text:
    Johanna Simis, Pl’ff, v. William Brookfield et al., Def’ts.

      (New York Superior Court, Equity Term,

      Filed July, 1895)

    1. Municipal corporations — Injunction.
    The commissioner of public works and the superintendent of the bureau of incumbrances cannot be enjoined from removing from over the sidewalk an awning, which is not constructed in conformity with city ordinances.
    2. Same — Prescriptive right.
    The fact that an awning has been maintained over the sidewalk for more than twenty years does not give a prescriptive right to its continuance.
    Motion to continue an injunction pendente lite.

      A. Simis, Jr., and A. Kling, for the motion ; F. M. Scott and G. L. Sterling, opposed.
   McAdam, J.

— The motion is to continue an injunction restraining the commissioner of public works and the superintendent of the bureau of incumbrances from removing a certain awning at the southeast corner of Fulton and Church streets, this city, from removing certain show cases in front of said premises, and interfering with certain bay windows said to project in and upon the street. The plaintiff is in the occupation of the building, which is about seven feet and eleven inches on Ful top street, and about seventy-seven feet and nine inches on Church street; and she and her predecessor it title have occupied it for about twenty-five years past, during all which time there has been an awning in front of the building, extending over and across the sidewalk to the curb line.

It is claimed by the plaintiff that the awning is a legal structure, because it is said to conform to the ordinances of the common council; and the case of Hoey v. Gilroy, 129 N. Y. 132 ; 41 St. Rep. 181, is cited to sustain her contention. In that case it was held that the court could restrain the commissioner of public works from removing an iron awning supported by iron pillars, which was expressly authorized by an ordinance of the common council, and which was constructed in accordance therewith. Copies of the ordinances of the common council form part of the papers submitted, and from these it appears that, to constitute a legal structure, a permit must be obtained, and the awning must be of metal or canvas, and in no case covered with wood. The proofs show that the awning in question is not made of metal, but consists of a roof of boards covered with some preparation of tar, resting on a light wooden framework, supported by ten wooden posts near the curb line, and by the building on other side ; that the structure is old and dangerous in case of lire; that suspended from the roof of this awning on the Church street side, and for a portion of its length, is a gas pipe with numerous gas jets having porcelain shades ; that the pipe extends into the street, and from it are suspended cards with the legends “A. Simis & Son,” “All the Correct Styles,” “Headquarters of A. Simis & Son,” “One Price Strictlythat there is also frequently suspended from the roof of the awning, about halfway across the sidewalk, a collection of hats. No permit has been produced, nor would one for such an awning be of any avail. It is plain that the structure in controversy is unlike the one held to be legal in Hoey v. Gilroy, supra ; and this court cannot, by injunction, authorize its continuance. Indeed, the municipality may incur liability if the obstruction is not removed.

In Hume v. Mayor, etc., 74 N. Y. 264, it was held that a permanent wooden awning or roofing covering the sidewalk of a street, and resting for support upon posts bedded in the street, if insecurely supported, so as to be dangerous to persons using the street, is a defect in the street, which the city is bound to repair; and if the city has notice of the danger, or if it has existed so long and is so easy to be observed that notice may be inferred, the city is liable for damages resulting therefrom; and this, although the structure was not made by authority of the city, or under the supervision of any of its officers. Such a contingent liability is sufficient to put the corporate authorities on the alert to avoid possible litigation.

In Cohen v. Mayor, etc., 113 N. Y. 532 ; 23 St. Rep. 509, the court said:

“The storing of the wagon in the highway was a nuisance. The primary use of a highway is for the purpose of permitting the passing and repassing of the public, and it is entitled to the unobstrueted and uninterrupted use of the entire width of the highway for that purpose, under temporary exceptions as to deposits for building purposes, and to load and unload wagons, and receive and take away property for or in the interest of the owner of the •adjoining premises, which it is not now necessary to more specifically enumerate. The extent of the right of such exceptional user was before us in the late case of Callanan v. Gilman, 107 N. Y. 360; 12 St Rep. 21, and nothing more need be said regarding it here. * * * The legislature has expressly enactéd that the city shall have no power to authorize the placing or continuing of any encroachments or obstructions upon any street or sidewalk, except the temporary occupation thereof during the construction or repair of a building on a lot opposite the highway.”

The fact that_the awning has been there for more than twenty years does not give the plaintiff a prescriptive right to its continuance. Dill. Mun. Corp. (4th ed.) § 563, note; Id. §§ 669, 675. The liability of the city remains, on the'theory of continuing nuisance, and no statute runs against the right of the municipality to protect itself therefrom. The corporation does not own and cannot alien public streets or places, and no mere loches on its part or that of its officers can defeat the right of the public thereto. Id.

The obstructions, on the walk caused by the show cases are clearly illegal. The commissioner of public works has frequently been compelled by mandamus to remove such obstructions. The cases of People v. Mayor, etc., of New York, 59 How. Prac. 277, and My v. Campbell, id. 333, show how the courts have enforced the performance of duties akin to those the plaintiff seeks to enjoin.

In People v. Mayor, 18 Abb. N. C. 123, Judge Barrett said:

“It may now be deemed a settled rule in this court that obstructions of the streets will not be permitted, and that business men, even with such a permit as that now submitted, cannot encroach upon the highway with their show case.

The show cases ordered to be removed extended from the “house line" six feet outwards.

In People v. Newton, 20 Abb. N. C. 387, a mandamus was granted compelling the commissioner of public works to remove meat racks erected upon the sidewalks.

In Callanan v. Gilman, 107 N.Y. 360; 12 St. Rep. 21, the court held that a tradesman may convey goods from a street to his adjoining store, and from the store to the street, and for that purpose may temporarily obstruct passage on the sidewalk. But such obstruction must not only be necessary with reference to the business of the tradesmen, but must be reasonable with reference to the rights of the public.

These adjudications demonstrate that business cannot be conducted upon the public streets, and that the constant placing out of show cases for the exhibition and sale of goods is unauthorized and illegal. No permit to erect the bay windows has been proved and their erection seems to have been unauthorized. If a permit "had been proven, the power of the common council in respect thereto would require examination, a course not now necessary. The bay-window encroachments, according to the evidence of the city surveyor, are of a substantial nature two of the windows extending nearly six feet out from the house line. Incidental encroachments by bay windows or ornamental projections, and not obstructing the passageway of the sidewalk, would hardly invoke criticism much less action.

It clearly appear, therefore, that there is no equity in the plaintiff’s bill, and that the commissioner of public works and the superintendent of the bureau of incumbrances cannot be enjoined from performing the duties incumbent upon them by law. To what extent they may go is matter that the court need not regulate. They are sworn public officers, and inferentially, will perform their duites as the law requires. It is clear that they cannot be restrained from executing the duties the law commands them to perform.

For these reasons, the motion to continue the injunction must be denied, and the temporary injunction vacated, with $10 costs.


source: Caselaw Access Project

author: Fitzgerald, S.

license: Public Domain

text:
    In the Matter of the Probate of the Will of John Oliver, Deceased.

      (Surrogate’s Court, New York County,

      Filed July 1895.)

    Will — Execution—Proof.
    Where the subscribing witnesses were actually or presumptively dead and there was no person living who was known to have been present at the execution and no written recital in the instrument of the facts which occurred at the time, but only the handwritings in the signatures of the testator and the subscribing witnesses were proved, the declarations of the testator as to the manner in which it was executed, were held to be admissible.
    Proceeding for the probate of a will.

      David May, for proponent; James E. Kelly, special guardian, opposed.
   Fitzgerald, S.

— The paper propounded was executed in 1885. The decedent was a steamboat man, doing business between Albany and Hew York. His wife, at the date of the instrument and afterwards, was a person of unsound mind, and she continued in the same condition more or less until her death. He left a son, who was also of unsound mind, and an inmate of an institution for the insane. The estate, by the paper, was left in trust to his daughter, Mrs. Fyle, to be expended by her as she might deem wise for the maintenance of his wife; and upon her death, should there be any residue, it is to go to Mrs. Fyle, with the understanding that, should the son require any assistence, she should devote what would seem to her proper for that purpose. Mrs. Fyle is named as executrix. The paper was attested by John Featherly, Jr., and S. Y. R Ableman as witnesses. Able-man died soon after the death of the decedent, and the witness Featherly disappeared, and has not been heard of for six or seven years. The legal presumption under the circumstances is that he also is dead. There is no person living who is known to have been present at the execution, and there is no written recital in the instrument of the facts which occurred at the time. Only the handwritings in the signatures of the testator and the subscribing witnesses are proved. Objections were filed to the probate of the paper in behalf of the widow, alleging that it was not properly executed. She has since died. The special guardian of the insane son has continued the contest

"Under the laws of this state, before admitting a testamentary paper to probate, two, at least, of the subscribing witnesses, must be produced and examined if so many are within the state. Code, § 2618. The surrogate must be satisfied of the validity of its execution. Id. § 2622. To constitute a valid execution, the testator must sign the instrument at the end, or acknowledge his signature to each of not less than two witnesses, and must at the time declare to them that it is his will, and the witnesses shall sign it at the end by the testator’s request -2 Rev. St. p. 63, § 40. It frequently happens that, in a literal sense, these requirements are not complied with. -In a liberal sensellthe courts hold that a substantial compliance is sufficient. In re Voorhis' Will, 125 N. Y. 765; 37 St. Rep. 173. That testamentary purpose may not miscarry, the law, in the spirit of equity and justice, provides that if all of the subscribing witnesses are dead, a will may, nevertheless, be established upon proof of the handwriting of the testator and the subscribing witnesses, and “such other circumstances as would be sufficient to prove the will upon the trial of an action. Code, § 2620. This provision is a substantial reproduction of the language of section 20, chap. 460, Laws 1837, which has been a subiect of adjudication in our courts when it was sought to introduce wills in evidetice in trials at law.

