author: Leabned, P. J.

text:
    MYRON SPICKERMAN, Respondent, v. HENRY W. CLARK and JOSEPH COPELAND, Appellants.

      Evidence — opinion of loitness — when admissible.

    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. This action was brought to recover damages for injuries sustained by the plaintiff, in consequence of a collision between the tug-boat E. D. Beach, upon the plaintiff, who was at the time employed as engineer, and the boat Charles E. Madden, then owned and operated by the defendants. The only question of interest passed upon by General Term is contained in the following portion of the opinion :
    “ The only questions for us arise on the admission of evidence. A witness who had had experience in the management of boats, testified that from what he saw of the occurrence and from his knowledge and skill, he was able to form an opinion whether or not the Madden, by proper care, could have avoided the collision. He was then asked whether in his judgment the collision could have been avoided, by the parties on the Madden using proper care and caution. This was objected to by the defendants and was admitted.
    In Walsh v. Wash. Ins. Go. (32 N. Y., 443), it was said to be admissible for the master of a vessel to testify to what its loss was attributable. So, in collisions of vessels, a nautical witness may testify whether in his opinion a collision could have been avoided by proper care on the part of the captain. (FennieJc v. Bell, 1 C. & K., 312.) The rule, as laid down in Powell’s Evidence, is that the opinions of skilled or scientific witnesses are admissible evidence to elucidate matters which are of a strictly professional or scientific character. And whether it would be possible for a boat to avoid a collision is a question which certainly involves much professional knowledge. No objection was taken, that the question shopld .have been restricted to the ability to avoid the collision, after the persons on the Madden knew, or might have known, of the danger.”

      Bobertson c& Foster, for the appellant. O. A. Martin, for the respondent.
   Opinion by

Leabned, P. J.

Present — Leabned, P. J., BoabdhaN and Bocees, JJ.

Judgment and order affirmed with costs.


source: Caselaw Access Project

author: LeaeNed, P. J.

license: Public Domain

text:
    CHARLES HAWLEY, Respondent, v. WILLIAM HATTER, Appellant.

      Improper evidence — admission of, on in'ial at law — although result may not be changed by it •— new trial granted..

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The court at General Term say :
    “We are satisfied with the report of the referee in this case. It is sustained by the evidence, and appears to be just. We should affirm the judgment without hesitation, were it not for the error in admitting proof of an offer by the defendant to compromise the claim. This evidence was inadmissible, and might possibly have affected the result. We do not think that it did in fact. But the rule has been repeatedly laid down that a new trial must be granted when improper evidence has been admitted. (Baird v. Gillett, 47 N. Y., 186.)
    It would promote justice if appellate courts could disregard such errors, when satisfied that no real injury had been in fact done; in other words, if they could adopt the equity rule. It is difficult, especially in a long .trial, to'avoid making some slight error in regard to the rules of evidence. But practically such errors are not of that importance in their effect upon the result of the trial which they appear to be, when spread out in the printed papers for the appellate courts.
    And such courts, especially when not accustomed to the actual trial of cases, are apt to forget the maxim, summum jus summa injuria. {Lamb v. Gamden B. B., 2 Daly, 475.)
    The judgment must be reversed and a new trial granted, costs to abide event, and referee discharged. ”

      J. A. Dewey, for the appellant. A. Bees, for the respondent.
   Opinion by

LeaeNed, P. J.

Present — LeaeNed, P. J., Bocees and BoaedmaN, JJ.

Judgment reversed, and new trial granted, costs to abide event; reference discharged.


author: BoardmaN, J.

text:
    JOHN H. WALBRIDGE, Respondent, v. SAMUEL KILPATRICK, Appellant.

      Execution of contract by agent — W.&.O. agent for B.K.■ — ■ sufficient — ExPt'aafs copied from, letters — admissibility of.

    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 recover damages for the non-fulfillment of an alleged written contract, for the sale of certain real estate. The sale was made through an agent acting on behalf of the defendant, and the latter claimed that the contract was not executed in such a manner as to bind him thereby. As to this the court at General Term say:

      “ The claim that the contract is not well executed as a contract of the defendant is not well founded. The signature, ‘W. G. Campbell, agent for Samuel Kilpatrick,’ is an execution of the instrument in the name of the principal, and not in the name of the agent. ( Worrall v. Munn, 5 N. Y\, 244.) * * *
    Certain extracts copied from letters of the defendant were admitted in evidence under his exception, proof having been given of the loss of the originals. Judge HulbeRt was sworn as to the correctness of such extracts. He read the originals and knew their contents. He compared the extracts with the originals, and swears that they were correct. Campbell swears to the same thing: Hnder such a state of facts the extracts were competent as secondary evidence of the contents of the lost letters. The objection was that they were ‘extracts only, and not the whole letters.’ Written extracts from a letter are as competent secondary evidence of contents as statements founded on memory alone. Either Campbell or Judge Hulbert could have refreshed their memory by looking at the same extracts and testified to the same matter orally. But the difficulty is they were offered in evidence as extracts only. No attempt was made to prove the contents of the letters by Hulbert or Campbell. They testified merely to the correctness of the copies of certain passages, and thereupon without proof or attempt at proof of the remaining contents these extracts were offered, received and read in evidence. This ruling seems in conflict with Sizer v. Burt (4 Denio, 426), and must lead to a new trial. This seems a vexatious and useless formality, since in all probability the same evidence will be given with no more of the contents of such letters having the slightest bearing on the issue. But we are constantly reminded by our highest court that in actions at law the slightest error which might, by possibility, have influenced the decision will call for the reversal of the judgment. We cannot say that other contents of the letters may not explain these ‘ extracts,’ although Judge Hulbert swears to his opinion that they do not. In the case cited it appears that a similar opinion was held to be not evidence of the fact.
    New trial granted, costs to abide the. event.”

      A. Pond, for the appellant. R. O. Betts, for the respondent.
   Opinion by

BoardmaN, J.

Present — Learned, P. J., Boardman and Bocees, JJ.

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


author: Barnard, P. J. :

text:
    ROBERT MURRAY, Jr., Appellant, v. DOUGLASS ROBINSON and JAMES F. COX, Respondents.

      Bxtra ctllowcmce— Code, § 309.
    Where in an action npon a money demand the plaintiff claims to recover $,7,000, and npon the trial obtains a verdict for six cents, an extra allowance cannot be granted to the defendant, under section 309 of the Code, based upon the amount claimed by the plaintiff.
    Appeal from an order made at the Special Term granting an extra allowance to the defendant, under section 309 of the Code.
    This action was brought to recover ¡¡¡>7,750, to which amount the plaintiff claims to have been damaged, by the failure of the defendant to effect an insurance to that amount upon a vessel belonging to the plaintiff. Upon the trial the plaintiff had a verdict of six cents.

      Dexter A. Hawhins, for the appellant.

      Treadwell Cleveland, for the respondents.
   Barnard, P. J. :

We have twice held in this court that the allowance in question could not be made; the first case was Morse v. -, tried at Circuit. Tlie complaint claimed $1,500 as a contract-price for the manufacture of brick machines. The defendant averred in his answer that the machines were warranted to accomplish a. certain result, and failed; that he had paid $500 on the contract, and asked to recover that sum. The jury found a verdict for defendant for $500, and the court, at Special Term, held that no extra allowance could be made beyond five per cent on the recovery, $500. This court at General Term affirmed this order. The second ease was the case of Pinder v. Stoolhoff (reported in 7 Abbot [N. S.], 433). There the recovery was'by the plaintiff, for six cents. This court held that the defendant was entitled to no extra allowance, because he had not recovered.

This action is a pure action at law upon a money demand. There cannot be two recoveries — one by the plaintiff for damages and the other by the defendant for costs. The words recovery or claim,” in section 309 of the Code, have a technical, legal meaning— when the plaintiff succeeds he recovers, when the defendant succeeds he destroys the plaintiff’s claim.

The order granting an extra allowance should be reversed, with costs and disbursements.

Present — Baenaed, P. J., Peatt and Dyeman, JJ.

Order reversed, with, costs and disbursements.


author: BakNARd, P. J.:

text:
    ANDREW S. SCHOONMAKER and LEFEBRA D. GORDON, Appellants, v. RICHARD A. VERVALEN, SAMUEL A. VERVALEN and CHARLES B. BENSEN, Respondents.

      Sale of personal property — delivery not necessary to pass title — no actual change of possession — presumption arising from.

    The firm of Weyant Bros, manufactured certain paper for the plaintiffs, the consideration therefor being merchandise previously furnished Weyant Bros, to be paid for in such paper. On the nineteenth of May, while a portion of the paper not yet delivered was in their mills, a judgment was recovered against the firm by the defendant, execution was issued thereon on the same day, under which the goods were levied upon on the twenty-third and subsequently sold. On the twentieth the firm executed a bill of sale of the paper to the plaintiffs, who, however, did not take possession of the same.

      Upon tie trial of tiis action brought to recover tie value of tie goods so sold by defendant, tie judge charged that tie sale was not valid unless tiere was an actual delivery of tie property. Held, that this was error; that a delivery is not necessary to pass tie title to personal property, and tie failure to take possession of tie paper only cast upon tie plaintiff tie burden of establishing to tie satisfaction of tie jury that tie sale was made in good faith.
    Appeal from an order denying a motion for a new trial, made upon the minutes of the justice before wbom the action was tried.

      Geo. W. Weicmt, for the appellants.

