text:
    The Hong Kong and Shanghai Banking Company, Resp’t, v. Guy B. Seely, App’t.

      (Supreme Court, General Term, First Department,

      Filed March SI, 1887.)

    1. Reference of issues—When may be ordered.
    Where the defendant, by his answer, claimed that he was entitled to an accounting, and it was apparent that a long account would necessarily be examined in order to adjust the rights of the parties: Held, that the question as to the liability of the defendant being one of fact, and no difficult questions of law being involved, an order referring the issues in the action was properly made.

      % Same—What is not waiver of right to move for.
    ' Held, that by noticing a cause for trial at circuit, a party did not waive his right to move for an order of reference, if such right existed.
    Appeal from order made in this action referring all the issues therein to a referee to hear and determine same.

      Flamen B. Candler, for def’t and app’lt; Amasa A. Red-field, for pl’ffs and resp’t.
   Van Brunt, P. J.

The plaintiffs in this action allege in their complaint that they are a foreign corporation organized and existing under the laws of the kingdom of Great Britain and Ireland, and that the defendants are copartners transacting business in the city of New York. The complaint then sets up several distinct causes of action upon several different bills of exchange drawn by the defendants to their own order upon the firm of J. D. Carroll & Co., of Yokohama, Japan, indorsed by themselves and delivered to the plaintiff for value received; that J. D. Carroll & Co. accepted the bills of exchange, but did not pay the same at maturity; that as security for the prompt acceptance of the bills and payment thereof at maturity, the defendants indorsed and delivered to the plaintiff divers bills of lading of merchandise shipped to Yokohama, which merchandise was to be received by the plaintiffs on arrival at Yokohama and in case of the non-acceptance and nonpayment of the bills of exchange, was to be sold and the proceeds, after deducting all charges, expenses and commissions, applied to the payment of the bills; that default having been made in the payment of the bills, the plaintiffs proceeded pursuant to the terms of such hypothecation and sold the goods and applied the net proceeds to the payment of the amounts due upon the bills, and that from time to time the plaintiff has rendered accounts of each of the sales aforesaid and that there was a balance due upon all the foregoing transactions from the defendants to the plaintiffs of some $5,000; that the amount has been demanded and the defendants refused to pay the same.

The defendants by their answer deny their liability upon the ground that the alleged bills were made by them and indorsed at the request and for the convenience and accommodation of the plaintiffs, and that they were to be paid by the plaintiff from a bank credit which had issued to •Carroll & Co., in favor of the defendants; that the plaintiffs had ’ :en repaid by Carroll. & Co., or from property in the plaintiffs’ hands as security, and that other security belonging to Carroll & Co., was in the plaintiffs’ hands applicable to the payment of such alleged bills. The defendants further claimed that they are entitled to an account from the plaintiffs for all the moneys and properties which were received by the plaintiffs as security for .said bank credit and also for all moneys realized by the plaintiffs therefor, and for the balance of the property and security remaining in the plaintiffs’ possession which were received by the plaintiffs from Carroll & Co., as and for the plaintiffs’ security for issuing the said credit.

The appellants claim that the court below erred in ordering a reference: First, because the trial of the issues in the action would not require the examination of a long account, and secondly, that difficult questions of law would arise upon the trial.

That an examination of a long account is necessary in the disposition of the rights of the parties under the issues raised in the pleadings herein, is evidenced by the answer of the defendants themselves, who claim that they are entitled to an accounting by the plaintiffs for all the moneys and properties which were received by the plaintiffs as security for the bank credit mentioned by them. If, therefore, they are to be held liable upon their own bills of exchange, and upon the hypothecation of the agreement, it is certain that a long account is necessary before the rights of the parties can be determined.

The question of the liability of the defendants upon their bills of exchange seems to be one of fact and it. is not apparent that it will involve any difficult question of law.

The objection that the appellant states that the account therein mentioned has become a stated account does not seem to be well taken, as the appellant evidently does not proceed upon the fact that the accounts have been so stated between the parties that they cannot be inquired into.

The objection that the indorsement is denied and that therefore the question of forgery may be raised, might be a serious one if it was seriously claimed that any such issue would be presented.

The objection that the case was noticed for trial at circuit and therefore the motion for reference could not be made is not well taken. Such a notice is not necessarily a waiver of the right of the party to move for such relief if he is entitled thereto.

The order seems to have been properly made and should be affirmed with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    William A. Parke et al., v. The Franco-American Trading Company, Limited.

      (Supreme Court, General Term, First Department,

      Filed March, 31, 1887.)

    1. Contract—What is not waiver of conditions.
    The use of buildings constructed under a contract is no waiver of conditions, except in the case of unintentional omissions not substantial in their nature, a due allowance for which out of the contract price will give full indemnity to the party receiving the work.
    2. Same—Immaterial defects in performance do not amount to FAILURE,
    In such cases the contractor is allowed to recover the contract price, less the damages on account of the defect. The party invoking this principle must, however, show that their violation of the contract nas caused no injury to the other party.
    Upon the trial of this action a verdict was directed for the defendants, and the plaintiffs’ exceptions were ordered to be heard in the first instance at the general term.
    The plaintiffs now move that the verdict be set aside and a new trial ordered, and the defendants move that the exceptions be overruled and judgment directed upon the verdict.

      E. M. Shepard, for pl’ffs; E. 0. James, for def’ts.
   Van Brunt, P. J.

Although there seems to have been some conflict of evidence in respect to some of the details of the case at bar, yet as to the main features, no conflict exists.

It is conceded that the proof shows that the defendants made a contract bearing date June 1, 1883, with the plaintiffs, for the supplying materials and the erection of certain buildings on the Isthmus of Panama, which the defendants had agreed to erect for the Panama Canal Company, which buildings were to be completed within nine months from date.

It was provided, among other things, that the defendants should have the right to appoint an agent or agents to examine the material, with power to reject all material and workmanship deemed not in accordance with the drawings and specifications to said contract annexed.

It further appears, that the defendants did appoint an inspector or inspectors of materials and workmanship, who examined the materials and workmanship which the plaintiffs proposed to supply in fulfillment of this contract, and that a large portion of such material was rejected by such inspectors, which rejected material was marked by a hammer in a certain way, and the accepted material marked in a certain other way.

That the foreman of the plaintiffs, soon after the work under the contract commenced, procured to be made a hammer, which was an exact imitation of that used by the inspectors, and that after the inspectors had rejected any material and had stamped it as rejected, said foreman was accustomed to remove the mark of rejection and put on-instead the mark of acceptance, and in the material thus stamped the imperfections were puttied up so . that when the coat of paint was put on, they could not be discovered, and thus, the defects being concealed, it was put on board the vessels and shipped to Panama, where all lumber prior to December 18, 1883, was received, not by the defendants, but by the plaintiffs, and used by them in the construction of the buildings in direct violation of the terms of their contract with the defendants, the material not complying with the contract and not having passed the inspection'provided for therein.

In December, 1883, at which time the greater part of the lumber had been shipped, the parties agreed to a modification of the contract of June 1, 1883, by which the plaintiffs were released from the part of the contract of June 1,1883, which required them to erect and paint houses at Panama.

The plaintiffs entered upon the performance of their contract in the summer of 1883, but this fraud practiced upon the defendants was not discovered until January 9, 1884, and there was evidence that it continued until the last shipment of lumber.

After the discovery of the fraud, the defendants insisted that the plaintiffs should continue to ship lumber, in pursuance of the contract, to Panama, and they did so.

The plaintiffs told the defendants, after the discovery of the fraud, that if there was anything wrong about the lumber to order it back at their expense, or replace it at Panama at their expense, and that they would pay any damages which might be sustained by them through the fault of any material that they had sent down.

The defendants paid in full for all material furnished subsequently to January 9, 1884, but $20,000 remained due upon the contract price for the material, etc., furnished under the contract prior to the discovery of the fraud.

None of the lumber was returned, and this action was commenced to recover the $20,000 remaining due upon the contract.

The defendants denied the fulfillment of the contract upon the part of the plaintiffs, and alleged that the Panama company had deducted $25,000 from the defendant’s contract with them because of the breaches of contract by the plaintiffs.

It is urged by the plaintiffs that if the lumber fraudulently shipped was a violation of the contract, the defendants completely waived the violation by afterwards; with full knowledge of the violation, accepting and using the lumber, and by insisting that the plaintiffs should proceed with their contract.

