text:
    ELIZABETH C. BENNETT, Appellant, v. WASHINGTON GARLOCK, Respondent.

      Trustee takes only sufficient estate to fulfill ii’usts — Statute of uses — rested equitable estate in remainder' — made a legal estate by — Buie in Shelly’s Gase — Statute of limitations — does not run against remaindenmam,.

    This was an action of ejectment, brought by the plaintiff to recover the undivided one-third of a lot in the town of Frankfort.' It appeared upon the trial, that on the 24th day of May, 1808, Martha Codd, wife of Matthew Oodd, owned the lot in fee simple, subject to the marital rights of her husband, and was in possession thereof, and that plaintiff, the daughter of the said Martha and Matthew, was then living. That on that day the said Martha and Matthew executed an indenture whereby they conveyed the said premises, with others, to Yarrick and Breese, “ in trust, for the uses, intents, and purposes ” (first) to sell so much as should be necessary to pay debts; (second) to lease, manage, etc., the same, and pay over the net profits of the residue thereof to the said Matthew and Martha for the terms of their natural lives, and (third) to “hold all the residue of said land, and over and above what may be sold as aforsaid for the payment of said debts * * * for the sole use, benefit and behoof of such persons as shall be the right heirs of them, the said Matthew and Martha Oodd, at the time of the death of the survivor of them,” etc.
    Martha Oodd survived her husband, and died in 1871, the land being then held by a trustee appointed by the court in place of Yarrick and Breese. Seld,

    (1) That the trustee took only such an estate as was necessary to enable him to fulfill the purposes of the trust, and that such estate terminated upon the death of the survivor of the said Matthew and Martha;
    (2) That the plaintiff, under the statute of uses, took a legal vested estate in remainder, immediately, upon the execution of the deed;
    (3) That the rule in Shelly’s Gase did not apply, the estate of the grantors being equitable and that in the heir a legal estate, and hence plaintiff took by purchase and not by descent.
    The deed provided that the grantors might, by a joint will or appointment, direct and appoint the persons to whom the residue of the estate should go, and also authorized the trustee, upon their request, in writing, to sell any portion thereof. Held, that as such powers had never been exercised they were of no importance in ascertaining the rights of the parties created by the deed.

      The defense interposed in the action was that of an adverse possession commenced in 1843. Held, that as the trustee under the deed in.no way represented or was hound to protect the interests of the plaintiff, the statute did not commence to run against her until her right of action accrued, upon the death of her mother, in 1871.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.

      Edmamd C. James, for the appellant.
    If, by the trust deed of May 24, 1808, the plaintiff became vested with a future or expectant estate in said lands, whether legal or equitable, then a title by adverse possession against such estate during the continuance of the life estates was impossible, for the law is well settled that no possession can be deemed adverse to a party who has not, at the time, the right of entry and possession. (Webster v. Cooper, 14 How. [H. S.], 488; Ca/rrer v. Jackson d. Astor, 4 Peters, 1; Henyyr v. Schaefer, 55 N. Y., 446; Jackson v. Schoonmaker, 4 Johns., 390; Jackson v. Sell/ick, 8 id., 262; Jackson v. Johnson, 5 Cowen, 74; Jackson v. Mcmcius, 2 Wend., 357; Clark v. Hughes,- 13 Barb., 147; Ramdall v. Robb, 2 Abb. Pr., 307; Wells v. Primee, 9 Mass., 508; Wallingford v. HeaJl, 15 id., 471; Hoe d. Ccvrson v. Edmonds, 6 Meeson & Welsby, 295.) A trustee takes that quantity of interest only which the purposes of the trust require, and the instrument creating it permits. The legal estate is in the trustee so long as the execution of the trust requires it, and no longer; and then it vests in the person beneficially- entitled. {Eficdll v. Walworth, 4 Denio, 385, 388; Webster v. Cooper, 14 How. [H. S.], 488, 499 ; Perry on Trusts, § 319, 320 ; 4 Kent Com., 204; 1 E. S., 730, § 67.) The power of sale to pay debts required no estate to be vested in the trustees. It never attached to the land, for the court finds that there is no evidence of any debts, dues or demands against Matthew and Martha Oodd, or either of them, „ subsisting or existing, May 24, 1808. If such debts had then existed, this power, or trust, would cease as soon as they were, in any mode, paid or extinguished. (Selden v. Yermikyea, 3 N. Y., 525; Kittell v. Osbwrn, 4 T. & C., 45; Hea/rdson V. Williamson, 1 Keen, 34.) Indeed, it would cease as soon as the trustees might, with due diligence, have discharged them, for they cannot prolong their estate by a neglect of duty. (Oa/rter v. Ban-na/rdAston, 1 P. Wins., 518; Salk.', 153.) The deed vested in the trustees a legal estate in said lands commensurate with the purposes of said trust, to wit, an estate puv anitres vies, or during said two lives. On the expiration of said lives, the purposes of this trust would cease, and the estate of the trustees would then also cease. (2 Jar-man on Wills, 213, 214; Welch v. Allen, 21 Wend., 147; Blacker v. Anscombe, 4 Bos. & Pul., 25; Bam v. Matteson, 54 N. Y., 663.) Under the third clause of the trust deed of 1808, the plaintiff, who was living when said deed was executed, became immediately vested with a legal estate in remainder limited by way of use. Remainders, whether vested or contingent, lAay be limited by way of use, as well as at the common law. (2 Washburn on Real Property, chap. 2, §§ 2-8; 4 Kent’s Commentaries [m. p.], 205, 237, etc.; 1 Saunders on Uses, 105, 106; 1 Cruise, title 11, chap. 3, §§ 5, 19,22 and note 1; 2 id., title 16, chap. 5, §§ 1, 15, 16, 17; Act Concerning Uses, passed Peb. 20, 1787; 1 Greenleaf’s Laws, chap. 37, p. 361,; Reformed Dutch Ch/u/rchv. Feeder, 4 Wend., 494; Ga/rver v. Jackson d, Astor, 4 Peters, 1, 90.) It had been uniformly held that a grant or devise to trustees and their heirs to receive the rents and profits of lands and pay them to A and B for their lives, and to stand seized of, or hold said lands, for 'the use and behoof of their children, vested a valid legal estate in remainder in such children. (Jones v. Say <& Sele, 3 Brown’s Pari. Cas., 458 ; Shaplamd v. Smith, 1 Brown’s Oh. Cas., 75; Doe d. Hallam v. Ironmonger, 3 East, 533 ; Doe d. Terry v. GolUer, 11 id., 377; Silvester v. Wilson, 2 Term R., 444; Doe d. Willis v. Ma/rtim, 4 id., 39 ; Foster v. Hayes, 2 El. & Bl., 27; 4 id., 717; Lewin on Trusts, 253, 254; Garner v Jackson d. Astor, 4 Peters, 1, 90; Webster v. Cooper, 14 How. [U. S.], 488, 497, 498 ; Ward v. Amory, 1 Curtis C. C., 419; Wave v. Richardson, 3 Hd., 505; 2 Am. Law Reg., 485 ; Green v. Green, 23 Wallace, 486, 491; Famderheyden v. Gramdall, 2 Denio, 9"; 1 N. Y., 491; Bellimger v. Shafer, 2 Sandf. Ch., 293.) In this case the plaintiff was born before the trust deed was executed. The three conditions necessary to the execution of this use in remainder under the statute were then complete; and it immediately vested in her in fee, although subject to open and let in after-born children. (4 Kent’s Commentaries, 205; Doe d. Barnes v. Provoost, 4 Johns., 61; Nodine v. Greenfield, 7 Paige, 544, 548; Carver v. Jaelcson d. Astor, 4 Peters, 1, 90; Doe d. Poor v. Considine, 6 Wallace, 458, 473; Bight v. Greber, 5 Barn. & Cress., 866; Doe d. Bills v. Hoy-Tcinson, 5 Queen’s Bench, 223; Doe d. Oomberbaelc v. Perryn, 3 Term R., 484; Williamson v. Field, 2 Sandf. Oh., 533; Moore v. Dittel, 41 N. Y., 60; Provoost v. Oolyer, 62 id., 545, 552.) The proviso in the third clause by which the parents reserve the right to appoint by their joint will to whom the remainder shall go; and the provisions of the fourth clause by which the trustees are given a discretionary power of sale to be exercised upon the joint written request of the parents, do not alter the character of the plaintiff’s estate as a vested remainder in fee. The only effect of these powers is to render the remainder liable to be defeated by their' exercise. But until they are exercised the estate remains vested and undisturbed. {Doe d. Willis v. Marti/n, 4 Term R., 39,- 63; Gunning-ham v. Moody, 1 Yesey, Sr., 174,177; Foster v. Rayes, 2 El. & Bl., 27; 4 id., 717 ; Garver v. Jaelcson d. Astor, 4 Peters, 1, 90; Ward v. Amory, 1 Curtis O. C., 419, 425; 4 Kent’s Com., 204.) When lands are given to trustees and their heirs in trust to receive the rents and profits and pay them to A for life, and to stand seized of said lands to the use of the heirs of his body upon A’s death, the remainder so granted is a legal estate during the life of ■A, and does not unite with his equitable estate for life under the rule in Shelly’s Case. (Jones v. Say de Sole, 3 Brown’s Pari. Cas., 458; Shayland v. Smith, 1 Brown’s Ch. Gas., 75 ; Doe d. Rallan v. Ironmongers, 3 East, 533; Doe d. Terry v. OolUer, 11 id., 377; GoodUttle d. Hayward v. Whitby, 1 Burrows, 228; Blalcer v. Anseombe, 4 Bos. & Pul., 25; Warier v. Hutehinson, 5 Moore, 143; 1 B. & C., 721; Garver v. Jaelcson d. Astor, 4 Peters 1; Ward v. Amory, 1 Curtis C. O., 419, 427; Ware v. Biehardson, 3 Md., 555; 2 Am. Law Reg., 485; Green v. Green, 23 Wallace, 486, 491.) When lands are given to trustees and their heirs to receive the rents and profits and pay them to A for life, and upon his death the lands are to go to the heirs of his body, the remainder is a legal estate during the life of A, and does not unite with his equitable interest for life, under the rule in Shelly’s Case. {Sihester v. Wilson, 2 Term R., 444; Oollier v. MeBean, 34 Beavan, 426;
      Mogg v. Mogg, 1 Merivale, 654, 678, 689 ; Playford v. Hoare, 3 Young & Jervis, 175; Doe d. Muller v. Olaridge, 6 M., G. & S., 641; Th/urston v. Thurston, 6 Rhode Island, 296.) When lands are given to trustees and their heirs to permit A to receive the rents and profits for life, and to hold in trust for the heirs of A during his life, the remainder is a legal estate during the life of A, and does not unite with his equitable interest under the rule in Shelly’s Oase. (Biscoev. Perki/ns, 1 Yesey & Beames, 485 ; Yamderheyden .v. Crandall, 2 Denio, 9, 17; Webster v. Cooper, 14 How. [H. S.], 499.) When lands are given to trustees and their heirs to hold to the use of A for life, and after his death to the use of the heirs of his body, the remainder is a legal estate during the life of A, and hence unites with A’s legal estate under the rule in Shelly’s Case, unless the. word heirs is used as a desariptio personarum. (Ourtis v. Price, 12 Yesey, 89; Doe d. Willis v. Martin, 4 Term R., 39; Doe d. Turner v. Dorvell, 5 id., 518; Doe d. IMiledale v. Smeddle, 2 Barn. & Aid., 126; Owen v. Smith, 2 H. Blackstone, 594; Foster v. Hayes, 2 El. & BL, 27; 4 id., 717; Marshall v. Hill, 2 Maulé & Selwyn, 608.) When lands are given to trustees and their' heirs to receive the rents and profits and pay them to A for life, or to permit A to receive them, or in trust to hold to the use of A for life, and upon his death to convey to his heirs, children or appointees, then the remainder is an equitable estate during the life of A, and the remainder-man can only acquire the legal estate through the conveyance. (MoUy. Buton, 7 Yesey, 201; Phipps v. Ackers, 9 Cl. & Ein., 583; 4 M. & G., 1107; Doe d. Booth v. Fddrn, 4 Ad. & El., 582, 591; Clarke v. Darenport, 1 Bosw., 95, 114, 115; Williamson v. Field, 2 Sandf. Ch., 533; Pitcher v. Garter, 4 id., 1; Wood v. Mather, 38 Barb., 473; 44 N. Y., 249.)

