author: Finch, J.

text:
    Sarah M. Mygatt et al., as Surviving Trustees, etc., App’lts, v. George S. Coe, Resp’t.

      {Court of Appeals,

      Filed April 10, 1894.)

    1. Covenants—Warranty.
    ■ One in possession oí land merely, without other actual title, has an estate in the land which he may transfer to a grantee, and which is sufficient to carry with it his covenant of warranty down the line oí succession.

      2. Same-Mortgagee and grantee.
    Such covenant runs both to mortgagee and grantee of mortgagor in proportion to tlxeir respective rights and is divisible accordingly.
    3. Same—Mortgage sale.
    Upon a foreclosure of such mortgage, the purchaser on the sale becomes alone entitled to sue upon such covenant. Between him and the covenantor there exists a privity of estate.
    Appeal from, judgment of the general term of the supreme court in the first judicial department, entered upon an order made October 17, 1892, which affirmed a judgment in favor of defendant entered upon an order dismissing the complaint on trial at circuit.
    This action was brought to recover damages for alleged breach of covenants of quiet enjoyment and warranty in a deed, executed by defendant and his wife.
    It appeared that on July 15, 1858, Ebenezer L. Roberts and wife executed and delivered to Almira S. Coe, defendant’s wife, a deed, which purported to convey “ to her sole and separate use, and with the like effect as if she were unmarried,” certain premises, into the occupancy of which the grantee then entered and continued until she conveyed the same, on April 12, 1867, to Haney Fisher, by a deed in which defendant, her husband, joined, and in which, after acknowledging the receipt of the purchase money by the grantor, they jointly made covenants to and with the said grantee, her heirs and assigns, of seizin, right to convey, against incumbrances, of quiet enjoyment, further assurance and warranty, the covenant of seizin being in these words :
    “And the said parties of the first part, for themselves and their heirs, executors and administrators, do hereby covenant, grant and agree to and with the said party of the second part, her heirs and assigns, that the said Almira S. Coe, at the time of the sealing and delivering of these presents, is lawfully seized in her own right of a good, absolute and indefeasible estate of inheritance, in fee simple, of and in all and singular the above granted, bargained and described premises, with the appurtenances, free from all incumbrances, and hath good right, full power and lawful authority to grant, bargain, sell and convey the same, in manner and form aforesaid.”
    In December, 1869, Haney Fisher mortgaged said premises to the plaintiffs herein as trustees of Sarah M. Mygatt, and in 1871 conveyed the property to one Fuller, who in 1874 conveyed it to one Leavitt. In Hovember, 1878, the true owners of the premises in an action of ejectment evicted Mrs. Leavitt and went into possession. In December, 1878, a suit for the foreclosure of the mortgage to plaintiffs was brought, and on the sale therein the mortgagees became the purchasers, and being unable to obtain possession brought this action. Almira S. Coe died on January 3, 1884, before this action was commenced.

      Edward, W. Grout, for app’lts ; WhH. Cogswell, for resp’t

       Reversing 49 St. Rep., 781.

   Finch, J.

It is our duty to follow and abide by the decision of the second division of this court made in the case at bar when it was before them on appeal, so far as the facts found and the questions determined are identical. Williamsburgh Savings Bank v. Town of Solon, 136 N. Y. 465 ; 49 St. Rep. 840 ; Cluff v. Day, 141 N. Y. 580. Reserving freedom of thought and action when the case becomes a precedent only, we must here and now, in the same action between the same parties, accept without criticism what has been decided. It is claimed, however, that upon- the last trial new evidence and new findings have totally changed the situation, and introduced questions not previously considered or decided, and that the plaintiffs may now succeed without in the least impugning or contradicting the prior determination. It is to such inquiry that our attention should be principally directed, ■and it may usefully be preceded by an examination of the points which must be deemed to have been involved in the prior decision.

Our brethren of the second division disagreed among themselves, Mygatt v. Coe, 124 N. Y. 212; 35 St. Rep. 289, as was not strange in view of the fact that the' question brought to their judgment a judicial quarrel almost as venerable as the common law itself, and open yet to vigorous dispute. Rawle on Covenants for Title [5th ed.], § 203, note 2. The majority of the court held; that privity of estate is essential to carry covenants of warranty to subsequent grantees so as to support a right of action by them against the original covenantor whenever evicted by a title paramount to his; that a covenant of warranty made by one having neither title nor possession, and so no estate in the land, will not run with it into the hands of subsequent grantees, but will stop where the priority of contract ends, and so at the first or original covenantee; and that the covenant of Coe, the husband, upon which this action is founded, was that of a stranger to the title, an independent and collateral warrantor, having and transferring no estate in the land, and so in no sense or degree a privy in estate with the subsequent grantees. The point of the decision is emphasized and made clear by the dissent of the minority. They advocated the doctrine that privity of estate is not always essential to carry the covenant down the line of successive grantees, and that one who conveyed nothing but covenanted much, like the prior of the convent who promised perpetual song to the manor chapel, might find his covenant attached to the land and running with it into the hands and for the benefit of successive owners; but while holding and defending this doctrine, Judge Bradley, who wrote the dissenting opinion, did not press the point, or rely upon it as the ground of ultimate decision, but insisted that Coe, the covenantor, was not a stranger to the title because he joined with his wife as a grantor, and assumed to unite with her in transferring to Mrs. Fisher the estate which actually passed. The precise point of disagreement was thus over the attitude and and position of the husband in making the conveyance; and the decisive question became whether he did or did not transfer an estate, some estate, to which his covenant could attach, and run with it down the line of transfer. The facts which dictated the conclusion of the majority are carefully stated in the opinion of Judge Follett, who expressed their views. He adverted to the circumstance that the deed from Coe and his wife was not spread upon the record, and might contain something not fully or accurately described in the findings. These, however, showed that the land was conveyed to Mrs. Coe by a deed from an assumed owner running to her severally and in her own individual right; and that, while her husband did join with her in the conveyance to Mi’S. Fisher, their convenant of seizin was—not that he was seized or that they were seized—but that he was seized of a full estate in the land. While the joint grant indicated title in the two and some estate in each, as the minority claimed, the form of the joint covenant asserted seizin in the wife alone, which the majority took for the truth. To such last inference the prevailing opinion awarded a predominant force for several expressed reasons. One was that the proof and the findings failed to show any possession in Coe beyond a mere occupancy by the sufferance of his wife, or any transfer of possession by him to Mrs. Fisher. The words of the opinion are these: “ The defendant having no estate, title or interest in or possession of the land conveyed, there could be no privity of estate between him and Nancy Fisher.” And second reason was that it did not appear that Coe received any part of the consideration paid by the grantee. The language of the opinion in this respect is: “ And it was conceded on the argument in this court that it does not appear whether the defendant received the whole or any part of the consideration of the deed.” It is thus obvious that the inference of neither title nor possession in Coe, the husband drawn from the form of the Covenant of seizin, was allowed to prevail because no other fact in the record necessarily contradicted it.

But now three such facts make their appearance in the findings, and force from us a different inference. Befering to the deed from Coe and his wife to Mrs. Fisher, the tenth finding of fact is as follows : “ That when the said conveyance was so made and delivered the defendant was in possession of the said real property, consisting of a plot of land with a dwelling house thereon, being there domiciled and residing with his family and the eleventh finding is: “ That upon the execution and delivery of the said premises, and surrendered the same to the said grantee, who thereupon went into possession of the same.” We do not and cannot know upon what proof or upon what facts these findings were based, for none of the evidence given is contained in the record. We are obliged to assume that sufficient and competent proof produced them, and that they are in all respects strictly true. Nor can we narrow or modify them by recurring to the form of the convenant and of the deed running to Mrs. Coe alone. At best these only raised certain presumptions existing from the absence of any contrary facts. Coe’s covenant that his wife was seized, justified the presumption that he had no possession, and the maxim that possession follows the deed is expressive only of the presumption which the law raises when there is no proof of the actual facts. Frantz v. Ireland, 66 Barb. 389. But these presumptions give way before the proven truth. They fall when the facts themselves are shown, and we cannot indulge a presumption that Coewas not in possession in the face of a finding that he was, or that he did not transfer the possession to Mrs. Fisher, when the explicit finding is that he did. I tried for a time in my reflections to think that the learned trial judge may have used the word “possession” in the 'improper but harmless sense of occupation, but swiftly saw that I had no warrant to change his words, and that there could be no doubt that he used them carefully, and in their full legal significance; for the circumstances strongly point to that as the truth. The case had been before the Second Division. Both opinions pointed out the valid importance of the inquiry whether Coe had possession or transferred it to Mrs. Fisher, and the action was re-tried and the present findings made in the full light of those opinions. It is not conceivable, under such circumstances, that the learned trial judge carelessly or inaccurately found as a fact that Coe was ip possession,. or failed to appreciate the full force of the finding. And that is made more obvious by the fact that in the second finding the wife is said to have entered into the “occupancy” of said premises and continued “in such occupancy” until her conveyance. When the learned trial judge, with his attention fully drawn to the significance of his words, has found that the husband was in possession and the wife an occupant merely, by what right shall I or any of us reverse his finding into one that the wife was in possession and the husband only an occupant ? We are bound by the finding and must give it the full and lawful" force which belongs to it. If on a third trial the fact is found the other way, and should compel a different decision at our hands, it will not be the first time that contradictory findings of fact have enabled ignorance, supposing itself to be wisdom, to charge upon us a seeming inconsistency ; but the circumstance will not alter our duty in the least.

