text:
    JOHN S. CAGWIN, Appellant, v. THE TOWN OF HANCOCK, Respondent.

      Town bonding — when an affidavit of the assessor that the consent has bam signed by the requisite number of tax-payers is conclusive evidence thereof — 1866, ah.. 398, § 2.
    Section 2 of chapter 398 of 1866, authorizing the town of Hancock to issue-its bonds to aid in the construction of a railroad, upon obtaining the consent in writing of a majority of the tax-payers thereof, provides that “ the fact that a majority of the said tax-payers, representing a majority of the taxable property, has been obtained and acknowledged or proved, shall be proved by the affidavit in writing of one of the assessors of the town, or city, or by the affidavit of the town or county clerk, and shall be indorsed upon or annexed to said written consent, and the said consent and affidavit shall be filed in the town clerk’s office of the town, and a copy thereof in the county clerk’s office of the county .... and it shall be the duty of the said assessors, and town and county clerks, to make such-affidavit when said consent shall have been obtained.”

      Held, that the object of the statute was to enable one about to loan money to the town to ascertain how the question, as to whether or not the requisite consent had been obtained, had been decided by ihe officers to whom the decision thereof had been intrusted; and that one purchasing the bonds in good faith, after the affidavit required by the act had been duly made and filed, and while the proceedings remained unreversed, was protected thereby; and that the authority of the commissioners of the town to issue the bonds could not be impeached by showing that such consent had not, in fact, been signed by the requisite number of tax-payers. (Boches, J., dissenting.)
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    The. action was brought to recover the amount due upon certain 'Coupons attached to bonds alleged to have been issued by the defendant to aid in the construction of the New York & Oswego Midland Railroad. The bonds were claimed to have been issued under chapter 398 of 1866, chapter 695 of 1866, chapter 917 of 1867, chapter 61 of 1868, chapter 84 of 1869, and chapter 794 of 1870.
    The defense was that thp consent of the tax-payers to the issue of the bonds required by the act had not been obtained, and the referee upon the trial found this to be the fact.

      II. <& W. J. Welsh, for the appellant.
    The consents in writing, Tied and recorded, have been made by the statute, the record evidence upon which the officers were authorized to act, and cannot be impeached by parol evidence in a collateral proceeding. {Pierce v. Wright, 45 How. Pr., 6; People v. Zest, 23 N. Y., 140.) The defendant is concluded by the affidavit of the assessors and cannot in this action question the sufficiency of the consents to bond. (Ba/nlc of Rome v. Village of Rome, 19 N. Y., 24; Corns. Knox Co. v. Aspinwdll, 21 How. H. S., 546; Shell v. Telfore, 4 N. Y. Leg. Obs., 307; Commissioners of Douglas Co. v. Bolles, 4 Otto, 109; Pierce v. Wright, 45 How. Pr., 7; People v. Mitchell, 35 N. Y., 552.)

      W. <& J. B. Gleason, for the respondent.
    All the world are •bound to know that towns of the State of New York have, at common law, no power to bond for railroads, and that no such power •can exist unless it has been expressly conferred by statute. (See Town of South Ottawa v. Perhims, 4 Otto, 260, and also 258 ; Wiesvner v. Village of Douglas, 64 N. Y., 92 ; 13 Wall., 304; 23 N. Y., 440, 459; 3 Wall., 327; People v. Mitehell, 35 N. Y., 551.) Where there is a total want of authority to issue bonds, there can be no tona, .fide holding of them. (Township of Oakland v. Skimmer, 4 Otto, 255 ; Town of South Ottawa v. Perkims, Id., 258, 280; Wiesmer v. Village of Pouglas, 64 N. Y., 92'; 23 Id., 439, and 24 Id., 114 ; 33 Id., 224; 62 Id., 465 ; 75 Id., 397). The affidavit of the assessors in nowise estopped the town from showing that the requisite consents were not given by a majority of the tax-payers, nor for a major part of the property on the roll. The question is no longer a debatable one in this State. (.People ex rel. Town of Springport v. Teutonia Sawings Bamk, 25 N. Y.,- 397; Canada P. P. Oo. v. Hutton, 18 Hun,. 116-124 ; and Sarnie v. Ba/rrett, Id., 206 ; People v. Mead, 36 N. Y., 229 ; 55 Id., 180 ; 10 Id., 334; Starm v. Town of Genoa, 23 Id., 440, 451, 452 ; Town of Wellstoro v. H. ■Y. AO. P. P. Co., 76 Id., 182,185.)
   Learned, P. J.:

The j>laintifE is a tond fide holder; that is to say he, or the person to whose rights he succeeded, had no actual notice of the alleged defects in the proceedings, and parted with value for the coupons.

The remark, in Township of East Oakland v. Skinner (94 U. S., 255), that, when there is a total want of authority to issue bonds, there can be no such thing as a tond fide holding, cannot apply to a case like the present. In that case the court held that there was no statute which authorized the corporation, wider any cimeumstanees, to issue bonds; and the courts say that it was not a case of an informality or irregularity, fraud, or excess of authority. Numerous cases, one of which is that of Commissioners v. Bolles (94 U. S., 104), and another is that of County of Cass v. Gillett (100 U. S., 585), show that, where the alleged defect is in the proceedings to authorize the issue of the bonds, there may be a tond fide holder, whose rights as such will be protected.

It may be admitted that the commissioners, in such cases as the present, are not town officers. (Horton v. Town of Thompson, 71 N. Y., 513.) Their acts, therefore, are not those of an ordinary agent, acting for his principal. And the familiar rule, that the statements of an agent are not evidence of Ms authority against his principal, is not involved in this case.

But the commissioners are by statute authorized, to borrow money on the credit of the town, and to execute bonds, wMch shall be obligatory on the town. It is provided also, that the powers of the commissioners shall only be exercised, on the condition that the written consent of a majority of the tax-payers be obtained, owning more than half of the taxable property, &c.. The statute then proceeds to say that “ the fact that a majority of the said tax-payers, representing a majority of the taxable property, has been obtained and acknowledged, shall be proved by the affidavit of one of the assessors of the town or city, or by the affidavit of the town or county clerk, and shall be indorsed upon, or annexed to, said written consent.” This consent and affidavit are to be filed in the town clerk’s office, and a copy in the county clerk’s office; and it is made the duty of the assessors and clerk to make such affidavit.

This act of the assessor or county clerk was not ministerial. It required, for its performance, the examination of facts, and it was a decision thereon.

What was the object of the legislature in requiring this affidavit to be made and filed ? Plainly, to enable any one who was about to lend money to the town, through these commissioners, to ascertain how the question of fact had been decided by those to whom the decision had been intrusted. To hold that every person who was about to loan money, must ascertain, at his peril, whether or not a sufficient number of consents had been signed; whether the signatures represented a majority of the taxable property; whether every signature w.as genuine, and the like, would prevent the object of the act, viz., the borrowing of money on negotiable instruments. The only plain and honest meamng of the act is that the lender might trust to the affidavit of the assessor, or clerk, as a decision, conclusive upon the point submitted to them; at least, until reversed in a direct proceeding for that purpose.

The affidavit of the assessor or clerk in such a case, may be compared to the certificate of the election of municipal officers, made by the proper canvassing board. It stands as the evidence of authority, until reversed in some direct proceeding for the purpose; and the acts of the officer are valid, even though it may be that there was error in the canvass. So in the present case, the canvass -of the assessor or clerk, unreversed, is the evidence of authority to the commissioners; who are officers and not mere agents of the town. (Horton v. Town of Thompson, ut supra.)

If not, and if the question might be reviewed in an action on the bonds, and might be then submitted to the varying verdicts of juries, or to other tribunals, then the statute would be a fraud and a trap.

This is the doctrine of the Supreme Court of the United States. It was asserted in the case of Town of Coloma v. Eaves (92 U. S., 484), a case where the supervisor and the town clerk, being the officers who were to execute the bonds, had recited in the bonds the fact of the vote of the electors. As the statute did not expressly provide what officers were to decide upon the vote, the court held that it was to be gathered from the statute that these officers, who were to issue the bonds, were to ascertain whether a majority voted for the subscription. Therefore, the court held that the recital of the fact in the bond was a decision by them and was conclusive. The doctrine is re-affirmed in the strongest language in Commissioners v. Bolles (94 U. S., 104).

Now, it is true that, in those cases, there was a recital in the bonds that there had been a vote of a majority of the electors. But the decisions are not based on the fact that such recital is contained in the bond. The decisions are on the ground that the statute did not provide expressly for any officer to ascertain the vote; that therefore it might be gathered from the statute that the very officers who were to issue the bonds were those who were to pass upon the vote ; and that their recital in the bond was a decision upon the-fact that a majority had voted for the issue. The principle was established in those eases, that some officer must decide the question ; and that his decision was not afterwards to be questioned. If no officer was expressly named, then it might be gathered from the statute that the officers who were to sign the bonds were also to make the decision on the vote. 'Whether such decision was to be expressed by a recital in the bonds, or otherwise, was not made a material circumstance in those decisions.

So, once more, in the ease of Block v. Commissioners (99 U. S., 686), there were no recitals in the bond of an affirmative vote. And the court say, “It may be conceded he (the holder) was bound to inquire whether a majority vote had been returned for the issue of the bonds. But where was he to inquire % Plainly, only of the board, whose province it was to ascertain and declare the result of the election.” . . . “ He was not bound to canvass the vote for himself, or to revise and correct a mistaken canvass.” . . . “ And if, relying upon the canvass of the board and the declared residt, he accepted the obligations of the county, it would be a strange doctrine were we to hold that a second ccmvass, made ma/ny yea/rs after, could reverse the first, and annul rights that had been acquired under it. There is no such law.”

If there is, there ought not to be. Every one sees now that this “ bonding ” legislation was unwise and impolitic. Perhaps it is to be regretted that courts, in the outset, did not hold all of it to be unconstitutional, as they held some to be. (Weismer v. Village of Douglass, 64 N. Y., 102.) But it is too late to question the validity of such statutes. The obligations incurred should be honestly met. And where the officers, to whom the statute intrusted the duty of examining and of passing on the question as to the number and extent of the consents, have performed that duty, their action should be conclusive, unless the statute expressly forbids. In the case of Town of Springport v. Teutonia Savings Bank (75 N. Y., 397) the decision is placed on the fact that the affidavit was declared to be “presumptime” evidence. This was held to show that it was not to be conclusive. In that case, also, the further fact appeared that the proceedings for the bonding of the town had been directly reviewed, under a writ of certiorari, and had been reversed. That has not been done in this case ; and the proceedings to bond the town remain in full force.

