author: Brady, J.:

text:
    FRANCIS LELAND, Surviving Executor, etc., of PHILETUS PHILIPS, Deceased, Respondent, v. JOSEPH MANNING, Appellant.

      Promissory note given to one executor — in action upon by executors, indorsement of to them need not be ádeged,—Letters testamentary to foreign executors — Duty of executors as to settlement of debts — Lwoentory—when fling of need not be alleged ■—■ Evidence.

    In an action brought by two executors upon a promissory note, given to one in settlement of a debt due from the maker to the estate of the decedent, it is not necessary to allege that the note was indorsed to them.
    Where letters of administration are granted by the surrogate to foreign executors, it is not necessary, in an action brought by them, to allege the probate of the will in the foreign country, or in this State.
    An executor is bound to compound and release a debt if the interest of the estate requires it; he is obliged to act as a discreet and prudent man would, were the debt his own. Where a note is taken, as the result of a settlement and compromise, the anterior matters are merged in it, and an action should be brought upon the note, and not upon the prior indebtedness.
    In an action brought upon a note given in settlement of claims due to the plaintiff’s testator, the pleadings in the suits between the parties, which culminated in the making of the note, are competent evidence to show that the note was given for a valuable consideration, and for the benefit of the estate.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    Milton A. Goodenough, one of the executors of Philetus Philips, deceased, was one of the original parties plaintiff in this action, and died after the entry of judgment.

      Jesse K. Furlong, for the appellant.
    If any cause of action appears by the terms of the complaint, it is one solely in favor of Goodenough personally against the defendant. (Beach v. Gallup, 2 Code R., 66; Taylor v. Corbierre, 8 How. Pr., 385; Parker v. Totten, 10 id., 233.) The note in suit having been made to Milton A., Goodenough, or to his order, its indorsement to the plaintiff should have been alleged. (Marshall v. Rockwood, 12 How. Pr., 452; Lord v. Chesebrough, 4 Sandf., 697; and see James v. Chambers, 2 Seld., 209; McKnight v. Hunt, 3 Duer, 615 ; and see Metropolitan Bank v. Lord, 1 Abb. Pr., 185 ; Vanderpoel v. Tarbox, 7 N. Y. Legal Obs., 150; White v. Brown, 14 How. Pr., 282; Edwards on Bills, 250; Parker v. Totten, 10 How. Pr. 232 ; Prindle v. Carruthers, id., 33 ; Thomas v. Desmond, 12 id., 321.) The disclosures to Denison were not privileged. (Whiting v. Barney, 30 N. Y., 342, opinion of Ingraham, J.; Griffith v. Davis, 3 Barn. & Ald., 502; Shore v. Bedford, 5 Man. & Gran., 271 ; Weeks v. Bryant, 16 Mees. & Wels., 816; Coveney v. Tannahill, 1 Hill, 33, 40 ; Robson v. Kemp, 5 Esp., 52; see Bank of Utica v. Mersereau, 3 Barb. Ch., 533.)

      D. McMahon, for the respondent.
    The promissory note in question being to one of the executors as an individual, and it being taken by them in settlement of the mutual demands of the estate against the defendant, it was proper for the executors to sue on the note in question in their own names individually, or in their own names as executors of Philetus Philips, deceased. (Mercein v. Smith, 2 Hill, 200; Colby v. Colby, 2 New Hamp., 420; Biddle v. Wilkins, 1 Peters, 686; Mowry v. Adams, 14 Mass., 327; Merritt v. Seaman 6 Barb., 332; S. C., in 2 Selden.) The letters testamentary granted in this State are, of themselves, evidence of the right of the executor of the will of a non-resident tb sue in this State. (2 R. S., p. 80, § 56; Dayton on Surrogates, 195; Lawrence v. Lawrence, 3 Barb. Ch., 71; Smith v. Webb, 1 Barb., 230.) The referee properly refused to permit Denison to disclose the private consultation between. him and his client. (Britton v. Loring, 45 N. Y., 51; Benjamin v. Coventry, 19 Wend., 353.) The fact that a third person was present makes no difference. (Jackson v. French, 3 Wend., 337.)
   Brady, J.:

The plaintiff and Milton A. Goodenough, as executors of the last will and testament of Philetus Philips, deceased, brought this action to recover from the defendant the sum of $4,500, due upon a promissory note by him, in settlement of all demands against him by the estate of said Philips. There had been litigation between the parties hereto, growing out of the partnership relations existing between the decedent and the defendant, but they were settled, and mutual releases executed. The note of the defendant, payable to the order of both executors, was given upon such settlement for the sum of $4,500, for which the note in suit was exchanged, at the request of Goodenough, in order to enable him to sell it, the plaintiff refusing to indorse it and incur the liability which that act might create. The note not only belonged, therefore, to the executors, as the representatives of the decedent, but it was given after a final adjustment of their differences, and for the benefit of his estate. The defendant set up a counter-claim, and for about the same amount which he had asserted to be due to him from the decedent prior to the giving of the note, in this action set forth, and the execution and delivery of the releases. The defendant denied that he made the note for the benefit of the decedent, and in full settlement of all claims and demands against him, as alleged in the complaint, but he did not deny that he made the note. He set up, also, as a defense, the release which had been given him, by which it appeared that the consideration for it was the sum of $4,500, the amount of the note. His counsel, when the trial began before the referee, moved to dismiss the complaint upon several grounds:

First. That his complaint did not set forth sufficient to constitute a cause of action.

Second. That there was no allegation in said complaint, that the instrument alleged to be the will of Philetus Philips had been ever proven, or admitted to probate in Philadelphia, Pennsylvania, or elsewhere.

Third. That the note in suit, having been made to Milton A. Goodenough, or to his order, it does not appear in said complaint that it has ever been indorsed or delivered to the executors of the estate of thé above named Philetus Philips.

Fourth. That the consideration for the making and delivery of said note, appears by the complaint to have been an indebtedness from the defendant to the estate of said decedent, and that neither said executors, nor any one else, had power or authority conferred on them, in any way, to receive said note in payment of such indebtedness.

Fifth. That by said complaint it appears that said note is without consideration, and was so made and delivered to Milton A. Good-enough by the defendant; and that if any action against the defendant and in favor of said estate exists, it is against the defendant upon the indebtedness for which said note is alleged to have been given, and not upon the said note.

Sixth. That it nowhere appears in said complaint, that the plaintiffs have, at any time since their alleged qualification as such executors of the last will and testament of said decedent, filed an inventory of said estate and its goods, chattels and credits. The motion was denied and exception duly taken.

The complaint contained facts sufficient to constitute a cause of action. It alleged the death of the decedent, at Philadelphia, in the State of Pennsylvania, leaving assets in that State, and in the city and county of New York, and that by his last will and testament he appointed the plaintiffs, his executors. That thereafter the surrogate of this county, on an exemplified copy of such will, granted to them letters testamentary, whereupon they were duly qualified, and entered upon the dischaige of their duties. That the defendant made the note mentioned for the benefit of the estate of the decedent, and in full settlement of all demands against him; that they, as executors, were the lawful owners and holders of the note, and that no part of it was paid. This view disposes of the third ground stated, because it appears that the note belonged to the estate, and, being prosecuted in the name of the payee, and he alleging that fact, it is wholly immaterial whether it was indorsed or not. It never belonged to the plaintiff Goodenough. It was not necessary to aver, in the complaint, .that the will of Philetus Philips had been admitted to probate in Philadelphia, Pennsylvania, or elsewhere. It was sufficient to aver, on that subject, the appointment of the plaintiffs as executors of such a will, and the granting of letters of administration thereupon by the surrogate of this county. The statute provides that in all cases where persons not inhabitants of this State shall die, leaving assets in this State, if no application for letters of administration shall be made by a relative entitled thereto and legally competent, and it shall appear that letters of administration or testamentary on the same estate shall have been granted by competent authority, in any other State in the United States, then the person so appointed, on producing such letters, shall be entitled to letters of administration in preference to creditors or any other person except the public administrator in the city of New York. The statute also provides that letters of administration, granted by any officer having jurisdiction, shall be conclusive evidence of the authority of the persons to whom the same may be granted, until the same shall be reversed on appeal, or revoked. The act of 1840 : has no application to such a case as this. It applies to the will of a non-resident, duly executed within this- State. The administration granted to the foreign executor, under the Revised Statutes, is doubtless auxiliary to the original administration. The appointment of the foreign tribunal will be considered sufficient for the proper court to issue ancillary probate or letters of administration, as the case may be. This disposes of the second ground stated.

The fourth ground, that the executors had no power or authority conferred on them in any way, to receive the note in payment of the indebtedness of the defendant; and the fifth, that if any action exists, it is against the defendant upon the indebtedness for which the note is alleged to have been given, and not upon the note, are wholly untenable. An executor not only has the power, but is bound, to compound and release a debt, if the interest of the estate requires it. He is obliged to act as a discreet and prudent man would act were the debt his own; and the note being the result of a settlement and compromise, the anterior matters were merged in it.

The sixth and last ground, that it nowhere appears that the plaintiffs have, at any time since their .alleged qualification as executors, filed an inventory of the estate, its goods, chattels and credits, is not well taken. W e have not been referred to any adjudication holding that, when executors or administrators bring actions to enforce debts due to the estate they represent, it is necessary to allege the filing of an inventory. None to that effect has been found. In the case cited by the defendant’s counsel, the administratrix of a decedent, in this State, executed a release without having signed an inventory as required by the statute, and it was held that this was an essential prerequisite, and that she had no power over the personal estate therefor. The letters of administration granted to the plaintiffs were not original letters, as already suggested, but auxiliary, having been issued upon a previous appointment under the will of the decedent. Again, the allegation was that the plaintiffs were executors under the will, and had letters of administration thereupon duly granted to them, and that they had qualified. This was sufficient prima facie to show that they had performed all the prerequisites to the discharge of their functions. The motion to dismiss, upon the alleged insufficiency of the complaint, was, for these reasons, properly denied; and the second motion, at the close of the plaintiffs’ case, was also properly denied, because all the facts averred had been established by proper testimony.

