author: Barrett, J.

text:
    Michael J. Cunningham, Resp’t, v. Adolf Gans, App’lt.

      (Supreme Court, General Term, First Department,

      Filed July 13, 1894.)

    Appeal—Verdict.
    A verdict, founded upon a disbelief of clear, uncontradicted and unáis puted evidence, will be set aside.
    Appeal from an order granting a new trial on the merits.

      Ira Leo Bamberger, for app’lt; Arthur Furber, for resp’t.
   Barrett, J.

— This is an appeal from an order granting a new trial upon the minutes of the judge at circuit. The action was upon a check, and the defendant set up that the check was given for money lost at a game of chance called “ Roulette.” Upon the trial this defense was established by a disinterested witness named Stahl, who fully confirmed the defendant with regard to the transaction. There were some slight discrepancies between Stahl and the defendant in matters of detail, but none in regard to the material fact. The plaintiff failed to produce the payee of the check, one Vandenburgh, nor did he offer any evidence in contradiction of that given by Stahl and the defendant. Vandenburgh was the person who presided over the game in Mitchell’s Club House at Saratoga, rolled the ball, sold the chips which were lost, and took the check therefor. Upon this state of facts there were nothing to go to the jury, and the learned judge should have directed a verdict for the defendant.

At the close of the case the defendant’s counsel asked the court to charge the jury as follows: “ That the uncontradicted evidence of the case is that the consideration for the giving of the check is illegal, to wit, a gambling debt, and therefore their verdict must be for the defendant.” This motion was denied, and the defendant excepted. This was error. As the defendant was entitled to an absolute direction, he was certainly entitled to this instruction. The check was a thing in action, executed and given by the defendant in consideration of money won from him at a game of chance; and it was therefore “ utterly void ” under the statute (1 Rev. St. p. 663, § 16). There is no real dispute about the facts. Whatever question there might have been as to the right to go to the jury upon the defendant’s testimony, had it stood alone, there was none when his testimony was supplemented by that of an unirnpeached and uncontradicted witness. The positive testimony of an unimpeached and uncontradicted witness cannot be disregarded by court or jury arbitrarily or capriciously. Lomer v. Meeker, 25 N. Y. 363; Kelly v. Burroughs, 102 N. Y. 93; 1 St. Rep. 161. In the present case both court and jury were, as was said in Lomer v. Meeker, supra, bound to believe, for judicial purposes, such testimony,” and it was therefore the clear duty of the court to set aside the verdict of a jury founded upon a disbelief of clear, uncontradicted, and undisputed evidence. Page 363. The motion for a new trial was therefore properly granted. It was 0 granted unconditionally. This also was proper, as the defendant was entitled to a new trial, not as a matter of discretion, but as a matter of right.

The order appealed from should therefore be affirmed, with costs. All concur.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Mutual Life Insurance Company of New York, Resp’t, v. Mayor, Aldermen and Commonalty of City of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed July 13, 1894.)

    Municipal corporation—Assessment—Yoid.
    A void sewer assessment, valid on its face, if paid in ignorance of its invalidity, may be recovered back.
    Appeal from a judgment entered on a verdict directed in favor of the plaintiff.
    G. L. Sterling, for app’lt; Charles E. Miller, for resp’t.
   Follett, J.

—October 30, 1876, the defendant entered into a contract with Bartholomew Noonan for the construction of a sewer in a street on which a lot of the plaintiff abutted. The contract provided for the excavation of rock at a price agreed on, though the proposals for doing the work had not been advertised, as required by the statute then in force. Laws 1873, c. 335, § 91. In 1879 an assessment of $1,398.88, on account of work done under this contract, was levied against the plaintiff’s lot, of which sum $996 was for the expense of excavating the rock under the contract. Subsequently the plaintiff in ignorance of the fact that the contract for excavating rock had been let without advertising for proposals as required by the statute, and not knowing that the assessment for paying the cost of its excavation was void, paid to the defendant the sum assessed, with interest. This assessment, though valid on its face, was void for want of jurisdiction. Jex v. Mayor, etc., 103 N. Y. 536 ; 3 St. Rep. 657; In re Merriam, 84 N. Y. 506. The plaintiff, having paid the assessment in good faith, and without notice of its invalidity, may maintain this action to recover the sum paid. Tripler v. City of New York, 139 N. Y. 11; 54 St. Rep. 419.

The judgment should be affirmed, with costs.

All concur.


text:
    Harriet Eads, Resp’t, v. Henry G. Wynne, App’lt.

      (Supreme Court, General Term, First Department,

      Filed July 13, 1894.)

    1. Arrest—Escape.
    Where the plaintiff’s attorney, without the consent of his client, directs the surrender of the execution debtor to an officer who holds a criminal warrant, such surrender is an escape and does not affect the right to a second arrest.
    8. Execution—Body—Error.
    Where a second body execution fails to specify the county to which the property execution had issued, but the first body execution had stated such county, the error may be cured by amendment.

      Appeal from an order denying a motion to vacate an order of arrest.

      C. H. Smith, for app’lt; William E. Stillings, for resp’t.
   Barrett, J.

—On the 2d day of October, 1893, Wynne was arrested under an execution against his person, issued in this action upon the 19th of the preceding month. He was so arrested in front of the Jefferson Market police court, by one Up-ham, an assistant deputy sheriff, acting under special authority from Sheriff Gorman. Immediately after the arrest, and before Upliam had time to remove his prisoner, the plaintiff’s attorney in the execution, one Dawson, came out of the Jefferson Market police court with a police officer, and directed Upliam to allow this officer to take Wynne on a criminal warrant. Upliam did so, and Wynne was committed upon the criminal charge, in default of bail. He remained in the Jefferson Market jail until the 1st of the following January, when he was removed to the Tombs, where he remained until the 2d of April of this year. Upon the latter date, he procured bail upon the criminal charge, and was discharged from custody thereon. Thereupon, a second execution against his person was issued,—this time to the present sheriff, Sexton,—and he was lodged thereunder in Ludlow Street jail. He moved at special term to vacate the second execution and his second arrest; also, for his discharge, under § 111 of the Code of Civil Procedure, upon the ground that six months had elapsed since his original arrest. The motion was denied, and Wynne appealed.

We have no doubt, upon the facts presented by the affidavits, that there was an actual arrest under the first execution. Wynne was in Upham’s custody thereunder when Dawson" made his appearance with the police officer. It was an escape for Upliam to permit Wynne to be taken from his custody upon the warrant of a police justice to answer an alleged crime. Brown v. Tracy, 9 How. Pr. 93; Crock. Sher. (3 Ed.) § 602 ; Barb. Crim. Law (3d Ed.) 536. The sheriff can avail himself of nothing as a matter of defense to an escape but an act of God or the common enemy. Fairchild v. Case, 24 Wend. 381. It is well settled that the plaintiff’s attorney, as such, has no power to allow a discharge of the defendant without the actual payment of the money. Kellogg v. Gilbert, 10 Johns. 220; Simonton v. Barrell, 21 Wend. 362; Lovell v. Orser, 1 Bosw. 349 ; Jackson v. Bartlett, 8 Johns. 281; Vidrard v. Fradneburg, 53 How. Pr. 340. The attorney could not destroy the plaintiff’s rights by such a direction as was here given. She never consented to the surrender of Wynne to the police officer. There is no evidence that she was present upon the occasion. The complaint in the criminal proceeding seems to have been for stealing her property, but she was not the complainant. The complainant was Dawson. It was he who made the oath upon which the warrant was issued ; and the proceeding was entitled, as appears from the indorsement upon the warrant, “The People,’ etc., “on the Complot °f Andrew H. H. Dawson v. Henry G Wynne.”' As the plaintiff never consented to the surrender of Wynne, and as Dawson had no authority to so consent, it follows that such surrender was an escape for which the plaintiff was not responsible, either in fact or in law. It follows, too, that, as she did not consent to the surrender, she may issue a new process, and retake the defendant. Code Civ. Proc. § 1492; Wesson v. Chamberlain, 3 N. Y. 331. As was said in this latter case: “As regards the sheriff, the escape was voluntary, and he was responsible for it; but the debt was not thereby discharged as against the judgment debtors, and the plaintiffs had a right to issue a new execution, and to retake the defendants ; ” citing Watson v. Sutton, 1 Salk. 272.

The defendant was not entitled to be discharged under § 111 of the Code, for the reason that, after the surrender,, he was not in actual custody under the first execution. Consequently, he was not in actual custody for the statutory six months. This period certainly did not run after the escape. Nor is this conclusion affected by the fact that, during all the statutory period, Wynne was in a criminal jail. These jails were not in the custody of the sheriff. In the city of New York the sheriff has “ custody of the jail used for the confinement of persons committed on civil process only and of the prisoners in the same.” Consolidation Act, § 1715. At all events, Wynne was not in the criminal jail under the civil process.

The defendant was not prejudiced by the error in the return made upon the first execution. The substantial matter is that he was not entitled to a discharge thereunder, pursuant to § 111 of the Code. The plaintiff was not responsible for the form of return which was made, nor was she bound to await such return be- % fore issuing her second execution. The latter process was properly issued at any time -after the unauthorized surrender under the first execution. We think, however, that the point made against the second execution—that it did not specify the county to which execution against the property had been issued—was well taken. The name of the county was left in blank; but this was undoubtedly a clerical error, which can be cured by amendment. The name of the county was specified in the first execution, and the recital in the second execution covers “the county where the said judgment debtor resides.” The omission, therefore, was a mere irregularity, which can be supplied by amendment. Walker v. Isaacs, 36 Hun, 233; People v. Seaton, 25 Hun, 305. The order appealed from should therefore be affirmed, except with regard to the matter last referred to. As to that, we cannot direct the amendment, as the plaintiff, although the irregularity was specified in the order to show cause, did not file an affidavit below. The order should therefore be modified by giving the plaintiff leave to move for an amendment of the execution by inserting therein the name of the proper county, if, in fact, an execution has been issued to that county and returned unsatisfied, and thereupon denying the motion to vacate such second execution, without costs; and there should be no costs of this appeal.

