text:
    In the Matter of the Estate of Eli B. Smith, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Will—Legacy—Payment of income by trustee to beneficiary.
    The will of testator directed the trustee named to receive the income, pay taxes and other necessary expenses and pay the residue over and apply it to the support and maintenance of the cestui que trust. Held, that it was not the intention of the testator to accumulate the income; that the cestui que trust was entitled to the balance after payment of the expenses mentioned, and that a direction by the surrogate that the same be paid to her every six months was reasonable.
    Appeal by the testamentary trustee from a portion of the surrogate’s decree of Erie county.

      Spencer Clinton, for app’lt; Franklin D. Locke, for resp’t.
   Corlett, J.

Eli B. Smith, of the city of Buffalo, made a will of November, 1876. In September, 1877, he made a codicil, and in April, 1883, executed another codicil, upon which the questions involved in this appeal arise. The will and codicils were admitted to probate in September, 1888.

This proceeding was commenced in the form of a petition by Helen S. McGrillivray, a daughter of the testator and beneficiary under the will and codicils of the deceased. Such proceedings, were had that the surrogate found a balance of $232.42 of income in the himds of the trustee, which he directed should be paid over to the petitioner after deducting fees. The decree further directed the trustee to pay to the petitioner semi-annually the net income which came into his hands, less his commissions and expenses, and less such part thereof as he should during the six months have applied to her use and maintenance in accordance with the terms and provisions of the codicil The trustee, Edward 0. Hawks, appealed from the above portion ■of the surrogate’s decree or order.

The codicil in question directs the trustee to receive the income and apply the same, first, in the payment of taxes, insurance, repairs, and other necessary expenses, and to pay the residue over and apply it to the support and maintenance of the respondent herein. The codicil manifestly makes a distinction between the corpus of the estate and the income. Under certain circumstances the trustee could use the principal for her benefit, but it was manifestly the intention of the testator that the whole of the income should be used for her support and that of her family as it accrued. It was not the intention of the testator to accumulate the income. A provision of that kind would have been void. 2 R S, 726, §§ 37, 38 ; 773, §§ _3, 4.

The decree of the surrogate directing the income to be paid to the petitioner every six months was reasonable. Code of Civ. Pro., § 2472, subd. 3.

The trustee has power to make direct payments of the income for the benefit of the respondent; he is also required to pay taxes, insurance, etc. She would be entitled to receive the balance. It was proper that the surrogate should direct the times when those balances should be paid so as to prevent accumulation and relieve the trustee from doubt or embarrassment

It was the intention of the testator not to allow the petitioner’s husband to have any control over his daughter’s share of the property, nor did he desire to have any portion of it used in business enterprises, but it was not his purpose to prevent the income from being applied to the respondent and her family as it accrued.

There is no claim that she does not need the whole of the income for those purposes. The codicil vests in the testamentary trustee discretionary power over the corpus of the estate, but the income is directed to be paid over to, or used for the benefit of the petitioner, and his discretion in that respect was limited to the mode of payment.

The portion of the order appealed from must be affirmed.

Order affirmed, with costs payable by appellant personally.

Dwight, P. J., and Macomber, J., concur.


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of Byron D. McAlpine et al., Adm’rs of Henry S. Potter, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Executors and administrators—Commissions—Code Civ. Pro., § 2736-When executors account for income which they are required annually to pay over and account for, only one commission can be allowed unless the actual income exceeds $100,000. If it does not amount to that sum, § 3736 of the Code does not apply, no matter how much the principal may be.
    3. Same.
    By the will the sum payable to the distributees was the net income, and no annuity was made payable in any event irrespective of earnings. Held, that the commissions should be charged upon the income and not on the corpus of the estate.
    Appeal from a decree of the surrogate of Monroe county made June 27, 1890.
    The executors appeal from certain portions of such decree; and Charles B. Potter and Albert Potter, contestants of the account, from other portions thereof. The facts sufficiently appear in the opinion.

      Spencer Clinton, for app’lts, the executors; S. D. Bentley, for app’lts, the Messrs. Potter.
   Macomber, J.

The appeal of the executors rests upon the contention made in their that they were entitled to commissions as trustees under the will of the late Henry S. Potter, their duties as executors, distinctively, having, as it is claimed, expired. But this court has, in the case of this estate, decided to the contrary in a decision reported in 15 N. Y. State Bep., 532. We cannot, therefore, regard this question as an open one. This part of the decree must consequently be affirmed.

Several exceptions have been filed to the determination of the learned surrogate in behalf of the other appellants. After an examination of these objections, we are of the opinion that they were correctly determined by the surrogate in the decree now before us or were necessarily included in the judgment of this court above adverted to, excepting the allowance made to the executors for commissions upon the income of the estate. There has been allowed the sum of $6,654.80 to the three executors for receiving and paying out the income, and the same has been reckoned upon the authority of § 2736 of the Code of Civ. Pro., which provides “ that where the value of the personal estate of the testator is one hundred thousand dollars, or more, over all the debts, each executor or administrator is entitled to the full compensation allowed by law to a sole executor or administrator, etc.”

No accounting has been had by the executors of the income of the estate, but an account of the same has been kept by them, and such income was paid out semi-annually, in pursuance of the terms of the will.

By the findings of the surrogate, in the year ending February 1, 1885, the total amount of the income is stated to be $104,667.07. In his special findings, proposed by the counsel for the contestants of the account, such income is stated to be $99,628.85, and it is further found specially by him that the gross income of the estate collected in any year since the testator’s death down to the time of the filing of this account never reached so high a sum as $100,000. The obvious explanation of the discrepancy between the formal findings and the special findings is that in the former the income earned was stated, and in the latter the income actually received was alone put clown.

As the executors would not be chargeable, without fault on their part, for the loss of the income earned and not collected, so they cannot be deemed to be entitled to commissions upon a greater sum than for the moneys actually handled by them. Even if such income had reached the limit of $100,000 annually, yet under the authority of the case of Savage v. Sherman, 25 Hun, 307, three sets of commissions would not be allowed. But under the facts found ,and contained in the appeal papers before us we do not feel called, upon to express any opinion as to whether, had the estate netted a yearly income of $100,000, each of the executors might receive full commissions provided by the section of the Code referred to.

In the case of Matter of Willets, 112 N. Y., 298; 20 N. Y. State Rep., 735, it was held “that when trustees" (or executors) “account in reference to income which they are required annually to pay over and account for, no matter how much the principal may be, or how much the estate of the decedent may have been, § 2736 of the Code does not apply unless the actual income exceeds $100,000, and that more than one commission can be allowed only in case the sum upon which commissions are computed amounts at least to $100,000.” This case must be deemed to be conclusive in favor of the appeal of the contestants. Only one commission can be allowed, and the same is chargeable upon the income, and not against the corpus of the estate. The money was disbursed in pursuance of the will directing the net income of the estate to be paid to certain persons. There was no annuity made payable in any event irrespective of earnings, except in one unimportant particular. The sum payable respectively to the distributees was the net income, and consequently chargeable with all the necessary expenses of administering the estate year by year. Whitson v. Whitson, 53 N. Y., 479.

The decree should be modified in respect to this single item, and so modified affirmed, with costs to all the parties payable out of the income fund.

Dwight, P. J., and Corlett, J., concur.


author: Dwight, P. J.

text:
    In the Matter of the Application of The Bank of Attica to change its corporate name.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.

