text:
    Charles Johnson, App’lt, v. Peter Buckel, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    1. Attachment—Affidavit.
    An affidavit for an attachment which alleges that defendant “ has removed, disposed of, and secreted, and is about to remove, dispose of, and secret his property," is insufficient, such statements being inconsistent.

      2. Same—Only part of cause of action due.
    At the time of the commencement by attachment of an action on nine notes, only two had matured; the complaint contained the allegation that plaintiff was induced to discount the notes by defendant’s fraudulent representations, but was on the express contract, no damages for the fraud being asked. Held, that the statement in the affidavit that only a part of the notes were due was fatal to the attachment.
    3. Same.
    The application for attachment was based on false and fraudulent representations as to solvency and on a fraudulent disposition of property consisting of the giving of mortgages by defendant. Held, that if the representations were false, in that defendant was insolvent and was indebted to-the persons to whom the mortgages were given, a consideration for the mortgages existed, and therefore a fraudulent disposition of property was not shown.
    Appeal from order vacating an attachment.

      Henry Daily, Jr., for app’lt; Samuel Untermeyer and Moses, Weinman, for resp’t.
   O’Brien, J.

The attachment recites that the action is brought to recover the sum of $14,972 as damages for breach of an express contract other than a contract to marry, and states the ground of the attachment to be that the defendant has removed,. disposed of, assigned and secreted, and is about to remove, dispose' of, assign and secrete, his property, with the intent and design of defrauding his creditors.” The Code, § 636, requires, before procuring the warrant upon this ground, that it should be shown that' the defendant “ has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete,” the property, with intent to defraud creditors. Where, therefore, an attachment is sought upon the theory of a fraudulent disposition of all a debtor’s property, the affidavits should be directed to showing that the debtor has done either one or the other; because the doing of both at the same time is necessarily inconsistent. In other words, if a debtor has assigned or disposed of his property, it eliminates the idea that he is about to assign and dispose of it. It is true that the warrant could be granted upon showing'Ahat a portion of the property had been disposed of, and that as to the balance the debtor was about to dispose of it. Although in this case the conjunctive, and not the disjunctive, positions are sought to be upheld as ground for procuring the warrant, a similar inconsistency to that pointed out with respect to the Code provisions is here apparent The recital, as already pointed out, is that the defendant has removed, disposed of, assigned and secreted, and is about to remove, dispose of, assign and secrete, his- property.” It is plain that, if the affidavits sustain the recital that the defendant has removed and disposed of his property, it necessarily excludes the recital that he is about to remove and dispose of the same. This confusion of two separate and distinct things is noticeable in all the papers and in the argument of' counsel for appellant upon this appeal. Where the ground relied on is the fraudulent disposition of property, the affidavits should be directed to showing either that the property has been disposed of, or that the debtor is about to dispose of his property, or that with respect to some of it he has disposed of it, and with respect to other portions he is about to dispose of it. But, as already said, it is inconsistent to assume the position that a debtor has disposed of his property, and in the next breath to assert that he is about to do so.

This failure of the plaintiff to place himself on definite ground is equally noticeable when we come to consider the theory of plaintiff’s cause of action. He seeks to recover for breach of an express contract, setting forth nine causes of action, eight on promissory notes, and the ninth upon a check. At the time the action was commenced and the attachment issued against the defendant’s property for $14,972, there had matured only the first note for $1,500, and the check for $1,000 ; these being the first and ninth causes of action stated in the complaint. With respect to the other seven causes of action, the notes were not due. For the purpose, however, of immediately suing upon all the causes of action, the complaint contained a number of allegations showing that the plaintiff was induced to discount the notes by reason of the false and fraudulent representations of the defendant as to his solvency. There can be no doubt, upon a showing that fraud existed in procuring the money, that plaintiff had an election to-sue either upon the express contracts, which would be the notes themselves and the check, or upon the debt, or he could sue to recover damages for fraud ; in other words, he had an election to either sue upon the express contract or sue for the fraud. In the latter case the debt would become immediately due, while in the former the debt would become due according to the terms of the contract. The plaintiff, however, elected to sue upon the express contract; and, as already stated, as to seven of the causes of action, embracing the greater portion of the amount for which recovery was sought, the amounts, according to the terms of the express contracts, were not due. The plaintiff, in the affidavit used to support the attachment, reiterates these several causes of action, and states that the $14,972, with interest,, is due over and above all offsets and counterclaims, and yet by the very statement it is shown that there was then due but the sum of $2,500. This would necessarily be fatal to the attachment

But, apart from this, upon the main and principal ground of fraudulent disposition of property, no such case is made out as-would justify the issuance of an attachment. For the purpose of. showing the fraud committed upon him, the plaintiff has built, up a case of fraudulent representations by stating that at the time he advanced the money for the notes Abraham Solomon and "Wolf Levy, from whom plaintiff obtained them, stated to him. that the defendant had told them that he was perfectly solvent,, and able to pay all his debts; that he wished to use the money for these notes for the purchase of malt and hops-to use in his brewery for the manufacture of malt and beer, and that the notes, would be paid at maturity ; and that they also stated to plaintiff at the time he received the notes and advanced the money for them that the defendant had told ■ them that he was worth $250,000 over and above all his debts; that he was doing a, prosperous business, and that his brewery property was only incumbered by the purchase money mortgage of $80,000. To-demonstrate the falsity of these statements, it is shown that, in addition to this $80,000, there was another mortgage, unrecorded at the time the notes were delivered, for $89,000, and that, although the defendant had stated that there was no chattel mortgage on his personal property, he, subsequent to the delivery of the notes to plaintiff, mortgaged the personal property and chattels in and about his brewery for $87,038. In addition, 'the plaintiff shows that twenty-six chattel mortgages on property in this city, on which there was unpaid the sum of $17,085, were in July, 1892, which was a period subsequent to the delivery of the notes to plaintiff, assigned and transferred to one Ennis. In addition is a statement that about the time he received or was receiving the money from the plaintiff, defendant sold and disposed of a large number of casks and other personal property connected with his brewery, receiving the money therefor. . From these statements the plaintiff argues that two conclusions are to be drawn: (1) Fraud in procuring him to discount the notes by reason of-such representations as to solvency having been false and untrue; and (2) that the placing of these mortgages or the recording of the $89,000 mortgage on the real estate and the giving of the chattel mortgages, together with the sale of the casks,, are evidence of the fraudulent disposition of property. Upon plaintiff’s theory, both of these should be made out; it being essential to plaintiff’s right to immediately sue the defendant, and have the notes immediately payable, although by their terms they had not matured, to show fraud in procuring the credit, and, for the purpose of obtaining the attachment, the fraudulent disposition had necessarily to be made out. We think, however, that, a moment’s reflection will develop another inconsistency in the-attitude thus assumed by the plaintiff. If the representations were false, in that the defendant was indebted to the various persons to whom these mortgages were given, and, instead of having assets exceeding his liabilities, he was insolvent, then the consideration supporting the giving of the mortgages is shown ; while, if the defendant then had the property which he subsequently by means of chattel mortgages or mortgages on the real estate-sought to fraudulently divert -from his creditors, then the theory of false representations essential to enable the plaintiff to elect to sue at once without awaiting the maturity of the notes would be ■taken away. Thus is presented a question similar to that in the cases of Kibbe v. Herman, 21 St. Rep., 235; and Fleitmann v. Sickle and Cœsar v. Sickle, 13 St. Rep., 399. In Kibbe v. Herman, the attachment was issued upon the ground of fraudulent disposition of property, and, in the affidavit used in procuring the attachment, charges of fraudulent representation and fraudulent misappropriation of property were mingled. In that case it-was said “ that the attachment would not be upheld, unless, in addition to the proof of fraudulent representation, the charge upon which the attachment was granted, namely, the fraudulent misappropriation of property to defeat the claims of creditors, was sustained by satisfactory evidence of the debtors having been possessed of such property; ” the court saying further: “We have held in the cases of Fleitmann v. Sickle and Cœsar v. Sickle, 13 St. Rep., 399, that in applications of this character where charges of fraudulent representations and fraudulent appropriation of property are mingled, the attachment will not be upheld, unless, over and above the charge of fraudulent representations, it appears that the ground upon which the attachment was granted, namely, the fraudulent appropriation of property to defeat creditors, is sustained by satisfactory evidence.” It will be noticed that the affidavits, in supporting the viey that defendant misrepresented his financial condition, do not (nor could they consistently) attack the good faith of the indebtedness for which the mortgages were given. The conclusions and inferences to be drawn therefrom are that, while sufficient to support the theory of fraudulent representations, they are clearly insufficient as regards fraudulent disposition of defendant’s property. Even with respect to the fraudulent repre-sentations, those not having been shown to have been made to the plaintiff, nor to Solomon and Levy for the purpose of having them communicated to the plaintiff, a serious question is presented as to plaintiff’s right to repudiate the credit, and thus enable him to sue for fraud. It is unnecessary, however, to place our decision upon this ground, because, as we have pointed out, the fraudulent disposition of property by the defendant not having been shown, this alone was fatal to plaintiff’s right to an attachment. We are of opinion, therefore, that the disposition made by the learned judge below was correct, and that the order appealed from .should be affirmed, with costs and disbursements.'

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


source: Caselaw Access Project

license: Public Domain

text:
    Court of Appeals.
    Filed October 4, 1892.
    Albert P. Miller, App’lt, v. The New Jersey Steambot Co., Resp’t.

      Henry L. Brant, for app’lt; W. P. Prentice, for resp’t.
   Order affirmed, and judgment absolute for defendant, with, costs, on opinion of general term. All concur.

Affirming 34 St. Rep., 914.


text:
    The People ex rel. Frank J. Sherman, Resp’t, v. John Person et al., App’lts.

      Edgar T. Brackett, for resp’t; J. S. L’Amoreaux, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 45 St. Rep., 528.


text:
    Nat’l Hooper et al., App’lts, v. Chas. McCulloch Beecher et al., Resp’ts.

      Franklin Bien, for app’lts; F. S. Bangs, for resp’ts.
   Judgment affirmed, with costs, on authority of decision on former appeal, 118 N. Y., 413; 29 St. Rep., 52. All concur.

Affirming 39 St. Rep., 320.


text:
    Leonard A. Wooster, Resp’t, v. The Western N. Y. & Pa. R. R. Co., App’lt.

