author: LEARNED, P. J. : Bocees, J.

text:
    EDWARD WALLIS, Appellant, v. JAMES J. RANDALL, Respondent, Impleaded with EDWIN PIERCE.

      Evidence — when, the value of property covered by a mortgage is admissible, to show that a transfer of the mortgage loas a payment, and not made by way of security.

    This action was brought to recover an amount alleged to be due from the defendant Randall on land purchased by him from the plaintiff. The question was whether a mortgage, for §4,800, on other land, transferred by defendant to plaintiff at the time of the sale, was intended as an absolute payment of that amount, or only as a security therefor. Thei'e wasaprior mortgage for §6,000 on thesame property covered by the one transferred. Upon the trial evidence was admitted against plaintiff’s objection and exception, to show that, at the time of the transfer, the property covered by the mortgages was worth more than the aggregate amount of both.

      Held, that the evidence was properly admitted, as tending to show that the transfer of the mortgage was intended as a payment. . (Bocees, J., dissenting.)

      Appeal from a judgment in favor of the defendant entered upon the verdict of a jury, and from 'an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action is brought to recover part of the purchase-price of certain real estate sold by the plaintiff to the defendants in 1869. At the time of the sale a mortgage for $4,800 was transferred by the defendant Bandall to the plaintiff. It was a second mortgage, there being a prior one for $6,000 on the same property, which was held by Bandall. Subsequently Bandall foreclosed his mortgage and bought in the premiums, there being no surplus out of which to pay the $4,800 mortgage. The principal question in the case was, whether the $4,800 mortgage was accepted by the plaintiff as an absolute payment, or as a security only for such payment.
    Upon the trial evidence was received against plaintiff’s objection and exception, to show that the farm, at the time of the transfer, was worth more than both of the mortgages.

      Lansing <& Lyman, for the appellant.

      L. B. Kern and D. W. Cameron, for the respondent.
   LEARNED, P. J. :

I am not able to agree with the view expressed in the opinion of Judge Bocees that evidence of the value of the farm was inadmissible. If A. owed B. a debt of $1,000, and A. claimed to have paid it by the transfer of a farm, it seems to me that to show that the farm was worth only $100 would be evidence which would have, and ought to have, some weight in deciding the question.

And so if the dispute were whether the land transferred were a payment or a security of that debt, proof that it was worth $10,000 would influence any mind out of court; and, I think, might properly influence even minds in court.

If one were attempting to prove payment in money, I suppose he would not be limited to proof that he handed the creditor a roll of United States currency, but might show how much there was ; in other words, the value ; and if the debtor averred that he had delivered $5,000 in bills to secure a debt of SI,000, and the creditor averred that that amount had been delivered in payment of that debt, I think that the value delivered would be very material.

I concur in the view that the case presents a question of fact, and that there is no ground for reversal on the fact, and I therefore think the judgment should be affirmed, with costs.

Bocees, J.

(dissenting):

There was but one question before the court and jury; that was, whether the mortgage mentioned in the defendant’s answer for $4,800 was taken and accepted by the plaintiff as payment to him, or as security for that amount of the purchase-price of the mill farm. The counsel for the plaintiff, m opening the case on the trial, stated that the plaintiff did not seek or claim to recover on the ground of fraud or breach of warranty; and the case was tried to the end and submitted to the jury on the sole issue, whether the mortgage was taken in payment or as security. Now, on this issue, the value of the farm covered by the mortgage was wholly irrelevant and immaterial. The admission, however, of immaterial and irrelevant evidence is not in all cases ground of error. If it can be seen that it did no harm to the party objecting, as is frequently the case, error cannot be predicated on, its admission. The question in this case is, therefore, whether this evidence was in reasonable probability innoxious to the plaintiff, who took exception to its admission. The $4,800 mortgage was a second mortgage on the premises covered by it. There was a prior mortgage thereon securing the payment of $6,000. Now, on the issue whether the $4,800 mortgage was taken and accepted by the plaintiff as payment or as security for that amount, proof that the farm was worth a sum exceeding both mortgages might, and probably did have an influence upon the mind of the jury unfavorable to the plaintiff’s case. The plaintiff testified that he took the mortgage as security. The defendant, on the contrary, was equally emphatic in his testimony, that it was given and accepted in payment. Each was corroborated to a considerable extent by their witnesses. In this state of the proof it can hardly be otherwise than that the evidence, that the farm was worth a sum exceeding the amount of both mortgages, had influence with the jury unfavorable to the plaintiff. This was bringing into the case, as direct evidence, a fact on which to base a probability merely. The reasoning of Judge Church in Green v. Disbrow (56 N. Y., 334), well applies here. The question in that case was whether credit was given to the son or to his father. Evidence of the pecuniary inability of the son was admitted against objection. Judge Church held its admission to be error. He said: “It was not legitimate evidence, and had no direct bearing on the question. At most it only tended to create a moral probability that the plaintiff would have been more likely to give credit to the father; but it is too uncertain and remote to afford any reasonable presumption of the principal fact.” So, in the case in hand, the evidence we are considering only tended to create a moral probability that the plaintiff was more likely to take the mortgage as payment than he otherwise would have been. It did not tend to prove any bargain or understanding between the parties as to how the mortgage was taken; nor did it tend to corroborate or impeach any witness. Its admission is sought to be vindicated, on the ground that it proved certain representations, made by the defendant as to the security being good, and put in evidence by the plaintiff, to have been true. But those representations came in only as an immaterial part of what was said between the parties, when the alleged contract or understanding as to how the mortgage was taken was made. Besides, there was no occasion for proving the truth of those representations on the part of the defense, as the action was not in fraud, nor for breach of warranty as to the value of the mortgaged premises. The plaintiff expressly waived any right of recovery on either of these grounds.

It is also urged that the case on the evidence, other than that under consideration, is very plainly with the defendant on the question submitted to the jury, hence that the admission of such evidence, if improper, did not and could not work harm. But we are not at liberty to hold, as matter of law, that the case was and is conclusively with the defendant on the proof. Certainly there was a sharp conflict in the statements of the plaintiff and defendant, and there was much corroborating proof also. Thus it was a case for the jury. If it was a proper one for the jury, as it undoubtedly was, the plaintiff may insist that it should be considered by them on entirely legitimate evidence.

I am of the opinion that the admission of the proof showing that the mortgaged premises exceeded in value the amount of both mortgages, constitutes a substantial ground of error. This conclusion renders an examination of the other alleged errors unnecessary.

The judgment should be reversed.

Present — Leaened, P. J., Boaedman and Bocees, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: BoaRdmaN, J.: Learned, P. J. :

license: Public Domain

text:
    LOUISA D. HAILE, Respondent, v. ELRIC L. NICHOLS AND JOHN W. LYNDE, Appellants, Impleaded with others.

      Grantee assuming mm'tgage — estopped from disputing its validity.

    This action was brought to foreclose a mortgage, dated January 2,1865, executed by S. W. Gregory to Noyes P. Gregory, and by the latter assigned to the plaintiff. After the assignment, the mortgagor conveyed the premises covered by it, by a deed containing covenants of warranty, “except as against the five certain mortgages upon the above premises, mentioned and described in a certain agreement.” By this agreement the grantees agreed to pay “ the amounts remaining unpaid upon the following mortgages: * * * A mortgage executed by Silas W. Gregory to Noyes P. Gregory, dated on or about the 2d of January, 1865, now owned by Louisa D. Haile,” and an additional mortgage collateral thereto. The defense was that the mortgage had been paid before its assignment to plaintiff.

      Held, that by the deed and agreement the grantees were estopped from denying the existence and validity of the mortgage.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought to foreclose a mortgage executed by the defendant Silas W. Gregory to Noyes P. Gregory, dated 2d January, 1865, conditioned to pay the sum of $5,000 in ten years from date, with semi-annual interest. On the 28th of May, 1875, Noyes P. Gregory assigned and transferred the mortgage and the accompanying bond to the plaintiff. On the 13th August, 1875, Silas W. Gregory, the mortgagor, conveyed the mortgaged premises to the defendants Elric L. Nichols and John W. Lynde, the present appellants, with covenant of warranty, “ except as against the five certain mortgages upon the above premises, mentioned and described in a certain agreement bearing even date herewith.” This was an agreement (exhibit number four), by which Nichols and Lynde agree to pay “ thé amounts remaining unpaid upon the following mortgages: * * * 3d. A mortgage executed by Silas W. Gregory to Noyes P. Gregory, dated on or about the 2d of January, 1865, now owned by Mrs. Louisa D. Haile. 4th. A mortgage lately executed by said Silas W. Gregory to said Louisa D. Haile, on additional property, and which she holds as collateral to the above-mentioned mortgage of January 2, 1865.” The above mortgage of 2d January, 1865, is the one in suit, and its payment by Nichols and Lynde was a part of the consideration of the conveyance to them of the mortgaged premises.
    The answer contains four counts. The first count admits the execution of the bond and mortgage, but alleges that they were given to secure the payment by the mortgagor of the debts of N. P. Gregory & Son. That the mortgagor has paid such indebtedness in full, and became entitled to a surrender of the bond and mortgage, of which the plaintiff had knowledge at the time of the assignment to her. The second count alleges that the mortgagee, Noyes P. Gregory, was not of sound mind at the time of the assignment to plaintiff. The third count alleges payment in full before the assignment to plaintiff. The fourth count alleges that the plaintiff, with knowledge that the bond and mortgage had been paid, took the assignment in order to enable the mortgagor to cover his property, and compel Nichols and Lynde to pay the indebtedness of S. W. Gregory & Co. (of which firm the three were members), with an agreement that she would collect the mortgage for the benefit of the mortgagor, and with intent to cheat and defraud the defendants Nichols and Lynde.
    The referee found in favor of the plaintiff for the whole amount claimed in the complaint, and directed that the defendants Nichols and Lynde pay any deficiency that might arise on the sale. Judgment was entered November 27, 1877, for $9,957.55 damages and costs. From this judgment the defendants Nichols and Lynde have appealed. Upon the trial, a statement made by the plaintiff to one Field, in Vermont, was offered by defendant to show that the mortgage was paid and satisfied before its assignment to plaintiff, and that she had knowledge of that fact. The circumstances under which it was procured are referred to in the opinion Of LEARNED, P. J.

