text:
    Spiros Condouris, App’lt, v. The Imperial Turkish Tobacco & Cigarette Co., Resp’t.

      (New York Common Pleas, General Term,

      Filed March 14, 1893.)

    1. Conversion — Corporations—Stock.
    An action lies against a corporation for the conversion of its own stock.
    2. Same.
    A conversion of a certificate of stock is, in legal effect, a conversion of the stock.
    3. Attachment — Conversion on stock by corporation.
    An attachment goes against a foreign corporation for the conversion of its own stock.
    4. Same — When not vacated upon the papers on which it issued.
    When the defendant applies, upon the plaintiff’s papers alone, to vacate an attachment, the motion should he denied if those papers exhibit alLthe elements of an action for conversion.
    5. Same — Contract.
    On such motion, in alleging a contract, it suffices to state its legal substance and effect; and if it be in writing, it is not necessary to produce, the original or a copy.
    Appeal from order vacating warrant of attachment.

      George E. Blackwell, for app’lt; Abel E. Blackmar, for resp’t.
   Pryor, J.

The appeal is from an order vacating a warrant of attachment. As the motion to vacate proceeded on the papers upon which the attachment issued, it was in the nature of a demurrer; and in the disposition of the appeal we are to assume every fact apparent in those papers.

The grounds of the attachment were, that the defendant is a foreign corporation, and had converted personal property of the plaintiff.

The facts exhibited are, that, by an agreement in writing, the defendants employed the plaintiff for a year from November 19, 1891, at an animal salary of $1,200 payable in weekly instalments; that plaintiff stipulated to deposit with the defendant a certificate for fifty shares of the capital stock of defendant company, and to leave the same with the defendant, as security for the faithful performance of his duties, and in the meanwhile that he would not sell or pledge the stock ; that plaintiff duly performed all the conditions of the said agreement on his part, and, on the 19th November, 1891, duly indorsed, deposited and left with the defendant the said certificate of stock ; that the plaintiff faithfully served the defendant as its employee until the 4th day of June, 1892 ; that ever since the 23rd day of April, 1892, the defendant has failed and refused to pay the salary of the plaintiff; that as the president of the defendant company had instructed its treasurer not to pay any further salary to the plaintiff, and the defendant wholly refused to keep its agreement in that respect, the plaintiff was obliged to and had determined to seek other employment; that thereupon the plaintiff duly demanded the return of his said certificate of stock, but the defendant refused and still refuses to deliver it to him and has converted it to the defendants own use; that the value of said stock is $5,000 and that the action is brought for the conversion of the stock.

That an apparent cause of action is the indispensable condition of an attachment is true enough, Reilly v. Sisson, 31 Hun, 572; but wherein is the statement of fact presented by the plaintiff insufficient to show a right of recovery in trover ?

The certificate was the property of the plaintiff; it was deposited with the defendant as security for the faithful discharge of plaintiff’s duties during the stipulated period of his employment; he did faithfully discharge those duties ; nevertheless the defendant wrongfully refused to pay his salary and declared its purpose to persist in that refusal. This repudiation of the agreement by the defendant authorized the plaintiff, at his election, to treat the contract as rescinded; he did so treat it, and accordingly demanded the return of his certificate, which was refused; and the defendant converted the stock to its own use, to the plaintiff’s damage in the sum of five thousand dollars. Here, beyond question, are grouped together all the elements of an action for conversion.

It cannot be said that non constat but defendant retained the certificate for some past default of the plaintiff ; for, the allegation is that he faithfully discharged the duties of his employment.

It may not be objected that non constat but plaintiff is still in the service of the defendant; and that so defendant has a right to retain the certificate as security against his future delinquencies; for, the unequivocal averment is that, on the repudiation of the agreement by the defendant, he determined to seek other employment, and remained with the defendant no longer than the 4th of June, 1892.

It cannot be contended that the plaintiff failed to notify the defendant of his election to accept its refusal to perform as a rescission of the contract; for, the demand of the certificate was the legal equivalent of such notice. But, indeed, notice of his election was not necessary to the rescission. Ripley v. Hazelton, 3 Daly, 329.

It cannot be argued that a certificate of stock, or the stock itself, is not the subject of conversion; for the contrary proposition is established by irresistible authority. Anderson v. Nicholas, 28 N. Y., 600; McAllister v. Kuhn, 96 U. S., 87, 89; Budd v. Company, 53 Am., 355; Payne v. Elliot, 35 id., 80; Daggett v. Davis, 51 id., 91, per Cooley, Ch. J.; Hughes v. Company, 72 N. Y., 207.

It cannot be pretended that the stock in controversy was not the subject of conversion because non constat that the certificate was available for an appropriation of the stock to the defendant's use, Daggett v. Davis, supra, for the allegation is that the certificate was duly indorsed by the plaintiE

But the defendant challenges the sufficiency of the complaint upon three grounds:

I. That the affidavit does not disclose by legal evidence a cause of action; since, not the ipsissima verba, but only the substance and effect of the contract between the parties are set forth. The contention is invalid, because, first, non constat but that the very terms of the agreement are reproduced in the language of the affidavit; second, an affidavit on attachment need only show a right of recovery ; and in pleading a contract, it may be stated according to its legal effect. Indeed, a verified complaint is itself sufficient as an affidavit. Code, § 3343, sub. 11. The allegation of the affidavit is clearly adequate. Allen v. Meyer, 7 Daly, 229; Lanier v. Bank, 9 Civ. Pro. Rep., 161; Sanders v. Soutter, 126 N. Y., 193; 37 St. Rep., 1.

II. That the right of the defendant to the custody of the certificate was not only as security for the good conduct of the plaintiff, but also to prevent his selling or pledging it during the stipulated period of his employment, namely, for twelve months ; and that as that period is not yet elapsed, the defendant may still retain the certificate as a safeguard against such transfer. The meaning of the contract indisputably is that the plaintiff should not, by a transfer of the title of the stock, make it an illusory security for his fidelity; and so the defendant’s interest in its possession was commensurate only with the term of his actual employment. Inevitably the rescission of the agreement and the cessation of the employment determined defendant’s right to retain the certificate.

ITT. That the refusal of the defendant to deliver the certificate was not a conversion of the stock. If the proposition be true, it is nothing to the purpose; for, a conversion of the certificate is actionable, and entitles to damages to the value of the stock. Daggett v. Davis, 51 Am. Rep., 91. The corporation “is not in any sense the owner of the shares, those being vested in the individual proprietors,” Denio, J., in Bank v. Bank, 20 N. Y., 501, 505; and the conversion of the certificate by the defendant was a conversion of the stock. Anderson v. Nicholas, McAllister v. Kuhn, Budd v. Company, Daggett v. Davis, supra; Arnold v. Bank, 27 Barb., 424, 427; Boone on Corp., § 122.

It is objected that a recovery by plaintiff and a satisfaction of the judgment will vest the title to the stock in the defendant, contrary to the statute which forbids a corporation “ to apply any portion of its funds, except surplus profits, to the purchase of its own stock.” But, clearly, here would be no purchase of its stock by the defendant, and no application of its funds to such purchase. The effect of a judgment and satisfaction in assumpsit for refusal to transfer its stock is to vest the property in the corporation ; but this consequence is no answer to the action. Commercial Bank v. Kortright, 22 Wend., 348; and citations in note to the case, 34 Am. Dec., 329; Comeau v. Company, 3 Daly, 218, 220.

The papers upon which the warrant of attachment issued were sufficient to sustain it; and it should not have been vacated. Allen v. Meyer, 7 Daly, 229; Easton v. Malavazi, id., 147.

Order reversed, with costs.

Giegerich, J., concurs.


source: Caselaw Access Project

author: Pryor, J.

license: Public Domain

text:
    Louisa Carlson, Resp’t, v. Maria Louisa Winterson, App’lt.

      (New York Common Pleas, General Term,

      Filed March 14, 1893.)

    1. Bills and notes — Bona fide holder.
    A transferee of negotiable paper taking it merely as conditional payment of a precedent debt, without releasing the original obligation, or incurring any new liability, is not a bona fide holder for value to the effect of excluding the equities between the primary parties in defense of an action by such transferee.
    3. Same.
    In an action against the maker by the indorsee of a note taken simply for a precedent debt, the court refused to charge “that the plaintiff, by taking the note for an antecedent debt, is not a bona fide holder, held, under the circumstances, that the request meant a bona fide holder for value, and was so understood by the court; and that it was error to refuse the request as so intended and understood.
    Appeal from judgment of the general term of the city court, affirming judgment on a verdict.

      E. F. Bullard, for app’lt; Hector M. Hitchings, for resp’t.
   Pryor, J.

Action by indorsee against maker of a note; defense, first, that the note is a forgery ; and secondly, that being ineffectual in the hands of the payee against the maker, it is not enforceable by the plaintiff, who received it in payment of an antecedent debt.

The issue as to the execution of the paper by the defendant was submitted to the jury upon conflicting evidence, ample to authorize a finding either way, and we have no jurisdiction to review their determination. The verdict is conclusive of the authenticity of the note.

The other issue, as to the availability of the note in the hands of the plaintiff, though tendered by the answer and contested on the trial, appears not to have been referred to the jury for decision, at least not so distinctly and directly as to admonish them that the solution of it was indispensable to a verdict. The court charged, in terms, that 11 the defense is simply upon the point that the note was never signed by the defendant. This is, substantially, the only dispute in the case for your consideration.” Manifestly, upon this instruction the jury may well have concluded that, when they found the issue as to the genuineness of the note in favor of the plaintiff, she was entitled to the verdict; although, in their opinion, the evidence demonstrated the other defense. True, no exception to this instruction was taken by the defendant; but, in effect, she presented her other defense for determination by the jury by requests for a charge “that the plaintiff, by taking the note for an antecedent debt, is not a bona fide holder;” and “that the defendant has the same'defense against the plaintiff that she had against the payee.” In the denial of the latter request the defendant acquiesced; but to the refusal of the former she duly excepted.

