author: Gilbert, J.:

text:
    RICHARD VAN TASSELL, Respondent, v. WILLIAM J. WOOD, Impleaded with THOMAS H. PURDY and others, Appellant.

      Usury — agreement to pay for expenses and loss on sale of securities — repayment of bonus — effect of.

    Upon applying to the plaintiff for a loan of $5,000, the borrower agreed to pay him $400 as a compensation for his trouble and expenses in raising the money and for the sacrifice he would have to make in the sale of securities to raise the same. The trouble and expense consisted in a journey from Tarry town to White Plains to discount a note, and from Tarrytown to New York to sell the securities. Held, that the agreement to pay the $400 as a compensation was not made in good faith but was a mere device to avoid the usury laws, and , that the mortgage given to secure the loan was void.
    The loan was made and the mortgage given in July, 1875. In December, 1876, the plaintiff repaid to the mortgagor the $400 so retained. After the mortgage was given, and before the repayment of the $400, two judgments were recovered ' and docketed against the mortgagor. Held, that the repayment of the $400 did not render the mortgage valid as against these judgments, in this action, brought to foreclose the said mortgage, the mortgagor interposed no defense, and but one of the judgment creditors appealed from the judgmen entered below by which the mortgage was adjudged to be valid and at sale thereunder directed. Held, that the judgment should be so modified as to give the appealing judgment debtor a priority of payment over the mortgagee out of the proceeds of sale, and that he recover costs of the action against the plaintifE, and that plaintiff should not recover the costs below as against the non-appealing judgment creditor.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.
    The action was brought to foreclose a mortgage given by one Purdy to the plaintiff, bearing date July 13, 1875. Two of the defendants, Millard and Wood, who held judgments recovered on the 26th of January, 1876, and the 14th day of February, 1876, respectively, put in answers setting up that the mortgage was void for usury. The court below held that the bond and mortgage were good and valid instruments, and directed that the usual judgment of foreclosure be entered. From this judgment, the defendant Millard appealed.

      J. 8. Maim'd, for the appellant.

      John A. Uusted, for the respondent.
   Gilbert, J.:

The plaintiff, on or about July 13, 1875, agreed to loan to the defendant Purdy $5,000 upon the security of the bond and mortgage of the latter, set forth in the complaint, and Purdy agreed to pay the plaintiff $400 as a compensation for his trouble and expenses in raising said sum of money and for the sacrifice he would have to' make in the sale of securities for the purpose of raising said money. The parties to the transaction were both residents of the county of Westchester. The only trouble and expense to which the plaintiff was put consisted of a journey between Tarrytown where he lived and White Plains where he kept his bank account, for the purpose of getting a note discounted, and of a journey between Tarrytown and New York for the purpose of disposing of his securities. When the plaintiff and Purdy met to complete the transaction, the plaintiff retained the sum of $400, and gave to Purdy, on account of the loan, only the sum of $4,600. The bond and mortgage in suit were then delivered. They are for $5,000, and bear interest at the rate of seven per cent.

The court below found that the compensation so paid to the plaintiff was a reasonable one, and that the agreement between him and Purdy was made for the purpose of paying the plaintiff such compensation, and not as a device to avoid the usury laws, or with intent, on the part of the plaintiff, to take interest at a greater rate than seven per cent per annum upon said loan.

We think that finding is not warranted by the evidence. It has not yet been established, as a rule of law in this State, that the lender may exact from the borrower compensation for a loss which he may sustain by the sale of securities which have become depreciated in the market, or for such efforts to obtain the money loaned as were made in this case. If the plaintiff, as a condition of the loan, had required Purdy to take his depreciated securities at par, the transaction would have been usurious per se. (Seymour v. Strong, 4 Hill, 255; Schermerhorn v. Talmam, 4 Ker., 93.)

What difference does it make to the borrower whether the lender transfers the securities to him in lieu of money, or sells the securities and gives him the proceeds only \ If such a transaction should be sustained, the limit to the oppression, which holders of depreciated securities might practice on needy borrowers, would be merely the greed of the lenders. Nor is the case, in our opinion, brought within the principle decided by the Court of Appeals in Thurston v. Cornell (38 N. Y., 281). To authorize a lender to charge for his trouble and expense in procuring the money to loan, there must be an agreement made in good faith for that purpose only, and not for the purpose of giving to the lender a usurious compensation for the loan.

We think the agreement in this case was one of the latter kind.

It is our duty to review the questions of fact presented and to give effect to our own conclusions upon the evidence. We are in no sense concluded by the findings of the court below. (Finch v. Parker, 49 N. Y., 1; Smith v. Ætna Life Ins. Co., id., 211; Godfrey v. Moser, 66 id., 250.)

It appears that in December, 1816, the plaintiff repaid to Purdy the sum of $400, so usuriously taken by him at the time of the loan. The defendants, Millard and Wood, had recovered judgments against Purdy, and the same were docketed and became liens on the mortgaged premises before such repayment was made. Such repayment did not render the bond and mortgage valid. Tbe statute had made them void, and they remained void, notwithstanding tbe effort of tbe parties to purge them of tbe usury. (Miller v. Hull, 4 Den., 104; Brackett v. Barney, 28 N. Y., 333.)

Tbe defendant Purdy abstained from defending tbe action. Tbe defendant Millard did not appeal from tbe judgment therein. It only remains, therefore, to determine tbe rights of tbe defendant Wood. He bolds a judgment which is a lien on tbe mortgaged premises. He has a right, therefore, to have tbe usurious mortgage avoided, so far as it affects tbe lien of bis judgment. (Dix v. Van Wyck, 2 Hill, 522; Thompson v. Van Vechten, 27 N. Y., 568; Mason v. Lord, 40 id., 476-486.) But be has no right to have it avoided m loto.

The judgment must be modified by striking out tbe direction as to costs, as against tbe defendants Millard and Wood, by inserting a declaration that Wood is entitled to a priority of lien over tbe mortgage, and directing that tbe said judgment be paid out of the proceeds in accordance with such order of priority, and that be recover of tbe plaintiff bis costs of tbe action. Such modification is in accordance with tbe prescribed practice. (Code of Civil Procedure, § 1317; Simar v. Canaday, 53 N. Y., 298.)

Judgment accordingly.

Barnard, P. J., concurred; Dykman, J., not acting.

Judgment modified in accordance with tbe opinion by Gilbert, J.


source: Caselaw Access Project

license: Public Domain

text:
    ALBERT G. TRAVIS, Respondent, v. ELIZA B. SCRIBA, Appellant.

      Married woman — when liable for purchases made by husband — Agency — what shows — SaUfcation.
    The defendant, a married woman, owned and managed a farm. While she was absent in Florida her husband, who was, to some extent, managing it for her, bought certain trees of the plaintiff and set them out on the farm. After her return the plaintiff was introduced to her, by her husband, as the man who had sold them the trees, and on a subsequent occasion, in the absence of ter husband, she told the plaintiff, who had called for the money for the trees, that she aid not have it then, but if he would leave the bill she would send the money to his son’s office. The husband testified that he bought the trees on his own account and not as agent for his wife. The plaintiff charged the trees to the husband and testified that he supposed he was dealing with him alone. Held, that the evidence did not show that the husband had acted as agent for an undisclosed principal, and that the wife was not liable for the price of the trees.
    Where a husband purchases property as the agent of his wife without authority from her, her subsequent promise to pay the price thereof may be deemed a ratification of his act and, therefore, equivalent to a prior authority; but where the husband does not act as the agent of the wife but for himself the subsequent promise to pay by the wife is a promise to answer for the debt of another, and if not in writing is void under the statute of frauds.
    Nor is her liability, in such a case, affected by the fact that the purchase inures to the benefit of her separate estate.
    Appeal from a judgment, of the County Court of Westchester county, in favor of the plaintiff, entered upon the trial of this action by the court without a jury, and from an order denying a motion for a new trial made upon a case and exceptions.
    The action was brought to recover the value of certain fruit trees sold by the plaintiff to the husband of the defendant, and for the price of which it was claimed that the defendant was liable, it being alleged that the husband had acted as her agent in making the purchase and that the trees were set out on a farm belonging to, and managed by, the defendant.

      Wm. G. Coolce, for the appellant.

      Ma/rvm S. Smith, for the respondent.
   Gilbert, J.:

No doubt a contract made by an agent in his own name for an undisclosed principal binds the principal. But unless the contract was in fact made for the undisclosed principal, neither a married woman nor any other principal can be made liable upon the contract. The court below found as a fact that the husband acted as the agent of the defendant (his wife) in the purchase of the ■ trees and setting the same upon the farm of the defendant, but did not disclose such agency to the plaintiff. The question is whether the evidence sustains this finding.

It appears that the defendant owned the farm; that when the trees were purchased and set out she was absent in Florida, and during her absence her husband, to some extent at least, managed the business conducted on, the farm. The plaintiff testified that after the return of the defendant he called at the residence of herself and her husband and on that occasion was introduced to the defendant by her husband as the man that sold them the trees, and that on a subsequent occasion when he called at the same place, in the absence of the husband, he told her he had come to get the money for the trees, and the defendant replied that “ she did not have the money then but if he would leave the bill she would send the money to his son’s office. The testimony of the husband goes to show that he purchased the trees on his own account and not for his wife. The plaintiff charged the trees to the husband. Fie also testified that he supposed the husband, and he only, was the person he was dealing with. Such, in substance, is the evidence respecting the nature of the transaction, and the finding being excepted to we must suppose that the case contains all the evidence on which such finding was based. (Perkins v. Hill, 56 N. Y., 87.) We think the evidence hardly warrants the inference that the husband acted, in respect to the purchase, as the agent of his wife or in her behalf. If in fact he did not make the purchase for her she is not liable. It is not enough that the trees were purchased for the purpose of improving her separate estate. The law does not forbid a purchase by the husband on his own account for that purpose. If the evidence was sufficient to show that the trees were in fact purchased for the wife, although such purchase was made in the husband’s name and without any antecedent authority from the wife, yet her promise to pay the price might be deemed a ratification of his act and as such equivalent to a prior authority. The purchase being for the benefit of the wife’s estate a very slight matter would serve to prove a ratification, and the promise of the wife to pay no doubt is sufficient for that purpose. (Coml. Bk. of Buffalo v. Warren, 15 N. Y., 577.) But where a husband, who is supposed to have acted for his wife in making a purchase, did not so act but acted for himself, there is nothing to ratify. The promise of the wife is one to answer for the debt of her husband, and being verbal merely, if otherwise valid, it would still be within the statute of frauds and void. But the fact that the substantial benefits of the purchase by the husband accrued to the wife furnishes no consideration for her promise. She was under no moral obligation to pay for chattels bought by her husband and put upon her farm without her procurement, and, therefore, the principle decided in Goulding v. Davidson (26 N. Y., 604) is not applicable to this case.