A second fact now appears, the absence of which was noted in-the prior decision. The answer of the defendant alleges that no consideration was paid to or received by him for “uniting with his wife” in the deed to Mrs. Fisher. But he did not prove that allegation on the trial, for there is no finding of that fact, and not even a request to find it. On the contrary, the deed which he executed is now transcribed in the findings, and it contains the explicit admission that the consideration of eighteen thousand five hundred dollars was “to them in hand paid,” that is, to the two parties, to the husband and wife both.

At this stage of the case the facts stood thus : That at the date of the conveyance to Mrs. Fisher neither Ooe nor his wife had a valid title to the land; that he was in possession and his wife occupied the premises with him ; that she had color of title but he not even that; that the two assumed as joint grantors to con'vey the land to Mrs. Fisher ; that Coe delivered the possession to her, which was the only estate which either grantor had or which they could convey, and that Coe shared in the purchase money paid for the grant. On that state of facts I do not see how it is possible to say that Coe was a stranger to the title, or transferred no estate to which his covenant of warranty could attach.

But before pausing upon that proposition I should bring into the discussion the third new fact •which makes its appearance for the first time. That is, that in and by the deed, Coe explicitly, and in terms, covenanted not only with Mrs. Fisher, but with her “heirs and assigns.” In other words; he meant and intended his covenant to protect not only her, but also those who should come after her by succession to the ownership of the same land. The significance of those words will better appear if we refer back to the early history of these covenants. Originally, the common law did not permit the assignment of things in action, and it followed that a. covenant, regarded from the direction of a contract, could not pass beyond the covenantee. But the old warranty seems to have been viewed rather as an incident of, and as belonging to the estate coveyed, and so attached to that estate as to go with it when transmitted. It could not pass to assigns as an independent contract, but by its connection with an estate in land, became transmissible with it. Out of that peculiarity sprang the necessity of privity of estate to enable the subsequent assignee to vouch, or call on his predecessor for protection; but it was an element of the doctrine that neither the heir nor the the assign of the grantee could take advantage of the warranty unless expressly named. Bawle, § 203. As was said, if one “warrant land to a man and his heirs without naming, assigns, his assignee shall not vouch.” Co. Litt. 384 b. That rule was not applied when the warrantor, instead of substituting other lands, became bound only to respond in damages; but while the necessity has disappeared, the actual use of the words continues to indicate the purpose and intent of the warrantor that his covenant shall not stop with the covenantee, but operate for the benefit of his grantees; and though the use of the words, possibly, may not dispense with some privity of estate, they show that the warrantor regarded himself as making and intending to make a covenant running with the land, and that in holding him to that responsibility we do not put upon him a liability which he did not ■contemplate. The force belonging to such words is indicated in many recent cases, Nye v. Hoyle, 120 N. Y. 203 ; 30 St. Rep. 571; Coleman v. Bresnahan, 54 Hun, 622 ; 28 St. Rep, 208; Hart v. Lyon, 90 N. Y. 663 ; and while they are more important and bear more heavily upon the theory that a covenantor having no estate, may by his own special and intended contract, attach his covenant of warranty to the estate of another so as to run with that estate, yet they ai’e entitled to weight and consideration also upon the narrower inquiry whether the defendant here is or is not to be deemed an entire stranger to the title, and they yield an inference which balances somewhat that drawn from the covenant of seizin.

And thus it is apparent that the facts in the present record differ in material and essential respects from those presented on the previous appeal. It is certainly the law of this state that one ■in possession of land merely, without other actual title, has an estate in the land which he may transfer to a grantee, and which is sufficient to carry with it his covenant of warranty down the line of succession. That was explicitly held in Beddoe’s Ex'r v. Wadsworth, 21 Wend. 124, and I have found no case in this state to-the contrary, and no reason to doubt the soundness of the doctrine. We have here then a situation in which the defendant was in possession of land and so had an estate in it; where he assumed to transfer it as grantor by deed ; where he transferred in his possession to the grantee; where he received in exchange some part or the whole-of the consideration of the grant; where his wife, who joined in the deed, had no better title than his, whatever he may have-thought about it; where he meant and intended that his warranty should run to assigns and expressed that intention on the face of his covenant. It is impossible, on such a state of facts, to deem him a stranger to the title and merely an independent covenantor. We must hold that he had and transferred an estate to which his covenant of warranty could and did attach, and in so holding we contravene nothing which was decided on the previous appeal.

Mrs. Fisher, in December of 1869, mortgaged the premises conveyed to her by Coe and wife to the trustees of Sarah M. Mygatt, and in 1871 conveyed the property to Fuller, who in turn conveyed it to Clara B. Leavitt by deed dated in 1874. In November of 1878 the true owners, in an action of ejectment; evicted Mrs. Leavitt and went into possession. In the following December suit was brought ón the Mygatt mortgage for a foreclosure, and orí the sale in 1879 the mortgagees became purchasers and received the referee’s deed. Since the covenants ran with the land, and those of them which were prospective were not broken and turned into mere rights of action until after the delivery of the mortgage to the Mygatt trustees, and the deed of the equity of redemption to Fuller and Mrs. Leavitt, it becomes necessary to determine to whom the covenants ran'as between the mortgagees on the one hand and the grantees of the mortgagor on the other. That has been sometimes a difficult and troublesome question, and logically is so yet, although I deem it substantially settled. Under the old system which regarded the mortgage as transferring to the mortgagee the entire legal estate, leaving in the mortgagor only an equity which courts of law could not recognize, it was necessary to say and was said that the covenants running with the land followed the legal estate into the hands of the mortgagee where it remained entire and complete, and the grantees of the equity having no legal estate could have no right to the covenants which already belonged to another. It was so held in Mayor of Carlisle v. Blamire, 8 East, 487, but the injustice of the doctrine drew upon the ingenuity of equity to supply a remedy, and where the grantee holding covenants had executed a mortgage, and thereafter having been evicted from the premises by a paramount title, his grantor and covenantor settled with the mortgagee by paying the mortgage in full discharge of the covenants and so assuming to cancel them, the grantee was allowed by a decree in equity to sue the covenantor at law, and the latter was restrained from setting up as a defense in any matter the deed or deeds of mortgage which had diverted the covenants from the main line of succession. Thornton v. Court, 3 De Gex, M. & G. 293. By this circuitous route the just result was reached of dividing the benefit of the covenants between mortgagee and owner of the equity of redemption according to their respective rights, and the same just distribution is effected under our system by a different process. We regard the mortgagor as retaining the legal estate and -the mortgagee as having a lien upon it for his security. The covenants, therefore, run to both mortgagee and grantee of mortgagor in proportion to their respective rights, and the covenant is divisible accordingly. A very clear exposition of this doctrine will - be found in White v. Whitney, 5 Met. 87, and it has been asserted in this state in Town v. Needham, 3 Paige, 546, and Andrews v. Wolcott, 16 Barb. 25. By the foreclosure of the mortgage the purchasers at the sale have become alone entitled to sue upon the prospective covenants contained in the deed given by Coe, and on the facts now before us can successfully maintain the action upon the ground that there does exist between them and the covenantor a privity of estate.

Whether, without that, the covenantor would still be bound upon the theory that by his contract he consciously and intentionally attached his covenants to the land of his wife, and privity of estate with the original covenantee alone is sufficient, it is not necessary at present to decide.

The judgment should be reversed and a new trial granted, costs to abide the event

J udgment reversed.