Still, in effect, the jury were told that, although the plaintiff took the note for an antecedent debt, she was a bona fide holder, and entitled to recover, irrespective of any equity between the defendant and the payee.

Such is not the law of this state. In U. S. N. Bank v. Ewing, 131 N. Y., 506, 507; 43 St. Rep., 775, the note sued upon was transferred “ as added security ” for a precedent debt; and the court held the plaintiff not a bona fide holder for value, saying “ the holder parted with nothing upon receiving ^surrendered no right and no security, and made no new agreement in reliance upon it.” In Leslie v. Bassett, 129 N. Y., 523; 42 St. Rep., 358, the court declare it to be “ the settled law of this State, as established in Coddington v. Bay ” (1822), that the transferee of negotiable paper, “ taken for or in nominal payment ” of an antecedent debt, holds it subject to all defenses available between the original parties. In Phoenix Ins. Co. v. Church, 81 N. Y., 218, 221, the court ruled that prior equities of antecedent parties “ will prevail against an indorsee who received it merely in nominal payment of a precedent debt, there being no evidence of an intention to receive the paper in absolute discharge and satisfaction beyond what may be inferred from the ordinary transaction of accepting or receipting it in payment, or crediting it on account. The law regards the payment under such circumstances as conditional only, and the right of the creditor to proceed upon the original indebtedness, after the maturity of the paper, is unimpaired.”

In,the instant case, the evidence does not warrant the inference that the plaintiff accepted the note in satisfaction or extinguishment of her claim against the transferor, or in relinquishment of his liability on the original obligation. Testifying to the Very language he used when he passed the note to the plaintiff, the payee says: “ I told her that I got this $500 note for work I did, and that I owed her the money; and that she should go down the following day to the maker and present the note, as it was due.” I also said: Don’t deliver it without payment.’ Nothing else was said in regard to the note; I told her the note was good for what I owed her; I took no receipt from her at the time, and have not taken a receipt from her since.” As to the receipt of the note, the plaintiff says: “ It was given to me for a loan of money I made him. * * * He said that he gave it to me for the money I owed him.” The language of the learned trial judge in his charge to the jury is conclusive that he did not. understand the plaintiff to have accepted the note in discharge of her claim; for he cautioned the jury against the testimony of the transferor, on the ground that “ he has an interest in obtaining the verdict,” which could not be, unless he were still liable to the plaintiff for the loan in the event of her failure to recover on the note.

It occurred to us on the argument that the defendant’s request to charge was not phrased with critical accuracy, in submitting the proposition that an antecedent debt is insufficient to constitute “ a bona fide holder,” instead of, a “ holder for value;” but, as the case discloses no evidence affecting the good faith of the plaintiff, the court must have understood the request in the sense obviously intended by the counsel. Allowing, .however, technical in-formalities on the part of appellant in challenging the correctness-of the charge, we are of opinion that it was so misleading in substance as to produce the result which, on the evidence before us, we cannot regard as consistent with justice.

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

Bischoff, J., concurs.

       Reversing 49 St. Rep., 39.


author: O’Brien, J.

text:
    Gotthelf Pach et al., Resp’ts, v. Nicholas Geoffroy, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Nuisance — Injunction .
    Evidence that the operation of defendants’ dynamo and machinery, in the place and manner attached, caused vibrations and j arrings and noises, to the inconvenience of plaintiffs, who were located in the same building, and that this could be avoided by a change in the location of such machinery to another part of the premises held by them, is sufficient to authorize an injunction against the use of such machinery in the manner complained of as a nuisance without proof of negligence or damages.
    Appeal from a judgment entered upon the report of a referee, which enjoins and restrains the defendant from conducting his business in the manner and with the machinery and motive power in use and as used by him.
    The plaintiffs and defendant are tenants in the same building. The former are photographers, and the latter engaged in manufacturing jewelry. The action is brought asainst the defendant who appeals and his brother, Arthur B. Geoffroy. The complaint alleges that the operation of the machinery used by defendants in their business produces such a vibration and noise in the building as to amount to a private nuisance, and to injure the business of plaintiffs, and asks that the defendants be restrained from using any machinery which creates vibrations and noisome sounds, and that defendants pay the costs of the action. The answer, besides a general denial of the allegations of the complaint, alleges the leasing of the premises occupied by defendant for a term of years, “to be used for the sale and manufacture of fine jewelry,” and that defendant fitted up the premises as such with the latest and most approved kinds of machinery, consisting of a dynamo engine, with the necessary shafting, belting, etc., and that in the use of such machinery he lias reduced the noise of running the same to the greatest possible minimum, and has made suggested changes to still further reduce the noise and vibration ; and further alleges the misjoinder of Arthur R. Geoffroy as a party defendant The issues were referred to a referee to be tried, who, after receiving a great deal of testimony upon the disputed matters, reported in favor of the plaintiffs against the defendant Nicholas Geoffroy, finding, among other things, that the use by defendant of his dynamo and machinery as now operated and controlled by him is unnecessary and unreasonable, and a private nuisance, and a continuous damage to plaintiffs; and from the'judgment entered on such report -this appeal is taken, on the ground of error of fact in the findings of the referee, and error of law upon the facts as found.
    The following facts were established upon the trial: That in December, 1889, the plaintiffs leased from Deutsch & Co. certain space on the fourth and fifth lofts of the building 935 Broadway, for a term of twelve years and three months from the 1st of February, 1890, and, having fitted up the premises, entered into occupancy of the same March 1, 1890, and commenced the conduct of their business; that in January, 1890, the defendants took a twelve year lease from Deutsch & Co. of certain space on the fourth and fifth lofts of the same building, and entered into possession, and fitted up the premises for' the purposes of their business ; that thereafter Arthur R. Geoffroy retired from the firm, and appellant continued the business under the name of Geoffroy & Co., and subsequently he sublet to Deutsch & Co. a portion of the fourth floor originally leased from them by the defendants; that, in fitting up his premises, the defendant used line shafting 'and pulleys and belts and a drop hammer, the motive power of which was an electric dynamo; these were situated on the fourth floor, under the premises occupied by plaintiffs as a photographic gallery ;' that, as first put up and operated, defendant’s machinery caused vibrations and jarrings of the floor of plaintiffs’ premises, and, on complaint being made, defendant, with a view of remedying the cause of complaint, changed the attachment of his shafting and stringers from the ceiling to a gallows frame fastened to the columns that support the floor above. Testimony was also introduced tending to show, and the referee found as a fact, that the jarrings and vibrations still continued to the annoyance of plaintiffs and their customers, and to the detriment of plaintiffs’ business; and further, that the removal of defendant’s dynamo and' machinery to other portions of his premises, where the same would not come in contact with the flooring of plaintiffs’ operating rooms, or the uprights supporting the same, would remedy or alleviate the vibrations and noises to which the plaintiffs are subjected. o

      D. G. Crosby (Joseph Fettretch, of counsel), for app’lt; Abram Kling (Charles E. O'Connor, of counsel), for resp’ts.
   O’Brien, J.

The decree enjoins the defendant from using and operating the dynamo and machinery now used and employed by him in the conduct of his business in the place and manner and as now attached and erected by. him on the premises Ho. 935 Broadway. It will thus be noticed that no restraint is placed on the defendant’s business, nor upon the use of the machinery in connection therewith, but that the prohibition extends only to its use in such a manner as to create as against the plaintiffs a private nuisance. If we assume the defendant’s position that his business was a lawful one, carried on in a building used for business, mercantile and manufacturing purposes, by himself and other persons and firms, and which building is situated in a neighborhood given over to buildings used for such purposes, and if we assume that, in the construction of the dynamo and machinery complained of no negligence was alleged or proved, the question still remains whether a court of equity will restrain the manner in which such dynamo and machinery are being used. We do not regard this as a new question, it having been many times passed upon. In Bohan v. Gaslight Co., 122 N. Y., 23; 33 St. Rep., 246, it is said: “If one carry on a lawful trade or business in such a manner as to prove a nuisance to his neighbor, he must answer in damages, and it is not necessary to a right of action that the owner should be driven from his dwelling. It is enough that the enjoyment of life and property be rendered uncomfortable. * *" * The wants of mankind demand that property be put to many and various uses and employments, and one may have upon his property any kind of lawful business, and so long as it is not a nuisance, and is not managed so as to become such, he is not responsible for any damage that his neighbor accidentally and unavoidably sustains.”

The theory of plaintiffs’ action, and the ground upon which the relief was accorded to them, were not that the building was unsuited to a business suchas the defendant was conducting; not that the vicinage was unsuited to such a trade; not that the defendant had been guilty of any negligencé in the selection or construction of the dynamo and machinery, but that the situation in which it was placed, and the manner in which it was used, were such as to make it a private nuisance. If the evidence was sufficient to warrant the findings of fact upon which the conclusions of the referee were reached, holding that the present location of the dynamo and machinery, and the manner in which the same are used, constituted such use of the premises a nuisance, then a, court of equity would be justified in affording relief by injunction. That proof of negligence is not essential to entitle the plaintiffs to such relief is disposed of in the opinion to which reference' has already been made, supra, in which it is said : “And it may be confidently asserted that no authority can be produced holding that negligence is essential to establish a cause of action for injuries of such a character.”