      A. E. Suffern, for the respondents.
   BakNARd, P. J.:

The question between these parties was one of title to personal property. The plaintiffs, merchants in the city of New York, sold goods to Weyant brothers, a firm of paper makers at Haverstraw, Rockland county, and ordered some three tons of paper, and paper goods to be made for them on account thereof. The Weyants had received in goods, more than sufficient to pay for the paper goods ordered. A part of the paper ordered was delivered from time to time, and the remainder was made, but lay at the Weyant mills on the 19th of May, 1874. On that day an execution was issued and delivered to the sheriff of Rockland county, upon, a judgment recovered by the defendant Vervalen, against the Weyants. On the twentieth of May the Weyant brothers executed a bill of sale of the property in- question to the plaintiffs. On the 23d of May, 1874, the sheriff made his levy on the property. The bill of sale was delivered at Haverstraw, and the plaintiffs after its receipt, did not go to the paper mill where the paper then was. The sheriff sold the property. Upon the trial the judge decided, and I think correctly, that no title would pass in the paper under the original order for the manufacture, except as to that part thereof which was actually delivered. In other words, that all property in the mill not delivered was at the risk of the manufacturers. This left but two questions under the bill.of sale for the jury. One was as to the lien of the execution after delivery of the same to the sheriff, under 2 Revised Statutes, 365 (Ray v. Birdseye, 5 Den., 619), and the other, as to the good faith of the bill of sale itself. (3 Revised Statutes [5th ed.], 222.) The first question seems not to have been noticed at the trial. Upon the second question, the judge charged the jury, unless there was an actual delivery of the property from the Weyant brothers to Mr. Gordon, the plaintiffs have no title to the property as against the creditors in the execution.” I think this was erroneous. A sale of personal property passes the title without delivery. (Terry v. Wheeler, 25 N. Y., 520; Olyphant v. Balter, 5 Den., 382; Chitty on Contracts [5th Am. ed.], 332.) The statute above cited has made a sale unaccompanied by an immediate delivery, and followed by an actual and continued change of possession, presumptively fraudulent as against creditors and purchasers in good faith, and conclusive evidence of fraud, unless the persons claiming under such sale establish, to the satisfaction of the jury, that the sale was made in good faith and without intent to defraud the creditors or purchasers. (Mitchell v. West, 55 N. Y., 107.) The error was a vital one upon a trial involving the title to the property.

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

Present — ■ BaeNAed, P. J., and Dteman, J. Pbatt, J., not sitting.

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


author: BaeNARd, P. J. :

text:
    MARY A. WETMORE, Respondent, v. J. HAMILTON JAFFRAY, Appellant.

      Contrast for boa/rd— breach of — when action mwy be brought for — measure of damages.

    Plaintiff and defendant entered into an agreement whereby the former was to furnish rooms and board for the defendant and his family for one year, from March 24, 1875. Defendant left the house on May 27, 1875, without sufficient reason therefor. Afterwards and before August twentieth plaintiff for a time had boarders in defendant’s rooms. August twentieth plaintiff gave up the house. Reid,, that the plaintiff was entitled to bring an action for the breach of the contract without waiting for the expiration of the year, and that in such action she could only recover the damages suffered at the time of the commencement thereof.

      The damages, in such an action, would he the profits that she would have made up to August twentieth, had the defendant performed the contract on his part, deducting the profits on the hoarders put in defendant’s rooms.
    The contract provided that in case of the absence of the defendant and his family-only half the price should he paid. Held, that this only applies in case he retained the rooms, and that he could not claim an allowance therefor after he had wholly abandoned the contract on his part.
    Aepeal from a judgment of the City Court of Yonkers in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The judge found that on or about March 9, 1815, defendant agreed to board, with his family, with plaintiff, at plaintiff’s house in the city of Yonkers, for one year from March 24, 1875, and agreed to pay plaintiff for said board the sum of eiglity-five dollars per week, and in case of defendant and family’s absence, one-half of that sum. That on said twenty-fourth of March, defendant and his family went to plaintiff’s house under said agreement, and there remained and boarded under said agreement until the 27th day of May, 1875, when he left the same without any sufficient reason therefor. That on the 20th of August, 1875, plaintiff gave up the house where the apartments occupied by defendant from March 24 to May 27, 1875, were situated, which house was rented by her, and did not live there any longer. That it appears by the evidence that between the 27th day of May, 1875, and the 20th day of August, 1875, plaintiff rented some of the rooms which had been occupied by defendant prior to May 27, 1875, and received therefor the sum of $899. And decided that defendant was liable and indebted to plaintiff for damage, for his non-performance of contract, for the sum of eighty-five dollars per week from the 27th of May, 1875, to the 20th of August, 1875, making an aggregate of $1,020, from which must be deducted $399, making the amount so due the sum of $621, with interest from August 20, 1875.

      Isaac L. Miller, for the appellant.

      Ralph E. Prime, for the respondent.
   BaeNARd, P. J. :

I think the contract is admitted by the answer. The complaint avers that the plaintiff agreed to furnish board and rooms for the defendant and liis family, and the defendant agreed to pay therefor eighty-five dollars per week for the space of one year from March 24, 1815. The defendant admits that he did make an agreement with the plaintiff to board and lodge with her for a space of time equal to one year from the 24th March, 1815, to the 24th March, 1816, at the rate of eighty-five dollars per week. In a pleading we must assume an admitted agreement to be a legal agreement. It is too late, therefore, for defendant to question the sufficiency of the proof of the agreement. Under this agreement the defendant and his family were lodged and boarded at plaintiff’s house by her from 24th March, 1815, until the 21th May, 1815. That defendant paid according to the contract while he remained. There was a question of fact as to justification of defendant in leaving plaintiff’s house. The referee has found this issue in favor of plaintiff, and the evidence is so conflicting that the decision of the referee thereon must stand. There is, then, an agreement; it was broken on the twenty-seventh May by defendant without legal right. On the twentieth August plaintiff gave up the house in which she was to board and lodge defendant. Between the time defendant left and the twentieth August plaintiff had put boarders in the defendant’s rooms and had received $416 on account thereof.

Under this state of facts the first legal question is, can the plaintiff sue before the end of the year ? I think it clear she may. The _ contract was broken on twenty-seventh May. She has her action as soon as there is a breach. The contract is an entire one, and there can be but one action for the breach. (Colburn v. Woodworth, 31 Barb., 381.)

The plaintiff can recover no damages, except those suffered at the time of the commencement of the action. The plaintiff owed the duty to'defendant to let the rooms to other lodgers and thus relieve the defendant. (Wilson v. Martin, 1 Denio, 605; Dillon v. Anderson, 43 N. Y., 231.)

She put the duty out of her power on 20th August, 1815, so that her damages must have been suffered before that date. I think the defendant is not entitled to have one-half deduction made for his absence under the contract. That was permitted if he stayed and kept the rooms. In that case the plaintiff would have furnished no board. After the contract was rescinded plaintiff’s duty was to relet the rooms, if possible. She did so.

I think the referee adopted an incorrect rule of damage. The utmost amount would be the profit the plaintiff would have made if the defendant had performed. If the defendant had stayed until August twentieth plaintiff would have received $1,020; for this she would have furnished rooms and board. She did neither, but furnished substantially the same rooms and board to others for which she received $4ff6.

If the defendant had performed his contract the plaintiff would have been benefited $102.50, as plaintiff testifies, per month, which would be $282; from this is to be deducted the profit on the boarders the plaintiff put in defendant’s rooms.

The case does not disclose what this is, if any thing. Neither does the case show that plaintiff suffered loss by them. I can assume neither profit or loss under the evidence and think, therefore, that the judgment should be reduced to $282, and affirmed for that sum without costs to either party upon appeal.

Present — Baenaed, P. J., Peatt and Dtkman, JJ.

Judgment modified in accordance with opinion of Justice BAENAED.


author: BaeNAed, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD RIDLEY, Respondent, v. JOHN N. TAYLOR, Appellant.

      Collector'of assessments fin' Brooklyn park commissioners —afitm' he has ceased to he such — comeyanees to he executed hy — chapter 789 ofi 1873.
    Where the collector, appointed hy the commissioners of the Brooklyn park, has sold lands in pursuance of chapter 789 of 1873, which provides that ‘ ‘ upon a sale being made the said collector shall give certificates of sale to purchasers, and ’ shall also execute and deliver conveyances of the land so purchased unless the same shall have been redeemed,” and has issued certificates of sale to the purchaser, he must execute and deliver the conveyances thereof, upon the expiration of the two years allowed for redemption, even though he may have previously thereto resigned his position as collector and another person has been appointed in his place.

      Appeal from an order made at the Special Term allowing a writ of peremptory mandamus, directing the appellant to execute and deliver to the relator conveyances of lands sold to him under chapter 789 of 1873.

      John JT. Taylor, in pro. per., appellant.

      Philip 8. Croohe, for the respondent.
   BaeNAed, P. J.:

The defendant, in December, 1873, was the collector of assessments appointed by the Brooklyn park commissioners. As such collector he sold certain lands for unpaid assessments, according to the authority given him under and by chapter 789 of Laws of 1873. The relator bought nine pieces of land, and the defendant, as such collector, gave the certificate of sale required by that act to him.

The act provides that: “ Upon a sale being made the said collector shall give certificates of sale to purchasers, and shall also execute and deliver conveyances of the lands so purchased, unless the same shall have been redeemed by an owner, lessee or mortgagee thereof) within two years from the time of sale.”

After the sale, and before the end of the two years, the defendant resigned as collector and a successor was appointed by the park commissioners. The question presented is, whether the defendant shall give the deed or his successor in office. I think the defendant must give the deed. He sold the land, received the money and gave the certificate. Pie alone is paid for his services. The act seems to say plainly that the same collector who gave the certificate of sale shall give the deed, unless redeemed within two years. The new collector is charged with no duty in regard to the sale; he can receive no compensation. -I can see no application which the cases cited by appellant have to the question. The case of People v. Mayor (5 Barbour, 43) decides that the corporation of the city of New York, after having appointed commissioners of estimate, may remove them. The case of Corporation v. Manhattan Co. (1 Caines, 507) decides that a judge, after appointing commissioners of estimate, under a certain act of the legislature, had no power of removal.

