author: Talcott, P. J.:

text:
    In the Matter of the Assignment of ANSON C. ALLEN and others composing the firm of ALLEN, STRAUSS & CO. Petition of ISAAC FENNO and others. Petition of W. W. PARSELLS, Assignee.

      Composition under the United States barilm'upt act — when it does not rehme a generad assignee from accounting to the creditors.

    When, after a debtor has made a general assignment for the benefit of his creditors, he is declared a bankrupt in involuntary proceedings instituted against him in a United States District Court, the mere fact that a composition with his creditors is thereafter made, as provided in the bankrupt act, does not relieve the assignee, acting under the general assignment from accounting to the creditors for the property received by him, unless the creditors have in some way relinquished their right to such an accounting, or the District Court has ordered the assignee to return the property to the bankrupt.
    Appeal from an order or decree of tbe County Court of Monroe county discharging William W. Parsells, as assignee of Allen, Strauss & Co., from liability as suck assignee, and authorizing him to release the assets to the assignors.

      Fanning & Williams, for the creditors, appellants.

      J. & Q. Van Voorhis, for Parsells, assignee, respondent.
   Talcott, P. J.:

This is an appeal from an order made under section 22 of chapter 466 of the Laws of 1877, as amended by chapter 318 of the Laws of 1878, entitled “ an act in relation to assignments of the estates of debtors for the benefit of creditors.”

On the 15th day of August, 1877, Allen, Strauss & Co., who had been engaged in the clothing business at Rochester, made a general assignment of all their estates to "W. W. Parsells for the benefit of their creditors, providing for an equal pro rata distribution to and among them without any preferences. Parsells accepted the trust, qualified and entered upon the discharge of his duties under the assignment. He has received and still holds assets as such assignee amounting to $8,528.89, less expenses and commissions. On the 21st of August, 1877, proceedings in involuntary bankruptcy were commenced against said Allen, Strauss & Co., apparently upon the ground that such assignment to Parsells was an act of bankruptcy, and they were decreed to be bankrupts by the District Court of the United States for the northern district of New York.

Prior to the 7th of January, 1878, the said Allen, Strauss & Co., filed their petition in the said District Court for the composition of their debts in the manner directed by the seventeenth section of the amended bankrupt act, approved June 22, 1874. No assignee was ever appointed in the said bankruptcy proceedings. But the fact of the said assignment to Parsells, it appears, was brought to the notice of the said Court in Bankruptcy by the petitioning creditors to the County Court in this case, who, as it appears, claimed in the Bankruptcy Court, that the assets assigned to Parsells, should be administered and applied by the said Parsells in pursuance of his trust.

Parsells did not appear in the Court in Bankruptcy and took no part in the proceedings in that court. Several meetings of the creditors were held under the said seventeenth section of the amended bankrupt law of 1874. But no proceedings were ever taken in the Bankruptcy Court or otherwise, to have the assignment to Parsells set aside, and the proposition of Allen, Strauss & Co., for a composition was finally accepted by the requisite number and amount in value of their creditors as prescribed in the said seventeenth section of the amended bankrupt act. The proposition of Allen, Strauss & Co., which is not specially set foi’th in the papers in this case, as is inferable from a statement contained in the papers, was to pay to all their creditors thirty per cent of their debts, which proposition is inferred to have been in the language of said seventeenth section of the amended act, that the composition proposed should be accepted by the creditors “ m satisfaction of the debts due to them from the debtor.” The proposition having been accepted by the requisite .number of the creditors in amount and value, was approved by the Court in Bankruptcy and duly recorded as provided by said seventeenth section, and the thirty per cent provided for in the composition was duly paid to the creditors, and the petitioning creditors in this case received and accepted the dividend of thirty per cent offered by the said proposed composition.

Afterwards certain of the creditors filed their petition in this matter addressed to the County Court of Monroe county, alleging that Parsells had never accounted in relation to his trust, either in the Bankruptcy Court or elsewhere, and praying that a citation be issued to the said Pai’sells as such assignee, to show cause why he should not account for the money which came to his hands as such assignee. On the return day of the citation to Parsells he appeared by attorney and filed -his petition addressed to the County Court of Monroe county, setting forth the history of the proceedings in bankruptcy and the making and acceptance of the composition, also setting forth a partial account, showing a balance of $7,935.89 in his hands as such assignee, and praying that he may be authorized to release to the assignors the assets so assigned, and that his account be settled and he be discharged from his said trust; whereupon a citation was issued to all parties interested in the assigned property as creditors or otherwise, which citation having been duly served, the petition of the creditors and of Parsells came on to be heard at the same time before the said County Court, which afterwards, on the 20th day of January, 1879, made an order, judgment and decree, whereby, after reciting in substance the foregoing facts, it ordered, adjudged and decreed that the said assignee, Parsells, be discharged from all further liability to the compounding creditors of the assignors, and that said assignee be authorized to release the assets in his hands to the said assignors. Prom which order and decree of the County Court the petitioning creditors appeal to this court.

This brings up a question as to the effect of a composition in bankruptcy, as provided for by the seventeenth section of the amended law, which cannot be solved by the express provisions of the section.

It is to be noticed, however, that the thing provided for is a “ composition ” of the debts of a bankrupt; and it is provided that the creditors may resolve “ that a composition proposed by the debtor shall be accepted in satisfaction of the debts due to them from the debtor.” The creditors therefore are presumed to have accepted the composition proposed by the debtor in “ satisfaction of the debts due to them from the cr editor s,” as the act makes no provision for an accej>tance of the proposition except in satisfaction of the debts. The statute, section 17 (ch. 390 of 1874), also contains the further provision, viz.: “ Every such composition shall, subject to priorities declared in said act, provide for a pro rata payment or satisfaction in money to the creditors of such debtor in proportion to the amount of their unsecured debts, or their debts in respect to which any such security shall have been duly surrendered and given up.” There is -nothing in- the case before us to show whether the Court in Bankruptcy considered and treated this assignment to Par-sells as a partial security to the creditors or not, or whether, in the proceedings in bankruptcy, the creditors proved their debts as provided by the bankrupt law or not, or if they did prove them, whether they proved for the whole face of the debt, or what deduction was made, if any, on account of the assigned property.

Section 5075 of the bankrupt law (U. S. Rev. Stat.) provides as follows, viz.: “ "When a creditor has a mortgage or pledge of real or personal property of the bankrupt, or a lien thereon for securing the payment of a debt, owing to him from the bankrupt, he shall be admitted as a creditor only for the balance of the debt after deducting the value of such property to be ascertained,” etc.

The priorities specified in that part of section 17 above quoted are supposed to be those specially provided for in section 5101 (U. S. Rev. Stat.), and, therefore, do not embrace, so far as appears, any of the debts due to the petitioning creditors in this case. But the question still remains whether by virtue of the assignment creating a trust for their benefit, the creditors did not have a lien upon the estate assigned to Parsells for the security of their debts pro tanto.

Equitable liens are supposed to be as much within the statute as legal liens, unless there is some prohibition in the State laws which renders them invalid. (Parker v. Muggridge, 2 Story, 334; Fletcher v. Morey, id., 555; Peck v. Jenness, 7 How., 612; Davis, Assignee, etc., 2 Bank. Reg., 392 [1st ed., 125].)

The assignment to Parsells was not void under the laws of the State per se (Haas v. O’Brien, 66 N. Y., 597), whether it would have been held to be void in an action commenced by an assignee in bankruptcy to have it set aside, or could have been decreed to be void by any proceeding in the Bankrupt Court on the ground that such assignment was in hostility to the bankrupt law and tended to defeat that law, because providing for the administration of the assets by a different agency from that prescribed by the bankrupt law. (See Mayer et al. v. Hellman, 91 U. S. [1 Otto], 496.)

If a composition under the bankrupt law has been duly ratified, it confines the creditor to his security and discharges the debtor from liability. (In re Lytle, 14 Natl. Bank Reg., 457.) But it has been held in many cases that the creditor can pursue any collateral remedies for the collection of his debt. (Haas v. O’Brien, 66 N. Y., 597; Thrasher v. Bentley, 59 N. Y., 649.)

In a proceeding before the New York Common Pleas, in a case where the debtor had made a composition in bankruptcy, an assignee was, on the petition of creditors, ordered to account, notwithstanding such composition, it not appearing that he had delivered the assigned estate to the assignors, with the approval of the Bankrupt Court. (In the Matter of Herman, 53 How. Pr. R., 377.) As it does not appear whether the proposition for a composition embraced as a part of it that the security which the creditors already held by and under the assignment to Parsells should be relinquished, and does not appear whether the petitioning creditors in proving their debts made any deduction from their face on account of any security they had by virtue of the assignment to. Parsells, and especially as it does not appear whether the Bankrupt Court in approving of the composition took into consideration the amount to be realized from the assigned property, or estimated that as a part of the thirty per cent which was to be paid by the composition and was agreed to be accepted in satisfaction, or whether the proposition for a composition provided that the security to which the creditors were equitably entitled under the assignment should be relinquished, and as it does not appear that the Bankrupt Court has authorized Parsells to deliver back the assigned property to the assignors, we think the County Court erred in refusing the application of the petitioning creditors, and releasing the assignee Parsells from his liability to account to his cestui que i/rttsts, and in authorizing him to deliver back to the assignors the assigned estate. In other words, we think the right of the creditors to an accounting by the assignee cannot be divested by the mere fact of a composition in bankruptcy, unless that right-is in some way relinquished by the creditors, or shall be divested by the order of the Court in Bankruptcy, as when a composition has been made and accepted and the -terms of- the composition have been complied with, the Bankruptcy Court will order the property in the hands of the assignee in bankruptcy to be surrendered to the bankrupt.

