text:
    ESTHER L. TITUS, Respondent, v. PATRICK O’CONNOR, Appellant.

      Testimony of a party as to a conversation with a deceased person — when admissible.

    The defendant entered into an oral agreement -with one Titus to work a farm 'belonging- to the latter upon shares, upon certain terms. Subsequently Titus died, leaving the farm and all the implements thereon to his wife. Thereafter the defendant agreed with the wife, the plaintiff, to work the farm upon the same terms that he had worked it on for her husband.
    In an action by the plaintiff to enforce the latter agreement, held, that the testimony of the defendant, as to the terms of the agreement made with the deceased, was admissible as against the plaintiff.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought to recover the difference between the value of certain animals and farm implements on the farm formerly belonging to Robert W. Titus, at Westbury, at the time the defendant commenced working it on shares, and the value of the animals and farm implements on said farm when he left. Also for the partition or sale of certain articles jointly owned by the parties, and growing out of the same agreement and arrangement.
    The agreement was originally entered into between the defendant and Robert W. Titus, the husband of the plaintiff. He died, leaving a will by which the farm was devised to his widow, the plaintiff, and all the farm implements, stock, etc., were given to her. She was appointed executrix and has duly qualified. After the death of the husband it was agreed between the plaintiff and the defendant, that he should continue to work the farm, according to the agreement made with the deceased.

      Daniel Daly, for the appellant.

      Wm. H. Onderdonk, for the respondent.
   Gilbert, J.:

We think that the referee erred in excluding the testimony of the defendant, as to the terms of the contract between him and the plaintiff's deceased husband, Robert W. Titus. The plaintiff sues in her individual capacity and not as executrix of her deceased husband. The contract which she seeks to have enforced was made with her after her husband’s death. Both parties testified that the agreement between them was, that the defendant should work the farm on the same terms as ho had worked it under the agreement with the plaintiff’s husband.

That was a verbal agreement. The Code of Civil Procedure has no application to such a case, for the reason that the action does not affect any title or interest which the plaintiff has derived from, through, or under her deceased husband. Her title to, or interest in, the subject matter in controversy is. derived from the contract between her and the plaintiff. It has in no sense come to her by succession from her deceased husband.

By his will the ownership of the property embraced in the contract was transferred to her, but the contract has no relation to such ownership, but is limited to the management of the property only. The reference in that contract to the previous one between the defendant and the deceased simply adopts the latter, and makes it a part of the former. Evidence of the contract they adopted is essential to show the contract actually made by the plaintiff, but it would neither prove or disprove any claim which the plaintiff has derived from or through her deceased husband. No claim of that kind is involved in the action.

This error being decisive of the case, we need not discuss other excejitions raised upon the trial.

The judgment must be reversed, the order of reference vacated, and a new trial granted, with costs to abide the event.

Present — BabNAejd, P. J., Gilbeut and DyemaN, JJ.

Judgment reversed, and new trial granted at circuit, costs to abide event.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    JOHN SKELTON, Respondent, v. SARAH A. SCOTT, Appellant, Impleaded with others.

      Mortgage given by an executor — it is unnecessary to allege Ids appointment in an action to foreclose it.

    Where upon the conveyance of land to an executor, as such, he gives hack a purchase-money mortgage, as executor, he and his grantees are estopped from denying his appointment and authority, and it is unnecessary to allege in an action to foreclose the mortgage the time and manner of his appointment.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint, interposed thereto on the ground that it did not state facts sufficient to constitute a cause of action.
    This action was brought to foreclose a mortgage. The complaint alleged that said mortgage was given by one Israel O. .Beattie, as executor of the last will and testament of John J. Scott, deceased, on certain real estate situate in the village of Middletown. That said mortgage was transferred and assigned to the plaintiff. That the mortgaged premises, through certain mesne conveyances, came into the possession of the defendant Scott. The defendant Scott demurred to said complant, on the ground that it did not state facts sufficient to constitute a cause of action.

      Winfield, Leeds <& Morse, for the appellant.

      Allison & O'Neill, for the respondent.
   Gilbert, J.:

The objection made by the defendant Scott that the complaint does not allege the facts relative to the appointment of Israel O. Beattie as executor, namely, when, where, and by what functionary letters testamentary were issued to him is not tenable.

Had the mortgage declared on, been made by Israel O. Beattie’s testator, these averments might have been necessary. But such was not the case.

It was made after the death of the testator by Beattie, as executor, and it was, therefore, unnecessary for plaintiff, as the' holder of it, to make the formal allegations respecting the executor’s appointment.

The proceedings by which the executor was appointed, and the transfer of the testator’s effects, under these proceedings, would not be a necessary part of the plaintiff’s proof upon the trial, and hence the averment of them would be unnecessary and superfluous. (White v. Joy, 3 Kern., 87.)

Beattie having taken a deed of the mortgaged premises in his capacity as executor, and having given back the purchase-money and mortgage in suit, expressly in that capacity, is as well as defendant Scott who holds her title under him, bound by his act and estopped to deny his appointment and authority. (Tefft v. Munson, 57 N. Y., 97; Jackson v. Parkhurst, 9 Wend., 209.)

The order of the Special Term, overruling the demurrer of the defendant Scott, must be affirmed, with costs.

Present — Barnard, P. J., and Gilbert, J.; Dyeman, J., not sitting.

Judgment affirmed, with costs.


text:
    VEDDER VAN DYCK as Receiver of the YORKVILLE SAVINGS BANK, Respondent, v. THOMAS P. McQUADE, Appellant.

      Motion to change the place of trial — can/not he made mitil after demand after appearance — Code of Civil Proeedmre, §§ 421 and 986.
    A motion to change the place of trial, on the ground that neither plaintiff nor defendant reside in the county where the venue is laid, cannot he made until after a demand therefor, (as prescribed by section 986 of the Code of Civil Procedure), has been made by an attorney who has appeared in the action in one of the ways provided for by section 421 of the said Code.
    Appeal from an order made at Special Term, vacating an order changing the place of trial herein from Kings county to the county of New York, and denying a motion for such change.

      The action was brought to recover for alleged overdrafts made by the defendant in his account with a New York city bank, of ;which the plaintiff is the receiver. The defendant’s attorney before serving a formal notice of appearance, or an answer or demurrer, demanded that the place of trial be changed to the county of New York, on the ground that both plaintiff and defendant resided therein. Subsequently on his application an order to that effect was granted by default, and from the order vacating it this appeal was taken.

      Alex. Thain, for the appellant.

      Ely & Smith, for the respondent.
   Gilbert, J.:

It is not necessary in this case to decide whether the place of trial was located in the proper comity, for the reason that prior to the motion to change the place of trial no demand was made in accordance with the “Code of Civil Procedure.”

Such a motion can only be entertained after a demand, as prescribed by section 986 of said Code, and such demand must be made by an attorney who has appeared in the action.

Section 421 prescribes that an appearance must be made by the service of a notice of appearance or a copy of demurrer or answer.

No such appearance having been made there was no attorney competent to make the demand.

Order affirmed, with costs.

Present — BabNARd, P. J., Gilbert and DyemaN, JJ.

Order affirmed, with costs and disbursements.


author: Dykman, J.:

text:
    IN THE MATTER OF THE KINGS COUNTY ELEVATED RAILWAY COMPANY.

      Rapid transit — chap. 606 of 1875 — decision, of two sets of commissioners conclusive upon the General Term — confirmation of their report — Consent of the local authorities —■ who may apply for the appointment of commissioners by the General Term — Right of the commissioners to impose conditions.

    Where, in pursuance of chapter 606 of 1875, the commissioners appointed by the mayor of a city have decided that an elevated road should be built therein, and have located its route, and thereafter, the property owners refusing to consent thereto, commissioners have been appointed by the General Term, and have reported in favor of the construction of the said road and the adoption of the said route, the determination of the two sets of commissioners is conclusive upon the General Term as to the necessity of constructing the road upon the route selected.
    The duty of the General Term, upon an application to confirm the report of its commissioners, is confined to an inquiry as to whether their proceedings have been regular and fair, and whether their determination is reasonable and just. The court, in passing upon the report of its commissioners, is in no way affected by the fact that the local authorities have consented or refused to consent to the construction of the road.
    The fact that the mayor's commissioners, in locating the route, provided that the road might be constructed on either of two streets, or both, furnishes no reason for refusing to adopt their report.
    It is not necessary that the application for the appointment of commissioners by the General Term should be made by the mayor!s commissioners; it may b& . made by the company who desire to construct the road.
    The report of the commissioners will not be rejected by the General Term because their determination is, in some respects, subject to conditions.
    ■ APPLICATION to confirm the report of commissioners appointed by the General Term, under chapter 606 of 1875, to report upon the construction and location of an elevated railroad in the city of Brooklyn.
    Upon the application of fifty tax-payers of the city of Brooklyn the mayor thereof appointed five commissioners, to determine upon the necessity of constructing a railway therein, and to determine the route thereof. The commissioners having reported in favor of the construction of a road, and determined its route, the property owners refused to consent to it. Thereupon, on the application of the Kings County Elevated Railway Company, the General Term appointed three commissioners, who reported in favor of the construction of the road.

