author: Earl J.

text:
    Susan F. Platt, Resp't, v. Annie R. Platt, App'lt.

      (Court of Appeals,

      Filed April 26, 1887.)

    1. Decedent’s estate—Lien of judgment on—Code Crv. Pro., § 3749.
    The debts of a decedent can be ordered to be paid out of his real estate, or by his heirs or devisees, only in t e manner provided by statute. During three years after his death his creditors have a kind of statutory lien upon the real estate -left by him, and such real estate cannot be so aliened by his heirs or devisees during that time as to defeat the claims of creditors thereon. After the expiration of the three years, the debts of the decedent may be enforced against heirs and devisees in the mode specified in the statute, and they then cease to be a lien or charge in any sense upon the real estate.
    3. Same.
    In a previous action, on an accounting, it was determined that as his share, William H. Platt had received $60,839, and was indebted to his father’s estate in that amount, with interest from April 3, 1882, not absolutely, but “ contingent on the rights of creditors," etc. Annie R. Platt, his wife and sole devisee, appeals from a decisiorf of the referee in this action, charging her witli that amount. Held, that no recovery could be had of her, as any claim which William’s brothers and sisters had against him should first be satisfied from his personal estate, and then, within three years, etc., by a sale of the real estate; and if no satisfaction could be obtained, then after three years it could be enforced in an action against his legatee or devisees in the mode and to the extent provided by the statute.
    3. Same—Executors—Granting attorney a lien on claim.
    Executors may bind themselves personally by an agreement with an attorney that he shaH have one-half of the recovery in an action to set aside certain transfers and conveyances made by a testator, but not the estate, and they cannot create any lien upon the estate, or assign the same to him.
    Appeal from supreme court, general term, first department.
    This is an action for partition of the real estate of Nathan 0. Platt, who died July 4, 1863, leaving certain real estate, which he devised to his four children, William H. Platt, Spencer 0. Platt, Nathan 0. Platt, Jr., and Catharine W. Cooke. This will was before this court in Cooke v. Platt (98 N. Y., 35), and under it all the real estate of the testator was held to have vested in these four devisees as tenants in common, in equal shares, upon his death. Annie E. Platt is sole devisee of the share of William H. Platt, who died after this action was begun. Susan F Platt is the grantee by deed of the whole share of Spencer C. Platt. The action was tried at special term, and the real estate of the testator was sold under its judgment. The proceeds were paid into the United States Trust Company by order of the court, and so much of the proceeds as are affected by the questions now presented, amounting to about $140,000, still remain there. The other facts are stated in the opinion.

      A. J. Vanderpoel and Wm. G. Wilson, for app’lt; Edward S. Clinch and Payson Merrill, for resp’t.
   Earl J.

There are so many appeals and orders in these records, and they are made up in such a bungling, careless and confused manner, and the facts to be considered are so imperfectly presented, that there is great danger that in our examination something maybe overlooked ormisap-j prehended. The leading facts, so far as they are important, will be stated as we understand them.

Nathan C. Platt died July 4, 1863, leaving a last will and testament whereby he appointed his three sons, William H., Spencer C., and Nathan O., his executors, and gave all his estate to his executors, with power to receive the rents and profits, and to sell and convey the real estate in their discretion, upon trust to divide the same or its proceeds, after payment of debts, among his four children, his three sons and his daughter, Catharine W. Cooke, in equal shares. The will was admitted to probate, and the executors entered upon the discharge of their duties. It was subsequently held in this court, in an action to which all the beneficiaries were parties, that the trust attempted to be created, as to the real estate left by the testator, was unauthorized; that no trust-estate therein was vested in the executors; that the title thereto passed to the beneficiaries named as devisees in fee; and that they, upon the death of the testator, became tenants in common thereof. Cooke v. Platt, 98 N. Y., 35.

Soon after the death of the testator his estate became involved in litigations, and from that time to this numerous suits and proceedings have been instituted and carried on with reference to it, and three times prior to this the litigations, in some of their phases, have come to this court. Platt v. Platt, 58 N. Y., 646; Smith v. Platt, 96 id., 638; Cooke v. Platt, 98 id., 35. It has now become quite desirable that these vexations and expensive controversies, some of them apparently unnecessary, should, so far as possible, be brought to an end.

This action was brought for the partition of real estate. The plaintiff, Susan F. Platt, is the wife of Spencer C. Platt, and succeeded to his interest in the real estate by conveyance from him, and the defendant, Annie R. Platt, is the widow of William H. Platt, and succeeded to his interest in the real estate as devisee under his will. The action went to judgment, and the land was ordered to be sold. The sale has been had, and the proceeds brought into court, and the controversy now before us relates to the claims upon the fund thus produced, and the division and distribution thereof. A referee was appointed to take proof of the interests and rights of the several parties and claimants in the fund, and he made his report. Some exceptions were filed to such report, and it was confirmed by the special term. Several of the parties appealed to the general term, where the order of the special term was affirmed, with the modification which will be hereafter noticed:

First. It is objected on behalf of the plaintiff and the defendants, Nathan 0. Platt, Catharine W. Cooke, and Annie R. Platt, that the court below erred in directing the judgment of Aaron A. Degrauw to be paid out of the fund, and the question as to the payment of that judgment grows out of the following facts: At the death of the testator the Park Bank held a note for $10,000, made by him. Subsequently to his death Degrauw obtained that note from the bank, and brought an action thereon against the executors; andón the 10th day of May, 1878, he recovered a judgment thereon ■against them for $19,330.23. An application was subsequently made to vacate that judgment, and it was vacated, but permitted to stand as security for any judgment which might thereafter be recovered. The executors having been removed as such in the action of Cooke against them, and James M. Smith having been appointed receiver of the estate, he was substituted as defendant in the action in the place of the executors. Thereafter, on the 15th day of March, 1884, Degrauw recovered a judgment against him as such receiver for $24,414.02. On the 8th day of March, 1886, there was paid on this judgment by the receiver $11, - 858.28, and the balance, with interest, remains unpaid, amounting on the 9th of June, 1886, to $15,651.33. On the 29th day of May, 1886, after the fund had been paid into court, an order was made at special term by which Augustus C. Brown, who had previously been appointed referee to take proof as to liens and claims upon the fund, was ordered to take proof of any and all judgments against the plaintiff, or against any of the defendants, or against the executors or any of them, or against Smith as receiver, and of any judgments which were liens upon the real estate at the time of the commencement of the action, and to ascertain the amount due on such judgments; and it was ordered that the amount due thereon be paid out of the share or shares of the person or persons against whom the judgments may respectively be, or out of the shares of Susan F. Platt, Spencer C. Platt, Annie R. Platt, Catharine W. Cooke and William J. Cooke, when such judgments were against the executors, or any of them, or against James W. Smith as receiver. A hearing was had before the referee under that order, and he made his report on the 9th day of June, 1886, finding the sum above mentioned to be due to Degrauw upon his judgment; and he reported. that one quarter thereof, to-wit, $3,912.84, should be paid out of each of the shares, severally, of Susan F. Platt, Annie R. Platt, Nathan C. Platt and Catharine W. Cooke. To this report, as far as it allowed the Degrauw judgment, and directed its payment, the plaintiff and Annie R. Platt alone filed exceptions.

The hearing of the exceptions, and the motion to confirm the report, came on to be heard at a special term of the court on the 9th day of July, 1886. At the hearing counsel for the plaintiff appeared in support of her exceptions, and in opposition to all the other exceptions filed. Counsel for Annie R. Platt appeared in support of the exceptions filed by her, and counsel for defendant Catharine W. Cooke appeared in support of the report of the referee, and in opposition to all the exceptions thereto. Counsel for Degrauw appeared in support of his claim to payment out of the proceeds, and no one appeared for Nathan CL Platt. The court made an order overruling the exceptions, and confirming the report. On the twenty-eighth day of June the plaintiff appealed from the special term order of May twenty-ninth, so far as it ordered the referee to take proof of - any judgment against Smith as receiver, and that the amount due thereon be paid out of the shares of Susan F. Platt and others; and on the fourteenth day of July she appealed to the general term from so much of the order made on the ninth of July as directed the payment of the Degrauw judgment. On the twelfth of July, Annie B. Platt appealed to the general term from the orders of May twenty-ninth and of July ninth. Nathan 0. Platt and Catharine W, Cooke did not appeal to the general term. That court affirmed the order of the special term, so far as it related to the Degrauw judgment, and from its order Susan F. Platt, Annie B. Platt, Nathan C. Platt and Catharine W. Cooke appealed to this court.

It is clear from this statement of the facts that Nathan C. Platt and Catharine W. Cooke have no standing whatever in this court, as appellants, against Degrauw. They did not except to the report of the referee. On the contrary, Catharine W. Cooke asked for its confirmation, and they did not appeal to the general term. Therefore they have no right to complain of the special and general term orders, so far as they relate to the Degrauw judgment, and no right to appeal to this court.

