author: AdaMS, J.

text:
    M. Fillmore Brown, Resp’t, v. Harvey M. Remington, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Evidence—Contract—Services.
    In an action upon an alleged agreement that the defendant would collect the fee for legal services rendered by him and the plaintiff, and divide the amount with the latter, the testimony of the client is admissible to show that the plaintiff was not employed, hut agreed to render the services without compensation.

      Appeal from a judgment, entered on a verdict in favor of plaintiff, from an order denying a motion for a new trial, made on the. minutes.

      David Hays, for app’lt; D. H Silver, for resp’t.-
   AdaMS, J.

Without considering the question of whether or nor the contract, which is relied upon by the plaintiff for his cause of action, can be enforced, as to which there is perhaps some doubt (Brewing Co. v. Ernest, 89 Hun, 156; 35 N. Y. Supp. 47), I am clearly of the opinion that error was committed by the learned trial justice, m the exclusion of certain evidence offered by the defendant, and.that such error is fatal to the plaintiff’s re- • covery. The theory of the plaintiff’s action, is that he and the defendant, both of whom are attorneys at law, had rendered valuable profession service for one Mrs. Margaret A Boot, in an action which she had therefore brought in the supreme court to recover upon a promissory note for $10,000 against John B. Strang, as. executor of the last will and testament of Collins Woodruff, deceased, and in which she was successful; that after the recovery of the amount involved in that action, the plaintiff and defendant in this action entered into a verbal agreement, by the terms of which the defendans was to obtain a settlement with Mrs. Boot for the services rendered by both parties, and pay over to the plaintiff an equal share of whatever sum was received by him upon such settlement. Upon the trial, the plaintiff testified that the defendant entered into such an agreement with him ; but his-evidence Was flatly contradicted by the defendant, who testified that he told the plaintiff that he would not settle with Mrs. Boot for less -than $1,750, that he had no objection to the plaintiff receiving a similar amount, if Mrs. Boot was willing to pay it, but he denies-positively that he agreed to pay the plaintiff one-half of the sum ultimately to be received from Mrs. Boot. It appears that subsequent to the interview between the parties, the defendant saw Mrs. Boot, and that afterwards he met the plaintiff, and was informed by him that he had been unable to obtain any settlement with her-that she refused to pay him anything for his services, and that he thought he would make out an account against her for the same. It further appears that a settlement was ultimately made between the defendant and Mrs. Boot, in which he received from her the sum of $2,250, $500 of which he therafter, by direction, paid over to the plaintiff. In submitting the case to the jury, the learned justice was careful to call attention to this conficting testimony, and to say to the jury that the only question of fact for their consideration was whether or not the defendant had agreed with the plaintiff to pay to him one-half of the moneys received from Mrs. Boot, and that, unless the plaintiff established such agreement by a fair preponderance of the evidence, he was not entitled to recover in the action.

Upon the trial, the defendant called as a witness Mrs. Margaret Boot, and offered to show by her that she never employed the plaintiff to act as her counsel in the Woodruff case, but that he-had volunteered his services as a friend, stating that he expected to make' no charge therefor, but if, after litigation was ended, she desired to make him a present, she might do so; and further, that she had in fact paid the plaintiff for the services which he had rendered. This offer was made in various forms and at different times. It was objected to by the plaintiff’s counsel, and the objection being sustained by the court, the defendant’s counsel duly objected thereto. The exceptions thus taken fairly present the question hereinbefore referred to. I am unable to see why the evidence thus excluded was not material and relevant to the issues raised by the pleadings, and particularly to the issue of fact which was finally presented to the jury.

Some doubt has already been expressed as to whether or not the agreement in question was supported by sufficient consideration to make it valid. Precisely what the consideration was does not very clearly appear, but it is inferable, from the language of the charge, that the learned justice was of the opinion that, if the defendant did undertake to collect of Mrs. Boot any claim which the plaintiff had against her for his professional services, his action in attempting to reach a settlement with her was in some sense prejudicial to the plaintiff’s right, and that this of itself would be regarded as a sufficient consideration for the promise; but if, as a matter of fact, the plaintiff had no valid claim against Mrs. Boot, if ,he had agreed with her to lender service gratuitously, or if he had already received ample compensation for such service as he did render, it would seem that the evidence excluded would have had some direct bearing upon the question of consideration, and therefore upon the right- of the plaintiff to recover in any event. But, however this may be, such evidence was clearly admissible in aid of the defendant’s contention that he never entered into any agreement with the plaintiff to settle with Mrs. Boot and divide with him the avails of such settlement; for if Mrs. Boot had already settled with the plaintiff for his services, or if, upon the other hand, she was owing him but little therefor, as compared with the defendant’s claim for his services, it might have been argued to the jury that it was not probable that he would have insisted upon any such share of the avails of the settlement made between Mrs. Boot and the defendant, and that his contention was an afterthought. At all events, I think the jury were entitled to have this evidence, in order that they might say to what extent it impaired the value that might otherwise attach-to the testimony of the plaintiff.

The judgment and order appealed from should therefore be reversed, and a new trial granted, with costs to abide the event.

All concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Frank A. Lemmer, Resp’t, v. Clara E. Morison, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July, 1895.)

    Mechanic’s lien—Pkiobity.
    A mechanic's lien is preferred to a deed recorded before the lien was filed, where the acknowledgment of the deed was taken in another state before an officer who was not authorized to take the same, though there was attached to the deed a certificate of the clerk of the court in the county in which the acknowledgment was taken, stating that the officer was duly authorized to take the same.
    Appeal from a judgment, rendered in favor of the plaintiff.
    The opinion of Mr. Justice Bartlett at special term is as follows :
    This is a suit to foreclose a mechanic’s lien. The plaintiff’s rights to recover was disputed on the trial solely on the ground that the premises upon which the work was done were conveyed by the defendant Cox to the defendant Morison on April 12,1893, while the lien of the plaintiff was not filed until April 17, 1893. The plaintiff meets this objection in two ways: First, by attempting to show that the deed from the defendant Cox to the defendant Morison is not to be considered as having been recorded on April 12, 1893, or prior to the filing of the lien, inasmuch as it was not entitled to be placed on record then ; and, secondly, by offering proof tending to show that work was done upon the property subsequent to the conveyance, with the consent of the grantee.
    So far as the second point is concerned, I do not think the proof is sufficiently clear or satisfactory to warrant a finding that the defendant Morison consented to the subsequent prosecution of the work. It seems to me, however, that the plaintiff is entitled to prevail upon the first point. The mechanic’s lien law declares that the liens therein provided for shall be preferred as prior liens to any conveyance, judgment, or other claim which was not docketed or recorded at the time of filing the notice of lien prescribed in the act. Laws 1885. chap. 342, § 5. The statute makes the record of a deed essential to give it priority over a mechanic’s lien. This means a valid record. The-deed of April 12, 1893, was acknowledged in New Jersey before a notary public. Attached to it was a certificate of the clerk of the county of Camden and clerk of the circuit court of New Jersey in said county in which said deed was acknowledged, to the effect that the notary before whom the acknowledgment was taken was duly authorized to take the same, and to take and certify the acknowledgment and proof of deeds to be recorded in that state. The uncontradicted evidence before me shows, however, that at that time a notary public in New Jersey possessed no legal authority whatever to take the acknowledgment ,of deeds, that power being confined to the chancellor, commissioner of deeds, justices of the supreme court, masters in chancery, the judges of the court of common pleas. The deed, however, was actually copied into the books of the register of Kings county; and the defendants contend that the plaintiff thus having constructive notice of the actual- existence of the conveyance, which was undoubtedly good as between the parties to it, the intent of the statute has been complied with, and that the deed should have priority over the lien. But the objection to this view is that it seems to be broadening the language of the statute to an unwarrantable extent. IE correct, it would involve holding that a deed of which a mechanic had notice would be entitled to priority over his lien, even though such deed should never be recorded, and this in face of the express declaration that the lien shall be preferred to any conveyance not recorded at the time it is filed.
    As these are matters of purely statutory creation and regulation, it seems to me that a strict adherence to the letter of the law is more conducive to justice than a looser construction, with the uncertainties which it would necessarily involve. That the so-called “record” of April 12, 1893, must he deemed wholly ineffectual seems to follow from the case of Irving v. Campbell, 121 N. Y. 353; 31 St. Bep. 307, where a deed insufficiently acknowledged had been improperly recorded. It was held that deed - could not be read in evidence, and that a title resting upon such alleged record was unmarketable. Under our statute, the proof or acknowledgment of deeds, when made in other states of the Union, may be made before any officer of such state authorized by the laws thereof to take the proof and acknowledgment of deeds; and, when so taken and certified, they shall he entitled to be recorded in any county of the state. Laws 1893, chap. 123. The statute in terms requires as a prerequisite to the valid record of a conveyance, not only that it shall be certified to have been proved or acknowledged before an officer authorized by the laws of the other state to take the proof and acknowledgment of deeds, but that the proof or acknowledgment shall actually have been taken' by an authorized officer. In the present case the certificate was sufficient on its face, but the trouble is that it was not true. The defendants subsequently recognized the questionablé character of the acknowledgment, and proved the deed afterwards before a master in chancery, and had it recorded in the Kings county register’s office on June 29, 1893, but this was long after the mechanic’s lien was filed.

      James P. Phillip and K Raymond, for app’lt; William L. Synder for resp’t.
   Per Curiam.

