author: GRAY, J.

text:
    John Flannery, Resp’t, v. J. W. Van Tassell, App’lt.

      (Court of Appeal,

      Filed March 8, 1892.)

    1. Fraudulent conveyance—Evidence.
    Plaintiff was surety on the bond oí one M. as village treasurer and indorser on his notes, and M. also owed him rent. In consideration of his assuming and paying the liabilities of M. to the village as treasurer and to plaintiff and others, M. sold and transferred to plaintiff his stock of goods, horses and wagons. Plaintiff immediately took possession. The debts equalled the value of the property transferred. Two days after the defendant, as sheriff, levied on the goods under an attachment against M. Upon the trial the under sheriff as a witness on the part of defendant, after testifying to an interviéw with M. on the day of the levy, was asked, “Did you have any talk with M. about the transfer to F. at that time ?” Held, incompetent and improper, as being the statement of a vendor to third parties respecting a transaction with his vendee made subsequent to it.
    3. Same. _ ■
    _ That M. was suffered to remain in tenancy of his house and to keep an office off the store are not facts of themselves which give fraudulent coloring to the transaction and are quite consistent with honesty and good faith in the parties.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.

      Grant B. Taylor, for app’lt; IT. H. B/ustis, for resp’t

       Affirming 42 St. Rep., 916.

   GRAY, J.

The plaintiff brought the action to recover the value ■of certain personal property which, as he alleged, had been wrongfully taken from him. The defendant had seized it, in his capacity ■as sheriff, under a warrant of attachment issuing at the suit of a creditor of one McManus. Upon the trial of the action there was evidence given of a sale and transfer by McManus to plaintiff of the property in question, in consideration of the plaintiff’s assuming and paying liabilities of McManus to the village of Fishkill Landing, as its treasurer, and to plaintiff and others. There was evidence also showing that immediately upon the sale the plaintiff took possession of the property sold, and continued in that possession until the seizure by the defendant, which occurred two ■days afterwards. Further, there- was evidence tending to establish the payment by plaintiff of McManus’ liabilities, and that they -equalled, if not exceeded, the value of the property transferred, -■as estimated, or as realized upon. During the trial the under sheriff, who had levied upon the property, was called as a witness by defendant and, having testified to an interview with McManus in the store the day he made his levy, was then asked: Did you have any talk with Mr. McManus about the transfer to Flannery -at that time?” The question was objected to by plaintiff anS. the evidence excluded. Ths exception to the exclusion presents the only question of importance on this appeal. The incom potency and impropriety of such evidence would seem manifest, as being in contravention of the general rule which excludes the statements of a vendor to third parties respecting the transaction with his vendee, made either previous or subsequent to it. Such ■evidence is deemed incompetent to affect the vendee’s title, unless the statements sought to be proved were contemporaneous with the transaction of sale and, as being illustrative of it, would fairly 'Constitute parts of the res gestee; or where the evidence tended to •show that the party, as a pseudo vendor only, was engaged in a .joint scheme with the purpose of defrauding others through the •alleged transaction, in which case what he may have stated respecting it at any time would be relevant and material in disclosing it and in defeating its successful accomplishment.

It is under the theory that something like a conspiracy of that 'character has been shown that the appellant endeavors to sustain his exception. The difficulty, however, is that the evidence did not go to the extent of showing that the plaintiff and McManus had engaged in any unlawful scheme to defraud the latter’s creditors. The utmost extent to which the evidence might be stretched would be in the direction of negativing the legality of the sale, or the actuality of the transfer, as between the parties. The portions ■of the testimony referred to by the appellant’s counsel have a "bearing upon those facts, but fall short of being evidence of a fraudulent conspiracy.

We think that the evidence does not show, nor tend to show, •as the counsel contends, that McManus continued in the possession of the property included in his transaction of sale with the plaintiff. What the evidence established was that the plaintiff took immediate possession of the store and other property through his own acts and the agency of his attorney and of clerks. That McManus was suffered to remain in tenancy of his house and to keep an office off of the store are not facts which of themselves-give any fraudulent coloring to the transaction, and, in their connection in this case, they were perfectly consistent with the absolute possession of the plaintiff, testified to by him and others. The facts were quite consistent with honesty and good faith in the parties and not being connected with other circumstances which would warrant or furnish a basis for the inference of some unlawful combination or' conspiracy to defraud others, they cannot sub-serve as the circumstantial proof which the appellant’s argument, assumes as existing and therefore as authorizing the evidence sought to be introduced.

Whether the sale was a real one and the possession of the property assumed and continued in by the plaintiff were questions of fact for the jury to decide upon the evidence. The evidence was-all upon, or connected with those questions. The consideration! for the transfer was sufficient, if the evidence was believed by the jury, to uphold the sale, and by their verdict for the plaintiff that belief has been expressed.

We think there was no error committed in the respect discussed^ and we find no other which requires another trial of the issue.

The judgment should be affirmed, with costs."

All concur, except O’Brien, J., absent.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Bertha E. Martin, Resp’t, v. Spencer C. Platt et al., App’lts.

      (Court of Appeals,

      Filed March 8, 1892.)

    1. Appeal—Code Civil Pito., §§ 1000,"1227.
    Where a single question of fact was submitted to the jury without & suggestion that there were any others which could be affected by the verdict, and judgment was suspended and the exceptions ordered to be heard in the first .instance at general term, and were so heard and judgment directed to be entered on the verdict for the plaintiff, and judgment entered accordingly without any new proceeding necessary to the entry, an appeal cannot he taken to the same general term which directed tlie judgment.
    2. Same.
    Sections 1000, 1227 of the Godo do not make the judgment entered am ordinary judgment, but it is a judgment of the general term.
    3. Same—Code, § 1336, 1350.
    . Section 1336 of tlie°Oode authorizes a direct appeal to this court from: - the final judgment and that appeal brings up for review only the determination of the general term. Section 1350 relates merely to a case where the final judgment ordered cannot be entered until some preliminary step- or proceeding has been taken subsequent to the decision of the general term. In that event there may be new proceedings involving the trial of new issues, and" those only can be reviewed by the general term. As there-, were none in this case, there is- nothing left for review.
    Motion for reargument.

      Wilson & Wallis, for app’lts; George G. Coffin, for resp’t.

       See 42 St. Rep., 947.

   Finch, J.

We have given this motion for a reargument a new and deliberate consideration,-both because the question of practice-involved is somewhat important and because of the very able and. •evidently sincere argument which seeks to convince us that we have been mistaken. But added reflection has confirmed us in the view we felt compelled to take. In a case where one single •question of fact was submitted to the jury without a suggestion that there were any others which could be affected by the verdict; where the judgment was suspended, and the exceptions ordered to be heard in the first instance at the general term; where they were so heard, and judgment was directed to be entered on the verdict for the plaintiff; and where that judgment was entered .accordingly without any new proceeding necessary to the entry; an appeal was taken to the same general term which directed' the judgment, but which that tribunal dismissed, and with our subsequent approval. The obvious impropriety of such an appeal ..from one session of the court to another of the same body, involving a review of questions already decided, seemed to us decisive upon the inquiry presented. I do not understand the learned ■counsel for-the appellant .to deny that under the Old Code such .an appeal was not permissible, but he argues quite plausibly that the changes made ■ in the new and enlarged structure, which now regulates the practice, have changed .the rule, and secured to the appellant an alternative by force of which he might have appealed directly to this court, or was at liberty to appeal first to the general term, and so reach us by that route. . .

The changes upon which reliance is placed are in substance these: Under the- Old Code (§ 265), judgment upon the exceptions was to be rendered by the general ter'm. Under the Hew •Code that provision is omitted (§ 1000), and a new section appears, which declares: “Judgment may be taken, as if the motion for a new trial had not been made, after the expiration of four days from the entry of the order, and the service upon the attorney of the adverse party of a copy thereof and notice of the entry; but not before.” (Sec. 1227.) These changes, it is claimed, made the judgment entered no longer a judgment of the general term, but an ordinary judgment entered in' the ordinary way, and subject to the ordinary right of appeal.

We do not think so. It is needless to speculate upon the motives of the change, since we deem it clear that the judgment -entered, whatever its prescribed form, depends for its vitality upon ■the order of the general term. Without that order the clerk -could not enter it at all. His general authority, under § 1189, is ■only unless a different direction is given by the court,” and that different direction is given when an order is made to suspend the judgment and sending the exceptions to the general term. The •clerk acquires no authority until that tribunal makes its order. •So that the judgment, whatever may be its form or manner of ■entry, remains in substance the judgment of the general terna, which should not be required to hear an appeal from its own -decision.

But we are further referred to §§ 1336 and 1350 as dictating the alternative modes qf review. The first authorizes a direct appeal to this court from the final judgment, and that appeal •brings up for review only the determination of the general term.. The second relates merely to a case where the final judgment ordered cannot be entered until some preliminary step or proceeding has been taken subsequent to the decision of the general term. In that event there may be new proceedings involving the trial of new issues, and those, and those only, can be reviewed by the general term. Where, there have been no such subsequent proceedings, and there were none in this case, there is nothing left for the court to review.

So far as the appellant complains of the action of the general term in ordering the final judgment, we ought to await a proper occasion for the review; and yet we may properly say that the-questions to which the appellant refers do not seem to us beyond the scope of a direct appeal to this court.