      Beckwith & Beilly for the appellants.
    Palmer, Weed & Smith, for the respondent.
   BoaRdmaN, J.:

The referee has found that the bond and mortgage have not been paid in whole or in part. The weight of evidence sustains such finding. Indeed, the evidence of payment relied upon by defendants consists of the statement made by the plaintiff to Mr. Field, in Vermont. That statement is confused, inconsistent, and, to some extent, unintelligible. The manner in which it - was obtained detracts materially from its value as testimony. The explanations given by plaintiff of the testimony therein contained still further tends to destroy its force and effect. So that the referee was right in discrediting that statement, so far as it tends to establish a satisfaction of the bond and mortgage, if it can be said to have any such tendency. There is no evidence of an actual payment of any sum whatever upon this bond and mortgage. So far as defendants were concerned, it was wholly unpaid, principal and interest. They were, in effect, advised of that fact. By exhibit number four they assumed and agreed to pay the amounts remaining unpaid upon the mortgage in suit, and also a mortgage then lately executed on other property as collateral thereto. A reference to the latter mortgage, or its record, would have shown defendants the extent of their liability, and they must, therefore, have contracted with reference thereto. Property was put into the hands of defendants to enable them to make such payment, and they cannot now resist such payment on any speculative theories of the rights of Gregory, their grantor. Nor are the defendants, in my judgment, so situated that they can attack the consideration or validity of the mortgage in suit in plaintiff’s hands, except so far as it has been actually paid to her or her assignor. When Silas W. Gregory transferred to defendants $40,000, and the defendants, in consideration thereof, assumed and agreed to pay this mortgage, they were estopped from denying their liability. . They have been furnished with money, or its equivalent, with which to pay. It is part of the purchase-price of the property conveyed to them. It is not material whether S. W. Gregory owed the plaintiff. He could have provided for its payment to any third person or a bank, and the defendants could not have resisted its payment, because Gregory did not owe the individual or the bank. It is defendants’ own debt, and they are called upon to pay, and it is enough for them that they are protected in paying it in pursuance of their agreement. (18 Alb. Law Jour., 303, and cases there cited.) It is very like the case of a purchaser of real estate, subject to a usurious mortgage, which he agrees to pay. Though such mortgage is void as between the original parties, the purchaser cannot defend on that ground. (Hartley v. Harrison, 24 N. Y., 170.) The land in the hands of a purchaser becomes the primary fund for the payment of the debt. In the case at bar, the amount assumed is made definite and certain by the collateral mortgage described in exhibit number four, signed by the parties. There were no errors in the admission of evidence, or in the refusals to find as requested. The plaintiff was properly allowed to explain the facts in relation to her examination by Held, and the respects in which the same was erroneous. It was also proper to show by Mrs. Thayer the conduct and words of Field, from which unfairness and imposition might be imputed to Field in procuring plaintiff’s statement. It affected the reliability as well as the trustworthiness of the statement as reduced to writing by Field. From what has been already said, it is apparent the requests for findings made by defendants were properly denied. Besides, there is no satisfactory evidence that the mortgage and bond were ever delivered by Noyes P. Gregory to Silas W. Gregory, with the purpose of satisfying or discharging the same, Or that plaintiff knew of any such act when assignment to her was made. The bond and mortgage were assigned to her for a good and valuable consideration. Whether that was paid or not, is of no consequence to the. defendants. . There are no other points worthy of special notice.

The judgment should be affirmed, with costs.

LbarNed, P. J., and Bocees, J., concurred.

Learned, P. J. :

I agree with the opinion of my brother Bqardhan ; and I think that the case should not pass without a rebuke of the manner in which the defendants, or some of them, obtained a statement from the plaintiff. It appears that, at the urgent request of the defendant Lynde, one Henry K. Field, a justice of the peace, and an attorney in the State of Vermont, went to see the'plaintiff then in that State. It is evident that he made her understand that he came at the request of Mr. Palmer, her own counsel. He says that he did not tell her so ; but his own testimony shows that he did say to her things which made her believe, and were intended to make her believe, that he was acting for Mr. Palmer and on her behalf. The counsel for the defendants, in their points, insist that she did so believe. They say that her statement then made, “ was for Judge Palmer. It was to establish her rights in the suit, as she supposed.” Field told her that he was a magistrate, and that he had called to take her deposition; and he administered an oath. He told her “that counsel were very much surprised that she had left Plattsburgh so very unexpectedly and without their knowledge,” thus evidently giving her to understand that he meant her own counsel. He asked if Judge Palmer had written to her, and said he understood that Judge Palmer had written to her. This was deception upon his own statement. If the plaintiff’s testimony given on the trial is correct, actual falsehoods were uttered by him to deceive her, and threats of compulsion to make her testify. This conduct was wrong. The plaintiff was properly allowed by the referee to explain the truth in regard to statements thus obtained from her by a trick, under guise of a legal proceeding.

It should be said, in justice to the defendants’ attorneys and counsel, that nothing appears to connect them, in the least, with the deceit practiced on the plaintiff.

Judgment affirmed, with costs.


author: BoaiídmaN, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES STAUDACHER v. WILLIAM B. WEBB, Sheriff of Ulster County.

      Recorder of Kingston — power of, to commit a prisoner to jail for non-payment of costs.

    Section 45 of chapter 150 of 1872, gives the recorder of the city of Kingston exclusive jurisdiction to issue all criminal process, hear complaints, and hold courts of special sessions, with all the powers and jurisdiction of’such courts; to try, convict and sentence all persons triable by such courts. Section 48, of chapter 387 of 1877, provides that in cases triable before him, if the accused elects not to be tried and waives an examination, the recorder shall collect from him all costs of the proceedings, and shall have power to commit him to jail for non-payment thereof, not exceeding five days.

      Heidi that the latter act, authorizing the commitment of the prisoner for nonpayment of the costs, was constitutional and valid.
    Certiorari to the county juclgo of Ulster county, to review an order made in habeas corpus proceedings remanding a prisoner to defendant’s custody.
    The relator was originally committed to the common jail of Ulster county by the following commitment:
    ULSTER COUNTY, ) CTIY OF KINGSTON. )

      To any Constable of said County, and to the Keeper of the Common Jail of said County, Greeting:

    Whereas, Charles Staudacher was arraigned before the undersigned, recorder of said city, on the 26th day of July, 1878, charged, on the oath of Daniel R. Johnston, with a misdemeanor, viz.: with having, on the 14th of July, 1878, at said city, in said county, violated the excise law by selling or giving away intoxicating liquors on Sunday.
    And, whereas the said Charles Staudacher waived an examination on said charge; and whereas the costs of the criminal proceedings against the said Charles Staudacher were ascertained to be four dollars five cents; and whereas payment of the said costs was demanded of the said Charles Staudacher by the undersigned, recorder, pursuant to the provisions of section 6, chapter 387 of the Laws of 1877 of the State of New York; and whereas the said Charles Staudacher has refused or neglected to pay the said costs:
    These are therefore to command you, the said constable, forthwith to convey and deliver the said Charles Staudacher to the said keeper; and you, the said keeper, are hereby commanded to receive the said Charles Staudacher into your custody, in the said jail, and him there safely keep until the said costs are paid, and, in default of the payment thereof, for the term of four days, or he be thence discharged in due course of law.
    Given under my hand at the said city of Kingston, this 2d day of August, 1878. AUG. SCHEPMOES,
    Recorder of the City of Kingston.

      D. M. De Witt, for the relator.

      A. T. Olearwater, district attorney, for the defendant.
   BoaiídmaN, J.:

The prisoner was sentenced to four days’ imprisonment, on the 2d day of August, 1878. His term of imprisonment has long since expired, and he has been discharged. The decision of this court upon the merits is purely speculative, and affects no person or rights. It may serve for a theoretical precedent.

The counsel, however, seek a decision to control future action in similar cases, and we will briefly give the eonclusion to wfliich we have come. Section 2 of article 1 of the Constitution provides that “ the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.” Section 6 of the same article provides that ‘ ‘ no person shall be deprived of life, liberty or property, without due process of law.” By section 45 of chapter 150, Laws of 1872, the recorder of the city of Kingston has (for the purpose of this case) exclusive jurisdiction to issue all criminal process, to hear all complaints and examinations, to hold courts of special sessions, with all the powers and jurisdictions of such courts ; to try, convict and sentence, all persons who may be guilty of offenses triable by such courts, and his court has power to hear and determine charges for every misdemeanor committed within said city, for which the accused shall elect to be tried before said court. By section 48 of chapter 887, Laws of 1877, it is provided that in cases triable before the recorder, if the accused elects not to be tried and waives an examination, the recorder shall collect from the accused all costs of the proceeding and shall have power to commit to jail for non-payment thereof, not exceeding live days. Under these provisions of the charter of the city of Kingston, the relator was committed to jail for four days unless the costs wore sooner paid. It is claimed by the relator that these provisions of the charter of the city of Kingston are unconstitutional, by reason of their violation of article 1, sections 2 and 6, above quoted. No other question is presented for our decision.

It cannot be justly claimed that the relator was deprived of his right of trial by jury. The imprisonment for non-payment of costs did not affect fiis ultimate right to such trial. As well might the claim be made where a prisoner, under similar circumstances, was unable to give bail, and, as a consequence, was committed to jail. The requirement in the one case is, that he shall pay four dollars and five cents costs; and, in the other, that he shall give bail for his future appearance, etc. In either case, the imprisonment is due to his own election. A court is provided for the trial of the case at a trifling expense and promptly. Instead, he prefers to postpone action by requiring the finding of an indictment by a grand jury and the trial thereof by a court of record. For this luxury, the Legislature says he shall pay certain costs incurred before his election is made. This legislation is for the public welfare; it is in the interest of an economical administration of the laws. It is to be regretted that so many trivial offenses are permitted, as a matter of course, to occupy the time and attention of grand and petit jurors and courts of record, with all the expensive paraphernalia incident to them. As a check to this tendency, the payment of costs in this case was lawfully required of the accused. The power of the Legislature is supreme, subject to the limitations of the Constitution. The present act is not obnoxious to the censure of taking from the relator the right of trial by jury, provided for in section 2 of article 1 of the Constitution.