The act of 18Y3 requires only two things to entitle the purchaser to his deed ; purchase at the sale and no redemption for two years. All former laws requiring notice by purchaser were abrogated.

We think the order should be affirmed, with ten dollars cost and disbursements.

Present — Baenaed, P. J., and DyKMAn, J. Pbatt, J., not sitting.

Order affirmed with costs.


author: Baenaed, P. J.:

text:
    STIRES FRITTS, Respondent, v. CALVIN SLADE, Appellant.

      Arrest — fraud—statute of limitations — maided by payments.

    This action was brought upon a promissory note given in 1869, but upon which payments had. been made within six years. Alter the time to answer had expired, plaintiff procured an order of arrest, on an affidavit that the note was given for the balance of a credit for goods sold to the defendant in 1868, upon fraudulent representations then made by him. Held (1), that as this action was upon the note, an order of arrest could not be procured on the ground that the debt for which it was given was fraudulently incurred; (2), that the claim arising from the fraud was barred by the statute of limitations, and that the payment kept alive the note alone, and not the fraud.
    Appeal from an order denying a motion to vacate an order of arrest.

      F. B. Van Vlecle, for tbe appellant.

      P. JD. Gibbs, for the respondent.
   Baenaed, P. J.:

In August, 1868, the defendant is charged by plaintiff with having made a false representation to him as to his property, with an intent to obtain merchandise of plaintiff on credit. That soon thereafter, goods were delivered from time to time and large payments made thereon as the time of the credits expired, until the 26th of May, 1869, when the account was closed, and on a settlement thereof, the defendant gave to the plaintiff his promissory note for $274.16, payable one month after date. The note was not ■paid, but payment has been made thereon within six years. The plaintiff, in January, 1876, brought an action upon this. note. The defendant made no answer, and after the time for answering expired obtained an order of arrest upon an affidavit charging fraud in the month of August, 1868, by means of which the business dealing commenced between the parties.

I think this remedy does not exist in this case. The action is upon the note. No fraud is claimed as to that. An arrest is not authorized for a fraud, whereby a prior and different obligation was incurred to pay the same money. (Mallory v. Leach, 23 How., 507; Merchants' Bank v. Dwight, 13 id., 366; Alliance Ins. Co. v. Cleveland, 14 id., 408.) The statute of limitations furnishes another and a complete defense to this order. The fraud, if any, was perpetrated over six years before this action was commenced. The note itself would be barred, but for the payment upon it; payment upon the note does not revive and keep alive a fraud. (Oothout v. Thompson, 20 Johns., 277.)

The order should be reversed and the order of arrest vacated, with costs of the motion at Special Term and upon appeal, besides disbursements, to be deducted from the plaintiff’s claim.

Pbatt and DyKMAN, JJ., concurred.

Order reversed, with costs and disbursements.


text:
    THE PEOPLE ex rel. WILLIAM DARGIN, Appellant, v. DAYTON T. COX, Police Justice of the Village of Port Jervis, Respondent.

      Oluvp. 370 0/1873 — Police justice of Port Jervis —Mai by jury.

    Section 40 of chapter 370 of 1873, authorizing the police justice of the village of Port Jervis to hear and determine all cases arising under the charter, by-laws and ordinances of said village, was not' intended to require the justice to try-such cases alone, but where a jury is proper the persons brought before him are entitled to a trial by jury.

      Weit of certiorari to review the proceedings and judgment had before the police justice of the village of Port Jervis, in the case of the village of Port Jervis against the relator, William Dargin.

      Allerton & Mills, for the appellant.

      John W. Lyon, for the respondent.
   BaeNAed, P. J.:

The legislature inserted in the charter of the village of Port Jervis the following section :

“ Section 40. The police justice shall, in said village, possess all the jurisdiction, powers and authority, be subject to the same requirements, duties and liabilities, within said village, in all respects, as are or may be by law vested in or required of the justices of the peace in the town of Deerpark, and he shall have jurisdiction to hear and determine all cases arising under the charter, by-laws or ordinances of said village. But in case of the temporary absence or inability of said police justice to perform the duties of that office, the same may be performed by a justice of the peace of the town of Deerpark.”

The trustees of the village were empowered to pass ordinances on certain subjects, and among others, as to drinking-houses, on Sunday. The trustees executed this power by passing an ordinance that all drinking-saloons and places where spirituous liquors were sold should be closed on Sunday, under a penalty of twenty-five dollars for a violation of the ordinance.

A civil action was brought by the village of Port Jervis against the relator, before the police justice. Issue was joined between the parties, and before the commencement of the trial the defendant in that action demanded a jury to try the same. This was refused by the justice, upon the ground that under section 40 of chapter 370 of Laws of 1873, above cited and set forth, the justice was alone empowered to try the issue.

I see no basis for this ruling under that section; the police justice by it is clothed only with the power of a justice of the peace within the village. He is made competent to try cases arising under the charter and by-laws of the village whose officer he is. This was upon the condition of his giving the citizen his legal rights during the trial.

It was the right of the defendant (the present relator) to have a jury, and a denial of that right was error, requiring the reversal of the judgment.

Present — LeaeNed, P. J., and DyKMAN, J. Peatt, J., not sitting.

Judgment reversed, without costs.


author: BakNaed, P. J.:

text:
    LOUIS K. CHURCH, Sole Executor, etc., Respondent, v. JAMES MALOY and others, Appellants.

      Mortgage — payment of bonus for extension — foreclosure, for non-payment of interest — right of mortgagor to home bonus applied on interest.

    In September, 1874, a mortgagor paid to the mortgagee $500 to procure an extention of the same for three years. The interest falling due November 1, 1875, remaining unpaid for twenty days, an action was brought, in pursuance of a condition therein, to foreclose the mortgage. The mortgagor insisted that the payment of $500 should be applied in payment of the interest falling due November 1, and the action dismissed. Held, that the referee rightly refused so to do, and that a judgment should be entered for the amount appearing to be due on the mortgage after deducting the $500, with interest thereon from the time of its payment.
    Appeal from a judgment in favor of the plaintiff entered upon the report of a referee.
    The action was brought to foreclose a mortgage for non-payment of interest within twenty days after it became payable.
    The defendant claimed that when the interest became due, plaintiff had received from him, and had then in his hands more than the amount of the interest.
    The payment of the principal was extended by a covenant made September 1,1874, until 1877, in consideration of which the defendant paid to said Church the sum of $500, and assigned to him a judgment for $123,46.

      The interest was paid to May 1, 1875.
    The defendant was allowed the credit of $500 and interest from September, 1874, as a payment on account of principal, and a judgment of foreclosure was entered for the balance from which this appeal was taken.

      Philip 8. Oroolce, for the appellants.'

      Samuel Garrison, for the respondent.
   BakNaed, P. J.:

There was no legal application of the $500 paid by defendant Maloy to plaintiff for the extension of time of payment of the mortgage. It was not designed by the parties to be a payment on the mortgage. No notice was given by either party applying it. It was simply a sum of money paid by a mortgage debtor to obtain lenity. The,law will not permit the holder of the mortgage to keep it. He cannot in justice and equity retain it. The debtor may sue for the money or have it applied on the mortgage. The law does not, however, apply it unless he asks its application. By the non-payment of the half-yearly interest which became due November 1, 1875, and its continuance in arrears for more than twenty days thereafter, the whole principal and interest became due by the terms of the bond. No application of the $500 had then been made. The defendant, by his answer, asks to have it applied after suit brought on account of the interest due first. The referee allowed it on the principal and interest. This was the right disposition of it. (Hartley v. Tatham, 1 Keyes, 222.)

Judgment affirmed, with costs.

Present — BaeNAkd, P. J., Pbatt and DyKMAN, JJ.

Judgment affirmed, with costs.


text:
    FLORENCE VERDIN v. WILLIAM B. SLOCUM and others.

      Will — trust to receive rents with remainder over — trustee holds entin'e legal title.

    A testator devised all his estate to his executors in trust to divide the same into three equal parts, and to suffer his wife to receive the rents, issues and profits of one part for her natural life, and after her death he devised the said part to four grandchildren, naming them, and to the survivors, for their own absolute use and benefit, giving power to the executors to sell the real estate, invest proceeds, etc. Reid, that the entire estate was vested in the trustees, and that the grandchildren were not necessary parties to an action brought to foreclose a mortgage upon a piece of real estate of which the testator died seized. The will provided that “ as to one other third part or share of my said estate, I direct my said trustees to permit and suffer my son William B. Slocum to have, receive, and take the rents, issues and profits thereof for the term of his-natural life, and after his decease I give, devise, and bequeath the same part or share to the heirs at law of my said son; ” and then gave his trustees power to sell real estate and invest the proceeds. Held, that a valid trust was created as to this part, and that the entire estate vested in the trustees, so that it was not necessary to make a judgment creditor of the son a party to the action to foreclose said mortgage.

      Semble, that the trustee being alone entitled to the surplus arising upon the sale, might execute the power of sale by adopting the sale made in the foreclosure action.
    Appeal from an order made at the Special Term denying the motion made by S. M. Thompson, who purchased premises sold under a judgment of foreclosure entered in this action, to be relieved from his bid.
    The action was brought to foreclose a mortgage, executed by the defendant William B. Slocum to the plaintiff on lands in Rockland county, which were subsequently conveyed to Hiram Slocum subject thereto, and which were held by him at the time of his death. Hiram Slocum left a will, of which the provisions are set forth in the opinion, under which James J?. Wallace alone qualified as executor and trustee. The purchaser claims that the proceedings were defective because certain parties having interests in the lands were not brought in.