      Gilbert & Oameron, Ilenry J. Scudder and James Emott, for the petitioners.

      Edgar M. Chillen, for self and Henry S. Cullen.

      William O. He Witt, for F. A. Schroedcr and other owners on Fulton street
   Dykman, J.:

The sóbeme of the rapid transit act of 1875, so far as it is involved in the case at bar, is that whenever it shall appear by the application of fifty householders and taxpayers of the county that there is need therein of a steam railway, the mayor of the city shall appoint five resident commissioners, who shall have full power and authority to determine upon the necessity, and if they find such railway to be necessary, to them is delegated the exclusive power to determino and locate the route over, under, through or across the streets, avenues or lands in the city. A proviso requires that before such location shall become permanent, the consent of the owners of one-half in value of the property bounded on that portion of the street upon which it is proposed to construct the road shall be first obtained, or in case it cannot, then the determination of three commissioners appointed by the Supreme Court at General Term given after due hearing, and confirmed by the court, that the railway ought to be constructed, is to be taken in lieu of such consent, and also requires that the consent of the local authorities having control of the streets be first obtained. This proviso is substantially a transcript of the State Constitution (article 3, § 18).

Any necessity for inquiry into the validity and constitutionality of this law is superseded by the decision of the Court of Appeals in the matter of The New York Elevated Railroad Company (70 N. Y., 327), where it received the sanction and approval of that high tribunal upon all questions that can be here brought up.

The mayor’s commission carrying out the intention of the law have determined that the road is necessary and in the exercise of their exclusive power located the route. The consent of the property holders could not be obtained, and the commissioners contemplated by the statute in that event were appointed by this court, and have made a report of their proceedings which now comes to us for approval, for it must be confirmed by the court before it can stand in place of the consent of the property owners.

The Supreme Court commissioners have coincided with the view of the mayor’s commission that the road should be built. Such is the conclusion of two set of resident commissioners, familiar with the affairs of the city, after ample opportunity given to all for a hearing.

A controlling feature in this law is, that the mayor’s commission determine the necessity of the railway and the location of its route. With the feasibility of such location the Supreme Court commissioners have no concern, they have only to determine whether the road is to be constructed on the route already selected.

The Supreme Court is vested -with neither power nor duty in respect to the location of this route, or the construction of this road, except that by refusing confirmation to the commissioners’ report, it can stop the project. But on what ground can we refuse our assent ? Can we, without view and without inquiry, say that the two bodies of men, upon whom the duty of determining the question has been imposed by law, have reached an erroneous conclusion ?

Or do our duties cease with an inquiry whether the proceedings of our commissioners have been regular and fair, and their determination reasonable and just. We incline to the latter view. We think tho power is bestowed upon the two sets of commissioners to determine the questions submitted to them respectively, the determination of tho latter only to be dependent upon our confirmation for its validity.

Great complaint is made that the route is located on a certain street, but can we certainly say that the determination of the commissioners in that regard is unfair and unjust, or that the injuries to result to private interests by its location there are not counterbalanced by the benefits to the general public, which are to follow, or that the damages to property there are greater than they would be in some other locality. We think these were questions to be settled by the commissioners, and that with their determination we ought not to interfere.

It is made by tlie law an additional precedent condition to the construction and operation of the road, that the consent thereto of the local authorities having control of the streets shall be first obtained, but that is a requirement entirely independent of any action of the commissioners, or the court. Over that subject we have no control, and whether the consent is given or withheld can have no influence upon our action. If it is not obtained the road cannot be built, but we have no concern with the subject now.

A point was made on the argument that the mayor’s commissioners did not fix the route as they were required to do, because they determined in some instances that the railway may be constructed on either of two streets, or on both. This is quite sub-tile, but not very substantial. The route is fixed for both streets ; all that can be said is that the company is not required to build on both, and that is true of all the streets. The determination of the commissioners is' permissive in all cases, and mandatory in none.

Neither can we give force to the objection that the appointment of the Supreme Court commissioners should have been made on the petition of the mayor’s commissioners. The party to make the application is not specified by the statute, and so long as the matter was brought to the attention of the court, and the commissioners were appointed and made their report, the requirements of the statute have been sufficiently complied with.

Neither should the report of the commissioners be rejected, because their determination is, in one or two instances, subject to conditions.

Consent is merely withheld until a street is widened, or the Brooklyn bridge completed : in that event it is given.

The report of the commissioners should be confirmed.

BarNard, P. J., dissented.

Present — BaeNaed, P. J., Gilbert and Dykman, JJ.

Report of commissioners confirmed.


author: Barnard, P. J.:

text:
    ANDREW McFALL, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      On a criminal trial the court may allow the prisoner to withdraw a juror and put the case over the term — Courts of Sessions may grant new trials — chap. 769 of 1857.
    During' the trial of a prisoner on an indictment for libel, the court has power, at his request, to withdraw a juror, and allow the case to g'O over the term.
    Under chapter 7G9 of 1857 courts of sessions have power to grant new trials in cases tried before them.
    Writ of Error to the Court of Sessions in and for the county of Westchester, to review the conviction of the plaintiff in error of libel.
    ‘ G. II Roosevelt, for the plaintiff in error.

      Nelson II Baker, district attorney, for the People.
   Barnard, P. J.:

The plaintiff in error was convicted upon an indictment for the publication of a libel on Edward P. Baird. At the commencement of the trial the accused furnished proof of the service of a subpoena upon one E. W. Kuster, and had him called in court. Kuster did not answer. The trial proceeded, the court issuing an attachment for Kuster, who lived in Yonkers, a few miles from White Plains, where the court was held. At the opening of the court upon the second day of the trial the sheriff made a return that he could not find Kuster. The defendant then applied to have a juror withdrawn, and that the case go over the term. The court refused to grant the motion, solely upon the ground that it had no power or discretion to grant the motion, at the request of a defendant, during the progress of the trial. In this we think the court erred. (People v. Olcott, 2 Johns. Cas., 301; People v. Goodwin, 18 Johns., 187.) The defendant excepted to the ruling, and did not proceed further with his defence.

After conviction the plaintiff in error made a motion for a new trial, and this motion also was denied, solely upon the ground that the court had no power to grant the motion. In this also the court erred. Courts of sessions have power by statute to grant new trials in cases tried before them. (Laws of 1857, chap. 769.)

The conviction should be reversed, and a new trial granted at the Court of Sessions of Westchester county.

DyichaN, J., concurred.

Present — BaeNakd, P. J., Gilbert and DyiimaN, JJ.

Conviction reversed, and new trial granted at Sessions.


author: Barnard, P. J. :

text:
    JAMES CARSON BREVOORT, Respondent, v. THE CITY OF BROOKLYN, Appellant.

      Verification of assessment roll — omission of a portion of the oath — when a tax is not invalidated bp.

    By the charter of the city of Brooklyn the hoard of assessors are required to deliver to the hoard of supervisors copies of the assessment rolls, “ duly sworn to hy at least two of the assessors, according’ to the oath provided hy law in regard to assessment rolls in the different towns in this State; and, further, to the effect that they have together personally examined, within the year past, each and every lot and parcel of land, house, building, or other assessable property.”

      Held, that the omission from the oath, attached to the rolls, of the statements relating to the personal examination of the property assessed did not invalidate the tax-rolls, or render void the tax levied hy the hoard of supervisors upon the property mentioned in them.
    Appeal from a judgment in favor of the plaintiff, entered upon an order overruling a demurrer, interposed by the defendant on the ground that the complaint did not state a cause of action.
    The action was brought to recover from the city of Brooklyn certain moneys paid by the plaintiff to the collector of taxes and registrar of arrears of said city, upon the purchase of certain lots assessed for the taxes of 1862, and upon the purchase of a certain certificate of sale for the tax of 1872. The complaint alleges that the assessors’ oath was insufficient, as not complying with section 31 of title 4 of chapter 384 of 1854, as amended by section 21 of chapter 63 of 1862, and that the taxes were therefore void.

      Win. O. De Witt, for the appellant.

      Walton P. Bell and John J. Townsend, for .the respondent.
   Barnard, P. J. :

It is difficult to determine the intention of the Legislature in making, in the city of Brooklyn, the addition to the usual oath of assessors to the assessment rolls in other parts of the State. The general oath was revised and established in 1851. (Chapter 176, Laws of 1851, § 8.)

In 1854, Brooklyn and 'Williamsburgh were consolidated. By this act it was provided that two assessors should be elected from each ward, and the whole number were made a board of assessors. The oath required was the general oath. (Chap. 384, Laws of 1854, tit. 4, §§ 28, 33.)