If, however, there could be any doubt upon this point, the twenty-sixth section of tbe sixth article relieves us by providing that “courts of special sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law.” That section would justify the Legislature in making the jurisdiction of the special sessions exclusive in such cases, and compelling the trial of all misdemeanors in that court. But, in this instance, the Legislature has given to the accused an option, to be followed in a certain event by the payment of certain costs and expenses, under pain of imprisonment. (People ex rel. Murray v. Justices, 18 L. J., 254.)

The manner in which such costs are charged and payment enforced is “ due process of law.” The accused subjects himself to such liability with full knowledge of the law. He voluntarily assumes such payment by the election he makes. He is offered all that he can require under the Constitution, without payment of any costs. He refuses that, and demands a far more costly, troublesome and dilatory mode. He is told that he must pay for that privilege. By his voluntary act he waives any personal right affecting his right of property, however derived, and subjects himself to the written law. (Phyfe v. Eimer, 45 N. Y., 102.) The relations between the relator and the State may be likened to those of parties to a contract. The State provides a tribunal for the trial of the relator; but he can have another and more expensive court for his trial if he wishes. But in that event he must pay certain costs. By his action he waives any objection, and consents that the costs may be so collected. (People v. Quigg, 59 N. Y., 83.) In Phelps v. Racey, Chubch, Ch. J., says: “The Legislature may pass many laws, the effect of which may be to impair or even destroy the right of property. Private interest must yield to the public advantage.” (60 N. Y., 14.) Such are in one sense license laws, laws relating to public safety or the public health, and laws restraining the keeping or use of dangerous property. It seems to us the act in question does not exceed the limits of constitutional legislation. It is a just and proper restriction of the right of accused persons to select the forum in which they shall be tried. It is made in the public interest and for the public benefit. It is in aid and encouragement of the prompt and economical administration of criminal law, and at the same time it takes away no constitutional right of the accused. But if this conclusion were doubtful, it would still be our duty to affirm this order. A statute will not be declared void unless such decision is beyond reasonable doubt. Every presumption must be in favor of the constitutionality of a statute. If two constructions may be given, one of which will render a law void and the other valid, the latter must be adopted. (Metropolitan Board of Excise v. Barrie, 34 N. Y., 657.)

The writ of certiorari must be dismissed, with costs against relator.

Present — Learned, P. J., BoardmaN and Westbrook:, JJ.

Certiorari dismissed, with costs against the relator.


author: Boap.dmaN, J.:

text:
    SARAH L. ADEE, Appellant, v. GEORGE ADEE AND JAMES S. ADEE, Executors, etc., Respondents.

      Bond taken by sheriff — when not void, as taken colore officii — Liability of estate of deceased surety.

    The sheriff having’ ai'rested a defendant, under an order of arrest requiring a hond for $1,000, ’with two sureties, took, at the request of the defendant’s testator, and subject to the approval of plaintiff’s attorneys, a bond in the penal sum of $2,000, with one surety only. The plaintiff’s attorney having accepted the bond, the sheriff allowed the defendant to go at large.
    The condition of the bond having been broken, held, that it was not void as taken colore officii, but was valid and enforceable against the estate of the deceased surety.
    Appeal by plaintiff from an order made at the Delaware Special Term, denying a motion made on a case and exceptions to set aside a nonsuit and for a new trial. The action was tried at the Delaware Circuit in June, 1875, and at the close of plaintiff’s evidence she was nonsuited. In May, 1867, the above plaintiff left her husband, Augustus W. Adee, and commenced an action against him for a limited divorce, and on the twenty-first day of the same month her attorneys procured an order of arrest, which was delivered to the sheriff to be executed, and which required him to arrest the said Augustus and hold him to bail in the sum of $1,000. The Code (§ 187) required in such case an undertaking executed by two or more sureties. On the twenty-third of the same month the sheriff arrested him in his dwelling-house, in Kortright Centre, in said county, and informed him that he must give bail, with two sureties, in the sum of $1,000, or go to jail. At his request, the sheriff went with him to his father’s, who lived at the same place and near by, and Augustus stated to him thas he had been arrested by the sheriff, and that he wanted a bond, executed by two sureties, in the sum of $1,000. Stephen B. Adee, the father, said he was willing, and proposed to give the undertaking alone in the sum of $2,000, if the sheriff' would take it. The sheriff did not consider that was legal, but agreed to take it and show it to the plaintiff’s attorneys; and if they were satisfied, it would be all right. Stephen B. Adee executed the undertaking alone, in the sum of $2,000, and the sheriff released or discharged Augustus from custody, returned to Delhi, and notified plaintiff’s attorneys; they said it was satisfactory. On the 21st day of April, 1874, plaintiff entered judgment in said action, and execution was issued; the defendant in such action having previously left the the State could not be found, and this action was commenced on the undertaking agaiast the executors of Stephen B. Adee, the said Stephen having died before the breach of the undertaking. •

      Gilbert <& Maynard, for the appellant.
    The undertaking in question bound the estate of Stephen B. Adee, although no actual breach occurred in his life-time, and an action can be maintained against his executors to recover for a breach occurring after his death. (3 R. S. [6th ed.j, 123, § 2; 3 Redfield on Executors, 277, § 9; Frederick v. Frederick, 1 P. Wms., 710-721; Hyde v. /Skinner, 2 id., 196, 197; Redfield on Executors, 274, § 5; Dayton’s Surrogate, 486-555.) The undertaking was not void on the ground that it was taken by the sheriff colore officii. It was not executed to the sheriff, or taken upon his motion, but was voluntarily given, and at the earnest solicitation of the defendants’ testator. (Tomlin Law Die.; Winter v. Kinney, 1 Comst., 365; Decker v. Judson, 16 N, Y., 442; Burrail v. Asker, 23 Wend., 606; Webber's Exits v. Blunt, 19 id., 188; Morton v. Campbell, 37 Barb., 179.) A party at whose suit an arrest is made, may take any security he pleases on discharging his debtor from arrest. (Yoorhies’ Code [10th ed.], 394; Winter v. Kinney, 1 N. Y., 368; Decker v. Judson, 16 id., 443; Cadwell v. Colgate, 7 Barb., 258, 259; Morton v. Campbell, 37 id., 184; Armstrong v. Gar-row, 6 Cow., 465; Burrall v. Acker, 23 Wend., 606; Ring v. Gibbs, 26 id., 502; Kavanagh v. Saunders, 8 GreenL, 342.) The defendants are estopped from raising any questions as to the irregularity, invalidity, or illegality of this undertaking. (Levi v. Dorn, 28 How., 217; Bourne v. Mellor, 6 Hill, 496; Coleman v. Bean, 14 Abb., 38; Bates v. Merrick, 2 Hun, 568; Chamberlin v. Applegate, 2 id., 511; Burroughs v. Turner, 24 Wend., 275; Gregory v. Levy, 12 Barb., 610; Morion v. Campbell, 37 id., 179; Fake v Whipple, 39 id., 338; Jarvis v. Sewell, 40 id., 459; Coleman v. Bean, 32 Iiow., 370; Shaw v. Tobias, 3 N. Y., 188; Decker v. Judson, 16 id., 439; Egbert v. Darr, 3 Watts & Serg., 517; Morse v. Hodson, 5 Mass., 314; Holcrook v. Klenert, 113 id., 268; Clapp v. Guild, 8 id., 152; Ring v. Gibbs, 26 Wend., 502.)

      George Adee, for the respondents.
   Boap.dmaN, J.:

The plaintiff was nonsuited upon the ground that the undertaking was void in that it was taken by the sheriff colore officii, in violation of the provisions of the Code, and of the order of arrest under which ho acted. The alleged wrongs consist in accepting a bond with one surety when the Code requires two, and in taking an undertaking in the sum of $2,000 when the order of arrest required bail in the sum of $1,000 only. We feel compelled to differ from the learned judge at Special Term, who held that this bond was taken by the sheriff colore oficii. The evidence shows quite conclusively that the sheriff did not claim the right to take such a bond. He disclaimed such right. The bond was taken subject to the approval of plaintiff’s' attorneys, and at the urgent solicitation of defendants’ testator. He was assured by the sheriff he had no right to take this bond, and if it was not satisfac-torj to plaintiff’s attorneys a bond, snob as the Code and tbe order of arrest required, was to be given. Here is not the oppression, the corrupt use of official power, which will avoid the bond. (Decker v. Judson, 16 N. Y., 442; Burrall v. Acker, 23 Wend., 606.) But this bond or undertaking was not taken to or for the benefit of the sheriff, but of the plaintiff in the action. As between the plaintiff and the defendant, or his surety, any kind of bond or agreement would suffice, if the same was good at common law. (Decker v. Judson, ante ; Ring v. Gibbs, 26 Wend., 502; Morton v. Campbell, 37 Barb., 179; S. C., 14 Abb., 410, 415, 416; Winter v. Kinney, 1 N. Y., 365; Shaw v. Tobias, 3 id., 188.) The right of the plaintiff to imprison the defendant in that action, unless he gave bail, was undoubted. The defendants’ testator, with full knowledge of the facts, in the absence of fraud, corruption, or deceit, voluntarily executed this undertaking to secure the release of the defendant in that action. By reason of the plaintiff’s acceptance thereof, the release of the person arrested was accomplished. The plaintiff has accepted and relied upon such security, and defendants are estopped from setting up the invalidity of their testator’s acts. (See authorities cited, ante; Harrison v. Wilkin, 69 N. Y., 413.) We fully concur with the learned judge that the representatives of the testator are bound by the undertaking, if valid. The obligation thereby assumed survived the death of the testator, although the right of action accrued only after his death, and his executors become hable as such for the damages suffered.