There have been a number of conflicting decisions on this subject, but it seems to be now settled that to charge a wife in a case like this there must be some evidence that the husband acted as agent and not as principal; that his contract was for the wife, and that she was understood to be the contracting party. (Jones v. Walker, 63 N. Y., 612.) We think the evidence in this case, fairly considered, shows that the husband acted not as agent for his wife but as principal, and, therefore, that he only is liable for the debt due the plaintiff.

A new trial must be granted, with costs to abide the event.

Dykmmn, J., concurred; Barnard, P. J., not acting.

Order of County Court denying new trial reversed, and new trial granted costs to abide event.


author: Barnard, P.J.:

text:
    RICHARD W. ROBERTS, Respondent, v. WARREN DAVIDS and ELIAS H. MARSHALL, Appellants.

      Appeals from Justices’ Oo-'M'ts — neglect to serve notice on adverse pa/rty — cannot be supplied und&r Oode, § 1308.
    Section 1303, of the Code of Civil Procedure, providing that where the appellant serves notice of appeal on the clerk or adverse party, and neglects, in other respects, to perfect his appeal, the court may permit the omission to be supplied, applies only to appeals mentioned in the twelfth chapter of the Code, and does not apply to appeals from Justices’ Courts.
    Appeal from an order of the County Court of Kings county dismissing the appeal herein, and denying an application for leave to supply appellants’ omission to serve a notice of appeal on the adverse party.

      Hewry G. Atwater, for the appellants.

      James J. Gray, for the respondent.
   Barnard, P.J.:

The plaintiff recovered a judgment against the defendants before a justice of the peace, on the 23d February, 1877. On the same day a notice of appeal to the County Court was served on the justice who rendered the judgment and his costs paid. At the same time there was served on the justice an undertaking, duly approved, to stay proceedings upon appeal. No notice of the appeal was ever served on the respondent. The case was noticed for trial in April, 1877, and was called in May, 1877. The respondent then moved to dismiss the appeal, and the defendants moved for leave to serve the notice of appeal. At the time the motion was heard the Code of Remedial Justice was in force; without this Code it was well settled that no jurisdiction was acquired by the County Court of the appeal until all the statute requisites for an appeal had been complied with. Failure to serve notice of his appeal on the justice of the respondent, or to pay the justice’s costs or his fee for return have all been held fatal to the appeal. The Code of Remedial Justice contained this section (1303): “ When the appellant seasonably and in good faith serves the notice of appeal, either upon the clerk or upon the adverse party, or his attorney, but omits, through mistake, inadvertence, or excusable neglect to serve it upon the other, or to do any other act necessary to perfect the appeal or to stay the execution of the judgment or order appealed from the court in or to which the appeal is taken, upon proof by affidavits of the facts, may, in its discretion, permit the omission to be supplied or an amendment to be made upon such terms as justice requires.”

The appellant claims relief under this section. We think the section has no reference to appeals from Justices’ Court. • It applies only to appeals mentioned in the twelfth chapter of the new Code of Civil Procedure, which does not include appeals from justices’ judgments. The section of the old Code, as to appeals from Jur-tiees’ Court, are retained by chapter 417, Laws of 1877.

Order affirmed, with costs and disbursements.

Gilbert and Dykman, JJ., concurred.

Order affirmed, with costs and disbursements.


author: Barnard, P. J.:

text:
    HENRY S. BEDELL, as Executor, etc., of MARTHA GUYON, Deceased, Appellant, v. PETER C. T. GUYON and GEORGE A. MIDDLEBROOK, as Administrators of MARTHA GUYON, Deceased, Respondents.

      Legacies — when they nest at death of testator.

    Tlie gift of legacies to certain parties in remainder by the use of llie words “ at and upon tlie decease of,” a life beneficiary, causes sucb legacies to vest at llie death of the testator and on the death of one of the parties, claiming a legacy in remainder, before the death of the life beneficiary, the legacy vests in his legal representatives. '

    Appeal by Henry S. Bedell, executor, etc., of Martha Guyon (the elder), deceased, from an order of the district attorney of Richmond county, acting as surrogate, directing an attachment to issue against said Bedell for his failure to return an. inventory of the estate of which he was executor.
    The clause of the will of Martha Guyon, upon the construction of which the controversy arose, is set out in full in the opinion.
    George B. Seguine, the life beneficiary under said will, died in December, 1873. Prior thereto, and in March, 1860, Martha Guyon, a niece of the testatrix, and one of the parties to whom the testatrix gave an interest in her estate on the death of Seguine, died, and letters of administration were issued to the respondents herein who made application for a summons to compel Henry S. Bedell, as executor of Martha Guyon, to make and file an inventory of her estate. The executor of Martha Guyon the elder claimed that these respondents had no interest in her estate.

      George J. Greenfield, for the appellant.
    The settled rule of law as to the vesting of legacies is that if the gift of the legacy is immediate and the payment alone postponed, the legacy will be held vested; and if the legatee die before the day of payment arrives it will not lapse but go to his personal representatives. (1 Roper on Legacies, 553, and cases cited.) But where there is no gift but by a direction to pay, or divide and pay at a future time or on a given event, or to transfer from and after a given event, the vesting will be postponed until after that time has arrived or that event happened, unless from particular circumstances a contrary intention is to be collected. (2 Williams on Executors, 1232 [at bottom, Per-kin’s ed.], and cases cited; 1 Boper, 578, 581, 588; Andrews v. AT. Y. Bible and Prayer Book Society, 4 Sandf., 173; Patterson v. Pilis, 11 Wend., 273, 274; Beck v. Burn, 7 Beavans, 492; Botsford v. Kebbell, 3 Yes., 363; BiTbvngsley v. Wills, 3 Atkins, 219 ; see, also, Thicknesse v. Beige, 3 Brown’s Cases in Parliament, 365, 374; Beake v. Pobmson, 2 Meriv., 363, 385; Seamer v. Bingham, 3 Atk., 54, 57; 2 Williams on Exrs., 1065 [marg., 3d ed.].) Exceptions to tbe general rule. (Williams on Executors [marg. p. 1059, 3d ed., or 1233 Perkins’ ed.] ; 2 Williams on Executors, 1066 [marg., 3d ed.]; 2 Williams on Executors, 1067 [3d ed., 1242 Perkins’ ed.].)

      Be Witt Stafford, for the respondents.
    Tbe legacy vested instanter on tbe death of testatrix. (Barker v. Woods, 1 Sandf. Cb., 130 ; Pverett v. Pherett, 29 N. Y., 39 [see opinion, 75]; Marsh v. Wheeler [2 Edw. Cb.], 163; Harris v. Fl/y, 7.Paige, 429; Birdsall v. Hewlett, 2 id., 33; see Beatty v. Montgomery, 21 N. J. Eq., 324; 1 Jarman on Wills, 763; 2 Williams on Exrs., 1069 ; 1 Jarman on Wills, 756, and note 1 and cases cited; Beeming v. Sherrat, 2 Hare, 14; Packham v. Gregory, 4 id., 396; Oonklin v. Moore, 2 Bradf., 179; Bemonier v. Godfroid, 6 Har. & J., 472; Corbin w, Wilson, 2 Ash., 178; Newport v. Cook, id., 332; Gill v. Weaver, 1 Dev. & Bat. Cb., 41; Yamghn v. Dickens, 2 id., 52; Marsh v. Wheeler, 2 Edw. Cb., 161; Bowther v. Condon, 2 Atk., 127.)
   Barnard, P. J.:

Martha Guyon died in 1859, leaving a last will and testament whereby she made a bequest in tbe following language:

“ Third, I direct my executors hereafter named, to invest and keep invested out of my estate tbe sum of $2,000, and to apply tbe increase thereof to tbe support of my nephew, George B. Seguine, during tbe full term of bis natural life, and at and upon tbe decease of said George B. Seguine, I direct tbe said sum of $2,000 so to be invested as aforesaid, to be paid in equal parts to Mary Jane Guyon, wife of Peter Guyon; Martha Jane Guyon, wife of John Wesley Guyon, and Helena Seguine, children of said George B. Seguine and Martha Guyon, daughter of said Peter Guyon.” 'Martha Guyon died before George B. Seguine and respondents are her administrators. The executors of Martha Guyon by whose will the legacy was given claim, that Martha Guyon, daughter of Peter Guyon, had no vested interest in the legacy and that none passed to her personal representatives.

The legacy became vested at the death of the testatrix. The words “and at and upon the‘decease of said George B. Seguine,” and similar words have uniformly been held to indicate the time when the legacy shall take effect in possession and not to make a contingency. This effect has been given to the words “ then and when,” which was held to refer to death of testator (3 R., 19), “ shall go to such of them as shall be living,” refers to death of testator. “After the death,” held not to fix time of vesting (Stones v. Heurtly, 1 Ves., Sr., 165), “ when and so soon as ” a devisee should attain twenty-four years of age, held to give a vested estate where the devisee died before arriving at that age (3 Term R., 41). A bequest of income for life of £1,000 and after her decease (as life tenant) bequest to five sisters — held that the interest of each vested at death of testatrix. (Roebuck v. Dean, 2 Ves., Jr., 265.) Many similar cases are cited in Moore v. Dyons (25 Wend., 119), and the same principle is applied in Livingston v. Greene (52 N. Y., 118).