And, furthermore, in the present case, the statute says that the fact, &c., shall he proved by the affidavit; not that the affidavit shall be presumptive evidence; but that the fact shall be thereby proved. When a fact is proved, much more is meant than that there is presumptive evidence thereof.

If there had been no such provision in the statute, one who was-about to lend money to the town, through the commissioner, might-well have inquired how he could be certain that the majority of tax-payers had consented. And, even if he should examine for himself (had this been possible), and should become satisfied that a majority had consented, he might fear that, when the bonding of towns should become unpopular, a jury might come to a different, conclusion. Therefore, to enable the town to borrow, and to protect the lender, the legislature authorized him to ascertain from the town clerk’s office, or the county clerk’s office, whether or not the fact that a majority had been obtained had been proved. To that proof he was justified in trusting. To permit the fact thus proved to be now re-examined by another tribunal, as against a. bond fide holder, would be a great injustice.

The defendants have had the money from the plaintiff, or his assignor. If any fraud was practiced, or any duty neglected, the fraud or the neglect was on the part of the defendant’s officers ; the assessor or clerk. With the decision expressed in the assessors’ affidavit, the defendant rested satisfied, until the time for repayment came. And now the-defendant should not he allowed to dispute it as against the plaintiff.

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

Bocees, J., dissented.

Present — Learned, P. J., Bocees and Martin, JJ.

Judgment reversed, new trial granted, costs to abide event, and reference discharged.


source: Caselaw Access Project

author: Bookes, J.: Learned, P. J.:

license: Public Domain

text:
    BETSEY P. MORE, Individually and as Guardian, &c., of JAY MORE and others, Respondent, v. CHRISTOPHER E. DEYOE, FRANCIS R. GILBERT and ISAAC H. MAYNARD, Appellants.

      Action of ejectment — power of the court to revive it, in famor of the guardiam in socage of the infant devisees of the original plaintiff — tenants may he joined as defendants with those claiming title — Mortgage—right of successors in interest of mortgagor to attack it for usury — when purchaser at sale on foreclosure not pi'oleeted against the defense of usury — Section 6 of chapter 17 of 1858, and section 6 of title 5 of chapter!' 330 of 1873 are constitutional — Evidence—what admissible to show the value of the use of land — When a mortgagee may testify as to his intention, in order to repel defense of usury.

    This action was commenced by one Taylor More to recover certain real property, together with damages for the withholding thereof. After the joinder of issue herein, More died, leaving a will, by which he devised one-third of his property to his wife, the plaintiff, and the other two-thirds to his minor children. Thereafter an order was made reviving and continuing the action in the name of the plaintiff, individually, and as guardian in socage of the children, in the place and stead of the original plaintiff. In an amended answer served by the defendants, no specific objection to the right of the plaintiff as guardian in socage for her children to have the action so revived and continued, was taken.

      Meld, that as no appeal had been taken from the order so reviving and continuing the action, the case stood as though the action had been originally commenced by the plaintiff, to recover in 'her own right the part of the premises devised to her, and as the guardian in socage of her children, the part devised to them, and that such an action was clearly maintainable.
    That the court had, under 3 R. S., 6 ed., 575, and the Code of Oivil Procedure, § 757, power to so revive and continue the action.
    In an action to recover real property, those who claim to be the owners thereof are properly joined as defendants with the tenants who are in possession under them.
    On March 1, 1877, W. P. More executed a mortgage upon certain real estate belonging to him, to one Taylor More, the plaintiff’s testator, who thereafter foreclosed the same by advertisement, and purchased the premises at a sale had on July 8, 1878. On April 33, 1874, More had executed a mortgage upon the same premises to the defendants, Gilbert and Maynard, who foreclosed the same by advertisement, and bid in the premises at a sale had on July 17, 1878. On April 15, 1875, W. P. More had conveyed the premises to one Crary, subject to the mortgage given to the defendants, Gilbert and Maynard, it being verbally agreed and understood that Crary should pay and discharge the same. December 15, 1875, the premises were taken back by, and possession thereof surrendered to More by Crary, and the deed, which had not been recorded, was surrendered to him. Thereafter Orary quit-claimed bis interest in the land to the said More. April 80, 1877, More conveyed the premises to his son, who conveyed them to his mother, who, on September 35, 1877, conveyed them to Gilbert and Maynard, to whom the possession thereof was, on December 1, 1877, surrendered.
    In an action by Taylor More to recover the possession of the land, Held, that the conveyance from W. P. More to Orary, subject to the mortgage, and the subsequent surrender of the premises by the latter, did not estop or prevent W. P. More from setting up that the mortgage given to Gilbert and Maynard was void for usury.
    That Taylor More, by his purchase of the premises at the sale liad upon the foreclosure of the mortgage given to him, acquired the same right to attack the defendant’s mortgage for usury as had his mortgagor.
    'That Gilbert and Maynard acquired no advantage by purchasing the premises at the sale had upon the foreclosure of their mortgage, as they were not ~bon& fide purchasers without notice of the usury.
    ¡Section 6 of chapter 17 of 1858, and section G of title 5 of chapter 830 of 1873, being the charter of the village of Deposit, which village is situated partly in the county of Delaware and partly in the county of Broome, provides that “all notices or other publications required by law to be published in the county of Delaware, and all notices or other publications required by law to be published in the county of Broome, may be published in any newspaper printed iu said village, and shall be regarded, and shall have the same effect, as if the same were published in the counties of Delaware and Broome, or either of them.”

      Held, that this provision was not a violation of section 16 of article 3 of the Constitution, declaring that no private or local bill shall embrace more than one subject, which shall be expressed in its title.,' and that the act was constitutional and valid.
    In an action of ejectment brought against persons claiming title to the land in question, and tenants in possession under them, the plaintiff gave evidence tending to show that the annual use of the premises was worth $500, the taxes to be paid by the lessee. The defendants then put in evidence the lease given to their tenant, by which a rent of $535 was reserved; the lessee agreeing to pay the school and road taxes, and the lessors the town, county, and State taxes. They then offered to prove that the actual receipts of the rents and profits from the farm, after paying the taxes and expenses, amounted to only $335 a year.

      Held, that the evidence so offered by the defendants bore upon the question as to the value of the use and occupation of the premises, and that the court erred in rejecting it.
    The plaintiff sought to avoid a mortgage, given by the person under whom she claimed, to the defendants, on the ground of usury. The usury consisted in the over-valuation of certain railroad bonds transferred by the defendants to the mortgagor, and which formed part of the consideration for which the mortgage way given. Upon the trial, one of the defendants was asked whether at the time the mortgage was taken he believed the bonds were worth the price at which they were taken by the mortgagor, and whether he had any intention of violating the usury law. Upon the plaintiff’s objecting, the question was excluded.

      Held, that this was error; that under the circumstances of this case, the defendant was entitled to testify as to Ms intention in making the arrangement for the transfer of the bonds.

      Fiedler v. Darrin, 50 N. 7., 487, — distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon: the report of a referee.
    This action was brought to recover a farm of about two hundred-acres, situated at the village of M'oresville, Delaware county. Both parties claim title through one "Wilson P. More, who was the owner-of the premises, April 23, 1874, and who, on that day, executed a mortgage thereon to the defendants, Gilbert and Maynard, to secure the payment of $10,000. The consideration of the mortgage- and accompanying bond was as follows: A prior mortgage on the-premises, which Gilbeif and Maynard agreed in writing, under their hands and seals, to take up and cancel on or before December 1, 1874, on which was there due, April 22, 1874, $3,576.22; four-first mortgage coupon bonds of the Rondout & Oswego Railroad Company, of $1,000 each, bearing interest at the rate of 7 per cent, semi-annually, payable January 1 and July 1 in each year, and upon which there was accrued interest from July 1, 1873, and the balance, $2,423.78, in money, to make up the $10,000.
    April 15, 1875, Wilson P. More conveyed the premises covered by the defendants’ mortgage and some personal property to one Archibald P. Orary for $16,000. The referee found that there was an implied understanding between the parties at the time of the execution of the deed that Orary should pay the mortgage as a part of the consideration of the conveyance, but refused to find that the deed contained a covenant to that effect.
    December 15, 1875, by an agreement between Orary and More,, the premises were taken back by W. P. More, and the possession surrendered to him by Orary, and the deed from More to Orary, not having been recorded, was given back to More. On March 11, 1876, Orary executed a quit-claim deed to More, in consideration that More released him from all claims to date, and from all obligations and claims growing out of the contract for the purchase of (the premises by Orary of More.
    March 1,1877, Wilson P. More executed another mortgage upon-the premises in question, the store building, and a house and lot worth $1,500, to Taylor More, his brother, to secure the payment of $2,730. April 30, 1877, "Wilson P. More conveyed these premises to his son Marcus More, who on the same day conveyed them to ' Elizabeth More, the wife of Wilson P. More, who, on September 25, 1877, conveyed them to the defendants, Gilbert and Maynard, reserving the possession thereof until December 1, 1877, when she surrendered the premises to them, and they went into possession immediately. The defendants, Gilbert and Maynard, continued in actual possession until April 14, 1878, when they leased the premises to the defendant Deyoe, for one year, at a rental of $525, one-half of which was paid down and the balance to be paid at the end of the year, and the defendant, Deyoe, immediately went into possession under the lease, and was in possession when this action was, commenced.
    Taylor More commenced proceedings to foreclose his mortgage by advertisement, April 13, 1878, under which a sale was had July 8, 1878, at which Taylor More bid in the premises in question for one dollar, and affidavits of the foreclosure were made and filed and recorded in Delaware county clerk’s office, July 12,1878. The notice of sale was never published in any newspaper published in the county of Delaware, but was published for twelve weeks in the Deposit Courier, a newspaper published in the county of Broome., but within the corporate limits of the village of Deposit. The defendants, Gilbert and Maynard, commenced proceedings to foreclose their mortgage by advertisement April 22, 1878, under which a sale was had July 17, 1878, at which they became the purchasers for the sum of $5,000, and affidavits of the foreclosure were made, and filed and recorded in Delaware county clerk’s office, December 12,1878.
    Taylor More brought this action July 17,1878, after the sale had taken place upon the foreclosure of defendant’s mortgage. Taylor More died February 2, 1879, and by his will devised all his real-estate to his widow, the plaintiff, Betsey P. More, and to his minor children Jay, George, Clark, Taylor and Cornelia, one-third to his widow and the remainder to the minor children in equal shares. This will was proved March 3, 1879, and April 8, 1879, an order-was granted at the Delaware SpeciaL Term, reviving- and continuing the action in the name of Betsey P. More, individually and as guardian in socage of the minor children, in place of Taylor More, deceased, and substituting them as plaintiffs.
    The plaintiff sought to recover upon the ground that the defendant’s mortgage was void for usury, because there was included in the consideration the sale of the four bonds of the Rondout & Oswego R. R. Co., at their face value, less the accrued interest.