Several exceptions were taken during the trial, which it becomes a duty to consider and dispose of.

First. Goodenough, one of the plaintiffs, testified, without objection, to the compromise already mentioned, and to the exchange of releases ; and they were offered in evidence in connection with the note. They were objected to, on the grounds stated in the motion to dismiss. The objection was, however, to the introduction of them collectively. The note was certainly admissible, and that disposes of the whole exception. Were it otherwise, the existence of the releases having been mentioned by the witness without objection, and one of them having been set out in the defendant’s answer, it is very clear that the introduction of them, if they were irrelevant, was not error. They could not possibly affect his rights prejudicially.

Second. The plaintiffs’ counsel offered, in connection with Good-enough’s testimony, the different pleadings in the suits between the parties which culminated in the making of the notes and releases. They were objected to, but admitted. They were competent to show that the note was given for a valuable consideration, and for the benefit of the estate of the decedent, to which the suits related. They were offered for the purpose of showing what was involved in the litigations which had been pending, and for no other fact; but, taken in connection with Goodenough’s evidence, they established the allegation of the complaint, that the note was given in full of all demands, and for the benefit of the estate of the decedent, upon a settlement of partnership accounts: in other words, proved the consideration of the note which the defendant disputed by the answer.

Third. The plaintiffs offered in evidence, upon the subject of their appointment, certified copies of the letters of administration issued to them by the surrogate of this county, which were objected to on the grounds that there was no proof offered of the probate of the will of the decedent in Philadelphia, or the will or a copy of it put in evidence. The objection was overruled, and properly, for reasons already given. They were, as shown, conclusive upon the defendant.

Fourth. The defendant’s counsel, upon the cross-examination of Goodenough, asked him whether the note in suit was not his own individual property, and he answered that it was not. He was also asked if it was not then his individual property, and he said it was not. He was then asked whether the executors of the estate had settled the estate prior to receiving the note in suit, and whether he had not advanced money to the different heirs of the decedent, or either of them, with the understanding that the money should be paid out of the proceeds of the note. These questions were excluddd. They were wholly irrelevant. They had nothing whatever to do with the issues, and, if answered in the affirmative, could in no way invalidate the claim of the plaintiffs, as executors, against him.

Fifth. The defendant also moved to strike out so much of the evidence of the witness Goodenough, as related to the settlement of the claims of the decedent against the defendant, and of the delivery of the note in suit, and of the releases, for the reason that the witness had no personal knowledge of any of the transactions, other than what he derived from Mr. H. 0. Denison. The motion was denied,.and properly, for several reasons, all of which it is not necessary to state. The witness, as already suggested, had stated the details of the settlement without objection, and had been cross-examined on the subject. He knew of the execution of the release by the plaintiffs, because he was a party. He knew of the release by the defendant, for it was in the possession of the plaintiffs, and it was set up in the answer of the defendant himself. He knew also of the giving of the note, because he had possession of it, and its making was admitted by the answer. The foundation of the objection was, therefore, wholly untenable. The witness had some personal knowledge of the transactions, other than what he derived from Mr. H. 0. Denison If, however, any defect existed in the links of the chain, they were supplied by Mr. Denison, who was subsequently examined.

Sixth. When the plaintiff rested, the" defendant again moved to dismiss the complaint, on the ground that the plaintiff had failed to prove facts sufficient to constitute a cause of action. It has been already stated herein, that the disposition of that motion against him was a proper result. The defendant called but one witness on his behalf, and the exceptions taken to the exclusion of certain questions asked him, are all that remain undisposed of. The defendant did not essay to show the existence of a counter-claim; he seems to have abandoned that, but sought to prove that the plaintiff Goodenough attempted to negotiate the exchange note payable to his order. For this purpose Mr. Denison was put upon the stand. He had been the defendant’s attorney in the actions between him and the plaintiffs, and proved the litigation, the settlement, the giving of the original note to the order of the plaintiffs, and the change of it for the one in suit, payable to the order of Goodenough only. He was employed, however, by Goodenough, in regard to. a negotiation of the exchanged note, and was asked by the defendant’s counsel, for what Good-enough wanted the note negotiated. This was objected to, and excluded upon the ground that the witness had, as stated, acquired all of his knowledge on the subject while acting as Good-enough’s counsel. He was also asked whether, when the communications claimed to be privileged were made, any one was present, and he said there was. He was then asked to give the conversation that took place between him and Goodenough, and also whether the conversation, had in reference to the negotiation of the note in suit, was with the person present, by either Goodenough, the witness or his attorney. These questions were objected to and excluded. The inquiry was totally irrelevant. It was not within the province of the defendant to inquire what the plaintiff or either of them designed to do with the note. They were responsible to the creditors, heirs or next of kin, for a faithful administration of the estate, and could make any disposition of the note they might think proper, so far at least as the defendant’s relation to them was concerned. They owed him no duty on that subject. It was immaterial in another aspect, and that was, that whatever may have been the attempted negotiation, it had not been accomplished, for the note was intact and in the possession of the plaintiffs — a lawful instrument against the defendant. The question of the privilege which the plaintiffs called into requisition, was not necessary. It may be doubtful, on the authorities, whether the circumstances detailed would not have destroyed it, both from the character of the business to which it related and the presence of a third party. It is not necessary, however, to discuss the point. The evidence was properly rejected, and that proceeding is not the less potent because it can be sustained upon some rule of law other than the one assigned when it occurred. These views dispose of this appeal. The defendant, it would appear, had in fact no defense, and sought to avail himself of all the chances which a controversy like this might afford, not because he was not liable for the claim, but because delay was advantageous. It may be that this view is incorrect, but it is certainly warranted by all the developments signalizing the trial. ‘

The judgment should be affirmed, with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.

       3 Rev. Stat. (5th ed.), 159, § 81.

       Id., 167, § 74 (56).

         Chap. 384.

         Supra.

       Willard on Exrs., 163, and eases cited.

       In the Matter of Scott, 5 Legal Observer, 379; Murray v. Blatchford, 1 Wend., 583.

       Jeroms v. Jeroms, 18 Barb., 24.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    GEORGE SHUFFLIN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Witness — Turn may be i/mpeaahed—Leading question — Indictment — what evidence admissible under — Genei'al demeanor of deceased ■—when immaterial — Laws of 1862, chap. 197, § 6 — mwrder in the first degree.

    The plaintiff in error was tried and convicted for the murder of his wife, by means of an assault upon her person. The mother of the plaintiff in error was called as a witness, and testified that the assault was by no means a serious one. Upon her cross-examination she denied that she had told one Mary McGinn, on the morning after the murder, that she was in great trouble ; that her son had been raising a great disturbance. Mary McGinn was called to contradict her, and asked whether she saw old Mrs. Shufflin that morning, to which question the prisoner objected as incompetent and leading. Held (1), that the evidence was admissible to impeach the testimony of Mrs. Shufflin; (3), that the question was proper in form.
    The indictment charged that the death was occasioned by an assault, but did not aver that it was in any way produced by means of a knife. Upon the trial, a policeman testified that a knife, covered with blood, was found on the premises, and was then asked whether a knife, produced in court, was the one so found. The question was objected to as leading. Held (1), that the court could allow leading questions in its discretion; (3), that as the objection was put upon that ground, it could not now be insisted that the evidence was not admissible under the indictment.
    A question, on the part of the defense, as to what the general demeanor of the deceased was when intoxicated, was excluded. Held, that this was proper; what her demeanor was on any other occasion than that of the homicide, or immediately preceding it, was immaterial.
    This court has no authority over questions arising on the trial of an indictment, except such as is given by statute; in order to present the point,.relied upon as error, an exception must be taken; without it the court has no power to set aside a verdict because it is unsupported by the evidence.
    The court was requested to charge, in effect, that if the prisoner detected the deceased committing adultery, and thereupon instantly struck her, and from the effects of such blow she died, the killing was manslaughter, although the blow was given with intent to kill. Held, that the charge was properly refused; that such killing would be murder in the first degree.
    Writ of error to the New York Court of Oyer and Terminer, _ to review the conviction of the plaintiff in error of murder in the second degree.

      Benjamin K. Phelps, for the defendants in error.

      Charles W. Brooke, for the plaintiff in error.
    If the provocation, caused by meeting her paramour at the threshold of her bedroom, followed by the immediate discovery of his wife upon the bed in a nude condition, was great, and such as to excite strong indignation and passion, and under such provocation he billed her, he is guilty only of manslaughter, and that in the lowest degree. (Foster, 296; State v. Samuels, 3 Jones’ Law, 74; 1 Hale P. C., 486; Wharton on Hom., 177, 178; 1 Hawk. P. C., chap. 31, § 36; Wilson v. The People, 4 Parker, 609 ; Wharton on Crim. Law, § 987; People v. Johnson, 1 Parker, 291; Darrey v. The People, 10 N. Y., 157, 161, 162.) The indictment charged, as the means of death, an assault made with the hands and feet of the defendant upon the person of the deceased; the judge erred in admitting evidence in relation to the knife. (Jackson's case, 9 State Trials, 715; State v. Fox, 1 Dutch., 566 ; State v. Smith, 32 Me., 369; Rex v. Grunsell, 7 C. & P., 788, Parke, B.) If a person be convicted of one species of killing, as by poisoning, he cannot be convicted by evidence of á species of death entirely different, as by shooting, starving or strangling. (1 East P. C., chap. 5, § 107, p. 341; 2 Hawk. P. C., chap. 23, § 84; 2 Hale P. C., 185, 186; 2 Inst., 319; Mackally’s case, 9 Co., 67; Rex v. Martin, 5 C. & P., 128; Wharton on Hom., 261; R. v. Briggs, 1 Mood. C. C., 318; R. v. Thomson, id., 139; R. v. Kelly, id., 113; R. v. Bird, 15 Jur., 193.)
   Daniels, J.:

The prisoner was convicted for the murder of his wife, by means of an assault upon her person, committed on the 14th of January, 1873. Their relations had previously been of a rather unfriendly nature, and both seemed to indulge in the use of intoxicating liquors. On the night when the homicide was perpetrated, he returned to his house, under the influence of liquor, and beat his wife, leaving her on the floor of one of the rooms occupied by them, where she was found dead in the morning, with severe wounds about her head. The evidence tended to show that those wounds had caused her death. The statement made by the prisoner, after the homicide was discovered, as well as his testimony given upon the trial, tended to show that he discovered his wife, when he first saw her on the evening of the assault, under circumstances indieating that she had been guilty of adultery with a person issu,ing from her bedroom, and immediately assaulted her for that reason. But other evidence was given upon the trial, tending to discredit his statements and evidence, in this as well as other respects.