One difficulty with the first part of this proposition is that there is no foundation for the assertion that the defendants accepted and used all the lumber fraudulently shipped, or that they accepted any of it prior to January 9, 1884, having any knowledge of the fraud which had been practiced upon them. In fact, the fraudulent lumber was shipped prior to Januarj 9, 1884, where the fraud was first discovered, and there is no evidence that the defendants received or used any lumber at Panama prior to December 18, 1883, but prior to that time it was there received and used by the plaintiffs, and as to all material shipped subsequent to the discovery of these frauds, that has been paid for.

The buildings, prior to December 18, 1883, were erected on the isthmus by the plaintiffs, and not by the defendants,, and, therefore, the defendants could not accept and use the materials prior to that time; and all received subsequent to December 18, 1883, and prior to January 9, 1884, were received by their agents there under the supposition "induced by the fraudulent action of the plaintiffs, that they had been duly inspected in New York, and accepted as complying with the contract.

What right the defendants waived by insisting upon the performance of the contract, it is difficult to see. They have paid for all that was done subsequent to the discovery of the fraud, and they refused to make further payments upon fraudulent work after the discovery of the fraud, and it is evident that the plaintiffs went on with the contract because the defendants would pay for subsequent deliveries, and that it may be understood clearly $20,000 of the amount claimed to be due at the time of the discovery of the fraud should remain in the condition it then was.

It is urged that the defendants could not insist upon performance on the part of the plaintiffs, but refuse all performance on their part. There is no evidence that the defendants ever refused performance on their part. They were to pay when the plaintiffs performed, and the plaintiffs did not perform.

The whole theory upon which the plaintiffs seem to base their claim is that the defendants accepted and used their lumber.

As this is so strenously urged, attention must again be called to the fact that prior to December 18, 1883, the material was received and used at Panama in the construction of the buildings by the plaintiffs, and all that the defendants did prior to that time was to receive the buildings when completed upon designated sites and after that time by their agents to receive material which the plaintiffs falsely represented to have been inspected and accepted as complying with the contract.

The defendants had used every precaution to protect all parties the contract from dispute as to material by inspection here, and by the fraudulent acts of the plaintiffs’ servants, such precautions were rendered futile, and materials not complying with the contract were shipped and used in these buildings by the plaintiffs.

It is true that some of the employees swear that most of the material substantially complied with the contract, but if it did, it seems curious that such a fraud should have been resorted to to get it into these buildings, and it certainly did not pass the inspection provided for by the contract, which the defendants had a right to insist upon, and did insist upon.

The cases in this state are numerous that the use of the buildings constructed under a contract, is no waiver of its conditions.

The case of Smith v. Brady (17 N. Y., 173), settles this point and the only relaxation of the rule laid down in this' case, has been made in the case of unintentional omissions. which are not substantial in their nature, so that an allowance out of the contract price will give to the other party full indemnity.

In such cases the contractor is allowed to recover the contract price less the damages on account of the defect.

In the case at bar, if the plaintiffs desired to invoke this principle the burden was upon them to show that the defendants had not been damnified by their violation of their contract. It was not for the defendants to show that they had been so damnified.

The plaintiffs seek to recover contract price, the defendants answer contract not fulfilled, and prove it—the burden then rested upon the plaintiffs to show that breach was unintentional and that it was not substantial and that defendants were not injured. This the plaintiffs have utterly failed to do.

That the plaintiffs are responsible for the frauds of their zealous foreman and his aids does not seem to need discussion, even though they know nothing of them—as to which •ignorance a doubt might be suggested.

The ruling of the learned court was correct, and the exception should be overruled and judgment entered upon the verdict, with costs.

Bartlett and Lawrence, JJ., concur.


author: Danforth, J.

text:
    William Jarvis, Resp’t, v. Adolphus C. Schaefer, App’lt.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Principal and agent—Real estate broker—Commissions.
    If it be a fact that the legal title to property placed in plaintiff’s hands to be sold, by defendant, is in the wife of the latter, it does not follow that plaintiff could not recover his commissions of defendant for such sale, and although he told plaintiff that his wife was the owner, the question would still be as to whom the plaintiff gave credit.

      2. Same—Broker may serve both sides.
    While it may bé difficult, even for a broker, to serve with equal efficiency two masters, neither of them can complain, nor refuse "compensation, if it was promised, when fully informed that his agent held the same relation to the adverse dealer.
    Appeal from general term, court of common pleas of the city of ¡New York.

      Frank E. Blackwell, for app’lt; Henry Daly, Jr., for resp’t.
   Danforth, J.

The plaintiff sued for commissions earned, as he alleged, upon employment by the defendant to effect a sale or exchange of certain real estate at Red Hook. He recovered judgment. This was affirmed by the general term, and the defendant now appeals, making in this court the following points: First, that" he was not the owner of the property referred to, and so informed the plaintiff, at the same time disclosing the name of the owner for whom he was acting; second,«that the plaintiff was not the procuring cause of the sale or exchange made; third, that the plaintiff was, at the same time, but without the knowledge of the defendant, acting as agent for the other party to the trade; fourth, that one F., also a broker, was employed, and the court erred in excluding (against objection) evidence that he paid F. full commissions.

The defendant moved to dismiss the complaint upon the grounds: “First, that, defendant having stated that his wife owned the property, he was a known agent, and a recovery could not be had against him; second, that the employment of the plaintiff by Mr. Streeter, not being disclosed to the defendant, is a fact which precludes plaintiff’s recovery; third, that the evidence shows that the trade was not consummated by the plaintiff.”

The motion was denied, and the trial judge, in submitting the case to the jury, directed them to inquire which of these brokers was the procuring cause of the sale,—in other words, which of these men brought the sale about; saying: “ There is no doubt of the employment of Jarvis by Schaefer. The question is whether Jarvis brought the sale about. Was he the means by which Streeter and Schaefer came together, and did Mr. Jarvis’ action result in the effecting of the sale?” He also called attention to the defendant’s claim that F. was the efficient cause, and instructed the jury, in substance, that the plaintiff could not recover unless they found that the plaintiff actually produced the purchaser. He was not asked to charge differently, nor to charge upon any other question, and no exception was taken to the charge as made. The verdict answered the question addressed to the jury in the affirmative, and we have only to see whether the trial court erred in refusing to dismiss the complaint.

If it be a fact that the legal title to the property was in the wife of the defendant, it would not follow that the plaintiff could not recover in this action. There is evidence that the defendant represented himself as owner, and as such that he put the property into the plaintiff’s hands to sell or exchange, knowing at the time he did so that the plaintiff was a broker, and that he “expected a commission;” that the defendant at the time responded, “That is all right; that he always paid a commission, and expected to pay it.” The price was fixed by the defendant at $20,000. The usual commissions were proven to be two and one-half per cent, or $500. If the defendant was in fact dealing in behalf of his wife, it does not conclusively appear that he so stated, or that he assumed to act in any other than an individual capacity. But, in any view of the evidence, even his own, and although he told, the plaintiff that Mrs. Schaefer was the owner, the question would still be as to whom the plaintiff gave credit,—to the wife or to the defendant.

In one aspect of the evidence, there was no disclosure of his agency, and prima facie the agreement was his own, and he was bound personally, If there was evidence tending to a different conclusion, it should have been submitted to the jury. The defendant did not request it, but by his own motion left it to the trial judge. In either view, whether the defendant’s agency was disclosed or not, he became personally bound if he undertook to be so, and this might be inferred from the fact that he contracted with the plaintiff in his own name, and without any qualification. Nor can it be said, as matter of law, that the employment of the plaintiff by the other party was not disclosed to the defendant; and while it may be difficult even for a broker to serve with equal efficiency two masters, neither of them can complain, nor refuse compensation, if it was promised, when fully informed that his agent held the same relation to the adverse dealer. Nor is there in such a contract as the present much danger that either one will be prejudiced by the dual character of the broker. The principals themselves agreed upon the terms of sale or exchange, and became indebted to him for procuring an actual buyer or vendor, as the case may be. Sussdorff v. Schmidt, 55 N. Y., 319.

The jury found that the plaintiff brought about the sale; that he was employed by the defendant. . His own testimony is that he was first employed by the defendant, and. afterwards by Streeter; that each was to pay him a commission for negotiating or selling or trading this property,, and he adds, I told them this.” The defendant, although present at the trial, and examined as a witness, does not deny it, nor does he testify that he was ignorant of the plaintiff’s claim that he was acting for Streeter also. The plaintiff’s testimony on this point is to be weighed according to the power of the defendant to contradict it if not true; and his silence, in view of the assertion of the plaintiff, made it impossible for the trial judge to hold, as matter of law, that the true relation of the plaintiff to the other party was not disclosed to the defendant. No fraud, or even concealment, was practiced by the plaintiff, and the case is not one where the same person acted as agent for both parties without their knowledge.