      Wm. L. Marcy, for resp’t; John G. Milburn, for app’lt.
   Judgment affirmed, with costs. All concur, except Earl, Ch. J., and Peckham, J., not voting.

Affirming 40 St. Rep., 844.


text:
    Filed October 11, 1892.
    Lizzie V. Bevans, App’lt, v. Lydia F. Young et al., Resp’ts.

      Gilbert O. Hulse, for app’lt; Wm. H. Crane, for resp’ts.
   Judgment affirmed, with costs, on opinion of the general term. All concur.

Affirming 38 St. Rep., 41.


text:
    Mary Astheimer, Resp’t, v. Patrick J. O’Pray, App’lt.

      G. D. B. Hasbrouck, for resp’t, E. S. Wood, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 41 St. Rep., 220.


text:
    Mary Hoskins, Adm’rx, App’lt, v. Jas. Stewart et al., Resp’ts.

      Martin J. Keogh, for app’lt; Joseph F. Daly, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 35 St. Rep., 998.


text:
    Henry Heywood et al., App’lts, v. Wm. M. Thacher, Assignee, Resp’t.

      Abram Kling, for app’lts; Edwin C. Cloyd, for resp’t.
   Dismissed on argument.

See 47 St. Rep., 1.


text:
    The People ex rel. Geo. F. Comstock, App’lt, v. The City of Syracuse, Resp’t.
   No papers.

Motion for re-argument denied, without costs.


text:
    Mary G. Morris, Resp’t, v. Alfred G. Sickly, Impl'd, App’lt.
   No papers.

Motion to recall remittitur granted.

See 45 St. Rep., 735.


text:
    Ellen Cavanagh, Ex’rx, Resp’t, v. The New York El. R. R. Co. et al., App’lts.
   No papers.

Motion to strike from preferred calendar denied, without costs.

See 42 St. Rep., 848.


text:
    Isaac K. Cohn et al., Resp’ts, v. The New York El. R. R. Co. et al., App’lts.
   No papers.

Motion to strike from preferred calendar denied, without costs.

See 45 St. Rep., 937.


text:
    Frances E. Johnson, Resp’t, v. The New York El. R. R. Co. et al., App’lts.
   Ko papers.

Motion to strike from preferred calendar granted, without costs.

See 44 St. Rep., 935.


text:
    Wm. D. Taber, Resp’t, v. The Board of Sup’rs of Erie Co., App’lt.

      Wm. D. Taler, for resp’t; Wm. B. Hoyt, for app’lt.
   Motion for re-argument denied, ten dollars costs.

See 43 St. Rep., 177.


text:
    Ino. Maroney et al., App’lts, v. Margaret Boyle et al., Impl’d, Resp’ts.
   Ko papers.

Motion to restore granted, on payment of fifty dollars costs.

See 43 St. Rep., 902.


text:
    Filed October 18, 1892.
    Nancy E. Banta, Resp’t, v. Pananos Haggitiris, App’lt.

      Robert T. B. Easton, for resp’t; A. C. Fransioli, for app’lt.
   Appeal dismissed, with costs. All concur.

See 42 St. Rep., 956.


text:
    Mary Kiefer, Adm’rx, Resp’t, v. The Grand Trunk R’way Co., App’lt.

      J. W. Russell, for resp’t; Sprague, Morey, Sprague & Brownell, for app'lt.
   Appeal dismissed, with costs. All concur.

See 45 St. Rep., 708.


text:
    Melvin Stephens, Resp’t, v. Robert Lewis Humphreys, Impl’d, App’lt.

      Albridge C. Smith, for resp’t; John K. Van Ness, for app’lt.
   Appeal dismissed, with costs. All concur.

See 46 St. Rep., 646.


text:
    The People, Resp’ts, v. Matthew T. Trumpbour, App’lt.

      Augustus Schoonmaker and J. N. Vanderlyn, for resp’ts; David M. DeWitt, for app’lt.
   Appeal dismissed. All concur.

See 45 St. Rep., 563.


text:
    Anna M. Arnold, App’lt, v. The Norfolk & New Brunswick Hosiery Co., Resp’t.

      Frank E. Blackwell, for app’lt; Walter D. Edmonds, for resp’t.
   Appeal dismissed, with costs. All concur.

See 43 St. Rep., 418.


text:
    The People ex rel. Grove Webster, Resp’t, v. Wm. T. Van Tassell, Sheriff, App’lt.

      David M. DeWitt, for resp’t; G. D. B. Hasbrouck, for app'lt.
   Order affirmed on opinions of the General Term, with costs. All concur.

Affirming 46 St. Rep., 575.


text:
    Filed October 25, 1892.
    The People, Resp’ts, v. Matthew T. Trumpbour, App’lt. Same v. Jas. E. Ostrander. Same v. Same.

      Augustus Schoonmaker and J. N. Vanderlyn, for resp’ts; David M. DeWitt, for app’lt.
   Judgments affirmed on opinions below. All concur, Maynard, J., not sitting.

Affirming 45 St; Rep,, 555, 563.


text:
    The People, Resp’ts, v. Joseph Davis, App’lt.

      Jas. W. Eaton, dist. att’y, for resp’ts; P. D. Niver, for app’lt.
   Judgment affirmed on opinion below. All concur.

Affirming 46 St. Rep., 213.


text:
    John Sullivan, Resp’t, v. The Mayor, etc., of N. Y., App’lt.
    No appearance for resp’t; Sidney J. Cowen, for app’lt.
   Judgment reversed, new trial granted, costs to abide event, on authority of Higgins v. Mayor, etc., 131 N. Y., 128; 43 St. Rep., 711. All concur.

Reversing 39 St. Rep., 518.


text:
    George B. Gallup, App’lt, v. August Belmont et al., Resp’ts.

      J. Newton Fieto, for app’lt; Grosvenor P. Lowrey, for resp’ts.
   Judgment affirmed, with costs, on opinion of Learned, J., at general term. All concur.

Affirming 41 St. Rep., 233.


text:
    Theodore Butterfield et al., Resp’ts, v. Henry E. Oppenheimer et al., App’lts.

      Wm. Townsend, for resp’ts; Geo. Carlton Comstock, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 45 St. Rep., 81.


text:
    Philomena Giraldo, by Guardian, Resp’t, v. The Coney Island & B. R. R. Co., App’lt.

      John C. Kennedy, for resp’t; Wm. N. Dykman, for app’lt.
   Judgment affirmed, with costs. All concur, except Earl, Ch. J., Peckham and Gray, JJ., dissenting.

Affirming 42 St. Rep., 915.


text:
    John Evers, Jr., by Guardian, Resp’t, v. Jonas Weil et al., App’lts.

      Jacob Fromme, for resp’t; Otto Horwitz, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 43 St. Rep., 336.


text:
    In the Matter of the Estate of Peter Cain, Dec’d.

      Thos. McMahon, for app’lt; James O'Neill, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 42 St. Rep., 145.


text:
    Alfred Humphreys, Resp’t, v. The Prudential Ins. Co. of America App’lt.

      Isaiah Fellows, Jr., for resp’t; E. Countryman, for app’lt.
   Judgment affirmed on opinion below, with costs. All concur

Affirming 41 St. Rep.; 453.


text:
    Nicholas W. Walsh, sole acting E’xr, Resp’t, v. Marie Waldron et al., App’lts.

      John Delahunty, for resp t; David M. Neuberger and Ezekiel Fixman, for app’lts.
   Judgment affirmed, with costs to be paid out of the estate, on opinion of general term. All concur.

Affirming 43 St. Rep., 613.


text:
    Sarah A. Swift, an Infant, Resp’t, v. The Staten Island Rapid Transit R. R. Co., App’lt.

      James C. Foley, for resp’t; Albert B. Boardman, for app’lt.
   ■Judgment affirmed, with costs, on prior decision of this court (123 N. Y., 646; 33 St. Rep., 604). All concur, Gray, J., not voting.

Affirming 44 St. Rep., 747.


text:
    John E. Burke, by Guardian, App’lt, v. The Thomson Meter Co , Resp’t.

      Alfred C. Coursen, for app’lt; Chas. J. Patterson, for resp’t.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 45 St. Rep., 272.


text:
    Julius Lehman, Rec’r, Resp’t, v. Geo. F. Bentley, App’lt.

      John P. Wickes, for resp’t; John B. Uhle, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 46 St. Rep., 249.


text:
    Lillie S. Taylor v. The Granite State Provident Ass’n.
   No papers.

Motion to dismiss denied, ten dollars costs.

See 47 St. Rep., 882.


text:
    Nellie C. Gibney, Adm’rx, Resp’t, v. The State, App’lt.
   No papers.

Motion to prefer granted, without costs.


text:
    Edward Dexter, App’lt, v. The Riverside & Oswego Mills, Resp’t.
   No papers.

Motion for reargument denied, ten dollars costs.

See 45 St. Rep., 982.


text:
    Eugene F. Lethbridge v. The Mayor, &c., of N. Y.
   No papers.

Motion for reargument denied, ten dollars costs.

See 44 St. Rep., 669.


text:
    Chas. H. Hartshorn, Resp’t, v. Ransom M. Chaddock, App’lt.

      Daniel L. Benton, for resp’t; De Merville Page, for app’lt.
   Motion for reargument denied, ten dollars costs.

See 47 St. Rep., ,838.


text:
    Filed October 28, 1892.
    James B. Avery, Adm’r, App’lt, v. Hannah Mabey et al., Resp’ts.

      J. H. Clute, for app’lt; James F. Tracey, for resp’ts.
   Judgment affirmed on opinion of general term, with costs. All concur, except Andrews, J., absent.

Affirming 42 St. Rep., 74.


text:
    Wesley Mandeville, Receiver, Resp’t, v. Edward H. Avery, Impl’d, App’lt.

      David Hays, for resp’t; J. C. Avery, for app’lt.
   Judgment affirmed, with costs, on opinions in 124 N. Y., 376; 36 St. Rep., 838. All concur, except Andrews, J., absent.

Affirming 44 St. Rep., 1.


text:
    Oliver M. Kemp, Ex’r, App’lt, v. The Good Templars Benefit Ass’n, Resp’t.

      Clarence A. Farnum, for app’lt; R. E. White, for resp’t.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 46 St. Rep., 429.


text:
    In the Matter of the Will of John Fricke, Deceased.