But Susan F. Platt and Annie B. Platt stand upon different footing. They filed exceptions to the report of the referee, and objected to the confirmation thereof at the special term, and appealed from the orders of the special term to the general term. There is no ground whatever for charging their shares of these proceeds with portions of the Degrauw judgment. They are not heirs or legatees or devisees or next of kin of the testator. They took their interests in the real estate subsequently to the death of the testator. The Degrauw judgment recovered against the executors, and subsequently against the receiver, did not become a hen upon the real estate. 2 Rev. St., 449, § 12; Code, §§ 1251, 1823. It was not even evidence against them, and in no way bound them. Ferguson v. Broome, 1 Bradf., 10; Dodge v. Thompson, 13 Weekly Dig., 104; Sharpe v. Freeman, 45 N. Y., 802; Dodge v. Stevens, 94 N. Y., 209. They did not receive the real estate from the testator, and hence in no way became bound for his debts; nor was the real estate after it came to them bound.

The statutes point out the method for enforcing the debts of a decedent against his heirs, legatees, devisees, and next of kin, and against the real estate while it is owned and held by them. 2 Rev. St., 450-457; Code, §§ 1837, 1860. But those statutes do not apply to a case like this. Whatever liability there was under those statutes for the debt represented by the Degrauw judgment rested upon the four devisees mentioned in the will who took the real estate as tenants in common; and at the death of William H. Platt his share for that liability devolved upon his personal representatives, and it was to be enforced in some way against them or his estate; and, after the conveyance by Spencer C. Platt, the liability, if any, still rested upon him to be enforced against him personally. But such liabilities never passed to, and were not enforceable against, Susan F. and Annie R., who succeeded to their shares. It is, therefore, entirely clear that the Degrauw judgment never became a lien, either in law or in equity, upon the interests of Susan F. and Annie R. in the real estate, and that they never came under any legal or equitable obligation to pay the same; and hence there was no legal basis for ordering portions of that judgment to be paid out of their shares of the real estate or its proceeds. The debts of a decedent can be ordered to be paid out of his real estate, or by his heirs or devisees, only in the manner provided by statute. During three years after his death his creditors have a kind of statutory lien upon the real estate left by him, and such real estate cannot be so aliened by his heirs or devisees during that time as to defeat the claims of creditors thereon. 2 Rev. St., 100, et seq.; Code, § 2749, et seq. After the expiration of three years, the debts of the decedent may be enforced against his heirs and devisees in the mode specified in the statute, and they then cease to be a lien or charge in any sense upon the real estate. Covell v. Weston, 20 John., 414; Hyde v. Tanner, 1 Barb., 75; Wilson v. Wilson, 13 Barb., 252; Waring v. Waring, 8 Abb. Pr., 246.

But if Susan F. and Annie R. Platt were otherwise liable, and they occupied the precise position of devisees or heirs, there are no facts in this record which in law establish the right of Degrauw to be paid the amount of his judgment out of these proceeds, as against them. Assisted above, the judgment did not bind them and was not evidence against them. The referee was ordered, not to take proof of the debt due to Degrauw, but simply to take proof of' the judgment; and under that order the judgment was made conclusive evidence, and the parties were deprived of the right to contest the debt upon which it was founded. They might have been able to show that- the debt had been paid or discharged, or that the testator was not in fact-liable in his lifetime to pay it, and they might have claimed, that it was barred by the statute of limitations twenty-three years after the death of the testator. Besides, the personal property was at common law, and is, by our statutes, the primary fund for the payment of debts; and there was no proof whatever before the referee, or in the court below, that there was not during the whole, or at least a portion, of the twenty-three years, abundant personal property out of which this debt could have been satisfied.

The court below, therefore, erred in allowing any portion of the Degrauw judgment to be paid out of the shares of Susan F. and Annie R. Platt.

Second. Some years before the commencement of this action Mrs. Cooke commenced the action above referred to against her three brothers, William H., Spencer 0. and Nathan C.; and in that action an accounting was had of the moneys which each had received from the estate of their father; and in the final judgment entered it was determined that they had respectively received from such estate the following sums: Catharine W. Cooke, $17,301.60; William H. Platt, $60,839.90; Spencer C. Platt, $26,000.84; Nathan C. Platt, $18,660.39; and it was adjudged that they were severally indebted to their father’s estate in the amounts so received by them, with interest thereon from the third day of April, 1882; but that such indebtedness was not absolute, but contingent on the rights of creditors of such estate, and the future adjustment and settlement of the interests of all persons in said estate.

Upon the hearing before the referee appointed in this action to take proof of the rights and interests of the parties in this fund, against the objection of Annie R. Platt» he took proof of the amounts so received, and treated them as payments to these parties respectively, charging each with interest on the sum so received by each, and adjusting and dividing this fund on that basis so as to make, with what had previously been received, and with this fund, equality of distribution. The special term having confirmed the report of the referee in this respect, Annie R. Platt appealed from the order of the special term to the general term, and there the decision of the referee, and the order of the special term, were reversed, so far as they charged interest upon the sums so received from April 3, 1882, and in other respects the order of the special term was affirmed. Annie R. Platt then appealed to this court from the order of the general term so far as it charged her, among other things, with the $60,839.90 which had been received by her husband as above mentioned. We think her appeal in this respect should prevail.

It does not appear in this record from what source, or in what manner, or under what circumstances, that sum was received by William. It is stated, in one of the briefs submitted to us, to have been received from rents of the real estate sold in this action, and from the proceeds of the sale of other real estate which came to William, his two brothers and sister, as tenants in common under his father’s will. As to the rents of the real estate sold in this action, the other tenants in common had an equitable lien for the amount received by William on his share of the real estate which could be adjusted in a partition action to which he and they were parties. But it was an equitable lien which, upon the facts as they now appear, could be enforced against him only, and it did not absolutely attach to the real estate, nor follow it into the hands of any heir, devisee, or grantee holding under him. As to the proceeds of other real estate sold, the other tenants in common, so far as this record discloses, never acquired any lien for the amount thereof received by William upon his share in this real estate; and the sum received by William, as determined by the judgment in the action of Mrs. Cooke against him and his brothers, was not by that judgment made a lien upon this real estate. If William had lived, he could have been compelled, in a general settlement of his father’s estate, to account for the money so received; and so, too, if he and his brother Spencer had been parties to this action, and there had been no change of interests, and no devolution of title, and no other complications, we are inclined to the opinion that the sums previously received by the parties might, upon equitable principles, have been brought into consideration in the adjustment and division of this fund. But the same parties are not here. It does not appear that Susan F. Platt, by virtue* of the conveyance to her by her husband, acquired any interest in the sums so received by William, or any right to ask for any account thereof. And it does not appear that Annie R. Platt, as devisee of her husband, took the real estate in this action charged with that sum, or any part thereof, or that she became liable or bound in. any way to pay the same. If William’s brothers and sister had any claim against him on account of that sum, it was a claim, so far as now appears, to be paid out of and enforced against his estate as a debt owing by him at the time of his decease. Hannan v. Osborn, 4 Paige, 336. For its payment resort would first have to be made to the personal estate left by him, and then, within three years after letters testamentary, by a sale of the- real estate; and, if satisfaction could not be obtained in either of those ways, then the debt, after three years from letters testamentary upon his estate, could be enforced by action against his legatees or devisees in the mode and to the extent provided in the statutes.

We do not determine now that the sums referred to cannot be brought in and adjusted in this action. All we determine is that in this very imperfect record there are not sufficient facts to authorize that to be done. It may be that facts exist which would justify the court, in the exercise of its equitable jurisdiction, to charge each of these four parties with the sums so received, and the interest thereon, in the distribution of this fund. All the facts pertaining to these sums should be proved, so that the court may be able to say precisely what equity and justice require in reference to them. It would seem to be extremely just that they, with the interest thereon, should be taken into consideration in the distribution of this fund; and the fund should be retained by the court below until in this action, or some other action to which all the persons interested are made parties, a final determination can be made in reference to the rights and interests of the parties therein.

3. Before the executors were removed, they brought aii action against George W. Platt, a brother of the testator, in the supreme court, to set aside certain transfers and conveyances of property made to him by the testator, and to recover from him certain claims and demands. While that action was pending, the executors entered into a contract with William E. Martin, who was their attorney, by which it was agreed that, in consideration of the services to be rendered by him in the action then pending, and in such other actions and proceedings as might be brought against George W. Platt, he should have, as compensation for his services and expenditures, in addition to the costs and disbursements he should recover, an equal one-half of the whole recovery against George W. Platt; and, to give effect to the agreement, they assigned to him all the one equal half of all their claims and demands against Platt, and in any recovery that might be had against him. It is claimed by and on behalf of Martin’s assignee, that by virtue of that agreement he has a lien upon this fund which should be paid out of the same. His claim has been under adjudication so many times in the courts below, and has been so thoroughly considered by various judges, that a brief examination of it now is all that is needed. The executors under the will of the testator had no power to make the agreement with Martin, and they could not create any lien upon the estate, or assign the same to him. They could bind themselves personally, but not the estate which they represented. It appears that William E. Martin received large sums of money out of the estate for his services —all that was found to be fairly due him, and we. can see no reason in this proceeding for enforcing any further claim for such services.