    1. Banks—Change of name.
    There is no general rule by which to measure the degree of similarity to be allowed in the names of two banking corporations. On application for a change of name, the question of similarity of the proposed name to that of another corporation simply addresses itself to the good sense and sound judgment of the court whether the similarity is so great that the assumption of the proposed name would be likely to prejudice the rights or the interests of the other corporation.
    3. Same—Similarity.
    There is no such similarity, either to the eye or ear, in the two names, “Buffalo Commercial Bank,” and “-Bank of Commerce in Buffalo,” as to threaten, in the proposed use of the former, any substantial injury or inconvenience to the bank bearing the latter name.

      Appeal by the Bank of Commerce in Buffalo from an order of the Brie special -term authorizing the petitioner to assume the name of the “Buffalo Commercial Bank”

      George Clinton, for app’lt; Spencer Clinton, for resp’t.
   Dwight, P. J.

The application was in all respects in accordance with the provisions of chapter 518 of the Laws of 1887. The petitioner, a banking association incorporated under the laws of this state by the name of “The Bank of Attica,” was originally located at the village of Attica, in Wyoming county, but, many years since, changed its place of business to the city of Buffalo, where it has ever since carried on the business of banking, without change of name. In 1889 another banking association, located at the village of Attica, was incorporated, under the laws of this state, by the name of “The Bank of Attica in Attica.” There were obvious reasons for a change of the name of the petitioner, and the new name chosen by resolution of its board of directors was “The Buffalo Commercial Bank.” Its application for leave to assume that name was contested by the Bank of Commerce in Buffalo, on the ground of the similarity of the two names. The order was granted at special term and the contestant appeals to this court.

Undoubtedly the petitioner would not be permitted to assume a name identical with that of any other bank or banking association in the same place, or so similar thereto as to give rise to confusion of the two names, or in any manner to deprive the other of the benefit of the prestige or “ good will ” which attaches to an established name. It is obvious that no general rule can be suggested by which to measure the degree of similarity to be allowed in the names of two corporations of this character. The question simply addresses itself to the good sense and sound judgment of the court whether, in the particular case, the proposed new name of the petitioner so nearly resembles that of the bank making the objection as that its assumption and use by the former would be likely to prejudice the rights or the interests of the latter.

The language of the statute in this respect is as follows: “If the court to which the application is made shall be satisfied * * * that there is no reasonable objection to such corporation changing its name, it may make an order authorizing it to assume the proposed new corporate name.” Laws of 1887, chap. 518, § 3. This plainly submits the decision to the careful discretion of the court.

In this case we can only say that our judgment concurs with that of the court at special term. There seems to us to be no such similarity, either to the eye or to the ear, in the two names, “Buffalo Commercial Bank” and “Bank of Commerce in Buffalo," as to threaten, in the proposed use of the former, any substantial injury or inconvenience to the bank bearing the latter name.

We think the order appealed from should be affirmed.

Order appealed from affirmed, with costs.

Macomber and Corlett, JJ., concur.


text:
    Frederick Booss et al., Resp’ts, v. Margaret A. Marion et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Assignment for creditors—Partnership.
    An assignment for creditors executed by members of a firm after payment of expenses, wages of employes and preferred debts, directed the assignee to pay and discharge in full, if the residue of said proceeds is sufficient for that purpose, all the debts and liabilities due from the assignors; “ together or respectively; ” and if not sufficient to pay them in full, then to apply the residue of said proceeds to the payment of said debts and. liabilities ratably and in proportion. Held, that the effect of this provision, in the contingency last supposed, was necessarily to devote partnership property to the payment of individual debts while a portion of the partnership debts still remained unpaid, and rendered the assignment fraudulent and void as to creditors.
    Appeal by the defendants from a judgment entered on the findings and decision of the court at special term.

      E. F. Wellington, for app’lts; D. N. Salisbury, for resp’ts.
   Dwight, P. J.

The action was a creditor’s bill to set aside a voluntary assignment for the benefit of creditors on the ground of fraud. The assignors are the defendants Margaret A. and James Marion, co-partners under the firm name of Marion & Co. The assignment is set out in full in the complaint and is admitted by the answer. It purports to grant and assign to the party of the second part all the co-partnership and individual estate, property and effects of every description belonging to the parties of the first part, or either of them, in trust, etc. Then after providing for the payment of the expenses of executing the trust, and of wages due to employes, it directs the assignee to pay certain preferred debts, most of which appear on the face of the provision to be debts of the co-partnership, but the four last items of which are as follows: “and to J. Fahy &-Co., and James Gr. Comerford of Rochester, N. Y., the amount of their accounts; and, also, to A. J. Kirley the sum of $70, and to R. Gr. Dun & Co. the sum of $50.” Then follows a direction to the assignee in these terms: “ 4th. To pay and discharge in full, if the residue of said proceeds is sufficient for that purpose, all the debts and liabilities now due or to grow due from the said parties of the first part together or respectively, with all interest money due or to grow due; and if the residue of said proceeds shall not be sufficient to pay the said debts and liabilities and interest moneys in full, then to apply the said residue of said proceeds to the payment of said debts and liabilities ratably and in proportion.” The complaint alleges that the assignment is fraudulent and void and was made by the assignors and each of them with the intent to hinder, delay and defraud their creditors and particularly these plaintiffs; and it demands judgment that the assignment be adjudged fraudulent and void as against the plaintiffs and such other judgment creditors of the assignors as shall come in, etc.

The court found the ’ assignment correctly set out in the complaint ; that the debts preferred to Fahy & Co. and Comerford were fictitious, being made to appear by an alteration of the books of the firm whereby an individual indebtedness of Margaret A. Marion of between $700 and $800 to each of said pretended creditors of the firm, was credited to each of them, respectively, and charged to Margaret A. Marion, with the result that what, were in fact individual debts of Margaret A. Marion to the creditors named became apparent debts of the firm to them and were preferred as'such. That such alteration of the books of the firm was made, at about the time the assignment was made, without the knowledge of either of the co-partners, by one Francis E. Marion, the husband of Margaret A., who was general manager and had sole charge of the business of the firm, that such fictitious preferences were supposed by the assignors to be actually correct when the schedules were made in which the several amounts of those preferences were specified.

The court further finds: “8th. That in said assignment the said assignee was directed, after the payment of the preferred creditors, to devote the remainder of the proceeds, or so much thereof as might be necessary, to the payment of the debts of said firm of Marion & Co. and the individual debts of Margaret A. Marion and James Marion ratably and share and share alike, and that said payments were to be made out of the proceeds of the sale of the individual and firm property without discrimination.That the individual debts of Margaret A. Marion amounted to several hundred dollars.” And as a conclusion of law the court finds that the assignment is fraudulent and void as to the plaintiffs and such other judgment creditors as may come in, etc.

We cannot doubt the correctness of this conclusion. It is challenged in behalf of the appellants on several grounds; among others that it is not secundum allegata et probata. The fact is pointed out that the complaint contains no allegation that the preferences to Fahy & Go. and Oomerford were fictitious. It is contended that .the proofs do not sustain the findings to that effect. It is said that the only specification of fraud contained in the complaint, viz.: of the intent of the assignors to hinder, delay and defraud their creditors, is not only not found by the court but is virtually negatived by its findings.'

