author: LandoN, J. :

text:
    NELSON D. MOREHOUSE, Respondent, v. JOEL B. MOREHOUSE, by His Committee, Appellant, Impleaded with TALCOTT B. MOREHOUSE and Others.

      ffltidence — when the testimony of a deceased witness, given in another action, may he read in evidence — when the testimony of a party given on the first trial of an action may he read on the second trial thereof, although he is then incompetent to testify — Code of Oivil Procedure, secs. 829, 830.
    This action was brought to collect from the defendants, Joel and Talcott More-house, a balance claimed by the plaintiff to be due and unpaid on a sale of real estate on the foreclosure of a mortgage by advertisement, which sale was made .by the plaintiff, as assignee of said mortgage. The property had been purchased 'by Joel and Talcott, at the sale, each taking one-half and agreeing to pay one-half of the purchase-price. Talcott paid his half, but Joel did not. Upon the .trial of this action the plaintiff was allowed, against the objection and exception of the defendant Joel, to read portions of the testimony of one Dake, who .had been examined as a witness in an action brought by one Tourtellot, in which Joel and Talcott Morehouse and the present plaintiff were defendants; Dake having died before the trial of this action.

      Held, that as the parties to this action were parties to the former one, and as the point in issue, touched by the testimony of Dake, was the same in each, the evidence was properly received.
    Upon a former trial of this action the plaintiff was examined as a witness in his own behalf. After the reversal of the judgment then entered, the defendant Joel was prostrated by a stroke of paralysis which destroyed his mental powers and an order was made continuing the action against his committee. Upon the last trial of this action the court allowed the testimony of the plaintiff given upon the first trial to be read, against the objection and exception of the counsel of the committee, who claimed that the testimony was inadmissible under section 829 of the Code of Civil Procedure.

      Held, that the testimony was properly received under section 830 of the Code of Civil Procedure.
    Appeal by tbe defendant Joel B. Morehouse, by his committee, from a judgment, entered upon the trial' of this action at the Sara-toga Special Term.
    The action is an equitable one, and was commenced on the 2d day of March, 1874, to collect a balance alleged by the plaintiff to be due and unpaid from the defendants to him on a joint bid made by the defendants Joel B. and Talcott B. Morehouse, at a sale of real estate on the foreclosure of a mortgage, by advertisement, which sale was made by plaintiff as assignee-of said mortgage, and took place on the 28th day of October, 1861.
    The mortgage was executed by John Morehouse, the father of the defendants Joel B. and Talcott B. Morehouse, to one Daniel D. Campbell, and bore date the 13th day of December, 1858, and was made to secure his bond of that date for,$550.50, and the balance claimed to be due the plaintiff, as such assignee, on said mortgage at the time of the sale was $737.41, including costs. The plaintiff avers that the defendant Talcott B. Morehouse has paid his half of the joint bid, but that the defendant Joel B. Morehouse has failed to pay his half; and that the affidavits of sale were delivered by the plaintiff to one Dake with directions to retain them until the defendant Joel B. Morehouse should pay his share of said bid ; and the plaintiff alleges that said share has never been paid by the defendant Joel B., and that after Dake’s death he first found that said affidavits had been recorded in.the Saratoga county clerk’s office on the 14th day of April, 1868, which was more than six years after said sale occurred. The plaintiff, in the complaint, waives all relief against the defendant Talcott B. Morehouse, and as relief asks that it be adjudged that said record and sale on said mortgage be set aside, so far as the same affects the share of said premises belonging to the said Joel B. Morehouse, unless the said Joel B. Morehouse shall pay his share of said bid, and that the plaintiff be allowed, in case said share is not paid, to resell the said Joel B.’s share of said premises on said mortgage, in order to collect the balance of said bid.
    The defendant Joel B. Morehouse, who alone answered, among other things: First. Admitted the purchase of the Campbell mortgage by the plaintiff, and the foreclosure of it and the sale of the premises thereunder, and the purchase of them by the defendants at said sale, and denied all other allegations of the complaint. Second. Set up that the cause of action accrued more than six years before the action was commenced, and that the same was barred by the statute of limitations. Third. Alleged payment to the plaintiff of the amount due on said bid. A judgment dismissing the complaint, entered upon the first trial of the action, was reversed at the General Term. After the order for a new trial was granted, and before the new trial came on, the defendant was prostrated by a stroke of paralysis, which entirely destroyed his mental powers, and a committee of his person and estate was appointed, who was made a party to the action by an order of the court.
    On the new trial the plaintiff himself put in evidence the judgment-roll and a portion of the evidence in three other cases, one in favor of one Freeman Tourtellot against the said Nelson D. More-house, the plaintiff' herein, and the defendants herein, Joel B. Morehouse and Talcott B. Morehouse, and also a portion of the testimony of the defendant Joel B. Morehouse and of one Calvin W. Dake, since deceased, as given by them on the trial of those actions.
    Defendant objected to the admission of said several judgment-rolls in said actions in favor of Tourtelott and others as immaterial, but the objection was overruled and defendant excepted. The defendant also objected to the evidence of one ITulburt as to what Dake, as a witness had testified to on the trial of said actions in answer to the question: “ State what he, Dake, testified to on that trial, in regard to the delivery of the foreclosure papers on the foreclosure of the Campbell mortgage ? ” which was objected to by defendant as inadmissible in this action, and as being hearsay; the objection was overruled and defendant excepted, and the evidence was taken. The defendant also objected to the introduction in evidence of the testimony given by the plaintiff on the former trial, on the ground that it was inadmissible against the committee of the person and estate of Joel B. Morehouse, under section 829 of the Code, and that the evidence was incompetent, irrespective of the statute; the objection was overruled and the defendant excepted, and the evidence was admitted. The defendant also moved, at the close of the evidence, to strike out the plaintiff’s evidence so given on the former trial, and read on this trial, as being hearsay and inadmissible, being declarations of the plaintiff in his own favor, which motion was denied and defendant excepted.

      A. Pond, for the appellant.

      Nathaniel O. Moalc and John G. Hulbert, for the respondent.
   LandoN, J. :

The finding that Joel B. Morehouse has never paid anything upon or by reason of the bid upon the foreclosure sale, is in accord with the evidence of Joel himself. The elaborate argument of the appellant in opposition to this finding rests upon the fiction of a constructive payment for Joel by means of the payment of Talcott, when it is quite clear that it was the purpose of all the parties that Talcott’s payment should be for himself and for the release of his half of the farm, and not at all for the benefit of Joel or for the release of his half. If by means of any mistake in figures Talcott should be credited with more than his half, which is not clear, he did not pay it for Joel’s benefit, did not intend to do so, and it would be an entire perversion of the understanding of the parties to give it that effect now. Each was the devisee of an undivided half of the farm covered by the mortgage. They partitioned the farm between themselves, procured plaintiff to foreclose the mortgage, each one agreeing to pay plaintiff, upon the bid, one-hali the amount due upon the mortgage, with costs. The plaintiff could have held them as joint debtors, but at their request treated each as his separate debtor for the one-half, and acted to his own prejudice upon that request, and has the right to treat them as estopped to insist that they are joint debtors.

Upon the trial the testimony of Calvin Bake, then deceased, which he had given in an action in which one Tourtellot was plaintiff and Nelson, Talcott and Joel B. Morehouse were defendants, was read in evidence against the objection of Joel B. The parties to tbis action were parties to that action. The issues framed by the pleadings are not precisely the same, but under the issues in each action the point in issue touched by Dalce’s testimony was the same, and in the former action must have been fatal to the main defense alleged, whereas in this action its force would have been entirely neutralized if the payment alleged by the defendant Joel had been established. Where the parties are the same or in privity, and the issues, or the point in issue, the same, such evidence is admissible. (Jackson ex dem. Barton v. Crissey, 3 Wend., 251; Osborn v. Bell, 5 Denio, 370; Lawson v. Jones, 61 How., 425 ; Clark v. Vorce, 15 Wend., 193; Bradley v. Mirick, 91 N. Y., 293.)

When the parties are the same, and the point in issue the same, we can clearly see that the party against whom the testimony is offered had the same opportunity and the same interest as now to resort to every test to probe the witness and his testimony. And we see no reason, although the parties are not quite the same, if the subject-matter to be now established is the same, against the party against whom the testimony is offered, as upon a former trial, and was of as much importance to that issue as it is to this, why the death of the witness should exclude his testimony. The party against whom it is now offered has once had his day in court in the very matter of developing that testimony, and that, too, under a pressure of interest as great as now exists, so that nothing can be presumed to have been omitted from want of opportunity, care or interest.

In Philadelphia, etc., Railroad Company v. Howard (13 How. [U. S.], 334, 335) the action was between Howard and the Philadelphia, Wilmington and Baltimore Railroad Company as for covenant broken. There had been a former action between Howard and another and the Wilmington and Southern Railroad Company as for assumpsit. The Wilmington and Southern Railroad Company and the Baltimore and Port Deposit Company were subsequently, by the legislature, consolidated into the present defendant, the Philadelphia, etc., Railroad Company. The deposition of a witness taken upon the same subjeet-mattsr in issue in this case as in the former, viz., whether a certain paper made by one of the constituent companies was under the corporate seal or not was held to be admissible. There the parties were not the same; one action was assumpsit the other covenant. (See, also, 1 Greenl. Ev., § 164.) Upon principle and authority we think the evidence was properly received.