Subsequently to the commencement of this action, his assignee instituted an action against the persons interested in the estate to establish his claim and lien thereon under Martin’s agreement with the executors, in which action he failed. A judgment was rendered against him, from which he has appealed to the general term. The claim is so extraordinary and objectionable that he could not, as matter of absolute right, claim to have it enforced in this action. But the court could, in the exercise of its discretion, deny him the summary remedy he asks in this action, and leave him to the enforcement of his claim, if he has any, by a proper action against the parties who may be liable to him; and whether it would stay the distribution of this fund until the final termination of his appeal in the other action also rested in its discretion, which is not subject to review here.

Our conclusion, therefore, upon the whole case, is as follows: 1. The appeal of Annie R. Platt and Edwin N. Martin from the order of the general term, dated December 21, 1886, should be dismissed, with costs against Martin to Catharine W. Cooke, Nathan C. Platt and Susan F. Platt, severally. 2. The orders of the general and special terms, so far as they charge any part of the Degrauw judgment upon the shares in this fund of Annie R. Platt and and Susan F. Platt, should be reversed. 3. The orders of the general and special terms, so far as they bring into consideration in the distribution of this fund the four sums received respectively by Catharine W. Cooke, William H. Platt, Spencer 0. Platt and Nathan C. Platt, as determined by the judgment of Mrs. Cooke against her brothers, should be reversed. 4. In all other respects the order of the general term should be affirmed without costs, except as above provided, to any of the parties, and the cause should be remitted to the special term for a further hearing as to the distribution of the fund, or for any further proceeding in accordance with this opinion.

All concur


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    Charles Hayman et al., App'lts, v. The Philadelphia and Reading R. R. Co., Resp't.

      (New York Superior Court, General Term,

      Filed December 30, 1886.)

      1. Common carrier—Liability in transportation op live stock.
    In the transportation of live stock in the absence of negligence, the carrier is relieved from the responsibility for such injury as occurs in consequence of the vitality of the freight. He does not absolutely warrant live freight against the consequence of its own vitality. Following Cragin v. N. Y. Central R. R. Co., 51 N. Y., 61.
    3. Same—Negligence—When not proven.
    In a case where it appeared that the car in which horses were shipped was good and suitable for the purpose when the car was loaded, and that during the passage a slat in the car became broken, but there was no evidence to show such break was occasioned by any negligence of the carrier. On the contrary, it appeared that one of the horses in the car was kicking violently, and that said break was repaired properly. At the end of the trip a slat was again found to be broken and the horse injured. The action was to recover damages. Held, that to sustain the cause of action the burden of proof was upon the plaintiff to show facts from which the jury would be justified in finding that there was an omission of duty upon the part of the defendant. That it was not sufficient to show that the horse was injured. That it was proper to direct a verdict for the defendant.
    3. Same—Evidence of negligence.
    The fact that the car was allowed to stand for one or two hours after it was loaded, was not of itself evidence of negligence.
    Appeal from judgment entered upon verdict for the defendant under the direction of the court.

      Leonard Bronner, for app’lts; Frank L. Hall, for resp’t.
   Ingraham, J.

The rule in relation to the liability of a common carrier for the transportation of live stock is stated by Earle, commissioner, in Cragin v. N. Y. Central R. R. (51 N. Y., 61): “In the transportation of such stock in the absence of negligence, the carrier is relieved from the responsibility for such injury as occurs in consequence of the vitality of the freight. He does not absolutely warrant live freight against the consequence of its own vitality. Animals may injure or destroy themselves or each other; they may die from fright or starvation because they refuse to eat or they may die from heat or cold. In all such cases the carrier is relieved from responsibility, if he can show he has provided suitable means of transportation and exercises that degree of care which the nature of the property requires. It is not sufficient therefore to make the defendants liable to show that the horse was injured. ■ It is necessary that the jury can find from the evidence that there was some neglect or omission of duty upon the part of the defendant.

In this case the uncontradicted evidence shows that the car in which the horse was shipped was good and suitable for the purpose when the car was loaded, and that during the passage a slat in the car became broken; but there was no evidence to show that such break was occasioned by any negligence of the defendants. On the contrary it; appeared that one of the horses in the car was kicking violently. That break was repaired as the witness stated in a proper manner, and at the end of the trip a slat was again found to be broken and the horse injured. There is no evidence to show that the broken slat caused the injury or that any act of the defendants could have prevented the accident.

The injury being one “that occurred in consequence of the vitality of the freight,” to sustain the cause of action the burden of proof was upon the plaintiff to show facts from which the jury would be justified in finding that there was omission of duty upon the part of the defendant. The fact that the car was allowed to stand for one or two hours after it was loaded was not of itself evidence of negligence. It did not appear that the fact that the car was allowed to stand caused the injury; nor was there any evidence to show that the car could have been moved sooner than it was. '

We are of opinion that the verdict was properly directed for the defendant and the judgment should be affirmed, with costs.

Sedgwick, J., concurs.


author: Per Curiam.

text:
    Robert F. Austin et al., Resp’ts, v. Joseph F. Byrnes, App’lt.

      (New York Superior Court, General Term,

      Filed December 30, 1886.)

    1. Supplementary proceedings—Order to examine defendant.
    The judgment upon which an order to examine the defendant in supplementary proceedings was granted was regular, unsatisfied of record and sufficient to sustain the order. Held, that if there was anything due or unpaid on the judgment, a motion to vacate the order was properly denied.
    3. Same—Practice where dispute as to fact of payment.
    Where the facts upon which defendant claims the judgment in said action was paid, and the right to set off certain claims that the defendant had against the party owing the judgment was disputed. Held, that the proper remedy for defendant was by motion to have the judgment declared satisfied of record.
    Appeal from an order denying motion to vacate proceedings supplementary to execution.
    The plaintiffs having recovered a judgment against the defendant, an appeal was taken to the general term and an undertaking was given to stay plaintiff’s proceedings, upon which T. P. Gilman and J. G. Allport became sureties. The sureties afterward had to pay the judgment, and requested that the judgment be assigned to W. D. Duckworth, the appellant herein, which was done. At the time this assignment was made Gilman owed defendant money for which a judgment was subsequently recovered and was unpaid. Duckworth, when he took the assignment, knew nothing of any agreements between Gilman and defendant.

      Wm. H. Arnoux, for app’lt; George W. Carr, for resp’t.
   Per Curiam.

The judgment upon which the order to examine the defendant was granted is regular, unsatisfied of record and sufficient to sustain the order. If there is. anything due or unpaid on the judgment, the motion to. vacate the order was properly denied.

The facts upon which the defendant claims the judgment was paid, or satisfied, are either denied by the assignee of the judgment or their legal effect disputed, and whether the whole judgment is or is not satisfied, depends on the right to set off a claim that the defendant has against the person who paid a portion of the judgment and for whose benefit it was assigned.

Under the circumstances we think the proper remedy for the defendant is by motion in the action to have the judgment declared satisfied of record. On such a motion a reference can be ordered if necessary to take proof of the facts, and on such reference the question of the amount, if any, that remains unpaid, can be much more satisfactorily determined than on the papers before us, and the order on that motion can, if the motion is granted, make proper provision as to any set Off required.

The order appealed from should be affirmed, with ten dollars costs and disbursements.


author: Freedman, J.

text:
    Louis Pessini, as Adm’rx, etc., Resp’t, v. William H. Wilkins, as survivor, etc., Appl’t.

      (New York Superior Court, General Term,

      Filed December 31, 1886.)

    1. Abatement—When action abates on death op party.
    An action was brought under the statute against two co-partners to recover damages alleged to have been sustained by reason of the death of plaintiff’s son, by the driver of a stage belonging to the co-partners. One of the partners died before the trial. On the trial plaintiff was non-suited, and from the judgment dismissing the complaint an appeal was taken. Afterward and before the appeal was argued, the sole surviving partner died. Held, that the cause of action abated with the death of the surviving partner.
    2. Same—Code of Crv. Pro., § 764.

      Held, That Code Civ. Pro , § 764, only applies where there is remaining in force at the time of the death a verdict or decision in favor of the party desiring to continue the action.
    Appeal by Ann E. Wilkins, as executrix, etc., of William H. Wilkins, deceased, from an order made at special term continuing this action against her as executrix.