Without proof of negligence, therefore, if the evidence justified the findings that the operation of the dynamo and machinery in the place and manner as now attached caused vibrations and jar-rings and noises which were continuous, to the inconvenience of the plaintiffs and their patrons, and to the interference and damage of the plaintiffs in the operation of their business, and if, in addition, it were shown that these acts were unreasonable and unnecessary, they were sufficient to justify his conclusion that they constituted a nuisance. Under such circumstances, the failure or inability to prove pecuniary damages does not take away the power from a court of equity to redress the wrong and prevent a repetition of the injury. As said in McKeon v. See, 4 Rob., 449, which case was affirmed in 51 N. Y., 300: “ The suppression of' oppressive and interminable litigation, and the prevention of multiplicity of suits, equally with protection against irreparable mischief, form grounds of equitable interference.”

The law, therefore, as we read the authorities, is that, when an act has been established as a nuisance, it is neither necessary tec allege nor prove negligence, nor is proof of damage requisite to entitle one to relief. In other words, a1 nuisance cannot be justified, or its maintenance secured, by showing that the injury which another receives occurs in the conduct of a lawful business, carried on with skill and care, though such business be conducted in a building used for business purposes, and for various kinds of' mercantile and mechanical business, in a neighborhood of buildings devoted to similar uses, and a portion of which building the person complaining is using for business purposes. It will thus be seen that, after all, the plaintiffs’ right to relief is dependent mainly upon questions of fact; the principal one being whether the defendant’s business was carried on in such a way as to constitute a private nuisance with respect to plaintiffs.

It is not our purpose to discuss in detail the voluminous record,, and the almost equally voluminous brief of the appellant, and all the evidence and each finding made by the referee, with a view of determining the issue thus presented. That a serious conflict was presented, and that some of the findings were upon slight evidence, is unquestioned; but taking the plaintiffs’ evidence, to which the referee gave greater credence, and upon which he placed his reliance in refusing to dismiss the complaint, and in formulating bis findings and reaching his conclusions, we - think such evidence makes out a prima facie case in favor of the plaintiffs, in showing that the manner in which the defendant conducted his busi-. ness resulted in the vibrations, jarrings and noises; and if these were as continuous and as serious as claimed by some of the witnesses for the plaintiffs, resulting in interference and damage to plaintiffs’ business, and annoyance to their customers, then, upon further evidence that this could be avoided by a change of the dynamo and machinery from their present location to other portions of the premises held and enjoyed by the defendant, a case was presented entitling the plaintiffs to the relief accorded.

Feeling, therefore, that there was evidence sufficient to justify the conclusion reached by the referee, it remains to determine what the effect upon this judgment should be of certain rulings made, not only with respect to the findings, but also in regard to the admission and exclusion of evidence. It is to be remembered that in a case before a referee, like in a case tried before the special term, where the court will examine the entire record to see whether any substantial rights have been jeopardized, it is not disposed to seize upon exceptions which may be technically good, but which do not amount to prejudicial error, for the purpose of reversing a judgment which, upon the entire record, seems to be right. Ho case better suited for the application of this principle •could be found than the one at bar. Hardly a question was asked •of any witness but an objection was interposed, and an exception taken. Hot a piece of evidence got into the case but the referee was asked to make a finding with reference thereto. And, after discussing the law and the facts in a brief extending over 137 printed pages, we are seriously referred to over 200 exceptions, grouped together by folios, the consideration of which was too much for even the appellant’s counsel, who concluded that the court’s time might be wiseljr employed in endeavoring to select from among these 200 odd exceptions, or from all the other exceptions presented in the case upon refusals of proposed findings from the evidence, some ground for a reversal of the judgment. As in duty bound, we have gone over this record, and have, upon the whole case, concluded that the questions of fact, presented as they were, upon conflicting evidence, were those upon which it was proper for the referee to pass, and that the errors into which he may have fallen in no way prejudiced the defendant This view is strengthened when we remember the relief which has been here accorded, and the ground upon which such relief was based. The plaintiffs made out a prima facie case of a private nuisance, resulting in a discomfort and inconvenience to themselves, their customers, and to their business, upon a showing that such came from the unnecessary and unreasonable manner in which the dynamo and machinery of the defendant were placed and operated. It was to prevent such injury that the decree was made. The main portion of the argument of the defendant, and one of the grounds principally relied upon by him, is that no such injury resulted ; that the machinery was operated in a way to make it in no wise injurious, disagreeable, or obnoxious to the plaintiffs.

If the defendant can so manage his dynamo and machinery that the jarrings and vibrations complained of will be obviated, or will not be present, then the decree, which has been directed simply to prevent him from conducting his business to plaintiffs’ injury, cannot harm him. In other words, the injunction is not directed to prevent the defendant from carrying on a lawful business, or to prevent the use of the dynamo and machinery, but it is to prevent him from placing and using them in such a way as to produce serious inconvenience and damage to plaintiffs and their business.

The referee has found that the injury could be obviated by changing the situation of the dynamo, and by removing certain belting and pulleys from defendant’s ceiling, which, it was claimed, was the cause of the acts complained of. That the machinery and pulleys originally placed upon the ceiling produced serious jarring and vibration there is little question ; but the defendant placed great stress upon his having removed a certain portion from the ceiling, and placed the same upon scaffolds which did not in height approach the ceiling to within three or four feet. That other portions of the machinery, however, were still attached to the ceiling was not disputed, and, upon the evidence, it appeared to the referee that a removal of the dynamo and machinery to another portion of defendant’s premises would obviate all the serious results. While, therefore, the courts are always loath to interfere with the manner of conducting a lawful business, yet, when it can be shown that the manner of conducting it results in injury to another, and that such injury could be prevented by changing the mode or manner of conducting such business, the court will be disposed to require that the cause of such injury be removed. If the defendant conducts his business in such manner as to do no injury to plaintiffs, the judgment does not hinder him from carrying on his trade of manufacturing jewelry upon the premises hired by him. If, on the other hand, he will persist, by the situation of the dynamo and machinery, in inflicting injury and annoyance upon the plaintiffs, their customers and their business, the decree to prevent such unlawful interference with the enjoyment of plaintiffs’ premises should be enforced.

We are of opinion, upon the entire record, that this judgment should be affirmed, with costs.

Van Brunt, P. J., and Follett, J., concur.


author: Van Brunt, P. J.

text:
    In the Matter of the Probate of the Will of Alfred Bedlow, Deceased.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Will — Undue influence.
    The mere fact that testator was weak and easily influenced does not, in itself, raise the presumption that such influence was exercised simply because a will satisfactory to his heirs was not made.
    3. Same.
    The validity of a testator’s will does not depend upon the correctness of his information in regard to his family, which he disinherits, at the time of making the will.
    3. Same — Witness—Attoeneys.
    While it is error to permit the attorney who drew the will, and was counsel for the testator, to testify as to personal transactions between himself and deceased, of a professional character, other than the circumstances immediately surrounding the execution of the will, of which he was a witness, it is not ground for reversal, where the exclusion of the evidence could not have affected the conclusion.
    4. Same.
    The mother of the chief beneficiary under a will does not come within the prohibition of § 839 of the (Jude, because of her relationship.
    5. Same.
    Where testamentary disposition is shown, the parties interested in resisting such disposition have no right to testify themselves as to personal transactions between the testator and themselves tending to show that the facts stated by the testator as the reasons for his testamentary disposition were untrue.
    Appeal by the widow and heirs at law of Alfred Bedlow from decree of surrogate admitting will to probate.

      Deyo, Duer & Bauerdorf (W. A. Duer, of counsel), for app’lts; Chas. C. Keeler (G. W. Stephens, of counsel), for resp’t.
   Van Brunt, P. J.

On the 16th of May, 1891, Alfred Bedlow died in the city of Hew York, leaving, him surviving, his widow and three children. He left a will bearing date the 4th day of August, 1890, whereby he appointed one Sarah A. Stilwell the sole executrix of the will, and, after giving his wife and children one dollar apiece, he left a legacy to his niece, and the residue of his property he devised and bequeathed to said Sarah A. Stilwell. The probate of the will was opposed by the widow and children of the testatrix upon the usual grounds. Hone of these grounds, however, seem to be insisted on upon this appeal, except that the execution of the will was procured by undue influence; and in the discussion of this question it is necessary that the court should consider the circumstances surrounding the testator at and about the time of the execution of the will, and subsequent thereto.

It is urged that the testator was weak, and easily influenced by those who surrounded him, which fact is a circumstance, undoubtedly, to be taken into consideration with the other evidence. But the mere fact that he was weak, and easily influenced, does not in itself raise the presumption that such influence was exercised simply because a will such as was satisfactory to the appellants had not been made by the testator. Upon examination of the evidence in this case it does not seem to have been satisfactorily established that the testator was so unusually weak as is claimed by the appellants. It is true that several witnesses testified that he was weak and vacillating, and so impressed with those he was with that he was very apt to do as they told him. But it also appears from the evidence in respect to his relations with his family that he had, to a very large extent, a will of his own, and a pertinacity of purpose which was quite the reverse of the weak, vacillating and easily influenced mind which the testimony of some of the witnesses would lead us to believe the testator possessed. And, while it is undoubtedly true that it is always difficult to produce testimony showing undue influence over a testator, yet the mere fact that the opportunity of exercising undue influence has been afforded, and that benefits have resulted to those who had the opportunity of exercising such influence, by no means raises a presumption that such influence was exercised.