The testimony of the plaintiff given upon the former trial of this action was properly received under section 830, Code Civil Procedure. That section is remedial and should be liberally construed. It renders competent, first, the testimony of a party given upon a former trial, in case such party has since died; second, the testimony given on the former trial of any person, who since then has become incompetent to be examined on this trial by virtue of section 829. Section 829 affects the competency of the witness to be now examined, 'but section 830 establishes the competency of his testimony given upon a former trial of the same case. A technical reading of the section which should make the death of a party the condition precedent to the competency of the testimony of any witness other than the deceased party, may possibly be made, but the spirit of the statute should prevail, and that gives competency to the testimony previously given in the case between the same parties, before the incompetency attached to the witness. Pennsylvania cases tend to show that this sensible rule exists at common-law (Galbraith v. Zimmerman, 100 Penn. St., 371; Pratt v. Patterson, 31 P. F. S. [81 Pa. St.], 114; Evans v. Reed, 28 id. [78 Pa. St.], 415; Hay’s Appeal, 10 Norr. [91 Pa. St.], 265); and we think it should not be defeated by an adherence to the Letter in opposition to the spirit of the statute. The objection of the statute of limitations was overruled upon the former appeal.

The complaint states that upon a foreclosure of the mortgage by advertisement, the mortgaged premises were struck off to Joel B. and Talcott Morehouse, and it characterizes that proceeding as a sale, but it expressly shows that the sale was not completed by payment of the sum bid. So long as the sale remains incomplete by the refusal of the defendant to pay his part of the bid, the plaintiff cannot be deprived, without his own consent, of the benefit of his' mortgage. He cannot be compelled against his consent to waive a good security and take a cause of action as for a simple debt against such a debtor. No statute of limitations has run against his mortgage. The contention of the defendant that the mortgage could not be satisfied in effect as to Talcott’s share of the farm and be on foot upon Joel’s, rests upon no solid'foundation. It was Talcott’s duty to protect by payment bis own share, under the understanding between Joel, Talcott and the plaintiff.

The judgment is right a-nd should be affirmed, with costs.

Peckham, J., concurs; Bockes, P. J., not voting.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Peckham, J.:

license: Public Domain

text:
    JOHN C. NICHOLS, Appellant, v. ANDREW G. WHITE, Respondent, Impleaded, etc.

      Evidence — what admissible to rebut the presumption of partnership arising from the use of a firm name— declarations of a partner made after a dissolution to prove that fact — memoranda of estimates made by a witness at a former time — when he may use them to refresh his recollection.

    This action was brought by the plaintiff upon three promissory notes, signed by “Lawrence Brewing Co., S. A. Jewett, Atty.,” against the defendants White and W. H. Nichols, who were claimed to bo liable on the notes as partners engaged in carrying on business under the name of Lawrence Brewing Company. The defendant White, who alone defended, set up, among other defenses, that the partnership, which was admitted to have existed for a time, had been dissolved to the knowledge of the plaintiff before these notes were signed, and that they were not made in the partnership business.
    The defendant Nichols was called as a witness by White and testified that he was at one time one of the firm of the Lawrence Brewing Company; that Charles H Nichols, a brother of the plaintiff, was also at one time a member thereof, and that prior to the connection of the witness with the firm its business was carried on in the name of the Lawrence Brewing Company. The witness was then allowed, against the objection and exception of the plaintiff, to testify that he purchased the interest in the firm, standing in the name of Charles H. Nichols, from the plaintiff, and that the plaintiff at that time asserted that he was the owner of such interest.

      Held, that it was not error to admit this testimony; that it was competent as showing facts from which it would appear that the words “Lawrence Brewing Co., S. A. Jewett, Atty.,” were nothing more than a trade-mark used hy different persons as they succeeded to certain business interests in Lawrence, and that the plaintiff had notice of this fact.
    The court refused to allow the plaintiff’s counsel to ask the witness, Nichols, the question: “Did Mr. White or Mr. Newcomb, in behalf of Mr. White, keep the promise to you of letting you have money as mentioned in these letters? ’> but stated that he might answer what they did in regard to it.

      Held, no error, as tlie question improperly called for a general summary or opinion of the witness, while the court permitted the witness to state just what had been done.
    To sustain the claim that the partnership had been dissolved evidence was given tending to show a sale of White’s interest in the firm to Nichols, and the latter testified that he had spoken of the sale to one King, who was employed by White to look after White’s interests in the firm, and that King had thereupon taken away his books and papers and left the office. He also testified that after the dissolution he carried on business under the old name; that he told Jewett, who had a power of attorney from the firm, of the dissolution and appointed him his attorney, telling him that he would give him a new power of attorney; that all checks and notes were thereafter signed by Jewett in the old name.

      Held, that the declarations of Nichols were admissible, as against the plaintiff, as bearing upon the question as to whether, in the understanding and belief of the parties, there had been a dissolution of the partnership, and whether it had been effectually carried out.

      The Aylesford Peerage case (11 App. Cases, 1) followed.
    Declarations are sometimes quite as much “ conduct” as anything else.
    The defendant White claimed that the notes had been paid by coal assigned to the plaintiff by the defendant Nichols as collateral security, which had been sold for at least the amount of the notes and the proceeds received by the plaintiff. To show the amount of coal received by the plaintiff, of which no accurate measurements had boen made, a witness was called by the defendant, who testified that he saw the coal in bins and that he made correct estimates of the several amounts stated, and that at the time when he made such estimates he made correct memoranda as to the quantities estimated; that he was accustomed to estimate coal, and familiar with that kind of work. In his opinion the estimates were substantially correct. That his recollection of the amount of coal on the wharf (fourteen or fifteen years before) was guided by the books and papers; that he knew the coal was there; that after refreshing his recollection by looking at the paper he could state his estimate of the quantity of coal on the wharf, but could hot remember it without looking at the paper; that after looking at the paper he could remember the estimate so as to state it. He was then allowed to state that, according to his best judgment and opinion, the number of tons on the wharf was 1,886.

      Held, no error.

      Halsey v. Sinsebauyh (15 N. Y., 485) followed.
    Appeal from a judgment, entered upon a verdict rendered at the Albany Circuit for the defendant "White, tile only party who defended, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought upon three promissory notes, amounting in all to $5,000, signed by the “ Lawrence Brewing Co., S. A. Jewett, Atty.” The plaintiff proved a partnership between defendant White and Win. H. Nichols, by articles of partnership dated March 4, 1871, under the name above given; also, a power of attorney, signed by White & Nichols, to Sidney A. Jewett, which authorized the attorney to sign notes, etc. The notes were then put in evidence and the interest cast upon them, and the plaintiff rested. The defenses set up in defendant White’s answer were three in number : First. That the partnership was dissolved to the knowledge of plaintiff before these notes were signed. Second. That they were not made in the partnership business. Third. That they had been paid by coal assigned to plaintiff by defendant Nichols as collateral security for their payment, which coal had been sold for at least the amount of the notes, and the proceeds of such sale had been received by the plaintiff.

      Isaac Lawson, for the appellant.

      W. G. Moak, for White, respondent.
   Peckham, J.:

After the plaintiff had made out a prima facie case against defendant White, the defendant William EL Nichols was called by White as a witness. Nichols was indorser on the notes and procured the plaintiff to purchase them. The defendant’s counsel proved by this witness that he was at one time one of the firm of the Lawrence Brewing Company, doing business in the city of Lawrence, Mass.; that Charles EL Nichols was. also at one time a member thereof; that he was a brother of the plaintiff and the witness was their nephew. Prior to the connection of witness with the firm, business was carried on in the name of the Lawrence Brewing Company. The court then permitted the defendant to prove by this witness, under plaintiff’s objection and exception, that he, the witness, purchased of John C. Nichols, the plaintiff, the interest in the firm doing business as the Lawrence Brewing Company, standing in the name of Charles EL Nichols, and that the plaintiff at that time asserted that he was the owner of the interest which stood in the name of Charles II. Nichols. The evidence does not seem to be very important, but is yet, I think, competent.

The notes were signed “ Lawrence Brewing Co., S. A. Jewett, Atty.” In order to show that no presumption of the existence of a partnership at the dates of these notes in suit, between White and William II. Nichols, was necessarily to be indulged in by plaintiff because the words “Lawrence Brewing Co., S. A. Jewett, Atty,” appeared at the foot of each note, it was competent to show facts from which it would appear that those words were nothing more than a trade-mark, used by different persons as they succeeded to certain business interests in Lawrence, of a brewing nature, and that plaintiff knew it, as he had himself negotiated the sale to the witness of his brother’s interest in the concern, which used this name, and that at such time he claimed he was himself the owner of that interest. There was no error committed in allowing defendant Nichols to answer the question “ was the relation between you and Andrew G-. White & Co. at any time severed?” If that were the full history of the matter, it might be that the plaintiff’s exception would have been well taken. It is evident, however, that the question was not put to obtain the opinion of the witness as to the effect of certain facts not stated, but was put in the light of a question to direct the attention of the witness to the subject-matter upon which he was to be interrogated, for as soon as he answered affirmatively, the defendant’s counsel directed him to go on and detail how the relations between him and White were severed and what he, the witness, did -in relation thereto. That called for the facts and the witness proceeded at once to give all of them. It was nothing more, as the result showed, than asking the witness to state whether anything had ever occurred to sever the relations between him and White, and if so, to state what it was in detail. In this there was no error.

The court was right in refusing to allow the plaintiff’s counsel to put the question to the witness, Nichols, “ did Mr. White or Mr. Newcomb, on behalf of Mr. White, keep the promises to you of letting you have money as mentioned in those letters?” While denying to plaintiff’s counsel the right to put such a question, the court stated that he might answer what they did in regard to it. The first question called for a general summary or opinion of the witness as to whether White had done as he agreed, while the court permitted the-witness to state just what he had done.

The evidence admitted for the purpose of sustaining or attempting to sustain the fact of a dissolution of the partnership between Nichols and White, was all of it perfectly competent. Letters had already been put in evidence showing an offer to sell out on the part of one partner, and what was claimed to be an acceptance on the part of the other, the acceptance being dated October 14, 1871. The evidence also showed that a Mr. King had been made the agent of White to take charge of his interest in the brewery from the commencement of the partnership to October fourteenth. Nichols informed King of the contents of the letter of October fourteenth.