      Joseph 0. Brown, for Thompson, appellant.

      Andrew Fallon, for plaintiff, respondent.
   BaeNAed, P. J.:

William B. Slocum, by his last will, distributed his residuary estate as follows: Sixth. I give, devise and bequeath all the rest, residue and remainder of my estate and effects, both real and personal, and wheresoever the same may be, unto my said executors, upon the trusts following, that is to say, to divide the same into three equal parts, and as to one of such parts to permit and suffer my wife to have, receive and take the rents, issues and profits thereof for the term of her natural life, and after her death I give, devise and bequeath the same part or share equally between and amongst my grandchildren Harrison Stephens, Hiram Stephens, Florence Stephens and Nellie Stephens, or the survivors of them, for their own absolute use and benefit. * * * to one other third part, or share, of my said estate, I direct my said trustees to permit and suffer my son, William B. Slocum, to have, receive and take the rents, issiies and profits thereof for the term of his natural life, and after his decease, I give, devise and bequeath the same part or share, to the heirs at law of my said son, William B. * * * As to the remaining one-third part, or share, of my said estate, I direct my said trustees to permit and suffer my daughter, Florence Slocum, to have, receive and take the rents, issues and profits thereof for the term of her natural life, and after her decease, I give, devise and bequeath the same part or share to the heirs at law of my said daughter, Florence. * * * yAnd for the purposes aforesaid I hereby authorize and empower my said executors and trustees at any time in their discretion, and from time to time, to sell and dispose of any real estate, or any part thereof, or to postpone the sale thereof, and to invest the proceeds of such sale in and upon such securities as they shall see fit, and the same investments to change as they shall think fit.”^

The testator died seized of a piece of land in Rockland county, subject to a mortgage, which had been sold under the decree in this action.’ The purchaser declines to take the title for the reasons: First. That a judgment creditor of Wm. B. Slocum was not made a party. Second. That the service of the .summons-, by publication, on Romeo H. Stephens, Homer B. Stephens, Francis Stephens, Florence Stephens, and Nellie Stephens, was invalid, because the summons, as published in one of the designated papers, stated that tbe complaint was filed on 20th May, 1875, in Rockland county, and the other that it was so filed on 21st May, 1875, whereas in fact the complaint was not filed until May 24, 1875.

As to the first point, it is very clear that the executors took an active trust estate for the life of Wm. B. Slocum as to the one-third, from which he was to have the proceeds during his life. The trust is authorized by the Revised Statutes; no particular form of words is necessary to declare the trust. The language used by the testator establishes a legal trust. The devise is to the executors in trust to divide into three parts, and as to one part to permit and suffer my son, William B. Slocum, to have, receive, and take the rents, issues and profits thereof, for the term of his natural life.” ^Power of sale, investment and reinvestment is given to carry out this provision of the will.^* “If the direction is such as to vest the title in the trustee; if his duties are active instead of passive; if the premises are subjected to his control, so that he may, in his pleasure and discretion, exclude the beneficiary therefrom, and, if with these directions, there is no other declared purpose of the testator, a trust to receive the rents and profits is the necessary result of the arrangement.” (Beekman v. Bonsor, 23 N. Y., 298.) The purpose of the trust is embodied in the language used. (Vernon v. Vernon, 53 N. Y., 351.) As to the defendants, upon whom service by publication was made, they were not necessary parties for the reason given, as to the judgment creditors. The trustee under the will holds the entire legal title. The grandchildren named in the will “ to take the same part or share,” which was to furnish rents, issues and profits to the wife of testator for life, took no legal title in the real or personal estate of deceased. The trustee is alone entitled to the surplus arising upon the sale, and may execute the power of sale by adopting the sale made in this action.

Order affirmed, with ten dollars costs, besides disbursements.

Present — BarNAed, P. J., Peatt and DyemaN, JJ.

Order affirmed, with.costs and disbursements.


author: Pratt, J.:

text:
    DAVID J. BLAUVELT, Appellant, v. THE VILLAGE OF NYACK and others, as President and Trustees, Respondents.

      Villages — Legislature may ddegate power to •them to terminate them' existence— .'Repealed law — re-enacted by reference thereto — chap. 391 of 1870 — chap. 638 of 1874 — chap. 436 of 1847— Constitution, a/rt. 8, § 1.
    Prior to the passage of the constitutional amendments of 1874 (art. 8, § 17), the legislature had power to incorporate a repealed law into an existing statute, by a reference to the section of the law sought to he re-enacted.
    Accordingly held,, that, hy section 1 of chapter 638 of 1874 (amending chapter 391 of 1870, in relation to the incorporation of Tillages), which provides that sections 90 and 91, of chapter 426 of 1847, shall form a part of said act, and apply to all villages already incorporated, or which might thereafter be incorporated thereunder, said sections were re-enacted, and became a portion of the laws of the State. .
    Sections 90 and 91, of chapter 436 of 1847, authorizing incorporated villages to discontinue and terminate their existence, upon complying with the provisions thereof, are not an unauthorized delegation of legislative authority, and are constitutional and valid.
    The legislature may authorize the dissolution of a village, even though rights acquired thereunder are thereby injuriously affected.
    Appeal from an order made at the Special Term, denying a motion for &■ temporary injunction.
    The action was brought to restrain the village of Nyack, incorporated under chapter 291 of 1870, from taking steps to terminate its corporate existence, under chapter 628 of 1874, on the ground that the latter act is unconstitutional and void.

      G. P. Hoffman, for the appellant.

      Quentin MoAdam, for the respondents.
   Pratt, J.:

Article 8, section 1, of the Constitution provides that corporations may be formed under general laws, and that all general laws passed pursuant to that section may be altered from time to time or repealed. By section 9 of that article, it is made the duty of the legislature to provide for the organization of incorporated villages.

In exercising this power and duty, the legislature, in 1847, passed An act to provide for the incorporation of villages.” (Laws of 1847, chap. 426.) By section 90 of that act provision was made for discontinuing and terminating the existence of any ^.incorporated village, incorporated under the act, by a popular vote, to be expressed at an election.

In 1870 the legislature passed a new act providing for the incorporation of villages. This act made no provision for the discontinuance or the termination of the existence of such corporations, but repealed all other acts and laws for the general incorporation of villages, as to the future incorporation thereof. (Laws of 1870, chap. 291, title 8, § 32.)

The village of Nyack was incorporated in 1872 under this act. By chapter 628 of the Laws of 1874 (§ 1), the legislature enacted that section 32 of title 8 of the aforesaid act of 1870, should be amended so as to read as follows: All other general acts and laws of this State for the general incorporation' of villages are hereby repealed as to the future incorporation of villages, except sections 90 and 91 of chapter 426 of the laws of 1847, which sections shall form a part of this act and shall apply to all villages already incorporated or which may be hereinafter incorporated under this act.”

Proceedings having been commenced pursuant to the provisions contained in section 90 of the act of 1847 to terminate the corporate existence of the village, this action was instituted to restrain such proceedings.

The maintenance of the action is urged upon three grounds: 1. That section 1 of the act of 1874 was inoperative as a re-enactment of section 90 of the act of 1847. 2. That said section.90 is a mere delegation of legislative power and is therefore void. 3. That no power to destroy a village has been given to the legislature, where such destruction will injure rights previously acquired. We are of opinion that neither of these positions can be sustained.

The intention .of the legislature to re-enact the provisions of. sections 90 and 91 of the act of 1847 is perfectly plain; nor was there any objection to reviving a statute, which had been repealed, by the mode pursued in this instance. There was then no constitutional-prohibition against that method of legislation and it was in common use. The fact that an amendment of the Constitution was necessary to make it illegal, shows that previous to such amendment it was legal. (Guest v. City of Brooklyn, 8 Hun, 98.) "With respect to the second objection it is sufficient to say that the proceedings prescribed for discontinuing the village are in all respects similar to those prescribed for its incorporation. If the objection should be upheld, the village never had a legal existence and the plaintiff cannot be injured by having it discontinued in any mode.

But we think that there was no delegation of legislative power in one case, further than pertains to every grant of a franchise, or in the other beyond that which all corporations possess of surrendering the corporate franchise and dissolving the corporation. It is certainly competent for the legislature to provide in what way such acts should be manifested and authenticated, and what shall be their legal effect.

The third objection is answered by the provisions of the Constitution above referred to granting the power to alter and repeal all general laws for the incorporation of villages. All rights acquired under such laws are necessarily subject .to the exercise qf that power at any time.

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

Present — BabNAed, P. J., and Peatt, J. Dyeman, J., not sitting.

Order affirmed, with costs.


author: PRATT, J.:

text:
    ADELIA K. BROOME, Respondent, v. HELEN F. TAYLOR and JAMES T. TAYLOR, her Husband, Appellants.

      Married women — coverture rrmst be set v/p in answer — allegations of com/plczint as to.

    Where in an action brought against a husband and wife, upon a bond given by the wife, the caption of the complaint described him as “her husband,” held, that this referred only to the time when the action was commenced, and did not amount to an allegation that she was a married woman at the time of giving the bond.
    The complaint set forth a copy of the bond, in which she was described as the wife of the defendant James. Held, that this did not amount to an allegation that she was the wife of the defendant James, hut merely that she executed a paper in which she was so described.
    Appeal from an order overruling a demurrer as frivolous and directing k judgment for the plaintiff. The action was brought upon a bond executed by the defendant Helen F. Taylor. The defendant demurred on the ground that .it appeared on the face of the complaint that the defendant was a married woman and not liable thereon.

      Oroolts & Ta/ylor, for the appellants.

      James IE. Broome, for the respondent.
   PRATT, J.:

The complaint nowhere alleges the coverture of the defendant Helen, at the time she executed the bond.

The caption of the complaint describes the defendant James as her husband.