      Horace Graves, for app’lts; Willard Parker Butler and Charles B. Reid, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 47 St. Rep., 10.


text:
    Annie Barrett, by Guardian, Resp’t, v. George Waldo Smith et al., App’lts.

      James A. Seaman, for resp’t; Richard O'Gorman Jr., for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 922.


text:
    The People ex rel. Wm. K. Churchyard, Resp’t, v. The Board of Councilmen of City of Buffalo, App’lt. The People ex rel. Frank J. Illig, Resp’t, v. The Same, App’lt. Frank C. Laughlin. for resp’ts; Philip A. Laing, for app’lt.
   Orders affirmed, with costs, on opinion of Hatch, J., below. All concur.

Affirming 47 St Rep., 149.


text:
    Evelyn T. Provost, Resp’t, v. Wm. Y. Provost, App’lt.

      David Provost, for resp’t; George A. Stearns, for app’lt.
   Order affirmed, with, costs. All concur.

Affirming 46 St. Rep., 366.


text:
    John T. Underwood, Resp’t, v. Stephen T. Smith, App’lt.

      Charles Strauss, for resp’t; Philo Safford, for app’lt.
   Order affirmed, with costs, on opinion of Bookstaver, J., below. All concur.

Affirming 46 St. Rep., 654.


text:
    Supreme Court—General Term—Fifth Department.
    Filed October 21, 1892.
    Charles R. Maltby et al., Resp’ts, v. Amanda M. Pickett, Adm’rx of Benjamin Pickett, Dec’d, App’lt.
   Judgment of the county court of Steuben county appealed from affirmed,, with costs.


text:
    The Cleveland Seed Co., App’lt, v. Sarah A. Harris et al., Resp’ts.
   Judgment appealed from affirmed, with costs.


text:
    Rosabel Langworthy, Resp’t, v. The Village of Olean, App’lt.
   Judgment and order appealed from affirmed.


text:
    Frank Ellicott, Resp’t, v. Eva L. Ellicott, App’lt.
   Judgment appealed from affirmed.


text:
    In the Matter of the Judicial Settlement of the Accounts of Jane A. McDougall and Shirley E. Brown, Adm’rs of John McDougall, Dec’d, executor of the last will of Dan. E. Spooner, Dec’d.
   Decree of the surrogate of Steuben county appealed from affirmed, with costs to the respondent, Cornelia Spooner, payable out of the estate.


text:
    John Smith, Resp’t, v. Margaret Watson, App’lt.
   Judgment of the county court of Chautauqua county appealed from affirmed, with costs.


text:
    The Rochester Railway Company, App’lt, v. William Fuller, Resp’t.
   Order appealed from affirmed, with costs.


text:
    Otto Albrecht, Resp’t, v. The Rochester Railway Co., App’lt.
   Judgment and order of the county court of Monroe county appealed from, affirmed, with costs.


text:
    William Ziemendorf, Resp’t, v. The Town of Wheatfield, App’lt.
   Judgment and order appealed from affirmed.


text:
    Nehemiah Park, Resp’t, v. Lyman Ayrault, App’lt.
   Judgment appealed from affirmed.


text:
    Albert G. Smith v. Charles E. Mott.
   Motion for a new trial denied, with costs, and judgment ordered for the-plaintiff on the verdict.


text:
    Libbie M. Noble, App’lt, v. The Massachusetts Benefit Association, Resp’t.
   Order appealed from affirmed, with ten dollars costs and disbursements of this appeal.


text:
    John Byrne, in behalf of himself and others, Resp’t, v. Spencer S. Bullis, App’lt.
   Order appealed from affirmed, with ten dollars costs and disbursements of this appeal.


text:
    Betsey Whitman, Adm’rx, Resp’t, v. Matthew Foley et al., App’lts.
   Order appealed from, granting a new trial, affirmed, with costs.


text:
    Harvey Owen et al., App’lts, v. The Boston & Lockport Block Co, Resp’t.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Ernst Gunlach, Resp’t, v. Henry H. Turner et al., App’lts.
   Order appealed from affirmed, with costs and disbursements.


text:
    In the Matter of Proving the alleged Last Will and Testament of Peter Berst.
   Decree of the surrogate of Erie county appealed from affirmed, with costs to the respondents, payable by the appellant personally.


text:
    Richard Foran, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lts.
   Motion for a reargument denied.


text:
    John Robbach, App’lt, v. Lloyd W. Crossett, Resp’t.
   Motion for leave to appeal to the court of appeals denied.


text:
    Isaac Altman et al., Adm’rs, v. Gabriel Wile et al., App’lts.
   Motion by defendant, Eli Hofeller, to amend memorandum of decision granted. Motion by plaintiffs for reargument denied.


text:
    John H. Howe, Resp’t, v. Frederick A. Bell, Ex’r, et al., App’lts. Frederick A. Bell, Ex’r, et al., App’lts, v. John H. Howe, Resp’t.
   Motion in each case for a reargument denied.


text:
    John Hyatt, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.
   Motion to amend memorandum of decision and for leave to appeal to the court of appeals denied.


text:
    New York Common Pleas—General Term.
    Filed October 26, 1892.
    Leopold Manheimer, Resp’t, v. Moritz Loewenthal, App’lt.
   Appeal from judgment third district court.

Judgment reversed, new trial granted, costs to abide the event.


text:
    Philip Klein, Resp’t, v. Wm. G. Vernet, App’lt.
   Appeal from judgment of the tenth district court.

Judgment affirmed, with costs.


text:
    Genese Abrahamson, Resp’t, v. The Five Year Benefit Order, App’lt.
   Appeal from judgment fifth district court.

Judgment affirmed, with costs.


text:
    Jake Frank, App’lt, v. Bernard Mooney, Resp’t.
   Appeal from judgment seventh district court.

Judgment affirmed, with costs.


text:
    John F. Nelson, Resp’t, v. John V. Alexander, App’lt.
   Appeal from judgment third district court.

Judgment affirmed, with costs.


text:
    Filed October 27, 1892.
    John Stehn, Resp’t, v. Thos. Cunningham, App’lt.
   Appeal from judgment tenth district court.

Judgment affirmed, with costs.


text:
    Philip Reilly, Resp’t, v. Jacob Korn, App’lt.
   Appeal from judgment eleventh district court.

Judgment affirmed, with costs.


text:
    Joseph Hammitt, App’lt, v. John W. Moissin, Resp’t.
   Appeal from judgment of the second district court.

Judgment affirmed, with costs.


text:
    Wm. Maloney, Resp’t, v. Joseph J. Condon, App’It.
   Appeal from judgment of the second district court.

Judgment affirmed, with costs.


text:
    Filed November 7, 1892.
    Benjamin Shaw v. The Broadway & Seventh Ave. R. R. Co.
   Order affirmed on argument.


text:
    John O. Bache, App’lt, v. Patrick McCabe, Resp’t.
   Order reversed, with costs.


text:
    Samuel Haas et al., Resp’ts, v. Edwin Mathesen, App’lt.
   Appeal dismissed, with costs.


text:
    The People ex rel. Wm. E. McDonald v. Henry D. Purroy et al. The People ex rel. Peter F. McDermott v. Henry D. Purroy et al. The People ex rel. Wm. T. Cahill v. Henry D. Purroy et al.

   Writs of certiorari dismissed on consent.


text:
    Filed November 9, 1892 .
    The Eaves Costume Co., Resp’t, v. Thos. H. Pratt, App’lt.
   Order affirmed, with costs.


text:
    Filed November 10, 1892.
    Robert W. Gleason, Resp’t, v. Frederick Meyers, App’lt.
   Order reversed, with costs.


text:
    Robert W. Tailer, Resp’t, v. Charlotte R. Lee, App’lt,
   Order affirmed, with costs.


text:
    Grace Grauer, Resp’t, v. Frank Grauer, App’lt.
   Order reversed, with costs, and with leave to appellant to apply for restitution.


text:
    Filed November 11, 1892.
    Julius Lippman, Resp’t, v. Wm. A. Mathesius, App’lt.
   Order affirmed, with costs.


text:
    Thos. Rogan v. The Twenty-third St. R. R. Co.
   Exceptions overruled and judgment ordered for the plaintiff.


text:
    Filed November 14, 1892.
    Jacob Heintz, Resp’t, v. Jas. Everard, App’lt.
   Judgment affirmed.


text:
    Richard C. Layton, Resp’t, v. Patrick Brady, App’lt.
   Judgment affirmed, with costs.


text:
    Filed November 18, 1892.
    Samuel Pyne, Adm’r, Resp’t, v. The National Steamship Co., App’lt,
   Appeal dismissed, with costs.


text:
    Walter L. Hyde, Resp’t, v. Thos. S. Bullock, App’lt.
   Judgment affirmed, with costs.


text:
    New York Superior Court—General Term.
    Filed October 24, 1892.
    Worthington Co. v. Avery.
   Motion denied, without costs.


text:
    Frederick Seggerman et al. v. Napoleon Valentine et al.

   Motion denied, without costs.


author: Per Curiam.

text:
    Daniel J. Sprague, App’lt, v. The Bartholdi Hotel Co., Resp’t.
   Per Curiam.

The order appealed from should be affirmed, -with, ten dollars costs and disbursements.


author: McCarthy, J.

text:
    City Court of New York—General Term.
    Filed October 24, 1892.
    John D. Brassington, Resp’t, v. Frederick Rohrs, App’lt.
    Appeal from order striking out defense as sham.

      H. Wehle, for app’lt; C. J. Hardy, for resp’t.
   McCarthy, J.

This is an appeal from an order striking out the first defense in defendant’s answer as sham.

The second defense had already been demurred to, and the demurrer was sustained, thus leaving the first defense the only one in the action.

From an inspection of this defense, and the affidavits used on the motion by the plaintiff and unanswered by the defendant, it is clear that this defense is sham, and merely put in for the purpose of delay and not in good faith.

The order appealed from should be affirmed, with costs.

Ehrlich, Ch. J., and Van Wyck, J., concur.


text:
    Samuel H. Haase and Isidore Fried, Resp’ts, v. Edwin Matheson, App’lt.
    Appeal from order adjudging defendant in contempt.

      Brunnemer & Bennett, for app’lt; H. Fromme, for resp’t.
   McCarthy, J.

This is an appeal from order in supplementary proceedings adjudging the judgment debtor guilty of contempt.