The decree of the surrogate should be affirmed, with costs.

Gilbert and Dykman, J J., concurred.

Order affirmed, with costs and disbursements.


text:
    CHARLES W. BARTLETT, Appellant, v. RICHARD J. HOLMES and ELIHU SPICER, Jr., Respondents.

      Action against nonresident — jurisdiction of court over — how it may he attacked.

    The plaintiff herein commenced an action against a non-resident defendant, to recover for a tort committed in the State of Louisiana; the summons was served by publication only, and no attachment was issued in the action. Judgment was entered in the usual form, and the sheriff, under an execution issued thereon, levied upon the interest of the defendant in a vessel, not within the jurisdiction of this court when the action was commenced or the order for the1 publication'of the summons was made. Under an order of tbe District Court of the United States the vessel was released, upon the other part owners of the vessel giving an undertaking conditioned for her return or the payment of the value of the interest of the defendant owner. In an action brought to recover for a breach of this condition of the undertaking, held:

    (1) That the action being for a tort against a non-resident, not personally served, a judgment in personam could not be entered but only one in rem.

    (2) That the judgment being void, the execution issued thereon was also void, and that as there was therefore no consideration for the undertaking given to secure the release of the vessel levied on thereunder, no action could be maintained to recover for a breach thereof.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court, without a jury.
    In December, 1872, the plaintiff herein brought an action in this court against Alexander McNeil, to recover damages for injuries received at New Orleans through the alleged carelessness of McNeil, who was then, as stevedore, engaged in unloading a vessel at that place.
    In the same month an order for the publication of the summons was made in that action, on the ground that the defendant was a non-resident, having property in this State.
    The defendant was not personally served, nor did he appear in the action.
    On July 14, 1873, judgment by default was entered in the action against the defendant for $25,666.36.
    On July 16, 1873, by virtue of an execution issued upon the judgment in said action, the sheriff of the city and'county of New York levied upon the interest of the defendant in the bark Maggie McNeil, then lying in the port of New York, and seized the bark. The bark Maggie McNeil was not within the jurisdiction of the court when the action was commenced, nor when the order for the publication of the summons was made.
    On August 12, 1873, the majority owners of the Maggie McNeil filed a libel in the District Court of the United States for the southern district of New York for the possession of said bark, the sheriff being made a party to said action.
    The sheriff answered and excepted to the libel.
    On the 16th day of August, 1873, an order was made in said action that the vessel be delivered to the libelants upon their executing a stipulation for her safe return.

      On August 18, 1873, an order was made in said action delivering the Maggie McNeil to the libelants.
    On June 4, 1874, a decree was entered in said action overruling the exceptions of the sheriff, and confirming the delivery of the vessel to the libelants.
    The bark Maggie McNeil never returned to this port, having been lost at sea, and this action is brought against the sureties upon the stipulation given in the possessory action, the same having been assigned to the plaintiff herein.

      Jacob II. Bergen, for the appellant.
    It does not follow that because a stipulation or undertaking is given in a United States District Court that therefore it is enforceable only in that court. {Green v. Van Buskirk, 5 Wall., 307; The Moses Ta/ylor, 4 id., 411; Hew York Steam Navigation Go. v. Merchants’ Bank, 6 How. [U. S.], 344; see Statutes of 1789, 1 Stat. at Large, 76; 1 Bright, 25; The Thomas Jefferson, 10 Wheat., 428; Albert v. The Virginia, 2 Paine, 115 ; The John Jay, 8 Blatch., 67; Taylor v. Cornell, 20 How. [U. S.], 583 ; The Gazelle, 1 Sprague, 378 ; The Julia Arm, id., 382; Douga/n v. Champlam Trams. Go., 56 N. Y., 1; Baird v. Daly, 57 id., 236 ; opinion of Lott, Ch. Comr., and of Dwight, Comr., 247; Steamboat Co. v. Chase, 16 Wall., 522.) But if it be admitted that it is a maritime contract, still the action will lie in the State court, for the action is maintainable at common law. (1 United States Statutes at Large, 76; Judiciary Act of 1789, § 9; Dougam v. Champlain Trans. Go., 56 N. Y., 1; Baird v. Daly, 57 id., 236; op. p., 247 et seg. ; The Steamboat Co. v. Chase, 16 Wall. [U. S.], 522.)

      Frank D. Stwrges, for the respondent.
    The court has no jurisdiction of the cause of action upon the stipulation set forth in the complaint. The stipulation, assuming that the same is valid in form, was given in an admiralty cause, namely, a possessory action, over which the Court of Admiralty has jurisdiction. (Dunlap’s Admiralty Practice, 43; Benedict’s Admiralty, § 275; Bett’s Admiralty Practice, 16; Ward v. Feck, 18 How. [U. S.], 267; De Lovio v. Boit, 2 Gallis., 474; Dunlap’s Admiralty Practice, 43-59 [m. p.], 157-163; Benedict’s Admiralty, § 498; The

      Brng Alligator, 1 Gallis., 148; MoLellan v. The United States, id., 229; Campbell v. Hadley, Sprague’s Decis., 441.) The law is well settled that security taken in a court is enforceable only according to the rules and practice of the court in which it is taken, and another court will not entertain an action to enforce such security, unless such refusal would leave a 'party without a remedy. (Burtus v. McCarty, 13 John., 424; McDougaTl v. Richardson, 3 Hill, 500; People v. Blackman, 1 Denio, 633 ; Otis v. Wakeman, 1 Hill, 605; Davis v. Packard, 6 Wend., 330; same case affirmed, 10 id., 50; The Bollen and Cargo, 1 Mason’s R., 435.) The judgment entered in the action against Alexander McNeil was void for want of jurisdiction. The action was for a tort committed in New Orleans by a resident of that city. He was never personally served with the summons. It is submitted that the jurisdiction of ' this court, in an action for a tort against a non-resident, depends upon and follows the person, and that such jurisdiction is acquired only by personal service of the summons. (Mussina y. Belden, 6 Abb., 166; Latowrette v. Clark, 45 Barb., 324; Lister v. Wright, 2 Hill, 320; De Witt v. Bucha/na/n, 54 Barb., 33 ; Newm,an v. Goddard, 3 Hun, 40; Mclvor v. McCdhe, 16 Abb., 321; Barney v. Burnstenbinder, 64 Barb., 212.) No attachment could have been issued in the action, and none was issued. (Shaffer v. Mason, 18 Abb. Pr., 455 ; Gordon v. Gaffey, 11 id., 1; Bcurry v. Fisher, 8 id. [N. S.], 346.) But, if valid, the judgment was a judgment in rem, not in personam. It could be enforced only against the property which was in the State when the action was commenced and the order of publication was made, and not against any property of the defendant which might thereafter come into the State. (Story’s Conflict of Laws, § 549, citing many cases Schwinger v. Hickok, 53 N. Y., 280.) The levy being void, the stipulation is a nullity, and in an action on the stipulation the defendants may avail themselves of the defense. (Brookman v. Llamill, 46 N. Y., 636 ; Cadwell v. Colgate, 4 Barb., 253; Llomam, v. Brinkerhoff, 1 Denio, 184; Coleman v. Bean, 3 Keyes, 94, 94 ; Gardner v. Tyler, 16 Abb. Pr., 14.) The jurisdiction of any court exercising authority over a subject may be inquired into in every court, where the proceedings of the former are relied upon and brought before the latter by the party claiming the benefit of such proceedings. (Chemung Comal Bomh v. Judson, 8 N. T254; Dobson v. Pea/rce, 12 id., 156; Borden v. Fitch, 15 John., 141; Mills v. Martin, 19 id., 33; Kerr v. J5h?r, 41 N. Y., 275 ; Adams v. Saratoga, and W. R. R. Co., 10 id.,' 333; Sheldon v. Wright, 5 id., 516.)
   Gilbert, J.:

One whose person or property has been seized under process, may question the jurisdiction of the court that issued the process either in an action brought by himself for such seizure, or in an action against him, brought by the party in whose favor the process was issued, in which the process is an element of the plaintiff’s cause of action. This principle is elementary. "We think the execution under which the vessel in this case was seized, was illegal, and, therefore, void. The plaintiff in this action was the plaintiff in the execution. The execution was issued • upon a judgment recovered against a non-resident defendant for a personal tort committed in the State of Louisiana, and the defendant was not personally served with the summons in the action in which the judgment was recovered. Although he was brought in by publication, and that may have authorized a judgment against him in rem, it did not authorize one in personam. The judgment actually entered was one vn personam, and was not limited in its operation to the property of the defendant therein which was within this State when the action was commenced. The execution in question was in the form authorized by statute for the enforcement of a judgment in- -personam. The vessel seized was not within this State when the suit in which the execution was issued was commenced, or indeed when the judgment therein was recovered. The execution was, therefore, issued in a case in which the court had no jurisdiction to issue it. This point was, in effect, adjudged in the case of this plaintiff against the defendant in the execution. (60 N. Y., 55.) For if the court has no power to compel such defendant to apply his intangible property to the payment of the judgment, it cannot subject his tangible property not specified therein to the same purpose. The case of Schwinger v. Hichok (53 N. Y., 280), is also decisive that the court below held correctly on this point.

The stipulation, .on which this suit was brought, having been given, to j rocnre the release of the vessel from a seizure under a void execution, it furnishes no cause of action to the plaintiff.

Whether such a stipulation is enforceable only in the Admiralty Court is a question which we need not now decide, because the judgment must be affirmed on the other ground stated.

Barnard, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


text:
    CHARLES F. WANZER, Appellant, v. SARAH CARY and others, Respondents.

      Mortgage — assignment of — payment by mortgagor without notice of.