In Jackson v. Le Grange, 19 Johns. 386, one of the witnesses to the will was dead, and the second failed to recall the circumstances attending the execution. Because the third witness, who was shown to be living and within the jurisdiction of the court, was not called, that “ he might prove or disprove the facts,” the will was not received in evidence. But the court was of the opinion that if the recollection of the third witness had also failed, if he could prove his own signature and that of the testator, the execution of the will was sufficiently proved to entitle it to be read. In a summarized statement of the law, Chief Justice Spencer, who delivered the opinion of the court, said : “ If the subscribing witnesses to a will are dead, then proof of their signatures and that of the testator is sufficient ” Jackson v. Vickory, 1 Wend. 406, is .a similar case. The court held, that when one subscribing witness was unable to prove that all the requirements of the statute had been complied with", the other witnesses to the transaction, if living and within the jurisdiction of the court, ought to have been called; but, if they were dead, then their handwritings and that of the testator should also be proved, and the jury, from such evidence, would be authorized in inferring that the requirements of the statute had been complied with. In Jauncey v. Thorne, 2 Barb. Ch., at page 59, the chancellor states that the most liberal presumptions in favor of the due execution of wills are sanctioned by courts of justice where, from the lapse of time or otherwise, it may be impossible to give positive evidence on the subject; and, where any of the subscribing witnesses are dead, proof of their signatures is received as secondary evidence of the facts to which they have attested in subscribing the will as witnesses of its execution. So, in Cheeney v. Arnold, 18 Barb. 438, it is held, if the witnesses were all dead, proof of their handwriting would be sufficient to establish the due execution of the instrument by the testator. And, again, in Everitt v. Everitt, 41 Barb. 385: “ If the witnesses are men of good char-

acter, and there is no doubt as to their signatures or any other suspicious circumstance, the attestation clause would be deemed sufficient evidence of a request. In short the law lays down no stubborn inflexible rule in such cases, but accepts the best evidence that can be procured, subject to the nature of human affairs and human infirmities and casualties, to establish the fact in controversy.” “ Nor are the provisions of the statute,” as stated in Lawrence v. Norton, 45 Barb. 448, “ such as to preclude the admission of the will when some of the witnesses are dead and others do not remember the occurrence.” In Butler v. Benson, 1 Barb. 526, it was held that the law, after the diligent production of all the evidence then existing, if there were no circumstances of suspicion, presumed the instrument properly executed, particularly when the attestation clause was full. To the same effect are Rugg v. Rugg, 83 N. Y. 549, and In re Pepoon, 91 N. Y. 255; .and in most of the cases in which validity of the ex cution of a will was in question, when there was no witness living to prove the facts, the existence of an attestation clause, reciting the necessary facts that occurred at the time of the execution, has been an important factor in determining the decision of the •courts.

But to give the attestation clause force as evidence is a generous .interpretation of the statute, in the language of which there is nothing to make it such. It is “ proof of handwriting” that is prescribed. .It is only under the decisions that an attestation certificate signed by the witness is admitted in aid of probate, for it is well settled that an attestation clause is no part of a will, and is not required as part ‘of its execution, but, when the witnesses are dead, it may be presumptive evidence of due execution (Jackson v. Jackson, 39 N. Y. 153); and, when the witnesses are living, it may enable them to recall the facts, if they do not recollect them -without. Under the statute, all that is required in addition to proof of the handwriting of the testator and the subscribing witnesses is “ such other circumstances as would be sufficient to prove the will upon the trial of an action.”

What weré the circumstances under which the will of John Oliver was prepared and executed? An insane wife and an insane son were not competent for self-care to look after an estate. Mr. Fyle, the son-in-law of Mr. Oliver, and who at his request drafted the paper, stated that in giving him the instructions, Mr. Oliver referred to his wife’s mental condition, stating that it was his wish to give his estate out and out to Mrs. Fyle, and that it was at his (Fyle’s) suggestion that the paper took the form in 'which it was executed, and by which provision for his wife and son was made directory. To some one must be entrusted their care, and who was better fitted than the daughter and sister of the unfortunates? Mr. Fyle is a journalist and a literary man, not a lawyer, though he states he knew the manner in which wills should be executed. The scheme of the instrument is clearly expressed. If Mr. Fyle’s testimony is to be credited, after the paper was typewritten, it was delivered to Mr. Oliver, as he was about to leave for Albany, with instructions as to the manner of its execution. From the fact that both subscribing witnesses were residents of that city, it is a reasonable conclusion that the paper was signed there. Mr. Oliver, on his return to this city, Mr. Fyle states, came to him, and stated that the paper had been executed there, and told him the manner in which it was done. Though Mr. Fyle’s statement did not in the first instance mention that the decedent told him that he had requested the witnesses to sign the paper, before he left the stand he recalled and testified to the -fact; and it is hardly conceivable, under the circumstances, that they would have signed their names except upon his request.'

I am aware that the competency of proof of the declarations of a testator has been called iri question-in the past. In the leading case of Waterman v, Whitney, 11 N. Y. 161, the subject was learnedly considered by Judge Seldeít in respect to the declarations of a testator after the execution of a will, to the effect that he had disposed of his property in a manner entirely different from the disposition shown in the will; and it was held that no-such declarations were competent as evidence of the facts, except they were part of the res gesta at the time of the execution, but. were competent as evidence of the testator’s mental condition. The question was again considered in re Marsh, 45 Hun, 107 ; 9 St. Rep. 441, in a proceeding to establish a lost will. On the trial, the declarations of the testatrix, made from time to time and to within a short time of her death, that she had made a will, and had given her property to the person who was named therein,, were admitted. Judge Bradley, who delivered the opinion of the court on the appeal, draws a distinction between declarations of a testator, the purpose of which is to work the revocation of a will, and those which tend to sustain it, In my view, his reasoning is correct. But the declarations of Mr. Oliver were taken without objection. Under the decision in re Marsh, supra, they would have been competent, even if objected to.

But on the main point — that of execution — I have found no case in this state all the facts of which are like the one before me. In re O'Hare, 2 N. Y. Law Bul. 83, decided by Surrogate Calvin, was one in which the two subscribing witnesses had died, but. whose handwriting were proved. It; was shown also that one of the witnesses was an attorney, and that the instrument was found among the decedent’s private papers after his decease. The question at issue was whether, upon these facts alone, there was sufficient proof of the handwriting of the testator as would be proper to prove the will on a trial at law under the statute. The surrogate held that the language of the statute seemed to qualify the requirements and assimilate the proof to that necessary on a trial at law, and he was of the opinion, if it should be impossible to prove the handwriting of the testator, that fact would not present an insuperable obstacle to clear proof of the instrument and its admission to probate as a will of personal property. In Rider v. Legg, 51 Barb. 260, it was held that the proof of the signature of two of the three subscribing witnesses to a will, and who were deceased, was sufficient, after a lapse of time, to justify the reception of the will as evidence, without proof of the signatures of the other subscribing witnesses and of the testator.

But the case the facts of which are nearest like those of the one before me is found in the English reports, — In re Thomas Goods, 1 Swab. & T. 225. In that case there was no attestation clause. Two witnesses were dead and the third testified that he remembered being requested by the testatrix to attest her signature to the will, and that she did not sign her name in his presence, and that he thereupon subscribed his name in her presence. After an interval of so many years, he was unable to recollect all the circumstances, attending his subscription; but, as he remembered, the testatrix and he were the only persons present at the time, and that the signatures of John and Mary Skeggs, which appeared subscribed to the will immediately under his signature, were not subscribed in his presence; He did remember that he made a suggestion to the deceased, at the time he subscribed the will, that another witness ought to be present, but what further passed on the subject he was unable to recollect. It appeared from the case that both John and Mary Skeggs were dead, and that they had been people of some consequence. Their handwritings were proved. Sir 0. Cresswell, in deciding the case, said;

' “I think I may fairly assumethat the will was duly executed. The first subscribing witness, who survives, states in the affidavit that, he explained to the testatrix that two subscribing witnesses were required to be present at the execution of a will, and it appeared that some time afterwards the testatrix obtained the signatures of two other witnesses. It is a fair presumption that she acted upon the information given her, and got the last two witnesses, in order that she might acknowledge her signature in their presence.”

Probate was granted.

The liberality of the courts in their desire to sustain testamentary instruments, when there are no circumstances of suspicion attaching to the execution, is illustrated by another English case,— In re Ashmore's Goods, 3 Curt. Ecc. 756, — in which the will was attested by the marks of the two subscribing witnesses, both of whom were dead, and there was no person living who was present at the execution to testify to the making of the marks, and yet the will was admitted to probate. Applying the principles stated to the case under consideration, I have no doubt of what my determination should be.. I have before me proof of the handwritings ,o£ the testator and of the deceased witnesses ; a will reasonable in its provisions, when the circumstances of the family are considered, the scheme of which was suggested in part, but as a whole was approved by the testator; his declarations as to the manner in which it was executed, showing that he knew the requi'sités of execution, and that all the acts were in conformity with the statute ; and the whole transaction, from beginning to end, in apparent good faith,, with nothing to raise a suspicion to the contrary ; and the paper was preserved for ten years with no suggestion of dissatisfaction with its provisions. These facts, under the decisions, would be ample proof to admit the will in evidence on the trial of an action, when its admission might go far to determine, if it would not be conclusive of the rights of the parties to the controversy ; and under section 2620 of the Code, already cited, the facts are equally effective to prove its execution in a special proceeding on the probate of a will in this court.

