridges place upon the commissioners of highways the “care and superintendence of the highways and bridges in the several towns, and as that duty was imposed upon such officers and not upon the towns in their corporate capacity, the officers were liable individually for damages resulting from injuries sustained by their malfeasance or misfeasance.

Under the foregoing principle actions were maintained against commissioners of highways individually for damage to persons and property caused by defective highways which had become so by their omission to repair, where they were provided with adequate funds for that purpose. Robinson v. Chamberlain, 34 N. Y., 389.

Finally, for the first time in the history of the state, a law was enacted in 1881 which rendered the several towns in this state liable to any person suffering the same for all damages to person or property by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of highways of said town are now by law liable therefor, instead of such commissioner or commissioners of highways. Laws of 1881, chap. 700, § 1.

That statute remained in force until June 7, 1890, when it was repealed by chap. 568 of the Laws of 1890.

Section 16 of this last law reads as follows : “Every town shall be liable for all damages to person or property sustained by reason of any defect in its highways or bridges existing because of the neglect of any commissioner of highways of such town.”

This section seems to have been enacted as a substitute for § 1 of the Laws of 1881. This suit was commenced in July, 1891, and is, therefore, under the control of the statute of 1890.

This action is for the recovery of damages resulting from an injury sustained by the plaintiff inconsequence of a fall upon one of the public roads in the town of Westchester, known as Avenue C. It appeared from the testimony introduced by the plaintiff that she was walking upon the sidewalk of the avenue in the evening, and fell into an excavation near the walk, and broke the bone of her thigh, and received some other injuries. These facts were undisputed. At the time of the accident the avenue in question was undergoing reparation under the direction of commissioners of improvement appointed under the authority of chapter 453 of the Laws of 1889. By that law such commissioners were clothed with power and authority over all the highways and streets in the town outside of the corporate limits of any village, and to change the grade thereof, and it appeared with reasonable certainty that the depression into which the plaintiff fell was made by the improvement commissioners during the progress of their work upon the avenue.

It was, therefore, the contention of the defendant upon the trial, and upon this appeal, that the town was not liable for the defective condition of the avenue, because it was the result of the prosecution of the improvement by the commissioners and cannot be assigned as negligence against the commissioners of highways or the town. The objection was overruled at the circuit, and the plaintiff recovered a verdict, and the defendant has appealed from the judgment and from the order denying a motion for a new trial upon the minutes of the court.

By a careful examination of the case we can discover no avenue of escape from this judgment.

It is to be observed preliminarily that the charge of the trial judge respecting the operation and effect of the statute of 1889 cannot be fully sustained.

The position assumed is that the effect of the statute under which the improvement commissioners were appointed is to withdraw from the jurisdiction and control of the highway commissioners all highways upon which such improvement commissioners enter in the exercise of the powers conferred upon them by the statute, and that wherever such commissioners take possession of a highway for its reparation or improvement, the powers of the highway commissioners are intermitted, and their duties suspended; that the commissioners of highways of the town were relieved from the duty of superintending or caring for the highways which were in the possession of the improvement commissioners under the act. We think the position is untenable and the doctrine dangerous.

There is nothing in the statute of 1889 which manifests the intention of the legislature to relieve the commissioners of highways from the care and control of the highways of the town of Westchester.

The law was not made for that town alone. It was made for all the towns in this state which fall within the scope of the title, i Its object was to provide for the appointment of commissioners who should have power to examine and consider all matters relating to a supply of pure and wholesome water for the town, to the construction of sewers and opening and improving and lighting of streets in public places. But the roads and public places upon which these commissioners entered for the purpose of performing their duties under the law are not surrendered to them for any other purpose. They remain highways and public places still and subject to the control of the constituted authorities. It would be a great innovation upon our highway system and the law pertaining thereto, to hold that these commissioners of improvement could break up a road for the purpose of improving its surface, or constructing sewers beneath it, and render it dangerous, without imposing liability upon the town under the statute. It would be hostile to both principle and authority, and if carried into practice it would surrender the highways to persons who were charged with no duty in respect to them and under no special obligation to maintain their integrity.

It would nullify the law which imposed liability for negligence, and leave the persons who sustained damage thereby destitute of a. remedy therefor.