    September 26, 1870, Sliurter and Seaman agreed to sell to Cary and Longshore certain real estate for $12,000, $2,000 of which was to he paid in cash. Upon i.rf execution of the contract the purchasers took possession of the land and oavl $500 in cash, and delivered a mortgage executed by Cary and wife on other real estate for $1,500. In October, 1870, the mortgagees assigned the mortgage to one Gedney, and subsequently, after various other assignments, the same was on April 16, 1874, duly transferred to the plaintiff. The mort tgagors had no notice of any assignment until December, 1873. In February, 1871, Cary and Longshore gave up the property to Shurter and Seaman, and the latter in consideration thereof agreed to cancel the said mortgage.
    1'n an action to foreclose the mortgage, held, that it was canceled and satisfied by the act of Shurter and Seaman in taking back the property purchased and by the agreement then made by them.
    Appeal by plaintiff from a judgment entered upon the trial of this action by the court without a jury, dismissing the complaint and directing the mortgage therein described to be canceled.
    The action was brought to foreclose a mortgage. Erom the finding of the justice, before whom the action was tried, it appeared that on the 26th day of September, 1870, James E. Shurter and George A. Seaman entered into a contract with Samuel Cary and Abraham Longshore, whereby they agreed to sell certain real estate in the town of Eishkill to said Cary and Longshore for $12,000, to be paid as follows: $2,000 on the execution of tbe contract, $200 on the 1st day of November, 1870, and $200 on the first of each and every month thereafter until $6,000 was paid, when the deed was to be given and a mortgage taken for the balance of the purchase-money. When the contract was executed, Cary and Long-shore paid in cash $500 and delivered to said Shurter and Seaman a bond and mortgage executed by Cary and wife on certain other real estate in Matteawan, Dutchess county, for $1,500, as collateral security for the payment of the balance of the said $2,000. The ' bond and mortgage was made payable in two years from the date thereof, with interest to be paid half yearly. The said contract and the said bond and mortgage were executed and delivered the day they respectively bore date. The said Cary and Longslioi’e on the date of the contract entered into the .possession of the premises described therein.
    On the 1st day of October, 1870, said Shurter and Seaman duly assigned said bond and mortgage to Eleazer Gidney, of Newburgh, and the same were, by said Gidney, on the 10th day of December, 1873, duly assigned to John II. Deyo, and on the 16th day of April, 1874, were duly assigned to Charles E. Wanzer, the plaintiff in this action.
    Cary and Longshore held the premises in question about six months, and then gave it up to Shurter and Seaman; and in consideration thereof, the said Shurter and Seaman agreed to cancel the said mortgage and took possession of the property under such agreement. The defendants, the mortgagors, were not notified of any transfer of the mortgage until December, 1873. In this action, brought for the foreclosure of the mortgage, none of the defendants ' appeared except Sarah Cary, who has answered and alleges in her answer that said bond and mortgage was delivered to said Shurter and Seaman as collateral security for the first payment of $2,000 mentioned in said contract, and .that the same was canceled by the agreement hereinbefore set forth.

      IL H. IIusUs, for the appellant.

      O. P. Dorlcmd, for the respondent.
   Gilbert, J.:

The legal effect of the retransfer to Shurter and Seaman by Cary and the accompanying agreement under which such retransfer was made is the same, whether such transaction is treated as a technical payment or an accord and satisfaction of the mortgage debt. Neither Cary nor the mortgagor (his wife) who made the mortgage at his request and for his accommodation, having received any notice of either of the assignments of the mortgage, they had a right to deal with Shurter and Seaman, the mortgagees, on the faith of their continued ownership of the mortgage. There' can be no doubt that their agreement to take back the property, which was the consideration of the mortgage and to satisfy the latter, was an extinguishment of the mortgage debt. The only way by which an assignee of a mortgage can protect himself against a payment of the mortgage debt to his assignor, in money or sub modo, is by giving notice of his assignment to the mortgagor. If such notice is not given, a payment in either mode to such assignor is as valid and effectual as if it had been made to the assignee of the mortgage. (Van Keuren v. Calkins, 4 Hun, 159; affirmed by Court of Appeals; Harmans v. Ellsworth, 64 N. Y., 159.)

The judgment must be affirmed, with costs.

Dykman, J., concurred; Barnard, P. J., not acting.

Judgment affirmed, with costs.


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    THE BOWERY NATIONAL BANK, Respondent, v. WILLIAM B. DUNCAN and others, Appellants.

      Purchase of real estate to he held to secwre advances — right of redemption — vesting of, in heirs and widow of equitable owner — right of action in judgment creditor.

    In 1866 the defendant Duncan, in pursuance of an agreement made with one Bainbridge, purchased certain real estate at a sale under a judgment in partition with the understanding that he should hold the title thereto as security for the purchase-price and for advances made to Bainbridge, upon payment of which the property should be conveyed to the latter. In 1871 Bainbridge died, and in and prior to 1873 Duncan .sold the property and applied the proceeds thereof to his own use. This action was brought by the plaintiff, as assignee of a judgment recovered against Bainbridge in 1870, to compel Duncan to pay the same from the proceeds of said sale.

      Sed, that although the conveyance to Duncan by the referee was absolute in form, Bainbridge was the equitable owner of the property and entitled to redeem the same upon payment to Duncan of the advances made by him. That, upon Bainbridge’s death, the right so to redeem passed to his heir at law, subject to the right of dower of his widow.
    That, upon the sale of the lands in 1873, a right of action against Duncan to recover the balance remaining, after paying his advances, vested in the said heirs at law and widow.
    That the plaintiff, as the assignee of the judgment, had an equitable lien on the lands for the amount of his debt, and that he was entitled to maintain this action to recover the same.
    'Bainbridge died intestate as to his real estate and his widow and heir at law were parties defendant to this action. Sed, that the judgment properly directed that out of the surplus remaining, after the payment of the plaintiff’s claim, there be paid to the widow a gross sum in lieu of her dower, and that the balance be paid to the heir at law.
    That the recovery in this case was properly measured by the amount for which Duncan sold the lands; that .the fact that a portion of such amount consisted of certain securities which he took on such sale did not require the parties adverse to him to pursue such securities.
    Appeal from a judgment in favor of the plaintiff, entered upon tlie report of a referee.
    Tbis action was brought by tbe plaintiff as a judgment creditor of Richard Bainbridge, deceased, to have a deed of certain premises executed and delivered to defendant William B. Duncan declared to be held by said Duncan to secure the repayment to him by Bainbridge of the purchase-money and certain advances to be thereafter made by said Duncan to said Bainbridge.
    J. Elliot Condict and others commenced an action in this court against Richard Bainbridge, in which a judgment for $5,350.13 was obtained October 6, 1870. After the commencement of the action the cause of action was duly assigned to Yanderlip and Taylor, who, in 1872, assigned it to the plaintiff in this action.
    Richard Bainbridge died in 1871 leaving a last will and testament, which was admitted to probate before the surrogate of Queens county September 11, 1871. He left him surviving an only son, the defendant Henry P. Bainbridge (also an executor of his will), and defendant Jane Bainbridge, his wife. As to his real estate he died intestate. - '

      The property described in the deed which it was sought to have declared a mortgage was situated at Far Rochaway, Queens county, Long Island, and comprised about seventeen and one-half acres of land.
    The plaintiff claimed that Duncan purchased the property under an agreement, by which he was to hold the legal title thereto unti’ Bainbridge should repay the purchase-price and other advances made by him to Bainbridge. The property in question was sold by Duncan in or prior to the year 1873, and mortgages were taken to secure a portion of the purchase-price.
    The judgment directed:
    “ Third. That defendant Duncan is to be charged with the net amount received upon the sales of said property, to wit, the sum of $37,930.52, with interest thereon from July 21, 1873, to the date of this report, amounting together to the sum of $46,37474. That he is to be credited thereon with the amount of his advances to December 31, 1872, to wit, the sum of $14,114.42, with interest thereon to the date of this report, amounting together to the sum of $17,795.56, leaving a balance of $28,579.18.
    Fourth. That plaintiff recover from the defendant Duncan the sum of $5,350.13, with interest from October 6, 1870, to date of this report, amounting in all to $7,583.33.
    That defendant Jane Bainbridge, the widow of Richard Bainbridge, recover from defendant Duncan the sum of $3,696 as her dower in said premises. That the defendant Henry P. Bainbridge, the sole heir at law of Richard Bainbridge, recover from the defendant the sum of $17,299.85, and that judgment be entered herein accordingly with costs to the plaintiff herein.”
    TF. IF. MacFarland, for the appellants.

      Sewell c& Pierce, for the respondent.
   Gilbert, J.:

The referee has found that it was the intention, understanding and agreement between the defendant Duncan and Richard Bainbridge, that Duncan should purchase the Rockaway property at the sale which was made under the judgment in partition for tlio benefit of said Bainbridge, and that the conveyance thereof should be held by Duncan as a security for tbe repayment to him of such sums of money as be should pay out and advance in making such purchase, and such as he should thereafter advance to Bainbridge.