'But-that can only be held to refer to the time when the action is brought.

The complaint contains a copy of the bond, in which defendant Helen is described as the wife of defendant James.

But the pleader does not thereby allege that she was his wife, merely .that she executed a paper in which she was so described, in other words, that on a certain occasion, she called herself his wife. If the coverture existed, and was relied on as a defense, it should be distinctly pleaded.

Suppose defendant Helen had pleaded in bar to the complaint, that at the time she made the bond, she called herself a married woman.

That allegation would be the exact equivalent of the one now relied on to show her coverture.

It would be no defense to her bond, when pleaded as an answer, and it is no defect in the complaint that it appears therein.

Order affirmed, with costs and disbursements.

Present — Pratt and Dyeman, J J. BarNArd, P. J., not sitting.

Order overruling demurrer affirmed, with costs.


author: Peatt, J.:

text:
    MARY McK. SCHOFIELD, Respondent, v. HENRY H. HUSTIS and SAMUEL SEWELL, Impleaded with COLDWELL D. CHURCHILL and others, Appellants.

      Executor ■ — bond—conditioned to obey all orders of surrogate touching the estate — liability of sureties upon, for money theretofore misappropriated.

    Upon the application of a legatee to secure the removal of an executor, on the ground that he had improperly invested moneys of the estate, and had removed from the State, the surrogate ordered that security he filed within five days, or that he he removed. A bond was accordingly filed, pursuant to 2 Revised Statutes, 72, section 20, conditioned, among other things, that “he shall obey all orders of the surrogate touching the administration of the estate committed to him.” Held, that the sureties to this bond were liable, not only for all sums received by the executor after the giving of the bond, but also for all moneys misappropriated by him before that time.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe trial of this action by the court without a jury.
    This action was brought upon a bond given by the defendant Churchill, as executor of Henry Churchill, deceased, to recover from him, and from the sureties thereto, the amount of $583.75, which said executor had been ordered by the surrogate to pay over to the plaintiff herein, as one of the residuary legatees of the deceased.
    The condition of the bond was as follows : “ The condition of this obligation is such that if the above bounden Coldwell D. Churchill shall faithfully execute the trust reposed in him as executor of the last will and testament of Henry Churchill, deceased, late of the town of Fishkill, and also obey all orders of the surrogate of the county of Dutchess, touching the administration of the estate committed to him.”

      M. A. Fowler, for appellant Hustes.

      Oassedy & Brown, for appellant Sewell.

      O. JD. M. Baker, for the respondent.
   Peatt, J.:

In September, 1868, one of the legatees applied to the surrogate to remove the defendant Churchill as executor, on the ground that he had improperly invested moneys of the estate, that he had removed from the State of New York, and removed a part of the personalty of the estate from the jurisdiction of the court.

The surrogate directed that he file security in five days or be removed. Whereupon defendants (one of whom was his counsel in the proceedings) executed the bond in suit, pursuant to the statute (2 Eevised Statutes 72, § 20), conditioned, among other things, that “he shall obey all orders of the surrogate touching the administration of the estate committed to him.” Continuing to act as executor, the surrogate in 1875, adjudges him to pay the plaintiff $580.48, with interest. Execution against him being returned unsatisfied, suit is brought upon the bond. The sureties seek to defend, by showing that the proceeds had been misappropriated prior to the execution of the bond. The judge at Special Term overruled the defense, we think, correctly.

The bond was not conditioned that defendant Churchill would account for all moneys received thereafter'; it was that he should obey all orders of the court touching the estate. Under the restricted construction contended for by defendant, their bond would not be a protection, but a snare to the legatees, and a shield to the defaulting executor.

We think the condition of the bond was broken, when the executors failed to pay over the moneys of the estate, pursuant to the decree of the surrogate.

It follows that none of the exceptions were well taken, and the judgment is affirmed, with costs.

Present — Peatt and DyeaiaN, JJ. BaeNAed, P. J., not sitting.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CASPER C. CHILDS, Jr., Respondent, v. GEORGE W. CARTWRIGHT, President of the Village of Sing Sing, Appellant.

      Restriction as to m'eation of debts — Sing Sing — milage ahcurtm' — clicvp. 489 of 1869 — chap. 668o/1870.
    Section 10 of title 7 of the charter of the village of Sing Sing (chap. 489 of 1869, as amended by chap. 663 of 1870), provides that the trustees shall have no power to contract any debt to an amount exceeding $10,000 in any one year. Held, that it was the duty of one rendering services to the village to ascertain: 1st. ■Whether the trustees were authorized to employ him. Sd. Whether the trustees had assumed obligations for that year which, with his claim, would exceed $10,000.

      EeId, further, that where at the time of contracting an indebtedness the amount of the liabilities incurred for that year did not exceed the sum mentioned in the statute, that a mandamus would issue to compel the payment of such debt out of moneys collected during the following year, although the whole amount authorized to be raised for the year in which the debt was incurred had already been expended.
    Appeal from an order of the Special Term awarding a writ of péremptory mandamus. This application was made to secure the payment of the amount due to the relator, under a contract entered into with the board of trustees of the defendant during the year ending April 6, 1816. The defense was, that as all the moneys authorized by the charter to be raised for that year had been expended, payment of the relator’s claim was forbidden by section 10 of title 7 of the charter (chap. 439 of 1859, as amended by chap. 663 of 1870), which reads as follows: “ The board of trustees of the village of Sing Sing shall have no power to contract any debt or liability upon or against said village, or enter into any obligation, or appropriate moneys for said village to an amount exceeding the sum of $10,000 in. any one year, unless a tax in addition to that amount shall have been authorized,” etc.

      Williams db Silliman, for the appellant.

      Samuel G. Watson, for the respondent. •
   Peatt, J.:

At the hearing of this motion at Special Term, it appeared that the claim sought to be enforced had been duly presented to and audited and allowed by the board of trustees of the village of Sing Sing, and ordered to be paid in conformity with the village charter.

It further appeared, from the affidavits on the part of the relator, that the liability was legally incurred, and that there were funds in the treasury applicable to its payment.

The case, as then made, justified the issuing of a writ as prayed for, unless there was an issue of fact raised by the affidavit of the defendant.

The defendant’s affidavit does not controvert any material fact asserted by the relator, but alleges that certain facts, which he claims to be established by his affidavits, constitute a defense to the application.

A careful examination of this affidavit discloses no statement that, at the time the relator was employed, the village had expended the amount it was entitled to expend under the charter for that year, nor that there were liabilities against the village to that amount, either at the time said services were rendered, or at any other time prior to the date of relator’s affidavit upon this motion.

It must therefore be assumed that the employment of the relator was legal and proper, and he was entitled to be paid for his services.

But the defendant further claims that, notwithstanding the village could legally incur this liability, and that at the time the services were rendered the relator had a valid claim, yet the village having, as he claims, expended the amount of money authorized by the charter to be expended in any one year, the village is absolved from paying the relator’s claim.

The conclusive answer to this proposition is, that the facts upon the record do not warrant the claim that the village had expended that amount; but assuming that it had, it is no defense to the action.

The restriction in the charter referred to by defendant (title 4, § 1, chap. 439 of 1859), is not that a debt incurred in one year shall not be paid out of moneys received in a subsequent year, but it is a limitation of power to incur liabilities, or raise money by tax, exceeding an amount stated.

Officers of municipal corporations are special agents, and every one dealing witb them is presumed to know the precise extent of their powers to bind the corporation they represent.

In this matter it was the duty of the relator, when applied to to render service, to ascertain: First, whether the trustees were authorized by the charter to employ him; second, whether the trustees had already made contracts or engagements with other persons for that year for an amount, so that, adding his claim, the aggregate would exceed the amount in the charter authorized to be raised for that year.

It being true that the trustees were authorized by the charter to contract with relator for such services, and that the trustees had not made contracts to the amount authorized, upon completing his contract, the relator was entitled to enforce a payment, and it was not within the power of any officer of the village to defeat this right. Order affirmed with costs and disbursements.

Present — Peatt and Dykman, JJ. BaeNAed, P. J., not sitting.'

Order affirmed, with costs and disbursements.


author: DyKmaN, J".:

text:
    THE OCEAN NATIONAL BANK OF THE CITY OF NEW YORK, Respondent, v. ELINOR HODGES, GEORGE W. HODGES, EDWARD F. HODGES and ANNE F. HODGES, Appellants.

      Fraudulent conveyornee — 1 R. 8., 728, §§ 51, 52 — rights of person paying for land taken in nazm of another.

    This action was brought by a judgment creditor of Q-. W. Hodges, to set aside as fraudulent certain conveyances made to the wife of the latter. In the years 1861, 1862, 1863, Hodges purchased land of the value of $30,000, and expended $40,000 thereon, the title being taken in the name of his wife. All the debts then owing by him were subsequently discharged. Held, that the wife took the property free from any trust in favor of her husband; and that, upon payment of his then existing debts, her title thereto became perfect. "
    In 1863 the said G-. W. Hodges purchased, on the joint account of himself and his brother, a piece of real estate for $6,000, each furnishing one-half of that amount, though the title was taken in the name of G-. W. Hodges alone. May 18,1867, G-. W. Hodges borrowed of his wife $15,000, and to secure the same agreed to convey to her, among other things, the one-half of this property, valued at $3,000. He accordingly conveyed the land to his brother who conveyed it to tie wife. G-. W. Hodges became indebted to tie plaintiff in 1866. In an action by the latter to set aside this conveyance, held, (1) that as to tie half owned by G-. W. Hodges, tie wife gave a full consideration therefor; (2) that though as to the other half the husband held the same by virtue of said statute, free from any trust in favor of his brother, yet he was morally bound to convey it to him, and that having done so, the plaintiff could not attack the conveyance as fraudulent.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the report of a referee.