      S. Earl, for the respondent.
    The deed in trust to Breese and Yarrick in 1808 vested in them, and their heirs and assigns, the legal estate and the whole thereof in respect to the lands therein mentioned. (Bradstreet v. Clark, 12 Wend., 659; Belmont v. O’Brien, 12 N. Y., 394; Barn v. Matteson, 54 id., 666 , Anderson v. Mather, 44 id., 249.) In this case the cestui que trust, Mrs. Bradstreet, had no particular estate. The heirs of the grantors creating the trust, had no remainder. The trustees were vested with the legal title and clothed with all its incidents, subject only to the execution of the trusts. If under this deed the plaintiff had any right, she could have compelled the trustees to protect it, and failing to do so, they would be legally responsible in damages. (2 Perry on Trusts, § 816; 2 Story Eq. Jur., § 1389.)
   Talcott, J.:

This is an appeal from a judgment rendered at the Circuit Court in Herkimer county, after a trial by the court without a jury. The action is ejectment, to recover an undivided third part of great lot No. 19 in Cosby’s manor, in the town of Erankfort, Herkimer county, and was commenced on the 21st day of October, 1814.

The case commences with the statement that the plaintiff proved that Martha Codd, wife of Matthew Codd, was, on the 24th day of May, 1808, the owner in fee simple of the premises described in the complaint, subject to the marital rights of her husband, and that she and her husband were in possession thereof.

The plaintiff is the daughter of the said Matthew and Martha Codd, and was born before the said 24th of May, 1808. This, of course, established a prima faoie title in the plaintiff, and entitled her to recover; but the plaintiff, anticipating a defense of title by alienation of the ancestor, or by adverse possession, went farther and showed that on the 24th of May, in the year 1808, the said Matthew Codd of the first part, and said Martha Codd, his wife, of the second part, and Samuel S. Breese and Abraham Yarrick of the third part, made and executed an indenture of that date, whereby the parties of the first and second part (Matthew and Martha Codd), for “and in consideration of one dollar to them in hand paid, and in order to effect the uses and purposes hereinafter mentioned,” did grant, release and convey unto the parties of the third part, their heirs and assigns, “ all the lands, tenements, hereditaments and real estate whatsoever or wheresoever, whereof they the parties of the first and second part were, or whereof either of them was seized or entitled to, either in law or in equity, with all and singular the rights, interests, property and estate which the parties of the first and second part were, or either of them was, then seized or entitled, either in law or in equity, to have and to hold, unto the said parties of the third part, and their heirs and assigns, as joint tenants, and not as tenants in common, in trust, for the uses, interests and purposes thereinafter set forth.”

These uses were, in brief: First, to sell and dispose of so much of the said lands, tenements, etc., as shall be sufficient to pay and discharge all debts, etc., then subsisting against the parties of the first and second parts, or either of them. Secondly, in trust as to the residue of said lands and tenements, to lease, manage, cultivate and improve the same in such manner and upon such terms and conditions as to said trustees, or the survivor of them, or $ieir heirs and assigns, or of the survivor, shall from time to time deem proper, and most for the interest and benefit of the parties of the first and second part, or the survivor of them, the net profits and avails whereof are to be paid and accounted for to the said Matthew Codd during his lifetime, quarterly, or as often as may be reasonably required by him for the support and maintenance of said Matthew and Martha Codd and their children; and if said Martha Codd shall survive her said husband, then the said net profits or avails are to be paid and accounted for to her quarterly, or as often as may reasonably be required by her, during her natural life, for the maintenance of herself and said children. Thirdly, in trust and upon this express intent that said trustees, and the survivor of them, and the heirs and assigns of such survivor, shall hold all the residue of said lands, etc., over and above what may be sold as aforesaid for the payment of said debts as aforesaid, for the sole use, benefit and behoof of such persons as shall- be the right heirs of them, the said Matthew and Martha Codd, at the time of the death of the survivor of them; that is, to them children or grandchildren, of such other person as by the laws of the State of New York would be heir Or heirs of the said Matthew and Martha Codd at the timé of the death of the survivor of them, if this deed had not been made. Provided, however, and it is expressly intended, that in order to secure the respect and obedience of their children and grandchildren, or other representatives, the said Matthew-Codd and Martha Codd may, if they can agree and deem- it proper, by their joint will or appointment, in due form of law to be executed, direct and appoint the persons to whom and for whose use the said trust estate of the said residue of said lands shall go, upon the decease of the survivor of said Matthew and Martha Codd, which will or appointment so jointly executed as aforesaid may be revoked or annulled by a proper instrument in writing, by either of said Matthew or Martha Codd, at his or her pleasure, and in case of such revocation the said estate shall go to their right heirs aforesaid.

By the fourth clause of said deed, it was provided that if at any time the said Matthew and Martha Codd should, by instrument in writing, request the trustees to sell and convey any portion of said lands over and above what might be necessary for the payment of said debts, the said trustees were authorized to comply with said request, but a compliance with such request was to be discretionary, and not obligatory, upon the trustees.

The deed was executed in presence of Jonas Platt and Abram M. "Walton. An explanatory instrument was afterwards, and on the 24th of May, 1808, executed by Matthew and Martha Codd, by which it was declared that the true intent and meaning of the principal deed was that the trustees, the survivor, or the heirs and assigns should not be accountable for, or obliged to pay over, the net profits or avails of the estate, until the same should be actually received by the trustees, the survivor or bis heirs and assigns.

The deed was acknowledged on the 28th day of June, 1808, and was recorded in the Oneida county clerk’s office, on the 30th day of June, 1808. On the 6th day of July, 1814, Breese and Yarrick, in ptu’suanceof a decree in the Court of Chancery, conveyed to Thomas Addis Emmett, bis heirs and assigns, as sole trustee, upon the same trusts under which the lands were held by them. Emmett accepted the trust. Thomas Addis Emmett died in the year 1827, but no trustee was appointed to succeed him until March, 1855, when Thomas Oiinningham was, under the authority of a judgment of the Supreme Court, rendered December 22, 1854, in an action wherein Martha Bradstreet, formerly Martha Codd, was plaintiff, and the heirs of Thomas Addis Emmett were defendant, appointed such trustee, and the heirs of Emmett conveyed to him upon the same trusts. The deed to Cunningham contained a full recital of the previous trust deeds and the proceedings of the court in reference to the continuance and transfer of the said trust estate. It was recorded in Herkimer county,'April 23, 1855, but the original trust deed to Breese and Yarrick was not otherwise recorded in Herkimer county. By a decree of the Court of Chancery, on the.16th day of June, 1817, in a suit in which Martha Codd was plaintiff and Matthew Codd defendant, the marriage contract between the parties was dissolved, and.each party freed from the obligations thereof, and the care and control of their children was awarded to said Martha, and the said Matthew was directed to deliver over to her all deeds, leases or papers, which related to any lands which belonged to her at the marriage, or which had descended to or devolved upon her, or been acquired for her use, since that time. By an act of the legislature, soon afterwards passed, the said Martha and her children were authorized to and did assume the surname of Bradstreet (which had been her maiden name), by which name they have since been called.