All concur.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    Samuel H Randall, Resp’t, v. George W. Packard, App’lt. Same, Resp’t, v. Same, Appl’t.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Attorney and client—Services—Value.
    The result of a lawyer’s services is a proper and important element in, determining their value.
    2. Appeal—Reversal.
    An exception to the remark of the trial judge which, however erroneous if standing by itself, is so coupled with other observations as to modify it and give the correct rule, will not justify a reversal of the judgment.
    3. Same—Not review able.
    A decision of the special term, supported by sufficient evidence, if affirmed by the general term, is not re viewable in the court of appeals.
    Appeal from judgment of general term of the court of common pleas for the city and county of New York, entered upon an order made November 7, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.

      Appeal also from, order of same court, made November 7, 1892, which affirmed an order of special term denying a motion for a new trial made after judgment.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      Wheeler H. Peclcham, for app’lt; Samuel E. Randall, resp’t, in person.

       Affirming 48 St. Rep., 778, 789.

   Gray, J.

This action was brought to recover the sum of .$23,000; as a balance claimed to be due to the plaintiff for professional services rendered to the defendant, in the capacity of his attorney at law. The answer admitted the employment of the plaintiff; but denied that his services were worth more than the ■sum of §2,000, which,had been paid to him. Upon the trial the nature of the services rendered was testified to. It appears that the plaintiff had subscribed the sum of $125,000 to the capital stock of the Perry Stove Company, a corporation organized in Albany, N. Y., and, in part payment of his subscription, had transferred to the company certain foundry property, at a valuation of $45,000, and had given to it his promissory note for $10,000, which was held by a bank under discount. He was being pressed for the payment of the balance of his subscription and, becoming dissatisfied with the project, was desirous of being relieved of his agreement and "of getting out of the matter entirely. To accomplish his release, he employed the plaintiff as his attorney and, negotiations for an amicable settlement failing, the latter commenced an action, in equity, for his client, to set aside the subscription, aud to compel a re-conveyance of the foundry property and the return of the note. The complaint was based npon charges of fraud and deceit in procuring the defendant to join in the corporate enterprise. Answers were made to the complaint, putting its allegations in issue; but, before the cause came on for trial, a compromise was effected between the parties. It is fair to infer from the evidence that it was made because of the delay which would ensue in organization and of the cloud which would or might be cast over the enterprise. The interests of the company were deemed better sub-served by a settlement, than by a protracted litgation, As the result of the compromise, this defendant received back from the company his foundry property and his note; he subscribed the sum of $5,000 to the same corporate enterprise,, but with a capitalization of $300,000, instead of $500,000; and the equity action he had instituted and the action at law against him to compel the payment of the balance of his subscription were discontinued. The plaintiff’s own evidence as to the promise of the defendant to pay him $25,000, in the event of a successful result, was flatly contradicted by the defendant and the evidence ■of lawyers examined by him upon the question of the value of the services, he had testified to performing for the defendant, was as flatly contradicted by that of lawyers examined in behalf of the defendant. As to the parties litigant, the question of an agreement to pay the sum of $25,000, or any fixed sum, depended upon the credibility to be attached to their several statements; while the question of the value of the plaintiff’s services, under the circumstances detailed, was apparently not much helped in its .solution by the irreconcilable evidence of the expert witnesses. The jury, after being charged by the trial judge, rendered a verdict of $10,000 for the plaintiff; being less than half of the plaintiff’s -claim. Whatever our opinion might still be as to the amount awarded by the jury, upon the evidence before them, we are concluded from any expression by their verdict and, if there was no error committed upon the trial, the judgment must stand.

At the conclusion of the charge, the defendant’s counsel excepted “ to that part of the charge in which the court charged that the main element of value is result’’ That exception is the sole error urged by the appellant as ground for reversal of the judgment below. The precise language of the trial judge, to which the exception related, was this: “ But the main element -after all in determining the value of a lawyer’s services is the result of his labor.” If this statement had stood alone and without anything which could be regarded as qualifying it, it would have been distinctly erroneous and misleading as to the law; and the defendant would have been entitled to a reversal of the judgment, The result of a lawyer’s services is an element in -determining their value and it is, unquestionably, a very important one. Had the learned trial judge said that the result was -one of the main elements, he would have been right. There are several other elements, which must be equally considered in determining the amount of an attorney’s compensation, and unless the jury were instructed as to the importance of their consideration; •or if they were so instructed, concerning the importance of the result attained for the client, as to mislead them into the belief that they were at liberty to base their estimate entirely, or principally, upon that result, there would have been distinct error. The general rule is that an attorney, in the absence of an agreement, deserves compensation according to the reasonable worth of •his services. Of that the jury are the sole judges and, to arrive .at their value, they may consider the nature of the services rendered, the standing of the attorney in his profession for learning, skill and proficiency, the amount involved and the importance to his client of the result. The reason why the result is one of the important factors in the consideration must be obvious. It not only is some evidence of the usefulness of the services; but, for its effects upon the situation of the client, relatively to what it had been, it must be conceded a degree of influence, in fixing the amount of the attorney’s compensation proportioned to the nature and incidents of the result, in connection with the other considerations adverted to. The trial judge, in the previous portion of his ■charge, said to the jury that “ several circumstances must enter into the computation" in estimating value and he proceeded to state them; reviewing, in connection with their statement, the evidence in the case. He had said that the professional reputation ■of the lawyer for ability and integrity; the difficulty and importanee of the case; the amount of work and labor performed ; the amount involved and the pecuniary ability of the client were to-be considered and it was after a rather general discussion of these considerations, that he stated that “the main element after all in determining the value of a lawyer’s services is the result.” Despite what had been said by the judge, I should still hesitate to say that the jury may not have been seriously misled by the undue emphasis laid upon the result, as a factor in the determination of the question of value. If there was nothing more we might very reasonably and justly hesitate to hold in this case, where the evihence was sharply conflicting upon the value of the plaintiff’s services, that the jury Were clearly instructed how to consider that evidence and by what legal rules they were to be guided in reaching a verdict upon the issues. But, in our judgment, the possibility of a belief by the jury that the judge was intending to lay down a rule of law, by the statement in question, was removed by the remark with which he followed up his statement. He immediately added that “a charge must be adjusted to the benefit, in a measure at all events. So you inquire what was the benefit to the defendant, rendered by this plaintiff. Undoubtedly a lawyer—and every lawyer is governed by that consideration—will not charge a client as much if the client be unsuccessful. * * * You must look to the benefit" And the judge showed that the result was all that this defendant had hoped for. Thus, the remarks which followed upon the remark, which was excepted to, so qualified it ás to Correct its generality of expression and showed that what was meant was that the lawyer’s charge must be adjusted in a measure to the benefit resulting to his client. The jury could not have failed then to understand that while the result was an element of considerable importance to be considered, it was only one of several elements which had been discussed by the judge. We must read these remarks as they were heard; that is, consecutively, and as the summing up by the judge of the various considerations which the jury were to entertain. We do not think that it would be just to order a reversal of this judgment upon an exception taken to the remark of the trial judge-; which, however erroneous if standing by itself, was so coupled with other observations, as to accomplish a modification of its apparent emphasis and to give a more correct definition of the true relation which the result of services rendered bears to the consideration of the question of their actual value. The defendant, by an appropriate request to charge, might very easily have covered the point, if he thought it left in doubt. As the case stands, we cannot say that there was such error in the charge as to justify us in ordering a new trial of the issues.

The other appeal by this defendant concerns the denial of his motion for a new trial. After the recovery by.the plaintiff of a judgment against the defendnnt, the latter’s attorney, upon his affidavit and upon the proceedings had, moved the court for an order granting a new trial. His affidavit stated that, prior to the trial, he had heard rumors that the plaintiff had been disbarred at some time in Boston, Massachusetts ; and that, at the time of the trial, he was unable to procure any evidence of the fact. It then gave, from the testimony of the plaintiff upon the trial, the following extract from his cross-examination:

“ Q. Were you a member of the bar in Boston ?
“A. I was.
“ Q. Are you now ?
“ A. I am.
“ Q. Never disbarred in Boston ?
“ A Never. I brought a certificate when I left Boston—from the clerk—from the chief justice,which I have in my hat. I was a member of all the courts.”