I hold that the will was duly executed, and I will sign a decree admitting it to probate.


author: Herrick, J.

text:
    The People ex rel. Edison Electric Light Company, App’lt, v. Frank Campbell, as Comptroller, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Taxes — Cobforations.
    ■ Where the assessing of taxes upon a corporation has proceeded for" a number of years upon the erroneous assumption that during that time it was not engaged in the manufacturing business, the determination of the comptroller will be reversed.
    3. Same.
    The return of the comptroller was held not to deny the statement of the petition that the company manufactured and distributed electricity to its customers.
    Certiorari to review the decision of the comptroller in assessing relator’s for taxation.

      Eaton & Lewis (Eugene H. Lewis and C. R. Waterbury, of counsel), for relator; T. E. Hancock, Atty. Gen. (G. D. B. Hasbrouck, Rep. Atty. Gen., of counsel), for resp’t.
   Herrick, J.

— This is a certiorari to review the assessment of certain taxes made by the comptroller of the state of New York upon the capital stock of the relator for the years 1881,1882,1883, 1884, and 1885, inclusive. Except for the decision in the case of People ex rel. Edison Electric Light Company v. Wemple, 133 N. Y. 617 ; 44 St. Rep. 871,1 should hold that these proceedings were barred by the statute of limitations ; but until the court of last resort, upon a more careful and deliberate consideration of that question, sees fit to reverse its then holding, J feel compelled •to follow the decision there made. The assessing of taxes upon the defendant for the years mentioned proceeded upon the assumption that during such years the relator was not engaged in the manufacturing business. The petition of the relator, after setting forth that in the course of its business it did, during such years, make contracts with licensee companies and individuals to construct, operate, and sell complete central station plants for the purpose of furnishing electric light, heat, and power, and describing what it did in connection with its contracts, alleges “ that during the same period the light company owned and operated electric light and power plants, and manufactured and distributed, by conductors from the central stations, electricity to its customers.” The return of the comptroller cannot be said to deny this statement of the petition. It states that: “ During the several years mentioned the relator’s principal business was the owning and licensing of various kinds of patents employed in lighting, heating, or furnishing motive power by electricity, and its principal income and revenue during those years resulted from the sale of royalties for the use of patents owned by relator, which patents were used by other companies or corporations, and the relator’s capital was largely represented by its ownership of bonds and stocks of other companies ; and, as I believe, relator did not furnish but little, if any, light, or run or operate wires to any extent, during said time.” The return of the comptroller in these proceeding has been held conclusive as to the facts. But here, it will be perceived, there is no definite return by the comptroller as to the facts. He does not deny the relator’s statement that it manufactured electricity and furnished it to its customers. He asserts that he believes that the relator did not furnish but little, if any, light, or run or operate wires to any extent. This leaves it open to the inference that the relator did furnish some light, — that it did run and operate wires to some extent, — and taken in connection, as we must, under the circumstances, with the allegations in the petition of the relator, it appears that during the years in question the relator was engaged in the production and distribution to its customers of electricity. The production of electricity has been held to be manufacturing, within the meaning of the statute People ex rel. Brush Electric Manufg Co. v. Wemple, 129 N. Y. 543; 42 St. Rep. 272. The comptroller having proceeded upon the assumption that the relator was not engaged in the manufacturing business, his determination must be reversed.

Determination of comptroller reversed, with $50 costs and disbursements.

Putnam, J., concurs; Mayham, P. J., not acting.


text:
    The People ex rel. Edison Electric Light Company, App’lt, v. Frank Campbell, as Comptroller, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Taxes — Corporations—Manufacturing.
    In a proceeding to review by certiora/ri the assessments of taxes upon cor' porations, the return of the comptroller must be taken as conclusive as to the facts.

      2. Same.
    A corporation, whose principal business is the owning and leasing of various kinds of patents for lighting, heating or furnishing motive power by electricity, which patents are used by other companies and corporations, in which it is a large stockholder, is not a manufacturing corporation, within the meaning of the statute relating to taxation.
    8. Same.
    Bonds of corporations existing in any state, owned by a non-manufacturing corporation, are taxable as part of its property.
    4. Same.
    Where the corporation is taxable to some amount, the determination of "the comptroller upon the question of valuation, unless clearly shown to be erroneous, is conclusive.

      Certiorari to review the decision, of the comptroller in assessing relator’s property for taxation.

      Eaton & Lewis (Eugene H. Lewis and C. R. Waterbary, of counsel), for relator; T. E. Hancock, Atty. Gen. (6. D. B. Hasbrouck, Dep. Atty. Gren., of counsel) for resp’t.
   Herrick, J.

— This is, a proceeding to review by certiorari the assessement of certain taxes made by the comptroller of the state of Hew York upon the capital stock of relator, for the years 1886, 1887, and 1888. This proceeding is similar to the one we have just considered. 69 St. Rep. 746. The allegations of the petitioner as to the character of the business carried on by it during the years in question are substantially the same as those of the case we have just considered, but the return by the comptroller thereto is very different. That portion of it relating to the business of the relator is as follows :

“That it appeared from the information and evidence in the possession of the comptroller that neither the relator nor either of said constituent companies was during either of said years engaged in the manufacture of■ appurtenances for or used in producing light, heat, and power by electricity. That during each of said years the principal business of the relator was the owning and leasing of various kinds of patents employed in lighting, heating, or furnishing motive power by electricity; and its principal income and revenue during each of said years resulted from the sale of royalties or the sale of patents ownecl by it, which patents are used by other companies and corporations, and in which companies and corporations the relator is a large stockholder, as well as" owner of bonds of such companies or corporations ; and the relator was running no wires and furnishing no light during said term.”

And, again, as follows:

“And, upon information and belief, denies that the relator herein was engaged in carrying on any manufacturing whatever or any business other than as stated hereinbefore during the years in question.”

The return of the comptroller must be taken as conclusive as to the facts. People v. Board of Fire Com'rs, 73 N. Y. 437 ; People ex rel. Roeblings Sons Co. v. Wemple, 138 id. 582, 586 ; 53 St. Rep. 297 ; People ex rel. Press Co. v. Martin, 142 N. Y. 228, 235 ; 58 St. Rep. 761. The business of the relator, as described in the return of the comptroller, is not a “manufacturing business,” within the meaning of the statute. “The process of manufacturing is supposed to produce some new article by the application of skill and labor to the raw materials.” People ex rel. W. N. Tea Co. v. Roberts, 145 N. Y. 375, 377; 64 St. Rep. 827. The relator’s business clearly does not come without this definition. The relator, then, was taxable.

It appears that, from the sale of patents to other companies and corporations, it received stocks and bonds in return. The bonds so received from corporations existing in this or other states are taxable as part of its property. People ex rel. Edison E. L. Co. v. Campbell, 138 N. Y. 543 ; 53 St. Rep. 184. How much of its property it has invested in stocks and how much in bonds, does not appear; neither does it clearly appear that the comptroller took into consideration such stocks in fixing the amount of the relator’s taxes. The relator being taxable to some amount, the determination of the comptroller upon the question of valuation, unless clearly shown to be erroneous, is conclusive. People ex rel. Western E. Co. v. Campbell, 145 N. Y. 587; 65 St. Rep. 726.

The determination of the comptroller is affirmed, the certiorari quashed, with $50 costs and disbursements.

Mayham, P. J., not acting ; Putnam, J., concurs.


author: Putnam, J.

text:
    Margaret A. Swift, App’lt, v. Charles H. Swift et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Reference — Scope of order.
    Under an order of reference in an action for the admeasurement of dower, which provides that the referee should determine whether plaintiff's damages, “if any, were taken into consideration by the commissioners heretofore appointed herein * * * and whether such commissioners made plaintiff due and full compensation for such damages in their award, the referee is authorized to receive evidence as to the action and finding of the commissioners, though the latter made no formal report on the question of plaintiff’s damages.
    3. Judgment — Entry—Motion costs in favor of unsuccessful party.
    Where, in an action for the admeasurement of dower, the plaintiff’s claim for damages is denied upon a reference with costs thereof to defendant, the proper procedure is to deduct, upon the entry of final judgment, such motion costs as the defendant is entitled to from the amount of plaintiff’s claim, and to insert in the judgment a clause denying plaintiff’s claim for damages.
    3. Same.
    Where such deduction was not made in the judgment, the omission may be remedied by an order setting off such costs against plaintiff’s costs in the final judgment.
    Appeal from an order, confirming the referee’s report in favor of defendants on the question of damages, and offsetting defendant’s costs on such reference as taxed, against plaintiff’s judgment as entered.

      S. A. Hungerford (Lewis Cass, of counsel), for app’lt; Ward & Cameron (Walter S. Ward, of counsel), for resp’ts.
   Putnam, J.

—The practice adopted- in this action is not to be commended. It is brought to recover dower in real estate occupied by defendant Charles H. Swift, and damages for withholding the same. The defendants appeared in the action, but served no answer. After the usual reference, commissioners were appointed, who made a report admeasuring plaintiff’s dower, dated July 80, 1892. The commissioners did not report on the question of damages. . After such report was made, and before the entry of judgment, plaintiff applied for an order of reference to a referee to compute her damages. The order asked for wras granted on the 26th day of November, 1892. It appeared that defendants bad paid plaintiff for the use of her part of the premises up to April 1, 1892; so that the only damage, if any, she was entitled to, was for the withholding her dower from that date until July 80,1892, the date of the report of the commissioners.