Soon after said divorce, Matthew Codd absented himself and has not since been heard from, and it was admitted that he died before the said Martha. Said Martha Bradstreet, formerly Martha Codd, died in Chenango county, New York, December 16, 1871, aged ninety-three years, and at her death the heirs of said Martha Bradstreet and Matthew Codd, were as follows: Elizabeth C. Bennett, the plaintiff in this suit, Edward L. Bradstreet and four grandchildren, the children of a deceased daughter, Sarah Sterling. No joint will or appointment was ever made by said Martha and Matthew, and none of the property has been conveyed by any of the trustees, and no conveyance has been executed by said Cunningham, the last trustee, to the said heirs or any of them. The defense to the action was adverse possession for more than twenty years, by the defendant and those under whom he claims. The defense was sustained by the justice before whom the action was tried, upon the ground that the trustees under the deed of 1808 took the entire fee, and that the interest conveyed to the plaintiff by that deed was only an equitable interest until the death of Martha Bradstreet, and being a mere equitable interest, the title of the plaintiff was represented by the trustee and barred by a disseizin or adverse possession, which ran against the trustee as such.

In view of the ground upon which the defense was sustained, it becomes important to inquire what sort of an estate the plaintiff took under the deed of 1808. By that deed an active and valid trust was created. First, for the payment of thé debts of the grantors. Second, to lease, manage, cultivate and improve the estate for the benefit of the grantors, and the survivors of them, paying over the net profits to said Matthew during his life for the support of said Matthew and Martha and their children; and if said Martha should survive Matthew, then to account to her during her natural life for the net profits. These were active trusts, valid at the time of their creation, and the deed conveyed to the trustees the legal estate, to have and to hold during the lives of Matthew and Martha Codd, and the life of the survivor, and so much longer as should be necessary for the discharge of the debts. (See the case of Bain, v. Mattison, partially reported, 54 N. Y., 663, in which this deed came under examination.) The power of discretionary sale at the request of the grantors, and the power of appointment by joint will reserved to the grantors never having been exercised, are of no importance in ascertaining the interests of the parties. If exercised they might defeat subsequent estates, but until exercised they have no effect. (Doe dem. of Willis v. Martin, 4 Term R., 39-63; Carver v. Jackson dem. of Astor, 4 Pet., 1-90.) After the two active trusts before mentioned, the deed proceeds to provide that the trustees, and the survivor of them, and his heirs and assigns, shall hold all the residue of said lands “for the sole use, benefit and behoof of such persons as shall be the right heirs of them, the said Matthew and Martha Codd, at the time of the death of the survivor of them, the said Matthew and Martha Codd; that is, to their children or grandchildren, or such other person as by the laws of the State of New York” would be their heirs if the deed had not been made. This remnant of the property not disposed of under or by virtue of any of the preceding powers or trusts is a remainder. A remainder is defined by Kent to be “ a remnant of an estate in land, depending on a particular prior estate, created at the same time and by the same instrument, and limited to arise immediately on the determination of that estate, and not in abridgment of • it.” The word remainder is not a term of art necessary to be used in the creation of a remainder. (1 Greenlf. Cruise, 277; 2 Wash, on Real Prop., 547 [4th ed.].) The remnant of the estate which might remain was, then, a remainder conveyed under the name of “ residue,” and was to take effect after and as soon as the active trusts mentioned in the deed were satisfied. The act concerning uses, in force at the time when the deed was executed, was the act of February 20, 1787 (1 Greenlf. Laws, 1787, ch. 37, p. 361), and is, in substance, the same as the English statute of uses. (27 Hen. VIII, eh. 10.) It provides, .amongst other things, “that when any person should be seized of any estate in remainder, to the use of or in trust for another, the cestwi que use should thenceforth stand and be seized, deemed and adjudged in lawful seizin and estate of such remainder, and that the estate, right and title of the trustee should from thenceforth be deemed and adjudged to be in the cestwi que use, after such quality, manner, form and conditions as said cestwi que use before had in the use. The effect of this statute was, as was held both in law and equity, in all cases of a mere “naked use” or “jjassive trust,” to transfer the legal title forthwith from the trustee to the cestwi que use, by a process called “ executing the use,” whereby so much of the legal title as appertained to the use in question was said to be immediately, and by the same conveyance drawn out of the trustee and vested in the beneficial owner. By the Revised Statutes of 1830 (vol. 1, p. 727), it is declared (§ 46 of the Statute of Uses and Trusts) that every estate which is now held as an use, executed under any former statute of this State, is confirmed as a legal estate. But by section 48 of the statute, the estate of the trustees in any existing trust, “ where the title of such trustees is not merely nominal, but is connected with some power of actual disposition or management in relation to the lands which are the subject of the trust,” was saved from the general abolition of trusts; and by section 45 it was provided that every estate and interest in lands, except as authorized and modified iii that article, should be deemed a legal right. The remainder to the heirs of Matthew and Martha Codd was not connected with any management or control of the lands, or any disposition thereof, by the trustees after the death of the survivor of the grantors. The trustees were not required or empowered to convey the remainder to the heirs of the grantors, nor were they to preserve contingent remainders, and no act authorized or required to. be done by the trustees, after the active trusts mentioned in the deed were satisfied, can be suggested. ■

The remainder was either vested or contingent. An estate is vested when there is an immediate right of personal enjoyment, or a present fixed right of future enjoyment. (4 Kent, 202.)

Kent says: “ The definition of a vested remainder appears to be accurately and fully expressed in the New York Revised Statutes, and is as follows: when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate.”

"Where a remainder is so limited as to take effect in possession, if ever, upon the determination of a particular estate, which estate is to determine by an event which must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the remainderman is im esse and ascertained, provided nothing but his own death before the determination of the particular estate will prevent such .remainder from vesting in possession. If the estate is limited over to another, in the event of the death of the first remainderman, before the determination of the particular’ estate, his vested interest will be subject to be divested by that event. (Moore v. Lyons, 25 Wend., 119; Chancellor’s Op., 144.)

The plaintiff was im, esse at the time the deed of 1808 was executed. She then would have had an immediate right to the possession of the lands upon the ceasing of the precedent estate. True, the right might have been divested by the death of the plaintiff without issue, before the decease of her mother, and so the remainder would never have actually taken effect in possession, but it is the present capacity of taking effect in possession if the possession were to become vacant, which distinguishes a vested from a contingent remainder. (See Lawrence v. Bayard, 7 Paige, 70; Moore v. Littel, 41 N. Y., 66 ; Sheridan v. House, 4 Keyes, 569 ; Chism v. Keith, 1 Hun, 589; Howell v. Mills, 56 N. Y., 226; Embury v. Sheldon’s. Exrs. et al., MSS., Court of Appeals, N. Y. Weekly Digest, March 12, 1877.) The plaintiff then took a vested remainder under the deed of 1808. It was a mere “ naked use ” or “ passive trust ” and, by virtue of the statute of uses of 1787, was executed by conferring a legal estate upon her eo imsta/nti when the remainder was created. But owhat was the estate of the trustees under the deed? It-was well settled before the Revised Statutes of 1830 that the trustee takes that amount of interest only, both as to duration and amount, which the purposes of the trust require, and the instrument creating the trust permits, and whether the conveyance to the trustee be with or without words of inheritance, he takes an estate sufficient for the execution of the trust — neither more nor less. (4 Kent, 204; Perry on Trusts, 319, 320 ; Nicoll v. Walworth, 4 Denio, 385.) It is also enacted by tbe statute of uses and trusts of 1830, section 67. "When tbe purposes for which an express trust shall have been created shall have ceased, the estate of the trustees shall also cease. This statute applies to trusts created before the Revised Statutes took effect. (Bellinger v. Shafer, 2 Sandf. Ch. [m. p.,], 293 ; Eckford v. DeKay, 8 Paige, 89-94; S. C., on appeal, 26 Wend. 29.) The trustees therefore('took no estate under the deed to endure longer than until the purposes for which the express trusts were created ceased.

There was no evidence that any debts existed against the said Matthew and Martha Codd, or either of them, at the time of the execution of the deed of 1808, and there is no proof that any of the trustees have attempted to disjiose of. any of the lands embraced in the trust, for the payment of debts or otherwise. It is suggested, and perhaps is probable, that the insertion of the power of sale for the payment of debts, was a matter of form, to relieve the transaction from any suspicion of an intent to hinder, delay, or defraud creditors. Perhaps it was inserted as a matter of precaution, to protect the deed against the allegation of a fraudulent intent, in case any debt or debts of the grantors, or either of them, not then remembered or recognized, should afterwards be made to appear. However this may be, if in fact any such debts existed at the date of the deed, the trust, so far as it was upheld by the power of sale for the payment of debts, would cease when they were in any manner paid or extinguished. (Selden v. Vermilya, 3 N. Y., 525.)