The affiant then stated that he had procured “ the record of disbarment of plaintiff; ” which was annexed to his affidavit The record referred to contained an order of the superior court of Massachusetts, held within and for the county of Suffolk, for the transaction of criminal business, on the first Monday of October, 1864, the Hon. L. F. Brigham, a justice of said court, presiding, and entitled in the matter of Samuel H. Randall, an attorney at law, etc.” After a recital of certain facts, which were found by the court to constitute a “ violation of his oath of office as an attorney at law ” and to render him “ guilty of malpractice and gross misconduct in his office,” it was ordered that “for these causes he is removed from the office of an attorney at law within this commonwealth.” In opposition to the motion, Randall submitted an affidavit; in which he swore that the portion of his testimony referred to was true and that he was never disbarred by the superior court, or by any other court. He proceeds in the affidavit with statements regarding the validity of the proceedings in the superior court, to the effect that no charges had been filed; that the court had no jurisdiction and that he had never been validly removed, as proved by the annexed certificates of the clerks of the superior court and of the Supreme Judicial Court of Massachusetts. The certificate of the clerk of the superior court showed that there were no charges on file against Randall and that upon its docket was simply an entry, made January, 1865, of the order of October, 1864, made by Judge Brigham. The certificate of the clerk of the supreme court, dated in April, 1866, stated the date of Randall’s admission to practice; that there was no evidence of his having been removed from his office of attorney and that his name still appeared upon the records as such. Upon the facts shown, it was Randall’s claim that, never having been tried upon any charges, as he was entitled to by the law, the order of the superior court was ineffectual and without jurisdiction in the judge to make; that it was neither a court order, nor a record of disbarment and that it affirmatively appeared, from the clerk’s certificate produced, that his name was still upon the roll of attorneys and that he had not been disbarred. For this defendant, Packard, it was claimed that the record showed a disbarment, and, in support of the argument, the case of Randall v. Brigham, 7 Wallace U. S. Rep 523, was cited. That was an action brought by Randall against Judge Brigham, of the superior court of Massachusetts, to recover damages for his alleged wrongful acts, and the ground relied upon appears to have been, in substance, that the judge’s acts were not judicial, for want of jurisdiction, and, hence, he could claim no immunity from liability because of his judicial0office. The case came up to the United States supreme court, in 1868, and it was there held that the superior court of Massachusetts was a court of general jurisdiction, having authority to admit and to remove attorneys; that the order of Judge Brigham was an order of the court; that it was the result of an inquiry'into his conduct before that court upon notice and that the notice through a letter of the judge to Randall to appear, however informal, was sufficient to set in motion the authority of the court and to call upon Randall to explain the charge against him. The circuit court below had directed a verdict for Judge Brigham, the defendant, and the supreme court found no error in that ruling. That decision must beregarded as establishing, only, that the proceeding instituted in the superior court by Judge Brigham was valid in all respects, so far as it operated 'upon Randall as a trial and a judgment. The question, then, which was presented to the court below, upon the hearing of the defendant’s motion, was whether the plaintiff Randall, in denying that he had been disbarred, had sworn falsely upon the trial and whether, if that was the fact, there should be a new trial ordered. Of course, there was no ground of any newly discovered evidence; for the affidavit of the defendant’s attorney shows that he had heard, before the trial, of rumors that defendant had been disbarred. We may observe, in-passing, that if the defendant intended to rely for defeating the plaintiffs claim upon evidence of his having been disbarred, he should have had his proofs in readiness. It appears that he was not forced to proceed with the trial and that he refused to consent to any delay. However, as the question came before the court below, it was one of fact, to be determined upon the proofs adduced. There had been no conviction, establishing conclusively the commission of perjury by the plaintiff, and it was for the court to consider and to say, upon the proofs on either side, whether the plaintiff had sworn falsely upon some material point. It decided adversely to the defendant’s application and refused a new trial. In arriving at that decision, it was not without the support of sufficient evidence and, as the general term of the court have affirmed the decision of the special term, we think the matter ended there and ceased to be further reviewable in this court. It was not only a matter calling for a consideration by the court of evidence both ways; but it was an application addressed to its discretion.

We fully recognize" the fact that the superior court record established that plaintiff had been found guilty of malpractice and of gross misconduct in his professional capacity, while in practice as an attorney at la w, in Massachusetts; bu t, upon all the evidence, it was open to question whether that order had ever become effective as a removal of Randall from office. Upon that point, opinions might differ. That the plaintiff avoided giving exact information in answer to counsel’s question is very true; but, under the peculiar circumstances, he was entitled to give his answer in accordance with his opinion as to the legal result of the proceedings taken for his disbarment. Further questioning by defendant’s counsel might, possibly, have elicited from Randall the facts, as as they actually occurred in Boston. While he could not truthfully have testified that no j udgment or order for his removal from his office had ever been made and entered ; yet, inasmuch as it seemed to be a debatable question, admitting of opposing inferences, whether he had ever been actually disbarred, in the legal sense of the expression, in stating that he had not been, it cannot be said, as matter of law, that he swore falsely. Our conclusion upon this appeal, therefore, is that the decision of the court below upon this defendant’s application for a new trial, is not reviewable here.

The judgment and the order, from which these two appeals have been taken, should be affirmed, with costs.

All concur, except Finch, J., dissenting, and Peckham, J., not voting.

Judgment accordingly.


author: Finch, J

text:
    Edwin B. Root, as Administrator, etc., Resp't, v. Charles A. Borst, App’lt.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Evidence—Declarations of party.
    The admission of a paper in evidence, which simply amounts to the unsworn declarations of a party in his own favor, in the absence of his adversary, is error.
    2. Witness—Impeachment.
    Letters, written to a party by his adversary’s witness, are incompetent for any purpose except to contradict such witness, in which case a proper foundation must be laid. i
    3. Appeal—Reversal.
    Where the appellant court cannot say that the result would not have been different, if no improper evidence had been received, a new trial should be granted.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, entered under an order made September 13, 1892, which affirmed a judgment in favor of Christian H. F. Peters, plaintiff’s intestate, entered upon a decision of the court on trial without a jury. Peters died after judgment and plaintiff was substituted.
    This action was brought to recover certain books and papers termed a Star Catalogue.
    The facts, so far as material, are stated in the opinion.

      William Kernan, for app’lt: Elihu Boot, for resp’t.

       Reversing 47 St. Rep. 799.

   Finch, J

We are satisfied that the paper read by Dr. Peters before the National Academy of Science, and the letters addressed to him by Professor Hall were erroneously admitted in evidence, and that the vital question on this appeal is whether those errors can be disregarded as not materially affecting the result, and working no appreciable injury to the defense. That inquiry makes necessary some understanding of the facts, and of the character and tendency of the erroneous evidence.

The form of the action was in the nature of a replevin, and the plaintiff Peters sought to recover possession of a manuscript catalogue of stars, the ownership of which he claimed. That manuscript was the work of the defendant and his two sisters, written upon paper prepared and paid for by him, steadily and continually kept and retained in his own possession, and which must be deemed to be his unless Peters has in some manner established a title to it in himself. The burden rest on him to show the acquisition of such a title, and any doubt about it must go to the benefit of the defendant.

The proof shows that Peters in his lifetime was director of the Litchfield Observatory at Hamilton College. He taught the class in astronomy and received from the college a salary of fifteen hundred dollars, which was provided by the endowment of Mr. Litchfield, and which the college was unable to increase. The director’s position was quite different from that of an ordinary professor. Beyond his work as a teacher he was expected to make original observations and investigations, to be published with the aid of the patron of the observatory or of other interested or generous friends, and so build up and broaden its scientific reputation. And since the college was financially unable to pay him anything approaching a reasonable salary, it may easily be inferred that the director would be allowed and expected to do for himself much work of his own for which he would not be accountable to the college, and which he could use or dispose of > as he pleased. Such work Dr. Peters did. He gives us a description of it. Before coming to Clinton he began to make a collection of the positions of stars not on the general catalogues but noted by different observers who had selected them out from that faint and unobstrusive swarn not enrolled in any advertised galaxy. His collection was not a catalogue fitted for publication, but a gathering of loose material lacking arrangement in scientific order. His original motive for the collection and principal use of it seems to have been to aid in the preparation of charts of the stars, a work of great magnitude and importance; and also to furnish "him with what he calls “ comparison stars,” which he likens to the monuments of the ordinary surveyor from which measurements are taken and courses run. Of these charts he had finished twenty, but had planned one hundred and eighty-two, and had before him in that direction the study and work of years. In addition he prepared for publication papers on the transit of Venus, and quite a serious investigation of solar spots.