The appellant contends that the order is conditional upon the production of one Butler for examination, and that the court cannot declare in advance, on mere suspicion, the judgment debtor to be guilty of contempt.

I have read the order complained of carefully, and cannot agree with the appellant in his construction of the same. On the contrary, the judge, in rendering his decision, declares, in effect, that from the facts presented the judgment debtor has disposed of the two hundred dollars ($200) as testified to by him since the service of the order, and that these moneys so disposed of were his personal property, and, therefore, was guilty of contempt.

And although he was already convinced of the foregoing, yet (and I presume on the suggestion of the attorney for the judgment debtor), he says: “ However, for the purpose of allowing him to show the latter statement is the true one (meaning that the property was not his), I will permit him to produce for examination Mr. Butler. If he fails to do so, the order made to punish him for contempt will be granted.”

It was an additional opportunity granted to the judgment debtor by the court to change, if he could, its opinion.

The order was within the sound discretion of the court, and was properly granted, and should be affirmed, with costs.

Ehrlich, Ch. J., and Van Wyck, J., concur.


author: Ehrlich, Ch. J.

text:
    Otto Kruger, Resp’t, v. Philip Braender, Impleaded, App’lt.
    Appeal from judgment rendered at equity trial term in favor of plaintiff.

      Eugene Otterbourg, for resp’t; Bartlett, Wilson & Hayden, for app’lt.
   Ehrlich, Ch. J.

The proofs clearly established a contract between the plaintiff and the defendant, Braender, the owner of the property, by the terms of which the plaintiffs did work aud furnished materials in completing the building on which the lien was filed. There was no dispute as to the amount of the claim, or the fact that all the proceedings necessary to acquire a lien had been taken-. The issue was, by consent, narrowed down to the inquiry whether there was a contract, by which the work and material were furnished on the credit of Braender, the owner.

The court below, on evidence entirely satisfactory, found that there was such a contract, and the usual judgment of foreclosure of the lien followed as of course.

We find no error in the rulings and the judgment appealed from must be affirmed, with costs.

Van Wyck and McCarthy, JJ., concur.


text:
    Henry Morganthau et al., App’lts, v. Elizabeth H. Walker, Resp’t.
    Appeal from judgment dismissing the plaintiffs’ complaint on the merits, entered on the report of Hon. Ernest Hall, referee.

      Lachman, Morganthau & Goldsmith, for app’lts; Alexander Thain, for resp’t.
   Ehrlich, Ch. J.

The judgment appealed from must he affirmed, with costs, on the opinion of the learned referee.

Van Wyck and McCarthy, JJ., concur.


text:
    Alfred Shrimpton’s Sons, Limited, Resp’t, v. Abraham J. Dworsky, App’lt.
    Appeal from judgment entered on verdict of a jury in favor of the plaintiff.

      Francis B. Chedsey, for app’lt; George C. Coffin, for resp’t.
   Ehrlich, Ch. J.

The trial judge intelligently submitted to the jury the question whether the goods delivered had been ordered by the defendant, and whether there was an acceptance of them sufficient to take the case out of the statute of frauds, and the jury found on both propositions in favor of the plaintiff.

The evidence sufficiently sustains the findings, and there being no merit in the exceptions, an affirmance, with costs, follows as of course.

Van Wyck, J., concurs.


text:
    Charles H. Maguire, Resp’t, v. Frederick C. Durant, App’lt.
    Appeal from judgment entered on a verdict of a jury in favor of plaintiff.

      C. J. Hardy, for app’lt; Ten Eyck, Wendell & C. H. Slair, for resp’t.
   Ehrlich, Ch. J.

The questions involved were purely those of fact which the jury, on satisfactory evidence, disposed of adversely to the defendant.

The bringing of the suit was a sufficient demand for the money claimed.

The price had been agreed upon, and it was the defendant’s duty to have found the plaintiff and tendered the specific sum due.

eIn this respect the case differs from Bunn v. Bett, 47 St. Rep., 77, which is.! therefore, inapplicable. ' |

No error was committed at the trial and the judgment appealed from must he affirmed, with costs.

Van Wyck and McCarthy, JJ., concur.


text:
    Rufus Small, Resp’t, v. George H. Bladworth and J. Dana Jones, App’lts.
    Appeal from judgment in favor of plaintiff.

      J. D. Jones, for app’lt; A. G. Vanderpoel, for resp’t.
   McCarthy, J.

This action is on a promissory note against the defendants as makers, and presents a simple question of fact.

It was fairly submitted to the jury and they found a verdict against the defendants.

If the defendants made the note, it is immaterial whether they made it as partners or were doing business in some other name.

Once shown that the note was made by them, they are liable.

The learned justice was, therefore, right in declining to charge as requested.

The judge committed no error and the judgment should be affirmed, with costs.

Van Wyck, J., concurs.


author: .McCarthy, J.

text:
    James D. Hallen, Resp’t, v. Wm. G. Jones et al., App’lts.
    Appeal from judgment in favor of plaintiff.

      J. E. Berry, for app’lts; J. D. Hallen, for resp’t.
   .McCarthy, J.

This is an action brought against the principal and sureties m an undertaking given on an order of arrest obtained in an action in the supreme court.

The following admissions explain the case.

It is admitted that an action was brought against the plaintiff in this action by William G. Jones, in the supreme court, and that an undertaking was given in that action to obtain an order of arrest, which undertaking was signed by Josephine S. Jones and Frederick W. Klein. And it is admitted that the undertaking bears date December 5, 1891, and was given in an action wherein William G. Jones was plaintiff and Henry Halsey and James D. Hallen were defendants.

It is further admitted that the defendants, Josephine S. Jones and Frederick W. Klein, were sureties in the action, and said Henry Halsey and James D. Hallen, the plaintiff, were arrested and held in bail.

It is further admitted that on the 18th day of May, 1892, on the application of the plaintiff, and the consent of Messrs. Cantor, Linson & Van Schaick, plaintiff’s attorneys in said suit, the order was vacated.

It is also admitted that the plaintiff in this action paid two hundred and fifty dollars (§250.00), counsel fees and in obtaining sureties to obtain his release from arrest.

I have examined all the cases referred to by the appellants’ counsel and do not find them bear out his contentions.

Ho error was committed by the trial justice and a verdict was properly directed for the plaintiff.

Judgment should be affirmed, with costs.

Van Wyck, J., concurs.


author: Putnam, J.

text:
    Abel A. Crosby et al., Survivors, Resp’ts, v. The President, Managers & Company of the Delaware & Hudson Canal Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Conversion—Evidence sufficient to submit to jury.
    In an action to recover damages for the conversion of a quantity of lumber, which plaintiffs claimed had been sold by defendant to G. & E., their assignors, it appeared that said firm having agreed to build two boats for defendant, ordered of it the lumber in suit, specifying the kinds and quantities, but no prices. The lumber was delivered, and shortly afterwards a bill was sent charging the lumber to the firm. Defendant was pot required by the agreement to furnish lumber nor the contractors to purchase any from it. There was evidence, that G. & E., prior to the transaction in question, paid cash for lumber and that the manager of defendant had said he would allow them credit for such lumber as they bought of it. Defendant proved that it was its custom to supply lumber only for use in its boats and to take the value out of the price of the boats. L., an employee of defendant, testified that he sent the bill only as a memorandum of the quantity of lumber and its value. Held, that there was sufficient evidence of a sale to submit the question to the jury.
    2. Chares—Refusal.
    In such case tifie court declined to charge "that if the jury find that the evidence given by L. . that the bill sent to G. & E.was sent only as a memorandum of the quantity and of the quality of the lumber and its value, is true, the bill is not an admission that the lumber was sold to G. & E.” Held, that the court properly refused to so charge.
    Appeal from a judgment in favor of plaintiffs on verdict of a jury, and from an order denying motion for a new trial on the judge’s minutes.
    Action to recover the value of certain lumber of which plaintiffs allege they were the absolute owners, and that defendant wrongfully took and converted to its own use.

      F. L. Westbrook, for app’lt; S. L. Stebbins, for resp’ts.
   Putnam, J.

The lumber to recover the value of which this action was brought, was originally owned by the defendant, and the burden was upon the plaintiffs on the trial to show a sale thereof from the defendant to the Harndens. The question to be determined is, was there sufficient evidence of such sale to submit the question to the jury, or, as the appellant insists, should the court below have granted defendant’s motion for a nonsuit ? The trial court held that to grant such a motion “ would be invading the prerogatives.of the jury.” A careful consideration of the evidence given upon the trial, and of the opinion delivered by the appellate court upon the former trial, has led me to believe that the disposition of the case made by the court below was correct. The case has been tried four times. On the second trial a non-suit was granted, and the judgment entered thereon being affirmed by the general term, an appeal was taken to the court of appeals. That court reversed the judgment and ordered a new trial, holding that the question of fact, as to whether the transaction between the defendant and the Harndens was a bailment or sale should have been submitted to the jury.

An examination of the opinion delivered by the court of appeals and the evidence contained in the case on the second and fourth trials shows that there was no substantial difference in the testimony given upon said trials except as below stated. On the last trial the witness Larter was allowed to testity as to Ms intent in sending the bill for the lumber to the Harndens, and evidence was given of the general custom of defendant in furnishing this particular kind of lumber to builders, which is claimed by appellant not to be in on the second trial. But on said last named trial Larter swore that he sent the bill “so as to give them information of what lumber had been sent.” Also “ such lumber as they ” (the Harndens) “ required for the purpose of building the boat, they furnished, and it was deducted from the price of the boat; that was the understanding between them ; I can’t say, to my own personal knowledge, there - was any special announcement any other than that had always been the custom with them, and with others; that had been the custom in dealing with the Harndens ; furnishing them lumber for the company’s boats and for no other purpose, and to deduct the cost of that lumber from the purchase price of the boat.” Again: “ The arrangement between the Canal Company and the Harndens * * * was the same as the company made with all the other builders; the company bought the lumber * * * for the purpose of building boats for themselves, and furnishing builders along the canal; * * * that had been done with the Harndens before the lumber in question was furnished, and the amount would be deducted from the contract price of the boat.” It will thus be seen that the custom of defendant prior to the transaction in question, both with the Harndens and others, was shown on the second trial. In the opinion of the court of appeals, it is said that “ the custom of the defendant to supply lumber only for use in its boats, and to take the value out of the price of the boats, does not seem necessarily inconsistent with a sale.” Thus the appellate court assumed that such a custom was proved on the trial. Therefore, in fact the only evidence given on the last trial, except'to amplify that produced on the second, was as to the intent of Larter, which was not fully shown upon the former trial. But Larter was an employee of the defendant, and his testimony as to his intent was to a certain extent contradictory to the bill sent by him to the Harndens, which bill, as held by the court of appeals, was evidence of the sale, though not conclusive. Hence the question of the credibility of Larter was for the jury. Kavanagh v. Wilson, 70 N. Y., 177; Elwood v. The Western Union Tel. Co., 45 id., 553-4 Koehler v. Adler, 78 id., 287.