In 1862, the assessors were reduced to five in number, and were to be appointed. No two of the assessors should reside in one ward, and two should reside in the eastern district. The additional oath was added, and was to be sworn to by “ at least two of the assessors, according to the oath provided by law in regard to assessment rolls in the different towns of this State ; and, further, to the effect that they have together personally examined, within the year past, each and every lot or parcel of land, house, building or other assessable property within.the ward, to be,delivered to the board of supervisors of the county of Kings, which board shall proceed thereon, in the manner required by law for the laying and collecting of taxes.” It will be seen that this oath need not be taken by a majority of the board, and the two who swore to the oath need not be either of the three who have fixed the value, without seeing the lots within the year. If the two assessors in each ward had continued, it would seem to have been the design of the provisions ••of this act-that the two ward assessors in each ward would assess and swear to the oath for their ward. After the change in the number of the assessors it would seem that if the law was to be effective, it would require that the majority, or all of the assessors should swear that they had seen the land, or that one or more should swear that all had seen each piece assessed within the year. Whatever may have been the design of the law, the oath that the assessors had seen every lot assessed within the year is omitted, and only the general oath is annexed to the assessment rolls. I do not think this omission made the assessment rolls void ; as assessors they had the jurisdiction over the subject-matter of the assessment. The assessment itself was valid. In the absence of any evidence or averment to the contrary, it will be presumed that the assessors did their official duty, and that they, or a sufficient number of them, saw the lands assessed within the year. A portion of the oath ia omitted when the rolls were delivered to the supervisors. Tha supervisors levied the tax. No case holds that the action of the supervisors in laying the tax upon the rolls thus verified are void. In Van Rensselaer v. Witbeck (7 N. Y. Rep., 517), it was held that an oath must be taken by the assessors that they had assessed “ according to the usual way of assessing.” In Westfall v. Preston (49 N. Y., 349), the Court of Appeals held that the assessors could not place a tax against an individual for personal property after they had lost jurisdiction of the rolls, and that the order of supervisors to collect the tax did not aid it. In The People v. Suffern (68 N. Y., 321), the court decided that if no affidavit was annexed to the roll, the roll was invalid.

The same court has decided that an omission of a portion of the statute oath, by assessors, did not make invalid the assessment roll. (Parish v. Golden, 35 N. Y., 462.) Also, that the assessors were only required to comply substantially with the statute, oath. (Buffalo and State Line R. R. Co. v. Supervisors of Erie County, 48 N. Y. Rep., 93.)

Under this state of the adjudication, we do not deem it plant that the omission of the portion of the oath complained of renders the proceedings of- the board of supervisors void, in laying the tax upon it.

The tax in one case was laid in 1862 ; in the other in 1872. The case should bo plain which has the effect to unsettle the tax levies in question for those years.

The judgment should be reversed, -with costs, and the plaintiff be allowed to amend, in twenty days, on payment of costs.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

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


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY SEARS, Appellant, v. THE BOARD OF ASSESSORS OF THE CITY OF BROOKLYN, Respondent.

      Militiamen not entitled, to any deduction from the amount of their assessment for taxation — Sect. 253 of chap. 80 of 1870 repealed by sect. 59 of chap. 223 of 1875.
    Section 253 of chapter 80 of 1870, entitling members of the national guard, to a deduction of $1,000 from the assessed valuation of their real and personal property, was repealed by section 59 of chapter 223 of 1875. The latter act is applicable to those who had enlisted prior to its passage, and whose term of service had not then yet expired.
    Appeal from an order made at Special Term, in this proceeding, denying the application made by the relator for a peremptory mandamus to compel the assessors of the city of Brooklyn to vacate and set aside the assessments of taxes, entered against the property of Henry Sears, upon their books for the years 1875, 1876, 1877 and 1878, on the ground that he was a member of the national guard, having enlisted therein on June 22, 1874.

      David D. Ghoynne, for the relator.

      William Q. DeWilt, for the respondent.
   Dykman, J.:

It was provided by the law, for the enrollment and organization of the national guard of the State of New York, that every commissioned officer, and every non-commissioned officer, musician and private of the national guard shall be exempt from jury duty, and shall be entitled to a deduction from the assessed valuation of his real and personal property to the amount of $1,000 during the time he shall perforin military duty. (Laws of 1870, chap. 80, § 253.) This provision was, doubtless, intended as an inducement to voluntary enlistments into this military organization. Notwithstanding that, however, it was one which the Legislature might at any time modify or repeal, and the enrollment of the relator constituted no impediment to the exercise of that right as to him. (People v. Roper, 35 N. Y., 629.)

Accordingly, we find that in the year 1875 the Legislature amended this provision of the law, and entirely omitted all immunity from taxation by reason of membership in the military organization. (Laws of 1875, chap. 223, § 59.)

The relator is, therefore, in error in supposing that he is entitled to any deduction from the assessed valuation of his real estate, by reason of his membership or services in the national guard, and his application was properly denied.

Order affirmed, with costs and disbursements.

Present — BaeNArd, P. J., Gilbert and DyrmaN, JJ.

Order affirmed, with costs and disbursements.


author: Dykman, J. :

text:
    LAZARUS WILMERSDOERFFER, Respondent, v. THE LAKE MAHOPAC IMPROVEMENT COMPANY, Appellant.

      An action to dissolve a corporation must be brought by the attorney general — sect. 2, chap. 151 of 1870.
    Since the passage of section 2 of chapter 151 of 1870, an action to dissolve a corporation for a failure to pay its notes or other evidences of debt, or for suspending its ordinary and lawful business for one year, can only be brought by the attorney general.

      Appeal from a judgment dissolving the defendant corporation, entered upon an order overruling a demurrer to the complaint.
    The action was brought by a stockholder, in behalf of himself and all others similarly situated, against the defendant to have it dissolved under section 38 of 2 Eevised Statutes, page 463.
    The complaint alleged the sale of the corporation’s property, the recovery of judgments against it to a large amount, which still remained unsatisfied, and the suspension of its ordinary business for more than three years.

      John D. Taylor, for the appellant.

      John L. Sill and John Franleenheimer, for the respondent.
   Dykman, J. :

It is provided by our statute that whenever any incorporated company shall have remained insolvent for one whole year, or for one year shall have neglected or refused to pay and discharge its notes or other evidences of debt, or for one year shall have suspended the ordinary and lawful business of such corporation, it shall be deemed to have surrendered the rights, privileges and franchises granted by any act of incorporation, or acquired under the laws of this State, and shall be adjudged to be dissolved. (2 E S., 463, § 38.) This statute goes further than the common law has gone before it, and-makes certain circumstances, heretofore having no such effect, equivalent to a surrender. An action therefore instituted under this provision is not presented for the surrender of the franchise of the corporation, but to have its dissolution judicially declared. The existence of the circumstances enumerated in the statute are the death of the corporate body, and the object of the action is to have such death judicially declared and recorded. The complaint in this action contains all the allegations necessary to bring the Lake Mahopac Improvement Company within the condemnation of the statute, and is sufficient, so far as it lies in statement of matter and circumstance, but the demurrer raises the question of the capacity of a stockholder to maintain the action. Previous to the year 1870 the courts of this State had been divided on this question, and there is no necessity now of harmonizing the conflicting decisions and dicta on the question, because, in that year, the Legislature of our State passed a law to regulate proceedings against corporations by injunction and otherwise, in which it is provided, among other things, that all actions and proceedings against a corporation when the relief sought or which can be granted therein, shall be the dissolution of such corporation, or the removal or suspension of any officer or director thereof, shall be brought by the attorney general in the name of the People of the State. (Laws of 1870, chap. 151, § 2.)

"Whatever doubt existed before this statute, is now removed, and such an action, as the present, must be brought by the attorney general in pursuance of its provision, and cannot be instituted or maintained by a stockholder.

The judgment must be reversed, with costs.

Present — BarNARd, P. J., and DyemaN, J.; Gilbert, J., not sitting.

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


author: DyrmaN, J.: Gilbeet, J.:

text:
    THE LONG ISLAND BREWERY COMPANY, Appellant, v. J. P. FITZPATRICK, Respondent.

      Fees for storing goods — when it is unnecessary to tender them befcrre bringing a suit for the recovery of the goods.

    Where a bailee refuses to deliver the goods to the bailor, on the ground that the latter is not entitled to take them, averring an intention to contest bis right in the court, it is not necessary for the bailor to tender the fees due for the storage of the goods before commencing an action for them recovery.
    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Charles C. Smith, for the appellant.
    A bailee having a lien upon goods, when a return thereof is demanded by the bailor, waives his lien when he makes no mention of it, and puts his refusal to deliver upon a separate, distinct and independent ground. (Winter v. Coil, 3 Sold., 288; Everett v. Saltus, 20 Wend., 268; S. O., 15 id., 474; Everetts. Coffin, 6 id., 608; Holbrook v. Wright, 24 id., 169; Hows v. Drummond, 10 Barb., 183; Dunlap v. limiting, 2Denio, 643; Rogers v. Weir, 34 N. Y., 463.) The absolute refusal of the respondent to deliver the property waived a tender on the part of the appellant. (Everett v. Saltus, 20 Wend., 268; Crest v. Armour, 34 Barb., 378; Skinner v. Tinker, id., 333; Cornwall v. Haight, 21 N. Y., 462; Blewert v. Baker, 58 id., 613; Shaw v. Republican L. I. Co., 69 id., 286; Frost v. Clark-son, 7 Cow., 24.)