The order, judgment and decree of the County Court of Monroe county appealed from is reversed, with costs to the appellants to be paid out of the trust funds, and the assignee W. W. Parsells is ordered to account as prayed for in the petition in behalf of Fenno and others, creditors of Allen, Strauss & Co., in the County Court, to which court the proceedings are remitted.

Present — Talcott, P. J., Smith and Hardin, JJ

Ordered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE BENEDICT, Appellant, v. THE BOARD OF SUPERVISORS OF ONEIDA COUNTY, Respondent.

      Claim, against a county for the costs of a hecmng ■before the governor to remove a county officer — the power of the hom'd of supervisor's to audit it — power of the said hoard to submit a claim tc m'hit/raUon — 1874, chapter 323, at page 388.
    Under tie provision contained in chapter 323 of 1874, that in all proceedings before the governor for the removal of any county officer upon charges preferred against him, all the costs and expenses thereof shall he a county charge upon such county, and shall he audited and allowed hy the hoard of supervisors thereof, the hoard of supervisors has power, when a claim is presented to it thereunder, to examine the items thereof and determine whether or not such costs and expenses were reasonable, and whether or not they were necessarily and properly incurred ; and as to these matters the court will not control the discretion of the hoard by a writ of mandamus.

      Semble, that the hoard of supervisors has power to submit to arbitration the validity and reasonableness of a claim made against the county.
    Appeal from a judgment in favor of the defendant, entered upon an order overruling a demurrer interposed by the relator to a return to an alternative writ of mandamus.

      Ward Hunt, Jr., for the appellant.

      Johnson & Prescott, for the respondent.
   Talcott, P. J.:

The appeal in this case is from a judgment against the plaintiffs on a demurrer to a return, and a further and supplemental return, to an alternative writ of 'mandamus, requiring that the defendant do forthwith audit and allow the bill of costs and expenses incurred and paid by the relator, late sheriff of Oneida county, in certain proceedings taken before the governor of the State for the removal of the relator from the office of sheriff of Oneida county, amounting to the sum of $3,523.29, and the interest thereon from the time the same should have been paid, amounting in all to the sum of $3,774.67. An itemized bill and statement of accounts thereof had been presented to them at their (then) present session for audit and allowance, and the writ required that the amount of such costs and expenses when so audited and allowed by the said defendant, the defendant should cause to be included in the next annual assessment roll, and that the defendant do assess, levy and collect the amount so to be audited and allowed by the defendant as other county charges are levied and collected, to the end that the same might be paid over to the said relator as the law provides, or that the defendant show cause to the contrary thereof before the Supreme Court at a Special Term thereof, to be held at the court house in Utica on the 14th day of March, 1878. Motions to quash and supersede the writ were made on the return day but denied, but after the return the writ was modified as follows: “ That the board of supervisors may audit and allow tlie demand of tlie relator in tlie manner and to the amount claimed by the said board to be the legal audit and allowance of said claim, and that upon such action being taken, the said board of supervisors may finally adjourn.” After the writ was so modified, the claim of the relator was duly audited and allowed at $2,500, and the amount paid to the relator, who received the same, and made protest, and the attorneys for the respective parties made a stipulation that such payment and receipt should not be considered prejudicial to the right of the relator to recover the balance of his account with interest, provided it should be decided that it was the duty of the board to audit and allow the whole of said account. The relator then demurred to the return and supplemental return, and the issue thus jbined came on to be tried at a Special Term, held in Etica on the 9th day of April, 1878, when the relator’s demurrer was overruled and a peremptory writ denied, with costs against the relator, and judgment was ordered to that effect, which was entered on the 16th of April, 1879, and from that judgment the relator appeals.

The board of supervisors in their return, amongst other things, state that they admit that a certain claim or bill was made and presented to the board by the relator substantially as alleged in the alternative writ; but they deny that the said board ever refused to audit or allow said bill or any part thereof, but on the contrary they aver that the said bill or claim was duly received by the said board, and was duly referred to a due and proper committee, of which the relator was duly notified and was cognizant; that the committee met to deliberate in respect thereof, and not being fully satisfied as to some of the items thereof, the chairman of said committee called on the relator and informed him that the committee were not unanimous in regard to some of the items, but that the committee proposed to report to the board that in the opinion of the committee a large portion of the bill was allowable, but as to some of the items they were not fully satisfied, and if he, the relator, would consent they would report a suggestion that the matter shall be referred to some competent tribunal to examine and report for the further action of the board. The relator said he was willing that it take that course, and thereupon, among other names, was suggested the name of B. J. Beach, a counselor-at-law residing at Rome, in said county of Oneida, as a suitable referee. The relator stated that he would be satisfied with Mr. Beach, and it was then and there agreed that the matter should so be referred to the said Beach, and thereupon the said committee made their report to the board of supervisors. The report of the committee is set out at length in the return, and was in substance that, under the statute, the committee were of opinion that the county was liable for a portion of the charges contained in the bill, but that the bill contains items for attorneys fees amounting in the aggregate to $3,226 and interest, which is exorbitant and not a legal charge, and the committee recommended, in order to accomplish a speedy and just settlement of the same, and to avoid further cost and litigation, that the whole subject-matter be referred to a competent tribunal to investigate and determine at the earliest possible day to what extent and in what manner the county may be liable under the law, for the further action of this board. The return then further states in substance that said report of the committee was duly drawn and submitted to Mr. Benedict, who in looking at it said : “ Do you mean by that report to say that the whole $3,233 is not a legal charge ?” To which the chairman of the said committee replied: “ No; only what may be held to be exorbitant.” The relator then said in substance : With that view of it I am satisfied,” and it was then and there agreed that the report should be submitted to the board. Thereupon the report of the committee, duly signed by the eight members thereof, was duly submitted to the board of supervisors, and on motion of one of the supervisors it was ordered that the subject be referred to Mr. B. J. Beach to hear and report. The relator, who was present at the meeting of the board when the resolution to refer the matter to Beach was adopted, then said he wanted to get an early hearing, and said he would go up to Rome and leave with Mr. Beach what papers he wanted him (Beach) to have, and again stated that he did not want any delay by the committee, and the relator did leave his papers with Beach afterwards. Within a short time the relator appeared before the board and suggested that as there might be some question as to his (relator’s) right to appear before the referee, he desired the board to pass a resolution authorizing him to appear, and at the request of the relator the board did pass a resolution to that effect; that afterwards, and on Monday the 7th of January, 1878, the relator and the committee of the board of supervisors did appear before said Beach by their respective counsel, and the questions then presented as to how far and for what amount the county was liable on the claim of the relator were fully discussed. Mr. Beach immediately prepared a report, which was delivered to the chairman of the committee, which is set out at full length in the return, and in the said report the said Beach stated as his conclusion that expenses incurred in prosecuting or defending against such proceedings (meaning the proceedings taken before the Governor to remove the relator from office of sheriff of the county of Oneida), are to be regarded as a legal county debt, to be examined and audited and paid like other claims against the county charged by law, but the board of supervisors is to pass upon the claims as in other cases. Unreasonable or unnecessary expenses are not to be allowed, because they have been incurred, and the said referee reported as the conclusion of his opinion of the matter that the necessary and reasonable expenses of the relator, including counsel fees under the law as it stands, are legitimate claims against the county, and should be audited and allowed to him as such. The return further states that on Friday, the fourth of January, upon the statement made by one of the supervisors, that it was arranged that the matter of the relator’s claim should be heard on Monday, the seventh, wdio suggested an adjournment until Tuesday, the eighth of January, when the matter could be finally disposed of, and with that view the board adjourned until Tuesday, the 8th of January, 1878. But before this time and before the report of Mr. Beach was delivered to the board, and whilst the said board of supervisors was only waiting for said report of Mr. Beach, the referee agreed upon by both parties to decide the legal question which had been submitted to him as to what principle ought to be adopted by the board in auditing and allowing the claim of the relator, the writ of alternative mandamus was served upon the chairman of the board, and the return further states that the board of supervisors proceeded in good faith in respect to such claim, and has always intended to act in a fair and legal manner upon said claim, and but for the service of the said writ the said claim would have been fairly and legally audited and allowed. The demurrer admits the truth of all the material allegations of the return. It is difficult to see why the agreement of the parties to refer to Mr. Beach the question whether the supervisors were bound to accept the claim of the relator, or whether they could lawfully audit and allow it, as is customary with other county charges, exercising a quasi discretion concerning the allowance of particular items of the relator’s claim, did not amount to a submission of that question by parol to the arbitration of Mr. Beach. That it was the intent and understanding of the parties that that particular question should be submitted to Mr. Beach as a “ referee,” cannot be doubted; and whether called a “ referee ” or “ arbitrator ” is immaterial. One item or subject constituting a part of matters of difference between parties may be submitted to arbitration by itself. A declaration of the parties to a submission that it should not be deemed a submission to arbitration is ineffectual. (Merritt v. Thompson, 27 N. Y., 225.) There does not appear to have been any attempt on the part of the relator to revoke the submission. He appeared by counsel.and argued his view of the duties of the board of supervisors under the act, and after the referee had decided against him undertook to revoke the submission and treat it as a nullity. The general rule is, where there is capacity to contract and liability to pay, there is power to arbitrate. A municipal corporation may submit to arbitration by resolution of the council. (Brady v. The Mayor of Brooklyn, 1 Barb., 584.)