Judgment affirmed, with costs, on opinion of Bartlett, J., at special term.


author: Adams, J.

text:
    Michael Bellappi, Resp’t, v. Belle Hovey, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Justices op the peace—Jury pees.
    Section 3328 of the Code does not authorize the justice to refuse to issue a venire unless the party asking for it pays or secures the fees of the jurors.
    Appeal from a judgment of the county court, affirming a judgment in favor of plaintiff, rendered by a justice of the peace.
    The action is one for labor and services, claimed to have been rendered by the plaintiff for the defendant. Issue was joined before the justice of the peace upon the 4th day of August, 1894, at which time the defendant demanded a trial by jury. , The justice before whom the action was pending refused to issue a venire unless the defendant first paid or secured the fees of the jurors. The defendant declined to do either, an'd the justice proceeded to hear the plaintiff’s evidence on the return day, and the defendant took no part in the trial. The justice thereupon rendered a judgment in favor of the plaintiff and against the defendant for the Sum of $33.20 damages and $2.25 costs.

      Jl WL Gongdon, for app’lt; Frank J. Fobinson, for resp’t.
   Adams, J.

It is contended by the respondent that the justice before whom the action was tried was justified in insisting, as a condition to the issuing by him of the venire demanded by the defendant, that the fees of the jurors should either be paid or secured; and'he rests such contention upon the language of section 3328 of the Code of Civil Procedure, which reads as follows: “A justice of the peace, or a constable, juror or witness before a justice of the peace is not obliged to render any services specified in this title, without the previous payment or tender of his.fee therefor." It is obvious, I think, that this section was designed by the legislature as a protection to the different officers therein named; but it is equally obvious that, to avail himself of such protection, the officer named is called upon to demand, in his own behalf, the payment of such fee or fees as he may be entitled to receive for any service he is called upon to render. To illustrate, a justice of the peace could not be required to issue a venire without first being paid or tendered his legal fee therefor; nor could a constable be required to execute' such process, unless his demand for the payment of his fee should be properly met; and this is true of individual jurors. But it does not appear, by the express language of the section under consideration, nor will it bear the construction, that a justice, or any other of the officers therein mentioned, is entitled to impose, as a condition of the performance of any official duty, the payment of the fees of any other officer than' himself. Were a different rule to obtain, then a justice, before issuing a summons, might insist that the constable’s fee for the service thereof should be first paid, or, before issuing an execution, he might require the judgment creditor to pay or secure the fees of the officer to whom that process was issued, although in either case no such condition was insisted upon by the officer for whom the protection of this section was designed.^ It is undoubtedly true that defendants frequently avail themselves, in an action brought before a justice of the peace, of the provisions of the statute giving them the right to a trial by jury, merely for the purpose of delay and annoyance; but, nevertheless, the right is one which is statutory in its character, and therefore it cannot be abridged by the courts in any other manner than is provided by the statute, however desirable it • may be to curtail the practice above adverted to. And, inasmuch as it has been shown that the justice, in imposing the conditions he did, exceeded any authority which the statute gives him, his actioh was clearly erroneous, and requires that the judgment rendered by him should be set aside. The view which we take of the law in this case fenders it unnecessary to consider whether or not the evidence taken before the justice in the case was sufficient to sustain the judgment.

The judgments of the county court and of the justice of the peace are consequently reversed. All concur.


author: Davy, J.

text:
    Mandeville J. Barker et al., as Executors, etc., Resp’ts, v. Mary K. Laney, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Equity—Jurisdiction.
    When a court of equity acquires jurisdiction of the subject-matter, it is not affected by any changes which may arise in the trial so long as a cause of action survives upon the facts alleged.
    3. Pleadings—Set-offs.
    Where the executor sues the widow for an accounting and to set-off the amount of advances made to her against a decree for a portion of her distributive share, and recovers a personal judgment for the excess of such advances over the decree, and subsequently the surrogate’s court renders in favor of the widow another decree for the balance of her distributive share, the court can set-off the judgment against such second decree.

      8. Jurisdictions—Surrogate.
    Where proceedings are instituted by a creditor to compel the payment of a debt, and the debt is disputed, the surrogate has no power to try and adjudicate that question, or to set-off one judgment against another.
    4. Former adjudication—Subject-matter.
    In such case, the executor is not estopped from suing the widow for an accounting, and to offset the judgment recovered against her on such accounting against the- surrogate’s decree for her distributive share.
    Appeal from a judgment, entered upon .the report of a referee, directing that a j udgment in favor of plaintiffs be set off against the decree in favor of defendant.

      Quincy Van Voorhis, for app’lt; Bacon, Briggs, Breckley & Bis-sell (Frederick W. Smith, of counsel), for resp’ts.
   Davy, J.

It appears from the evidence in this case that in March, 1885, James Laney died intestate, leaving the defendant, Mary K. Laney, his widow, and Charles S. Laney and James C. Laney, his only children and next of kin, surviving. Enos Gr. Laney and the defendant were appointed by the surrogate of Monroe county administrators of his estate. It also appears that Enos Gf. Laney purchased and delivered to the defendant at various time between March 20, 1885, and February 8,1890, large quantities of goods, wares, and merchandise, and advanced some money, in anticipation that they would be set off and allowed to him by the surrogate out of the defendant's distributive share of the personal estate of her deceased husband. In 1887 the administrators filed their joint petition in the surrogate’s court for a settlement of their accounts. In that proceeding the surrogate did not allow Enos Gr. Laney any part of his said claims for advances, but ordered them striken out, on the ground that they were unauthorized, and constituted no part of his official account as administrator. He also held that he had no jurisdiction to hear, trj, and determine the validity of the claims, because they were disputed. In December, 1888, a decree was made by the surrogate directing Enos G. Laney to pay to Mary K. Laney, out of her dhtribdtive share in the estate, a specified sum of money. Thereaftei, and on or about March 5, 1890, the defendant procured a transcript of said decree to be filed, and an execution to be issued thereon and levied upon the property of Enos Gr. Laney to satisfy said judgment. Laney immediately brought an íitition to cancel the judgment on the ground that it had been paid by the advance made as aforesaid, and a slced that the defendant be adjudged to account to him for all the moneys which he had advanced to her, and that she be restrained from enforcing the surrogate’s decree. The issues in that action were-referred to a referee in March, 1890, who found that the surrogate’s decree had been paid, and that the defendant had received from Enos. Gr. Laney, by way of advances, several thousand dollars over and above the amount named in the decree, and he-directed a money judgment against her for the balance. An appeal was taken from that judgment to the general term, which granted a new trial unless the plaintiff stipulated to deduct the-sum of $1,934.40 from the judgment, but, in case the stipulation was given, the judgment should be affirmed. Laney v. Laney, (Sup.) 19 N. Y. Supp. 518. A new trial was had before the same referee, who gave a judgment in favor of the plaintiff that the modified decree of the surrogate had been paid, and directed teat the same be canceled of record. In April, 1890, Enos Gr. Laney had a final settlement of his accounts as such administrator, and the surrogate directed that he should pay to the defendant, Mary K. Laney, the additional sum of $6,878.49, it being the balance of her distributive share in the estate of her deceased husband. This action was brought for an accounting between Enos O, Laney and the defendant for moneys loaned, paid, and advanced by him to her, and for judgment that the moneys so .¡caned, paid out, and advanced be applied and allowed as a set-:ff to said decree of the surrogate, and that said decree be satisfied and discharged to the amount of said loans, payments, and advances found to be applicable as a set-off. Upon the trial the-plaintiffs put in evidence the judgment roll in the first action, but offered no other proof as to the alleged advances. The referee-held that the plaintiffs were entitled in this action to have the money judgment recovered in the other action set off against the defendant’s second decree. , In March, 1893, Enos Gr. Laney died, leaving a last will and testament, in which the plaintiffs were named as executors, and were thereafter substituted as the-plaintiffs in this action.

The learned counsel for the defendant contends that tie-plaintiffs failed upon the trial t o establish the cause of action alleged in the complaint; that the action was for an accounting which did not authorize the court to offset the plaintiff’s judgment against the defendant’s decree. The complaint, after setting forth the facts, demands judgment that the surrogate’s second decree be satisfied of record, and that the defendant account to the plaintiffs for all the money which she had received from Enos Gr. Laney. It is true that the accounting aslced for had teen determined in the first action, yet that fact did not deprive tie court, of jurisdiction of the subject-matter and the parties to the action. The allegations of the complaint showed a clear case for an accounting, which gave the court of equity jurisdiction U try that question and such other issues as arose upon the trial that were "ncidentally connected with the accounting. It also had the power to do justice between the parties, and for that purpose to offset one judgment against the other. When the accounting was had before the first referee, the second and final accounting before the surrogate had not been had, so that the plaintiffs could not in that action set off the balance due them for advances until the second decree was rendered. It would seem as if this was a proper case for the interposition of a court of equity, because it would be unjust to permit the defendant to enforce the collection of her decree when she was owing the plaintiffs a sum nearly equal to' that amount, and thus put the plaintiffs to the expense, risk, and uncertainty of recovering it back. In a similar action between these same parties, an appeal was taken from the interlocutory judgment overruling the demurrer to the complaint, and this court affirmed the judgment, and held that an action of this character could be maintained. Laney v. Laney, 33 St. Rep. 673. The rule seems to be well settled that, when a court of equity obtains jurisdiction of the subject-matter, it is not affected by any changes which may arise in the trial so long ás a cause of action survives upon the facts alleged. Lynch v. Railway Co., 129 N. Y. 274; 41 St. Rep. 541. Judge O’Brien in Van Allen v. Railroad Co., 144 N. Y. 179 ; 63 St. Rep. 82, says that:

“ No principle is better established or more frequently asserted than that, when a court of equity has once acquired jurisdiction over a cause for any purpose, it may retain the cause for all purposes, and proceed to final determination of all matters at issue.” The court having acquired jurisdiction in this case, it had the power to offset one judgment against the other, and to grant such further relief as the nature of the case demanded.