The witness, Nichols, then stated that, after this letter Mr. King left, took liis books and papers with him out of the office and the witness continued to do business by himself, and Mr. Jewett was appointed his attorney and he continued business under name of Lawrence Brewing Company, and all checks and notes were signed by Jewett, and after the fourteenth October, Nichols told Jewett the partnership was dissolved and he would give him the power of attorney. All this evidence was competent for the purpose of showing acts and declarations of either partner, after the alleged dissolution, as bearing upon the question as to whether in the understanding and belief of the parties there had been one or not, and whether it had been effectually carried out. The declaration 'of one partner, in the absence of another and as against such other, cannot, of course, in and of itself, prove a dissolution. The declaration hero was not offered alone for such a purpose, but it was competent to show as a fact that after this October fourteenth Nichols did business alone; that he said he would give another power of attorney, and stated to Jewett that the partnership was dissolved. That declaration did not, of course, dissolve it, but when the claim was made on the part of White that the partnership was dissolved on the fourteenth October, the acts and declarations of Nichols subsequent to that date were competent evidence as bearing upon the fact of dissolution, and his understanding of it, to be taken for what they were worth, not as I say, a.s direct evidence of dissolution, but as part of the evidence of the understanding and action of Nichols with regard to that fact. Declarations are sometimes quite as much “ conduct ” as anything else, and these declarations of Nichols are competent to show he was carrying out and acting upon the agreement of dissolution, and not that the declarations were true, and were, as declarations, evidence against the plaintiff.

In a late ease in the House of Lords (The Aylesford Peerage case, reported in 11 App. Cases, 1) it was held that the declarations of the mother of a child claimed to be a bastard, although born in wedlock, by which the mother stated the child was a bastard, were admissible as evidence of the conduct of the mother, although she could not be allowed to make such statements in the witness box. I think the evidence offered was plainly admissible on the principles I have stated.

In order to prove the defense of payment of these notes by the sale of coal, the proceeds of which the plaintiff was charged to have received, it became important to show the amount of the coal of which the plaintiff had received the proceeds. There had been no accurate measurements made of the quantity, but 'a witness was called by defendant’s counsel who swore that he saw the coal in bins, and that he made correct estimates of the several amounts stated, and that at the time when he made such estimates he made correct memoranda as to the quantity estimated. He made in such memoranda correct estimates at the time as near as he could estimate; that he was accustomed to estimate coal, and familiar with that kind of work. In the opinion of the witness the estimates were substantially correct as to the quantity of coal on hand at the different times when they were made. On being further examined by plaintiff’s counsel he said his recollection of the amount of coal that was then on the wharf (fourteen or fifteen years before) was guided by the books and the papers; he recollected the coal was there; knew it was ; the paper placed it so he could recollect it.

On his redirect he said, after refreshing his recollection by looking at the paper, he could state his estimate of the quantity of coal on Bartlett’s wharf in July, 1871, but he could not remember the estimate of all the paper without looking at the paper. At the time he made the memoranda he made it correct, and intended to make it correct, as a correct estimate of the quantity of coal which was there according to his best judgment. After looking at the papers he could remember the estimate he made, so as to state it. The witness was then, under objection and exception by plaintiff’s counsel, permitted to answer this question : Now tell us the number of tons on the wharf on the 15th of July, 1871, according to your best judgment and opinion? and the witness replied 1,886 tons.

Plaintiff’s counsel now claims that in the decision of the court there was error. In this we do not concur. The witness was a man familiar with that kind of work, accustomed to estimate coal, who saw the coal, and he swears that he then made an estimate of it; that he intended to make a correct one, and believes he did, and he made at that time a memorandum of such estimate, and which memorandum was a correct one of the estimate.

It seems to me entirely clear, upon principle and authority, that such witness may look at the memorandum and thus refresh his recollection, even though he said he had no recollection whatever of the amount of the estimate outside of the memorandum. The learned counsel says the estimate was not made on oath. That is true. Neither is any other memorandum of a fact, made at the time, made on oath. Suppose he had said he weighed the coal and made a memorandum of it at the time, which was correct when made, but he had no recollection of the amount the coal weighed outside of the memorandum. I understand counsel to admit that the authorities sustain the right of the witness to read from the memorandum, or that it may go in evidence. The distinction I understand him to draw is, that in the one case it is a fact which has been minuted down in the memorandum, and in the other it is an estimate of a fact or quantity, and that no case has gone thus far.

The principle decided in Halsey v. Sinsebaugh (15 N. Y., 485), warrants the admission of such evidence. An estimate might be made by a person competent to make it. If so, and he does make such estimate, which he swears he means' to, and as he believes did make correctly at the time, and the memorandum of which he swears he then made correctly, why should he not be permitted to state what that memorandum was in that case, as much as in the case of a memorandum of fact ? There is a difference, of course, in the weight to be attached to the estimate, but only because of the difference between a fact and the estimate of a fact, and if the latter is in itself admissible (which counsel does not deny), then I cannot see why a memorandum of the estimate should not be admissible just as much as the memorandum of the fact. Both estimate and fact are made without any oath at the time, and both come in under the oath of the witness that the memorandum was correct when made of a fact (or estimate) then happening or made. In this case the witness tells the number of tons by his estimate or opinion, and the fair import of the whole evidence is that he tells it from the memorandum he made at the time. I think the evidence was properly admitted.

The evidence of Mr. King that the interest of defendant White was really his own, and the evidence of the acts and declaration of King after the alleged dissolution, as bearing upon the understanding of each of the three persons in any way interested in the partnership as between themselves, properly came in upon the same principle already alluded to in discussing the admissibility of evidence of the acts and declarations of the witness Nichols, the partner of the defendant White. The case, as it seems to me, was very carefully tried and a verdict rendered upon evidence which was quite conflicting, and there being no errors in the record the judgment should be affirmed, with costs.

Bockes, P. J., and Landon, J., concurred.

Judgment and order affirmed, with costs.


author: LandoN, J.;

text:
    CHARLES H. BADLAM, Respondent, v. CHARLES G. SPRINGSTEEN, Appellant.

      Counter claim —when a judgment recovered against the plaintiff, during the pendency of the action brought by the plaintiff, may be set up by the defendant.

    Appeal from a judgment in favor of the plaintiff, entered at the St. Lawrence Circuit upon the trial of the action by the court without a jury.
    This action was commenced June 11, 1885. The plaintiff sought to recover and did recover judgment for fifty-seven dollars and seventy-two cents, of which forty dollars and seventy-two cents were one-half the profits realized by defendant upon the sale of an organ. The plaintiff was employed by defendant to máte sales for him of musical instruments under an agreement that plaintiff’s compensation should be one-half of the profits upon such sales, the same to be paid plaintiff after defendant had received the price at which the instruments were sold. The balance of the recovery, seventeen dollars, was the price of a piano stool sold by plaintiff to defendant. Both of these causes of action arose before January 1, 1883.
    The questions presented by this appeal are whether the defendant established a defense or counter-claim to the above causes of action or to either of them ? Five days before this action was commenced the present defendant Springsteen brought an action against the present plaintiff Badlam. The complaint in this action charged that Badlam, as Springsteen’s agent, in 1S8Ü sold three organs to different customers and received the prices thereof; that Badlam was employed by Springsteen under an agreement to account and pay to the latter such moneys as he should receive upo'n such sales, and was to be paid for his services one-half the net profits, upon and after such accounting and payment; that Badlam did not, though requested, account and pay as agreed, but kept $220 to his own use. Judgment was demanded for an accounting and for $220. Badlam by his answer admitted the employment and the receipt of the $220, and alleged that he was also to be allowed his expenses, which were stated at fifty dollars, and that his share of the profits exceeded fifty dollars. The defendant Springsteen by his original answer in the present action set up the same facts contained in the complaint in the action first brought. The action of Springsteen against Badlam was tried at circuit September 2d, 1885.- Badlam appeared by counsel, but offered no testimony, and the court found the facts as charged in the complaint, and directed judgment for $220, and interest thereon from January 1, 1885, that being the date mentioned in the complaint in which the cause of action was complete. Judgment was accordingly entered for $311.03 damages and costs.
    Thereupon Springsteen served an amended answer in the present action, alleging the same facts as before, and in addition, the recovery of the above judgment. The plaintiff moved at Special Term to strike out the allegation respecting the judgment, but the motion was denied. No part of the judgment lias been paid. The defendant requested the court to find, as conclusion of law, that the judgment so recovered was a bar to the cause of action set forth in the complaint, and that the matters, set up as a defense, constituted a set-off and counter-claim. The court refused to so find.
    The court at General Term said: “ The order of the Special Term refusing to strike out of Springsteen’s answer in this action the allegation respecting the judgment, is an adjudication which the trial court could not review or disregard, that the judgment was properly pleaded. This judgment has three uses: First. It is a bar to any further litigation of the issues involved in the former action. {Pray v. liegeman, 98 N. Y., 351; Patrióle v. Shaffer, 94 id., 424.) Second. It is conclusive evidence of the truth of the matters thereby determined. {Marston v. Swett, 66 N. Y., 211; Krelceler v. Hitter, 62 id., 372.) Third. It is an established demand, valid against the plaintiff.
    “ The contention of the plaintiff, that because the defendant chose to take a judgment in the former action, he cannot avail himself here of the benefit of the judgment, cannot be upheld. The plaintiff cites Inslee v. Hampton (11 Hun, 156). In that case Hampton first sued Inslee for proceeds of sales of merchandise. Inslee answered that his advances exceeded the proceeds of the sales, ,and on proof of this answer defeated Hampton, but he did not ask or recover for the excess of his advances over the proceeds, and he brought this second action for such excess and was defeated. The .court properly held that he could not split his demand, and remarked that, having chosen to use his cause of action first as a :sliield he could next use it as a sword. The converse of the proposition is not true. The defendant may not repeatedly vex the plaintiff with further suits upon the cause of action he has once established, or upon the judgment (Code Civ. Pro., § 1913), but having .established and recovered it, he may use his judgment as a shield .against the attack of the plaintiff, and use it to his best advantage. The plaintiff can protect himself by paying the judgment.
    “ The judgment establishes the fact that the plaintiff owes the defendant upon account of the matters alleged in the complaint in the first action, and in the answer in this action, $311. If the plaintiff owes the defendant that sum, why should not the ■defendant be permitted to set it off or counter-claim it against any contract demand of the plaintiff? The judgment also establishes the truth of defendant’s answer. If the answer is true, why should not the truth avail the defendant? An unpaid judgment may be set up as a counter-claim. It is a cause of action. ■(Code of Civil Pro., § 501.) Suit may be brought upon it with leave of the court, but leave of the court does not constitute a cause .of action. (Wells v. Ilenshaw, 3 Bos., 625.) Of course the defendant can have only one satisfaction, but he should not, as under the plaintiff’s contention, be precluded from obtaining that. We think the judgment should have been for the defendant.”