The finding is abundantly sustained by the evidence. Indeed, we think, a conclusion that Mr. Duncan did not hold his title as security for Bainbridge’s indebtedness to him, would have been plainly erroneous., Duncan, therefore, acquired such title by the assent of Bainbridge, and as security merely for his debt. That is all that is requisite to constitute a mortgage. It is not neeessiiry that the conveyance to Duncan should have been made by Bainbridge. Mr. Cogswell, the referee, was only an officer of the court, having no estate, legal or equitable, in the land, and the conveyance made by him, operated only to transfer the estates o£ Bainbridge and his co-tenants. Under the agreement found by the referee, Bainbridge, became the equitable owner of the land, and ,the conveyance by which Duncan held the legal estate therein, was in equity a mortgage. The principle here asserted has been often adjudged, and is conclusively settled by authority. (Brown v. Lynch, 1 Baige, 147; McBurney v. Wellman, 42 Barb., 390; Tibbs v. Morris, 44 id., 138 ; Sahler v. Signer, id., 606; Brown v. Jones, 46 id., 400; Umfreville v. Keeler, 1 N. Y. Sup. [T. & C.], 486; Hemans v. Lucy, id., 523; Liyan v. Dox, 34 N. Y., 307; Stoddard v. Whiting, 46 id., 627; Carr v. Carr, 52 id., 251.) In all of the cases cited the right -to redeem was upheld. In some of them it was put upon the ground of preventing fraud, by declaring the grantee of the legal estate a trustee.' But it is quite immaterial whether a person to whom a court of equity accords the right to redeem is called a mortgagor, or a cesimi gúe trust. Nor is it material that ho liability to pay the mortgage debt existed against Bainbridge. (1 R. S., 738, § 139; Hone v. Fisher, 2 Barb. Ch., 559.) The form of the agreement by which the right of redemption is conferred, is of no importance. It may be in the form of a conveyance upon trusts, or upon condition, or with a covenant to reconvey. (Farmers’ Loan and Trust v. Caroll, 5 Barb., 613; Lawrence v. Farmers’ Loan and Trust Co., 3 Kern., 200; Peterson v. Clark, 15 Johns., 205.) And in this State, whatever may be the rule in other States, the agreement need not bo in waiting. On the contrary an absolute conveyance may be pa’oved "by parol evidence to have been intended as a security, and to be in reality a mortgage. (Hodges v. Tenn. M. and F. Ins. Co., 8 N. Y., 419 ; Horn v. Keteltas, 46 id., 605.)

It is alleged in the complaint that Bainbridge died in July, 1871. That is not denied. His will was put in evidence by which it appears that, as respects his real estate, he died intestate. At that time Duncan had sold a part of the lands in controversy, and had received the proceeds of the sales. Such proceeds were applicable, and were in fact applied, to the reduction of Bainbridge’s indebtedness to Duncan. That part of said lands which remained unsold when Bainbridge died, descended to his heirs (1 R. S., 751, § 1; id., 754, § 27), subject to Duncan’s lien’ as a mortgagee, and subject also to the dower of Mrs. Bainbridge. Either the heir or the widow might redeem (Swaine v. Perine, 5 Johns. Ch, 491), but a redemption by the heir would have extinguished the mortgage. (Holmes v. Holmes, 3 Paige, 363.) It appeaj-s that after the death of Bainbridge, and in the year 1873, Duncan sold all the remaining lands and received the proceeds of such sales. This was in legal effect a conversion of the property of the heir, and at once gave to him a right of action for the recovery of the value of the lands sold, or the proceeds of such sale after applying the balance of the indebtedness, for the security of which Duncan held the lands, for the equity of redemption was destroyed by such sale illegally. That could be cut off without a breach of duty on Duncan’s part, only by a strict foreclosure or a foreclosure and sale. (Horn v. Keteltas, 46 N. Y., 611, 612; Stoddard v. Whiting, id., 633.) Such proceeds did not pass to the executor of Mr. Bainbridge, deceased, nor could he have maintained an action to recover the same. The widow had a cause of action for the value of her dower in said lands, for the obligation of the mortgage debt rested solely upon the heir. (1 R. S., 749, § 4.) The plaintiff, who is the assignee of a'judgment recovered against the deceased Mr. Bainbridge, also had an equitable lien on such lands for the amount of his debt. That result is produced by the fact that the deceased Mr. Bainbridge was, in equity, the owner of the lands in his lifetime. If the legal estate therein had been vested in accordance with the real nature of the transaction between him and Duncan, the plaintiff would have had a legal lien thereon. But Duncan held the legal estate for the use of Bainbridge, and the latter was in possession. Such an interest is made liable to judgment and execution by statute. (2 R. S., 368, § 26 ; Garfield v. Hatmaker, 15 N. Y., 475, 481.) Moreover in administering assets derived from the sale of lands held by a person for the use of a judgment debtor, creditors are entitled to the same interest in such assets that they would»have had in the lands, if the legal estate therein had been vested in the debtor. (Averill v. Loucks, 6 Barb., 19.) A debtor cannot defeat the rights of creditors by concealing his ownership of lands. Equity follows the law. The instant it was adjudged that the relation between Duncan and the deceased Mr. Bainbridge was that of mortgagor and mortgagee, the plaintiff would have been entitled to have his judgment declared a lien on the lands if the title thereto had then been held by Duncan. But the latter had conveyed the lands divested of that lien, and he was enabled to do so by the mere facts, that he held the legal estate, and that the purchasers from him took their respective titles without any notice that he held tlxc laixds as mortgagee only. While a court of equity cannot interfere with the rights of sxxch purchasers, it can do no less than impose on tké proceeds of the lands the liability which would have attached at law upon the lands, if they had not been sold. The consequence of holding otherwise would be to enable the widow to bring a suit to obtain a part of such proceeds equal to the value of her dower, and the heir to bring another suit, to obtain the residue thereof, and then to turn the plaintiff over to his remedy against the hem, under the provisions of article 2, title 3, chapter 8, part 3 of the Revised Statutes. (2 R. S., 450, et seq.) Such circuity of action is wholly unnecessary, and it has been avoided by the judgment in this action.

It does not appear that there is any other person who has a lien on such proceeds, aixd no objection for want of parties was taken. The omission of the defendent Duncan to take that objection dispenses with the necessity of eonsidei'ing whether the jxlaintiff is the only person who may have a lien on the fund or not. The defendant Duncan cannot be heal’d in complaint of the judgment, so far as it relates to the interests in the fund of the other defendants. They do not complain, and his interests are in no way affected by that part of the judgment.

¥e see no objection, to the form of the judgment. It does no more than determine the ultimate rights of the parties. Such a judgment is in accordance with the practice of courts of equity, and was expressly permitted by statute. (Code of Proc., § 214.) "We think the recovery was properly measured by the amount for which Duncan sold the lands, and that there was no obligation on the parties adverse to him to pursue the securities which he received on the sale thereof, and that their right of recovery ought not to be defeated because securities were taken instead of money.

The objections to the admission in evidence of the will of Mr. Bainbridge deceased, and the letters testamentary annexed thereto, we think, are untenable, but if tenable, no objection lies to the ruling on such objections, for the reason that the ground thereof was not stated, and if it had been it might have been obviated. (Murphy v. People, 63 N. Y. 594, and cases cited on page 595.)

The judgment must be affirmed with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


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    BENJAMIN COX, Executor, etc., of SAMUEL LEGGETT, Deceased, Appellant, v. W. H. SCHERMERHORN, Executor, etc., of SAMUEL LEGGETT, Deceased, Respondent.

      Appeal from, surrogates decree — pa/rty respondent in — within what time, application to he made, is proper.

    The right of a party to apply for an order directing him to be brought in as a respondent in a pending appeal, taken from a surrogate’s decree, is not affected by the fact that the time within which he could himself have appealed therefrom has expired.
    Appeal from an order made at the Special Term directing that Rebecca E. Millets be made a party respondent to an appeal, brought by the appellant from a decree of the surrogate of Queens county, made upon the final accounting of the exe< utor of Samuel Leggett, deceased. >

      The appellant objected to the order on the grounds that the petitioner had no interest in the question presented by the appeal, and that the time within which she was entitled to appeal had elapsed before the application was made.

      Wm. II. Onderdonh, for the appellant.

      Benjamin W. Downi/ng and J. J. Armstrong, for the respondent.
   Gilbert, J.:

The papers do not show when the surrogate’s decree was entered, nor when the time for appealing therefrom expired. It must, however, be assumed that this appeal was taken in time. But when an appeal has been taken by one party to the proceeding before a surrogate, other parties to such proceedings who are not made respondents, if they desire a review of the proceedings, may elect whether they will bring cross appeals or apply to be made respondents in the appeal already brought. The latter is the most convenient' remedy; for the fifty-first rule of this court provides that the respondent in his answer to the petition of appeal in a case of this kind, may also specify any items in the account as to which he supposes the decree is erroneous as against him, and in favor of the appellant, and that upon the hearing of such appeal the decree may be modified as to any such items, in the same manner as if a cross appeal had been brought by such respondent. The manifest purpose of this provision was to discourage cross appeals, and to prevent the multiplication of unnecessary papers before the appellate court, and thereby facilitate the examination of the case. The appellant having appealed, there was no necessity for a cross-appeal by Mrs. "Willetts. It is not improbable that she abstained from appealing because the other remedy was afforded her. However that may be, we think it is but just that she should be made a respondent in order that she may avail herself of that remedy. If the appellant desires to enforce against her the statutory limitation of the time of appealing, all he has to do is to abandon his appeal; on the other hand, if he prefers to prosecute his appeal, he ought not to be allowed to gain any advantage over Mrs. W illetts by omitting to make her a party respondent therein. Fur? tbermore, the respondent Schermerhorn may, as has been shown, obtain affirmative relief on the hearing of this appeal, and such relief may be prejudicial to the interests of Mrs. "Willetts as declared in the decree of the surrogate. True, no modification of the decree would bind her unless she was a party to the appeal. Hence, that fact would necessarily limit the power of the court to grant relief to the actual respondent, or frustrate any relief which might be granted adversely to Mrs. Willetts. This illustrates the propriety of the rule that all persons should be made respondents who are interested in sustaining the decree. (4 Wait Pi\, 350.) "Upon every view which can be taken of the subject, it seems to me that Mrs. Willetts should have been made a respondent. The practice pursued by her to remedy the omission, to designate her as such, is correct. (Gilman v. Gilmam,, 35 Barb., 591; Foster v. Foster, 7 Paige, 48.)

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

Dykman , J., concurred; Barnard, P. J"., not acting.

Order affirmed, with costs and disbursements.


text:
    THE PEOPLE ex rel. PATRICK ENNIS, Appellant, v. FREDERICK A. SCHROEDER, Respondent.

      Clerk of justices c-ouri in Brooklyn — appointment of— approval by common council — veto power of mayor.

