author: Hardin, P. J.

text:
    James Duell v. Francis Alvord. Silas Duell, as Assignee, etc., of James Duell, Resp’t, v. Charles G. Alvord, as Adm’r, etc., et al., Appl’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1886.)

    Execution—Against the estate of a deceased judgment debtor— Cannot be allowed to issue until after three years have elapsed since the issuing of letters testamentary and of administration—Code of Civil Pro., § 1380.
    Under section 1380 of the Code of Civil Procedure, an order or decree granting leave to issue an execution upon a judgment recovered against a person who has died since the time of its recovery cannot he made by the court from which it is to issue, nor by the surrogate’s court, which has granted letters testamentary or of administration upon the estate of the deceased judgment debtor, until the expiration of three years after such lette.s have been duly granted upon the estate of the decedent.
    Appeal from an order of the Onondaga special term and from a decree of the surrogate of said county, allowing an execution to issue on a judgment docketed in this action in favor of plaintiff against defendant, in the county clerk’s office of said county, under Code Civil Procedure, § 1380.

      Hiscock, Gifford & Doheney, for appl’ts; Goodelle & Nottingham, for resp’t.
   Hardin, P. J.

We are of the opinion that there is no force in the criticism made to the certificate of the sheriff with respect to the service of the papers, wherein he refers to them as “the within summons and complaint.”

First. such objection appears by the record to have been taken at special term. Had the objection been taken there it might have been obviated. It is too late to raise it for the first time upon appeal, besides the order recites “on the reading of the affidavits and notice of motion, and coiisidering the affidavits and the order and the appearances, it is obvious that Mr. Gifford has appeared as counsel for the parties opposing the motion, and that when the order recites “that he was counsel for the defendant in oppositian thereto,” it indicates that he appeared generally in opposition to the motion. We think the order ought not to be disturbed, because of the defect in the sheriff’s certificate of service.

Second. We are of the opinion that the affidavit to the effect “that the judgment remains wholly or partly unsatisfied,” answers the requirement cf section 1381 of the Code of Civil Procedure. The section does not expressly require the affidavit to be made by a party to the judgment record. It was- made by the assignee, who states positively, viz.: “That said judgment is wholly unsatisfied and unpaid,” besides it does not appear that the affidavit was objected to as insufficient on that ground at the special term. The section from which we have quoted expressly authorizes the use of an affidavit to satisfy the court that the judgment remains unpaid. Wadley v. Davis, 30 Hun, 570. Again, in the, opposing affidavits it is not aheged that the judgment has been paid. We think under the circumstances the moving affidavit should be held sufficient in that regard.

Third. If the property of the judgment debtor was fraudulently conveyed with the intent to hinder, delay and defraud the judgment creditor, such fraudulent conveyance would, not prevent the judgment from being a lien upon the real estate Chautauqua Bank v. Risley, 19 N. Y., 369.

Fourth. Section 1251 of the Code of Civil Procedure declares a judgment to be a lien upon the debtor’s property “which is docketed in a county clerk’s office as prescribed,” and declares that such judgment “binds, and is a charge upon for ten years after filing the judgment-roll and no longer, the real property and chattels real, in that county which the judgment debtor has at the time of so docketing it,' or which he acquires at any time afterwards and within fen years.”

That section is the same in substance as the provisions of the Revised Statutes. 2 R. S., 359, § 3; 3 id. (5th ed.), 637, § 4; and the Code of Pro., § 282. The provision found in section 1380 of the Code of Civil Procedure in the language, viz.: “Where the lien of the judgment was created as prescribed in section 1251 of this act, ” we think refers to the manner of obtaining the lien, and not necessarily to the fact that the -lien was obtained after the passage of section 1251, or under its provisions.

We are inclined to the opinion that the limitation found in section 1380 of the Code of Civil Procedure, and incorporated therein by virtue of chapter 542 of the Laws of 1819,' declaring that “neither the order or the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent,” applies to the case in hand. The earlier part of the section provides that ‘ ‘ the execution shall not be issued unless an order granting leave to issue it is procured from the court from which the ■execution is to be issued, and a decree to the same effect is procured from the surrogate’s court of the state which has duly granted letters of administration or letters testamentary upon the estate of the deceased judgment debtor,” which language prohibits the issuance of an execution without the order and decree, the order of the court in which the judgment is recovered, and the decree of the surrogate having jurisdiction of the estate of the deceased judgment debtor. Effect may be given to the limitation contained in the earlier provision of the section by assuming that it deals with executions already issued in the hands of the sheriff at the time of the death of the judgment debtor. However it is not necessary, for the purpose of the case in hand, to pass upon the force and effect of the earlier part of the section.

We are of the opinion that the limitation found in that part of the section which comes from the amendment of 1879 must be obeyed, and that “neither the order or the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent.” Our attention is directed to Kerr v. Kreuder, 28 Hun, 452. The question here involved was not necessarily involved in the decision of that case. The judgment debtor died on the lath of February, 1870, and it ¿loes not appear by the reported case that the attention of the court in pronouncing its decision of December, 1882, was called to the amendment of section 1380 found in the Laws of 1879. The language of Barnard, P. J., would seem to indicate that he dealt only with the provisions of section 1380 as they stood prior to the amendment of 1879, and it clearly appears that he did not consider the question now before us.

Prior to the adoption of the Code, if the judgment debtor died before execution sued out, an execution could only be had either against the personal representatives, or against heirs or terre-tenants upon scire facias. The writ of scire facias was abolished by tlie Code, and a provision was inserted in the Code that in case of the death of the judgment debtor after judgment, the heirs, devisees or legatees of the judgment debtors or tenants of real property owned by him, affected by the judgment, might, after the expiration of three years from the time of granting administration, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands. It was provided that the personal representatives might be summoned any time within a year after their appointment. Old Code, § 376.

In chapter 295 of the Laws of 1850 (found in 4 Edmund’s Statutes, 634), it was provided that notwithstanding the death of the judgment debtor after judgment, execution might be issued against any real property ‘ ‘ upon which such judgment shall be alien either at law or inequity,” in the same manner and with the same effect as if he were living, “ except that such execution cannot be issued within a year after the death of the defendant, nor in any case unless upon permission granted by the surrogate of the county who has jurisdiction to grant administration or letters testamentary on the estate of the deceased judgment debtor,” and such surrogate was authorized to “make an order granting permission to issue such execution as aforesaid.

It was held in Marine Bank of Chicago v. Van Brunt (49 N. Y., 163), that the act of 1850 was not in conflict with the provisions of the Code, or inconsistent with the remedy given by it, and that it was accumulative, adding “another restraint to those already existing.” Such was the condition of the law when section 1380 of the Code of Civil Procedure was adopted, and that section, as it appears by the note to it written by Mr. Throop, was modeled after the law of 1850.

In Roe v. Swezey (10 Barb., 247). decided in December, 1850, it was held that a suit to charge, the debts of the-ancestor upon property received by heirs-at-law could .not be brought within three years after granting letters testamentary or of administration upon the estate of the ancestor, and that in such a suit it was essential to establish,, among other things, “ that three years have elapsed after the granting of such letters and before the commencement of the suit.” That decision was based upon a construction of section 53, Revised Statutes (2 R. S., 109).

In June, 1885 (chap. 514), section 1380 of the Code of Civil Procedure was again amended by adding a provision that in case letters of administration “have not been granted within three years after his death by the surrogate court of the county in which decedent resided at the time of his death, or if the decedent resided out of the state at the time of his death, and letters testamentary or letters of' administration have not been granted within the same time by the surrogate court of the county in which the property, upon which the judgment is a lien is situated, such court may grant the decree where it appears that the decedent did not leave any personal property within the state upon, which to administer. In such case the lien of the judg ment existing at the decedent’s death continues for three years and six months as aforesaid.”

From a consideration of the law antecedent to the passage of the amendment in 1879, and from a consideration of the section as it now stands, we are of the opinion that the special term was not authorized to direct an execution against the real estate of the judgment debtor in the case before us, as the letters of administration were granted on the 13th of May, 1884, and three years had not elapsed prior to the beginning of the order brought before us for reviewal.

It may be observed that section 1251 of the Code of Civil Procedure went into effect May 1, 1877, and remained in effect until May twenty-second of that year, when, by chapter 318 of the Laws of 1877, it was suspended until September 1, 1877. The section was, therefore, in force May 7, 1877, when the judgment against the deceased debtor was recovered, and it may properly be said that the judgment takes force and effect under and in pursuance of section 1251 of the Code of Civil Procedure.