      Hannibal Smith, for the appellant.

      John W. Stone, for the respondent.
   Opinion by

LandoN, J.;

Bookes, P. J., and PARKER, J., concurred.

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


author: HaediN, P. J.: Follett, J.

text:
    HUGH T. JONES, as Executor, etc., of THOMAS U. JONES, Deceased, Appellant, v. WILLIAM T. JONES, Respondent.

      Fraud against ereditors — what proof admissible to sustain an action for money received from a deceased person — 1858, chap. 814, sec. 2.
    The complaint in this action, brought by the plaintiff, as executor of one Thomas U. Jones, alleged that the defendant had, on January 13, 1883, received $1,035 in money belonging to the testator, which he refused to pay after demand had been made therefor. Upon the trial it was shown that the money had been received on the day named, the defendant claiming title thereto by a gift from the testator, consummated on January 29, 1883. The plaintiff, to show that the gift was fraudulent as to the creditors of the testator, produced and offered to prove the execution of a note made by the testator on November 7, 1882, to the order of the plaintiff. The evidence was excluded by the court on the ground that it was not competent under the pleading.

      Held, that this was error. (Follett, J., dissenting.)
    That the plaintiff had a right to show that he was a creditor of the testator in ordei to bring the case within the provisions of section 2 of chapter 314 of 1858, declaring that every person who shall, in fraud of the rights of creditors, have received and taken, or in any manner interfered with the estate, property or effects of any deceased person, shall be liable in the proper action to the executors or administrators for the property or its value.
    That as the evidence was admissible under the issue as it stood, the plaintiff was not required to direct the attention of the court to the reasons for offering the evidence.

      Appeal from a judgment, entered in Oneida county upon a verdict directed at the circuit for the defendant; also from an order denying a motion for a new trial, made upon the minutes, on all the grounds allowed by law for such a motion. The court directed a verdict for the defendant and plaintiff excepted.

      Walter Ballou, for the appellant.

      Bentley <& Jones, for the respondent.
   HaediN, P. J.:

The plaintiff brings this action as executor of Thomas U. Jones, deceased, having duly qualified as such. The complaint alleges that the defendant received $1,035 in money the 13th of January, 1883, which belonged to the testator.

The fact is shown, by the evidence given upon the trial, that on the day alleged the defendant did receive that sum of money through the express from the attorney in Boonville. That money belonged to the testator. The defendant sets up title to that money by a transfer in consummation of a gift alleged to have occurred on the 29th of January, 1883, and gave some evidence tending to show that such a transfer and gift were made by the testator to the defendant. Thereupon the plaintiff sought to overcome the force of such evidence of a gift and transfer by showing that the gift or transfer was a fraud upon the creditors of the testator, including the executor, who was interested in the estate and a creditor. To make such proof the plaintiff produced and proved the execution of a note made by Thomas U. Jones, dated November 7, 1882, whereby he promised to pay Hugh T. Jones, or bearer, the sum of eleven hundred and fifty dollars on demand with use, for value received, and offered said note in evidence. The same was objected to and excluded by the court on the ground that it was not competent under the pleadings.” Plaintiff excepted to the ruling.

Section 2 of chapter 314 of the Laws of 1858 declaims “ that every person who shall, in fraud of the rights of creditors and others, have received, taken, or in any manner interfered with the estate, ‘property or effects of any deceased person, * * * shall be liable in the proper action to the executors, administrators * * * for the same, or the value of any property or effects so received or taken.”

The plaintiff, as before stated, had alleged that the defendant had received the money of the testator. Defendant had alleged a gift of it and gave proof to that effect. Plaintiff then had a right to show, by way of avoidance of the gift, that it was in fraud of his rights as executor as well as of himself as a creditor. To bring the case within the provisions of the statute of 1858, plaintiff had a right to show that he was a creditor of the testator at the time of the alleged gift. The plaintiff offered to read in evidence a note made by the testator, dated November 7, 1882, for $1,150. The transfer or gift by testator was not until January 29, 1883. ¥e think the evidence, when offered, was legitimate, and that the court erred in excluding it. Plaintiff had alleged the taking and receipt by the defendant of testator’s property at a time subsequent to the note, and those allegations were sufficient to bring the action within the provision of the statute of 1858. The issue, at the time the evidence,was offered, was as to the validity of the gift as against the creditors of the testator. The evidence bore upon the issue. The pleadings were sufficient to enable the plaintiff to assert the invalidity of the transfer. (Laws of 1858, chap. 314; Barclay v. Quicksilver Mining Co., 6 Lans., 32; Potts v. Hart, 99 N. Y., 170.)

In the case last cited the complaint was general, “alleging that the defendants wrongfully took and carried away,” etc. The answer was a general denial, but a recovery was upheld under the statute of 1858. The act of 1858 has given a right of action in cases where none existed before. (Fort Stanwix Bank v. Leggett, 51 N. Y., 554; Ceas v. Bramley, 18 Hun, 187; Southard v. Benner, 72 N. Y., 424.)

In Ceas v. Bramley (18 Hun, 189) BoardhaN, J., says: The statute extends the remedy of a representative. In that case we find the complaint was general for the value of the property taken by the defendant, who set up an agreement under which he claimed to be entitled to the possession of the property. The point was taken in that case that the evidence was improper under the pleadings and overruled and a recovery was upheld. (Levin v. Russell, 42 N. Y., 251.) The defendant here insists that the attention of the court should have been directed to the reasons for offering the evidence. If the evidence had not been admissible upon the issue as it stood there might be force in the suggestion. (Knapp v. Simon, 96 N. Y., 284.)

The case of Langley v. Wadsworth (99 N. Y., 61) differs from this one. There letters had been introduced to show the note to be spurious, and then defendant moved for a verdict and that was refused. Upon appeal he sought to take another and a fresh position by claiming that the letters showed a want of consideration for the note. It was held that the position was taken too late. Thayer v. Marsh (75 N. Y., 341) was a case where there was a general motion for judgment without specifying the particular defect complained of, which was raised for the first time on appeal, and the court held it was too late.

In the case before us the court fell into an error in ruling that the evidence was not comjietent under the pleadings. For that error a new trial should be ordered.

Judgment and order reversed and new trial ordered, with costs to abide the event.

Boardman, J., concurred.

Follett, J.

(dissenting):

Chapter 314, Laws 1858 (3 K. S. [7th ed.], 2330), does not authorize the plaintiff to recover the gift unless it was fraudulent and void as against creditors. If, at the time of the gift, the testator retained sufficient property for the payment of his creditors the gift was valid. There is no evidence in the case that the testator was insolvent at the time of the gift, or at the date of his death, without proof of which a recovery could not be had. When the note given by the testator to the plaintiff was offered in evidence and excluded it was not suggested that the plaintiff proposed to show that the testator was insolvent; and this being the case there was no error in the ruling. As the case stands the plaintiff was not entitled to a direction for the recovery of $150, upon an apportionment of the $300, which would have become due the testator had he lived until January 1, 1885. (2 Perry on Trusts, § 556.)

The judgment should be affirmed, with costs.

Judgment and order reversed and new trial ordered, with costs to abide the event.


author: Hardin, P. J.:

text:
    LONZO M. HOWELL, Appellant, v. THOMAS R. WRIGHT, Respondent.

      Promissory note — what is a sufficient consideration for it.

    In this action, brought by the plaintiff as the owner of a promissory note made by the defendant to the order of one Howell, the defendant denied the ownership of the note by the plaintiff, and also denied that he, the defendant, ever received any value for the making and delivery of the note, and alleged that it was without consideration and void. Upon the trial evidence was given tending to show that on September 8,1884, Howell delivered to one Case three notes executed by the defendant, upon which there was then due $3,069.50, upon the receipt of $1,585.55, at the request of the defendant and upon his promise to subsequently give to Howell his note for the balance, and that the note in suit was given in pursuance of the said agreement.