The duties of a common council and a board of supervisors in respect to the auditing of accounts are quite similar. At all events it was an agreement which must be taken to have authorized the board to have audited and allowed the account in the manner indicated by the opinion of Mr. Beach, and there can be no foundation for the belief that the board was contumacious or designedly refused to obey the statute. But, moreover, we are of the opinion that under the statute the board of supervisors was not bound to accept the claim of the relator and audit and allow it at its face, without any regard to the question whether the services and costs aiid expenses charged for, were reasonable or necessarily or properly incurred, in the defense of the relator against the charges preferred befoi’e the governor or not. The full history of that act is given in the opinion by Mr. Beach, which is contained in the return of the writ of alternative mamdamus. The act is to be found in the Session Laws of 1874, at page 388, chapter 323, and simply provides that in all proceedings before the governor for the removal of any county officer upon charges preferred against him, all the expenses thereof, including the taking and printing of the testimony, shall be a county charge upon such county, and shall be audited and allowed by the board of supervisors of such county, and be included in their next annual assessment roll, etc. “We think the ‘expenses thereof mentioned in the statute are to be audited and allowed as other county charges are to be audited and allowed, and the expenses to be paid by the counties to which the assailed officers belong, means only the legitimate and fair expenses of the proceeding, and not any extravagant amount which the officer may have paid or agreed to pay either for counsel fees or other purposes.” The relator’s claim in this case embraced sundry items which were not a pai’t of the legitimate expenses of making a defense against the charges, as for instance, the relator’s bill or claim in this case contained a charge of seventy-five dollars for publication in a daily newspaper of the “ briefs ” of counsel in regard to the matter. This was unnecessary, and published not as a necessary part of the defense, but for personal ends. The claim also contained many other items, as to which it was at least questionable whether they constituted any part of the necessary or proper costs and expenses of the defense of the relator before the governor. To “ audit ” is to examine and adjust an account or accounts. The term “ auditor ” is defined as “ a person authorized to examine an account or accounts, compare the charges with the vouchers, examine parties and witnesses, allow or regect charges, and state the balance.” Such are the duties which the board of supervisors, by the aid of their committees, are expected and required to perform in regard to all claims made by law county charges, when no specific sum is stated in some statute requiring the payment by the county of that specific sum, or in a case where the charges are definitely fixed by some law, and where after ascerta/ming the fact, nothing remains but simple ministerial or arithmetical duties to be performed by the auditing tribunal. The office of a mandamus is to compel an inferior tribunal to act in pursuance of its duties, not to compel it to act in a particular manner. (The People v. Stocking, 50 Barb., 573; Judges of Oneida Com. Pleas v. The People ex rel. Savage, 18 Wend., 79; Howland v. Eldridge, 43 N. Y., 457; Wood on Mandamus, 94, 95.)

The relator’s counsel, who claims, as we understand, in effect, that the board of supervisors of a county whose office is sought to be removed by proceedings before the Governor, is bound to pay whatever amount the officer may have paid or incurred, not only as the legitimate expenses of defending himself against the charges made against him, but whatever he may have paid or incurred and which he claims as such legitimate expenses, and have no power to audit and determine what are the proper and legitimate expenses of such defense; and to sustain this position he principally relies on the ease of The People ex rel. The Otsego County Bank v. Supervisors of Otsego Co. (51 N. Y., 401). In that case it was held that the act (ch. 938 of the Laws of 1867) authorizing the board of supervisors to hear and determine certain claims for illegal assessments on United States'securities, and to repay the amount of taxes collected on such securities is mandatory; and that upon the presentation of a claim made thereunder the only questions to be determined by the board of supervisors in reference to which it has any discretion are, whether the claimant has such a claim, and if so, the amount thereof; and where the fact of the existence of the claim is undisputed the board has no authority to reject it as illegal, and it can be compelled by mandmrms to exercise its discretion upon the facts and the amount of the allowance. The facts wei’e not disputed, but the supervisors adopted a resolution that the claim was im/oaMd / and it was held that a ma/ndarrms directing the defendant to hear the claims of the relator, and to determine whether -it had paid the taxes as stated, and if so to allow the amount thereof and cause the sum to be collected as prescribed, was proper. The opinion in that case says: “ They have no right to reject a claim as illegal which the law plainly requires them to allow. * * * Where the supervisors refuse to audit and allow a legal claim on the ground that it is illegal, they do not exercise the discretion which the law vests in them. * * * Whether these facts were true or not, the board of supervisors was bound to determine; and if it found the facts to be true, then it had no discretion left and was bound to cause the money paid to be refunded. * * * They do not report that they have examined and. inquired into the facts, or. that any of the statements contained in the affidavit of the claimant were untrue. They simply report that they have examined the claims, and that it would be unjust for the county and towns to refund the taxes. Then the board of supervisors adopted a resolution reported by the committee that the claim, was invalid. * * * The claim was evidently rejected simply because it was unjust and illegal. The legislature had determined- that the claim for taxes illegally exacted, as mentioned in the act, was both just and legal, and the only questions to be determined by the board of supervisors in reference to which it had any discretion, were whether the claimant had such claims and the amount of them.” The counsel for the relator also refers to the case of the People ex rel. Curry v. Green et al. (64 Barb., 493), constituting the l>oard of apportionment and audit of the city of New Pork, in which it was held that the board of audit cannot be compelled by mandamus to allow a claim against the county which had been determined and allowed by the-board of supervisors. But that the board of audit had a right to review the action of the board of supervisors, and allow or disallow according to the facts. This case involved the construction of a particular statute and has no bearing on the case at bar. He also refers to the ease of Lower v. United States ex rel., etc. (1 Otto, 536). In that case a statute of Illinois required a board of town auditors to audit charges, including judgments against the town, in order that provision for paying them might, be made by taxation. It was held that when a judgmeno against the town was rendered by a court having jurisdiction of the parties and subject-matter, auditing is a mere ministerial act, not involving the exercise of judicial discretion, the performance of which can be compelled by mandamus.

So in the other cases cited by the counsel for the relator (People ex. rel. Johnson v. Supervisors of Delaware, 45 N. Y., 196), it was held “ that when an account is presented of services which are legally chargeable to the county, it is the duty of the board of supervisors to audit and allow it. But how much shall be allowed rests in its discretion in subserviency to law. Ve think these precedents cited in behalf of the relator so far from establishing his right to a peremptory mandamus, only tend to confirm the views stated by Mr. Beach in his opinion, and the opinion delivered at the Special Term. When the law has declared that certain claims shall be a debt of the county, then the supervisors cannot reject the claims upon the idea that they are not valid and legal claims against the county; but if they admit all the facts upon which the claims are legally founded, they must audit and allow them; but where any of the facts material to the existence of the claim are disputed, then the point arises at which their judicial discretion is called into exercise and they cannot be compelled by mandamus to decide this question in any particular manner. They were obliged to decide as a matter of judicial discretion what the legitimate costs and expenses of the relator’s defence in fact a/nd la/uo were, and having decided this question, they cannot, by ma/ndamms, be compelled to reverse the decision which they have made. The judgment is affirmed, with costs of the appeal to be paid by the relator.

Present — Talcott, P. J., Smith and Hardin, JJ.

Judgment affirmed, with costs to be paid by the relator.


text:
    DAVID DRAKE, Respondent, v. MILO SHURTLIFF, JOHN R. MERRICK and RUSSELL WASHBURN, Appellants.

      Payment of torn — when a payment made in pursuance of an order of a county judge, under chapter 861 of 1867, is deemed a rolunta/ry one.

    The plaintiff having refused to pay a tax levied up on the amount of personal property for which he was assessed, on the ground that he did not reside in the town in which the assessment was made, proceedings were instituted before the county judge, in pursuance of chapter 861 of 1867, in which the judge made the usual order of reference in supplementary proceedings, and enjoined the plaintiff “ from selling, assigning, incumbering, or in any manner interfering with his property until the further order of the court.” Upon the coming in of the report an order was made directing the plaintiff to pay to the supervisor, who had instituted the proceedings, the amount of the tax, with the costs of the proceedings. The plaintiff, having paid the amount as directed by the order, brought this action to recover the samé from the assessors on the ground that they had acted without jurisdiction in making the assessment:

      Held, that the payment was a voluntary one, and that the action could not be maintained.

      Bailey v. Buell (50 FT. Y., 662) followed.