The appellant relies upon the fact that he put property in Georgia with the Red Hook property. This was a circumstance for the jury to consider in determining whether the plaintiff actually produced the purchaser, and that was the proposition which the defendant asked to have the jury pass upon. If it were conceded that the defendant paid full commissions to F., the other broker, it could not impair the plaintiff’s right to compensation for services actually rendered. It was not error, therefore, to exclude evidence of such payment. The plaintiff’s contract was valid, and, as the jury have found, made upon good consideration and fully performed by him. The verdict was rendered upon conflicting evidence, but the exceptions point to no error.

The judgment appealed from should be affirmed.

All concur.


author: Peckham, J.

text:
    The People ex rel. Henry Morganthau, App’lt, v. Artemas S. Cady, Clerk of Arrears, Resp’t.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Taxation—New York City—Laws 1843, chap. 330, § 8—Meaning op word “owner.”
    By section 8, chapter 330, Laws 1843, it is made the duty of the comptroller in selling houses and lots for the non-payment of taxes, " to advertise all the houses and lots, or other lands lying contiguous to each other and belonging to the same owner, in one parcel, unless otherwise requested by such owner.” Held, that this did not mean the technical owner of the title, but as therein used, they mean the person in whose name as owner or occupant the lots are assessed.
    3. Same—Date of certificate.
    The certificate of sale may, perhaps, as matter of fact, be actually made out and delivered some time after the sale, but it is executed and takes effect by virtue of the sale, and relates back to that time, and in contemplation of law is then given, and should be then dated.
    3 Same—“ Last assessed owner.”

      Held, that a notice served in July, 1868, on a person whose name appeared as owner in the assessor’s book for 1867, was served on the “ last assessed owner,” in accordance with the statute.
    4. Same—Affadavit—Residence of person serving notice.
    The affidavit of service read, “ J. P. K., of the city of New York, do solemnly swear,” etc. Held, that this was sufficient to conform to section 33 of the statute, that the person serving the notice must be a resident of New York city.
    5. Same—Service at dwelling—§ 21.

    By section 31 of said act, the notice must be served personally or by leaving it at the dwelling house * * ,* with any person of suitable age. The affidavit stated that the notice was served by leaving the same with a member of the family, etc., No. 68 Fifth avenue. Held, sufficient.
    6. Same.
    Where an affidavit, by its venue, purports to have been taken in the city and county of New York, the presumption is that the person signing himself commissioner of deeds is such in said place.

      Appeal from from an order of the superior court of New York city, general term, affirming an order of special term denying a motion for a peremptory writ of mandamus to compel defendant to accept certain taxes and the interest thereon.

      Alex. B. Johnson, for app’lt; D. J. Dean, for resp’t.
   Peckham, J.

The relator herein asks the court to compel the defendant by mandamus to accept certain moneys, sufficient in amount, as he alleges, to pay the taxes and interest on two certain lots in the city of New York for the year 1860, and to give receipted bills therefor. The defendant is clerk of arrears in the city, and has refused to give such receipt, on the ground, among others, that there are no arrears of taxes against, the premises for the year spoken of, because they have been sold for such arrears, and the sale took place January 20, 1866, and on the nineteenth January, 1869, a lease thereof was granted for 1,000 years for each lot. Several different grounds are stated in relator’s affidavit upon which this application is based, all of which have been held untenable by the special and general terms, and from this adverse determination he has appealed here. The more material grounds will be noticed in their order.

1. It is claimed that the sale was illegal, and conveyed no title to the purchaser, because of the alleged violation of the eighth section of the third article of chapter 230 of- the Laws of 1843, relating to the collection of taxes in the city of New York. It seems that the premises in question were known in 1860 as lots 13 and 14, block 1,272, of the Twelfth ward of the city, and were contiguous lots. Lot 13 was in 1860 assessed to A. Carrigan, and the other lot was assessed to Mrs. Lyons, and the taxes so assessed remained unpaid until January 20, 1866, when each lot was sold for such arrears. The relator alleges that these lots belonged to the same owners (Rose Hannah Gray and Florence Kuberly) from August 1, 1859, to April 4, 1866; that they were contiguous to each other; and that the city comptroller advertised said' lots for sale in separate parcels, without the consent or request of the owner

The section of the statute in question reads as follows : “Section 8. In advertising houses and lots, improved or unimproved lands, to be sold for the non-payment of taxes, it shall be the duty of the comptroller to advertise all the houses and lots or other lands lying contiguous to each other, and belonging to the same owner, in one parcel, unless otherwise requested by such owner.”

We are of the opinion that the words “belonging to the same owner,” in the above section, do not mean simply the technical owner of the title; but, as therein used, they mean the person in whose name as owner or occupant the lots are assessed. The assessment rolls are the only record the comptroller has before him from which to decide who is the owner; and in cases where the land was assessed to the occupant (as in some cases it might be, 1 Rev. St., 389, § 2; Whitney v. Thomas, 23 N. Y., 281, 285), the comptroller would be without any evidence of ownership. It cannot be supposed that under such circumstances the statute contemplated a search by the comptroller through the register’s office to find out whether the lands which were assessed to different occupants, but which were contiguous, were not owned by the same owner, for the purpose of deciding whether to advertise them in one parcel or not. For this purpose the person assessed must be assumed to be the owner.' If contiguous lots were assessed to the same occupants, it would be reasonable to say that the statute contemplated an advertisement of both lots in one parcel; while, if they were assessed to different occupants, it would justify a separate advertisement by the comptroller, even though it should subsequently turn out that the lots belonged to the same owner, unless some proof of ownership should have been given before advertising, and some demand should have been made to advertise in one parcel. This construction gives to the statute a reasonable meaning, one easily capable of being carried out, and with a fair presumption that the object of the provision would be attained. That object, we think, was to prevent • an unnecessary accumulation of costs of advertising where the lots were contiguous, and, being assessed to the same person, one advertisement would answer every purpose. Within this construction, the separate advertisement of these contiguous lots was proper. We do not mean, by putting our decision on this ground, to say that the statute is not merely directory on this point. We leave that question open.

2. Another ground upon which the sale is alleged to be void is set up in the following language: “ Deponent further says that deponent believes that said Cady based his refusal to accept such money on a pretended sale for non-payment of such tax, and deponent alleges such sale, if had, was wholly void, * * * (2) because the comptroller, by his notice to redeem, required the owner to pay such tax, with interest from date of sale, to wit, January 20, 1866, whereas the purchaser did not pay his money upon such sale until the 12th day of February, 1866.” No copy of this notice to redeem is set forth in the moving papers, and its contents appear only as above stated. Under section 1 of article 3 of this chapter the comptroller proceeds to advertise for sale and to sell lands upon which taxes have been unpaid for a certain time. The sale takes place at the time named in the advertisement, unless the taxes are paid in the mean time, and the lands are sold for the lowest term of years for which a person will bid and pay the taxes due thereon. A certificate of sale is to be given describing the lands purchased, stating the term of years for which they were sold, the sum paid, and the time when the purchaser will be entitled to a lease. There can be no doubt, as it seems to us, that the term of years for which the bid is made, commences to run from the time of the bid, which is the day of sale. The time when the purchaser is to be entitled to his lease should also be reckoned from the date of the sale. As these two periods commence running from that date, we think the certificate of sale should also bear the same date. The certificate is simply a written acknowledgment or proof that the sale itself has taken place. It is the sale which is the foundation for all subsequent proceedings, and upon such sale is based the right to convey the title to the purchaser when the time expires which will entitle him to the conveyance for the term he bid at such sale. This formal written certificate may perhaps, as matter of fact, be actually made out and delivered some time after the sale, but it is executed and takes effect by virtue of the sale, and relates back to that time, and in contemplation of law is then given, and should be thus dated.

It is further provided by the second section of that article that, six months before the expiration of two years after the sale, the comptroller shall again advertise that unless the land be redeemed by a certain day it wifi be conveyed to the purchaser. If the person claiming title to the land shall not, within two years from the date of the certificate, pay the proper amount to the comptroller, he loses his land. It is thus seen that the date of the sale and the date of the certificate of sale being properly coincident, there is nothing material in the fact that the sale in this case was on the twentieth of January, while the purchaser did not pay his money until the twelfth of February following. The time of the payment of the purchase-money does not determine the date of the certificate; and, as there is no allegation as to what that date was, it will be presumed here that it was the proper date, viz., the date of the day of sale. We are aware that it has been argued that the certificate of sale should be dated as of the day .when issued, if not actually issued on the day of sale; for it is then, as it is said, that the purchaser pays his money. Otherwise the owner, in redeeming, has to pay interest to the purchaser at the rate of fourteen per cent between the day of sale and the day when the purchaser pays the amount of his bid, while during that time the money has been in the pocket of the purchaser. This may be a possible result in practice if the comptroller does not insist (as he may) upon immediate payment of the amount of his bid by the purchaser. But this interest is imposed chiefly by way of penalty upon the delinquent tax-payer, and the fact that, as practically conducted, the sales by the comptroller may sometimes result in the payment to the purchaser of interest for a short time upon moneys not yet advanced by him, is not of much weight in that view of the law. It is certainly of not enough weight to cause us to vary from a construction of the statute which we think reasonable and proper, where the result of the opposite construction might be to avoid the bar of the statute in all cases where the day of sale and the date of the certificate were different, and the notice to redeem called for payment of interest from the earlier date.