Our attention was called by the respondent to the case of Lichtenberg v. Herdtfelder (5 Civil Pro. R., 426), with the suggestion that a construction of section 1380, which we have given, might in some cases prevent the prosecution of a creditor’s action until the statute of limitations had run against ‘it. Case cited follows section 1871 of the Code of Civil Procedure, which declares that an execution must be-returned unsatisfied in whole or in part to enable a judgment creditor to maintain an action to compel the discovery of anything in an action.

It was also held in Adsit v. Butler (87 N. Y., 585), that in an action by a judgment creditor to set aside on the ground of fraud a conveyance of real estate by the debtor, the plaintiff must allege the issuing of an execution upon a judgment, and that the return of the execution unsatisfied is essential to give a court jurisdiction, or the action must-be brought in aid of the execution outstanding. It was-also held in that case that an allegation that the debtor is dead, and from the time of the rendition of the judgment until his death was wholly insolvent, are not sufficient to-dispense with the necessity of the issuing of an execution.

The answer to the position of the respondent is found in the circumstance that section 1380 contains the provision extending the lien of the judgment existing at the decedent’s death “for three years and six months thereafter, notwithstanding the previous expiration of ten years from the filing of the judgment roll.” It may be also observed, that the creditor of an estate who seeks to have property applied in payment of his debt, which has been fraudulently transferred by the intestate, has certain rights and remedies' provided by chapter 314 of the Laws of 1858. The fact that a conveyance which is fraudulent was made prior to the recovery of the judgment, if the claim existed previously, does not defeat the remedy of the judgment creditor to have such conveyance stricken down and it removed as an obstruction. Bank of Rondoul v. Dreyfus, 14 Weekly Dig., 160.

We are of the opinion that the order of the special term was premature and should be reversed, with ten dollars costs and disbursements.

Boaruman and Follett, JJ., concurred.


source: Caselaw Access Project

author: Bockes, P. J.

license: Public Domain

text:
    William H. Dick, App’lt, v. Henry W. Livingston, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed September, 1886.)

    Appeal—Notice of—Upon appeal from a final judgment, an interlocutory JUDGMENT CAN NOT BE RECOVERED UNLESS SUCH INTENTION IS STATED IN THE NOTICE OF APPEAL—CODE ClV. PRO. § 1301.
    A demurrer to the complaint in an action was sustained and decision rendered that the defendant was entitled to judgment on the demurrer, with costs, with liberty however to the plaintiff to amend the complaint on the payment of costs, and directing the entry of an interlocutory judgment in accordance with such decision. Costs were taxed by the defendant and entered. The interlocutory judgment directed by the, decision, and the t rms upon which an amendment was permitted not being complied with in due time fipal judgment was entered, dismissii g the complaint with costs. The plaintiff appealed to the general term from such final judgment, but made no mention in the notice of appeal of an intention to review the int rlocntory judgment on appeal. Held, that the appellant was precluded from reviewing the interlocutory judgment. Code Civil Pro. §1301.

      Beale & Beale, for app’lt; R. E. Andrews, for resp’t.
   Bockes, P. J.

Appeal from a final judgment in favor of the defendant on demurrer to the complaint.

The point is taken that the appellant cannot be heard on the merits, for the reason that the notice of appeal does not state an intention to review the interlocutory judgment in pursuance of which the final judgment appealed from was entered. See Code Civil Procedure, § 1301. This point of objection necessitates a recital of the several steps taken in the case to final judgment and to the appeal therefrom.

The issue of law raised by the demurrer was disposed of at special term by a decision declaring the defendant entitled to judgment on the demurrer, with costs, with liberty, however, to the plaintiff to amend the complaint on payment of costs, and directing the entry of an interlocutory judgment in accordance with such decision. The defendant thereupon procured his costs to be adjusted and entered an interlocutory judgment as authorized by such decisión, and the terms, upon which an amendment was permitted, not having been complied with in due time and manner, as provided in the interlocutory judgment, he then entered final judgment dismissing the complaint, with •costs. Thereupon the plaintiff appealed to the general term from such final judgment, but made no mention in the notice of appeal of an intention to review the interlocutory judgment on the appeal.

Now, it seems that the defendant was strictly regular in his practice. The decision disposing of the issue of law was strictly in accordance with section 1021 of the Code of Civil Procedure, as will be seen on reference to it in the appeal book.

It declared the rights of the parties on the demurrer, directed the entry of an interlocutory judgment, with the provision as to the right to amend the complaint, and also directed final judgment in case of failure to comply with its provisions, giving the right to amend.

The decision was not appealable, but stood as does a decision by a referee or a judge on a trial without jury, which declares ■ the rights of the parties and directs judgment. Section 1021. So here it gave direction for the entry of an interlocutory judgment, from which an appeal might be taken pursuant to section 1319 of the Code. But here no appeal was taken from the interlocutory judgment, and its provisions permitting an amendment of the complaint not being complied with, final judgment was in due time and form entered, as theretofore ha and by the interlocutory judgment was authorized and directed. From this final judgment. the present appeal was taken, but without stating in the notice of appeal an intention to review the inteiiocutory judgment, aiad consequently by sections 1301 and 1316 of the Code, the appellant is precluded from reviewing such judgment.

Thus the interlocutory judgment stands as the settled law of the case untouched by the appeal. Patterson v. McCunn, 38 Hun, 531, on page 534; see, also, other cases there cited; also Reese v. Smyth, 95 N. Y., 615. The decisions in these cases are full to the point, and render further discussion of it out of place, and they also go to the length of holding that the notice of appeal in this case is not even open to amendment by inserting therein an intention to bring up the interlocutory judgment for review, were a motion made for that purpose. Piper v. Van Buren, 27 Hun, 381, remarks of Hardin, P. J., on pages 388, 389; Fry v. Bennett, 16 How., 385, and other cases above cited.

There are two modes provided for reviewing an interlocutory judgment like the present. One on direct appeal therefrom, another on an appeal from the final judgment, with a specification in the notice of appeal of an intention to bring up the interlocutory judgment for review. This, however, permits but one examination of the merits by the general term, as will be seen on refei ence to section 1316 of the Code. We deem it entirely plain that the merits of this case, on the issue of law, are not before the court on' this appeal. The interlocutory judgment stands on the record as the law of the case. The appeal does not bring it up for examination, inasmuch as an intention to review it is not specified in the notice of appeal. The interlocutory judgment remaining untouched by the appeal, the final judgment in pursuance of it is-right and must be affirmed.

It may not -be out of place to observe that we are of the opinion, after an examination of the case on the merits, that it was correctly- disposed of by the special term, and for the reasons given in the opinion then written.

Judgment appealed from affirmed, with costs.

Present—Bockes, P. J., Landón and Parker, JJ.


author: Follett, J.

text:
    Harvey M. Smith, Resp’t, v. Elisha A. Matteson, Appl’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1886.)

    Negligence—Action fob damages on account of—Non-suit.
    A cow belonging to the defendant was being led by liis servant, a boy, between fourteen ai,d fifteen years of age, along a country highway. Accompanying an i assisting him was another boy, between sixteen and seventeen years of ag\ The plaintiff, while riding in a buggy drawn by one horse, overtook them, and in attemp ing to pass, the buggy and cow collided, and the plaintiff sustained injuries thereby. He brought action to recover damages, on the ground that the defendant was negligent in allowing a boy of that age to lead a cow along a country highway. Held, that the trial court erred in refusing a non-suit.

      Thomas F. Kearns, for appl’t; T. H. & N. F. Breen, for resp’t.
   Follett, J.

October 11, 1884, a cow owned by defendant was being led by defendant’s servant, a boy between fourteen and fifteen years of age, along a country highway. This boy was accompanied and assisted by another boy between sixteen and seventeen years of age. The plaintiff, while riding in a buggy drawn by one horse, overtook and, in attempting to pass the cow, the buggy and cow collided and the plaintiff was injured.

The action was brought to recover the damages sustained by the injury, upon the theory that it was actionable negligence to. permit a boy of this age to lead a, cow along a country highway. Upon this theory the action was tried, and upon this theory the verdict rests.

The defendant had the same right to use the highway for the purpose of driving his cow that the plaintiff had to use it for riding. No contractual relations existed between the parties, neither owing any duty to the other except to use proper care in the use of the public highway. Whether the defendant was negligent in permitting this boy to lead this cow is to be determined^ by the events occurring and facts existing before the accident. The undisputed evidence is that the cow, previous to the occurrence, was gentle. There is no evidence that the cow was vicious or difficult to lead on the occasion in question, or even after the accident. There is no evidence that the boy employed was careless in the discharge of' his duties, or in anywise incompetent to perform such service; and I am unable to discover any evidence that the defendant was negligent in the selection of- his servant. There is no evidence that the boys did, or omitted an act which caused the accident; nor is there evidence from which it can be inferred that two mature men could have done more or less than was done by the boys. No fact showing a lack of skill or judgment on the part of the boys appears in the case.