Therefore, as the only substantial difierence between the evidence on the fourth trial from that produced on the second was made by the evidence of a witness whose credibility under the circumstances had to be submitted to the jury, the holding of the court below in reference to granting the motion for a non-suit, and denying the motion for a new trial, must be deemed sustained by the decision of the court of appeals in this case, as reported in 119 N. Y, 334; 29 St. Rep., 453.

It is suggested that in the opinion delivered by the court of appeals when this case was last before it, 128 N. Y, 641; 40 St. Rep., 85, this language is used: “ The clear preponderance of evidence is in favor of this contention ” (defendant’s claim that the transaction in question was a bailment or a conditional sale), “ but we should not feel at liberty to disturb the verdict upon this issue.” Again, the evidence scarcely leaves room to doubt that the defendant “ furnished and the Harndens received the lumber on the understanding that it was to be used only on the construction of the two boats.”

Under the circumstances it cannot be deemed that the learned judge who delivered the opinion of the court meant to imply that the general term could have properly reversed the judgment as not supported by the evidence, because, as stated by appellant’s counsel, on the third trial so reviewed by the court of appeals substantially the same testimony was given as on the second. Therefore, the court of appeals, having determined that on the former trial it was error not to submit to the jury the question whether the transaction was a bailment or a sale, cannot have intended to be understood that on substantially the same evidence the same question was not properly submitted to the jury'on the third trial.

As an original question I should be of the opinion that the disposition of the case made' by the court below was a proper one. .That whether the transaction between the defendant and the Harndens was a bailment or sale was on the evidence in the case a question of fact and, therefore, to be submitted to the jury.

The Harndens, in November, 1884, agreed to build two boats for defendant The contract did not oblige them to buy lumber of the latter. The title to the boats, if completed, would remain in the Harndens. The defendant was only obliged, under the contract, to take them on inspection and approval. Subsequent to the contract for making the boats the Harndens ordered the lumber in suit, which was sent, and shortly afterwards a bill charging the lumber to the Harndens as upon a sale. There was evidence that prior to this transaction the Harndens had paid cash for lumber obtained of. defendant, and that in a letter written to them by Coe S. Young, defendant’s manager, he had agreed to give them credit for such lumber as they bought of defendant.

It is claimed by defendant that the title to the lumber did not vest in the Harndens until they put the same in the boats, until that period their possession being that of a bailee. In other words, that the Harndens did not obtain title to the lumber until they used it on their own boats. While this claim may be correct, I think that the jury could, from the evidence in the case, have found that the effect of the transaction was a purchase on credit to be paid for by the boats when completed, approved and accepted.

Here was an order for goods, a delivery thereof pursuant to the order and a bill charging the goods to the Harndens as upon a sale. There was also evidence that the Harndens prior to the transaction in question paid cash for lumber, and that the general manager of the company had said he would allow them credit for such lumber as they bought of the company. There was evidence in the case indicating a sale. The custom of “defendant to supply lumber only for use in its boats and to take the value out of the price of the boats is not held by the appellate court necessarily inconsistent with the sale. I do not see, under the circumstances, how the case could properly be taken -from the jury.

It is urged that the trial court erred in declining to charge “that if the jury find that the evidence given by Larter, that the bill sent to the Harndens November 24, 1882, was sent only as a memorandum of the quantity and of the quality of the lumber and its value, is true, the bill is not an admission that the lumber was sold to the Harndens.” Larter, in fact, testified as follows: “I sent the Harndens the bill so that they might know the lumber had been shipped in the quantity and amount they were to account for in the spring when the boat was delivered, to be taken out of the contract price of the boat * * * I did not send

it with any other intent or purpose than that which I have stated.” The question is whether, assuming the evidence Úi&t'Larter did give was true, the court erred in refusing to charge that the 'bill was mot an admission that the lumber was sold to the Harndens. I think the request of the appellant was properly denied. Larter’s statement of his intent in sending the bill is not necessarily inconsistent "with the sale of the lumber. All he says was he sent the bill so that they might know the lumber had been shipped in the quantity and amount they were to account for when the boat was delivered, to be taken out of the contract price. If it was a sale he would have had the same intent. They were to account for the lumber and it was to be taken out of the price of the boats. The intent of the witness, as he states it, was consistent with the sale of the lumber on credit, to be paid for out of the contract price of the boats. It does not necessarily contradict the admission contained in the bill, and hence the court properly refused to charge as requested.

Some other rulings of the court were claimed to be erroneous. I do not think that the exceptions thereto require discussion or call for a reversal of the judgment.

The judgment should bo affirmnd. with costs.

Herrick. J., concurs: Mayham P. J., not acting.


text:
    The Howe’s Cave Association, App’lt, v. Peter Houck, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Lease—Construction.
    A ten years lease of land contained the provision that the lessor “ may at its option continue this lease for another term of ten years to the lessee, but if the lessor shall decline so to continue the lease, then it shall be held liable to pay the lessee the value of the buildings erected thereon/' The tenant built a store upon the lot and at its expiration the lease was extended “as provided herein.” The time of the extension about expiring, the tenant was about to remove the building, when the landlord brought an action to restrain such removal. Held, that such provision did not directly or indirectly effect a conveyance of the building to the.landlord, in case the lease was extended, and that the tenant was entitled to remove it.
    (Herrick, J., dissents.)
    Appeal from a judgment for defendant, rendered after a trial at the Schoharie circuit, by the court without a jury.
    Action to determine the ownership of certain buildings standing upon premises leased by plaintiff, and the right of possession of the same by the plaintiff after the expiration of the lease, and to perpetually restrain the defendant from removing the same from said premises.

      J. G. Runkle (William C. Lamont, of counsel), for app’lt; J. S. Pindar (G. M. Palmer, of counsel), for resp’t.
   Putnam, J.

The plaintiff on May 13, 1869, by written lease -demised to defendant’s assignor the lot described in the complaint for ten years, the lease containing the following clause, viz.:

“ It is also expressly stipulated and agreed between the parties hereto that the party of the first part or their assigns, may at their option, continue this lease for another term of ten years to the fi party of the second part, his heirs or assigns, but if the said party of the first part, or their assigns, shall decline to so continue the lease, then the said party of the first part, or their assigns, shall be held liable to pay the said party of the second part, his heirs, executors, administrators or assigns, the value of the buildings which shall be upon the premises at that time, which value shall be determined by competent mechanics, and such payment so made shall entitle the party of the first part, or their assigns, to said buildings forever.”

The lessee afterwards erected buildings on said premises for the purposes of trade. The lease contained no covenant obliging him so to do. At the end of the ten years the lease was extended by a writing endorsed thereon, signed by the plaintiff and defendant’s assignor, as follows, viz.:

“It is hereby mutually agreed, in consideration within mentioned, to extend the time of this lease ten years in addition, as provided herein.

“ Dated May 1, 1879.

“ The Howe’s Cave Association.

“ J. H. Ramsey, President.

“ J. F. Tan Wagenen.”

The ten years for which said lease was extended being about to-expire, and defendant, the assignee of Van Wagenen, the lessee, being about to remove the buildings which were so erected on the premises, this action was commenced to restrain such removal.

Ordinarily a building erected by a tenant on demised premises for the purpose of trade may be removed by him at the expiration of his term. Ombony v. Jones, 19 N. Y., 234; Holmes v. Tremper, 20 Johns., 29; Mott v. Palmer, 1 N. Y., 570.

The lease in question was given for ten years, and then by the consent of the lessor and lessee extended for a further term of ten years. The rights of the parties, therefore, are the same as if the instrument had been originally drawn for twenty years, and no question would arise as to the right of the defendant, as assignee, to remove the store erected on the premises were it not for the clause in the lease above set out, whereby plaintiff covenants at the end of the first ten years to pay for the buildings or extend the lease.

But the covenant in question is one merely obliging the lessor to extend the lease ten years or buy the buildings placed on the premises by the lessee. It does not directly or impliedly effect a conveyance of such erections from the tenant tc the landlord in case the lease is extended. It provides that the payment by the lessor to the lessee of the value of the buildings shall transfer the title thereto to the plaintiff. If the intent of the parties had been as claimed by appellant, the lease would have provided that “such payment so mad of or extension of the lease, 'shall entitle the party of the first part to the buildings. In the absence of such a provision, I am unable to see,how the clause above quoted can be construed to have the effect of transferring the buildings in question to the plaintiff

The lease provided for a renewal, but in the event of the landlord declining to renew it is obliged to buy the building, and the instrument provided that its payment therefor shall entitle it to the building. Hot the payment or extension of the lease. I think in the absence of a provision in the instrument providing that an extension of the lease shall transfer the building to the plaintiff, such building being erected for the purposes of trade, the ownership remained in the lessee.

This case differs from those, some of which are cited by appellant, where the tenant in the lease and in consideration thereof covenants to erect buildings on the premises, by the terms of the lease is compelled to do so. In such a case the buildings so erected have been held to belong to the landlord. - The building, where such an agreement is contained in the lease may be deemed (so to speak) as an additional rent, and hence the property of the lessor. I have examined the authorities cited by the plaintiff, but I do not think that they are applicable to this case or require discussion.

The disposition of the question under consideration depends on the construction given to the clause of the lease above quoted, in the absence of which defendant’s right to the store in question is clear. I am unable to construe that clause, the lease having been renewed, as conveying or showing an intent to convey title to plaintiff.

I think the judgment should be affirmed, with costs.