We remain of opinion that the appeal was properly dismissed., and the motion for a reargument must be denied, with costs.

.All concur, except Maynard, J., not sitting.


author: Per Curiam.

text:
    Charles R. Johnson, App’lt, v. The Union Switch & Signal Co., Resp’t.

      (Court of Appeals,

      Filed March 8, 1892.)

    Motion for re-argument

      George W Miller, for app’lt; Jno. W. Houston, for resp’t.

       See 43 St. Rep., 337.

   Per Curiam.

We have carefully read the papers submitted' to us on a motion for a re-argument of this case. When we-decided the case there was no mistake or misapprehension as to the .pleadings or the evidence. We simply decided, and intended, to decide, that the plaintiff could not recover under the eighth, clause of the contract. We did not determine and had no occasion to determine his present rights, if any, under the third and fourth clauses of the contract.

The motion for a re-argument must be denied, with ten dollars costs.

All concur.


author: Daniels, J.

text:
    Louis Eickwort, Pl’ff, v. James G. Powers, Def't.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Specific performance—Partial title.
    Before the court will decree specific performance hy the conveyance of an undivided interest under a contract for the entire title, facts and circumstances indicating the propriety of such a conveyance should he shown.
    3. Same.
    Where it appeared that the objection was to the title to an undivided, half of the whole premises ; that such objection was originally founded! "on a very remote contingencythat it was questionable whether, since the-commencement of the action, all substantial doubt had not been removed by the tender of additional instruments .- and that_ defendant had offered to surrender the contract and pay back the deposit as well as plaintiff’s, expenses in searching title. Held, that a decree for specific performance of an undivided half would be refused, and that plaintiff should be given, judgment merely for the amount of the deposit and his legitimate expenses for searching, without costs. '

      Appeal by both parties from a judgment recovered on trial at special term.
    The following is the opinion of the court below.
    Lawrence, J.—Even if it be admitted that the title of the defendant to one undivided half of the premises agreed to be conveyed was defective, because the two conveyances, one from the defendant and his mother, as executor and executrix of Joseph I). Powers, deceased, to Robert A. Powers, and the other from Robert A. Powers and wife to the defendant, are to be regarded as parts of one transaction, and that the title thereby sought to be vested in the defendant was voidable under the case of The People v. Open Board of Stock Brokers, 92 N. Y., 103, and under the doctrine of the cases therein re-affirmed, I am of the opinion that the plaintiff has failed to make out a case which entitles him to a decree for a specific performance of the contract as to the remaining undivided one-half of the premises, as to which it is admitted the defendant’s title is perfect.
    If the plaintiff’s contention as to. the unmarketable quality of the defendant’s title to one-half of the property contracted to be conveyed is correct, the title fails as to so large a portion of the property as to require the court to refuse to make, in substance, a new contract for the parties.
    In Mills v. Van Voorhies, 20 N. Y., 421, the plaintiff, while objecting to the defendant’s title to certain portions of the lands ■agreed to be conveyed, sought a specific performance as to those portions to which the defendant had a valid title. The court of appeals, Selden, J., delivering the opinion of the court, said, as to this point: “ The court of chancery, in England, has frequently exercised the power here sought to be invoked, and our courts have in some instances followed their example. But it is obvious that, in this country, where the value of real estate is so fluctuating, changing, not infrequently, from day to day, the practice of making such decrees, if generally adopted, would give to the purchasers of such property great advantages over their vendors. By availing themselves, as in this case, of some defect in the title to a portion of the premises, they might keep the matter in abeyance, perhaps for years, secure against loss in case of a fall, but ready to avail themselves of any rise in the value of the property. Although, therefore, the power of making such decrees no doubt exists, it should, in this country at least, be exercised with great deliberation and caution.”
    Keeping in view the rule thus enunciated by the court of appeals, it is entirely clear to me that the plaintiff is not entitled to a decree of partial performance.
    The contingency upon which he rests the objection to the title which defendant derives through the deed in which he joined as executor to Robert A. Powers, and through the deed back from Robert to him, is exceedingly remote, inasmuch as in that deed not only the executor and executrix, but the widow and two sons of the deceased, united individually, and in the deed it was recited that the two sons executed the same for the of selling all their right, title and interest to the remainder under the ■will of the' testator.
    It appears, also, from the admitted statement of facts submitted upon the trial, that before the commencement of this action the-defendant offered to repay the plaintiff the money which he had paid on the contract and his expenses in examining the title and to cancel the contract
    The plaintiff did not accept this offer, but brought the present action, and, since it has been pending the defendant has tendered a deed from himself, as surviving executor under the will of Joseph D. Powers, of all the right, title and interest of the estate in the six lots for an expressed consideration of $150, and at the-same time tendered a deed from himself and wife of all their interest in the same.
    These facts establish that there has been no fraud, misrepresentation or concealment on the part of the defendant, and the efforts-by him to clear up the title were, I am satisfied, honest and sincere.
    It may, perhaps, be doubtful whether, by the execution of the-two deeds lastly above referred to, the defendant did not remove-all substantial objections to his title, The Mutual Life Ins. Co. v. Woods, 121 N. Y., 302; 31 St. Rep., 45, but whether such was the effect or not, the execution of the deeds relieves the defendant of all imputation of concealment or bad faith.
    My conclusion, therefore, is that all that the plaintiff is equitably entitled 'to is a decree that he should have returned to him the portion of the purchase money which he paid upon the execution of the contract, and his legitimate expenses in examining the title, but, in consequence óf his haying refused the defendant’s offers, neither interest upon the portion of - the purchase-money paid nor costs should be allowed to him.

      James C. De La Mare, for pl’ff; John A. Mopes, for deft.
   Daniels, J.

The defendant, on the 11th of February, 1888,. entered intb a written contract with the 'plaintiff, whereby the-defendant agreed to sell and convey, for -the consideration of $4,800, six lots of ground in the Twenty-fourth Ward of the city of New York. The plaintiff paid the amount of $200, which was payable by him on the execution of the agreement. And to fulfil its terms he was to pay the further sum of $1,000 on the delivery of the deed, and secure the sum of $3,600 by his bond and mortgage on the premises included in the agreement. The $200-were paid by him. And at the time agreed upon for the completion of the contract, defendant tendered to the plaintiff a deed executed by himself and his wife sufficient in form to convey the-premises. But the plaintiff refused to accept the deed on the ground that the defendant’s title to an undivided half of the property was not satisfactory, and was in fact possibly incomplete. As to that undivided half the defendant acquired his title under a deed from the executors of the estate of Joseph D. Powers, its preceding owner, and in which deed other persons had joined, and the will of James Gr. Powers contained a power of sale authorizing his executors to sell and convey any and all real estate and interest therein belonging to the testator. After the refusal by the plaintiff to accept the deed, .he brought this action for the specific performance of the contract so far as it related to the other undivided half of the premises. But the court at the trial held that he was not entitled. to a conveyance of that undivided half as long as he had reason satisfactory to himself for refusing to receive the conveyance including the other half of the premises. A judgment was given in the action to that effect, and for the return to him of the money which had been paid upon the contract, and as -that had been offered by the defendant- prior to the commencement of the action, that the plaintiff should not recover interest upon it, nor the costs of the suit

In his determination of the action, Mr. Justice Lawrence, who presided at the trial, delivered an opinion which made a very satisfactory disposition of the action, and but little needs to be added for the disposition of these appeals.

Cases may be presented where the vendee in a contract for the sale of real estate would be entitled to the conveyance of an undivided interest when the vendor had not such a title as would enable him to convey the entire property. But they are by no means usual. For such a disposition of the controversy imposes upom the court the duty of making or decreeing the performance lor the parties of a different agreement from that which they had «entered into. And it may reasonably be required, therefore, to sustain a determination to that effect, that some fact or circumstance should appear to exist rendering the conveyance of an undivided interest under a contract for the sale of the entire title necessary or j ust. No such circumstance has been disclosed in the present action. It has not been made to appear that the plaintiff could secure any special advantage by the conveyance of this undivided one-half of the property to him, or that he, in point of interest, would be béneñted, as a matter of fact, by that ■conveyance. No special necessity or propriety has been alleged or made to appear in support of the action. But as a result from the making of the contract and the inability of the defendant to -convey the other half of the title, the plaintiff has substantially asserted himself to be entitled to the conveyance of the undivided half for which the defendant concededly has the ability to make a proper conveyance. This subject employed the consideration of the court of appeals to some extent in Mills v. Van Voorhies, 20 N. Y., 412. And in 'the opinion which was given it was the expressed judgment of the judge who wrote it, that ordinarily the conveyance of a partial interest in real estate should not be decreed where the vendor was incapable of transferring a complete title to the property. And while this may not have been necessary to the strict disposition of that case, the" conclusion which . was expressed, as it appears to have been reasonable in itself, was a just and proper enunciation of the'law.

In this class of cases whether there shall be a specific performance of a contract for the sale of land is a subject that has been confided very much to the .discretion of the court in which, the action may be brought. Margraf v. Muir, 57. N. Y., 155; Conger v. N. Y., W. S. & B. R. R. Co., 120 id., 29; 30 St. Rep., 124; Miles v. Dover, etc., Co., 125 N. Y., 394; 35 St. Rep., 14.