It is also claimed by the learned counsel for the defendant that the advances referred to in the complaint must be deemed to have been allowed in the surrogate’s court, and, if not allowed, that the plaintiffs should have taken an appeal from his decision, for the reason that the surrogate had power, under the statute, upon the final settlement of the administrator’s accounts to credit him for advances made to the defendant for her maintenance and support, ■ and therefore the proceedings before the surrogate are a bar to this action. The evidence and. findings of fact by the learned referee will not, in my opinion, warrant such a contention. There can be no question but what surrogates have authority, under the statute, to settle the accounts of executors and administrators, and to adjust all matters relating to the affairs of deceased persons. This authority naturally carries with it the power to determine all questions concerning any claim, legacy, or distributive share, and to whom the same shall be paid; and, where allowance in money have been made by the executor or administrator for maintenance, surrogates undoubtedly have power, in the furtherance of justice, to try and determine those questions, and to allow ad-' vanees from the distributive shares of the parties to whom the advances have been made. Hyland v. Baxter, 98 N. Y. 615; In re Hood, 90 id. 512. But the difficulty in applying the above rule to this case is that the advances consisted mostly of articles of merchandise purchased by Enos Gf. Laney for the defendant, who contended upon the accounting that she never received them, and she also disputed their value, which raised a collateral issue that was no part of the surrogate’s duty to hear, try and determine. The courts have uniformly held that, where proceedings are instituted by a creditor to compel the payment of a debt, and the debt is disputed, the surrogate has no power to try and adjudicate that question, or to set off one judgment against another. Riggs v. Cragg, 89 N. Y. 491; Bevan v. Cooper, 72 id. 327. We have therefore reached the conclusion that the surrogate very properly held that he could not entertain and pass .upon the disputed items contained in the account of Enos Gf. Laney. for advances to the defendant. The plaintiffs, therefore, were not estopped from bringing this action for an accounting and an offset of judgments. The judgment in the first action was conclusive upon the question of loans, payments, .and advances to the defendant, and could not be reopened and tried in this action.

The judgment appealed from should be affirmed, with costs.

All concur.


author: Lewis, J.

text:
    James W. Stanton, App’lt, v. United States Pipe-Line Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Corporation—Service of process—Vacation.
    A motion to set aside the service of a summons and complaint on a foreign corporation, on the ground that the company owned no property in the state, will be denied, where the moving affidavit, denying such ownership, was made by one of the company's directors residing in the foreign state, and fails to show when the affiant became connected with the company, or the sources of his information concerning its property, while the opposing affidavit sets forth the description and location of the property alleged to be owned by the company within the state, and the
    ’ sources of his information in regard thereto.

      2. Affidavit—Authority to take.
    An affidavit, taken in a foreign state, cannot be read in this state unless • accompanied by a certificate that the officer who took it was authorized by the laws of his state to take acknowledgments of deeds to be recorded therein.
    Appeal from an order, setting, aside the service and summons of a complaint on the ground that the service was on one of the directors of the company in New York, and that the company did not have at the time any office, or place of business or property in this state.

      John 0. Bubbell, for app’lt; A. 0. Wade, for resp’t.
   Lewis, J.

■— The defendant is a foreign corporation, organized under the laws of the state of Pennsylvania. The plaintiff, having a.cause of action against the defendant for servic'es rendered in the state of Pennsylvania, caused a summons and complaint to be served upon one Hugh King, who was at the time one of the defendant’s directors, and a resident of this state. As the cause of action arose out of the state, the service upon King did not give the court jurisdiction of the action unless me defendant had, at the time of such service, property within this state. Code Civ. Proc. § 432, subd. 3.

All the evidence bearing upon the question whether the defendant in fact had property in Hew York was furnished by the affidavits of a Mr. Burwald and of the plaintiff. Burwald’s affidavit purported to have been made before Samuel G-rumbine, a notary public in and for Crawford county, state of Pennsylvania, on the 26th day of Hovember, 1894. The material part of his affidavit bearing upon the question is as follows:

“I am one of the directors of the defendant named in the above-entitled action. The said defendant is a corporation, duly organized and existing under the laws of the state of Pennsylvania, and is, and since its organization has been, engaged in doing business in said last-mentioned state. Its principal office and place of business, under said laws, is in the city of Bradford, county of McKean, and state of Pennsylvania. It has not, and never has had, an office or place of business in the city of Hew York or state of Hew York. It does not now, and did not at the time of the attempted service of the summons and complaint herein, transact any business within the city or state of Hew York; neither had it then, nor has it now, any property, nor has it at any time had any property,"of any kind situated In said state of Hew York. That Hugh King, upon whom said attempted service was made, is one of the directors of said corporation, and is not otherwise connected with or concerned in its business, and the said Hugh King is not an officer of said company, except being one of its directors as aforesaid; and he does not now, and did not at the time of said attempted service transact any business for or on account of said defendant corporation anywhere within the state of Hew York. He did not at that time have, and has not now, any property of said defendant in his custody within the state of Hew York, and he did not then, and does not now, maintain an office for it, the said defendant corporation, anywhere in the said state of Hew York.”

There is nothing in the case showing the day when the service upon King was made. The summons and complaint bear date March 9, 1894. It appears in the affidavit of Mr. Wade, the defendant’s counsel, used upon the hearing of the motion, that the defendant’s time to answer the complaint was extended by stipulation till the 23d day of Hovember, 1894. The service must have been made prior to that date.

Burwald’s affidavit is criticised by the plaintiff’s counsel. He suggests that it does not appear that Burwald in fact had any knowledge as to whether the defendant had property in the state at the time of the service upon King; that it nowhere appears in the affidavit, when he became one of the defendant’s directors; that, for anything that appears to the contrary in the affidavits, he may have become a director months after the service of the papers on King; that the source of his information as to the property of the corporation is not stated. It is claimed that the affidavit amounts simply to the opinion of the affiant. The affidavit of the plaintiff, on the. contrary, states positively that the defendant did own property in. the state at the time of service. The location and description.of the property are given, and the sources of the plaintiff’s knowledge are fully stated. It would seem that the weight of evidence upon the question was fairly with the plaintiff.

A preliminary objection was made to the reading of Burwald’s affidavit, upon the ground that it was not properly certified, so as to entitle it to be read. It purports to have been taken before Samuel Grrumbine, a notary public in and for Crawford county, in the state of Pennsylvania. The certificate is to the effect that Grrumbine, by whom the annexed and foregoing affidavit was taken, was, at the date thereof, an acting notary public in and for said Crawford coutv, duly qualified, and as such duly authorized by the laws of this commonwealth to take the same ; and, further, that *■ I am acquainted with the handwriting of the said notary public, and believe the signature purporting to be his to be genuine, and that the same is executed according to the laws of Pennsylvania.”, The certificate was made by P. P. Moyer, clerk of' the courts of Crawford county.

It is provided, by section 844 of the Code of Civil Procedure, that an affidavit taken in another state may be used here, provided it was taken before an officer authorized by the laws of the state to take and certify the acknowledgment and proof of deeds to be recorded in the state. This certificate stated that Grumbine was-an acting notary, and as such was duly authorized by the-laws of Pennsylvania to take the affidavit, but it failed to state that he was authorized by the laws of that state to take and certify the acknowledgment and proof of deeds to be recorded in that state; and the question is whether the certificate was, in substance and effect, in compliance with the requirements of said section, so as to entitle the affidavit to be used. If it follows that,, because Grumbine was a' notary public, he could take acknowledgments of deeds in that state, then-the certificate was sufficient. The duties of notaries differ in different states. The power to take acknowledgments of deeds, so as to entitle them to be recorded, was first conferred upon notaries in this state by chapter 360 of the Laws of 1859. Whether the legislature of Pennylvania has ever conferred like powers upon its notaries does not appear from the case. All the safeguards which the legislature has provided for the use of a substitute for common-law evidence, in the administration of justice in our courts, should be enforced. Taking and certifying the'acknowledgment and proof of deeds to be recorded is an important official act Important interests are frequently involved thereby. The words quoted from section 844 were used, we think, for a purpose. It was thought by the legislature that it would be proper to allow an affidavit made in another state, to be used here, provided it was taken before an official who had by the authority of the state appointing him, been deemed worthy to have been invested with the power to take the acknowledgment oí deeds to be recorded,—a very different official act from the simple administration of an oath. A more liberal construction has been given to this provision of the Code, by some of the cases, than the one we are inclined to adopt. We are of the opinion that the affidavit was not properly certified, so as to entitle it to be used upon the motion. The defendant consequently failed to make a case entitling it to the order.

The order should be reversed, with $10 costs and disbursements, and the motion tó vacate the service of the summons and complaint denied.

All concur.


text:
    Abigail Du Puy, Resp’t, v. Jane Cook, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Civil damage act—Who may bring action.
    A widow, who is sixty-three years old and owns no property, may recover, where the death of her son who provided for her entirely was caused by intoxication, from the owner of the premises on which the liquor causing the intoxication was sold, and which the owner had leased to the occupant for the purpose of liquor selling.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Teller & Hunt, for app’lt; F. I). Wright, for resp’t.
   Lewis, J.