      I. H. Maynard, for the appellants.
    The plaintiff, as guardian in socage, is not entitled to recover the share devised to her minor children by the will of Taylor More. (2 R. S., 6 ed., p. 1092, §§ 5, 6, 7; 3 Id., p. 169, § 20; Cagger v. Lansing, 4 Hun, 812; 8. O., 64 N. Y., 417.) The referee erred in refusing to allow the defendants to testify to them intention in transferring the bonds. {Thurston v. Gornell, 38 N. Y., 281; Black v. Ryder, 5 Daly, 304.) Crary and his grantees, including the plaintiff, are estopped from questioning the validity of the defendant’s mortgage. (Burr v. Beers, 24 N. Y., 178; Ricard v. Sanderson, 41 N. Y., 179; Thory v. Keokuk Goal Go., 48 N. Y., 253; Wales v. Sherwood, 52 How. Pr., 413; Ramsey v. McMullen, 5 Abb. New Cas., 246; Douglass v. Wells, 18 Hun, 88; Whitney v. Gearly, 14 Id., 498; Russell v. Weinberg, 53 How. Pr., 468; 8. O., 2 Abb. New Gas., 422; Loomis v. Balheimer, 5 Id., 263 ; Douglas v. Wells, and other cases cited, supra; Post v. Da/rt, 8 Paige, 639 ; Shufelt v. Shufelt, 9 Id., 137; Sands v. Church, 6 N. Y., 347; Schermerhorn v. Taiman, 14 N. Y., 93 ; Hartley v. Harrison, 24 N. Y., 170 ; Barthett v. Elias, 2 Abb. New Gas., 364; Rosa v. Butterfield, 33 N. Y., 665; Union National Bank v. Wheeler, 60 Id., 612; Stewarts. Bramhall, 74 Id., 85.) If there was a covenant on the part of Crary to pay the mortgage debt, it was a covenant running with the land and binding and affecting all persons claiming the land under Crary. (Lametti v. Anderson, 6 Cow. 301; Anderson v. Lametti, 6 Wend., 326 ; Astor v. Hoyt, 5 Id., 605; Astor v. Miller, 2 Paige, 68 ; Allen v. Culver, 3 Den., 284; Martins. O’Connor, 43 Barb., 514; Holsman v. DeGrey, ■6 Abb. Pr., 79 ; Post v. Kearney, 2 N. Y., 394.) The defendants must be regarded as mortgagees in possession, and ejectment will not lie against a mortgagee in possession by tbe mortgagor or his grantees. (Tyler on Ejectment, 41, 52, 67; Chase v. Peek, 21 N. Y., 581; St. John v. Bumpstead, 17 Barb., 100; Winslow y: McCall, 32 Id., 241; Bolton y. Brewster, Id., 389; Phyfe y. Riley, 15 Wend., 248; Fox y. Pipe, 24 Id., 164; Parsons y. Wells, 17 Mass., 419; Wilson y. Ring, 40 Me., 116.) Upon these facts, conceding defendant’s mortgage to be usurious, they must be-deemed mortgagees in possession, to the extent to which they have made payments upon the prior mortgage, and which entered into • and formed a part of the consideration of their mortgage. (Patterson v. Birdsall, 64 N. Y., 294; S. C., 6 Hun, 632 ; Cerwig v. Bitterly, 56 N. Y., 214; Union Trust Co. v. Monticello, <&c, R. R. Co., 63 Id., 311; Cole v. Malcolm, 66 Id., 363; Winstead Bank v. Webb, 39 Id., 325 ; Williams v. Fitzhugh, 37 Id., 444; Cook'Y. Barnes, 36 Id., 520; Crippen v. Hermanee, 9 Paige, 211; Liddersdale, Fdr, v. Robinson, Adm’s, 2 Brockenborough, 159 ;■ Cottrell’s Appeal, 23 Penn., 294; Lawrence v. Cornell, 4 Johns. Ch., 545; Rockwell .v. Hobby, 2 Sandf. Ch., 10; King v. Mc-Yicker, 3 Id., 210.) The acts of the Legislature (Laws of 1858,-ch. 17, § 6, and Laws of 1873, ch. 330, title 5, § 6), amending the charter of the village of Deposit, authorizing the publication, made in this case, are unconstitutional, being in violation of section 16, article 3, of the Constitution, which provides that “ no private or local bill, which may be passed by the Legislature, shall embrace more-than one subject, and that shall be expressed in the title.” (People■ v. Hills, 35 N. Y., 449 ; People v. O’Brien, 38 Id., 193; Gaskin v. Meek, 42 Id., 186; People v. Allen, 42 Id., 404; People v. Supervisors of Chcmtauqua, 43 Id., 10; Huber v. People, 49 Id.,' 132; City of Watertown v. Fairbanks, 65 Id., 585 ; Matter of' Lands in Flatbush, 60 Id., 398 ; PeopSle v. Com’rs, 53 Barb., 70 ;■ Gaskin v. Anderson, 7 Abb. Pr., N. S., 1; Town of Fishkill v.Fishkill R. R. Co., 22 Barb., 634; Smith v. Mayor, dec., 34-How. Pr., 508; People v. Common Council, 13 Abb. Pr., N. S., 121; Burkee v. City of Janesville, 26 Wis., 697.)

      Arthur More, for the respondent.
    The Gilbert and Maynard-mortgage being usurious, tbe title derived from the foreclosure of the same is absolutely void as to this plaintiff, deriving her title from the foreclosure of the subsequent mortgage given to her testator. (Van Tassel v. Purdy, 12 Hun, 388 ; Ga/row v. Kelley, 59 Barb., 239 ; Pix v. Van Wyelc, 2 Hill, 522; Mason v. Lord, 40 N. Y., 488 ; Knickerbocker Lns. Go. v. Hill, 6 N. Y. Sup’m. Ot. [T. & C.], 285 ; Mason v. Lord, 40 N. Y., 476.) The foreclosure by advertisement, of a usurious mortgage, will not convey a good title, except to a bona fide purchaser at the foreclosure sale. (3 R. S., 5 ed., 861; Bissell v. Kellogg, 60 Barb., 617 ; Hyland v. Stafford, 10 Id., 558 ; Jaekson v. Packard,. 6 Wend., 415; Jackson v. Domvnick, 14 Johns., 435; Post v. Don't, 8 Paige Ch., 639, approved in 40 N. Y., 486 ; Morris v. Floyd, 5 Barb., 136; Brooks v. Avery, 4 N. Y., 229 ; Thompson v. Van Vechten, 27 Id., 568 ; Vickery v. Dickson, 62 Barb., 279; Berdan v. Sedgwick, 40 Id., 359; 13 Alb. L. J., 40.) The action was properly continued in the name of Betsey P. More, the widow, individually, and as mother and guardian of the minor children. (Seaton v. Dmis, 1 N. Y. Sup’m. Ct. [T. & C.], 91; Bartholomew v. Dyon, 3 Id., 774; Gagger v. Lcmsing, 64 N. Y., 418; 3 R. S., 5 ed., p. 2.) 'The action was properly brought against all the defendants, the landlord and the tenant. (Garter v. Hunt, 40 Barb., 93; Abeel v. Tam, Gelder, 36 N. Y., 513;° Fvrmegam, v. Oa/rraher, 47 Id., 493 ; Code Civ. Pro., § 447.) Besides, the' question is not now in the case, not having been raised by demurrer or answer. (Code of Civ. Pro., §§ 488, 490; Enos v. Leach, 18 Hun, 141.) The act permitting the publication of legal notices in a paper published in the village of Deposit, is constitutional. Every presumption is in favor of the validity of legislative acts, and the court, if possible, will give the statute such a construction as will enable it to have effect. (Cooley on Const. Lim., *184, 185; People, &c. v. Briggs, 50 N. Y., 553 ; People, <&c. v. McKinney, 52 Id., 583; Roosevelt v. Goda/rd, 52 Barb., 533 ; Village of Deposit v. VaR, 5 Ilun, 312 ; In re Hathaway Will, 9 Id., 83.) Having in view the peculiar location of this village, and intending to benefit the community embraced within the corporate limits, the Legislature had the right to enact the provision in question, aud such a provision is manifestly within the scope of ■a general act to amend the charter and to revise and compile the ¡several acts relative to said village. (People v. Briggs, 50 N. Y., 533 ; Village of Gloversville v. Howell, 70 Id., 287; Harris v. People, 59 Id., 599 ; In re Mayer, 50 Id., 504; Brewster v. City •of Syracuse, 19 Id., 116; People ex rel. Baris v. Commissioner of Taxes of H. Y., 47 Id., 501; People v. Board of Commissioners, 67 Id., 568; People y. Lawrence, 41 Id., 139 ; Connor v. Mayor, 5 Id., 285 ; Mosier v. Hilton, 15 Barb., 657 ; Sharp v. Mayor, 31 .Ld., 572; Be Camp v. Evela/nd, 19 Id., 84; Mills v. Charlton, 29 IVis. 440; 9 Am. B., 578; O'Leary v. Cook Co., 28 111., 534.) "The act in question is a public act. All statutes relating to the ••service of legal process, and thus affecting the administration of justice, are public statutes. (People v. O’Brien, 38 N. Y., 193 ; .In re Vancene, 31 Iiow. Pr., 337; Brete v. Mayor, 35 Id., 132 ; Williams v. People, 24 N. Y., 405; Burnham v. Acton, 35 Iiow. .Pr., 48; Fall Brook Coal Co. v. lynch, 47 Id., 522; People v. Baris, 61 Barb., 464; Healey v. Budley, 5 Laus., 120.) The placing by the Legislature, in a private or local bill, of matter of public or general law, does not render the act, so far as the matters •of public or general law is concerned, obnoxious to the section of ■the Constitution in question. {People v. Supervisors of Chautan.yua, 43 N. Y., 13; People v. McCann, 16 Id., 58 ; Williams v. People, 24 Id., 405; People v. Baris, 61 Barb., 61; People v. SMorgan, 1 Sup’m. Ct. [T. & C.], Ill; Fall Brook Coal Co. v, lynch, 47 How. Pr., 520; Richards v. Richa/i-ds, 76 N. Y., 186.)
   Bookes, J.:

A difficulty seems to exist in this case, which must, as we think, ■control its decision on this appeal, growing out of the rejection of ■evidence offered by the defendants on the trial. However, before ■considering this difficulty, we should examine the questions urged upon our attention by the defendant’s counsel, which go to the ■ entire right of act/ion ¡ for if the action be not maintainable by the plaintiff at all on the facts proved, the ruling of the referee in the rejection of evidence becomes wholly unimportant; and the case, ¡should be put at rest on other grounds.