Yah Bkuht, P. J., concurs; Follett, J., concurs in result.


author: Herrick, J.

text:
    Bridget Furlong, App’lt, v. Justus L. Banta et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Former adjudication—Evidence.
    A judgment for plaintiff, as guardian ad litem, for personal injuries to her son is not admissible, in a subsequent action by plaintiff individually for loss of her son’s services from the same injuries, to prove defendant’s negligence and her son’s freedom from contributory negligence.
    Appeal from a judgment in favor of defendants.

      Westbrook, Burke & Hover (Z. S. Westbrook, of counsel), for app’lt; Chas. S. Nisbet, for resp’ts.
   Herrick, J.

—This is an appeal from a judgment entered upon the verdict of a jury in favor of the defendants. The appellant (the mother of one Joseph M. Furlong, an infant) brought an action against the defendants to recover damages for the loss of the services of her infant son by reason of injuries received by him while in the employ of the defendants, which injuries, it is alleged, occurred through the negligence of defendants. Upon the trial it appeared that the appellant, as guardian ad litem, for her said infant son, had recovered a judgment against the defendants, in behalf of her son, for the same injuries, suffered through the same accident. Upon the trial in this action, appellant’s counsel offered in evidence the judgment roll in the former action for the purpose of showing that that the defendants were guilty of negligence in causing the injury to Joseph M. Furlong, and also that he was not guilty of contributory negligence. The court refused to receive the judgment roll in evidence, to which the appellant excepted; and the principal question argued before us upon this appeal was the ruling of the court in refusing to admit such judgment roll in evidence upon the trial.

To render a judgment roll admissible in evidence for the purpose of concluding the parties as to the facts litigated in the former action, it is not sufficient that the facts or issue should be the same in both actions. In addition thereto, the parties in the second action must have been parties in the first action, or their privies, and the judgment therein conclusive as to both parties; the judgment being received in evidence on the principle of‘estoppel, to which it is essential that it should be mutual. Booth v. Powers, 56 N. Y. 22. If the former action in which the appellant was the party, as guardian ad litem, had resulted in a judgment against her, and in favor of the present defendants, I do not think that it would have prevented her maintaining an action in her own behalf for the loss of services of her son; “for the rule is that á former judgment concludes the party only in the character in which he was sued, and therefore a judgment for or against an executor, administrator, assignee, or trustee, as such, presumptively does not preclude him, in a different cause of action, affecting him personally, from disputing the findings or judgment, though the same questions are involved.” Collins v. Hydorn, 135 N.Y. 230; 48 St. Rep. 370. If the appellant would not be bound by a judgment against her in the former action, it does not seem to me that the defendants are bound in this action by the judgment against them in the said former action. The estoppel is not- mutual. I do not undertake, at this time, to say that a judgment roll like the one in question is not admissible in evidence for any purpose between parties situated in relation thereto, as are the parties to this action, but simply pass upon its admissibility in evidence for the purposes it was offered for upon the trial in this action.

The exceptions to the rejection of the testimony of the witness Liddell I do not think can be sustained upon this appeal, for the reason that all the evidence in the case is not before us, and there is therefore nothing by which we are able to say that the exclusion of such evidence was harmful to the appellant. There may have been an abundance of other evidence in the case upon the same subject, and, if for no other reason, we should refuse to reverse the judgment for the error complained of in that behalf.

The judgment should be affirmed, with costs.

'All concur


author: Van Brunt, P. J.

text:
    Howard B. Jaffray et al., App’lts, v. Clara Krauss, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed July 13, 1894.)

    Bills and notes—Waiver of protest.
    An indorsement by a married woman, charging her separate estate, does not create the liability of a mere surety so as to relieve from notice of nonpayment.
    Appeal from a judgment dismissing the complaint.

      I. L. Miller, for app’lts; J. B. Weil, for resp’t.
   Van Brunt, P. J.

—This action was brought to recover upon promissory notes made by one J? Burger to the order of Clara Burger, the defendant, and payable in the state of Illinois. The defendant indorsed the same as follows : “ For value received, I hereby charge my separate estate with the payment of this note.” There was no allegation in the complaint of presentment, demand of payment, and notice to defendant of such presentment, demand, and nonpayment; and the court below dismissed the complaint upon the ground that such allegation was necessary in order to charge the defendant as indorser. It is urged upon the part of the appellants that the complaint alleging that at the time of making the notes the maker thereof was desirous of purchasing goods from the assignors of the plaintiffs, and that as a condition of the sale and delivery thereof, and as security for the payment of the same, the defendant, who was then the wife of the maker of the notes, indorsed and wrote upon the notes as above stated, and that the same were then passed, with her privity and consent, to the assignors of the plaintiffs, who thereupon sold and delivered said merchandise upon the faith of said security, and relying thereon, avers that the defendant’s writing on said notes was for the purpose of becoming surety for her husband, that they were so used, with her privity and consent, and that the plaintiffs parted with their goods relying on such security ; and that, she being merely a surety upon the notes, a demand of payment upon the maker and notice of refusal to pay to the indorser were not necessary.

We are unable to read the contract as is contended for by the appellants. The -indorsement in question by the defendant made her no more a surety upon the notes than that of any other indorser ; the special character of the indorsement being made because she was a married woman, in order that her separate estate might be charged by such indorsement. It is to be observed that the notes were payable to her order, and indorsed by her, as far as the transfer of the notes was concerned, in blank, and she simply made the special provision in order to charge her separate estate. It was clearly intended to be an indorsement by this married woman, and there was no intention upon her part of assuming any other liabilities than any payee, by indorsing a promissory note, usually intends. The payee of a note who indorses the same for the purpose of giving credit to the maker does not thereby become a simple surety, although such indorser knows that the indorsement is asked for for the purpose of giving credit to the maker upon the purchase of goods, and that the note will be used for such purpose. That is the whole transaction as alleged in the complaint, and such allegations in no way alter the rights of the defendant or change the character of her contract.

We think, therefore, that the judgment appealed from should be affirmed, with costs.

All concur.


author: Hardin, P. J.

text:
    George Hollenbeck, App’lt, v. Delos E. Johnson, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.

    Damages—Proximate cause.
    The injuries caused to plaintiff by falling through a hole, made by a trespassing cow, in the rotten floor of his barn, are not the proximate re-, suit of such trespass.
    Appeal from a judgment in favor of plaintiff.

      Smith & Dickinson, for app’lt; J. E. Eggleston, for resp’t.
   Hardin, P. J.

—January 3, 1892, the parties resided in the village of Eabius. The plaintiff was in possession of 22 acres of land as a tenant, which he had occupied some four years ; and upon the premises so occupied by him was a barn, about five rods north of and fronting on North street, in which barn were several doors opening towards the street. The barn had been built some 45 years. Hnder the floor, near the north side of the barn, was a cistern, about 10 feet across the top and about 9 feet deep, over which were stringers, about 3 feet apart. The cistern had been covered with inch hemlock boards, about 2 feet below the barn floor. On that day, the plaintiff kept in the barn his hens, hay and fodder, and a cow and a horse. There was no road fence in front of the barn, and the small door of the barn was allowed by the plaintiff to remain open on the day in question, “and there was nothing to prevent cattle passing along said street from entering said barn through the said small door." Some 50 rods distant from the barn of the plaintiff, the defendant resided, and was the owner of a cow, which he kept on Us premises, whicli cow weighed about 800 pounds. About 1 o’clock of the 3d of January, 1892, the defendant led his cow from his barn into- an inclosed yard south of and adjoining his barn, closed the gate through which the cow had entered the yard, and fastened it on the inside with a wooden pin, and on the outside with a hook and staple. The yard was fenced all around by a picket fence and a high board fence some four feet high. About 2 o’clock in the afternoon of the day, the defendant went to his yard, and found the little gate open and the cow gone, and he immediately commenced to search for her, and continued his search until about 4:30 p. m., when he learned that there was a cow in the cistern under the plaintiff’s barn, and there found the fact to be that his cow was then in the plaintiff’s cistern. It appears the defendant’s cow escaped from his inclosure without any fault of his, and passed over his premises to the premises of the plaintiff, and entered, through the small door of plaintiff’s barn, to a point over the cistern, and when she reached the sleepers of the floor over the cistern they gave way, being very much decayed and impaired by age, and the cow fell into the cistern, “carrying down with it three sleepers, and the plank under said cow also broke, and said cow fell down into the cistern, and when found had one horn loosened and her skull broken.” “The hole made in the floor by the cow breaking through was about three feet across, but with irregular edges.” The referee finds, viz.: “That about three o’clock in the afternoon of January 3, 1892, the plaintiff, George Hollenbeck, went to the barn so occupied by him as aforesaid, and saw some cattle tracks on the outside, by the barn door, and then went into the barn, through the small door, but discovered no cattle there, and then went into the granary, which was a little northwest of the place where the break in the floor occurred, and got some feed for his hens, and returned to the front part of the barn, and threw it down. Plaintiff then started to go where his cow was, in the lean-to or addition, to see if she was loose, and in going in that direction, and upon that errand, fell into the cistern, through the hole made by defendant’s cow when she fell through the floor. * * * Plaintiff did not observe any break or defect in the floor, and did not know of any break or defect therein, until after he had fallen into said cistern.”