3. The relator claims that the notices which section 20 of the third article of the same statute requires should be served by or in behalf of the purchaser (after he has received his conveyance) upon the person last assessed as owner, were not served on such person, and the fact, as he claims, appears upon the face of the notice. As to lot 13, one notice is directed to the asylum for lunatics as the occupant at that time (July 26, 1868), and another to “A. Oarrigan, last assessed owner of said premises;” and the latter notice, bearing the same date as the other, states that the lot (13) was taxed in that name on the assessor’s book for the year 1867. The same facts, with different names, apply to lot 14. The criticism made is that the assessor’s book for 1868, was at that time (July 26, 1868) the last book, and hence the notice was addressed to one appearing on a former, but not necessarily the last roll, and that, therefore, it did not appear that the notice was to the person last assessed as owner. We have no doubt that in July, 1868, the person assessed in 1867 was the last assessed owner. The assessments against persons and property in blew York city at that time were commenced on the first Monday of September in each year (Laws 1859, chap. 302, § 7), and these assessments were put in books called “ The Annual Record of the Assessed Valuation of Real and Personal Estate,” and these books were open for examination and correction from the second Monday of January until the first day of May in each year, and after that the books were closed to enable assessment-rolls to be made. The rolls are thus taken from these record books, which contain the assessments made since the prior September, and which were concluded by the second Monday of January, and were then open for revision, and hence the assessment-rolls existing in July, 1868, were based upon the assessments made from September, 1867, which were the last assessments then in existence, and the notice in July, 1868, to the person appearing as assessed on the assessor’s book for 1867 must be taken to be a notice to .the then last assessed owner of the premises.

4. It is further claimed that it does not appear that the' person making the affidavit of service of the notice provided for in said section 20 of article 3 was a person residing in the city of New York, as is required by the twenty-third section of the same article. The affidavit has the venue of “city and county of New York,” and continues: “I, Phineas C. Kingsland, of the city of New York, do solemnly swear,” etc. I think here is a fair intendment to be made that the person thus swearing was a resident of the city. The fact that the affidavit of a person residing in the city was made necessary by the statute may be properly considered with reference to the meaning of the expression “of the city of New York ” contained in the affidavit. The fact of residence must exist; but we find nothing in the statute expressly requiring such fact to be stated in the affidavit. So long as it exists, it would seem sufficient, and certainly so when there is no hint that he was not a resident of the city

5. Another ground taken is that the affidavit fails, to state where the service was made; the statute requiring it to be served personally, or by leaving it at the dwelling-house of the occupant and person last assessed as owner, with any person of suitable age, etc. Section 21, same act. The affidavit stated that the notice was served by leaving the same with a member of the family of the person last assessed as owner, at his place of residence, No. 68 Fifth avenue. This is sufficient. The statute does not make it necessary that the city of residence should be stated. Leaving the same at the dwelling-house of the occupant is the requirement of the statute when the service is not made personally, and an affidavit showing the service upon a member of the occupant’s family at his place of residence, naming the street, is surely sufficient. If the requirements were that the service was to be made in New York, we think the inference that the service was there made is a fair one, considering that the venue of the affidavit was in that city, and that the taxed premises were there situate, and that service was to be made on the owner last assessed and upon the occupant.

6. It is also claimed that the affidavit was not sworn to before any officer authorized to administer oaths. It was sworn to before a commissioner of deeds of New York city. The Revised Statutes provided that an oath or affidavit, when required in any cause, matter or proceeding, might be taken, among others, before a commissioner of deeds, and when certified by him to have been taken before him might be read in any court, or before any officer, judicial, administrative, or executive, before whom any such cause, matter or proceeding might be pending. 2 Eev. Stat., 284, § 49. This gave ample authority to the commissioner. The affidavit purports by its venue to have been taken in the city and county of New York, and it is signed by a person as commissioner of deeds. Upon an affidavit with such a venue, the presumption is that the person signing himself commissioner of deeds is such within the place stated as the venue.

We have thus gone over the principal grounds relied on in the brief submitted by the counsel for the appellant. We have also examined all the others. We think there was no error in the decision of the case, and the order of the general term of the superior court of the city of New York is therefore affirmed, with costs.

All concur.


text:
    John D. McIntyre et al., App’lts, v. The McIntyre Coal Company, Resp’t.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Lease op mining lands—Construction op—Royalties as rent.
    A lease contained a grant and demise of coal lands to the lessee, in which he covenanted to mine and carry away not less than 75,000 tons of coal for five years, and not less than 100,000 tons of coal for the next fifteen years, and to pay a royalty of thirty cents per ton, and, further, that “ In case the quantity of coal mined and taken away in any year of the said term shall fall short of the proper minimum quantity above named, will pay as rent for such year a sum of money equal to the amount he would have been required to pay under this covenant, if he had mined the full proper minimum quantity; provided, that if in any year the party of the second part shall mine and carry away more than the proper minimum quantity for such year, such excess, or so much thereof as may be necessary, may be set off against the deficiency of any other year or years, within the same division of the term hereby demised. So much of said excess as is applied to make up such deficiency, having been paid for, shall not be paid for again.” Held, that this permitted mining in excess of the amount required in any year, and an application of that excess to the royalties otherwise unearned, but still due in subsequent years when there happened to be a deficiency in production.
    2. Same.
    An agreement to carry on the mining operations “in a safe, skillful and workmanlike manner,” should not be construed to mean that the lessee will work the mine continuously.
    3. Same.
    The lessee further stipulated in case the quantity mined in any year fell short of the minimum quantity named to pay a sum of money equal to royalty on such minimum quantity; Held, that this showed an intention to provide for a certain amount of rent, and when that was paid, no matter when, the obligation of the lessee ceased. Ruger, C. J., and Rapallo, J., dissentij \

      Appeal from judgment of supreme court, general term, third department, affirming judgment of special term, dismissing complaint.

      John E. Parsons and Geo. L. Steelman, for app’lts; Edwin Countryman, for resp’t.

       Affirming 40 Hun, 638, mem.

   Danforth, J.

This case has been twice argued; the second time at the request of the court, in order that a conjecture, not presented by counsel, but prompted by an examination of the lease, and creating some doubt as to the rights of the parties, might be called to their attention. The appellants have, however, given the suggestion very little support. They have, indeed, failed to show that, if adopted, it would express the intention of the parties, and we find nothing in the points of the plaintiffs which indicates error in the conclusion reached by the trial judge as to the true construction of the covenant for alleged breach of which the action was brought. That was the only question before him, and is the one to which the appeal is directed.

It appears that on the first day of 'October, 1869, the plaintiffs demised to Jervis Langdon certain coal lands for the term of twenty years from July 1, 1870; that the defendant acquired his rights, and took his place. The complaint states that on the first of January, 1885, $7,500 rent for the quarter ending on that day became due, and this action was brought for its recovery. The answer admits the demise, but alleges payment according to the covenant of the lessee. So far as now material, the lease contains a grant and demise of the premises to the lessee, in consideration of which, as therein expressed, he convenants and agrees that he will mine and carry away from the coal lands not less than 75,000 tons of coal per annum for the first five years of the term, beginning on the first day of July, 1870, and will mine and carry away not less than 100,000 tons of coal per annum for the next fifteen years, and will pay rent or royalty of thirty cents per ton for every ton of coal mined and carried away during the full term; the payment of the rent or royalty to be made quarter-yearly on the first days of October, January, April, and July, in each year, from the commencement of the term.” Then follow these words : “In case the quantity of coal mined and taken away in any year of the said term shall fall short of the proper minimum quantity above named, the lessee will pay as rent for such year a sum of money equal to the amount he would have been required to pay under this covenant if he had mined the full proper minimum quantity; provided, that if, in any year, the party of the second part shall mine and carry away more than the proper minimum quantity for such year, :such excess, or so much thereof as may be necessary, may be set off against the deficiency of any other year or years within the same division of the term hereby demised. So much of said excess as is applied to make up such deficiency, having been paid for, shall not be paid for again.”