Where improvements are in progress it is always the duty of the officials in charge of streets and highways to guard them for the protection of travelers. Turner v. Newburgh, 109 N. Y., 301; 15 St. Rep., 93. And if necessary to prevent accidents, to close them. Russell v. Canastota, 98 N. Y., 496.

In the case of Pettengill v. Yonkers, 116 N. Y., 558; 27 St. Rep., 531, an excavation had been made in the street by the board of water commissioners, to receive water pipes, and the material from the trench was thrown upon the street. The vehicle in which the plaintiff was riding came in contact with such material, and was overturned and she was injured. That case was quite analogous to this, and the court held that where improvements, either public or private, were in progress, which caused obstructions in tho street, it was the duty of the city to guard them, so as to protect travelers from injury therefrom.

Bryant v. Town of Randolph, 133 N. Y., 70; 44 St. Rep., 85, was an action for the recovery of damages for the death of the plaintiff’s intestate, and the negligence charged was the omission of the commissioners of highways to maintain guards along the embankment constructed by a railroad company, whose road crossed the highway, to raise the same to the grade of the railroad. The contention there was, that no responsibility rested upon the commissioners of highways for the condition of the embankment, because they were constructed by the railroad company under compulsion of a statutory duty. The defense was disallowed, and the court there held that the provisions of the statute imposing upon railroad companies which construct lines across a highway the duty to restore the same “ to its former state, or to such state as not necessarily to impair its usefulness,” does not relieve commissioners of highways from the care and control of those parts of public highways constituting an approach to railroad crossings, although constructed by the railroad company in discharge of its statutory -duty.

The trial judge also charged the jury that the question was whether the accident happened in a part of the avenue which the improvement commissioners undertook to improve.

That charge imposed a burden upon the plaintiff which she was not bound to sustain. It required the jury to find that the trench into which the plaintiff fell was at a place in the possession of the commissioners of highways, and from which they had not been ousted by the commissioners of improvement

It circumscribed the legitimate scope of inquiry unduly, for the plaintiff was entitled to recover if she was injured in any part of the avenue which was dangerous. What has already been said is sufficient to manifest the error into which the trial judge inadvertently fell. It cannot inure to the benefit of the defendant on this appeal, because it was in its favor and afforded the jury an opportunity to find a verdict for the defendant upon an erroneous ground, because if the jury had found that the defect was in a part of the avenue which was in the possession of the improvement commissioners, a verdict might have passed to the defendant upon that ground. So the field of inquiry was unduly limited by the charge, but it was not harmful to the defendant, as we have seen, and constitutes no ground of error available to the town.

These remarks have been made because we wish our reasons for affirming the judgment distinctly understood. We intend to decide that the commissioners of highways of the town were not superseded by the commissioners of improvement, and that the statute of 1889 was not designed to, and did not abridge the powers or diminish the duties of the highway commissioners, but that it was the continuing duty of such commissioners to maintain' a highway in a safe condition for public travel, and to exercise reasonable diligence to accomplish that end, and a failure to perform such duty was negligence. The phraseology of the statute of 1881 and that of 1890 differs. The former imposes liability upon the town in cases in which commissioners of highways were by law liable at that time, and substitute a corporate liability of the town for the individual liability of the commissioners. The law of 1890 lays responsibility upon the town for damages to persons and property sustained by reason of any defect in its highways and bridges existing because of the negligence of any commissioner of highways of such town.

Yet the two are designed to accomplish the same purpose, and now as before, the negligence of the highway commissioners is an important element in all cases under the statute.

Upon that question the charge was faultless. The motion for a nonsuit, and. request to charge, and the exceptions, were all based upon the statute of 1889, and its effect upon the duty of the highway commissioners of the town.

No question was raised respecting the action of such commissioners. The disposition of the appeal, therefore, depends upon the statute of 1889, and that question has received careful examination.

The judgment and order should be affirmed, with costs.