      Catlin, Austin & Backus, for the respondent.
   DyrmaN, J.:

This is an action for the recovery of twelve casks of stock ale held by the defendant under the following receipt, to wit:

“BROOKLYN, December 28, 1877.
“ Received from Long Island Brewery, Nos. 81,83, 85, 87,89 and 91 Third avenue, the following goods which belong to, and the title to which is to remain in the Long Island Brewery until wholly paid for. Storage to be paid by said Long Island Brewery at the rate of twelve cents per year on each cask. The property may be removed by said Long Island Brewery at any time, on payment of storage.
“E — Casks. Hf. casks. Qr. casks; two casks ale stock; ten casks ale stock.
“ J. P. FITZPATRICK.
“ Mr. J. P. Fitzpatrick, M. Dooley,
Herkimer street. driver.”
On the trial the following testimony was given by Dooly in behalf of the plaintiff.”

Q. State after the delivery of the stock ale what transactions or conversation you had with the defendant in reference to it ?

A. I had none ; not any with reference to the stock ale until I wont to claim it.

Q. When did you go to claim it ?

A. About April 1, 1878.

Q. What transpired at that time ; did you demand the ale ? ij

A. I went there to collect a bill and he refused to pay it; I told him I would take the ale away.

Q. "What bill did he refuse to pay ?

A. The fresh ale ; I told him if ho would not give it I would send the sheriff for it; he said ho was going to law about it; that we could take it, and refused to deliver the stock ale ; that was all that transpired, as near as I can recollect, about the substance.

On cross-examination this witness testified as follows :

Q. You told him if ho did not pay the bill for the fresh ale that you would take away the stock ale ?

A. Yes.

Q. Tell all that was said; begin at the first; give the whole conversation.

A. I went there to collect a bill; I demanded money for the fresh ale ; that is about what I said.

Q. Did you say, I demand the money ?

A. No ; I said, I want you to pay this bill; I showed him the fresh ale bill; he said he would not do that; he was going to law with the Long Island Brewery, and he was going to retain the old ale also until the case was decided.

The complaint was dismissed on the trial, on the ground that the payment of storage was a condition precedent to the right to remove the stock ale, and that it was the right of the defendant to have the storage paid before the property was removed.

While this is true, as a proposition of law, yet when the demand was made the defendant put himself upon no such ground. On the contrary, the extract given from the testimony shows that when demand was made of him for the ale he said he was going to law with the company, and was going to retain the old ale until the case was decided. This was equivalent to saying he would not deliver it up until that time, and rendered any tender of storage useless and unnecessary. It was such an absolute refusal as amounted to a conversion. The general rule of law certainly is that a bailee of goods waives his lien by placing his refusal to deliver on other grounds. ( Winter v. Coit, 7 N. Y. [3 Seld.], 288; Saltus v. Everett, 20 Wend., 267.)

We think, therefore, that the defendant waives his lien, by ^avowing his determination to retain the property until the determination of the litigation, upon which he was about to enter with the company, and placing his refusal to deliver on that ground.

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

Gilbeet, J.:

I think the county judge erred in his disposition of this case. No doubt the defendant had a lien for the storage of the goods. But he has not placed himself upon that ground. No lien is set up in the answer, nor was any such claim made when the goods wore demanded ; on the contrary, the defendant took the same away, not because a charge for storage had not been paid, but because he intended to litigate the title to'the goods. That act dispensed with a tender and amounted to a conversion of the goods.

A formal tender for the purpose of discharging the lien of a bailee after he has actually disavowed the bailment and refused to deliver the goods to the bailor, on the ground that he is not entitled to them, canuot be necessary, for the law never requires the performance of a superrogatory act.

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

Present — BARNARD, P. J., Gilbert and DykmaN, JJ.

Judgment and order denying new trial reversed, and new trial granted, costs to abide event.


text:
    WILLIAM R. HUMPHREY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Books of bank — admissibility of, as against its officers.

    The plaintiff in error was indicted and convicted of embezzling the funds of a savings bank, of which he was the secretary. Upon the trial, the books of the bank, which were kept by the accused, and in his handwriting, and also a book kept by the treasurer of the bank, showing the amounts paid over to the bank by the accused, were received in evidence.

      Meld, that as the treasurer’s book was kept in the regular course of business of the bank, and as the accused was an officer thereof, it was admissible against the accused to show the amounts received.
    The accused offered to show that the other officers of the bank were in complicity with him, and that he made the false entries in the books with their knowledge and ax>proval, for the purpose of deceiving the Bank Department at Albany. Meld, that the evidence was pi’operly rejected.
    Writ or error to the Court of Sessions for the county of Westchester, to review the conviction and sentence of the plaintiff in error for embezzlement of the funds of the New Rochelle Savings Bank, of which he was the secretary.

      W. Baurke Gockran, for the plaintiff in error.

      Nelson II. Baker, district attorney, for the People.
   Dykman, J.:

The testimony in this case very clearly discloses the guilt of the defendant; appointed secretary of the savings bank in 1 New Rochelle, he almost immediately commenced to appropriate to his own use the money he received in trust for that institution, and to conceal his misappropriations by a system of false entries, which ho continued until the suspension of payment by the bank, caused principally by his malfeasance.

On the trial of the cause a number of bo ote of account were offered in evidence on the part of the prosecution, all of which were in the handwriting of the defendant but one, and that was identified as one of the books of the bank. This book was received in evidence with the others, and its reception by the-court is now assigned as error.

Humphrey was an officer of tbis bank, and its books of account are tlie evidences of its transactions, and record tbe acts of its officers. By these recprds all the officers must be bound, whether made by them individually or by other agents of the institution, whose duty it was to keep them. It apjiears that the book objected to was the treasurer’s book, and was used to show the amount of money paid over by the defendant, as secretary. This book would not naturally be in the handwriting of the defendant, but being one of the books kept in its regular course of business, it may be used to show the money received. We do not find any error in this ruling.

This view also disposes of the objection to the testimony of the expert witness, who made a comparison between the money received by the defendant, as shown by the pass-books of the depositors in his hadwriting, and the treasurer’s books, to which the objection was made.

The defendant desired to show that other officers of the bank were in complicity with him, and that the false entries were made with their knowledge and approval, for the deception of the Bank Department at Albany. This testimony was excluded, and the charge was also that the fact constituted no shield or defence to the prisoner. To all of which exception was taken, and it is now claimed that this error calls for a new trial.

We think the position is untenable. It comes to little more than a claim that others are implicated in guilt with the defendant.

Another exception is to that portion of the charge in which the jury was instructed that they must convict the prisoner, unless his story satisfied them of its truthfulness ; but the charge on examination does not justify any such construction. Upon that subject the judge said, if the testimony of the defendant failed to convince the jury of its truthfulness it must be rejected the same as the testimony of other witnesses.

On the whole case we find no error that would justify a reversal of the conviction, and it must be affirmed.

Present — BarNakd, P. J., Gilbert and DyxmaN, JJ.

Judgment affirmed.


text:
    JOHN A. ROBINSON AND GRAHAM ROBINSON as Executors, etc., of JOHN ROBINSON, Deceased, Plaintiffs, v. THE PACIFIC FIRE INSURANCE COMPANY OF THE CITY OF NEW YORK, Defendants.

      Policy of insurance — waiver of a condition by the company — failwre to pay a premium — when an action will not be defeated thereby.

    May 21, 1873, the defendant issued a policy of insurance to one John Robinson upon a building owned by him. In July, 1874, Robinson died leaving a will disposing of all his property. Thereafter the policy was continued by annual renewals issued in his name, until the property was burned.

      Held, that the act of the company in renewing the policy in the name oí the insured, with knowledge of his death, was a waiver of a condition therein, avoiding it in case of any transfer of the interest of the insured without the written consent of the company.
    An action upon a policy of insurance will not be defeated by the fact that the premium was unpaid at the time of the fire, if the acts of the company prior thereto show an intention on its part to treat it as valid and to enforce payment of the overdue premium.
    MotioN for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff.