The deed appears to have been an open transaction, put upon the public records in the county where the grantors resided soon after its execution, and it does not appear that any creditor hás made any claim for a debt due at that time, or claimed to be in any manner interested in the trust, or its execution; and we agree with the learned justice before whom the cause was tried, that any debts that may have existed against the grantors, or either of them, in the year 1808, must, from the lapse of time and the absence of proof, be presumed to have been extinguished prior to 1871, when Martha Bradstreet died.

The trust for Martha and Matthew Codd, could, by its terms, endure only for their lives and the life of the survivor, and it was provided, therefore, by the deed, that when the debts, if any, were extinguished, and the survivor of said Matthew and Martha should die, the estate of the trustees should cease.

Leaving out of view, then, the trust, if it were a trust for the payment of debts, the trastees took an estate jpowr cuui/res vies, viz., for the lives of Martha and Matthew Codd, and the survivor of. them. The plaintiff took a vested remainder in fee, subject to being defeated by her death without issue, before. the termination of the life estate. The remainder was executed by the statute of uses, and was by virtue of that statute a legal estate.

The adverse possession commenced in the year 1842. The estate of the plaintiff did not coalesce with the estate of her parents, under the rule in Shelly’s Case, if for no other reason, because the estate .of the plaintiff was a legal estate, and that of her ancestor was merely equitable. Matthew and Martha Codd were cesímis que i/rust under the deed, and during and for their lives and the life of the survivor, the legal title to the estate was vested in the .trustees. In - order that the rule in Shelly’s Case should apply, so that the heir in remainder is held to take by descent and not by purchase, the life estate and the remainder must both be of the same character; that is, both legal or both equitable estates. If one be legal and the other equitable, they do not unite in the ancestor, and the heir, as remainderman, takes by purchase and not by descent. (2 Wash, on Real Prop., 600 [4th ed.] ; 1 Perry on Trusts, § 358.)

The adverse possession, then, to be available as a defense, must be good as against the plaintiff who took, as a remainderman, by purchase and not by descent, a vested legal estate. But the plaintiff was not entitled to the possession of the estate until the expiration of the precedent estate for life. The statute did not commence to run against her, at common law, until the right of entry accrued. The trustees of the precedent life estate owed no duty as such to her, and in no way represented her. See Carver v. Jackson ex dem. Astor (4 Peters, 1), where it was held that an adverse possession of fifty years was unavailing against the title of a remainderman, whose right of entry accrued within twenty years. The case also involves other questions quite similar to those presented in the case at bar. See, also, Jackson v. Schoonmaker (4 Johns., 402).

The Revised Statutes also declare this principle in clear and comprehensive language, as follows: “No expectant estate can be defeated or barred by alienation or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate by disseizin, forfeiture, surrender, merger or otherwise.” (1 R. S., 725, § 32.) The adverse possession is claimed to have commenced in 1842, and was limited in its operation and effect by this provision of the Revised Statutes. The disseizin, therefore, could not commence to operate as a bar to the plaintiff so long as her estate was in expectancy instead of actual possession. It was in expectancy until the death of her mother, Martha Bradstreet, in the year 1871.

The learned judge at the Circuit held that neither the defendant nor those under whom he claims, acquired the legal title by virtue of any of those conveyances which are set up as the foundation of. the adverse possession, and no point is made to the contrary by the counsel for the defendant on this appeal, so that it is unnecessary to examine any. question save that of the adverse possession. Without, therefore, holding that the expectant estate of the plaintiff, if of an equitable character, would, since the Revised Statutes, have been barred by the adverse possession, which was proved in this case, we are of opinion that the learned judge, before whom the cause was tried, was in error in holding that the estate of the trustees was, by the deed, to endure beyond the lives of the grantors, and that the right of the plaintiff was merely that of a cestui que trust. We think she took a vested remainder in fee, executed by the statute .of uses, under the deed of 1808, and such remainder was protected from destruction by any laches on the part of the trustees, or cestwis que trust for life, until her right of entry accrued in 1871, on the decease of her mother, Martha Bradstreet, the survivor of the cestuis que trust for life. If these views are correct, the plaintiff should have recovered.

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

Smith, J., concurs. Mullin,' P. J., not having heard the argument, does not vote.

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


source: Caselaw Access Project

author: Taloott, J.:

license: Public Domain

text:
    CHARLES D. CASTLE and AARON ERICKSON, Respondents, v. CHARLES S. BEARDSLEY, Appellant.

      Statute of frauds — promise to answer fit■ the debt of amotherr — consideration must appear in note or memorandum.

    Where a promise is made to answer for the debt, default or miscarriage of another person, the consideration thereof must appear either expressly or hy necessary implication, in the note or memorandum in writing required hy the statute.
    Chapter 464 of 1863, hy repealing so much of the Revised Statutes as required a “note or memorandum expressing the consideration” to render such a promise valid, restored the law on this subject to the state in which it was prior to the adoption of the Revised Statutes.

      Spey&rs v. Lambert (1 Sweeny, 335) not followed.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the trial of this action by the court without a jury.

      WilUam C. Cox, for the appellant.
    The agreement, on which plaintiffs declare, is void for want of consideration.. (Browne on Statute of Frauds, 403, §§ 387 to 408, inclusive; Wright v. Wees, 25 N. Y., 151; Kermorth v. Sehofield, 2 Barn. & Cress., 945; Mallory v. Gillett, 21 N. Y., 412; Bears v. Brink, 3 Johns., 215; Bcdly v. Ogden, id., 411; Thompsony. Blcmeha/rd, 3 Comst., 335; Bingham on Real Property, 341 to 368; Btaats v. Howlett, 4 Denio, 559 ; Leonard v. Vredenburgh, 3 Johns., 29; Rogers v. Kneeland, 10 Wend. 219; Douglas v. Howland, 24 id., 35; Bno v. Woodworth, 4 N. Y., 249; Abed v. Radeliff, 13 Johns., 297; Jackson v. Sill, 11 id., 201; 1 Philips’ Ev., 547; Webb v. Rice, 6 Hill, 219; Stevens v. Cooper, 1 Johns. Ch., 429; Smith on Contracts [67], 81, and cases cited; Smith’s Mercantile Law, 577; Peltier v. Collins, 3 Wend., 452.) The amendment to Revised Statutes striking out the words “expressing the consideration” has not materially affected the requirement of the statute; it does not say that no consideration is necessary to an agreement; it merely leaves the law as it was before 1831.; (Churchy. Brown, 21 N. Y., 315 to 331; Bingham on Real Property, 363.)

      Harris da Cooke, for the respondents.
   Taloott, J.:

This is an appeal from a judgment in favor of the plaintiffs, rendered at the Monroe Circuit, on a trial by the court without a jury. The plaintiffs, as partners, under the copartnership style of “ The Rochester Native Wine Company,” were the holders of two promissory notes for $100 each, made by Charles S. Beardsley and one Owens, as partners, under the style of “ Beardsley & Company,” payable to the order of, and indorsed by, H. W. Beardsley. The notes matured in June and July, 1873. Payment thereof was duly demanded at maturity. They were not paid, and the indorser was duly notified of the demand and the non-payment. Said notes remaining unpaid on the 9th day of November, 1874, the defendant, Charles S. Beardsley, on that day signed and delivered to the plaintiff an instrument in writing, as follows, viz.:

“I agree to give my individual note, payable to Rochester Native Wine Co. (less the amount of liquor barrels sent this month at $1.75), payable on the first of July next, as collateral to two notes given them by Beardsley & Co., being $100 each, and indorsed by Henry W. Beardsley. October 9, 1874.

“(Signed) ' C. S. BEARDSLEY.”

The defendant makes two objections to the recovery. Eirst, that the consideration upon which the defendant entered into the collateral agreement is not set forth with sufficient particularity in the complaint. Second, that as the agreement or promise does not purport to be founded upon any consideration it is void within the statute of frauds.

As to the first objection it appears that the complaint avers the collateral agreement to have been executed for value. This averment we deem sufficient ■ — ■ at all events until the plaintiff shall have been ordered to make his complaint more specific. The second objection presents a more serious question.

The statute of frauds, as enacted in the Revised Statutes of 1830, declares every agreement void, unless some note or memorandum expressing the consideration be in writing, subscribed by the party to be charged therewith in certain specified cases, among others: “Every special promise to answer for the debt, default or miscarriage of another person.” This provision, though not in the precise verbiage, was in substance tbe provision of tbe Revised Laws of 1813, and of the statute of frauds from tbe time of Charles II, except that by tbe revision of 1830, tbe words “ expressmg the consideration^ were inserted. Under tbe statute, as it existed before tbe revision of 1830, it bad been long held that tbe “ agreement ” required by tbe statute, to be in writing, comprehended tbe consideration as well as tbe promise, and that tbe omission could not be supplied by parol proof of a valid consideration not specified or in some manner indicated by tbe agreement in writing. (See Staats v. Howlett, 4 Denio, 560.) Rut it was, nevertheless, held that tbe consideration might be inferred, implied or “ spelled out ” from tbe agreement and from other papers referred to in it, and need not be expressly stated as tbe consideration upon which tbe agreement was based. In Packer v. Willson (15 Wend., 343), Chief Justice Savage delivering tbe opinion of tbe court, and speaking of tbe words added to tbe statute in tbe revision of 1830, says: “ It was thought by tbe revisers and tbe legislature that tbe most proper way for courts to find out tbe consideration of an agreement was not to infer or imply or spell out tbe consideration, but after the passing tbe Revised Statutes tbe party should express tbe consideration,” and in that case it was substantially held that tbe difference made by tbe addition of tbe words in question was between tbe words express ” and imply,” which, in tbe case then before tbe court, was said to be a very material one.” From that time down to tbe passage ’ of tbe amendatory act of 1863, hereafter referred to, tbe question whether tbe addition of tbe words in question in tbe revision of 1830 bad added any thing to tbe statute, or bad restricted tbe power and ingenuity of tbe courts in implying or endeavoring to spell out ” a consideration from tbe agreement, was a fruitful source of controversy in tbe courts, leading to contradictory rulings on tbe subject. (See Church v. Brown, 21 N. Y., 315.)