The plaintiff’s son, Albert Du.Puy, was drowned on the 20th day of April, 1889, in a race way near Auburn, while in a state of intoxication, caused in part by intoxicating liquors sold to him by one George Miles, who was a tenant of a saloon rented to him by defendant. This action was brought by the plaintiff under the civil damage act of 1873, to recover damages for injury to her means of support occasioned by the death of her said son. The deceased resided with his mother in the village of Owasco, a few miles distant from the city of Auburn. He drove into Auburn on the day he was drowned, and was around among the saloons, drinking liquor. He became intoxicated to such an extent that some of the saloon keepers refused to furnish him more liquor. He went into the saloon of Mr. Miles about eight o’clock in the evening, and called for and drank a glass of ale, which was furnished him by Miles. He was at the time considerably under the influence of liquor. After drinking the beer or ale, he requested Miles to furnish him a bottle of whiskey. Miles refused at first, but on being assured by Du Puy that he wished to use it the next morning for the purpose of straightening himself up, Miles furnished it, and Du Puy paid for it, and left the saloon with the whiskey. Very soon thereafter he offered a drink from the bottle to a Mr. Baker. Baker declined, and Du Puy then put the bottle to his lips, and apparently drank from it. Shortly after, he fell down; then got up, and went to his wagon and started towards his home. As he was about to start, he again invited Baker to drink. He was at the time very-much intoxicated; so much so that Mr. Baker, after riding a short distance with him, became frightened at his manner of driving the horse, and.got out of the wagon, and left the deceased to pursue his journey alone. The evidence tends to show that Du Puy, after Baker left him, left the direct road to his home, and drove across a bridge, and into an embankment of the race way of the Auburn Waterworks Company. His dead body and that of his horse were found a few hours afterward in the water of the race way. The horse, when found, was attached to the wagon. The sale of the beer and whiskey to the deceased by Miles was proven bv the undisputed evidence of two witnesses. That the deceased drank the beer and some of the whiskey was quite clearly established, as was the fact that his intoxication at the time of his death was in part caused thereby. He was at the time of his death thirty-three years old; was unmarried. He was an industrious, competent workman, and was in the receipt of a fair income from his daily labor. He devoted his earnings to the support of his family, consisting of himself, his mother, the plaintiff, and an invalid sister. He had contracted to purchase the dwelling where he lived, and had paid part of the purchase price therefor, and was the owner of a small amount of personal property. He was ordinarily sober, but would occasionally, when absent from home, get intoxicated. He had supported his mother from the time he was seventeen years old till his death. The plaintiff was a widow, sixty-three years old, and was in rather .poor health, although she was able to do, and did do, most of the family housework, and made and repaired a portion of the deceased’s wearing apparel. She had no property except some small articles of household furniture, and had no-other means of support except that furnished by her son.

The question upon which the appellant’s counsel mainly relies-for the reversal of the judgment is that the plaintiff failed to show that she had been injured by the death of her son in any means of support to which she was legally entitled. Chapter 646-of the Laws of 1873, known as the “ Civil Damage Act,’’ provides, so far as is material to this case, as follows:

“ Every parent who shall be injured in person or property or means of support in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action against any person or persons who shall by selling or giving away intoxicating liquors, cause the intoxication in whole or in part of such person or persons, and any person or persons owning or renting or permitting" the .occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein, shall be liable jointly or severally with the person or persons-selling or giving away intoxicating liquors aforesaid, for all damages sustained."

It is the contention of the defendant that the plaintiff was-shown to be able to support herself by her labor, and that, therefore, her son was under no legal obligations to support her. The plaintiff testified that since her son’s death—a period of four or five years—she had been employed nursing the sick, in all about three weeks; that she worked when she was able to, and could find anything to do, but that she had not supported herself entirely, but that her church friends and other acquaintances had furnished her with supplies. She had arrived at an age when most women, especially those not in robust health, who are without other means of support, are dependent upon others for their support. The test is not whether the plaintiff possessed sufficient physical strength, if exerted to its utmost limit, to earn her living in case she should be so fortunate as to find employment Women of her age and condition of health are not likely to be able to find employment that is remunerative. Her case, we think, fairly came within the provisions of section 914 of the Criminal Code, which imposes upon a child of sufficient ability of a poor person who is old, impotent or decrepit, so as to be unable to work to maintain himself, the duty of maintaining such parent This the deceased had voluntarily assumed to do, which answers the requirements of the law as effectually as if the assistance had been rendered by compulsion. Stevens v. Cheney, 36 Hun, 1, was an action brought under this civil damage act. In discussing this question, Haight, J., states the rule to be as follows :

“ The law affords the same protection to those who perform these duties voluntarily as to those who act under compulsion. And we are of the opinion that, if the plaintiff was a poor person, it was the duty of the son to aid in his support; and, if he voluntarily did this, and the plaintiff has been deprived of his means of support by reason of the intoxication, that then he may recover, even though his child is over the age of 21 years.”

The plaintiff was fairly shown to have been deprived of her means of support by the death of her son. Black, Intox. Liq. § 308.

The verdict was for $1,325. The appellant’s counsel contend that it was excessive. If we were to enter into a computation as to the probable cost of the bare necessaries for the support of the plaintiff, during the probable term of her life, computed by the annuity tables, it might not amount to $1,325. The plaintiff was receiving a generous, comfortable support from her son. She testified that he was a good provider. Such support was of greater value to the plaintiff than would have been the bare necessaries of life. While she was able, at the time of the death of her son, to perform labor which would partially support her, her capacity for labor would naturally and in all probability lessen as she advanced in years. The jury was fully and correctly instructed upon the legal questions involved in the action, and we find nothing in the appellant’s exceptions calling for a new trial.

The judgment and order should be affirmed.

All concur.


author: Davy,' J.

text:
    Christopher Smith, App’lt, v. City of Buffalo, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Municipal corporation—Public improvements—Assessments.
    Where there has heep no material change in the provisions of a city charter on the subject of the apportionment of assessments for public improvements in the last forty years, and the common council has never determined the territory benefited by the assessments but left it to the board of assessors, such acquiescence and recognition on the part of the municipality for so long a period must be regarded as controlling in the interpretation of the charter upon such point.
    2. Same.
    A requirement of the city charter that an assessment for public improvement shall be made by the common council is complied with by its action in appointing the assessors to make the assessment and adopting their report.
    3. Same—Streets.
    The assessment must be limited to the houses and lots benefited by the improvements, and no legal assessment can be imposed upon the public streets.
    4. Same—Presumption.
    If the streets are not included .in the assessment rolls, the presumption is that they were public highways and exempt from assessment.
    5. Same—Dedication.
    Streets, which appear on the official city maps, and which the city has recognized by grading; and constructing sidewalks and putting in water pipes and hydrants, will be held to have been dedicated to and accepted by tlje public.
    6. Same—Procedure.
    The duties, imposed upon the common council by the provisions of section 435 of the charter of the city of Buffalo, are, in this respect, not mandatory, but simply directory; the omission to confirm the report within a year does not invalidate the subsequent proceedings.

      1. Same—Legislative confirmation.
    Chapter 376 of 1892 validates a resolution of the common council, authorizing an assessment for the improvement of Bailey avenue, adopted January 19, 1890.
    8. Same.
    The legislature has' power to legalize proceedings to collect taxes, where the law has not been strictly pursued in cases where the taxes were not invalid because of a want of jurisdiction to impose them, or where no constitutional right of the taxpayer had been violated.
    Appeal from a judgment dismissing the complaint.

      Stephen Lockwood, for app’lt; Frank 0. Laughlin, for resp’t.
   Davy,' J.

This action was brought to set aside a local assessment on the plaintiff’s land, located in the city of Buffalo, amounting to $81.31, made to defray the costs and expenses of acquiring lands for the extension of Bailey avenue. It was stipulated, for the purpose of condensing the evidence, that there were four questions only to be submitted on this appeal.

It appears from the evidence that in September, 1890, the common council of the city of Buffalo instituted proceedings for the extension of said avenue. The report of the commissioners who were appointed to appraise the damages to the landowners was confirmed on the 19th day of January, 1890. The common council thereupon passed the following resolution:

Resolved, That the amount of expenses to be assessed for improvements in extending Bailey avenue from its present terminus at the city line to Main street be, and is hereby, determined to be $16,258.07; and the city assessors be, and they are hereby, directed to make an assessment of the said sum upon the real estate benefited by such improvement, in proportion to the benefit resulting thereto.”

In pursuance of the above resolution, the assessors decided what lands, in their judgment, were benefited by the improvement, and filed the assessment roll, which was confirmed by the common council June 1,1892. The learned counsel for the appellant contends that, under the city charter, the authority to apportion this assessment was delegated to the common council only, and not to the board of assessors. It was contended on the argument, and not disputed, that there has been no material change in the provisions of the city charter on this subject in the last forty years, and that the common council had never determined the territory benefited by the assessments, but left it to the board of assessors. Such acquiescence and recognition on the part of the municipality for so long a period must, it seems to me, be regarded as controlling in the interpretation of the charter upon the point under discussion. Easton v. Pickersgill, 55 N. Y. 310 ; In re Washington St., A. & P. R. Co., 115 id. 442 ; 26 St. Rep. 504. If the language of the charter was obscure or doubtful as to its meaning, we think that we would not even then be justified in disregarding the construction put upon it by the municipal authorities for so many years. There would be no safety to the taxpayers if it could be successfully contended that the officers representing the municipality in this class of cases had been mistaken as to the true meaning of the charter. The injurious consequences of a different construction after an acquiescence of so long a period might prove very disastrous to the taxpayers of the city. But, aside from the rule of long acquiescence on the part of the municipality, it appears that the courts, through all this long period, have been constantly passing upon the validity of the assessments, and in no case called to our attention has it been held that the board of assessors did not have the power, under the city charter, to determine the territory benefited by local improvements similar to the one in question. The superior court of the city of Buffalo, in Re Ferris, 10 St. Rep. 482, held that the legislature had delegated the powers to the board of assessors, under the city charter, to determine what property was benefited by local improvements. The views expressed by the learned court in that case seem to have met the approval of this court in the case of Broozel v. City of Buffalo (Sup.) 6 N. Y. Supp. 724. I am inclined to think that the plaintiffs are not in position to complain, even if the correctness of our views upon this point could be doubted. The mode of designating the territory to be benefited and assessed was not prejudicial to the appellants; at least, they have failed to show that they have been, injured or aggrieved by the assessors designating the territory, instead of the common council.