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new-trial made upon the minutes of the justice before whom the action was tried.

      P. C. Williams, for the appellants.

      Porter & Walts, for the respondent.
   Talcott, P. J.:

In phis ease the plaintiff sued the defendants as assessors of the town of Philadelphia, in Jefferson county, for the year 1875, for illegally assessing him on the tax roll of that town for the year 1875, whereas as he alleges, and the jury has found, he was not on the 1st of July, 1875, a resident and inhabitant of the town of Philadelphia, but was on the said 1st day of July, 1875, an inhabitant. and resident of the town of Le Roy, an adjoining town in said county. The assessment complained of was upon personal property to the amount of $12,000, oh which the tax in question was $127.18, and the complaint avers that the plaintiff, by reason of the said illegal act of the defendants, was compelled to and did on the 31st- of December, 1877, pay the said tax with interest thereon and thirty dollars costs, and that he has sustained damage by reason of the said illegal act to the sum of $169.98, with interest from the day of payment. The personal tax not being paid, George E. Tucker, supervisor of the town of Philadelphia, instituted proceedings under chapter .361 of thé Laws of 1867 (Session Laws of 1867, vol. 1, p. 817), before the Hon. A. H. Sawyer, county judge of Jefferson county, who issued an order dated March 9, 1876, requiring the plaintiff to appear before a referee and be examined on oath concerning his property, and evidence was taken before the said referee. It was then conceded that the plaintiff had the ability to pay the tax, but it would seem that before the referee the plaintiff sought to and did introduce proofs touching the question whether he was on the 1st day of July, 1875, a resident and inhabitant of the said town of Philadelphia, and thereupon denied the power and jurisdiction of the assessors to assess him for personal property in said town. The order made by the county judge on the 9th day of March, 1876, followed the usual form of order ia supplementary proceedings, and restrained the said David Drake, and enjoined him from selling, assigning, incumbering or in any manner interfering with his property until the further order of the cou/rt.”

On the 21st of December, 1877, the referee having made his return of the evidence taken before him, the said county judge, after hearing the counsel for the respective parties, made a further order as follows: That said David Drake pay to the said George E. Tucker, supervisor, or to his attorney, the sum of $139.98, that being the amount of his tax with the interest thereon, and that he also pay the further sum of thirty dollars as the costs of these proceedings as fixed by me, and I further order that such payment be made within ten days after the service of a copy of this order on him.” "Whereupon the said plaintiff paid the amount specified in the said order. On the trial of this case the defendants requested the court to charge that “ upon the evidence in the case, as to the manner and circumstances under which the tax was paid, such payment was voluntary, and could not be recovered back in this action.”

The court declined so to hold or charge, and the defendant duly excepted.

We cannot see why the injunction against the plaintiff, restraining him from any disposition of or interference with his property which the county judge had due authority to make under the act of 1867 before referred to, did not operate as a duress of goods and to a certain extent as a duress of the personal volition of the plaintiff, therefore rendering the payment involuntary within the rule as to voluntary payments. But we must yield to the authority of the court of last resort. This court held and decided in a case of precisely this description that such a payment was not voluntary, but that the party who had been so illegally assessed, and against whom proceedings had been commenced mder the act of 1867, and who had been ordered by the county judge of Ontario county to pay the tax or an execution would issue against him for the amount, and who thereupon paid the tax ; that such payment was not in any just and legal sense a voluntary payment of the tax, and that the person so paying might maintain an action of this description notwithstanding such payment, and recover of the assessors who had assessed him as a resident and inhabitant of a town in which he did not reside, the amount which he had been compelled to pay in consequence of their illegal act in proceeding to assess him without jurisdiction.” (Bailey v. Buell, 59 Barb., 158.)

But our judgment in that case was reversed by the Court of Appeals, upon the ground that the payment was voluntary, and could not be recovered back notwithstanding that the assessors had in fact no jurisdiction to assess the plaintiff in that case. A memorandum of the case on the appeal to the Court of Appeals is to be found in 50 New York, at page 662; but a full report of the opinion in the case, as delivered in the Court of Appeals and certified by the clerk and under the seal of that court, is contained in the printed points of the defendant in this case. In the opinion in the case in the Court of Appeals it is stated that the order for issuing an execution against the taxpayer in that.case was a nullity, not being authorized by the statute in reference to supplementary proceedings. But that was not the ground upon which the decision was placed. The real grounds of the decision were summed up in the fourth proposition of the opinion, as follows, viz.:

4. The order of the county judge did not authorize the seizure of the person or property of the plaintiff; at most it was in the nature of a judgment declaring the liability of the plaintiff in case of his refusal or neglect to pay the tax, but, without further action, it was nugatory. The court then proceeds to say that the order that an execution issue was a nullity not authorized by the statute; that the judge could only order the application of moneys or property in the hands of the plaintiff to the payment of the tax, or appoint a receiver of property or debts not in his possession and thus incapable of direct application to the purpose named. It is sufficient to say that neither of these things was done in the present case, and we see no essential distinction between the present case and that of Bailey v. Buell (supra), and we, of course, must yield to the superior wisdom of the court of last resort, and hold that this payment of the tax in the case at bar was a voluntary payment which cannot in an action against the assessors be recovered back for that reason.

It is suggested by the counsel for the plaintiff that this action is to recover damages by reason of an unlawful assessment, and not for money received by or paid to the defendants and held by them for the plaintiff’s use. The same position was taken by the counsel for the plaintiff in the case of Bailey v. Buell, and is thus treated by Justice Johnson, in his opinion in this court, at page 166 : In all actions, in the nature of actions on the case for a wrong, the question is, whether the plaintiff has been injured by the wrong complained of. But, if the principle of voluntary payment could be held to apply in actions of this kind, the cause of which is an alleged illegal assessment, it could not affect this case. The payment here was not in any just or legal sense a voluntary payment.”

The judgment and order denying a new trial on the minutes are reversed, and a new trial ordered, costs to abide the event.

Present — Taloott, P. J., Smith and ITardin, JJ.

So ordered.


author: Smith, J.:

text:
    JOHN EDWARDS, Appellant, v. THE CITY OF WATERTOWN, Respondent.

      Common council — it may delegate to a committee the power to furnish rooms for its use — it may appoint the recorder of the city one of such a committee.

    Where the common council of a city has decided to lease certain rooms for city purposes, it may confer upon a committee appointed by it the power to arrange the rooms and procure the necessary furniture therefor.
    It may appoint the recorder of the city one of the members of such a committee, although he is not a member of the common council.
    Appeal from a judgment, entered on the report of a referee dismissing the complaint.

      Anson B. Moore, for the appellant.

      Porter & Walts, for the respondent.
   Smith, J.:

The action was brought to recover for work and labor performed, materials furnished and money paid out for the defendant, a municipal corporation, in fitting up certain rooms leased by tbe defendant, and furnishing them with fixtures and furniture for the use of the defendant’s officers.

The referee found that at a regular meeting of the common council of the defendant, held on the 22d September, 1874, it was resolved to take a lease of the rooms in question for five years, with a privilege of ten years if desired, at a rent of $400 a year ; and at the same meeting the mayor of the city, as the presiding officer of the common council, appointed a committee consisting of three members of the common council and the recorder of the city, tó arrange the rooms and procure the necessary furniture.

The action of the mayor was approved by the common council. The referee also found that said committee after their appointment met informally and requested the plaintiff to do the work and furnish the materials, for which the action is brought. The plaintiff was the agent of the owners of the rooms, and as such had negotiated with the defendant’s officers for the lease of the rooms. The referee found that the committee promised the plaintiff that he should be paid for such services and materials, aside from the $400 a year which his principals were to receive for the i rent of the rooms. The plaintiff thereupon caused the work to be done and the materials to be furnished, and the city officers took possession of the rooms so furnished, in the latter part of November, 1874. On the 9th December, 1874, the common council held a meeting in said rooms and by resolution accepted them as fitted up by the plaintiff, and authorized a lease to be taken in accordance with the terms of the previous resolution, and such lease was afterwards executed on the part of the owners and lessors by the plaintiff as their agent. The referee found that the fact that the committee had promised the plaintiff compensation aside from the contemplated rent of $400 a year, was not made known to the common council until after the execution of the lease. The referee held, among other conclusions of law, that the committee had no power to bind the defendant by their contract, and that the plaintiff by his dealings with the defendant on behalf of his principals, is estopped from recovering upon his claim.