And being discretionary, as the law has clearly made it to be,, there should be some fact or circumstance indicating the propriety of the conveyance of a partial title under a contract for the entire-title, before such a conveyance should be directed by the court. For the most which the vendee in that manner would otherwise-at the time acquire would be the right to bring and prosecute an action for the partition of the property, which it is not consistent with sound policy to encourage. Without such an action, the-property could be of no separate advantage to the plaintiff on. account of the disability to hold any part of it in severalty. And no .substantial reason appears for placing the plaintiff in the condition in which it would be necessary for him to resort to such a. proceeding. As long as he declined to accept the entire title,, which, after all, may not be involved in any very serious doubt as to its validity, he should be satisfied to receive back his deposit and renounce all claim on his part to the property.

The judgment has provided for his relief to that extent. It has awarded to him the return of the sum of $200 paid by him,, and the additional sum of sixty dollars for the expenses incurred in the examination of the title to the property. That was a just disposition to be made of the action as to each of these parties.. No well founded ground of complaint exists in behalf of either of them, and the judgment from which the appeals have been taken should be affirmed, without costs to either party.

Van Brunt, P. J., concurs; Ingraham, J., concurs in the result.


author: Andrews, J. Barrett, J.

text:
    The People v. The American Loan & Trust Co. of New York. In the Matter of the Application of Edward Hauselt et al., Ex’rs.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)
    1. Motions and orders—Appearance.
    Where an order recites that it was made on proof of “ due service ” on a foreign corporation, and after hearing counsel in opposition thereto, and' i,o motion for resettlement has been made, it will be assumed that the-papers were duly served on the corporation; that it appeared generally, and that the order was made after its counsel had been heard on the merits.
    2. Jurisdiction—Foreign corporation—Service.
    The provisions of the Code as to the service of process apply to the service of moving papers in a proceeding to appoint a new trustee, and if they are served within this state on an officer of the foreign corporation,, the court obtains jurisdiction of the person of such corporation.
    3. Trustee—Appointment of new—Jurisdiction.
    A foreign corporation executed a mortgage on its lands to secure its. bonds, and appointed a trustee in this state. The mortgage authorized the trustee to foreclose on the request of the holder of any bonds, or to take possession of the property and sell it without legal proceedings. The trustee named became insolvent and was enjoined from exercising its corporate powers, and was subsequently dissolved. And motion was made; by resident bondholders for the appointment of a new trustee. Held, that, the court had jurisdiction of the subject matter of the motion, although, the lands covered by the mortgage were situated in another state.
    4. Same.
    A provision in the mortgage for the manner of appointment of a new trustee, in case the old trustee should resign, does not deprive the court of jurisdiction to appoint a new trustee where the original one passes into the hands of a receiver or becomes incapable of acting.
    Appeal from an order of the special term appointing the-State Trust Company trustee in place of the American Loan &• Trust Company.

      L. N. Bangs, for the E. C. L. L. & M. Co., app’lt; Frederick Wl Hollis, for petitioner and resp’t.
   Andrews, J.

The Eastern Carolina Land, Lumber & Manufacturing Company is a corporation incorporated under the laws, of the state of North Carolina. On June 1, 1887, it executed. 250 bonds of $1,000 each, and to secure the payment of such bonds it executed and delivered to the American Loan & Trust. Company of the State of New York a mortgage upon lands situated in the state of North Carolina. Subsequently said trust company became insolvent, and was dissolved by an order of •this court. At the time the petition herein was verified, a temporary receiver of said company had been appointed, and the company had'been enjoined from exercising any of its corporate rights, privileges, franchises or powers.' The petitioners, who, as-executors of Charles Hauselt, deceased, are the holders of $15,000-of said bonds, presented a petition to the court, alleging the facts-above stated in regard to said trust company; that the Carolina company had defaulted in the payment of interest, and that such-default had continued for more than six months; that petitioners-had elected to demand payment of the entire principal sum o£ said $15,000 of bonds according to the terms of said mortgage,, and that the petitioners were desirous of having said mortgage-foreclosed immediately, and praying for the appointment of a new trustee to execute the trust created by said mortgage. The prayer of the petitioners was granted, and an order was entered appointing the State Trust Company of the City of New York trustee in place of the American Loan & Trust Company, and. from that order this appeal is taken.

The notice of appeal states that the appeal is taken from an order entered on June %%, 1891, and as there is no such order in the printed papers, we might properly dismiss the appeal for that, reason.

There is however in the papers an order to the effect above mentioned, dated May US, 1891, and as no question was raised by the respondents but that such an order was entered, we shall assume that there was a mistake in the date of the order, and dispose of the appeal on its merits.

The first objection taken to the order is that there is nothing in the record showing service of the petition in the matter upon any officer of the corporation, or any person representing the corporation, and that the appearance in the case was limited to objection to the jurisdiction of the court This objection might be a good one but for the fact that the order recites that it is made upon proof of “ due service ” of the same upon the Eastern Carolina Land, Lumber & Manufacturing Company, and after hearing Lucius M. Bangs in opposition. The appellant’s counsel, in his points, in support .of the claim that the appearance in the case was limited to objections to the jurisdiction of the-court, says: See memorandum on Brown’s affidavits.” The record contains no such memorandum, and we are, therefore, unable to examine .it. If the recitals of the order as to the service upon the Carolina Company, and as to the fact that his counsel was heard generally in opposition to the granting of the prayer of the petitioner, were incorrect, an application should have been made to resettle the order. As the record stands it must be assumed that ■the papers were duly served on the Carolina Company, and that that company appeared generally upon the hearing of the petition, ■and that the order was made after its counsel had been heard upon the merits. Moreover, as the appearance was general, it is immaterial whether the statement of the order that the petition had been duly served upon the Carolina Company is or is not correct, because a voluntary general appearance is equivalent to personal service. Code, § 424.

The second objection to the order is, that if such service had been made on the Carolina corporation tlié court below had no jurisdiction of the person or subject matter of the application, and that the order made is void for want of jurisdiction.

It is not clear what the learned counsel for the plaintiff intends to claim, when he says that “ if such service had been made, the -court below had no jurisdiction of the person.” The provisions •of the Code in relation to the service of same, a summons, apply to the service of the moving papers in a proceeding like this, and if such papers were personally served within this state upon an officer of the corporation, the court certainly obtained jurisdiction of the person. We are also of opinion that it had jurisdiction of the subject matter of the application. “ Trustees for bondholders .are governed by the general rules that govern trustees in the ordinary performance of the duties of a trust. They must consult the wishes and interests of the cestuis que trust, or bondholders, and they may be removed, or enjoined, or ordered to proceed in the performance of their duties, as the exigencies of the case may re-' quire," Perry on Trusts, 760, and an application for the removal and appointment of trustees may be made to a court of equity either by appeal or petition. Idem., § 282. It is true that the, corporation was incorporated under the laws of Mortli Carolina, .and the lands covered by the mortgage in question were in that state. It had, however, though its officers, voluntarily come into the state of Mew York, and had appointed as a trustee, under ■such mortgage, a trust company incorporated under the laws of Mew York. The plaintiffs are residents of the state of Mew York, and are expressly authorized to sue a foreign corporation for any cause of action. Code, § 1780. The mortgage in questian authorizes the trustee to foreclose on the request of the holder of any bonds. The petitioners are the holders of $15,000 of. bonds. The trustee was insolvent, and enjoined from exercising-any of its corporate powers, was incapable of acting as trustee, or resigning, and was subsequently dissolved.

The North Carolina Company having defaulted in the payment, of interest upon the said bonds, the petitioners, as authorized by the mortgage, had elected to demand payment of the principal of the said bonds, and had a clear right to have the mortgage foreclosed. The petition alleges that the North Carolina corporation carried on part of its business in the city of Buffalo,- in the state-of New York; this allegation is denied in the affidavit used in opposition, but the papers show that the president, Brown, and the secretary, Bangs, who was also the attorney in this proceeding, are residents of that city. It does not, however, seem material whether the company had, or had not, done business in Buffalo. It had appointed a New York corporation as trustee, and. that trustee as well as the mortgagor and certain bondholders were-all before the court Under the circumstances there can be no question that if said bondholders had made the present application to a court sitting in the state of North Carolina, such application would have been granted if the old trustee ha'd been served in that state, or had voluntarily appeared there. We do not see why, when the court has obtained jurisdiction of the corporation which executed the mortgage, under the trust deed, it should decline to exercise jurisdiction, and send the bondholders to a court of North Carolina to obtain the relief to which they were clearly entitled upon the merits. If other bondholders were now before the court objecting to the order as improvidently granted, or to the new trustee as being unfit for the trust, the court might, perhaps, regard the order as irregularly granted, though not void because no notice was given of the application to other bondholders. The objection, however, to the order is not made by other bondholders, and no such question is before the court ■ Counsel for appellant claims that the object of the proceeding-is to effect a forclosure of lands in the state of North Carolina, and that, therefore, the application should have been made to the courts of that state, and in support of that claim he cites Genet v. The D. & H. Canal Company, 29 St. Rep., 954, and Cragin v. Lovell, 88 N. Y., 258.