In 1863 tbe legislature amended this portion of tbe statute of frauds by re-enacting its provisions, omitting tbe words expressing tbe consideration.” (Laws of 1863, cb. 464.)

This amendment, it would appear, left tbe law to stand precisely as it was, under tbe interpretation of tbe courts, before tbe words requiring tbe consideration to be expressed were inserted, and thus tbe law would be relieved from that uncertainty which seemed to arise out of differences of opinion in regard to the effect of the words which had been inserted in the revision of 1830, and which, for upwards of thirty years, had been the subject of controversy.

The counsel for the plaintiffs, however, contends that by the amendment, the sole apparent effect of which was to omit from the statute the words which required the consideration to be expressed in the agreement, the legislature did not intend to restore the act, as it was understood and construed by the courts before those words were inserted, but intended to make a more sweeping alteration of the law, and, in fact, to overturn or abrogate that doctrine which had for a long time been maintained by the courts, both in England and in this State, that the whole agreement, including not only the promise but the consideration, must in some way appear or be 'indicated by the writing. And a very elaborate opinion of the Superior Court of New York, delivered .by Judge Freeman, in Speyers v. Lambert (1 Sweeney, 335; S. C., 37 How., 315), is cited as sustaining this position.

It is quite true that the decision in Speyers v. Lambert fully sustains the position of the counsel for the plaintiff, and Judge Freeman, in the opinion, very strongly argues that by the amendment of 1863, the legislature intended to abolish the necessity of the consideration being in any way stated or indicated by the written agreement. But it will be seen that the argument of the opinion is as to what the law perhaps ought to be, rather than an attempt to show, by any known or recognized rule of interpretation, that the amendment of 1863 was intended by the legislature to have the effect assumed.

Ve must assume, what- we cannot doubt was especially true in this ease, that the legislature was familiar with the construction which had been adopted by the courts prior to the revision of 1830, and to the controversies which had grown up after that time, and been continued for a period of thirty years, as to whether the words added in 1830 had really added any thing to the meaning of the statute, or whether the courts were still at liberty to infer and spell out ” the consideration as before the revision of 1830.

The only inference as to the intention of the legislature in the amendment of 1863, which can be safely drawn from the act then passed is, we think, that the legislature intended to restore the law to what it was well settled to be, before the omitted words which had given rise to controversy and uncertainty had been inserted. This is plainly what the legislature did, and to hold that it intended to simply restore the law to what it was before the omitted words were inserted, but to go further and abrogate the necessity of having that part of the agreement relating to the consideration in writing like the residue, we think is unwarranted by any sound and safe rule in the interpretation of statutes, and would approach the assumption of legislative power by the court. Mr. Bingham, in his work on executory sales of real property, in alluding to the case of Speyers v. Lambert, says: “ It is certainly a singular way of construing a statute that has once been amended, and then again amended, by striking out the amendment, to mean something different from what it did before it was amended at all.” (Bingham on Contracts for Sale of Beal Property, 363.) There appears to be great force in the' criticism. Though entertaining the highest respect for the court by which the decision thus criticised was made, we are constrained to a different conclusion. In the case at bar, the notes referred to in the agreement had been made and become due, long before the agreement in question was made, and they could not of themselves furnish any consideration for the agreement of the defendant, and indeed his agreement contains nothing by reference or otherwise from which any consideration can be “ inferred, implied, or spelled out.” It is a mere naked promise to answer for the debt of another, and manifestly void' by the statute of frauds, if that statute requires, as we hold it does, that the consideration as well as the .promise should appear by agreement in writing.

The judgment is reversed and a new trial ordered, costs to abide the event.

Present — Mullin, P. J., Smith and Talcott, JJ.

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


author: Talcott, J.:

text:
    THE PEOPLE ex rel. EDWARD HUGHES v. MARGARET LAMB.

      Summmy proceeding — sufficiency of affidavit to procure summons — Certificate of service by constable.

    An averment in an affidavit, made in summary proceedings instituted to remove a tenant, tliat the amount specified is due for the rent of the premises, in pursuance of the agreement hy which the premises were “let,” in connection with a statement that, the defendant holds over and continues in possession of said premises, is substantially equivalent to the statement that the amount is due pursuant to the agreement under which the premises are “ held,” as required by the statute.
    The certificate of the constable, showing a service of the summons upon the defendant personally, by showing the original and delivering a cox>y thereof to him, is “ due proof ” of the service thereof.

      Sobmson v. McManus (4 Lans., 880) distinguished.
    Certiorari to review summary proceedings, instituted before, a justice of tbe peace in Syracuse, under tbe “ landlord and tenant act.”
    Tbe affidavit of tbe respondent was as follows :

      “ Onondaga County, } gg . ’ ’
    City oe Syracuse, ) ’ ’
    “ Margaret Lamb, of Syracuse, in said county, being duly sworn, says, that she is the rightful owner of the premises hereinafter mentioned, and entitled to tbe possession thereof ; and that Edward Hughes is justly indebted unto said Margaret Lamb in tbe sum of fifteen dollars due tbe 1st day of August, 1876, for tbe rent of a bouse and premises known as No. 163, on East Washington street, in Syracuse aforesaid; that she has demanded tbe said rent from tbe said Hughes, who has made default in tbe payment thereof pursuant to tbe agreement under which said premises were let, and that be bolds over and continues in possession of tbe same without tbe permission of tbe landlord, after default as aforesaid.
    her
    “MARGARET + LAMB.”
    mark.
    “ Sworn to this 17th day of August,
    1876, before me,
    “H. Wheaton,
    “ JusUce.”

      The constable who served the summons returned the same with the following indorsement thereon:
    “ I certify that on the 17th day of August, 1876, at about twelve o’clock, noon, I served the within summons, personally, on the defendant, in Syracuse, New York, by handing to and leaving with him-a true copy thereof, and at the same time showing him tbp original.
    “THOMAS CONWAY,

      “August 17, 1876. Fees, 50, paid. Constable.”

      Goats <& Belhncup, for the relator.

      A. L. Jolmson, for the defendant.
   Talcott, J.:

This is a certiorari, the return to which brings up summary proceedings before a justice of the peace in Syracuse, under the “ landlord and tenant act.” Under the twenty-third rule of the Supreme Court this should be heard at the Special Term in the first instance, but we have looked into the case and do not see that any of the objections of the relator to the proceedings before the magistrate are tenable. The affidavit of the landlord is in precise accordance with the form for that purpose prescribed in Waitis Practice (5 Wait’s Prac., 427), with the addition of the words, probably unnecessary, that she, the landlord, is the rightful owner of the premises and entitled to the possession thereof, and we think sufficiently shows that the conventional relation of landlord and tenant exists between the parties, and the averment that the amount specified is due for the rent of the premises, in pursuance of the agreement by which the premises were “ let,” in connection with the statement, that the defendant holds over and continues in possession thereof, is, we think, substantially equivalent to the statement that the amount is due, piu-suant to the agreement under which the premises are “held” as required by the statute.' We think due proof of the service of the summons was made by the certified return of the constable. That showed a service upon the defendant personally, by showing the original and delivering a copy.

The case of Robinson v. McManus (4 Lans., 380) is only to the effect that the justice was not confined to the return as evidence of tbe service, but where that did not show all the particulars of a due service, might examine the constable orally. The officer is required to make return in such a case (2 R. S. [m. p.], 440, § 77), and such return if it shows a good service, is due proof.” The fact that the justice received evidence of the circumstances which authorized the issuing of the warrant, although there was no appearance on behalf of the tenant, though perhaps unnecessary, had no tendency to injure the relator, and does not constitute a proper subject of complaint by him.

The cert/iora/ri must be dismissed, and the proceedings affirmed with costs to the defendant.

Present — Mullin, P. J., Talcott and Smith, JJ.

CerUora/ri dismissed and the proceedings affirmed, with costs to the defendant.


text:
    WILLIAM CANDEE, Respondent, v. S. ANGELINE BURKE and others, Appellants.

      Bes adjudieata — Mesne profits — allegation as to, in complaint — reeov&ry for

    In an action of ejectment the defendants set up in their answer that "the premises in question, together with others, were conveyed to the plaintiff hy their ancestor, Enos Burke, in pursuance of an agreement by which plaintiff was to advance to him $7,200; that Burke was to occupy and cultivate the same for his own benefit; that upon receipt of the said sum, with interest, plaintiff was to account and reconvey the premises to Burke; that such repayment had been made, and they therefore demanded an accpunting and a reconveyance.
    The plaintiff alleged in his reply and subsequently proved upon the trial, that a prior action had been commenced by the said defendants against the plaintiff, in which they claimed that the plaintiff made an arrangement with Burke, by which he was to advance money to the latter and take a conveyance of the premises in question, with others, as security for the repayment thereof; that Burke was to remain in possession; that he, until his death, and thereafter the defendants, had continued so to do; that the full amount due the plaintiff herein had been paid, whereupon they demanded an accounting and reconveyance; that judgment was entered therein in favor of the present plaintiff, holding that the conveyance was an absolute and unconditional deed, and not a mortgage or security for any loan made to Burke, and that the title to the premises was vested absolutely in the plaintiff herein.