It is contended in behalf of the defendant that the common council could not delegate to a committee power to procure the necessary furniture for the rooms; that the power involved the exercise of discretion as to the cost especially, and could not be delegated. It is a plain principle that public powers or trusts devolved by law upon the governing body of a municipal corporation, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others. But it is not clear that the principle applies to this case. The distinction is between acts quasi judicial or involving discretion, and those which are merely ministerial. The cases cited by the respondent’s counsel are of the former class. In most of them the governing body undertook to delegate a public trust by a general grant of power. Thus in Day v. Green (4 Cush., 433) the aldermen of a city delegated power to the mayor to grant licenses to move buildings through the streets; and in Thompson v. Schermerhorn (6 N. Y., 92) the common council of New York, being authorized to pave, level and flag the streets of the city under the superintendence of the city superintendent, made an ordinance directing the work to be done under the direction of its committee on roads. Birdsall v. Clark (73 N. Y., 73); In Matter of Petition of Emigrants’ Savings Bank (75 id., 388), and People ex rel. Board of Charities, etc., v. Davis (15 Hun, 209) are of the like nature. To apply the doctrine of those and numerous other concurrent decisions to the present case would be to hold that it was necessary for the common council, as a body, to buy or contract for the making of each article of furniture for the rooms in question, in order to bind the defendant. We do not think the case is within the doctrine above stated. The power conferred was limited to the procuring of necessary ” furniture for the rooms in question. In a certain sense, the purchase of the most common and trivial article involves the exercise of judgment and discretion as to cost, at least. But it will hardly be claimed that the common council could not authorize one of its attendants to buy a broom to sweep the council chamber, or its clerk to purchase necessary stationery for the use of its members. To question such authority would be to deny, as was said by Cowen, J., in Com. Bank of Lake Erie v. Norton (1 Hill, 505), “ that the general agent of a mercantile firm could retain a carpenter to make a box, or a cooper to make a cask.” No question is made by the defendant as to the furniture procured being necessary, none as to its being suitable and well made, none as to its cost or its value. But it is claimed that its cost was to be included in the rent. A sufficient answer to that position is, that when the common council voted to rent the rooms of the plaintiff’s agents at $400 a year, they at the same time appointed a committee to arrange the rooms and procure the necessary furniture; that implies very clearly that the common council understood that they were to furnish the rooms at their own expense in addition to paying the rent. The committee was appointed, not to superintend the furnishing of the rooms, but to procure the furniture. What need of that action, if it was to be procured by the lessors % In this view of the case the acceptance of the furnished rooms by the common council was a ratification of the action of the committee.

It is urged by the respondent’s counsel that the common council had no authority to appoint upon the committee a person not a member of their body. The position is untenable.

It is also insisted that the committee did not meet, and all its-members did not act, but confided the matter mainly to one of their number. The referee finds, on the contrary, that the committee met and requested the plaintiff to do the work. As the defendant does not appeal it cannot question the sufficiency of the evidence to support the finding.

If the views above stated are correct the plaintiff is*not estopped from recovering by his action respecting the lease. The defendant’s committee well knew that the furniture was provided by the plaintiff and not by his principals, and that it was to be paid for, aside from the rent of the rooms. And their knowledge on that subject is to be treated as the knowledge of their principal.

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

Talcott, P. J., and Hardin, J., concurred.

Judgment reversed and new trial ordered before another referee, costs to abide the event.


text:
    LYDIA EYSAMAN, Respondent, v. JOSEPH H. EYSAMAN, Appellant.

      Reservation — it cannot operate in favor of a stranger to the deed — A covenant to stand, seized was not abolished by the Revised Statutes — When an agreement to convey land will be enforced by the court — Rcvrol evidence — admissible to show the relationship between grantor and grantee — but not to cut down a life estate created by a deed — Notice to quit — when unnecessary.

    On March 34, 1874, William Eysaman, the plaintiff’s husband, executed and delivered to the defendant a deed, purporting to be made in pursuance of a consideration of $1,000, between “ William Eysaman and Lydia, his wife, of the first part, and Joseph H. Eysaman of the second part,” whereby he granted to the defendant certain land. Immediately after the description of the land were added the following words : “The parties of the first part reserve to themselves the right of controlling said land and all the benefits of said land ■during their natural lives,” and after a covenant of quiet and peaceable possession were added the words, “ with the reservation therein claimed.” The plaintiff neither executed nor acknowledged the deed. Upon the trial of an action of ejectment, brought by the plaintiff after the death of her husband, to recover possession of the land, it was shown by parol that no money consideration was paid, and that the defendant was a nephew of the plaintiff’s husband.

      Held, that the clause reserving to the grantors the right of controlling the lands and all the benefits thereof, could not operate as a reservation in favor of the plaintiff, because she was not a party to the deed.
    That as the deed contained all the elements essential to constitute a covenant to stand seized on the part of the grantee, and as the Revised Statutes had not abolished that mode of conveying land, it operated to create a use for life in favor of the plaintiff, which use was by virtue of the Statute of Uses (1 R. S., 737, § 47, and 1 R. S., 738, § 49), transformed into an estate for life in the land.
    That even if this were not so, the clause would be regarded as an agreement by the grantee to convey a life estate to the plaintiff, enforceable in a court of equity, and which might be enforced in this action by adjudging the title to be in the plaintiff and awarding to her the possession, under the rule that equity will regard that as done which ought to be done.
    That parol proof of the relationship existing between the grantor and the defendant, was properly admitted to show that the requisite consideration existed to support the deed.
    The defendant offered to show by parol evidence that, as part of the consideration of the deed, it was agreed that he should take immediate possession of the land and have th'e use and profits thereof, and support and maintain the grantor and his wife in his, the defendant’s, family and furnish to them certain rooms in the house upon the land conveyed, for their exclusive occupancy, and that he had performed his agreement.

      Held, that the evidence was properly rejected, as it could not have the effect to extinguish the life estate of the grantor, much less that of his wife, who was not a party to the agreement.
    When the relation of landlord and tenant does not exist between the parties, and the only issue between them is as to the title, no demand or notice to quit need be made or given before commencing an action of ejectment.
    Appeal from a judgment in favor of tbe plaintiff, entered on tbe report of a referee. Tbe action was one of ejectment. On 24th March, 1874, William Eysaman, tbe busband of tbe plaintiff, was seized in fee of tbe lands, in suit, and on that day be executed and delivered to tbe defendant a conveyance of said lands, purporting to be made between “William Eysaman and Lydia bis wife, of tbe first part, and Joseph H. Eysaman of tbe second part ” (but not executed by tbe said Lydia), whereby be granted tbe,said land to the defendant, describing tbe same. Immediately after tbe description, tbe conveyance contained tbe following words, namely: “ The parties of tbe first part reserve to themselves tbe right of controlling said land and all tbe benefits of said land during their natural lives.” Tbe conveyance contained a covenant of warranty of quiet and peaceable possession in tbe usual form, except that tbe following words were added at tbe end thereof, namely: “ With tbe reservation therein claimed.” Tbe conveyance was drawn by a justice of tbe peace, and was not witnessed or acknowledged until 19th September, 1877, when it was witnessed and was acknowledged by tbe said William. Tbe plaintiff never executed or acknowledged it. Tbe consideration expressed in the conveyance was $1,000, but it was proved that no money consideration was paid or agreed to be paid. The defendant was a son of a brother of William. Tbe grantor and bis wife bad no children. William died on 29th September, 1877. On 2d April, 1878, tbe defendant then being in possession of said land, the plaintiff demanded possession, and be refused to surrender it.
    Tbe referee held that upon tbe death of her busband, tbe plaintiff became seized, in law, of an estate in said land for tbe term of her natural life, and was entitled to tbe possession of tbe same by force and operation of the said conveyance, and ordered judgment in favor of the plaintiff for the recovery of the possession.

      Link & McEvoy, for the appellant.

      Geo. W. Smith, for the respondent.
   Smith, J.:

The plaintiff claims a life estate in the land in controversy by the operation of the clause in the deed executed by her husband to the defendant, reserving to him and herself the right of controlling said land and all the benefits of said land during their natural lives.” The right thus reserved is quite as comprehensive at least as the right to the “ rents and profits,” and carries with it the right to the exclusive use and possession of the land during the lives of the beneficiaries. The clause referred to was probably good as a reservation to the grantor William Eysaman, but it cannot operate by way of reservation or exception in favor of the plaintiff, she being a stranger to the deed and to the estate conveyed by it. (Craig v. Wells, 11 N. Y., 323, and cases cited.) Perhaps the clause is good as an agreement on the part of the grantee to convey the use for the benefit of the wife after the death of the grantor, which a court of equity would execute. (Sherman, Admr., v. Estate of Dodge, 28 Vt., 26.) Before our Revised Statutes the deed would have oper ated as a covenant to stand seized to the plaintiff’s use within the principle of Jackson ex dem. Wood v. Swart (20 Johns., 85) and the cases there cited, and in such case the use would have been executed by the statute and turned into a legal estate. The grantee being the son of a brother of the grantor, there is the requisite consideration of blood to support the conveyance, and although the clause is inartificial, it clearly manifests the intention of the parties that the grantor and his wife should have the control and the profits of the land during their lives. The deed has all the elements of a covenant to stand seized, and it may be assumed, therefore, that, as the plaintiff has survived her husband, she has a legal estate for life in the land conveyed, provided that mode of conveyance has survived the revision of 1830 and may be resorted to at the present time. Upon that point there is no express adjudication that we are aware of, and very little has been said about it by text writers. In Willard on Real Estate (p. MO) it is said that the conveyance to stand seized does not exist in this State, but no authority is cited. Chancellor Kent, in his commentaries (vol. 4 [7th ed.], p. 493), says that “ covenants to stand seized owe their efficacy to the statute of uses, and in New York the statute of uses is abolished, and no mention is made of the conveyance.” But,” he continues, “ if the covenant to stand seized be founded on the requisite consideration it would be good as a grant, for there could be no dispute about the intention; and it is admitted that, in a covenant to stand seized, any words will do that sufficiently indicate the intention.” The annotator of the eleventh edition of the commentaries says, in a note to the part of the text above quoted, tl^at the remark that the statute of uses is abolished in New York appears to be unguarded.” Uses and trusts,” he says, are abolished, except in the specified cases. But this abolition does not leave the estate in the grantee under a conveyance to uses. On the contrary, the policy of the statute of uses which was directed against passive trusts is greatly enlarged by new and appropriate enactments, vesting the title in the beneficiary in all cases when it is the intention of the conveyance to give him the right to the possession and profits of the land.” The learned annotator, as chief judge of our Court of Appeals, expressed similar views in the opinion delivered by him in the case of Downing v. Marshall (23 N. Y. 377, 380). In Lossee v. Ellis (13 Hun, 635) it was claimed on the part of the defendant that the instrument there in question, which was executed in 1850, created a title by way of covenant to stand seized. It does not appear to have been suggested by any one in that case that an estate cannot be conveyed in that mode since the Revised Statutes; but the claim of the defendant was defeated, on the ground, among others, that there was no consideration of blood or marriage to support the instrument as a covenant to stand seized.