These cases have no application, because they merely hold that an action for damages to land situated in another state cannot be-maintained in the courts of this state. Moreover the mortgage authorizes the trustee to take possession of the property, and sell it without legal proceedings, so that it does not necessarily follow that the new trustee will ever institute an action of foreclosure.. Again, the counsel for the appellant claims that the parties to the mortgage have by their contract provided for the appointment of a new trustee, and that no court, whether of North Carolina, or New York, has jurisdiction to appoint a new trustee until the corporation has been called upon by the bondholders to act under the provision of the mortgage relating to the appointment of a trustee, and has refused to act. The fallacy of this proposition ■arises from the fact that the provision in the mortgage to which reference is made merely provides for the appointment of a new trustee in case the old trustee should resign. The old trustee did not resign, and could not do so, because it was in the hands of a receiver, and it was enjoined from exercising any of its corporate powers. It had, however, become incapable of acting, and that •contingency was not provided for in the mortgage. It is also ■claimed that the provisions of the Revised Statutes relating to the removal of trustees, and the appointment of á new trustee in the •case of the removal of a trustee, do not apply to this case: It was however held in Matter of the Mechanics' Bank, 2 Barb., 446, that ¡such provisions did apply to a case of this description. It is not however very important whether they do, or do not apply, for a ■court of equity, by virtue of its general jurisdiction over trusts, has ample power to remove a trustee who has become incapable •of acting, and to appoint another in his place.

The order appealed from should be affirmed, with costs.

Yah Brunt, P. J., concurs.

Barrett, J.

I concur. The only difficulty in my mind is "that the order-was made without notice to the other bondholders. No objection however seems to have been made on that head at .special term, and certainly no such objection appears in the appellant’s points before us. If the objection had been taken the ■court would doubtless have directed the matter to stand over and required notice in some form to be given to the other bondholders. At all events the company does not complain of such lack of notice, and we should not, therefore, reverse the order as to it The ownership of the petitioner’s bonds was not put in issue by Mr. Brown’s affidavit. That could only be done by the company’s answer to the petition, and there was no such answer. . I think Mr. Justice Andrews, has fully answered the main points presented by the appellant


author: Daniels, J. Barrett, J.

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

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Landlord and tenant—Negligence—Notice.
    Notice of a defective and dangerous condition of a stairway given to a person who is accustomed to collect rents for the-landlord, a"nd who is frequently about the premises, is at least constructive notice to the landlord.
    Same—Damages.
    Plaintiff, when four years old, was injured by falling on a defective stairway. He had previously had a rupture which had disappeared, but after the accident an incomplete rupture appeared on the other side. The medical testimony showed that it would not be permanent, as it could be cured by use of a truss, or- by an operation. Held, that a verdict for $5,000 was excessive.
    8. Same—Evidence.
    A memorandum made by a witness as to plaintiff’s condition at the time he was taken to the hospital, madé for the mere purpose of showing where to send the patient, is properly excluded where there is no evidence . as to its correctness.

      •4. Same—Charge.
    It is not error for the court to charge that a reappearance of a hernia was of no consequence on the simple question of liability, whether there was a predisposition to it or not; such predisposition has no effect except upon the question of damages.
    Appeal from a judgment recovered on the verdict of a jury, .and from an order denying a motion for a new trial

      Horwitz & Hershfield, for app’lts; Jacob Fromme, for resp’t
   Daniels, J.

The respondent, who was born on the 20th of December, 1884, was injured by a fall on a stairway in a tenement building occupied by his parents and others on the 5th of ■October, 1889. The family were tenants of this building from ■.the month of October, 1885, and another family occupied the ■same floor as tenants. The stairs upon which the accident took place were used in common by the occupants of the building, and . previous to the occurrence in controversy they were covered with oilcloth and rubber. And. at the place where the plaintiff encountered his fall the /oilcloth and rubber are testified to have been worn through or broken, and the nails used to secure it are .■stated to have- been sticking up. And the evidence tended to prove the fact to be that the fall of the plaintiff was caused by ■■this condition of the covering of the stairs. The witnesses who were examined on behalf of the plaintiff, and whose attention had been directed to this condition of the stair covering, testified that "this had been the condition of the stairs for several months prior to the time when this accident occurred It was also stated by the witnesses that a Mr. Klein was so far in the supervision of the property as that he acted for the defendant in the collection of rents. And evidence was given to the effect that his attention had been •directed to this condition of the stairs, and that he had promised that it should be repaired. The plaintiff’s mother testified further that she stated to Mr. Klein, when he was there for the rent in September, that she herself had fallen down the stairs and hurt her leg, and if he did not fix the stairs some other person might break his neck there, and he responded that it would be done :soon. The objection was taken that notice to Mr. Klein, who in this manner represented the defendants in the building, was not (sufficient to charge them, even if the evidence was correctly given, with carelessness in permitting the stairs to remain in this condition. But from the fact that he appeared to be authorized to ■collect the rents from the tenants, and was in and about the building frequently, it could be very well inferred that he was the defendants’ representative in the oversight and care of the building. And notice to him, if he was so in charge of the building, while in the discharge of these duties, was constructive notice at least "to the defendants of the condition of the stairway.

On their part evidence was also given to the effect that the stair ■covering had not been worn- or broken through in this manner, but that it was in a safe and secure condition at the time when "this occurrence took place. But this evidence was not so controlling as to require the fact to be withheld from the consideration, of the jury. It was for them, as the evidence on both sides had been given, to determine who was right as to the condition of this stairway, and the superintending authority of Mr. Klein as the-representative of the defendants. And to find the verdict which they did, they must have been satisfied with the truthfulness of the case as it was presented on behalf of the plaintiff, and that, this stairs had been in this condition for five or six months, or-near that time, as the plaintiff’s witnesses described it was; prior to the occurrence of this accident The case, therefore, was not. in a condition in which it could be withheld from the consideration of the jury.

It appeared by the evidence that this child, in what is called as-a fit of crying in the early period of his infancy, sustained a rupture on the left side, and that his father before his birth had. encountered a similar calamity. And the effect of the medical: testimony was that this would increase the probability of the child inheriting that weakness. But this rupture was shown to have-been cured prior to the accident by the application of a truss, and that at the time of the accident he was not suffering from any difficulty of that description, but that after the accident he was-found to have been ruptured on the right side. That is, that there was a projection indicating that the intestine had passed» through what the doctors described a ring, and that a truss was applied to this rupture after the accident, which the plaintiff continued to wear to the time of the trial. But from the evidence of the medical witnesses it is clear that this was not considered by them to be a permanent disability, but one which would be cured by the application of the truss, or if that was not successful then» by a surgical operation, which it was considered by Doctor Lesser should not be performed until the plaintiff was a few years older.. But by its performance the conclusion of- the witness evidently was that this rupture was capable of being healed, and the physician who was sworn on behalf of the defendants was equally as. definite in his conclusions.

• On this subject Doctor Gribney testified that The ring itself, or the canal, or the ring through which the hernia comes, was the-same size as I made out as on the opposite side, but the abdominal walls themselves were packed somewhat above this point and allowed this mass to protrude just a little. It is what we call an incomplete hernia The condition in which I found the boy was. such as sufficient to warrant me in saying that it would improve in time. I should think he would get well. An incomplete hernia is less serious than a complete hernia Such a hernia as this boy suffers from is of frequent occurrence in children of his» age, and they get cured of it” And the plaintiff does not appear to have sustained any other serious injury than that which was-described by the witnesses as a rupture. And with a person of his age, a few years, according to the uncontradicted evidence of' the witnesses, would probably suffice for healing this rupture. ¡No very great amount of pain or suffering is shown to have followed the occurrence of the accident, but by their verdict the-. jury awarded the plaintiff the sum of $5,000. And upon that, as one of the grounds for the motion, an application was made to •set aside this verdict From the description and consequences of ►the inj ury this amount was entirely disproportioned to the suffering and disability imposed upon the plaintiff by this fall. A ver-dict of $5,000 was entirely unwarranted by this proof. And where that appears to be the result, there it is not only the practice but the duty of the court to set it aside, or to provide for so far reducing it as to render it conformable to the evidence. A reference to the cases mainly bearing upon this subject is con■tained in the opinion of the presiding judge in Coppins v. N. Y. C. & H. R. R. R. Co., 48 Hun, 292; 17 St. Rep., 916. And the conclusion which was there adopted was followed in Lockwood v. Twenty-third Street R. Co., 28 St. Rep., 16; Hickinbottom v. Delaware, etc., Co., 15 id., 11; Buck v. Webb, 58 Hun, 185; 33 St. Rep., 824.

An exception was taken to the exclusion of a memorandum contained in a book, and- made on the. 27th of January, 1885, by -the witness Eagan, as to the condition of the plaintiff when he was taken to the hospital for the ruptured and crippled. The witness stated that he had no remembrance of the case whatever, .-and did not remember when the plaintiff and his mother visited the hospital, but that this memorandum was made by him in his •own hand-writing and was °the original entry, and the object of making it was to know where to send the patient. The court excluded the memorandum, and to that the defendant’s counsel excepted. But, inasmuch as there was no testimony given by the witness as to the correctness of the memorandum, the court on that ground was justified in excluding it McCormick v. Penn. Cent. R. R. Co., 49 N. Y., 303, 315.