      John M. Scribner, for app’lt; Benjamin Estes, for resp’t.
   Freedman, J.

This action was brought under the statute against Jesse A. Marshall and William H. Wilkins, as co-partners, to recover damages alleged to have been sustained by plaintiff by reason of the death of her infant son, which was caused by the alleged negligence of the driver of one of the defendant’s stages.

After issue joined and before trial, Marshall died, and the action was continued against Wilkins as the survivor of the firm.

There were two trials of the issues: At the first trial had in November, 1884, the jury disagreed; at the second trial had in January, 1885, the plaintiff was non-suited and judgment was thereupon entered dismissing plaintiff’s complaint.

From this judgment plaintiff appealed to the general term, but before her appeal could be argued, and, indeed, before the proposed case and the amendment thereto were settled, Wilkins, then the sole surviving defendant, died. This occured in January, 1886.

Under the decision of the court of appeals, in Hegerich v. Keddie (99 N. Y., 258), it must be held that upon Wilkin’s death the cause of action given by the statute (chap. 450 of Laws 1847, Code of Civ. Pro., § 1902) to the plaintiff for the death of her infant son, abated unless it was saved by section 764 of the Code of Civil Procedure.

That section read as follows, viz.:

Section 764. After verdict, report or decision, in an action to recover damages for a personal injury, the action does not abate by the death of a party, but the subsequent proceedings are the same as in a case where the cause of action survives.

The learned judge who made the order appealed from seems to have conceded the effect of the authority of Hegerich v. Keddie (supra) to be, that plaintiff’s cause of .action did not survive the death of Wilkins, but he decided, nevertheless, that under section 764 the action has not abated. This decision cannot be sustained.

In Kelsey v. Jewett (34 Hun, 11), the general term of the .supreme court of the Fifth department, said:

“In our opinion if a verdict for a personal injury is set aside, then the cause of action abates, if the plaintiff dies before another trial is had, and that the sole purpose intended to be accomplished by the provisions of section 764 is to save the estate of a deceased party to a verdict, report or decision, which may have been rendered in his favor before his death. After a verdict or decision has been set aside as void or erroneous, the case stands the same as if none had been rendered, the issues being untried and undetermined.”

This was said in a carefully considered opinion, and after a full examination I can perceive of no reason why this court should come to a different conclusion.

From this it follows that if the construction of section 764, adopted in Kelsey v. Jewett, was correct upon the facts of that case, the plaintiff in this case was bound to show that at the time of the death of Wilkins there was remaining in force a verdict or decision in her favor. This she did not do. On the contrary, the only thing she did show, was a decision against her.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion for a continuance of the action with ten dollars costs.

Sedgwick, Oh. J., concurs.


text:
    Mary Noonan, Pl’ff, v. Christian Brennemann, Def't.

      (New York Superior Court, General Term,

      Filed February 14, 1887.)

    Mortgage—Foreclosure—Necessary parties.
    One Meehin, while seized and possessed of the real estate in question, executed a mortgage, which was afterward foreclosed. Thereafter said Meehin died seized of said real estate, leaving him surviving his widow, certain heirs-at-law and a last will, which was duly probated, which directed his executrix to sell all his real and personal property. The testatrix was to divide the proceeds and hold portions thereof upon certain specified trusts. The executrix did not sell the real estate as directed. Afterward the said mortgage was foreclosed, the testatrix, who was the widow of Meehin, was made defendant individually and as executrix, but none of the other persons named in the will or heirs of the testator were made parties. The defendant herein bought said property on the foreclosure sale, and afterwards agreed to sell it to plaintiff. This action was brought to recover money deposited on the contract and the expenses of searching title on the ground that the title of defendant was not good. Held, that defendant only acquired the title of the parties to the foreclosure suit and that the fee vested in the heirs-at-law had not been divested.
    Exceptions taken by the defendant and ordered to be heard in the first instance at general term.
    Francis Meehin died in December, 1874, seized of premises No. 95 Henry, street. He left a widow, Margaret M. Meehin, a son, Joseph 0. Meehin, and a grandson, John Francis Morris, son of a deceased daughter, his widow and heirs-at-law.
    By his will admitted to probated in New York county, April 7, 1885, he appointed his wife, Margaret M., sole executrix, with directions to dispose of his real estate, at public or private sale, as soon as possible, and out of the proceeds to pay his debts, funeral expenses, mortgages and liens, and gave one-half of the net proceeds, after such payments, to his wife absolutely, and the other to be held by her in trust for his grandson, John Francis Morris, to be paid over to him when he became of age; and in case of his death before he attained such age, he gave one-half thereof to his (the testator’s) granddaughter, Mary Ann Meehin, daughter of Joseph C. Meehin, to be held in trust until she became of age, the principal then to be paid over to her; and the other one-half to his brother, Patrick Meehin, residing in Ireland.
    The executrix took no steps whatever to sell the premises in question, but from the testator’s death until September, 1877, all the parties continued to live on the premises, practically electing to have the trustee hold the same in lieu of the proceeds of the sale for the benefit of the trust.
    On August 9, 1877, judgment of foreclosure and sale was entered in a suit wherein Julius Hitchcock was plaintiff and Margaret M. Meehin, individually and as executrix, with others, were defendants, and the premises were sold at public auction to the defendant, and conveyed to him by Edward D. Gale, referee, by deed dated September 19,1877. This foreclosure was of a mortgage on the premises made by the testator in his lifetime. Mary Ann Meehin, individually and as executrix, was made defendant, but none of the other persons named in the will or heirs of the testator were made parties.
    In April, 1885, the defendant contracted to sell the property to the plaintiff, and counsel of the plaintiff rejected the title on the ground that Margaret Meehin, in her capacity as trustee, was not made a party defendant, and that Joseph 0. Meehin, John F. Morris and Mary Ann Meehin, heirs-at-law of the testator, were not made parties defendant, and that Patrick Meehin, a legatee, vras not made a party.
    Plaintiff thereupon sued to recover tire amount paid on the contract, $500, and her expenses of searching title, which amounts in all are admitted to be $809.35.
    The sole question in the case was, did the plaintiff acquire by his purchase under the foreclosure in question a good title without any of the omitted persons having been made parties to the suit.

      Edgar Whitlock, for def't; J. L. Cadwalader, for pl’ff.
   Ingraham, J.

It is clear that under the will of Francis Meehan the fee of the real estate of the testator vested in his heirs-at-law, subject to the power of sale contained in the will. Lent v. Howard, 89 N. Y., 177.

Before the defendant could acquire a valid title to said property in fee, he must in some way acquire the fee vested in the heirs-at-law of Meehan. The action to foreclose the mortgage that was a lien upon the property at the death of the testator, did not divest the heirs-at-law of the fee vested in them; they were not parties to that action.

The deed of the referee under the judgment in the action conveyed the estate, of the parties to the action, but did not affect the property or estate of those not parties. The legal title is still vested in the heirs-at-law. That the testator intended to convert the real estate into personalty does not affect the method by which the property is to be conveyed. As between the executrix and the trustee and the beneficiaries, the proceeds of the land when sold would be personal and not real property, but the fee of the land vested in the heirs,and itpnust in some way be conveyed to the defendant to enable him to comply with his contract. That could be done by an execution of a power of sale, because the fee vested in the heirs-at-law was subject to the execution of that power, but such power of sale was not executed; it could be done by the foreclosure of the mortgage, but as a sale under the judgment in the action to foreclose would only affect the title of the parties to the action, in order to divest the heirs-at-law of the fee vested in them, they must be parties to such action.

It is unnecessary to determine what interest in the property defendant acquired by the deed from the referee in the foreclosure action. Plaintiff was not bound to accept an equitable title, and as the fee of the premises was not vested in the defendant, his conveyance was not a compliance with the contract.

The exceptions should be overruled and judgment ordered for plaintiff on the verdict, with costs.

Sedgwick, Oh. J., concurs.


author: Dugro, J.

text:
    Louise M. Lent, Resp't, v. The New York Central and Hudson River R. R. Co., App'lt.

      (New York Superior Court, General Term,

      Filed April 13, 1887.)