It is claimed by plaintiff that defendants not having answered or set up any counterclaim, the referee, to compute damages for the withholding of plaintiff’s dower, erred in receiving evidence tending to show a counterclaim offered by defendants, and in acting upon such evidence. But it will be observed that the order of reference which plaintiff obtained provided that the referee was authorized to determine whether plaintiff’s damages, “if any, were taken into consideration by the commissioners heretofore appointed herein for admeasurement of plaintiff’s dower in said premises, and whether such commissioners made plaintiff due and full compensation for such damages in their award.” And the referee reported as follows:

“ That said commissioners took into consideration the farm as it stood when the division was made, as to the crops being on the land or off, and made plaintiff due, full, complete, and adequate compensation for any or all inequalities which existed in the land set apart to her by reason of hay or pasture being removed therefrom, and any and all damages which she sustained by reason of the dower being withheld from her in said farm by the defendant Charles H. Swift from April 1, 1892, to the time such division was made.”

We are of opinion that the evidence sustained this finding of the referee, and that, under the order of reference which was obtained and entered by the plaintiff, the referee was authorized to receive evidence as to the action and finding of the commissioners, although the latter made no formal report on the question of plaintiff’s damages. We think, therefore, that the conclusion reached by the referee against plaintiff’s claim for damages for withholding her dower for the three months in question was right, and should be sustained. The commissioners had considered her claim, and compensated her, and the order of reference which plaintiff obtained allowed the referee to consider the action of the commissioners.

On the report of the referee disallowing plaintiff’s claim, defendants entered a separate judgments for costs, as if a separate action were pending for' damages. The judgment was afterwards set aside by the court. Afterwards the plaintiff entered a final judgirient in favor of herself for the admeasurement of her dower, with, costs. This judgment contained no provisions in reference to plaintiff’s claim for damages. The defendants then made a motion that the report of the referee denying plaintiff’s claim for damages be confirmed, and that the costs of such motion, which were taxed at $159.53, be set off against plaintiff’s costs in the final judgment. The motion was granted, and the order was made, from which this appeal is taken.

The proper procedure would have been, when the final judgment was entered, to have deducted such motion costs as defendants were entitled to from the amount of plaintiff’s claim, and also to have inserted in the judgment a clause denying plaintiff’s claim for damages. But the judgment containing no provisions in regard to the claim of plaintiff for damage or for the costs of the defendants on the motion, we see no legal objection to the remedying of the omission by the order in question. I't may be regarded as an amendment of the judgment.

We think, however, there was an error in the amount of costs allowed. No answer was served. There was no issue. Hence defendants were only entitled to motion costs, $10; referee’s fees, $80; witnesses’ fees, $3.10; and postage, 24 cents, — in all, $93.34.

The order should be modified accordingly, and, as modified, affirmed, without costs to either party.

Fursman, J., concurs; Herrick, J., not acting.


author: Merwin, J.

text:
    Catharine C. Ellerson, App’lt, v. Elizabeth P. Westcott et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1 Pleadings — Amendment—Partition.
    In an action for partition of land held by one of the defendants under a. devise alleged to be void, the complaint may be so amended as to allege that such defendant, for the purpose of realizing under the will, willfully caused and procured the death of the testator, and is not, therefore, entitled to take under the will.
    2. Same.
    The fact that some of the other defendants may not be interested in this question is not an answer to the application for the amendment.
    3. Partition — Devise—Torn.
    Under section 1537 of the Code, the right of a devisee under a will may be attacked in an action for partition, on the ground that he caused the death of the testator for the purpose of realizing under the will, though he has not been criminally tried or charged with producing such death.
    Appeal from an order, denying a motion for leave to serve an amended complaint.

      A. D. Wales, for app’lt; Gilbert & Andrus, for resp’ts Westcott and Granung.
   Merwin, J.

— In the complaint it is alleged that on the 9th May, 1891, Munroe Westcott, of Oneonta, N. Y., died, being then seised in fee of a large quantity of real estate, which is in the complaint fully described; that the plaintiff is the sister of said Westcott, and that she and certain of the defendants, who are the children or descendants of another sister, constitute all of his heirs and next to kin; that, soon after his death, a paper purporting to be his last will and testament was produced by the defendant Elizabeth P. Westcott, in and by which the testator, after devising three pieces of real estate to certain parties, devised the use of all the rest of his-real estate to Elizabeth P. Westcott as long as she should live, and at death directed that all the property left should be under the control of the defendant Ganung for the purpose of establishing and founding a hospital at Oneonta; that the will was afterwards admitted to probate by the surrogate of the county of Otsego, and letters testamentary thereon issued to the defendants Westcott and Ganung, two of the executors therein named, and that they have taken possession and assumed the control of the real and personal estate, claiming the right to do so as executors, and claiming rights and ownership in the property individually as legatees and devisees under the provisions of said instruments; that the paper so admitted to probate is not the last will of the deceased, was not executed in the form and manner required by law, and the deceased, by reason of mental infirmity, was incompetent to make a will, and the same was procured by undue influence and fraud; that the alleged will is not a valid instrument, but is void for uncertainty, and also in that it unlawfully suspends the power of alienation, and attempts to create an invalid trust, and that none of the persons named as devisees acquired any rights in the property by virtue thereof; that the plaintiff, as heir at law of the deceased, is seised in fee simple of an undivided one-half of the real estate, and the other heirs at law are seised of the balance, in the manner therein specified. Judgment is asked that the alleged will be declared null and void, that the plaintiff and the other heirs at law be declared the lawful owners of the real property, and that partition be made. The amendment asked for consisted in inserting just before the demand for judgment an allegation that the defendant Elizabeth P. Westcott willfully, wrongfully, and unlawfully, for the purpose of realizing under the alleged will, by the use of drugs, medicines, poisons, or other means, the exact particulars of which are unknown to plaintiff, caused and procured the death of said Munroe Westcott, and therefore is not entitled to take under the will. The question here is whether the plaintiff has, in any event, the right to have the issue presented by the amendment tried, and disposed of in this action. If -the facts alleged in the amendment are true, the plaintiff, in the proper forum, has, according co the law laid down in Riggs v. Palmer, 115 N. Y. 506; 26 St Rep. 198, the right to have it adjudged that the devise to Mrs. Westcott is ineffective to pass to her any title, and that the plaintiff and the other heirs at law are so far as any claim of Mrs. Westcott under the will is concerned, the true owners of the real estate left by the testator. That was the form of the adjudication in the Biggs Case, which involved precisely the issue presented here, ft follows, therefore, that the ownership and title of the property cannot be fully determined until the issue in question is disposed of.

Section 1537 of the Code is as follows:

“ A person claiming to be entitled, as a joint tenant or a tenant in common, by reason of his being an heir of a person who died holding and in possession of real property,' may maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent, and possession under such devise. But in such an action the plaintiff must allege and establish that the apparent devise is void.”

Section 1543 is as follows:

“ The title or interest of the plaintiff in the property, as stated in the complaint, may be controverted by the answer. The title or interest of any defendant in the property, as stated in the complaint, may also be controverted by his answer, or the answer of any other defendant; and the title or interest of any defendant, as stated in his answer, may be controverted by the answer of any other defendant. A defendant, thus controverting the title or interest of a co-defendant, must comply with section five hundred and twenty-one of this act. The issues, joined as prescribed in this section, must be tried and determined in the action.”

By section 1544 provision is made for a trial by jury of an issue of fact joined in the action.

Under these provisions it has been said that all questions arising between the parties in respect to the property, as to their respective titles and rights of possession, may be determined. Weston v. Stoddard, 137 N. Y. 119; 50 St. Rep. 169; Collins v. Collins, 36 id. 591; affirmed, 131 N. Y. 648; Shannon v. Pickell, 2 St. Rep. 160; Throop’s notes to article 2, tit. 1, chap. 14, of the Code. This would seem to be a rational view of the provisions of the Code. As said in the Weslon Case (page 128, 137 N. Y., and 50 St. Rep. 169): “Circuity of procedure and a multiplicity of suits are thereby avoided, and these were the primary objects which the Code system of practice had in view.” In the Weston Case it was held that a disseised cotenant might bring the action. The action may be maintained notwithstanding an adverse possession. Hewlett v. Wood, 1 Hun, 479; 62 N. Y. 78; Malaney v. Cronin, 44 Hun, 270. In the Malaney Case an issue was whether the will was procured by undue influence. In the Hewlett Case (see 3 Hun, 736; 1 Hun, 478) the issue was over the mental capacity of the testator, as well as undue influence. A devise to one who is incompetent to take is void. Hall v. Hall, 13 Hun, 309. In the case cited it was held that under section 2 of chapter 238 of the Laws of 1853, which was similar to section 1537 of the Code, an action of petition could be brought by the heirs of a testator who had devised the property in controversy to one who was incompetent to take by devise because of alienage, and the question as to such incompetency be disposed of in the action. The plaintiff in the present case in her original complaint alleges generally that she and the other heirs at law of the deceased are the owners in fee of the property; that the apparent devise is void, for the reason that the will was not properly executed, and was for the free act of a competent testator. It is also alleged that the residuary devise to Mrs. Granung is void upon its face for certain specified reasons. By the amendment the plaintiff seeks to further allege that the devise of the life estate to Mrs. Wescott is also void by reason of her incapacity to take, the cause of which is set forth. With this amendment the allegations reach the entire ownership as claimed under the will. So that, under the complaint as amended, the validity of the devise of the entire title is attacked on two grounds : First, for reasons going to the whole will; and secondly, for the reasons affecting only the real estate in question. Under Code, section 1537, the plaintiff must allege and establish that the apparent devise is void. There is no limitation as to the causes or reasons that may be alleged. There is prohibition against alleging all the grounds that may be claimed to exist. On the contrary, it would seem to be necessary that all should be alleged that tile party desires at any time to take advantage of. The final judgment is conclusive (section 1157), and in case of sale it effectually bars each of the parties who is not a purchaser at the sale from all right, title, and interest in the property sold (section. 1577).