    Chapter 337 of 1861 provides that “ the police justices and the justices of the peace, in the city of Brooklyn, shall each nominate, and with the-consent of the common council of the city of Brooklyn appoint, one clerk,” etc. The charter of the city requires every ordinance or resolution of the common council to he certified to the mayor, and approved hy him, or returned to the common council and passed hy a two-thirds vote.

      Held, that a resolution of the common council approving a nomination for clerk, made hy a police justice, was subject to this provision of the charter, and no - appointment to such office was valid until approved hy the mayor or passed hy a two-thirds vote of the common council over his veto.

      The provision of the charter requiring every resolution to be submitted to the mayor is not confined to resolutions of a legislative, as distinguished from those of an executive nature, but applies to every resolution of whatever character passed by the common council. Ackley’s Case (4 Abb., 35) disapproved.
    Appeal from an order denying a motion for a peremptory mandamus. This was an application to compel the respondent, as mayor of Brooklyn, to sign certain warrants issued by the comptroller of the city in payment of the relator’s salary as clerk of a Justice’s Court. The respondent, in his return, denied that the relator was ever appointed clerk of the court mentioned in the writ, on the ground that the resolution of the common council approving his nomination for the office made by the justice of the court had been vetoed by the mayor and not again passed by the common council.
    Chapter 337 of 1861 provides that “ the police justices and the justices of the peace in the city of Brooklyn shall each nominate, and with the consent of the common council of the city of Brooklyn appoint, one clerk for each of said courts, who shall hold his office during the pleasure of the justice so appointing him.” At the time of the passage of this act, and until 1873, the common council of the city of Brooklyn was constituted as follows: “ The legislative power of said corporation shall be vested in a mayor and board of aldermen, who, together, shall form the common council.” (Brooklyn charter of consolidation, passed in 1854.) It was also provided by the same act, and the provision is preserved in the amended charter of 1873, as follows: “ Every ordinance or resolution of the common council shall, before it takes effect, be presented, duly certified, to the mayor, and the approval of the minutes by the common council shall be conclusive evidence that the said ordinance or resolution has been so presented to the mayor. If he approves of A, he shall sign it; if not,he shall return it with his objections, and file it with the clerk within ten days after he received it.” (See Charter, 1854, chrp. 384, tit. 2, § 10; see Charter, 1873, chap. 863, § 10.) Section 2 of title 2 of the act of 1873 provides that “the common council shall consist of an alderman, to be elected from each ward having a population of 12,000 or less, provided that from each ward having a population exceeding 12,000 there shall be elected one alderman ior every 12,000 inhabitants or a moiety thereof; but until after the next census the board of alderman shall consist of thirty-six members to be apportioned and elected as follows.” It was claimed by the appellant that, under the amended charter, the approval of the mayor was no longer necessary to a confirmation by the common council, he having ceased to bo a constituent member of it, and that only resolutions of a legislative character were subject to his vete power.

      Jcwnes Troy, for the appellant.

      TFm. C. De Witt, for the respondent.
   Gilbert, J.:

The case of Cassidy v. City of Brooklyn (10 Abb. [N. S.], 297; S. C., 47 N. Y., 659) governs this case. It was there held that the concurrence of the mayor, in his capacity of mayor as well as in his other capacity of a constituent member of the common council, was requisite to a valid appointment. The revision of the charter, whereby the mayor has ceased to be a member of the common council, does not affect the principle decided in that case. That decision gave effect to the plain words of the statute, namely, that every resolution of the common council shall, before it takes effect, be presented duly certified to the mayor, and be approved by him or returned to the common council and again passed by a two-thirds vote. The reasoning in Aehley’s case (4 Abb., 35), so far as it went to restrict the operation of a similar provision of a statute relating to the city of New York, to resolutions of a legislative, as contradistinguished from those of an executive nature, must have been disapproved by the Court of Appeals. There is no such discrimination in the statute applicable to this case and we cannot interpolate one iilto it. On the contrary every resolution, of whatsoever nature, passed by the common council must bo presented to the mayor for his approval, and if disapproved by him must be again passed by a two-thirds vote. The provision was designed as a check upon hasty and ill-considered action of the common council. It constitutes a valuable safeguard of the people and should be upheld in full vigor, rather than frittered away by subtle and refined construction.

The order appealed from should be affirmed with costs and disbursements.

Barnard, P. J., and Dykman, J., concurred.

Order affirmed, with costs.


author: Gilbert, J.: Dykman, J.

text:
    EASTBURN HASTINGS and MARIA LOUISA HASTINGS, as Surviving Trustees, etc., of GEORGE HASTINGS, Deceased, Plaintiffs, v. WESTCHESTER FIRE INSURANCE COMPANY, Defendant.

      Policy of insurance — agreement to pay loss to mortgagee — condition for contribution— effect of, on rights of mortgagee.

    The ninth condition of a policy of insurance of $10,000 issued by the defendant to the owner of a house and lot, provided that “in case of any other insurance upon the property hereby insured * * * the assured shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon.” Subsequently the defendants, at the request of the plaintiffs, who held an over-due mortgage for $14,000 upon the premises insured, wrote upon the policy: “Loss, if any, payable to * * * (the plaintiffs) trustees and mortgagees,” and annexed a stipulation by which it was agreed “ that this insurance, as to the interest of the mortgagee only therein, shall not be invalidated by any act oi negleet of the mortgagor or owner of the property insured; * * * that whenever the company shall pay the mortgagee any sum for loss under this policy, and shall claim that, as to the mortgagor or owner, no liability therefor existed, said company shall at once be legally subrogated to all the rights of the . mortgagee * * * to the extent of such payment.” After the building had been destroyed by fire, it was discovered that the mortgagor had another insurance of $4,000 upon the premises payable to herself, of which the defendants were ignorant. In an action by the plaintiffs upon the policy the company claimed that they were only liable for ten-fourteenths of the loss.

      Held, that, the two policies covered separate and distinct interests, that of the owner and that of the mortgagee, and that it was not a case of double insur-’ anee; that the term “assured,” as used in the policy, only applied to the owner of the property, and not to the interest of the plaintiffs as mortgagees; ti.?t the terms of the conditional agreement made with the plaintiffs were directly repugnant to any interpretation which would bring them within the aforesaid ninth condition; that the plaintiffs were entitled to recover the full amount of the loss sustained. (Dykman, J., dissenting.)
    Controversy submitted without process, in pursuance of sections 1279, 1280 and 1281 of the Code of Civil Procedure.
    The plaintiffs were, on May 8, 1875, the owners of a bond and mortgage for $14,000, then past due. On that day the defendants issued to one Sarah C. Stout a policy of insurance upon the mortgaged premises for $10,000, “other insurance permitted.” The ninth condition of the policy was as follows:
    “ In case of any other insurance upon the property hereby insured, whether made prior or subsequent to the date of this policy, the assured shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon, whether such other insurance be by specific or by general or by floating policies.”
    On September 1, 1876, with the consent of said Sarah C. Stout, and at 'the request of the plaintiffs, the defendant indorsed upon said policy the following words:
    “ Loss, if any, payable to Maria L. and Eastburn Hastings, trustees and mortgagees,” and at the same time annexed to said policy the following clause known as the mortgage clause:
    “ It is hereby specially agreed that this insurance, as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy.
    “It is also provided and agreed that the mortgagee shall notify the company of any change of ownership or increase of hazard, not permitted by this policy to the mortgagor or owner, as soon as the same shall come to his or her knowledge; and shall, on reasonable demand, pay the additional charge for the same, according to the established scale of rates, for the time such increased hazard may be or shall have been assumed by this company during the continuance of this insurance.”
    “And it is further agreed that whenever the company shall pay the mortgagee any sum for loss under this policy, and shall claim that, as to the mortgagor or owner, no liability therefor existed, said company shall at once be legally subrogated to all the rights of the mortgagee under all the securities held as collateral to the mortgage debt to the extent of such payment, but such subrogation shall not impair the right of the mortgagee to recover the full amount of his claim, or at its option said company may pay to the mortgagee the whole principal due or to grow due on the mortgage with the interest then accrued, and shall, thereupon, receive a full assignment and transfer of the mortgage and all other securities held as collateral to the mortgage debt.
    “GEO. R. CRAWFORD,”
    “ Secretary.'”

    Thereafter defendant delivered said policy to the plaintiffs, who have since been and now are, the holders and owners of said policy.
    After a loss had occurred it appeared that the owner had, without the knowledge or consent of the defendant, procured another policy of insurance upon the building for $4,000, payable to herself. The defendants insisted that they were only liable for ten-fourteenths of the loss.

      L. H. Fowan, for the plaintiffs.

      G. Frost, for the defendant.

       Decided July term, 1877.

   Gilbert, J.:

We have little hesitation in determining the intention of the parties in making the contract between them. The plaintiffs sought, and the defendants intended to give them, an effective indemnity against the whole amount of the loss. The plaintiffs cannot be propely dealt with as assignees of Mrs. Stout the assured, merely. Such relation is incompatible with the facts of the transaction. The policy was issued to Mrs. Stout in May, 1875. The plaintiffs then held a mortgage on the premises insured for $14,000., which had been due for more than three years. On the first of September, 1876, the defendants, at the request of the plaintiffs, and with the consent of Mrs. Stout, wrote upon the policy these words: “ Loss, if any, payable to Maria L. and East-burn Hastings (tbe plaintiffs), trustees and mortgagees,” and at the same time annexed to said policy, a printed stipulation, known as the mortgage clause,” in the following words: “ It is hereby specially agreed, that this insurance, as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured nor by the occupation of the premises for purposes more hazardous than are permitted by this policy. It is also provided and agreed that the mortgagee shall notify the company of any change of ownership and increase of hazard not permitted by this policy to the mortgagor or owner, as soon as the same shall come to his or her knowledge, and shall, on reasonable demand, pay the additional charge for the same, according to the established scale of rates, for the time such increased hazard may be or shall have been assumed by this company, during the continuance of this insurance — and it is further agreed, that whenever the company shall pay the mortgagee any sum for loss under this policy, and shall claim that, as to the mortgagor or owner, no liability therefor existed, said company shall at once be legally subrogated to all the rights of the mortgagee under all the securities held as collateral to the mortgage debt, to the extent of such payment, but such subrogation shall not impair the right of the mortgagee to recover the full amount of his claim, or at its option said company may pay to the mortgagee the whole principal due or to grow due on the mortgage, with the interest then accrued, and shall thereupon receive a full assignment and transfer of the mortgage and all other securities, held as collateral to the mortgage debt.” The policy when thus altered was delivered to the plaintiffs.