It is easy to be wise after an event; but whether the defendant was negligent must, as before _ stated, be determined by what happened before the accident; and I doubt if the most prudent farmer would have, before the accident thought or suggested that it was negligent to trust two boys, working on a farm, to lead this cow along a country highway in the manner described. It seems to me that the judgment in this case extends the doctrine of liability for non-colitractual actionable negligence far beyond the .doctrine of any reported case, and, if sustained, persons may be held liable for accidents which could not be forseen and guarded against by the most prudent.

The trial court erred in refusing to non-suit, and the judgment should be reversed and a new trial granted, with costs to abide the event.

Hardin, P. J., and Boardman, J., concur.


author: Rucee, Ch. J.

text:
    Harry M. Sims, Ex’r, Resp’t, v. United States Trust Company of New York, Appl’t.

      (Court of Appeals,

      Filed November 23, 1886.)

    1. Banks and banking—Verbal directions to agent making deposit —Duty op bank receiving deposit».
    The plaintiff’s testator delivered to one 0. his check on the People’s Bank, payable to the order of defendant, with verbal direction to deposit the same to his credit with defendant. Instead of so doing, 0. delivered it to defendant, but requested and received from it a certificate of deposit, payable to himself as trustee for Dr. Sims, and shortly thereafter drew the money and converted it to his own use. Held, that the language of the check, making the funds payable only upon the order cf the defendant, imposed upon defendant the duty of seeing- that they were not through its agency improperly disbursed after it had received them.
    2. Same—Evidence—-Power oe attorney—When not admissible.
    On the tr.al the defendant offered in evidence a power of attorney from Dr. Sims to 0. (dated twelve years previous), which, so far -as appeare i, had always remained in the custody of the People’s Bank and never came to the knowledge of defendant until after the transaction in question. Upon objection by plaintiff it was excluded by the court. Held, not to-be error.
    3. Power of attorney—Construction of. -
    A certain clause in the power imported a .general power to collect and receive all moneys due and to become due upon “rents, accounts, bonds and mortgages or otherwise.” Held, that the words “or otherwise” are limited in their meaning by the words preceding them, and refer to debts, and liabilities of a similar character and cannot he held to extend to the collection of moneys already. received and deposited in a solvent trust, company.
    4. Same—Custom—"When customers bound by.
    A custom of a trust company to require the signature of a customer to-accompany a deposit cannot affect its liability to the real owner for moneys actually received by it or the legal effect of a transaction by which it came into the-possession-of -another’s property.
    Appeal from a .judgment of the supreme court, general term, first department, affirming a judgment of the circuit court in favor of'plaintiff in an action to.recover a deposit of money.

      William A. 'W. Stewart, for appl’t;. J. Alfred Davenport and Edward-Q. Perkins, for resp’t.

       Affirming, 38 Hun., 639, mem.

   Rucee, Ch. J.

On the 15th of November; 1882, the-plaintiff’s testator, J. Marion Sims, .delivered to one Crow-ell his-check on the People’s Bank of the city of New York, payable to the order of the defendant for $5,000, with verbal directions’to deposit the same to his .credit with the-, defendant. -Instead- of doing as directed, Crowell delivered the check to the defendant, but requested and received from it a certificate of deposit payable to-himself as trustee for Dr. Sims, -and shortly thereafter drew the money thereon, and converted it to his own use. The defendant collected the money from the People’s Bank upon Dr. Sims’ check, and the main question in the case is, Whether it had authority to make the payment it did to Crowell?

It claims to :have acted in so doing upon the strength of an alleged custom .among hanks authorizing such a payment. Upon the trial, however, the -proof in -relation to-such custom was --conflicting, and the question as to its existence was submitted to the jury and found against the defendant’s claim.

Upon the transaction, with this feature eliminated, there would seem to be no doubt of the defendant’s -liability. The check, upon its face, imported the ownership of the-moneys represented in it by Dr. Sims, and Ms desire that its custody should be transferred from the People’s Bank to the .defendant. This certainly did not warrant the defendant in supposing that Dr. Sims thereby intended to pay $5,000 to Crowell, or place him, for any purpose, in possession of the fund. If he had so intended, the check would have been made payable to Crowell’s order, and there would have been no need of the agency of the defendant in the transaction. The use of the defendant’s name as payee of the check mdicated the drawer’s intention to lodge the moneys in its custody, and place them under its control, and notlring further than this was inferable from the language of the check. The check, by its terms, authorized the defendant to withdraw from the People’s Bank a certain sum, for a purpose not disclosed, but fairly inferable from the nature of the defendant’s business.

The defendant could have refused to receive the deposit, or act as Dr. Sims’ agent in transferring the funds from one custodian to another, but, havmg accepted the office of so doing, it was bound to keep Dr. Sims’ moneys until it received his directions to pay them out. The language of the check making the funds payable only upon the order of the defendant imposed upon it the duty of seeing that they were not, through its agency, improperly disbursed after it had received them. They could not safely pay out such funds except under the direction of their lawful owner. This they have never received, unless the proof hereafter referred to shows such authority.

On the trial the defendant offered in evidence a power of attorney from Dr. Sims to Crowell, which, so far as appears, had always remained in the custody of the People’s Bank, and never came to the knowledge of the defendant until after the transaction's in question. Tliis evidence was objected by the plaintiff, and excluded by the court, to wMch ruling the defendant excepted. TMs exception presents the principal question in the case. The power of attorney read as follows:

“Know all men by these presents, that I, J. Marion Sims, of the city of New York, have made, constituted, appointed, and by these presents do make, constitute, and appoint, Gilbert L. Crowell, of the same place, my true and lawful attorney, for me, and in my name, place and stead,, to collect and receive all sums of money now due, or hereafter to become due, to me, whether from rents, accounts, bonds, and mortgages, or otherwise, and, upon payment thereof, to give good and sufficient receipts or other dis1charges therefor. Also to transact all my ordinary bank business at the People’s Bank, in the city of New York, to draw checks on said bank, and to indorse checks, promissory notes, drafts, and bills of exchange for collection or deposit. This power of attorney to remain in forge until said bank is notified of its revocation, giving and granting unto my said attorney full power and authority to do ana perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of revocation; hereby ratifying and confirming all that my said attorney, or his substitute, shall lawfully do, or cause to be' done, by virtue hereof.”
“In witness whereof I have hereunto set my hand and seal on the fifth day of April, 1870.
“ J. MARION SIMS. [L. S.]
[50-cent internal revenue'stamp.]
“Sealed and delivered in the presence of Charles S. Busitnell.”

We are of the opinion that the exception was not well taken. At the time of this transaction Crowell made no claim of acting as the general agent of Sims, and the defendant had no reason to suppose that he was acting in such a capacity. It dealt with him solely upon the faith of the apparent authority inferable from his possession of the check, and, if it was mistaken in supposing that that fact gave him authority to dispose of the fund, there is no reason, in equity or justice, why it should not be held to the ■consequences of its error. Assuming, for the present, that the power of attorney gave Crowell authority in fact to withdraw the deposit from the defendant, yet the defendant did not rely upon or act on this authority. It is by no means certain, if the bank had required Crowell to show his authority to dispose of Dr. Sims’ money, an examination of the power would have led to a refusal to pay them out on a stale paper, antedating the transaction by upwards of twelve years, and couched, to say the least, in ambiguous language. Further inquiry would undoubtedly have led to a discovery of Crowell’s abuse of his employment, and the danger threatening the security of the fund intrusted to him to deposit. The loss of the moneys in question is directly traceable to the defendant’s act in paying Crowell upon an unwarranted assumption of his authority to receive them, and their neglect to investigate the extent of his power.

But, however this may be, we are of the opinion that the power did not in fact authorize Crowell to withdraw the ■deposit. The defendant is not even entitled to invoke the "benefit of the rule requiring the language of a written instrument to be construed not strictly against its maker, for it did not pay the money upon a consideration of its ¡provisions, ana it stands now upon the authority which the power in fact gave to Orowefi. If we regard the authority intended to be conveyed by the first paragraph of the power alone, it would hardly seem that it embraced within its ■ terms authority to withdraw deposits or change investments; but, when considered in the light of the rule restricting the meaning of general words by the signification of those associated with them, it seems such authority was still further removed from the intention of the parties. The clause itself imports a general power to collect and receive all moneys due, and to become due, upon “rents, accounts, bonds, and mortgages, or otherwise,” and evidently refers to such collections of moneys as would be within the ordinary duties of a collecting agent of a business man.