For the reasons given, the order denying a new trial must be reversed, the nonsuit set aside; and a new trial granted, with costs to abide event.

Leabned, P. J., and Westbbook, J., concurred.

Order reversed, and nonsuit set aside; new trial granted; costs to abide event.


author: Boardman, J.:

text:
    THOMAS D. WILLIAMS, Plaintiff, v. JOHN C. MONTGOMERY, Defendant.

      Boundary line — establishment of, by oral agreement — when, conclusive.

    In this action, which involved the determination of the true line between adjoining owners, evidence was given by plaintiff tending to show that, in 1846 or 1847, the line between the respective grantors of the present parties was uncertain and in dispute; that such grantors orally agreed upon the location of the lino, and to erect a division fence on such line; that they afterwards did erect such fence, and severally entered into possession and occupied up to such line and acquiesced in such location for a reasonable length of time, and until the parties to this action bought and went into possession.

      Held, that these facts, if proved, rendered the line so established the boundary line between the parties, even as against the true line, though the true line could, at the time of the trial of this action, be determined with certainty.
    Motion-for a new trial, on exceptions ordered to be heard, in the first intance, at the General Term, after a verdict in favor of defendant. The action was in ejectment to recover about 6-]^ acres of land. The decision of the case turned upon the true boundary line between the lots of the respective parties.

      I. H. Maynard, for the plaintiff.

      Wm. Gleason, for the defendant.
   Boardman, J.:

These parties were and are adjoining owners of lands. It is claimed, and the evidence tends to show, that the boundary line between their grantors was doubtful, uncertain, and in dispute; that such grantors of the parties settled and fixed upon a boundary line between them; that they built a fence thereon and severally occupied up to such line for a considerable length of time, and until after the parties to this action became the purchasers thereof. By the paper title, plaintiff’s land was wholly on division sixty-four, while defendant’s land was wholly on division sixty-three, and the boundary line between these, divisions was the true boundary line between their farms, and the one about which so much evidence was given on the trial.

Under tbe facts, as they are claimed to exist, the plaintiff insisted that a line had been fixed and agreed upon between the respective grantors of the parties, which was final and conclusive upon them and their privies in estate. The court was, therefore, requested by the plaintiff to hold and to charge, in substance, that if the line between the respective grantors was uncertain and in dispute in 1846 or 1847, and such grantors did then orally agree where the line should be, and that they would erect a division fence between them on the line so agreed upon, and afterwards did erect such fence, and severally entered into possession and occupied up to that line and maintained such division fence, and acquiesced in such location for a reasonable length of time, and until after plaintiff bought and went into possession, such line became the boundary between such grantors and the parties to this action, and all are bound by its location. The judge declined so to charge, and instead said to the jury, in substance, that if the boundary line was uncertain in 1847, and had since continued to be uncertain, and the jury cannot say from the evidence where the true line is to be found now, the jury may, in its discretion, adopt the line so agreed upon in 1846-7. The judge adds: “ I say you may adept it as a legal proposition, but I do not charge you that you are bound to adopt it. I say you may have a choice in your discretion, if the case is such that you cannot determine from all the evidence where the true line is.” The plaintiff excepted, to the refusal to charge as requested, and to the charge as made. These exceptions constitute the principal subjects for review.

In both respects we think the learned judge erred. The law seems to be well settled that adjoining owners, under the facts claimed to exist in this ease, may fix, settle and agree, upon a division line between them which shall be binding upon them and their grantees, if occupied and possessed by them up to such fine, and acquiesced in for a reasonable time thei'eafter. The following cases lay down or illustrate this rule. (Vosburgh v. Teator, 32 N. Y., 561; Adams v. Rockwell, 16 Wend., 285, and note; Ambler v. Cox, 13 Hun, 295.) No doubt seems to have been ■ entertained that the true line was, and still is, in doubt, because I the burden of the testimony related to that subject. The defendant now contends against tbe sufficiency of the evidence of an uncertain or disputed boundary to justify such a claim. He also denies that the evidence is sufficient to warrant the jury in finding a location of this line by the agreement of the parties. The charge of the judge, however, recognizes the existence of evidence of both facts, and submits it for the consideration of the jury. While there was thus enough evidence to submit to the jury, it was important that it should be correctly presented. The court refused to charge the law as it is believed to be. It was also error to charge, in substanee, that if the jury can from the evidence find where the true line is at the time of the trial, then the agreement of the grantors of these parties, whatever it may have been, is of no consequence, and is not binding. On the contrary, we suppose a valid agreement fixing the boundary line would become absolutely binding, even against the true line, if at some future time it could be found with certainty. There is some confusion in the language of the charge due, it is feared, to bad reporting. Still, it is apparent that the judge insists upon-the jury finding the true line, if it can be done, and that such true line, when found, shall control their verdict. This did not give fair effect to the evidence relating to the doubtful boundary line, and the agreement to settle it. We do not say the boundary line between divisions sixty-three and sixty-four was doubtful, uncertain, or in dispute in 1846, or at any time since. That was a question to be determined by the jury. So, too, of the agreement to fix the boundary. If it shall be found that there never was.any uncertainty as to. the line; that there never was any agreement to fix it by parol, of a nature to bind the parties, then the true line between sixty-three and sixty-four will control the respective rights. We cannot consider these questions of facts upon exceptions, but it is not probable that the case is so barren of evidence as to take them away from the jury. It is a subject of regret that a cáse, which has already involved so much labor and expense in comparison with tjhe amount involved, should be sent back for a new trial. Continued litigation must be ruinous to the parties. But the error is one which may have, and very likely did control the action of the jury.'; The case may have been propei’ly decided by the jury; the result1, may be right; but we cannot overlook the possible wrong which may have been done plaintiff by substantially ignoring his claim of title, founded on the alleged agreement of Downs & Teed.

For the reasons stated a new trial must be granted, with cos ,s to abide the event.

Learned, P. J., and Westbuooic, J., concurred.

New trial granted; costs to abide event.


author: BoaudmaN, J.:

text:
    EDWARD J. CHAPIN, Respondent, v. JOSEPH THOMPSON, Appellant, Impleaded with HARRIET THOMPSON, ABIEL E. THOMPSON, as Assignee of JOSEPH THOMPSON, for the Benefit of his Creditors, CHARLES BUTLER and PHILO WILCOX.

      Code of Civil Procedure, § 873 — examination of parties before trial — court not bound to grant — when denied.

    Under section 873 of the Code of Civil Procedure, regulating the taking of depositions of parties and witnesses before trial, the court is not bound to grant an order in every case where the application is formally correct, but it may examine into the facts and the object thereof to see that the law is not being perverted to mischievous and unjust ends.
    An order will not be granted where the applicant only seeks to find out what the ’ opposite party will swear to, so as to enable him to prepare to meet and overcome it.
    Appeal from an order made at Special Term, denying a motion to vacate an order for defendants’ examination before trial, under sections 870, 872 and 873 of the Code of Civil Procedure.
    The action was brought to foreclose a mortgage given by one Thompson to one Holmcr, and by the latter assigned to the plaintiff. The defense was usury.
    The affidavit made by the plaintiff, and used in procuring the order of examination, after setting forth the nature of the action and defense, stated, among other things, as follows: “ Deponent further says that the facts and circumstances connected with the loan of money for which the bond and mortgage mentioned in the complaint were given; what sum of money was loaned by said Helmer to said Thompson; the agreement then entered into; what was said and done by and between said defendant Thompson and said Helmer at the time of said loan, and the execution and delivery of said bond and mortgage; and especially the facts and circumstances connected with the first answer or defense of said defendant Thompson herein, and the allegations therein contained as aforesaid; and the facts and circumstances connected with the other matters of defense set up by the defendant Thompson in his answer, except those in reference to the assignment of the bond and mortgage herein by Helmer to the deponent, ai’e all and each of them peculiarly within the knowledge of the defendant, Joseph Thompson, and are not all or any of them within the knowledge of this* deponent. That, in order to enable this deponent as such plaintiff herein to prepare properly for the prosecution of this action, it is material and necessary for deponent to examine the defendant, Joseph Thompson, before trial herein, under the provisions of sections 870, 872, 873, etc., of the Code of Civil Procedure for the purpose of ascertaining the facts and circumstances, as aforesaid, so within the knowledge of said defendant Thompson, and not within the knowledge of deponent.”

      Magone & Holbrooh, for the respondent.

      Edward G. James, for the appellant Joseph Thomnson, impleaded.
   BoaudmaN, J.:

The provisions of the Code of Civil Procedure (§§ 870, etc.), attempt to consolidate all prior provisions of law touching the taking of depositions of parties and witnesses in advance of the trial of the action. It has already given rise to conflicting decisions' — one in the New York Common Pleas, by a divided court (Hynes v. McDermott, 55 How., 259), and one in Supreme Court, first department. (Beach v. Mayor, 4 Abb. [N. C.] 236; S. C., 14 Hun, 79.) Before these decisions it had been held by LawreNce, J., hi Webster v. Stockwell (3 Abb. N. C., 115); by SaNfokd, J., in Ludewig v. Pariser (4id., 246), and in Corbett v. De Comeau (id., 252), that the granting of these orders was obligatory, and hence, they could not be set aside or vacated. A different view was taken by J. F. Daily, J., in Hynes v. McDermott (5 Wkly. Dig., 166), which was reversed, however, as we have seen, by a divided court, in the General Term of Common Pleas, C. J. Daily dissenting. In a still later case (Brandon Mfg. Co. v. Bridgman, 7 Wkly. Dig., 37; S. C., 14 Hun, 122), the New York General Term has held that the examination of a party before trial assimilates to the former remedy by bill of discovery, and that the former practice, as to the nature and extent of the discovery to be permitted, still prevails. It would seem, from the abstract, however, that the order appealed from was under section 391 of old Code. It is not doubted that the Special Term has the power to vacate these orders for examination. It has uniformly been exercised. The compulsory language is not, then, conclusive. Reason may be shown why the order should be vacated. What better reason can be given than that the examination is not in good faith wanted for the purposes recognized as proper by the act; that it is, in fact, a mere fishing expedition, a search after an adversary's evidence, or the names of his witnesses, or other things not within the object of the law. The power to vacate would, of course, exist where the affidavit was insufficient. Such is the view taken in Beach v. Mayor (4 Abb. [N. C.], 236; S. C., 14 Hun, 79), by the New York General Term. Davis, P. J., says the Code contemplates an examination to be used as a deposition on the trial. The application must show such a purpose, and if it fails to show that, but, on the contrary, an intent to force the adversary to give such information as might be necessary to enable the party seeking it to hunt up witnesses to be used against him, the application should be denied or set aside as improvidently granted. This result satisfies our judgment. We prefer not to recognize the absolute right, in every case where the application is formally correct, to an order for an examination. We prefer to recognize the right o.f courts and judges to examine into the facts and objects, to see that the law is not being perverted to .mischievous and unjust ends. The adoption of the eighty-ninth rule is an indication of the sense of the judges that such power existed, and is an attempt to regulate it. We conclude, therefore, that the right to such orders is not absolute, but subject to such supervision and control as has been indicated.