It cannot in any view be. held that the court erred in this conclusión, for it does not appear by the case what the memorandum was, or that it would.have been of the slightest importance to the ■defendants if the court had permitted it to be read. The prob.abilities are that it would not have been of any service whatever .-•as evidence, for the reason that the condition of this boy on each -of the occasions when he was ruptured do not seem to have been the subject of any serious controversy upon the trial.

An exception was also taken, and has been urged upon the attention of the court as a ground for a new trial, to., the direction in the charge that the reappearance of a hernia in the boy was of mo consequence in the case on the simple question of liability, whether there was a predisposition to it or not. In this direction •the court was clearly right, for tlie predisposition inherited by the hoy to this result could have no effect whatever upon the simple -question of liability. The only effect which could be attributed 4o it and considered in the case was as to the amount of damages the plaintiff should recover if the action could be maintained. And as to that, the direction of the court was wholly inapplicable. It was directed solely to the question of liability. And upon that question this predisposition, if it existed, could have no possihie effect

Indeed there were no exceptions in the case that can be of any possible service to the defendants, for it was entirely proper to receive the evidence of the mother of the plaintiff as to the conversation between herself and Klein in which she described her own. fall as a consequence of the unsafe condition of the stairs.. But. as the verdict of the jury was out of .all proper proportion to the compensation the plaintiff was entitled to recover for the injury received by him, it should be set aside. And the judgment and order for that reason should be reversed, and a new trial directed,, on payment by the defendants of the costs and disbursements of the trial within twenty days after the service of the order to be-entered on the decision, with costs to the defendants to abide the-event, unless within the same time the plaintiff shall stipulate to-reduce the verdict to the sum of $1,500. And in case of the service of such a stipulation, then the judgment and the order to> that extent should be affirmed.

Yah Bruht, P. J., concurs.

Barrett, J.

I concur, but I think Mr. Justice Daniels unnecessarily minimizes the testimony as to Klein’s agency. It is-true that when the conversation between the plaintiff’s mother and Klein was admitted the proof of Klein’s agency was slight. But subsequently Klein himself was called as witness and he testified, as follows: “ I frequently went into that house, 421, in 1889, to-collect the rent; sometimes to look for repairing and reporting it. to the owners. It was my duty to look - after repairs and report, to the owners. Whenever I found anything to report, I reported it to the owners.”

This certainly cured any difficulty with regard to the testimony previously given.

I agree, however, that the damages were excessive and that, there should be a new trial unless the plaintiff chooses to stipulate-as indicated in Mr. Justice Daniels' opinion.


author: Andrews, J.

text:
    Maunsell Van Rensselaer, Pl’ff, v. Edward S. Bull et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Judicial sale—Title—Foreclosure.
    Where a mortgage described the premises as the right, title and interest, of the mortgagor in land in a creek, and the judgment and terms of sale, which were read at the sale, followed the exact language of the mortgage, a purchaser of such premises will not be relieved from his bid on the ■ ground of defective title. It is not necessary for the referee, in such case, to be able to give a good and merchantable titlebut all the purchaser is • entitled to is a deed which will convey all the right, title and interest in the premises which the mortgagor had at the time the mortgage was-given.
    Appeal from order denying a motion made by Messrs. Higgins-- & Lesster to set aside certain sales made to them in this action by a referee under a decree of foreclosure, and to be relieved from their purchase, and requiring said Higgins & Lesster to complete-a purchase made under a foreclosure sale.

      B. L. Bushe, for app’lts Higgins & Lesster; J. A. Beall, for-pl’ff, resp’t; J. B. Chandler and R. P. Harlow, for def’t Bull.
   Andrews, J.

This action was brought to foreclose a mortgage. There was a decree of foreclosure, and a sale under that decree by a referee, on May 8, 1888. Higgins & Lesster were purchasers at such sale of several lots, and paid to the referee ten per cent of the purchase price, and the auctioneer’s fees. Subsequently they declined to complete the purchase of some of these lots upon the ground that the title was defective.

It appears by the papers that the mortgage covered a. large amount of property besides the lots purchased by Higgins & Lesster, and that the amount realized upon the sale was largely in excess of the amount necessary to satisfy the claims of the plaintiff, and, perhaps for that reason, no steps were ever taken to compel Higgins & Lesster to complete their purchases.

The money paid on account remained in the hands of the referee and on January 5, 1891, Higgins & Lesster through their attorney served notice of a motion to be relieved from their purchase, and to receive back the money paid by them to the referee. This motion was heard at special term, and denied, and an order was thereupon entered denying such motion, and requiring Higgins & Lesster to complete their purchases; and from that order this appeal is taken.

We do not think it is necessary for the disposition of this appeal to determine whether the referee can give the purchaser a good and merchantable title, for we are of the opinion .that all the purchaser is entitled to is a deed which will convey to him all the right, title and interest in the premises which the 'mortgagor had at the time when the mortgage was given.

The mortgage which was foreclosed in this action describes a large tract of land, lying between Eighth and Ninth avenues, in the city of New • York, by metes and bounds (one of which was the “ Harlem Creek”) which do not include the premises in question. After the description of said tract of land is added the following : “ Together with all the right, title, and interest of 'the said parties of the first part of, in and to the land in said creek lying in front of and adjoining said premises to the middle line of said creek.” The judgment of foreclosure follows the exact language of the mortgage itself; and the terms of sale prepared by by the referee and which were read aloud by the auctioneer at the time of the sale, and before the bidding began, contained the same description which covers the premises in question. Under these circumstances we think that Higgins & Lesster must have known, or at any rate are chargeable with notice of the fact, that when they bid for the premises in question all that they were to get was the right, title and interest of the defendant Bull, by whom the mortgage was executed.

The case falls within the rule laid down by the court of appeals in Riggs v. Pursell, 66 N. Y., 193. There the purchaser at a foreclosure sale sought to be relieved of his purchase. The property sold was leasehold, and a variety of objections were raised to-tlie title. Earl, J., delivering the opinion of the court, said: “This was a sale of premises held under a lease, and the lease was relerred to in the notice of sale, and hence the purchasers are chargeable with knowledge of the contents thereof. They are supposed to have examined the lease and made their bid in view of its provisions; and they are also chargeable with knowledge of what was apparent and obvious upon the premises.”

We cannot say upon the papers before us that the purchasers knew that the premises were made land, although the filling in of such premises by the public authorities, for sanitary reasons, was a matter of such notoriety that it is difficult to believe that the bidders was not cognizant of the fact However this may be, the mortgage and the judgment, both of which were matters of record, accessible to them or their attorney, plainly showed that when the mortgage was given in 1869 the premises were under water, and that all that was to be sold, so far as these premises were concerned, was the right, title and interest of the defendant Bull, who had purchased the premises from the plaintiff and given back a purchase money mortgage, which was the one foreclosed. The notice as to what was to be sold, contained in the mortgage and judgment, was distinctly repeated in the terms of sale, which were read aloud by the auctioneer before the bidding began. Higgins & Lesster therefore knew, or ought to have known, what they were buying, and, if they did not have such knowledge when they bid they were guilty of the grossest negligence, and we do not think that the court should relieve them from their purchase.

Upon the facts before us we do not think that Higgins & Lesster can justly complain because they are required to complete their purchase It appears that they waited for nearly three years before making the present motion, and that, in the meantime, assessments for filling in the sunken lands in question have been laid by the city authorities; and it is possible that this fact may partly account for the present motion. But whether dr not the case is one of hardship we cannot relieve the purchasers in this case without establishing a most mischievous precedent, under which every purchaser at a judicial sale made under circumstances similar to those now presented, who may finally conclude that he had made a bad bargain, must be released from his bid, if he comes into court and claims that he supposed he was buying a good and merchantable title.

The order appealed from should be affirmed, with costs.

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


text:
    Charles A. Cowen et al., App’lts, v. Margaret Paddock et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Mechanics’ lien—Consent of owner.
    A non-resident owner of real estate made a contract for the sale thereof, which gave no right of possession. The purchaser entered without permission and began excavations. The owner on visiting the premises discovered this and ordered the work stopped, but subsequently it was continued and foundation walls and vaults built, but it did not appear that the owner knew that it was being done. The purchaser was afterwards ejected for non-performance of the contract. Held, that there was no such consent or knowledge followed by silence or acquiescence as would sustain a mechanic’s lien as against the owner.