It was held in Voght v. City of Buffalo, 133 N. Y. 464; 45 St. Rep. 739, that where there was a technical irregularity of the common council in the mode of making assessments in street improvements, in the absence of evidence showing a substantial injury to the plaintiff, he was not in position to complain, and therefore could not maintain the action. Morse v. City of Buffalo, 35 Hun, 613 ; In re Mutual Life Ins. Co., 89 N. Y. 530 (to vacate an assessment).

Judge Gardner, in Manice v. Mayor, etc., of New York, 8 N. Y. 120, in discussing the powers vested in the common council under the city charter, says :

“If the common council, as the plaintiffs insist, were bound to designate the territory to be assessed, as the charter was silent as. to the time when and the manner in which this was to be done, a confirmation of the report of the assessors which included the whole subject would be a substantial compliance with the requirement.”

If there was any question as to the power of the board of assessors to designate the territory benefited by the improvement, the confirmation of the report by the common council, with full knowledge of all the facts, amounted to a substantial compliance with the requirements of the statute

The appellant also contends that the public streets opening into Bailey avenue were rendered more valuable to the .city of Buffalo* by the improvement, and that it was error on the part of the board of assessors to omit said streets from the assessment roll, and from contributing to the expenses of the improvement. Streets are intended for the public travel, and the opening of the avenue in question would naturally tend to increase the travel over all the connecting streets, and thereby impose greater expense upon the municipality in cleaning and keeping them in repair. So that the improvement could not be considered a benefit to the city in a pecuniary point of view. As a rule, all property within the municipality is subject to taxation by the general laws of the state; and, where property is taxable for one purpose; it is usually held to be taxable for all purposes of general taxation. But this rule does not apply to municipal property devoted to public purposes. Such property is not taxable by the corporation whose property it is, unless expressly made so by statute.

Ho provisions are made in the city charter or the statute laws-of the state authorizing the city of Buffalo to tax its public streets. It has been repeatedly held that property devoted to public use, such as public buildings and parks, cannot, in the absence of express legislative authority, be taxed or taken to satisfy a judgment against the corporation.

Judge Andrews, in People ex rel. Mayor, etc. v. Board of Assessors, 111 N. Y. 509, 19 St. Rep. 638, says :

“Property of a municipality acquired and held for government and public use, and used for public purposes, is not a taxable subject, within the purview of the tax laws, unless specially included.” City of Rochester v. Town of Rush, 80 N. Y. 302.

While property owned by a municipality for public purposes is exempt from taxation, it is liable, however, to be assessed for local improvements.

Judge Earl, in Roosevelt Hospital v. Mayor, etc., of New York, 84 N. Y. 114, says :

“The exemption claimed finds no sanction in the general legislation of the state or in public policy. All colleges, churches, seminaries of learning, courthouses, jails, schoolhouses, and even the lands of the state, unless by appropriate words specially exempted, are liable to be assessed for local improvements.”

The public streets of the city of Buffalo in no sense can be regarded as the property of the city, like schoolhouses and the city hall and other public buildings in which the title to the land vests in the city and may be sold and conveyed by the city authorities. The municipal authorities would have no power to alienate their streets, or to devote them to uses inconsistent with the rights of the general public and the abutting land owners, unless expressly authorized by the legislature. The opening of Bailey avenue may have added to the convenience of the owners and occupants of houses and lots on the connecting streets, and may have increased their value. If it did, that fact was taken into consideration, no doubt, by the assessors who were charged with the duty of ascertaining the property benefited by the improvement. It seems to me that the assessment must be limited to the houses and lots benefited by the improvement, and that no legal assessment could be imposed upon the public streets. People ex rel. Davidson v. Gilon, 126 N. Y. 148; 37 St. Rep. 17.

It is also contended bv the appellant that there were certain strips of land owned by private individuals that were not assessed, for the reason that the assessors recognized them as public streets. This contention, in my judgment, has no real foundation to rest upon. The presumption is that public officers perform their duty. If the streets are not included in the assessment rolls, the presumption is that they were public highways, and exempt from assessment. The burden was on the plaintiffs to overcome this presumption. In re Hebrew Orphan Asylum, 70 N. Y. 476. The principal question to be considered upon this point is whether the strips of land in dispute have been dedicated by the owners to the use of the public travel, and whether they have been accepted by the city for that purpose. The learned judge before whom this case was tried found that the assessment roll showed that all the lands benefited by the improvement, as ascertained by the assessors, were included in the assessment, except public streets, or what appeared to be such upon the maps of the proper departments of the city government, to which the assessors referred to ascertain the streets of the city, and that it Qwas not established upon the trial that any lands were excluded from the assessment that should not have been.

Dill. Mun. Oorp. section 628, lays down the rule:

“ That dedications of land to the use of public streets may be divided, into two classes; first, statutory dedications; second, com mon-law dedications. Statutory dedications can be made only by pursuing substantially the course prescribed by the particular statute; and, where the statutory requirements, have been pursued, it dispenses with any assent on the part of the public, and in this respect it differs from a common-law dedication. But the rule is well settled that an incomplete or defective statutory dedication'will, when accepted by the public, or when rights a.re acquired under it by third persons, operate in favor of the public, and has as much binding force as a common-law dedication by the owner. To establish a common-law dedication, it is not essential that the legal title should pass from the owner to the municipality. All that is required is the assent of the owner of the soil that it may be used by the public as a public street, and the acceptance of such dedication by the municipality for the public.”

Flack v. Village of Green Island, 122 N. Y. 107; 33 St. Rep. 339.

It was also held in Cook v. Harris, 61 N. Y. 448-454; that no particular length of time is essential to make a dedication valid and irrevocable. • It must appear that the owner of the soil intended to dedicate it for a public highway, and that it was accepted by the public.

Upon the question of acceptance, and the sufficiency of the evidence to establish it, Judge Dillon, in his excellent work on Municipal Corporations (sections 636, 640), says that:

Where a plat is made and recorded, the requisite intention is generally undisputable, but the intention may also be established by paroi evidence of the acts or declarations which show an assent on the part of the owner of the land that the land should be used for public purposes.” “ A sale of lots with reference to such plat, or describing lots as bounded by streets, will amount to an immediate and irrevocable dedication of the latter, binding upon both vendor and vendee.”

People v. Loehfelm, 102 N. Y. 1; Pomfrey v. Village of Saratoga Springs, 104 id. 459; 5 St. Rep. 802.

Acceptance may be express and appear of record, or it may be implied from repairs made and ordered, or knowingly paid for by the municipality which has the legal anthority to adopt the street or highway, or from longer use by the public. It seems to me that the evidence clearly establishes that the so-called “streets” in' question have been dedicated by the owners of the soil to the city for highway purposes. Maps were made and certified to by the chief engineer of the department of public works, and filed in the assessors’ office, and registered in the city clerk’s office, showing the plots of land that had been subdivided and laid out into city lots, including the streets in question, and their names, width and constructions with other streets. It also appears that the city recognized them as streets by putting in water and hydrants, and constructing sidewalks, and grading some of the streets. It is plain-from these facts that the strips of land in question were duly laid out and dedicated by the owners of the soil to the municipality for public streets', and that they were accepted by the public. It would be a violation of good faith to the public, and those who have purchased lots and acquired vested interests with a view to the benefit and use of these streets, to permit the original owners or the municipality to contend that they had not been dedicated to the public use. We must therefore hold that they were exempt from taxation or assessment of any kind, and that the assessors, acting under the authority delegated to them by the city charter, had no legal right to assess them for the improvement of Bailey avenue.

The fourth point raised by the appellant is that the assessment roll was not confirmed within a year after the confirmation of the report of the commissioners awarding compensation to the owners of land taken for the improvement. I am unable to discover any provision of the city charter requiring that the assessment roll shall be confirmed within that period. The provisions of section 435 of the city charter, which authorizes the city to borrow money to pay the awards if the roll is not made and confirmed within a year, show conclusively that the duties imposed by the common council in this respect are not mandatory, but simply directory ; so that the omission to confirm the report within a year did not invalidate the subsequent proceedings..

We have now noticed all the objections raised by the learned counsel for the appellant, and we do not think any of them furnish a sufficient reason for a reversal of the judgment.

If there were any substantial irregularities in the proceedings of the common council pertaining to the extension of Bailey avenue, the legislature has legalized them. Chapter 376, Laws 1892, provides that:

“ All proceedings, matters and things which were begun or regarding which any action or preliminary steps have been taken by the city of Buffalo, or its departments, officers, agents or servants prior to the first day of January, 1892, are hereby ratified and confirmed.”