A further reason exists why this order should not be permitted to stand. The affidavit does not show all the facts required as a condition to its issue. By subdivision 4 of section 872 of the Code of Civil Procedure, the plaintiff was required to show that the testimony of the defendant was material and necessary for the plaintiff, or the prosecution of the action. No such fact is shown. Plaintiff’s affidavit in this respect is: “ That, in order to enable such plaintiff to prepare properly for the prosecution of this action, it is material and necessary for plaintiff to examine the defendant before trial herein for the purpose of ascertaining the facts and circumstances as aforesaid, so within the knowledge of defendant, and not within the knowledge of plaintiff.” In other words, it is not the testimony of the defendant which is material and necessary as required by the Code. But it is material and necessary to examine the defendant and find out what he knows or will, swear to, so as “ to enable plaintiff to prepare properly for the prosecution of this action.” This is an entire departure from the spirit of the Code. It is not an effort to take testimony to be used upon the trial. It seeks to find out what defendant will swear to, so as to prepare to meet and overcome it. The case is brought entirely within Beach v. Mayor (ante), and is controlled by that decision, which had not been published or called to the attention of the learned judge at Special Term, when he sustained this order. In the case of Wheeler v. Miller, decided at the Special Term, the application was defective, like the present one, and the order for the examination was set aside for that reason.

Again, we do not think there is a substantial compliance with the Supreme Court rules. In 1871 a rule was made regulating the practice on these applications, and providing for an affidavit and its contents. The present rule (eighty-nine) though new, has the same objects in view. By all the rules, as well as by former practice, it was essential to show good faith, an honest purpose, and a legitimate claim to discovery. Buie eighty-nine provides for the same thing. In addition to the requirements of the Code, the affidavit shall specify the facts and circumstances which show that the examination is material and necessary, so that the 'judge' may see if the application comes within the purpose and intent of the law.

For the reasons given, we think the order of the Special Term should be reversed, with ten dollars costs and printing disbursements, and the motion granted, with ten dollars costs.

Learned, P. J., and Bockes, J., concurred.

Order reversed, with ten dollars costs and printing disbursements, and motion granted, with ten dollars costs.


text:
    In the Matter of the Application of the WAVERLY WATER-WORKS COMPANY, to Acquire Title to Lands of W. W. SHEPARD.

      Proceedings to take lands — mght of company to discontinue — costs of the proceedings.

    Where proceedings are instituted by a corporation, under the laws of this State, to acquire title to lands, such corporation may, at any time before title thereto is actually acquired, abandon such proceedings upon payment of the taxable costs and expenses, and it cannot be required to pay, in addition thereto, other charges and counsel fees.
    Appeal from two orders made at a Special Term, relating to the costs required to be paid by the Water-Works Company, as a condition of the discontinuance of the proceedings instituted by it to acquire title to lands under .chapter 737 of 1873, and chapter 415 of 1876.

      David B. Hill, for the Water-Works Company, appellant.

      McGuire &Taber, for W. W. Shepard, respondent.
   Boardman, J.:

Two applications had been made by this company to acquire title to the lands desired, which had been denied, with ten dollars costs in each proceeding. This is the third application, and under it commissioners were appointed -to assess the damages to be allowed to Shepard, the owner, for the lands to be taken. The commissioners made an award of $7,200. The water-works company being dissatisfied with such award, gave notice of discontinuance, and moved for the requisite order to effect that purpose. The court made an order granting the motion, upon condition that the company pay to Shepard his expenses, charges, and counsel fees of these proceedings, and appointed a referee to take proof of the amount of said expenses, etc., and to make report with the evidence taken. From so much of said order as allows a greater sum than such taxable costs and disbursements as are allowed for similar services in civil actions the company appeals. This is one of the two appeals taken which were argued, and will be considered together. On the subsequent hearing before the referee, proofs were given, against the objection of the company, of the expenses, charges, and counsel ■ fees of Shepard upon the two former applications, as well as in the present one. The referee made return of the testimony taken by him to the court, and found that the company should pay Shepard in all for expenses, charges, and counsel fees $605. Afterwards the court at Special • Term, upon a hearing on this report, fixed the sum to be paid at $375, besides the referee’s fees fifty dollars. Such allowance was •a gross sum, and the order does not indicate the items from which the sum is made up. From this order the company also appeals, and upon the same grounds as on the appeal from the other order. It is now contended that both of these orders are erroneous, in so far as they contemplate, authorize, or allow more than taxable costs and disbursements allowable in similar services in civil actions. In the outset it may be safely assumed and decided that no costs or allowance of any kind could properly be made in this proceeding for the two former applications. Each of those applications had been terminated by the order of the court, and Shepard had been allowed ten dollars costs on each. If the orders in those proceedings were not satisfactory, the remedy was by appeal. Those proceedings were in no sense a part of the present application, nor can the right to costs, or the amount of costs properly to be recovered in those proceedings, be adjusted in this.

What costs might the court, then, impose on the company as a condition of its discontinuance of.this proceeding? That is the point to be decided.

No doubt this is a special proceeding. (Code, § 3; In re N. Y. C. R. R. Co., 11 N. Y., 276; Rochester, etc., R. R. Co. v. Beckwith, 10 How., 168; Rens. & Sar. R. R. Co. v. Davis, 55 N. Y., 145.) By section 3 of chapter 270, Laws 1854 (4 Edm. St., 682), the allowance of costs in special proceedings is in the discrer tion of the court, but when allowed they shall be at the same rate allowed for similar services in civil actions. This language seems conclusive in cases like the present, and so the courts have held. (Rens. & Sar. R. R. Co. v. Davis, supra; In re Syr. & B. & N. Y. R. R. Co., 4 Hun, 311, 315; In re Barnett, 52 How., 73.)

But the leave to discontinue was upon condition of payment of all of Shepard’s expenses, counsel fees, etc., instead of taxable costs and disbursements. The respondent insists that the right to discontinue was in the discretion of the court, and hence it could be granted on such terms as the court saAV fit to impose irrespective of any statutory rule. In this, we think, the respondent is in error. As we understood the case of In re Comm'rs Wash. Park (56 N. Y., 144), the right to discontinue is absolute, upon payments of the legal costs and disbursements. What constituted the legal costs in that case was not before the court, and was not decided. The result of the decision exempts the applicant in such cases from taking the.property, if he chooses to decline. If he cannot be compelled to take the property, the only remedy of the laud-owner is to recover his costs. It is not in the power of the court to prevent the applicant from stopping his proceedings. The right to discontinue is like to that in a civil action. The conditions to be imposed are similar. In either case tUe action of the court is controlled by the law, and not by discretion or caprice. We conclude, therefore, that the orders are erroneous, in so far as they tend to exact from the company a greater sum than the taxable costs and disbursements.

It may be objected that this rule is severe upon the land-owner. We concede it. But the costs given to a successful party are not intended as a perfect indemnity for all his expenses and losses. If a defendant succeeds in an action of ejectment, his taxable costs may be quite inadequate to render him whole for expenses incurred in his defense. It may be a hai’dship, but the courts cannot help him. So is it in this case. We “are satisfied our conclusion is in accord with the law. In addition, we are glad that it results in taking away from judges a discretion, always so unpleasant, uncertain and variable, as to the amount that may be allowed. We should think it fortunate, if no such discretion were ever given in any case.

We conclude, therefore, that the first order should be modified by striking out the words, “his expenses, charges and counsel fees of these proceedings,” and inserting in lieu thereof “his costs and expenses to be taxed in this proceeding,” and that the order of reference therein contained be stricken out.

The second order is, as a consequence, wholly reversed.

The two appeals having been argued as one, the Waverly Waterworks Company is allowed ten dollars costs of appeal, and printing disbursements to be paid by the respondent.

LearNed, P. J., and Westbrook, J., concurred.

First order modified by giving Shepard taxable costs and disbursements only; second order reversed with ten dollars costs, and printing disbursements to be paid to company by Shepard.


author: BoardmaN, J.:

text:
    PETER A. ROSEPAUGH, Respondent, v. BENJAMIN A. VREDENBURGH, Appellant.

      Verbal agreement, void wider the statute of frauds — damages recoverable on breach of.

    The plaintiff and one Simmons worked a stone quarry, belonging to defendant, under a verbal agreement with him, that, as long as there was any stone in a certain direction, they should be allowed to quarry them, on paying a certain royalty or rent to defendant. In pursuance of this agreement, plaintiff and S. had dug a ditch to drain the quarry and uncovered a portion of the stone, when defendant repudiated the agreement and notified them to quit the quarry. Simmons subsequently assigned his claim to plaintiff.