The theory of the defense was, that she cut her head in falling against the stove in the room, in an effort made by her to rise from the floor. And the evidence given by the prisoner’s mother asserted that to be the case, and that the assault committed by the prisoner was by no means serious in its nature. Upon her cross-examination, she was asked whether she knew Mary McGinn, and whether she did not meet her in the yard the next morning, near the hydrant, and tell her that she had great trouble — that her son had been raising a great disturbance — in answer to an inquiry as to what was the matter. She gave a negative answer to these inquiries. And after the defense was through, Mary McGinn was put upon the stand to contradict her, by proving that she did, at that time and place, make those statements. The first inquiry* made of her was, whether she saw Mrs. Shufflin that morning. This was objected to as incompetent and leading. The objection was overruled, and the prisoner’s counsel excepted; and that exception is now urged as having been well taken. It is quite clear that the objection was not well founded. ■ The statement which it was proposed by the prosecution to prove, was competent by way of impeaching the witness referred to. According to her evidence, the prisoner had done but little if anything more than take his wife from the bedroom, and lay her on the floor of the "next room, and give her one slap on the side of the face. The statement inquired after, if it were made, was inconsistent with that evidence, because it tended to show that serious trouble and disturbance had been caused by the prisoner. And it would be a material contradiction relating to the important fact involved in the case, and it was admissible for the purpose of discrediting her evidence, and for that, it was received without objection on the part of the ■prisoner’s counsel. It could not well be proved without first showing that the witness, by whom it was proposed to make the proof, had seen the witness whom it was expected to contradict, on the occasion when the interview was supposed to have taken place. The answer was both necessary and proper for that purpose. And the approved mode of securing the response, was by a direct question embodying what the preceding witness had denied.

It appeared by the evidence of one of the policemen, that a knife was found on the premises with blood upon it, in the morning, when the prisoner’s wife was found dead, and that he asked the prisoner if he knew anything about how that knife had got such blood on it. He replied that he did not. The knife was produced, and the witness was asked if he saw that knife on the premises. This question was objected to only as leading. The objection was overruled, and the prisoner’s counsel excepted. The- witness answered that he did, and that there was blood upon it. It is now urged in the prisoner’s behalf, that this evidence was improper because the indictment contained no averment that the homicide was in any way produced by means of a knife. But that objection was not made to the evidence offered. The objection was as specific as it could well have been made, and put upon the sole reason that the question was leading. By its form it substantially conceded that the answer would be proper if the question were differently framed, and that virtually surrendered the position now taken. The objection which was in fact taken is not now insisted upon, and it could not be with any degree of propriety, because the court in its discretion could allow leading questions to be propounded to the witness.

A witness, sworn on the prisoner’s behalf, gave evidence tending to show that the deceased was in the habit of becoming intoxicated, and he was then asked what her demeanor was when she was in that condition. This was objected to by the prosecution, and excluded by the court, and the counsel for the prisoner excepted. It could not have been material what her demeanor was, on other occasions than that existing at the time of, or immediately preceding the homicide. Besides that, if her demeanor at other times had been in any respect important, the facts themselves should have been offered, not the conclusion which the witness might have drawn from those transpiring within his knowledge, The prisoner can derive no benefit from this exception.

The homicide was committed while the act of 1862 was in existence. That divided the crime of murder into two degrees: the first, where the homicide was perpetrated with a premeditated design to effect the death of the person killed; the second, where it was caused, without any design to effe.ct death, by a person engaged in the commission of a felony. The evidence .in no way tended to prove that the homicide was committed in the commission of any felony. The prisoner’s crime, if murder at all, was murder in the first degree. But the court instructed the jury that they had the right under the evidence, if they believed him guilty, to convict him of murder in either of its degrees, or of manslaughter in any degree below the first. There was no exception taken to any part of this direction. And for that reason, even though there was nothing in the case warranting a conviction of murder in the second degree, this court cannot interfere with the determination which was made of it. The only authority which this court has over questions arising on the trial of an indictment, is that given by statute. And that requires an exception, in order to present the point relied upon as error. Without an exception, this court has no power to set aside the verdict rendered because it may be unsupported by the evidence. The court charged the jury that the prisoner’s crime was murder in the first degree, if the homicide was caused by him with the intent to take the life of his wife. This was strictly in conformity to the construction placed upon the provision contained in the statute, by which that offense was at that time defined. The attention of the jury was then called to the provisions of the statute defining manslaughter in the second, third and fourth degrees. And they were left at liberty to convict the prisoner of either, if, under the evidence given in the case, they deemed him guilty of an offense less than murder. What was 'said upon the subject of murder in the first degree and manslaughter, was entirely free from exception, and no objection was made to it. Neither was any exception taken to the statement that the jury had the right to convict of murder in the second degree. But at the close of the case, the court was requested to charge that if the prisoner deteéted the deceased committing adultery, and thereupon instantly struck her, and from the effects of such blow she died, the killing could only be manslaughter. There was no evidence in the case, in any manner tending to show that he detected his wife committing adultery, and thereupon instantly struck her. This proposition was properly refused for that reason.

The court was then requested to charge that the law regards adultery as so great a provocation, and makes such allowance for the passion which its discovery excites, that it absolutely reduces the grade of the offense of killing to manslaughter, and that, in the lowest degree. This was also refused, and an exception taken to the refusal. Whether the provocation mentioned, would reduce the killing to the lowest degree of manslaughter, could not have been properly held as a legal proposition in the case; that depended upon the circumstances to be found from the evidence, and determined by the jury.

It was not claimed that the homicide, if produced at all by the prisoner, was either justifiable or excusable. And the court had charged, that, if perpetrated without any design to take life, it was no more than manslaughter. More than that must therefore have been intended and understood by each of these requests, and no more could have been intended or understood by them, unless they included the fact of an intent on the part of the prisoner to take the life of his wife. If they did not include that' circumstance, then the jury had been fully instructed on the subject, by the direction that the offense could be no more than manslaughter, without a design to take life, and the court was not bound to repeat the instruction. By including the intent to take life, both requests were rendered improper, for the statute in that case rendered the act murder. At common law, it may have been different, and undoubtedly was so. But that seems to have been changed by the statutory codification on the subject of homicide in this State, when felonious in any sense, that rendered the crime murder or manslaughter in one of its degrees. Intentional homicide, when felonious, was declared to be murder; but, when unintentional, the absence of intent reduced the offense to manslaughter. Under that provision of the statute, if the prisoner caused the death of his wife with what it has denominated a premeditated design to effect it, that was sufficient to constitute the crime of murder, and the circumstances mentioned in the requests, could not then reduce it to either of the degrees of manslaughter. For the purpose of rendering it an offense of that character, the design to take life should not have been an element in the propositions presented to the court. Under the circumstances, they could not be construed as omitting that attribute. The terms in which they were expressed were inconsistent with any such understanding", and if there was no intent to take life, the prisoner already had all the benefit which these propositions claimed for him, by the charge the court had actually given. Neither of the points presented on the prisoner’s behalf, will justify a reversal of the judgment pronounced upon him. The control of the court over the case is limited by the exceptions which were taken upon the trial, as long as no objection has been made either to the indictment or the judgment, and as neither of the exceptions can be sustained, the judgment should be affirmed.

Davis, P. J., concurred.

Judgment affirmed.

       Sloan v. N. Y. Central R. R. Co., 45 N. Y., 125.

       Messner v. People, 45 N. Y., 1.

       Laws of 1862, chap. 197, § 6.

       3 R. S. (5th ed.), 1028, § 23.

         People v. Thompson, 41 N. Y., 1; Gaffney v. People, 50 id., 417, 425; Wilke v. People, 53 id., 525.

       People v. Clark, 3 Seld., 385; People v. Austin, 1 Parker, 154; Wilson v. People, 4 id., 619.


text:
    HENRY D. LODER, Respondent, v. THE NEW YORK, UTICA AND OGDENSBURGH RAILROAD COMPANY, Appellant.

      Receiver—when appointed—Judgment reeovetred against corporation through fraxid of officers—presumption m-ising from faiVwre to take direct proceedings to set asido.

    The plaintiff, a judgment creditor of defendant, applied for the appointment of a receiver of the defendant, a corporation, which, as a defense to the motion, alleged that the judgment was obtained by the collusion and fraud of the president of the corporation; upon the hearing, time was given to make a motion to open the judgment on that ground, of which opportunity defendant did not avail itself. Held, that the court was authorized to infer, from its failure so to do, that the defense was without merit.

      Appeal from an order appointing a receiver of the property of the defendant.

