author: Smith, P. J.;

text:
    OLIVER H. P. CHAMPLIN and AMELIA T. CHAMPLIN, Appellants, v. CHARLES STODDART, Respondent, Impleaded with THOMAS STODDART.

      Estoppel — when a failure to disclose, at a sale, rights claimed by one present, in, the subject thereof, constitutes one — irade^mm'h — secret of trade — when an improper use of it will be restrained.

    Appeal from a judgment, entered on a decision made at the Erie Special Term.
    The action was brought to restrain the defendants from infringing a trade-mark and appropriating a secret of trade.
    The judge by whom the cause was tried found the following facts: On or about April 15, 1875, William B. Champlin, who owned and held as a secret of trade a formula for making a certain cosmetic known by the name of “ Champlin’s Liquid Pearl,” sold the same to Thomas Stoddart, with the exclusive, right to manufacture and vend the same, for the sum of $350. On or about April 24,1875, Thomas Stoddart and the plaintiff Oliver H. P. Champlin entered into an agreement in writing, reciting the fact of the purchase aforesaid, and stating that the purchase-money was paid by the parties to the agreement in equal shares, and that the purchase was made for their joint benefit; and the said agreement provided for the carrying on of the business of manufacturing and vending said cosmetic by the said parties. At the time of making the said agreement the said plaintiff in fact paid to Thomas Stoddart one-half of the consideration-price of said purchase. On or about the 25th of January, 1877, by an agreement executed by the said Thomas Stoddart and the said plaintiff, their copartnership in the said cosmetic was terminated, and the said plaintiff purchased the interest of said Stoddart therein and in the formula for making the same, as a secret of trade, for the sum of $1,200. During all that period the said plaintiff carried on the business of a druggist in Buffalo, and Thomas Stoddart was a clerk in his employ from’ May, 1872, till the making of the. last-mentioned agreement. The appellant Charles Stoddart is a brother of Thomas, and he also was in the employ of the said plaintiff from July, 1872, till about the 1st of April, 1877, most of the time as a clerk in said drug store. About the time when Thomas Stoddart purchased said formula, and after negotiations had been begun between him and the said plaintiff for the acquiring by the latter of a one-half interest in the same, and while Thomas.and Charles were in the employ of the plaintiff as aforesaid, Thomas communicated the contents of said formula or recipe to Charles by exhibiting the said recipe to Charles while it was held in Thomas’ hand, but no copy of the same was taken, or memorandum thereof made, by Charles, then or afterwards, and he paid nothing for the same. With that exception Thomas kept the said recipe as a secret of trade, and he sold it to the plaintiff. Charles was present when the plaintiff purchased' and paid for a one-half interest in the same as above stated ; he was also present at the negotiations which resulted in the subsequent agreement by which the plaintiff purchased Thomas’ remaining interest, and he signed the said agreement .as a witness, but he did not on either occasion or at any time disclose the fact that the contents of the said formula had been communicated to him by his brother, or that he claimed for himself the right to manufacture a cosmetic according to the said recipe. After the plaintiff, made the purchase of his one-half interest, and while he and Thomas Stoddart were carrying on as partners tlie manufacture of said cosmetic, Charles, as a clerk in the employ and confidence of the plaintiff, witnessed the manner of the compounding of the same according to the said recipe, and on one or two occasions, as such clerk, was allowed to and did compound the same. In June, 1811/Thomas and Charles formed a copartnership as druggists and carried on their business at Buffalo, and from that time to the commencement of this action a cosmetic has been manufactured at their store under the name of “ Stoddart’s Peerless Liquid,” compounded after the same recipe and of the same ingredients as those used in the manufacture of “ Champlin’s Liquid Pearl,” such ingredients being used in nearly the same proportions as in the said recipe and in the manu-. facture of “ Champlin’s Liquid Pearl; ” and the said cosmetic has been labeled at said store as prepared by Charles Stoddart, chemist, but the defendant Thomas has from time to time assisted and taken part in the compounding, bottling and labeling of the same for market and shipping the same thereto; and sales of the same at wholesale and retail have been made by the said firm of Stoddart Brothers.' The plaintiff Amelia T. Champlin is a partner of her co-defendant Oliver H. P. Champlin, and an equal owner with him in the rights and interests above mentioned. ■
    The judge granted the relief asked for against the defendant Thomas by injunction and for damages, but refused it as against Charles.
    The court at General Term said: “ In refusing an in junction and account against the defendant Charles Stoddart we think the Special Term erred. His conduct in standing by and seeing the plaintiff ■purchase and pay for the recipe in question as a secret of trade, without disclosing the fact that its contents had been communicated to him, and without claiming the right to manufacture and vend the article formulated by said recipe, estops him, in equity, from setting up the communication made to him by his brother, and from deriving any right, title or advantage from such communication. The case is clearly within the doctrine of equitable estoppel as applied in the leading case of Pickard v. Sears (6 Ad. & EL, 469) and other numerous decisions of a later date. A secret of trade is fully recognized in equity as property (<Jarvis v. Peek, 10 Paige, 118), the disclosure of which will be restrained by injunction. (2 Story’s Eq. Jur., § 952.)