      Held, that the evidence established that the note was given upon a sufficient consideration.
    Appeal from a judgment, entered upon a verdict rendered at the Oswego Circuit, and from an order denying a motion for a new trial made upon the minutes and upon the exceptions taken by the plaintiff, and on the ground that the verdict was against the evidence given on the trial and was wholly unsupported by any evidence.
    The action was brought upon a promissory note executed by the defendant in the following language, viz.:
    “$1,535.55. Eulton, Oswego County, N. Y., )

      September 3, 188é. )

      “ Six months after date I promise to pay to O. Howell, or bearer, fifteen hundred thirty-five and dollars at the residence of T. E. Wright, in Oswego Falls, value received, with use.
    “ (Signed) T. E. WEIGHT.”
    The complaint alleged that the note was transferred to the plaintiff before maturity for a valuable consideration, and that the plaintiff was the owner of the note. The answer put in issue the transfer by the payee to the plaintiff, and also the plaintiff’s ownership of the note, and denied that the defendant “ received any value for the making and delivery to the payee thereof of the promissory note set forth in the complaint, and avers that said note was and is without consideration and void.” Plaintiff produced the note in evidence and rested. Thereupon the defendant called the plaintiff as a witness. He was examined touching his ownership of the note, and in regard to the time when he received the transfer from the payee. His evidence was uncertain and fluctuating and conflicting as to the time when he became the owner of the note. The defendant proved by Kellogg that he, as agent for one Case, on the 3d day of September, 1884, received from Orlando Howell, the payee in the note, three notes executed by the defendant upon which there was due at that date $3,069.50, and that he paid said Howell therefor $1,535.55 as the agent of one George M. Case.
    The defendant was sworn as a witness in his own behalf and admitted the execution of the note alleged in the complaint. He testified that he had a conversation with Orlando Howell, the payee in the note, on the third daj'of September. The witness continuing in his testimony said, as to the interview on the third of September, viz. : “ I did say to Mr. Howell on that occasion that I would not sign the note on that day, but that I would in a day or two, because I did not want to be asked questions and lie about it; I told Howell I would sign the note for the other half; I told him that at the interview at Howe & Rice’s office, I think, and I am pretty confident that it was prior to September third, and prior to Howell’s going to the bank and getting his money of Kellogg, that this conversation occurred, and I promised to sign the note for the balance.” He also testified: “ I did not sign any paper at that time; I told Mr. Howell at that interview that he had better, I think that is the way I put it, take his fifty cents on the dollar because I didn’t know if I ever paid him anything, and I would feel better to know that he was having part of the assets; no note was drawn there that I saw, but I told him I would give him a -note and pay it if I ever got able; that is all I remember; I suppose that this note was given in accordance with that agreement; I signed it some time after; I stated on the direct-examination that I was desirous that each of my creditors should be paid in some way.”
    No evidence was given contradicting the testimony of the defendant. At the close of the evidence plaintiff asked the court to direct a verdict for the plaintiff for the amount of the note in suit on the ground that no defense had been proven to the note even though plaintiff was not shown to be a bona fide purchaser for value before maturity. That the evidence showed that prior to taking the fifty cents on the dollar the defendant had agreed to give his note for the balance, and had given this note in accordance with that agreement. The requests were denied, and to the rulings the plaintiff excepted. The case was then submitted to the jury on the two following questions, viz.: First, whether the plaintiff was a bona fide holder of the note .before due; and, sepond, whether there was any consideration for the note. The court charged, among other things, viz.: “ That a mere moral obligation is not sufficient to support a promise, and the question here is whether, notwithstanding Mr. Case bought up that three thousand dollars of indebtedness at fifty cents on the dollar, and the moment he bought it owned it as an obligation, that he could enforce against the defendant for the face value of it; although he had paid fifty cents on a dollar for it, that notwithstanding that fact if the defendant requested him to do it, telling him at the time that he made the request that if he did it, if he took fifty cents from Mr. Case, that he, the defendant, would give him his note for the balance, and that, acting upon that, Mr. Howell went and accepted that fifty cents, when otherwise he would not have accepted that fifty cents but for that promise; if these are the facts, that raises a consideration for the note which will support it, and would enable Mr. Orlando Howell himself to enforce it if he had brought the suit in person instead of having sold it to his son; ” also, viz.: “ If Mr. Case did buy these notes without any request from Mr. Wright to Mr. Howell that he should take the fifty cents, and after they completed the transaction Mr. Wright had promised Mr. Howell to give him his note and had given it, there would have been no legal obligation for him to have paid that note, but if before Mr. Howell parted with these obligations against Mr. Wright, which on their face amounted to over three thousand dollars, if before he sold this three thousand dollars worth of obligations face value for fifteen hundred and some odd dollars, he was requested by the defendant to do so, and he did so on the faith of the defendant’s promise that if he did so, he would give him his note for the other fifty cents, then, gentlemen, as I said before, that is a full consideration for the note, and it can be enforced by the plaintiff whether he is a bona fide holder or not, as it could have been enforced by Mr. Orlando Howell had he brought the suit in his own name.”

      Ilowe de Bice, for the appellant.

      S. K. Dada, for the respondent.
   Hardin, P. J.:

When the plaintiff produced the promissory note and read the same in evidence it established prima facie a sufficient consideration, The words “ value received,” are sufficient prima fade to make out a consideration for the promise contained in the note. (Hinman v. Moulton, 14 Johns., 466 ; Bank of Troy v. Topping, 9 Wend., 273.)

It is well settled that one promise is a good consideration for another. (Briggs v. Tillotson, 8 Johns., 304.) However, they must be concurrent. (Cooke v. Oxley, 3 D. & E., 653 ; Livingston v. Rogers, Coleman & C. Cases, 331.) An agreement to render services or to perform an act is a valid consideration for a promise. (Taylor v. Rennie, 35 Barb., 272.) And an injury to one party as well as benefit to another is sufficient consideration for a promise. (Miller v. Drake, 1 Caines, 45.) However, the benefit to one party or the inj ury to the other which can avail as a consideration to support an agreement, must be a benefit to which the party is not entitled, except as a consideration of his undertaking, for the injury must be to the legal rights. (Converse v. Kellogg, 7 Barb., 590 ; Beckwith v. Brackett, 97 N. Y., 52.)

The burden was upon the defendant to show that there was not any consideration for the note in suit to overcome a prima fade case made by the production of the note. We think the evidence given upon the trial established the fact that the note in suit was given by the defendant to Howell in pursuance of a request to Howell that he should transfer the notes of $3,000, and that on condition that they were so transferred the defendant would execute the note in suit.

We think the testimony of the defendant, viewed as evidence, or viewed as admissions on the trial, coupled with the note produced and read in evidence, with the surrounding circumstances, satisfactorily indicate that Howell consented to part with the $3,000 notes for fifty cents on a dollar, on condition that he receive the note in suit. Yielding to the request of the defendant, and making a transfer of the $3,000 indebtedness for fifty cents on a dollar to Case, and the reliance upon the promise of the defendant to give his note for the other fifty cents on a dollar, furnished a consideration for the note in suit.

But if we view the evidence in another light, it seems to justify a conclusion that the defendant undertook and promised, with Orlando Howell, in the event he would take fifty cents on a dollar for the $3,000 of debt from Case, and transfer that indebtedness to Case (which was long past due), that he, the defendant, undertook, and in his own language as he states it upon the stand, “ promised to sign the note for the balance.” • The note in suit was given on six months time. If it be treated as being given for the balance of the $3,000 debt, then by the terms of the arrangement the defendant secured himself an extension of fifty cents on a dollar of the $3,000 debt for the period of six months. We see no reason why the promise of the defendant, found in the note in suit, should not be upheld.

In Stafford v. Bacon (25 Wend., 384) it appeared that the defendant had compromised his debt by paying one-third thereof, and after the compromise had promised “ to pay the balance,” and the court.held “that such promise is binding, although made without any new consideration moving thereto.”

Certainly there was a precedent duty and obligation on the part of the defendant to pay to his creditor 100 cents on a dollar on the $3,000 debt, and when he requested his creditor to part with that obligation for fifty cents on a dollar, and promised to pay the other fifty cents, and executed a note in pursuance of that promise, the note was supported by a valuable consideration. (Section 182 of Daniels on Negotiable Instruments.) It is said in the section to which we have referred, that a promissory note “ for the payment of a debt discharged in bankruptcy, or barred by the statute of limitations or voluntarily released, * * * would be valid as upon any other valuable consideration.” The foregoing views lead us to a conclusion that the verdict is against the evidence upon the question of consideration for the note in suit. We think there should be a new trial.

Judgment and order reversed and new trial ordered, with costs to abide tbe event.

Boardman and Eollett, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to abide event.


author: Hardin, P. J.: Follett, J.:

text:
    HARRIET BEAL, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Taking of land by a railroad company — when it lakes afee and not amere easement— 1833, chap. 294 — power of the legislature to extend the term of its corporate existence —■ to authorize its consolidation with other companies — effect thereof, on its tide to land.

    In 1835 the Utica and Schenectady Railroad Company, incorporated under chapter 294 of 1833, instituted proceedings under its charter to acquire lands, then owned by the plaintiff, a minor, which resulted in the entry on May 9, 1836, of the final decree of the Court of Chancery required by the said act, which provided that upon the recording of the said decree the corporation should be possessed of the lands for the purpose of the said road, and that it might enter upon and take possession of and use the same. The term of the corporate existence of the company was fixed by the charter at fifty years, which term expired on April 28, 1883.
    The Utica and Schenectady Railroad, after having entered into possession of the land, was, pursuant to an act of the legislature, legally consolidated with other railroad companies into a corporation known as the New York Central Railroad Company, all the rights, franchises and interests of the old company being thereby transferred to and vested in the new company, the act expressly providing that the title and real estate acquired by the old company should not be deemed to revert or be impaired by means of such act of consolidation or anything relating thereto. Thereafter, by virtue of an act passed in 1869, the New York Central Railroad Company was duly consolidated with the Hudson River Railroad Company under the name of the New York Central and Hudson River Railroad Company and the title to the said lands was thereby transferred to and vested in the defendant.
    The plaintiff, claiming that the Utica and Schenectady Railroad Company only acquired an easement in the lands by the proceedings instituted under the act of 1833, which terminated with the expiration of the fifty years to which its existence was by that act limited, brought this action of ejectment to recover the lands.