      Held, that plaintiff was entitled to recover the value of the services rendered by himself and Simmons, in digging the ditch and uncovering the stone.
    Appeal from a judgment of the Ulster County Court, in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made on the judge’s minutes.
    The plaintiff' and one Levi T. Simmons worked a blue-stone quarry of the defendant, paying him a certain share of the value of the stone sold therefrom, as royalty or rent. The lower or north end of the quarry filled with water, and it became necessary to drain said quarry by means of a ditch, at considerable expense. Before incurring said expense, and the expenses incident to opening and uncovering said quarry, the plaintiff and said Simmons applied to the defendant for a lease, or for boundaries, so that, upon incurring said labor and expenses, they could hot be turned out of said quarry without having the benefit of their labor and expenses. The defendant then verbally agreed that westward, as far as there was any stone, between the ends of the blocks on the north and the Lockwood quarry on the south, they should have said quarry. Relying upon the assurances of the defendant, that they should have the quarry as far westward as there was any stone, between the points on the north and south designated, the plaintiff and the said Simmons drained, and stripped and uncovered said quarry, at an expense of some $500. After this'had been done, the defendant repudiated his contract as void, for the reason that it was not in writing, and sued the plaintiff in trespass for working said quarry. The jury decided the case in favor of the defendant in that suit, who is the plaintiff in this. Thereupon the defendant in this action, on the same day, served upon the plaintiff herein a notice in writing, requiring him to remove from and quit said quarry within one month, after the service of said notice, and the plaintiff, two days before its termination, accordingly left the quarry. Simmons having assigned his claim to the plaintiff, the plaintiff thereupon brought this action to recover the value of the labor expended in draining and stripping and uncovering said quarry.

      J. Newton Fiero, for the appellant.
    Plaintiff’s ■ remedy was by an action for specific performance, or in some form in which the equity side of the court could give him adequate relief. (Wheeler v. Reynolds, 66 N. Y. R., 227 [236]; Bennett v. Abrams, 41 Barb., 619 [626]; see Freeman v. Freeman, 42 N. Y. R., 34.) This being a matter of purely equitable cognizance, the County Court had no jurisdiction, and the action cannot be maintained. (Constitution, art. 6, § 15 ; Code of Procedure, § 30.) The plaintiff was never in fact evicted from the quarry, and therefore no cause of action ever accrued to him upon any theory as to his rights or equities. (Ogilvie v. Hill, 5 Hill, 54; 'Edgerton v. Page, 12 How., 60; 14id., 117; Townsendv. Gilsey, 1 Sweeney, 129; Edgertonv. Page, 20 N. Y. R., 284; Lounsbery v. Snyder, 31 id., 516.) The right to work the quarry was a personal privilege, and not assignable. The assignment from Simmons to plaintiff of his interest was invalid for that reason. (Pierrepont v. Bernard, 2 Seld., 279, at page 286 in opinion, citing 3 Kent’s Com., 452.)

      Van Etten & Clearwater, for the respondent.
    The contract that the plaintiff was to have the quarry mentioned, as far as there was any stone between the ends of the blocks on the north and the Lockwood quarry on the south, was, so far as it remained unexe-cuted, void by the statute of frauds. (2 R. S., 134, §§ 6 and 8; Houghtaling v. Houghtaling, 5 Barb., 379; 1 Co wen’s Treatise, [5th ed.,] § 141.) If one pays money, or renders service, or delivers property upon an agreement condemned by the statute of frauds, he may recover the money paid in an action for money had and received, and he may recover the value of his services, and of his property, upon an implied assumpsit, provided he can show that he has been ready and willing to perform the agreement and the other party has repudiated or refused to perform it. (Bay v. JST. T. a R. R. Go., 51 N. Y., 590; Wood v. Shultis, 4 Hun., 309; Liskv. Sherman, 25 Barb., 433; Harris v. Frank, 49 N. Y., 24; Burlingame v. Burlingame, 7 Cow., 92; King v. Brovm, 2 Hill, 485; Lockwood v. Barnes, 3 id., 128; Baldwin v. Palmer, 10 N. Y., 232; Pulbrook v. Laws, 16 English R., 340, and note; Erben v. Lorillard, 19 N. Y., 299; S. G., on second appeal, 2 Keyes, 567, 571; 1 CoAven’s Treatise [2d ed.,] p. 152; [3d ed.,] p. 172; Gal-vin v. Prentice, 45 N. Y., 162.) And the measure of damages is the value of the services or work performed. (King v. Brawn, 2 Hill, 485; Erben v. Lorillard, 19 N. Y., 302, 304; S. G, on second appeal, 2 Keyes, 567, 571.) And not the value of the void lease, or of the stone, or land, of which the party has been deprived, for that would amount to treating the void contract as valid. (Erben v. Lorillard, 19 N. Y., 302, 304; Lay v. N. Y. Q. B. B. Co., 51 id., 590; 1 Wait’s Law and Practice, 639; Ham v. Goodrich, 37 N. H., 185.)
   BoardmaN, J.:

It is conceded that the contract under which plaintiff worked in defendant’s quarry was void by the statute of frauds. So far, however, as such contract had been executed by and between the parties, the terms of the contract would determine their respective rights, and the court will not disturb them in relation thereto. The defendant having taken advantage of the invalidity of the contract to discharge the plaintiff, and forbid his performance of further labor under it, becomes liable to plaintiff on a quantum meruit for services rendered and not paid for. To the extent that the contract was performed and plaintiff’s services paid for, he may retain such pay or profits. (Harris v. Frink, 49 N. Y., 24.) But services rendered and not paid for constitute a basis for damages. One who renders services under a contract void by the statute of frauds may recover the value of such services, if he has been ready to perform the contract, and the other party has refused. (King v. Brown, 2 Hill, 485; Galvin v. Prentice, 45 N. Y., 162; Day v. N. Y. C. R. R. Co., 51 id. 583.) In this case the plaintiff cannot recover damages so far as his services were compensated by the stone taken out under the contract. But for-services not thus compensated, he is entitled to recover their value. The measure of damages is the value of the services, and not the ' value of the stone in the quarry, or of the void contract. (King v. Brown, ante; Erben v. Lorillard, 19 N. Y., 299, 302, 304; Day v. N. Y. C. R. R. Co., 51 N. Y., 590.)

The action was tried upon the law as here stated, and we think the rule of damages adopted by the court justified the rulings upon the admission of evidence on that subject. The defendant could not deduct the plaintiff’s profits already realized from the the value of services thereafter rendered. In regard to the ditch dug to drain the quarry, it is not clear that the jury allowed plaintiff anything for digging it. ■ But we think he was plainly entitled to make that proof, and to recover some portion of that expense; such proportion as the stone to be taken out bore to that already removed. There is no reason why the whole expense of the ditch should be charged to plaintiff, and the defendant have all its benefits for future works. The plaintiff was allowed to recover for so much of the top removed as was over the stone, which he was not allowed to get out, and which the defendant can now get out without the expense of uncovering. It is evident, therefore, that, upon any just rule of damages, the plaintiff recovered no more than a fair compensation for the services rendered and benefits bestowed upon defendant.

It is not seen upon what principle the plaintiff is or should be restrained from recovering Simmons’ damages. If Simmons had a cause of action, either jointly with plaintiff or severally, he could transfer it to plaintiff, who could then maintain an action thereon in his own name. In the case of Eddy v. Cole, wherein the judgment-roll was handed up to us, it appears that Clark, the assignor of Eddy, had failed and neglected to pay his rent, and therefore he was ejected from the quarry. That being true, it was a sufficient reason why he had no cause of action, and Eddy acquired none by his assignment. But that case does not show the grounds upon which the decision was made upon appeal, and is of little value as authority.

We think the assignment transferred a cause of action, upon which plaintiff could recover, if Simmons had one. The defendant insists this action should have been brought in equity. But assuming that an action in equity, to enforce a specific performance, could have been maintained, we are yet clear that plaintiff had an election of actions, either for such specific performance or for the damages caused by defendant’s repudiation of his contract. (2 Story’s Eq. Jur., §§ 716, 717.) We think the result in this case is just, and that no errors have been committed which should avoid the recovery.

• The judgment and order are therefore affirmed, with costs.

LeakNed, P. J., and Bockes, J., concurred.

Judgment affirmed, with costs.


author: LEARNED, P. J.:

text:
    IRA D. ESMOND and JAMES B. BAILEY, as Executors, and CORNELIA LOSEE, as Executrix, etc., of HERVEY LOSEE, Appellants, v. DANIEL A. BULLARD, Impleaded, etc., Respondent.

      IAaUUty of the trustees of a corporation —judgment against the corporation not evidence against its trustees — Word “ debts” does not include a liability far a tart.

    An action against a trustee of a manufacturing corporation, to enforce the personal liability created by the act of 1848, must be founded on the original claim against the company, and not upon a judgment recovered against it.
    Such judgment is not even pn'ima fade evidence of the existence of the debt, as against the trustee.
    Section 12 of chapter 40 of 1848 rendering the trustees personally liable, in certain cases, for all debts of the corporation, does not render them liable for torts committed by the corporation.
    Appeal from a judgment in fav.or of tbe defendant, entered upon the trial of this action by the court without a jury.
    In February, 1864, a boiler owned by the Saratoga Paper Company, having exploded and injured the property of Hervey Losee, he brought an action against the corporation, and D. A. Bullard and Buchanan, two of the trustees, to recover for such injuries. Judgment was rendered in favor of the trustees, but against the corporation, in April, 1867. The corporation filed a report in January, 1865, but never thereafter.
    This action was commenced in June, 1875, against the trustees of the Saratoga Paper Company, to enforce payment of such judgment, on the ground that said company neglected to file an annual report of the condition of said company in the Saratoga county clerk’s office, within twenty days after the first day of January, 1866, and ever since thattime, down to the commencement of this action, has also failed to make out and file any report, as the statute in such case expressly required. The defendants answered separately, and the action was afterwards brought to trial at a Special Term of the court, before Mr. Justice Landon, who, after hearing the evidence, made a decision in favor of the defendants, dismissing the complaint with costs. After the appeal was taken, the original plaintiff Losee died, and the present plaintiffs were duly appointed bis executors, and were also duly substituted as plaintiffs herein, in his place and stead. The main grounds upon which the judge decided the case in favor of the defendants were : 1. That the judgment in favor of Losee, creating the debt against the corporation, was not sufficient to found a claim upon, in favor of the creditor against the trustees, under the statute in question, but that the action must be founded upon the original claim, and that, in this case, being for damages occasioned by a toi’t and not arising upon contract, the same did not constitute a debt contracted, as the statute requires. 2. That the claim was barred by the statute of limitations, for the reason that more than three years had expired after the claim arose, and also after the first failure of the trustees, to file a report thereafter, occurred, before the suit was commenced, and that the right to sue the trustees did not revive and continue upon each subsequent and successive neglect of the company to file a report after the first, but was exhausted by a single default, and the statute commenced to run at that time.