      “ The estoppel would have concluded the appellant, even although he had acquired his knowledge t>f the formula, fully and exclusively, from the exhibition of the recipe to him by his brother, and not from his position as the clerk and employe of the plaintiff. And the result would have been the same if he had paid value .to his brother for the communication. His silence and omission to disclose his own title to the property which the plaintiff was purchasing with his knowledge would have been a fraud which would have es'topped him from setting up his title against the plaintiff.
    “We are also of the opinion upon the evidence contained in the printed case, and upon an inspection and comparison of the bottles and labels used by the parties respectively, that those employed by the defendants, although not in all respects a fac simile of those used by the plaintiffs, yet resemble them so far as to be calculated to deceive careless and unwary purchasers, and even purchasers of ordinary care, not familiar with the original. That being the case-the plaintiff is entitled to an injunction restraining the respondent as in that respect prayed in the complaint.” (Colman v. Crump, 70 N. Y., 573.)

      James A. Allen, for the appellant.

      A. G. Rice, for the respondent.
   Opinion by

Smith, P. J.;

Hardin and Barker, JJ., concurred.

Judgment in favor of Charles Stoddart reversed and a new trial ordered as to him, the costs as between him and the plaintiffs to abide event.


source: Caselaw Access Project

author: Smith, P. L;

license: Public Domain

text:
    BRIDGET WELCH, Appellant, v. HARLAN D. PRESTON, and Others, Respondents.

      Appeal — settlement of case — right of the referee to malee additional findings upon the request of the parties — waiver of irregularity.

    Appeal from a judgment dismissing the complaint herein, entered on the report of a referee.
    This action was brought to compel the specific performance of a contract to convey certain real estate described in the complaint.
    The court at General Term, after passing upon the merits of the appeal, said: “ It is suggested by tbe respondents’ counsel that tbe additional findings of the referee, made at the time of settling the case, cannot 'be considered on this appeal, as the present Code, which had taken effect previously, does not authorize findings to be made at that stage of an action. It is true there is no statutory authority for such findings, since the adoption of the Code of Civil Procedure, but it is competent for the parties to an appeal to agree upon a statement of facts on which the appeal shall be heard, and the same will be considered by the appellate court, if it 'appears to have been settled and signed by the referee or trial judge, in accordance with the rule. In this case each party appears to have requested the referee to make additional findings at the time of settling the case, and findings so made at the request of the appellant and respondents respectively, are contained in the appeal book. Even if the appellant alone had procured such findings to be made and inserted in the appeal book,.it would have been a mere irregularity, which the respondents might have been deemed to have waived by omitting to object at the time and to move to strike them from the appeal book, and bringing the case on for argument in its present shape.”

      M. M. Waters, for the appellant.

      J. O. Hunt, for the respondents.
   Opinion by

Smith, P. L;

Hardin and Haight, JJ., concurred.

Judgment'reversed and new trial ordered before another referee, ' costs to abide event.


author: Hardin, J.;

text:
    RUFUS W. STICKNEY, Respondent, v. LUDOVIC F. BILLINGS, Appellant, Impleaded, etc.

      Evidence — when a party’s statements made in the absence of the other party arre inadmissible in his favor — when they do not form a pan't of the res gestee.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought to recover damages for the conversion of certain cheese. The defendant Billings claimed to have acquired title through the defendant Wade, who claimed to have purchased from the plaintiff. The latter denied that he had ever parted with his title to the cheese.