We do not consider it necessary to discuss any of the questions thus presented, for the reason that we regard the conclusion of law as amply supported by the eighth finding of fact, above quoted, which is a finding in accordance with the allegations of the complaint and of facts which appear on the face of the assignment. It is impossible to give to the provisions of the fourth clause of the directions to the assignee any other construction than that embodied in the eighth finding of fact. The direction is to pay “ all the debts and liabilities now due or to grow due from the said parties of the first part, together or respectively.” Debts due from the parties together must include all partnership debts not preferred, and those due from them respectively must be individual debts of the members of the firm ; and the assignee is directed to pay both classes of debts out of the remainder of said proceeds, that is, the proceeds of the sale of all the property which has come into his hands, in full, if the remainder of such proceeds is sufficient for that purpose, otherwise ratably and in proportion. The effect of this provision, in the contingency last supposed, was necessarily to devote partnership property to the payment of individual debts, while still a portion of the partnership debts remained unpaid. Such a provision is in fraud of the rights of the creditors of the copartnership and renders the assignment in which it is contained fraudulent in law, without other proof of actual intent to defraud on the part of the assignors. Wilson v.. Robertson, 21 N. Y., 587; Menagh v. Whitwell, 52 id., 162; Hurlbert v. Dean, 2 Keyes, 97; Nat. Bank of Granville v. Cohen, 6 N. Y. State Rep., 318.

In the aspect of ■ the case which we have considered we think the conclusion of law upon which the judgment appealed from was founded, viz.: that the assignment in question was fraudulent and void as to the plaintiffs and other creditors of the firm, not preferred, was well supported by the undisputed facts in the case* and that the judgment should, therefore, be affirmed.

Judgment appealed from affirmed, with costs.

Macomber and Corlett, JJ., concur.


text:
    Calvin H. Quick, App’lt, v. Rosa C. Leigh, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Limitation—Justice’s court—Service op process.
    In order to render an attempt to commence an action in justice’s court within the time limited by statute equivalent to a commencement thereof, under Code Civ. Pro., §§ 399, 400, 2883, the residence of the defendant must be shown; otherwise it cannot appear that the summons was delivered to an officer authorized to serve the same in the town where she resided. »
    Appeal by the plaintiff from a judgment of the county court of Cayuga county, reversing the judgment of a justice’s court.

      B. F. Bieber, for app’lt; J. Rosecrans, for resp’t
   Dwight, P. J.

The action was on a contract of the defendant, a married woman, endorsed on a promissory note of her husband in the following words:

“ For value received I promise to and do charge my separate estate with the payment of the within note.
“ (Signed) Bosa C. Leigh.’’

The note was dated July 11, 1883, and was payable in six months.

The defendant pleaded the statute of limitations and want of demand and notice to charge an endorser. The latter defense raised the question whether the contract was that of an endorser or of a guarantor. The justice held the contract a guaranty and overruled both defenses. The county court reversed the judgment of the justice, oh the ground that the contract of the defendant was that of an endorser merely and for want of demand and notice. We do not discuss that question because we find the action barred by the statute of limitations.

The note fell due January 14, 1884. A summons was first issued in this action by a justice of the peace of the town of Locke, in Cayuga county, and delivered to a constable of the same town on the 6th day of January, 1890, returnable on the 13th day of the same month. It was returned on the day of its issue not served by reason of the defendant’s not being found in the county. Whereupon a second and third summons were successively issued in attempted compliance with § 2883 of the Code of Civil Procedure, and the third summons was finally served upon the defendant on the 31st day of January, 1890.

The plaintiff made these facts to appear on the trial by the introduction in evidence of the several summonses with their returns. Ho evidence was given of the residence of the defendant at any time. The question is whether, upon these facts, the action was shown to have been commenced within six years from the 14th day of January, 1884. Certainly not, unless the “attempt to commence ” the action, by the issuance of a summons on the 6th day of January, 1890, was “ equivalent to the commencement thereof ” within the provisions of §§ 399 and 400 of the Code of Civil Procedure. The former of those sections prescribes the cases wherein a similar attempt to commence an action in a court of record is equivalent to its commencement within the meaning of the statute of limitations. Section 400 applies the provisions of § 399 (with a single exception not material here) to an attempt to commence an action in a court not of record; but only in a case “ where the summons is delivered to an officer authorized to serve the same within the city or town wherein the person (to be served) resides.”

Section 2883 provides for the extension of the time within which actual service may be made, by the issuance of a second, and, if necessary, a third summons, which shall “ relate back to the time when the first summons was issued; ” and it provides that, “ with respect to all proceedings before actual service, the service thereof (i, e., of the last summons issued) has the same effect as if the first summons had been seasonably served.” It is •apparent, therefore, that the effect of the service of the third summons in this case, as well as of all proceedings for the commencement of this action, depended upon whether the first summons was duly issued in compliance with the provisions of § 400, supra. If not, the attempt to commence the action within the time limited by statute was not equivalent to commencement thereof, and the action was not commenced until the 30th day of January, 1890. There is nothing in this case to show where the defendant resided, and consequently it does not appear that the summons was “delivered to an officer authorized to serve the same in the city or town wherein ” she resided. The defense of the statute of limitations seems to have been established.

The judgment of the county court must be affirmed.

Macomber and Corbett, JJ., concur.


text:
    Augustus Frank et al., App’lts and Resp’ts, v. Charles L. Bingham, Resp’t and App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Banks—Liability ok collecting bank.
    On the 16th and 20th of August, 1887, plaintiffs, who were private bankers, transmitted to the bank of which defendant is receiver notes and checks for $140, $435 and $94, respectively, for which the bank sent them drafts, which were not paid. The notes and checks were collected and the moneys mingled with the bank funds, and the hank failed on the 23d, having received and paid out money down to and including that day. The receiver received $189 in cash, and subsequently collected $11,000 from other assets. Held, that it was impossible to identify any portion of the avails of the note or checks with the cash which came' into the receiver’s hands, and that plaintiffs could not recover the same of defendant.
    Appeals, by both parties, from several portions of a judgment entered on the findings and decision of the court at special term.

      J. A. Vanderlip, for pl’ffs; M. H. Briggs, for def’t
   Dwight, P. J.

The action was to recover the avails of certain commercial paper forwarded by the plaintiffs to the First National Bank of Dansville for collection, and collected by the bank shortly before its failure, in 1887. The defendant is the receiver of the bank, though sued in his individual name, and the complaint demands judgment against him, “ to be paid out of any moneys in his hands as such receiver before making any distribution of the money or property of said First National Bank of Dansville to the general creditors of the said bank and in preference thereto.”

The plaintiffs were private bankers at Warsaw, in the county of Wyoming; the First National Bank of Dansville was, as its name imports, a banking corporation organized under the laws of the United States, doing business at the village of Dansville, in Livingston county. The plaintiffs were accustomed to send commercial paper held or received for collection by them, and payable at Dansville, to the bank mentioned, for collection; and it was the custom of the bank to remit the avails of such collections, less commissions, by drafts drawn by it on its correspondent in the city of New York. On the 16th day of August, 1887, the plaintiffs mailed to the bank at Dansville, fpr collection and remittance, four checks drawn on that bank by depositors therein, aggregating $435.84, and a note of one Beyer for $140.40, payable at the same bank on the 18th day of the same month. The paper was received at the bank on the 17th, the checks were charged to the several accounts of the drawers, which were good for the amounts, and on the same day the bank remitted to the plaintiffs its draft On-Now York for the aggregate amount of the checks, less fees for the collection. The note of Beyer was paid in cash on the 18th. The money was not kept separate from, but was mingled with other cash on hand, of which about $2,000 was received, and much more than the amount of the note was paid out, the same day. On the same day the bank sent to' the plaintiffs its -draft as usual, for the amount of the note less fees for .collection. On the 20th of the same month the plaintiff sent to the bank at Dansville two more checks drawn upon it by its customers, aggregating $91.18. These were received on the 22d, and, as before, charged to the several accounts of the drawers, which were good for the amounts. On the 23d the bank closed its doors, on account of insolvency, having received and paid out money in the usual course of its business down to and including that day. Neither of the drafts remitted to the plaintiffs was paid. Soon afterwards the defendant was duly appointed receiver of the bank, under the laws of the United States. He immediately qualified as such and took possession of the assets of the bank. Hé found, among those assets, the sum of $189.19 in cash, which he turned over as required by law to comptroller of the currency of the United States. Since that time, and including that amount, he has collected from the assets of the bank about $11,000. Some time after his appointment as receiver, but how long after does not appear except that it was before the commencement of this action, the plaintiffs demanded of him the avails of the six checks and the note above described, and payment being refused they brought this action.