The legal effect of the mortgage clause,” we think, clearly is to protect the plaintiffs against the application to them of the ninth condition in the policy, which provides that, in case of any other insurance upon the property insured, the assured shall be entitled to recover only a ratable proportion of the aggregate insurance. The defendant insured Mrs. Stout as owner, and the plaintiffs as mortgagees. This insurance embraces distinct and separate contracts. (Springfield, etc., Ins. Co. v. Allen, 43 N. Y., 392 ; Excelsior Ins. Co. v. Royal Ins. Co., 55 id., 343.)

The ninth condition of the policy is a limitation of the liability of tbe defendants to tbe assured, in Case of another insurance. That term “assured,” until the contract with the plaintiffs was made, designated Mrs. Stout only. Confining the term to the ninth condition, it cannot, we think, be reasonably held to include the plaintiffs, or to affect the contract made with them. Such condition, when applied only to Mrs. Stout, is just and equitable, because she is entitled to the benefit of both insurances — -that of the defendant indirectly and of the other one directly ; whereas an application of it to the plaintiffs would operate most unjustly, for the reason that their indemnity depends solely upon their contract with the defendant. The framer of that condition, no doubt, had in mind merely the case of a double insurance, and in such a case to substitute proportional abatement for contribution. Here the interests insured are distinct and different. The interest of Mrs. Stout is that of an owner of the property — of the plaintiffs, that of holders of a lien, by way of mortgage thereon. The subsequent insurance effected by Mrs. Stout was of her interest only, and did not cover the interest of the plaintiffs. But to make the condition applicable to any particular case, not only must the property that is the subject of the insurance be the same, but the interests must be identical. (Howard Ins. Co. v. Scribner, 5 Hill, 298.) A doubt of this decision on one point is expressed in 1 Phillips on Insurance (3d ed.), 208, but the same author declares that there is no doubt of the general doctrine, that when each of two parties, having distinct interests in a subject to its full value, insures upon it to its full value, independently of the other, it is not a case of double insurance. (Id., 209.) And in a recent case in England a construction was given to a condition in a policy, similar to the condition under consideration, where insurances had been obtained upon different interests in the same property. The master of the rolls said: “ The word property,’ as used in several of the conditions, means not the actual chattel but the interest of the assured therein. What is the meaning of the words ‘ covering the same property ’ in the ninth condition ? They cannot mean the actual chattel. The most absurd consequences would follow, if you read those words in that sense. I am satisfied that this condition was put in to apply to cases where it is the same property that is the subject-matter of the insurance and the interests are the same. It never could have been meant to apply, for example, to the cases of a tenant for life and remainder-man, or a first mortgagee and a second mortgagee, both insuring the same goods. You must read the condition in a sensible way, and not assume that these great companies intended to entrap their policyholders, and to destroy the value of the contract of indemnity.” The same construction was adopted by the appellate court, and we unhesitatingly concur therein. (North British and Merc. Ins. Co. v. London, Liv. and Globe Ins. Co., L. R., 5 Ch., 569.) Moreover, the insertion of the provision in the “ mortgage clause,” for the subrogation of the defendant to the rights of the plaintiffs, in case of a payment to them of any sum in excess of its liability to Mrs. Stout, is a very palpable indication of the intention of the parties that the ninth condition of the policy should not be applicable to the plaintiffs, but that the defendant should rely for protection, against such an act as that of Mrs. Stout in procuring another insurance, upon such subrogation, for it cannot be supposed that the parties intended by that provision to furnish a protection to the defendant against loss, by reason of a payment to the plaintiffs, for which it was not liable. Such a provision, therefore, is a recognition of a contingency whereby a liability to the plaintiffs upon the contract with them might arise exceeding that upon the piolicy to Mrs. Stout. The reservation of the right of subrogation is general. It is applicable alike to every case when, for any cause, a payment has been made to the plaintiffs in discharge of the defendant’s liability to them, and such payment exceeds the liability of the defendant to Mrs. Stout. Such right of subrogation, therefore, will belong to the defendant in the present case whenever it shall have discharged its liability to the plaintiff, and inasmuch as that right would not exist if the plaintiffs were affected by the ninth condition, the operation of that condition must necessarily be restricted to Mrs. Stout alone. Furthermore, we thinlc the language of the “ mortgage clause ” is directly repugnant to an interpretation which would bring the plaintiffs within said ninth condition. By the “mortgage clause” it was “specially agreed that this insurance, as to the interest of the mortgagees therein, should not be invalidated by any act of the mortgagor or owner of the property insured.” The procuring of another insurance was the sole act of Mrs. Stout, the mortgagor and owner. To subject the plaintiffs to an abatement of the amount of their indemnity, in consequence of that act, would invalidate the insurance as to their interest pro tanto. That clearly would be in direct contravention of the “ mortgage clause.”

By the very words of the policy, the plaintiffs became entitled to' be paid at the end of sixty days after due notice and proof of the loss.

The plaintiffs must have judgment for the whole amount of the loss, with interest from January 14, 1877.

Barnard, P. J., concurred.

Dykman, J.

(dissenting).

The plaintiffs in this action held a bond and mortgage made by Sarah C. Stout and her husband for $14,000, and upon the buildings on the premises covered thereby she procured a policy of insurance against fire from the defendant for $10,000. In this, with her assent, and at the request of the plaintiffs, the defendant inserted the following clause: Loss, if any, payable to María L. and Eastburn Hastings, trustees and mortgagees.” The policy also contains these clauses: Other insurance permitted,” and It is hereby specially agreed that this insurance as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy.

The policy also contained the following condition: In ease of any other insurance upon the property hereby insured,- whether made prior or subsequent to the date of this policy, the assured shall be entitled to recover of this company no greater proportion of the loss sustained, than the sum hereby insured bears to the whole amount insured thereon, whether such other insurance be by specific or by general or by floating policies.” This policy was delivered to the plaintiffs, but before this, Sarah 0. Stout had obtained another policy of insurance against fixe upon the same buildings for $4,000, from the Lycoming Insurance Company. The buildings have been destroyed by fire, and the loss has been adjusted at $9,832,52, of which the Lycoming Company has paid to the assux*ed four-fourteenths, and the defendant has tendered to the plaintiffs and offered to pay them ten-fourteenths of the same, which they have refused.

There has been no litigation, but the case is agreed upon and submitted to the General Term for decision, and the points in dispute, to be decided, are as follows:

First. The whole loss having been adjusted at $9,832.52, is the defendant bound to pay the plaintiffs, as principal, the whole amount of the loss as so adjusted or only ten-fourteenths of it ?'

Second. Is the defendant to pay interest on the amount due the plaintiffs, after sixty days from the proof of loss furnished, or sixty days from the time of the adjustment ?

In relation to the first question the condition in the policy is plain and explicit, that in case of other insurance the assured shall recover of the defendant only the proportion of the loss which the sum insured bears to the whole amount of insurance, and if this were the only provision bearing on the subject, all would be plain, but embarrassment arises from the provision in the mortgage clause, that the interest of the mortgagee shall not be invalidated by any act or neglect of the owner of the property.

This clause was invented and introduced to avoid the effect of the decision of the Court of Appeals, in the case of Grosvenor v. The Atlantic Fire Insurance Company (17 N. Y., 391), where it was held, that the mortgagee could not recover upon a policy similar to this, where there had been a breach of the conditions of the policy by the mortgagor, and hence the words used are that the interest of the mortgagee shall not be invalidated by any act or neglect of the owner. That was all the office that clause was expected to perform, and it never was intended by its inventors to have any influence at all upon the question of contribution to a loss by different companies, and it would be a very strained construction to gi ve the language used any such signification. On the contrary, it ought not to have any influence at all upon the condition in the policy, which provides for contribution, and in this ease that clause should have its full force. Both contracts of insurance were with the mortgagor, and it was his interest that was insured by both. In the one case, if he sustain any loss, it is payable to the plaintiffs, and in the other, it is payable to himself, but in both cases the loss is his. His buildings are destroyed or damaged, and he incurs the loss, but the amount to be paid for such loss by the defendant has been in. legal effect assigned to the plaintiffs, and hence they must receive it as the appointees or assignees of the mortgagor, instead of him. Now as they can only take the amount, which but for the assignment, would go to him, how can they get more than he would get in that case ?

If the assignment of the policy had not been made to the plaintiffs, there would be no contention that the assured could recover of both companies any more than the amount of his loss, and as the plaintiffs can only get what they would have received under the defendant’s policy, it seems to follow that the defendant can only be called upon for its proportion of the loss.

The reason of this theory is certainly in favor of this position, and the principle contended for by the plaintiffs would be at war with all the rules governing the contract of insurance, which is one of indemnity only. If the plaintiffs can now recover the full amount of the policy assigned to them, then the assured will be benefited beyond his loss, and if there had been two mortgages for $10,000 each on his property, and he had procured two policies of insurance for $10,000 each, loss, if any, payable to the respective mortgagees and delivered them, and then taken the $4,000 policy for himself, as he did, the full amount of the two policies so assigned would both have been collected on the same principle, and the assured would then have received a benefit in more than double the amount of her actual loss.