The resolution of the common council authorizing the assessment which the appellant claims is illegal was adopted ■ on the 19th of January, 1890, and comes within the provisions of the aforesaid act, which legalized the irregularities, if any, and the acts of the officers, agents and servants of the municipality pertaining to all proceedings of the common council in the Bailey avenue extension. Cromwell v. MacLean, 123 N. Y. 490; 34 St. Rep. 85; Tifft v. City of Buffalo, 82 N. Y. 204; In re Livingston, 121 id. 98; 30 St. Rep. 772. After the passage of the act, no taxpayer could successfully resist the payment of his tax on the ground of irregularities existing at the time of its passage. It was held in Terrel v. Wheeler, 123 N. Y. 76 ; 33 St. Rep. 404, that the legislature has power to legalize proceedings to collect taxes where the law has not been strictly pursued in cases where the taxes were not invalid because of a want of jurisdiction to impose them, or where no constitutional right of the taxpayer had been violated.

The judgment of the lower court, therefore, must be affirmed, with costs. All concur.


text:
    Ezra A. Osborn, Resp’t, v. Montelac Park et al., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July, 1895.)

    Corporations—Mortgage.
    Where the stockholders do' not object and no rights of creditors inter vene, a corporation has power to mortgage its property to secure the indi vidual debt of one of its officers.
    Appeal from a judgment rendered in favor of the plaintiff.
    The opinion of Mr. Justice Brown at special term, is as follows:
    The mortgage in suit was executed and delivered to plaintiff on September 8, 1887, by William 0. McDowell, who at that date held the title to the mortgaged premises. jThe amount due thereon is agreed upon between McDowell and the plaintiff at $17,000, with interest from July 1, 1894, amounting at.this date to $17,615.42. The title to the land at the commencement of this action was in the Montelac Park. None of the defendants have answered except the defendants Field and Huntington. The latter defendant, as receiver of the Greenwood Lake Improvement Company, attacks the mortgage on the ground that the mortgaged premises were, at the date of the mortgage, owned by the corporation, and that the mortgage was executed by McDowell as president thereof, without authority, and to secure his individual debt. It appears that prior to 1884 the Greenwood Lake Improvement Company had the title to the land. McDowell was its president, and the plaintiff was its treasurer. McDowell individually was indebted to the plaintiff, and by three separate deeds the land was conveyed to the plaintiff as security for the debt due to him from McDowell. On September 8, 1887, the property was conveyed to McDowell, and he thereupon executed the mortgage in suit. In February, 1888, McDowell conveyed the land to the improvement company. This deed was made “subject to two certain mortgages.” In November, 1888, the property was conveyed by the improvement company to Frank Osborn, subject to the mortgage in suit. Subsequently the company was reinvested with the title, and on December 19th it was conveyed to Sherman W. Knevals, who thereafter conveyed it-to the Montelac Park, subject to the mortgage. Neither the Montelac Park, nor the improvement company nor any stockholder or creditor of the latter corporation, questions the validity of the mortgage, and the sole question before the court is whether the defendant Huntington, as receiver, may assail the validity of the mortgage upon the ground that it was given to secure an individual debt of the president of the improvement company. I am of the opinion that the court had no jurisdiction to decree the dissolution of the improvement company in the suit in which Huntington was appointed receiver, the judgment roll in which was introduced in evidence. The power of the court to dissolve a corporation depends entirely upon statute. The cases in which such an action can be maintained are set forth in section 1785 of the Code of. Civil Procedure, and the persons who can maintain such an action are stated in section 1786.
    The complaint in Field’s suit, so far as it applied to an action to dissolve the corporation, was defective in every particular required by the statute. Field himself could not maintain a suit to dissolve the corporation, and there were no allegations of facts in the complaint such as required by section 1785, and no relief of that kind was prayed for. The court had no general jurisdiction on the dissolution of the corporation. Its power in that respect was derived solely from the statute, and, unless the complaint showed the jurisdictional facts, it had no power to act, and its decree, was void. I must assume, therefore, that the' corporation still exists. The judgment in Field’s action may be treated as valid to sequestrate the property of the corporation, but so far as it purports to dissolve the corporation, it is a nullity.
    There was nothing malum in se or malum prohibitum in the act ■of the corporation in loaning its credit to McDowell, or in mortgaging its property for his debt. The stockholders are the equitable owners of the corporate property, and, if they do not object, and no rights of creditors intervene, there can be no legal objection to the mortgage. In this case neither corporation nor stockholders question the mortgage. The defendant Huntington does not represent stockholders, but creditors only. He is a receiver to sequestrate the corporate property, and apply it to the payment of the corporate debts. But it is not shown that there is any present creditor who was such at the time the mortgage was given. There is no proof as to the origin of Field’s debt. It appears from the judgment roll in the sequestration suit that he recovered a judgment against the company in December, 1892, but beyond the fact of his being a creditor at that time the court has no information before it. My conclusion, therefore, is, that the validity of the mortgage has not been impeached, and the plaintiff must have judgment of foreclosure in the usual form.

      Francis Lawton, for app’lts; Eldon Bisbee, for resp’t
   Ho opinion. Judgment affirmed, with costs, on opinion of trial judge.


text:
    Jacob F. Franzen, as Assignee, etc., Resp’t, v. Frederick Zimmer, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Evidence—Common law.
    Where a party relies upon the fact that some general rule of the common law is in force in another state, he need not give any proof of that fact, for the reason that the court will presume the law of a sister state to be the same as its own law, and to be in its main outlines the common law.
    2. Corporation—Foreign—Assignment for creditors.
    An insolvent corporation could at common law make a general assignment in trust to an assignee for the benefit of its creditors.

      3. Same.
    A voluntary assignment by a debtor residing in another state or country, valid by the laws of his domicile and not invalidated by any law of this state, operates as an assignment of the debtor’s property situate in this state.
    4. Same—Comity between states.
    Courts of justice in one state will, out of comity, enforce the law of another state, when by such enforcement they will not violate their own laws or inflict an injury on some one of their own citizens.
    5. Same—Presumption.
    Where an agent of a foreign insurance company makes contracts and issues policies of insurance without any objection on the part of the state authorities, the court will presume that the company has complied with the requirements of our laws as to its authority to transact business in this state.
    6. Same—Estoppel.
    In such case, the agent, by his own conduct, is estopped from claiming that his acts are illegal, and he cannot raise such objection for the purpose of shielding himself from his contract obligations.
    . 7. Same—Revocation op agency..
    The principal, in whose behalf an act is done, must be in existence at the time the act is performed.
    8. Same.
    The agent of an insurance company, whose authority has been revoked by the company’s executing an assignment for the benefit of creditor’s, has no authority thereafter to cancel policies and pay rebates on premiums, and cannot set off rebates so paid against a claim by the assignee for premiums collected.
    Appeal from a judgment of the county court, reversing a judgment of the municipal court of the city of Rochester in favor of defendant.

      H. B. Hallock, for app’lt; John M. Murphy, for resp’t.
   Davy, J.

— The plaintiff, as assignee of the St. Paul German Insurance Company, of St. Paul, Minn., brings this action to recover $399 from the defendant, which he, as agent of the assignor, has collected on policies of insurance issued by the company. It appears from the evidence that in 1890 the defendant was appointed agent of said insurance company, and continued to act in that capacity until April, 1892, when the company made a general assignment to the plaintiff for the benefit of its creditors. The defendant, during the'months of December, 1891, and January and February, 1892, issued policies of insurance for said company to various persons in the vicinity of Rochester, N. Y., amounting to over $100,000, and received $873.50 as premiums on said policies, out of which sum he was entitled to retain twenty per cent, for commissions, and a small sum which'he had advanced for the company, leaving in his hands at the time of the assignment $399 due the insolvent corporation. The action was tried in the municipal court of the city of Rochester before a jury, who rendered a verdict for the defendant. An appeal was taken to the county 'court, and the judgment of the lower court was reversed.

The learned counsel for the appellant contends that the plaintiff cannot maintain this action, for the reason that there was no proof given upon the trial of the statute laws of Minnesota under which the assignment was made, and for that reason alone the j ury was justified in finding a verdict for the defendant. He also contends that, even if the action could be maintained, the amounts which the defendant paid out for rebates were properly allowed by the courts as an offset to the plaintiff’s claim. The defendant, in his answer, admits the incorporation of the insurance company, and that he acted as its agent and issued policies and received the sum of $873.50 for premiums, and he also admits that he received a notice of the assignment before he canceled the policies and paid the rebates for the unearned premiums. He contends, however, that he had no knowledge or information sufficient to form a belief as to whether the insurance company had made an assignment to the plaintiff, as alleged in the complaint. He also sets up a counterclaim of $800.74, for the unearned premiums assigned to him by the holders of said policies. Hnder the admissions in the answer, the plaintiff was only required to show upon the trial that the insolvent corporation had made a general assignment to him for the benefit of its creditors. That was done by the introduction of an exemplified copy of the deed of assignment, duly authenticated, as required by section 947 and 952 of the Code of Civil Procedure. The plaintiff, not willing to rest his case upon this evidence and the admissions in the answer, called the defendant as a witness, who testified that, shortly after he received notice of the assignment, he proceeded to call in all outstanding policies which he had issued for °the company, and canceled them, and allowed rebates for the unearned premiums, for which he took assignments, and filed them with the assignee as claim against the insolvent corporation.