The theory of the action is distinctly that of a trust impressed upon the avails of the several collections in the hands of the bank, and accompanying those avails into the hands of the receiver. The court at special term sustains that theory in respect to the avails of the note of Beyer, but found it not applicable to the case of the checks, and gave judgment against the defendant for the amount of the note, with interest, and for costs.

We think the theory fails of application to any portion of the plaintiffs’ demand, for the reason that it is not shown that any portion of the funds in question came into the hands of the receiver.

No principle seems to be better established than that, in order to follow trust funds and subject them to the operation of the trust they must be identified.” The rule is stated in those terms by Andrews, J., in Cavin v. Gleason, 105 N. Y., 256; 7 N. Y. State Rep., 13. Of course it is not intended that in the case of money the particular coin or bank notes must be found to be or shown to have been in the hands of the person sought to be charged with the trust On the contrary, the opinion from which we quote recognizes and formulates the rule in equity, “ that, as between cestui que trust and trustee, and all parties claiming under the trustee, otherwise than for a valuable consideration, without notice, all property belonging to a trust, however much it may be changed or altered in its nature or character, and all the fruit of such property, whether in its original or altered state, continue» to be subject to or affected by the trust; ” and further on the same learned judge says: “A court of equity in pursuing the inquiry and administering relief, is less hampered by technical difficulties than a court of law; and it may be sufficient to entitle a party to equitable preference in the distribution of a fund in insolvency that it appears that the fund or property of the insolvent remaining for distribution includes the proceeds of the trust estate, although it may be impossible to point out the precise thing in which the trust fund has been invested, or the precise time when the conversion took place.”

In this case, as we have seen, the court found in favor of the plaintiffs for the amount of the Beyer note, but there was no finding that the avails of the note ever came into the hands of the receiver nor that they were not wholly paid out on other demands against the bank before it closed its doors. Such a finding could not have been sustained upon the evidence in the case; the almost necessary inference therefrom being to the contrary. The bank did business on what must have been a very narrow margin of cash for five days after the $140 was received in payment of the note, and at the end of that time had only $189 of cash on hand. In the nature of things it was impossible to' identify any portion of the avails of the note with any portion of the scarcely larger amount of cash which came into the hands of the receiver; the latter was as likely to be the avails of any other collection made at about the same time, as of the Beyer note. And in this connection it is interesting to learn from the report of the case of Arnot v. Bingham, 29 N. Y. State Rep., 878, that the same small residue of cash which came into the hands of the receiver had, when this action was tried, already been adjudged to be the property of the plaintiffs in that action, upon facts almost precisely similar to those presented by the record before us. That judgment was rendered at special term in the sixth district, and was affirmed, with hesitation, by the general term in the fourth department. The case, though fully sustaining the legal contention of counsel for the plaintiffs, was, naturally perhaps, not cited by him in Iiis argument here, but our attention was called to it by counsel for the defendant as curiously illustrating the necessity of an actual identification of some portion of the fund which passed to the receiver with the particu-. lar trust fund sought to be recovered in the action. Should both of these special term judgments be finally affirmed, we should have the same small balance of cash which came into the hands of the receiver judicially determined to belong to two different parties, by' reason of its being held to be the same money received in trust for both ; and if one should be finally affirmed and not the other, we are at a loss to see upon what principle the preference would be given. The general term in the fourth department in an opinion by Martin, J., admits “that the question whether the fund recovered in this (that) action .was in fact the property of the plaintiffs, or so far impressed with a trust in their favor as to constitute them equitable owners thereof, is not free from doubt; but that court was inclined to the opinion that the doctrine of the case of the People v. The Cily Bank of Rochester, 96 N. Y., 32, justified the holding of the trial court.

The case thus referred to is also the authority chiefly relied upon by counsel for the plaintiffs in this action. We are unable to give to it the same effect as our brethren in the fourth department,- especially in view of the explanation and qualification given to it by the court in the later case of Cavin v. Gleason, su pra. In the later case the court say: “ The case of the People v. The City Bank of Rochester, 96 N. Y., 32, seems to have been misunderstood. The question in this case was not raised there, and it was not claimed in that case that the proceeds of the checks of Sartwell, Hough & Go., the petitioners, had not gone into the general fund of the bank, or that they had not gone in some form to the receiver. The court did not decide, nor intend to decide, that the petitioners would have been entitled to a preference in case the proceeds of the checks had been used by the bank, and were not represented in the assets in the hands of the receiver.”

Thus explained and qualified the case of the City Bank of Rochester is saved from conflict with the doctrine so clearly expounded in our previous quotations from the opinion in Cavin, v. Gleason.

We think that doctrine is fatal to the plaintiffs’ contention in this case, and, accordingly, that the judgment of the special term, so far as it awards a recovery to the plaintiffs, should be reversed and judgment absolute ordered for the defendant.

Judgment, so far as appealed from by defendant, reversed, and judgment ordered for the defendant, dismissing the complaint, with costs.

Macomber and Corlett, JJ., concur.


author: Corlett, J.

text:
    James Danihe, Resp’t, v. John Hyatt, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Trespass—Possession.
    In an action for trespass on lands, the plaintiff’s evidence showed no title in him; that he had had a survey made and placed posts for a fence inside the survey stakes, and that the previous possession of the locus in, quo had heei* in the defendant. Held, that he failed to show such possession as would enable him to maintain the action. Possession acquired by the survey did not vest in him a right of action.
    Appeal from the judgment of the Cattaraugus county court, affirming a justice’s judgment

      George W. Cole, for app’lt; T. H. Dowd, for resp’t
   Corlett, J.

In November, 1888, this action was commenced in a justice’s court in the town of Salamanca, county of Cattaraugus, for trespass upon land. Issue was joined and a trial had in December of the same year. The justice rendered a judgment in favor of the plaintiff for six cents damages and $2.95 costs. The defendant appealed from the judgment to the county court, where it was affirmed. From the judgment of affirmance, the defendant appealed to this court.

The complaint before the justice alleged, in substance, a trespass upon' the following land: “Being situate upon the Allegany Indian Reservation and upon the north side of the Allegany river, and commencing on the south side of the highway leading from Great Valley station upon the New York, Lake Erie & Western R. R. to Ellicottville, and to land occupied by Frank Quilter; thence running south along the highway, twenty-six feet; thence, west' 107 feet; thence north twenty-six feet, to Quitter’s land; thence east 107 feet to the place of beginning.”

The answer was a denial. The plaintiff was the only witness sworn on the trial. His testimony was as follows:

“ I live in ¡Killbuck; I am the plaintiff in this action; I know the defendant; I have lived in Killbuck twelve or thirteen years; I have lived where I now reside three or four years; I occupy a piece of land where I live; it is about twenty-six feet wide by 107 feet, from the centre of the road back; I had it surveyed out; there were some stakes set by the surveyor between this land and Hyatt’s, by the surveyor; I caused some posts to be set inside of the stakes set by the surveyor towards plaintiff’s house; the defendant has drove across the land since the survey, and since the posts were set for a fence he drives his cattle across there and used it for a path and roadway; he drew a wagon on the land described so it was partly on this land and partly off it, and chained it up; this was about the time of the survey; this survey was in August, 1888; K. Kelsey made the survey.”