It is suggested that the'amendment involves a cause of action not triable in an action of partition. It is certainly novel in its-character, but, under the decision of the Riggs Case, it involves simply the question of the capacity of the party to take and is to be treated as any other question of incapacity. The cause of action here is for partition, and as incident to it, the plaintiff has the right to remove the obstructions or clouds caused by the apparent devise. Henderson v. Henderson, 44 Hun, 420 ; 9 St. Rep. 356. It is said that Mrs. Westcott has not been criminally tried or charged, but her incapacity to take does not under the Riggs Case depend upon her trial or conviction, but upon the existence of the fact itself. The fact that some of the other parties may not be interested in this question is not an answer to the application for amendment. Very clearly the Code contemplated that the right of different defendants may not stand upon the same basis.

Sections 1538, 1543; Townsend v. Bogert, 126 N. Y. 370; 37 St. Rep. 488.

We are therefore of the opinion that neither of the grounds specified in the order appealed from as the grounds upon which the motion was denied is sustainable. The court had the power to allow the plaintiff to allege another ground on which the devise to Mrs. Westcott was void. The amendment was, under the circumstences of the case, somewhat in the discretion of the court, and, as that has not been exercised, the order should be reversed,, and the proceedings remitted to the special term for further hearing.

Order reversed, with $10 costs and disbursements, and proceedings remitted to the special term for further hearing.

All concur.


text:
    Sherman B. Mosher, Pl’ff, v. Supreme Sitting of Order of Iron Hall et al., Def’ts. William H. McDonald, App’lt, v. Same, Resp't.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Receiver — Attachment.
    The title of a temporary receiver, appointed before an attachment is levied, is prior to such attachment, though he did not qualify until after the levy of the attachment.

      2. Same — Appointment.
    A temporary receiver of the property of a foreign corporation within the state may be appointed, under section 713 of the Code.
    3. Corporation — Co-Operative—Distribution.
    The benefit fund of an insolvent mutual and co-operative corporation will, as a general rule,' be distributed p?-o rata among those who have contributed to it, in proportion to the amounts respectively paid in.
    Appeal from an order, denying a motion made by William H. McDonald to compel the receiver of defendant to pay a judgment recovered against it by him.

      Roger P. Clark and Edward K. Clark, for app’lt; Edmund O' Connor and Taylor L. Arms, for resp’t.
   Merwin, J.

— The defendant the Supreme Sitting of the Order of the Iron Hall is a foreign corporation, duly incorporated in 1881 under the laws of the state of Indiana, and having its legal location at Indianapolis, in that state. It was in the nature of a mutual and co-operative association, and its object, as stated in its articles of association, was to improve the condition of its members, morally, socially, and materially, establish a “ benefit fund from which members of the said order who have complied with all its rules and regulations, or the heirs of such members, may receive a benefit in a sum not exceeding one thousand dollars, which shall be paid in such sums and at such times as may be provided by the laws governing such payment, or in the certificate of membership, and when all the conditions regulating such payments have been complied with” ; also, to establish a life fund, from which, under certain conditions, a sum not exceeding $3,000 should be paid upon the death of a m.ember who had been duly admitted to membership in that fund. Benefit certificates were provided for, calling for the payment of a specific sum out of the benefit fund after a continuous membership of seven years. Provision was made for the organization of branches, and the issuing to them of charters. The revenue of the supreme body was derived “ from charter and registration fees, profits on the sale of paraphernalia and supplies, and from such per capita tax as may be levied at each regular session of this body, or at a special session called for the purpose.” The benefit fund was apparently made up from assessments. Bach branch was to attend to the collection of the assessments on its members, and retain in its hands, as a reserve fund, twenty per cent, thereof, of which it had the supervision and management, although it belonged in fact to the corporation. On the 17th day of August, 1885, a benefit certificate was issued to William H. McDonald, in the sum of $1,000, payable on the 17th August, 1892, less such sums as may have been previously advanced, and at that date McDonald claimed there was due thereon the sum of $500. He thereupon commenced in the supreme court an action against the corporation for the recovery of that amount, and on the 27th August obtained, in due form, an attachment against the property of the defendant, on the ground that it was a foreign corporation. This, at its date, was delivered to the sheriff of Broome county, and he, on the 31st August, in form, levied on certain moneys on deposit in the Binghamton Savings Bank to the credit of one of the branch orders of the corporation, and on the 1st September, 1892, on moneys deposited in like manner in the Chenango Valley Savings Bank. These levies were made by leaving with each bank a certified copy of the attachment, and a notice as required by law. The defendant corporation appeared in the action and answered ; among other things, denying its liability. The case was brought to trial, and upon the decision therein in favor of the plaintiff for the sum of $500, and interest from August 17, 1892, a judgment was entered on the 20th February, 1894, against the defendant therein, for the sum of $690.71 damages and costs. Upon this judgment an execution was issued, and the plaintiff therein and the sheriff are now trying to reach the deposits upon which it is claimed the attachment was levied, and which were on the 19th July, 1893, paid over by the respective banks to the Binghamton Trust Company, as receiver of the corporation défendant. This payment was'subject to any lien that in fact existed under or by virtue of the attachment.

It appears that on the 23d day of August, 1892, in an action brought in the superior court of Marion county, in the state of Indiana, by Albert B. Baker and others, against the said the Supreme Sitting of the Order of the Iron Hall, for the purpose of dissolving the said corporation, on the ground of insolvency and mismanagement, and for the appointment of a receiver to take possession of its assets and distribute the same among the persons entitled thereto, an order and decree were made appointing James F. Failey receiver of the corporation, and directing him to take and hold all the property, whether within or without the state, which the defendant had at the time of the commencement of the action on the 29th July, 1892, or had since acquired; and the defendant, its officers, and all its subordinate branches, were directed to deliver over to the receiver all the property and assets of the corporation, and to make, execute, and acknowledge any transfer in writing which the receiver should deem necessary or proper to more effectually vest in him the property and effects of the corporation, and any disposition of any of the property by any member or branch, except to the receiver, was restrained. Bee Supreme Silting v. Baker, 184 Ind. 293. Afterward-7, and on the 2d December, 1893, a final decree was made by the same court, continuing the receivership, and making it permanent. It was adjudged that the corporation was at the commencement of the actian insolvent, and was unable to carry on the business for which it was organized, and that its assets and property should be reduced to money, and applied upon its debts and outstanding obligations and liabilities. On the 26th day of August, 1892, in an action brought in the supreme court in the city and county of New York by Moses K. Glines against the said corporation, an order was made, at special term, appointing George B. Glines, temporary receiver of the assets and property of the defendant. This was made upon the summons and complaint in the ,action, and affidavits and order to show cause, all of which were served on defendant by service on one Cooper, who was shown to be the deputy supreme justice of the defendant, and one of its managing agents. Mismanagement and insolvency were alleged as the basis of the action. It was brought by the plaintiff therein, who was a member of the order, in his own behalf and in behalf of all members of the order residents of the state, the number of whom was large; and its object was to protect the rights of the members within this state, and, in that view, obtain the appointment of a receiver of all the property and assets within this state, and hold and distribute the same, subject to the order of the court, among the said members. The order appointing the receiver directed him to take possession of all the property and assets of the defendant, collect and receive all money due it, and assume full control of the assets, with all the usual powers of receivers in like cases. The receiver duly qualified as such, and filed his bond on August 27,1892, and entered on the discharge of his duties. On the 24th day of August, 1892, an action was commenced in the supreme court, in the county of Broome, by Sherman B. Mosher, against the said corporation, for substantially the same purpose as the action of Glines above referred to. The summons, complaint, notice of motion for the appointment of a receiver, and affidavit, were on that day served on the defendant by serving at Binghamton on a trustee of defendant residing in this state. An injunction pending the motion was granted on August 25, 1892, and, on the same day, similarly served on defendant. In pursuance of the motion-at special term on September 9, 1892, the Binghamton Trust Company was appointed temporary receiver of the defendant, with power to receive and collect all the property and assets of the corporation within this state at the time of making the motion for a receiver on the 25th August, 1892, or since acquired, and hold the same under the order and direction of the court. The question whether the receivership should be ancillary to the receivship in Indiana was reserved for future order. In this action the defendant appeared and answered, a trial was had, and on the 2d November, 1892, a final judgment was entered, continuing the receivership, and making the temporary receiver permanent, with the usual powers. A question arose as to the status of the temporary receivership of George E. Glines, and it was held (Glines v. Binghamton Trust Co., 68 Hun, 511 ; 52 St. Rep. 593) that it was superseded by the permanent receivership. Accordingly, Glines, in Junes, 1893, in pursuance of an order of the court, duly accounted and paid over to the Binghamton Trust Company, as the permanent receiver, since whice time the trust company' has continued to discharge the duties of permanent receiver.

It will be observed that the receivership of Glines was prior in time to the McDonald attachment. This priority existed, although Glines, as receiver, may not have taken actual possession of all assets. Beach, Rec. § 207. By operation of the receivership, the property was in custody of the law, and in such case the suie is that the property cannot be attached. Drake, Attachm. (7th ed.) § 251. The court in which the receiver was appointed might, perhaps, have given leave to levy the attachment (Webster v. Lawrence, 47 Hun, 565 ; 15 St. Rep. 140), but that was not done. The receiver, as the hand of the court, kept the legal custody until it vested in the permanent receivership. There was no point of time at wqich the lien of the attachment could attach. The property, all the time, was in the custody of the law. The Glines receivership was not abandoned, but it was asserted until it was absorbed by the permanent receivership.