It is found that the plaintiff sustained some injuries about the shoulders and neck by the fall. It is found that the plaintiff, at the time of the said injuries, and for “some years previous thereto, knew that there was a cistern under said barn, and was informed and knew that a board covering had been placed over it about two years previous to the time of the injury, but never had been under the barn, and did not know the exact place where said cistern under said barn was located.” And the referee finds: “Plaintiff had not, at the time of said injury, norat any time previous thereto, any knowledge or information that said barn floor, or the timbers upon which it rested, were weak or rotten, or in any way defective and unsafe. An examination of said sill and sleepers made under the barn, previous to said injury, would have revealed the weakness and rottenness subsequently found to exist, but plaintiff, having no knowledge of such weakness and rottenness previous to the injury, made no examination of them.”

The referee found: “There was no evidence given upon the trial showing, or tending to show, that defendant’s cow assaulted plaintiff’s person, nor that she in any manner injured his person by coming in contact with it;” “that there was no evidence given upon the trial showing, or tending to show, that defendant’s cow was vicious, unruly, or ugly;” “that in the keeping and care of his cow,- defendant has in* all things ¿xercised proper care, and when his said cow escaped from the yard, as stated in the fourth finding of fact, it was without any fault or negligence on his •part.”

In the conclusions of law, the referee stated that the plaintiff was not bound to maintain a fence upon the highway; that his failure to fence the street or highway does not prevent a recovery in an action of trespass, where the entry upon his premises was from the street; and that the entry of the defendant’s cow upon the premises of the plaintiff, from the highway, into his barn, and the breaking down of the sills, sleepers, and floor, “is a trespass for which the plaintiff in this action jp entitled to recover, against the defendant herein, one dollar.” He also found as matter of law : “That the plaintiff is not guilty of any contributory negligence, or want of care, that would debar him from a recovery, in this action, for the injury to his person caused by falling into the cistern, as stated in the sixth finding of fact herein,” “that the plaintiff in this action cannot recover, of the defendant herein, any damage for the injury to bis person caused by his falling into the cistern, as stated in the sixth finding of fact; .that the injury to plaintiff’s person, caused by his falling into the cistern, is not proximately connected with the trespass of the defendant’s cow, and any damage resulting to plaintiff’s person from such fall is remote and consequential, and no recovery therefor can be had in this action; and the defendant is not chargeable in this action with any want of care or prudence in taking care of his cow; that the injury suffered by plaintiff, by falling into the cistern, was not such as would usually and probably result from the escape and subsequent trespass of defendant’s cow, and was not such an injury as might reasonable have been anticipated from such trespass ; and the injury to plaintiff’s person, caused by falling into the cistern, was not such as defendant could, with the exercise of ordinary care, prudence, and foresight, have guarded against."

Ample evidence was given to sustain the findings of fact made by the learned referee. It is now insisted in behalf of the appellent, by his learned counsel, and we think correctly, that the defendant is answerable “for his own trespass, and also for that of his domestic aminals.” Dunckle v. Kocker, 11 Barb. 387; Fairchild v. Bentley, 30 Barb. 155 ; Van Leuven v. Lyke, 1 N. Y. 515; Dickson v. McCoy, 39 N. Y. 400; Wells v. Howell, 19 Johns. 385.

2. It is contended by the appellant’s counsel that, inasmuch.as tlie cow made the hole, while trespassing upon tlm plaintiff’s premises, into which the plaintiff fell, and received the injuries complained of, he can recover for such injuries. And it is contended "that the damages were the immediate and natural consequence of the trespass, * * * and that the defendant is liable for the entire damages sustained by the plaintiff.” To support his contention, he asks our "intention to several authorities, to which wp will allude. In Scott v. Shepherd, 2 W. Bl. 892, it appeared that the defendant had thown a lighted squib into a market house, where there was a large crowd, and it fell on a stand, and it was throw therefrom to another stand, where it was thrown by another person, and it struck the plaintiff and put out his eye. while the judgment was pronounced in favor of the plaintiff, it wms upon differing views by the members of the court, the majority of the court seeming to be of the opinion that the facts and circumstances were such as to indicate that the plaintiff sustained the injuries complained of by reason of the wrongful act of the defendant, which was to be treated as continuing though the entire motion of the squib, and that the consequences were to be visited upon the defendant, the same as though the squib had been discharged against a board or hard substapee and bounded back and occasioned the injuries sustained by the plaintiff. The case differs essentially from the one in hand. In Guille v. Swan, 19 Johns. 381, it appears that the defendant had ascended in a balloon, and in his descent lie became entangled, and his safety endangered, and at his invitation the crowd gathered upon the plaintiff’s garden, and it was held the plaintiff could recover, because it appeared that the damages which the plaintiff suffered were the direct result of the acts of the defendant. Vandenburgh v. Truax, 4 Denio, 464, was the case of a defendant chasing a boy into the plaintiff’s store, and the boy ran against a faucet in a wine cask, which caused a wastage of the wine. The defendant was engaged in an illegal and mischievous act, and, in the course of the opinion, delivered by Bronson, 0. J., he said that under such circumstances a party is liable “for all the consequences which may directly or naturally result from his conduct.” That case differs from the one before us. In Jeffrey v. Bigelow, 13 Wend. 518, which was a case of the sale of diseased sheep, the plaintiff was allowed u> recover damages which he sustained, not only by reason of the impaired value of the sheep purchased, but the damages that were brought directly to the plaintiff by reason of the disease being communicated to his other flock, the damages being traceable directly to the wrongful act of the defendant. In St. Peter v. Denison, 58 N. Y. 416, it appeared that the wrongful act of the defendant consisted in blasting stone and earth by means of a blast, while executing a contract on the Erie canal for the state. We see nothing in the case which supports the contention of the appellant. In Lowery v. Man. Railroad Co., 99 N. Y. 158, the action was for the negligence of the defendant in dropping coals of fire, causing the horse to become unmanageable, and, reaching the street, injure the plaintiff; and it v^is held that, so long as the injury was chargeable to the original wrongful act of the defendant, it was liable, and the liability in that case was upon the ground; “That the action of the driver, in view of the exigency of the occasion, whether prudent or otherwise, might be considered as a continuation of the original act, and so that act was the proximate, not the remote, cause of the injury; also that the injury was a natural and probable consequence of the defendant’s negligence.”

We see nothing in the case which supports the contention of the appellant. In Thomas v. Winchester, 6 N. Y. 397, it was held that a dealer in drugs and medicines, who carelessly labels a deadly poison as a harmless medicine, was liable, “out of the duty which the law imposes upon him to avoid acts in their nature dangerous to the lives of others,” and the right of recovery was made to rest upon the defendant’s negligence; and, in the course of the opinion, it was said, viz.: “So highly does the law value human live that it admits of no justification wherever life has bpen lost, and the carelessness or negligence of one person has contributed to the death of another.” See page 409.

In the case in hand, there is no finding of negligence on the part of the defendant; on the contrary, the circumstances disclosed in the evidence, as well as the finding made by the referee, indicate that the defendant was in no way guilty of negligence in producing the aperture in the floor through which the plaintiff fell, and received the injuries complained of. In many respects, the case here resembles Harvey v. Dunlop, Lalor, Supp. 193, in which case it was held no recovery could be had. In Bullock v. Babcock, 8 Wend. 391, the injuries sustained were by reason of one boy shooting with a bow and arrow, and inflicting an injury upon the plaintiff, and, although it was said in that case that the plaintiff could recover, Marcy, J., who delivered the opinion, said: “ It is decided in the case of Wakeman v. Robinson, 1 Bing. 213, if the accident happen entirely without the fault of the defendant, or any blame being imputable to him, an action will not lie.”

In 1 Sedg. Dam. (8th ed.) § 113, it is said “ that the law does not and cannot give complete compensation for the injury sustained ; it refuses to take into consideration any damages remotely resulting from the act complained of; ” and in § 116 the author adds: • “ The question whether an item of loss is or is not a proximate consequence of the wrong is in each case a question of fact.” This latter rule seems to have been approved in Reiper v. Nichols, 31 Hun, 495; and in Railway Co. v. Kellogg, 94 U. S. 474, after an assertion of the difficulty found in the application of the rule, Strong, J., says, at page 475: “But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.”

The rule, as just quoted, was reasserted in Scheffer v. Railroad Co., 105 U. S. 249, which was a case where a passenger was injured in a collision on a railroad, and his mind became disordered, and he afterwards committed suicide, s,ome eight months after the injuries were received, and the court held that, as his own act was the proximate cause of his death, no recovery could be had, arid the pivotal point was mentioned near the close of the opinion, in the following language: “ The suicide of Scheffer was not a result naturally and reasonably to be expected from the injury received on tbe train. It was not the natural and probable consequence, and could not have been foreseen in the light of the circumstances attending the negligence of the officers in charge of the train. His insanity, as a cause of his final destruction, was as little the natural or probable result of the negligence of the railway officials as his suicide, and each of these are casual or unexpected causes, intervening between the act which injured him and his death.’’