The defendant alleges that during the first period or division of the term, viz., five years from July 1, 1870, to July 1, 1875, it took away from the demised premises an excess of 322,058 tons above the 375,000 tons required by the lease, and paid the full royalty; that thus far during the second period it has mined 220,679 tons over the full amount required for the whole of the second period or division of fifteen years mentioned in the lease, and paid the full royalties thereon, and has thus paid all the rents and royalties for the whole remaining period of the lease.

Upon trial before the court the facts alleged by the defendant were in substance found to be true, and the learned trial judge held that, under the terms of the lease, the defendant has the right to set apart from the excess of coal mined during any one year of said second period of said lease sufficient to make good any deficiency in any subsequent year of said second period, and, having elected so to do, has the right to set apart from the excess of the first year of said second period, to wit, the year ending July 1, 1876, the amount of 25,000 tons, to make good a like deficiency in the amount mined during the period from October 1, 1884, to January 1, 1885, the period to recover rent for which this action is brought,” and dismissed the complaint. It was his opinion that the provision for an annual mining of “not less than 100,000 tons of coal per annum” for fifteen years, taken separately, was not satisfied unless that amount was annually produced; but he held that the other provision permitted mining in excess of that amount in any year, and an application of that excess to the royalties otherwise unearned, but still due in subsequent years when there happened to be a deficiency in production. It is evident that under this construction the lessee might go on and mine during the first year of each division the whole amount required for that period. On the other hand, the claim is made in behalf of the lessors—and this is their principal contention—that the mining must be continuous during each year of each division of the term; and, if there should be an excess, it could be applied upon the deficiency occurring in some other preceding year; in other words, that the lessee, whether it mines or not, must pay in each year thirty cents per ton on at least 100,000 tons, or $30,000 annually; “but if (as was suggested in the opinion which led to the reargument) it has to pay for a,ny deficiency as rent, the amounts so paid are to be regarded as royalties paid, and are to be set off against royalties on any subsequent excess over the 100,000 tons, so that the lessee shall not be compelled to pay again a royalty which has once been paid.” Again, it is said in support of this view: “ When it has paid for a deficiency, "it becomes entitled to take out an equal amount of excess without paying;” in other words, as the case is put in argument, the deficiency must have occurred before the excess is produced. It is argued that the provision means a past deficiency and a future excess. I cannot reach that conclusion, and am constrained to agree with the defendant’s view.

First. It accords with the literal reading of the provision. If in any year of the terms you carry away more than the 100.000 tons, such excess, or so much “of such excess” as may be necessary, may be set off against the deficiency of any other year or years within the same division. These permissive words, “if, in any year of the term,” of course must apply as well to the first year of each division as to the other years, or as to the last year. It is conceivable that there might be produced 150,000 tons, an excess of 50.000 tons, in the first year of the second term, and in the second year of that period there might be produced only 50.000 tons, leaving a deficiency in the second year of 50.000 tons. By the terms of the lease the excess of the first year must be paid for at the time the royalties for the minimum of 100,000 tons are paid: that is, the whole quantity mined, 150,000 tons, must be paid for within the year. During the second year, notwithstanding the deficiency, the royalties for 100,000 tons must be paid, as, according to the appellant’s' contention, the excess of the first year cannot be set off against the deficiency of the second year. Yet the excess has been paid for, and, as the condition runs, shall not be paid for again.

Second. The parties having restricted the general language of “any year,” by applying to it any other year or years “within the same division,” appear to have had the question of limitation in mind, and no further restriction should be implied. Yet the appellant’s contention would reduce the years of grace in one division to four years, and in the other to nine years, and make it read as if it said: “ If, in any year except the first year of each division, the lessee shall mine and carry away an excess,” then, etc.

Third. The object of the provision was to provide for anticipated or possible “excess.” That is the dominant word. It must be paid for, because the covenant of payment requires each ton mined and carried away, no matter how great the production, to be paid for quarterly from the commencement of the term. But it was also in the minds of the parties that a deficiency might occur. This might arise from various causes, voluntary and involuntary, and' so that was provided for. The lessee may apply the excess, say the parties, not only upon the deficiency of any other— that is, any other “ one year,”—but of any other “ years,” no matter how many, so they all come within one division..

Again, I think the contention of the appellant requires us to change the words used by the parties in another respect. The lessee is to pay “the rent or royalty of thirty cents per ton for every ton of coal mined and carried away; but, in case the quantity mined and carrried away “ in any year of the term shall fall short of the proper minimum quantity, the lessee shall”—do what? Why, “pay to the lessor a sum of money equal to the amount he would have been required to pay if he had mined the full proper minimum quantity.” Then comes the proviso as to the excess, and then the words: “ So much of said excess having been paid for, shall not be paid for again.” The appellant reads it as if it said, “the previous deficiency” which has been paid for “ in pursuance of the covenant to pay for deficiencies.” I do not see how this can be allowable when the express language of the covenant is: “So much of said excess having been paid for, shall not be paid for again.”

It should be observed that nowhere in the lease do the parties provide for rent payable as such in money and at a fixed sum, except upon default of the lessee in mining and taking away the quantity of coal provided for, and then the sum to be paid is measured by the tax or royalty which would, except for that default, have been paid to the lessor upon the produce of the mine. This is opposed to the con: trolling idea of the appellant, which seems to be that the lease imposed an obligation upon the lessee to produce continually in working the mine, and this is presented in various forms. Thus it is said by their counsel: (1) “ that the lease nowhere provides that the lessee may in any year altogether cease to mine;” (2) that the lease provided “ that the lessee shall and will prosecute and carry on the said mining operations in a skillful and workmanlike manner;” (3) “that the lessee binds himself absolutely to mine at least 100,000 tons during each of the fifteen years.”

The learned counsel nowhere finds in the lease an express covenant to work the mine continuously, but seeks from these provisions to imply one. I can find no authority for such implication, nor power on the part of the court to interpolate such a covenant into the contract which the parties deliberately made, and in regard to which no omission or mistake is pretended. Certain things the lessee must do. Certain other_things the lessee must not do. The lease contains injunctions and prohibitions; agreements to do and agreements not to do. But the lessee is neither required to work the mine continuously, nor does he agree to do so. Such an obligation cannot, in support of an action like this, be interred from the agreement to carry on the mining operations “in a safe, skillful and workmanlike manner;” for the lease provides the penalty for omitting to do so, viz., accountability to the lessors for any loss or damage which they may sustain in these respects, and declares that it shall be ascertained by arbitration or action for damages or termination of the lease.

As to the other provisions referred to, the deduction sought to be drawn from them is repelled by an express provision for what is called in the English cases (Jegon v. Vivian, L. R., 6 Ch., 742; Wheatley v. Coal Co., L. R., 9 Eq., 538) a dead or sleeping rent; that is, a rent which must be paid whether the mine is worked or not. This is found in the clause already quoted, but which may be repeated, in this connection, to show that the parties contemplated, not a continuous working of the mine, but a possible discontinuous working of it, viz.: “In case the quantity of coal mined and taken away by the party of the second part, in any year of the said term, shall fall short of the proper minimum quantity above named, the party of the second part shall and will pay to the parties of the first part, their heirs, executors, administrators, or assigns, as rent for such year, a sum of money equal to the amount he would have been required to pay under this covenant if he had mined the full minimum quantity.” Let us suppose that, at the very moment after the execution of the lease, the lessee had seen fit to let the land lie idle, preferring to pay the lessor in money a sum equal to the aggregate amount he would have been required to pay if he had for each one of the twenty years mined the full minimum quantity of coal, can it be thought that at any time thereafter he could be called upon for royalty or rent ? Certainly not. The lease secures payment by royalty as rent, and then, in default of royalty measured by production, stipulates for rent in money. The whole intention of the parties was to provide for a certain amount of rent; and when that is paid, no matter when it is paid, the obligation of the lessee ceases. The remaining sentence of the same provision gives equal latitude and relief to the lessee when he has paid so much royalty upon coal mined as will cover the rent called for, whether the royalty is paid in one year, or in different years, having regard only to that division into periods which the parties themselves arranged for. This construction works no injustice to the lessors. They have received the rent, which was made payable whether the coal was mined or not. It has been paid in one of the two ways bargained for. If more was expected, other provisions should have been inserted in the lease. So far as that instrument discloses the intention of the parties, it has been fully carried out, and the plaintiffs properly held to have no cause of action. A different result would lead to a double payment.

The complaint, therefore, was necessarily dismissed, and the judgment appealed from should be affirmed.