      Sullivan, Kobbé, & Fowler, for the appellant.

      John A. Wright, for the respondent.
   Daniels, J.:

The receiver was appointed on the application and behalf of a judgment creditor, in whose favor an execution had been issued against the property of the defendant, and returned unsatisfied. For the purpose of procuring the appointment of the receiver, an action was commenced by the creditor, as required by the statute prescribing the proceedings to be taken for that object. The complaint was sworn to, and presented a case for the appointment of a receiver, and the sequestration of the property of the corporation for the creditor’s benefit.

The application was opposed upon a sworn answer, charging that the judgment was collusively recovered for goods sold to the defendant’s president, and not to or for the company. Upon the hearing which was had, the proceedings were suspended to afford the defendant an opportunity to apply to the court in which the judgment was recovered, to set aside the default, and for leave to defend the action. The defendant failed to make that application, and relied upon its answer as sufficient to entitle it to a denial of the plaintiff’s motion. But the court held otherwise, and appointed the receiver. If the judgment was recovered on a demand for which the defendant was not liable, the most convenient mode of trying that, was the one indicated by the court, on the suspension of the motion. If that was the fact, and the judgment was collusively or fraudulently recovered, the most direct road to redress was an application for leave to defend the action in which it was recovered. It was so obviously so, that it is to be .presumed that the defendant would have adopted it when the opportunity for doing so was offered, if it had any well founded complaint against either the justice or validity of the judgment. That it voluntarily failed to do that, is a strong circumstance against the good faith of the position taken by the answer against the enforcement of the judgment. The omission subjected it to the suspicion that the real object of the defense presented, was more to secure delay than the vindication of the defendant’s rights. For that reason the court was justified in the conclusion, that the objection urged against the appointment of the receiver, was without meritorious support. That would be the inference ordinarily drawn from the course pursued by the defendant in this case; for where the facts will sustain either proceeding, that of a direct, application for leave to defend, is much more likely to prove successful than a collateral attempt to impeach a judgment recovered by a default capable of being "reasonably excused.

Upon the proofs before the court, there was no error in the appointment of the receiver. It is the mode provided by law for the collection of the creditor’s debt, after the return of an execution unsatisfied ; and no change has been made in it, beyond that requiring that it shall form the subject of an action instead of being by petition, as was provided by this section of the Revised Statutes.

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

Davis, P. J., and Brady, J., concurred.

Order affirmed with ten dollars costs, besides disbursements.

      Vol. 1, Laws of 1870, 422, § 3.

       3 R. S. (5th ed.), 768, § 44.


text:
    MARGARET WHALEN, Respondent, v. ELIZABETH A. GLOUCESTER, Appellant.

      ggOwner of real estate — liable for injuries resulting from- its dangerous condition — Cover over bole in sidewalk—persons interfering with sidewalk liable for injwries resulting from such interference.

    The owner of property which is in a dangerous condition when it is leased, is responsible for injuries resulting to a third person by reason of such owner’s ' failure to put the property in proper condition.
    A cover to a hole in a sidewalk becomes a part of the highway, and must be as secure as the walk itself.

      A person who interferes in any way with a sidewalk in a city, and leaves it in a dangerous condition, is liable for injuries caused thereby, whether he knew it to be dangerous or not, and irrespective of any permission from the public authorities to do the work from which the injury arises.
    Appeal from a judgment entered upon the verdict of a jury.

      F. P. Bellamy, for the appellant.
    Evidence of condition of coal-hole previous to time of accident is clearly inadmissible to charge the defendant, unless it is proved that defendant was in possession or had knowledge of the alleged defect, and was guilty of some negligence. (City of N. Y. v. Corlies, 2 Sandf., 301; 36 N. Y., 153; Galt v. Gandy, 22 Eng. Law and Eq.; 14 Gray [Mass.], 249 ; 35 N. Y., 269.) The presumption of law is (even in an action by third party for damages occasioned by neglect to repair a building) that the tenant is bound to repair, and therefore that landlord is not liable for neglect tó do so, especially when tenant is in possession under covenant to repair. (Cheetham v. Hampton, 2 Durnford & East [Court of King’s Bench], 186-189; Regina v. Sir John Ruckwall, 2 Lord Raymond, 804; City of New York v. Corlies, 2 Sandf., 301; 4 E. D. Smith, 20; 2 H. B. L., 349; 14 Gray [Mass.], 249.) There being no wrongful act to be inferred from building coal-hole and cover similar to others in the city, and no evidence that it was not well built, and no neglect being proved, defendant not even knowing of alleged defect previous to accident, there can be no presumption of liability from mere fact of cover of coal-hole being out of order. (36 N. Y., 153 ; id., 54; 3 Abb. Pr. [N. S.], 240; 34 How., 250; 59 Barb., 497; 12 N. Y., 236.)

      A. R. Dyatt, for the respondent.
    Where a person makes any opening or excavation into or beneath a public highway, for his own convenience, he is bound to see that at all times it is so protected as to be absolutely safe for passengers; and this entirely apart from any question of negligence. (37 N. Y., 568, 574; S. C., 16 Abb., 241, in court below ; 5 Trans. Appeals, 254; 1 Robertson, 238, 245; 18 N. Y., 79, 84; 38 id., 449 ; 28 Barbour, 196.) Nor can such a person escape liability for a failure to perform his duty to keep the highway safe, by throwing the burden upon some other person through the medium of any agreement between himself and such other person. (1 Robertson, 238, 245; 17 N. Y., 108; 32 Indiana, 45; Chicago v. Robbins, Am. Law Reg. [N. S.), vol. 11, pp. 535, 536, 537; State v. Dover, 47 N. H., 452.)
   Brady, J.:

The plaintiff in this action was severely and permanently injured by the upturning of a coal-slide cover, on the sidewalk of the defendant’s premises, which was neither fastened by a chain- nor securely rested on its bed. The plaintiff, in alighting from a carriage, on. the 25th of May, 1868, put her foot upon the cover, it turned, and her leg went down the hole or slide, and she was severely cut by one of the prongs or plugs forming a part of the cover. The premises were at the time in the possession of the defendant’s tenant, and had been for several years previously. On the 1st May, 1868, however, he renewed his lease of the premises, at which time, or rather previous to which time5 and in the March preceding that date, the defendant, by the agreement' of renewal, was to put the house in good order, and the tenant was to keep it in that condition. There was evidence given, showing that the cover had been in a dangerous state for months prior to the 1st of May, 1868, one of the three prongs necessary to keep it in its place having been broken at that time. The witness who gave that evidence, also testified that he slipped over it himself, and saw that there was .one plug off. I was, he said, nearly falling in. It was also shown that" the defendant knew a child had been injured or endangered at the cover. Mr. Reiser, one of the plaintiff’s witnesses, who* went- to see her on. behalf of the plaintiff, detailed a conversation with her, in which he said, among other things, that a child had been injured at the same place; to which she said: Oh, no, the child was not injured; the child was not hurt at all.” It is true that the defendant- denied having had any conversation about a child, but the testimony was positive on the part of the witness. The defendant did not deny the statement of her tenant, that she agreed to put the house in good order, or have any repairs done; nor did she show any permission to, use the cover obtained from the city authorities. It seems to have been conceded on the trial, however, that it was placed where it was by proper license for that purpose. Some exceptions to the introduction of evidence were taken during the trial, and an exception also taken to the charge. The, presiding judge placed the - defendant’s liability chiefly upon the proposition, that, if the covering of the vault or slide was in an insecure condition, at the time the tenant went into possession, on the 1st of May, 1868, under the new tenancy, she was responsible for the injuries received by the plaintiff. The accuracy of this view is now presented for consideration. The liability of the mayor, aldermen and commonalty in such a- case as this has been settled, although the cover may have been manufactured after their regulations on the subject, and for the reason that it is their duty to see to it that the covers are secure and kept so. The only proviso limiting such responsibility is, that the mayor, etc., shall have actual or constructive notice of the defect of the cover, or of its insecurity. Assuming, and the assumption is for her benefit, that the defendant had permission to use the cover as provided by the ordinances, the use of it necessarily imposed upon her the obligation to keep it in repair, fit for the pui'pose, and perfectly safe—as safe as the street itself should be—for the passer by. A cover becomes a part of the highway or walk, and must be as secure to the wayfarer as the walk itself. The public are not called upon to examine ordinances relating to such a subject, or to do police duty, or to stop and examine the vault or slide covers. They have a right to assume that they are safe, unless it is apparent, and without examination, that they are not. The defendant, having sought permission to use the street or walk for her private benefit, took upon herself, in reference thereto, all the obligations imposed by law upon the corporation. She assumed a duty to the public, and must bear the burden. It is a well settled rule, said Foster, J., that a person who interferes in any way .with a sidewalk in a city, and leaves it in a dangerous condition, is liable for injuries caused thereby, whether he knew it to be dangerous or not, and irrespective of any permission from the public authorities to do the work from which the injury arises. There is, however, another view to be taken of this case, which presents the theory upon which the defendant was held to ‘be liable on the trial. It. appeared, and the jury so found, that the covering was in an insecure condition — out of repair — when the new term of the defendant’s tenant began, and had been so prior to that time; and that fact was sufficient' to cast upon her the obligation, to remunerate the plaintiff for her injuries. The principle has been „ decided. The defendant, it appeared in that case, leased a pier to another, the lessee agreeing to keep the same in repair. At the time of leasing, there was a defect in the pier, in consequence of which the plaintiff’s intestate received injuries from which he died. " The accident happened after the lessees had taken possession. Held, that the defendants were liable for the injury. In Davenport v. Ruckman, the defendant Ruekman, the action being against him and the mayor, aldermen, etc., of this city, was, it appeared, the owner of a house built on leased ground. He had allowed the cellar-way to become and remain in a dangerous condition. He had sublet the premises, agreeing to put them in repair, but he failed to do so, and they were therefore in a dangerous condition when the tenant took possession. It was held that this did not operate to relieve the defendant from his liability. It simply added another party to the. negligence. It seems to be clear, therefore, that the defendant is liable on both theories herein presented, namely, upon her obligations to the public in her use of the street for her private purposes, and upon her failure to keep the premises in repair, as between her tenant and herself, even if such relation of landlord and tenant, and the consequent possession of the latter, might otherwise excuse her.