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


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    Lillian M. Smith, Pl’ff, v. Charles Lawrence et al., Def’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Will—Vested eemaindeks—Childeen.
    Testator, tiy his "will, devised certain real estate to his daughter for life and after her decease devised the same “to the children which she now has, or may hereafter have living at the time of her death, as tenants in common.” Said daughter at the time of his decease had three children, whom she survived, and died leaving only grandchildren. Held, that at the death of the testator the remainder in these lands vested in the children of his daughter then living, and the fee now belongs to the grandchildren.
    Motion by defendant Sarah J. Smith for new trial on exceptions.
    Action for partition of real estate. Defendant, Sarah J. Smith, claimed an interest- in the property by reason of the death of Phebe T. Lawrence, without leaving children surviving, but only grandchildren. The court at special term adjudged the title to be in the grandchildren, on the authority of his opinion in .a proceeding by the Smithtown & Port Jefferson Railroad Co. to acquire title to a portion of said land, which opinion is as follows:
    Bartlett, J. Elias Smith died in 1839, having made a will, by the fourth article of which he devised certain lands to his daughter, Phebe T. Lawrence, for life. The will disposed of the subsequent estate in these words : “ I give and devise the aforesaid several tracts of land, after the decease of my daughter, Phebe T. Lawrence, to the children which she now has, or may hereafter have living at the time of her death, as tenants in common, to them, their heirs and assigns forever.”
    At the time of the execution of the will, and of the death of the testator, Phebe T. Lawrence had three children living (see recitals in order of March 4, 1872). They all died before her, two of them leaving descendants. She died on June 30, 1889. The question presented by this application is, whether the descendants of her children take anything under the provision which has been quoted from the will of Elias Smith.
    I think they do, both upon a grammatical construction of the language employed by the testator, and upon the authority of the decision of the court of appeals in the Matter of the Estate of Brown, 93 N. Y., 295.
    According to a literal interpretation of the words used, the testator seems to have contemplated a gift over in which two classes of his daughter’s children should participate; first, those already in being at the time he made his will; and secondly, those who should be born subsequently and should survive their mother. The first .class were to take in any event; that is to say, the remainder vested in them as soon as the life estate vested in the mother. The second class could not take unless they were living at the time the life estate terminated by the mother’s death.
    The will clearly separates by the disjunctive or the children which she has from those which she may hereafter have, and the phrase, “living at the time of her death,” is apparently designed to apply only to the latter class, thus having reference not to children in existence when the will was executed, but to such children, if any, as should come into existence afterward. In further confirmation of the correctness of this view, it should be noted that it was wholly unnecessary for the testator to speak of the children which his daughter then had (at the time of the making of the will), if his purpose had been merely to make a devise over to those who should be living when their mother died. It would have been enough to devise the remainder to the children of Phebe T. Lawrence, living at the time of her death.
    Now, under the rule laid down in the Matter of the Estate of Brown, supra, the right of the issue of the deceased children of Phebe T. Lawrence to take the remainder limited upon the mother’s life estate must be maintained if the testamentary provision in question is capable of a construction "which will lead to that result. There the testator bequeathed and devised the remainder over “ unto such child or children as my said daughter shall have or leave living at her decease.” The court of appeals, as was said in the later case of Patchen v. Patchen, 121 N. Y., 432, 435; 31 St. Rep., 297, solved this ambiguous expression by reference to other provisions of the will, and to the preference which the law gives to the participation of issue in a remainder. In the case at bar we have a similar ambiguity, which, I think, can well be solved by adopting the construction which has been suggested.
    Motion granted.

      Geo. W. Sandford, for Sarah J. Smith; Thos. S. Mount, for plff;

      A. A. Spear, for deft Clara L. Smith ; N. S. Aclcerly, for deft
    Anna W. Brown: R. II. Smith, for def’ts Phyfe.
   Pratt, J.

The material question in this case involves the construction of the fourth clause of the will of Elias Smith, deceased, which is as follows, to wit:

Fourth. “ I give and devise to my daughter, Phebe T. Lawrence, during her natural life, the eastern part of the farm where I now live,” etc., also three other tracts of land, also equal undivided onelialf of a tract of thatch land. “ I give and devise the aforesaid several tracts of land after the decease of my daughter, Phebe T. Lawrence, to the children which she now has, or may hereafter have living at the time of her death, as tenants in common, to them, their heirs and assigns forever. ’’

These are the lands in this action.

The said Elias Smith died April 20, 1839, made the will January 21, 1839, and same was probated 25th of May, 1839, as a will of real and personal property.

At the time of the death of testator, Phebe T. Lawrence was living and then had three children. She died January 30, 1889, not having had any more children. She survived all of these children, but she left grandchildren.