Math am, P. J., concurs ; Herrick, J., dissents.


text:
    Charles R. Knowles, Resp’t, v. The American Insurance Company of Boston, Mass., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Insurance (fibe)—Construction of policy—Divisibility.
    A policy of fire insurance contained the provision that “This entire policy shall be void if the subject of the insurance be personal property and be or become incumbered by a chattel mortgage.” The policy of §2,000 was issued upon hops of the crops of 1889 and 1890, and specified, $1,200 on the former and §800 on the latter, and both were destroyed by fire. On the trial of an, action to recover on the policy it appeared that there was a chattel mortgage upon the crop of 1889, and the court held that the policy was void as to those hops, but that the claims were severable and plaintiff could recover for the later crop. Held, that the ruling was correct, the above quoted provision meaning that the entire policy should be void as to the property incumbered by the mortgage.
    8. Same—Provision against double insubance—Violation of.
    _ A provision in a fire insurance policy against a double insurance is not violated by a prior policy known to both parties and which it was understood was to be cancelled, and which was cancelled about the time of the issuing of the second policy.
    8. Same.
    In such case it is not necessary that the consent to the prior insurance be endorsed upon the second policy.
    Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, rendered at the Albany circuit, and from an order denying a motion for a new trial.
    Action to recover upon two policies of fire insurance, covering hop house and hops, which were totally destroyed by fire, the policies having been theretofore assigned to plaintiff.

      Jacob L. Ten Eyck, for app’lt; S. S. Hatt, for resp’t.
   Putnam, J.

This action is brought upon two policies of insurance issued by defendant to plaintiff’s assignor. The first, dated December 2, 1890, for $700, upon a hop-house; the second, dated March 5, 1891, insuring the hops in said house, viz., $1,200 on the stock of hops grown in 1889, and $800 on the stock of hops grown in 1890.

The whole property was destroyed by fire on March 16, 1891.

On the trial it appeared that there was a chattel mortgage upon the crop of 1889, and the court below held that by the terms of the policy under which plaintiff claimed it became void as to those hops in consequence of such mortgage; and he withdrew that portion of plaintiff’s claim from the jury. But he held, there being a separate insurance of $800 upon the crop of 1890, and-the mortgage being only upon the crop of 1889, that the claims under the policy were severable and that plaintiff could recover for the later crop.

There was evidence from which the jury could find that the value of the building insured in the first policy was $700, and that the crop of 1890 were worth $400 aud upwards. The jury found for the plaintiff $1,158.25.

Various questions of fact were raised upon the trial; for instance, as to the claim of defendant that the insured set fire to the building m question; that he swore falsely on his examination and in his proofs of lossc; that he concealed the facts of the first, insurance and.the chattel mortgage. I do not think it necessary to consider these matters. They moved on questions properly submitted to the jury, and the testimony tending to establish the claim of plaintiff was not so preponderating upon the trial that we could properly set aside the verdict as contrary to the evidence. The court, in his charge to the jury, stated that defendant had waived the defense as to the real estate mortgage, and withdrew that defense from the jury, to which ruling by the court no exception was taken. The court also held that there was no-evidence on which defendant could go to the jury on a claim of false swearing in the proof of loss, to which holding also defendant took no exception.

Therefore, there are, only two questions I deem necessary to discuss, viz.: Was the policy issued upon the hop-house avoided because of the previous policy thereon issued by the New Scotland Mutual Insurance Company ? And, second, the policy on the persona] property being void as to the hops of 1889, could a recovery be had for a loss on the crop of 1890 ?

As to the latter question, I reach the conclusion with some hesitation that the view taken by the trial judge was correct. The hops were kept separate, and in the policy were separately insured. I see no reason why a mortgage on crops of 1889r in violation of the terms of the policy, should avoid it, as to the separate insurance of the crop of 1890. It is true the terms of defendant’s policy differ -somewhat from cases below cited in the use of th,e word “ entire.” The. policy in question is as follows r “ This entire policy * * * shall be void * * " * if the subject of the insurance be personal property, and be or become incumbered by a chattel mortgage. It is not clear that the word “entire” changes the meaning of the clause above quoted from what it would be without that word. But I think that the above quoted provision should be construed to mean in such a case as this that the entire policy shall be void as to the property incumbered by the mortgage.

Here, in one policy, is an insurance of $1,200 on the hops of 1889, which were subject to the chattel mortgage, and in the same policy a separate insurance of $800 on the hops of 1890, not incumbered ; the two classes of bops being kept separate.

The instrument says the entire policy shall be void if the subject of insurance be personal property, and incumbered. It will Toe observed it does not say if the property, _ or any part of rL be incumbered. The clause avoiding the policy if the property insured is incumbered should not be held to apply to a separate class of property separately insured in the policy, and unincumbered, any more than if such separately insured and unincumbered property was so insured by a separate policy. The authorities in this state support the conclusion of the trial justice, that although the policy in question became void as to the hops of 1889 because i of the mortgage, the plaintiff could recover for the crop of 1890. Merrill v. The Agricultural Fire Ins. Co., .73 N. Y., 452; Schuster v. The Dutchess Co. Ins. Co., 102 id., 260; 1 St. Rep., 415 ; Pratt v. The Dwelling House Mut. Fire Ins. Co., 130 N. Y, 206-221; 41 St. Rep, 303.

In Smith v. The Agricultural Fire Ins. Co., 118 N. Y, 523 ; 29 St. Rep, 810, cited by appellant, the policy was a peculiar one. It provided that if either-the real or personal property insured, or any part of it, be incumbered, the entire policy, and every part of it, shall be void. If the policy in this case had provided that the entire policy should be void if the property insured or any part of it become incumbered, the case would be different.

The appellant insists that the court below should have dismissed the complaint on account of the prior insurance on the property. This insurance did not cover the crop of 1890, and as no recovery was had for the crop raised in 1889, it is only necessary to consider this question as to the policy upon the hop-house.

There was evidence in the case which the judge below in a fair charge submitted to the jury, to the effect that when the policy in question was issued the agent of defendant was told of the prior insurance and knew of its existence and that he directed Schermerhorn to have the same cancelled, and the latter within a few days directed the agent of the Mew Scotland Company to cancel said policy as to the hop-house and hops, and that said agent did thereupon cancel said policy by noting the fact of the cancelment on the application and on the bond, and making the necessary changes in the books of the company. Assuming this evidence true (and we may assume the jury so found) it effected a cancelment of the policy as to the hop-house and hops, as held by the trial court See Crown Point Iron Co. v. Ætna Ins. Co., 127 N. Y, 608 ; 40 St. Rep, 426.

I think the company could cancel the policy without the consent of the mortgagee, Knowles, at least as to the hops of 1890, and the hop-house, in which property it is conceded that Knowles, as mortgagee, had no interest

We are referred by the respondent to the case of Continental Insurance Co. v. Horton, 28 Mich, 174, as determining that a provision in a policy against a double insurance is not violated by a prior policy, known to both parties,' and which it was understood was to be cancelled, and which was cancelled about the time of the issuing of the policy in suit In my judgment the doctrine laid down in that case should be followed.

The jury in this case, on the question of fact submitted to them, could have very well found with the defendant But assuming "that the plaintiff’s statement was true, that he told defendant’s agent of the prior policy, that it was agreed that such policy should be cancelled, and that within a few days it was so can-celled according to agreement, it is not reasonable that the fact of the existence of the Mew Scotland policy for a few days only after the issuing of the policy in suit should defeat plaintiff’s recovery.

The general rule, as claimed by appellant, that where the powers of the agent of an insurance company are restricted by the terms of the policy, the insured is bound to take notice of such restrifetion and the, agent cannot, in violation thereof, waive-a condition of the policy, is well settled. Quinlan v. The Providence Washington Ins. Co., 133 N. Y., 356; 45 St. Rep., 200.

But this principle is often held not to apply as to facts existing contrary to the conditions of the policy 'when it was issued to the knowledge of the insurance company’s agent. In such a case it. is presumed that the consent of the company to the existence of such a state of facts was omitted by mistake to be stated in the policy, and the company is estopped from setting up such a defense. Short v. Home Ins. Co., 90 N. Y., 16; Van Schoick v, Niagara F. Ins. Co., 68 id., 434; Woodruff v. Imperial F. Ins. Co., 83 id., 134; McNierney v. Agricultural F. Ins. Co., 48 Hun,. 243; 16 St. Rep., 559 ; Walsh v. Hartford Ins. Co., 73 N. Y., 11 ; Kenyon v. K. T. & M. M. A. Ass’n, 122 id., 257; 33 St. Rep., 467.

I think, under the circumstances, plaintiff's policy was not avoided by the failure to endorse upon it the consent of defendant to the prior insurance; and the insured having carried out the agreement to procure a cancellation of the prior policy, the fact, of the existence of such last named policy does not,constitute a defense to the.action.

Other exceptions than those considered were taken at the trial by the defendant I have examined them, but do not think they require discussion or should lead to a reversal of the judgment.

The judgment should be affirmed, ydth costs.

Mayham, P. J., and Herrick, J., concur.


text:
    John Redmond, Resp’t, v. Peter H. Buckley, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Bill oe pabticulabs—Negligence.
    In an action to recover for personal injuries, the complaint alleged that plaintiff, while in defendant’s employ, was struck by a derrick used by defendant, which was untied without notice to plaintiff and allowed to swing-against him, fracturing one leg; that such accident was the result of the incompetency Of defendant’s employees, whom he negligently permitted to manage said derrick. Defendant moved for a bill of particulars, to* contain the names of the employees alleged incompetent, wheréin they-were incompetent, wherein defendant was negligent in employing them, and wherein such alleged incompetency contributed to the injury, and also of the extent of the injury. An order was granted requiring plaintiff to serve a bill of particulars specifying by what derrick he was injured, but in other respects denying the mdtion. Held, no error; that the allegations in the complaint, after service of the bill of-particulars as to which, derrick injured him, were sufficiently definite and certain to apprise defendant of the facts claimed, and that1 justice does not demand any further or more definite information.
    ■ Appeal from order of special term denying, in part, defendant’s motion for a bill of particulars.

      Edward W. Douglas (Matthew Hale, of counsel), for app’lt ; James C. Matthews, for resp’t.
   Putnam, J.

This is an appeal from an order denying (in part) ,a motion made by defendant for a bill of particulars. • I agree with the contention of counsel for appellant that a bill of particulars, when asked for, should be granted in any action, where justice demands that the moving party should be apprised of the matter he is required to answer with greater particularity than is required by the rules of pleading.