      Appeal by plaintiffs from a judgment entered on the report of a referee in favor of the defendant Paddock
    The following is the opinion of the referee.
    Odell, Beferee.—This action is brought to enforce claims for labor and materials made by the plaintiffs against premises situated at the northeast corner of Seventh avenue and One Hundred and Twenty-fourth street in the city of New York Judgment is demanded that the interests of the defendants Paddock and Wood in the said premises be sold as provided by law, and that from the proceeds of such sale the plaintiffs be paid the amounts of their respective liens, and that, in case of a deficiency of proceeds, they have judgment therefor against the defendant Wood. It is alleged in the complaint that, at the times the said labor and materials were furnished, the defendant Paddock was, and that she still is, the owner of said premises in fee; that the defendant Wood was in possession thereof, with Mrs. Paddock’s consent, under an agreement to purchase the same; that said labor and materials were furnished by the plaintiffs under contracts made by them with the said Wood, and were rendered and used in or towards the erection of a building upon said premises with the consent of Mrs. Paddock, the owner. She, in her answer, denies such alleged consent. Whether or not it was given is the single question raised by her motion to dismiss the complaint upon the proofs submitted by the plaintiffs.
    Chapter 342 of the Laws of 1885 provides that any person who shall perform any labor or furnish any materials used, or to be used, in erecting any house or building, or appurtenances to any house, building, or building lots, “ with the consent of the owner ” or his agent, may, upon filing a notice of lien, have a lien for the price or value of such labor or materials upon such house, building, or appurtenances, and upon the lot or premises upon which the same may stand or be intended to stand, to the extent of the right, title or interest at that time existing of such owner; and it is declared that’ an owner who has contracted to sell and convey the premises to another person shall be deemed to be the owner, within the intent and meaning of the act, until the deed conveying the premises pursuant to such contract has been actually delivered and recorded. The question in dispute is, what constitutes consent? This question is described by the defendant’s counsel as “ both lexicographical and juridical.” He contends that “ consent ” is used in the statute in what may be called its “ scientific sense,” and refers to Orabb’s English Synonyms to. show that there is a recognized and real difference in meaning between “ consent ” and other words of similar import which are frequently, if not commonly, used as its equivalents. In his preface the learned author of that excellent work explains his business to be “to mark the nice shades of distinction between words closely allied,” and his book contains no better illustration of his acuteness and skill .than will be found in his treatment of the allied words, “assent,” “consent,” “permit,” and “allow.” “As the act of an equal, he says, we 'consent to that in which we Lave a common interest with others ; we permit or allow what is for the accommodation of others ; we allow by abstaining _ to oppose ; we permit by a direct expression of our will; contracts are formed by the consent of the parties who are interested. * * * Consent respects matters of serious importance; permit and allow regard those of an indifferent nature; a parent consents to the establishment of his children; he permits them to read certain books; he allows them to converse with him familiarly. * * . * Assent may be given to anything, whether positively proposed by another or not; but consent supposes that what is consented to is proposed by some other person.” It is doubtful if the legislature in making laws uses language with such scrupulous exactness. Certainly in interpreting them the courts are apt to indulge in free translations. “ The .words of a statute, if of common use, are to be taken in their natural, plain, obvious and ordinary signification." Holmes v. Carley, 31 N. Y., 289. This rule seems to be peculiarly applicable in the construction of a statute which is declared to be a remedial statute, and which “ is to be construed liberally to secure the beneficial intents and purposes thereof.” Act 1885, § 25. In Miller v. Mead, 26 St. Rep., 155, the court said that the difference between “ permission ” (as used in the Kings county lien law of 1862) and “ consent ” (as used in the act of 1885) was in no respect material. The two words are treated as equivalents in Rollin v. Cross, 45 N. Y., 770. The learned counsel has cited Ottiwell v. Muxlow, 24 St. Rep., 38, where the general term of the common pleas said that the meaning of “ consent" in the act of 1885 was well stated by the trial judge as follows: “ Consent ” implies a degree 6t superiority; at least, the power of preventing. It implies, not merely that the person accedes to, but authorizes, an act. This may be so, but I am not able to agree with the counsel that an express authority or consent is necessary. An owner may be estopped or become bound quite as effectually by an “ implied consent,” which Bouvier defines to be “ that manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption that the consent has been given.” Greenleaf says: “Where a landlord quietly suffers a tenant to expend money ■ in making alterations and improvements on the premises, it is evidence of his consent to the alterations.” 1 Greenl. Ev., § 197. In Husted v. Mathes, 77 N. Y., 390, the courtsaid that consent may be implied from knowledge, and that, in the absence of any objection, silence may be deemed sufficient evidence of assent. In Nellis v. Bellinger, 6 Hun, 561, the, plaintiff claimed a lien (under chapter 402, Laws 1854) upon land belonging to the defendant for labor performed by the plaintiff upon a house.which the defendant’s son had caused to be erected upon such land for his own use. The trial court found as facts that the defendant was present on several occasions while the work was in progress, and rendered some assistance in the erection of the house, and made no objection to the work being done, “ and thereby consented to the performance of said work.” On appeal the court held that the evidence clearly manifested the consent which the statute required, and said : “ The statute now gives a lien as well when the owner of land consents to the erection of a structure upon it as when he contracts directly for its construction, and such consent of the owner .may be proved by the fact that he entered into such contract, or by other acts or declarations, as well as by direct.evidence.” Where premises were rented to be used for a particular purpose, and no other, and the landlord, without objection, allowed the tenant to expend a considerable sum of money in fitting up the property for.' a different use and purpose, it was held that he had consented to the change, and was estopped from denying the tenant’s right to devote the property to the new use. Malley v. Thalheimer, 44 Conn., 41. Quitacet consentire videtur is an old and familiar maxim of the law, and the books abound in instances of its application. The Massachusetts decisions, cited by the defendant’s counsel, seem to be at variance with the doctrine of the cases in our own courts, above referred to. See, also, Burkitt v. Harper, 79 N. Y., 273.
    But I am unable to find in the plaintiffs’ proofs any evidence, either of an actual consent by the defendant Paddock to the making of the improvements in the course of- which the work was done and the materials furnished for which the plaintiffs claim a lien; or of such knowledge thereof, followed by silence or acquiescence on her part, as warrants the inference of such consent. What are the facts? On the 18th of February, 1889, Mrs. Paddock contracted to sell the lots in question to the defendant Wood for the sum of $110,000, of which sum $5,000 was to be paid at the time of the execution of the contract, and $15,000 on the • delivery of the deed on the 16th day of April. The balance of the purchase money was to remain on bond and mortgage. Wood was unable to make the payment of $5,000 in cash on the signing of the contract, and persuaded Mr. Banning, who was Mrs. Paddock’s agent and representative in the transaction, to accept for that sum the note of himself and one Bouis Bresler, payable in thirty days from date. It was clearly understood by all the parties that the purchase was made by Wood for the purposes of a theater which he intended to build upon the premises, and that he was eager to commence work without delay, so that he might complete the building and open it by the following October. The contract gave him no right of entry or possession, and Banning testified that he (Wood) “was not to go on the property until the $5,000 note was paid, and theiilie could not do anything but excavate the foundation. * * * I told Mr. Wood that upon the payment of that note he could excavate for a foundation; that there was nothing to be done, no entrance to be had on the property, until that $5,000 was paid.” In answer to the question put to him by plaintiffs’ counsel, “He had authority for the excavation, had he not? ” the witness answered: “Hot until that note was paid. He had no right to touch a shovel of dirt or to go upon the premises; and then he was told that no stone must be laid, no foundation must be laid. After that note, if the note had been paid, if the $5,000 had been paid in cash, he could excavate only; but no foundation must be laid until the contract was fulfilled and he had taken his deed. He was told that at Mr. Freeman’s office.” Wood told Fanning that he would be able to pay the note before it became due out of the proceeds of property which his co-maker, Bresler, had already sola in Detroit. A portion of the premises was occupied by a tenant under an agreement which entitled him to a month’s notice to quit. As soon as the contract was signed, Fanning, for Mrs. Paddock, gave formal notice to the tenant that he must remove from the premises on or before the 21st day of March. This was so that Wood might be put into full possession on his completion of the contract. Wood seems to have commenced the work of excavation about the 1st of March, before any payment had been made upon the note, and without any permission from either Mrs. Paddock or her agent, Fanning. The fact that he was so engaged came to the knowledge of Mrs. Paddock about two weeks later. She visited the premises in company with Mr. Fanning, and saw the work of excavation going on. Her testimony is that she then protested to Mr. Fanning, and told him that she wanted the work tó stop. Mr. Fanning testifies that he did order the men to stop work. He says: “ I ordered them to stop; that that note had not been paid ; and that no more work must be done on there until that note was paid.” The work was in charge of a man named Hough, who was examined as a witness. His testimony varies somewhat from that of Fanning, and is as follows : “ He (Fanning) told me to tell Mr. Wood that if a certain $5,000 was not forthcoming he would stop us immediately at work. ‘If I don't get it in the morning,’ he says, ‘I will stop you to-morrow morning.’ At first he told me to stop work immediately, and then he said to go on, and he would see Mr. Wood in the morning; and, if the $5,000 were not forthcoming, we should have to stop work; for me to tell Mr. Wood that” If it were necessary to determine whether Fanning or Hough states the occurrence with greater accuracy, I should have no hesitation in accepting Mr. Fanning’s version as much more in accordance with plain probabilities; but, even if Hough’s version be the true one, it wholly fails to show any assent to the situation on the part of Mrs. Paddock. All that she did was to object and protest to Mr. Fanning that she wanted the work to stop, and it is plain from her testimony that she understood that he had communicated her protest to the man in charge. I can find in the proofs no satisfactory evidence that the entry of Wood upon the premises was with Mrs. Paddock’s permission, or that any part of the work of excavation was done with her consent. What proof is there that she consented to the construction of the foundation walls and vaults and other work for which the plaintiffs claim their liens? In Burkitt v. Harper, 79 N. Y., 273, the court referred to the facts that “the lessors (the defendants) lived near the premises, and saw the building from time to time while plaintiff was engaged in its erection, and made no objection to the erection of the same.” In Husted v. Mathes, 77 N. Y., 388, the defendant Catharine Storms knew that her husband was building the house upon her lot She lived but about a quarter of a mile away from where the house was being built, and made no objection. The court said that she “ received the benefit willingly.” In Otis v. Dodd, 90 N. Y., 838, Judge Earl said thát “ During the progress of the work on the improvements, and about the time of the commencement thereof, the lessors (the defendants) came upon the premises, and advised about the location of the structures, and gave some directions as to the method of their construction.” And in Nellis v. Bellinger, 6 Hun, 560, the defendant (the owner of the land) knew that his son was building a house thereon, and was present on several occasions during tfye progress of the work, and rendered assistance in the erection of the house, and resided in the neighborhood, and made no objection to the work being done. “The evidence shows (the court said) that the defendant was willing to have the house built upon his land, and encouraged the building of it.” The present case is barren of any such facts. Mrs. Paddock did not reside in the neighborhood of these premises. She visited them but once after the date of the contract of sale, and then made objection to the work of excavating that was being done by Wood without authority. It does not appear that she had any knowledge that the work of building the foundation walls was being proceeded with by Wood. Limning, her agent and attorney, resided in Hew Jersey. He testified that he did not know that the foundation of the building was being laid until it was nearly level with the sidewalk. When he heard of it he “ went up there,” he says, and told the man in charge of the work that it must be stopped. He also saw Bresler, Wood’s father-in-law, who was assisting Wood in the enterprise, and who, with Wood, signed the $5,000 note, and told him that he had “ ordered the work to be stopped, and that it must be stopped.” Doubtless Mrs..Paddock and Mr. Banning might have expressed their opposition to Wood’s energetic proceedings in some more forcible and effective manner, but what they did was quite sufficient to prevent the inference that they “ consented ” to any portion of the work or materials for which the plaintiffs seek to recover in this action. The consent to the laying of the corner-stone, given by Mr. Abbott a few days prior to the tenth of June, does not atone for the plain deficiencies of the plaintiffs’ case. The motion to dismiss the complaint as tó the defendant Paddock is, therefore, granted.