The action, ejectment, was commenced originally by Taylor More, the husband of the present plaintiff; and issue was joined between the parties by the service of answers by the defendants-respectively. Thereupon the plaintiff died, having made a valid will by which he devised to his widow, the present plaintiff, one-third of his real estate, and to his minor children, named in the-title of the action, the remaining two-thirds. The action was then, by order of the court, revived and continued by the present plaintiff in her own name, for the recovery of the third devised to her, and also for the recovery of the two-thirds as guardian in socage of" her infant children. The defendants thereupon put in an amended answer; but interposed no specific objection to the right of the-plaintiff to recover, on the ground that the action could not be revived and continued by her as to the right of the infant children. The case then may be considered as if originally brought by the plaintiff in her own right as to one-third of the premises, and asgua-rdian in socage of the children as to the remaining two-thirds.

It is urged that the action cannot be prosecuted by the plaintiff' as to the two-thirds devised to her children. This objection wedeern untenable. This is clearly so, if we hold that the case stands-the same as if brought by the plaintiff, as guardian in socage, as regards the two-thirds owned by the children. TJie mother, as. guardian in socage of her infant children, may maintain ejectment to recover the possession of their real estate against a party unlawfully withholding it against her right of occupancy. A guardian in socage has the custody of the land of the infant, and may maintain ejectment against one wrongfully in possession. (2 R. S., 6 ed., 1092; 3 Id., 169; Holmes v. Seely, 17 Wend., 75; Beecher v. Crouse, 19 Id., 306; Seaton v. Davis, 1 N. Y. Sup’m. Ct. [T. & C.], 91; Bartholomew v. Lyon, 3 Id., 771; Cagger v. Lansing, 61 N. Y., 417.) As the issues were made on the pleadings, the case-stood for trial as if originally commenced by the plaintiff in her own right for the part of the premises devised to her, and as-guardian in socage for her children, who, as was claimed, owned the remaining part.' The right to revive and continue the action in the name of the plaintiff, was determined by the order of revivor,, from which no appeal was taken, nor was any specific objection-taken by the defendants’ amended answers, thereafter interposed. But the right of revivor, as here granted, seems to be well authorized by statute. (3 R. S., 6 ed., 575; Code of Civ. Pro., § 757; James v. Bennett, 10 Wend., 540; Boynton v. Hoyt, 1 Denio, 57; St. John v. Croel, 10 How. Pr., 253.) The objection that the action was not maintainable by the plaintiff for the two-thirds devised to-the children, or could not be prosecuted by her as guardian in. socage, is not well taken. The action was also maintainable against; Gilbert and Maynard, joined with Deyo, the tenant in possession, under them. (Former Code, § 118; Code of Civ. Pro., § 447; Abeel v. Van Gelder, 36 N. Y., 513; Finnegan v. Carraher, 47 Id., 493.)

Nor is the objection that the defendants were to be deemed mortgagees in possession tenable. The defendants, Gilbert and Maynard, entered, and held under conveyance to them, from Elizabeth More, who, at the time of making the deed, owned the equity of redemption; and they so held under this deed until the foreclosure! of their mortgage, when they became purchasers. But if their mortgage was void for usury, as was found to be the fact by the; referee, they could not defend as mortgagees in possession, for then,, as to the plaintiff, they had no rights to be protected under it. In. that case the defendants could neither build up or maintain any right whatsoever founded upon it, as against any one entitled to insist upon its invalidity. This brings us to the question whether the plaintiff here might so insist.

The plaintiff claimed as devisee under Taylor More, a purchaser-on foreclosure sale under a valid mortgage. He held, in law, the-position of grantee from the mortgagor. Thus he and his deviseeswere in privity in estate with the mortgagor; and hence, as has-been repeatedly held, might insist upon and set up usury against a prior mortgage given by the same mortgagor, which was an apparent lien on the premises. Taylor More was not to be deemed a purchaser merely of the equity of redemption, as regards the holder of the usurious mortgage. But he acquired, by his purchase, the position which the mortgagor held at the time the lien of the valid mortgage took effect, with all the rights then pertaining to the mortgagor. One of those -rights was a right to insist that the prior mortgage was void for usury. Without citing and collating the many cases wherein this subject has been discussed, it is only necessary to ref cito the rule as at present settled, given in the note to the case of the Merchants' Exchange Nat. Bank v. Com. Warehouse Co. (49 N. Y. 635, 643). It is there stated that “ all privies to the borrower, whether in blood, representation or estate, may, both in law and equity, by the appropriate legal and equitable remedies and defenses, attack •or defend against a contract or security given by the borrower which is tainted with usury, on the ground of such usury, where such contract or security affects the estate derived by them from the borrower.” The correctness of this rule is also asserted iu a recent •case in the Court of Appeals. (Knickerbocker Life Insurance Co. v. Nelson, MS. opinion by Danforth, J.) Here, Taylor More, by his purchase at the foreclosure sale, under a valid mort.gage, was in privity in estate with the mortgagor, hence might (as might the latter) insist upon the invalidity of the prior mortgage for usury, both mortgages having been made by the same party. Nor do the defendants, Gilbert and Maynard, gain any advantage •over the plaintiff by their foreclosure. They were not bona fide purchasers without notice of the usury. (Jackson v. Dominick, 14 Johns. 435; Hyland v. Stafford, 10 Barb. 558; Bissell v. Kellogg, 60 Id., 617.)

It is urged that the plaintiff’s devisor, and those claiming through •or under him, are estopped from insisting upon the invalidity of the prior mortgage, because of certain transactions between the mortgagor and parties other than Taylor More. ' It seems that the mortgagor, W. P. More, after the giving of the mortgage to the defendants Gilbert and Maynard, and before giving the mortgage to the plaintiff, conveyed the premises to one A. P. Crary. The •deed to Crary was made subject to the former mortgage. A few months after the conveyance to Crary, it being seen that he could not consummate his purchase, the purchase was in effect canceled by the parties, and the deed to Crary, which had not been recorded, was surrendered and delivered back to the grantor W. P. More, and was destroyed, and after a few months (March 11, 1876), Crary formally quit-claimed the premises back to the grantor. This pro-needing between Crary and his grantor, W. P. More, to wit, the surrender and destruction of the deed to Orary, and the restoration •of the title by the latter to his grantor, W. P. More, was evidently Intended to restore the parties, as regards the premises in controversy, to the same condition as if the conveyance to Crary had never been executed, and in law and equity it had this effect. In effect it restored the grantor, W. P. More, to his original position in regard to the land in dispute. He could now insist upon the invalidity for usury of the prior mortgage given by him, the same as if he had never sold and conveyed to Orary; and being so situated he made the mortgage to Taylor More under which the plaintiff makes her title. Thus it seems that W. P. More had the right to resist the enforcement of the prior mortgage on the ground that it was usurious at the time he made the mortgage to Taylor More, and the latter, as well as the plaintiff who makes title under him, may also do the same, because in privity in estate with the former.

Again the referee refused to find, and we cannot say that his refusal was erroneous, in view of the evidence submitted, bearing •on this question, that Crary covenanted, or agreed in and by the deed to him from W. P. More, to pay off and satisfy the prior mortgage given to Gilbert and Maynard, and if Crary had so covenanted or agreed, it is difficult to see how that would, under the circumstances of this case benefit Gilbert and Maynard in their defense. (Knickerbocker Life Ins. Co. v. Nelson, supra.) Admitting that Crary would have been estopped by his covenant or agreement on his part, to pay off and satisfy the mortgage, so long as he held the premises, when he and W. P. More canceled that obligation, and the latter was restored to his former position as to the premises, his right to insist upon the usury was'also restored to him, if indeed it can be asserted that this right did not continue in him at all times. We are of the opinion that the plaintiff might insist that the mortgage under which the defendants make their claim was void for usury.

It is further urged that the foreclosure by Taylor More of his mortgage, under which the plaintiff makes title, was a nullity. This objection to the plaintiff’s right of recovery is put on the ground that the notice of sale was not published in the county of Delaware, in which county the mortgaged premises were situated.

The notice was published in the village of Deposit, situated partly in the county of Broome, and partly in the county of Delaware, and-in that part of the village situated in the county of Broome. ’ It is provided, in the charter of the village of Deposit, that “ all notices or other publications required by law to be published in the county of Delaware, and all notices or other publications, required by law to be published in the county of Broome, may be published in any newspaper printed in said village, and shall be regarded, and shall have the same effect as if the same were published in the counties of Delaware and Broome, or either of them.” (L. 1858, ch. 17, § 6, p. 31; L. 1873, ch. 330, § 6, tit Y., p. 479.) This provision covers the case precisely. But it is insisted that this section occiirring in the village charter is unconstitutional, being in violation of section 16 of article 3 of the Constitution, which declares that “ no private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title.” The question here presented is not without some difficulties ; but we are of the opinion that the provision under examination does not come within the constitutional inhibition suggested. Yery manifestly it is not open to the mischiefs intended to be reached and corrected by this constitutional restraint upon legislation. There is no idea of surreptitious legislation connected with the provision here challenged. And indeed, the subject of it seems germane to village privileges and rights. It must be conceded that it was appropriate to provide, in the village charter, for all subjects and matters connected with the government of-the village, and its prosperity in the exercise of public business affairs. So industries might be promoted by appropriate provision in the charter, as a matter within the purview of legitimate legislation, having in view the prosperity and advancement of the citizens. Thus, it was held in People v. Briggs (50 N. Y., 553), that where the title of a local or private act expresses a general purpose or object, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act, and are germane to the title; and in this case Judge Churoh says: “It is not requisite that the most expressive title should be adopted, nor ¡should courts criticise too rigidly the details of a bill to find extraneous matter. Every presumption is in favor of the validity of legislative acts, and they are to be upheld, unless there is a substantial departure from the organic law.” This case is an instructive one on the subject under examination, and some of the cases •cited there are in point. (See also Harris v. People, 59 N. Y., 599.) The cases bearing on the question here presented are too numerous to admit of citation, but we think they do not establish .a rule rendering the provisions of the charter here challenged unconstitutional and void.