      Meld, that the action could not be maintained.

      That the proceedings, instituted under the act of 1833, transferred the fee and not a mere easement in the premises to the company. (Per Hardin, P. J.)
    That if this were so the expiration of the time limited for its corporate existence would uot, without subsequent legislation, work a reverter of the title to the plaintiff. (Per Hardin, P. J.)
    That as the power to at any time alter, modify or repeal the act of incorporation was expressly reserved by the act of 1833 to the legislature, that body could extend the period of its corporate existence, or authorize its consolidation with other corporations, and authorize its successors to receive and hold its property and effects,including the premises in question, and to require and authorize them to be possessed of them for the purposes of a railroad and its use of the same. (Per Hardin, P. J., and Follett, J.; Boardman, J., concurred in result.)
    Appeal from a judgment, entered in Oneida county upon findings of fact and law, made at the Oneida Circuit after a trial without a jury, dismissing the plaintiff’s complaint, with costs.
    The complaint alleges the creation of an incorporation called the “ Utica and Schenectady Railroad Company ” by the legislature on the 29th day of April, 1833, by the passage of chapter 294 of the Laws of that year, with a corporate existence of fifty years, and that the term expired on the 28th day of April, 1883. That the route of the railroad authorized by that act “ was laid out and constructed by the said corporation over and across and upon lands and premises then owned in fee simple by the plaintiff herein, situate, lying and being in the village of Amsterdam, in the county of Montgomery. That in the year 1836, as appears by the records of the proceedings filed and recorded in the Montgomery county clerk’s office, to which reference is hereby made, the said plaintiff then being an infant and remaining the owner in fee simple of the said lands and premises upon, over and across which said proposed line or route of said railroad or ways was laid as aforesaid, the said Utica and Schenectady Railroad Company instituted proceedings, as it was authorized by its charter to do (Session Laws of 1833, § 7, chap. 294), to acquire the right of way for its railroad tracks along, across and over the said lands and premises of the said plaintiff.”
    The complaint describes the lands. It also alleges that proceedings “were completed and the final order or decree of the chancellor recorded in the Montgomery county clerk’s office on the 9th day of May, 1836, in book of deeds number three, at page twenty-eight, to which reference is hereby made, and that soon thereafter the amount awarded to plaintiff, as and for her damages, by the commissioners appointed to make said appraisal, was paid to the guardian of the plaintiff.”
    The complaint further alleges, viz.: “ The said corporation acquired an easement only, or the right to take possession of the said lands for the purposes of the said railroad during its corporate existence of fifty years only. That on the 28th day of April, 1883, the said lands and premises so taken and appropriated by the said [Jtica and Schenectady Railroad Company, as aforesaid, reverted to the plaintiff, and at that time she became entitled to the possession thereof as owner in fee simple.”
    It also alleges that the defendant is in the possession of the premises described, and that since the 28th day of May, 1883, it has wrongfully withheld possession thereof from the plaintiff. The answer sets up the incorporation, under the Laws of 1833, of the Utica and Schenectady Railroad Company, and that it “ did duly take proceedings to acquire title to the land mentioned and described in the complaint, and such proceedings were duly had that a decree was duly made by the Court of Chancery of the State of New York, vesting the title to the said land and premises in the said Utica and Schenectady Railroad Company, whereby the said corporation became and was the absolute owner thereof.”
    It also alleges that the Utica and Schenectady Railroad Company entered into possession of the land and “took exclusive control thereof, and afterwards, by and pursuant to an act of the legislature of the State of New York, passed April 2, 1853, the said Utica and Schenectady Railroad Company was duly and legally consolidated with other railroad companies into a corporation known as the New York Central Railroad Company, whereby all and singular, the rights, franchises and interests of the said Utica and Schenectady Railroad Company, with all rights of property, real and personal, was, by the authority of the said act, transferred to and vested in the said New York Central Railroad Company, and in and by said act of 1853, it was expressly provided that the title and real estate acquired by the Utica and Schenectady Railroad Company should not be deemed to revert or be impaired by means of such act of consolidation, or anything relating thereto; whereby the said New York Central and Hudson River Railroad Company became and was tlie owner of, and vested with the title to, the said land and premises described in the complaint, and the absolute owner of the same.”
    It is further alleged that subsequently and before 1869, this defendant obtained and became vested with the title of the premises claimed in the complaint, and that by virtue of an act passed May 20, 1869, the said New York Central Railroad Company was duly consolidated with the Hudson River Railroad Company, under the name and style of the New York Central and Hudson River Railroad Company, and that the title to said lands was transferred to and vested in the defendant, and the answer'alleges that the defendant is the owner and lawfully entitled to the possession of the property described in the complaint.
    By a stipulation used upon the trial it was admitted that by virtue of chapter 294 of the Laws of 1833, proceedings were instituted and prosecuted to a consummation in the Court of Chancery, whose decree was in all respects regular, valid and binding, so far as could have been made under chapter 294 of Session Laws of 1833, by the Court of Chancery, and contains a correct recital.of the contents of the petition presented to the chancellor in said proceedings. That immediately after said decree was recorded in the Montgomery county clerk’s office, as aforesaid, the said Utica and Schenectady Railroad Company paid the amount awarded, as required by said decree, and, pursuant thereto, took possession of the premises and occupied and used the same, for the purposes of its railroad, up to and until the year 1853, at which time the said Utica and Schenectady Railroad Company was, under the act of the legislature of the State of New York, passed April 2, 1853, duly and legally consolidated with other railroad companies into a corporation known as the New York Central Railroad Company.
    The stipulation also admitted the incorporation of the defendant, and that thereupon it became vested with all the property held by the New York Central Railroad on the 30th day of May, 1869, and that the Utica and Schenectady Railroad Company, since the 19th day of May, 1836, and its successors, * * * “ have been in the exclusive possession and occupation of said premises, using the same 'as a railroad, and that the defendant is still in the possession thereof, using it as and for a railroad and not otherwise.”

      After finding the facts already stated the circuit judge found, as a matter of law, viz., “ that the plaintiff cannot maintain this action and the defendant is entitled to judgment dismissing the complaint, with costs.”

      Cl W. White, for the appellant.

      D. M. K. Johnson, for the respondent.
   Hardin, P. J.:

Whether the plaintiff is entitled to or interested in the lands described in the complaint depends upon the construction of chapter 294 of the Laws of 1833, and the force to be given to the proceedings had under that chapter to condemn the lands in question, or, in other words, did the proceedings had operate to transfer from the plaintiff the fee or a mere easement in the premises, limited to the period expiring on the 28th day of April, 1883 ? (2 Wood Railroad Law, 764.)

Section 7 of chapter 294 of the Laws of 1833, authorizes the corporation, first, to purchase, receive and hold such real estate as may be necessary and convenient in accomplishing the object for which this corporation is granted ; second, it also authorized the corporation’s agents, surveyors and engineers to enter upon such route, place or places to be designated; and, third, it authorizes “ the said corporation to enter upon and take possession and use all such lands and real estate as may be indispensable for the construction and maintenance of said double railroad.” * * * It also authorizes the corporation, fourth, to “ receive, hold and take all such voluntary grants and donations of land and real estate as shall be made to the said corporation to aid in the construction, maintenance and accommodation of said railroad or ways; but all lands or real estate thus entered, taken possession of and used by the said corporation, whieh are not donations, shall he purchased of the owner or owners of the same, and at a price to be mutually agreed upon between them; in case of a disagreement in price, and before the making of any portion of the road upon, said land, the directors of said corporation may present their petition to the chancellor, setting forth the necessity of such lands for making said railroad or ways, and of the attempt and failure to purchase the same, with the name and residence of the owner and the reason why the purchase cannot be made. And the chancellor shall direct such notice to the owner or owners of such lands, as he shall deem proper and reasonable, of the time and place of hearing the parties; and upon proof of due service of such notice, and upon hearing the parties, the chancellor shall appoint three competent and disinterested freeholders of the. county in which the lands are situated to be commissioners to appraise said lands. The said commissioners shall appraise said lands, and shall award to the owner or owners thereof what they shall deem to be the full value of the same; and shall be authorized to examine the lands, to administer oaths and hear testimony ; and shall make their appraisement in writing without delay, under their hands, with a minute and accurate description of the land appraised with a map thereof, and shall report the same, with the testimony taken, to the Court of Chancery. The chancellor shall examine the report and shall hear the parties, if desired, and may increase or diminish the amount awarded if he shall be satisfied injustice has been done. Upon proof to the chancellor, within thirty days after his determination, of payment to the owner, or of the depositing to the credit of the owner in such bank as the said chancellor shall direct of the amount of such appraisement, and th,e payment of all expenses attending it, the said chancellor shall make a decree or order particularly describing the lands and reciting the appraisement, and the mode of making it, and all other facts necessary to a compliance of this section of the act. And when the said decree or order shall be recorded in the office of the clerk of the county in which the land is situated, whose duty it shall be to record the same, the said corporation shall be possessed of all the lands for the purpose of the said road, and may enter upon and take possession and use the same.”