Under well settled rules, the words, “or otherwise,” are limited in their meaning by the words, “ rents, accounts, bonds and mortgages ” preceding them, and refer to debts and liabilities of a similar character, and cannot reasonably be held to extend to the collection of moneys already received and deposited in a solvent institution subject to the immediate disposition of the owner. To say that the removal of a deposit with a solvent trust company, under the claim that the agent was thereby engaged in the business of collecting his principal’s credits, would seem to be in violation of the clear meaning and intent of an authority to transact only collecting business. Familiar illustrations of the application of the rule of noscitur a sociis occur in Mangam v. City of Brooklyn (98 N. Y., 595), McGaffin v. City of Cohoes (74 id., 389), Corning v. McCullough (1 id., 47), and fully authorize the construction which we have given to this power.

When, however, this clause is considered in connection with the subsequent provisions of the power, all serious doubt of its meaning would seem to be removed. The last clause specially treats of the powers intended to be conferred upon the agent in dealing with banks in the name of his principal. If such duties had been supposed to be included in the first paragraph, then the last one has no office to perform.- If the authority “to collect and receive all sums of money now due, or hereafter to become due,” gave Crowell power to transfer and remove trust deposits, placed by way of investment or otherwise in banking institutions, certainly the speciál provision authorizing him to transact such business with the People’s Bank was unnecessary and useless. Its insertion indicates unmistakably the understanding of the parties that the authority was not supposed to be embraced in the first clause of the instrument, and was specially required to be inserted in order to enable him to transact any banking business. Well-settled rules of construction require us to give effect to every part of the instrument, and this can be done only by holding that the last clause was intended to embrace all of the authority designed to be conferred upon CroweH to deal with banks in Dr. Sims’ name. This view is also strengthened by the application of the rule requiring grants of power to be so-construed as to exclude the exercise of a power in any other form or manner than that specially authorized. The clause of the power conferring authority to transact business with the People’s Bank, and with that bank alone, impliedly prohibited such transaction with any other banking institution.

We, therefore, think that the - evidence in question was-properly excluded.

The circumstance that it was the custom of the trust company to require the signature of a customer to accompany a deposit was one adopted for the safety and protection of the bank, which they were at liberty to enforce or omit as it deemed best under the circumstances. It could not affect its liability to the real owner for moneys actually received by it, or the legal effect of a transaction by which it came into the possession of another’s property.

We think the evidence of ratification by Dr. Sims of the-act of Crowell in making the deposit in question as he did, was not sufficient to authorize the submission of-that question to the jury.

On the whole case we are of the opinion-that no error was committed on the trial, and that the judgment should be affirmed.

ATI concur, .except Raparlo, J., not voting.


author: Hardin', P. J. Earl, J.

text:
    Estate of Elias W. Cady, deceased.

      (Court of Appeals,

      Filed November 23, 1886.)

    Executors and administrators—Rehoyad of—What sufficient cause.
    Where upon the probate of decedent's will objection was made to 0. 0., one of those appointed executors, acting -as such or as trustee under the will, the grounds alleged being drunkenness, improvidence, insolvency and personal hostility and unfriendliness to the objectors; and the evidence showed that for a number of years he had been a greater part of the time under the decided influence of intoxicating liquors, sometimes indulging in protracted sprees and ending in delirium tremens; and that within the same time he had become insolvent, having wasted his property, valued at $29,000. Held, that such fact abundantly sustained -the finding of the surrogate, which was that O. 0. “is incompetent to-act as executor and testamentary trustee under the will.”

      Appeal from a judgment of the supreme court, general term, fourth department, affirming a decree of the surrogate’s court refusing letters testamentary to Charles Cady as executor under the will of Elias W. Cady
    The opinion of Hardest, P. J., rendered at the general term, contains all the facts and presents all the questions raised, and is therefore given in full, as contained in 36 Hun, 122, as follows:
    “Appeal from a decree of the surrogate of Tompkins county, refusing letters testamentary to Charles Cady as executor of Elias W. Cady, deceased, and also removing him from the position of testamentary trustee under the said last will and testament of said Elias W. Cady.
    Elias W. Cady died in the spring of 1888, leaving a last will and testament, executed in 1854, in and by which he devised the homestead property of nearly 200 acres, upon certain conditions, to Charles Cady, and naming Charles and his brother Oliver as executors and trustees.
    Subsequently, and on - December 30, 1856, and on July 8, 1875, the testator made codicils to his will, diminishing the devise to Charles by making increased charges thereon for the benefit of testator’s daughter Mary.
    In June and September 1881, the testator conveyed to Mary Cady the homestead, being that property which had been devised to Charles, subject to certain payments to be made to her, thus leaving Charles without any interest in the will, except as executor and trustee under the same.
    About 400 acres of land, known as the Cramer farm, were devised to Charles Cady and Oliver Cady, in trust, to sell the same within five years and out of the proceeds to pay their sister Mary Cady $3,000, and divide the balance equally between Mary and her two sisters Harriet S. Ferguson and Rebecca A. Dwight
    Upon the probate of the will, Oliver refused to act as executor, thereby leaving Charles Cady as sole surviving executor; and thereupon the three sisters objected to their brother Charles acting as executor and their trustee, upon the ground of his alleged drunkenness, improvidence, insolvency and personal hostility and unfriendliness to them; and upon the further ground that he was seeking to injure the estate by inducing the creditors to levy upon all the personal property left by his father, claiming it belonged to him.
    The objections were in writing and were verified.
    During the progress of the trial had thereon before the surrogate, Harriet S. Ferguson withdrew her objections.
    The surrogate found: “That Charles Cady, for several years prior to the spring of 1880, had been in the habit of using intoxicating liquors, occasionally becoming intoxicoted thereby; but that about the spring of 1880 such use became much more frequent than theretofore, so that a greater part of the time he was under the decided influence of intoxicating liquors, sometimes indulging in protracted sprees and ending in delirium tremens, but that for several months prior to, and especially during the pendency of the present proceedings, that indulgence has been less open and excessive than theretofore. That in the year 3879 Charles Cady was a man of means, he himself estimating his property at that time at about $29,000; that since 1879 •he has become insolvent and unable to pay his debts.”
    As a conclusion of law, the surrogate found, first: “That said Charles Cady, by reason of improvidence and habitual drunkenness, is incompetent to act as executor and testamentary trustee under the will and codicils of the said Elias W. Cady, deceased; that a decree should be entered denying letters testamentary to said Charles Cady as executor, and also removing him from the office of testamentary trustee under said will.” This decision Was made and filed March 21, 1881.
    Upon the hearing there was evidence tending to establish that Charles Cady induced the creditors to levy upon and sell the personal property upon the homestead, upon an avowal that it belonged to him and that litigation would be necessary to settle the rights of the estate and the legatees in the property.
    There was also a great contrariety of evidence touching the habits, acts and conduct of Charles Cady, covering a period of several years ■ prior to the 28th of April, 1883, offered by the objectors to sustain their allegations; and also considerable evidence was offered by the appellant to overthrow the testimony offered by the objectors, and in this evidence very many contradictions are found, not necessary to be referred to in detail.

       Affirming 36 Hun, 122.

   Hardin', P. J.