We are then brought to the conclusion that there is no insuperable difficulty in the way of a recovery by the plaintiff, on the facts proved: so be it, that the mortgage under which the defendants make their claim is, in point of fact, invalid for usury. This •question of fact the referee found against the defendants. After a careful examination of the proof bearing on this point, we cannot .adjudge that his finding is without evidence 'in its support, or that it is so clearly against the weight of evidence that we can hold it erroneous in law. In such case we must respect the conclusion of the trial court. (Roosa v. Smith, 17 Hun, 138; Roe v. Boyle, 7 Weekly Dig., 566.) We do not intend to be understood that, upon .a retrial, the question of usury would not be , open to the jury or referee upon the same evidence now submitted. Perhaps on this •evidence, and such other as shall be given on a retrial, a different conclusion maybe reached. We here give no intimation which ¡should control or affect a future hearing on the merits on this issue •of fact. What we mean to say is this: that it was'for the trial •court to weigh, apply and construe the evidence, and, inasmuch as we cannot with reasonable certainty see that a wrong conclusion .has been declared, we cannot adjudge it erroneous. We are not at liberty, as the case is presented on this appeal, to adjudge the finding contrary to the truth.

We must now examine the rulings of the referee on the rejection ■of evidence offered by the defendants.

The plaintiff gave evidence tending to show that the annual use •of the premises in controversy was worth $500; the taxes to be paid by the lessee. The defendant put in evidence the lease from Gilbert and Maynard to Deyo, under which the latter occupied, in which lease the rent was fixed at $525 for the year (lacking a few days), the lessee to pay the school and road taxes, and the lessors to-pay all the town, county and State tax levied on the premises. The defendants then put this question to one of the lessors: “"What are the net receipts under this lease ?” The question was-objected to and rejected. The defendants then offered to prove that the actual receipts of the rents and profits from the farm, after paying taxes and expenses, were only $325 annually, since the action was commenced. The offer was objected to and was also rejected. These rulings, in our judgment, were erroneous. As an item of evidence on the question of the value of the use and occupation of the farm, it was competent to prove what sum was actually received from it as rent. This, of course, was not conclusive evidence of the value of the use of the farm, but it was competent evidence on the subject. The agreed rent would be strong evidence of the real value of the use and occcupation. (Cary v. Gruman, 4 Hill, 625.) It is from prices offered, agreed upon and paid, that the value of property or of its use is to be determined, and such prices may be given in evidence to test the correctness and fairness of opinions. Indeed, opinions are made up either from public or private sales and contracts, as regards the value of property. Thus it is, that both public and private sales of property are admissible in evidence-to determine its true value. (Smith v. Griffith, 3 Hill, 333; Dixon v. Buck, 42 Barb., 74; Campbell v. Woodworth, 20 N. Y., 499; Gill v. McNamee, 42 Id., 44; Wells v. Kelsey, 37 Id., 143; Harrison v. Glover, 72 Id., 451; Hoffman v. Conner, 76 Id., 121.) The defendants then had a right to show the actual net receipts-under the lease, and the offer to show that the actual receipts of rents and profits from the farm did not, in fact, exceed $325, was-improperly rejected. It is suggested that the lease was made between the defendants. This fact was ground of criticism, but not ground for the absolute rejection of the evidence. It should be here remarked that this suggestion of the plaintiff’s counsel is answered by the facts in several of the cases cited. That the rejection of this evidence may have been injurious to the defendants, is apparent from the amount allowed against them, as damages for the use and occupation of the premises.

The defendants were also refused answers to the following questions put to Mr. -Gilbert, to wit: “ At the time you made the arrangement with More, did you believe the bonds were worth their face ? Did you at the time of making this arrangement have any intention of violating the usury laws ?” Such ruling was, in our opinion, erroneous. The alleged usurious agreement was made with Mr. Gilbert, and consisted in an asserted overestimate of railroad bonds which made part of the consideration of the mortgage- ■ debt. It must be borne in mind that there was no specified sum. of money offered or demanded as a bonus for the loaning of the money in this case; and in this consists the difference between the ease in hand and Fiedler v. Darrin (50 N. Y., 437). Where a bonus' is specified and agreed upon between the parties, whether of money or other valuable thing, the case is not open to the admission of evidence of a purpose or intent to violate the law, for in that case the law itself declares the unlawful intent. Such was the Fiedler v. Darrin case, cited. But where the act is equivocal in character, and the intent is directly in issue, it may be ascertained by direct questions, as was sought to be done in this case. Not that the answer would be absolutely conclusive, but it would be an item of admissible evidence. Such was the ruling in Thurston v. Cornell (38 N. Y., 281), a usury case. This case, too, was referred to with approval in Fiedler v. Darrin, supra. (See also Black v. Ryder, 5 Daly, 304.) The counsel in his brief in this case states the rule correctly, thus: that where there is a direct or express agreement to take money, evidence of the intent of the parties is not admissible', but where the transaction is equivocal, and the illegality of the act depends upon the intention of the parties, the intent must be ascertained in order to characterize the act, and in such case it is admissible to allow the party to testify as to his intention. This statement of the rule is fully sustained by the decisions in each of the cases above cited. Here the bonds were transferred at par value, and such value constituted part of the consideration of the mortgage. It was insisted that the stipulated price of the bonds far exceeded their real value: and their transfer at such price was but a device and cover for usury. So the question was, whether the sale of the bonds was Iona fide at the agreed price, or whether the sale was a mere device for obtaining unlawful interest. The question then resolved itself into one of intent. This being so, the defendants were entitled to an answer from the party in that regard. As was said in Thurston v. Cornell (supra), the answer of the party would not be conclusive, but would be proper “ to be weighed and considered with other evidence in the case, in passing upon the question of actual intent.” The questions referred to were improperly overruled.

It follows that there must be a new trial.

Judgment reversed, new trial granted, costs to abide the event, and reference discharged.

Follett, J., concurred.

Learned, P. J.:

I concur in what is said in the foregoing opinion as to the errors in the exclusion of evidence. It seems to me also, that the question of fact as to the contents of the deed to Crary might, as the .evidence appears, be properly reviewed in this court. But, if there is to be a new trial, it is not best to discuss that evidence here. And that question of fact should be considered entirely open.

I therefore concur in the result.

Judgment reversed, new trial granted, costs to abide event, and reference discharged.


author: Per Curiam :

text:
    STEPHEN F. PALMER, Jr., Respondent, v. PHENIX INSURANCE COMPANY, Appellant.

      Settlement of case — judge or referee cannot malee additional findings on — Code of Civil Procedure, § 1023.
    Under section 1023 of the Code of Civil Procedure, and the other sections thereof touching the subject, a judge or referee cannot be required or per-, mitted to make additional findings of fact or of law upon the settlement of the case, after his report or decision has been rendered.
    1S0 far as Rule 32 conflicts with these sections it is inoperative.
    Appeal from, an order made at a Special Term, denying a motion for a re-settlement of the case, and exceptions herein.
    Judgment in favor of the plaintiff having been entered upon bhe trial of this action by the court without a jury, the defendant's counsel proposed a case on which to review the judgment herein, in which he inserted twenty-two new findings of fact, and four new conclusions of law, which he had not requested the court to pass upon before the case was decided. The plaintiff proposed .an amendment striking all these findings out. Justice Tappan •allowed the amendment “ on the ground that no proposed findings were submitted to* the court before decision and judgment, and none can be made on settlement of the case.” The defendant then moved, before the same justice at Special Term, for an order ■•directing him to re-settle the case, and allow the proposed findings, •conclusions and exceptions. This motion was denied, and defend.aut appeals from the order denying it.

      Leslie W. Sussell, for the appellant.

      Edward G. James, for the respondent.
   Per Curiam :

We are of opinion that under section 1023 of the new Code, and other sections touching, the subject, a judge or referee cannot be required, or permitted, to make additional findings of fact or law, upon the settlement of the case, after his report or decision has been rendered. So far as Rule 32 conflicts with this section it is inoperative.

Present — Learned, P. J., Bocees and Westbrook, JJ.

Order affirmed, with $10 costs, and disbursements.


text:
    CHARLES ASHLEY, Respondent, v. JOHN TURNER, Appellant, Impleaded, &c.

      Bupplemmtm'y proceedings — the judgment debtor is mtitled to a written notice of an application for the appointment of a receiver.

      A defendant who has appeared before a referee and been examined, in pursuance of an order made in proceedings supplementary to execution, is entitled to a written notice of an application for the appointment of a receiver; a verbal notice that such an application will be made, given at the-close of the examination, is not sufficient.
    Appeal from an order made at a Special Term, denying a motion made by the defendant, to vacate an order appointing a receiver in supplementary proceedings.
    Upon the usual affidavit, Mr. Justice Tappan of the Fourth District made an order for the defendants to appeal’ for examination before a referee; and directed that all subsequent proceedings be had before Mr. Justice Mullin, of the Fifth District, where the judgment debtors resided. The order was duly served on the defendant Turner, at Harrisville, where he resided, and on the following day he appeared and was examined before the said referee. At the close of the examination, in the presence and hearing of both defendants, the plaintiff gave notice that he would apply for the appointment of a receiver on January 3, 1880. The referee, on the day of the examination, December 30,1879, made his report, which, with the requisite papers, were at once forwarded to Justice Mullin, who granted the order and returned the papers to the plaintiff’s attorneys.
    The order was obtained on January 3, but by some mistake, and without the knowledge of plaintiff’s attorneys, was dated January 11. It was not claimed that the defendants, or either of them, appeared to oppose the ajiplieation on January 3, or on any other day.