      Henry Q. Atwater, for app’lts; Ohas. Edward Souther, for resp’ts.
   Andrews, J.

This action is brought to foreclose certain mechanics’ liens. All the issues were referred, by consent, to Hamilton Odell, Esq., to hear and determine the same. After plaintiffs’ counsel had introduced a large amount of testimony, counsel for the defendant Paddock inquired whether the plaintiffs’ counsel intended to introduce any further evidence to prove that the defendant Mrs. Paddock, who was the owner of the land upon which the work had been done, ever gave her consent to the doing of the work. Plaintiffs’ counsel replied that he did not intend to introduce further testimony upon that point, and thereupon counsel for defendant Paddock moved to dismiss the complaint as to that defendant, which motion was granted. ' Subsequently judgment was entered in favor of the defendant Paddock dismissing the complaint upon the merits as to her, and for costs, and from such judgment this appeal was taken.

The defendant, Mrs. Paddock, was the owner of certain lands situated at Seventh avenue and One Hundred and Twenty-fourth street, in the city of New York, and sold the same to the defendant Wood. Mrs. Paddock resided in New Jersey, and did not personally make such sale, but was represented by Mr. Panning, who was an attorney at law, and also resided in New Jersey. The agreed price for the property was $110,000, which was to be paid as follows: $5,000 on the execution of the agreement; $14,200 by assuming a mortgage on the premises ; $75,800 by a mortgage to be given, and $15,000 in cash when the deed was delivered. The contract of sale was signed on February 18, 1889, but Wood was not then able to pay the $5,000, and induced Panning to accept a note for $5,000, dated February 19, 1889, signed by Wood and his father-in-law, one Bresler, payable thirty days from date. Five hundred dollars was paid upon the note on March 6, 1889, but the balance was not paid when the note became due on March 19th. On March 21, 1889, after urgent demands of payment had been made upon him, W ood paid $1,200 on account of the note, and on March 25, 1889, the remaining $3,300. The deed of the property was" to be delivered on April 16, 1889, but Wood was not able to pay at that time, or at any subsequent time, the $15,000 in cash, which the contract provided should be paid when tire deed was delivered; and such deed never was delivered. Wood purchased the lots with the intent to erect a theatre thereon, and was anxious to commence work at once in order that such theatre might be completed in the following October. The contract of sale did not give Wood the right to enter upon the land, but it appears that about the 1st of March workmen employed by him commenced excavating upon the land. Panning, according to his own testimony, had no authority to accept the note, but did accept the same without the knowledge of the defendant Paddock, nor did he have any authority to vary the terms of sale above set forth, and which had been approved by the defendant Paddock. Nor, so far as appears by the evidence, had he any express authority to authorize Wood to- enter upon the land before the delivery of the deed. Panning swears positively that when 'the defendant Wood applied to him for leave to enter upon the land to commence work at once, he told Wood that he could not so enter or do any work whatever upon the land until the note for $5,000 had been fully paid. The defendant Woodj on the other hand, testifies that he understood he was authorized to commence work as soon as the contract of sale had been signed. There is no evidence to show that either the defendant, Mrs. Paddock, or Panning, knew that work had actually been commenced until about the middle of March, when they visited the premises in question together. At that time one Hough was on the premises, superintending the work of excavation which was then going on. Mrs. Paddock testifies that she told Panning that the work must be stopped, and Panning testifies that he told Hough to stop work immediately.

Hough’s version of the conversation between himself and Banning •differs somewhat from that given by the latter. His recollection was that Banning had first told him to stop work at once, but ¡afterwards he told him to go on and that he, Banning, would see .Mr. Wood in the morning, and if the $5,000 were not forthwith given, he should have to stop work; for him to tell Mr. Wood that. The referee was of the opinion that Banning’s testimony was more in accordance with the probabilities of the case, and that ■even accepting Hough’s version of the matter, it did not show any ■consent on the part pf Mrs. Paddock that the work should proceed. Subsequently, when the note was not paid at maturity, ¡Banning sent peremptory word that the work must stop, and it .appears to have stopped until the $5,000 was fully paid. After-wards foundation walls and vaults were constructed and some •other work was done upon the property,.but the evidence leaves it in doubt whether the defendant Mrs. Paddock even knew that ■such work was being done. There is no evidence that she visited rthe property again, or that she personally consented that such work •might be done. Wood had not paid the $15,000 in cash, and had mot received his deed, and Mrs. Paddock through Banning and "through Mr. Abbott, whom she afterwards married, was making ■■strenuous efforts to get Wood to make such payment, but the, payment never was made, and Wood was finally ejected fr.om the property sometime in the month of August. The plaintiffs, who ■did the work upon the property, were only partially paid by Wood, .for the work done and materials furnished by them, and thereupon filed the mechanic’s liens which this action is brought to .foreclose.

The experienced and competent referee before whom the action was tried appears to have very carefully and throughly considered ¡all the questions of law and fact involved in the case, and we think that his decision was correct In the elaborate opinion written by him, he reviews all the decisions which throw any light upon the construction which should be given to the word ■“ consent,” as used in the mechanic’s lien law of 1885, and adopts the view most favorable to the plaintiffs, holding that it was not necessary for the plaintiffs to prove the express consent of the defendant, Mrs. Paddock, but that such consent might be inferred, If, having knowledge that such improvements were being made upon her land, she remained silent or acquiesced. An examination of the evidence has also satisfied us that he was correct in his conclusion that the plaintiff did not prove either an actual ■consent of the defendant Mrs. Paddock to the making of such improvements upon her land, or such knowledge thereof, followed by silence or acquiescence on her part, as to warrant the inference •of such consent/ The referee in his opinion examined the material testimony at length, and as we concur in the result reached by him, it would subserve no useful purpose tor us to go over the same ground, and discuss the evidence m detail, as we could only repeat the reasons given by him for his conclusion.

The judgment should be Affirmed, with costs.

Van Brent, P. J., and Barrett, ¡J., concur. „


author: Barrett, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of John Howard Foote, Ex’r.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)
    Executors and administrators—Partnership.
    Testator was a silent partner with, the executor, having put in a capital, upon which he was to receive ten per cent, and it was agreed ¡hat he should not share in the profits or losses unless the net profits exceeded $22,000 in any year, which did not occur. On testator’s death his parner reduced the interest on said capital to six per cent, and included the amount of testator’s contribution of capital in his inventory as executor. Held, that these acts amounted to a liquidation, and authorized the surrogate to charge the executor with said sum without deduction for bad debts, although no actual settlement of the partnership accounts had been, made.
    Appeal by the executor, John Howard Foote, from certain, parts of the decree of the surrogate settling his account.

      Miron Winslow, for app’lt, John Howard Foote; Henry Galbraith Ward, for resp’ts, Jennie H. Leavitt and others.
   Barrett, J.

The executor (Foote) and the deceased (Leavitt); were partners. Consequently, Mr. Foote occupies the dual position pf surviving partner of the firm and personal representative-of the deceased. As executor, he accounted below for the proceedings with regard to Mr. Leavitt’s estate. This is an appeal taken by him as executor, first, from so much of the decree of the surrogate settling his accounts as charged him with $30,000, that being Mr. Leavitt's contribution to the capital stock of the firm, as money in his (Foote’s) hands as executor; and, second,, from so much of the decree as refused to allow- any deduction, from this sum for certain bad debts of the firm.