On his cross-examination he testified : I do not keep a cow or horse, have no barn; Hyatt’s keep a team, wagon and sleighs; he keeps them on the place by me; he has filled in and madearoad with dirt; there has been no fence between us; the piece trespassed on is a three-cornered piece next to the road and the road was built across the line of posts set for a fence; this wagon put on there stood in this' driveway, and part on the side of line of posts next to defendant’s and part next to plaintiff’s. There was a board fence there once on the north side between me and Quilter, and I kept wood piled up there on that side and had a clothes line up ; at the back end of my place there is a board fence between me and Quilter. I occupy t,venty-six feet along the front; that is all. I occupy this land up to where the board fence used to be, and occupied twenty-six feet in front and the same in the rear; the defendant occupied the land south of mine where the driveway is, and T occupy twenty-six feet north where the hoard fence was.

The defendant moved for a nonsuit upon the ground, among others, that the plaintiff had failed to show possession of the land upon which the alleged trespass was committed. The motion was denied. The evidence given upon the trial clearly shows that the whole of this roadway upon which the trespass, if any, was committed, was used by the defendant In fact, that he had made the road at this point for his own convenience and benefit He kept a team, wagon and sleighs. The plaintiff had nothing of the kind, having neither cow, horse or barn. There was no fence between the parties, and the plaintiff for the purpose of establishing the line caused a survey to be made which- evidently covered a part of the roadway used by the defendant After the survey, the plaintiff'put down posts and the defendant continued to use the road as before.

The plaintiff, among other things, on his cross-examination testified, “ The defendant occupied the land south of mine where the driveway is, and I occupied twenty-six feet north where the hoard fence was.”

The plaintiff’s evidence shows that before this survey the defendant occupied the land in question. The only possession the plaintiff ever had, so far as appears, was the causing the survey to be made and the putting down of posts.

The previous possession bad been in the defendant. Under these circumstances, it is entirely clear that the plaintiff failed to show such possession as would enable him to maintain trespass. He proved neither possession or title. The only dominion he ever exercised over it, so far as appears, was the survey and the putting down of posts.

It is elementary that every unauthorized entry upon the lands of another is a trespass, even though the damages are nominal. Dixon v. Clow, 24 Wend., 188; Pierce v. Hosmer, 66 Barb., 345.

But the plaintiff did not bring himself within this rule, as he-failed to prove ownership or possession.

It need not be said that to maintain trespass actual possession or title must be shown. Edwards v. Noyes et al., 65 N. Y., 125.

Possession acquired by this survey did not vest in the plaintiff a right of action. Stuyvesant v. Tompkins, 9 Johns., 61; Jackson v. Hazen, 2 id., 22.

This is not a case of conflict in the evidence, or where different inferences may be drawn from it; on the other hand, there is no evidence to sustain the verdict. Rathbone v. Stanton, 6 Barb., 141.

The judgment of the county court and the justice’s must be reversed, with costs.

Dwight, P. J., and Macomber, J., concur.


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    David Marsh, Resp’t, v. The Delaware, Lackawanna & Western R. R. Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    WATEBCOTJRSES—DIVERSION—DAMAGES.
    Plaintiff was a mill owner on a stream which is crossed by defendant and which the latter, in 1883, dammed about two miles above plaintiff’s mill and inserted a pipe with the capacity of 86,000 gallons a day to supply a tank used to water locomotives. Plaintiff’s evidence tended to show that since the erection of such dam there has never been a sufficient supply of water to enable the mill to do a regular business, although prior thereto he ran it for ten months in the year, and that the loss in rental value was $600 a year. Defendant’s evidence tended to show that the dam and pipe did not diminish the flow so as to injuriously affect said mill, and that the reduced supply was caused by the gradual drying up of the stream. Held, that the evidence was such as-required the submission of the question to the jury, and that a verdict for $600 was not excessive.
    Appeal from an order denying a motion for a new trial, and from a judgment entered on a verdict for $762.22, in a cause tried in Livingston county.

      Charles. J Bissell, for app’lt; Hubbard & Coyne, for resp’t.
   Corlett, J.

In 1878 the plaintiff bought a flouring mill situated upon Baird’s Creek, in the town of Leicester, Livingston county. At the time of the purchase the mill was not operated and had not been for four or five years. The plaintiff repaired the mill, race, flume and foundations and put in a new dam. It ■was a stone mill, with, two run of stone for flour and one for feed.

The defendant is a railway corporation, chartered under the laws of Pennsylvania, and operating its road in the state of New York from Binghamton to Buffalo. "It crosses the creek in question. In the fall of 1883, a little over two miles above the plaintiff’s dam, the defendant constructed a dam which created a pond thirty feet in width and over twenty rods in length. The defendant inserted a three inch pipe in the dam, through which the water flowed and was conducted about 4,000 feet to a tank on defendant’s road, which was used to water locomotives. The capacity of this pipe was one gallon per second, or 86,000 a day.

The plaintiff’s mill was operated by water, made available by the dam and a race.

In November, 1887, the plaintiff brought this action to recover damages from the defendant for the diversion of the waters of the creek. The complaint alleges, in substance, among other things, that the plaintiff and his grantors owned and operated a flouring mill situated on the creek since 1862, and were entitled to enjoy the waters of the creek for the purpose of operating the mill, and that the defendant wrongfully diverted the waters, intercepted their free flow by means of a pipe and holding back the waters hy a dam, to the great damage of the plaintiff.

Issue was joined and the action was tried before a justice and jury at the Livingston circuit, in November, 1889. A verdict was rendered in favor of the plaintiff for $600. The defendant moved, for a new trial on the minutes, which was denied. Judgment was entered on the verdict, from which and the order the defendant appealed to this court.

The evidence on the part of the plaintiff tended to show that the water of the stream would run the mill through the year except a part of July and August, and that some years it would run during the whole year. That he operated it ten months in a year until the defendant built the dam and diverted the water, when he was obliged to stop running the mill for want of water, and that after .that there never was a sufficient supply of water to enable the mill to do a regular business. That before this loss of water the rental value of the mill was $500 a year, and afterwards nothing. The plaintiff put a steam engine and boiler in his mill to supplement its power, and enable it to be run during the dry season, but that it would not pay to run it without the water.

The plaintiff’s evidence also tended to show that the stream was never entirely dry until 1883 (after the erection of .the defendant’s dam), but has been in July, August and September since that time.

The plaintiff also gave evidence tending to show that the defendant’s dam stopped the flow of the water, and, in connection with the pipe supplying its tank, so diminished the flow in the stream as to destroy the usefulness of the plaintiff’s mill and damage him to the extent of the rental value.

The defendant’s evidence tended to show that the dam, including the pipe, did not diminish the water to such an extent as to injuriously affect the plaintiff’s mill; also tending to show that the reduced supply at the plaintiff’s mill was caused by a gradual drying up of the stream, and that the diversion of water through the pipe did not materially diminish the flow of water below the defendant’s dam, and that the plaintiff had sustained no loss or. damage by reason of the dam and diversion.

The charge of the trial justice was sufficiently favorable to the defendant.

It is matter of common knowledge that before the forests were cut away, and the lands cleared, streams Would flow during the whole year with great uniformity, varied somewhat by thaws and freshets and very dry weather, but not to such an extent -as to prevent a continuous flow. But after the lands were cleared and improved by ditches and drainage, floods in the streams will be greater, and the flow much more irregular, •ceasing frequently at dry times. The causes .are entirely obvious. When unobstructed by logs and timber, the surface water during rains and freshets will flow more rapidly into the streams from a much larger area than before the clearing. While in dry times exposure to the sun and evaporation will greatly diminish or entirely stop the flow. It is undoubtedly true that quite as much water flows during the entire year in most streams as formerly; but there is much greater irregularity and fluctuation than before the lands were cleared. '

It is also matter of common observation that a dam ordinarily diminishes to .a greater or less extent the flow of water below it. This results from various causes, among which are evaporation and the soakage of the backed waters into the adjoining lands.