The evidence relating to the condition of the plaintiff’s health, and to the appearance of the tumor and its cause, was properly received. She had a right to show all the circumstances attendant upon, and the result of, the injuries received. The exceptions thereto were not well taken. The evidence of the condition of the covering prior to the accident, was properly admitted, bearing, as it did, upon the question whether the defendant had put the premises in order, at or immediately prior to 1st May, 1868.

The exception to the judge’s charge, that the defendant was liable if the defect existed on the first May, was not well taken, for the reasons hereinbefore assigned. There is nothing, therefore, contained in the case which calls upon us to reverse or interfere with the judgment, and it must be affirmed.

Present — Davis, P. J., Daniels and Brady, JJ.

Judgment affirmed.

       Reinhard v. The Mayor, 2 Daly, 243.

       See Revised Ordinances of 1845, chap. 18, p. 251.

         Reinhard v. The Mayor, supra.

       Jones v. Chantry, 4 N. Y. Sup. Ct. Rep., 63; Radway v. Briggs, 37 N. Y., 256.

       Sexton v. Zett, 56 Barb., 119; Davenport v. Ruckman, 37 N. Y., 568; Congreve v. Smith, 18 id., 79.

       Swords v. Edgar et al., 1 N. Y. Sup. Ct. Rep., addenda, 23.

        Supra.


text:
    CHRISTIAN S. DELAVAN, Appellant, v. FLEMING DUNCAN, Respondent.

      Specific performance—delay induced by defendant no defense in action for.

    Where land contracted to be sold was incumbered by a judgment against the vendor, an appeal having been taken, however, in the action in which the judgment was recovered, and on the application of the vendee’s agent for the fulfillment of the contract, the vendor said the vendee would have to wait till the suit was settled, which statement was communicated to the vendee, who said, “ very good,” and proceeded to have his contract acknowledged and recorded: held, in an action brought by the vendee for specific performance, after the judgment had been reversed, that the vendor was bound to assume that his answer would he communicated to the vendee, and could not set up the vendee’s delay which he had himself caused.
    Appeal from a judgment dismissing plaintiff’s complaint. The action was brought for the specific performance of a contract for the sale of certain real estate by the defendant to the plaintiff. The examination of the title disclosed the fact that a judgment lien upon the premises existed against defendant.

      James Emott, for the appellant.

      Mr. Dunning, for the respondent.
   Brady, J.:

The defendant could not convey the premises which he had sold to the plaintiff, unincumbered, because there was an existing unsatisfied judgment against him, but from which he had appealed. He contemplated settling it, but failed to do so ; and, on an application made on behalf of the plaintiff, by Mr. Elliot, the broker whohad acted for the defendant in the sale, the defendant said that the plaintiff would have to wait until the claim was settled in the Court of Chancery .or Court of Appeals, or wherever it was, and this was communicated to the plaintiff, who said, “ very good,” and then proceeded to have his contract duly acknowledged and recorded. It is claimed, however, that the answer of the plaintiff was not communicated to the defendant, and that lie knew nothing of it. If this were so, it would not seem to aid him. The question which intervenes between the plaintiff and the specific performance which he seeks to obtain, is one of laches, and that is dependent upon the further question, whether the delay is excused. The Court of Appeals had this view of the case before them on the appeal taken in this case, but said there was no evidence to sustain the charge that the defendant said the plaintiff must wait, as detailed herein. It is not, as supposed by the defendant, necessary that there should be in this case ah agreement to delay, binding on both parties. The obligation to perform already existed, and would be enforced, unless, by delay for which there was no excuse, the plaintiff had deprived himself of his right to demand performance, according to well established principles. But the defendant was bound, under the circumstances, to assume that his answer would be communicated to the plaintiff, and if he desired to know whether it was or not, it was incumbent upon him to ascertain it. He was the person" in the wrong. He had failed to carry out his agreement. The plaintiff was ready and eager, and that eagerness was demonstrated by his inquiries and the proof and record of his contract, and which circumstances were in themselves constructive notice to the defendant that he intended to enforce it. It appears that Mr. Elliot, on the part of the plaintiff, had several interviews with the defendant on the subject, and this kept the matter alive, even if the defendant were disposed to regard it as obsolete and- abandoned. The-plaintiff, it appears, therefore assented to the proposition of the defendant that he must wait. He did so, and, when the defendant’s litigation was ended, the plaintiff advised him that he wanted the deed óf his house, to which the defendant responded - by saying, you. will have to wait. There was, according to the evidence, no suggestion of any right to refuse to complete or perform the contract. The delay on the part of the . plaintiff, seems to have been satisfactorily excused. If he chose to await the result of the defendant’s appeal from the judgment which prevented him from conveying the property unincumbered, and upon the request of the defendant thereto, he could lawfully do so. The legal effect of such an arrangement was an extension of the time of performance on his part, or a waiver of the due performance of the contract in point of time, on the part of the defendant. To. permit the defendant now to avoid Responsibility, by resorting to the plaintiff’s delay which he invoked, would be to allow him to take advantage of his own wrong. The judgment for these reasons is erroneous, and should be reversed.

Present — Davis, P. J., Daniels and Brady, JJ.

Judgment reversed and new trial ordered, costs to abide event.

      See 49 N. Y., 485.


text:
    In the Matter of the Petition of MARY A. TOWNSEND, Appellant.

      Mortgages—discharge of, from record under statute — chap. 365, of 1862 — chap. 798, of 1868—chap. 551, of 1873.
    Chapter 365, of 1862, as amended by chapter 798, of 1868, as amended by chapter 551, of 1873, is designed to remove an existing incumbrance upon real estate, which has been paid in fact and not by mere presumption of .law.
    When a remedy is given by statute all the requirements imposed by it must be complied with.
    Appeal from an order of the Special Term, denying an application to have a mortgage discharged of record.
    Samuel N. Stubbs made a mortgage to Hiram Parker, dated June 22, 1838, and recorded June 26,1838. Parker assigned said mortgage to Campbell, September 4, 1838, and Campbell assigned it to Mary Spingler the same day. Both assignments were duly acknowledged and recorded, November 24, 1838. Mary Spingler died • intestate in or about the year 1839, and no administration was had on her estate. The respondent is the next of kin and heir at law of Mary Spingler. Stubbs conveyed the property to the appellant. On appellant’s petition stating these facts, and that the mortgage had been paid, an order was made calling on all persons interested to show cause why an order should not be made discharging said mortgage. The respondent showed cause upon an affidavit denying that the mortgage was ever paid, and averring that interest was paid to December 22, 1839, and that no payment of principal or interest had been made since that day.

      John Townshend, for the appellant.

      Edward Mitchell, for the respondent.
   Brady, J.:

The act of 1862, to authorize the discharge of mortgages of record in certain cases, and the amendment thereof by acts of 1868 and 1873, are designed to remove an existing incumbrance which has been paid in fact, and not by mere presumption of law.

It is required, among other things, that the petition shall allege that such mortgage is paid ; ” not alone that twenty years having elapsed it is presumed to be paid, but that it is paid. The object of the statute seems to have been to relieve mortgagors and those claiming under them, in a summary way from an incumbrance which, as stated in the first section of the act, supra, from the lapse of time, is presumed to be paid, if it have in fact been paid, but satisfaction of which cannot be obtained without a formal pro- , ceeding therefor, in a court of equity, in consequence of the death of the mortgagee, and of the fact that no letters testamentary or of administration have been granted in this State. The petition must allege that the mortgagee has been dead for more than five years,- and that °the letters mentioned have not been granted. It is true that the acts also require a statement of the assignment, if one have been made, and the facts in regard to the same,” without exacting an averment that the assignee is dead; but that does not destroy this general design of the statute. The chief object of requiring the statement of the assignment, is to enable the court to have all persons interested notified of the application in accordance ' with section 3 of the act. Whether there be an assignment or not, however, the court must be satisfied that all the matters alleged in the petition are true. Satisfied of what ? The prin-cipal fact is the payment of the mortgage. It must, as shown, be alleged that it is paid. It is not proved in this matter that the mortgage is paid. The evidence is that it is not, except by presumption of law, which is not sufficient on this summary proceeding.

The statute under consideration relates to mortgages presumed from lapse of time to have been paid, but it requires, as already shown, an allegation, and, therefore, proof of payment. The principle is well settled, that, where a remedy is given by statute, all the requirements imposed by it must be complied with. Here the petitioner fails in the most important allegation, the-one indeed upon which the whole application rests. The order of Special Term should be affirmed. The petitioner must seek relief in another mode.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs besides disbursements.

       Laws 1862, p. 610.

       Laws 1868, chap. 798.

         Laws 1873, p. 862.

       Sec. 1.

       Sec. 4.

       Dudley v. Mayhew, 3 Coms., 9 ; Renwick v. Morris, 3 Hill, 621.


author: Brady, J. :

text:
    CHARLES P. KNIGHT, Respondent, v. MICHAEL J. MOLONEY, Appellant, and others.

      Mortgage foreáosme— irregularity—when sale will not be set aside for—Purchaser refusing to complete pur citase—cha/rged with expenses of resale.