Section 3 of the Revised Statutes, as amended by chapter 79 of the Laws of 1873, provides as follows, viz.: “No person shall be deemed competent to serve as an executor, who at the time the will is proved * * * upon proof, shall be adjudged by the surrogate to be incompetent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence or want of understanding.” 3 R. S., (7th ed.) 2289. Section 2636 of the Code provides that, after the proof of a will, letters testamentary shall be issued. to the person or persons named in the will unless a person interested, or a creditor in the estate, files an affidavit, setting forth specifically one or more legal objections to granting the letters to one or more of the executors, or stating that he is advised and believes there are such objections, and that he intends to file a specific statement of the same. It is provided in section 2637 that “the surrogate must inquire into an objection filed, as provided in the last section, and for that purpose he may receive proof by affidavit, or otherwise, in his discretion. If it appears that there is a legal and sufficient objection to any person named as executor in the will, letters should not be issued to him except as prescribed in the next section.” It may be observed that this section provides that investigation may be had upon proof by affidavit, or in such other manner as in the discretion of the surrogate shall be allowed. Manifestly it was the intention of the legislature to provide for a somewhat speedy and summary determination of the questions raised by objections made to the competency of a person to serve as' executor. In McGregor v. Buel, where the question under consideration was whether special letters of administration should be issued or not, to preserve the property pending an appeal from the probate of a will; at page 169, 24 N. Y., Judge Denio observes, viz.:

“ The statute, in terms, makes the granting.of such letters discretionary, and the propriety of issuing or holding them is plainly dependent upon the exigencies of the estate, the amount and situation of the estate and other circumstances / which require to be judged of summarily, and are not suitable to be litigated through the courts upon appeal. The determination of the surrogate upon such questions is, as it should be, summary and exclusive.” While that authority is not precisely in point upon the question now before us, we think'the quotation not inopportune, as after a full consideration of the great volume of evidence taken before the surrogate in this case, we are disinclined to disturb the findings of fact made by the learned surrogate; he saw the witnesses, heard them testify, and upon a question involved in so much conflict, was better prepared to reach a correct result than we can be by scanning the evidence found in the appeal book. The primary question to be considered upon all the evidence before the surrogate was whether or not the improvidence of Charles Cady was shown to be such that the surrogate might properly adjudge that he was incompetent to execute the duties of the trust conferred upon him by the will. In Coope v. Lowerre (1 Barb. Ch., 45) the chancellor says, viz.: “The improvidence which the framers of the Revised Statutes had in contemplation as a ground of exclusion is that want of care or foresight in the management of property which would be likely to render the estate and effects of the intestate unsafe and liable to be lost or diminished in value by improvidence in case administration thereof should be committed to such improvident person.”

The principle of exclusion of this part of the statute is based upon the well known fact that a man who is careless and improvident, or who is wanting in ordinary care and forecaste in the acquisition and preservation of property, for himself, cannot with safety be intrusted with the management and preservation of the property of others. In McMahon v. Harrison (6 N. Y., 443), it was held that the fact that a man was a professional gambler is presumptive evidence of such improvidence as to render him incompetent to discharge the duties of executor or administrator, and the definition which we have quoted from the chancellor, quoted in Coope v. Lowerre (supra), was there approved, and the judgment of the court was, that such an improvident person ought not to be intrusted with an estate. In Emerson v. Bowers (14 N. Y., 449), the court, in speaking of improvidence, says: The term evidently refers to habits of mind and conduct which become a part of the man, and render him generally, and under all ordinary circumstances, unfit for the trust or employment in question. That definition was referred to approvingly by the court in Freeman v, Kellogg, 4 Redf., 224. Under the interpretation of the statute given by the authorities to which we have referred, we think the evidence before the surrogate añíply justified him in concluding that the executor, by reason of his improvidence, was incompetent to execute the duties of the trust, and.that he was justified in withholding letters testamentary from him. It was urged, on the argument before us, that considerable force should be given to the fact that the testator had selected the executor. In considering that-fact it must be borne in mind that subsequent to 1854, by virtue of codicils and conveyances made by the testator in his lifetime, he gave a different direction to that portion of his estate which he originally intended for his son, Charles Cady, and that, at the time of the death of the testator, the only interest which remained under the will to pass to the executor was such as he might derive by virtue of the office as executor and trustee. However, it was decided by the chancellor in Wood v. Wood (4 Paige, 299), that no great significance attaches to the circumstance that the testator had named the executor. He says in that case, viz: “It is not material to inquire whether the testator was aware of the want of responsibility in the executor at the time of making of the will, for if the testator had been so improvident as to commit the administration of his estate to one whose circumstances are such as not to afford adequate- sécurity for the faithful discharge of his trust, the court must interfere for the purpose of protecting the estate against the effects of such improvidence.” This language of the chancellor was quoted approvingly in the case of Freeman v. Kellogg, 4 Redf., 225. We are disposed to approve of the sentiment expressed by the surrogate of New York county in Martin v. Duke (5 Redf., 601), wherein he says, viz: “Every case must be considered by itself; in each the question for the surrogate is, is it safe to put this estate in the hands of the person named as executor; can he be trusted to administer it faithfully and honestly as directed by the will?” We think in this case some attention should be given to the circumstance that two of the three beneficiaries under the will, who were adults and capable of understanding their legal rights, objected to the appointment of the person named as executor; also some attention to the threats shown to have been made by the executor in respect to his intentions in respect to the maladministration of tire estate if he should obtain possession of it.

While these considerations are not at all controlling, they may properly have had weight with the surrogate in considering the mass of evidence bearing upon the vital question submitted for his determination. We are not warranted in saying that the findings were erroneously reached by the surrogate, and that his determination in withholding letters testamentary was not in accordance with the weight of evidence before him. We, therefore, upon this branch of the case, sustain the result reached by the surrogate. Second. In respect to the removal of Cady as testamentary trustee, it may be observed that the surrogate came to the conclusion that he ought to be removed, at the same time that he reached the conclusion that he ought not to be appointed executor. Section 2817 of the Code of Civil Procedure authorizes the surrogate to make such a removal of a testamentary trustee, 'c where, if he was named in the will as executor, letters testamentary would not be issued to him by reason of his personal disqualifications or incompetency.” We are of the opinion that the evidence before the surrogate warranted the conclusion reached by him upon the question appertaining to the removal. The surrogate had jurisdiction to make the removal. Code Civ. Pro., § 2817; Savage v. Gould, 60 How., 254, and the citations founded therein in the opinion of Boardman, J. We are of the opinion that the rulings upon the hearing by the surrogate were sufficiently favorable to the appellant. Section 2637, as we have before intimated, provides for such an inquiry as was had before the surrogate, being upon affidavit or in such other maimer ■as within the discretion of the surrogate should be ordered by him. We have found no error in the course of the trial calling upon us to disturb the conclusion found by the-surrogate. We think the decree of the surrogate of Tompkins county should be affirmed, with costs against the appellant personally.”

George E. Goodrich and IT. V. Howland, for app’lt; 8. D. Halliday, for resp’t.

Earl, J.

We have carefully read and considered the evidence in this case, and find it to be abundant to sustain the findings of the surrogate; and those findings conclude-us. We agree in the main with the opinions pronounced by the surrogate and at the general term, and it would be a waste of labor to travel over the same grounds in the exposition of the law applicable to the facts of this case in. them so fully and ably set forth.

The judgment should be affirmed, with costs against the appellant.

All concur.


author: Andrews, J.

text:
    James G. Conner et al., Ex’rs of William C. Conner, Resp’ts, v. William Reeves et al., Imp’d, App’lts.

      (Court of Appeals,

      Filed November 23, 1886.)

    Bond—Covenant of indemnity against judgments, etc.—What constitutes breach —■ Judgment against covenantee conclusive, against covenantor in absence of fraud or collusion.
    The defendants' undertook to well and truly save, keep, and bear harmless and indemnify the plaintiff’s testator “of and from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments that may at any time arise,- come, accrue, or happen to be-brought against him for or by reason of the levying, attaching and making sale” under and by virtue of an execution issued to him as sheriff in a. certain action. Held, that the undertaking was not against damage but against liability by judgment as well. That in the absence of fraud or collusion between the parties, the covenantor in an action on a covenant of general indemnity against judgments is concluded by the judgment recovered against the covenantee, from questioning the existence or extent of the covenantee’s liability, in the action in which it was rendered.
    Appeal from a judgment of the supreme court general, term, first department, entered upon an order which affirmed a judgment entered on a verdict directed by the-court, and affirming an order denying a motion for a new trial.

      Edward D. McCarthy, for app’lts; Henry Thompson with Vanderpoel, Green & Cuming, for resp’ts.

       Affirming 35 Hun, 507.

   Andrews, J.