    1. Negligence—Railroad—Coupling op cars to loaded passenger train—Care required—When question eor jury.
    The plaintiff got on a train of the defendant company hut could find no seat, the cars being crowded with people standing up. The conductor directed her and others to get off, and stated that another car would be put on. Plaintiff and her friends not off the rear car and, with others, walked forward to obtain seats in the new car. When they arrived forward the train had been separated and they got on the forward end of the car where the break was, and stood in the forward part when the engine and other car backed down to be attached. When the cars came together a servant of the defendant cried, “ All aboard,” and a number of persons passed safely from the car in which plaintiff was into the new car, over the platforms, there being no guard chains at the ends of the cars. The plaintiff then passed forward and just as she had lifted her foot to step upon the platform of this forward car, the cars separated and she fell between them on the bed of the railroad, and was injured. This action was brought to recover damages for said injuries. The cars separated because the coupling was not properly effected at the time the cars came in contact. Held, that the coupling of the cars being attempted at a point where the probability of a success in effecting a coupling was a matter of uncertainty, the absence of any chain or other physical means of preventing passengers from attempting a passage from car to car until a proper coupling was effected, taken with the fact that no person was stationed on either of the cus at the points where a passage would naturally be made, to warn passengers when such an attempt would be dangerous or to prevent passengers from making such an attempt, raised a question of negligence which was for the jury to determine.
    3. Same—When a question eor the court.
    When the facts are undisputed, and are such that it would be impossible for fair-minded men of intelligence to draw from them any inference to relieve plaintiff from the charge of negligence, then the question of negligence becomes a question of law for the court.
    Action for personal injuries caused by negligence of the defendant.

      Appeal by defendant from an order, denying a motion made upon the judge’s minutes to set aside a verdict in favor of plaintiff and grant a new trial. Exceptions to be heal'd in the first instance at general term.

      Frank Loomis, for app’lt; A. P. Whitehead and George A. Strong, for resp’t.
   Dugro, J.

This action was brought to recover damages for personal injuries, and on the trial before Mr. Justice, Ingraham and a jury, the plaintiff had a verdict for $1,000.

It appears from the evidence, that on July 6, 1884, the plaintiff, her brother, Mr. Russell, and her brother-in-law, Mr Gilbert, were at PeeksMll and purchased tickets for -New York, intending to take the train due in Peekskill at 7:46 P. M.

The train was late and a large number of passengers were waiting for it on the station platform. When the ■ train arrived plaintiff and her companions got on it. They could find no seats, the cars were crowded with people standing up. The conductor directed them to get off and stated that another car would be put on. They got off the rear car, and with a number of people, walked forward to obtain seats in the new car. When they came forward, the train had been separated, and they got on the forward end of the car where the break was, and the plaintiff went inside the car and stood in the forward part when the engine and other cars backed down to be attached.

Mr. Russell stood next plaintiff, just inside the door, and Mr. Gilbert stood between Russell and the platform, and there were a number of persons on the platform. When the cars came together, either the conductor, or the brakeman called out: “All aboard,” and the passengers began at once to enter the empty car. A number of persons safely passed from the car in which plaintiff was, into the new car, over the platforms (there being no guard chains at the ends of the cars). The plaintiff then passed forward, and just as she had lifted her foot to step upon the platform of this forward car, the cars separated and she fell between them on the bed of the railroad and was injured.

It seems that the cars separated because the coupling was not properly effected at the time the cars came in contact. This was on account of the failure of the drawheads to catch, caused by the inability of the engine to move with exactly sufficient force to accomplish the purpose. It was testified to by defendants that the success or failure of an attempt to couple cars depends on varying conditions, and all that is possible, is the exercise of the best judgment of competent and experienced men.

At the close of plaintiff’s testimony the defendant moved to dismiss the complaint on the ground that no negligence had been shown on the part of the defendant, and that it appeared plainly that there was negligence on the part of the plaintiff. The motion was denied, and defendant excepted.

The motion was renewed at the end of the case, and again denied; and the learned trial justice also denied defendant’s motion to direct a verdict in its favor on the ground that no negligence had been shown on the part of the defendants, and that the plaintiff’s negligence had coniributed to the injury. The court denied the motion, and submitted all the questions of negligence on the part of the defendants, and of contributory negligence on the part of the plaintiff, fully and fairly to the jury.

The requests to charge made by the defendants’ counsel were unnecessary, the judge having in effect charged as requested. No error was committed by the learned trial justice in his rulings on the motions to dismiss and for judgment for the defendant; the charge was as favorable to the defendants as the law and the circumstances permitted, and was a correct and succinct statement of the law of contributory negligence.

There was no error in the judges refusing to charge as requested by the defendant, “that the plaintiff was bound to wait on the car where she was in a safe place until the coupling was completed.” The plaintiff could not know, except by supposition, when the coupling was complete, and there was sufficient evidence in the contact of the cars and the action of the other passengers tending to show a reasonable ground for belief that the coupling was effected, to go to the jury. There were no guard chains on the platforms at the end of these cars. Ames, one of the defendants witnesses, says that defendants had such chains on drawing-room and sleeping cars.

We believe that when the coupling of cars was attempted at a point where the track was on a curve, and the probability of success in effecting a coupling a matter of uncertainty, the absence of any chain or other physical means of preventing passengers from attempting a passage from the car in which the plaintiff was standing to the empty car until a proper coupling was effected, taken with the fact that no person was stationed on either of the cars at the points where a passage would naturally be made, to warn passengers when such an attempt would be dangerous, or to prevent passengers from making such an attempt, raises a question of negligence which it was proper that the jury should determine.

The imputation of negligence against the plaintiff depended very much upon the observance of all proper precautions on the part of the defendants. Dickens v. N. Y. C. R. R. Co., 1 Keyes, 23.

Although it be conceded that plaintiff did not look toward the platforms, the absence of guard chains, the passage of •others before her into the adjoining car, and the rushing of people by her, the circumstances of the case are such as raise such a question in regard to contributory negligence •on the part of the plaintiff as should have been determined by a jury.

When the facts are undisputed, and are such that it would be impossible for fair minded men of intelligence to draw from them any inference to relieve plaintiff from the charge of negligence, then the question of negligence becomes a question of law for the court. Kellogg v. N. Y. C. R. R. Co., 79 N. Y, 76, 77.

Judge Danforth, in the case of Greany v. Long Island R. R. Co. 101 N Y 425). says : ' I know of no exception to the doctrine that where there is any evidence, direct or inferential, of care or caution on the part of the person injured, the question whether it was in compliance with that rule is for the jury. ”

As it does not appear from all the circumstances of the case that there was entire absence of inferential evidence that the plaintiff did exercise care or caution, the question went properly to the jury.

The order denying defendants motion to set aside the verdict and grant a new trial must be affirmed, with costs.

Truax, J.,


author: Sedgwick, J.

text:
    Rosa Schuhle, Resp't, v. Daniel Cunningham, App'lt.

      (New York Superior Court, General Term,

      Filed April 13, 1887.)

    Evidence—Memoranda of deceased physician—When incompetent.
    In an action for the recovery of damages on account of personal injuries from the falling of a pole, the entries of the physician in a book kept by him as to plaintiff's condition, were put in evidence. The physician died before the trial. It was not shown when the entries were made. Held, that it was error to admit them in evidence until they were proved to have been made at or about the time the fact referred to occurred.
    Appeal by defendant from judgment entered upon verdict for plaintiff, and from order denying motion for new trial made upon the minutes.
    Appeal by defendant from order denying motion for new trial made at special term upon the case as settled and .affidavits.

      George Bethune Adams, for app’lt; Ira Leo Bamberger, for resp’t.
   Sedgwick, J.

The action was for damages from the •alleged negligence of the defendant.

The plaintiff was a tenant of defendant. She claims that a heavy pole that the defendant was bound to keep firm and safe, fell upon her. As part of her proof against defendant’s objection, she was allowed to put in evidence entries in a book kept by her physician, who had died before the trial. The entries were as follows:

“ Mrs. Rosa Schuhle, 752 Second avenue, was hurt on the seventh of January. Found her suffering, ’pain in side; found ribs broken; shoulder on left side was disabled; also left parietal was contused; was deaf on left side; could only hear watch six inches to eighteen inches on the right side; she had intense headache, and acted very nervously.
“I returned that night and found her spitting blood, the ribs having pressed against.
“March 19. Bled from nose profusely.”

This was all in the handwriting of the physician.

The objection was, in general, to the competency of the entries as testimony. I think the general objection was sufficient.

The entries were the declarations of a person not sworn upon the trial and offered for cross-examination.

The plaintiff was bound, in order to be entitled to their admission, to prove all the conditions which the" law affixes to their admissibility. One of these conditions is, “the entry must have been made at or about the time of the transaction recorded.” Greenleaf Ev., section 115.

The entry did not disclose when it was made. Indeed part of it indicated that it was made after the fact referred to was declared to have occurred. Take it altogether, it seemed to be a condensed history of observations made in times that had passed.

No testimony was given dehors the book, that tended to show that the entries in it were made by the physician contemporaneously with the meetings of the physician and the plaintiff.

On the argument of the appeal, there was no discussion of whether the rule, admitting entries made by the deceased persons in the course of a professional duty, included matters like those in the present controversy.