The revision of 1830 was designed to restore the statute of uses to what it was originally intended to be; but the design was sought to be accomplished, not by abolishing all the forms of conveyance that were employed after the adoption of that statute to create uses, but by converting all formal uses and trusts into legal estates in the beneficial owner. Section 49 of the statute of uses and trusts, which, provides that every disposition of lands shall be directly to the person in whom the right to the possession and profits shall be intended to be vested, contained, when it was reported by the commissioners of revision to the legislature, a provision declaring every disposition contrary to its provisions to be void. (Report of Comrs., vol. 3, p. 30, § 50, and note to same.) But the legislature rejected that provision and put the section in its present shape. The form of conveyance known as bargain and sale (which differed theoretically from a covenant to stand seized only in the nature of the consideration required to support it) (3 Wash. on Real Property, 354), and that of lease and release, each of which created a use, and the effect of which in passing the legal estate was founded on the statute of uses, were expressly retained in the revision as grants. (1 R. S., 739, § 142.) None of the other modes of conveyance which owed their efficacy to that statute are mentioned in the revision. Deeds to lead uses and deeds to declare uses, which'were ordinarily employed in connection with fines and recoveries, have been of no practical utility since fines and recoveries were abolished (2 R. S., 343, § 24); but Willard, in his treatise on real ■ estate, expresses the opinion that they are still admissible in certain cases." (P. 444.) We are not aware of any provision of the Revised Statutes by which the covenant to stand seized is abolished or made ineffectual, expressly or by necessary implication. It is in the nature of a will, and as a means of carrying out arrangements among near relatives it is a useful conveyance. The fact that there is no instance in the books of such a conveyance, since the Revised Statutes, is perhaps some evidence that the profession regard it as obsolete; and yet its disuse may be owing to the fact that there has seldom been an occasion for resorting to it rather than to a will or a grant with valid reservations. The intention in this case that the wife, surviving her husband, should have a life estate is clear, and the intention is to be carried out if it can be done consistently with the rules of law. On the whole we incline to the opinion that the covenant to stand seized, is still a valid mode of conveyance, and that thS deed before us is effectual as a grant of a life estate to the plaintiff under the statute executing the use (1 R. S., 727, § 47; 728, § 49), or if not so, that the clause referred to may be regarded as an agreement by the grantee of the fee, to convey a life estate to the plaintiff, which a court of equity will enforce and which may be enforced in this action by adjudging the title to be in her, upon the rule that equity will regard that as done which ought to be done, and awarding to her the possession. (Code Civ. Pro., § 1207.)

The position of the defendant’s counsel, that it was error to admit parol proof of the relationship which the grantee bore to the grant- or, in order to show the requisite consideration of blood, is untenable. (Rogers v. Eagle Fire Ins. Co., 9 Wend., 628, 629; Wallis v. Wallis, 4 Mass., 135; Brewer v. Hardy, 22 Pick., 376; Goodell v. Pierce, 2 Hill, 659; Bedell’s Case, 7 Co., 40.)

At the trial the defendant offered to show by parol, that as a part consideration of the deed, and at the time of making it, the grantor and the grantee agreed in substance that the defendant was to take immediate possession of the land and have the use and profits thereof, and support and maintain the grantor and his wife in the defendant’s family, and furnish them certain rooms in his dwelling house on the land conveyed, for their exclusive occupancy, and that the defendant had performed such agreement. The offer was properly excluded. The alleged agreement being verbal, could not have the effect to extinguish or cut down the life estate of the grantor, much less that of his wife, who was not a party to the agreement. In Colby v. Colby (28 Verm., 10), a father deeded to his son as a compensation for his services, a piece of land, with a condition in the deed that the grantor was to have “ the use and improvement ” of the premises during his life, if he should have occasion therefor and should choose to use them. In that case, as was offered to be shown in this, the grantee at the instance of the grantor, had managed the farm and supported the grantor and wife in his family. It was held that the grantor retained a life estate in the premises, which was extinguishable only by deed; and which, after a voluntary surrender of the possession of the premises to his son, but without any writing, he could again avail himself of whenever he chose. So far as the evidence offered in the case at bar tended to show an additional consideration for the deed, it was immaterial; and inasmuch as it tended to vary the terms of the deed and cut down the estate of the grantor and his wife, it was inadmissible.

Tbe case is not one, as tbe appellant insists, in wbicb extraneous circumstances may be resorted to in order to ascertain tbe intention. Tbe clause relied on by tbe plaintiff is unambiguous, as is tbe entire deed.

Tbe point is made that no sufficient notice to quit was shown. None was necessary. Tbe relation of landlord and tenant was not shown to have existed between tbe parties, and tbe only issue between them was as to the title. In such case, no demand or notice is requisite. (Wood v. Wood, 18 Hun, 351.)

If tbe views above expressed are correct, they dispose of tbe numerous exceptions taken to tbe rulings of tbe referee upon tbe admission or rejection of evidence, and to bis refusals to find as requested.

Tbe judgment should be affirmed with costs.

Talcott, P. J., and Hardin, J., concurred.

Judgment affirmed.


text:
    ABRAM S. LENT, Plaintiff, v. HARRIET LENT and JOHN LENT, Defendants.

      Will — when real estate, purchased aft&r the making of it, passes to the devisees.

    A testator by Ms will made in 1858, provided that after all Ms lawful debts were ' paid 'and discharged, he gave, bequeathed and disposed of the residue of his estate, real and personal, as follows: “To my beloved wife Harriet, I give, devise and bequeath all my household goods and personal property to be hers forever, I also give and bequeath to my beloved wife Harriet all my real estate now possessed by me during the term of her natural life, and after her death to be disposed of as follows, to wit: To my son John,” charged with the payment of certain legacies. After the date of the will the testator sold the farm upon which he then resided, and moved upon and purchased another one, of which he died seized and possessed.

      Held, that the after-acquired real estate passed by the will to the devisees, and that they and not the testator’s heirs-at-law were entitled thereto.

      Cole v. Bcott (1 Mac. & Gordon, 518) and Quin v. Ha/rdenbrook (54 N. Y., 83), distinguished.

      Motion by the defendants for a new trial on exceptions taken at the Wayne Circuit, and ordered to be heard at the General Term in the first instance.

      A. A. Pope, for the plaintiff.

      Charles MeLouth, for the defendants.
   Smith, J.:

The plaintiff sues as an heir-at-law of James Lent, deceased, to recover an undivided tenth part of a certain farm in Macedón, Wayne county, of which the deceased died seized. The defendants, one of whom is the widow, and the other a son of the deceased, claim as devisees under the will of said deceased, and the principal question in the case is, whether the will operated to pass the title to real estate acquired by the testator after the will' was executed. The will is dated on the 26th of January, 1858. ■ The portions of it material to the question are as follows: “ First, after all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath and dispose of as follows, to wit:

“ To my beloved wife Harriet” (defendant) “I give, devise and bequeath all my household furniture and personal property to be hers forever. I also give and bequeath to my beloved wife Harriet all my real estate now possessed by me during the term of her natural life, and after her death to be disposed of as follows, to wit:

“To my son John” (defendant) Ghe above-named real estate, after paying from the same the following legacies, to wit:

“To my sous William, Jerome and David each one hundred dollars.

“Also to my daughters Eachel and Martha each one hundred dollars.

“Also to my grandson Abram Lent ” (the plaintiff) “ one hundred dollars when he shall attain the age of twenty-one years.” The defendants were appointed executors. ■ When,the testator made the will he owned a farm in Otsego county, which he afterwards sold. He then removed to Macedón and bought the farm, a portion of which the plaintiff seeks to recover in this action, on which he lived till the time of his death. He was married twice. The defendant, John, is the youngest child, and the only surviving son of the second marriage. The plaintiff is the son of a deceased child of the testator by his first wife. At the trial the plaintiff put in evidence a verified answer made by the said Harriet Lent, John Lent and Susan Lent (John’s wife) in an action brought by William Lent, a son of the deceased, for a partition of the Macedón land. The answer alleged, among other things, that said Macedón farm (except an interest therein of about $600) came to the testator through his second wife, and that specific legacies to the amount of $600 were given by the will to the children and grandchildren of the first marriage.