It has been determined, however, that it is not the office of a bill of particulars to disclose the evidence relied on by a plaintiff to establish the allegations of his complaint Ball v. The Evening Post Publishing Co., 38 Hun, 11.

The question for consideration is, did the special term properly exercise the discretion vested in it, in refusing (in part) to grant the defendant’s motion? In other words, did justice require that defendant should have any further particulars than are given by the order appealed from ?

First. The pleading sufficiently describes the injury plaintiff received. One leg was fractured and he was bruised about the legs and body, and in consequence of his injuries was confined to his bed about six weeks, unable to work, and is still lame and suffers, and has suffered great pain.

¡Second The complaint definitely states the cause of the injury. Defendant’s derrick was left untied, without giving plaintiff notice, and was allowed to swing against him with such force as to throw him about eighteen feet. Thus, the negligence alleged on the part of the defendant as producing the injury is the leaving of the derrick untied and allowing it to swing against plaintiff.

Third. The bill of particulars served in pursuance of the order appealed from shows which derrick it was that caused the injury, the complaint alleging that the accident was towing to the iucompetency of the men in charge of that derrick. It is not necessary for the plaintiff to give the names of the men thus in charge of •said machine. • The derrick beingc named, the defendant must know, or has the means of ascertaining the names of his employees in charge of such derrick whom plaintiff claims, were so incompetent. A bill of particulars will not be granted of facts presumably within the knowledge of the moving party, or which he has the means of ascertaining. Fink v. Jetter, 38 Hun, 163.

Thus in the above regards the defendant requires no further particulars. ,

Fourth. I am - of the opinion that the allegation in the complaint that the accident was caused by the incompetency or unskillfulness of defendant’s servants in charge of the derrick, to the knowledge of defendant, is, sufficiently■ definite and certain in that respect, and that plaintiff should not be called on to give further particulars.

To compel plaintiff to state in what regard defendant’s servants who caused the injury are incompetent would require him to give the evidence by which he expects to prove their incom■petency and unskillfulness.

On the trial plaintiff may be able to show that the men in '■¡charge of the derrick in question were ignorant as to the manner of using one, incompetent persons, unfit to take charge of such a machine, and that such facts were known to defendant. Possibly plaintiff can show that the men had been in charge of the derrick some time; that they had proved careless, reckless and ignorant; that other accidents had occurred ; that defendant had seen the manner in which they discharged their work. It is-difficult to see how any particulars could be given as to such incompetency or unskillfulness of the men, as alleged in the complaint, unless the evidencehshould be stated. I think the statement in the complaint sufficient -to apprise defendant of the facts-claimed by plaintiff, and that justice does not demand any further or more definite information as to the cause of action.

My attention has been called to the case of Donohue, adnmr, v. Meares et al., recently decided by the general term of the first district, 47 St. Rep., 188, the doctrine laid down in which I think substantially sustains the views above advanced.

The order should be affirmed, with costs.

Mayham, P. J., concurs; Herrick, J., not acting.


author: Patterson, J.

text:
    John H. Platt, Resp’t, v. John P. Kohler, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    Beokebs—Commissions.
    Defendant placed his property in the hands of plaintiff, a real estate-broker, to exchange on certain terms. A customer drew up and signed a contract expressing other terms upon which he would exchange for defendant’s property. The defendant objected to the terms but signed the contract upon the express understanding that it was not to be considered binding or delivered until his attorney could examine it, and subsequently refused to be bound by it and the negotiations ended. Held, that no customer having been found for the property at the authorized terms, the plaintiff could not recover commissions.
    Appeal from judgment in favor of plaintiff entered upon report of referee.

      C. D. Van Name, for app’lt; Samuel A. Noyes, for resp’t.
   Patterson, J.

The plaintiff sued to recover compensation for services alleged to have been rendered by him as a broker in negotiating an exchange of property situated on Staten Island, and belonging to the plaintiff, for real estate in the- city of Hew York,, owned by one Morganthaler. The allegations of employment of the plaintiff by the defendant, of the rendition of service, and-agreement to pay therefor, are denied by the answer.

The cause was referred; the referee reported in favor of the-plaintiff; and from the judgment, entered on the report the defendant appeals. The employment was fully proven, as was also-the amount of compensation to be paid the plaintiff if he performed the service for which he was so employed ; but the evidence does not show that the plaintiff has earned his commission,, and does not justify the referee’s findings in that regard. In the-, transaction of the proposed exchange the plaintiff dealt with Messrs. Hoyt, the brokers of Morganthaler. The basis of the dealing was that the defendant should, in addition to conveying his Staten Island property, pay $1,750 in money, and take a house on Lenox avenue, subject to a mortgage of $13,000. John 0. Hoyt testified that the plaintiff and defendant came together to his office in the early part of July, 1891, and the plaintiff spoke of having, as broker, a-place of the defendant on Staten Island, to which Hoyt replied he had a house on Lenox avenue he would trade. He states that afterwards his principal (Morganthaler) agreed to accept $1,750 as the cash consideration to be paid, and. on the 21st July the consent of the defendant to that was given, the latter stating he would give that amount in money and .the Staten Island property, and take the Lenox avenue house with the mortgage on it. Thus far the parties were in accord, and it is clear no other terms were ever contemplated by the defendant. The disagreement or misunderstanding results from what followed. Hoyt drew a written contract Containing other terms than those mentioned. Morganthaler signed it. On the 22d July Kohler and. the plaintiff called at Hoyt’s office. Conversation was had respecting the contract. It was then signed by Kohler, but on the express understanding that it was not to be considered as binding the defendant, nor as a delivered instrument, until Mr. Van Hame, the defendant’s attorney, could examine it the following day. The plaintiff, as well as Hoyt, testifies substantially to that. It is also testified to that the defendant criticized the contract as drawn, but limited his declared objection to the shortness of time allowed for the completion of the transaction. It is also true that the defendant signed a letter, Exhibit Ho. 2, in which he states that the terms of the trade are correctly set forth in the contract; but we are convinced that he is right in further stating that he did not observe that he was required by that contract to pay $3,250 instead of $1,750, and it is fully admitted by Hoyt that the contract was incorrectly drawn, for he says that he subsequently offered to have the $500 applied on account of the $1,750. The defendant is not bound by that letter, and to the plaintiff’s own knowledge the contract was not to be operative until "Van Hame examined and approved it. When it was discovered by the defendant’s attorney that the contract contained different and more onerous terms than those verbally agreed upon, the defendant had the right to refuse to be bound by it, and he did so. So far as now appears the negotiations of the plaintiff with Morganthaler virtually terminated at that point, and as no enforceable agreement was ever made between Morganthaler and the defendant, and the latter was not at fault, the plaintiff is not entitled to commissions. The brokers and the defendant had verbally agreed, but Morganthaler had not become bound. The plaintiff’s right to payment depended upon his procuring a person ready and willing to contract in such a way as to be legally- bound to perform. His service was incomplete until that was done, nothing was accomplished of any benefit to the defendant, who could not compel Morganthaler to perform, nor recover damages for nonperformance, and nothing of subsequent occurrence changed the relations between the parties. On the facts and circumstances disclosed by the proof, the referee erred in the conclusion at which he arrived. The case differs essentially from Barnard v. Monnot, 3 Keyes, 203, and like cases, cited by the referee to sustain his decision. Where a principal refuses to carry out a transaction made by his broker on terms duly authorized, the broker may recover, for he is not to be deprived of his compensation because the principal retreats or changes his mind. The broker has then 'done all he can; but where the principal stands ready to perform, to enter into a contract on conditions he has authorized, andxjfie party produced by the broker refuses to conform thereto by entering into a binding obligation, the broker has failed to effect the purpose of his employment. He'has not found a person ready and willing to take on the agreed terms, and his principal is not liable for commissions. The judgment must be reversed, and a new trial ordered before another referee to be appointed by this court, with costs to the appellant to abide the event.

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


author: Gray, J.

text:
    Augustus F. Holly, Executor, App’lt, v. Kaufman Hirsch, Resp’t.

      (Court of Appeals,

      Filed November 29, 1892.)

    1. Vendos and pubchaseb—Title.
    One Brett contracted to sell lands to Pinkney, and after‘the latter had paid part of the purchase price the former died without conveying, leaving • a will by which he gave his daughters, as executors, a power of sale. He devised all his real estate, some in fee and some in trust. They executed a deed to Pinkney and he paid the balance of the purchase money, and a mesne grantee of Pinkney sold the premises at auction to defendant, who refuses to take on the ground that the feé was in the devisees of Brett and not in his executors. Held, that the power conferred upon Brett’s executors being in trust to effectuate the testamentary purpose of a division and partition of testator’s property, gave them capacity to convey a perfect legal title to real estate, irrespective of the fact that testator may have agreed for its sale to another.and thus changed -his estate therein by contract. (Boome v. Phillips, 27 IT. Y., 357, distinguished.)
    2. Same—Reasonable doubt.
    Where a real, estate transaction is one between parties, the question is simply whether the legal title to the land, notwithstanding the objections made, is good in the vendor and will pass by his conveyance to the purchaser. It is only where it comes through a judicial sale that the court will exercise its discretion in favor of a purchaser and relieve him, when there are questions which might reasonably be raised affecting the title.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term dismissing the complaint. ,
    Action to enforce the specific performance by the defendant of his agreement to purchase certain real estate, situated in Hew York city.
    The property was sold by the plaintiff at public auction and struck off to defendant on his bid; but he refused to complete his purchase, upon the ground that a conveyance by the plaintiff would not pass the legal title.