For the reason that has been given, the judgment and order made upon the minutes should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

The notice of motion for a new trial, made upon the case as settled, did not specify any grounds. The ground stated was that it appeared by affidavits that the testimony given by the plaintiff was false, especially as to the extent of her pretended injuries and that on a new trial testimony could be produced that would show the falsity.

The learned judge properly held that the defendant, by the use of ordinary diligence, could have produced on the trial the testimony that was said to have been newly discovered, and that the issues as made called upon him to produce all the testimony he could procure.

The order appealed from should be affirmed, with costs to the respondent to abide the event.

Dugro, J., concurs.


author: Sedgwick, J. Ingraham, J.

text:
    Hannah S. Brick, Resp't, v. Robert Campbell, App'lt.

      (New York Superior Court, General Term,

      Filed April 13, 1887.)

    1. Insurance (life)—Husband and wife—Policy for benefit of wife— Asssignment of—Laws 1873, chap. 821—Laws 1840, chap. 80.
    In an action brought to set aside an alleged assignment of certain policies of insurance upon the life of plaintiff’s husband, drawn in favor of the plaintiff, it appeared that at the time the said assignment was made by plaintiff she had a child living, which died subsequently, but before the commencement of this action. Held, that since the passage of Laws 1873, chap. 821, the statutes do not imply that the wife cannot assign insurance taken out under the Laws of 1840, chap. 80, as amended, payable to a. married woman, and in which children have no legal or equitable interest. In such a policy the wife during life is solely interested.
    2. Same—Laws 1873, chap. 821, applies to policies payable to married-women ALONE.
    The latter part of section 2, chap. 821, Laws 1873, was intended to apply to policies that are payable to the married woman alone as well as to the married woman and children, or to her or children.
    3. Same-'-Assignment must be acknowledged.
    The statute of 1873 intended that there should be no assignmen ithout its execution being acknowledged by the married woman as at the time was necessary to a conveyance to pass her dower right.
    4. Same—Assignable interest of married woman.

      Held, that the plaintiff in the lifetime of her children had a property interest in the property, which, in its nature, was assignable. , That there-was no objection to her making any grant of her interest which would not contravene the intent or policy of the statute which was that she should remain in possession of her interest while any child was living. But that she could not make any instrument on its face a grant which would operate as a grant during the lifetime of the children.
    5. Same—Estoppel—When wife estopped from questioning validity of-ASSIGNMENT.
    The plaintiff made an instrument, which on its face, was an assignment and delivered the policies, they being assigned as security for moneys that the defendant should thereafter pay on account of the husbands indebtedness. After the death of her children she allowed defendant to retain them for nearly two years, only having asked for the policies upon a claim that the purpose for which they had been given as security had been fulfilled. The assignment was not revoked, during the life of the children. Held, That the assignment became operative when there was no-living child, and the policies remained thereafter in the hands of the assignee with the consent of the wife. Ingraham, J., dissenting.
    6. Same—Wife policy—Not fraudulent as to creditors.
    It is legal and not fraudulent as to creditors for the husband to take out policies for the benefit óf his wife to a certain amount, or for the wife to take them out of premiums to a certain amount to he paid out of the. husband’s property

      Appeal by respondent from judgment entered upon findings at special term.
    The following is a brief description of the five policies in suit:
    Policy issued by the Mutual Life Insurance Company, dated July 31, 1872, and insures the life of E. A. Brick for $3,000. The policy, in terms, makes the insurance payable to the personal representatives and asigns of the husband.
    Policy issued by the same company upon the same life for $2,000, made payable to the plaintiff in July, 1888, or should her husband die before then to plaintiff, her personal representatives and assigns within sixty days after proof of such death.
    Policy issued by the Washington Life Insurance Company upon the same life for $4,000, made payable to the plaintiff on the 30th day of July, 1888, or should the insured die previous thereto, then to her personal representatives and assigns within sixty days after proof of such death.
    Policy of the New York Life Insurance Company issued upon the same life for $3,100, made payable to the plaintiff and her children, if said Brick dies within fifteen years, otherwise payable to Brick at the end of the fifteen years.
    Policy issued by the New England Life Insurance Company upon the same life for $2,000, made payable at Boston to plaintiff and her personal representatives at the expiration of fifteen years or sooner in the event of the insured’s death.
    All of the above policies were issued in 1872 and assigned by the plaintiff and her husband to the defendant in June, 1877.
    The relief demanded by the complaint was that the defendant re-assign and deliver five polices of insurance on the life of her husband, which had been assigned by her to the defendant.
    Judgment in accordance with the demand was entered after a trial.
    The opinion rests upon the construction of the following statute, chapter 851, Laws of 1873, p. 1234:
    “ § 3. Any policy in favor of a married woman or of her and her children, or assigned in her, or in her and their favor, on written request of said married woman, duly acknowledged before a commissioner of deeds, or other officer duly authorized to take acknowledgements of deeds in the same manner as required by law, to pass her dower right in lands of her husband, and on the written request of the policy-holder may be surrendered to and purchased by the company, issuing the same, in the same manner as any other policy. And such married woman may, in case she has no child or children born of her body, or any issue of any child or children born of her body, dispose of such policy in and by a last will and testament, or any instrument in the nature of a last will and testament, or by deed duly executed and acknowled before an officer authorized to take acknowledgements of deeds in the same manner as required by law to pass her dower right in lands of her husband, which disposition lawfully made shall invest the person or persons to whom such policy shall have been so bequeathed or granted and conveyed with the same rights in respect thereto as such married woman would have had in case she survived the person on whose life such policy was issued, and such legatee or grantee shall have the same right to dispose of such policy as herein conferred on such married woman.
    The instrument made by the plaintiff is claimed by the defendant to be a valid assignment of the policies, and was acknowledged in the manner required by the statute.

      George W. Van Slyck, for app’lt; Jacob F. Miller, for resp’t.
   Sedgwick, J.

Four of the policies assigned by the plaintiff were in terms payable to her executors, administrators, and not in any contingency to children. The choses in action were her separate property. In equity she had exclusively the power of disposition of her separate property in general when it was personal, if the grant of it to her or perhaps the nature of her interest in it did not express or imply a limitation of her power of disposition. Seymour v. Fellows, 77 N. Y., 178; Rawson v. Penn. R. R. Co., 48 id., 216, and other cases; Olmstead v. Keyes, 85 id., 593. The statutes of this state give- a legal power of disposition of separate property to a married woman. If there be a doubt as to whether these statutes comprise the case of a gift of the husband to the wife, there is no doubt that in equity she has the same power over such gifts as over any other kind of separate property.

In the instance of a policy of insurance of the life of a husband payable to the wife, the premiums being paid by the husband, there would be a question as to whether the nature of the gift as a provision for the wife after the husband’s death, did not limit her power to dispose of it in his lifetime. Beyond this, as against creditors, the husband would have no right to use his money in payment of the premiums if such use were fraudulent as to the creditors.

The statutes on the subject of these insurances made it legal and not fraudulent as to creditors for the husband to take out these policies to a certain amount, or for the wife to take them out, the premiums to a certain amount to be paid out of the husband’s property.

These statutes make no provision as to the wife’s power of disposition. They declare that the policies in favor of the wife shall be her sole property.

The courts have held in Eadie v. Slimmon (26 N. Y., 15), and the cases that follow it, that it was an implied intent of the statutes that the wife should not assign insurances taken out under the statute.

Since the act of 1873, chap. 821, p. 1235, the statutes do not imply this intent in respect of a policy made payable to the married woman, and in which children have no legal or equitable interest.

In such a policy the wife, during life, is solely interested. Olmstead v. Keyes, supra. If a married woman, provided she have no children living at the time, can assign a policy payable to her and partly or contingently to children, there can be no room for arguing that the implied prohibition, against assigning when there is a child living, is made for her benefit. The benefit to children, which the statute relates to, is of the slightest possible kind.

There is no provision which contemplates that the widow, on the death of the husband, shall use, for the benefit of children, any part of the money her sole property collected from the policy.

The doubt that the latter p>art of the section was intended to apply to policies that are payable to the married woman and children, or to her or children and not to policies payable to her alone, cannot be entertained under the decisions as I understand them.

In Brummer v. Cohen (6 Abb. N. C., 409), the policy was made payable to the wife or her executors, administrators and assigns. There were no children living at the time of the action, and these children were in being at the time of the assignment. The court, in the first instance, held that the property was unassignable, and that, as the plaintiff had children at the time she assigned the policy to the defendant, the act of 1873, chap. 821, did not help the assignment.

The court of appeals said in the case: “The legislature in conferring, by subsequent acts, a limited power of assignment, have recognized the policy attributed to the legislature of 1840. (Ch. 821, Laws of 1873; chap. 248, Laws of 1879.)

The assignment in this case was not within the authority conferred by these acts.