It is assumed by the argument of the learned counsel for the appellants that because the counsel for the testator was the counsel for the beneficiary under the will, and because such counsel might be interested in the maintenance thereof, therefore there is a presumption arising which it is necessary for the beneficiary to rebut. In this he confuses the rule which pertains to contracts or gifts inter vivos, which does not apply to gifts by will. It is true that transactions inter vivos between guardian and ward, attorney and client, trustee and cestui que trust, or persons one of whom is dependent upon and subject to the control of the other, naturally excite suspicion, and when the situation is shown, then there is cast upon the party claiming the benefit or advantage the burden of relieving himself from the suspicion thus excited, and of showing that the transaction was free from undue influence, and that the other party acted without restraint, and without coercion or pressure, direct or indirect, of the party benefited. But, as already said, this rule does not apply, in all its strictness, at least, to gifts by will. And in Matter of Smith, 95 N. Y., 516, it was held that the mere fact that the proponent, who had benefited by the will, was the attorney of the testatrix, did not create a presumption against the validity of the legacy given by her will. But in that case, it being shown that the testatrix was a person of advanced years, and infirm mentally and physically, and had made her attorney the principal beneficiary, and it appearing that this was contrary to previously expressed testamentary intention ; that the attorney was the draughtsman of the will, and took an active part in procuring its execution; and that the testatrix acted without independent advice, it was held that the burden was imposed upon the attorney of satisfying the court that the will was the free, untrammeled, intelligent expression of the intention of the testator; - a situation very different from that which the proof in the case at bar discloses.

It appears in the evidence in this case that on the 5th of June, 1890, a short time prior to the execution of the will in question, the testator had executed a will of a similar import; that he had been upon bad terms with his family for a considerable length of time; that attempts at reconciliation were resorted to, and contrition expressed on both sides, but without resulting in anything except further or more complete estrangement, a striking illustration of which is presented by the letter of the wife of the testator bearing date the 4th of August,. 1890, and the reply of the _ testator of the 6th August, claimed to be 1891, but which must have been 1890, as the testator died in May, 1891, w'hich resulted in a reference of the matter to the wife’s attorneys. It is true that in 1886 he executed a trust deed in which he claimed he attempted to make provision for his family. But be also endeavored to set this trust deed aside, and litigation was had, arising from the claim of improper treatment by his wife and family ; and for the purpose of explaining the reason why no provision was made for them, he expressed his sentiments in the will in question, and this was in harmony with other statements which had been made by him. It is entirely immaterial, so far as the question as to the validity of this will is concerned, whether he was or was not mistaken in reference to the conduct of his family towards him. The validity of a testator’s will does not depend upon the correctness of the information as to his surroundings at the time of making the will. If any other rule prevailed, it certainly would open a wide field of investigation, in the case of the probate of a will, to ascertain whether the testator was correctly informed as to the conduct of every person who might think he had a claim upon the testator’s bounty. This point is strikingly illustrated by the case of Clapp v. Fullerton, 34 N. Y., 190, in which it was held that it was not sufficient, to justify the rejection of a will, that the testator, in other respects competent, entertained the mistaken idea that one of his daughters was illegitimate, if it was not the effect of insane delusion, but of slight and inadequate evidence acting upon a jealous and suspicious mind ; and an examination of the facts of that case shows how far the court has gone for the purpose of upholding a will in the absence of evidence showing the exercise of undue influence. It is said : “ The right of a testator to dispose of his estate depends neither upon the justness of his prejudices nor the soundness of his reasoning. He may do what he will with his own, and if there be no defect of testamentary capacity, and no undue influence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust.’’ But it is claimed that the decree should be reversed because of improper rulings upon the part of the surrogate in reference to the admission and exclusion of testimony. It seems to us that error was committed in permitting the evidence of Mr. Keeler, who was the attorney who drew the will, and was the counsel for the testator, in reference to personal transactions between himself and the deceased, of a professional character, other than the circumstances immediately surrounding the execution of the will, of which he was a witness. Loder v. Whelpley, 111 N. Y., 239; 19 St. Rep., 631. But this does not necessarily call for a reversal of the decree, if it be apparent, upon the whole case, irrespective of the evidence improperly admitted, that the testator was competent, and that the will was properly admitted to probate. It was held in Clapp v. Fullerton, supra, that, on appeals from the decrees of surrogates, the supreme court succeeds to the jurisdiction and authority of the old court of chancery. The review is in the nature of a rehearing in equity, and the admission of improper evidence on the •original hearing furnishes no ground for a reversal of the decision, if the facts established by legal and competent testimony are plainly sufficient to uphold it. Schenck v. Dart, 22 N. Y., 420.

This rule is also recognized in the case of Foote v. Beecher, 78 N. Y., 158, in which it is stated that, upon an appeal from a surrogate’s decree upon the probate of a will, the hearing is de novo, and the case may be determined upon the competent evidence appearing, disregarding such as is incompetent. Code Civil Procedure, § 2586. In Matter of Smith, 95 N. Y., 516, the change in the law introduced by the Code is noticed. The last clause of § 2545 of the Code declares that no decree or order of a surrogate shall be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby. Before the Code, the admission of incompetent evidence was presumptively injurious. But the section in question seems to have changed this presumption. In the case of Smith it is said, under this section, that when the court of review finds that incompetent evidence has been received, or competent evidence rejected, it then becomes its duty to determine whether the error prejudiced the party against whom it was committed. If it appears to the court that it did not, then its duty is plain. If, on the other hand, the evidence erroneously admitted or rejected was important and material, and the court cannot see that, notwithstanding the error, the judgment is right, or they entertain a reasonable doubt upon the subject, then a case is presented where the party excepting is clearly prejudiced, within this section. He was deprived of the opportunity of having his case decided upon competent and material facts. Now, if we strike out all the testimony of Mr. Keeler in reference to personal transactions between himself and the testator, it in no way affects the conclusion which must necessarily be arrived at from the evidence which properly stands. In speaking of the exclusion of the testimony of Mr. Keeler, we do not intend that the affidavit of Mr. Bedlow, sworn to on the 16th of March, 1891, was improperly admitted. That was evidence independent of testimony of any personal transactions between Keeler and the testator, as a declaration, in the form of an oath, of the feelings which the testator entertained towards his family.

It is further claimed that the exclusion of the evidence of the appellants herein, of personal transactions with the testator, was error, because they had a right to show that the testator was mistaken in respect to their attitude towards him, and had no grounds' or reason for the statements contained in his will, and that the widow and children were entirely justified in their course. But we fail to find any authority for the reception of any such evidence. " Section 829 expressly provides the only cases in which a person interested in the event may be examined concerning personal transactions or communications between the witness and the deceased; and they are, so far as applicable to this_ case, only where the executor or administrator or person so deriving title or interest is examined in bis own behalf concerning the same transaction or communication.

In the case of Smith v. Christopher, 3 Hun, 585, which is referred to as an authority to support the right of these contestants to testify, all that was held was that, if a party mentioned in (as it was then) § 399 of the Code testifies to declarations of a deceased person in his own behalf, the prohibition does not apply to counter declarations offered by the adverse party. There was no evidence of any person interested in this proceeding, if we except, that of the attorney (which evidence the court has already stated should not have been admitted), showing declarations upon the-part of the testator in favor of his testamentary disposition. It is true it is claimed by the appellant that Mrs. Stillwell, the mother of the chief beneficiary under the will, comes within the prohibition of the section, because of her relationship to the beneficiary. But we fail to find that the courts have by judicial decision legislated to the extent claimed. The language of the section of the-Code upon this subject certainly embraces nobody but the parties in interest, and relationship has never yet been held as a disqualification. Attention is called to the case of Potts v. Mayer, 74 N. Y., 594, as an authority in favor of the contention of the appellants. But in that case the testimony of a deceased party, taken upon a former trial, was read in evidence; and it was because such testimony was read in evidence in regard to the transaction which was under consideration that the witness was allowed to testify in respect thereto. The case of Lewis v. Merritt, 98 N. Y., 206, has. no application to the case at bar. In that case the executor, bringing an action in his representative capacity, testified to the existence of a certain state of things, and the defendant was refused the opportunity of showing by his own testimony that such state of things did not exist; and the court held that to be error, upon the ground that the prohibition of § 829 does not extend so far as to prevent a party from testifying to extraneous facts and circumstances that a witness for the adverse party has testified to, even though he is thereby called upon to negative the existence of personal transactions and communications between himself and the deceased. In the case of Marsh v. Brown, 18 Hun, 319, which was an application by a child for his share in his father’s estate, the executor claimed to deduct a sum alleged to have been advanced to him, and to prove such advance produced an entry made by the testator in one of his books; and it was simply held that the child was entitled to testify in reference to such advancement, and to explain or deny the entry. But we nowhere find any authority for the proposition that where testamentary disposition is shown the parties interested in resisting such disposition have a right to testify themselves as to personal transactions between the testator and themselves, tending to show that the facts stated by the testator as the reason for his testamentary disposition were untrue. We do not think, therefore, that any error was committed by the court below which calls for a reversal of the decree in question, and it should be affirmed, with costs.

O’Brien and Follett, JJ., concur.


text:
    Carroll Whitaker, App’lt, v. Herman L. White et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    New trial — Newly discovered evidence.
    In an action against brokers for the proceeds of a stock transaction the defense was a loss on a subsequent order. Plaintiff having recovered, a new trial was granted on an affidavit of defendant's cashier that plaintiff gave such order on a certain day. On the second trial plaintiff testified that he was out of town on the day named. Held, that another new trial would not be granted on alleged newly discovered evidence that plaintiff’s testimony was false, as defendants should have provided themselves prior to the second trial with all the evidence tending to support their contention.
    Appeal from an order granting defendants’ motion for a new trial upon the ground of newly discovered evidence.

      Durnin & Hendrick (P. A. Hendrick, of counsel), for app’lt; William P. Toler (G. P. Gordel, of counsel), for resp’ts.
   Van Brunt, P. J.