In Cleveland v. N. J. Steamboat Co., 125 N. Y. 299; 34 St. Rep. 938, it was held that a recovery could not be had for the accident which occurred; and it was said “ that the accident was an extraordinary one, that could not reasonably have been anticipated.” In Gibney v. State, 137 N. Y. 1; 50 St. Rep. 5, in considering the question of whether damages sought to be recovered in that case were proximate, Andrews, C. J., laid stress upon “the fact that such an accident as that which befell the child might reasonably have been anticipated as the result of the condition of the bridge, and the further consideration that a parent or other person seeing the child in the water would incur every reasonable hazard for its rescue." Ho similar facts are found in the ease before us. On the .contrary, the facts and circumstances arising in the case in hand strongly indicate that no human foresight would apprehend that any such result would follow, or that the defendant, at the time he led his cow out of the bam, at one o’clock, and placed her securely in his yard, adjacent to his barn, could foresee that in some unexpected way the gate to his yard would be opened, and the cow pass off his premises, down the street, and enter the door of the bam of the plaintiff, if found open, and go into the bam, across the floor, over a cistern under the floor, and that the floor over the cistern would be so much decayed that it would fall, in the manner in which the evidence discloses it did, and leave an aperture, which would be subsequently visited by the plaintiff, who, without giving full attention to his movements, would fall through the floor, into the cistern, and receive the injuries of which he complains in this action. We think the damages sustained by the plaintiff were not the proximate result of any wrongful act of the defendant, and that they were too remote, and that the learned referee properly refused to award damages to the plaintiff sustained in consequence of the fall into the cistern. The conclusions reached by the learned referee are approved, and the judgment entered thereon should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Rumsey, J.

text:
    The People, Pl’ff, v. Daniel W. Powers, Def't.

      (Supreme Court, Monroe Special Term,

      Filed May, 1894.)

    1. Trusts—Creation .
    The words, “ this devise is made upon the trust and confidence reposed in the devisee,” are sufficient, if other conditions exist, to create a trust.
    2. Same—Beneficiary.
    A devise in trust for the charitable and benevolent institutions or corporations in the city of Rochester, is sufficiently definite as to the bene ficiary.
    3. Same—Charity.
    Such devise creates a charity.
    4. Same—Enforcement.
    A bequest for charitable uses may be enforced in an action by the » people.
    Demurrer to the complaint.

      Geo. B. Danforth, for def't; Theodore Bacon, for pl’ffs.
   Rumsey, J.

—The second ground of demurrer is clearly not well taken, for several reasons. It does not appear upon the face of the complaint that there are any other charitable and benevolent institutions or corporations in the city of Bochester, other than those made parties. If there were, it does not appear that the demurring defendant is prejudiced by the nonjoinder. Anderton v. Wolf, 41 Hun, 571; 4 St. Rep. 101. The plaintiffs are the people of the state, suing through the attorney general. The complaint says- that one Martha Dunlap, a resident of Bochester, died there on the 15th day of May, 1882, leaving a large estate, having previously made her will, dated March 22d of the same year. She had never married. Her only next of kin were two sisters, each owning an estate of over $100,000. It is stated that the defendantPowers had for many years had charge of the management of the estates of each of the sisters; had been their confidential and trusted adviser in regard to their affairs and custodian of their money and securities, and regarded by Martha Dunlap with especial trust and confidence. It is alleged that the defendant was himself, at that time, a man of large wealth, from which it is fairly to be inferred the testatrix felt no particular obligation to maké him the absolute devisee of her estate for his own benefit. The will which she made was drawn by the defendant, and, after some legacies, contained a bequest to the defendant of the rest and residue of her property, in trust for the testatrix’s sisters during their lives. Then follows the clause which has given rise to this litigation. It is as follows : “I give, bequeath, and devise unto Daniel W. Powers, of Bochester, N. Y., all the property given and devised by the eleventh clause of this will which shall remain after the execution and termination of the said trust at the death of said Nancy and Mary Dunlap. This gift and devise is made upon the trust and confidence reposed in the said Daniel W. Powers that he will dispose of the said property among the charitable and benevolent institutions or corporations in the city of Rochester as he shall choose, and such sums and proportions as he shall deem proper.”

The defendant, it is alleged, was nominated as executor, was appointed by the surrogate, and took upon himself the duties of that office and reduced the estate to possession. No part of the indome of the estate of Martha Dunlap was used for the support of her sisters, their own property being ample for that purpose, and the last of the two sisters died, in 1889. The complaint then states that Powers never made any distribution of the estate of Martha, bequeathed to him by the above clause of her will, nor in any way acted in discharge of the trust,' nor even acknowledged it, but in the year 1892 he repudiated the trust and denied any obligation to distribute any part of the estate pursuant to it, and still so refuses and denies. The five defendants, other than Powers, are corporations organized for charitable and benevolent purposes in the city of Rochester, and in which Martha Dunlap had a special interest. It is alleged, further, that each of these corporations has either expressly refused or neglected to begin any suit for the establishment of the trust. Judgment is asked that the trust expressed in the foregoing paragraph of Miss Dunlap’s will be adjudged valid and enforceable, and for other relief which need not here be specified. There are other allegations in. the complaint, but they do not appear to be material upon this issue, whatever may be their bearing should there ever be a trial of the action.

The defendant Powers, in his demurrer, in addition to the charge that there is a defect of parties, objects that the complaint does not state facts sufficient to constitute a cause of action,' and in this way are raised the serious an'd interesting questions presented in the case. That the words, “This gift and devise is made upon the trust and confidence reposed in the said Daniel W. Powers,” etc., are sufficient, if other conditions exist, to create a trust, cannot be denied. Perry, Trusts, § 112; Bull v. Bull, 8 Conn. 47; Harrisons v. Harrison's Adm'x, 44 Am. Dec. 365, 372, 373, note. These conditions are that the testator has pointed out with sufficient certainty both the subject-matter and the objects of the trust. The subject-matter is clearly stated. Can it be said that the testatrix has designated the objects with sufficient certainty ? Has she so designated them that the court can ascertain who they are ? For that is the test as established by the courts. Prichard v. Thompson, 95. N. Y. 76 ; Read v. Williams, 125 N. Y. 560; 35 St. Rep. 909. But to sufficiently designate the beneficiaries it is not necessary that they be named in the will. If power is given to the executor to select the objects of the trust, it will be sufficient, provided the persons or corporations are- so defined and limited in the will that a court of equity would have power to enforce the execution of the trust, or, in default of a selection by the trustee, to decree an equal distribution among those from whom the selection might have been made. Such is the rule on the subject laid down by the courts of this stfite. Power v. Cassidy, 79 N. Y. 602; Holland v. Alcock, 108 N. Y. 312; 14 St. Rep. 761. Obviously, the application of this very general rule requires that the objects of the trust be so limited, by class or kind or locality, that the court can, within the limits of a reasonable investigation, ascertain what they are; that they are actually existing and devoted to the purposes for which the testator’s benefits are intended, and come within the specified objects from which the selection might have been made. In this case, I think they are so limited. The precise number of charities which arc situated within the city of Rochester does not appear. Five are named in the complaint. Whether or not there are more is not stated. The court can no doubt take judicial notice that in every large, city there are organized charities, but not how many there are, nor for what special purposes they are established. But there can be no presumption that the charitable institutions in the city of Rochester are so numerous that they could not be easily ascertained. The leading case on this subject is Power v. Cassidy, 16 Hun, 294 ; 79 N. Y. 602. It was an action for the construction of a will. The devise in question was to the executors of the testator, “ to be divided by them among such Roman Catholic charities, institutions, schools, or churches in the city of Flew York as a majority of my executrix and executors shall decide, and in such proportion as they may think proper.” The case came on for hearing at special term before Judge Van Yorst, than whom no man was more, familiar with questions of that nature, or more able in disposing of them. His opinion is reported in 16 Ilun, 294. He says, among other things : “The duty of designating the particular institutions from the general class is devolved upon the executrix and executors, who arc also to determine the amount each should receive; and, when that has been done, the action" would have the same effect as through the names of the particular institutions and charities were written in the will.”

He further says: They [the beneficiaries in the will] are distinct, and can readily be separated from the larger number of religious and charitable organizations of Flew York maintained by other Christian or benevolent bodies. They in fact constitute a limited and well-defined class; have each a distinct organization, and are bodies corporate.”

It appeared in that case that several Roman Catholic institutions in the city of FTew York were unincorporated,—a fact which, by the way, does not appear in the case at bar. But it was held by Judge Yax Yorst and by the general term that such fact was not important, so long as it appeared, as it did, that there were schools and institutions answering the description, incorporated and competent to take, because the presumption was the testator meant his trustees to select competent beneficiaries. Upon appeal, the court of appeals affirmed the judgment, holding that as there were organizations of the class specified capable of taking, and which could be ascertained, the provision was not void for uncertainty; that the fact that power was given to the executors to select the beneficiaries, and the share of each, did not impair the legality of the provision; and that the executors were limited to such organizations as were capable of taking. 79 N. Y. 602. There is no difference in principle between that case and this, and hardly any difference in the facts. The case of Power v. Cassidy has been repeatedly discussed, but, so far as I can see, has never been overruled, or even criticised. It is quite true that the doctrine of it has been limited, but the limitation only emphasizes the rule that where the class of beneficiaries is specially designated and confined, so that each one can be readily ascertained, the bequest is sufficientlv definite, and will be upheld. Prichard v. Thompson, 95 N. Y. 76; Holland v. Alcock, 108 N. Y. 312; 14 St. Rep. 761; Fosdick v. Town of Hempstead, 125 N. Y. 581, 591; 35 St. Rep. 863. It is in all cases not only the wish, but the duty, of courts, when one has sought to dispose of property for charitable uses, to sustain such disposition, if it can be done without violation of the rules which have been settled for the construction of such bequests. Perry, Trusts, § 709; Saltonstall v. Sanders, 11 Allen, 446, 454, 455, Gray, J. Much stronger is the duty in a case like this, where the will was drawn by the person named as trustee. The rule is that one who knows that a testator intends that a bequest to him shall be applied to the benefit of others, and by express promise or silent acquiescence encourages the making of such a bequest, shall be compelled to carry out the intention of the testator, if it can possibly be done. In re O’Hara, 95 N. Y. 403. In such a case, the law should be applied with the utmost possible liberality to effectuate the intention. The fact that the trustee has the right of selection does not make the power given to him less imperative. 1 Rev. St. p. 734, § 97. It will be noticed that the discretion given to him is not as to whether or not the fund shall be divided, but only extends to the selection of the objects, and the amount to be given to each. The sole difference between this case and that of Power v. Cassidy is that in the latter the executors had already exercised the power of selection. But that is of no importance. The question is what the executor and trustee may rightfully do,—not what he has done. But that matter is not disposed of by the court of appeals. Read v. Williams, 125 N. Y. 560, 569; 35 St. Rep. 909.