The question is whether on the death of Elias Smith the fee of the part of the estate which was devised to Phebe for life vested in her children then living, and, therefore, now belongs to the grandchildren of said Phebe and their representatives.

This question was fully discussed by the learned judge at special term, and I see nothing that needs to be added to the argument contained in his opinion. Many arguments may be suggested upon either side, but it comes down to a question of intent to be solved by reference to ambiguous expressions contained in the will.

We think this case fairly falls under the rule laid down in the Matter of the estate of Brown, 93 N. Y., 295, and that calls for an affirmance of the judgment.

Motion denied and judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concu .


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    The People ex rel. William A. Toohey et al., App’lts, v. Stephen I. Webb et al., Resp'ts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

      1. Certiorari—Supervisors—Return.
    A return by a board of supervisors to a certiorari which is authorized by a majority of the board and signed by the chairman and clerk is sufficient although not signed by a majority of the board.
    2. Same—Immaterial matter.
    If the return contain some matters not material it is not essential that it be sent back for correction, but such matters may be treated as surplusage.
    3. Supervisors—Audit oe accounts.
    Where no compensation for the services is fixed by law, and the account does not state the number of days service or that the same was necessarily rendered, the board may either reject the bill altogether or allow what they consider a fair compensation. If dissatisfied, the claimant should apply for a rehearing,
    Appeal from order of special term, denying motion for an order directing defendants as a board of supervisors to make a further or proper return to a writ of certiorari, on the grounds: (1) That said return is not made by a majority of the board of supervisors of the county of Orange, to whom said writ was directed; (2) that said return contained matters wholly irrelevant to the requirements of the said writ; (3) that affidavits and other pipers, not a part of the proceedings of the said board of supervisors, are annexed to and pretended to be made part of said return, and (4) that said return is not a proper and sufficient return by the said board of supervisors of the county of Orange to said writ.
    The writ was granted to review the action of defendants in relation to a bill of the relators for services as undertakers in caring for and burying unidentified dead at the request of the coroner.

      Strahan & Me Clung {Wm. D. Dickey, of counsel), for app’lts;

      John M. Gardner, for resp’ts.
   Pratt, J.

This is an appeal from an order refusing to send back a return made by the board of supervisors of Orange county to a certiorari sued out by the relator.

The writ and return are also submitted for adjudication.

There is enough in the return to show that there is no merit in the application, and that the order refusing to send it back was right, and should be affirmed.

The writ was served upon the chairman of the board, and such service was good, and was so recognized by the respondents, and return made thereto. The fact that it was not signed by a majority of the members of the board is not material, as the return as made was authorized by said majority, and signed by the chairman and clerk, and properly filed in the county clerk’s office.

If the return contained some matters not material, it was not essential that it should have been sent back, but the same could have been treated as surplusage, and the court could have struck it out upon the hearing. As it in no way affected the merits, the relator was not injured by its presence in the return.

The order must, therefore, be affirmed, with ten dollars costs and disbursements. The parties have also submitted the certiorari and returns to be decided upon the merits.

Upon this matter it is sufficient to state that upon the evidence before the board of supervisors they had a right to fix the amounts to be allowed at the sums they did fix them, as the relator failed to present to the board the proper statutory proof of the amount due him. The statute provides “ that where there is no compensation fixed by law, the accounts for services shall particularly state the time devoted to the performance of the services for which the charge is made, and that they were necessarily rendered.” Birdseye’s Statutes, vol. 1, p. 731. This requirement the relator failed to perform, and the board could either reject the bill altogether, or allow what they considered a fair compensation. If the relator was dissatisfied, he could have applied for and had a rehearing. 65 N. Y., 222.

This fact furnishes an additional reason why the relator should not have sought to review the action of the board by certiorari.

Writ dismissed, with ten dollars costs.

Barnard, P. J., and Dykman, J., concur.