The defendant graduated in 1881 and went into the observatory as an assistant. The exact character of his relation to the' director and to the college is somewhat ambiguous and open to different inferences. He was appointed by the director and not by the college authorities, and seems not to have been regarded as a member of the faculty, and yet taught the classes in astronomy in the absence of the director with the explicit assent of the trustees. Peters regarded him as his servant, and looked upon everything done by the assistant as done for him personally and appurtenant to his interest and reputation; and yet it is obvious that the employment of an assistant originated with Mr. Litchfield, who suggested it and promised to pay the necessary expense, acting in behalf of the college, assuming its appropriate burden, and notified its treasurer of his purpose to pay the salary. He did pay it during his lifetime, although it was done through Peters, and to some extent, if not fully, the same payment was made after Mr. Litchfield’s death by his son, It is quite probable that out of his own small salary, little more than enough to ward off starvation, Peters would have been unlikely to have devoted one-third to the employment of an assistant And yet it is very certain that Peters regarded Borst as his personal servant, and that the latter in the beginning drew no line of distinction between his work for the director personally and that which he did for him as one of the college faculty. Borst put in shape for publication the manuscript relating to the solar spots; assisted in the observations and calculations necessary for the star charts; and continued the entry of star positions in the books devoted for their collection.

But, as Peters had liberty to use his own time for his own purposes, so far as it was not absorbed by his collegiate duties, so also Borst was free to use for himself the hours not due to the service which he owed Peters, and which belonged to himself alone; and this right, and the existence of such hours Peters recognized, because he advised Borst to do some valuable work for his own benefit and reputation. The star catalogue in controversy was beyond a doubt the product of those otherwise unoccupied hours which belonged to Borst personally and not at all to the college or to Peters; and the latter can have no title to it unless he can show an agreement that it should be prepared for him and become and be his property. For it is clear that he got no title to it by any work that he did upon it. His own loose •collections may have helped somewhat, and his advice and suggestions more, but what he in fact did upon it was almost trifling, and is described by Professor Hall as adding little to the value of the manuscript; and the few emendations that he made and the faint show of interest in it which he displayed until he claimed title to it is entirely consistent with the ownership of Borst to which the latter testified.

There was no misunderstanding between the two for about three years. But in November of 1884 Peters testifies that he formed the purpose of using his loose material, already gathered in two volumes, for framing a star catalogue, scientifically arranged in the order of right ascension, and reduced to a common epoch, and set Borst at that work, who accepted the duty. The director is sure of the date, but upon the vital question of what he then said to Borst, or the latter said to him, he is unable to repeat a single word. The burden was on him to prove such an agreement; it was the decisive fact through which only he could derive a title ; and yet he is unable to repeat a single phrase of the conversation He' does not remember where it was, and says: “I do not know what the talk was between me and him on that occasion,” and says again: “There was no special talk,” and adds: “I cannot give any conversation at any time between me and him in reference to it.” And so, instead of the words of agreement, he gives us his understanding of what his rights were. That appears in his cross-examination where he testified “ there was no regular talk because he had nothing to say about it. He was my assistant,’”

The defendant denies any such agreement and shows that he had already, at this alleged date, been busy for six months upon-the star catalogue, and produces the papers indicating that fact. He tells us how he came to do it; that it grew from the suggestion of Peters himself, who advised him to undertake some-special work out of which he might obtain personal reputation and scientific position, and who volunteered to aid and assist him in the preparation of the star catalogue which he selected for his own personal work. The director admits having given some such general advice, but denies its application to the manuscript in controversy.

At this point the contradictions are violent and cannot be reconciled. It is possible to see that Dr. Peters, regarding the defendant as his servant, in the habit and custom of appropriating Borst’s work as done for him, might be mistaken in his memory and understanding of the facts relating to the star catalogue, but no such explanation will do for Borst. Not only must falsehood be charged upon him, but also a deliberate purpose and plan to take from the director what was his and deprive him of well-earned reputation. That is a solution of the conflict which should only stand upon clear and strong proof. That Borst, as a mere assistant of Peters, should not only help him during observatory hours, which we might very well expect, but should devote to his service all time of his own, working late into the night and absorbing every spare moment; that he should bring his two sisters to Clinton and demand of their love for him an enormous amount of labor and patient industry, only to magnify the reputation of Peters, and on a salary of six hundred dollars a year; that he should have asked Peters to write a preface on the latter’s own work; that he should have kept the results of his labors steadily and as a rule in his own-personal possession instead of leaving‘it at the observatory and in the director’s control; all this we must believe on the basis of the findings; and in connection with an amount of treachery and falsehood quite painful to contemplate. Of course we are not to review the conclusions of fact, but we are at liberty to say that the title in Peters to Borst’s work was not so estab-" fished as to make immaterial the receipt of illegal evidence bearing upon the result. Obviously, disinterested and patient judgments might differ as to the correct and proper inferences to be drawn, and comparatively slight matters might turn the scale. To the evidence improperly admitted we must now direct our attention.

The plaintiff was permitted to show that Dr. Peters was present at a meeting of the Academy of Science in Boston and at that meeting read a paper described as “ No. 13. Peters, C. H. F„ Catalogue of Stars from Various Astronomical Positions,” and was also permitted to read certain letters addressed to him by Professor Hall. Borst had testified that-in the summer of 1885, Hall was at the observatory, and was shown by the defendant the star catalogue here in question ¡ that Hall spoke of it as involving a great amount of labor and Borst said it was “his work,”' and he had done it upon the suggestion of Peters that he should attempt some special work of his own; and that this occurred in the presence and hearing of Peters, whose only remark was as to the convenience of a' wide margin to the manuscript Thereafter Hall was sworn and he corroborated Borst in every particular except that he was unable to say that Peters was present at the moment of the conversation. On the cross-examination of Hall he was asked if he was present at the meeting of the academy in 1886; if Peters was there; and then if the paper referred to was read; to which he answered in the affirmative, the defendant objecting to the production of the pamphlet and to the reading of the paper from it. This evidence in no manner contradicted or tended to contradict the witness. It simply proved the unsworn declaration of Peters in the absence of Borst, and in his own behalf. It showed that he stood before the academy claiming to be the author of a catalogue of stars, and was made the basis of an unwarranted argument by the court that Hall must have been mistaken, as if the fact that Peters claimed the catalogue in 1886 was any proof that Borst did not claim it in 1885. In addition Hall’s letters to Peters, written in March, April and October of 1886, and speaking of his catalogue of stars, were admitted in evidence and made the basis of an argument that Hall could not have understood that Borst claimed the catalogue as his in August, 1885, when in the next spring the witness was referring to it as the work and property of Peters. These letters were specifically objected to upon the ground that the attention of the witness had not been called to them, and in Hall’s absence was distinctly admitted as a part of his cross-examination. McCulloch v. Dobson, 133 N. Y. 114 ; 44 St. Rep. 89. The learned counsel for the plaintiff argues that the letters were not offered to contradict Hall, but on that theory they were not admissible at all, for the argument that Borst had put in evidence Hall’s understanding that Borst owned the catalogue has no-foundation in fact. He was neither asked what his understanding of the actual ownership was nor did he testify to any such understanding. Question and answer were confined to the actual fact of an actual conversation, and no inference of what the witness understood from it as to the fact of ownership was asked or given. Hall’s opinion about it was totally immaterial unless for purposes of contradiction, and for that no foundation was laid. It was used for that purpose. The opinion of the court puts great stress upon it. It argues out from it a disbelief of the fact of the conversation sworn to by both Borst and Hall, and gives it decided weight in the discussion. The case on the facts is not at all so clear as to justify a disregard of these errors. It presents a very close and difficult question by reason of the subject matter involved and the peculiar relations existing between the parties, and we do not feel justified in saying that the result might not be different if no improper evident should be received.

The judgment must be reversed and a new trial granted, costs to abide the event.

All concur, except Gray, J., not voting.

Judgment reversed.


text:
    William W. Gilmore, App’lt, v. Edward E. Ham, Resp't.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Limitation—Liquidation of partnership.
    ' The provision of § 388 of the Code applies to any and every form of equitable action.
    2. Partnership—Liquidation.
    The duty imposed upon the liquidator is one of agency, and is not anew authority or direct trust.
    3. Same—Action against liquidator.
    A right of action in favor of the retiring, against the liquidating, partner for an accounting accrues when the latter, under the circumstances of the particular case, has had a reasonable time within which to perform his duty and is in fault for not having fully completed it.
    4. Limitation—Trust.
    In case the duty of the liquidator is a direct trust, the statute of limitations will begin to run when it ends, and when he is bound to pay over, or transfer, the fund discharged from the trust.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, entered upon an order made September 18, 1892, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at special term. This action was brought in 1890 for an accounting and contribution between partners. The facts, so far as material, are stated in the opinion.