It appears from the record herein that this action has been twice tried before a jury, and a verdict rendered in favor of the plaintiff on both trials; that after each trial a motion for a new trial was made upon the ground of newly discovered evidence, and the same was granted. The issues involved are as to whether the plaintiff gave an order, and the defendants executed such order, for certain stock. At the first trial the plaintiff denied the giving of the order, in which respect he was contradicted by the defendants, and a verdict was rendered in favor of the plaintiff. A motion w'as made for a new trial upon the affidavit of the cashier of the defendants, who testified that he was present and overheard the plaintiff give the order to one of the defendants on Saturday, the 11th of June, 1887. In his affidavit in opposition to the motion the plaintiff denied that he had any such conversation as claimed by the cashier of the defendants, and swore that the only conversation that he had in reference to the purchase of this stock was with the defendant White, when another person was present. The motion for a new trial was granted.

Upon the retrial the evidence of the defendant White was to the effect that this conversation had taken place, in which he was supported by his cashier, who testified that it took place on Saturday, the 11th of June. The plaintiff testified that he did not go to the office of the defendants’ firm on that day, or give any order in respect to the stock, and that he was not in the city, but in Ulster county, on that day, and transacted certain business there. When certain other evidence was given, claimed to be confirmatory of the testimony given on the part of the defendants, the plaintiff explained the same, and a verdict was again rendered in his favor. A new motion for a new trial was subsequently made, and affidavits were presented, under a claim that they showed that the alibi established ,by the plaintiff upon the trial was absolutely false,, and, such motion having been granted, this appeal is taken.

We do not think that motions of the character presented by this appeal are to be encouraged by the court The question as to whether an order was given on the 11th of June was plainly presented, not only at the trial, but foreshadowed at the time of the application for a new trial after the first verdict had been rendered. Under these circumstances, if it was claimed that the order had been given by the plaintiff upon that day, it was the duty of the defendants to provide themselves with all the evidence which would tend to support that contention. The mere fact that the plaintiff attempted to prove his absence from the city on that occasion raised no new issue; it simply presented the same question in another form. And if new trials are to be granted simply because, after the rendition of the verdict, additional testimony may be claimed to have been discovered, then there can be no end of litigation. There was nothing suspicious about the plaintiff’s claim which would justify extraordinary relief in this respect. There was a plain question as to veracity between the plaintiff and the witnesses upon the part of the defendants, and this having been twice resolved in the plaintiff’s favor, we do not think, simply upon the production of evidence which is claimed to be newly discovered, and which might tend to show that the story stated by him upon the stand was false, particularly in view of the explanations given upon the part of the plaintiff and the supporting evidence offered, that a new trial should be granted. The order appealed from should be reversed, and the motion denied, with ten dollars costs and disbursements.

O’Brien and Follett, JJ., concur.


author: Follett, J. Van Brunt, P. J. O’Brien, J.

text:
    Theresa C. Graham, App’lt, v. John Graham, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Antenuptial agreement — Belease of dower.
    An antenuptial contract to bar a woman's dower must be based on a valuable consideration, which must be a substantial one, and not merely nominal.
    Appeal from judgment entered in favor of defendant on trial by the court, in an action for the cancellation of an antenuptial agreement between the parties.
    In March, 1890, Theresa Cassidy and John Graham became acquainted; injurie of the same year they became engaged, and July 5, 1890, they intermarried, she being a spinster, aged forty-two years, and he a widower, aged sixty-one years, with children. At the time of the marriage the defendant owned real estate worth $100,000, in which the value of the plaintiff’s inchoate right of dower would have been $8,900. July 3, 1890, a contract was executed between them, under their hands and seals, which was duly acknowledged, and of which the following is a copy :
    “ This agreement, made and entered into this third day of July, 1890, between John Graham, of the city, county and state of New York, party of the first part, and Theresa Cassidy, of said city, party of the second part, witnesseth, that, whereas, a marriage is about to be had and solemnized between the said parties, and the said party of the first part is desirous of making provision for a fit and proper settlement to and for the use and benefit of the said Theresa Cassidy, his intended wife, now, therefore, the said party of the first part doth agree that, if the marriage shall be had and solemnized as aforesaid, he shall or will, on or before the date of such marriage, or just previous thereto, give, assign, transfer and set over unto the said Theresa Cassidy the sum of one dollar, in ■cash, to have and to hold the same unto her, the said Theresa Cassidy, to and for her sole and separate use, benefit and behoof forever, and the said Theresa Cassidy, in consideration of the payment to her of the aforesaid sum of one dollar, and in further consideration of love and affection, and willingness to become the wife of the said John Graham, the party of the first part, doth, for herself, her heirs, executors and administrators, covenant and agree with the said John Graham that for and in consideration of the premises, that said provision so made as herein specified .shall be in full satisfaction of her dower in his estate, and shall bar her from claiming the same, if she shall survive him after said marriage; and, further, if the said marriage shall be had, and she shall survive him, that she will not claim any share in his personal estate, unless some part thereof shall be given her by his will or act, done by him subsequent to the execution of these presents. And the said Theresa Cassidy further covenants and agrees, in consideration of the premises and of the marriage about to be celebrated between her and the said John Graham, in case he, the said John Graham, shall hereafter acquire property, real or personal, by purchase or otherwise, that she will, on request, sign and execute for him, his heirs, executors or administrators, any or all releases of dower or quitclaims in such property, and hereby releases and quitclaims to the said John Graham, and to his heirs, executors or administrators, all and every right, title or interest in and to any of the estate or property of the said John Graham which he now owns, or which he may hereafter acquire.
    In witness whereof, the said parties hereto have interchangeably set their hands and seals, with full knowledge of the contract herein, at the city of New York, and on this, the third day of July, A. D., 1890.
    “ John Graham, [l. s.]
    “ Theresa Cassidy, [l. s.]
    “ In presence of
    “T. McLean Shaw.
    “Isaiah H. Hanna.”
    September 22d the contract was recorded in the office of the register of the city and county of New York, in Book 1 of Miscellaneous Records. Prior to the execution of this contract, another one had been drawn, under the instructions of the defendant, which was the same in all respects, except that it recited a consideration of $5,000, instead of one dollar. The litigants agree that the terms of the contract were not agreed to before the parties met at the office of the defendant’s counsel to execute it On this occasion the defendant offered the plaintiff $5,000 which she refused to accept, and the contract was redrafted and a consideration of one dollar substituted, which was not paid. About five months after the marriage the parties became estranged and the defendant conveyed some of his real estate to a daughter. ■ November 28, 1891, this action was brought to have the contract adjudged null and void, on the ground that it was procured to be executed by the plaintiff by fraud, and that she signed it without knowing the contents.

      George Bliss, for app’lt; James A. Deering, for resp’t.
   Follett, J.

Originally the word “ jointure ” denoted a joint estate, limited to husband and wife for life, or in tail, which was not created for the purpose of barring dower, but because, prior to the statute of 27 Hen. VIII, chap. 10, the title to the greater .part of the land in England was in the hands of trustees for the use of sundry persons; and, as a wife was not dowable of uses, her father or friends, upon the marriage, procured the husband to create a jointure, that there might be a competent provision for the wife after the husband’s death. 1 Cruise Dig., tit. 7, “Jointure,” § 2; Vernons Case, 4 Coke, 1 b. Indeed, if a man, in con: sideration of a marriage afterwards to be had with a woman, created an estate in jointure, in full satisfaction of all dower which, after marriage, might accrue to her in his lands, and they intermarried, that was no bar of dower, at common law, for two reasons : (1) Because no right could be barred until it accrued ; (2) because no right or title to an estate or freehold could be barred by a collateral satisfaction. So it was found impossible to bar a woman of dower by any assurance of lands either before or during the marriage. Cruise Dig., tit. 7, “Jointure," § 1; Vernon's Case, 4 Coke, 1 b. For the prevention of the mischiefs arising out of lands being held for the use of others, the statute of 27 Hen. VIII., chap. 10; 4 Pick. St., 859, known as the “ Statute of Uses,” was passed, which transferred the legal estate of the lands of England to those who were entitled to their use. Thus all the married women of England would have become dowable in the lands theretofore held to the use of their husbands, and also would have held the lands settled on them in jointure, but for § 6 of that chapter, which provided that women with jointures then or thereafter provided should not have dower in the residue of their husbands’ estates. By a subsequent clause the wife was empowered to refuse a jointure assured during marriage. Vernon's Case, 4 Coke, 2 a, note 1, by Thomas. The word “jointure” has now been so extended by the statutes of England and of this state as to include a sole estate limited to the wife alone, or a pecuniary provision in lieu of dower. Sections 6 and 9 of chapter 10, 27 Hen. VIII., before referred to, were enacted almost verbatim in this state, in §§ 8, 9, chap. 4, Laws 1787; 2 Jones & V, 2, which provisions were continued unchanged until the adoption of the Bevised Statutes. 1 Rev. Laws 1801, 51; 1 Rev. Laws 1813, 56.