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    SUMMERFIELD McLEAN, Pl’ff, v. FRANCOIS J. G. LADD, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Mortgage—Executors.
    An executor, to whom real estate was devised in trust to sell for payment of legacies, purchased land, and paid therefor in part out of the assets of the estate, thereafter executed a mortgage thereon as trustee, which mortgage was subsequently foreclosed, and plaintiff acquired title from the purchaser, at the foreclosure sale. Held, that while the purchase with trust funds was improper as between the trustee and the beneficiaries, yet the trustee acquired a good title, that the same did not come to him under the will, and, therefore, he had power to execute the mortgage, and that plaintiff's title was good.
    3. Same—Foreclosure—Parties.
    As the title did not come to the trustee under the will, the beneficiaries under the will took no interest and were not necessary parties to the action of foreclosure.
    Submission of controversy without action.

      Abner G. Thomas, for pl’ff;

      A. W. Byrt, for def’t.
   Dykman, J.

A controversy has arisen between these parties which has been submitted to this court for judicial determination upon a conceded state of facts. The course pursued is to be encouraged, because it furnishes a rapid and inexpensive method for the settlement of disputes, and secures a decision as certain and satisfactory as could be reached after the most obstinate litigation. The basal facts are these :

Thomas Connell made a last will and testament, and two codicils thereto, in which William Connell, John Quinn and Philip Lyons were named as executors. After the death of the testator, his will and codicils were proved and admitted to probate, and letters testamentary were issued thereon to John Quinn, one of the persons named as such executors, on the 14th day of July, 1878.

The third clause of the will reads as follows, and remains unaffected by the codicils:

Third. Inasmuch as my personal estate is insufficient to pay the legacies hereinafter given, I hereby give and devise to my executors hereinafter named, or to such of them as shall qualify, all my real estate, and chattels real, of which 1 may die seized or possessed, in trust, to sell and dispose of the same at public or private sale in such parcels at such times and upon such terms as shall seem to them expedient and most conducive to the interests of my estate, and to apply the proceeds thereof, together with the avails of my personalty not herein specifically devised, to the payment of the debts and of the legacies and bequests herein contained. And upon such sale or sales I empower my executors, or such of them as shall qualify, and the survivor of them, to execute and deliver good and sufficient deeds of conveyance, and to receive payment either wholly in cash, or, in their discretion, partly in cash, and the balance not, however, exceeding sixty percent. of the purchase price in the bond of the purchaser, secured by mortgage upon the property conveyed, and until such sale I direct my executors to collect the rents and profits of my real estate, and to apply so much thereof as may be necessary to the payment of the taxes and assessments thereon, and if the receipts from such shall be insufficient therefor, then to pay the deficiency from the avails of my personal estate.”

On or about May 1, 1888, John W. Collins, being then the owner in fee of the premises, with his wife executed and delivered to John Quinn, as trustee of and under the last will and testament of Thomas Connell, deceased, a deed of conveyance containing a general warranty with the usual full covenants and proper form to convey the title of the premises.

The consideration of that conveyance was $3,000, more than $1,500 of which was paid by deducting and allowing that amount from the consideration for a valid mortgage on the premises made by Theodore D. Lyons and wife to one David Carll, to secure the payment of $1,500 and interest, with all accrued interest thereon from August 1, 1887; the balance of the consideration, being between fourteen and fifteen hundred dollars, was paid by Quinn in cash.

On or about August 17, 1888, John Quinn, as trustee of and under the last will and testament of Thomas Connell, deceased, executed and delivered to the Harlem Co-operative Building & Loan Association a mortgage to secure the sum of $3,000. Part of the money advanced on that mortgage was used in paying the last named mortgage for $1,500, which was thereupon on or about the 18th day of August, 1888, cancelled and discharged of record, and all or part of the balance thereof was used and expended by the mortgagee in improving the premises.

In making the purchase of the premises by Quinn, he used the money which formed a part of the assets of the estate of Connell in his hands as trustee.

Thereafter an action was commenced in the supreme court in Westchester county by the Harlem Co-operative Building & Loan Association against John Quinn, as trustee of and under the last will and testament of Thomas Connell, deceased, to foreclose the last named mortgage for $3,000.

In that action John Quinn, as trustee under the last will and testament of Connell, was duly served with the papers, and appeared by his attorney, but no other person was joined with him as a defendant.

John Quinn demurred to the complaint on the ground that there was a defect of parties defendant, in that the complaint was to foreclose a mortgage alleged to have been made by him, as trustee, and the beneficiaries having an interest in the estate were not made parties defendant. After argument on that demurrer, such proceedings were had that the judgment of foreclosure and sale was entered in that action about January 18, 1890, in the usual form, and the referee was appointed to sell the mortgaged premises, and out of the proceeds to pay the claim of the plaintiff with interest and costs.