In the case at bar, there was an actual diversion to the extent of 86,000 gallons a day. There was evidence, therefore, tending to show that the destruction of the rental value of the plaintiff’s mill was caused by the defendant’s dam, including the pipe. The whole evidence was of such a character as to require its submission to the jury. The damages do not appear to have been excessive, for according to the plaintiff’s evidence a much larger sum would have been warranted.

The defendant’s testimony tended to show that the plaintiff sustained no damage, whatever, by reason of the diversion of the water. But there was enough evidence on the controverted questions to require a submission of the case to the jury.

There was no question as to the proper construction of the defendant’s dam. The more complete and perfect its finish, the closer it would confine the waters above it. The defendant contends that the complaint is not sufficient to authorize a recovery exicept on account of waters diverted by the pipe. But no objection was made on the trial on account of any defect in the complaint. If such an objection had been made, its imperfections, if there were any, might have been obviated by amendment. All the evidence offered by either party was received without regard to the form of the pleadings. Wells v. World’s Dispensary Ass’n, 120 N. Y., 680; 80 N. Y. State Rep., 909, answers the defendant’s objections,, based on supposed defects in the complaint.

In the defendant’s motion for a non-suit, no objection was made on account of any defect or want of fullness in the complaint.

In Garwood v. N. Y. C. & H. R. R. R. Co., 2 N. Y. State Rep., 701, the rule was stated by the court to be, “Where the proof shows that the defendant by the withdrawal of water from the stream upon which the plaintiff’s grist mill was situated decreased the grinding capacity of said mill, the plaintiff is entitled to compensatory damages.’’

This doctrine is familiar. Garwood v. N. Y. C. & H. R. R. R. Co., 17 Hun, 356; affirmed 83 N. Y., 400.

The case fails to show any errors on the trial to the prejudice; of the defendant.

The judgment and order must be affirmed.

Dwight, P. J., and Macomber, J., concur.


text:
    Henry Dale et al., Resp’ts, v. Frank T. Gilbert, as Sheriff, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Replevin—Undertaking—Amendment.
    In an action to replevin goods in the hands of defendant as sheriff, the-latter g;ave an undertaking to recover possession which recited that plaintiffs claimed the delivery to them of certain chattels specified in their affidavit of the alleged value of a certain sum. The court of appeals having-held that defendant was hound by such recital and could not deny that he had possession of all the property mentioned, defendant moved to-amend the undertaking by striking out such recital. Held, that the court, had no power to allow such amendment.
    Appeal from an order, of the Erie special term, denying defendant’s motion to set aside an undertaking given by the defendant to retake certain goods replevied, and for leave to substitute-another undertaking in its place.
    a Adelbert Moot, for app’lt; Hadley Jones and Abraham Gruber,. for resp’ts.
   Corlett, J.

In 1886 Moses Buslander purchased goods from the plaintiffs. In November of that year he confessed judgment for those goods, amounting to $28,000, on which executions were-issued to the defendant, who levied on the stock, and on the same-day Buslander made a general assignment for the benefit of his creditors. In November of the above year an action of replevin was commenced to recover those goods, or a portion of them, of the alleged value of $2,122.82. The affidavit and requisition of replevin were delivered to the coroner of Erie county, who executed the writ on the 22d day of November of that year. On the 26th day of the same month the defendant served an affidavit, notice and undertaking for 'the return of the property which had. been replevied. The following is a copy of the undertaking:

“ Whereas, the plaintiffs in this action have claimed the delivery to them of certain chattels specified in the affidavit made on behalf of the plaintiffs for that purpose, of the alleged value of $2,122.82, and have caused the same to be replevied by the coroner of the county of Erie pursuant to chap. 14 of the Code of Civil Procedure, but the same has not yet been delivered to the plaintiffs; and whereas, the defendant is desirous of having the said chattels returned to him,
“Now, therefore, we the undersigned, Charles A. Sweet, of No. 1176 Main street in the city of Buffalo, Erie county, New York, and Charles G. Curtiss of No. 63 West Huron street in the said city of Buffalo, in consideration of the premises, and pursuant to the statute in such case made and provided, do hereby jointly and severally undertake and become bound to the plaintiffs in the sum of $5,000 for the delivery of the said chattels to the plaintiffs, if delivery thereof is as adjudged, or if the action abates in consequence of the defendant’s death, and for the payment to the plaintiffs of any sum which the judgment awards against the defendant in this action.
“ Dated, November 26, 1886.
“Charles A. Sweet.
“ Charles G. Curtiss.”

Two similar actions were commenced about the same time, one by William B. H. Martin and another, and the other by Samuel J. Newell and one. In each of those cases, the defendant executed similar undertakings which contained the same recitals as in this case. Issue was joined in those actions, and all of them were referred and tried together. Upon the trial the defendant offered to prove that he never had possession of more than one-fourth of tha goods mentioned in the affidavit accompanying the requisitions. The referee rejected the evidence, holding that the defendant was estopped by the recitals in the undertaking from proving that he had not possession of all the property mentioned in the affidavit, and ordered judgment for the plaintiffs in each case for the amount claimed. The defendant appealed to this court, where the judgments were reversed and a new trial ordered. The ground upon which the new trial was granted was that the referee erred in holding that the undertakings given upon the return of the property estopped him from asserting that-he had not possession of all the property mentioned in the affidavit; and upon the further ground that the coroner’s return was not conclusive evidence of the facts stated in it.

The plaintiffs appealed to the court of appeals from the decision of the general term in the Martin case, where this court was reversed and the judgment entered upon the report of the referee affirmed. 119 N. Y., 298; 29 N. Y. State Rep., 440. A motion for a reargument was made in that court and denied.

The decision of the court of last resort was to the effect that the recital in the undertaking estopped the defendant from denying that he had had possession of the property, or any part thereof, or from showing that it was different or other property; that he was concluded by the recitals in the undertaking; also that the conclusive character of the estoppel was not taken away by the fact that after the return of the property to the defendant, he served an amended answer denying that he ever had possession of all the= property mentioned in the complaint or affidavit accompanying the requisition.' It was further held, in substance, that it was not. necessary to recite or describe the property taken-in the bond. ‘

Upon the rendering of the decision the defendant made a motion to cancel and strike out the recital in. the undertaking, and to. substitute another in its place which would omit the recital. The special term denied the application upon the ground that the decision of the court of appeals was conclusive. The following is a. memorandum of the decision of the special term:

“ The decision of the court of appeals in Marlin et al. v. Gilbert, not reported, is conclusive upon every question presented on this motion, and requires a denial thereof. If, as there held, the recitals in the undertaking are as admissions conclusive against the defendant, and not open to question on the trial of this action for the reasons stated, it follows for the same reason that they are conclusive here, and may not be disputed or questioned for the purpose of in any manner relieving the defendant from the effect of the same.”

The defendant’s motion was based on §§ 721, 729 and 730 of the Code of Civil Procedure. 721 provides: “In a court of record where a verdict, report or decision has been rendered, the judgment shall not be stayed, nor shall any judgment of a court, of record be impaired or affected by reason of either of the following imperfections, omissions, defects, matters or things in the process, pleadings or other proceedings.” The. defects are then mentioned, which do not in express words include those in a bond or undertaking.

729 is as follows; “A bond or undertaking required by statute to be given by a person to entitle him to a right or privilege- or to take a proceeding is sufficient if it conforms substantially to the form therefor prescribed by the statute, and does not vary therefrom to the prejudice of the rights of the party to whom, or for whose benefit it is given.”