The opinion of the learned surrogate upon this last question,, which is to be found between folios 132 and 136 of the case, is. quite satisfactory, and we concur in the construction which he-has there given to the articles of copartnership. Any further discussion upon this head would only be a multiplying of words or a repetition of the learned surrogate’s thought in other forms o£ expression. We think he has clearly demonstrated that as between the partners Mr. Leavitt was only to share such losses as; might occur after the division, in any one year, of an excess of. net profits over and above the sum of $22,000. This view is in. precise accord with the terms of the articles of copartnership and. is entirely in harmony with the very special arrangement upon which Mr. Leavitt contributed his $30,000 and became a silent, partner with Mr. Foote.

The question first stated, however, calls for a little further consideration. It is true that the facts of this case are not exactly like those of Baucus v. Stover, 89 N. Y., 1. There one of the executors named Barr was liable to the deceased upon a liquidated, demand, namely, a promissory note for $4,561.91. It was held. that, upon the final accounting of the executors, the surrogate should have charged this executor Barr with the Balance due upon: his debt as so much money in his hands. The contention here,. however, is that the partnership affairs must be settled and the extent of Mr. Foote's indebtedness as surviving partner thus as■certained before he can bv charged as executor with such liquidated sum; in other words, that as surviving partner he must first account to himself as executor. Assuming the correctness cf this view, we think that, as matter of fact, Mr. Foote’s acts since the death of his partner have amounted to a liquidation, and that by such acts he has bound himself to pay the specific sum with which he has been charged by the learned surrogate. As we have .seen, the capital which Mr. Leavitt contributed to the firm was not, as between himself and Mr. Foote, subject to the losses of ihe business generally. Indeed, Mr. Foote did not attempt to ■charge him with any such losses during his lifetime. Mr. Leavitt was to and did receive ten per centum upon his .capital of -$¡30,000, and this ten per centum under the articles was charged '■to the general expense account of the house. This continued without deduction until Mr. Leavitt died. Then the ten per centum stopped and the credits of interest were reduced by Mr. Foote to six per centum, and placed in another account Upon his examination, Mr. Foote was asked the following questions and ■gave the following answers:

■ *' Q. So that after his death the stock account was closed ? A. Hot closed, but his credits of interest after that date were to be ■at the rate of six per cent.
Q. Why were they not kept in the same account as the contribution of capital ? A. I was informed by counsel that would not be the proper way.
■“ Q. Mr. Foote, as I understand it, you closed up Mr. Leavitt’s account under the articles of partnership October 1, 1886, and from, that time on treated it as an indebtedness to the estate, bearing ■six per cent interest ? A. Yes."

It is evident from this that Mr. Foote understood that he was "thereafter liable for the amount of Mr. Leavitt’s capital, with or•dinary interest, and in fact he was so liable under the articles of copartnership. For Mr. Leavitt was not to share in the profits of the firm until they amounted, in some one year, to $22,000 net, .and it appears that the net profits never reached that sum in any •one year. Thus, Mr. Leavitt had his ten per cent throughout, ■and Mr. Foote had all the profits throughout. It followed that, upon Mr. Leavitt’s death, there were, as between the partners, neither profits nor losses to be ascertained, and that Mr. Leavitt’s legal representatives were entitled to withdraw the specific sum ■of $30,000. There were no losses in the business generally which •could have impaired the capital, and the bad debts now sought to be charged against Mr. Leavitt’s capital were simply losses affecting the profits which went to Mr. Foote. The latter gentleman plainly recognized this by retaining the $30,000 at six per cent, ■and treating it as a personal indebtedness. This conclusion is reinforced by the fact that when he filed his inventory as executor he stated therein that Mr. Leavitt’s interest in the firm was of the par value of $30,000 and of the appraised value of $30,000. "These statements were based upon his understanding that that sum was due and payable, and was then, upon the face of his-books, drawing lawful interest like any ordinary debt.

We think, therefore, that upon the facts this case comes within-the principle of Baucus v. Stover, supra, and Matter of Consalus, 95 N. Y., 340; and that the decree of the surrogate charging Mr. Foote with the sum in question, without deductions for bad debts, was right.

As this appeal was taken for the benefit of Mr. Foote personally, we think he should be charged personally with the costs.. They should not come out of the estate because .of his unsuccessful effort to reduce the estate for his own benefit.

The decree of the surrogate should therefore be affirmed, with, costs, to be paid by John Howard Foote, personally.

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


text:
    The Washington Glass Co., App’lt, v. Edmund B. Benjamin et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.).
    Discontinuance—When properly disallowed.
    An application by a non-resident plaintiff, made after counterclaims-have been interposed, for leave to discontinue on the ground that it had been discovered that it was necessary to examine a large number of witnesses by commission and to avoid the labor and expense of so doing, is-properly denied by the court, although plaintiff’s attorney agrees to stipulate that another action will be brought to which such counterclaims may be interposed; it not appearing that he has authority to bind the plaintiff' in this manner.
    Appeal from an order denying a motion for leave to discofitinue this action on the payment of costs,'and from an order-denying a motion for a reargument.

      James Watson, for app’lt; Seth Sprague Terry, for resp’ts.
   Daniels, J.

The plaintiff is a corporation formed and existing under the laws of the state of Pennsylvania and. there engaged in the manufacture of glassware. By a contract entered. into with the-defendants, the plaintiff agreed to sell and deliver glass manufactured by it as that should be directed by the defendants, for which they were to receive a certain commission or deduction from the price of the sales amounting to the sum of ten per cent. They were to collect the bills and turn over the-money to the- plaintiff after making this deduction.

It is averred in the complaint that they failed to do this to the-extent of upwards of $16,000,-and the object of the action was-the recovery of this excess. By their answer the defendants deny their liability and set up two counterclaims, one consisting of their commissions upon glassware ordered and delivered, amounting to the sum of $1,000, and the other for the sum of $502, for the alleged failure of the plaintiff to deliver goods which had been sold within the time when that should have been done, and by omitting to do which these damages are alleged to have been sustained by the defendants.

An application was made, on notice, to the special term for leave-to discontinue the action upon the payment of the defendants” costs. But that was denied by the court because of these counterclaims contained in the answer, and it is from the order denying; that application that this appeal has been brought.

The affidavit upon which the motion was made is that of one-of the plaintiff’s attorneys in the action. And the prominent reason assigned by him in that affidavit to support the application is, that the plaintiff had shipped goods to a large number of persons nominated by the defendants; that these persons resided in various states, and the attorney was informed by the plaintiff, and believed that they had no means of knowing what part of the shipments, amounting to the sum" of $42,592.41, had been paid to the defendants, and that it would become necessary to examine a large-number of witnesses by commission to obtain proof of those payments. And for that reason and to avoid the labor and expense-of obtaining the evidence in that manner, the application to discontinue was made. But this affidavit, made in this manner-presented no substantial grounds for the success of the application. It depended mainly for its effect by way of sustaining the-motion upon facts unknown to the attorney, and concerning which he had no more than information from the plaintiff. But beyond that, it appeared by the affidavits used in resisting the motion, that as the plaintiff was not a resident of the state, the defendants, would be incapable of instituting an action to recover their demands against it in this state, because of their inability to obtain service-of a summons upon the plaintiff. And in answer to that and in. support of an application for the re-argument of the motion, it. was stated by the attorney that he would stipulate that within ten days from the obtaining of leave to discontinue the plaintiff would institute another action in this court against the defendants, wherein their counterclaims might again be interposed and determined.

The court considered that this affidavit containing the offer-was not sufficient to secure a different disposition of the motion,, and therefore denied the application for a reargument. And in •that denial it appears to be justified, for the reason that the plaintiff" itself would not be bound by this offer of the attorney. Hé did. not appear to possess that control over the demand, or of the-operations of the plaintiff, as would obligate it to commence and. prosecute such an action. If the discontinuance had been allowed, for this reason, there would have been no difficulty in the way of" the plaintiff withdrawing the authority of the. attorney entirely over the litigation, and its refusal to commence the proposed action. And as there was no certainty that the plaintiff would become bound to act otherwise by reason of this offer, it was the-duty of the court to reject it and to dispose of the motion upon the facts previously appearing from the affidavits. And they proved that inconvenience and probable injustice would result to-the defendants by allowing an order to be entered for the discontinuance of the action on the terms proposed by the plaintiff.

_ Applications of this description are addressed wholly to the-discretion of the court. And it is to be determined by the facts, which are made to appear whether that discretion can be justly • and reasonably exercised in favor of the plaintiff in an action of this description. Geenia v. Keah, 66 Barb., 245; Carleton v. Darcy, 75 N. Y., 375; Bowe v. Knickerbocker L. Ins. Co., 27 Hun, 312; Campbell v. Campbell, 54 How., 115; Wilder v. Boynton, 63 Barb., 547.

This discretion in this manner vested in the court was not unwisely exercised in the disposition of the motion.

The case was not one, as the facts’ were presented, where a discontinuance could be ordered without probable injustice to the defendants. And if a new suit is really intended to be brought, all that the plaintiff could accomplish by the action may be attained by a motion to amend the complaint and so extend it as to include all the grounds the plaintiff may have for such an action. Bach of the orders should be affirmed, with ten dollars •costs and the disbursements..

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