    A court of equity will not order a resale of premises under a mortgage foreclosure for an irregularity in form, when it is apparent that the purchaser cannot be injured by it.
    On a mortgage foreclosure, in which both the purchaser at the sale had thereunder and his wife were parties, the wife, being an infant, appeared by attorney. The purchaser, having paid ten per cent at the time of sale, refused to complete the purchase, on the ground that the interests of his wife in the premises were not foreclosed. Meld, that, as the effect of the conveyance to him would be to give the wife the same interests which would have been foreclosed had she properly appeared in tlie action, he was not injured by the irregularity complained of, and was bound to complete the purchase.
    A resale having been ordered on his refusing to pay the residue of the purchase-money, held that he should be charged with the expenses thereof, but not with ■ the expense of proceedings taken to cure the irregularity in the foreclosure as to his wifejs interests in the premises.
    Appeal from an order of Justice Donohue, directing a purchaser to complete his purchase of real estate, sold under foreclosure of a mortgage..

      J. H. Hull, for the appellant.

      A. D. Ditmars, for the respondent.
   Brady, J. :

Michael J. Moloney, the purchaser, was a party defendant to this action, entitled to a moiety of the equity after payment of the mortgage. His wife, Malvinia, was also a party, but was an infant under the age of twenty-one years. They both appeared by an attorney, who was not aware of the infancy of Malvinia. The plaintiff’s attorney was also ignorant of that fact, and it was not revealed until after the sale, when the defendant Michael, having become the purchaser, refused to complete in consequence thereof, and of the failure to have a guardian ad litem appointed for his wife. The father of Michael was also unaware of such infancy until after the sale, when he was informed of it by the plaintiff’s attorney, who had been advised thereto by the attorney for Michael. Mr. Justice Donohue refused to release Michael from the purchase, upon the ground that a deed to him would restore the dower right of his wife, and that he could not, nor could she, be in any way affected by the alleged irregularity. He suggested that if Michael were a stranger, that is to say, not a defendant, there might be something in the point taken. He ordered the referee, therefore, to pay out of the ten per cent in his hands, his fees and the expenses of the sale; also the costs of the plaintiff’s attornéy, as directed by the decree of foreclosure; and that he retain the residue of the ten per cent until a resale of the premises, as security for any deficiency that might arise on the sale, but at the same time ordered that the judgment be vacated and set aside, and that the action be prosecuted against Malvinia as an infant, in case the purchaser, Michael, failed to complete.

It appears from the plaintiff’s points, that a subsequent sale took place, and that the premises were conveyed to Patrick G. Moloney, and the plaintiff’s debt paid.

The defendant Michael having refused to perfect his purchase, and the premises having been resold, the question really presented by this appeal relates to that part of the order in regard to the ten per cent. The alternative portion of the order is a concession that the proceedings were irregular, and, except as to the defendant Michael, could not be upheld. A court of equity would not order a resale for an irregularity in form, when it is apparent that the purchaser could not be prejudiced by it. The purchase by Michael, consummated by a deed to him, would immediately restore the dower right of his wife, not only to the extent of her interest in his prior share of the property, but to the whole of 0the property of which, by the purchase, he became the sole owner. In fact, therefore, she was benefited by the purchase, and the irregularity became, in all respects, on this theory, wholly unimportant. This view was entertained at the Special Term. The defendant Michael must be presumed to know of his wife’s age, and it was his duty to disclose it to his attorney at least, when he engaged or employed him to appear for himself and wife. He did not do so, and his refusal to complete, when, as suggested, the deed to him would reinstate his wife in all her rights in relation to the property, does not seem to have been in good faith. The resale was, under the circumstances, unnecessary, unless the defendant Michael desired, for other reasons, to be relieved from the purchase he made; and he was afforded the opportunity to retire on the payment of the sums directed, and on the conditions named. As the sale was unnecessary, it was proper that he should pay some part of the expenses to be incurred by it, and the question is whether too much was required of him by the order. We think he should not be compelled to pay the costs of subsequent proceedings to make them regular, or, in other words, to correct the error in omitting to name a guardian ad Utem, but only the expenses of the resale after the procéedings were perfected, and which should be deducted out of the ten per cent, or his share of the proceeds of the second sale. We think, also, that no allowance of interest should be made to him on the ten per cent, and that no costs to either party should be allowed on this appeal. This result is predicated of the admitted irregularity of the plaintiff’s proceedings, and the seeming want of good faith on the part of the defendant Michael, in reference to the completion of his purchase, and of the equity of such a conclusion.

It is therefore adjudged that the order at Special Term be modified in accordance herewith, and that Michael J. Moloney be released from his bid.

Davis, P. J., and Daniels, J., concurred.

Ordered accordingly.


text:
    HANNAH LODER, Administratrix, etc., Respondent, v. GILBERT J. HATFIELD and others, Appellants.

      Legacies—IHstinction between postponement of payment for benefit of estate and such postponement with reference to situation of legatee—Action for sale of read estate — prepayment of legacies — statute of limitations—ten years.

    When the circumstances and condition of the legatees, and the circumstances of the estate and of the devisee, show that the time given for the paymentof legacies was designed for the benefit of the estate, and not with reference to the circumstances or situation of the legatees, the legacies do not lapse by reason of the death of the legatees before the time of payment.
    An action for the purpose of having a sale decreed by a court for the payment of legacies, is an equitable action, and must be brought within ten years after the cause of action accrued.
    Appeal from a judgment of the Special Term, ordering a sale of lands to pay legacies charged thereon.
    Joshua Hatfield died August 7th, 1820, leaving a will dated August 5th, 1820, by which he devised a farm to his son Jonathan Hatfield, the husband of defendant Sarah, and father of the other defendants, on the following conditions and proviso, among others, viz.: “I order and direct my said son Jonathan to pay unto my three daughters, Hannah, Eunice and Sarah, $400 each, which I give and bequeath to them and their heirs forever.”

      “ And, furthermore, I order and direct that my four daughters, Phebe, Hannah, Eunice and Sarah, shall live with Jonathan and their mother, and to have a support on the farm, and to assist, as usually they have done, in carrying on the business in the house, and the money I have above bequeathed to them to be. paid in one year after they shall severally marry or be inclined to leave Jonathan and their mother, and live elsewhere.”
    The legacies to Martha (testator’s wife) and to the daughters Phebe and Hannah (the plaintiff) were paid by Jonathan.
    Sarah and Eunice remained unmarried, and resided on the farm until they died, aiding in the work.
    Jonathan accepted the farm devised to him, entered into possession, and owned and occupied it till his death in January, 1870. He devised the farm to his wife, the defendant Sarah, for her life; remainder in fee to his sons.
    Sarah Hatfield, the daughter and legatee of Joshua, died May 8th, 1856, having, on December 13th, 1855, assigned her $400 legacy to her sister Eunice.
    Eunice died August 19th, 1871, intestate, and owning both the legacy given to herself and that given to Sarah, neither of which has ever been paid. Letters of administration were duly granted to Hannah, the plaintiff, by the surrogate of Westchester county.
    The court, at Special Term, decided that the legacies to Sarah and Eunice were valid, vested, a charge on the land, and due and unpaid, and ordered judgment of sale to pay the legacies and interest thereon from a year after the death of Sarah and Eunice respectively, with costs.

      Close & Robertson, for the appellants.

      Edward Wells, for the respondent.
   Brady, J.:

It is conceded by the appellant, that the legacies to Sarah and Eunice are payable out of the real estate of the testator, and that if the payment of them is postponed in regard to the convenience of the person and the circumstances of the estate charged with the legacies, and not on account of the age, circumstances and condition of the legatee, or, in other words, was postponed for the benefit of the devisee or the estate devised to him, then they did not lapse and fall into the inheritance, either by the death of the legatees before marriage, or their failure to depart from the house of the devisee during life. The concession is based upon the authorities which thus declare the rule.

The application of the rule thus stated, depends upon the circumstances of each case. If the condition was annexed to the legacy, and not its payment, the rule would in general be more in harmony, it would seem, with the intent of the testator. It may be that the gift and the time of its payment are necessarily united, and are the same, therefore, in legal effect, but there are cases not in the courts of this State, in which the doctrine is promulgated that, unless the condition or contingency applies to the legacy itself, the direction of its payment at a future day does not affect it, and it vests immediately. The rule itself, as pronounced in this State, must necessarily rest upon the supposed intention of the testator, which is a governing principle ' in the construction of wills, and is generally called into exercise where the payment of the legacy is deferred until the marriage of the legatee, or until he arrives at age. It is nevertheless qualified by circumstances affecting either the legatee or the devisee, in reference to the payment of .the legacy, as we have seen. The question here, therefore, on that subject, neither contingency in reference to payment having-occurred, is, whether the postponement of payment was for the benefit of the estate or the devisee. The legacies are, by the terms employed, absolute in character: “ I order and direct my said son Jonathan, to pay unto my three daughters, Hannah, Eunice and Sarah, $400 each, which I give and bequeath to them and their heirs forever; ” and they'were charged upon the farm or homestead given to Jonathan, which he took upon the expressed condition or proviso that he should pay the legacies. The gift is in the first paragraph of the will succeeding the proviso. In the second paragraph, and therefore not immediately connected with the gift, the provision in reference to the time when the legacies shall be paid is found. That paragraph begins: And furthermore, I order and direct that my four daughters, Phebe, Hannah, Eunice and Sarah, shall live with Jonathan and their mother, and to have a support on the farm, and to assist as usually they have done, in carrying on the business in the house, and the money I have bequeathed them to be paid in one year after they shall severally marry or be inclined to leave Jonathan and their mother, and live elsewhere.”