But it is claimed that the appointment of Glines was void for want of jurisdiction. A motion at special term to vacate the order oi^appointment, on the ground that the defendant wits not properly served with process, was denied. Glines v. Supreme Sitting, 20 N. Y. Supp. 275, affirmed at general term, 21 N. Y. Supp. 543. In Glines v. Binghamton Trust Co., supra, the general term were evidently of the opinion that the appointment was authorized by section 713 of the Code. In some cases it has been held that a court of equity has inherent power to appoint a receiver of property of corporations, in order to preserve it for the benefit of the parties in interest, and to abide the direction of the court. Beach, Rec. §§ 404, 405. A distinction is made between a receiver of the property and a receiver of the corporation. Be that as it may, we are of the opinion that the view of the court in Glines v. Binghamton Trust Co., supra, should be followed here, and that the appointment of the temporary receiver was valid, so far as the present proceeding is concerned. It follows that the appellant had no lien by virtue of his attachment.

It is further claimed by the appellant that by virtue of his judgment he has an established debt against the corporation (Pringle v. Woolworth, 90 N. Y. 502), and is entitled to have it paid out of assets in this state. If there was a lien by virtue of the attachment, that might be so. Willitts v. Waite, 25 N.Y. 577; Barth v. Backus, 140 id. 235; 55 St. Rep. 561. But, in the absence of a lien, the rights of the creditor must be worked out through the operation of the receivership.

In the papers before us there is a stipulation that, at the hearing of the motion upon which the order appealed from was made, “an order was made, upon the petition of the local branches of defendant in the state of New York, in the action of Sherman B. Mosher, for the Binghamton Trust Company, acting as receiver, to turn over to James F. Failey, the Indianapolis receiver, the funds of the defendant in the hands of said trust company, except, etc. ; and it was then ordered that said trust company retain sufficient funds to pay the above-named judgment creditors, in case they ultimately succeed in their motions to compel or obtain payment of them claims out of the funds attached in their above-entitled actions.” The judgment creditors referred to in the stipulation are McDonald and two others similarly situated. The order referred to is not appealed from, and its propriety is not for us here to determine. It is stated in the appellant’s points that the transfer has been made as provided in the order. The stipulation seems to indicate that the claim of the judgment creditors was based solely on their attachments. .Assuming the appellant has a debt payable in preference to the claims • of members upon benefit certificates not matured, it is not shown that the fund in this state was sufficient to pay in full all similar claims in this state. -Nor is any. basis presented from which it can be determined how much they should receive. It it not clear that the maturity of the appellant’s certificate on the 19th August, 1892, gave him a preference over certificates not then matured. Clearly, the corporation was then insolvent. All the members having certificates had contributed to the benefit fund, and, as a general rule, such a fund will be distributed pro rata among those who contributed, in proportion to the amounts respectively paid in. 2 Bac. Ben. Soc. § 479a. This question, however, need not be passed upon here. We must here assume that, in the order of transfer above referred to, the rights of all parties were properly protected The court, no doubt, in a proper case, would have power to make such an order. (Buswell v. Supreme Sitting, 161 Mass. 224; Bac. Ben. Soc. supra), and we must assume that it was properly made. We find no good reason for disturbing the order appealed from, and it should be affirmed.

Order affirmed, with $10 costs and disbursements.

All concur.


text:
    Albert P. Fowler, as Administrator, etc., App’lt, v. Union Coarse Salt Company, Resp’t.

      (Supreme Court General Term, Fourth Department,

      Filed July 5, 1895.)

    Corporation — Officer—Liability.
    An officer of a corporation, though a deposit of its money by him was unauthorized, is in no wise liable therefor, where the depositary has returned a portion of- it to the corporation and, with its authority, paid the balance to another corporation.
    Appeal from a judgment, entered on the decision of the court, without a jury.

      W. S. Andrews, for app’lt; Frank Hiscock, for resp’t.
   Merwin, J.

— The defendant is a domestic corporation duly organized under the laws of this state prior to 1887, and having its office and place of business at Syracuse, U. Y. George F. Corn-stock, at the time of his death, on September 27, 1892, and for many years prior thereto, was its treasurer, and also one of its directors. In the complaint it is alleged that Comstock, at certain dates from. June 6, 1892, to August 16, 1892, advanced moneys: to the defendant to the amount of $5,076.75, no part of which has-been paid, and for this amount, with interest, judgment was demanded. Upon the trial these advances were not disputed, but the controversy was over the counterclaim or set-off set up in the answer. It was alleged that on the 14th November, 1887, the decedent became, and he or his estate still is, indebted to the defendant upon account for money had and received in the sum of $5,729.31 and interest. In another count it was alleged that on the 14th November, 1887, the decedent was the treasurer of the defendant, and on that day, as such treasurer, he received $10,500, the property of defendant, which it was his duty to apply to the payment of the then existing debts of the defendant, and deposit the balance, if any, in some safe and proper bank, to his credit as such treasurer, until needed by the defendant; but that, instead . of doing so, he, without right or authority so to do, converted the same to his own use, and loaned the same to the American Dairy Salt Company, a domestic corporation, which soon thereafter failed, whereby $3,275.46 of said money was lost; that at the time of such loan Comstock knew that the American Dairy Salt Company was insolvent, and it was soon thereafter so adjudged, and a receiver appointed, and no part of its debts have been paid. In its decision the trial court found that on the 14th November, 1887, Comstock, as treasurer of the defendant, “received $10,399.12 of the property of the defendant, which it was his duty to deposit to the credit of the defendant in its proper bank account, but, instead of so doing, said Comstock, without right- or authority so to do, converted to his own use and loaned the same to the said American Dairy Salt Company, Limited, whereby $3,275.46 of said money was lost, which, with interest to this date, amounts to $4,303.94,” and that at the time of such loan Comstock knew the said company was insolvent. The amount of $4,303.94, together with several small items, not here in controversy, was deducted, from the claim of the plaintiff, leaving a balance of $510.80 in favor of plaintiff, for which judgment was ordered.

The question, on this appeal is whether the item of $3,275.46 and interest was properly deducted from plaintiff’s claim. It is claimed on the part of the plaintiff (1) that there is no evidence in the case that would justify the finding that any money of the defendant was had and received by the decedent; (2) that, in any event, there is nothing in the case-that tends to show that the $10,399.12 was used in an unauthorized manner by the decedent; (3) that, even if the deposit or loan in question was made by the decedent, and was unauthorized, no damage resulted to the defendant. It appears that on the 14th November, 1887, the Syracuse Savings Bank, in payment of a portion of a loan made by it to the defendant, made its check for the sum of $10,399.12, payable “to the order of George F. Comstock, Treas.” This was indorsed by “ Geo. F. Comstock, Treas.; ” then by “Geo. F. Com-stock, Jr.,” who was the 'president of the defendant ; then By “Thomas Molloy, Treas.” Molloy was treasurer of the American-Dairy Salt Company, Limited. The check was then credited to-the defendant on the books of the American Dairy Salt Company. On the books of the defendant, under date of November 14, 1887,. there is an entry of the loan from the savings bank, and of the-deposit of the check for $10,399.12 with the American Dairy Salt Company. Thereafter, from time to time, up to and including March 5, 1888, the defendant, as indicated by receipts in the name of the defendant, by officers other than the treasurer, received in the aggregate from the American Dairy Salt Company the sum of $10,551.62. All these receipts are stated to be “on special account,’1 and all are charged to the defendant on the books of the American Dairy Salt Company. Only a portion of the amounts of these receipts appear in the treasurer’s account of the defendant, being the sum of $4,655.51, and the balance of $5,896.11 appears in the treasurer’s account of the Western Coarse Salt Company, another corporation, doing business at Syracuse, of which George F. Comstock was treasurer, and whose solvency is not here questioned. The arrangement under which these receipts or payments, were divided does not appear. Afterwards, and on March 17,1888, the defendant received credit on the books of the American Dairy Salt Company for the sum of $5,972, being a check of the Syracuse Savings Bank of that amount, payable to the order of the Western Coarse Salt Company, and indorsed by “Geo. F. Comstock, TreasY and “Thos. Molloy, Treas.” After this the American Dairy Salt Company continued to pay to the defendant, mostly on receipts similar to those above referred to, until October 9, 1888, at which time the total amount of such payments was $13,391.20, of which there appeared on defendant’s books $5,760.78, and on the books of the Western Coarse Salt Company, $7,630.42. The total credit to the defendant on the books of the American Dairy Salt Company, including an item of $65.13 of the same date as the original check, and an item of $230.41 for interest, was the sum of $16,-666,66. That left a balance of $3,275.46 due to the defendant, and this is the amount which the court below charges to the plaintiff. It seems that the W estern Coarse Salt Company afterwards settled with the defendant for the balance it had received in the transaction over and above the amount of $5,972, paid March 17, 1888.