      John G. Fulton, for the appellant.
    The defendants were entitled to a written notice of the application for the appointment of a receiver. (Kemp v. Harding, 4 How. Pr., 178 ; Dorr v. Noxon, 5 Id., 29; Barber v. Johnson, 4 Abb. Pr., 435 ; Todd v. Orooh, 4 Sandf., 694; Riddle Supplementary Pro., 136, and Riddle Supplementary Pro., Supplement, 46, 47, 48.) Notices shall be in writing. (Code of Procedure, § 408 ; Code Civ. Pro., §§ 796, 797.)

      L. M. Soper, for the respondent.
    The notice of application for the appointment of a receiver was sufficient. The application is not a motion within section 402, Code of Procedure. (Leggett v. Sloem, 24 How. 479.) The practice is to give a notice of two or four days. (Riddle Supplementary Pro., 136.)
   Per Curiam :

On this appeal from the order denying the motion to set aside the order appointing a receiver, we cannot examine the irregularities alleged as to the prior order for examination.

If the examination had been before the judge himself who granted the order, then we see no reason why the plaintiff might not, at once, on the close of the examination, have applied for a receiver without any formal notice. But here the examination was before a referee, and the defendant was entitled to a notice of the , application subsequently made to the judge, for the appointment of a receiver. A legal notice must be in writing. No valid notice was given in this case. It is evident that it would be unjust to make an order which would transfer all of a man’s property to a receiver, without giving him an opportunity to be heard. Such, opportunity must be given in the usual manner, by a written notice.

The order appealed from is reversed, with $10 costs, and disbursements, and the motion to vacate the order appointing a receiver is granted, with $10 costs.

Present, Learned, P. L, Bockes and Westbrook, TJ.

Order reversed, with $10 costs, and disbursements, and motion, granted, with $10 costs.


author: Learned, P. J.:

text:
    CHARLES MAPLES, Respondent, v. ALEXANDER W. MACKEY, Appellant, Impleaded with EMORY D. ANGELL.

      Statute of limitations — when it is no defense in proceedings to charge a joint debtor not personally served,— Oode of Procedure, §375.
    In proceedings instituted under section 375 of the Oode of Procedure, to require one joint debtor, not originally summoned to answer the complaint, to show cause why he should not be bound by the judgment entered against his co-debtor, the fact that an action upon the original contract would then be barred by the statute of limitations constitutes no defense, provided that the statute had not run at the time the action was originally commenced against the defendant upon whom the summons was .served.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the trial of this action by the court without a jury.
    This proceeding was instituted under section 375 of the old Code. The defendant Mackey was summoned on "April 11, 1876, to show cause why he should not be bound by a judgment, entered in Tioga county, August 31, 1858, against his co-defendant and joint debtor, Emory D. Angelí. Issue was joined by an answer thereto, interposed by the defendant Mackey, in which he set up, substantially, a general denial, and the statute of limitations — the ■six years’ statute. The cause now comes into this court for the second time. It was first tried at the Broome Circuit in June, 1877, before the court, without a jury. The court found that the judgment, which was the basis of the proceeding, was invalid, and upon that ground alone ordered judgment for the defendant. But this court, on appeal from the judgment, ordered a new trial, holding that the judgment originally entered in the action was valid, and that on it the plaintiff had the right to institute this proceeding. (15 Hun, 533.)
    The second trial was had at the Broome Circuit in June, 1879, before the same judge, without a jury, who found and decided in favor of the plaintiff. On the second trial it was shown that .the defendants, Angelí and Mackey, were, on January 3, 1857, co-partners, under the firm name of Angelí & Mackey, doing business in the village of Owego, New York; that the said copartnershipcontinued until August 4, 1857; that on January 3, 1857, the defendants, by their firm name, drew their draft on the plaintiff for $200, payable to their own order, sixty days after date; that the draft was drawn in the firm name.by defendant Angelí, and indorsed in the film name by the defendant Mackey ; that the draft was accepted by the plaintiff for the defendants, and was at maturity paid by him from his own funds; that on or about August 9? 1858, the plaintiff commenced an action on the said draft against both of the defendants. The summons was served upon the defendant Angelí, in Otsego county, in this State, by a deputy sheriff, who delivered a copy of the summons to him. That the-defendant Angelí made the following admission of service, which, was indorsed on the summons in the action:
    “ I admit due personal service of a copy of the within summons. Dated August 9, 1858.
    “E. D. ANGELL.”
    No other proof was shown to have been made before the clerk, of the service of the said summons.
    That on the aforesaid admission a judgment was entered., August 31, 1858, in Tioga county, in form against both said defendants, for $220.94 damages, and $13.84 costs.
    It also appeared that the proceeds of the draft were used in the business of the firm, and for the benefit of the firm, and that the moneys so paid by the plaintiff have never been repaid. .

      B. I’. c& F. M. Mayham, for the appellant.

      Arthur More, for the respondent.
   Learned, P. J.:

When this case was before this court the first time, we held that the judgment against Amgell was not void by reason of the irregularities in the admission of service. (22 N. Y. Sup’m. Ct., 537.) And it appears now affirmatively by the evidence on the trial, that. Angelí was, in fact, served with the summons at the time when he .gave the admission. Jurisdiction, therefore, was obtained.

' By the old Code (§ 99), an action is commenced as to each defendant, when the summons is served on him or on a co-defendant, who is a joint contractor, &c. (See, for analogy, 2 B. S., p. 299, § 38.) Angelí & Mackey were joint contractors on this draft; and fhe money received thereon was used in the firm business. The summons was served on Angelí August 19, 1858, and he was a co-defendant with Mackey. Therefore, the action was on that day commenced as to Mackey. If, then, the plaintiff had not entered ■any judgment the action would have remained pending; and the statute would not have been a bar. (Garland v. Chattle, 12 Johns., 430.) And, therefore, we cannot see how, if judgment had not ’been entered, and if the summons had subsequently been served on Mackey more than six years after the draft had become due, Mackey could have set up the statute of limitations. (Evans v. Cleveland, 72 N. Y., 486.)

This may throw some light on the construction to be given to the sections 375 et seq. In this present case judgment had been perfected under section 136, subdivision 1. Then a summons was issued under section 375 against Mackey.- He was then authorized under section 379 to deny the judgment; to set up any defense thereto which had arisen subsequently ; and also to make any defense which he might have made to the action if the summons had been served on him at the time when the same was originally commenced, Now, at the time when the action was originally commenced, that is, on August 19, 1858, Mackey could not have made the defense of the statute of limitations. The other-defense, that the money was for the individual benefit of Angelí, is disproved. No defense has arisen subsequently to the judgment. It was shown that the present proceeding was commenced within twenty years thereafter. And the plaintiff was entitled therefore to his judgment. (Gibson v. Van Derzee, 47 How. Pr., 231; Broadway Bank v. Luff, 51 Id., 479; White's Bank v. Ward, 35 Barb., 637.)

The defendant insists that after dissolution the act of one partner cannot bind the other. That is' true, but does not apply. It ■was not any act or promise or acknowledgment of Angelí which bound Mackey. It was the service of a summons on Angelí by ■the plaintiff which stopped the running of the statute of limitations. It it be said that the admission of service by Angelí in the judgment roll was not conclusive on Mackey of the fact of service, that might be admitted. Perhaps Mackey might be allowed to j>rove, as a matter of fact, that the summons was not served on Angelí at the time when it purports to have been. But no such proof was offered. On the contrary, it was proved affirmatively upon the trial that the summons was served on Angelí at the time .named, at least, to the best of the witness’s recollection.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bookes and Follett, JJ.

■Judgment affirmed, with costs.


text:
    In the Matter of the Application of DOUGLASS BOARDMAN, Respondent, v. THE BOARD OF SUPERVISORS OF TOMPKINS COUNTY, Appellant.

      ■liability of an agent to taxation upon moneys held by him for investment — 1 B. 8., 6 ed., 934, § 5, as amended by chapter 76 op 1851, § 2.
    .Section 5 of title 2 of article 1 of chapter 13 of part 1 of the Revised Statutes, as amended by section 2 of chapter 76 of 1851, provides that “ every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him including all personal estate in his possession or under his control as agent, trustee, •guardian, executor, or administrator .... but the products of any ‘State of the United States, consigned to agents in any town or ward of ■this State, for sale on commission, for the benefit of the owner thereof, shall not be assessed to such agent, nor shall such agents of moneyed corporations or capitalists be liable to taxation under this section for any moneys in their possession, or under their control, transmitted to them for the purposes of investment or otherwise.”

      Jffeld, that the exception contained in the latter part of the said section only applied to agents holding moneys transmitted to them by foi'eign corporations or capitalists, and that a resident of this State was liable to be assessed for- and taxed upon moneys and securities in his possession, and under his control, which had been transmitted to him by another resident-of the State for the purpose of investment.
    Appeal from an order of the Tompkins 'County Court, adjudging that a certain tax heretofore assessed against the petitioner as-agent was illegal and unauthorized by law, and directing the Board of Supervisors of Tompkins county to refund to the petitioner the-amount thereof, to wit: $348, with interest from January 14,1880.
    The tax referred to was collected upon an assessment against the-petitioner as agent for $12,500, personal property, made by the assessors of the town of Ithaca, where he resided. At the time this-assessment was made, he had in his possession, or under his control at Ithaca, personal property of the value of $12,500 and upwards, consisting of bonds and mortgages, running in his own name as mortgagee, in which he had invested moneys belonging to* his two sisters, who resided in Monroe county in this State. These-securities he had taken and held as the agent of his sisters.

      Wm. N. Noble, for the appellant.

      Berna/rd Mooney and F. M. Fvnoh, for the respondent.
   Learned, P. J.:

The facts sho-w that two sisters of the petitioner, residing in. Monroe county, had sent him money to invest for them on bond and mortgage. He invested it for them often taking the securities-in his own name, but allotting to each her securities; setting them apart to each on his books, whenever the securities were in a sufficient or convenient form for division; making the proper entries on his-books, showing the nature and amount of the securities; after which time the securities were the sole and only property of the sister to-whom they were thus set apart. The petitioner had no interest therein or title thereto, except for the purpose of managing and investing, and has been subject to the orders of his sisters in reference thereto.

The statute requires that every person be assessed in the town,, &c., “ for all personal estate owned by him, including all personal estate in Ms possession or under Ms control as agent, trustee, guardian, executor or administrator.” These bonds and mortgages-were in the possession of the petitioner. They were under his control. He could assign or transfer them. True, in doing this, he would be accountable for the avails. So would an executor.