It will be perceived that the testator alludes to the legacies not as such eo nomine, but as the money he has bequeathed them, which is to be paid when they marry or determine to leave their mother, and live elsewhere, and thus reaffirms the intention that the legacy to each should be paid, and not be contingent upon any event. The phrase, “ the money I have bequeathed them,” coupled with the words, “ $400 which I give and bequeath to them and their heirs forever,” leaves no room for conjecture from the language employed, as to the intent of the testator to give his daughters, under any and all circumstances, a vested legacy in the sum named. This intention is one which the courts would not fail to carry out, unless there was in some other feature of the will a controlling legal element to the contrary.

It is necessary here, nevertheless, to consider whether the postponement of payment, or rather the time allowed the devisee to pay the legacies, was or was not for his benefit. It seems to be evident that the question depends much upon the character of the bequest. Here, as we have seen, it seems to be in form a vested and absolute legacy. The payment of it in one year after the legatee should marry, or be inclined to leave the devisee and her mother, was not for the benefit of the legatee, but, as asserted by the plaintiff, for the benefit of Jonathan, the devisee, so that he should not be burdened with the support of the legatees and the payment of the legacies at the same time. It was for his benefit also, because it gave him one year after such support had ceased to be obligatory upon him by the marriage or departure of the legatee, within which to pay the legacy. This was not a provision in reference to the circumstances of the legatee. There was nothing in the surroundings or condition of the legatees, which required any precaution as to the payment, or the consideration of any circumstance, which made it advisable to expedite the payment on their account. They were provided for. They were to live at the homestead if they chose to do so, and to be supported there by the devisee, who took the devise burdened with that obligation, although they were to assist as before, in carrying on the business in the house,” and thus to a certain extent earning their support. With regard to the devise, however, a different view is presented. It may be assumed with propriety, that the circumstances of the estate, or those of the devisee, were such as to make it advantageous to have a year to gather up and pay the legacy which would become payable by either of the contingencies expressed. This would appear to be so, because the devisee could not, by the terms of the will, sell the estate or his interest- in it, until the death of his mother, the testator’s widow ; and not having any power to sell, he would be compelled to get the money from other sources. The testator, though he charged the land with the payment of the legacies, intended that, on the happening of either contingency named, and within one year thereafter, they should be paid whether the land was sold or not. It would seem, therefore, that, duly considering the bequests made, the circumstances and condition of the legatees, and the circumstances of the estate and of the devise, that the time given for the payment of the legacies was designed for the benefit of the estate, and not of the legatees of the money; and they did not, therefore, lapse and become a part of the inheritance.

The legatee Sarah Hatfield died on the 8th May, 1856, but this action was not commenced until the 15th May, 1873, and it is said that the claim is barred by the statute of limitations. The statute of limitations does not, in terms, specify the time within which an action must be brought to recover the amount of a legacy, but it has been declared, and it seems to be sustained by the provisions of the statutes, that it must be brought within ten years from the time it becomes payable. The Revised Statutes provided that whenever there was a concurrent jurisdiction of courts of common law, and in courts of equity, of any cause of action, the time'limited for the commencement of such cause of action in a court of common law, should apply to all suits brought for the same cause in the Court of Chancery. But if it be a case where the Court of Chancery alone have jurisdiction, the suit should be commenced within the time prescribed for the commencement of suits of the same character in equity, the subject-matter of the suit not being cognizable in the courts of common law.

The Revised Statutes also declared that bills for relief in equity in all cases not provided for in chapter 4, “ Of actions and the times of commencing them,” should be filed within ten years after the cause thereof should accrue, and not after, This action is .one on the equity side of the court, praying the sale of the premises for , the payment of the legacies with which they were charged assuming them to be, as indeed they are, an equitable charge upon the estate devised. The case of McCartee v. Camel was commenced before the Code of Procedure was adopted. The seventy-third section of the Code repealed the provisions contained in the chapter 4 “ Of actions and the times of commencing them,” and substituted the provisions of title 11, of the Code, entitled, “ Of the time of commencing actions.” There are many causes of action specifically designated in this title, but the action by a legatee is not one of them, and there is not therefore any express limitation as to them contained in it. There is not in that title any reference eo nomine to equitable actions or actions of an equitable nature, but there is a provision similar to that contained in the Revised Statutes, and to which reference has been made herein, and which is as follows: Section 97.*“ An action for relief not hereinbefore provided for, must be commenced within ten years after the cause of action shall have accrued.” It would thus appear that both by the Revised Statutes, and since the Code, this action, on account of its nature, is one which must be brought within ten years after the action accrued. An action to enforce an equitable remedy, must be brought within ten years, under section 97 of the Code.

The cognizance of legacies was confined in England to ecclesiastical and equity courts, and the common-law courts did not assume jurisdiction in suits for legacies, except upon an express promise by an executor, in consideration of forbearance, or unless there was evidence that the personal representative held the money, not as executor or administrator, but in his individual character, upon a new contract for a loan of it to him. But our statute provided that an action might be brought, if there were sufficient assets in the hands of the executor to pay the debts and the legacies; and the Revised Statutes provide that if there be more than sufficient assets in the hands of the executor or administrator to discharge the debts of the testator or intestate, a legatee, after the expiration of one year from the time of the granting of letters testamentary or administration, and after a reasonable demand made, and on executing a bond such as designated, may commence an action to recover the legacy against the executor or administrator. -These provisions conferred jurisdiction upon the common-law courts to entertain actions for legacies against executors and administrators, but this is not such an action. The remedy given against the executor or administrator, therefore, founded upon the statute, is one which must be pursued within six years after the cause of action accrues. It is based on the assumption that there are sufficient assets to pay the legacy.

When the action is against the devisee of 'the land charged with the payment of the legacy, or his heirs, as in this case, and not against the executor or administrator, it is, as already stated, one in its nature equitable, and may be commenced at any time within ten years after the cause of action accrues.

If there were, during the six years, sufficient assets in thq hands of the executor or administrator to pay the legacy, and such fact were set up as an answer to the claim of the legatee, it would perhaps require the consideration of a question- that does not arise here. The action is, as suggested, against the heirs of the devisee, and not against the executor or administrator of the testator. There is no question about the right of the plaintiff to the legacy of Eunice, unless it lapsed. The action as to that was commenced in time.

It is claimed, however, that no interest should be given. The right to it has been settled. The land of which the defendants became the owners, was charged with the payment of the legacy, and they took it cum onere; and the land yielding profits, the payment of interest upon the legacy is just and reasonable, though not demanded when due. It should be computed from the 8th May, 1857, which was one year after the death of Eunice.

The testator contemplated that a period of one year should elapse after the legacy became due, before its payment could be enforced.

The judgment must, therefore, be affirmed as to the legacy given to Eunice, and reversed as to the legacy given to Sarah, without costs to either party.

Davis, P. J., and Daniels, J., concurred.

Ordered accordingly.

       Harris v. Fly, 7 Paige, 421, 436 ; Marsh v. Wheeler, 2 Edw. Ch., 156, 163 ; Sweet v. Chase, 2 Comst., 73; Birdsall v. Hewlett, 1 Paige, 32; Willard Eq., 519.

       Cases supra.

      See Sweet v. Chase, supra; see, also, Terrill v. Pub. Admr., 4 Bradf., 245.

      McCartee v. Camel, 1 Barb. Ch., 455.

       2 R. S., 301, § 49.

      2 R. S., 302, §§ 51, 52, 53; McCartee v. Camel, 1 Barb. Ch., 455, supra; Clark v. Ford, 3 Keyes, 372.

       2 R. S., 301, § 52.

         Willard Eq. Jur., 489 ; Harris v. Fly, supra.

        Supra.

        Supra.

       Minor v. Beekman, 50 N. Y., 338 ; Hubbell v. Sibbey, id., 468.

      De Witt v. Schoonmaker, 2 Johns., 243.

       1 Chitty Pl, 114 (6th Am. ed.); Rundle v. Allison et al., 34 N. Y., 183.

       2 R. S., 114, §9.

       Frost v. Frost, 4 Edw. Ch., 733; Clark v. Ford, Rundle v. Allison, McCartee v. Camel, supra.

       Harris v. Fly, 7 Paige, 421.

       Glen v. Fisher, 6 J. Ch., 33 ; Birdsall v. Hewlett, supra.


text:
    In the Matter of the Petition of PATRICK F. CONWAY, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Chapter 137 of 1870 — Publication under— Street assessments.

    Chapter 137 of the Laws of 1870, does not require that a resolution for the repavement of a street in the city of New York, should be published in more than one newspaper.
    Appeal from an order setting aside and vacating assessments made on the land of the petitioner for the expense of paving Thirty-second street with trap-block pavement, between Second avenue and the East river, in the city of New York.

      Wm. Barnes, for the appellant.

      James A. Deering, for the respondent.
   Daniels, J.:

The proofs produced upon the hearing of the petitioner’s application, showed that a previous pavement had been laid upon Thirty-second street, for which his property had been assessed, and the assessment paid. And, as it was made to appear that the resolution providing for the repavement was not published in all the newspapers employed by the corporation before its final passage or adoption, as required by section 7, of chapter M6, of the Laws of 1857, the assessment, for that reason, was objected to as unlawful. The proof showed a failure to publish in the newspaper called The Leader,” and that, under the act of 1857, has been held to be a fatal defect in other proceedings of this nature. But it is claimed, on the part of the appellant, that this principle is inapplicable to the present case, for the reason that the resolution for the pavement mentioned, was not finally passed or adopted until after chapter 137, of the Laws of 1870, went into effect, and that a single publication was sufficient to satisfy all that was required by that act. The proof showed that the resolution for the repavement was reported to the board of aldermen, on the 12th day of May, 1870, and passed on the twentieth of the same month; and that it was received by the board of assistant aldermen on' the twenty-first, and adopted on the twenty-fourth of that month, while the act of 1870 was enacted and went into effect on the fifth day of April of that year, before the resolution was either voted upon or adopted by either of the boards. That act provided that it should' be the duty of the clerks of the respective boards to publish all resolutions and ordinances and amendments thereof, which should be introduced or passed, except such as required secrecy, and that no vote “ shall be taken in either board upon the passage of a resolution or an ordinance, which shall contemplate any specific improvement, or involve the sale, disposition or appropriation of public property, or the expenditure of public moneys or income therefrom, or lay any tax or assessment, until after such notice shall have been published at least three days; and whenever- any vote shall be taken, such resolution or ordinance shall, before the same shall be sent to the other board, or to the mayor, and immediately after the adjournment of the hoard at which the same shall have been passed, be published with the yeas and nays, and with the names of the persons voting for and against the same, as part of the proceedings.”