      Upon the trial of this action, held, that the cause of action in the former suit and the defense set up in the answer in this case were in substance the same, and that the judgment in the former action was a bar to the defense set up in the answer herein.
    When, in an action of ejectment, it appears from the complaint that the plaintiff claims to recover the value of the rents and profits of the premises during the time they have been unlawfully withheld by the defendant, it is too late, on the trial, to object to the form and want of particularity and certainty with which the allegations relating thereto are made.
    Appeal from a judgment in ejectment in favor of tbe plaintiff, entered upon tbe trial of tbis action at tbe Circuit.

      J. D. Ga/rfield, for tbe appellants.

      ■Fra/nk Misooek, for tbe respondent.
   Talcott, J.:

This is an appeal from a judgment rendered at tbe Onondaga Cb’cuit for tbe plaintiff, in an action of ejectment. Amongst other special answers made by tbe defendants, they set up that one Enos Burke, tbe husband of tbe defendant S. Angelina Burke, and tbe father of tbe other defendants, in bis lifetime agreed to convey a part of tbe premises in question, and to procure a conveyance of tbe residue, to one Daniel Candee and tbe plaintiff, “ at and for tbe consideration of something less than $7,200, tbe amount stated in said conveyance, to be paid or advanced in part to said Burke, and in part upon liens and incumbrances against said Burke, upon said premises by said Candees. Tbe said Enos Burke, also, by said agreement, was to remain in and retain the possession of said premises, and work and cultivate tbe same on bis own account and for bis own benefit as bis own property. Tbe said Enos Burke, also, by said agreement, was to place in tbe bands of said Candees tbe proceeds of certain other real estate and other property, and tbe net avails of tbe products of said premises over and above tbe support of bis family and tbe expenses of carrying on said farm belonging to said Burke, or in Which be bad some right or interest, towards tbe repurchase of said premises, and when tbe full sum of $7,200 and tbe interest thereon bad been paid by said Burke to said Candees tbe said Candees were to reconvey said premises to said Burke, and to settle with him for tbe moneys placed in their bands towards tbe repurchase of said premises.”

The answer then goes on to allege that the said Enos Burke did, on or about the 1st of August, 1844, convey to said Candees the east half of said premises, and did procure one Iiicks Worden, who held the title to the west half thereof, for the benefit of said Burke, to convey the west half to the said Candees, and- the said Candees did pay to the said Burke, and upon the liens and incumbrances, the said $7,200. That Burke, by virtue of the said agreement, did retain possession of the said premises and cultivate the same for his own use and benefit until his death, in 1862, and that the defendants, succeeding to the rights and interest of said Burke, have ever since remained in possession of said premises.

The defendants then allege that from the amounts paid by Burke, and from what the said Candees have received from the net proceeds of the premises, the whole consideration of the $7,200 and the interest thereon, has been realized by the Candees. That Burke died intestate, leaving the defendants him surviving, and that Daniel Candee died in 1848, leaving a will by which all his rights in the premises were transferred to the plaintiff. That the defendants have demanded of the plaintiff a settlement of the account and a reconveyance, but plaintiff has refused to come to such settlement and to reconvey according to said agreement, and the defendants claim that they are entitled .to such accounting, and to a reconveyance. To this answer, the plaintiff replied, a former suit commenced in 1870, in the Supreme Court,, by the defendants against the plaintiff, “wherein the same matters were alleged, or might or should have been alleged.” That the plaintiff answered in the said former action; that issue was duly joined upon all the matters set out in the pleadings in the said action; that the said Supreme Court had jurisdiction of the parties and the subject-matter of the said action, and the same was duly referred to a referee to hear and determine; that the action was duly tried on the merits and decided on the merits, against the now defendants and in favor of the plaintiff, and judgment was rendered thereon on the merits, and duly perfected in the office of the clerk of Onondaga county, in October, 1872, and the judgment record is referred to as a part of the reply, and notice given that the plaintiff will put the same in evidence on the trial of this cause as a bar to the counter-claim set up by the defendants in this action. !

A copy of tbe judgment record in tbe former action is contained in tbe case, and seems to have been attached to the reply. Upon these pleadings, the judgment record in the former action, and the opening of the counsel for the defendant in this case, the principal question decided at the Circuit arose, and after a long discussion by the counsel on both sides, the substance of which is mentioned in the case, the justice at the Circuit held that the cause of action in the former suit, and the defense set up in the answer in this case, replied to as above, were in substance the same, and that the judgment in the said former action was a bar to the defense set up in the answer of the defendants, which is hereinbefore mentioned. It is sufficient to say of the said former action, that it was an action commenced by these defendants against this plaintiff, in which it was alleged by the plaintiffs that in August, 18M, an arrangement was made whereby Daniel and William Candee were to ” assist said Enos Bui-ke, and pay certain mortgages and judgments against said Burke, take the conveyance of a part of the premises from Burke, and the other part to be procured by Burke from one Hicks Worden, as security for the repayment of such advances as they should make to Burke; that Burke was to retain the possession of the premises, and did do so until his death, and that since then the then plaintiffs, now defendants, have continued in possession, and that payments have been made more than sufficient to extinguish the indebtedness; that the defendant, now plaintiff, claims that the said deeds were absolute and not as security, and the complaint asks that the present plaintiff may be adjudged to hold the premises as mortgagee, and asks for an accounting and reconveyance, and that the defendant may be restrained from taking any proceedings to dispossess the now defendants.

Yarious collateral and incidental circumstances are alleged in the complaint in the former suit, many of which are not repeated or referred to in the answer in this case. The now plaintiff answered in the former suit, claimed that the property was piuchased absolutely, and that the deeds to himself and Daniel Candee were absolute and not as security.

The former action was, as appears by the judgment record, tried before the referee, who reported, amongst other things, that each and every of the said conveyances was an absolute and unconditional deed, and not in the nature of a mortgage or security for any loan made or to be made to or for the benefit of Enos Burke, and that the title to the premises conveyed by the said deeds vested absolutely in the grantees therein named, subject only to the incumbrances mentioned in the said deeds respectively, and that, the plaintiffs are not entitled to an accounting, or to redeem and have a conveyance of the premises or any part thereof, and that the now plaintiff was entitled to judgment against the now defendants to that effect, with costs.

On this report a judgment was duly entered on the 8th of October, 1872, and, so far as appears, has been acquiesced in as correct. It is quite manifest from the pleadings in this case, and from the statements of the counsel for the defendants, and his offer of proof that the defendants are seeldng in this action to retry the question whether Enos Burke had, by an arrangement or contract with the Candees at or about the time when the conveyances- were made to them, reserved a right to redeem the premises in question upon the repayment to the Candees of the amount advanced, and to be advanced by them, and constituting the apparent consideration for the conveyances with interest.

The counsel for the defendants insists that the cause of action set up in the complaint in the former suit, and the defense in this suit are substantially different, inasmuch as the former suit was based upon the theory that the now plaintiff held the premises only as security, and his title was that of a mortgagee, whereas the answer in the present case sets up a contract whereby Enos Burke was to be entitled to redeem, upon the payment of the consideration advanced by the Candees, and that the cause of .action set up in the answer' by way of defense and counter-claim, is in the nature of a claim for the specific performance of a contract. We see no substantial difference between the allegations on the subject in the former suit and those contained in the answer in this case, except that in the former the matter is called un “ arrangement,” and in the latter an agreement.” The substance of the allegations in each case was the same, namely, that there was the right of redemption reserved to Enos Burke at the time of the conveyance of the property by deeds absolute in form; and however this was done, whether by express agreement in so many words, or whether the agreement was to be implied in equity from tbe fact that the original conveyances were intended as seciirity is not material, and was not material in tbe former case. Tbe case of Stowell v. Chamberlain (60 N. Y., 212) is claimed by the defendant’s counsel to be decisive of the case at bar. It appears to us that so far as that case decides any principle relevant to the present case, it maintains the conclusion at which the justice at the Circuit arrived. In that ease the former suit had been disposed of on a demurrer. The first action had been in trover for certain bonds, and the demurrer, so far as could be seen, had been sustained on the ground that the present right of the plaintiff to a return of the same bonds did not appear. The action reported in 60 New York, was an action on contract to recover the value of the bonds which the complaint alleged had been received and sold by the defendants, as the agents of the plaintiff. The principle decided as stated in the syllabus of the case is, that “ in order to make a former action a bar, the circumstances must be such that the plaintiff might have recovered in the first action for the same cause of action alleged in the second.”

Applying that rule to this ease, why is not the judgment in the former action a bar? It will scarcely be claimed that the plaintiff could not have recovered in the former action upon proof of the allegations contained in the plea in this case. The former action was in substance to establish in Enos Burke and those who represent him in estate, a right to redeem the premises in question upon repayment to the Candees, or their representatives, of the amount of the consideration paid by the latter for the conveyances, and that right, as claimed by the now defendants, was based upon an asserted contract, either expressed or implied, in equity, at the time of the conveyances. It seems to us plain that the cause of action in the former suit, was substantially identical with the matters set up by way of defense in this suit, and having been once adjudicated upon, is put at rest as between. these parties and those who represent ■ them.