      Wyllis Hodges, for the appellants.

      Dunning, HdsalL & Hart, for the respondent.
   DyKmaN, J".:

This action is brought to set aside conveyances from George W. Hodges and Elinor, his wife, to Edward F. Hodges, his brother, and from Edward F. Hodges,and Annie Hodges, his wife, to Elinor Hodges, the wife of George W. Hodges.

In the years 1861, 1862 and 1863, George W. Hodges bought three houses and several acres of land on Staten island, called the Townsend property, and had the title taken in the name of his wife, one of the above defendants.

He paid $30,000 for the property, paid off $10,000 of mortgages that were then on it, and expended $40,000 upon it for improvements. All the debts which were owing by George W. Hodges at the time of these transactions have been since paid. In the winter of 1863, Edward F. Hodges made a contract for the purchase of the piece of property in question in this action, called the Miraudote property, on the joint account of himself and his brother George "W". Hodges.

The taking of the conveyance was delayed until the 30th day of June, 1864, when the title was-taben in the name of George "W". Hodges alone, he paying the whole consideration therefor, which was $5,000. This was with .the consent of his brother Edward, and was under a parol agreement that he should hold the same, one-half for himself and one-half for his brother Edward. This fact is found by the referee. The fact is also found by the referee, that George W. Hodges charged one-half of the purchase money which he so paid for this property to his brother Edward, and the case shows that this same amount was credited to him by Edward, in an account which Edward had against him. Edward, therefore, paid the one-half of this purchase money.

On the eighteenth day of May, 1867, George W. Hodges borrowed from his wife the sum of $15,000, and for the purpose of paying the same to her, agreed to give her, among other things, his one-half interest in this Miraudote property, which was valued and put in at $3,000, and for the purpose of carrying out this agreement on the same day made, executed and delivered with his wife to his brother Edward, a deed of conveyance for this Miraudote property in question. The consideration named in this deed is $5,000, and it is dated May first, 1867. On the third day of July, 1867, Edward F. Hodges and wife, executed and delivered a deed of conveyance for this same property to Elinor Hodges, the wife of George ~W. Hodges. This deed is dated the sixth day of May, 1867, and is in the consideration of $5,000. This deed was recorded January sixth, 1871, and the deed to Edward F. Hodges, last mentioned, was recorded the twentieth day of May, 1867. The $15,000 loaned to George W. Hodges, by his wife, was borrowed from the Hnited States Trust Company, and secured by her by a mortgage upon the property first mentioned, called the Townsend property. The title to this Miraudote property is still in the wife of George W. Hodges. On the fifth day of June, 1866, George W. Hodges, became indebted to the plaintiff for money loaned to him, in the sum of $56,000. On the twentieth day of March, 1871, the plaintiff obtained a judgment against the defendant George W. Hodges, for the sum of $39,265.20, the balance remaining due on the loan, and before the commencement of this action an execution on this judgment, against the property of the defendant George W. Hodges, had been issued and delivered to the sheriff of Eichmond county, and returned wholly unsatisfied.

This action was brought by the plaintiff, to have the deeds from George W. Hodges and wife to Edward E. Hodges, and the deed from Edward F. Hodges and wife to Annie Hodges, for this Miraudote property, set aside as fraudulent, and have the bank judgment against George-W. Hodges declared a lien on this property. The action was tried before a referee and was decided in favor of the plaintiff, and judgment has been entered declaring both the said deeds of conveyance fraudulent and void, as to the plaintiff’s said judgment, and directing the property to be sold under the judgment to satisfy the same. From this judgment so entered the defendants have appealed to this court. When the wife of George W. Hodges took the title to the Townsend property she took it subject to no use or trust in favor of her husband, who paid the consideration therefor, but the title to the same was vested in her, subject only to a resulting trust in favor of the creditors of her husband, George W. Hodges, at that time to the extent necessary to satisfy their just demands. (1 R. S., 728, §§ 51, 52.) None of these creditors ever questioned the validity of the conveyance, and they have all now been paid. Her. title to the same is, therefore, now absolute and was at the time she gave the mortgage to the Trust Company for the money which she loaned to her husband. That loan was, therefore, made to her husband of her own separate property. This being so, he hada fair equitable'right to secure her for this loan. Nay more, it was his duty to do so. There was then a judgment in favor of Bell and Yelverton, which was then a lien upon this Miraudote property, which was paid off out of the money borrowed of his wife, by George W. Hodges. This, however, made no difference. He was bound in equity to protect the interest of his brother Edward in this property, as well as to secure his wife for the money she let him have.

In respect to the Mirándote property it will be convenient to examine the rights of Edward F. Hodges separately and first. This property was purchased on joint account by Edward, and the deed was taken to George W. Hodges by Edward’s direction, he after-wards paying half of the consideration. Under our statute, as we have seen above, no trust resulted to Edward on this purchase, and no creditor of George W. Hodges was bound to regard him as holding this property upon any trust whatever; but they were at perfect liberty to acquire a lien upon it and sell it to satisfy any debt of his, as Bell and Yelverton were proceeding to do at the time of the loan by the wife of George W. Hodges to him to pay off their judgment, and so prevent the sale. But until some creditor of George W. Hodges had obtained a lien on this property his right of alienation was perfect, and if he conveyed the same or dealt with the same in a manner not obnoxious to equity and fair dealing his dealing will be upheld.

As we have seen before, Edward E. Hodges paid one-half of the purchase money of this property, and thus acquired an equitable right in the same. George W. Hodges held the title to one-half of this property, for the benefit of his brother, and it was perfectly competent for him to regard his equitable rights, and to secure them by'conveying to him the property, and he was under the highest moral obligation to do so. (Davis v. Graves, 29 Barb., 485; Foote v. Bryant, 47 N. Y., 549; Siemon v. Schurck, 29 id., 599.) The effect of this conveyance to Edward was to vest in him the legal title to the property for which he had paid. It took the case out of the statute, which was the only difficulty. The consideration was good and the intent was good. Equity can condemn neither. Besides, what equity does the plaintiff show to have this half of this property applied to the payment of its judgment against George W. Hodges ? He did not pay for it; Edward E. Hodges paid for it, and his equities are quite as good as those of the plaintiff; and before the plaintiff acquired any lien upon the property Edward E. Hodges had the legal title to the property to which he was equitably entitled. "We think, therefore, that the plaintiff has no right to have Edward’s half of this property applied to the payment of this judgment, and that the judgment is so far erroneous, and must be reversed.

No extended examination will be necessary in relation to the rights of the wife of George W. Hodges in the Mirándote property, as has been already stated. She loaned her husband $15,000 out of her separate property. For this he had a right to secure her in any lawful ways; and one lawful way certainly was to convey to her real estate which he owned. He did own the one-half of the Miraudote property. The plaintiff had acquired no lien on it at that time. For the purpose of vesting the title to the one-half of this property in his wife, he conveyed it to his brother. This is the usual way of transmitting the title from the husband to the wife, through a third person. There is no evidence of a fraudulent intent: Most of the money obtained by this loan went to pay the debts of George W. Hodges. Certainly Mrs. Hodges could have no fraudulent intent in lending her husband money; and he could have had no fraudulent intent in borrowing the money from her and using it for the purpose of paying his debts. It comes to this at last: that Edward F. Hodges has paid for one-half of this property and the wife of George W. Hodges has paid for the other half; and the plaintiff shows no equitable reason for having it taken away from them and applied to the payment of its judgment.

The fact that Edward E. Hodges afterwards conveyed all the property to the wife of George W. Hodges, instead of the one-half, is not material to this case.

If Edward has any creditors they may inquire, but the plaintiff cannot.

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

Pbatt, J., concurred. Baenaed, P. J., not sitting.

Judgment of referee reversed and new trial granted at> Circuit, costs to abide event.


author: DyKmaN, J.:

text:
    CHARLES JONES, as Assignee in Bankruptcy of CHARLES S. SCHLEIER, Bankrupt, Respondent, v. THOMAS WELWOOD and ABBY WELWOOD, Appellants.

      Arbitration — submission— a/ward — rn/ast be as broad as — setting aside of awa/rd.

    One Abby Welwood, being tbe owner oí certain lots, a contract was entered into by her husband with one Schleier, by which he, Schleier, was to sell the same, and receive a iDorlion of the profits for his services in so doing. Disputes having arisen as to the amount due thereunder, a contract was entered into by all the parties in interest, on January 10,1873, to settle the same. Subsequently this was rescinded by mutual consent, and thereafter, to settle numerous actions instituted against each other by these parties, and by the assignee in bankruptcy of Schleier, it was submitted to arbitrators, “to settle without further litigation the many actions and causes of action existing between (the parties) * * * and all other actions or causes of actions now existing and unsettled.”
    The award of the arbitrators held that all matters in difference between the parties were settled by the contract of January 10, 1873, and then proceeded: “ This award is not intended to determine any of the rights of either of the said parties, arising- under ” said contract. Held, that the award should be set aside, on the ground that it did not specifically and finally terminate the rights of the parties thereto.

      Appeal from an order made at the Special Term, vacating and-setting aside an award of arbitrators.

      Tracy & Oatlm, for the appellants.

      Moody B. Smith, for the respondent.
   DyKmaN, J.:

In January, 1870, the defendant Abby Welwood was the owner of a iarge tract of land, in a place now called Breslau, in Suffolk county, in this State. She had owned it for many years. In 1869 her husband had caused some of this land to be divided into lots, and had sold many of the lots. In the month of January, 1870, Thomas Welwood made an arrangement with Charles S. Schleier, the plaintiff’s assignor, by which Schleier was to undertake the sale of these 'lots, and for his services was to have a share of the profits realized from the sale, after deducting from the price received for each lot sold the fixed estimated value or first cost-thereof. Under this arrangement the business of selling lots at Breslau was carried on with great success ; a great many lots were sold; a great deal of money collected, and large profits realized. In August, 1871, the accounts fell into confusion, and serious difficulties between the parties began to manifest themselves. Efforts were made to settle these differences from time to time, until the 10th day of January, 1872, when, for the purpose of making a full and final adjustment of all matters in dispute, a contract in writing was made between the parties, by which Mrs. Welwood agreed to sell to Mrs. Schleier the lands at Breslau, at a price and upon the terms specified in the agreement.