It is proper to state here that it may be assumed that the statute of 1873 intended that there should be no assignment without its execution being acknowledged by the married woman as at the time was necessary to a conveyance to pass her dower right.

If there is no difference between this case and that of Brummer v. Cohen the plaintiff has a right to a judgment that the assignment made by her was invalid. In the present case the difference of fact is that while at the time of the assignment there were children they had afterward died and before the action.

Was it possible for her to make a valid assignment, which might bind her, which would not operate during the lifetime of the children, but upon their death would operate as an assignment ?

It seems clear that in their lifetime she had a property interest in the policy which in its nature was assignable.

There was no objection to her making any grant of her interest, which would not contravene the intent or policy of the statute, which was that she should remain in possession of her interest while any child was living.

But she could not make any instrument, on its face, a grant which would operate as a grant during the lifetime of the children. The plaintiff did make an instrument which, on its face, was an assignment. If, after the death of the children, she should reaffirm this and then, procuring the piece of paper on which the chose in action was written, deliver it to the assignee named, there would be no doubt in the case.

The instrument would be at heart what is called a precedent declaration, which would be effective as a grant upon the policy coming to the assignee after the death of the children. McCaffrey v. Woodin, 65 N. Y., p. 462, et seq.

The notes to Ryall v. Rowes, W. & F. Leading Oases in Eq., 2nd vol., 1611, illustrates this principle.

It is assumed that during the life of the children she might by act or verbally annul the instrument so that it would cease to be effective. The judge below found that on or about the 29th day of May, 1880, and at several other times before the commencement of this action, the plaintiff demanded the retransfer and redelivery of the said policies to her. The testimony shows that the demand referred to was made by the husband of the plaintiff. He did not use the word demanded. He asked for the policies, and said it was about time they were given up, about time they were surrendered.

The connection in which this testimony was given shows that this was not a denial of the efficacy of the assignment, but a claim that the purpose for which it had been given as security had been fulfilled. The policies were to be surrendered because the debt, to secure which, as the witness assumed, had been paid. There. was no" other demand made until July, 1884 after the death of the children.

The facts were as the judge "has found, that the considertion of the assignment was the assumption by the defendant of the obligations of the husband, and the assignment was made as security for the defendant’s reimbursement of any sums he should pay under the assumption; that the defendant had paid on account of these obligations, for which he had not been reimbursed, a sum exceeding the face value of the policies, that is $14,100.

It is the fact that after the death of the children the policies were not redelivered to the defendant. They remained from the assignment in the possession of the defendant. If they remained so for any time with the plaintiff’s consent, under her claim to them the assignment became finally operative. The taking and giving them again would have been a mere form. It is not necessary to decide that the defendant could not against the wish of the plaintiff have held the policies and subjected them to the operation of the assignment. So far as that is referred to by the testimony, the indications are that the plaintiff assented to the possession by the defendant under the assignment, after the death of the children.

These indications are the nature of the assignment, which was never revoked nor recalled during the lifetime of the children, the not revoking the assignment and the usual obligation on her part growing out of the payments made by the defendant, as she had in fact requested, which would be a motive to her to assent to his holding the policies after the death of the children. The presumption of fact would be that she acted in accordance with the motive until there was evidence that she ceased to be influenced by it. In June, 1884, she first made a demand. From January, 1882, no child was living. The inference is that in the intervening time she had assented to the claim of the defendant and that the policies were then effectively assigned.

The facts that have been stated disclose that the policies were not assigned as security for an antecedent indebtedness of the husband to the defendant but for moneys that the defendant should thereafter pay on account of the husband’s indebtedness.

Another policy was payable to the plaintiff “for her sole use if living in conformity with the statute and if not living, to the children of said person whose life is hereby insured, or their guardian for their use.” The statute that has been examined does not say, and probably does not imply that an assignment by the wife at the time when there is no child living, would cut off the interest in the policy, which by the terms of the contract might belong to a child after the death of .the husband and born .after assignment. It permits in the case provided that the wife may assign. The interest passing would be such as would be ascertained by her living after her husband’s death. The reasoning that has been applied to policies payable solely to the wife is properly applicable to this policy. The assignment of it became operative when there was no living child and the policy remained thereafter in the hands of the assignee with the consent of the wife.

For these reasons I am of the opinion there should be a new trial.

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

Freedman, J. concurs.

Ingraham, J.

(dissenting). It is settled in this state by the case of Olmstead v. Keyes (85 N. Y., 600), that one to whom a policy of life insurance is payable or to whom such policy has been assigned, may with the consent of the insurer, deal with a valid life policy as he can with any other chose in action, selling it, assigning it, disposing of it and bequeathing it by will except so far as such transfer is prohibited by statute.

It is also settled that chapter 80 of the Laws of 1840, as amended, prohibits the assignment of policies of insurance issued under the povisions of section 1 of that act except as such transfers are allowed by section 2 of the act as amended by chapter 831 of the Laws of 1873. An assignment of such policy is, therefore, void unless made in compliance with the terms of the second section of that act. Barry v. Equitable Life Assurance Co., 59 N. Y., 592; Brummer v. Cohen, 6 Abb. N. C., 411.

A policy of insurance which insures the life of a married man for the benefit of his wife or in case of death before the decease of her husband for the benefit of her children is a policy issued under the provisions of section 1 of the act of 1840, and can only be assigned or transferred as allowed by section 2 of the act.

The policies, Exhibit A, New York Life Insurance Company, for $3,100; Exhibit C., Mutual Life Insurance Co., for $2,000, and Exhibit E., Washington Life Insurance Co., for $4,000, were plainly issued under the statutes above named. The insurance is to be paid to the wife of the person whose life is assured and the prohibition contained in the statute applies. i

The power to assign these policies must be found, if it exists, in section 2 of the act. That section provides that “any such married woman may, in case she has no child born of body, or any issue of any child or children born of her body, dispose of sucli policy.”

In order to make such assignment valid, therefore, it must appear that such married woman to whom the policy was payable at the time of the execution of the assignment had no child or children, or issue of any child or children, and if such fact does not appear, the authority given by the section to make a transfer of the policies does not apply.

The fact that subsequent to the assignment of such a policy, a child living at the time the assignment was executed, was dead, would not validate the assignment void, when made.

The grounds upon which the prohibition has been applied, “ that the fact was special and peculiar and looking to a provision for a state of widowhood or orphanage, and that it would be a violation of the spirit of the provision to hold that a wife under that act could sell or traffic with her policy as though it was her personal property or ordinary security for money. Barry v. Equitable Ass. So., supra.

I think it would be as clearly opposed to the spirit of the statute to allow assignments or transfers to be made the validity of which would depend upon the death of children of the person for whose benefit the policy was made, and the terms of the amendment of 1873 is explicit that a transfer can be made in case there should be no child.

There is nothing in this case that would estop the plaintiff from claiming that the assignments are void. It does, not appear that defendant paid anything on the faith of the assignment of these policies after the death of the child, or that he had suffered in any way by the failure of the plaintiff to sooner assert her claim.

. I am of the opinion, therefore, that the assignment of the policies marked Exhibits A, C‘and E were void, and that so far as the judgment directs the re-assignment of such policies to the plaintiff, the judgment should be affirmed. As to the policy, Exhibit B, it was issued by a Massachusetts corporation, dated at Boston, Mass., payable at Boston, Mass., and provides that the contract should be governed and construed by the laws of Massachusetts.

As to Exhibit D, the policy is made payable to R. A. Brick, the plaintiff’s husband, or his representatives. The-policy is not payable to the plaintiff and does not comply with the terms of the act of 1840.

It is clear that an assignment of that policy to the plaintiff by her husband, fraudulent as to creditors, would not be protected by the terms of the act of 1840.

It is very clear from this provision that this policy could not have been issued in compliance with the act of 1840, and the prohibition contained in that act does not, therefore, apply. These policies, therefore, come under the rule as laid down in Olmstead v. Keyes (supra), and are assignable.

I am unable, therefore, to agree with the chief judge that the assignment of all the policies was invalid.

The judgment should be reversed, and a new trial ordered, as to the policies marked Exhibits B and D, but the judgment should be affirmed as to the three policies, Exhibits A, C and E.


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    Robert Milliken et al., Resp’ts, v. Andrew L. Thomson, App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1887.)

    1. Supplementary proceedings—Order to answer question not appeal-able.
    Defendant herein appealed from an order requiring him to answer a question propounded to him while under examination in proceedings supplementary to execution. Held, that the order was not appealable.

      2. Same—Practice—Entitling order.

      Held, that proceedings supplementary to execution are not a part of an action, and the order should not have been entitled in the action.
    Appeal by defendant from order requiring him to answer a question propounded to him when under examination in proceedings supplementary to execution,’ etc.

      Sidney J. Cowen, for app’lt; David Milliken, Jr., for resp’t
   Sedgwick, J.