The obligors undertook to well and truly save, keep, and bear harmless and indemnify the plaintiff’s; testator, William C. Conner, “of and from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments, that may a,t any time arise, come, accrue, or happen to be brought against him, for or by reason of the levying, attaching, and making sale ” under and. by virtue of an execution issued to him as sheriff, on a judgment in favor of the defendant Dubee against one Fischer, of personal property claimed by third persons. The undertaking was not against damage merely, but was an indemnity against liability by judgment as well. Rockfeller v. Donnelly, 8 Cow., 628; Chace v. Hinman, 8 Wend., 452. By the general rule of law, a covenant to indemnify against a future judgment, charge, or liability is broken by the recovery of a judgment, or the fixing of a charge or liability, in the matter to which the covenant relates. When the covenant is one of indemnity against the recovery of a judgment, the cause of action on the covenant is complete the moment the judgment is recovered, and an action for damages may be immediately maintained thereon, measured by the amount of the judgment, and this although the judgment has not been paid by the covenantee, and although the covenantor was not a party or had no notice of the former action. The covenantor in an action on a covenant of general indemnity against judgments is concluded, by the judgment recovered against the covenantee, from questioning the existence or extent of the covenantee’s liability in the action in which it was rendered. The recovery of a judgment is an event against which he covenanted, and it would contravene the manifest intention and purpose of the indemnity to make the right of the covenantee, to maintain an action on the covenant, to depend upon the result of the retrial of an issue, which, as against the covenantee, had been conclusively determined in the former action; 1 ‘always, however, saving the right, as the law must in every case where the suit is between third persons, to contest the proceeding on the ground of fraudulent collusion for the purpose of charging the surety.” Cowen, J., in Douglass v. Howland, 24 Wend., 55. The general doctrine above stated is fully settled by authority. Chace v. Hinman, supra; Gilbert v. Wiman, 1 N. Y., 550; Methodist Churches v. Barker, 18 id., 463; Rapelye v. Prince, 4 Hill, 120; Insurance Co. v. Wilson, 34 N. Y., 280; Douglass v. Howland, supra.

This case, however, presents a feature which, so far as I know, is not found in any of our reports. The judgment in the action of Kahrs against the sheriff was entered by consent. The action, after issue had been joined, was put on the calendar, where it remained for several months. Dubee, one of the obligors on the indemnity bond, and the plaintiff in the execution against Fischer, was notified of the action, and was consulted by the sheriff in respect to the litigation. It was found that there was difficulty in procuring witnesses to establish the defense, and it was finally agreed between Kahrs, the sheriff, and Dubee that judgment should be taken in the action in favor of Kahrs for §500; and pursuant to'this agreement, and by the consent of the parties thereto in open court, judgment was entered. The question is whether a judgment, obtained under these circumstances, established a breach of the contract of indemnity, and justified the court in directing a verdict for the plaintiff.

The defendants neither proved, nor offered to prove, that there was any defense in fact to the action of Kahrs, or that the judgment exceeded the sum which Kahrs was entitled to recover against the sheriff, or that the agreement for the adjustment of the amount, or the consent to the entry of the judgment, was fraudulent or collusive. The appellants must fail on this appeal, unless they can maintain the proposition that the judgment against the sheriff furnished neither conclusive nor presumptive evidence of a breach of the condition of the bond; or, in other words, that a judgment rendered by consent was not a judgment or adjudication, within the meaning of the bond. The question is not free from difficulty, but we are of opinion that the judgment, in the absence of any evidence of fraud or collusion, or any suggestion that there was a defense to the action against the sheriff, although entered upon consent of the parties to the action, presumptively, at least, established the liability of the defendants. The defendants executed the bond at the request, and for the accommodation, of Dubee. Its obvious purpose was to secure the sheriff against apprehended litigation as to the title to the property seized under the execution against Fischer. The bond was given to indemnify the sheriff against suits and judgments to which he should be a party, growing out of that proceeding. The appellants did not make it a condition of their liability that they should have notice. They were satisfied that the sheriff should conduct litigations founded upon his seizure of the property, without reserving any right of intervention. They committed the matter to his discretion, not, indeed, by express words, but by necessary implication. It is true that the sheriff was not, in a legal sense, the agent of the sureties to manage suits brought against him; but the sureties agreed that no judgments should be recovered against him therein. They did not Emit the indemnity to- judgments .obtained upon an actual trial, or after a contest in court, and they did not undertake to divest the sheriff of the power incident to his position as a party to settle and adjust .litigations instituted against him, in view of the exigencies of the situation. It might very weE happen that a judgment founded upon a compromise or agreement, without actual trial, would best promote the interest of all concerned.

Can it be affirmed, as a matter of law, that the conditions of the bond only covered judgments obtained upon hostile and adverse litigation, and that no discretion was left in the sheriff to consent to a judgment, although he believed that by so doing money would be saved to the parties ultimately liable? This, we think, would be a too strict interpretation of the contract. But, at the same time, to hold that a judgment entered by consent of the parties, and without notice to or approval by the sureties, is, in the absence of proof of fraud or collusion, conclusive against them, would open the door to the perpetration of secret frauds, and subject sureties to a most hazardous responsibility, and to the discretion and judgment of a third person, which might seriously imperil them. A judgment by default has been held to be covered by an indemnity against judgments, Lee v. Clark, (1 Hill, 56), Aberdeen v. Blackmar, (6 Hill, 324), Annett v. Terry (35 N. Y., 256), but, where default is made, the plaintiff must give proof to entitle him to judgment.

While we are of opinion that the sheriff was not excluded from the protection of the indemnity by reason of the fact that the judgment was taken by his consent, we think the reasonable rule is that a judgment so obtained is presumptive evidence only "against the sureties, and that they are at liberty to show that it was not founded upon any legal liability to the plaintiff in the action. We are not aware that this point has been adjudicated in our court, but this conclusion is warranted, we think, by legal and equitable considerations. In this case there is an absence of any proof impeaching the fairness or justice of the claim of Kahrs, or tending to show that the judgment exceeded the legal liability of the sheriff.

The judgment should, therefore, be affirmed.

All concur, except Ritger, Oh, J., not voting.


author: Finch, J.

text:
    Edgar T. Brackett, Adm’r of Samuel Bonnell, Jr., Resp’t, v. Chester Griswold, impleaded, etc., Appl’t.

      (Court of Appeals,

      Filed November 23, 1886.)

    1. Corporations—Abatement and revivor—Action for penalty fob false report—Manufacturers’ act, Laws 1848, chap. 40—2 Rev. St., 448, § 1.
    Where the plaintiff’s intestate, a creditor of a mining corporation, whose officers were alleged to have made a false report, brought an action for the penalty under the manufacturers’ act, Laws 1848, chapter 40, and died during the pendency of the action and before judgment, Held, that the cause of action died with him; that 2 Rev. St., 448, § 1, does not apply.
    2. Same—Action for conspiracy.
    So far as the cause of action was for a conspiracy to cheat or defraud the intestate, it was an injury to a property right and did not die with intestate. But the order of revivor should have been limited to the cause of action which survived.
    Appeal from a judgment of the supreme court, general term, third department, affirming an order of revivor and a judgment of the special term, in favor of plaintiff in an action for conspiracy and to charge defendants as officers of a mining corporation with payment of its debts, on the ground of the making a false annual report.

      Holbrook & Smith and M. D. Grover, for appl’t; E. T. Brackett, A. Pond and B. I. Hand, for resp’t.
   Finch, J.

This appeal is taken from an order of revivor. The plaintiff’s intestate was a creditor of a mining corporation whose officers, in making their annual report, were alleged to have stated falsely the amount of capital paid in. For this cause of action, conjoined with one for conspiracy, a suit was brought, pending which and before verdict or judgment, the plaintiff died. The question presented is whether his cause of action for the penalty of a false report died with him or survived to his administrator.

We have'many times held that the provisions under which the asserted right of action accrued are highly penal in their nature, and have recently said, -more specifically, that they are to be classed with actions ex (delicto, and do not affect or concern any property right or interest as the subject of injury. Stokes v. Stickney, 96 N. Y., 323.

At common law the action abated upon the death of either party, the one by whom or to whom the wrong was done; and that rule must apply unless it is made inapplicable by the provisions of the Eevised Statutes. 2 R. S., § 1, 448.

But we have decided that those provisions affect only injuries to property rights; and where such are not invaded, the common-law rule still prevails. Hegerich v. Keddie, 99 N. Y., 258.

In that case, while concurring in the result, I thought the statute should receive a broader interpretation and contemplated survivability as the rule and abatement as the exception, and the construction finally reached was adopted after full deliberation and argument. It must now be deemed settled, and requires us to hold that the cause of action for the penalty died with the intestate. We have not been unmindful that, in our discussion of this question, we have assumed the assignability of a cause of action as a test, treating that and survivability as convertible terms; nor that we have also said that a cause of action for the penalty so far follows the creditor’s debt and belongs to it as an incident that an assignment of the debt carries with it a right to the protection o_ me statute. Stokes v. Stickney, supra; Bolen v. Crosby, 49 N. Y., 183.