      T. K. Fuller, for app’lt; John 0. Hunt, for resp’t.

      Affirming 48 St. Rep., 21.

   Finch, J.

Under what circumstances and from what date the Statute of Limitations runs in favor of a liquidating partner as against the retiring partner suing for an accounting and payment of his share, is the question presented on this appeal. That it is ■a troublesome and perhaps difficult inquiry is obvious from the varying and shifting circumstances upon which it may arise, and still more from a study of the conflicting decisions which have striven by very different methods to reach a definite solution of the problem. That it has some degree of impbrtance and should be determined carefully, is apparent form the fact that it must necessarily settle when the cause of action for an accounting accrues and can be enforced, and so when the liquidating partner is in default. It is desirable to state first, as definitely as possible, the facts upon which the question arises.

Ham and Gilmore became partners in the clothing business in March of 1864, and conducted the business until June, 1869, when Gilmore went away and left the state. Ham says he “ absconded,” and claims that previous to his departure he had been secretly disposing of the partnership goods for his own benefit, and disappeared to avoid detection. Whether that be true or not, we must assume that Gilmore abandoned the partnership, and that his action amounted to a consent to its dissolution, and the appointment of Ham as the sole liquidating partner, authorized to settle the partnership affairs. For, shortly after Gilmore’s departure, Ham published a notice of the dissolution of the firm and that he would close its affairs, and Gilmore’s assent is to be inferred not only from his conduct at the time, but from his long silence and from his adoption of Ham’s action involved in the institution of the present suit. We are to treat the case, therefore, precisely as if there had been a dissolution by mutual consent, and Ham had been appointed the liquidating partner alone authorized to close up the business. He took that attitude; was allowed to take it; received and held all the assets; and assumed rightfully the duty of winding up the partnership affairs. What he did in that direction we know very imperfectly because he chooses not to render an account It appears, however, that in 1871 he sold out and received his pay for the whole stock of goods then in his possession and which must have covered the entire assets of the dissolved firm, except, perhaps, its bills receivable. The latter, so far as collectible, we may and should assume had been collected during the two years which had elapsed since the dissolution. As to the debts owing by the firm and payable out of its assets, we have only the statement of Ham that, at the date of his sale of the stock of goods, he had paid “ a good many ” of the debts of the firm, but did not know whether he had paid them all. One, at least, he had not paid. That was a note given by Ham & Gilmore to the wife of the former, for §675, dated December 19,1866, and payable one day after date. That note might have been and should have been paid in 1871, when the liquidating partner had turned all the assets into money, and, as the case shows, had ample means of the partnership in his possession adequate to that payment, and his omission to pay it was a clear violation of his duty. I am confident that, at that date, two years after the dissolution, when all the assets had been turned into money, when most of the debts had been paid, and when all of them ought to have been paid, the retiring partner could have maintained an action against the liquidating partner for an accounting of the partnership affairs and payment over of the share ascertained ; and that it would not have been a defense to the suit that the retiring partner’s cause of action had not accrued because one or more debts had been needlessly left unpaid. This concluson, however, is adverse to some of the decisions, and will need consideration at a more convenient stage of the discussion.

What further happened was this : The note held by Mrs. Ham was sued in 1886, about twenty years after its maturity; service was made on Gilmore, who alone defended : the Statute of Limitations did not protect him because of his continued absence from the state: judgment went against him and he was compelled to pay the full amount of the note, with its accrued interest; and thereupon he commenced this action. It has two phases. The complaint, alleging the compulsory payment of the note, demands contribution from Ham of the one half chargeable against him, and for that there has been a recovery. Whether, upon proper allegations, there might not have been a j udgment for the whole amount paid need not be considered since no such claim was made and no such relief asked. The further 'cause of action pleaded was for an accounting of the partnership affairs and payment of the share found due, and to that the defendant pleaded both the six-year and the ten-year limitation, and has succeeded. The plaintiff appeals and insists that he is entitled to an accounting, notwithstanding the lapse of time, and mainly upon the ground that the statute did not begin to run until all the business of the partnership was settled up and ended, for which contention he furnishes more or less authority.

Under the law of this state there is a fixed limitation for every cause of action, whether legal or equitable. After attaching suitable limitations to numerous classes of actions the Code adds (§ 388) : “ An action, the limitiation of which is not specially prescribed in this or the last title, must be commenced within ten years-after the cause of action" accrues.” This provision, in the Code of 1848 and continued since, has done away with the old rules as to cases cognizable only in courts of equity, and subjected all alike to some statutory limitation. De Pierres v. Thorn, 4 Bosw. 288, 289 ; Loder v. Hatfield, 71 N. Y. 104. So far as I have examined the authorities in this state since the adoption of the Code I have found no denial of the application of its provisions to any form of equitable action, unless cases of a continuing right, accuring newly every day, may be said to form an exception (Miner v. Beekman, 50 N. Y. 343 ; Schoener v. Lissauer, 107 id. 117; 11 St. Rep. 368), although it is quite apparent that they are not inconsistent with the uniform and universal rule. They serve, not to break it, but to show how difficult it occasionally is to determine when the right to the equitable relief arises, and when the cause of action so accrues as to set running the appropriate limitation. I shall assume, therefore, that either the six-year or the ten-year limitation applied to the plaintiff’s cause of action, and need not for present purposes determine which.

When did the plaintiff’s cause of action accrue, for that is the date from which the limitiation begins to run, and which we must fix in some manner in order to reach a result. I said in Gray v. Green, 125 N. Y. 206; 34 St. Rep. 732, that' wdien an action is brought against a liquidating partner for an accounting the plaintiff must wait a reasonable time after the dissolution before his right of action can at all accrue, and, while the statement was not then essential to the decision, a further examination of the question in the present case has served to confirm that opinion. A cause of action originates in some violation of a legal duty or some omission to perform it. The duty imposed upon the liquidator is one of agency. He becomes the sole authorized agent of the partnership for the purpose of winding up and finally settling its affairs. There are elements of trust in his position and duty which lead us often to regard and describe him as a trustee for the creditors on the one hand or the retiring partner on the other, and the description is not inappropriate so long as it does not mislead us into the -error of regarding the position and duty of the liquidator as that belonging to a direct trust. His authority is not such. Ho new authority is given to him. What he has is a restricted and narrowed part of that which the partnership conferred. That continues and subsists to the extent necessary for a settlement of the business, and is not a new authority or a diiect trust. Kane v. Bloodgood, 7 Johns. Ch. 89 ; Adams v. Taylor, 14 Ark. 66. The liquidator becomes the agent of the partnership for the one specific purpose. His duty is to collect and adjust the debts due to the firm, to turn the assets into money, to pay and discharge the ■ outstanding liabilities and then to pay over to the other partner his just share of the remaining surplus. Story on Partnership, § 328. But he must perform his duty with reasonable diligence, Evans v. Evans, 9 Paige, 180, and while so acting, and in good faith, equity will not interfere and no cause of action in favor of the retiring partner can or will arise. Obviously, such a cause of action will accrue, not at once upon the dissolution, but at some later period when there has been such violation or neglect of duty ■as to justify equitable interference.

While, therefore, it is clear that the cause of action for an accounting does not arise at the moment of the dissolution, it is not necessarily postponed to the other extreme of a complete and final -ending of all the partnership business. That view is taken in some of the adjudged cases, Hendy v. March, 75 Cal. 567 ; Hammond v. Hammond, 20 Ga. 560, but I do not think it is intended to be asserted as an absolute rule, always applicable irrespective of circumstances. Indeed, in Prentice v. Elliott, 72 Ga. 156, it is again stated, but with the qualification that the statute might begin to run when “ a sufficient time had elapsed to raise the presumption ” that the business had been fully settled. If by these cases and others like them it is only meant to say that a final share cannot be recovered until it is ascertained and exists, and that the liquidator, doing his duty diligently and in good faith, will not be disturbed until the surplus is ready for distribution, we may and should concur in it as a general proposition. I think that, and no more than that, is meant by the opinion of the Federal •court in Riddle v. Whitehill, 135 U. S. 621, which is cited in support of a much broader doctrine. It holds that the right of action for an accounting does not arise at the date of the dissolution; that it does not accrue at all while the liquidator is doing his duty without antagonism between the partners or cause for judicial interference ; and that when the right of action accrues and the statute begins to run “ depends upon circumstances.” I see no reason to doubt the accuracy of that doctrine, and am content to follow it as I have stated it.