We have a right to assume, in the absence of proof to the contrary, that the common law prevails in the state of Minnesota. It has been held that, where a party relies upon the fact that some general rule of the common law is in force in another state he, need not give any proof of that fact, for the reason that the court will presume the law of a sister state to be the same as- its own law, and to be in its main outlines the common law. Holmes v. Broughton, 10 Wend. 75; Savage v. O'Neil, 44 N. Y. 298. Judge Peckham, in Vanderpoel v. Gorman, 140 N. Y. 568; 56 St. Rep. 503, says: “ There can be no doubt that an insolvent corporation could at common law make a general assignment in trust to an assignee for the benefit of his creditors.” The learned judge says: “We cannot presume that the common law in another state has been altered without some proof to that effect.” The defendant offered no evidence upon the trial showing that the common-law rule pertaining to voluntary assignment for the benefit of creditors did not prevail in the state of Minnesota. As the common law permits such an assignment, and it is not in conflict with any law of this state or against public policy, we must therefore recognize its validity. In the case of Ockerman v. Cross, 54 N. Y. 29, the court held that “ a voluntary assignment by a debtor residing in another state or country, valid by the laws of his domicile, and not invalidated by any law of this state, operates as an assignment of the debtor's property situate in this state.” Warner v. Jaffray, 96 N. Y. 248.

This is not an assignment that comes in conflict with the claims of domestic creditors. It is a question between the defendant, who, as agent, has funds in his possession belonging to the assignee, which he refuses to turn over to him because, as he contends, there is no law authorizing the assignee to maintain this action. I am not aware of any rule of public policy that requires the courts of this state to protect him in his unlawful effort to retain that which does not belong to him. The Minnesota assignment vested in the plaintiff all the personal property belonging to the assignor located in this state; just as effectually as if it was located in the state of Minnesota; and, for the purpose of obtaining possession of it, he is entitled, under the rule of comity between the states, to prosecute such legal proceedings and suits as may be necessary to collect the debts and recover the trust property. The term “ comity,” as defined in Bouvier’s Law Dictionary, is “ courtesy ; a disposition to accommodate. Courts of justice in one state will, out of comity, enforce the law of another state, when by such enforcement they will not violate their own laws or inflict an injury on some one of their own citizens.” Thi s rule contributes largely to produce friendly intercouse between the states and individuals. It permits them to sue in each other’s courts, and to travel and transact all kinds of business in each other’s territory, ' when they are not prevented by some positive law of the state.

Judge Dentó, in Petersen v. Bank, 32 N. Y. 21, in discussing the rules of comity between the states, says:

“The titles of foreign statutory assignees are recognized and enforced here when they can be without injustice to our own citizens, and without prejudice to the rights of creditors pursuing their remedies here under our statutes; provided, also, that such titles are not in conflict with the laws of public policy of our state.”

The learned counsel for the appellant also contends that this action cannot be maintained for the reason that no proof was given upon the trial that the company had a right to transact business in this state. It appears that the defendant, as agent of the corporation, made contracts and issued policies of insurance without any objection on the part of the state authorities. We must, therefore, assume that the corporation has complied with the requirements of our laws as to its authority to transact business in this state. The defendant, by his own conduct, is estopped from claiming that his acts are illegal. It would be contrary to the rules of equity and justice to permit him to raise that objection for the purpose of shielding himself from his contract obligations.

The appellant’s counterclaim, in my judgment, is not available. His agency was not coupled with any interest. He was in no respect personally obligated to cancel the policies and pay the holders thereof the unearned premiums. His authority to act as agent ceased when the assignment took effect. He knew when he canceled the policies and paid the rebates that the corporation had ceased to exist for the transaction of business. The rule is well settled that the principal in whose behalf the act was done must be in existence at the time the act was performed. The assignment, therefore, which was for the benefit of creditors, operated as a revocation of the agency.

In the case of Fera v. Wickham, 135 N. Y. 229; 47 St. Rep. 866, Judge Gray says:

“ The right of set-off must attach at the time of the making of the assignment. It cannot arise afterwards, for the reason that the claim in favor of the estate has passed to the assignee, and to allow a set-off would be to the prejudice of other creditors.”

The judgment, therefore, of the county court, reversing the judgment of the municipal court, must be affirmed, with costs against the appellant.

Judgment affirmed, with costs.

All concur.


text:
    Edwin Smith, as Executor, et al., App’lts, v. Mary A. Chase et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Ejectment—Title.
    A power of sale in an executor for the purpose of distribution does not vest him with title to the real estate, nor enable him to bring ejectment for its recovery.
    8, Same.
    In such a case, the statute expressly provides that the title to the real estate shall descend to the heirs at law, subject to the execution of the power of sale.
    3. Same.
    In an action of ejectment, it is only legal rights of the parties, as distinguished from their equitable rights, that are to be considered, and the plaintiff must recover, if at all, upon the strength of his own title.
    4. Deed—Construction.
    Where a decedent transfers the fee to certain premises, hut reserves the use thereof during life, and the power to sell the property, if necessary, and provides that, in the event that the power of sale is not executed, the title shall remain in the grantee, the latter takes a fee to the land upon the decedent’s death without executing the power.
    Appeal from a judgment in favor of defendants.

      William H. Henderson, for app’lt; George Gole, for resp’ts.
   Davy, J.

This is an action of ejectment to recover possession of a house and lot situate in the village of Salamanca, in the county of Cattaraugus, brought by the plaintiff, as executor of the will of Eliza A. Evans, deceased. The appellant contends that Mrs. Evans died seised of an estate in fee simple in the house and lot referred to, and that the power of sale, as well as the title to the premises, became vested in him by virtue of the provisions of her will. It appears from the evidence that the testatrix died in February, 1887, leaving five children, of whom the defendant Mary A. Chase is one, and also leaving a last will and testament m which she named the plaintiff as sole executor. It also appears that, in 1874, the testatrix assigned the property in question to her daughter, Mary A. Chase, reserving, however, the right to occupy it with her husband during their lifetimes. In 1876, Mrs. Evans and her husband released and surrendered to Mrs. Chase the right to occupy the house and lot. Thereafter, and in the year 1877, Mrs. Chase executed and delivered to her mother an instrument in writing, of which the following is a copy: “For value-received, I hereby sell, assign, set over and transfer to Eliza A. Evans, of Salamanca, N\ Y., all my right, title and interest in and to the within lease, and all buildings situate thereon, with all the advantages to be derived therefrom.” And contemporaneously therewith, and as a part of the same transaction, and in consideration of the last assignment, Mrs. Evans gave back an instrument in writing, in which she assigned and transferred to Mrs. Chase the same premises, reserving and retaining, however, the use of the same for her benefit, use, and support during her lifetime, and reserving the right to rent, or to sell and dispose of, the same, at her option, and in the event that the avails arising from the sale of the premises were not used by her during her lifetime, then it should belong to Mrs. Chase-After Mrs. Evans’ death, which was in February, 1887, the plaintiff leased the premises in controversy for a short time, but when they became vacant Mrs. Chase took possession of them, and refused to vacate or remove, therefrom, for the reason, as she contends, they belong to her under the contracts made between her and her mother of July, 1877.

If we were to assume that the title to the premises was in Mrs. Evans at the time of her death, we do not see, even then, how the plaintiff can maintain this action. The provisions of the will, so far as it bears upon the question under discussion, are contained in the first and second paragraphs, which read substantially as follows:

“ I give my parlor furniture, the same that I had of Leozone Evans, to my daughter Mary A. Chase, wife of Mortimer Chase, of Salamanca. I direct my executor to sell and turn into money my house and lot on State street in said village of Salamanca, and also all the personal property and household furniture that I may have at the time of my death, excepting the parlor furniture above stated.

“Second. I give and bequeath, equally, to my five children, all my property, namely, the proceeds of the sale of the said house and lot, also the proceeds of the sale of my personal property, also the money I have in the bank at the time of my death, or in notes or other security.”

It is apparent from the provisions of this will that no trust estate in -the house and lot in question was vested in the plaintiff as executor. The main purpose of the testatrix, as appears from the context of the will, was to give her estate, remaining afterpayment of her debts, equally to her five children. She simply imposed upon the executor the duty of selling the property and making the division. It has been repeatedly held that a power of sale in the executor for the purpose of distribution does not vest him with title to the real estate. The provisions of the will do not create a valid express trust under the statute. The power conferred might be exercised as a power in trust. But, in such a case, the statute expressly provides that the title to the real estate shall descend to the heirs at law, subject to the execution of the power of sale. 1 Rev. St. p. 728, §§ 55, 58, 59. The language of the will shows clearly that the testatrix did not even intend to create a trust. There was no valid devise of the house and lot to the executor, or to any other person. Cooke v. Platt, 98 N. Y. 35.

It is an elementary rule, in an action of ejectment, that it is only the legal rights of the parties, as distinguished from their equitable rights, that are to be considered, and the plaintiff must recover, if at all, upon the strength of his own title. It was incumbent upon the trial that he had the title, either absolutely or in trust, and that he was entitled to the possession of the premises at the commencement of the suit. The title to the premises must be in somebody, and if not in Mrs. Chase, under the assignment from her mother, then it must vest in the heirs of the testatrix, and they alone have a right to the property, and the exclusive rights to maintain an action in ejectment for its possession. The writing under which Mrs. Chase claims title to the premises has received a construction by this court in another action between the same parties, reported in 50 St. Rep. 915. In that action the plaintiff, as executor, sought to foreclose a mortgage executed by the defendant, Mary A. Chase, to the testatrix. Mrs. Chase contested the foreclosure on the ground that the consideration money for the mortgage was derived from the sale of a portion of these premises in question, and that, under the contract, they belonged to her. The general term evidently reached the conclusion that the instrument was a valid contract. Mr. Justice Lewis, in delivering the opinion of the court, said that “It was the duty of the executor to collect the money due upon the mortgage, and if, after the settlement of the estate, any of the money should be left, the defendant would be entitled to it under the contract.” The intent of Mrs. Evans, as expressed in the written assignment, is very plain. She transferred to Mrs. Chase the fee to the premises, but reversed the use thereof during her lifetime, and the power to sell the property, if necessary, but, in the event that the power of sale was not executed, then the title should remain in Mrs. Chase. We are of the opinion, therefore, that, under the two written instruments referred to, the fee to the premises in question vested absolutely in Mrs. Chase upon the death of her mother.