730 is: “Where such a bond or undertaking is defective, the court, officer or body that would be authorized to receive the same, or to entertain a proceeding in consequence thereof, if it was perfect, may, on the application of the persons who executed it,, amend it accordingly; and it shall thereupon be valid from the-time of its execution.”

It will be noticed that the above sections do not expressly authorize an amendment of a bond or undertaking unless it is defective. It is not claimed that the undertaking in the present caséis defective; but that the recitals sought to be expunged are surplusage, and that without them the undertaking would be perfect. Under the section last quoted, the courts have frequently amended defective undertakings. Irwin v. Judd, 20 Hun, 562; Riley v. Skidmore, 6 N. Y. Supp., 107; 24 N. Y. State Rep., 724; Pember v. Schaller, 58 How. Pr., 511.

In O'Sullivan v. Connors, 22 Hun, 137, an amendment was allowed striking out of an undertaking words alleged to have been inserted by mistake.

The judge delivering the opinion of the court of appeals states, among other things: 11 It was because of this undertaking that the defendant was entitled to retain possession of the property, and that undertaking used by the defendant recites the plain fact of the claim for the property by the plaintiff, and that it had been taken by the coroner pursuant to the Code of Civil Procedure. We do not think that under the circumstances the defendant should be allowed to contradict the admissions of fact made in his own bond by virtue of which he kept the property which had been taken by the coroner, and we think he is properly concluded by the recitals in such bond upon the question of what property was, as -matter of fact, in his possession and taken by the coroner.”

He also states: “ Has not this defendant caused a bond to be executed containing a plain admission of a fact, viz.: That the coroner had taken the property described in the affidavit from his (defendant’s) possession, and has not the defendant by reason of the bond containing such admission procured the coroner to redeliver to him such property thus taken from him ? Certainly he has. If it had not been for the bond the property would have been delivered to the plaintiffs, in which event the defendant could have shown that the property taken was not described in the affidavit, or was not that of the plaintiff.”

It is evident that the reasoning of the judge in the court of appeals proceeds upon the theory that the recitals in the undertaking are as conclusive as if embodied in an agreement. Matter of N. Y., L. & W. R. R. Co., 98 N. Y., 447.

The answer alleged the matters which the defendant offered to prove. That fact was not treated by the court of appeals as in any way aiding the defendant. While this court under the answer, notwithstanding the recitals, reached the conclusion that the evidence rejected by the referee was admissible. Ho suggestion was made that the force of the admission could be obviated by amendment. It is very clear that it was not* the purpose of -the defendant by the undertaking to deprive himself of any defense, total or partial, by the recitals in the bond, and that he proceeded under a mistaken view of the law. Under all the circumstances, including the decision of this court, the defendant is not guilty of laches.

H this court has power to grant the relief demanded, no reason is seen why leave should not be given to substitute a new undertaking on proper terms. The question of the power of the court to grant the relief asked was not distinctly presented to or passed upon by the court of appeals. But the reasons assigned for the conclusion reached indicate that the court regarded the admission as conclusive.

It follows that the order appealed from must be affirmed. The order should show that the decision is based upon the want of power to grant the relief demanded.

Dwight, P. J., and Macomber, J., concur.


text:
    Thomas L. Hulburt, App’lt, v. Fletcher A. Defendorf, Sup’r, Resp’t. William F. Chase, App’lt, v. Fletcher A. Defendorf, Sup’r, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Towns—Actions against supebvisob.
    There is no statutory requirement for the supervisor to lay before the town meeting a statement in relation to, or to accept their instructions in actions brought against him in his individual name, and consequently an honest settlement of such litigation made by him should be considered conclusive in behalf of the other side to the controversy.
    2. Same.
    An action against defendant as supervisor resulted in a judgment in favor of the plaintiff, and shortly thereafter negotiations for compromise were entered into, which resulted in a stipulation providing for the payment of one-half the recovery and costs in settlement, and that no appeal should be taken. Prior thereto the town meeting had directed the supervisor to appeal. Upon the stipulation the special term granted leave to withdraw the notice of appeal, and the general term granted a motion to dismiss the appeal. Held, that in the absence of evidence of misconduct on the part of the supervisor, or of fraud or deceit practiced upon him, the settlement would be upheld.
    Appeal from an order of the Monroe special term made March 31, 1890, and entered April 22, 1890, vacating an order which dismissed the appeal of the defendant from a judgment entered upon the report of a referee.

      Walter S. Hubbell, for app’lt; James L. Angle and W. Martin Jones, for resp’t.
   Macomber, J.

This action was begun in the month of May, 1889, against one Thompson Gf. Jones, supervisor of the town of Perinton, in the county of Monroe, to recover for professional services as an attorney and counselor at law rendered to the predecessor of Jones, supervisor of such town, in an action in which such supervisor defended in behalf of the town. An answer was interposed and the case was referred to a referee to hear and determine the same. The amount claimed in the complaint by the plaintiff was the sum of $550, but at the trial, upon application, the complaint was amended in the amount of the claim made so as to conform to the proof and in pursuance thereof the referee reported a recovery in the sum of $804.30 for the plaintiff.

Shortly after the entry of the judgment in pursuance of such report, negotiations were begun by the then defendant with the plaintiff for a compromise of such judgment, in pursuance of what was then believed to be the public sentiment of a majority of the taxpayers of the town that it would be well to pay one-half of the recovery, besides costs, rather than further to litigate the matter. Accordingly a stipulation was entered into between the plaintiff and the supervisor of the town by which, upon the payment of such sum of $400 and the costs as entered in the judgment, with interest thereon from the time of the entry of the judgment, and upon a further consideration that no appeal should be prosecuted from such, judgment by which the plaintiff should be put to further costs and expenses in collecting his claim, and the said sum of $400, besides costs, paid on or before the 15th day of February, 1891, then the judgment as entered should be satisfied and the action discontinued. Thereupon the defendant withdrew his notice of appeal to the general term from the judgment which had theretofore been entered and served.

Accordingly, upon an application to the special term by both parties, leave was granted to the defendant to withdraw the notice of appeal, and in pursuance of the same agreement an application was made to the general term on the 25th day of March, 1890, for the dismissal of such appeal, which was accordingly granted. Prior to this time a town meeting had been held in which a resolution was passed directing the supervisor to appeal from such judgment

There is not in the papers before us any evidence that the compromise of the judgment was not honestly made and the agreement entered into for the best interests of all parties to the litigation. It is true that the moving papers allege in a general way that the compromise and the dismissal of the appeal was in pursuance of a conspiracy, yet no fact is stated on which such a conclusion can reasonably be based. The high character of the referee upon whose report the judgment was entered adds strength to the presumption of law that the judgment was correct. So, also, the characters of the attorneys of record preclude any assumption that the agreement by which this litigation was ended was not in all respects just and fair. It follows, therefore, that the order of the special term by which the notice of appeal was withdrawn, followed by the order of the general term dismissing such appeal, both done in pursuance of the terms of the written agreement, must be deemed to be valid and unassailable by motion unless the same was made contrary to some statutory regulation.

The learned judge at the special term, in his opinion, has held that the special town meeting directing that an appeal be taken was binding upon the defendant, and inasmuch as the plaintiff knew of such meeting and of the passage of such resolution, he is bound by it as well as the defendant. It is true that any judgment which was recovered against Jones, as supervisor of the town of Perinton, was under the Revised Statutes, 3 R. S., 474, §§ 102 and 103, payable by the town, after the same had been audited by the town board, or that failing, after it had been reported to the board of supervisors under whose direction a provision might be made for levying the same by tax upon the town. But it by no means follows from these provisions of the statute that the defendant had not full control over the management of the case within the ordinary rules governing the rights of parties to actions.