Andrews, Earl and Finch, JJ., concur; Ruger, Ch. J., and Rapallo, J., dissent; Reckham, J., takes no part.


author: Roger, C. J.

text:
    Thomas J. Chamberlain et al., Ex’rs of Benj. Chamberlain, deceased, App’lts, v. Hascal L. Taylor et al., Resp’ts.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Ejectment—When executors mat maintain—General devise op land IN TRUST TO SELL VESTS NO TITLE.
    Plaintiffs were directed to divide the residue of C.’s estate into two parts, each of said parts “to be paid to” certain corporations, and by another clause, the testator gave his whole estate, not specially devised, to his executors “in trust for the payment of the bequests and legacies herein before specified and directed to be paid; and for the purpose of executing such trust, I hereby authorize and empower them to sell and convert all my real and personal estate into cash, and for that purpose authorize them to execute and deliver the necessary conveyances, assignments and releases of the same, and to sell such estate, or any part thereof, at such time or times, and upon such terms as to them shall seem proper.” Held, that this did not imply an intent by the testator to vest the title off the real estate in his executors, since they were not authorized to receive the rents and profits, and that they could not maintain an action of ejectment against the defendants having possession of property, which plaintiffs had sold under such power. I
    2. Same —2 R S.. chap. 1, title 2, art. 2, § 55, surd. 2 —Express. TRUST.

      Held, that this was not an express trust under 2 R S., chapter 1, title 2, article 2, section 55, allowing the creation of a trust “ to sell, mortgage'or lease land for the benefit of legatees, or to satisfy charges on it,” as a legal performance of the duties .enjoined could have been effected by a distribution in specie.

    3. Same—Power in trust.
    Although the power conferred might be exercised as a power in trust, yet in that event the title would be in the heirs at law, subject to the execution of the power.
    4. Same—Laws 1860, chap. 36—Stare decisis.
    Furthermore, it was held (43 FT. Y., 425) that the devises were invalid, to the extent of one-lialf of the residuary estate, as being in conflict with chapter 36, Laws 1860, and a necessary result of this determination, under the doctrine of stare decisis, is to foreclose all parties from the right or privilege of reopening or discussing the questions therein determined.
    5. Same.
    As the real estate embraced but a small portion of the property, and the personal estate was not more than sufficient to satisfy the valid legacies, it was the duty of the executors to satisfy the legacies from the personal estate, and nothing existed to prevent the descent of the real estate to the heirs.
    6. Same—Equitable conversion.
    Equity will never presume a conversion, unless it is demanded to accomplish the lawful purposes expressed in the will of the testator.
    7. Same—Effect of deed from executors.
    The deed of plaintiffs of this property, being void under the statute, has no affirmative effect in supporting the cause of action, and plaintiffs stand in this action as though the exercise of the power of sale under the will had never been attempted by them.
    ' F. D. Northrup and William F. Cogswell, for app’lts; John G. Hall and JD. H. Bolles, for resp’ts.
   Roger, C. J.

This is an action of ejectment uO recover possession of 156 acres of land situate in the county of Cattaraugus, brought by the plaintiffs as executors of the will of Benjamin Chamberlain. The plaintiffs claim that Benjamin Chamberlain died seized of an estate in fee-simple in such land, in February, 1868, and that, therefore, a power of sale, as well as the title thereto, became vested in them by virtue of the provisions of his will. They also claim that, having executed the power of sale by conveying the lands to one Freeman in 1880, for a valuable consideration, and such deed being void by_ reason of an adverse possession by the defendants at the time of its execution, this action is brought, under the statute, for his benefit, to recover such lands.

It is-an elementary rule in ejectment that the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of his, adversary’s; and, this being so, it will be unnecessary to consider the defenses pleaded in the answer, unless we come to the conclusion that the plaintiffs derived title to the premises under the will of the testator. Upon the trial the court directed a vérdict for the defendants, holding that the plaintiffs had shown no title in the premises, and the general term, on appeal, affirmed such judgment. The question presented is determined by the provisions of the will, and such additional force as may be given to the plaintiffs’ claim by reason of the conveyance to Freeman, and the provisions of the statute authorizing an action for his benefit in the name of his grantors.

The provisions of the will are somewhat voluminous, but, so far as they bear upon the questions under discussion, are substantially comprised in its eighteenth and twenty-second subdivisions, which read as follows: “ (18) I hereby further will and direct that all my estate not otherwise hereinbefore disposed of be divided into two equal parts—one of said parts to be paid to the Centennary Fund Society of the Erie Annual Conference of the Methodist Episcopal Church, to be by said corporation invested, and kept permanently invested, and the interest and income thereof used and expended by said corporation for the benefit of Allegany College at Meadville, Pennsylvania, in such manner and for such specific purposes as said corporation shall direct; and that the other of said parts be paid by my executors to the trustees of the Chamberlain Institute, to be by said trustees permanently invested in bonds and mortgages upon productive farming lands in this state, such mortgages to be first liens, the said principal to be kept permanently invested, and the interest and income thereof to be received by said trustees, and by them used in the payment of the salaries of tutors and professors employed to teach in said institute, and in purchasing books and apparatus for the library of said institute,” etc. “(22) I hereby further nominate and appoint as executors of this my last will and testament, Thomas J. Chamberlain, Amos Dow, Charles P. Adams and Alonzo Kent. And I give, bequeath, and devise all my real and personal estate not hereinbefore specially devised and bequeathed, to my said executors, in trust for the payment of the bequests and legacies hereinbefore specified and directed to be paid; and, for the purpose of executing such trust, I hereby authorize and empower them to sell and convert all my real and personal estate into cash, and for that purpose authorize them to execute deliver the necessary conveyances, assignments and releases of the same, and to sell such estate, or any part thereof, at such time or times, and upon such terms, as to them shall seem

It is, of course, well settled that a general devise of lands in trust to executors to sell and convey them vests no title in the trustees. Manice v. Manice, 43 N. Y., 304. It will be observed that the testator has not, by any express language, attempted to vest the title of his real estate in his executors; and that is not claimed by the appellants; but they seek to imply his intent to do so from a consideration of the various provisions of the will, and mainly from that authorizing them to convert his real estate into cash. An unanswerable objection to such an implication seems to us to arise from the express provisions of the statute relating to uses and trusts, which practically forbids it, unless, in addition to the creation of a valid trust, the power to take the rents and profits is also given to the executors. It is not claimed that the devise contained in such clause is brought within the description of any of the express trusts authorized by statute, unless it may be that permitted by subdivision 2, section 55, art. 2, tit. 2, chap. 1, pt. 2, Rev. St., allowing the creation of a trust “to sell, mortgage or lease land for the benefit of legatees, or to satisfy charges on it.” We are, however, of the opinion, for several reasons hereafter stated, that such a trust was not thereby created. The will directs the executors to divide the testator’s whole residuary estate into two parts, one of which is directed to be paid to the Centennary Fund Society, and the other to the trustees of the Chamberlain Institute, and for the purpose of making such division they are authorized and empowered to sell and convert all of his real and personal estate into cash. Undoubtedly, a strong implication arises, from the use of the word “paid” in directing the satisfaction of the legacies, that it was intended by the testator that the real estate should be converted into money, and thus handed over to the legatees; but there is no imperative direction given to sell the lands; neither do the purposes of the will require such a sale; and a legal performance of the duties enjoined upon the executors could have been effected by a distribution of the property in specie to the legatees. The distribution or division of the residuary estate between the named legatees was the main object contemplated by the testator, and not its sale; and, although he might have intended a conversion of the real estate, it does not affect the transfer of the title, unless the intention to do so is manifested in the mode and language required by the statute. That expressly provides, in the case of such a trust, that no estate in the lands vests in the trustees unless they are also authorized to receive the rents and profits of the same. Id., section 56.

Although the provisions of the will are inoperative to create a valid express trust under the statute, yet the power therein conferred might still be exercised as a power in trust; but in that event it is also expressly provided that the title shall descend to the heirs at law, subject to the execution of the power. Sections 56, 58, 59, Rev. St.; Cooke v. Platt, 98 N. Y., 35; Konavalinka v. Schlegel, 104 id., —; Downing v. Marshall, 23 id., 366. It was held in Cooke v. Platt (98 N. Y., 35) that a merely discretionary power of sale in the executors for purposes of distribution, even though connected with the right to receive the rents and profits, did not vest them with title to real estate. Much less would this be so where no power to take rents and profits was given by the will, or inferable from any of the purposes therein contemplated. See also White v. Howard, 46 N. Y., 162.