The judgment, therefore, should be affirmed, with costs to be paid out of the estate of the testatrix.

All -concur.

Judgment affirmed.


text:
    Winifred J. Mulry, Individual, and as Testamentary Trustee, etc., App’lt, v. William P. Mulry et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Trusts—Appointment .
    _ Where a trust is attempted to he created, and the beneficiary, who is entitled to the beneficial interest in the trust, is created a trustee, no trust is, in effect, created, hut the person named as trustee and beneficiary takes the entire estate ; but, where others are interested as beneficiaries beside the trustee, a valid trust will be created.
    2. Same.
    The appointment of a beneficiary of a trust as a substituted trustee is valid as a designation of a person to execute the' trust.
    3. Wills—Suspension op power op alienation.
    Where a testator devises his estate to trustees in two equal shares, to pay one-third of the income of each share to his wife, and two-thirds of the income to his son and daughter respectively for life, and directs that, on the death of either the son or the daughter, the whole share of the one dying should be held in trust for the other, the power of alienation is suspended longer than two lives.
    4. Same.
    Though the provision in the will whereby, on the death of one of the children, the property is to be held in trust for the surviving child is void, it will not invalidate the other trust under which the property was held during the lifetime of the two children.
    Appeal from a judgment, entered in favor of the defendants. •
    The opinion of Mr. Justice Ingraham: at special term is as follows :
    This action appears to have been brought for the purpose of having a judicial determination as to the powers and duties of the plaintiff under the order designating her as trustee under the trust declared in and created by the last will and testament and codicil thereto annexed of William Mulry, deceased. All the facts alleged in the complaint having been admitted by the answer, the action was submitted upon briefs furnished by the counsel for the plaintiff and the guardian ad litem, for the defendants. Several questions-are presented which are not argued by the briefs submitted. It is-proper at this time to pass upon one or two of tlie questions raised, as the contingency which will require an answer to the others may never happen. In the present condition of the authorities in this state, there seems to be some doubt as to the right of the court to-appoint as a substituted trustee the beneficiary' of the trust. It has been held by the court of appeals that, where a truSt is attempted to be created, and the beneficiary, who is entitled to the' beneficial interest in the trust, is created a trustee^ fio trust is, in effect, created, but that the person named as trustee and beneficiary takes the entire estate. See Woodward v. James, 114 H. Y. 356; 26 St. Rep. 147; Greene v. Greene, 125 H. Y. 512 ; 36 St. Rep. 30. It appears, howevér, that where' others, are interested as beneficiaries besides the trustee, a valid trust, would be created. Thus in Woodard v. James, supra, the court says: “If, then it be granted that, as to her half of the income, the widow was not a trustee, and took what was given her by a direct legal right it does not follow that her trust estate in the corpus of the property is in any manner destroyed, or that there is any the less a necessity for its existence. She can be trustee for the heirs and that trust ranges over the whole estate for the purpose of its management and disposition.” In this case, however none of the trustees named in the will of the testator was a beneficiary, and a valid trust was therefore created. One of the persons named to act as trustee died before the testator, and the other two persons named refused to qualify as executors or to act as trustees, whereupon letters of administration with the will annexed were issued to the widow of the deceased, who was a beneficiary of a portion of the income of the trust property, and upon a subsequent application to the court an order was granted substituting the widow as trustee of the trust contained in the will. The widow subsequently died, and upon application to the court the plaintiff, a daughter of the deceased, and a beneficiary as to one-half of the trust property, was substituted as a trustee in her place. It would appear that this case would come within the provision of 1 Rev. St. p. 730 § 68, that upon the death of the surviving trustee of an express trust, the trust, if then unexecuted, shall vest in the supreme court, with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose under the direction of the court. And this appointment would be a designation under the provision of that section whereby the plaintiff was designated as the person to execute the trust under the direction of the court. This court held, at general term, in the case of People ex rel. Collins v. Donohue, 70 Hun, 325, 54 St. Rep. 33, that an order of the court designating a beneficiary to execute the trust was not void, and could not be attacked collaterally. . The trust, with all the powers and duties of the original trustee, is now vested in the court, and it is to be executed under its direction. It seems to .me immaterial to ■ determine whether or not the plaintiff has the legal title to the real estate, or whether it is in the heirs at law of the testator, or in the devisees. What is clear is that the court is to execute the trust, and has designáted the plaintiff as its agent for that purpose.
    The codicil materially changed the provision of the will as to the disposition of the trust estate. It is not difficult, however, to ascertain just what the testator intended by the execution of the codicil. By that codicil he gave the rest, residue, and remainder of his estate to his trustees, in two equal shares or proportions, in trust to pay one-third of the net income of one share to his. wife, and the remaining two-thirds of the net income of such share to his son, the defendant William P. Mulrv, during his life; and to pay one-third of the net income of the other share to his wife during her life, and the balance of the net income of such share to his daughter, the plaintiff, during her life. And he also gave to his trustees full power of sale. Ño disposition is made, by the codicil, of the remainder of the trust estate; but by the fourth clause of the codicil he provided that, except so far as the original will was not inconsistent with the codicil, the said will, and every part thereof, was ratified and confirmed. This trust created by the codicil was a valid trust, and vested the title of the trust estate in the trustees; and no trustees having qualified under the will, the trust, I think, vested in the supreme court, as before stated. The court, in the appointment of the plaintiff, has vested her with all the powers contained in the original trust, except as to the power of sale, and she is therefore now. in disposition as trustee under the will, whose duty it is to rent the property, and invest the personal property, and receive the income, rents, and profits thereof, and after paying the necessary taxes and assessments and other charges, to divide the net income into' two parts, retaining one for herself and paying over the other part to her brother, who is the other beneficiary.
    There is no provision that by any possibility could be construed into authority to pay the taxes or assessments on the property out of the principal. The clause in the original will, which provided that in case the rents, income, and profits of his property should not be sufficient for any of the purposes to which the same might be applied as aforesaid, then the executors were .authorized to use such portions of the principal as might be necessary for such purpose, does not apply to this clause, because it nowhere appeared that the testator intended that the income ahould support either of his children in any specified manner, although any amount of the income should be paid to the children. All that the trustee was directed to pay to them was the net income, which is the gross income after deducting the proper charges, namely, taxes, repairs, and other necessary charges and expenses.
    As before stated, the codicil makes no disposition of the remainder after the death of the life tenant. By the original will, however, the remainder is disposed of, and under the provision of the codicil before stated this provision in the original will, so far as it is legal, is confirmed by the codicil. I think it clear, however, that the provision in the will whereby, on the death of one of his children, the property was to be held in trust for the surviving child, is void as suspending the power of alienation for more than two lives in being at the time of the death of the testator, for the effect would be that each share would be held in trust during the lifetime of his wife and of the two children, to whom the income was payable, and after the death of one child, during the lifetime of the surviving child which would be three lives in being, and thus void.
    That clause being void, however, would not invalidate the other trust under which the property, was held during the lifetime of the two children. Nor is it necessary now to determine to whom the property would go in the contingency of the one child dying without issue. It seems now that one of the children is married, and- has issue, and the other child, the plaintiff, is unmarried. There is no presumption that the plaintiff will die without leaving issue, and in the event of that happening the person or persons living at the time of her death who would then be entitled to the share held by the plaintiff, and to the ownership of the remainder of this share, could be then more properly determined. In case of both children dying without issue, the persons are deary designated in the will to whom the remainder should then go.

      1 think the provision in the will allowing the executrix to pay •over any portion of the principal of the estate to the children was revoked by the codicil. Such a payment of the principal to the children is entirely inconsistent with the trust estate as created by the codicil, which in express terms provides that the whole of the net income of the trust estate shall be paid to the beneficiaries. It would be clearly impossible to pay the whole income of the whole of this estate to the beneficiaries if a portion of the principal was paid to them.
    It follows from what has been said that the power of sale is vested in this court, but as, in order appointing the plaintiff, she is expressly excluded from the exercise of that power she can only exercise it upon obtaining further authority from the court. The power of sale contained in both the will and the codicil was not a mere naked discretionary power, but was given in connection with the trust estate, as necessary for the - proper performance of the trust, so that, in case the property in which the estate was invested produced no income, or for any other reason it would appear to be for the benefit of the .estate that should be sold, the trustee should have the power to sell it. It was thus the intention of the testator to vest this power of sale as a necessary incident to the performance of the trust by the trustee, and as such I think it ■passed to the substituted trustee. This is the position taken in Lahey v. Kortright, 132 1ST. Y. 455, 44 St. Rep. 603.
    This, I think disposes of all the questions presented, which it is necessary now to decide, and judgment is directed construing the will in accordance with this opinion.
    The question of costs can be deferred until settlement of judgment.

      Michael J. Scanlon, for appl’t; Joseph H. Mahan, for resp’ts.
   Per Curiam.

—Judgment affirmed, with costs, on the opinion of Ingraham, J., delievered at special term.