      W. II. OnderdonJc, for the plaintiffs.

      A. JR. Dyett, for the defendants.
   Dykman, J.:

This is an action upon a policy of fire insurance, issued to John Robinson, the owner of the property, on the 21st day of May, 1873. The assured died in July, 1874, leaving a will by which he disposed of all of his proper cy, and after that the policy was continued in force by annual renewals in his name. The last renewal continued the policy to May 21, 1878, and at the timo it was made the defendant had notice of the death of the assured, and that the plaintiffs were his executors. The premium on the last renewal had not been paid at the time of the fire, which occurred in February, 1878. All the other renewals had been paid. When the policy was issued tbe premises insured were unoccupied, and after that time they were used for the manufacture of cane seats for chairs. While they were so used for in 1877, a bill was sent to the plaintiffs by the defendant for the last premiufh, with a letter stating that the premises were occupied as such manufactory, requesting them to see to the matter at their earliest convenience, and have the proper privilege indorsed on the policy and pay the premium. Another bill was sent to them bearing date December 17, 1878. Mr. Quackenboss had the bill handed to him by the secretary for collection in the fall of 1877, and he requested payment from one of the plaintiffs, and received his promise that he would give it attention, and the secretary called twice on him to see if the premiums had been paid.

A recovery was resisted by the defendant, on the ground that upon the death of the original insured the title of the property passed from him to others, and the plaintiff had no insurable interest. Second. Because the premium was not paid within the time specified in the policy; and, third. Because the building was occupied as a factory without notice to the company.

It is not necessary to a recovery by the plaintiff, to hold that this policy in question always continued in life. On the contrary, it may be assumed that its vitality ceased with the death of the assured, and the departure of the title from him. Such death, however, was not beyond the power of resurrection by the consent of the parties. It resulted from no vice or illegality, and only from a condition in the contract itself, which it was entirely competent for the parties to waive. If, therefore, with full knowledge of all the facts, the defendant renewed the contract with the plaintiffs the policy was thereby revived and restored, with all the virtue and validity it possessed in its original inception.

That was an act showing a full recognition of liability under the policy as an outstanding obligation, and amounted to a complete waiver. The jury must be held to have so found upon the facts, and the findings are fully justified by the testimony.

The testimony is also full and complete to show a waiver of the condition in the policy, respecting the payment of the premium and the occupancy of the premises.

Down almost to the time of the destruction of the property by fire the defendant was making vigorous attempts to collect the premium on the last renewal, and showed no sign of an intention to take advantage of the conditions in the policy which made it void, but one quite to the contrary of continuing the policy, and collecting the consideration for so doing.

The authorities in our State are quite numerous and decisive that a forfeiture may be waived and a policy revived by any act, from which the consent of the underwriters may be fairly inferred, and they have all been so frequently and thoroughly examined and approved that no further reference to them here is considered necessary. All the controverted questions of fact were fairly submitted to the jury, and the plaintiffs should have judgment upon the verdict, with costs.

Present — Barnard, P. J., and DykjiaN, J.; Gilbert, J.,not sitting.

Exceptions overruled, and judgment for the plaintiff ordered on the verdict.


author: Gilbert, J.

text:
    EMMA T. BARRINGER, Administratrix, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      ■Action for injuries occasioned by the negligence of a railroad — the fact that the railroad’s negligence was the proximate cause of the accident must be shown.

    Appeal from an order denying a motion to set aside a yerdict in favor of the plaintiff, made upon the minutes of the justice before whom the action was tried.
    This action was brought to recover damages sustained by the respondent, the widow, and by the next of kin of, Edward M. Barringer, deceased, who, it is alleged, came to his death through the negligence of the defendant, and to recover for a horse and wagon injured at the same time that the deceased was killed.
    The answer denied negligence on the part of the defendant, and set up contributive negligence on the part of the deceased.
    The deceased came to his death by the same accident which caused the death of John Cosgrove, and the same facts are presented in this case, without any substantial addition or variance, as were presented in the case of Margaret Qosgrove, A/lmx., v. The JST. Y. O. and II. JR. JR. JR. Go., reported in 13 Hun, 329.
    The court at General Term said.:
    “ The principle decided in the case of Cosgrove against this defendant (13 Hun, 329), namely, that proof that the death of the plaintiff’s intestate was caused by the negligence charged against the defendant, is essential to uphold a recovery in her favor, is decisive of this case. The facts respecting that point are in substance and legal effect the same as in that case. They show that the proximate cause of the accident was the inability of the deceased to control his horse, and not the negligence of the defendant’s alleg'ed.
    “ In such a case the plaintiff cannot recover, not because the deceased was guilty of contributive negligence, but simply because his death was not caused by the negligence of the defendant.”

      Frank Loomis, for the appellant. IL A. Nelson, for the respondent.
   Opinion by

Gilbert, J.

Present — Gilbert and Dykman, JJ.; Barnard, P. J., not sitting.

Order denying new trial reversed and new trial granted, costs to abide event.


author: per curiam.

text:
    HENRY B. PHILBROOK, Appellant, v. WALTER P. KELLOGG, Respondent.

      Action for conversion — damages — •price realized at auction not conclusive on either party.

    Appeal from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    " The action was brought to recover damages for the conversion of certain articles of personal property seized by the defendant and sold under a chattel mortgage executed by the plaintiff’s wife. The verdict of the jury was for less than the amount realized on the sale of the property at auction.
    The court at General Term said :
    “ The evidence in this case as to the value of the property in dispute was conflicting, and the verdict must be held conclusive, unless, as matter of law, the jury was bound to render a verdict at least for a sum equal to what the property brought at auction, with interest thereon up to the day of trial.
    “ The auction price is evidence of the value of property, proper to be submitted to a jury, but it is not conclusive for or against either party. The plaintiff did not seek to affirm the sale and recover the proceeds, but charged the defendant as a wrongdoer’, and sought to recover damages for the tort.”

      H. B. Philbrooh, appellant in person. Estes & Barnard, for the respondent.
   Opinion

per curiam.

Present — BarNard, P. J., Gilbert and Dxkman, JJ.

Judgment affirmed, with costs.


text:
    THE NATIONAL BANK OF NEWBURGH, Respondent and Appellant, v. JAMES BIGLER, HALSEY R. STEVENS, MARY A. BIGLER, Appellants, THE HIGHLAND NATIONAL BANK OF NEWBURGH, Respondents and others.

      Accommodation indorser — when, not released by the taking of new notes — right of a creditor to the security held by a surety.

    Appeal from a judgment of foreclosure and sale, entered upon the trial of this action by the court without a jury.
    On November BO, 1874, the plaintiff held paper made by J. Bigler & Co. indorsed by David Moore & Co. On that day the defendants Biglers executed to David Moore and Halsey R. Stevens (who composed the firm of David Moore & Co.) the mortgage which this action is brought to foreclose, which mortgage was for $100,000, and contained the following condition : “ This mortgage is intended as a continuing security to the parties of the, second part for all present and future indebtedness of said James Bigler, or of J. Bigler & Co. to them, and as a continuing security and indemnity to said parties of the second part, for and against all liabilities they have incurred, or may hereafter incur, as indorser, acceptor or surety in any form for the said James Bigler, or J. Bigler & Co.”
    The articles of co-partnership of David Moore & Co., provided that the business should be continued until February 1, 1878.