This contract of insurance, being only for indemnity, should receive no such construction. It would be out of harmony with all settled action, and against good sense and right reason. Although no act or neglect of the owner can invalidate the interest of the mortgagee, yet the owner must sustain a loss or damage by fire before the mortgagee can recover, and certainly the recovery must be graduated by the amount of his loss, and must be controlled by the same considerations which would prevail if the action was in the name of the assured, except that it cannot be defeated by any act or neglect of his. This is the only limitation. In all other respects the mortgagee must recover, as the assured, would have recovered if the action had been in his name.

Upon the question of interest, the governing provision in the policy is that the amount of loss or damage must be estimated according to the actual cash value of the property at the time of the loss, and be paid sixty days after due notice and proof of the same are received at the office of the company. The amount of the loss is thus made payable in sixty days after the jxroofs of loss are furnished, and it follows if the same be not then paid, it must draw interest from that time.

Judgment for plaintiffs upon submitted facts, for whole amount of loss and for interest from January 14,1877.


author: Gilbert, J.: Dtkman, J.:

text:
    CHARLES W. EMANS, as Executor, etc., of JAMES E. PURDY, Deceased, Appellant, v. MARTHA HICKMAN and EBEN PURDY, Respondents.

      Will — construction of — funeral expenses and monument— amount of.

    The plaintiff brought this action to obtain a construction of the following clause in his testator’s will: “ To my executor all money in my possession, all money due from any source or sources whatever, and all property of every kind ot description held by me for my funeral expenses and the erection of a monument to my memory in the Purdy yard, in Phillipstown, Putnam county.” The estate amounted to $1,200. The court decided that the testator did not intend to expend all his estate for funeral expenses and the erection of a monument to his memory, but only so much as would be suitable to his condition of life; fixed this amount at $150 and directed that the balance should be distributed among the heirs at law of said testator as in cases of intestacy. Held, that the judgment was correct and should be affirmed.
    Appeal from a judgment entered upon the trial of this action by the court without a jury..
    The action was brought to obtain a construction of the will of the plaintiff’s testator. The court found:
    That James Purdy died April 10, 1876, leaving a last will and testament which has been duly proved and admitted to probate by the surrogate of Dutchess county, and that the plaintiff is the sole executor thereof and that the defendants are the heirs at law of said testator.

      That the only disposition which the said testator made in said will of his estate was as follows: “ To my executor all money in my possession, all money due from any source or sources whatever and all jjroperty of every kind and description held by me for my funeral expenses and the erection of a monument to my memory in the Purdy yard, in Pliillipstown, Putnam county.”
    That the estate of the said testator amounted to about $1,200.
    And as conclusions of law:
    That said testator did not intend to expend all of his estate for funeral expenses and the erection of a monument to his memory.
    That said testator intended only as much of said estate to be expended for funeral expenses and the erection of a monument to his memory as would be suitable to his condition of life, and that the balance of said estate should go to his heirs at law.
    That the sum of $150 was a sufficient sum to be expended for said monument, and that sum was fixed as the limit thereof.
    That, after the expenditure of such sum for said monument and the payment of reasonable funeral exjienses, the balance of said estate, after the payment of expenses and commissions, belonged and was to be distributed among the heirs at law of said testator as in cases of intestacy.

      Eaolcett dh Williams, for the appellant.

      J. Ea/rvey Goolc, for the respondents.
   Gilbert, J.:

The testator gave all his property of every kind and description to his executor, for a puiqpose plainly expressed, and which the executor is bound to carry out, namely, for his funeral expenses and the erection of a monument to his memory. The will contains no direction to the executor to expend the whole of his estate for those purposes, nor does it contain any limitation of the discretion vested in the executor on that subject. In most wills that are made a similar discretion is vested in executors. The amount which an executor may expend for the purposes expressed in this will, depends upon the question, what would be a reasonable allowance in his administration account under the circumstances ? What is reasonable in a particular case, will depend on the age, standing, property and habits of life of the deceased and many other circumstances difficult to enumerate. Tombstones form a part of funeral expenses. (Wood v. Vandenburgh, 6 Paige, 277; Fairman’s Appeal, 30 Conn., 205.) But, in Springsteen v. Samson (32 N. Y., 703-714) administrators had been allowed $285 fora monument, and the Court of Appeals modified the decree by striking out such allowance. That decision, however, does not apply to this case because the will expressly directs some expenditure to be made for a monument.

No doubt it was competent for the testator to direct that the' whole estate should be spent for his funeral expenses and a monument. The question is whether the will manifests that intention. The language of the will is no more indicative of an intent that his executor should expend any particular sum for those purposes, than similar language in other wills, where the rule limiting such expenditures, which has been mentioned, was applied. The testator will be presumed to have understood the rule of law regulating the powers and duties of executors on this subject, and as ho expressed no wish that his executor should depart from that rule, it should be applied to him. Where no bounds to the discretion of a trustee or executor, in a case like this, have been declared, the court may fix a limitation in accordance with justice. The limitation imposed in this case may seem an arbitrary one, but as it is not shown that any creditor of the testator will be injured by the decree, and the heirs of the testator, all of whom are parties to the action, assent to it, we think it ought to be affirmed with costs to the respective parties to be paid out of the fund.

Dtkman, J.:

This is an action for the construction of a will. The only disposition made by the testator of his property is contained in the following clause: “ To my executors all money in my possession, all money due from any source or sources whatever, and all property of every kind or description held by me for my funeral expenses and the erection of a monument to my memory in the Purdy yard, in Phillipstown, Putnam county.”

The testator left an estate of about $1,200, and the question is, whether he intended to have it all expended in funeral expenses and in erecting a monument to his memory. We do not think ho did. We do not think the testator aspired to such a funeral'or such a monument. He was a man in the plain walks of life and wanted to provide for a decent burial and a suitable monument in a favorite church yard. This is the construction which this will ought to receive in the light of all surrounding circumstances, and gives the true intent of the testator.

This does not make a new will, as the appellant has it. but determines the moaning and intention of the will made by the testator. It is in favor of this construction that it makes a wise disposition of the property, and does not convict the testator of the absolute folly of a ridiculous expenditure for his funeral and monument.

The judgment must be affirmed and the costs of the appeal must be paid by the appellant personally.

Barnard, P. J., not sitting.

Judgment affirmed, with costs, to be paid by executor personally.


text:
    GEORGIANA NICHOLS, Respondent, v. WILLIAM B. NICHOLS, Appellant

      Action pending in another State and in this State for sa/me cause — when stay of proceedings in one action will he granted.

    A wife, in 1866, commenced an action in this State for a separation on the ground of cruel and inhuman treatment, and procured an order directing the payment of $500 for counsel fees, $350 a month for alimony and a gross sum of $1,000. In June, 1876, she commenced an action in Connecticut for the same cause, for an absolute divorce, as allowed by the laws of that State and a referee reported to the court in her favor, but no judgment was entered thereon. The plaintiff then procured an order in the action in this State requiring the defendant to pay the alimony and expenses awarded by the order of 1866, she having received but half the counsel fee and alimony for two months only. Held, that the order granting alimony, etc., should be vacated and all proceedings in the action in this State stayed until the Connecticut suit sbcaid be abandoned.

      Appeal by defendant from an order denying a motion to vacate an order requiring the defendant to pay to the plaintiff certain alimony and allowances, in pursuance of an order heretofore made

      Daniel T. Walden, for the appellant.

      F. A. Ward, for the respondent.
   Barnard, P. J.:

The plaintiff, in January, 1866, commenced an action to obtain 0 limited divorce from her husband in the City Court of Brooklyn upon charges of cruel and inhuman treatment by him to her. In March of that year the City Court made an order granting $500 counsel fee to plaintiff, $250 monthly for alimony and a gross sum of $1,000 to plaintiff to be paid within thirty days. The $1,00? has not been paid; only one-half of the counsel fee and only $500 for alimony, being for two months, have been paid.

In June, 1876, the plaintiff, who had then become a resident of the State of Connecticut, commenced her action in that State for the same cause, but asking for an absolute divorce which the laws of Connecticut give for cruel and inhuman treatment of a wife by a husband.

This action has been tried before a committee appointed under the laws of that State, who has made a report in favor of the plaintiff, finding the charges of cruel treatment proven and finding that the plaintiff is the proper person to have the care and custody of the children. No judgment has been entered upon this report as yet.

The plaintiff now seeks to collect the alimony and expenses awarded her under the City Court order. The defendant made a motion to vacate the order and to stay all proceedings in the City Court, unless the plaintiff discontinued the Connecticut action. The court denied the stay, allowed the money which became due under the order before June, 1876, to be collected at once, but stayed the operation of the order after June, 1876, with leave to plaintiff to move to enforce the payment should the circumstances of the case warrant the application.

I think the court erred in not vacating the order for alimony, costs and the gross sum remaining unpaid. The order for alimony was an incident to the relief sought by the suit in the City Court. She has virtually abandoned that action and tried her cause in another tribunal. The relief she will be entitled to, if she succeeds, will' be greater than that allowed by our laws, and the- court of Connecticut may grant the wife, by the decree, one-third of defendant’s estate. While it is decided that only definitive judgments of another State bar proceedings for the same cause in this State, yet, upon an application to the discretion of the court based upon facts which show that possible injustice may operate therefrom, such court ought to stay or vacate an order until such time as it may be seen that no injustice can happen. If the same facts existed in this State and the plaintiff had commenced a suit in one county and obtained an order for alimony, and then had commenced and tried before a referee another action for the same cause in another county, I think it is clear that the court would vacate the order in the first suit unless the second was abandoned. The equity is the same in the present case, though inter-state law permits both actions.

The plaintiff should resort to one court or the other. She should not collect alimony and counsel fee in the City Court upon an application for a limited divorce, and at the same time obtain an absolute divorce on the same facts in Connecticut with possibly one-third of defendant’s estate awarded to her for her past and future support and maintenance.

I think the order should be reversed and an order granted staying proceedings on the order until the Connecticut suit is abandoned by the plaintiff. No costs to be allowed on this appeal.

Dykman, J., concurred; Gilbert, J., dissented.

Order reversed, without costs.