In ascertaining the proper construction to be given to the section under consideration, attention must be given to the words, viz.: But all lands or real estate thus entered, taken possession of and used by the said corporation, which are not donations, shall be purchased of the owner or owners of the same, and at a price to be mutually agreed upon between them.” This language is broad and comprehensive, apparently used for the purpose of including all lands which the road should acquire otherwise than by “ donations.” It seems to relate not only to lands as to which there should be a voluntary conveyance, but to lands which should be acquired by resort to proceedings under the principle of eminent domain. The following language bears upon the construction which we have intimated should be given to the sentence just quoted, viz. : “In the case of a disagreement of price,” the directors were authorized to present their petition to the chancellor, “ setting forth the necessity of such lands for making said railroad or ways, and of the .attempt and failure to purchase the same, with the name and resilience of the owner.” Thereupon the chancellor was authorized to .appoint commissioners “ to appraise said lands.” Then follows a rule for the appraisal, commanding its commissioners to “ appraise :said lands, and shall award to the owner or owners thereof what they .shall deem to be the full value of the same.” The commissioners .are then directed to make an appraisement in writing “ with a .minute and accurate description of the land appraised.”

The section then provides that “ upon proof to the chancellor •* *• * 0f payment to the owner, the chancellor shall make a decree particularly describing the lands and reciting the appraisement, the mode of making it, and all other facts necessary to a compliance with this section.” Then follows a provision that when the decree shall be recorded “ the said corporation shall be possessed of all the lands, for the purposes of said road, and may enter upon .and take possession and use the same.” It must be borne in mind ■.that the language, which we have quoted, refers to the lands unqualifiedly. No words are used indicative of an attempt to .■authorize the taking of anything less than the fee. The concluding language of the section was probably inserted for the purpose of ■declaring that the company should be the owner of the lands.

The word “ possessed ” seems to be used as the equivalent of the word “owner.” If we thus read the sentence, the statute •declares that the company shall be. the owner “ of all the lands upon payment of the price ” or “ appraisement ” of the lands fixed by the commissioners. As we have already seen, in the early part .of the section there was an intent evinced by the language used, that alb lands should be purchased (except those donated), first, .at price to -be mutually agreed upon; and, second, that in case ■of a disagreement of price., that the price should be named by commissioners. Some stress is laid by the appellant upon the words found at the close of the section, viz.: “ Said corporation shall be possessed of all the lands for the purposes of said road and may enter upon and take possession and use the same.”

We are not able to construe these words as indicative of an attempt to limit the estate or of the title which should pass to the corporation under the proceedings. It may be conceded that those words required the- corporation, or its successors, to use the land for railroad purposes. So far as public policy is concerned, the language may be regarded as sufficient to require the corporation created to devote the premises thus acquired to no other use or purpose.

It is not claimed, upon the facts before us, that the corporation thus created, or its successors, have devoted the lands to any other purpose than that of maintaining and operating a railroad thereon. If we are right in assuming that the fee passed under the proceedings to the corporation, then it possessed the right to use and occupy the premises in question, for the purpose of erecting, building or making a single, double or quadruple railroad or way, and by the charter it also possessed “ the right of using the same in the manner * * * directed ” in the act for and during the term of fifty years.” It was thus permitted to operate its road, b,y express permission of the legislature, for the period of fifty years. But by the nineteenth section of the act it was expressly declared that rhe legislature may, at any time, alter, modify or repeal the act. So far, therefore, as the act is concerned, the act in question gave the corporation created by it certain powers. These powers were to be enjoyed by it for the period of fifty years. It was competent for the legislature to. extend the period to a corporation thus created, or to so modify the charter, alter or amend it, that in conjunction with one or more other coi’porations, the same privileges might be exercised. But if we are right in assuming that the corporation received the same title or interest in virtue of the proceedings, which it acquired in lands where there was a mutual agreement as to price, the lapse o.f time without subsequent legislation would not work a reverter of' the title to the premises to the plaintiff.

In Heath v. Barmore (50 N. Y., 302) it is held, viz.: “ The rule of the common law, that real estate held by a corporation at the-time of its dissolution reverts to the grantor, does not prevail in this State in respect to stock corporations. Where lands are conveyed absolutely to a corporation having stockholders, no reversion or possibility of a reverter remains in the grantor.”

In such case it seems to be settled that property acquired by purchase may be conveyed to a subsequent purchaser “ discharged of any right of reverter in the grantor or his heirs.” (Kenney v. Wallace, 24 Hun, 479; Nicoll v. Erie Railway, 12 Barb., 460; S. C. affirmed, 12 N. Y., 121.)

It was held in the Brooklyn Park Commissioners v. Armstrong (45 N. Y., 234), that “in the exercise of the right of eminent domain, the legislature are the sole judges to what extent the public use requires the extinguishment of the owner’s title, and their power in this respect (subject always to the necessity of making full compensation) is not limited by any constitutional restriction. The nature of the right acquired by the public in such cases, whether an absolute title to, or a mere easement in, the lands, depends, therefore, upon the intention of the legislature, to be deduced from' the act authorizing the condemnation.”

Judge Folger says in that case, at page 241: “The terms employed in the fifth section, desei-iptive of what is to be acquired and paid for, are broad, and would seem to include all of a proprietary nature in the lands, or connected with or growing out of them. And for relinquishing it all, the owner is to be paid the full value of it all, without deduction. It seems inconsistent, that if the legislature intended that the city should take but an easement, it should be required to pay the value of the lands, and of all hereditaments and appurtenances, and also the other loss and damage to the owner from the taking, without deduction for benefit. This would be to exact the price of the fee for taking a user only. It could not have been intended that the owner should receive full value, and yet have left to him a reversionary interest.” (Haldeman v. The Pennsylvania Cent. R. R. Co., 50 Penn. St. R., 425 ; Cooley on Limitation of Legislative Power, 552.)

This case was referred to by Andrews, J., in Washington Cemetery v. Prospect Park and Coney Island Railroad Company (68 N. Y., 595), with approbation. In the latter case the learned judge refers to the statute of 1873, then under consideration, which provided for the appointment of commissioners to estimate the value of the lands and premises required to be taken for said avenue, the damages to be sustained by any person interested, therein, by reason of such taking, and the benefits which will be derived by owners of the land within the district of assessment from the opening of the avenue,” and he adds : £ The land is taken for an avenue, and this purpose is fully satisfied by the taking of an easement in the land for the street or highway.” We think that case differs from the one now before us. Brooklyn Bark Commissioners v. Armstrong (supra) was referred to and followed in Gearty v. The Mayor (49 How., 34).

In Heyward v. The Mayor (7 N. Y., 314) it was declared that the legislature has power to authorize the acquisition of the fee in lands of private persons, required for public uses, on payment of just compensation, and that when so acquired, no reversionary estate remains; and that where the public exigencies require lands to be converted to some other purpose, they may be so converted. Near the close of the opinion in that case, Welles, J., says : ££ A man is called upon to give up and part with his property for the public use. It is reasonable that he should do so and the law requires it of him; a full indemnity is all that he can ask in return, and should satisfy him. Having received it, a demand for anything beyond must be founded upon a rule anything but equitable.”

In Story v. The New York Elevated Railroad Company (90 N. Y., 172), Tracy, J., says : “ The proceedings by which land is acquired by the exercise of the right of eminent domain amount to a statutory conveyance of the same to the public or the corporation, and there is no distinction between such a conveyance and a voluntary conveyance made for a public use.”

When such proceedings are instituted, Blaclcstone says, viz.: “The public is considered as an individual treating with an individual for exchange. All that the legislature does is to oblige the owner to alienate his possessions at a reasonable price, and even this is an exertion of power which the legislature indulges with caution, and which nothing but the legislature can perform.” (1 Black. Com., 139.)

It was competent for the legislature to enact, as it did in section 7 of the act of 1833, that “ all lands or real estate thus entered upon, taken possession of, or used by the said corporation, which are not donations, shall be purchased of the owner or owners of the same, and at a price to be mutually agreed upon between them, in case of disagreement of price,” and to provide, in case of such disagreement, that the award of commissioners should be what they shall deem to be the full value of the same,” and that the corporation should pay such value to the owner, and that upon and after such payment the corporation should be deemed possessed of and to be the owner of the property required.

If we are right in the conclusion that the plaintiff parted with her whole title to the property when she received compensation to the extent of the full value thereof under the proceedings had, and that the corporation acquired, for a public use, the title and ownership of the property, it follows that the plaintiff had no title to, or -right to the possession of, the premises in 1SS3, or at the commencement of this action. >

It was competent for the legislature to amend the act of 1833, as in section 19 thereof it had reserved the power to do so, and it was within the power of the legislature, with the assent of such corporation, to authorize its successors to receive and hold his property and effects, including the premises in question, and to require and authorize the premises to be possessed “ for the purpose of a railroad and its use of the same.” These views lead to the conclusion that the decision at the circuit should be sustained. (Terry v. N. Y. C. and H. R. R. R. Co., 67 How., 439; opinion by Haight, J.)

Judgment affirmed, with costs.

BoaedmaN, J., concurred in result.

Follett, J.:

Without expressing an opinion upon the question as to whether the Htica and Schenectady Railroad Company acquired an absolute fee, which could be conveyed and the land converted to other uses, I am of the opinion that the corporation acquired the right to use the land for railroad purposes so long as it, or any successor corporation is authorized to and does use the land for such purpose. Hpon this ground, I vote for affirming the judgment, with costs.

Judgment affirmed, with costs.


author: Hardin, R. J.:

text:
    LORINDA P. BENNETT, Respondent, v. LUCY CRAIN, Appellant.

      Judgment against a surviving partner does not bind the real estate of the deceased partner — power of the surrogate to direct payment of such a judgment — a surrogate can only act when expressly authorized so to do by statute.