      In September, 1877, David Moore died. At that time the plaintiff held Bigler’s paper, indorsed by David Moore & Co., to the amount of $91,500. Within a few days after Mr. Moore’s death, it was agreed between Mr. Stevens (the surviving partner), Mr. Bigler (for J. Bigler & Co.), and the plaintiff as follows: When each note fell due it was to bo protested and the indorsers notified. Bigler was to make new paper and Stevens to indorse it individually; and such new paper was to be discounted by the plaintiff for Mr. Stevens, and the proceeds placed to his (Stevens) credit. Stevens was then to draw his check and take up the protested paper and pledge it with the plaintiff as security for the new paper. This arrangement was made with the avowed intention by all parties to keep the orignal paper alive. Mr. Thomas S. Moore, executor of David Moore, was notified of the arrangement the day it ivas made, by the president of the bank, and made no objection.
    This arrangement was carried out. The original paper was all protested as it fell due, and is still held by the plaintiff Of the new paper, indorsed by Stevens individually, a part has been paid, after deducting which there remains due to the plaintiff $44,455.81.
    On April 4,1878, the executors of David Moore, deceased, and Halsey Ii. Stevens, the surviving partner of that firm, executed to the plaintiff’ and the Highland National Bank an assignment of the mortgage given by the defendants Biglers to Moore & Stevens as above stated.
    This action is brought to foreclose the mortgage so assigned.
    The court at General Term said : “ The position assumed by the defendants Bigler & Stevens, that the mortgage in suit cannot, be foreclosed by the bank holding it, because the firm of David. Moore & Go. are no longer liable to these banks upon the paper: which the mortgage was assigned to secure, is not tenable.
    “Assuming the correctness of the claim of the appellants’ counsel, that the liability of D. Moore & Co. had boeh extinguished by the arrangement made shortly after the death of David Moore between Bigler & Co., Stevens, as surviving partner of D. Moore & Co., and the plaintiff, which provided in effect that the notes of Bigler & Co., indorsed by D. Moore & Co., held by the plaintiff, and secured by the mortgage, should go to protest, and after protest should be retired by new notes made by Bigler and indorsed by Stevens, and that the old notes thus retired should be pledged to plaintiff as collateral for the new paper, yet it is clear that the plaintiff, as a creditor of Bigler & Co., could'be entitled to enforce the mortgage in question, which was given to Moore & Co. as collateral security for the indorsement by them of Bigler & Co.’s paper, upon the general and familiar principle of equity, that the creditor is entitled to all the securities given by the principal debtor to his surety, even when held in the name of the surety until the debt is finally paid. (Vail v. Foster, 4 Comst., 312; Ourtis v. Tyler, 9 Paige, 432.)
    “ Here the mortgage did not stand in the name of the indorsers, but had been assigned by them to the plaintiff for the express purpose of securing their own as well as Bigler & Co.’s indebtedness.
    “ Under such circumstances it has been held that an extension of the time of payment given by the creditor to the ¡principal debtor, or even a release from the debt, will not deprive the creditor of his rights to the security taken by'the indorser. (Qod-dingtonY. Davis, 1 Comst., 186; Moore v. Paine, 12 Wend.,-123.)
    “ But we are of opinion that the above arrangement, referred to,' did not discharge the firm of D. Moore & Co. from liability upon the old notes.
    “ This plan was devised for the express purpose of avoiding any question as to the authority of Stevens, as surviving partner of D. •Moore & Co., to continue the firm indorsement upon the paper of Bigler & Co. after Mr. Moore’s death.
    “ The bank of Newburgh was willing to carry the paper, provided they could do so without releasing D. Moore & Co., and the arrangement was made at the solicitation of Stevens and Bigler, to save them from loss, and with the avowed intention on the part of all parties to keep the original notes alive, and the executor of Moore, who, at the time, was notified of the arragemont, made no objection to it.
    “ Even if the intention thus to preserve the original liability in force did not plainly appear, the taking of new notes, even of third persons, would not work an extinguishment of the liability upon the old notes, or discharge the security of the mortgage, in the absence of an express agreement to that effect. {Chapman v. Jenkins, 31 Barb., 1(54, and cases cited ; Crosby v. Craft, 5 Hun, 327 ; affirmed, 69 N. Y., 6U7.)
    ‘‘The indorsement by Stevens of Bigler & Co.’s notes after the death of Mr. Moore was made in pursuance of the above scheme, and, if not within his authority as surviving partner, was clearly within the scope and intent of the indemnity. The mortgage was not made to D. Moore & Co., but to David Moore and II. R. Stevens, as individuals, and was evidently intended to secure the engagements of either of them as indorsers ; and it also appeared by the terms of the co-partnership articles of D. Moore & Co. that the firm was not to be dissolved by the death of either partner, but the business was to continue until a time later than the period covered by the indorsements in question.”

      J. B. Kerr, for the National Bank of Newburgh, respondent and appellant.

      A. 8- Cassidy, for the Highland National Bank, respondent. Theodore F. Miller, for Mary A. Bigler, appellant. F. L. Fancher, for James Bigler and II. R. Stevens, appellants.
   Opinion by

Gilbert, J.

Present — Gilbert and DykMan, JJ.; BarNARD, P. J., not sitting.

Judgment affirmed, with costs.


text:
    CHARLOTTE WAIT and others, Appellants, v. LOUISA BREEZE and others, Respondents.

      Undue influence — what must be shown to avoid a will.

    Appeal from a judgment, entered on the verdict of a jury upon an issue ordered by the General Term, pursuant to the Revised Statutes, upon a reversal of the decree of the surrogate o_f county, rejecting for probate certain writings offered Will and testament of Sarah Parker, deceased, ancj order made at Special Term denying a motioiij made upon a case and exceptions. A motion ; also made at the General Term in the first instance upon the case as settled. Probate of the will was denied, on the ground that its execution was procured through undue influence.
    With reference to this question, the court at General Term said:

      “ The proof upon the subject of undue influence equally falls short of establishing any such case of force or coercion as to
    The law requires that the influence must be such as to deprive the testatrix of the free exercise of her will.
    To invalidate a will, made by a person of testamentary capacity, it must be proved that such force, threats, or coercion were used as to dominate the will of the testator and substitute the will of another in its stead.
    It must be such importunity or coercion as, under the circumstances, could not be resisted, and thus destroyed free agency.
    The exercise of the influence springing from family relations, or from motives of duty, affection or gratitude, cannot be regarded as undue, even though pressed to an inordinate extent..
    “ The right of a testatrix to dispose of her property is absolute, and cannot be controlled by any evidence that falls short of establishing a defect of testamentary capacity, or actual fraud or coercion. (Clapp v. Fullerton, 34 N. Y., 197; Bride v. Bride, 66 id., 144; Tyler v. Gardiner, 35 id., 559.)
    The reason of the rule is that anything short of the- actual substitution of the will of another, for that of the testatrix, would lead to inextricable confusion and uncertainty, as it would necessarily involve an inquiring into the reasons and motives operating upon the mind of the testatrix in making the will, and the submitting to a court or jury the sufficiency and propriety thereof. Such a course would render the power of testamentary disposition of little value.
    I cannot find any evidence in this case bringing it within the rule respecting undue influence before stated.
    Jfhfe most that can be claimed upon the part of the contestants ^¡ents and solicitations were used, upon the part of the |der the will, in procuring the will to be made, ecient to warrant a finding of undue influence, ¿his is the proof that the circumstances, under which tho will was executed, and the whole history of the transaction satisfactorily show that the will was dictated by and expresses the mind of the testator.”

      Winchester Britton, for the appellants, G. W. Pleasants, for the respondents.
   Opinion by

Gilbert, J.

Present — Barnard, P. J., Gilbert and DykMAN, JJ.

Order of Special Term denying motion for new trial revei'sed, and motion for new trial at General Term, in the first instance, granted, and now trial ordered at next circuit in Kings county.


author: Dykman, J.

text:
    CECILIA LOUISE WIGAND and others, Infants by EDWARD S. HUBBE, their Guardian ad litem, Appellants, v. LOUIS DEJONGE AND AUGUSTA MORTENS Individually, and as Executors, etc., of FRANCIS WIGAND, Deceased, Respondents.

      Action to compel a trustee to account and for Ms removal — when the plaintiff will not he required to furnish a hill of particulars showing the specific iiregularities complained of.

    Appeal from an order made at Special Term, requiring the piaintilFs to furnish a bill of particulars.
    The defendant Dojonge is executor and trustee under the will of Erancis Wigand, deceased, and the plaintiffs are infant children of the testator. They accused him of malfeasance in the discharge of his duties as such trustee by making unlawful and improper investments upon inadequate securities, and misapplying the trust funds in payment of taxes and assessments upon vacant lots of land improperly purchased, and also of procuring au improper decree for a partial distribution of the estate.
    The object of this action is to procure a division of the estate, and the removal of the defendant Dojonge as trustee, and a surrender of the estate to his co-trustee, the widow of the deceased and the mother of the plaintiffs.

      Tbe defendant Dejouge, on a motion for that purpose at the Special Term of the court, procured an order requiring the plaintiffs’ attorney to serve a bill of particulars or statement, in writing, of plaintiffs’ claim duly verified, setting forth what unlawful or improper investments the defendant has made in bond and mortgage, specifying them particularly ; which of the said loans on bond and mortgage were usurious, and in what usury consisted ; which of said loans on bond and mortgage were upon insufficient or inadequate security; which of said bonds and mortgages on vacant and unimproved lots in various parts of the city of Brooklyn were inadequate or insufficient; which of the bonds and mortgages given for usurious or illegal loans were in consequence foreclosed and bought in at the expense of the estate; what mortgages or securities set apart to the respective plaintiffs, upon the distribution thereof, did not represent the full par face value thereof, and also what is the actual value thereof, respectively, stating in each of the above cases the particulars of each bond and mortgage called for, and the particular charge constituting the same an improper investment.
    The court at General Term said: “ Orders for particulars are made in the interest of justice and for the purpose of its advancement. A party must not be sent to trial without know! edge of the accusation against him. He must be- subjected to no surprise. But while this rule attains in the administration oí justice another consideration of equal importance is, that the court will make no order which will shield the defendant from just responsibility. If the information sought is in the possession of the party asking it, then it will be plain that the application is stimulated by some motive other than a desire for specific details; and if it appears in addition that the parties from whom further particulars are asked are not in a situation to answer the demand and do not possess the facts, then, indeed, is presented a plain case for a refusal of the order. These principles must dispose of this appeal.
    “ The defendant has had full and entire charge of the estate of his testator from the time of the reception of his letters, and, of course, has personal knowledge of all his transactions. Now they are challenged; all of them have been accompanied with documents or memorandums, and he is a competent witness for their explanation and justification. If they are just and lawful, he can show them such. The call upon him is for an account of his stewardship. The charge against him is a plain one, and it is no hardship to call upon him to answer it without further specification. On the contrary, the plaintiffs have been infants during the whole course of the defendant’s adminstratiou, and two of them are yet of quite tender years. Neither of them have any personal knowledge of the management of their estate. All has been intrusted to the defendant, and all has been under his absolute control, and it is easy to see that the plaintiffs may be unable to comply with the sweeping order for particulars which has been made against them. If, therefore, they are prevented from going forward with this action until they finish the minute details called for by the order appealed from, the defendant has interposed a shield which will be a most effectual protection. It is plain to us that this order may have an oppressive operation, and wo cannot give it our concurrence.”
    1 JEdward 8. Ilubbe, for the appellants. George J. Greenfield, for the respondent, Dejonge.
   Opinion by

Dykman, J.