We must, therefore, avoid the two extremes, which are that the statute begins to run at the date of the dissolution, and does not begin to run until the last item of partnership business is settled and closed; and determine when and how it may attach during the interval. The liquidator is bound to be diligent. He violates his duty when, without cause or reason, he prolongs the period of settlement. He is not at liberty, through negligence or purposely, to keep the retiring partner or the representative of one deceased out of their rights, or needlessly to postpone the ultimate distribution. If he does-that equity may interfere, and, if no other measure will answer,, may take the settlement into its own hands. I think, therefore,, the light of action for an accounting accrues when the liquidator,, under the circumstances of the particular case, has had a reasonable time within which to perform his duty, when it oughttohave been fully completed, and when the liquidator is in fault if it is-not. It cannot be and must not be that he can stretch the period of settlement at his will, and, leaving one or more debts unpaid,, hold the assets in the peril of his continued solvency through long years, defying all equitable redress. I should be glad if it were, possible to adopt some more definite rule than the one I have stated, but only specific legislation can give us that. Meantime, in each specific case, taking into consideration all the attendant circumstances, we must determine when the cause of action accrues.

In the present case that is not difficult. Ham’s duty as liquidator was simple and easy. There were no complications to hinder or delay it. The goods could be sold, the accounts be collected and the debts paid within two years from the date of the dissolution,, which is a longer period than that allowed an executor or administrator before he becomes liable to account. Within that period the asséts were in fact sold ; the debts due to the firm presumably collected; its liabilities all paid except the note to Mrs. Ham; and that was due and should have been paid, and its further postponement was a negligent or intended violation of duty. I have not the least doubt that Gilmore’s right of action for an accounting and a recovery of his share of the surplus accrued at that date, and could have been successfully maintained. Since almost twenty years elapsed from that date before the present action was commenced it is clear that the statute is a defense and has barred the right.

There are some answers to that conclusion which demand further consideration. One of them is founded upon the doctrine applicable to trusts that the statute does not run upon them until they are openly repudiated by the trustee. Without pausing to consider the scope and limitations of that doctrine, it is enough for present purposes^ to repeat what I have already said, that the agenc}r of the liquidator is not a direct trust, and the rule asserted applies only to such. In Lammer v. Stoddard, 103 N. Y. 672; 4 St. Rep. 225 we described the doctrine as applicable against a trustee of-an actual, express and subsisting trust, but held that where the trustee became such by implication or construction the statute ran from the date of the wrong which raised the implication. It may be added that even in the case of a direct trust the statute will begin to-run when it ends, and the trustee has no longer a right to hold the fund or property as such, but is bound to pay it over or transfer it discharged from the trust.

A further answer is found in the suggestion that whatever may be the right of the retiring partner to sue for an accounting, the liquidating partner cannot avail himself of the statute until he has completed the liquidation. The argument is that the law gives, him a reasonable time ; that if he takes more or is allowed to take more he, at least, cannot complain; and that the statnte does not mean to reward his negligence nor punish the grace of his co-partner. The trouble about this argument seems to me two-fold. It disregards the mandate of the enactment which makes the date of the accruing of the cause of action the point of time from which the statute begins to run, and substitutes an entirely different and inconsistent date. ' We have no right to disregard the plain terms of the law, but must obey them as well as we can. And to the further idea that it was not intended to reward the negligence of the liquidator or enable him to take advantage of his own wrong, the obvious answer is that the doctrine would repeal the statute in every case. He who pleads the statute is always taking advantage of his own wrong in the sense that it is invariably his own default, his neglect or wrongful act, which originates a cause of action against himself'and so sets the Statute of Limitations Tuning. The law does not intend to reward one or punish the other, but goes upon a broad ground of public policy which aims to end litigation within periods which are fair and just to both parties. On the one hand the liquidator must act promptly and diligently and not seek to drag the settlement out through long years for his own convenience or in disregard of the rights of his co-partner; and on the other the latter must not sleep on his rights, and wait till books are lost, or vouchers mislaid, or witnesses dead, before seeking an accounting and payment.

While it would not displease us to compel this defendant to account, we must refuse to do so in obedience to the law.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Earl, J.

text:
    Peter J. Flinn, Resp’t, v. The New York Central and Hudson River Railroad Company, App’lt.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Negligence—Railroad.
    A railroad company is not liable for the unavoidable and usual consequences of the proper operation of its road to adjacent property.
    2. Same.
    An action for destruction by Are of a building upon an adjoining lot is based upon the company’s negligence in the management or condition of its engines.
    3. Same—Proof.
    The fact of the emission of large quantities of sparks from all the engines in drawing trains up a steep grade furnishes no evidence whatever to charge the company with negligence.

      4. Same—New appliances.
    A company is not bound at once to introduce every new appliance which is claimed to make its engines safer or more useful.

      5. Same—Spark arresters.
    Nor is it bound absolutely to keep the spark arresters upon its engines in perfect condition.
    Appeal from judgment of the general term of the supreme -court in the third judicial department, entered upon an order made February 15, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying a motion for a new trial.
    The nature of the action, and the facts, so far as material, are stated in the opinion.

      Matthew Hale, for app’lt; K Countryman, for resp’t.

      Reversing 51 St. Rep., 103.

   Earl, J.

This is an action commenced December 2d, 1884, to recover damages for the injuries to and destruction by fire of the plaintiff’s wooden dwelling house situated upon his lot adjoining the defendant’s railroad in the city of Albany in the preceding August.

About 1844 a railroad company, to whose rights and property the defendant succeeded, constructed upon a strip of land belonging to it a railroad with two tracks, and in 1874, some years after the defendant had become the owner of the railroad and strip of land, it constructed two more tracks, one upon each side of the other two, and the four tracks became a part of its general railroad system.

The house destroyed was built soon after the construction of the ■first railroad upon the rear end of the lot adjoining and facing the railroad, the front of the lot being upon Broadway. Prior to 1874 the northerly track of the railroad came within about twelve feet from the house, and thereafter it came within about three and one-half feet.

The plaintiff purchased his lot in 1867, and at that time the house was tenantable and was rented for sixteen dollars per month, and continued so rentable until sometime after 1874. After that time the sparks from the engines of the defendant's road frequently set fire to the house and were so annoying and troublesome that after about 1880 the plaintiff was unable to rent the house and it remained vacant until it was destroyed by fire. 1

There can be no controversy about the principles of law applicable to this case. The defendant was operating its road under lawful authority past the plaintiff’s lot upon its own land, and, therefore, it could not be made liable for the destruction of the house upon the adjoining lot except upon proof of negligence in the management or condition of its engines. The action in such a case is based upon negligence, and a railroad company cannot be made liable for the unadvoidable or usual consequences of the proper operation of its road to adjacent property. The law is well ■stated in an extract found in the brief of the plaintiff’s counsel from Pierce on Railroads, 433, as follows :

“ The duty of the company to use reasonable care in order to ■avoid injury resulting to others from the exercise of its powers requires it to avail itself of the best mechanical contrivances and inventions in known practical use which are effective in preventing the burning of private property by the escape of sparks and -coals from the engines; and it is liable for injuries caused by its omission to use them. Its duty in this respect is limited to such contrivances as have been already tested and put in use, and it is not required to use every possible contrivance, although already patented and recommended in scientific discussions.”

Row, what are the facts here bearing upon the defendant’s negligence? There is no evidence and no claim that prior to 1880 the defendant did not use upon its engines the most approved spark arresters. It used the diamond smoke stack which was in universal use on all railroads. On the contrary, the evidence shows that there was a regular system of daily inspection of the smoke stacks and spark arresters upon the engines in use, and that they were at once repaired when any defects were discovered. Where the railroad passed this lot there is a steep grade ascending to the westward, and engines drawing trains there were obliged to labor, and sometimes they made headway slowly and with difficulty, and on account of the heavy grade and hard pull they emitted a large amount of smoke and cinders The only evidence (I am now speaking of the time prior to 1880) from which the plaintiff can claim to infer negligence is the great emission of sparks and the setting of the fires thereby. But the emission of the sparks was continuous and from all engines on account of drawing heavy trains, and thus there could be no claim that any particular engine was defective unless they were all defective,- and that is not claimed. On this subject the plaintiff testified as follows: “ The showers of sparks and smoke would be thrown into the windows, if they were open in warm weather, and set fire to the carpets; I am speaking what they did; the effect was still greater if they did not pass readily; if they were lodged there, because it was up grade, and the trains would sometimes become stalled; impossible for the locomotives to do their work, and then if the locomotives were lodged in front of that building showers of sparks would be thrown all about, and if it were dry weather the building would take fire, and sometimes when it was not dry weather it would take fire; the entire roof and alley and all about there would be flooded with these live coals; this state of things continued about ten years. The final result was that the house was destroyed ; these fires continued from 1874, the time the additional track was laid, until the destruction of the building by one of these fires in August, 1884.