The cases of Lent v. Howard (89 N. Y., 175) and Donovan v. Van De Mark (78 id., 244), cited by the appellants, are not in conflict with the views expressed, but rather tend to support them. In the first case, it was held that the will did not vest the title in the executors, but it descended to the heirs; but, under the special provisions of the will, it was decided that the right to the rents and profits of the real estate was separable from the right to the possession, and those received by the executors intermediate the death of the testator and the execution of the power of sale were intended to be given to and belonged to the executors for the purposes of the will. In Donovan v. Van De Mark it was held that the will devised the real estate to the executor in trust, with power, either directly or inferentially, to receive the rents and profits, and apply them accordingly to his judgment, and that, therefore, a valid trust was created, and a legal title vested in the trustee. In that case, the right to take the rents and profits was by the will clearly intended to be given to the executor, and in that respect differs from the case at bar.

The argument that title in the executor was to be implied from the intent expressed in sections 18 and 22 to give to them, is effectually refuted by reason of the adjudication of this court in Chamberlain v. Chamberlain (43 N. Y., 424), holding that said devises were invalid, to the extent of one-half of the residuary estate, as being in conflict with the provisions of the statute forbidding testamentary bequests to religious and other charitable societies or corporations, in certain cases, in excess of one-half of the testator’s property. Chapter 360, Laws 1860.

The case shows that the real estate of the testator embraced but a small portion of his property, and that the personal estate was much more than sufficient to satisfy all of the valid legacies. It was, therefore, the duty of the executors to satisfy such legacies from the personal estate; and resort to the real estate for such purpose could be had only when they were expressly charged upon it. An intent to satisfy these devises by a sale of the real estate cannot, therefore, be drawn from the provisions of this will. It is clear that there has been no valid devise of the land, either to the executors or to any other persons, and nothing to prevent its regular descent to the legal heirs of the testator. It is a settled principle of law that the legal rights of the heir or distributee to the property of deceased persons cannot be defeated except by a valid devise of such property in other persons. Haxtun v. Corse, 2 Barb. Ch., 521; Jackson v. Schauber, 7 Cow., 195; Post v. Hover, 33 N. Y., 598; White v. Howard, 46 id., 165; Hawley v. James, 16 Wend., 61. It was said by the chancellor in Haxtun v. Corse (2 Barb. Ch., 521), that it was not sufficient “ to deprive an heir-at-law or a distributee of what comes to him by operation of law, as property not effectually disposed of by will, that the testator should have signified his intention by his will that his heir or distributee should not inherit any part of his estate; but to deprive an heir or distributee of his share of the property which the law gives him in case of intestacy, the testator must make a valid and effectual disposition thereof to some other person.” It is therefore quite plain that the executors did not take title to the lands in question under the will, unless such claim can be supported upon some other theory than the one discussed.

It is, however, urged that the authority given the executors to sell and convey the real estate for the purposes of the will worked an equitable conversion, and so changed its character as to take it out of the operation of the rules pro - vided by statute for the descent of real estate. As we have seen, under the construction given to this will, there was no necessity, in satisfying its purposes, that there should be a conversion, and equity will never presume a conversion unless it is demanded to accomplish the lawful purposes expressed in the will by the testator.

Judge Allen said in 43 N. Y.: “If the residuary bequests are valid, there was an equitable conversion of the whole estate into personalty.” But he then proceeded to show that they were valid only to the extent of one-half the value of the property; and it follows, as a corollary from such conclusion, that an equitable conversion had not taken place. This question came under consideration in White v. Howard (46 N. Y., 165), where Grrover, J., said: “To constitute conversion of real estate into personal in the absence of an actual sale, it must be made the duty of, and obligatory upon, the parties to sell in any event. Such conversion rests upon the principle that equity considers that as done which ought to have been done. A mere discretionary power of selling produces no such result.” It was also held in that case that, so far as the will made no valid disposition of the real estate, it vested in the heirs.

While, in the determination of the claim of heirs, devisees, and legatees arising under a will, the law will consider a conversion of real into personal property to have taken place for certain purposes in special cases, it never does so unless there has been a valid devise of the property in dispute, in some form, to a specified beneficiary, and the purposes of the will require it to be done. It was said by Judge Earl in Wilder v. Ranney (95 N. Y., 12), that “there may have been a conversion of this real estate into personalty for many purposes, but not for all purposes. It physically remained real estate, taxable as such, controllable as such, and it could only be conveyed as such; and the rules of law generally applicable to real estate remained applicable to this.” In that case it was held that an equitable conversion of the real estate did not authorize its sale and conveyance by one executor without the co-operation of his co-executor.

The decision of this case might also, we think, have been rested altogether upon the former determination of this court in Chamberlain v. Chamberlain (43 N. Y., 425), which rendered the questions therein determined stare decisis. The validity of the trust attempted to be created by the provisions in question having there come under consideration, it was held that in so far as the testator attempted, by the residuary clause, to give to the institutions. therein named more than one-half of the residuary estate, his effort was ineffectual, and that such portion of his estate as was not well disposed of by will descended to the testator’s heirs at law and next of kin. Under this decision, and in accordance with the remittitur transmitted to it, judgment was, on the third of October, 1871, entered in the supreme court, in the clerk’s office of Cattaraugus county, by which it was determined “that the real estate of the said Benjamin Chamberlain which he held or owned at the time of his decease descended to his heirs at law, subject to the execution of such of the valid and effectual provisions of said last will and testament as relate to or affect the same,” and exempt, as aforesaid, from any claim or right of dower on the part of the said Lucy Chamberlain; and that in case, after the payment of the debts of the testator, and the execution of the valid and effectual provisions of said last will and testament, there shall remain any surplus from the personal estate of said testator, such surplus shall, and is hereby declared and held to belong to, and shall be distributed and divided between and among, the next of kin of said testator, as their rights shall appear, in the manner provided by law in cases of intestacy. The action in which this judgment was rendered, was brought by one Colvin J. Chamberlain, in behalf of himself and the other heirs at law and next of kin of Benjamin Chamberlain, against the plaintiffs herein, the executors of the said Benjamin Chamberlain, and the principal legatees under such will, to obtain a construction of its provisions. A necessary result of this determination, under the doctrine of stare decisis, is to foreclose all parties from the right or privilege of reopening or discussing again the questions therein determined.

It was said by Denio, C. J., in Towle v. Forney (14 N. Y., 425), that “the cases, however, are extremely rare in which the determination of the highest appellate court can be properly departed from when the same legal question arises before a court of the same government. If it shall be thought that an erroneous rule has been established by the adjudication relied on as a precedent, it is better that it should be changed by the legislature by an act which cannot retrospect than that the courts should overturn what they have themselves established, and thus disappoint all who have acted upon the rule which had been considered settled. If this is so where an abstract rule of law determined in a prior case is sought to be applied to new facts, the reason is stronger when, as in this case, a series of particular acts has been passed upon and held to produce a given legal result, and the same identical facts are again before the court between other parties. In such a case, there being no pretense of collusion, and no reason to impute carelessness or inattention to the judges, the determination should be considered final and conclusive upon all persons in interest, or who may become interested in the question, as well as upon the parties to the particular action.” Chase v. Chase, 95 N. Y., 373.

This application of this doctrine to the case in hand seems particularly appropriate, inasmuch as a large estate has been administered by the present plaintiffs in accordance with the principles declared in the former decision; and the entire known property of the testator converted and distributed among the heirs at law, next of kin, and legatees, by a judicial settlement before the surrogate, acquiesced in by all parties interested. As early as 1875 a large sum derived from the residuary estate had been equally distributed by judicial proceedings,between the residuary legatees and the next of kin, and said legatees had executed and delivered to the plaintiffs proper vouchers, acknowledging full satisfaction of their legacies.

But one question remains to be discussed, and that relates to the effect which the deed from the executors to Freeman has upon the action. It is clear that such a deed, being void under the statute, could have no affirmative effect in supporting the cause of action. While the statute in such a case authorizes the grantee in the deed to maintain an action, in the name of his grantor, to recover possession of the lands described, from the occupant thereof, it is obvious that such deed adds nothing to the original right of the grantors. Section 1501, Code of Civil Procedure. The intent of the statute was to enable the grantee to avail himself of a title which overreached the right of the adverse possessor, and barred such possessor from making the objection that the plaintiff in the action had parted with his title. Such an action can be maintained independent of the consent of the grantor, and is supposed to be conducted by the grantee alone for his own benefit; but it must necessarily be sustained, if sustainable at all, upon the validity of the title originally existing in his grantor. It is brought in his name,'and upon the theory of an original right in him to the possession of the property. But it has been seen that the plaintiff never acquired any title or right to the possession o£ the disputed premises. The title to the premises originally existing in their testator passed, at the time of his death, to his heirs; and from that time they alone had a right to the property, and the exclusive right to maintain an action for its possession. The power of sale given by the will to the executors could be made effectual only by its valid exercise; and this, it is clear, has never been effected. They stand, therefore as plaintiffs in this case, precisely as though its exercise had never been attempted, and they were asserting only the rights in the property which the will gave them. As we have befoi’e shown, they did not take the title by the will, and they have shown no other right to recover in this case.