This statement of the origin of the law of jointure shows, we think, that its central idea was some provision for the benefit of the wife as a consideration for her relinquishment of her right to dower. It will be observed that the decisions of the courts in England, and the earlier cases in this state, are founded on statutes which are identical. There are two sorts of jointures created by the statutes of this state. (1) By an ante-nuptial agreement executed by both parties, which prevents the right to dower from ever arising; (2) a jointure created before marriage, but not as-seated to by the betrothed wife, or created after marriage, which, when accepted in lieu of dower, bars it, but not before. 1 Rev. St., 741, §§ 9-12; 1 Cruise Dig., ch. 1, § 25. Section 11, 1 Rev. St., 741, provides that “ any pecuniary provision that shall be made for the benefit of an intended wife, and in lieu of dower, shall, if assented to by such intended wife, as above provided, be a bar to any right or claim of dower of such wife in all the lands of her husband.” Under the statutes a valid jointure or a pecuniary provision in the nature of a jointure must be supported by some valuable consideration as a compensation for the relinquishment of the right to dower. McCartee v. Teller, 2 Paige, 511-560; Hawley v. James, 5 id.. 318-447. See, on other points, Priest v. Cummings, 16 Wend., 617; Power v.Sheil, 1 Moll., 296; Curry v. Curry, 10 Hun, 366; Ennis v. Ennis, 48 id., 11-14; 15 St. Rep., 243; 4 Kent’s Com., 56, note a; 1 Co. Litt., 36b., 37a Some of the authorities go further, and hold that an ante-nuptial jointure or provision in lieu of dower must be a fair equivalent for the right relinquished. But we find no case, English or American, which holds that an ante-nuptial contract entered into for the purpose of barring dower is effectual unless some provision is made for the intended wife, except in case the intended wife has property which would on marriage become her husband’s, and the contract provides that neither shall become entitled to any interest in the estate of the other. In some' jurisdictions such a consideration is held to be sufficient to support a contract relinquishing dower without any provision being made for the wife. No estate in lands or pecuniary provision having been received by or secured to the plaintiff, the ante-nuptial contract will not bar her claim to dower, under the Revised Statutes, in case she survives.her husband.

Is a contract relinquishing the right to dower, without any consideration, valid and sufficient, under the statutes for the protection of married women ? Section 4 of chap. 200, Laws 1848, and | 3 of chap. 375, Laws 1849, provide: “All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.”

In Curry v. Curry, supra, it was held that the section quoted had no application to contracts creating jointures, or providing pecuniary provisions in lieu of dower, which had previously been authorized and regulated by the Revised Statutes; and we are of the opinion that it was not the intent of the legislature that this section should change those statutes in respect to ante-nuptial contracts relating to dower. We are also of the opinion that the plaintiff is entitled to a new 'trial, upon the facts. In Kline v. Kline, 57 Pa. St., 120, and Kline's Estate, 64 id., 122. it was held that persons engaged to be married stand in a confidential relation to each other, demanding the exercise of the utmost good faith on the part of both, and that an ante-nuptial contract executed by the intended wife, relinquishing her interest in the estate of her intended husband, will not be supported unless there was a full and free disclosure of all the circumstances bearing upon the contemplated agreement. These cases were followed in Pierce v. Pierce, 71 N. Y., 151, where it was said : “ We are of the opinion that the contract in question cannot be upheld, for the reason that the evidence establishes^ beyond any controversy, that it was executed by the respondent under a belief, which was created by the conduct and declarations of the deceased, that it contained more beneficial provisions in her favor than were contained in the same, and that, the deceased talcing advantage of the confidential relationship existing between him and the respondent, who was the intended wife of the deceased, he was chargeable with fraud and misrepresentations in procuring her signature to the same. Ante-nuptial contracts, whereby the future wife releases her claim to her right of dower, and all other rights to the estate of her husband upon his decease, are fully recognized in law. When fairly made, and executed without fraud or imposition, they will be enforced by the courts. The surrender and release of rights to be acquired by the intended wife by the marriage relation must, however, be regarded with the most rigid scrutiny; and courts will not enforce contracts of this nature against the wife, where the circumstances establish that she has been overreached and deceived, or been induced by false representations tc enter into a contract which does not express or carry out the real intention of the parties. The relationship of parties who are about to enter into the marriage state is one of mutual confidence, and far different from that of those who are dealing with each other at arm’s length. This is especially the case on the part of the woman; and. it is the duty of each to be frank and unreserved when about to enter into an ante-nuptial contract, by a full disclosure of all facts and circumstances which may in any way affect the agreement. ”

The plaintiff testified that on Sunday, June 29th, six days before their marriage, the defendant said: “ ‘ If we are going to be married, I think it is necessary that you should see a lawyer.' I said, Well, I don’t think so.’ He said, ‘Business is business.’ I said, ‘My marriage is not business. I have nothing to see a lawyer about.’ He said, ‘ Will you come and see mine ? ’ And I said, ‘ Yes, certainly I will.’ He did not tell me why he wanted me to go see a lawyer.”

They then made an appointment to meet at the corner of Broadway and Fulton streets on Thursday following, at an hour named, and go together and see his lawyer, which appointment was kept, and resulted in the contract under consideration. She testified that its terms were never talked over. The defendant was examined as a witness in his own behalf, and testified: “ I have heard Mrs. Graham’s testimony as to what took place between us prior to our visit to Mi’. Shaw’s office. 1 have to say about that that I told her I would like to have my real estate matters fixed up, so as I would have no interfering, so I could use it freely, whatever 1 would like; sell it, or to buy real estate and nobody to interfere. I told her that before I went to Mr. Shaw’s office. She said ‘All right.’ I went to Mr. Shaw’s office, and told him I would like to have such a paper made out, and then subsequently I took Miss (Mssidy down there.”

The defendant does not testify that the nature of the contract, or its effect, was explained to the plaintiff, nor that there was any ■conversation about dower, or the release of all of her interest in his real and personal estate. The attorney who drafted the contract testified that after reading the first paper through she said-: “ ‘The paper is all right, with the exception of the $5,000. I will not take any of Mr. Graham’s money. I am not marrying him for money.’ Mr. Graham said, I will not carry out the ceremony unless you release your dower right in my property.’ She said ‘I am willing to, but I don’t want to take any money.’ ”

This is the only evidence that the subject of releasing dower was evef the subject of conversation between the parties. Neither the plaintiff nor the defendant testified that such language was used; but, if it was, it comes very near being a threat which would be likely to influence a woman on the eve of her intended marriage. Both litigants, the draughtsman of the contract and the notary who took the acknowledgments, the only persons present when it was formulated and executed, testified that the plaintiff refused to receive $5,000 in cash, and execute a contract cutting off her rights in the estate of her intended, on .the ground that the marriage ought not to rest on a pecuniary consideration. The finding does not seem wholly natural and reasonable that the plaintiff freely, and with a perfect understanding of the intended effect of this contract, executed it without any pecuniary consideration, after having absolutely refused to receive $5,000, and execute the first proposed contract. On a retrial, the evidence may be of a character that will sustain the burden resting on the defendant, to convince the court, by the most cogent proofs, that the plaintiff fully understood the effect of the agreement, and that it was executed on her part freely, and without compulsion ; but we are not satisfied that the evidence in this record fully justifies such a conclusion. The judgment should be reversed, both on the law and the facts, and a retrial granted, with costs to abide the event.

Van Brunt, P. J.

I am of the opinion that the provision in lieu of dower must be substantial, not merely nominal, in order to bar dower. I concur.

O’Brien, J.

I concur with Mr. Justice Follett in his view of the law. An antenuptial contract, to bar a woman’s dower, should be based on a valuable consideration. The facts in this case show that no adequate compensation was made for the relinquishment of her dower right, and she, therefore, apart from the question of fraud, was entitled to have the agreement set asida


author: Lawrence, J.

text:
    Augustus Kountze et al., Ex’rs, Resp’ts, v. Fannie Ida Helmuth, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Vendor and purchaser — Incumbrances—Restrictive agreement as TO BUILDING.
    A written agreement entered into between owners, as tenants in common, of certain city lots, that they would erect thereon only a certain class of dwellings, and no stables or other ‘ ‘ nuisances,” and that such restrictions should run with the land, institutes an incumbrance on such lots.
    3. Same.
    An agreement entered into between the owners of a city block that the front of the house to be erected on such block should be set back a certain distance, and such space forever kept open for a court yard, and that such covenant should run with the land, constitutes an incumbrance on the property in such block.
    Exceptions ordered to be heard in the first instance at the general term in an action upon a contract for the sale of real property.

      Kellogg, Rose & Smith (L. Laflin Kellogg, of counsel), for app’lt; George W. Van Slyck, for resp’ts.
   Lawrence, J.

On the 21st of September, 1888, the plaintiffs’ testator and defendant entered into an agreement in writing, whereby the defendant agreed to sell to the plaintiffs’ testator, and the latter agreed to purchase, the premises situated on the northerly corner of Madison avenue and East Forty-first street, in the city of New York, for $105,000, $2,000 to be paid on the execution of the agreement, and the balance on the taking of the title. The defendant agreed, on receiving such payment, to execute, acknowledge, and deliver to the plaintiffs’ testator a proper deed containing a general warranty and the usually full covenants for the conveying and assuring to him or his assigns the fee simple of the said premises, free from all incumbrance, said deed to be delivered on the 22d of October, 1888, at 12 o’clock M., at the office of J. Romaine Brown & Co., at which time the plaintiffs’ testator was to have possession of said premises.