Another witness testified: “ When I have been on one of those pushers and on Ro. 4 track going from Albany to West Albany I have seen plenty of sparks from that locomotive; plenty of it with a heavy load. You have got to work the engine heavier, and there are more sparks. I can’t tell how far it would throw them; a good ways back; the sparks were all over, from the bottom of the grade to the top of the grade; they would fly all the while; worse when it slipped.” Another witness testified : “ These pushers, as they pushed up the heavy freight trains on No. 4 through Railroad avenue, always threw sparks more or less; of course, the larger the train, the more exertion and the more sparks were thro'wn, and the wetter the track, made it so much worse; but the pushers are not the only ones that throw the sparks; the engine ahead throws as many sparks as the other one; these engines used on No. 4, both the forward engines and the pushers, and the others had large, bulging smoke stacks; all of them, as far as I remember.”

Another witness testified: “ Of course, engines, when they are working hard and pushing and pulling heavy, throw more sparks than they do when they are working light; there is a harder exhaust on the fire, and consequently they throw more sparks; have seen the sparks come out of the stack pretty thick sometimes; sometimes they go straight up, according to the way the wind blows; I can’t describe any exact quanity; they go the direction the wind blows; come thick enough so you can see them readily. * * * I never saw any spark arrester that would absolutely and entirely prevent sparks from flying. So far as my judgment and experience are concerned, it is not possible to entirely prevent the emission of sparks from locomotive engines.” Another witness, a tenant in the house, testified: “We don’t dare to leave our windows up in front, because the sparks would fly into the front room. I never carpeted the front room on that account. Sometimes left the windows open and sparks would come in.”' Another tenant testified: “I lived there about a year; occupied the down-stairs part; paid three dollars a month; it was a small place; the fires broke out a couple of times while I was there; I couldn’t leave my windows open for the sparks coming in; caught fire on the roof; sparks used to come in through the window and door, and I always had to keep them shut.” Another witness testified: “I mean to say every time I saw trains stalled there I saw sparks as big as a walnut coming from the engine, when they commenced working, about every time.” Another witness testified: “When they were working in that way they threw out a great deal of cinders, sparks and smoke; have observed the size of the sparks they threw out; thew were probably half an inch in diameter; live sparks would fly alll over on the building. * * * I lived in that vicinity about thirty years ; had noticed these things other witnesses had spoken of in regard to trains ever since he had been there, more or less; sometimes there would be heavy trains, and several engines would be used in pushing them up the grade; on such occasions frequently sparks would be emitted from the engines, and would fly all over.1’

This evidence came from the plaintiff and his witnesses, and it shows that the emission of sparks at that up grade was continuous and inevitable. There is no evidence and no inference that fewer sparks were emitted when there were but two tracks; but as the nearest track was then further from the plaintiff’s house, the danger was less. But from 1874 down to 1884 there was no change, and the evidence fails to show that any engine was defective or out of repair, but they were all alike when pulling trains up the grade past the plaintiff’s house. It was impossible to give any evidence as to any particular engine, for the reason that all the time from 1874 to the destruction of his house, it does not appear that the plaintiff made any complaint to the defendant, or made any claim whatever that any of its engines were out of order or defective in any way. The infererence from this evidence is that the great emission of sparks was inevitable in drawing trains up such a steep grade, and if it was not inevitable it would have been easy for the plaintiff to have furnished some proof showing that it was due to the defective condition of the engines and to no other cause. Under such circumstances the fact of the emission of large quantities of sparks furnishes no evidence whatever to charge the defendant with negligence. If there had been evidence that any particular engine emitted an unusual quantity of sparks of an unusual size that might, within the authorities cited, have furnished prima facie proof that the engine was out of repair, and the burden would have been cast upon the defendant to show that it was in proper condition and that the emission of sparks was inevitable notwithstanding the use of any ordinary cáre. Suppose it had been shown that all the engines upon the defendant’s road were built and equipped in the usual manner, with approved smoke stacks and spark arresters, and yet that they all emitted large volumes of sparks and smoke, would the mere fact of the emission of sparks in such quantities be any evidence to charge the defendant with negligence ? And yet that is the only case the plaintiff has against the defendant prior to 1880. The engines passed so near the plaintiff’s house that they set fire to it many times during the period from 1874 to 1884; and even prior to that when there were but two tracks, other property was fired in that vicinity by sparks emitted from passing engines. This house was a small wooden structure, and it is quite apparent that its destruction by fire communicated by engines was inevitable at some time.

Therefore, prior to 1880, while the defendant was using the diamond smoke stack, which was in general and universal use, there is no evidence whatever to charge the defendant with negligence.

But the plaintiff claims that about 1880 a new spark arrester used in what are called extension front engines began to come into use; that such engines emitted fewer sparks and that the defendant was thereafter negligent in not adopting the improvement upon its freight engines, and thus in some measure protecting adjacent property from the danger due to escaping sparks. The meshes of the wire netting constituting the spark arrester were the same in both systems, and the only difference in. their operation was that fewer sparks were emitted under the new system than under the old. This new system in 1880 was untried and an experiment, and was gradually introduced upon passenger engines, and a short time prior to 1880 the defendant began to introduce it into its freight engines, and it kept on altering its engines until finally before the trial of this action the new system was in general but not universal use upon its engines. There is no proof showing how expensive or difficult it was to change an engine from one system to the other, or how rapidly the defendant ought to o'r could have made the change, or that it was negligent or derelict in any way for not introducting the new system faster than it did. We may assume from our personal observation and from oficial reports that the defendant after 1880 had in the neighborhood of at least one thousand engines, and what basis is there in this evidence for charging the defendant with negligence for not equipping all these engines with the new system during the brief period of four years ? A railroad is not bound at once to introduce every new appliance which is claimed to make its engines safer or more useful, It must have time for trial and experiment. It cannot arrest all of its engines at once to make changes, but must have the time requisite, taking into consideration expense, convenience, the operation of its road, and all the problems connected with such a change. Before the plaintiff could charge the defendant with negligence in not introducing the new system for arresting sparks prior to 1884 he should have furnished some evidence that it was reasonable practicable and possible to do it. Therefore, there was no evidence upon which a charge of negligence could be based because the defendant had not introduced this new system prior to 1884.

There is some evidence, not yet noticed, which is said to be sufficient to charge the defendant with negligence. One witness testified that he knew of three occasions- when a hole was knocked in the spark arrester of one of the diamond smoke stacks for the purpose of giving the engine more draft. But whenever that was done it was a mere temporary expedient, to be discovered by the inspectors of smoke stacks and reported at the first opportunity. And there is no proof whatever that any damage to the plaintiff’s building came from a spark arrester which had thus been broken. There is also proof that on a few occasions plaintiff’s witness had discovered large sparks, apparently larger than would go though the meshes of a spark arrester in proper condition. In reference to that evidence it is also to be said that there is no proof whatever that any damage came to the plaintiff’s house from any of those sparks. No effort was made to identify the engine from which they came, and after the lapse of many years it was utterly impossible for the defendant to give any proof about such engine. The defendant is not bound absolutely to keep the spark arresters upon its engines in perfect condition. It is in proof that they would sometimes break and get out of repair, and if the defendant, having a regular system of inspection, repaired them at the first opportunity, it cannot be said to have been negligent.

We are, therefore, of opinion that upon all the evidence the defendant was not in any way legally responsible for the damage done to the plaintiff’s property. It is true that his hou^e was burned down and destroyed, and that he thus suffered a loss, but before he can cast the burden of that loss.upon the defendant he must show that it violated some legal duty it owed him, and this he failed to do. Upon such evidence as we have here the courts cannot grant him relief if they would. They must follow the law and cannot grant relief against the law.

The judgment should, therefore, be reversed and a new trial granted, costs to abide event.

All concur, except Andrews, Ch. J., and O’Brien, J., dissenting, and Finch, J., not sitting.

Judgment reversed.