It was suggested upon the argument that the trust was invalid, because the objects of it were benevolent as well as charitable institutions, the argument being that, while a trust for charitable institutions might be sustained, yet one for benevolent institutions was too broad, and might include institutions other than those which the law recognizes as charitable, and that therefore so much of the devise as went for the benefit of benevolent institutions was invalid. The conclusion was drawn that, as all the estate might, at the discretion of the executor, be turned over to benevolent, as distinguished from charitable, institutions, the entire scheme was thereby made void. It cannot be denied that a devise for benevolent purposes alone does not create a charity, and is not valid. Chamberlain v. Stearns, 111 Mass. 267. But the same court which so held has also decided that, when the word “benevolent” is used in connection with “charitable,” it is synonymous with it, and that a bequest to “benevolent or charitable” objects is valid. Saltonstall v. Sanders, 11 Allen, 446; Suter v. Hilliard, 132 Mass. 412. Such I believe now to be the law of England, as pronounced by the highest court, overruling, or at least refusing to follow, cases to the contrary. Miller v. Rowan, 5 Clark & F. 98; Perry, Trusts, §§ 705, 712, note. But in this will the discretion is limited, not to charitable or benevolent institutions, but to charitable and benevolent institutions; so that no institution is within the terms of the devise unless it is one of those which the law recognizes as charitable as well as benevolent. I have not forgotten the case of Norris v. Thomson, 19 N. J. Eq. 307, in which it was held that a power of appointment “among such benevolent, religious, or charitable institutions as she may think proper’’ was void because of the use of the word “benevolent.” The court say that a devise for benevolent objects is too indefinite, and is void, and that as the appointee might, within the power, have selected benevolent, to the exclusion of charitable and religious, objects, the whole devise was invalidated. The decision is founded on certain English cases which, as shown by Judge Gray in Saltonstall v. Sanders, 11 Allen, 446, have not been followed in that country. The court of Hew Jersey takes no notice of the collocation of the words “charitable or religious” with “benevolent,” which was the ground of the decision in the Massachusetts cases and in the house of lords. With regard to this case, it is to be noticed that the power was held to be too indefinite solely because it was extended to benevolent as well as charitable institutions. It is fairly to be inferred from the language of the opinion that' if the power has been to appoint “ to such charitable and religious institutions as she might think proper,” it would have been sustained.

Having reached the conclusion that the devise is valid, and that the defendant takes the property subject to the duty of disposing of it as directed by the will, the next question presented is whether this action can be maintained in the name of the people to enforce the trust. The objection to the action does not go to the jurisdiction of the court, for no one denies that the court has the jurisdiction to enforce this trust in an action of some kind. 1 Rev. St. p. 734, § 96; Perry, Trusts, § 694; Story, Eq. Jur. § 1191. The objection is that the people have set up no cause of action in their favor, and therefore are not proper parties plaintiff. It is undoubtedly true that the people, like all other parties to dictions, must show an interest in the subject-matter of the litigation before they can prosecute a suit. People v. Booth, 32 N. Y. 397. But when that principle is admitted we do not advance a step in this discussion, for still there remains the question, what is such an interest in the subject-matter as entitles the people to sue? In this case, the people have no money to gain by a recovery. But the interest which entitles or requires the attorney general to sue in the name of the people may be something other than a right to the recovery of money or property. This appears from the fact that, without the direction of any statute, it was the duty of the attorney general, in the name of the people, to sue out writs of quo warranta, with or without a relator; to sue out writs of mandamus; to proceed by scire facias, to revoke grants improperly made, or forfeited by the grantee; to proceed in equity, if necessary, to restrain public nuisances. In these matters, or several of them, the people had no pecuniary interest whatever. The right to interfere arises solely because the light to be asserted, or tire wrong to he redressed, affects the whole or a large part of the community, and is therefore public in its nature. Where the matter is public in that sense, the people are interested. Is, then, a devise for a charitable purpose a public use? If it is, the people have an interest in its proper administration ; and the attorney general has the right, and it is his duty, to bring an action. Executive Law, § 50. That a charitable use is a public use cannot be denied. Indeed, the validity of a trust for charitable purposes turns in many cases upon the fact that such trusts are public, and not private, in their nature. Perry, Trusts, § 687. In order to be a good trust for a charitable use, there must always be some public benefit to an indefinite and vague number, and unless that exists the trust is not charitable. Jackson v. Phillips, 14 Allen, 551; Perry, Trusts, §§ 710, 712. In view of the well-settled principle, it has always been held in England that the attorney general, representing the Icing as parens patriae, might proceed upon information, in a court of equity, to established a trust for charitable purposes, or to prevent or correct an abuse or misuse of the funds, and that chancery took jurisdiction of such a suit by virtue of its general jurisdiction. The English law books ars full of cases brought tipon that principle and referable to that jurisdiction. While such actions are not so common in this country, yet they are known. In Parker v. May, 5 Cush. 336, which was "brought by the public prosecutor, then acting as attorney general, the question was presented-of his right to sue, and it was said by Shaw, C. J., that such a suit by the public prosecutor, in the name of the commonwealth, for establishing and sustaining charitable trusts, was in truth, as well as in form, a suit to protect public interests, and he held that it should have been brought in that way. Many years later, in the same state, the attorney general liad filed an information against certain persons who were trustees of a charitable fund, alleging that they refused to pay over the fund, or to apply it to the purposes of the trust, and it was held that the information was sufficient, and that it was the right and duty of the attorney general to interfere in behalf of the proper administration of a public charity, independent of the statute on that subject, and the remarks of Chief Justice Shaw were approved. Attorney General v. Parker, 126 Mass. 216. In Attorney General v. Garrison, 101 Mass. 233, the court, upon the information of the attorney general, removed some of the trustees of a charitable trust because they refused to carry out the trust according to its terms. The history of the litigation with regard to the trust in that case is interesting to show how far the people have an interest and the right to intervene in such cases. Jackson v. Phillips, 14 Allen, 539. Because of the interest of the public, the text writers lay down the rule that, in a proper case, the attorney general may bring a bill to establish the trust, or to correct abuses in its administration. Story, Eq. Jur. § 1191; Perry, • Trusts, §§ 732, 744. In this state the nature of the interest which would authorize the attorney general to sue in the name of the people was discussed by Judge Duer in Davis v. Mayor, etc., 2 Duer, 666, 667. The learned judge held that wherever the wrong complained of was public in its nature the people were proper parties, and he required the attorney general to be made a party to that action. His action was affirmed by the general term (8 Duer, 119), but reversed by the courtof appeals, for reasons which did n >t at all conflict with his views on that subject. Davis v. Mayor, etc., 14 N. Y. 506. In Owens v. Missionary Society, Id. 380, it is plainly stated by Judge Selden that the remedy by information at the suit of the attorney general in the name of the people is as available here as in England. Four other judges concurred in his opinion, and gave to that dictum the weight of their authority. In Attorney General v. Utica Ins. Co., 2 Johns. Ch. 371, Chancellor Kent, denying the power of the court of chancery to interfere with private corporations by way of restraining violations of law at the suit of the people, admitted that in the case of a charitable institution the court of chancery, at the suit of the people, had jurisdiction to redress abuses of their trusts. In People v. Miner, 2 Lans. 396, it is held by Judge Mullin, delivering the opinion of the court, that the attorney general may sue in equity to enforce trusts or prevent the abuse of trust powers. From these holdings and dicta, I think I am warranted in the conclusion that the people have such an interest in the administration of a public charity as to warrant the attorney general here, as in England and Massachusetts, in bringing a suit to enforce it where his interference is necessary.

Is this a proper case? It appears from the complaint that the donee of the power repudiates it, and refuses to carry it into effect, and claims the fund himself; that the five corporations named refuse to sue, although five years have passed of the six or ten which must elapse before their claim will be barred. That there are others than the five who might sue does not appear. If there are such, no action has been taken by them. The result of this is that the fund will speedily be lost, unless the people interfere. The five corporations undoubtedly might sue if they would. But they refuse. If they were private corporations, having no public duties, that would be the end of it; but they are" not that alone. Their duties are public, and such as the people have an interest in and can control. If they, having this fund in possession, had mismanaged or wasted it, or refused to apply it to the purposes of their trusts, the court, no doubt, would have the power to correct their action, or even to remove them. Perry, Tiusts, §744; Story, Eq. Jur. § 1191; Attorney General v. Parker, 126 Mass. 216. The reason is that the people have an interest that the fund shall be devoted to the purpose for which the testatrix intended it. They have by law the right to the fund for public purposes. It is therefore their duty to take steps to procure it. If they refuse, and by that refusal the lose the fund, it is quite as much a breach of their duty as though, having it, they had misapplied it. I can see no difference in principle between the refusal of the charitable corporation to claim and collect a fund which is undoubtedly theirs, and a refusal to collect any securities which they might own, and allowing them to be lost. But in the latter case no one would question the right of the people to interfere. In either case, the effect of their action would be to waste the fund to which they were entitled, and which it was their duty to protect and apply. The foundation of the duty of the attorney general to sue is that unless he proceeds the fund will be lost or wasted. If that condition of affairs exists, it is no matter whether it comes to exist because of lack of power of some one to sue, or because the person who should sue, through collusion or otherwise with the wrongdoer, refuses to act. In each case the interests of the people are jeoparded, and the duty of its law officer begins. The case of People v. Simonson, 126 N. Y. 299 ; 37 St. Rep. 371, is vastly different. There there was no trust for charitable purposes, and nothing but that was decided or discussed.