It is not shown that George F. Comstock personally ever had any of the moneys represented by the check of November 14, 1887; so that, according to the ordinary rule in such cases, an action for money had and received would not lie. Trust Co. v. Gleason, 77 N. Y. 400; Rosenberg v. Block, 118 N. Y. 334; 28 St. Rep. 928. No conspiracy is charged or proved. If the defendant’s, only remedy is an action for damages for breach of trust or for negligence, it is, to say the least, quite doubtful whether it is in a position to have the benefit of it as a counterclaim in this action. The fact of the deposit in question was entered on the books of the defendant. Evidently the three corporations had mutual "transactions, and their affairs seem to have been largely managed by the same individuals. Under what arrangement the deposit was made does not appear. It is shown that three out of five directors parti■cipated in it It also appears that the books of the defendant show a settlement of the treasurer’s account on February 15, 1892, at which time there was a balance due from the treasurer of $151.64; that after that, down to September 27, 1892, there were entries on both sides of the account, and that on February 20, 1893, the books show a balance due George F. Comstock, as treasurer, of $5,076.75, which is the amount the plaintiff sues for. Comstock died September 27, 1892. In view of the actual or presumptive knowledge which the defendant had of the transaction of November, 1887, ■and its apparent silence until after February, 1893, it is not clear that the defendant is in a position to say that the deposit of November, 1887, was without its authority.

Rut, passing these questions, we come to another claim of the plaintiff, which is that the defendant was not damaged by the deposit of November, 1887. It is shown that on or prior to March 5, 1888, the full amount of it had been drawn by or paid to the defendant. At that date nothing was due from the American Dairy Salt Company to the defendant. The fact that by some Arrangement a portion of the money had been passed over to the Western Coarse Salt Company did not change the state of the account between the defendant and the American Dairy Salt Company. The latter had safely kept and returned the whole of the money represented by the check of $10, 399.12. Afterwards a further deposit is made with it of $5,972, and a portion of that is lost. This deposit is not challenged by the defendant’s answer, and the arrangement or circumstances under which it was made are not put in issue by the allegations of the counterclaim. We .■see no answer to this view of the case, and, as the case now stands, It must therefore be held that the finding of the trial court that the ■check of November 14, 1887, was by George F. Comstock converted to his own use, to the defendant’s damage, is not sustained by the evidence.

Judgment reversed on the law and the facts, and a new trial -ordered; costs to abide the event.

All concur.


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    John Fitzgerald, as Administrator, etc., Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed June 5, 1895.)

    ITegligence — Contributory.
    A brakeman, who knew the location of a bridge and that it was low and without signals, but, by reason of being_ occupied at the time with the discharge of his duties, does not take notice of its near approach, will not necessarily be charged with contributory negligence, nor be held, as matter of law, to have assumed the risk of the dangerous structure.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made bn the minutes.

      C. D. Prescott, for app’lt; Hadley Jones, for resp’t.
   Merwin, J.

— The plaintiff’s intestate, Thomas Fitzgerald, was on November 11, 1887, in the employ of the defendant as a brakeman on a freight train that left De Witt early in the morning, passing eastwardly. The claim of the plaintiff is that, as the train passed under a low bridge between Green’s Corners and Eome, the decedent, who was then on the top of one of the freight cars, was hit by the bridge and killed. It was between five and six o’clock in the morning, not fully light, and at that place there is a down grade, and there is evidence that the train was then going at the rate of about twenty miles an hour. It is claimed the defendant was negligent in not having at the bridge suitable warning sjgnals, as required by section 2 of chapter 439 of the Laws of 1884, which was then in force. It was shown that the defendant, in this regard, had failed to perform its duty, and it was a question of fact whether the decedent met his death at the bridge by reason of such failure. Upon a former appeal in this case (59 Hun, 225; 36 St. Rep. 755), it was held that the decedent was chargeable with contributory negligence ; it then appearing from the testimony of one of plaintiff’s own witnesses that the decedent knew of the dangerous character of the bridge, and that there were there no warning signals. The witness who gave this testimony was not called by the plaintiff upon the trial now under review, but was called by the defendant, and gave substantially the same testimony as he gave before. He was the conductor on the train. It was held by the trial judge — correctly, we think — that the credibility of the witness was for the jury, and that it should not be said, as matter of law, from his testimony, that the decedent knew of the danger and the lack of signals. If he knew the location of the bridge, and that it was low, and still, by reason of being occupied, at the time with the discharge of his duties, he did not take notice of its near approach, he would not necessarily be charged with contributory negligence, within the rule laid down in Wallace v. Central Vt. Railroad Co., 138 R. Y. 302; 52 St. Rep. 351. As the case now stands, we think that it should not be said, as matter of law, that the decedent took the risk of the dangerous bridge, or was guilty of contributory negligence. There was evidence that he had passed over the road but once before. The train was a long one, on a down grade, at a rapid rate for a freight train. He was told by the fireman that it was not necessary for him to go on top of the train, but, in the absence of any direction from the conductor or engineer, he had the right to infer, as the jury may have thought, from'the rules of the company, that it was his duty to be on top. There is evidence that this was, to some extent, for him to determine according to his own judgment, in view of the situation as it then was. Whether, in this respect, in view of all the circumstances, he exercised reasonable care, was for the jury to say.

Our attention is called to some rulings upon evidence, but we find no reversible error. It was proper to show the situation at the time at the bridge as to signals. Whether there was an reason or necessity for the decedent’s going onto the top of the car was for the jury to say, upon all the facts.

The defendant claims that the court, in its charge, gave undue force to á rule of the defendant that provides that •

“In descending grades, the conductors will see that their men are at their posts, and not allow their trains to acquire a greater speed than one mile in four minutes. Conductors and engine men must not violate this rule under any circumstances.”

One of the witnesses of the defendant testified that this applied only to the West Albany and Schenectady grades. The rule contained no such limitation, and, for aught that appears, the decedent has the right to. believe that it applied just as generally as it read. The defendant claims that the amount of the verdict is excessive. The decedent was about twenty-two years old, was unmarried, and lived with his father, the plaintiff, who was fifty-eight years old. He was receiving wages at the rate of $1.85 per day, and had worked steadily from the time he was sixteen. His father was the next of kin. Tfie amount of the verdict was largely in the discretion of the jury (Code, § 1904), and it should not, we think, be disturbed. See Johnson v. L. I. Railroad Co., 80 Hun, 306 ; 62 St. Rep 46, and cases cited.

J udgment and order affirmed, with costs.

All concur.


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    Roger B. Williams, Resp’t, v. Homer W. Rightmeyer et al., Def’ts; Eugene Terry, as Assignee, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Attachment — Affidavit—Ground.
    A proper statement of a sufficient ground for an attachment is not vitiated by the conjunctive statement of an insufficient ground.
    Appeal from an order denying a motion to vacate an attachment. '

      William Hazlitt Smith, for app’lt; Newman & Blood, for resp’t.
   Merwin, J.

— On the 21st November, 1894, on the application of the plaintiff, an attachment was issued by the county judge of Tompkins county against the property of the defendant. On the 22d November, 1894, the defendant executed a general assignment to the appellant, Terry. This is dated November 19,1894. Thereafter, upon notice dated December 29,1894, the assignee moved at special term upon affidavits to vacate the attachment. In opposition to the motion, additional affidavits were presented on the part of the plaintiff, and the assignee was allowed to put in replying affidavits. Upon this appeal it is claimed (1) that the grounds upon which the attachment was issued are not stated therein as required by the Code of Civil Procedure, in that they are stated in the disjunctive ; and (2) that upon the facts the attachment should be vacated. In the attachment it is stated “that the defendant is a natural person and a resident of the state, and keeps himself concealed therein with intent to defraud his creditors and to avoid the service of a summons, and that the defendant has assigned, disposed, or secreted, or is about to assign, dispose of, or secrete, his property, with intent to defraud his creditors. The statement that “the defendant has assigned, disposed, or secreted, or is about to assign, dispose of, or secrete, his property, with intent to defraud his creditors,” is not a proper statement of any ground, within the case o£ Cronin v. Crooks, 143 N. Y. 352; 62 St. Rep. 307. The statement, however, that the defendant is a resident of the state, and “keeps himself concealed therein with intent to defraud his creditors and to avoid the service of a summons," is a proper statement of a sufficient ground, within the rule laid down in Garson v. Brumberg, 75 Hun, 336; 58 St. Rep. 209. This is not vitiated by the fact that an insufficient statement is conjunctively attached.

Upon the facts, the question was whether, at the time the attachment was issued, the defendant kept himself concealed within the state with intent to avoid the service of a summons. Code Civ. Proc. § 636.- That this was satisfactorily shown was the conclusion reached by the special term, after each side had full opportunity to present his case. This conclusion should not, we think, be disturbed.

Order affirmed, with $10 costs and disbursements.

All concur.


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    Jacob L. Everitt, App’lt, v. Walter W. Park, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed July 5, 1895.)

    1. Attachment — Vacation.
    Upon an application to vacate an attachment on the same papers on which it was granted, the averment of fact contained in the affidavits and the fair inferences to be drawn therefrom are to be deemed to be conceded as true for the purposes of the motion.
    3. Same — Discretion.
    The action of the judge in granting an attachment on the ground that the defendant is a nonresident is an exercise of his discretion upon this matter in the plaintiff’s favor, and a review of an order vacating the attachment will not, therefore, be denied on the ground that the latter order was the exercise of his discretion in the defendant’s favor.
    3. Same — Affidavit.
    The moving affidavit-was held sufficient to sustain the attachment on the ground of defendant’s nonresidence.
    Appeal from an order denying a motion to vacate an order which vacated a warrant of attachment.
    On the 14th of February, 1894, the county judge of Chemung county, upon the application of the plaintiff, granted an attachment against the property of the defendant, on the ground that he was a nonresident On the 2d of March, 1894, the county judge, on the application of the defendant, without notice to plaintiff vacated the attachment, on the grounds, as stated in the order, that the papers on which the attachment was granted do not show that the defendant was a nonresident, and that the plaintiff cannot, under section 1913 of the Code, maintain an action on the judgment set out in the complaint. The plaintiff thereupon, on notice to the defendant, moved at special term to vacate the order of the county judge, and on such motion the order appealed from was made.