Quinn appealed from that judgment to the general term of the supreme court, where the judgment was affirmed, with costs. The referee named in the judgment thereafter sold the premises at public auction, and on the sale The Harlem Cooperative Building & Loan Association became the purchaser of the property and, in pursuance of the sale, the referee delivered a deed of conveyance of the premises to the purchaser, the building association, on the 14th day of March, 1890. The proceedings in the foreclosure suit were regularly conducted.

The Harlem Co-operative Building & Loan Association conveyed the premises to Summerfield McLean, the plaintiff in this action, by deed of conveyance dated January 30,1892, which was in due form and has been regularly recorded.

On receiving his deed of conveyance the plaintiff, McLean, executed and delivered a purchase money mortgage to the grantor, the building association.

On the 30th day of January, 1892, the plaintiff and defendant made an agreement in writing, by which the plaintiff agreed to sell and convey the same premises to the defendant for $3,000, to be paid as follotos : $50 at the date of the agreement, $2,800 by assuming the payment of the purchase money mortgage upon the premises, and the balance, $150, at the time of the delivery of the deed of conveyance. The defendant paid $50 on account of the purchase money at the time of the execution of the contract, and thereafter incurred an expense of $100 in examining the title to the premises.

On or about February 15, 1892, the parties met at the place mentioned in the agreement, and the plaintiff made a tender of performance of his contract, which was, in all respects, sufficient. The defendant then refused to accept the title, or carry out the contract, and demanded a return of the money paid by him on account thereof, with $100 for expenses incurred in examination of the title, on the sole ground that the title of the plaintiff was not a good and sufficient title, and that the deed tendered by him could not, for that reason, convey the fee simple of the premises.

The questions submitted to the court are these:

First Is the plaintiff entitled to judgment against the defendant for the specific performance of the agreement to purchase the property on receiving a deed of conveyance therefor in the manner and form required by the contract, by paying the balance of the purchase money directed to be paid, and assuming the mortgage of $2,800.

Second. Is the defendant entitled to a judgment against the plaintiff for the return to him of the fifty dollars paid on the contract, with the further sum of $100, for expenses incurred in the examination of the title ?

Third. Are either of the parties to this submission entitled to any further or different relief against the other ?

In the third paragraph of his will Thomas Connell made a recitation that his personal property was insufficient for the payment of the legacies bequeathed, and gave to his executors, or such of them as should qualify, all his property, real and personal, in trust, to sell and dispose of the same, and apply the proceeds, with the avails of his personal property, to the payment of debts and legacies, and in the meantime to collect the rents and profits of the real property.

The will bestowed no power of reconversion or to execute mortgages, and no such power will be inferred, because it cannot become necessary to carry into execution the scheme of the will.

The money paid to Collins by Quinn upon the purchase of the property belonged to the estate of Connell, and was in the hands of Quinn as trustee, and such use of the funds was in contravention of his trust; yet the conveyance of Collins transferred the title to Quinn, either individually or as trustee, and for the purposes of this case the capacity in which he held the title is quite immaterial. But the fact that Quinn did not take title to the property under the will of his testator is quite material, for if he had so acquired the title no mortgage upon the property would have been valid, because no power to mortgage is contained in the will.

In relation to property purchased by Quinn, even though the purchase was made with trust funds, the same disability does not arise.

The conveyance to him invested him with the full legal title; although, as between him and his beneficiaries it was impressed with a trust which they could enforce, yet, as the title did not come to him under the will of his testator, his want of power to mortgage under that instrument did not apply and, therefore, the mortgage executed by him was a valid instrument.

The fact that the property did not belong to the testator at the time of his death is material in another respect. If it had so belonged to him, then Quinn would have no title except such as he acquired under the will as trustee, but now, so far as the title is concerned, the conveyance to him had the same effect as if it had been taken to him as an individual, and the will had no direct operation upon it.

The beneficiaries never acquired any direct estate or interest in the property. It never was subject to any of the trusts in the will, and, therefore, no one can dispute the conveyance to Quinn or his mortgage thereunder.