But it was neither said nor meant that such right was itself assignable. Relatively to the debt it is rather a remedy than a right; and while it becomes in connection with the debt a cause of action, it belongs to the assignee of such debt by force of the statute, which gives it to him by virtue of his having become a creditor, and not because of any derivative right resting upon and born of the assignor’s ended and extinguished right. In other words, the new holder had his own right of action, or none. Having become a creditor he thereby obtains the right which the statute gives him, and must depend upon that for his relief and not upon an impossible transfer by the assignor of the debt. The questions which may spring out of this ruling may best be reserved till they arise.

So far as the cause of action was for a conspiracy to cheat or defraud the intestate, it was for an injury to a property right and did not die with its owner. The order of revivor was so far proper, but should have been limited to the cause of action which survived. That has been tried and judgment upon it given for the defendant. The plaintiff has recovered upon a cause of action which did not survive, and that recovery cannot be sustained.

The judgment should be reversed and, as a new trial would be unavailing, judgment should be rendered for the defendant, with costs.

All concur.


text:
    Eli W. Blake, Resp’t, v. Chester Griswold, App’lt.

      (Court of Appeals,

      Filed November 23, 1886.)

    1. Manufacturing corporation—Action against officers of—Laws 1848, chap. 40,' § 15—Books of company presumptive evidence— § 25.
    The act to authorize the formation of corporations for manufacturing purposes, Laws 1848, chapter 40, provides at section 15: “ If any certificate, or report made, or public notice given by the officers of any such company, in pursuance of the provisions of this act, shall he false in any material representation, all the officers who have signed the same knowing it to he false, shall be jointly and severally liable for the debts of the company contracted while they are stockholders or officers thereof.” It is provided by section 25 of the same act that the trustees of every company formed under the act, shall keep a book containing the names of the stockholders, etc., and that such book shall be presumptive evidence of the facts therein stated in favor of the plaintiff in any suit or proceedings against such company or against any one or more stockholders. In an action to hold the defendant liable on the ground that he as an officer signed a report of a company organized under the act knowing it to be false: Held, that the stock ledger of the company showing the names of the stockholders and substantially comply'ng with the requirements of the statute, was presumptive evidence of the facts recorded therein.
    2. Same-—Other books of company—Competency of.

      Held, that the book of minutes of the company of which defendant was a trustee, was admissible to prove the proceedings of the initial meeting-of the trustees at which he was present.
    8. Same—Testimony of experts as to value of property received in-payment FOR STOCK.
    Testimony given by experts as to the value of property for which stock of the company was given, the value of which appeared in a report of the company, was properly received.
    Appeal from judgment of supreme court, general term, third department, affirming a judgment of special term in favor of plaintiff in an action for conspiracy and to charge defendants, as officers of a mining corporation, with payment of its debts "upon the ground of making a false annual report.

      Wm. C. Holbrook and M. D. Grover, for app’lt; A. Pond and P. L. Hand, for resp’t.
   Finch, J.

A recovery was had in this case against the defendant, under section 10 of the Manufacturing Act, upon the ground that in making the annual report, required by that act, he had asserted a falsehood. The plaintiff sought to establish that the statement in the report that the whole capital of $2,000,000 had been paid in was not only untrue, but that the defendant knew it to be untrue when he signed the report, and so was guilty of actual falsehood. The defense pleaded was, that the whole capital stock of the Iron Mountain Company had been issued to Remington in payment for a mining property bought by him of the Kingdom Ore Company. Since that purchase was claimed by the plaintiff to have been made for a far less amount and to have been of very much less value, the issue raised involved, -necessarily, the corporate acts of the two companies, of which their records were the natural and proper evidence.

The defendant was shown to have been a trustee or director in both companies. In the original certificate of the Iron Mountain Company he is named as one of the-trustees. That he accepted the office is fairly to be inferred from his own statement of the reason for the appointment; from the fact that he received from Remington $10,000 of the stock to enable him to act; and that, at the meeting in December, he was present, and serving as one of the trustees. His only denial in the answer is of the allegation that he remained a trustee after August, 1870; and his. sworn assertion in the report of January, 1870, that he was-such trustee, justified the inference to which we have referred. He was not named as a trustee in the certificate of the Kingdom Ore Company; but, while at first denying his official .connection with that corporation, he afterwards, as he says, “on reflection,” admitted.that he was a stockholder in it. It is not necessary to resort to or rely upon. the similar admission in the answer, the proper effect of which was somewhat discussed.

It seems to be the rule that the corporate books are not only evidence of the corporate acts when those need to be proved, but are, to some extent, evidence against the stockholders who are chargeable with a knowledge of their contents. The books to which objections were taken on behalf of the defendant were the books of certificates, the stock-ledger, and the minutes of the two companies. The stock-ledger contained the names of the stockholders, the number of shares held by each, and a record of the transfers made. While not in all respects accurately complying with the requirements of the statute, it did so substantially, and is made by the law presumptive evidence of the facts recorded. The objection of the defendants was aimed principally at the book of minutes of the Iron Mountain Company. The material contents of that were the proceedings of the initial meeting of the trustees, at which the purchase of Remington was determined, and the full capital stock issued to him; and the action of the meeting held December 15, 1869, at which the defendant was present. Hothing else in the minutes appears to be material. These records were admitted by.the court as showing the corporate action, and without deciding that the defendant was to be charged with actual knowledge of what transpired in his absence. To this extent, at least, they were admissible, and the ruling was correct. Two facts were to be established by the plaintiff: First, that $2,000,000 were not in truth paid for the mining lands; and, second, that the defendant had actual and not merely constructive knowledge of the fact. The records furnish some evidence bearing upon the first issue; and their correctness, so far as they described the action taken at the organization of the company, was explicitly proved by Burleigh, who was. present at and participated in the meeting; while, as to the proceedings in December^ the defendant admits his presence, and in no manner denies the correctness of the record.

There remained, therefore, in the case, the question of fact whether the defendant had actual knowledge that the 2,000,000 issued to Remington was a sham price, founded upon a large, false estimate of the lands. The defendant had seen the property. He had been over it with his father and others. He knew that it was undeveloped, and that the character and extent of its ores was an unsolved problem. He knew that the whole capital stock was issued to Remington as vendor of the lands. He knew that, with unexplained liberality, Remington had given him, without consideration, $10,000 of the stock. He must have known, also, that the same vendor had given back to the Iron. Mountain Company a large quantity of the stock, since we find him seconding his father’s resolution to pledge 1,000 shares, with seventy bonds for a loan to the company, and to give 500 shares to the officer who negotiated the loan, as a commission; and from no other source than the free gift of Remington was it possible for him rationally to trace that ownership of the company. It is not quite easy to believe that he could have advised giving a mortgage on the property, and $10,000 of the corporate bonds, and $100,000 of the stocks, for a loan of $35,000, if he was honestly convinced that the stock at par represented real dollars and full value. At all events, what he did know tended to establish the second issue, that he was guilty of actual falsehood when, in the report he signed, he declared that the full capital stock had been paid in. There was, therefore, a substantial basis in the evidence for the finding of the trial court, and we are bound to accept it as correct, in this respect, the case differs from Lake Superior Iron Co. v. Drexel, 90 N. Y., 87. There, upon facts somewhat similar, the verdict of the jury established good faith and honest judgment. Here the finding of fact is exactly the reverse.

The plaintiff’s proof as to the comparatively small value of the mining property was very material, and was the subject of further objection on the part of appellant. One of the witnesses was Burleigh. He was a trustee of the Iron Mountain Company. He testifies to a large and valuable experience in the development of iron mines, in the transportation of the ore, and in the difficulties and uncertainties of determining its extent and quality. Doubtless that experience and knowledge led to his selection for the office he held. At all events, he was competent to testify as to the value of the property, having examined it so far as was at the time possible. When asked as to that value, he expressed the difficulty of a just answer by saying that such value was speculative, by which he plainly meant that, as a mining property and for mining purposes, Its value in the result was uncertain. But it had a value, nevertheless, and beyond that belonging to it as land and for agricultural purposes, but affected by the uncertainty both as to the quality and extent of the veins. In the end he valued, the furnace at $10,000, and the mining property at $50,000 or $60,000. That estimate he expressed by saying: “I might, on speculation, have paid that amount for it.” This answer the defendant moved to strike out, but the request was refused; the court saying it understood him to mean that the property was not worth more than that amount. Such, undoubtedly, was his meaning, and he made no objection to the construction put upon it. It is said that he examined only a part of the property. That is true, but he examined it where the work was going on, and the ore was being taken out, and seems to have had all the opportunity that was really useful.