      In 1879, Martin W. Brett was the owner of the premises in question, and entered into a contract with one Pinkney for their sale to him. Subsequently, and before the date fixed for the delivery of a deed to Pinkney, according to the contract, Brett died, leaving a will, made at a time prior to the making of the contract. In and by the will he appointed two daughters executrices, and gave and devised 'to them all his real and personal property, in trust, to apply the same to certain uses specified, namely, “to collect and receive the rents, issues and profits thereof, and to sell and convey, or otherwise dispose of the said property, or any part thereof, which they * * * are hereby empowered to do at public or private sale, at such tinge or times, and on such terms and conditions, as they * * * shall deem most for the benefit of , my estate, and to execute and deliver to the purchaser or purchasers good and sufficient conveyances for the same, and to receive the proceeds thereof, and to invest the same * * * and to apply the said estate and property and the rents, issues and profits thereof, together with the proceeds of any part or portions sold by them, * * - * according to the provisions of this my last will and testament hereinafter contained.”
    The testator then proceeded to give to each of his daughters, his executrices, two equal seventh parts of his estate, in fee, and the remaining three seventh parts his executrices were to hold upon trusts; one part for a daughter, one part for the children of a deceased daughter, and one part for the widow and children of a deceased son. Brett’s executrices executed to Pinkney a deed of the property, and received from him the balance of the .purchase moneys due under his contract with tlieir testator. Pinkney subsequently conveyed to Dempsey, and Dempsey conveyed to plaintiff’s testator.
    It is conceded that the only objection to the title consists in the inadequacy of the deed of Brett’s executors to vest the legal title to the land in Pinkney, and it is upon that ground that the plaintiff’s testator is deemed not to have acquired a good title, which his executor might convey to the defendant.
    At the special and general terms judgment went for the defendant, upon the authority of the case of Roome v. Phillips, 27 N. Y., 357, and the plaintiff has appealed to this court.

      S. P. Nash, for app’lt; Sam’l Biker, for resp’t.

       Reversing 43 St. Rep., 441.

   Gray, J.

It is quite evident that the learned justices, who have passed upon this case, felt constrained in the exercise of their judgment by the observations of Judge Denio in the early case in this court of Roome v. Phillips, 27 N. Y., 357. I think, however, that a distinction exists between that case and the present one, which is both apparent and substantial. In Boome v. Phillips, the vendor died, leaving a will which simply directed his executors to sell his real estate, and the money so to be realized he bequeathed to a mother and an aunt. There was no devise of the realty to, nor any attempt to create an interest in it in any person, and every interest of testator descended to his heirs at law, liable only to be divested by the execution at any time of the power of sale at the hands of the executor. An administrator with the will annexed executed a deed of the land contracted to be sold by testator, claiming the right under the power of sale in the will, and then brought the action to compel the purchaser to perform and to accept the deed; and whether the administrator was clothed with the testamentary power was the question directly .before tbe court. But Judge Denio, after disposing of the points which the appeal book brought up, proceeded to discuss the question whether, as the vendor had died pending the contract of sale of the land, the power of §ale in his will was applicable and conferred capacity upon the donee of the power to convey the legal title to the purchaser. Judge Denio considered that the power of sale was inapplicable, and that the legal title should be conveyed under a deed from the heir, to whom the land had descended, in which the administrator should join. Conceding to the opinion of the court in that case all the weight proper for it to have, I think we should limit its operation to the precise state of facts which called for its expression., In that case, as in that of Lewis v. Smith, 9 N. Y., 502, another case to which reference has been made, there was but the mere naked power of sale in the executors. They were given no right to, or any interest in, the testator’s estate.

The plan of this will, upon a careful consideration of its provisions, becomes clear, and the difficulty is rather in the inartificial manner in which it is written out. Briefly resumed; the testator first gives all of -his property to liis- executors upon a trust to receive the rents, issues and profits thereof; to sell, convey, or otherwise dispose of it as they may deem best, and “ finally, to apply the said estate * * * together with the proceeds of any part or portions sold * * * according to the provisions of this will, etc.” Then follows a clause giving to two daughters his household furniture, a clause giving to the same twb daughters, who were also his executrices, “ each two-seventh parts of all my said estate and property, to have, etc., forever,” and then clauses wherein he “ gives, devises and bequeaths unto his said executrices ” equal seventh parts of his estate, as trustees for persons named, etc.

Now I think it questionable whether the first provision of this will operated to create a valid trust under § 55 of the article on uses and trusts. . A devise in trust to receive rents, issues and profits, where there fs no direction to apply to the use of any person for any period, and a power to-sell property, which is not authorized fop the benefit of creditors, or of legatees, or to satisfy a charge upon the same, cannot be deemed to be among the express trusts enumerated in the section. Downing v. Marshall, 23.N. Y., 366, 377; Cooke v. Platt. 98 id., 36; Henderson v. Henderson, 113 id., 1; 21 St. Rep., 800. But I do not consider it essential that there should have been a valid express trust created by this first provision of testator’s will. If the trust created is not' for purposes enumerated in the section on express trusts, it'will be valid as a power in trust; for it authorizes the performance of acts which may be lawfully performed under a power. Those acts comprehend a management of the estate, the collection of revenues, a sale of all, or of portions of it, and a division into seven parts for distribution. The will provides what shall be the distribution of the parts and makes, in certain instances, absolute gifts; or, in others, valid express trusts.

The cardinal rule in the construction of wills that the intention of the testator shall prevail applies when the construction relates to the powers conferred upon executors. The design of the testator is to be regarded, and a substantial execution of the power allowed. 3 Johns. Oh., 1; 7 id., 32. I regard the intention, of Brett, as deduced from his will, to authorize his executors to take his whole property into their custody and management for the purpose of partitioning into the parts which he gives to the members of his family. The possession of the legal title, however convenient, was not necessary to the end in view. A power was adequate for the accomplishment of all that was designed. As a power in trust,, then, was the scope of its operation limited, for the purposes of a conveyance of a legal title to lands, to such lands as remained absolutely the testator’s at the time of his death; that is to say, as to which lie continued, to hold every legal and equitable interest; or does its scope comprehend a disposition of every interest which the testator might have retained and made if living ? An argument is made in that respect upon the basis of Judge Denio’s remarks in Roome v. Phillips, but their effect will not be extended to a case where the facts are not the same, and I think we are bound to hold that here the trust, operative as a power, subjected every possible legal interest which remained in the testator and descended to his heirs at law or devisees to its operation and execution. Doubtless it is well settled that the effect of a contract for the sale and purchase of lands is to make of the vendor a trustee for the purchaser, and the purchaser becomes a trustee of the purchase money, or the unpaid portion o£ it, for the vendor. That arises from the ^operation of a purely equitable principle which contemplates things" agreed to be done as actually performed. But until the delivery of the deed to the purchaser the legal title to the land has not passed. The beneficial or equitable ^ interest is in the vendee by virtue of the agreement of sale, but the legal title is still outstanding. The interest of the vendee is treated as real estate and that of the vendor as personal property. 1 Sugden Vendors (8th ed.), 270, 273; 3 Johns. Ch., 312, 316 ; 6 id., 402, 405.

I do not perceive, however, that the operation of the equitable principle affects the question of the capacity of Brett’s executors to act under the trust,power by conveying the legal title to the lands to their testator’s vendee,, Section 59, of the article on uses and trusts, provides that when the trust is valid as a power the lands shall descend to the persons entitled, subject to the execu-r tian of the trust. To give effect to this section we should hold it equally as operative upon the legal title which has descended to heirs or devisees as where- they have become vested with both the legal and the equitable title. The executors of Brett had an interest in the execution of the power; for they were not only to sell, but they were to arrange for a division of testator’s property into parts; applying it and its revenues and profits to testamentary objects ; in which they were concerned as trustees for others as well as in their individual capacities.

Judge Kent, in Bergen v. Bennett, 1 Caine’s Cases in Error, 1-15, speaking of a power coupled with, an interest, remarked that “it is the possession of the legal estate, or a right in the subject over which the power is to be exercised, that makes the interest in question.”

Brett’s executors did not take any legal estate under this preliminary devise in trust to them of all of testator’s property ; but the trust, being an active one and enforceable as a power in trust, comprehended and subjected to its execution every disposable or realizable interest in the testator’s estate. The power in trust had all the character of a trust and being designed for the purpose of effectuating a trust, it was imperative. 2 Sugden Powers, *158; 1 Perry Trusts, 248. Its execution through th’e executors’ deed toPinkney, whereby the balance of the purchase moneys for the land was obtained for the benefit and application of the estate, was as important a part of the trust confided to them as though the execution related to unsold lands "of testator. That the legal and equitable estate had become separated in vendor and purchaser was a matter which affected the nature of the property, and not the trust in the executors or their power to effectively convey whatever legal estate remained in the testator’s devisees. I think it must be apparent that the power of Brett's executors, in the present case, was essentially other than the power given in Roome v. Phillips, where it was quite unconnected with any interest or trust in the executor.

It "is conceivable that a naked power of sale, where the donee .has no interest in its execution, might be deemed applicable only to real estate not previously disposed of under the testator’s agreement. But the difference is wide between such a case and the present, where the power is one in the execution of which the executors had an interest; as being vested, in part, with the legal title to the testator’s prQperty as trustee's of express trusts, and as being individually "vested with the title to undivided shares. Either way, they had an interest in the execution of this power to manage and to sell for purposes of partition according to the directions of the will.

The conclusion I have reached is that Judge Denio’s opinion p in Roome v. Phillips does not control the disposition of this case, and that the power conferred upon Brett’s executors, being in trust to effectuate the testamentary purpose of a division and partition of the testator’s whole property, gave them capacity to ponvey a perfect legal title to real estate; irrespective of the fact . that testator may have agreed for its sale to another, and had thus changed in equity the character of his estate therein by the con- • tract.

It was suggested below, and it is argued for the respondent now, that the title is not free from reasonable doubt, because of the legal question raised and, hence, the courts should not compel the purchaser to take the title. It must be observed, however, that this land was not bought at a judicial sale. Where a title is objected to which comes through a judicial sale, the court will often exercise its discretion in favor of a purchaser and relieve him from going on with his agreement, if there are questions which might reasonably be raised affecting the title. But where the transaction is one between parties the question is simply whether the legal title to the land, notwithstanding the objections made, is good in the vendor and will pass by his conveyance to the purchaser, Haberman v. Baker, 128 N. Y, 253; 40 St. Rép., 104. If resort must be had to paroi evidence, if it depends upon questions of fact, then a purchaser should, and will, not be compelled to perform his contract. Irving v. Campbell, 121 N. Y., 353; 31 St. Rep., 307.

In this case there is no dispute as to the facts and the soundness of the title offered depends upon the decision of the question discussed and which is purely one of law. That question is set at rest by the decision of the court that there is no doubt cast upon plaintiff’s title, and the rule stare decisis, is an effectual bar to the question being again opened.

I advise that the judgment below should be reversed and, as a new trial will be unnecessary, that judgment of specific performance should be "ordered against the defendant, with costs to the plaintiff in all the courts.

All concur.