Present — BaiiNaed, P. J., Gilbert and DvkmaN, JJ.

Order reversed, with costs and disbursements.


author: Barnard, P. J.

text:
    CÆSAR KOCH, Respondent, v. THE VILLAGE OF EDGEWATER, Appellant.

      Village of E&gmaier — the trustees are bound to keep its sidewalks in repair.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action ivas tried.
    The action was brought to recover damages for an injury sustained by the plaintiff by falling, while passing along the sidewalk in the defendant village, owing to its defective condition.

      The court at General Term said : “ The charter of the village is not essentially different from those charters which have been hold to cast the duty upon the trustees to keep in repair the sidewalks of the streets in the village. In some charters the trustees have been clothed with the powers of commissioners of highways. In others, in direct terms, the trustees have been empowered to keep in repair the streets and sidewalks. 1 In this charter the village is made one 1 separate road district, under the direction and supervision of the trustees of said village, and free from any interference or control by any other officers or persons.’ (2 Laws of 1870, 1591, § 1 of title 15 of chap. 674, Laws of 1870.)
    The street commissioner, authorized by the charter, is to act under the direction of the trustees. (Title 8, § 1.) ‘ The board of trustees shall have the sole control and management * * * of the roads, avenues, streets and public places of the village.’ (Title 9, § 1.) This grant of power seems to be as ample and exclusive, as is usually given in those cases where the duty of the trustees has been held to be absolute to keep the streets safe and in order. The power is fully as ample as if the act had clothed the trustees with the powers of commissioner's of highways. There is no limitation upon the power of the trustees. They have the authority to compel the owners and occupants to flag and curb the sidewalks by ordinance to that effect. It cannot bo claimed that the sidewalk is not a part of the street, and on that account excluded from the jurisdiction of the trustees. This is the principal point made by the appellant, that the trustees had no duty in regard to the sidewalk.”

      George J. Greenfield, for the appellant. /S'. M Hawson, for the respondent.
   Opinion by

Barnard, P. J.

Present — BarNard, P. J., Gilbert and DtKMAN, JJ.

Judgment and order denying new trial affirmed, with costs.


text:
    SARAH A. ROGERS as Executrix, Etc., of PATRICK L. ROGERS, Deceased, Respondent, v. GEORGE W. ROGERS, Appellant, Impleaded with JOHN F. ROGERS and others.

      A trust is not void because the beneficiary is appointed a trustee.

    Appeal from a judgment, entered upon tbe trial of this action by the court without a jury, and also from certain orders made therein.
    The action was brought to obtain a judicial construction of the will of Patrick L. Rogers, deceased.
    The judgment sustained the trusts mentioned in the will, for the construction of which this action was brought, and the right of the beneficiary in the trust to execute the same as trustee thereof.
    The court at General Term said : “ Patrick L. Rogers died in 1864, leaving a last will, whereby he devised and bequeathed to his executors named therein all the estate of the deceased, after the payment of debts, in trust to keep the estate invested, and to collect the rents, as follows: To pay to his wife during life or during widowhood, or during the minority of the testator’s youngest child, ‘whichever event should first happen, so much of the income and profit of my estate, as may be necessary for the comfortable support of herself and my mother, and the maintenance and education of my said children, and in case the whole of such income shall be insufficient for the support of my wife and mother, and the maintenance and education of my children, or such of them as may be minors, then and in that case I authorize my executors and executrix to apply to that purpose so much of the principal sum invested as may be necessary to make up the deficiency.’ The testator left real and personal estate. There were named in the will, as executors, the testator’s wife and four other persons. The wife alone has qualified. The argument made that the trusts contained in the will are void, because the same person is trustee and beneficiary, cannot be held good. It is a general rule that the same person cannot be trustee and cestui que trust, but no valid trust should tail because of the failure of a trustee to qualify. If all of the trustees named had qualified, then it would have been proper to direct that the trustees, other than the widow, should apply to her use what was her right under the will out of the trust estate. In Bundy v. Bundy (38 N. Y., 410), in a somewhat similar case, the court appointed a now trustee for that portion of the trust fund which was to be held for a beneficiary when the beneficiary was also trustee. The Court of Appeals approved of this saying that it was competent for the court to appoint a trustee. The trust must therefore be held good, unless it is in conflict with the statutes in relation to trusts.”

      O. K. Corliss, for the appellant. Samuel V. Speyer, for the respondent.
   Opinion by

Barnard, P. J.

Present — BaRNaed, P. J., and DykmaN, J. j Gilbert, J., not sitting.

Judgment and order affirmed, with costs.


author: Daniels, J.:

text:
    ENRIQUE ESCOSURA Y FERRER, by CHARLES COUDERT his Guardian, and others, Appellants, v. PERCY R. PYNE AND LAWRENCE TURNURE, Executors, etc., and others, Respondents.

      Will — construction of — when children take per stirpes — when per capita.

    A testator by his will directed his executors, after paying certain legacies, to divide the balance of the money in their hands “ equally between Anita, the children of Irene, the son of Isabel, and Henry the doctor.” The testator had, by another provision of his will, provided: “ To the children of Irene I bequeath §50,000.”

      Meld, that although the general rule of construction of the first provision of the will would require that each child of Irene should take per capita; that is, an equal share, with the other persons named, of the balance of the money in the executors hands; yet that the gift in the second provision, of the §50,000 to them as a class, raised a presumption that the testator intended that they should take as a class with respect to the balance of the money also, and took the case out of the general rule.
    Appeal from a decree of the surrogate of the comity of New York, made upon the final accounting of the executors of Pedro Ferrer y Lauda.
    The will under which the executors acted contained, among others, the following provisions :
    “ To the children of Irene I bequeath $50,000, to be administered for them by their father, Dn. Benigno Dorado. * * *

      “ If after realizing all my investments and paid all my bequests, there shall be a remainder, after paying- all expenses, commissions, etc., etc., I wish the same to be divided equally between Anita, the children of Irene, the son of Isabel, and Henry the doctor.”

      F. M, Coudert, for the appellants.

      W. B. Putney, for the respondents.
   Daniels, J.:

The disposition of this appeal depends upon the construction which should be given to the residuary clause of the will of Pedro Ferrer y Landa, by which he directed after realizing all his investments and paying all his bequests, if there should be a remainder, that he wished the same to be equally divided between Anita, the children of Irene, the son of Isabella, and Henry the doctor. The surrogate held that this clause required the residue of the testator’s estate to be equally divided between the persons named in it, including each of the children of Irene, treating them as individuals and entitled to take per capita and not per stirpes. If this clause stood alone in the will, unaffected by any other provision, the authorities referred to by the surrogate in support of his opinion amply sustain the conclusion at which he arrived. The general rule undoubtedly is, that the construction required to be given to a clause of this description includes the children referred to as individuals, and not as a class, but these authorities are not controlling where anything can be found in the will showing that the testator entertained a different design.

Upon this subject it was held in the case of Clark v. Lynch (46 Barb., 69) that this rule will not prevail if the intention can be collected from the will that the children of a deceased party are to take as a class and not individually. (Id.) In the case of Collins v. Hoxie (9 Paige, 81), the chancellor stated the rule of construction in such cases to be, that all the legatees would only take per capita when there is nothing in the will indicating the existence of a different intention on the part of the testator. And after referring to the authorities sustaining the pi-evailing rule existing upon this subject it was said by Jarman, that this mode of construction will yield to a very faint glimpse of a different intention in the context. Thus, the mere fact that the annual income, until the distribution of the capital, is applicable per stirpes has been held to constitute a sufficient ground for presuming that a like principle was to govern the gift of the capital. (Jarman on Wills [3d Amer. ed.], vol. 2, 81 [marg., 112.])

In this will a circumstance indicating that the testator entertained the design of differently distributing his property is found to exist, for in a preceding portion he bequeathed to the children of Irene $50,000. This was a plain bequest to them as a class, and indicated it to be the purpose of the testator to treat them as such in the disposition he designed to make of his property, and there is no sufficient reason for supposing that in the clause providing for the distribution of the final residue he intended to use the term “ children of Irene ” in any different sense. The assumption on the contrary is, that the same words were used in both parts of the will to express the same intent, which was, that the children of Irene should take as a class and not individually.