They were in Ms control as agent. In Lord v. Arnold (IS Barb., 104, cited by the petitioner), Smith only had possession of certain land contracts of Lord, with power to receive the consideration, and was little more than a collecting attorney. At any rate, the part of the section now under consideration has recently had a judicial construction. In the case of Williams v. Supervisors (78 N. Y. 565), Judge Rapallo, in the prevailing, opinion, says: “ This provision, if standing alone, would doubtless authorize the assessment complained of.” We may then say that, aside from the exception contained in the latter part of the section, the petitioner, as agent, was properly assessed.

But it is urged on his behalf that he comes within the following exception: “ But the products of any State of the United States consigned to agents in any town or ward of this State for sale-on commission, for the benefit of the owner thereof, shall not be assessed to such agent; nor shall such agents of moneyed corporations or capitalists be liable to taxation under this section for any moneys in their possession or under their control, transmitted to. them for purposes of investment or otherwise.” The petitioner insists that the words, “ the products of any State,” include the products of this State, and therefore that the words “ suoh agents of . . capitalists ” include agents of capitalists resident in this State. Ho therefore insists that the decision in the case of Williams v. Supervisors is decisive of the present.

On examination of the prevailing opinion in that case, it will be-found, however, that the court construed the exception above cited as intended to “encourage and even invite the sending of foreign-capital here for investment.” And in connection with this exception the learned judge cited in his opinion 1 R. S., p. 419, § 3, which exempts from taxation bonds and mortgages, &c., belonging I to non-residents of the State, sent here or deposited for collection. And referring to both these parts of the statutes, the learned judge says that they are “ designed to afford to the foreign capitalist who invests his funds here, every conceivable protection. His capital •cannot be taxed while awaiting investment. If the securities are taken by him out of the State, he may with impunity send them •back to an agent for the collection of principal and interest, and if, instead of being removed from the State, they are deposited here with an agent for collection, they are equally free.”

The dissenting opinion of Judge Earl in the same case seems to take the same view, viz.: that this exception has reference to money transmitted from other States to agents here. And it ■seems to us that this is the fair meaning. It will be noticed that the language of the exception is not such as to provide that these products and these moneys shall be assessed to the owner where he lives. But it merely excepts them from assessment to the agent. If it bad been intended to apply to products or moneys belonging to residents of the State, the section would probably have provided that they should be assessed to the owner. But inasmuch as only foreign products and foreign moneys were meant, it was necessary •only to provide that the agent should not be assessed; and thus to induce the sending into the State of foreign products and the moneys of non-resident capitalists.

It seems to us, therefore, that the prevailing opinion in Williams v. Supervisors, cited by the petitioner, shows that the case here presented is not within the exception of the statute. Here is no foreign capital. The moneys are within the jurisdiction of the State, and taxable by the State, and the question is simply in what town shall they be assessed? Now, the policy of our system is to assess the trustee, not the beneficiary; as is shown in section 5, above cited. And there would be no reason for so strange an exception to this policy as is contended for by the petitioner. By a previous sentence in this section, it is said: in no case shall property so held under either of these trusts be assessed to any other person;” that is, any person other than the agent, trustee, &e. So that, on the petitioner’s, claim, the property in question is not to be assessed at all.

The construction which we give makes the system consistent.. Foreign capital ought not to be assessed at all in this State; and, therefore, agents holding foreign capital or securities are not to be assessed therefor. (Williams v. Supervisors, ut supra.) Capital of residents of the State should be assessed. And it is to be assessed to the agent, trustee, &c., and not to the person beneficially interested. The reason is, that it can be more surely reached in the agent or trustee’s hands, and that the beneficiary may not have the means with which to pay the tax.

We think that the order should be reversed, with $10 costs, and printing disbursements.

Present — Learned, P. J., Bookes and Follett, JJ.

Order reversed, with $10 costs, and disbursements, and motion denied, with $10 costs.


text:
    JONATHAN R. POWELL and GEORGE W. LAY, Executors, &c., of REUBEN LAY, Deceased, Appellants, v. ANNA DEMMING and others, Respondents, and EMELINE FRISBY, and GEORGE W. LAY, and RAYMOND LAY, Administrator, Appellants.

      Will- — when an action to obtain a construction thereof will not lie. _
    Executors and trustees can only maintain an action to obtain a construction of a will in those cases in which some continuing duty — some trust which requires and will require action for some time to come — is imposed upon them thereby.
    The fact that an executor is about to close up the estate, and that the parties interested therein do not agree as to the construction to be given to certain , provisions of the will, and as to the distribution of the property thereunder, does not authorize the executor to maintain an action to obtain a construction of the will; such questions should be raised and settled upon his final accounting before the surrogate.
    Appeal from portions of a judgment entered upon the trial of this action, by the court without a jury. The action was brought by the executors of Reuben Lay, deceased, to obtain a judicial construction of certain portions of his will.

      The will contained among others the following provisions :
    “ Second. — On the decease of both my said sisters, Polly and Lucinda, I direct my executors, hereinafter named, to distribute my said property according to the following bequests, viz.:

      “ Fwst. — I devise and bequeath to my nephew, George W. Lay* and my niece, Emeline Frisby, wife of Lewis Frisby, my said dwelling-house and farm, with their appurtenances, now occupied by me, and situated in Chatham, together with all the vehicles, stock and implements, and everything, of whatever name or nature, appertaining thereto, connected with my farm and household, share and share alike.
    “ Second. — I give and bequeath to my niece, Maria Peck, wife of Ralph Peck, and to my niece, Ann Demming, wife of Frederick Demming, and to my nephew George Frown, and to my said nephew’s son, George Frown, Jr., he having had the misfortune to have lost a leg, and to my nephew, Solomon Ferguson, and to Frank Lay, the youngest son of my nephew, George W. Lay, each and severally, the sum of five hundred dollars apiece, and to my nephew, Addison Lay, the sum of two hundred dollars.
    “ Thwd. — I give and bequeath to the above-named legatees, share and share alike, all the residue of my estate, real, mixed or personal, of which I shall die seized and possessed, or to which I shall be entitled at the time of decease.”
    That questions as to the construction of the will, which the parties sought to have decided, were the following:
    “ First. — Do the following articles, mentioned in the inventory, pass under the first subdivision of the second clause of said will to George W. Lay and Emeline Frisby, therein named, or do they pass, under the residuary clause contained in the third subdivision of the second clause of said will, to the legatees therein mentioned ?
    One silver watch,......$5.00
    One county map,.....3.00
    One double-barrel gun, .... 10.00
    120 pieces barn siding,.....20.00
    Planks and boards, 200 ft., .... 5.00
    Lot of old cider-mill plank, .... 4.00

      300 ft. oak joist and cart-body timber, . $9.00
    80 bushels corn in the ear, .... 80.00
    Planks and boards, side of wall, . . . . 3.75
    50 ft. joist, in carriage-house, . . . 1.50
    Lot of old lumber,.....1.00
    Lot of dressed floor plank, .... 1.80
    420 ft. pine boards, . .... 10.00
    Ox yoke timber, 3 planks, &c., . . . 2.00
    100 bushels rye, in barn, . . . .110.00
    150 “ oats, “.....90.00
    3 tons rye straw, at $18, . , . . . 54.00
    2 “ oat “ “ $15, .... 30.00
    12 “ hay in barn, at $20, . . . . 240.00
    5 “ “ and stalks in shed, . . . 75.00
    3 “ “ “ “ “ carriage house, . 45.00
    21 stacks hay in upper meadow, . . . 105.00
    1 “ “ “ lower “ ... 45.00
    20 bushels potatoes in cellar, 50e., . . 10.00
    750 lbs. pork in bbls. in cellar, at $9, . . 67.50
    6 acres rye on ground,.....60.00
    1 ash log, near road,.....2.00
    ' Total, $1,089.55
    “ That all of said articles were, as plaintiffs are informed and Lelieve, upon the said testator’s farm, or appertaining to, or connected with it, or with his household, at the time of his death.
    “ Second. — Do all of the legatees named in said will, and their personal representatives, share in the benefit of the ■ residuary •clause contained in said will, or are the representatives of Lucinda Lay and Mary Lay (sometimes called Polly Lay) to be excluded from sharing in the benefit of said clause, or are George W. Lay and Emeline Erisby to be excluded from sharing in the benefit of •said clause ?”

      Wilson M. Powell, for the plaintiffs, appellants.

      Psselstyn de Wliitbeck, for Raymond Lay, administrator.

      C. JP. Collier, for the defendant, Brown.

      J. W. Rider, for Frisby and George W. Lay.

      William H. Willits, for defendant, B. Peck.

      McClellam, <& Brown, for defendant, S. Wilbor, executor.
   Per Curiam :

We see nothing which justifies the plaintiffs in having brought this action. The matter relates merely to the division of money among those claiming it. In regard to the rye, oats, &e., there is no allegation that these exist in specie-. Whatever the executors, have to divide must be in money or its equivalent.

There is no continuing trust. Nothing is to be done but to distribute the property. This is a matter properly within the control of the surrogate on the final accounting ; proceedings for which had been instituted before this action was commenced.

Executors are not to be permitted to bring such a suit as this on the pretense that a construction of the will is needed. Of course, in one sense, a construction of the will is required whenever an executor settles his accounts. But certainly it is not to be allowed that an action for the construction of the will may be brought whenever an executor is about to account and the parties interested do not agree. It is when there is some continuing duty, some trust which requires and will require action for some time to come, that executors or trustees may bring an action to obtain a construction of a will; that is, to obtain advice as to their duty. Such suits are not to bo encouraged. They burden the estate with costs. That has been the case here. The costs amount to more than $910, to be j>aid' out of the estate. While, if the matter had been brought up on the accounting before the surrogate it could have been disposed of quickly and with little expense.

It is' the duty of courts to scrutinize such actions as this. Where all the costs are to be paid out of the fund, or the estate, there is great liberality among opposing counsel. The extra allowances in this case reach $550.

We think that the court should have refused to entertain the action. It must be remembered, that an action of this kind is, in a certain sense, discretionary. It is one where, out of favor to trustees or sometimes to cesúuis que úrust, the court will give advice instead of granting a remedy. Such actions should not be extended to unnecessary instances. "We think tbe present action unnecessary and improper. If the defendants had taken that position the complaint should have been dismissed with costs. As they did not do so, but themselves encouraged the litigation, the complaint should now be dismissed without costs to any party in this court or in. th& court below.