In Fullerton v. McCurdy (55 N. Y., 637), where an action was commenced to redeem, upon the ground that the title of the defendant was that of a mere mortgagee, and that the mortgage was void for usury, it was claimed that judgment ought to have been rendered for the plaintiff as for a specific performance of a contract of sale. It is sufficient to say of that case, that among other reasons given by the court for denying that species of relief, it is said that the necessary parties for such a suit are not before the court, and the facts found are not sufficient to show a right in the plaintiff to specific performance. The findings show that- the agreement to convey was verbal, and there is no -finding that there was any part performance.” The question as to the validity of the foreclosure of the Remington mortgage, and the various exceptions to the admission of evidence founded on the alleged invalidity of that foreclosure as against S. Angelina Burke, the widow, seem to have been presented to the General Term of this department when the case was here before (4 Sup. Ot. Rep. [T. & O.], 143), and it seems to have been then held that the foreclosure was sufficient. The rights of Mary Burke seem to have been protected on this last trial by the stipulation by which the plaintiff omitted to take a judgment for her undivided one-third of one-seventh, that is, one-twenty-first part, of the parcel in which she claimed such separate interest.

The objections to the proof of the loss of the original petition of Enos Burke for the benefit of the insolvent law, if available under any circumstances, seem to be superseded by the ultimate ruling that the former judgment was a bar to the defense attempted under the twelfth answer. The proceedings under the insolvent law were only important as showing that at the time, Enos Burke did not claim to be in any manner interested in the premises which had been conveyed to the Oandees, either legally or equitably, and the ruling in question rendered the papers and proceedings of Burke under the insolvent law wholly immaterial.

After the disposition of the issues concerning the title and right to possession, the judge reserved the question of damages for withholding the property and mesne profits to be determined before himself at a future day, and there is no point made upon the argument of this appeal against this practice, and although the case contains a statement that the defendants asked to go to the jury on the question of mesne profits, it seems to have been afterwards agreed by a stipulation, oral or otherwise, referred to by the justice in the course of the conversation, that it should be disposed of by the court. At all events it is not claimed on this appeal that there was any error in not referring any question on tbat subject to tbe FT-

Afterwards the ease came on to be beard on tbe reserved questions, in regard to a recovery for mesne profits in tbe action. Tbe complaint claims tbat tbe plaintiff is entitled to tbe mesne profits of tbe premises since tbe same bave been withheld by tbe defendants, and tbat tbe fair annual value thereof is tbe sum of $2,000, and demands judgment for tbe premises, and for tbe rents and profits thereof, during tbe time they bave been withheld by tbe defendants. When tbe question as to mesne profits came to be tried, tbe counsel for tbe defendants claimed tbat tbe plaintiff was not entitled to recover any thing therefor in this action, upon tbe ground, as we understand bis position, tbat what was said in tbe complaint did not amount to a sufficient count for tbe recovery of mesne profits, not but tbat tbe claim for mesne profits might be joined in tbe same action with a claim to recover tbe land, but tbat it must be set up in a separate count of tbe complaint. Tbe defendants were fairly apprised by tbe complaint, tbat the plaintiff claimed to recover in tbe action tbe value of tbe rents and 'profits of tbe premises during tbe time they bad been unlawfully withheld by tbe defendants, and we think it was too late on tbe trial to make any objection to tbe form and want of particularity and certainty with which tbe allegations in tbat behalf

were made. (Holmes v. Davis, 19 N. Y., 488-493; Vandevoort v. Gould, 36 id., 639.) Tbe case of Larned v. Hudson (57 id., 151), merely decides tbat a claim of damages for withholding possession is a different thing from a claim to recover mesne profits, and tbat under a mere claim of damages for withholding possession mesne profits cannot be recovered. In this case there is no claim for damages for withholding, but a claim in tbe complaint for mesne profits alone. Although from one portion of tbe opinion of tbe justice who tried tbe cause it would seem tbat be held tbat tbe plaintiff was not entitled to recover tbe mesne profits, but was entitled to recover damages for tbe unlawful withholding, yet it appears from a subsequent part of tbe opinion tbat tbe damages which be did actually assess, were composed of tbe annual value of tbe use of tbe premises or tbe rents, issues and profits. This we think was tbe correct result, upon whatever theory it was arrived at. We think, also, tbat tbe court was correct in'bolding that tbe right to recover tbe mesne profits was from tbe time at least when tbe defendants denied tbe title of tbe plaintiff and assumed a hostile position, by claiming possession in tbeir own right.

Tbe judgment is affirmed.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment affirmed.


text:
    LEVANTIA S. CARPENTER, Respondent, v. ZARAH H. BLAKE, Appellant.

      Malpractice — what skill required of a swrgeon — Testimony of witness as to gene/'al reputation — what questions may he put to.

    One who offers himself for employment in a professional capacity undertakes,
    (1) That he possesses that reasonable degree of learning and skill which is ordinarily possessed by the professors of the same art or science, and which is ordinarily regarded by the community, and by those conversant with the employment, as necessary to qualify him to engage in such business;
    (2) That he will use reasonable and ordinary care and diligence in the exercise of Ms skill and the application of Ms knowledge, to accomplish the purpose for which he is employed;
    (3) That he will use his best judgment in the exertion of his skill and the application of Ms diligence.
    Although, usually when general reputation is relied upon, it is not competent to give in evidence specific acts, either to sustain or to overthrow such general reputation, yet when testimony as to general reputation is given by a witness, he may be asked upon his cross-examination, with a view to lessen the effect of Ms testimony as to general reputation, or to show a bias in favor of the party who has called Mm, but not for the purpose of establisMng the fact to be proved, whether he has not heard reports which tend to contradict the purport and effect of Ms testimony.
    Appeal from a judgment in favor of tbe plaintiff,’ entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upton a case and exceptions.

      H. R. Belden, for tbe appellant.

      B. Hubbard, for tbe respondent.
   Talcott, J.:

Appeal from judgment rendered on a verdict at Livingston Circuit, and from an order of the Special Term denying a motion for a new trial on case and exceptions.

The action is against a physician and surgeon for negligence in the treatment of a dislocation of the elbow of the plaintiff. The case has been several times tried, and has been once to the Court of Appeals. On that occasion, the majority of that court laid down the ride as applicable to actions for negligence in a professional employment, that one who offers himself for employment in a professional capacity undertakes, first, that he possesses that reasonable degree of learning and skill which is ordinarily possessed by the professors of the same art or science, and which is ordinarily regarded by the community, and by those conversant with the employment, as necessary to qualify him to engage in such business; second, that he will use reasonable and ordinary care and diligence in the exercise of his skill, and the application of his knowledge to accomplish the purpose for which he is employed; third, to use his best judgment in the exertion of his skill and the application of his diligence, and the court reversed a former judgment in this case, for the reason that the General Term had held that, although it was proved that the defendant had the reputation of being sufficiently skilled, the fact was immaterial in the case. (50_N. Y., 696, and see opinion, Judge Allen, MS.)

The case, in the Court of Appeals, appears to have been decided principally upon the authority and reasoning of the opinion in Leighton v. Sargent (1 Foster [N. H.], 460).

On the last trial of this action, the defendant, besides giving in evidence the opinions of numerous other surgeons as to the propriety of his practice in this case, as described by him and others, also gave in evidence the opinions of other members of his profession who were acquainted with him and his reputation in his profession, that he was reputed to be a skillful physician and surgeon. On the cross-examination of one of these witnesses ■ (Dr. Joshua B. Pinchase), it was allowed, against the objection and exception of the defendant, to be proved that the witness had heard from some third party, that on a former occasion and in an operation in which the witness had also heard that the defendant assisted as a surgeon in a case of a fracture of the leg, that the limb was “ set ” at a place where it was not broken.

The general rule is, that where general reputation is relied upon, it is not competent to give in evidence specific acts, either to sustain or to overthrow such general reputation. (Bakeman v. Rose, 14 Wend., 110, 111; Corning v. Corning, 6 N. Y., 104; 2 Phil. Ev. [C. & H.], 291; 1 C. & H. Notes, 764, 766.) The defendant cannot be supposed to be prepared to prove the facts in regard to all cases which had theretofore occurred in his practice, and the inevitable effect of allowing such evidence, would be to introduce before the jury a multitude of collateral issues, and thus tend to obscure and distract attention from the real issue in the case on trial. But when testimony as to general reputation is given by a witness, it seems to be agreed that on his cross-examination, and with a view to lessen the effect of his testimony as to general repute, or to show a bias in favor of the party who has called him, but not for the purpose of establishing the fact to be proved, the witness may be asked whether he has not heard reports which tend to contradict the purport and effect of his testimony. (Leonard v. Allen, 11 Cush., 241; Rese v. Martin, 6 C. & P., 562;) It is quite clear that the reports referred to in this case, being improbable in themselves and doubtless arising from irresponsible neighborhood gossip, may have justly produced no effect on the mind of the witness, himself a professional man; but since the reputation which it is permissible to prove is a reputation not only among the associates in the profession of the party whose reputation is the subject of examination, but his reputation in the community for skill in his profession, we do not see why the question was not admissible on cross-examination, and the effect of the answer to be judged of by the jury. The charge delivered by the court was, on the whole, we think, quite careful and quite as favorable to the defendant as he had a right to ask. But, after the conclusion of the charge, various legal propositions were stated to the judge by each party, in the form of requests to charge, oily one of which calls for any remark, namely, the request to charge that if the plaintiff, or the surgeon who attended her after the defendant had ceased to have charge of the case, was guilty of any negligence in the management of the arm, which in any degree contributed to produce its crippled condition, that the defendant was not responsible therefor. To this request, the judge declined to charge, except as he had already charged. On a careful examination of the charge, as stated in the case, we do not discover that he had given to the jury any precise instructions upon the legal effect of concurring negligence. There was some evidence that soon after the defendant had ceased to have charge of the ease, it was obvious, even to an unprofessional observer, that the bones of the elbow were then out of place, and whether resulting from an original omission on the part of the defendant to place the bones in proper position, or from subsequent and accidental luxation, was one of the questions of fact disputed on the trial. If the luxation had been properly reduced by the defendant, and the bones subsequently got out of place, it was doubtless incumbent upon the plaintiff, or her attending surgeon, to have taken such measures as were reasonably within their power, seasonably to have remedied the difficulty; but the charge, as delivered, contained the instruction: If you find that the doctor (the defendant) was dismissed with her assent, she has no right to hold him responsible for any subsequent results to that arm.” We do not see that there was any reasonable doubt but that the defendant relinquished the further charge of the case, with the entire knowledge and concurrence of the plaintiff, and that being so, the instruction quoted was as favorable to the defendant as the one prayed for. It was an instruction that the defendant was not liable for any subsequent consequences, whether resulting from negligence or otherwise, and in effect, rendered the request unnecessary.