At common law a devise, although general, of all the testator’s real estate, did not carry that which he acquired subsequently to the execution of the will. It was otherwise as to personalty. The rule as to real estate was changed by our statute (which provides that every will that shall be made by a testator in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death ” [2 R. S., 57, § 5]). The intent of the testator is to control, and that is to be gathered from the whole will. In this case, the intention of the testator to devise all his real estate would be clear and express but for the words “ now possessed by me.” Did the testator intend by using the word now ” to limit the devise to the real estate owned by him at the time when the will was executed ? We think not, for several reasons. In the first place, it is evident that the testator intended to dispose of all his estate by the will, and not to die intestate as to any part of it. That is apparent from the clause immediately preceding the devise in question, in the nature of an introductory clause, in which he declares the intention to dispose of the residue of his estate, real and personal, after payment of his debts, and to effectuate that intention by the devise of the land, subject to the charges made upon it. Although an introductory clause of that character does not of itself enlarge a particular devise, it is very material to the inquiry concerning the purpose of the testator. (2 Preston on Estates, 206; Fox v. Phelps, 17 Wend., 393; Doe v. Harter, 7 Blackf., 448; Charter v. Otis, 41 Barb., 525; Harris v. Slaght, 46 id., 470, 502; Earl v. Grim, 1 Johns. Ch., 494; Youngs v. Youngs, 45 N. Y., 254.) As it shows that the testator intended to part with his whole estate, the subsequent words will, if possible, be construed so as to prevent intestacy as to any part of his property. (Per Thompson, J., in Jackson v. Merrill, 6 Johns., 191.) In the next place, a will ordinarily speaks as of the time of the testator’s death (Parker v. Bogardus, 5 N. Y., 309; McNaughton v. McNaughton, 34 N. Y., 201), and there is nothing in the language of the will before us inconsistent with the idea that the testator, in using the word “now,” referred to that period of time. Again, the word “ now ” is not used in other parts of the will. In that respect, the case differs from that of Cole v. Scott (1 Mac. & Gordon, 518), cited by the plaintiff’s counsel. The case at bar is clearly distinguishable from Quin v. Hardenbrook (54 N. Y., 83), on the authority of which we understand the learned judge by whom this case was tried, rested his decision. In that case the devise of lands “ now ” owned by the testator was to one who could not take by inheritance, and the word “ now ” was construed to refer to the date of the will, and not to the time of the testator’s death, in accordance with the rule that the heir shall not be disinherited unless by plain and cogent inference arising from the will. Again, the devise in that case was not general, but was limited to “ all the real and personal estate I now possess or may hereafter become heir to either from the estate of George Nappalye, deceased, cousin to my father, or from the estate of Trinity Church (versus) Anueke Jans, on the part of my mother.” These circumstances were particularly adverted to in deciding the case, and they distinguish that case from the one in hand.

On the whole we are of the opinion that the intention of the testator to devise all the real estate possessed by him at the time of his death, is legally perceptible upon the face of the will, and that the defendants took title to the land in controversy under the devise.

The motion for a new trial granted, costs to abide event.

Talcott, P. J., and Hardin, J., concurred.

New trial ordered, costs to abide event.


author: Smith, J.;

text:
    GEORGE J. FLINT, Appellant, v. ABRAM VAN DEUSEN, Executor, etc., and others, Respondents.

      Security for costs — when a non-resident plaintiff cannot he compelled to furnish it.

    When a plaintiff, pending an appeal taken hy the defendant from a judgment recovered against him, removes from the State, he cannot, while the judgment stands unreversed, he compelled to file security for costs.
    Appeal from an order made at the Otsego Special Term, denying a motion to set aside an order granted ex pa/rte, requiring the plaintiff to file security for costs.

      Lynes & Van Horn, for the appellant.

      Isaac H. Maynard, for the respondents.
   Smith, J.;

The plaintiff recovered a judgment herein against the defendants, from which the defendants appealed. Thereafter the plaintiff removed from the State, and the defendants, pending the appeal, obtained an order requiring him to file security for costs, on the ground that he had become a non-resident since the commencement of the suit. The only question is whether the case is within the meaning and spirit of the statute. (2 R. S., 620, §§ 1, 2.) We are inclined to think that after the plaintiff has recovered judgment in the suit, which entitles him to the costs of the action, he cannot be compelled to file security for costs so long as the judgment stands unreversed. The presumption of law is in favor of the correctness of the judgment, and while the judgment stands the defendant can have no claim on the plaintiff for costs. Should the judgment be reversed, doubtless the defendant would then be entitled to an order requiring the non-resident plaintiff to file security for costs, or in default thereof, staying his proceedings. True, the Code provides that the title of the action shall not be changed in consequence of the appeal (old Code, § 326), except as therein specified (new Code, § 1295), and under that provision it has been held frequently that an appeal is simply a continuation of the original action. That, however, is a mere rule of practice which, in our opinion, does not change the effect of the statute under consideration. The fourteenth rule of the Supreme Court of January Term, 1799, directed “ that where a suit shall be commenced for a non-resident plaintiff, before security for costs, by a sufficient householder of the estate, in the sum of $100 in the usual form shall be given, the attorney shall be deemed to have become security for costs, and where at any time pending the suit the plaintiff shall remove out of the State, and the attorney shall thereafter proceed in the cause before such security shall be given, he shall in such case also be deemed to have become security for costs; but he shall not in any case be liable to an amount exceeding $100, or where,, if there shall be a plurality of plaintiffs, one of them shall be a resident within the State.” (1 Dunlap’s Pr., 90.) Under that rule it was held in Frary v. Dakin (8 Johns. R., 353), that the bringing a writ of error is not the commencement of such a suit as would render the attorney of the plaintiff in error (a non-resident), responsible for the costs, and that the case did not come within the meaning of the rule as to filing security for costs. The court said, “this is not a case coming within the spirit of the fourteenth rule of January Term, 1799. That rule contemplates a suit originating in this court. The plaintiff in error came to this court, not to enforce a demand, but to avoid a judgment which he supposed had been erroneously given in the court below. Although the bringing a writ of error is considered as a new action, yet it is not the commencement of such a suit as comes within the rule by which the attorney can be made responsible for the costs. It never has been supposed that in a case like this, a non-resident plaintiff was obliged to file a bond; and it is only where a bond ought to have been filed, that the attorney is answerable for the costs.” The court said further, however, that “ if there had been an application to the court to stay the proceedings on the writ of error, it is probable the proceedings would have been stayed until security for costs had been given..” So far as that remark is concerned, the case differs from this, the non-resident there having been the party who sought to avoid the judgment. But the case shows that even if an appeal undei the present practice were considered the commencement of a new action, as was the old writ of error, still the case would not be within the statuté', and that the circumstance that an appeal is now regarded as a continuation of the original suit, has no bearing upon the question under consideration. In Kanouse v. Martin (3 How. Pr. P., 24, Feb. 1847), it was held that it is not necessary for a non-resident plaintiff in error to file security for costs; the bond required by statute on prosecuting his writ of error, is all that is required. Before the Code as well as since, an appeal, unlike a writ of error, was merely a continuation of the original action. (The People ex rel. Tomb v. The Judges of the Court of Common Pleas, etc., 1 Cow., 576; Traver v. Nichols, 7 Wend., 434; Fenno v. Dickinson, 4 Den., 84.) If the appellant, who is the actor in the appeal, cannot be required to file security for costs, it seems to follow that such security should not be required of the respondent, whose attitude is defensive merely.

The Special Term case of Johnson v. Yeomans (8 How. Pr. R., 140), cited for the respondent, in which it was held that the defendant who had appealed from the judgment recovered against him in the action on demurrer, and had subsequently removed from the State, could not be compelled to file security for costs, was rightly decided according to Frary v. Dakin, and Kanouse v. Martin (supra), although put upon other grounds which, if the views above expressed are correct, were untenable. The other cases cited for the respondent do not conflict with what we have said. In Ranney, assignee, etc. v. Stringer (4 Bosw., 663), the plaintiff, an assignee for creditors and also a non-resident, was ordered to file security for costs, after he had appealed from a judgment entered against him in the action. The case was decided under another statute. (Code of Procedure, § 317.) Gardner v. Kelly (2 Sandf., 632), was not the case of an appeal. A judgment had been taken against the defendant by default, and he had been let in to defend, the judgment being allowed to stand as security. It was properly held that the plaintiff, who was a non-resident, should be required to file security for costs. As was said by Mr. Justice Welles, in Butler v. Wood (10 How. Pr. R., 313), the statute should receive a reasonable construction; and to require security for costs, depending on the reversal of a judgment which, in presumption of law, ought to stand, would be unreasonable.

The order refusing to set aside the order to file security, should be reversed with ten dollars costs and disbursements, and the motion to set aside the ex parte order should be granted, with ten dollars costs.