Present — Learned, P. J., Bocees and Poelett, JJ.

Judgment reversed and complaint dismissed, without costs to any party.


author: Learned, P. <1.:

text:
    In the Matter of the Petition of EMMA LAMPMAN and others, Infants.

      Proceedings to mortgage an infant's real estate for payment of its debts — the special guardian cannot dispute the rabidity of debts he is directed to pay — when he is not protected by an order of confirmation — when he is liable for interest— order directing the mortgage, and the report of the referee, should specify the debts to be paid.

    Where an order is made requiring the special guardian of an infant to mortgage its real estate and apply the proceeds thereof to the payment of certain specified debts, he cannot, after having received the money, refuse to pay one of -the said debts, on the ground that the infant is not liable therefor.
    When such special guardian renders an account of his proceedings, and procures an order confirming his report, without notice to the debtor whose claim he has knowingly refused and neglected to pay, such order furnishes no protection to him, and the same will, on the application of the creditor, be vacated, and the guardian will be directed to pay to such creditor his proportionate share of the proceeds of the mortgage.
    In sucFa case the guardian should be required to pay interest on the amount which the creditor was entitled to receive, from the date of the order confirming his report.
    An order directing the real estate of an infant to be mortgaged for the payment of its debts should contain a statement of the objects to which the avails thereof are to be applied, and should not refer to any other paper for a specification of such objects.
    The report of the referee in such proceedings should also specify such objects, and should not refer to tbe evidence for a statement thereof.
    Appeal from an order made at a Special Term, denying .an application to set aside an order confirming tbe referee’s report in the above entitled proceeding for the mortgaging ■of the infants’ real estate. It was claimed that this appellant, one Sarah M. Ten Broeck, was a creditor of the estate of Henry Lampman, deceased, and of the infants who are the petitioners, his children and heirs, and of Mary E. Lampman, -their mother, who had a dower right in the premises mortgaged. Her debt consists of a note for $600, made by the administrators in their individual names, but for the benefit of the- estate, which was benefited by the moneys, and out of which the administrators agreed it should be paid. In the proceedings taken to mortgage the interest of the infants in .the property, this claim was proven against the estate, and by the report of the referee it was shown to be proven and recommended to be paid. By the order of this court, made February 23,1877, on such report, the special guardian was directed to pay this claim. By the referee’s final report, ■dated February 28, 1878, and schedules, it did not appear to have been paid, as the $4,000 realized was absorbed by the accounts reported paid by the referee, some of which, it was claimed, were not directed to be paid by the order of this court. This is the report which was confirmed April 4, 1878, which order of confirmation is now sought to be set aside and vacated.

      James D. Yarn, Hoemembergh and J. N. Fiero, for the appellant.

      Horace F. Pech, for respondent.
   Learned, P. <1.:

The only question which we have to consider is whether the special guardian applied the avails of the mortgage as he ha'd been directed to do by the order which authorized him to execute it. Whether or not the ■ order authorizing the mortgage was wisely granted; whether all the debts were such that the court should Ihave authorized their payment; these and similar questions are not liere. The special guardian cannot urge, as an excuse for not obeying the order under which he acted, that the court ought not to have made it.

The proceedings are not well conducted. For the order authorizing the mortgage ought, in itself, to have specified the objects to which the avails were to be applied, without requiring a reference to other papers. But the order refers to the report of the referee Tor a specification of these objects. And the report of the referee is itself improperly drawn; as it refers to the evidence for a statement of these objects, instead of stating them in the report itself. But, notwithstanding this imperfection in the papers, an examination of the evidence shows, beyond all questions, that the note held by Mrs. Ten Broeck is one of the debts, or claims, for the payment of which the money was to be raised by this mortgage. The note held by Mrs. Ten Broeck was in form the note of Mrs. Barnpman. But, in this respect, it was just like the other notes, which were to be paid with these avails. And no matter whose mote it was, the court had decided that the special guardian was to borrow money and pay it, among others. He borrowed the money; he paid the other notes, and he did not pay this. For this misconduct he shows no excuse. The formal order of confirmation of his Report is no protection ; for it was granted without notice to her. Nor can that order be considered, in any sense, a modification of the former order, which directed him to pay Mrs. Ten Broeck. Such an order of confirmation is too often granted almost of course. And the special guardian knew, when he obtained it, that he had not discharged the duty imposed upon him by the former order. To have procured an order confirming his report, when he knew that he had violated his duty, was only another act of misconduct in his ‘trust.

After deducting the payments for attorneys’ fees, &c., ordered to be paid, the residue of the avails, $3,575.25, if distributed pro raid among the debts ordered to be paid, would be ninety per cent, thereon. This proportion Mrs. Ten Broeck is entitled to, upon iter debt of $684; and it will be $615.60.

The order appealed from must be reversed, with $10 costs, and printing disbursements against tlie special guardian, and tbe motion to vacate tbe order of confirmation granted with $10 costs, and the special guardian must be ordered to pay Mrs. Ten Broeck tbe said, sum of $615.60, with interest, as below stated.

Tbe special guardian would, of course, have been entitled to some short time for making tbe payments, before be could be chargeable with interest upon the funds in bis bands. But be certainly bad time sufficient before tbe date of the order of confirmation. That date also may be treated as tbe time of a misappropriation by him. He must therefore pay interest on this sum from, that date, viz.: from April 4, 1878.

Present — Learned, P. J., Bocees and Westbrook, JJ.

Order reversed, with $10 costs, and disbursements, and motion granted.


text:
    BENJAMIN W. WILLSE, Appellant, v. STEPHEN F. WHITAKER, Jr., and NELSON W. WHITAKER, Respondents, Impleaded with STEPHEN F. WHITAKER.

      Evidence — pm'ol evidence varying the terms of a written inst/rument is inadmissible.

    In this action, brought against the maker and accommodation indorsers of a promissory note, dated January 28, 1879, and payable one day after date, the indorsers were allowed, against the plaintiff's objection and exception, to prove that they indorsed the note under a verbal agreement with the-plaintiff, to whom the note was to be delivered, that they should have until the first of the following Juno to pay it.

      Held, that the evidence was directly inconsistent with, and affected the terms of the note, and that the court erred in admitting it.
    Appeal from a judgment in favor of tbe defendants, entered upon the trial of this action by tbe court without a jury.

      Johnson <& Otwver, for tbe appellant.
    Tbe evidence of the parol agreement was erroneously admitted. (Thompson v. Ketolv

      um, 8 Johns., 190; 2 Parsons on Bills, 21; 1 Greenl. Ev., §. 277 Edwards Bills and Notes, 313, 125; 1 Daniel on Negotiable Im struments, 2 ed. 512, et seq.; Hall v. Newcomb, 7 Hill, 116 :. Bucldey v. Bentley, 18 Barb., 283 ; Norton v. Ooons, 6 N. Y.y 33 ; Potter v. Tollman, 35 Barb., 182; Pa/rleer v. Qit/y of Syracuse, 31 N. Y. 376 ; Fossin v. Hubbard-, 55 Id., 165 ; HaXIÁday v*. Hcvrt, 30 Id., 171; Johnson v. Oppenlieim, 55 Id., 293.)

      Gumming & Hand, for tbe respondents.
    The court properly admitted tbe evidence as to the par’ol agreement for the extension, of tbe time of payment of tbe note. (Edwards on Bills, 186; Sey-> mow.r v. Gowing, 1 Keyes, 535 ; Miller v. Gamble, 1 Barb., 186 Benton v. Martín, 52 N. Y., 570; Prentiss v. 'Gh'aves, 33 Barb.,. 621; Bruce v. Wrght, 3 Hun, 518; Byles on Bills, 96, note 1; Latimer v. Hill, 8 Hun, 171; Boolestamer v. Jayne, 60 N. Y., 116j Boss v. Fspy, 66 Penn., 187; Susquehanna Banle, v. Fvans, 1 Wash. C. Ct., 180 ; Johnston v. Mawtínus, 1 Halst., 111.)
   Learned, P. J.:

This is an action on a promissory note, dated January 28, 1879-, payable one day after date. Tbe indorsers defend, and proved that they were accommodation indorsers. They also proved that when they indorsed the note they did so under a parol agreement with tbe plaintiff, to whom tbe note was to be delivered, that they should have until the first of June then following to pay it. The court held that tbe action could not be commenced before June 1, 1879, and dismissed the complaint as to these defendants.

The agreement given in evidence was directly inconsistent with and affected tbe terms of tbe note. (Johnson v. Oppenheim, 55 N. Y., 293; Chapin v. Dobson, 9 W. Dig. 66.) The note was payable one day after date. Tbe agreement proved was that it should be payable as to tbe indorser tbe first of June then next. Tbe defendants might as well have been permitted to prove that they were to pay only $10 on tbe note instead of $1,030; or that they were to pay it at New York instead of paying it at Binghamton. (Edwards on Bills, 118, 313, and cases there cited.)

It is familiar' doctrine that an accommodation party may show.,. except as against a Iona fide holder for value, that a note has been diverted from its use for which it was made. That does not affect the terms of the note; but shows that it was never a valid instrument. Such is the case of Prentiss v. Graves (33 Barb., 621), cited by defendants, and such are many', others which might be cited. So, in the case of Bookstaver v. Jayne (60 N. Y., 146), the indorser did not attempt to disprove the terms .of the note. But he set up the breach of another affirmative agreement, viz.: to discontinue a certain action against the maker; and this was held to be a defense. Grierson v. Mason (60 N. Y., 394), holds only that evidence could be given, showing that a certain writing was not a contract between tfie parties. Benton v. Martin (52 N. Y., 570), was a case of the same general character. The parol evidence was not received to alter the meaning of the draft, which on its face bore the conditions on which it was delivered. The conditions had reference •to other matters than the contract expressed in the draft itself. The case of Seymour v. Cowing (1 Keyes, 535), was where it was proved by parol that certain writings, in form notes,.were in fact memoranda. That parol evidence avoided the. writings. It did not change their effect.

The alleged oral agreement was not a distinct and separate agreement collateral to the indorsement. But, if made, it was an oral agreement varying the terms of the written contract of indorsement, and it should not have been received in evidence.

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

Present — Learned, P. J., Bocees and Folebtt, JJ.

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