If, in making the settlement, the defendant was guilty of any corrupt misconduct in office, by which the rights of the town were impaired, an action would lie in behalf of the /town against him. Furthermore, had any fact been disclosed upon the motion as contained in the appeal papers that such settlement was in fraud Of the rights of the town or accomplished by means of deception practiced upon the supervisor or upon the court, an entirely different question would arise. In the absence of such evidence we see no reason why the defendant should not have the power to settle the case in the manner above disclosed. The only objection that can be made to it is contained in IE. S., 857, § 8, which is as follows: “ In all legal proceedings against towns by name, the first process, and all other proceedings requiring to be served, shall be served upon the supervisor of the town ; and whenever any such suit or proceeding shall be commenced, it shall be the duty of the supervisor, to attend to the defense thereof, and to lay before the electors of the town, at the first town meeting, a full statement of such suit or proceeding, for their direction in regard to the defense thereof.”

It will be seen, however, that the duty to lay before the electors of the town at the town meeting a statement of the suit or proceeding, so as to receive the direction of the town in regard to the defense thereof, is limited by the words of the statute to legal proceedings taken against the town by name. There is a class of actions not necessary to refer to in detail which may be maintained by the parties against the town in its municipal name. The processes in such cases are required to be served upon the supervisor and he in turn is required to report the same to the town meeting. But there is no statutory requirement for him to lay before the town meeting or to accept their instructions in actions against him in his individual name, and consequently an honest settlement of any litigation made by him ought to be deemed to be conclusive in behalf of the other side to the controversy. It was suggested in the opinion below, that if the contention made in behalf of the plaintiff that an actual majority of the electors of the town of Perinton were in favor of this compromise and settlement of the action and dismissal of the appeal, such fact might be ascertained at the next town meeting. But it seems to us that the decision of the courts ought not to be required to hang upon'the votes of the electors of the town in such a matter as this. Six hundred taxpayers, being a majority, or at least half of the whole electors, had signed a petition for the settlement of the suit in pursuance of the action of the supervisor. A mere handful, of electors assembled at the town meeting, under political manipulation, have passed a resolution asking that the order permitting such settlement be set aside and the appeal from the judgment be prosecuted. Yet, as pointed out above, the decision of two courts had been taken upon the agreement of the parties to the action, honestly made without any pretense of deceit or overreaching by either side. Should we sustain this order, we might again, after the next March town meeting, with a different result of the annual voting of the town, be called upon to revise our present action and restore the order originally made.

The case of William P. Chase against the same defendant, which was argued with this case, and upon the same facts, must, under the stipulation, abide the result of our determination in this action.

It follows, therefore, that the order appealed from should, in each case, be reversed, with $10 costs and disbursements. Also, that the original motion made and heard at the time of the hearing of this appeal, to vacate our order of March 25, 1890, must be denied, with ten dollars costs.

Dwight, P. J., and Corlett, J., concur.


text:
    Robert D. Kellogg, Resp’t, v. James J. Barrett, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Sale—Discount.
    Certain goods were sold to defendant on sixty days time with graduated discounts if paid before that time. A large portion of such goods were returned. In an action for the purchase price, Held, that the meaning of the contract was that in case the bill was settled in full for cash before the time expired there should be a deduction from the list price, otherwise the full price would be asked, and that defendant was not entitled to the discount on the goods returned.
    Appeal from a judgment entered in Monroe county on the report of a referee.

      J. M. Hastings, for app’lt; Frank H. Baker, for resp’t.
   Macomber, J.

The recpvery was upon a check drawn by the defendant to the plaintiff’s order for thirty dollars, and upon balances of account due from the defendant, in the one case to James H. Phelan and in the other to Jeremiah Phelan, both assigned to the plaintiff, amdunting in all, with interest, to $60.25. The indebtedness upon the check is not controverted. It is urged, however, upon this appeal, as well as at the trial, that on the James H. Phelan account there should have been deducted the difference between the $60 and the thirty day prices, which was two per cent, amounting to $5.11, leaving a balance unpaid of $10.19 instead of $15.30 ; and a deduction of $13.69, or four per cent, for like reasons, in the balance of the Jeremiah Phelan account. The evidence, which fully supports the conclusions of the referee, is that goods were sold on a credit of sixty days, with a graduated discount if paid before the expiration of credit. There were no cash payments, save twenty-five _ dollars on the Jeremiah Phelan bill; but most of the merchandise was returned by the buyer to the sellers and credited as cash on the account The case shows that the discount was to be allowed only in case the whole bill was paid before expiration of the sixty days. I do not see but that if the contention of the appellant’s counsel is correct, the defendant, by returning nearly all the goods and having them credited on the account at the invoice price and still claiming the discount for purposes of payment, would get for nothing that part of the property not returned. But the meaning of the contract was, that in case the purchaser paid and settled the bill in full for cash before the term of credit expired, there should be a deduction from the list prices; otherwise the full price asked should be paid.

ffhe judgment should be affirmed.

Dwight, P. J., and Corlett, J., concur.


author: Per Curiam.

text:
    In the Matter of the Will of George A. Bartholick, Dec’d.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Will—Pbobate—Evidence.
    Testimony of a legatee as to personal communications and transactions of testator is not admissible on a contested proceeding for probate of a will, although such communications and transactions were not personal to herself, but only in her presence.
    2. Same.
    The writer of the will wrote himself a legacy, and although he copied a former draft of will, it did not satisfactorily appear what changes he made, nor whether the will was read to or its contents understood by testator,who was enfeebled in mind and body by disease and old age, except by the testimony of a legatee. Held, that a case was not made out on the facts for admission of the will to probate.
    Appeal by the contestants from a decree of the surrogate of Monroe county, admitting the proposed will to probate.

      J. A. Stull, for contestants, app’lts; Theo. Bacon, for proponents, resp’ts.
   Per Curiam.

The writer of the will wrote himself a of $15,000; and although there was some evidence tending to show that he copied the instrument in ¡Dart from a former draft of a will, the provisions of which were substantially dictated by the testator, it does not satisfactorily appear what changes were made by the writer of the new will, nor, in the absence of the testimony hereafter mentioned, whether the will, as executed, was ever read to, nor how far its provisions were understood by the testator, who at the time of its execution was much enfeebled in mind and body by old age and disease.

The principal witness for the proponents, upon both the questions of testamentary capacity of the testator and of undue influence or deceit, was another legatee, for the sum of $5,500, who also stood in a confidential .relation to the testator, as his housekeeper and personal attendant, and she was permitted to testify, under objection of the contestants, to many transactions and communications, especially in immediate connection with the execution of the will, seen and heard by her.

The objections to the testimony of this witness were overruled upon the ground that such transactions and communications were not personal to herself, but only in her presence. The law now seems to be settled that this testimony was inadmissible. In re Eysaman, 113 N. Y., 62; 22 N. Y. State Rep., 136; In re Dunham, 121 N. Y., 575; 31 N. Y. State Rep., 858. Such being the case we have felt called upon, in our .consideration of this appeal, to reject the testimony of the witness (Lizzie Wiggins), referred to; and, in its absence, as already intimated, a case upon the facts is not made, to our satisfaction, for the admission of this will to probate.

We have, therefore, reached the conclusion that the decree of the surrogate should be reversed, upon a question of fact, and that a trial by jury should be had of the material questions of fact arising upon the issues between the parties. Code of Civ. Pro., § 2588.

So ordered. Order to be settled by the presiding justice.

Dwight, P. J., Macomber and Corlett, JJ., concur.