At the time when the resolution in question was considered, this was the only existing law providing for its publication, for, by the last section of the act containing it, the preceding acts of 1830 and 1857, requiring the publication to be made in all the newspapers employed by the corporation, were expressly repealed. The first of those acts was passed on the 7th of April, 1830; the other on the 14th of April, 1857 ; and they were repealed by an express reference to those dates, as well as the titles by which they had been enacted.

Another act was passed afterward, in the same month, having relation to the publication of proceedings - in the cases of 'assessments, but it did not require them to be published, as the statutes which were repealed had, in all the papers employed by the corporation. It merely provided that all advertising for the city government, including street and assessment proceedings, should be done in not more than seven daily and six weekly newspapers, to be designated from time to' time by the mayor and comptroller, The evident object of the enactment was, to have the papers provided, in which the advertising required by other laws and regulations could be done, without in any way attempting to define or describe what that might be. The advertising was to take place in newspapers from time to time to be designated; but nothing appeared, from which it could be supposed that any designation under this provision had been made when this resolution was before either of the boards that considered and passed it, or at any time since then.

When the resolution was voted upon, the proceedings of the boards acting on it were consequently regulated wholly by the act of April 5, 1870, which simply required publication of the proceedings, without stating that it was to be done, in all the newspapers employed by the corporation. The change made was both substantial and significant, indicating the existence of the intention to dispense with the strictness previously enjoined. The comprehensive term by which, the regularity of the proceedings had been rendered dependent on a publication in all the newspapers, was omitted, and the substitution of an indefinite publication was made to take its place. The omission of that term in the present act, was so important as to be consistent with no other design than that of effecting a change in the law. And its existence is fully confirmed by the positive repeal of the laws by which the general requirement had been made.

The act of 1870 contains no declaration of the number of papers in which the publication shall be made, to constitute a compliance with its requirement. But whether it shall be in one, two or more newspapers, was not stated. All that was prescribed was, that there should be the designated publication of -the resolution and proceedings, and that -can be complied with by making it in one newspaper, as literally and substantially as though it were made in any greater number. In either case a publication would be made, and that is all that the act requires in order to satisfy its terms. '

The system provided for by the preceding statutes was exceedingly strict and precise, rendering the proceedings invalid when, an accidental omission to publish in one paper occurred, even though no want of notice resulted from it to the owner applying for the removal of the assessment, for the expense of the improvement, from his property. And it was probably for the purpose of removing this special restraint that the change was made, which the language of the act of 1870 indicated it to be the intention to make; no other design can be fairly imputed to its terms. It was obviously insufficient, therefore, to establish a failure to comply with this provision, to show an omission to publish the resolution in one of the four newspapers employed by the" corporation for the publication of such proceedings. The act of 1870, which was enacted after the designation was made, did not require" a publication in the newspapers previously employed for that purpose. It required only such a publication as its own terms prescribed, and making it in even a single newspaper was sufficient to perform what they declared should be done.

It appeared from the proof produced upon the hearing, that three. other newspapers were, in 1868, employed for the publication of such proceedings, besides the one in which it was shown that it had not been made. No other evidence of the omission to publish was given. And it may very well have been, consistently with this state of the evidence, that the proper publication was made in each one of the other three papers. It could not be reasonably inferred from the omission to publish in one, that the neglect of the prescribed duty had been general. The application made was predicated on the truth of a negative allegation. And it was the applicant’s duty to give reasonable evidence of its truth, before he could be entitled to an adjudication in his favor.

The persons charged with the duty of making publication, were public officers, who, the law presumes, in the absence of evidence to the contrary, performed the obligation imposed upon them. Some proof that .they failed to do their duty was required, to overcome the presumption existing ’ in their favor. The clerks of the respective boards were required to publish the resolution and proceedings, and-they cannot be held to have failed to do so, without some proof fairly warranting that conclusion; and none was given, which could be rationally attended with that result.

When the resolution was voted upon, the proceedings of the boards, so far as publication was required, were regulated by the act of 1870, which required a mere publication only, and not that it should be made in all the newspapers employed by the corporation, as the preceding laws had designated. The proof given by the applicant failed to show that this publication had not been made. For that purpose, the proof should have gone further. The omission relied upon could not be established by a simple failure to publish in The Leader.

The order appealed from should be reversed, with ten dollars costs besides disbursements,-and the motion denied, with ten dollars costs.

Davis, P. J., and Brady, J., concurred.

Ordered accordingly.

       Matter of Douglass, 46 N. Y., 42; Matter of Astor, 50 id., 363; Matter of Smith, 52 id., 526; and Matter of Phillips, reported in 2 Hun, 212, and decided in Court of Appeals, February 2, 1875.

      Vol. 1, Laws of 1870, 369, § 20.

       Yol. 1, Laws of 1870, 396, § 120.

         Yol. 1, Laws of 1870, 882.

       1 Greenleaf on Evidence (12th ed.), § 80..

       Hartwell v. Root, 19 Johns., 345; People v. Carpenter, 24 N. Y., 86; Leland v. Cameron, 31 id., 115.


text:
    FRANK S. BOND, Respondent, v. SAMUEL B. SMITH and others, Appellants.

      Action for torts — what actions suruime— substitution of personal representatives, cmd separation into two actions in case of death of one defendant.

    Actions for wrongs to the property, rights or interests of another, may be maintained against the executors or administrators of a deceased wrong-doer, when they are not brought for slander, libel, assault and battery, false imprisonment, or on the case for injuries to the person of the plaintiff, or of the testator or intestate of any executor or administrator.
    In an action brought against several defendants, to recover damages for fraudulent representations as to, and inducing thereby the purchase of, certain stock, if one of the defendants die, the action is properly separated and continued as two actions, one against the survivors, and the other against the personal representatives of the deceased party defendant.
    Where, in such a case, the plaintiff has been partially examined as a witness on the trial before a referee, and such examination is incomplete, an order, providing that every act and proceeding done or taken in the cause previous to the decease of the party defendant shall be valid and of like force and effect in each of the separate actions as if they had been sepai'ately brought and prosecuted, is too broad, and should be made without prejudice to an application to strike out such parts of his evidence as would be incompetent as against the personal representatives of the deceased defendant.
    Appeal from an order reviving, separating and continuing an action.

      John E. Burrill, for the appellants.

      Charles M. Da Costa, for the respondent.
   Daniels, J.:

The action was brought to recover damages claimed to have been caused by fraudulent representations concerning the Clifton Iron Company, by means of which the plaintiff was induced to purchase 1,000 shares of its capital stock.

The defendant William D. Thompson departed this life during its pendency, and the order appealed from revived it by making his executors parties in his stead, and directed its continuance as a separate action as to them.

By statute, actions for wrongs to the property, rights or interest of another, may be maintained against the executors or administrators of a deceased wrong-doer, where they are not brought for slander, libel, assault and battery, false imprisonment, or on the case for injuries to the person of the plaintiff, or of the testator or intestate, of any executor or administrator. This action was not within the exception made to the general provision contained in the first section of the statute, and for that reason it did not absolutely abate by the death of the defendant. The order for the revivor and continuance of the action against the executors of the deceased defendant, was in all respects right and proper.

It further provided for the division or separation of the action, and for its subsequent prosecution as two actions, one against the surviving defendants, and the other against the personal representatives of the deceased defendant. And as the action was for a tort, for which the defendants were separately as well as jointly liable, this portion of the order was well warranted by authority.

At the time of Thompson’s decease, the plaintiff had been partially examined, as a witness on his own behalf, before the referee to whom the action had been referred. But the examination was then incomplete. The order provided that every act and proceeding, done or taken in the case previous to his decease, should be valid, and of like force and effect in each of the separate actions as if they had been separately brought and prosecuted. The learned counsel for the appellants expressed the apprehension that this might have the effect of preventing the executors from moving to strike out such portions of the evidence given by the plaintiff, as he would not be competent to give against them in their representative capacity. The order is so broad in "this respect, that the apprehension may be warranted by its probable effect. In this respect it should be modified by the addition of a provision declaring it to be without prejudice to such a motion, and that will leave the referee at full liberty to dispose of the application, if it should be made, without the least restraint or embarrassment arising out of the effect of the order. In other respects the order seems to be in proper form, and well warranted by authority.

With the modification already suggested, the order should be affirmed, with ten dollars costs, besides disbursements, to abide the event of the action.

Davis, P. J., and Brady, J., concurred.

Ordered accordingly.

       3 R. S. (5th ed.), 746, §§1, 2.

       Haight v. Hayt, 19 N. Y., 464; Byxbie v. Wood, 24 id., 607, 612; Graves v. Spier, 58 Barb., 349, 385; Heinmuller v. Gray, 13 Abb. (N. S.), 299.

         Union Bank v. Mott, 27 N. Y., 633; Gardner v. Walker, 22 How. Pr., 405; McVean v. Scott, 46 Barb., 379; Heinmuller v. Gray, 13 Abb. (N. S.), 300; Arthur v. Griswold, MS. opinion of Court of Appeals.

       Moore v. Hamilton, 44 N. Y., 666.