On examining the title, the attorney employed by the plaintiffs’ testator discovered matters which he alleged to be defects in the title. ■ The time for completion was first extended to the 24th of October, and at the request of the defendant again extended until the 30th of October, 1888, on which day the parties met, and, the attorney still deeming the title defective, the purchase money and a full covenant warranty deed were tendered by the respective parties, and a demand for the return of the $2,000 and the expenses incurred was made of the defendant, which was refused. All further negotiations then ceased. This action is brought to recover the damages alleged to have been sustained by reason of the inability of the defendant to comply with the terms of the agreement. The defendant, in her answer, denies that the alleged defects complained of by the plaintiffs in point of fact existed; that, if they existed, the plaintiffs’ testator had waived them; and also sets up as counterclaims: First, that Mr. Kountze took possession of the freehold, and sold certain portions thereof, by means whereof the defendant'sustained damage in the sum of $1,500; and, second, that by reason of the failure of the plaintiffs’ testator to carry out and perform his contract, the defendant was put to loss and damage in removing her property from said premises, and lost the rental value thereof, amounting in all to the sum of $9,000. The defects in the title relied upon by the plaintiffs are these: First, that on the 4th of June, 1857, Margaret Burr, Mary Burr and Sarah Burr, being then the owners, as tenants in common, of the lands on the easterly side of Madison avenue, lying between Fortieth and Forty-second streets, entered into a written agreement that they would not erect any buildings other than dwelling houses at least two stories high, of brick or stone, or churches of the same materials, on the lands, or any part thereof, excepting ordinary yard appurtenances; and also no* livery stables, slaughter-houses, and several other erections and occupations known as “ nuisances ” in the law, should be made, erected or permitted on said land, or any part thereof; and, further, that in all future sales, leases, or other disposition of any of the land aforesaid by the parties to the said agreement, the purchasers, lessees or occupants shall be required to come under and be bound by such restrictions, and that the same shall run with the land, and that any party thereto, or person aggrieved by any violation thereof, might apply for relief by injunction or otherwise. Second. The second defect in the title pointed out by the plaintiffs is an agreement between Sarah Burr, R. H. L. Townsend and Edward Livermore, dated October 1, 1866. The parties to that agreement owned the entire block on the easterly side of Madison avenue; Sarah Burr ow ning seven lots, Townsend one lot, and Livermore having a contract to purchase a portion of the property.

By that agreement the parties covenanted and agreed that the front of any houses to be erected on the said lots shall be set back on a uniform line of five feet from the easterly side of Madison avenue, and that the said space of five feet should forever hereafter be kept open for a court yard, and should not be built upon or obstructed by any erection whatever, other than by windows, stoops or entrances, etc. It was further agreed that this covenant should run with the land, and be binding on all future owners, and that all deeds executed by the parties of any of the said lots should be made subject to' the conditions of the agreement. Third. The third defect relied on by the plaintiffs is an encroachment in the rear of the lot, by the wall of an adjoining house, so that the lot proposed to be conveyed is only 99 feet 8 inches, instead of 100 feet, in depth. The learned justice before whom the case was tried, after refusing to dismiss the complaint, or to allow the defendant to go to the jury upon certain points submitted, directed a verdict in favor of the plaintiffs, and the case comes before us on exceptions to such ruling, and as to the reception or rejection of evidence offered on the trial.

We are of the opinion that the covenants in the two agreements above referred to constitute incumbrances upon the property contracted to be conveyed, and that, while in existence, the defendant could not convey to the plaintiffs’ testator the good, marketable title to which he was entitled. Irving v. Campbell, 121 N. Y., 353; 31 St. Rep., 307; Moore v. Williams, 115 N. Y., 586; 26 St. Rep., 259. The covenants in each of the agreements are expressly stated to run with the land, and they constitute reciprocal easements, to which subsequent grantees become entitled, and by wfiich they are bound. Lattimer v. Livermore, 72 N. Y., 174; Trustees v. Lynch, 70 id., 440; Wetmore v. Bruce, 118 id., 322; 28 St. Rep., 687; Huyck v. Andrews, 113 N. Y., 81; 21 St. Rep., 924. The plaintiff was, in our opinion, entitled to rely upon his covenants, and it was, therefore, not error for the justice before whom the cause was tried to exclude the evidence offered by the defendant for the purpose of showing whether the covenants were beneficial or otherwise. In Moore v. Williams, 115 N. Y., 592; 26 St. Rep., 259, it is said : “ A purchaser will not generally be compelled to take a title when there is a defect in the record title which can be cured only by a resort to parol evidence, or when there is an apparent incumbrance which can be removed or defeated only by such evidence.”

The case of Trustees v. Thacher, 87 N. Y., 311, stands upon peculiar facts. In that case it was held that, in view of the changed character of Sixth avenue, the court would not, in the exercise of its discretion, sustain an action for the specific enforcement of certain restrictive covenants contained in an agreement between the plaintiffs and one from whom the defendant by sundry mesne conveyances acquired title. But it was not held that one who violated such a covenant would not be liable to an action for damages by an owner of one of the lots referred to in the agreement containing the restrictive covenants. See, also, Amerman v. Deane, 132 N. Y., 355; 44 St. Rep.. 567. There the court refused an injunction after the building which was erected in violation of the covenant had been completed, but it awarded damages. The plaintiff in this action was not hound to take a title which would subject him to an action for damages by adjoining owners.

The question put to the witness Pette in relation to the change in the character of the neighborhood was properly excluded, because no such defense as it was intended to sustain is pleaded, and also because, as already stated, although the fact of such change may induce a -court of equity to refuse to specifically enforce a restrictive covenant, such change does not present an answer to any action at law which might be brought by one interested in the covenant for damages sustained by reason of its violation.

The objection to the deficiency in the quantity of the land of four inches in the rear of the lot, where the price to be paid is as large as in this case, is also a grave objection to the marketable quality of the title under consideration, but, having determined that the agreements of 1857 and 1866 so seriously affect the title as to justify the plaintiff in refusing to complete, it is unnecessary to pass definitely upon that question. The defendant strenuously contends, however, that, even if the defects in the title referred to by the plaintiff existed, they were waived, and that, therefore, he cannot succeed in this action. In this contention we think she must fail. The alleged waiver is based upon the fact that in a conversation with the defendant’s husband on the 17th of October the plaintiffs’ testator agreed to sell to Dr. Helmuth certain bookcases attached to the premises.

On the next day, the mechanics, under Helmuth’s direction, commenced to take them down, but on the morning of the 19th the plaintiffs’ testator, by letter addressed to defendant’s husband, “ suggested and advised ’’ that, as the examination of the title had not been fully completed and the title found satisfactory, they should defer the moving of the book cases. We are unable, on the facts, to hold that the conversation which took place between the plaintiffs’ testator and the defendant’s husband was an acceptance of the title by the plaintiffs’ testator, or a waiver of any existing defects. It is quite clear that the examination had not then been completed. It seems to have been completed on the 19th of October. After that we find that two extensions were granted, the last of which is dated October 24, 1888, by which the time is extended to the 80th, and the last memorandum recites that it is granted at the request of Mrs. Helmuth. If there had been a waiver of the alleged defects in the title, or if the plaintiffs’ testator had technically taken possession by what occurred between him and Dr. Helmuth on the 17th of October, the defendant would hardly have asked an adjournment of the closing of the title. Beyond the transactions in regard to the book cases, there can be no pretense that the plaintiffs’ testator ever exercised any acts of ownership over the premises, or should be even technically regarded as having taken possession of them ; and we find nothing in that transaction upon which a waiver can be based. Bensel v. Gray, 80 N. Y., 517.

From what has been already said, it is apparent that the counterclaims of defendant were properly dismissed. The plaintiffs’ testator had exercised no acts of ownership over the book cases. He had, in substance, agreed to sell them when the title was found to be good, and his letter, dated October 18th, is entirely inconsistent with the idea that he claimed to be the owner of them. The plaintiffs’ objections to the title having been determined to be good, there was no foundation for the counterclaim for rent. Ho error, in our opinion, was committed in refusing to submit the question of waiver to the jury on the evidence before the court. Conceding the facts to be as claimed, there was, as matter of law, no waiver.

The defendant’s exceptions should, therefore, be overruled, and judgment rendered for the plaintiffs, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


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    John Pierce, App’lt, v. John B. Devlin et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Assignment — Moneys to become due ebom city.
    Upon a certain date D. assigned to H. a certain sum “ due or to grow due ” under certain contracts with the city. Thereafter D. entered into other contracts with said city. Held, that the assignment did not apply to contracts entered into with the city subsequent to its date.
    2. Same — Bond.
    Prior to the date of a similar assignment D. executed a bond to the city which recited that he had been authorized to repave the streets over excavations which have been made or shall hereafter be made under order from the commissioner of public works. Held, that such bond did not create any contractual relation between D. and the city.
    Appeal from a decree directing a division of certain moneys,, conceded by the city of New York to be due to one John B. Devlin, and ordering judgment in favor of the defendants Bostelmann and others.

      Harriman & Fessenden, for app’lt, Pierce; Theall & Beam (Austen G. Fox, of counsel), for app’lt, Hart; Alexander & Green (Daniel Whitford, of counsel), for resp’t, Mt. Morris Bank; James Demarest (L. Laflin Kellogg, of counsel), for resp’ts, Bostelmann’s administrators; C. J. G. Hall (Uriah W. Tompkins, of counsel), for resp’t, Pollock.
   O’Brien, J.

The fund, to a whole or a part of which the-plaintiff and defendants made claim, was created in favor of one-John B. Devlin out of work done for the city, according to orders given by the commissioner of public works to replace and restore street pavements, etc. The evidence shows that prior to July 5, 1889, Devlin had, upon orders, performed certain work for the city in connection with repairing pavements, etc. He assigned to-the defendant Hart on that date “ $1,575, due or to grow due in and by virtue of certain contracts made and entered into by and between the mayor,” etc., “ and John B. Devlin, * * * * for restoring pavement, curb and flagging over street openings, when and where directed, under order from department of public works, under the direction of the water purveyor.” Under another assignment, in form similar to that given to Hart, Devlin assigned to the plaintiff “ the sum of $7,122, all moneys due or to grow due in and by virtue of a certain contract made and entered into by and between the mayor,” etc., and Devlin, for work in connection with pavements, curbs and flagging over street crossings. The defendant, the Mt. Morris Bank, claimed under an assignment by Devlin to it, dated October 16, 1889, “ $1,500, due or to grow due ” under similar contracts. Pending the action the administrators of the defendant Bostelmann, who were substituted for him, claimed under an assignment to their intestate, under date of November 2, 1889, by which Devlin assigned all moneys due or to grow due and by virtue of certain orders made and entered into,” etc., which orders are specifically set forth in the assignment The defendant Huerstel claimed under an assignment from T 'evlin, which recited that the amount assigned was, as in the oilier assignments, moneys “ due or to grow due in and by virtue of certain contracts ” made between Devlin and the city for labor in ■connection with pavement, curb and flagging of streets. The defendant Pollock claimed under an order of the city court, filed November 22, 1889, with the comptroller, made in proceedings supplementary in an action in which Devlin was the defendant and Pollock the plaintiff, which order directed the mayor to pay to the attorney for Pollock the amount of the judgment out of moneys due Devlin for restoring pavement over street openings under orders of the department of public works bearing date August 23, 1889.