The judgment should be affirmed.

All concur.


author: Huger, 0. J.

text:
    Chamberlain and others v. Taylor and others.

      (Court of Appeals,

      Filed April 19, 1887.)

      E. D. Northrup and William F. Cogswell, for app’lts; John 6r. Hall and D. H. Bolles. for resp’ts.
   Huger, 0. J.

This case differs from the proceeding case of Chamberlain v. Taylor only in respect to the execution of the power of sale contained in the will of Benjamin Chamberlain. Ho proof was given in this case of any attempt to execute such power of sale, and the right of the plaintiffs to recover was rested wholly upon the right in the real estate conferred upon them by the will. As we have seen in the preceding case, the title did not pass to them, and the judgment must therefore be affirmed.

All concur.


author: Raparlo, J.

text:
    Clarence T. Sanford, Resp’t, v. Louisa A. Pollock, App’lt.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Husband and wife.
    The statement by the husband that he has a light to sign for his wife, and the request by him that the receipt for the half year’s rent, paid at the time of the letting, be made out in her name, is no evidence which would have authorized the jury to find that she hired the premises, or gave authority to her husband so to do.
    2. Same—Residence of wife on premises.
    The fact that defendant subsequently resided on the premises with her husband, without proof that she knew they were hired in her name, was no evidence of her husband’s authority, nor did it make her liable.

      Augustus H. Vanderpoel, for app’lt; P. H. Vernon, for resp’t.

       Reversing 34 Hun, 533, mem.

   Raparlo, J.

We think that the motion for a nonsuit should have been granted. There was no evidence in the case which would have authorized the jury to find that the ' premises were hired by the defendant, or by her husband in her name, by her authority. It is true that the plaintiff, on his direct examination, testified that he rented the premises to the defendant, and that she occupied them; but by his cross-examination it appears that the whole matter was negotiated by her husband; that she was not present at the time of the making of the contract of letting, and that the only foundation for his statement that the letting was to the defendant, was that her husband, William J. Pollock, requested the receipt for the half year’s rent, paid at the time of the letting, be made out in the name of the defendant; that this receipt contained the terms of the letting; and that William J. Pollock signed at the foot of it: “Accepted. L. A. Pollock, per W. J. Pollock;” and stated that he had a right to sign for his wife. This statement was no evidence of his authority which could bind her, and there was no other evidence in the case of her husband’s authority to hire the premises in her name. The fact that Mrs. Pollock subsequently resided on the premises with her husband, without proof of knowledge on her part that they had been hired in her name, was no evidence of her husband’s authority, nor did it render her liable in an action for use and occupation. Where a married woman resides with her husband in a house which they occupy as a home, she does not thereby render herself liable for the rent of the house, or the value of the use and occupation.

The evidence introduced after the denial of the motion for a nonsuit did not help" the plaintiff’s case. The defendant positively denied that she ever authorized her husband to hire the premises in her name, or had any knowledge that he had done so, until a claim was made upon her for the rent, long after the occupation had terminated; and her husband confirmed her statement. There was no evidence to the contrary, other than the plaintiff’s statement on his direct examination that Pollock said he had a right to sign for his wife.

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

All concur.


text:
    Ernest Ludwig, Resp’t, v. Louis C. Gillespie, App’lt.

      (Court of Appeals,

      Filed April 19, 1887.)

    Principal and agent—Undisclosed principal—Agent mat sue for price.
    One Clarke, a broker, negotiated a contract of sale with defendant in writing, as follows: “ New York, April 25, 1882, sold for - account of E. Ludwig, agent, to Mr. L. C. Gillespie, 4,000 cases Syrian bitumen,” etc. A time for delivery and payment was specified. Ludwig was, in fact, the agent of Arles Dufour & Co., of France, but their name was not disclosed. Held, that under the circumstances, either the agent or principal could sue for price, and that a recovery by plaintiff and payment of the judgment would be a complete protection to the defendant against any claim of the principal arising upon the contract
    Appeal from judgment of general term, superior court of the-city of New York, affirming judgment for plaintiff.

      Wm. Hildreth Field, for app’lt; M. W. Divine, for resp’t.
   Danforth, J.

The action was to recover $22,251.60 as the price of certain bitumen theretofore sold and delivered by the plaintiff to the defendant. Besides a general denial, the answer set up that the bitumen was sold and delivered by the plaintiff, not on his own account, “but as known agent for the firm of Arles, Dufour & Co., his disclosed principals, under a special contract in writing, and without authority to receive the proceeds of such sales;” and upon this defense the defendant, upon trial of the issues before a referee, asked a dismissal of the complaint. His request was denied, and judgment went against him, both upon the report of the referee and at the general term.

. The principal point made in his behalf upon this appeal is that the action was improperly brought by the plaintiff in his own name. It appeared that the contract was negotiated by one Clarke, a broker, who in that character made and signed a writing which, so far as is material, was in these words: “New York, April 25, 1882. Sold for account of Mr. E. Ludwig, agent, to Mr. L. C. Gillespie, four thousand (4,000) cases Syrian bitumen,” etc. A time for delivery was specified, and the price declared “payable thirty days from each delivery. ” This contract was assented to by both parties, and the referee finds that “there was no proof that the name of Arles,' -Dufour & Co. was disclosed or mentioned as the principal of the plaintiff in the negotiations for the sale, nor at any time before this contract had been executed and delivered;” but he also finds that, at the time of making it, the “plaintiff was in fact the agent of Arles, Dufour & Co. of Marseilles, France, for the sale of imported goods,” and that the bitumen was sold and delivered by him, not on his own account, but for and on account of Arles, Dufour & Co., and as their agent.

The evidence sustains these findings, and the case is thus brought within the well-established rule of law, that when a contract not under seal is made with an agent in his own name, for an undisclosed principal, whether he describes himself to be an agent or not, either the agent or principal may sue upon it. Considerant v. Brisbane, 22 N. Y., 389; Schaefer v. Henkel, 75 id., 378. The defendant has received the thing bargained for, and a recovery by the plaintiff and payment of the judgment will be a complete protection to the defendant against any claim of the principal arising upon the contract.

The other questions presented by the appellant relate to rulings by the referee upon offers of evidence, and were properly held by the general term to be without merit.

The judgment should be affirmed.

All concur.


author: Finch, J.

text:
    Oakville Company, App’lt, v. Double Pointed Tack Company, Resp’t.

      (Court of Appeals,

      Filed April 19, 1887.)

    Contract—Question of construction cannot be raised in equitable ACTION TO REFORM.
    In an equitable action to reform an alleged mistake in a written contract, the question as to the true construction of the contract as originally drawn cannot be raised. That is a purely legal question.
    Appeal from judgment of supreme court, general term,’ first department, affirming judgment for defendant.-
    The action was brought to obtain a construction and reformation of a written instrument, assigning letters patent to plaintiff and providing that he should make and sell 25,000 gross of pins, paying royalty thereon, or the patent should revert to the assignor. Plaintiff asked that the contract be construed so that he might pay a royalty to defendant for the pins actually sold and claimed that his failure to sell the amount named merely gave the defendant the right to terminate the license.

      Stearns <& Curtis, for pl’ff and app’lt; U. W. Tompkins, for resp’t.

       Affirming 34 Hun, 633, mem.

   Finch, J.

The complaint in this action alleges a mistake in the written contract between the parties, and" seeks its reformation so as to correctly express, their agreed purpose and intention. The trial court has found, as matter of fact, that no mistake existed, and upon evidence quite sufficient to support the finding. That, of course, defeats the action so far as its substantial purpose is concerned.

But the plaintiff seeks to raise a further question over the construction of the contract as originally drawn, and insists that its true meaning is precisely what it would have been if the instrument had been reformed in accordance with the prayer of the complaint. That is a purely legal question, wliich does not belong to the equitable action before us. It will arise, if at all, when one party sues the other for royalties claimed to be due, and may then be determined properly and correctly, and with an effective result. The remedy at law is obvious and adequate, and no ground exists for the interposition of equity.

The exceptions taken to the exclusion of evidence as to what is “customary ” in making similar contracts, and to that of the existing agreement between the defendant and the original patentee, need not be discussed. The ruling of the court in each instance involved no error.

The judgment should be affirmed, with costs.

All concur.