Talcott, P. J., and Hardin, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and motion to set aside order granted, with ten dollars costs.


text:
    HENRY J. WAGGONER, Appellant, v. ADAM W. WALRATH, Respondent.

      Action against two sureties — entry of a jugdment against one only releases the other — Bight of a cosurety to contribution — ~With knowledge of what facts the assignee of a judgment is changeable.

    Where, in an action brought against the two sureties to a joint undertaking, both of the sureties are served, hut judgment is entered against one only, such judgment-cannot be enforced against the surety against whom it is entered for more than one-half of the amount due on the undertaking.
    The other surety is by such entry of judgment against his co-surety, only, released from all liability to the obligor, and cannot be called upon for contribution by his co-surety.
    An assignee of such a judgment is chargeable with notice of all the facts contained in the judgment roll, and has no greater rights than had his assignor.
    Appeal from a judgment, entered on the decision of the court at the Jefferson Special Term, dismissing the complaint, with costs

      Wayland F. Ford, for the appellant.

      Porter & Walts, for the respondent.
   Smith, J.:

The plaintiff and defendant, as co-sureties, executed two undertakings, one dated 29th October, 1874, on an appeal to the General Term by David F. Frederick from a judgment recovered against him by John G-. Butler; the other given 5th May, 1875, in a suit of Anson Harder against Catherine Frederick, upon the retaking by-the defendant therein of certain property replevied by Harder. Butler’s judgment was affirmed, and he sued Waggoner and Walrath upon the undertaking. He entered judgment against Waggoner alone for $440.46 damages and costs, and in January, 1877,.or thereabouts, he assigned the judgment to Walrath, the present defendant.

Harder succeeded in his suit, and sued Walrath and Waggoner on the undertaking. On 29th January, 1876, .he recovered judgment against Waggoner alone for $310.21 damages and costs, and on the same day assigned it to Mary Walrath, the wife of the present defendant, the husband furnishing the means to pay for the judgment.

In February, 1877, Walrath assigned the Butler judgment, and procured his wife to assign the Harder judgment to Andrew Wag-goner, the father of the present plaintiff, for the sum of $600. Each assignment gave to the assignee, in terms, the right to enforce and collect the judgment at his own cost and expense, but without recourse to the assignor in any manner.

In June, 1878, the plaintiff herein obtained from his father a satisfaction piece of said judgments, giving his promissory note for the 'amount thereof, and then commenced this action to compel contribution.

The judge at Special Term found the facts above stated, and found also that when the defendant signed the undertaking in the Butler suit the plaintiff herein verbally agreed to indemnify the defendant against any liability thereon. The court held that such agreement was a bar to the claim for contribution by reason of any payment on account of that undertaking, and the findings and ruling upon that branch of the case are not questioned on this appeal. ,

The defendant gave some evidence tending to show that a like agreement was made in respect to th.e Harder undertaking, but the evidence was controverted and the court did not find in accordance with it.

The trial court further decided that the claim for contribution could not be maintained in respect to either undertaking, for the reason that, as the judgment on each of. them was entered against Waggoner alone, Walrath was thereby released from liability on the undertakings as against the plaintiffs in the judgments, and that the successive assignees of the judgments acquired no greater rights than were possessed by the original plaintiffs. That ruling presents the questions to be considered on this appeal.

Did the entering of judgment against Waggoner alone release Walrath from his liability upon the undertaking? In Robertson v. Smith (18 Johns., 459) the plaintiff had brought an action of assumpsit against S. & S. as partners and makers of a promissory note, and recovered a judgment, which was unsatisfied; and after-wards, discovering that P. & Y. were also partners in the firm at the time the note was given, he brought an action against the four as makers of the same note. It was held that the judgment recovered against two of the defendants on the note was a bar to the subsequent suit against the four defendants for the same cause of action. The court dissented from the case of Sheehy v. Mandeville (6 Cranch, 253), in which the Supreme Court of the United States came to the opposite conclusion. Robertson v. Smith was followed in Olmstead v. Webster (8 N. Y., 413), where it was held that a debt owing by a partnership is merged in a judgment recovered against one of the partners, and that a vacatur of the judgment saving the rights of the partner not sued, would not revive the cause of action as against him. The doctrine of those decisions would seem to apply with still greater force to a case where, as here, the suit is against all the obligors, and they are all served; for in such cases, the fact that the plaintiff does not proceed to judgment against some of the defendants, affords a presumption that he untended to release them from their liability. In Sheehy v. Mandeville (supra), Ch. J. Marshall delivering the opinion of the court, said: “ Had the action in which the judgment was obtained against J.,” one of the partners, “ been brought against the firm, the whole note would most probably have merged in that judgment.”

The appellant’s counsel contends that Walrath was not released, and he cites Decker v. Judson (16 N. Y., 439); National Bank v. Spencer (19 Hun, 569), and Judd Oil Co. v. Hubbell (76 N. Y., 543). Put those cases do not touch the question. In Decker v. Judson the plaintiffs in replevin, by way of renewing their bond to the sheriff as a condition of the postponement of a trial, pro•cured' Judson to sign the bond beneath the names of the other •obligors, without the knowledge or consent of the previous sureties. The defendants in the replevin having obtained judgment, brought an action on the bond, in which judgment was rendered in their ■favor against Judson, but against them in favor of the original sureties. Upon appeal by Judson, he claimed that his engagement was that of a co-surety, and it having been adjudged that the action could not be maintained against the original sureties, he was deprived of his right to call on them for contribution and therefore was released. The court held that, as he was not a party to the litigation between the former sureties and the obligor, he was not barred by the judgment therein from his action for contribution, and was not discharged. The question whether an obligee, by voluntarily entering a judgment against one only of two or more co-sureties sued together, thereby releases those against whom he does not proceed to judgment, was not in the case. In the case of Spencer it was held that the entering of judgment by default .against three of four joint payees and indorsers of a promissory note, while an issue was pending undetermined upon an answer Interposed by the fourth defendant, was an irregularity merely, which might be waived. And it was intimated that if one of the •defendants against whom judgment was taken should pay the debt he would have a right to call for contribution from his co-indorsers, ■the obvious reason being that the entry of • judgment against those who had suffered default did not discharge the defendant who had joined issue, it being a mere irregularity, and one of which the other defendants only could take advantage. In Hubbell's case, a separate judgment was entered against each of two joint debtors •sued together, instead of" one judgment against both; it was held to be a mere irregularity, which did not affect the relations of the debtors towards each other, as either would be entitled to contribution if he paid the debt. In other words, the right of contribution would be the same as if one judgment had been entered against both. There is nothing in these cases conflicting with the decisions first cited, and those decisions fully sustain the position that the •entering of judgment against Waggoner alone, released Walrath from the debt. (See also Pierce v. Kearney, 5 Hill, 82, and cases cited by Cowen, J., 83, 84.)

Where one surety is discharged from his obligation to answer for the demand against the principal, he is not liable to his co-surety for contribution. So held where the surety was- discharged in bankruptcy upon proceedings instituted by his own petition. (Tobias v. Rogers, 13 N. Y., 59.) So, also, where the discharge comes from the act or neglect of the creditor. This rule works no injustice to the co-surety who is held. In equity, when a co-surety has been released from his liability by the conduct of the creditor, the remaining co-surety will be held exonerated as to so much of the original debt as the discharged surety could have been compelled to pay had his obligation continued. (Ex parte Gifford, 6 Ves., 805; Garey v. Hignett, 32 Md., 552; Davies v. Humphreys, 6 M. & W., 153; De Colyar on Guar., 341, and note 2; Morgan v. Smith, 70 N. Y., 537.) The amount which one of two co-sureties can recover of his co-surety is what he has paid in excess of his moiety.

Applying these rules to the case, the judgments in the hands of the original plaintiff could not have been enforced against Waggoner for more than one-half of their amount. Each successive assignee took them subject to the same disability, and the plaintiff in this suit, by satisfying the judgments, acquired no right to call on the defendant for contribution. He simply paid off his own liability, and it was his own folly if he paid more than he was legally liable for.

There is no estoppel in the case, and no implied warranty that the face of the judgments was the amount due. The assignment from Mrs. Walrath was without recourse. All parties dealing with the judgments were bound to take notice of their contents, and of the contents of the judgment rolls on which the judgments were based. Such parties were thus advised of the true amount for which the judgments could be enforced, and the plaintiff especially, as a party to the judgments, was bound to know that his payment of them would give him no right of contribution against the defendant.

If the foregoing views are correct, it is immaterial whether the defendant furnished the money which his wife paid for the Harder judgment, or whether the plaintiff knew that such was the fact when he satisfied the judgment, of which knowledge the counsel for the appellant says there is no proof.

' The appellant’s counsel insists that there is no evidence to warrant tbe finding that at tbe time when tbe defendant’s wife sold tbe judgment to Andrew Waggoner, tbe defendant claimed that tbe plaintiff should pay tbe full amount of tbe judgment. We bave not been able to find in tbe case any evidence to that effect, but tbe absence of tbe evidence does not weaken tbe defense.

We are of tbe opinion that tbe judgment should be affirmed, with costs.

Talcott, P. J., and Hardin, J\, concurred

Judgment affirmed, with costs.