In addition, the defendant Baird claimed a portion of the fund upon a copy of the city court execution filed by the sheriff with the comptroller December 9, 1889, in favor of Baird against Devlin. The defendant ITlman claimed under an instrument made by Devlin to her, dated December 20, 1889, and filed with the comptroller December 31, 1889. On the 12th day of July, 1889, Devlin executed and filed a bond in the sum of $10,000, which recited that Devlin “ has been authorized by the commissioner of public works * * * to properly restore and repave the street pavement and reset the curbstone and relay the flagging in the streets * * * over excavations which have been or shall hereafter be made for whatever purpose.” The bond then provides for the faithful performance of the work to be undertaken by Devlin under the orders of the department of public works. 'The first order thereafter given was on August 23,1889, and from time to time similar orders were given by the commissioner of public works, down to and including May 15, 1890, and it was as the result of work upon these orders given between August 23, 1889, and May 15, 1890, that the fund was realized. The evidence further discloses that prior to August, 1889, Devlin had performed similar work for the city under like orders issued by the commissioner of public works. The only ones, however, that it will be necessary to refer to are those which appear in evidence ■covering work done between June 3 and June 8, 1889, the payment for which was due August 3, 1889 ; and also an order for the period between June 17 and June 22, 1889, for which payment was due September 5, 1889. The money due under the last two mentioned orders was paid, subsequent to July 12th, to the Mt. Morris Bank, which claimed the same under a former assignment made by Devlin to it, and which antedated those given by Devlin to the defendant Hart and the plaintiff.

In deciding as to the true claimants to the fund we must, from .a construction of the various assignments, determine what by their terms was intended to be assigned. Those prior to July 31, 1889, which included the plaintiff’s, the defendant Hart’s, and the prior assignment, already referred to, to the Mt. Morris Bank, in terms provide for an assignment “of all moneys due or to grow due in and by virtue of a certain contract made and entered into by and between the mayor,” etc. Considering the language thus used, we fail to see how it is applicable to contracts not yet in existence, or how, under such a form of assignment, •claim could be made by the appellants here to the fund in dispute, which was created by contracts entered into between Devlin and the city subsequent to the date of such assignments. Having in mind the fact that certain contracts had been entered into between Devlin and the city prior to July 31st, and that moneys were due thereon and unpaid, it seems to us to be reasonably free from doubt that the true construction, regard being had to the terms of the assignments, is to confine those of Hart and Peirce to the contracts which had already been entered into and upon which moneys were then due, This construction is enforced by the conduct of the Mt. Morris Bank, which, though holding under a prior assignment, containing language similar to that employed in the Pierce and Hart assignments, understood, undoubtedly, that their assignment only related to contracts which at that time had been entered into between Devlin and the city, and from which moneys were due or would- grow due; for thereafter, and in October, they •obtained another assignment, with a view to having a claim to moneys earned upon the orders subsequent to August 23d; and it was under this latter assignment that they were allowed to share in the present fund.

There can be no question, in view of the numerous authorities in which the case of Field v. Mayor, 6 N. Y., 187, has been cited with approval, that the rule as therein stated as to what may be the subject of an equitable assignment is now settled. As therein said: “ Whatever doubts may have existed heretofore on this subject, the better opinion, I think, now is that courts of equity will support assignments, not only of choses of action, but of contingent interests and expectations, and of things which have no present, actual existence, but rest, in possibility only, provided the agreements are fairly entered into, and it would not be against public policy to uphold them.”

Under the law, therefore, it would have been entirely legal and valid for Devlin to have given an assignment to Hart and Peirce, which would have embraced the result of any subsequent orders under which work was done for the city, and by virtue of which they could have obtained a right to moneys becoming due under such orders. As already said, however, the question presented is, did the assignments from Devlin to Hart and Peirce expressly, or by implication, embrace or relate to the moneys which might result from work that he might be called upon to perform under •subsequent orders ?

Having in mind the prior contracts upon which moneys were due, and the terms of the assignments themselves, we think it reasonably certain that these assignments to Hart and Pierce only covered the contracts which were then in existence, and payments under which had not at the time been made. Much stress is placed by plaintiff upon the fact that prior to the date of his assignment the bond already referred to had been executed by Devlin, and from this the inference is sought to be drawn that it of itself created a contractual relation between Devlin and the city. We have not been impressed, however, with the force of this suggestion, because there was nothing in connection with the filing of the bond which in any way obligated the city to give Devlin any future work, but it placed the chy in a position that, if it should thereafter issue orders, and enter into a contract with Devlin, his bond would be answerable for the faithful performance of such contract. There was no contract between the city and Devlin covering the whole work, but as the evidence shows, and the law applicable to the issuing of such orders demonstrates,these orders were issued from time to time, as the exigency arose requiring the immediate repavement of streets; and under the law the work under such orders could not exceed in amount $1,000. When such exigency arose, it was only after issuing the requisition, and the filing of the certificate of necessity by the commissioner of public works, and the performance of the work required to be done, duly certified, that the obligation and contract to pay to Devlin the value thereof was assumed by the city. We think, therefore, that the learned trial judge was correct in holding that at the time the assignments to the plaintiff and Hart were made the subsequent contracts, out of which this fund was created, were not in existence, and that, as the terms of their assignments had reference to existing contracts, and not to future ones, they had no right to the money in dispute. It will thus be seen that we agree with the disposition made of the several claims by the trial judge, and the judgment appealed from should, therefore, be affirmed, with costs and disbursements.

Follett, J., concurs; Van Brunt, P. J., concurs in result.


text:
    Mart Ann Robinson, Pl’ff, v. Robert Govers, Ex’r, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Abatement and bevivor — Dower—Death op plaintipf — Memorandum op DECISION.
    A memorandum of decision of a motion to confirm the report of a referee in an action to recover dower, and directing the form of the order to be entered, not signed by the judge, is not a final judgment which will prevent the action from abating by the death of the plaintiff.
    Reargument of appeal from order granting leave to plaintiff’s executor to continue the action.

      Gratz Nathan, John C. Shaw and James E. Carpenter (G. Nathan, of counsel), for app’lts; John B. Pine (A. G. Fox, of counsel), for resp’t.
   Van Brunt, P. J.

Upon the previous argument of this appeal the court held that the order continuing the action should be reversed, upon the ground that by the death of the plaintiff the same abated, and it is not necessary to rediscuss the questions then considered and determined. But since said argument and decision a motion has been made to resettle the order confirming the referee’s report herein by inserting the following" recital therein before the operative part of the order:

“And a decision having been rendered herein by Mr. Justice Patterson on the 15th of February, 1892, in the words and figures following, to wit: The motion to confirm the report of the referee is granted, with the modifications hereafter suggested. The plaintiff should be allowed the costs of the action,, and an extra allowance of $150. Costs should not be awarded, the defendant, but the guardian ad litem should be compensated,, and fifty-five dollars is allowed him. These costs and allowances are not to be charged against the gross sum awarded to> the plaintiff, but in the same manner as if the property were sold. The defendants desiring to pay this gross sum must first-pay these costs, and then deduct them from the whole value of the property as fixed by the referee, and the dower interest may then be calculated, for the purposes of final judgment, on the balance remaining after such deduction is made. That seems to he the rule in cases in which the property is sold, and the proceeds brought into court, Schierloh v. Schierloh, 14 Hun, 572, and it may equitably be made applicable in a case of this kind.’ ”

The question presented is, the plaintiff having died subsequent to the filing of this memorandum by the court who heard the motion, and before its embodiment in an order, whether the situation has been in any respects changed from that which was presented by the record on the previous appeal. We think not. The memorandum in question was not the judgment of the court. It was simply an indication to the parties as to how the judgment to be entered upon the referee’s report should be framed, in order that it might be duly entered. This is apparent, if any indication was needed, from the language of the memorandum itself. It is that the plaintiff should be allowed certain things, that costs should be allowed to the defendant, that the guardian ad litem should be compensated, that the costs and allowances should not be charged, etc., clearly showing that the court, by the filing of this memorandum, which does not purport even to have been signed by the justice, was merely giving an indication as to how the order upon the motion should be framed; and, when the suggestions of the court were properly embodied in an order, then it directed its entry, which was the fact, because three days after-wards we find a formal order, entered by direction of the court, embodying the suggestions of tho memorandum. This memorandum, clearly, was not a final judgment which prevented the action from abating by the death of the plaintiff. The case of Knapp v. Roche, 82 N. Y., 366, holds that the memorandum of a decision handed down by the general term, although signed by one of the judges, was not a judgment, but it was a mere authority to enter a judgment; that a formal judgment must be prepared, entered in the judgment book, and attested by the clerk’s signature, and a copy thereof annexed to the appeal papers, to constitute the judgment roll in accordance with the provisions of the Code. So in the case at bar the memorandum in question was not an order. It did not pretend to be an order. It was a mere memorandum determining what should be the form of the order to be entered upon the motion in reference to the referee’s report. We think, therefore, that the position of the case remains unchanged ; and, for the reasons stated in the opinion previously given upon the original appeal, the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

O’Brien and Follett, JJ., concur.

       See 48 St. Rep., 861.