      A. Pond, for the appellant.
    A claim for damages occasioned by a tort, as in this case, when it becomes liquidated, whether by being voluntarily settled by the company or coercively merged in a judgment, thereby becomes a debt by contract, and its owner a creditor within the express terms of the above-quoted statutory provision. (Mallory y. Leach, 23 Iiow., 507, 5C9; McGuire y. Gallagher, 2 Sand. S. C., 402; N. Y. & FT. II. B. R. Go. v. Schuyler, 34 N. Y., 85, 86; Taylor y. Root, 4 Keyes, 335, 344; Bathgate v. Haskins, 59 N. Y., 539.) That such language in a statute includes the claim in question, as •being within the policy of the statute, has been decided repeatedly in other States. {Mill Dam Foundry v. Hovey, 21 Pick., 455.; Haynes v. Brown, 36 N. H., 545.) And that a debt created by a judgment is also within the statute in question, has also been decided in this State. {Andrews v. Murray, 9 Abb., -8; and see Merchants' Bank v-Bliss, 35 N. Y., 416, 417; also, Wilson v. Buydam, 64 id., 17v./ The liability of a trustee, upon the failure of the corporation to make* the annual report called for by the statute, is co-extensive and concurrent with that of the corporation, quoad, the debt which was sought to be fixed upon him. (Whitney Anns Go, v, Barlow, 63 N. Y., 62, 73; Jones v. Barlow, 62 icb, 202.) By each successive default of the company to file a report of its financial condition, as required by tlie statute, each trustee thereupon became absolutely liable to pay all the debts of the company then existing. (Jones v. Barlow, 62 N. Y., 202, 206; Boughton v. Otis, 21 id., 261; Shaler, etc., Co. v. Bliss, 27 id., 297; Nimmons v. Tapjjan, 2 Swee., 652.)

      E. F. Bullard, for the respondent.
    This action is barred by the three years’ statute because it is penal. (Merchants' Bank y. Bliss, 35 N. Y., 412.) The statute, being highly penal, must be strictly construed. (Boughton v. Otis, 21 N. Y., 262.) The plaintiff’s judgment for a tort is not a debt within the meaning of this statute. (Heacoch v. Sherman, 14 Wend., 59.) A judgment against the corporation is not evidence against the trustees. (Miller v. White, 50 N. Y., 137; A dams v. Mills, 60 id., 533; Jones v. Barlow, 62 id., 202.)
   LEARNED, P. J.:

We think that the decisions of the Court of Appeals have settled the questions presented in favor of the defendant. It is undoubtedly true, as urged by the plaintiff, that a judgment is a contract of the highest kind. (Taylor v. Root, 4 Keyes, 344.) So if the corporation, in consideration of the alleged damages, had given to the plaintiff’s testator a note, that note would have been a contract. But the case of Miller v. White (50 N. Y., 137), was an action against trustees under this act. At the Circuit the court held the judgment-roll against the corporation conclusive evidence against the trustees. The Court of Appeals reversed the judgment, and the opinion declares that the judgment-roll was not even prima facie evidence against them. As the case was sent back for a new trial, and as all the judges concurred, we must understand that this remark was not obiter, but was laid down for the guidance of the court below. In Whitney Arms Co. v. Barlow (63 N. Y., 62), it was again stated: “ The facts upon which the debt is founded must be proved. The naked admissions of the corporation, or judgment against the corporation, ai’e not evidence against the testator.” Again: “When facts are proved which would establish the existence of a debt against the corporation, the liability of the trustees follows upon the proof of the other facts,” etc.

In the present case the proof is that a boiler, operated by the corporation, exploded in February, 1864, and injured the plaintiff’s property; and that the plaintiff afterwards, in April, 1867, recovered a judgment against the corporation for the damages. The plaintiffs then did not prove, in the present action, the amount of their damages, or that the explosion was due to the negligence of the corporation; and if the judgment is not evidence against these trustees, then there was no proof even of a liability on the part of the corporation. But, again, the statute says “that the trustees in certain cases shall be liable for all the debts of the company then existing, and for all that shall be contracted,” etc. (Laws, 1848, ch. 40, § 12.) A liability for a tort is not a debt under a statute which is to be construed strictly. It is not contracted; for it does not grow out of contract. The cases in other States cited to support the contrary view were actions on contracts. (Mill Dam v. Hovey, 21 Pick., 455; Haynes v. Brown, 36 N. H., 545.) The whole object of the statute is to protect persons voluntarily dealing with the corporation and trusting its credit; not to protect those injured by a mere tort.

The judgment should be affirmed, with costs.

Present — Learned. P. J., Boardman and'Westbrook, JJ.

Judgment affirmed, with costs.


text:
    ISAAC H. BARNES, Respondent, v. JEHIEL J. WEST, Impleaded, etc., Appellant.

      Compulsory ref 'errence— whenit may Toe ordered — Code of Civil Procedure, § 1013.
    Under section 1013 of tlie Code of Civil Procedure, as -under tlie former practice, a compulsory reference, even in cases triable by the court, can only be ordered where the trial will require the examination of a long account.

      Appeal from an order made at Special Term, striking out a defense of usury as sham, and awarding judgment of foreclosure in favor of plaintiff, unless defendant should consent to a reference of the action.

      David B. EM, for the appellant.

      Gabriel L. Smith, for the respondent.
   LEARNED, P. J.:

This is an action for foreclosure. The defendant West sets up two defenses; one usury, the other fraud, in this that when he bought the land of the owner of the equity, that owner represented to him that the mortgage was for $4,000 instead of $5,000, and that the holder of the mortgage, the plaintiff, was present and assented to this statement, and that all this was with intent to defraud. A motion was made to strike out each defense as sham; or, if not stricken out, then to strike out the defense of usury as sham, and for judgment on the other to the amount of $4,000. The Special Term made an order, striking out the defense of usury as sham and for judgment of foreclosure for $4,000, unless the defendant should consent to refer the action to a referee to hear and decide. The defendant West appealed.

It is not certain, from the language of the order, whether the defense of usury is stricken out at all events, or only in case the defendant does not consent to refer. But we think that that defense should not be stricken out, either absolutely or on a contingency. The answer was verified. (Wayland v. Tysen, 45 N. Y., 281; Thompson v. Erie R. R., 45 id., 468.) Probably ■'the order was intended to strike out that defense conditionally; because, as to the other defense (which was only partial), the plaintiff appears to have been entitled to judgment to the extent of $4,000 on the answer itself.

Assuming, then, that the defendant by consenting to refer (as he has since done) has relieved himself from the striking out of the usury answer, and that that whole answer is in the case, the only question remaining is, whether in such an action the court can compel a reference. If the court had no power to grant a compulsory reference, then it could not be right to force the defendant to accept such a reference, by directing that, if he did not, his verified answer should be stricken out.

There is no question that, under the former Code, references could be ordered compulsorily only where the trial involved the examination of a long account. Section 1013 of the New Code is claimed by the plaintiff to have changed this, and to have given the right to the court to order a reference compulsorily in every action triable by the court. It is doubtful what is meant by the part of the section which is supposed to touch this point. And the note of the codifiers to this section adds to the doubt.

The first sentence of the section provides that the court, without consent, may direct a trial by a referee, 11 where the trial will require the examination of a long account.” The other sentence provides that, in an action triable by the court, a reference may be made as prescribed in this section, to decide the whole issue or any of the issues, or to report findings. And the plaintiff claims that this means that, in any action triable by the court, a reference may be ordered compulsorily; that is, that the words, “ as prescribed in this section,” refer to the words “ of its own motion,” etc. The defendant claims that they refer only to the clause, “ where the trial will require the examination of a long account.”

To give the court the absolute power to refer every equity action of its own motion and without consent, would be such a radical change in our system of law that I cannot think it was intended by the doubtful and uncertain language of this section. I see no reason and no propriety in a law which would permit the court to throw off1 altogether the labor of trying equity cases, and to devolve that most important duty on referees. And I think, therefore, that the second sentence means only that, in actions involving a long account and triable by the court, a compulsory reference may be ordered of the whole issue or a part of the issue, or to report findings, etc.

And therefore, in my opinion, the court had no power, without the consent of the parties, to order a reference in this case. If this be so, I think it was not right to order an answer to be stricken out, as sham, unless the defendant would consent to a reference. For the defendant had a right to a trial of the issue, and to a trial before the tribunal provided by law- — -that is the court. It is very possible that the answer is put in for delay. ' But that is an evil which cannot be prevented ; at least in this way.

The orders must be reversed, under the circumstances, without costs.

Present — Learned, P. J., Boardman and Westbrook, JJ.

Order reversed, without costs to either party.


text:
    JANE SEAMAN, CATHARINE BEST, JOHN B. RACE and ROBERT C. RACE, Respondents, v. HENRY C. HARVEY and SUSAN AMELIA HARVEY, Appellants.

      Conveyance to uses — rule in Shelley’s Case — when grantee takes fee — estates in tail converted into fees — when limitation ovei’, void as too remote.