These conclusions receive support from the adjudicated cases which have arisen under purchases of real property by executors upon sales under judgments of foreclosure of mortgages belonging to their testator.

Such was the case of Lockman v. Reilly, 95 N. Y., 64, where the executors on foreclosure of their mortgage became the purchasers and received the conveyance in their name as executors, and it was held that, whether the deed was taken in the name of the executors as such, or in their individual names, the legal title was in them, and they might sell the same, although no power of sale was contained in the will.

The same question again received the attention of the court of appeals in the case of Haberman v. Baker, 128 N. Y., 253; 40 St. Rep., 104, and it was there held that when upon foreclosure of a mortgage belonging to the estate of a decedent the mortgaged premises are bought in by the personal representative, they take on the character of the mortgage indebtedness and so are as personal property in his hands, which he may dispose of and for which he is liable to account as such, even though the'decedent left a will which conferred no power upon his executors to sell real estate.

And further, that neither the heirs of the decedent nor his residuary devisees take any direct interest in the property.

The case of Valentine v. Belden, 20 Hun, 537, was an action like this, to compel ~a purchaser to take title. The plaintiff foreclosed a mortgage belonging to his intestate and became the purchaser at the sale under the judgment and took a deed in his own name individually. He then entered into a contract to sell and convey the premises to the defendant, who subsequently refused to consummate the agreement on the ground that the plaintiff, being the administrator of the estate, could not purchase the premises under the judgment and was, therefore, unable to convey a good title thereto.

The court held that the land thus purchased became a substitute for the bond and mortgage, and that the plaintiff acquired as perfect title to the land as he possessed to the bond and mortgage previous to the foreclosure, ana the conveyance which he tendered to the defendant would vest in the latter a perfect title to the premises.

In the case of Cook v. Ryan, 29 Hun, 249, the plaintiffs as executors brought an action to foreclose a mortgage owned by their testator. Pending the action the property was conveyed to the plaintiffs as executors, and the action was discontinued. Subsequently a money judgment was recovered against the plaintiffs as executors, and it was held that they had power to sell the property, although no power of sale was conferred by the will, and that a purchaser from them would acquire a good title.

The court there said in the course of -the opinion: “ They not only have power, but it is their duty to sell and dispose of the property, and to convert it into cash for the payment and discharge of liabilities of the estate of their testator, and their conveyance will constitute a perfect title."

That case received an approving quotation from the court of appeals in Lockman v. Reilly, supra.

In the action to foreclose the mortgage executed by Quinn to the building association, it was unnecessary to make any parties defendant except the mortgagor, because, as we have seen, the beneficiaries under the will took no interest in the property, and the title was vested in him alone.

Moreover, the former decision of this general term, is conclusive on that question.

It is, perhaps, unnecessary to say that our decision does not ju-tify the action of Quinn in making the purchase of this property with trust funds; on the contrary, such action was improper, and the persons entitled to the money used in making the purchase had the right, by appropriate proceedings, to have the property adjudged to belong to them, or they might require the trustee to account to them for the money so employed. But they could not have both. Baker v. Disbrow, 18 Hun, 29, affirmed in the court of appeals, 79 N. Y., 631. In that case it was said: “An improper investment is considered as against the trustee as equivalent to no investment, but in favor of the cestui que trust it gives an option to claim either the investment made or the respective amounts of the original fund, with interest, according as the one or the other may be most for his benefit."

It was the right of the beneficiaries, under the trusts in the Connell will, to have the entire estate converted into money, and until they did some affirmative act looking toward an election to accept an interest in land, their interest was in the fund as personal property, and the control of the trustee over the land and his duty to convert it into money and his power to make such conversion was full and complete.

In the case of Rogers v. Paterson, 4 Paige, 409, a trustee of a legacy for an infant feme covert, which was invested on bond and mortgage in the name of the trustee, took a release of the equity of redemption, thus acquiring the legal title. The cestui que trust died during her infancy, and whether the rights of the infant were those of an owner of land or of a beneficiary of a legacy, and also whether the property descended to her heirs-at-law or passed to her husband, were the questions presented, and it was held that it continued personalty and passed to her husband.

Our examination leads us to the conclusion that the plaintiff is entitled to judgment against the defendant for a specific performance of the contract.

Judgment for plaintiff, with costs.

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