      Youmans & Moss, for app’lt; Baxter & Gibson, for resp’t.
   Merwin, J.

— It is not claimed by the defendant that the ground secondly stated in the order of the county judge is available. The only question, then, is as to the sufficiency of the affidavits on which the attachment was granted, on the subject of the nonresidence of the defendant.

Is was stated in the affidavit of the plaintiff as follows :

“Deponent further says that the defendant, Walter W. Park, is not a resident of the state of New York, and that he resides at Forest City, in the state of Pennsylvania. Deponent states the residence of said defendant upon information received by deponent from the following sources: Deponent saw said Walter W. Park in Elmira, New York, about a week ago, and deponent is informed by Roswell R. Moss, one of his attorneys in this action, that he (said Moss) has seen on file in the Chemung county clerk’s office, a chattel mortgage recently given by Marrianna Park to said Walter W. Park, dated February 12, 1894, wherein the residence of said Walter W. Park is stated as Forest City, Pa., and which said mortgage bears upon it the assignment thereof to Lewis M. Smith, dated February 12, 1894, upon which information and which deponent believes, he believes said Walter W. Park to reside at Forest City, Pa.” >

This affidavit is followed by the affidavit of Mr. Moss, who says:

That the information stated in the annexed affidavit of the plaintiff as have been given to him by the deponent, the deponent did give to said plaintiff, and stated the same to plaintiff truthfully. The deponent has seen on file in the office of the Chemung county clerk such a chattel mortgage, which bears upon it such an indorsement as stated in the said affidavit of the plaintiff, a true copy of which said chattel mortgage, with said indorsement and assignment thereon, is hereto attached.

The mortgage is dated February 12, 1894, and its execution is acknowledged by the mortgagor the same day, before a notary public in the city of Elmira. The mortgagee is: “Walter W. Park, of Forest City, Penna.; ” and the mortgage is given to secure the payment of a note of $300, payable at an Elmira bank. The assignment is dated the same day as the mortgage, and is from Walter Park to Lewis M. Smith, and is witnessed by the notary public. It contains a guaranty of the payment of the mortgage.

The case of Steel v. Raphael, 37 St. Rep. 623, is quite in point. There an order denying a motion to vacate an attachment was affirmed by the general term of the first department, and in the opinion it is said:

“As to the allegations in respect to nonresidence the affidavit is sufficient. The allegation is positive as to the nonresidence of the defendants. It is true that their place of residence outside of the state of New York is stated on the information and belief, and the sources of information and grounds of belief are not given; and if the jurisdiction of court depended upon the establishment of that fact, the affidavit is undoubtedly defective. But it does not matter where they reside outside of the state, the court has jurisdiction.”

The case of Andrews v. Borland, 10 St. Rep. 396, decided by the general term of second department, is to the same effect.

It does not seem to be claimed by the respondent that an absolute statement of nonresidence would not be sufficient; but the argument is that, taking the whole affidavit together, it was not the intention to state the nonresidence absolutely, but only on information and belief, the same as the place of residence is stated. This argument would seemingly have as well applied to the two cases above cited as to this. Those cases are authority against it.

The affidavit on which an attachment is granted should present a prima facie case. Lee v. La Compagnie, etc., 2 St. Rep. 612. On a motion to vacate on the same papers, the averments of fact contained in the affidavits and the fair inferences to be drawn therefrom are to be deemed to be conceded as true for the purposes of the motion. Phillips v. Wortendyke, 31 Hun, 192. In Bank v. Alberger, 78 N. Y. 252, 258, it is said that, if any fact is shown which tends to show the existence of the statutory conditions, the judge would acquire jurisdiction, and the attachment should be sustained. In Leiser v. Rosman, 32 St. Rep. 739, it is said: “Ho reason is perceived why uncontradicted affidavits upon which an. attachment is granted should not be construed with reasonale liberality.” In the present case, we are of the opinion that the affidavits presented a prima facie case of nonresidence.

But it is suggested that the connty judge, on the application of the defendant to vacate the attachment, said, in substance, that the essential fact was not shown to his satisfaction, and that his conclusion cannot be reviewed any more than it could had he, in the first instance, refused the attachment on that ground. Whatever discretion the county judge had in the matter he exercised in favor of the plaintiff when he grantee the attachment. The plaintiff acted upon this, went on, and had a levy made. It would not be right to say that this discretion could, on the application of defendant, and" without notice to plaintiff, be recalled without giving the plaintiff a remedy. The defendant moved, as he had a right to do, under section 683 of the Code, to have the attachment vacated. Whether it was properly vacated should be determined according to the rules ordinarily applicable on motions to vacate attachments. The proper practice was followed by the plaintiff in order to have a review of the order. People v. Common Council of City of Buffalo, 30 Hun, 636.

The, foregoing considerations lead to a reversal of the order of the special term, and the granting of the motion to vacate the order of the county judge of date March 2, 1894.

Order of special term so far as appealed from reversed, with $10 costs and disbursements; and motion to vacate the order of the county judge filed March 2, 1894, granted, with $10 costs.

All concur.


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    Hanford M. Swan, App’lt, v. George W. Morgan et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Witness — Section 829 of the Code.
    In an action by the judgment creditor of a decedent against the grantee and the administrator of such decedent to set aside a deed made by decedent, as in fraud of creditors, such administrator may testify in favor of the grantee as to statements of the decedent concerning her indebtedness to the grantee, in consideration of which the deed was alleged to have been made.
    Appeal from a judgment dismissing the complaint

      James L. Baker,.for app’lt; C. H. Evarts, for def’t.
   Merwin, J.

— On the 3d day of August, 1890, Mary L. Morgan died intestate, and on December 30, 1890, the defendant George W. Morgan, her husband, was duly appointed administrator of her ■estate. In July, 1889, she became indebted to plaintiff, and on the 21st December, 1891, the plaintiff recovered a judgment on such indebtedness against George W. Morgan, as administrator. This action was commenced in May, 1892, against George W. Morgan, individually and as administrator, and against Jennie G. Morgan. Its object is to set aside, as fraudulent and void as to creditors, a conveyance of certain real estate from Mary L. Morgan to the defendant Jennie 0. Morgan, dated November 19, 1889, and recorded June 28, 1890, and also a bill of sale or assignment dated June 24, 1889, from Mary L. Morgan to said tJennie, purporting to cover all the personal property of the said Mary. It was alleged that these transfers were without consideration, and were made with the intent to defraud the plaintiff out of his debt. It was found by the special term that these transfers were made to secure to the defendant Jennie “ the payment of a sum which exceeded the value of the interest of Mary L. Morgan in both the real and personal property mentioned, for money which had been delivered to Mary L. Morgan by her mother for her daughter, the defendant Jennie 0. Morgan, and which justly belonged to her; ” and that they were not, either of them, made with an intent to hinder, delay, cheat, or defraud the plaintiff or any of the creditors of Mary L. Morgan. These findings are challenged by the appellant, and the main question in the case is whether the evidence is sufficient to sustain them. It appears that, before the trial, the real property had been sold upon foreclosure of prior mortgages, and did not bring enough to pay the mortgages. The bill of sale or assignment covered a quantity of book accounts and some chattels. There was evidence that the accounts were uncollectible, and that the interest of the decedent in the chattels was of about the value of $100. There was evidence tending to show that the decedent owed her daughter several hundred dollars.

A careful examination of the evidence leads us to the conclusion that it is sufficient to sustain the findings complained of. They rest largely on the testimony of George W. Morgan, and his credibility was a matter that the trial court had better opportunity to determine than the appellate court can by simply reading the evidence. It is claimed by the appellant that George W. Morgan was improperly allowed to testify as to statements of the decedent. The objection was a general one, “ as to any conversation or any statement that this witness gives'from the witness’ wife, deceased, as to any amount of money, as hearsay, and under section 829, Code Civ. Proc.” The defendant Jennie had a right to have the benefit of her father’s evidence. She did not hold from him, and lie was not testifying in his own behalf or interest. His legal rights, if any, in the property were the other way. An exception td the rule rejecting hearsay evidence is allowed in the case of declarations and entries made by persons since deceased, and against the interest of the persons making them at the time when they were made. 1 Greenl. Ev. § 147. Within this rule the statements of the decedent against her interest, long before this controversy or the debt of plaintiff existed, and at or near the time when she received the money, that she held it for her daughter and was indebted to her daughter therefor, were competent. If so, the ruling was not erroneous. In Bump on Fraudulent Conveyances (2d ed., 576) it is said that “ declarations of the debtor prior to the alleged inception of the fraud are admissible in favor of the grantee,” on the question of consideration; citing Dwight v. Brown, 9 Conn. 83; Banking Co. v. Stearns, 23 N. J. Eq. 414. We are of the opinion that the objection to the evidence was properly overruled.

The plaintiff in his complaint alleged that the decedent at the time of her death was the owner of a small piece of land of the value of about $50 adjacent to the other real estate, and that the defendants had the deed thereof, but the same was not on record. The plaintiff claimed the right to reach this property in this action. It was shown that before the death of Mrs. Morgan a deed was-executed of such a piece of property running to her, but it was also shown, and found by the court, that Mrs. Morgan refused to accept the deed, and so it was properly held that she acquired no title under the deed. Besides, if she did have the title, the plaintiff had a remedy by proceedings in the surrogate’s court. The foregoing considerations Jead to an affirmance.

Judgment affirmed, with costs.