    In 1811 one Livingston conveyed certain real estate to two persons named in tlie deed, “ upon the trusts, and for the intents and purposes, * * * to the use and behoof of the said Robert T. Livingston and his assigns, for and during his natural life,” and after his death to the use of the parties of the second part, reserving certain rents; “-and for the further use and trust for Margaret Race, of the same place, and the heirs of her body lawfully begotten, from and after the decease of the said Livingston, to enter in and upon the said farms and premises with all and singular the appurtenances, and the same to have and enjoy as her and their estate, subject to the rent herein reserved as aforesaid. And in case of the death of the said Margaret Race without heirs on her body lawfully begotten, for the use and in trust for Mary Livingston, the daughter of the said Robert T. Livingston, her heirs and assigns forever.”

      Held, that the deed gave to Livingston himself an estate for life. That, under the rule in Shelley’s Case, which prevailed in this State prior to the Revised Statutes, and independent of chapter 12 of 1786, Margaret Race would have taken an estate in fee tail general.
    That, by chapter 12 of 1783, abolishing entails, such estate was converted into a fee simple absolute.
    That under the law of this State, as it existed prior to the passage of 1 Revised Statutes, 724, section 22, the limitation over in favor of Mary Livingston was limited upon an indefinite failure of the issue of Margaret, and was therefore void.
    Appeal from a judgment in favor of the plaintiffs, entered upon a verdict directed by the court, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was in ejectment to recover four-fifths of a farm. Both parties claim under a deed made by Robert T. Livingston October 11, 1811. The question is whether Margaret Race, the mother of the plaintiffs, took a fee simple absolute under it, or an estate for life. In the former case the defendants, who claimed under conveyances from her, were entitled to judgment; in the latter case the plaintiffs, her children, were entitled thereto.
    The deed conveyed the farm to John Y. D. Scott and Jacob II. Best. “ To have and to hold the said lots, * * * to the uses and upon the trusts, and for the intents and purposes hereinafter expressed of and concerning the same — that is to say, to the use and behoof of the said Robert T. Livingston and his assigns for and during his natural life, and from and after the death of the said Robert T. Livingston to the use of the said parties of the second part, their heirs and assigns in trust, nevertheless, to yield and pay to the right heirs of the said Robert T. Livingston, their heirs and assigns, from and after his decease, the annual rent, in gold or silver, of eight dollars money of account of the United States of America, forever. * *■ * And for the further use and trust for Margaret Race, of the same place, and the heirs of her body lawfully begotten, from and aftei the decease of the said Robert T. Livingston, to enter in and upon the said farms and premises with all and singular the appurtenanct s, and the same to have and enjoy as her and their estate, subject tb the rent herein reserved as aforesaid. And in case of the death of the said Margaret Race, without heirs on her body lawfully begotten, for the use and in trust for Mary Livingston, the daughter of the said Robert T. Livingston, her heirs and assigns forever.”

      JR. JE. Andrews, for the appellants.
    ■ The limitation in the clause of the deed from Livingston being to “the heirs of her body lawfully begotten,” before the statute of 1786, created an estate in fee tail general in Margaret Race. Then under the'rule in Shelley’s Case she would have taken the fee tail, but for the act of 1786; but under that act she became seized in fee simple absolute. (4 Kent’s Com. [12th ed.], 219; SchoonmaJcer v.
      Sheely, 3 Denio, 485; Lottv. Wylcoff, 2 N. Y., 355; Jacksonv. Van Zandt, 12 J. R., 169; Jackson v. Billinger, 18 id., 368; Brown v. Lyon, 6 N. Y., 419; Bond v. McJSTiff, 38 Sup. C., 91; Tatar v. Tutor, 4 Bar. S. C., 435.)

      H. W. McClellan, for the respondents.
    The intention of the grantor, expressed in the deed, controls the rule in Shelley’s Case. {Tollman v. Wood, 26 Wend., 19; Strikers. Mott, 28 N. Y., 91; Doe v. Banning, 2 Burr., 1106, 1107; King v. Milling, 1 Vent., 231; Doe v. Goff, 11 East, 668; Lowe v. Davis, 2 Ld. Raymond, 1561; Goodlittle v. Herring, 1 East, 264; Guthrie’s Appeal, 37 Penn. St., 9; Chew’s Appeal, 37 id., 23; Jones v. Stiles, 4 Green [N. J.], 324; Williams v. Sneed, 3 Coldw. [Tenn.J, 533; Flourney v. Flourney, 1 Bush. [Ken.], 515.
   LEARNED, P. J.:

Prior to the statute of uses (27 Henry VIII., chap. 10) a grant to one person to the use of another gave the bare legal estate to the grantee, as feofee to uses; while the whole beneficial interest went to the person named in the deed as cestui que use. The rights of the cestui que use were enforced in chancery; but he had everything except the formal legal statute. That statute gave to him a legal estate. In the old technical language it executed the use, so that a legal estate passed to the cestui que use at once, of the same kind and extent with the equitable estate which he would have had by the same deed before the statute.

The deed, therefore, of Robert T. Livingston to John V. D. S. Scott and another, conveyed to the cestuis que use named therein, legal, not equitable, estates. It first gave to Livingston himself a life estate. For under the doctrine of uses and by force of the statute, one could (as it were) convey to himself. After reserving a certain rent to Livingston’s right heirs, it then gave the lands “ to Margaret Race, and the heirs of her body lawfully begotten, * * * from and after the decease of said Livingston, to enter in and upon the said farms and premises with, etc., and the same to have and enjoy, as her and their estate.” Aside from the effect of our statute, hereinafter to be mentioned, the rule in Shelley’s Case (1 Coke, 88) determines what the estate thus granted would be. “ Whenever there is a limitation to a man which, if it stood, alone, would convey to him a particular estate of freehold followed by a limitation to his heirs or to the heirs of his body (or equivalent expressions), cither immediately or after the interposition of one or more particular estates, the apparent gift to the heirs, or heirs of the body, is to he construed as a limitation of the estate of the ancestor, and not as a gift to his heirs.” (Digby Real Property, 195.) For other definitions (see 4 Kent Com., m. p., 215). This rule was in force in New York until abrogated by the Revised Statutes. (Brant v. Gelston, 2 Johns. Cas., 384; 4 Kent Com., m. p., 232.).

This rule has been held to apply even in cases where it appeared to interfere with the intention of the grantor or devisor. (Schoonmaker v. Sheely, 3 Den., 485; Brown v. Lyon, 6 N. Y., 419.) In this last case a devise was to B. during her natural life, and after her decease then to descend to the heirs of her body, and to their heirs and assigns forever.” It was held that B. took a fee. But in the deed in question there are no such strong expressions of the intent of the grantor. The grant is-simply to Margaret Race and the heirs of her body. So that the grantor has not shown any intent to give Margaret Race, as the plaintiffs claim that she had, only an estate for life. According, then, to the language of the deed, and aside from the statute of 1786, Margaret Race would have taken an estate in fee tail general. That statute 1 ‘An act to abolish entails,” etc., passed February 23, 1786 (1 R. S., 52), declares that when any persons are or would be, but for the passage of the act, seized in fee tail, they shall be deemed to be seized in fee simple absolute. Hence Margaret Race took an estate in fee simple. (Lott v. Wykoff, 2 N. Y., 355.)

In opposition to this view, the plaintiffs urge that the trustees held the title, and that Margaret Race had only an equitable estate. They cite the doctrine that where the life estate is equitable and the remainder is legal, the rule in Shelley’s Case did not apply. (Striker v. Mott, 28 N. Y., at p. 91.) But in this deed there is no distinction, as to the nature of the estate, between the estate which the plaintiffs claim Margaret Race took, and that which they claim her children took. Both are legal estates under any construction. She was to enter and enjoy.' Active trusts, it is true, were at an early day excepted from the statute of uses. (Brookes’ Abridg., Feoffment at Uses, 52.) But here is no active trust, and therefore the cestuis que use, as before stated, took legal estates. This, too, is the plaintiffs’ position. For they claim as remainder-men, taking a legal estate under the deed of Livingston, and not by any conveyance from the trustees. If they took a legal title by that deed, so did Margaret Race, and then the rule in Shelly’s Octse applies.

The plaintiffs further urge that the words “ heirs of her body,” must be intended to designate children as purchasers; that if the grantor had intended to convey a fee, he would have used the word “heirs” simply. “But the law of 1786 does not prohibit entails, but, when created, it turns them into estates in fee.” (Lott v. Wykoff, ut supra.) The grantor may have thought that he could still create an estate tail.

There is in the deed a. further clause — “And in case of the death of the said Margaret Race without heirs on her body lawfully begotten, for the use and in trust for Mary Livingston, the daughter of the said Robert T. Livingston, her heirs and assigns forever.” The plaintiffs insist that these words show that Margaret Race took only a life estate. The Revised Statutes (1 R. S., m. p. 724, § 22) have declared that where a remainder is limited to take effect on the death of a person without heirs, or without heirs of his body, the word heirs shall be construed to mean heirs living at the death of the person named as ancestor. But, before that statute, the rule of construction was that such a limitation had reference to an indefinite failure of heirs or heirs of the body. (Wilson v. Wilson, 32 Barb., 328; Patterson v. Ellis, 11 Wend., 259.) The remainder over, therefore, to Mary Livingston was void, as limited on an indefinite failure of the issue of Margaret Race.

The present case is very closely analogous to that of Grant v. Townsend (2 Hill, 554); S. C. (2 Den., 336). After a life estate, the testator gave a half of his real estate to “ R. and the heirs of her body forever; * * * and in case of her death without such heirs,” then he gave the same to certain other persons. It was held that R. took a fee simple; that the devise over to those persons was void; and that even if it were valid, yet, in that case, R. would take a determinable or base fee, and that the plaintiffs, the children of R., could not recover against the defendant claiming under a deed from R. No question of fact is raised in the present case. If Margaret Race had the fee, the defendants now hold it. If she had only a life estate, that ceased at her death.

The judgment and order must be reversed, and judgment rendered for- the defendants, with costs.

Present — LearNed, P. J., BoardmaN and Bockes, JJ.

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