It is said that the attorney general might have proceeded against these corporations under § 1781 of the Civil Code. Possibly that is true. But the statutory power given in that section does not in terms, or otherwise, affect or take away the duty of the attorney general to proceed under the provisions of the Revised Statutes, now incorporated into the executive law, or at common law, by prosecuting such suits as were necessary to protect the interests of the people. But a suit as provided by § 1781 would be of no avail. All that could be done under that section would be to charge the officers with the consequences arising from a breach of their trust. The fund here could not be reached. It is doubtful whether Powers could even be made a party defendant, in his capacity of executor or trustee. Such an action would by no means accomplish the purpose which is sought, or which the necessities of the case require. That purpose is to reach this fund and compel its application to the public purpose for which the testatrix intended it, and thus prevent its waste and misapplication. Not only the corporations who refuse to act, but the person who wrongfully withholds the estate that has been devoted to their use, must be made parties, that full relief may be granted. It can be done in this action, and because it can be so done, and done in no other, way, and because if not done the fund will be lost to public charity, I think this action can be maintained. The plaintiffs must have judgment on the demurrer, with costs, with leave to defendant to withdraw the demurrer and answer on payment of the usual costs. Ordered accordingly.


text:
    William Bainbridge Jaudon, Pl’ff, v. Richard Somers Hayes, Def’t.

      (Supreme Court, General Term, First Department,

      Filed July 13, 1894.)

    Will—Vesting of legacy.
    A Bequest of a medal to the testator’s daughters successively, and, upon their death, to the oldest grandson living, refers to the oldest grandson at the death of said daughters.
    Submission of controversy on an agreed statement of facts.

      Matthew Daly, for pl’ff ; Julien T. Davies, for def’t.
   Van Brunt, P. J.

—This submission is made for the purpose of construing a clause in the will of Commodore Bainbridge, who died in the year 1833, a resident of the state of Pennsylvania, in which state the will was admitted to probate. Both plaintiff and defendant being residents of the state of New York, this question is submitted to this jurisdiction. The clause of the will in ques-ion reads as follows: “Fifthly. The medal presented to me by congress, I bequeath to my beloved wife, Susan Bainbridge, during her natural life, on her demise, to be handed down to my oldest surviving daughter, and on her demise, in succession, to my next oldest surviving daughter, and, on the demise of all my daughters, then to be given to my oldest grandson living. If there be no grandson, it is my will that it go in succession, to my oldest granddaughter living, in the same manner as before directed to my daughters. The urn presented to me by the citizens of Philadelphia for the capture of the British frigate Java, I bequeath in the same manner as I have done the medal voted to me by congress; and the remaining six pieces of silver plate presented to me by the citizens of Philadelphia to be divided between my daughters aforenamed in the manner that their mother, Susan Bainbridge, may select, or, in case of her demise, by lot.”

The medal and urn mentioned in the said will, on Mrs. Bainbridge’s death, passed to Mrs. Susan B. Hayes, who was the oldest of the daughters, and their last survivor. At the time of the death of Commodore Bainbridge, William Bainbridge Hayes was his only grandson. He died in 1849, intestate and unmarried, leaving Susan B. Hayes, his mother, surviving him. At the time of the death of the commodore’s last surviving daughter, the plaintiff, William Bainbridge Jaudon, was the oldest grandson living of Commodore Bainbridge; and the question presented is whether the testator meant by the words, his “oldest grandson living,” the oldest grandson living at the time of his death, or the oldest grandson who might be living at the time of the death of his last surviving daughter.

It is undoubtedly the rule, in the construction of wills, to favor the vesting of estates, and that, where all other things are equal, such a construction will be adopted as will coincide with this rule. But, if the intention of the testator seems to require a different interpretation, such intention must necessarily be followed. In the case at bar, it seems to us that it was the plain intention of the testator to confer upon the oldest male representative of the family, after the death of his daughters, the possession of the relics in question, and that after the death of his daughters, when the succession reached his grandchildren, so long as any male representative was left, such male representative was to take; and it was only in default of male representatives subsequent to the death of his daughters that female representatives should be admitted. Applying this rule, it is apparent that the gift was intended to take effect at the time of the death of the last survivor of his daughters, and that it was not intended that any right should pass at the death of the testator, except such contingent right as would arise from the fact of a person then fulfilling the conditions of the will; such interest to be defeated, however, if such conditions did not exist at the death of the last survivor of his daughters. This seeming to us to be the plain intention of the testator, the plaintiff is entitled to judgment, with costs.

All concur.


text:
    Claus Bathmann, App’lt, v. Catharine Bathmann et al., Def’ts. Catharine Bathmann, App’lt.

      (Supreme Court, General Term, First Department,

      Filed July 13, 1894.)

    Receivers—Appointment.
    A receiver will not be appointed in.an action for partition, where the defendant in possession denies that any demand has ever been made on her for an account of the rents, and expresses a willingness to render such an account at any time and to pay over the share of the moving defendant.
    Appeal from an order appointing a receiver.

      Samuel Campbell, for app’lt; Rabe & Keller, for resp’t.
   Van Brunt, P. J.

—This action was brought for the partition of certain real estate in the city of New York: and one of the defendants, the owner of a small interest therein, made this motion for the appointment of a receiver upon the grounds that the defendant Catharine Bathmann was in possession of, and collected the rents of, the premises sought to be partitioned, and refused to account for the same. The defendant Catharine Bathmann denied ever having had any demand made upon her for an account of the rents, and expressed her willingness to render such account at any time, and to pay over the share of the moving defendant. The court thereupon made an order appointing a receiver, and both the plaintiff and the defendant Catharine Bathmann appealed therefrom.

There seems to have been no ground whatever for the appointment. The allegation of a refusal to account was expressly denied, and there is no evidence whatever that the defendant Catharine Bathmann has acted with impropriety, or that she is unable to respond to any claim of the moving defendant; and it is rather a peculiar feature that the only person who complains is the respondent, the owner of a very small interest in the estate sought to be partitioned. There does not seem to be any ground whatever for the intervention of the court, and the order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

All concur.


author: Per Curiam.—

text:
    Marvin Cross et al., Resp’ts, v. Anglo-American Banking Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed July 13, 1894.)

    Corporations—President.
    The president of a corporation, where he is authorized by its articles to open an office at a certain place, has authority to bind it by purchasing furniture to lie used in such office.

      Motion to set aside the verdict and for a new trial on exceptions ordered to be heard at general term in the first instance.

      Arthur R. Robertson, for pl’ffs; John C. Shaw, for def’t.
   Per Curiam.—

This action was brought to recover the alleged value of office furniture furnished for defendant’s use between March 15,1892, and May 81,1892. The defendant is a banking corporation organized June 5, 1888, under the laws of West Virginia, having its principal place of business at the city of Hew York. From the date of the incorporation of the defendant to the date of the trial of this action, Samuel J. Gorman was one of the directors, and its president. Aside from Gorman, there were four other directors,—J. H. Hobson, Edmond Huerstel, C.V. Sidell and Charles March., Mr. Gorman testified, without objection, that he was the president of the corporation, and, under the defendant’s objection, that he ordered the furniture and fixtures from the plaintiffs for use in the Hew York office, which was opened under the direction of Mr. Hobson, Mr. Gorman, Mr. March and himself, and that the furniture was furnished by the plaintiffs, and was used by defendant in its Hew York office. Mr. March, one of the defendant’s directors, testified that the furniture ivas furnished and was used in the defendant’s office in the city of Hew York. There was no dispute upon the trial about the fact that the furniture was ordered by the defendant’s president, was used in its office, and was worth the price charged. The only defense interposed was that the plaintiffs were unable to prove a resolution of defendant’s board of directors authorizing its president to purchase this furniture. Ho evidence was given of any by-law or resolution limiting the power of the president, or requiring that no expenditure should be made except upon the resolution of the board. The evidence was entirely uncontradicted, and is ample to justify the conclusion of the learned trial judge that the president had power to order the articles furnished. Besides this, it was shown that the furniture was used in defendant’s office with the knowledge of its directors, and of some of its principal stockholders. The president was defendant’s chief executive officer, and was expressly authorized by the articles of incorporation, and by the action of the directors, to open an office in this city; and, presumptively, he had authority to purchase furniture necessary to equip the office which he was directed to establish. The conclusion reached by the trial judge is the only one possible, upon the evidence contained in the record, and the judgment should be affirmed, with costs.


author: Parker, J.

text:
    Emilia Govin, Resp’t, v. Nathan Metz et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed July 13, 1894.)

    Will—Construction—Wrong description.
    Where a devise is effectual independently of the erroneous description of the devised premises, the court may, in an appropriate action, strike out the misdescription and read the will as though it had never been inserted.

      Motion for a new trial on exception ordered to be heard at general term in the first instance.

      Abram Kling, for pl’ff; James S. Stearns and Cephas Brainerd, for def’ts.
   Parker, J.

—The third clause of the codicil to the will of Felix Govin Pino is as follows: “ Third. I bequeath to Felix, Emilia and Guillermina Govin, whom I love as children: To the first, the lot, and house constructed on the same, marked with the number 241 West 23rd street; to the second, the house and lot marked with the number 204 Lexington avenue; and to third, the house and lot with the number 204 West 39th street, said three houses being situated in this city.”