This precise point appears to have been presented in the case of Lockhart v. Lockhart (3 Jones’ Eq. [N. C.], 205). And it was there held, where the testator in one part of his will had used words describing the objects of his bounty as a class, and in any other part referred to them again by the same words and description, that the presumption was in both cases he used the words in the same sense, and intended them in each instance to describe the person as a class. The same points came up for consideration in Balcom v. Haynes (14 Allen [Mass.], 204). And a like conclusion was maintained by the decision of the court.

These authorities seem to be controlling upon the subject as to what should be the construction placed upon the controverted clause of the testator’s will. They do not conflict with those relied upon by the surrogate or cited in support of his decision by the respondents’ counsel, but they distinguish this from the bequests made, which were there the subjects of examination.

The intention of the testator is the governing element in the decision of controversies of this character, and as it is clear in his first allusion to the children of Irene that he intended to regard and consider them as a class in the disposition of that portion of bis property, it should be assumed that the same intent extended to and pervaded all the directions made in the same terms by his will in their favor. It follows from this construction that the decree of the surrogate must be reversed, and a judgment entered in conformity with the views expressed in this opinion.

Beady, P. J., and Ingalls, J., concurred.

Decree of surrogate reversed, and judgment ordered in conformity with views expressed in the opinion ; order, to be settled by DANIELS, J.


author: Ingalls, J. :

text:
    JUDSON LAWSON, Appellant, v. MARY A. BARRON, Respondent, Impleaded with others.

      Unconditional acceptance of interest — waives a provision making the principal sum fall due.

    The unconditional acceptance of the interest due on a mortgage (though made after a summons and complaint for the foreclosure thereof has been prepared, and filed with a notice of lis pendens in the county clerk’s office, but not served), is a waiver of a condition in the mortgage that when the interest has remained in arrear for thirty days the whole principal sum shah become due, and the action of foreclosure cannot be further prosecuted after such acceptance.
    Appeal by the plaintiff from a judgment, entered in favor of the defendant', after a trial at the Special Term where the complaint was dismissed, with costs.
    The action was brought for the foreclosure of a mortgage. The interest which fell due January 5, 1878, was not paid until March 7, 1878, when it was alleged in the plaintiff's complaint that the following receipt was given :

      “ Received New York, March 7th, 1878, from Mary Agnes Barron, the sum of seventy-five 46-100 dollars, being six months’ interest, from July 5, 1877, to January 5, 1878, on account of bond and mortgage of Joseph Barron to me, Judson Lawson, but this is not intended to waive any of my rights by reason of the default in payment of interest thereon.
    “ $75.46. (Signed) JUDSON LAWSON,
    “ Per Hamilton.’3

      The mortgage contained a provision that if the interest remained in arrear and unpaid for thirty days the whole principal should, at the option of the mortgagee, become due. The complaint alleged that on March 6, 1878, the plaintiff elected that the whole principal sum should, because of such default, become due.

      James Hamilton, for the appellant.

      H. JS. Deyo, for the respondent.
   Ingalls, J. :

This action was brought to foreclose a mortgage for the failure of the mortgagor to pay an installment of interest. The plaintiff prepared a summons and complaint, and fded in the clerk’s office a notice of Us penedns, but before the service of the summons upon any party defendant,. Mary A. Barron, the owner of the. equity of redemption, paid to the plaintiff $75.46, being the interest upon the mortgage to January 5, 1878. The plaintiff persisted in continuing the foreclosure of the moi’tgage, upon the ground that' by its terms the failure of the mortgagor to pay the installment of interest rendered the principal sum duo and payable, at the option of the mortgagee.

Upon the trial the following admission was made by the plaintiff : The plaintiff admitted that $75.46, being the interest on said bond to January 5, 1878, was paid by the defendant, Mary Agnes Barron, to him before the service of the summons and complaint in this action.

Although the plaintiff was a witness upon the trial he did not pretend that at the time he received the interest that he in any manner qualified its acceptance, or that he even intimated to the defendant that he had taken any steps to foreclose the mortgage or intended to commence an action for that purpose. Indeed there is no evidence that the defendant, Mary A. Barron, had any notice from any source that the plaintiff contemplated a foreclosure of the mortgage, prior to the payment of the interest. In regard to the receipt which is set out in the complaint, and upon which the plaintiff appears now to place some reliance, it is observable that it was not offered in evidence, nor does there seem to have been any allusion to it during the trial. It is true the plaintiff proposed a finding which embraced it, but the court refused it, probably because the receipt was not introduced or insisted upon at the trial. It may well be doubted whether, considered merely as a question of pleading, it should not be regarded as controverted by the answer. At all events, if the plaintiff intended to rely upon it as bearing upon the question of waiver, he should have offered it as evidence, so that the defendant could have further explained the circumstances which attended its execution. From all the facts developed upon the trial the court was entirely justified in holding that the interest was accepted unconditionally, and that the default and the right on the part of the plaintiff to declare a forfeiture became waived. The plaintiff should not be allowed to receive and quietly pocket the interest, without an intimation of his intention to consider the principal of the mortgage due and to foreclose the mortgage, simply because such interest had not been paid a few days earlier. We are unable to avoid the impression, derived from the circumstances of this case, that an unfair advantage was sought to be taken of the defendant, by preparing the receipt and delivering the same to her without any explanation, and without informing her that the plaintiff elected to consider the mortgage debt due and payable, and that a foreclosure would be prosecuted. The case of Odell v. Hoyt, recently decided by the Court of Appeals, but not yet reported, is by no means decisive of the case we are considering. In the case referred to the right to insist upon the forfeiture was understood, and at the time declared and insisted upon. And the condition upon which the default was to be waived was not performed by the party who claimed the benefit of such waiver. The decision of the Special Term was eminently just, and we believe consistent with the law which must govern this case.

The judgment should be affirmed, with costs.

Beady, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


author: Ingalls, J.:

text:
    THE CENTRAL NATIONAL BANK OF THE CITY OF NEW YORK, Respondent, v. DAVID VALENTINE, TIERNAN WILSON AND HENRY E. KNIGHT, Appellants, Impleaded with others.

      'Merely giving credit on its hooks for a note discounted — does not constitute the hank a holder fen' val/ue.

    The mere discounting of a note and giving a party credit on the books of the bank for the amount thereof does not constitute the bank a holder for value.
    Appeal by the defendants Valentine, Wilson & Knight from a judgment entered in favor of the plaintiff after a trial at the circuit, before the court without a jury. The action was brought against the firm of Macy & Co. as makers, and the appellants, Valentine, Wilson & Knight together with one Frederick IT. Macy and William IT. Wing as alleged co-partners under the firm name of Macy, Valentine & Co., alleged indorsors of certain promissory notes of the amount in the aggregate of $6,904.53.

      (darker <$> Eaton, for the appellants.

      A. P. Whitehead, for the respondent.
   Ingalls, J.:

The firm of Macy & Co. made the notes in suit, each for the-sum of $2,300. One dated June 20, 1876, another July 1, 1876, and the other February 12, 1876, payable to the order of Macy, Valentino & Co. The notes were indorsed in the name of the* last mentioned firm, by Frederick A. Macy, who had been a, member of such firm. Prior to the execution of the notes, the* firm of Macy, Valentine & Co. had been dissolved. The plaintiff' having had dealings with said firm previous to its dissolution was entitled to actual notice thereof previous to receiving the notes, in order to be affected by such dissolution. (Austin v. Holland, 69 N. Y., 572.)

No such notice was established upon the trial, and we are, therefore, to inquire whether the plaintiff became a bona fide holder of the notes for value ? The plaintiff, by Its president, discounted the notes and gave the makers credit on the books of the bank for the amount, no money ivas actually paid, or thing of value parted with by the plaintiff, upon the strength of the indorsement or the discount. Under such circumstances the plaintiff cannot be regarded the bona fide holder of said notes for value, as we understand the law as -settled by the adjudications upon that subject. The mere giving of credit by entering the amount on the books, and not actually parting with a dollar upon the strength of the indorsement, cannot be regarded parting with value in the sense which the law contemplates. The parties in whose favor the credit was given might never draw or appropriate any portion of the fund. (Fulton Bank v. Phœnix Bank, 1 Hall, 562; Clark v. Ely, 2 Sandf. Ch. Rep., 166; West v. Exchange Bank, 44 Barb., 175; Platt v. Chapin, 49 How., 318; Garland v. Salem Bank, 9 Mass., 408; McBride v. Farmers Bank, 26 N. Y., 454; The A. Exchange Bank v. Corliss, 46 Barb., 19.)

The judgment must be reversed and a new trial ordered, with costs to abide the event of the action.

Beady, P. J., concurred.

Present — Beady, P. J., and ING-alls, J.

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