The appea. should be dismissed. The order is not appealable. It affected no substantial right of defendant. He was called upon by it to do no more than give a name in answer to the question. This affected no interest of his, except upon fhe supposition that the answer might lead to the making of an order that would competently require the application of property of defendant to payment of the judgment.

It is not necessary to examine the questions that would arise if the order were appealable. It may be further said, however, that proceedings supplementary to execution are not a part of an action, and the order should not have been entitled in the action.

Appeal dismissed, with ten dollars costs.

O’Gorman, J., concurs.


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    William E. Stillings, as Assignee of Richard Taylor, for the Benefit of Creditors, App'lt, v. Hugh Smith, Resp't.

      (New York Superior Court, General Term,

      Filed May 16, 1887.)

    Off-set—When one judgment can be off-set against another.
    Three actions were commenced by Taylor (who afterwards made a general assignment to the plaintiff) against this defendant, which resulted in three judgments in favor of defendant, which were entered against the plaintiff after said assignment. Later, a judgment was obtained, in a fourth action, by Taylor against this defendant. On an appeal from an order allowing defendant to offset the first three judgments, Held, that there was a proper case presented for an off-set, that the assignee was liable on the judgments entered in favor of the defendant and was the owner of the judgment entered in favor of his assignor.
    Appeal by the plaintiff from an order of the special term, granting a motion that two judgments entered in the court of common p^eas in favor of the»defendant and respondent and against Eichard Taylor, the assignor of plaintiff— one for $279.57 and the other for $82.44, and that $150.40 of a judgment entered in this court in favor of said defendant and against said Eichard Taylor for $255.48, making in all, with interest, the sum of $526.39, be set off against a judgment for said last mentioned sum of $529.30, entered in this court in favor of said Eichard Taylor and against said defendant, Hugh Smith, in which action plaintiff has been substituted, and that said judgment last mentioned be canceled and discharged of record.
    Three actions were commenced by Eichard Taylor, plaintiff’s assignor, against the defendant; one in the court of common pleas and two in this court. In the action in the common pleas, and in one of the actions in this court, the defendant recovered judgment. From the judgment recovered against him in the court of common pleas the said Taylor appealed, and judgment upon the dismissal of his appeal was duly entered against him, making in all the three judgments set forth in the foregoing statement in favor of the defendant and against said Taylor, the aggregate of which judgments exceeds the amount of the judgment rendered against said defendant by the sum of $105.08. And these judgments were entered subsequent to the assignment, and all the actions were prosecuted to judgment in the name of Eichard Taylor, the assignor. In the one recovered by said assignor, and against the defendant, in which the damages awarded were less than the one-tenth part of his claim, the plaintiff, as his assignee, was substituted in his stead, and now claims to cut off the defendant from his right to set-off so much of the judgments in his favor as will satisfy and discharge the judgment against him. The said Eichard Taylor, plaintiff’s assignor, was alleged to be financially irresponsible.

      A. C. Shenstone, for app’lt; Norwood & Coggeshall. for resp’t.
   Per Curiam.

Upon the facts as they were made to appear on the motion the order is right and proper. If the appellant could have shown an additional fact which within the authorities cited by him would have been a bar to the motion, he_ should have done so. The order should be affirmed, with ten dollars costs and disbursements, upon the opinion of the learned judge at special term.

The following is the opinion of Ingraham, J., at special term:

The plaintiff in the case of Taylor v. Smith, No. 2, having made a general assignment for the benefit of creditors, that judgment became vested in and owned by the assignee. The causes of action in the actions in which judgment was entered in favor of the defendant against the plaintiff having been by the general assignment transferred to the assignee after the commencement of such actions, the assignee under section 3247 of the Code would be liable for the costs in the like case and to the same effect as if he-was the plaintiff, and the court has power, by order, to direct the person so hable to pay them. The assignee, therefore, being liable for the judgment entered in favor of the defendant against the plaintiff, and being the owner of the judgment entered in favor of the plaintiff against the defendant, a proper case is presented for a set off. It does not appear that there is not sufficient' funds in the hands of the assignee to satisfy any lien that the attorney for the plaintiff has upon the action, No. 2. Motion should therefore be granted, without costs.


text:
    Daniel Tullis, Resp't, v. Samuel W. Hassell, App'lt.

      (New York Superior Court, General Term,

      Filed May 2, 1887.)

    1. Master and servant—Damages for unreasonable discharge of SERVANT BEFORE EXPIRATION OF TERM.
    Where an employee contracting to give his entire time is required by the master to attend at the office at certain hours, and disobeys that command, it is error to submit to the jury the question of the reasonableness, of the command.
    2. Same.
    Wages due at the time of the discharge form no element of damages, and cannot be recovered in an action for damages.
    On the second of February, 1886, the defendant employed the plaintiff on a salary, under a written agreement, by which the plaintiff was “to give all his time and best efforts to the business.” On March twenty-seventh, the defendant notified the plaintiff, in writing, that he was to report at the office at nine o’clock in the morning, and between five and six in the afternoon. The plaintiff disobeyed the direction as to attendance, and offered the excuse that he could not obey the requirements and attend properly to the business, and the court submitted to the jury the question as to the reasonableness of this requirement.
    The defendant, at the close of the case, moved to dismiss the complaint on the ground that the contract required the plaintiff to give all his time _ to the business. That the defendant had a right to require him to make any definite disposition of such time, under the terms of the contract, ana that there was no question of the reasonableness or unreasonableness of the requirement to go to the jury. The motion was denied.
    The jury were instructed under defendant’s exception that they might find as a part of the damages, salary due at the time of the discharge.

      James B. Dill (Dill, Chandler & Seymour), for app'lt,
    argued, first, the complaint should have been dismissed, because the plaintiff wilfully disobeyed the lawful commands of the defendant. There was no question of the reasonableness of the command to be submitted to the jury. It was simply a question of the construction of the contract; the plaintiff having contracted to give his entire time, the defendant had a right to dispose of that time as he saw fit. .Second, it was error for the court to charge the jury that they might include in the damages any wages due at the time of the discharge. This was an action for damages. Previous wages constitute a separate and distinct action on contract. Howard v. Daly, 61 N. Y., 369.

      William B. Tuls, for resp’t,
    argued that the plaintiff did not disobey any reasonable request of the defendant. Turner v. Kouwenhoven, 100 N. Y., 120. Whether the regulation was reasonable, should be submitted to the jury. Wise v. Wilson, 1st Carr & K., 662. The damages include unpaid wages. Paine v. Howell, 90 N. 660
   Sedgwick, J.

The action was for damages for a wrongful discharge of plaintiff by defendant, who had employed plaintiff under a written contract. The defendant hired the plaintiff for six months from February fifteenth, " as soliciting employee in the business of printing and publishing carried on by said Hassell. * * * The said Tullis is to give all his time and his best efforts to the business, and the said Hassell agrees to pay the said Tullis therefor thirty dollars a week.”

The complaint charges that pursuant to said agreement plaintiff had rendered service to the defendant until April 13, 1886, when defendant wrongfully discharged the plaintiff to his damage in the sum of $580.

On March twenty-seven the defendant wrote to the plaintiff that he was dissatisfied with the way in which the plaintiff performed his services; that the business done by the plaintiff amounted to only seven dollars in the last month; that the plaintiff did not report at the office. The letter continued, “unless you are willing to render me reasonable return for your salary I shall discharge you on April 10th next; meanwhile and hereafter I desire you to report at the office every morning at nine o’clock, and again between five and six o’clock p. m., and report the work you have done during each day.”

The plaintiff disobeyed the direction of this letter as to attendance at the office, intentionally, going there irregularly at later hours in the morning and not every day. The disregard of the instructions was habitual, and for this cause, on April thirteenth, he was discharged.

The excuse he gave on the stand for his conduct was, that to be at the office at nine a. m. and five p. m., would prevent his getting business for the defendant. The defendant persisted in requiring him to attend.

Against the objection of the defendant the jury were instructed to find whether the command óf the defendant was reasonable.

I am of opinion that the command was of a kind that .the defendant might give at his pleasure, whether it was for his interest or not. The plaintiff had no legal interest in the way in which he should dispose of his time. He was not paid according to the business he should bring to the defendant. The defendant had the right to require the plaintiff to use the time contracted for, as the defendant thought best, provided such use had any relation whatever to the business of soliciting advertisements and of instructions in respect of it and reports of results.

For this reason the jury could not competently find that the command was unreasonable. The defendant was entitled to a dismissal of the complaint on the ground that the plaintiff was not wrongfully discharged.

I also think that the plaintiff was not, under any circumstances, entitled in this action to recover for wages falling due before the alleged wrongful discharge.

The judgment and order appealed from should be reversed and new trial ordered, with costs to abide event.

Freedman. J. concurs.