Felix and Guillermina obtained immediate possession» of the houses and lots severally devised to them, but in the devise to Emilia, this plaintiff, the testator described the house as “ Number 204 Lexington avenue,” whereas the only house that he owned on Lexington avenue was 738. That it was an error on his part is beyond controversy. He never owned 204 Lexington avenue, nor did he, at the time of making the codicil, own any house and Jot on that avenue other than 738. When he located the house and lot intended to be devised as on Lexington avenue he necessarily had in mind the only house and lot on it belonging to him. How he came to make the mistake is suggested by the fact that the devise to Guillermina was of lot 204 West Thirty-ninth street. This was a correct description, and, the figures 204 being in mind as a correct description of a lot to be devised, they were inadvertently given as the number of the house on Lexington avenue, as well as that on West Thirty-ninth street. Reading the devise in the light of the surrounding circumstances, we have a demonstration that an error has crept into the description, and'what that error is. 1 In such a case we regard it as fairly settled that if, independently of the false description, the devise be effectual, the court may, in an appropriate action, strike out the misdescription, and read the will as if it had never been inserted. Striking out the figures 204, and the devise would be of a “ house and lot marked with the number-Lexington avenue,”—a devise which would unquestionably vest in the devisee the only house and lot which the testator owned on Lexington avenue, for there could be no mistake as to the identity of the lot. In Patch v. White, 117 U. S. 210, the testator devised to his brother “ lot number 6 in square 403.” There was no such square, but there was a square 406, on which was situated lot number 3, owned by the testator. And the court determined that he had mistakenly substituted “6” for “3” and “3” for “6,” and read the will as if those figures had not been inserted. The decision in that case fully supports the verdict directed in this action. It was the outcome of a vigorous debate in the court. The opposing positions were strongly presented by prevailing and dissenting opinions. The arguments presented by the controlling opinion seem to us the better reason, and they are so fully given as to meet the suggestions of the learned counsel for the respondents, and make it a work of supererogation for this court to further review the authorities bearing upon that subject.

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

All concur.


text:
    George Philip Wagner, Resp’t, v. New York Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed July 13, 1894.)

    1. Appeal—Enromas.
    A request to find not relevant facts, but mere evidence of facts, is properly refused.
    8. Damages—Elevated railway.
    A finding of the depreciation of values over benefits from an elevated road need, not specify the benefits in detail.
    Appeal from a judgment in favor of plaintiff.

      Ezra A. Tuttle, for app’lts; W. G. Peckham, for resp’t.
   Barrett, J.

—This appeal presents no new question upon the merits. The trial justice awarded reasonable sums for past damages and for inj ury to the fee. The evidence supports his conclusions upon these heads, and we see no reason, after full consideration of the argument and brief of counsel, to disturb his judgment. The main contention .of the appellants is that the learned justice erred in his rulings upon their proposed findings of fact, notably in refusing to find the seventeenth, eighteenth, twenty-fourth, twenty-fifth and twenty-sixth. These proposed findings read as follows:

“(17) The fee value of plaintiff’s land, exclusive of the buildings, is several thousand dollars more to-day than in 1873. (18) The fee value of plaintiff’s lots, exclusive of the building, has steadily increased since the construction of the defendants’ road, and the same is now more valuable than at any time prior to the construction of said road.” “(24) Since the building and use of defendants’ railroad and station aforesaid in Ninth avenue, the property in suit in the neighborhood of the same has come into greater demand for business uses, and such demand has greatly increased the fee value of Ninth avenue property in the locality, including the land described in the complaint. (25) The presence of the said station constitutes a material element of advantage and benefit to the premises in suit, and increases the availability thereof and the variety of uses to which the same may be profitably put. (26) The existence and operation of the defendants’ railroad in Ninth avenue have rendered the premises "in suit far more accessible than they otherwise would be. This increase of accessibility has been a benefit to the plaintiff’s property, and has increased the value thereof.”

There was no error in thus refusing to find as requested. The seventeenth was not a request to find the relevant fact, but more' evidence. The same observation applies to the eighteenth. As to the remaining requests, it is sufficient to say that the learned justice found that the damages awarded consist in the depreciation of rental and fee value over and above all benefits and advantages to the premises, whether general or special, resulting from the maintenance and operation of the defendants’ railroad. The following findings were also made. “Second. In determining thc^question of the existence of the impairment of the fee or rental value of plaintiff’s remaining property the defendants are entitled to have taken into consideration, as against the physical inconvenience occasioned by the interference with the plaintiff’s ease'ment of light, air, and access, all advantages to the said property, whether general or special in their nature, resulting from the maintenance and operation of defendants’ railroad in Hinth avenue, and the proximity of its stations. Third. In proving such an impairment of the fee or rental value of the remaining property as is spoken of in the preceding ruling of law, the" burden of proof is upon the plaintiff. Such burden of proof is not sustained by merely showing any fact which is equally consistent with the absence of damage and with its presence. Fourth. The plaintiff does not sustain the burden of proof by merely showing the direct physical effects of the railroad upon his property. In order to prove substantial consequential damage, he must show that the fee or rental value of the property has so far deviated from the former course of values of such property, determined by general causes, as to give rise to the inference that the disadvantages of the defendants’ railroad have preponderated over the advantages. Fifth. Plaintiff is not entitled to any injunction unless he has proved that the net effect of the defendants’ railroad upon his property, as defined in the preceding ruling of law, is injurious to its pecuniary value. Sixth. The plaintiff is not entitled to recover damages in this action, except to the extent, if any, by which the disadvantages of the defendants’ railroad have exceeded the advantages thereof to said premises.” “Hinth. Ho damages can be recovered in this action for any lessening of the value of the premises in question which is due, not to the immediate effects upon said premises of the maintenance and operation of defendants’ railroad, and the incidents thereof, but to the indirect and remote effect resulting to said property from a change in or limitation of the uses to which other abutting property upon Hinth avenue has been or can be applied, or from a change in the general character and appearance of the street or the general nature of the business there conducted, caused by the effect of defendants’ railroad upon such other property. ”

It thus appears that the learned justice acted upon correct principles in making the award which he did. The essential fact was the depreciation of fee and rental value over and above all benefits and advantages resulting from the maintenance and operation of the road. He was not bound to specify each of those benefits and advantages in detail. That was asking him to - find the various evidential matters upon which the claim of benefit and advantage rested. It by no means follows, because the learned justice declined to find evidence, that he did not consider it. It is, in fact, apparent from tlie findings which were made that he fully considered all the evidence adduced by the defendants, and gave them the benefit of every fact which that evidence established. The case, upon this head, is within the principle of Steubing v. N. Y. El. Railroad Co., 138 N. Y. 658; 53 St. Rep. 186. There a finding was requested substantially like the twenty-sixth under consideration, namely, that the existence of the defendants' station and railway, and the maintenance and operation of the same, have rendered the premises in suit accessible to .the other parts of the city of New York. The court said that this request was properly refused. It was a “mere statement of evidence, not disputed or disputable, which the referee was not bound to find.” Page 661, 138 N. Y. Another finding was there requested in these words : “The effect of the proximity of defendants’ station at Third avenue and Fifty-Third street to the premises in suit is advantageous to the business portion of said premises, and produces a special benefit to the same for business uses."

This finding, it will be observed, is almost in the same words as the twenty-fifth, under consideration. • In commenting upon it, the court said that: “The effect of the proximity of the station to the plaintiff’s lots was not the subject of inquiry. The matter to be determined was the effect upon the plaintiff’s lots of the construction and maintenance of the railroad in front of the lots, and in determining that the referee was bound to take into consideration the proximity of the station, and all the other facts bearing upon the matter. It cannot be perceived that any harmful error was committed in refusing this request.”

As to the requests generally, the language of Earl, J., upon page 662, 138 N. Y., exactly fits the present case. “It is obvious,” he observed, “from the findings actually made, that the law was applied as requested, and that the damages awarded appear to have been estimated upon the proper basis.” The appellants point out that in a single instance the learned justice acceded to their request for a finding of mere evidence, and they complain of his inconsistency in not continuing to do so through the 61 requests which, they submitted to him. There is nothing in the record to indicate that the learned justice intended to accede to the appellant’s pernicious practice in this regard, and the single instance in question of a departure from the true and scientific rule as to findings was doubtless an oversight. This is not to be wondered at when we consider the mass of specious verbiage put before him. At all .events, there is nothing in this one particular finding, or in the fact that it was accfeded to, which would justify us in holding that refusals in other instances to find evidence meant that the learned judge did not intend to, and did not in fact, consider the matter embraced within such proposed findings, before reaching the final result. We think that the judgment appealed from was right, and that it should be affirmed, with costs.

All concur.


text:
    Sara J. Keene, Resp’t, v. Metropolitan Elevated Railway Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed July 13, 1894.)

    'Damages—Elevated railway.
    Where some of the apartments in an apartment house front on the street occupied hy an elevated road, and others front on a cross street, damages cannot he awarded for latter apartments.
    Appeal from a judgment in favor of the plaintiff.

      Brainard Tolles, for app’lt; J. A. Murray, for resp’t.
   Van Brunt, P. J.