    On March IV, 1888, the plaintiff recovered a judgment against one Perry P. Crain, as the surviving partner of the firm of Almeron W. Crain & Son, upon a note given hy the firm. Almeron W. Crain died on June 15,1876, leaving a will by which he devised a piece of land owned hy him to his widow, the defendant. Upon an execution issued upon the said judgment the land in question was sold by the sheriff to the plaintiff. Thereafter the plaintiff applied to the surrogate, who, after issuing a citation requiring the executor of A. W. Crain to show cause why payment of the balance of the plaintiff’s claim should not he ordered, and hearing the parties, made a decree declaring the plaintiff’s claim to he a valid demand against the estate of A. \V. Crain, and ordered the executor to pay the same out of the assets. The decree having been filed in the clerk’s office, and an execution issued thereon under the hand and seal of the surrogate to the sheriff, the land in question was sold to the plaintiff, to whom, on the 15th of April, 1885, the sheriff executed a deed of the land, reciting the proceedings under both the judgment and the decree.
    Upon the application of the plaintiff an order was made by a county judge in summary proceedings awarding to the plaintiff the possession of the land and evicting therefrom the widow, who had occupied the premises since the death of her husband by consent of the executors, she having had no notice of the judgment or proceedings had before the surrogate.

      Held, that the order should be reversed; that the surrogate had no jurisdiction to make the decree, and that the plaintiff acquired no title to the land under the sale upon either of the executions.

      People v. Me Adam (84 N. Y., 294) distinguished.
    Appeal from a final order of the county judge of Cortland county, made in summary proceedings, awarding to the plaintiff possession of land situated in Truxton, of which Almeron W. Crain died seized on the 15th day of June, 1876.
    For about twenty years preceding his death Almeron W. Crain had been in partnership with Perry P. Crain, under the firm name of Almeron W. Crain & Sou, and the firm made their promissory note of $1,000, payable to the plaintiff or bearer, on the 21st day of March, 1865, upon which note a judgment in this court was recovered against Perry P. Crain, as surviving partner, March 17, 1883, for $866.15, the balance due thereon, and execution issued on the judgment and the land in question was sold by the sheriff of Cortland county and purchased by the plaintiff at sheriff’s sale.
    Almeron W. Crain left a will, which was duly admitted to probate on the 9th day of October, 1876. Perry W. Crain and Charles A. Pierce were appointed executors. The executors qualified. Plaintiff, after exhausting her remedy against the surviving partner to recover the balance of her debt, presented a petition to the surrogate, who issued a citation requiring the executors to show cause why payment of the plaintiff’s claim should not be ordered, and on the return of the citation, and after hearing the parties, the surrogate made a decree declaring the plaintiff’s claim to be a valid demand against the estate of Almeron W. Crain, deceased, and ordered his executors to pay the same out of the assets of said estate, and the decree was filed in the clerk’s office and an execution issued under the hand and seal of the surrogate to the sheriff, who advertised and sold the interest of the testator of said executors in the land in question, and a certifícate under such sale was recorded in the clerk’s office on the loth of June, 1884. On the 15th day of April, 1885, the sheriff executed his deed of the land to the plaintiff, reciting therein the proceedings under both the judgment in the Supreme Court and the decree of the surrogate. That deed was recorded on the 17th day of April, 1885. The defendant is the widow of Almeron W. Crain, and has occupied the premises since her husband’s death by permission of Perry Crain and his co-executor, until she was evicted by the summary proceedings instituted before the county judge.
    The will of the testator contained the following clatise, viz.: “ Second. I give and bequeath to my wife, Lucy Crain, the house and lot where I now reside, together with the household furniture and all the appurtenances thereto belonging, unconditionally. I also give and bequeath to my said wife, Lucy Crain, the use of all ,the remainder of my real estate and woolen machinery during her natural life; and if the said real estate and machinery shall fail to rent for a sum sufficient for her comfortable support and maintenance, then, and in that case, I order, direct and authorize that the amount may be raised either by mortgage or sale of the said property; ” also, “ Third. I give and bequeath to my son, Perry P. Crain, his heirs, executors, administrators and assigns, all the rest, residue and remainder of my real and personal estate after paying tlie above-named legacies, hereby empowering, ordering and directing him to pay all my debts and collect all my dues, and to settle all demands for and against the several copartnerships with which I have heretofore been connected.”
    At the close of the proofs before the county judge the defendant moved to dismiss the proceedings on the “ ground that the execution issued out of the Surrogate’s Court did not confer jurisdiction upon the sheriff to levy upon and sell the premises mentioned herein, and that the proceedings had in the Surrogate’s Court to obtain such execution were and are void and of no effect, and that the plaintiff’s debt has no preference over any other creditor of the estate, and that the only means of obtaining payment of the claim is by proceeding in the Surrogate’s Court to sell the real estate to pay debts and allow the other creditors to come in and obtain their fro rata share of the real estate.” The motion was denied and the defendant excepted and the county judge issued his precept for the removal of the defendant from the premises mentioned in the petition to a constable, who removed the defendant according to the command of such precept. This appeal is from a final order made by the county judge, entered in the clerk’s office June 13, 1885.

      A. P. c& D. G. Smith, for the appellant.

      I. II. Palmer, for the respondent.
   Hardin, R. J.:

Appellant took title tp the premises in question upon the death of Almeron W. Crain under his will, subject, however, to any equitable lien thereon which 'might arise in favor of the creditors of the deceased.

A recovery of a decree or judgment against the - personal representatives, as such, created no lien upon the said real estate. (In the Matter of the Estate of James, 4 Redf., 236; Lynch v. Patchen, 3 Dem., 58.) The judgment against the personal representatives of the deceased was not obligatory upon the heirs-at-law, the widow or devisees of the testator. (Sharpe v. Freeman, 45 N. Y., 802.) Such a judgment is not sufficient to render the plaintiff a judgment creditor of the widow or heirs-at-law. (Id.)

The judgment or order which is authorized by section 2553 of the' Code of Civil Procedure, is not a lien upon the real estate of the decedent. Such a judgment or decree may be enforced by an execution against the property of the party directed to make the payment. (Code of Civ. Pro., § 2554.) The defendant here was not such a party.

Whenever the surrogate goes beyond his statutory power, he exceeds his jurisdiction and his acts are not effectual in such case. (Code of Civ. Pro., § 2472.) His power over real estate of a testator or intestate, in respect to its sale, depends upon the statute, which authorizes proceedings to sell or mortgage, to enforce payment of debts in case there be not personal property applicable therefor. No such decree, as the statute referred to authorizes, was held by the respondent, who recovered a decree declaring her claim valid against the estate of A. W. Crain, deceased, “ and that the executors shall pay the same out of the assets of the estate of Almeron W. Crain, now in their hands.” That decree did not authorize the sheriff to sell the real estate of the appellant, and the sale under that decree did not divest the appellant of her title to or interest in the real estate devised to her by her husband. The respondent failed to make- a case entitling her to the possession of the premises described in the proceedings had before the county judge of Cortland county.

The learned county judge, in his opinion, refers to the People v. McAdam (84 N. Y., 294), and opinion of Folger, Ch. J., for his conclusion that the proceedings may be maintained. That case differs from this one. There the property, which fell to the hands of the executors was leasehold estate, and, therefore, passed to the executors as personal property as assets and for distribution. The learned chief judge so declared, and referred to his opinion in Despard v. Churchill (53 N. Y., 199), in which latter opinion he says of such property that “at common law it is personal property.” The statutes of this State have for some purposes modified its character; estates for years are denominated estates in lands. (1 R. S., 722, § 1, etc.) They are still chattels real (Id., 722, § 5), and are not classed as real estate in the chapter of “ title to property by descent.” A judgment binds and is a charge upon them as assets for distribution. (2 id., 82, § 6; see Pugsley v. Aikin, 11 N. Y., 499.) “ They vested iu the executors as a part of testator’s personal estate.” The case of People v. McAdam (supra) is, therefore, unlike the one before us.

Our attention is called to Haight v. Brisbin (100 N. Y., 223), where it is said an executor who has failed to sell personal property, and a loss has happened without adequate excuse, the executor may be charged, and that in a proper case a similar remedy may be had in case of failure to sell real estate, but that does not aid the respondent here.

If an executor has been dilatory in the sale of real estate he may be liable. That furnishes no power to or reason why the surrogate may make a decree against him or in proceedings against him which will bind the devisee of real estate or an heir-at-law, without a day in court.

Second. The judgment recovered against a surviving partner of Crain & Go. did not give any lien upon the individual property of the deceased member of the firm, under which the property of the individual member of the firm had passed to the appellant by will of the deceased member of the firm. The appellant was not a party to that action, nor were her lands bound by the lien of that judgment. It may be conceded that a creditor may compel an executor,- with power of sale, to sell real estate for the payment of debts. (Code of Civ. Pro., § 2804.) However, before a decree to that effect may be made, a citation must be issued to the persons whose rights in the estate or fund might be affected by such a decree. (Code of Civ. Pro., § 2806.) No such citation was issued to the appellant and her estate in the lands in question has not been cut off by a proper decree or judgment, or the title thereto transferred to the plaintiff.

By section 2749 of the Code of Civil Procedure authority is given to direct the disposition of real estate for the payment of debts and funeral expenses of the decedent, but all devisees and lieirs-at-law of such real estate must have citations. (Sec. 2754.) And they may appear and contest before the surrogate, upon the return of the proper citation. (Sec. 2755.) In such a proceeding though a judgment has been “rendered against an executor or administrator for a debt due from the decedent, the debt is nevertheless deemed a debt of the decedent to the same extent and to be established in the same manner ” as other debts, though the judgment is presumptive evidence. (Code, § 2756.)

The provisions of law already referred to, and others as to details of sale of real estate of deceased parties to pay debts are to the effect and for the purpose of working out a pro rata distribution among creditors of the proceeds of real estate arising by reason of the same being mortgaged or sold to pay the debts of the deceased. (In the Matter of the Estate of Fox, 92 N. Y., 96.)

We are of the opinion that the order of the county judge of Cortland county should be reversed.

Boardhan and Follett, JJ., concurred.

Order and judgment of the county judge of Cortland county reversed, with costs.