The very elaborate opinion, delivered by the presiding justice when the case was here before, and which was not overruled by the majority of the Court of Appeals except upon the single point of the charge, that .the question whether the defendant had the requisite skill in his profession was immaterial, renders a more lengthy discussion of the principles applicable to the case unnecessary.

Judgment and order denying a new trial affirmed.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment affirmed.

      60 Barb., 488. — [Bef.


text:
    HENRY J. WOOD, Respondent, v. LUCIEN L. HAZEN, Appellant.

      Ba/nhrupt — application for discharge — within what time it must he made — sec. 29 of hanhrvpt act.

    Under section 29 of the original bankrupt act, providing that “ at any time after the expiration of six months from the adjudication of bankruptcy, or if no debts have been proved against the bankrupt, or if no assets have come to the hands of the assignee, at any time after the expiration of sixty days, and within one year from the adjudication of bankruptcy, the bankrupt may apply to the court for a discharge from his debts,” held, that the requirement that the aplication should be made within one year from the adjudication of bankruptcy, applied only to those cases in which no debts were proved, or no assets had come to the hands of the assignee.

      In re Greenfield, (2 3ST. B. B., 311) followed.
    Appeal from a judgment in favor of the plaintiff, entered upon tlie trial of tbis action by tbe court without a jury.

      t F. M. Bwdioh, for tbe appellant.

      O. B. Adams, for tbe respondent.
   Talcott, J.:

Tbis is an appeal from a judgment rendered at tbe Oneida Circuit on a trial before one of the justices of tbis court without a jury. Tbe action was commenced on tbe 18th day of October, 1875, and was to recover for goods sold and delivered by tbe plaintiff to tbe defendant in May, June and July, in tbe year 1872. Tbe defendant was duly adjudicated a bankrupt by tbe District Court of tbe Hnited States for tbe northern district of New York, in September, 1872. An assignee in bankruptcy was duly appointed who took possession of tbe property of tbe defendant under tbe bankrupt law. He has made one dividend, but has not yet rendered bis final account, and there are funds remaining in bis bands undistributed out of which there may be a further dividend. Tbe plaintiff duly proved tbe claim for which tbis action is brought, in tbe proceedings in bankruptcy in November, 1872, and received bis dividend. Tbe defendant has never apjalied for a discharge under tbe bankrupt act, and such discharge has not been specifically refused to him. He sets up the proceedings in bankruptcy in his answer, and the fact that the plaintiff proved his claim for which this suit is brought, under those proceedings, and alleges that the proceedings in bankruptcy are still pending and undetermined in the District Court. The action, it will be seen, was commenced more than three years subsequent to the- adjudication of bankruptcy, and the question is, whether under the foregoing state of facts, it can be maintained by a creditor who has proved his debt under the proceedings in bankruptcy.

The provision of the bankrupt law bearing on this question, in force when this action was commenced and tried, is as follows:

“No creditor proving his debt or claim shall be allowed to maintain any suit at law or in equity therefor against the bankrupt, but shall be deemed to have waived all right of action against him; and all proceedings already commenced, or unsatisfied judgments already obtained against the bankrupt shall be deemed to be discharged and surrendered thereby. But a creditor proving his debt or claim, shall not he held to have waived his right of action or suit against the bankrupt, where the discharge has been refused or the jproeeedúngs heme been determined without a ddseharge.” (U. S. Devised Statutes, § 5105, as amended by the act of June 22, 1874; 18 U. S. Stat. at Large, 179, § 7.)

A discharge has not been refused to the defendant within the meaning of the act, and the question is, have the proceedings been determined without a discharge ? The plaintiff insists that the “ proceedings ” referred to in the act relate only to proceedings touching or affecting the discharge of the bankrupt, and that although the proceedings relating to the collection and distribution of the property of the debtor amongst his creditors may be still pending and undetermined in the District Court, if the time has elapsed within which the court can grant a discharge, the proceedings are determined within the meaning of the act, so that the right of action of the creditor is revived. Conceding this to be the true construction of the act, it becomes necessary to examine another section, which is section 29 of the bankrupt act, as originally passed, being section 5108 of the Devised Statutes of the United States. It is as follows:

“At any time after the expiration of six months from the adjudication of bankruptcy, or if no debts have been proved against the bankrupt, or if no assets have come to the hands of the assignee, at any time after the expiration of sixty days, and within one year from the adjudication of bankruptcy, the bankrupt may apply to the court for a discharge from his debts.”

Whether, under this last section, a discharge can be granted by the court after the lapse of one year from the adjudication of bankruptcy, has been the subject of apparently conflicting decisions' in the Courts of the United States. It was held (In re Greenfield, 2 N. B. R., 311) by Judges Blatoheord and Nelson, in the United States Circuit for the southern district of New York, that by the construction of the said original section 29, the limitation of one year as the extent of the time within which the court had power to grant a discharge applied only to those cases where no debts had been proved, or no assets had come to the hands of the assignee, and where, therefore, the bankrupt might apply for a discharge after the expiration of sixty days from the adjudication of bankruptcy. (See, also, In re Martin, 2 N. B. R., 548.) On the other hand (In re Sloan, 12 N. B. R., 59), Judge Wallace, in the District Court, argues that the year’s limitation applies to all cases, but in the case then before him, it appeared that no assets had come to the hands of the assignee, so that his remarks arguendo must be understood to be obiter. It appears that the case of Sloan was taken up to the Circuit Court for the northern district of New York, and we have been favored by the plaintiff, in his points in this case, with the opinion delivered at the Circuit by Judge Hunt, the successor of Mr. Justice Nelson, on the bench of the Supreme Court of the United States. The opinion is quite brief. The learned judge, in affirming the decision of the District Court, denying Sloan a discharge, says, speaking of the year’s limitation in section 29 : “ In my judgment, this applies to all cases, whether there are debts proved or assets received or not.” It will be perceived, however, that Judge Hunt does not profess to directly overrule the previous decision of Judge Nelson, but says only, in alluding to it: “ If it be assumed that the distinction made by Judge Nelson, that the limitation of one year applies only to cases where there are no assets or no debts are proven, is a sound one, the result here must be the same; ” thus expressly recognizing the fact that the question whether the year’s limitation, applied to cases where debts had been proven and assets had come to the hands of the assignee, was not before him. As to some extent strengthening the position of the defendant here, it may be remarked that the decision of Judge Nelson was made soon after the bankrupt law went into effect, and when its operation, under the decision of the courts, was watched with much interest by the profession, and presumably by members of the national legislature, and the construction which had been put upon the twenty-ninth section by so eminent and experienced a judge as Mr. Justice Nelson, on a point so important, doubtless attracted attention, yet, while congress has from time to time amended and remodeled the bankrupt law, it has left the original -section 29, standing unchanged, until, by an act approved July 26, 1876 (Acts of Forty-fourth Congress, chap. 234), the twenty-ninth original section, now section 6108, is amended by striking out the limitation altogether, and providing that “ at any time after "the expiration of six months from the adjudication of bankruptcy, or if no debts have been proved against the bankrupt, or if no assets have come to the hands of the assignee at any time after the expiration of sixty days, and before the final disposition of the cause, the bankrupt may apply to the court for a discharge from his debts; ” and further providing that the section, as thus amended, shall apply to all cases, whether commenced before or 'after the amendment.

In this state of the decisions of the courts of the United States and of the legislation, we think the proper course for this court is to hold that the decision of Mr. Justice Nelson is the true construction of the original twenty-ninth section, until that decision shall have been directly overruled, which, as we have seen, it was not in the case of Sloan. Such being the case, it appears that the time within which the United States District Court may grant a discharge to the defendant had not expired when the action was commenced, and consequently that the proceedings mentioned in section 5105, have not terminated, and that the plaintiff’s right of action was suspended by that section when this action was commenced. This leads, of course, to a reversal of the judgment.

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

Present — Mullin, P. J., Talcott and Smith, JJ.

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