—This action was brought to obtain an injunction against the operation of the defendants’ railroad, or the payment of - damages because of the interference with easements in the street in front of the plaintiff’s premises. The premises in question are situated at the southwest corner of Finth avenue and Fifty-seventh street, having a frontage on the avenue of 125 feet and on the street of 100 feet. The defendants have constructed and maintained and are operating an elevated railroad on Finth avenue. The building upon the premises in question was constucted in 1880 and 1881, and was intended for use, and is now used, as an apartment house. The building is divided into five distinct and unconnected apartments on each floor except the first and eighth floors. These apartments are parallel with Finth-avenue, except one, which fronts on Finth avenue, and runs across the rear of the other apartments. The apartment at the corner of Finth avenue and Fifty-Seventh street, and the apartment fronting on Finth avenue in the rear of the other apartments, are the only ones fronting on Finth avenue. In the award made in this action damages were allowed for alleged injuries to the apartments which had no frontage on Finth avenue as well as to the two which had such frontage, and the question presented on this appeal is whether such an allowance can be justified. It seems to us that it cannot. The. three apartments which fronted on Fifty-Seventh street had no easements of light, air, and access upon Finth avenue. While damages have been allowed-where premises are so situated that they are to be considered as a single parcel, although the total frontage might not be upon the street occupied by the elevated railway, yet, where such premises are improved by buildings distinct within themselves, some of them having no frontage upon the avenue occupied by the railroad, it is difficult to see upon what, theory an award for the destruction of easements upon the a venue upon which such buildings have no frontage can be predicated. In the case at bar the three apartments have no frontage upon Finth avenue, the street occupied by the railroad. They therefore can have no easement in the light, air, and access upon such avenue, as such easements have been held to belong only to the abutting owner. The apartments in question, therefore, do not seem to come within the class to which relief has been granted H actions of this character. It has been urged that because of the fact of there being a unity of construction in the building and unity of ownership a different rule should obtain. But it is apparent that, notwithstanding the unity of construction and unity of ownership, these premises are occupied as distinct and separate buildings, just as much as though there was no architectural unity and there was a division of ownership. It is difficult to see how mere-architectural unity or single ownership can give an easement upon a street where none would exist even if the occupation was the same, and the interior arrangement were the same, but the exterior appearance showed diversity. We think, therefore, under the findings of the learned court at special term, that the apartments fronting upon Fifty-Seventh street had no right to enter into the consideration of a recovery.

The judgment should be reversed, and new trial ordered, with costs to appellants to abide the event

All concur.


text:
    In the Matter of E. Townsend Goldberg, an Attorney.

      (Supreme Court, General Term, First Department,

      Filed July 13, 1894.)

    1. Attorney—Disbarment.
    An attorney, who alters an undertaking used on an unsuccessful application and uses it as altered, on an application to another court, is guilty of professional misconduct.
    2. Same—Punishment.
    When an attorney will be suspended and not disbarred for such miscondtict.
    Proceeding to disbar an attorney.

      Frederick S. Wait, designated by the court; George W. Stephens, for Goldberg.
   Per Curiam.—

In this matter the court finds as a fact that the attorney altered the undertaking which was used upon the unsuccessful application to the presiding justice, and thereafter, without procuring it to be re-executed or reacknowledged, used such altered undertaking upon an application for an attachment to a judge of the court of common pleas. Upon this fact, without passing upon the other charges, the court adjudges that the attorney was guilty of professional misconduct. As to the measure of punishment, while it is undoubtedly a case for discipline, it is not, in view of the attorney’s youth and inexperience, a case for the extreme penalty of disbarment. That would wreck this young men’s entire life. When he fell he had been admitted to the bar less than a year. He has yet ample time to redeem himself, and he should be afforded the opportunity to do so. He will be sufficiently punished, and the honor of the profession vindicated, by judgment of suspension for a substantial period. The court leaves him the hope of redemption, and an incentive to work for its realization.

The judgment is that the attorney be suspended from practice for, two years.


text:
    Andrew J. Rogers, Resp’t, v. Elizabeth Patterson et al., Impleaded, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed July 13, 1894.)

    Decedents’ estates—Liability oe heihs.
    In an action against an hoir for the debts of his ancestor, conveyances by him of the land descended cannot be attacked as fraudulent.
    Appeal from a judgment overruling a demurrer.

      Charles Fox, for app’lts ; George M. Baker, for resp’t.
   Barrett, J.

—The complaint here demurred to is framed upon the theory that in an action under the statute against heirs to enforce their liability for debts of the decedent to the extent of their respective estates in the realty fraudulent transfers by such heirs can be attacked, and judgment given that such debts be collected out of the realty, notwithstanding such fraudulent alienation. We do not think this position can be sustained. It proceeds upon an inaccurate view of the rights of the creditor, and especially of the remedy provided by the statute. During three years after the decedent’s death the creditors have what has been styled “a kind of statutory lien, running with the land,” upon the real estate left by him. Hyde v. Tanner, 1 Barb. 80 ; Platt v. Platt, 105 N. Y. 497; 8 St. Rep. 77. But after the expiration of three years even this lien terminates, and the debts cease to be a charge upon the real estate. Same cases; Covell v. Weston, 20 Johns. 414 ; Wilson v. Wilson, 13 Barb. 252; Waring v. Waring, 3 Abb. Pr. 246. The remedy against the heirs or devisees then » commences, and under the statute the lands may then be charged.

The action against the heirs or devisees is not, however, to enforce, but to acquire, the lien. “In that view,” as was said in Hauselt v. Patterson, 124 N. Y. 349 ; 36 St. Rep. 354, “the remedy is by action in equity having the nature of a proceeding in rem in such sense that when the land has not been aliened by the heir the execution of the judgment shall be had by levy upon the real estate descended to him.” The same view is taken in all the cases. Thus, in Wilson v. Wilson, supra, we find the following observations: “It may perhaps be said, in a loose general sense, that unpaid debts are a charge upon the land in the hands of the heir after the personal estate is exhausted, because they may be made a charge. But they are no lien for any substantial purpose, either in law or equity, until made so by proper proceedings.”

In Covell v. Weston, supra, it was held that, since the statute, an heir having lands by descent is liable, in respect to such lands, whether he has aliened or not; and that in this sense, and no other, has the creditor of the ancestor any lien on the lands descended. “The error,” said Spencer, O. J., “into which the plaintiff’s counsel has fallen, is in supposing that the creditor has an actual lien upon the land. He has a lien on the heirs in respect to the land, so that they cannot convey it, after action brought, to defeat his claim ; but he has no lien on the land itself.” In Waring v. Waring, supra, it was said that these proceedings against heirs must be rigorously and precisely pursued according to the statute, and that it was not until judgment that “anything like a lien upon any interest in real estate will be reached.” Page 251. These cases were cited with approval, and a similar view taken, in Platt v. Platt, supra, Earl, J., observing that “after the expiration of the three years the debts of the decedent may be enforced against the heirs and devisees in the mode specified in the statutes, and they then cease to be a lien or charge in any sense upon the real estate.” The action is really to enforce the statutory liability of the heirs. That liability is measured by- the property which descended to them, and to that extent it is personal; for, if the property has been aliened before the commencement of the action, the plaintiff may take a personal judgment against the heir for its value. Code Civ. Proc. § 1854.

The plaintiff’s remedy must be found solely in the provisions of the statute. It is hereby confined to an action against the heirs of an intestate and to the heirs and devisees of a testator. It is not given as against the heir at law of a devisee, nor as against the devisee of an heir at law. Fink v. Berg, 50 Hun, 213; 19 St. Rep. 322. “Neither has the statute,” said Daniels, J., in the latter case, “by anything contained in it, rendered the heir of a devisee liable for the debts of the testator making the devise; and, as the remedy has been prescribed and regulated wholly by statute, at the same time being also declaratory of the right of the creditor, and the liability of a devisee as heir of another devisee has not been created, it cannot be maintained under the provisions of the law.” It follows that the only remedy afforded by the statute, where the property has been aliened before the commencement of the action, is a personal judgment against the heir for the value of the property so aliened. Whether aliened in good faith or bad faith, that is the judgment, and the only judgment, provided for. Doubtless, upon such a judgment, and an execution thereon, returned unsatisfied, the creditor might file his ordinary creditor’s bill to set aside the conveyances alleged to be fraudulent. But that is not the office of this statutory action, and when we consider the nature and possible ratifications of such an action the difficulty of trying therein collateral issues of fraud is apparent. The statute requires the action to be brought jointly against all the heirs, or jointly against all the devisees. § 1846. The sum which the plaintiff is entitled to recover must be appointed among all the defendants in proportion to the value of the real property descended, to each heir or devised to each devisee. § 1847. Further conditions of a sufficiently complicated character are imposed by sections 1848 -1850. “After the creditor,” as was said by Emott, J., in Waring v. Waring, supra, “has instituted a suit-in the precise manner directed by the statute, has encountered all the defenses which may exist to his claim, and has had an accounting of all the debts and assets of the ancestor properly marshaled, he will at length obtain a judgment against each of the devisees for their proper and proportionate share of his debt.” The plaintiff, if his theory be correct, would add to these burdens an inquiry into the good faith of conveyances made by the several heirs. Some might not have aliened, some might have aliened honestly, others dishonestly, and so on. It is sufficient to say that an inquiry of that character is foreign to the purposes of such an action, and is authorized neither by the letter nor the spirit of the statute. The purpose of § 1853, prescribing that the final judgment shall not affect the title of a purchaser in good faith and for value, etc., was not to authorize an inquiry into the validity of such transfers in the statutory action, but simply to lay down a rule of general application with regard thereto.

Our conclusion is that the demurrers were well taken, and should have been sustained. As to the defendants William A. Patterson and David Bonner, the' grantees of certain heirs, the complaint does not state facts sufficient to constitute a cause of action herein. There is also an improper joinder of causes of action. As to the defendants Elizabeth Patterson and Catherine Bonner, there is an improper joinder of causes of action, and also a defect of parties defendant, in that neither the other heirs nor their personal representatives have been brought in. As to this latter point, see Dodge v. Stevens, 94 N. Y. 216, and Wambaugh v. Gates, 11 Paige, 513. The interlocutory judgment appealed from should therefore be reversed, with costs of this appeal to Elizabeth Patterson and Catherine Bonner jointly, and their demurrer sustained, with costs of this appeal to William A. Patterson and David Bonner jointly, and their demurrer sustained, with costs of the special term to them jointly, with leave to the plaintiff to amend his complaint, if so advised, as to both or either of said defendants, within 20-days, upon payment of the costs awarded to the defendants as to whom the plaintiff may so amend.

All .concur.