This contract went into effect, and the parties acted under it until April, 1872, when it was rescinded by mutual consent. Then Schleier brought one or two actions against Welwood and wife, and actions were commenced by other parties, and by the plaintiff in this action, and these actions were going on with more or less activity until the 22d day of October, 1875, when the plaintiff and defendants, and all other parties interested, entered into an agreement, by which they submitted all of the actions, and all the matters in dispute, to the decision and arbitration of two arbitrators. In the submission to arbitrators the following language is used: In order to settle, without further litigation, the many actions and causes of action now existing between Thomas W el wood and Abby Welwood of the one part, and Charles S. Schleier, Charlotte A. Schleier, Charles Jones, assignee in bankruptcy of said Charles S. Schleier, Martin Huger, Frederick Mahr and Kobert Suilka, which actions are as follows (naming them all), and all other actions or causes of actions now existing and .unsettled.”

Under this agreement the arbitrators entered upon the discharge of their duties, heard the testimony of the parties, and, on the 2d day of May, 1876, made an award, by which they found and determined, substantially, that Abby Welwood was the owner of the lands at Breslau, and entitled to hold the same, free from any claim of Schleier or his assignee in bankruptcy, Mr. Jones. That all business matters between the Wei woods and Schleier, in relation to the lands at Breslau, were adjusted and settled, satisfied and discharged by the agreement in writing of January 10, 1872; “that the same was accepted and received by the said Charlotte A. Schleier and Charles S. Schleier in full satisfaction of all such matters, cause or causes of action, and that said Charles S. Schleier, bankrupt, and the plaintiff, Charles Jones, assignee in bankruptcy of said Charles S. Schleier, have no cause of action against the said Thomas Welwood and Abby Welwood, or either of them, arising out of said business transactions, and that the said Charles Jones, as assignee in bankruptcy of said Charles S. Schleier, bankrupt, has no right to maintain said actions, or either of them, against said Thomas Welwood and Abby Welwood, or either of them, and that the said defendants, Thomas Welwood and Abby Welwood, are entitled to judgments dismissing the complaints in the actions above mentioned, and we do order and award that judgments be entered in the said several actions in favor of the defendants therein, and against the plaintiff therein, without costs. Third, that the claims of Thomas and Abby Welwood, proven in the matter of Charles S. Schleier, bankrupt, so much thereof as relates to any transactions, claims or demands held by them or owned by them, or either of them, against Charles S. Schleier, prior to the 10th day of January, 1872, be and the same hereby are declared to be satisfied by the contract of January 10, 1872, and shall be expunged from the claims proven against said Charles S. Schleier, bankrupt.”

The award then closes as follows : “ This award is not intended to determine any of the rights of either of the said parties arising under the contracts of the 10th day of January, 1872.”

This award was set aside, on motion,' by the Special Term, and the case comes to us on an appeal from that order.

About a century ago the courts in England were very much opposed to the withdrawal of controversies from their jurisdiction by the agreement of parties. At that time arbitrations and agreements to arbitrate were in great disfavor, and it was difficult to sustain an award in any of the courts of that country, no matter how carefully it was drawn. Since that time, however, both in England and in this country, the courts have not only yielded their opposition to these tribunals but have come to regard them with great favor, and actually to make presumptions tp sustain their awards. This change is doubtless owing to the fact, that experience has shown these tribunals to be very useful in the adjustment of legal controversies. They are more speedy and less expensive than the law courts, and as a general rule they are final and subject to no judicial control.

The principle which underlies this last rule is, that under a general submission to arbitration all questions in the case, both of law and fact, are submitted to the arbitrator for decision and determination. His award cannot therefore be impeached nor set aside for any error, either of law. or fact, provided he keeps within his jurisdiction. When parties agree to arbitrate they establish a domestic tribunal of their own, over which the courts possess no general supervisory power. The whole thing rests in the agreement of the parties; and as they have agreed to submit and agreed to be bound by the award, the courts leave them where they have left themselves.

The subject has, however, occupied the attention of the legislature of our State, and it has made some provisions in respect to setting aside these awards, and has provided that they may be set aside on the ground, among others, “ that the arbitrators exceeded their powers, or that they so imperfectly executed them that a mutual, final and definite award on the .subject-matter submitted was not made.”

Now, tested by this rule ought this award to be vacated ? Have the arbitrators so executed the powers with which they were clothed by the submission that a final and definite award on the subject-matter submitted to them has been made ? This depends upon what was submitted. The language of the submission is very broad; it is: “ In order to settle the many actions and causes of action now existing and all other actions or causes of action now existing and unsettled,” “ and further, in order to settle without further litigation.” We think all actions and causes of action between these parties were submitted to the arbitrators; and we think, further, that they have not made any final or definite award on the subjects so submitted.

The award which they made determined that Abby Welwood was the sole owner of the land at Breslau, and that the written contract of January tenth was designed as a final settlement of all transactions, and then declined to determine any of the rights of either of the parties under that contract.

Instead of defining the rights of these parties finally, as they were required to do, this award leaves them all indefinite and undetermined. Now, suppose the agreement of January tenth was designed as a final settlement up to that time; it seems to be conceded, on all sides, that that has been rescinded by mutual consent of the parties. What is the effect of this rescission ? Did it remit the parties to their original positions which they occupied before it was made ? If it did, then it.made no difference whether the arbitrators determined the rights of the parties under it or not, for whatever their rights under it were they ceased with its rescission, except so far as acts which had been done under it were concerned. There was no question here about the right to rescind, for it was mutual. The rescission was complete, and the whole of the transactions are thrown open again to be determined in some way. How that is to be accomplished we need not now determine. The arbitrators have not done it, and have really done nothing towards it.

Courts of equity enforce these awards of arbitrators now, specifically, in the same manner as they enforce contracts. (Bouck v. Wilber, 4 Johns. Ch., 405.) Now suppose either of these parties should call upon a court of equity to enforce this award, what is there that a court of equity could enforce ? Is the award so specific and final that it can be enforced so as to settle the rights of these parties % We think it is not; we think, without pursuing this line of argument further, that this award ought to be vacated; and we have reached that conclusion with reluctance.

The finality of the decision of arbitrators is a great point in their favor, because it saves the expense and delay of a tedious litigation in the courts. At the same time the rights of parties must be determined and protected, and the court must watch over them and guard them with a careful and vigilant eye, and when, as in this case, a tribunal has not discharged its proper functions, the courts must interpose.

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

Peatt, J., concurred. Baeuaed, P. J., not sitting.

Order affirmed, with costs.


author: DykmaN, J.:

text:
    PETER NICHOLS, Appellant, v. PETER VOORHIS and others, Commissioners of Highland Avenue, Respondents.

      Cloud upon title — assessment sale — chapter 670 of 1871 — deed — presumptive evidence of regula/rity.

    Section. 12 of chapter 670 of 1871, authorizing the construction of an avenue in Rockland county, provides that, in case the assessments imposed thereunder remain unpaid for the time therein specified, the commissioners are authorized to sell the lands so assessed “ in the same manner as the comptroller of the State is authorized to sell lands for non-payment of taxes * * * convey said lands, and do each and every act and thing that said Comptroller is authorized by law to do on sales for non-payment of taxes.” Reid, that it was the intention of the legislature to create the same presumption in favor of the regularity of sales had under this act, as exists in the case of sales by the comptroller, and that the deeds given by the commissioners were presumptive evidence of the regularity of all the proceedings, prior to and including the sale, in pursuance of which they were given.
    Accordingly, where land was sold for an assessment, laid under the said act, held, that-a party alleging that such sale was void, on account of irregularities occurring prior thereto, might maintain an action to have the same set aside as a cloud upon his title, as such irregularity would not appear upon the face of the papers which the purchaser would be required to produce to obtain possession of the land.

      Appeal from a judgment entered upon an order sustaining a demurrer to the complaint herein.
    The action was brought to vacate an assessment imposed upon lands of the plaintiff, under the provisions of chapter 870 of 1S71, authorizing commissioners to lay out an avenue in Rockland county.
    The complaint set forth the act, and that the commissioners appointed thereby had taken proceedings thereunder, and imposed an assessment upon the lands of the plaintiff, which they claimed the right to enforce, and to collect which a warrant had been issued, under which certain property of the plaintiff had been seized, and that said proceedings were void for irregularities not appearing on the face thereof, and to establish which oral evidence would be required, and prayed that the assessment might be vacated, and the commissioners and their successors be perpetually enjoined and restrained from collecting or enforcing the same.

      O. P. Hoffman, for the appellant.

      Samuel J. Croóles, for the respondents.
   DykmaN, J.:

This is an action to remove a cloud from the title of the plaintiff’s land. Courts of equity have always granted this kind of relief in a proper case, and the cases have been so frequent in ours for the last few years, that the principles upon which they are determined have come to be well understood. When the claim or lien purports to affect real estate, and appears on its face to be valid; when the defect in it can be made to appear only by extrinsic evidence which will not necessarily appear on proceedings by the claimant thereof to enforce the lien, there is a case presented for invoking the aid of a court of equity to remove the lien which is a cloud upon the tille. When the extrinsic evidence is oral solely, the rule becomes the stronger. (Marsh v. City of Brooklyn, 59 N. Y., 283.)