Another witness was Merriam. He had been a manufacturer of iron, and bought and sold ores for a period of twenty-seven years. He had owned mineral lands, and sold them, but reserving the mines. He knew the property of the Kingdom Ore Company, and had owned land for a long time in its vicinity. He said that the lands in question, in August, 1869, when there was a good deal of speculation going on, and “with the attraction he had seen, might have been sold for $40,000 or $50,000.” On cross-examination he explained that he had been over a part of the land with a mining compass, with a view to discovering minerals, and found the same vein of ore cropping out that was on his own land. Of course, he answers that the value was speculative, from the necessity of the situation.

We do not think there was error in receiving the testimony of these witnesses. Its force was, perhaps, intensified by the fact that the mining engineers called for the defense, while speaking quite favorably of the property, do not venture to put a value upon it, and by the circumstance that the Kingdom Ore Company sold it to Remington on the 12th of August, 1869, for 10,000 shares of stock and $200,000 of bonds of the Iron Mountain Company, and that Remington, in his deed to the latter company, expressed the consideration at $600,000.

The judgment should be affirmed, with costs

All concur.


author: Earl, J.

text:
    Clarissa Lammer, et al., App’lts, v. Helen G. Stoddard, exr’x of Edward Lammer, deceased, et al., Resp’ts.

      (Court of Appeals,

      Filed November 23, 1886.)

    1. Mortgage—Payment—When non-production of bond and mortgage evidence of payment.
    Where one of two executors loaned the other certain moneys held in trust under the will on bond and mortgage at a date forty-eight years before the borrower’s death and thirty-four years before the lender’s death, and after the death of both, the mortgage was found uncanceled of • record, but neither the original of the bond or mortgage could be found, the borrower during most of the time having had ample means, and this suit was brought by a beneficiary of the fund named in the will. Held, that the non-production of the bond and mortgage was conclusive evidence of their payment.
    2. Trustee—Statute of limitations—When it begins to run against BENEFICIARY OF AN EXPRESS TRUST.
    That as against a trustee of an actual express subsisting trust, the statute does not begin to run against the beneficiary until the trustee has openly to the knowledge of the beneficiary removed, disclaimed or repudiated the trust. '
    3. Same—When' it begins to run in favor of a trustee who becomes SUCH EX MALEFICIO.
    Where one becomes a trustee ex maleficio, or by implication or construction of law, the statute of limitations begins to run against the party having the right to enforce the trust from the time the wrong was committed by which the party became chargeable as trustee by implication.
    Appeal from a judgment of the general term of the city court of Brooklyn, affirming a judgment in favor of defendants in an action brought to recover the amount of a loan of trust money.
    Joseph Lammer died February 27,1831, leaving a widow, Mary Lammer, and five children, Edward, Fanny, Joseph, Clarissa and John A.,, the last three being the children also of Mary, who was his second wife, and being at their father’s death aged respectively seven, six and three years.
    Joseph Lammer also left personal estate amounting to upwards of $30,000, and a will in which he bequeathed to his wife absolutely the sum of $2,000, and created a trust as follows:
    “I give and bequeath unto my said wife, Mary, the' further sum of $3,000, lawful money aforesaid, to be paid to her as soon as conveniently may be after my decease, in trust, nevertheless, that she, my said wife, shall have, use and take the interest accruing and to arise from the said $3,000, during the minority of my sons Joseph and John and daughter Clarissa, to be applied for and towards the support and maintenance and education of said three children, and to pay to the said children, Joseph, John and Clarissa, as they shall respectively arrive at the age of twenty-one years, the sum of $1,000 each.”

      “ My will is that the sum of $3,000, hereinbefore given in trust to my said wife, Mary, shall be by her put at interest by good bond and mortgage security upon real estate, to be approved of by my executors hereinafter named, and in case either or all of my said children, Joseph, John and Clarissa, pha.ll die' during their minority and without lawful issue, then my will is, and I do hereby give and bequeath unto my said wife, Mary, the sum or sums of money which such child or children would have been entitled to receive if he, she or they had lived to the age of twenty-one years.”
    And he appointed his wife and his son Edward executors of his will.
    The will was admitted to probate; the executors qualified as such and filed an inventory May 24, 1831. The $3,000 for the trust fund was paid to Mary Lammer, and on the 7th day of June, 1831, she loaned $3,000 to one Talbot and took his bond and mortgage to secure the same, and they were paid June 1, 1833. At the latter date she loan the same amount to one Smith, and took his bond and mortgage to secure the same, and they were paid February 3, 1836.
    About the day last named she loaned Edward Lammer $5,000, and took from him a mortgage dated February 1, and acknowledged February 5, 1836, conditioned to pay that sum with interest on the first day of February, 1837,
    It appears from the recitals in the mortgage that a bond was also given to which the mortgage was collateral. The real estate mentioned in this mortgage was covered by a prior purchase money mortgage given by Edward Lammer, which was foreclosed in 1837; and the real estate was sold upon such foreclosure for an amount which left nothing to apply upon the mortgage given to Mary Lammer.
    Edward Lammer was a merchant in New York, and was burned out by the great fire which occurred December 16, 1835, and thereby became financially embarrassed and unable to pay his debts. A few years thereafter he became solvent and so continued to the time of his death in July, 1884, when he left an estate inventoried and valued at nearly $65,000. He was never married, and he left a will in which he bequeathed to his half sister and brother, Clarissa and John, each $1,000, and gave the remainder of his estate to other relatives. Joseph Lammer died in 1840, and Mary Lammer died December 28, 1870. She always lived in Brooklyn, and Edward Lammer lived in the same city and in New York, and during twenty years prior to his death he made a monthly allowance of twenty dollars to Clarissa which, while she took care of her sick mother, was increased, to twenty-six dollars.
    After the death of Mary Lammer the mortgage given to her by Edward was found to be uncancelled upon the record. Clarissa was appointed administratrix of her mother’s estate, and then she and her brother John A. commenced this action to enforce the trust as to the $3,000 against the estate of Edward.
    The trial judge found “as a matter of fact that Edward had paid the amount of the mortgage to Mary Lammer in her life-time, and refused to find that the trust fund was included in the $5,000 loaned to him, and he dismissed the complaint.

      P. V. B. Stanton, for app’lts; Jesse Johnson, for resp’ts.
   Earl, J.

The finding of the trial court, affirmed by the general term, that Edward Lammer had paid to Mary Lammer the amount loaned to him by her, which was secured by his mortgage, was founded upon sufficient evidence, and concludes us. The loan was made forty-eight years before Edward’s death, and thirty-four years before Mrs. Lammer’s death, and during most of that time he possessed ample pecuniary ability to pay. She was not shown to possess much means, and presumably needed the means for the support of herself and infant children. She and Edward always resided near each other, and, during twenty years, he made a considerable allowance to his sister for the benefit of herself and mother, thus showing that he was not only disposed to be just, but liberal. The bond and mortgage were not in her possession at her death, were not then shown to be in existence, and were never, until shortly before the commencement of this action, by either of the plaintiffs, the youngest, of whom at her death was forty-two years old. Under such circumstances, the non-production of the bond and mortgage furnishes very satisfactory and conclusive evidence of their payment. Bergen v. Urbahn, 83 N. Y., 49.

But the statute of limitations furnishes an equally conclusive defense to this action. If it be assumed that the trust fund was loaned to Edward Lammer with notice of the trust, under such circumstances that the trust, within a proper time, could have been enforced against him or his estate, the lapse of time would still stand in plaintiffs’ pathway. If this were an action to recover the debt evidenced by the bond and mortgage, it is conceded that it would have been barred. But the action is to establish and enforce a trust, and hence the claim is made that it is not barred. It is undoubtedly generally true that, as against a trustee of an actual, express, subsisting trust, the statute does not begin to run against the beneficiary until the trustee has openly, to the knowledge of the beneficiary, renounced, disclaimed, or repudiated the trust. But Edward Lammer was not the actual trustee of this fund, and he never acknowledged a trust as to the money loaned him. He could, at most, have been declared a trustee ex maleficio, or by implication or construction of law; and in such a case the statute begins to run from the time the wrong was committed by which the party became chargeable as trustee by implication. Wilmerding v. Russ, 33 Conn., 67; Askhurst's Appeal, 60 Pa., 290; McClane v. Shepherd, 21 N. J. Eq., 76; Decouche v. Savetier, 3 Johns. Ch., 190; Ward v. Smith, 3 Sandf. Ch., 592; Higgins v. Higgins, 14 Abb. N. C., 13; Clark v. Boorman, 18 Wall., 493; Perry, Trusts, § 865.

We, therefore, see no reason to doubt that the judgment below was right, and it should be affirmed, with costs.

All concur.