While this rule is very specific and easily understood, it is not always so easily applied to the different cases as they arise. This case is itself an apt illustration of this remark, because if the assessment complained of is void on its face, or if the proof necessary to be made to enable any party to enforce it or claim under it will show that it is void, then the action cannot be maintained. The reason of this is, that the party who apprehends the danger has his defense always at hand, and the courts will not, therefore, call the parties before them and compel them to litigate in advance, but will wait until a claim is made and then determine the question. But if a claimant could establish a title upon this assessment by the record alone, then there is such a cloud as should be dispelled by a court of equity.

The proper inquiry in this case seems, therefore, to be whether a claimant could establish a title upon this assessment by the record alone. The law under which the assessment is made provides that it may ripen into a title as follows : Said commissioners are hereby authorized to sell the lands assessed, upon which thé said assessment shall remain unpaid for the space of thirty days after the time for and the return of said warrant by said collector or collectors, as may appear from the return of said collector or collectors, in the same manner as the comptroller of the State is authorized to sell lands for the non-payment of assessments for taxes, and said commissioners may upon such sales, and after the expiration of the time for redemption allowed by law, convey said lands, and do each and every act and thing that the said comptroller is authorized by law to do on sales for non-payment of taxes. (Chap. 670, Laws 1871, §12.)

As this provision clothes these commissioners with the same powers that are'given to the comptroller, on sales of land for nonpayment of taxes, it will be proper to ascertain now what these powers are. The provision of our statute which relates to the deeds of conveyance executed by the comptroller of the State, is as follows : “All conveyances hereafter executed by the comptroller of lands sold by him for taxes, shall be presumptive evidence that the sale, and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to the expiration of the two years allowed to redeem, were regular according to the provisions of this act, and all laws directing or requiring the same or in any manner relating thereto.” (1 E. S.' [5th ed.], 935, § 101.)

It will bo seen from this extract that the comptroller’s deeds are presumptive evidence that his sale and all proceedings prior thereto, including the assessment, were regular. Did the legislature intend to give the same effect to the deeds of conveyance of these commissioners ? It is not clear that such was the legislative intent, but if it was not, why were the commissioners authorized to convey these lands, and do each and every act and thing in the same manner that the comptroller is authorized by law to do, on sales for nonpayment of taxes. This language is quite full, and it seems to be a very narrow construction to hold that it simply has relation to the simple act of executing the deeds. If it was intended to be confined to' that, why was any reference made to the comptroller at all ? His simple execution of a deed is no different from that of any other person, but these commissioners are authorized to convey these lands and do every act and thing that the comptroller is authorized by law to do, on sales for non-payment of taxes, and on such sales the comptroller is authorized to give conveyances which shall be presumptive evidence, that the sale and all proceedings prior thereto, from and including the assessment of the land and all notices required by law to be given previous to the expiration of the time allowed to redeem were regular. W as it not, therefore, the intention of the legislature to give the commissioners the same power? 'We think it was, and that their deed of conveyance when executed and delivered, will have the same effect and will therefore be presumptive evidence of the regularity of all their proceedings leading up to the conveyance including the assessment, and that in any proceeding to obtain possession under the conveyance, it will not be necessary to give any evidence which will disclose the defects complained of in this action, as the mere production of the commissioners’ deed of convejmnce will be all that will be necessary. We then have a case where the defects complained of can be made to appear only by extrinsic evidence which will not necessarily appear in proceedings to enforce the lien, and where the extrinsic evidence is oral entirely. The case therefore seems to be a proper one for the interference of a court of equity, within the rules laid down in the fore-part of this opinion.

The judgment appealed from, must therefore be reversed, with costs.

Present — Pratt and DyKMAN, JJ. EaeNAed, P. J., not sitting.

Judgment reversed, with costs and disbursements.


author: DyeMAn, J.:

text:
    MICHAEL H. HAGERTY and JAMES RORKE, Executors, etc., of BERNARD B. HAGERTY, Deceased, Respondents, v. ANNIE J. HAGERTY, Appellant.

      Will — Trusts — what authorized as to real estate — what as to personal estate— Guardianship.

    A testator, by bis will, devised all his property, both real and personal, to his wife, “ in trust, nevertheless, for any child or children of mine living at the time of my decease, under age.” Held, (1) that the trust as to the real estate was unauthorized by the Revised Statutes, and therefore void; (2) that as to the personal estate, a valid trust was created, whereby each child was to receive the income thereof during his or her minority, and the principal thereof upon attaining the age of twenty-one'years.
    The will proceeded: “ My will is, and I appoint that my beloved wife shall have the guardianship, custody and tuition of them (the children) during their minority.” Held, that the wife was thereby appointed guardian both of the estate and the persons of the children.
    Appeal from a judgment entered upon tbe trial of this action by the court without a jury.
    The action was brought to obtain a judicial construction of the last will and testament of Bernard B. Hagerty, deceased.

      Philip S. Qroolce, for the appellant.

      A. P. Whitehead, for the respondents.
   DyeMAn, J.:

This action is brought to obtain a judicial construction of the last will and testament of Bernard B. Hagerty. The following is the portion of the will which creates the uncertainty, and gives rise to the embarrassment: I give, devise and bequeath all my property, both real and personal, to my beloved wife, Annie J. Hagerty, in trust nevertheless for any child or ■ children of mine living at the time of my decease, under age.”' The testator had several children at the time of his decease, and he had a posthumous child born afterwards. All these children were minors.

It was doubtless the intention of this testator to create a trust in favor of his minor children, which would redound to their benefit during their minority, and the question to be determined is, whether his intention in that respect can be carried into practical effect. It will be convenient first to examine the question in respect to the real property.

The purposes for which express trusts can be created in this State are specifically prescribed by our statute. These purposes are, to sell lands for the benefit of creditors; mortgage or lease lands for the benefit of legatees or for the purpose of satisfying any charge thereon; to receive the rents and profits of lands and apply them to the use of any person, during the life of such person or for any shorter time, and to receive the rents and profits of lands and to accumulate the same for certain purposes and within certain limits, which are immaterial here. (1 R. S., 728, § 55.)

By comparing this provision of the statute with the portion of the will above set out, it will be seen that the will prescribes no purpose for which the trust is created, which is recognized by the statute. In fact the difficulty with the provision is that it prescribes no purpose at all for which the trust is created. The simple provision is, that the property is given t'o the wife, in trust for the children. She is not empowered to receive the rents and profits and therefore no estate is vested in her in the lands. (1R. S. [1st ed.], 729, § 56.) There is no provision of our statutes that will validate this trust, and all trusts not authorized by them are abolished; we have no alternative then, but to hold this to be a void trust, so far as it relates to the testator’s real estate. «

Neither is it valid as a power in trust, because the lands are neither to be sold nor mortgaged. No power of disposition or management is given at all. So far as the testator’s real property is concerned, therefore, he must be held to have' died intestate, and of course it descends to his children as his heirs at law, subject to his widow’s right of dower; the posthumous child inherits the same as the other children. (1 R. S., 754, § 18.)

In its relation to the personal property of the testator, the trust created by this will does not encounter the same difficulty. Our statutes have not attempted to define the objects for which trusts relating to personal property may be created. In fact, it would be very difficult if not impracticable to do so, for they enter largely into the business affairs of every day life. As trade and commerce increase, and the transactions in each become more and more complicated, trusts spring up and are created in a great variety of ways. They may be created for any purpose which is not illegal, and future and contingent interests in personal property are best preserved and managed by the creation of a trust.

Here the intention of the testator is clear, and the purpose is not only legal but commendable. The personal property is given to the wife in trust for the children; under this trust the wife must hold the personal property for the children. The property is vested in them, but a trustee is interposed between them and its full enjoyment, during their minority, for the purpose of applying the income arising therefrom to their benefit, and paying the full share of each one over on their attaining the age of twenty-one years, respectively.

Our statute provides that the absolute ownership of personal property shall not be suspended by will for a longer period than two lives in being at the death of the testator, but this will does not trench at all upon that provision.' Here the interest of each child is vested in its portion of this personal property, and will be entitled- to receive it on attaining its majority, and if any child dies during minority, its share will go to the next of kin.

This trust in relation to the personal property must, therefore, be established and carried into effect, and the widow of the testator must receive the personal property from the executors in the due course of administration, and hold the same in trust for the children.

Another question presented is, whether under the provisions of this will the widow of the testator becomes the guardian- of the estates as well as of the persons of these infant children. The portion of the will which controls this question is as follows: “ My will is and I appoint that my beloved wife shall have the guardianship, custody and tuition of them during their minority.”

The law on this subject is embodied in our statutes, and is as follows: “ Every father, whether of full age or a minor, of a child likely to be born, or of any living child under the age of twenty-one years and unmarried, may by his deed or last will duly executed ” “ dispose of the custody and tuition of such child during its minority or for any less time, to any person or persons in possession or remainder.” (3 R. S. [6th ed.], p. 167, § 1.) AgainAny person to whom the custody of any minor is so disposed of, may take the custody and tuition, of such minor, and may maintain all proper actions for the wrongful taking or detention of the minor, and shall recover damages in such action for the benefit of his ward. He shall also take the custody and management of the personal estate of such minor, and the profits of his real estate during the time for which such disposition shall have been made, and may bring such actions in relation thereto as a guardian in socage might by law.” (Id., § 3.)

The testator gives to his wife the guardianship, custody and tuition of these children, and thus brings them directly within these statutes. It is clear, therefore, that she is constituted a guardian of both the persons and estates of the children during their minority, subject to all the rights, duties and obligations which grow out of that relation.

We think the cause was properly disposed of at the Special Term, and the judgment must be affirmed.

Present — Pratt and Dteman, J J. BabNard, P. J., not sitting.

Judgment affirmed.