      Upon the trial the defendants gave in evidence a complaint in another action brought by the plaintiff, in which it was averred that the cheese was sold upon seven days’ credit, which complaint was verified by the plaintiff. To overcome the effect of such . evidence, the plaintiff' was allowed to call Milton B. Brown, who testified that he was present at the office of the attorney in New York, who drew the complaint for the plaintiff. While he was making out the complaint in the presence of plaintiff, Brown was asked, viz.: “ Did you hear Stickney make a statement to Mr. Murphy in regard to the terms of his arrangement with Wade? ” This was objected to by defendants, on the ground that it was incompetent for the plaintiff to prove in his own behalf the statement made by himself as to credit. Thereupon the court ruled “ that the witness might state what he heard said, so far as it bore on the allegation in the complaint in the replevin action, as to the terms of sale and delivery of the cheese.” To this ruling defendants excepted. Thereupon the witness replied, viz.: “Mr. Murphy asked him the terms of the sale. Mr. Stickney told him the cheese was shipped directly from him to Joyce & Billings, and that it was never to go into Mr. Wade’s hands at all, or to be shipped by Mr. Wade to Joyce & Billings, unless Mr. Wade should pay for it.” Thereupon defendants’ counsel moved to strike out this testimony as incompetent. The court denied the motion and.defendants excepted. The witness further said: “ This was Friday or Saturday, the twenty-second or twenty-third of August.” The plaintiff’s counsel asked him the following question: “ Did Mr. Stickney, in that conversation, say that the sale was on seven days’ credit ? ” To this defendant again objected as incompetent, and the court . overruled the objection and defendants excepted, and the witness answered: “ I heard no such conversation.”
    The court at General Term said: “ W.e think the rulings cannot be sustained. Plaintiff’s declarations made to his attorney in the absence of the defendants were not admissible. They were no part of the res gestee of any transaction had then and there with the defendants. Plaintiff was not entitled to resort to his declarations to bolster up or sustain the explanation he had, as a witness, made or might make of the inconsistent statements found in his complaint in the replevin action. (Weeks v. Lowerre, 8 Barb., 534, 535; Erben v. Lorillard, 19 N. Y., 299.) Nor does the error fall within the category of errors to be. overlooked because clearly not prejudiced to the party against whom committed. (Crary v. Sprague, 12 Wend., 41; Mitchell v. Hinman, 8 id., 672.)
    “ It became very important to the plaintiff in this trial to overcome the effect of the statements made by him in his sworn complaint in ’ the former action, and he summoned his own previous declarations to his aid to take the sting out of that complaint, and sought to show that he made a statement to his attorney consistent with his evidence upon this trial.
    “We cannot say that the jury was not influenced in their verdict by the evidence of Brown, which we have above quoted.
    “A new trial should be granted.”

      Bowen, Rogers <& Locke, for the appellant.

      Morris Morey, for the respondent.

       So in appeal papers.

   Opinion by

Hardin, J.;

Smith, P. J., and Barker, J., concurred

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


author: Haight, J.;

text:
    WALTER D. GREEN, Appellant, v. THE TRUSTEES OF THE VILLAGE OF CANANDAIGUA, Respondents.

      Costs — when a claim of title to real property a/i~ises upon the pleadings — Code of Civil Procedure, see. 3298.
    Appeal from an order of a Special Term, entered in Ontario county, directing a retaxation of the plaintiff’s bill of costs, and that the same be struck out and disallowed.
    The court at General Term said: “ This action was brought to recover damages which the plaintiff claims to have sustained by reason of the overflow and discharge of a sewer upon the lands of the plaintiff. Upon the trial the plaintiff recovered a verdict of six cents damages. The question presented is as to his right to recover costs. Section 3228 of the Code provides: ‘ The plaintiff is entitled to costs, of course, upon the rendering of a final judgment in his favor in either of the following actions: First. An action triable by a jury, * * * in which a claim of title to real property arises upon the pleadings, or is certified to have come in question; upon the trial.’ It will be observed from the language quoted, thatthei’e are two cases provided for. One in which the claim of title to real property arises upon the pleadings; the other where it is certified, to have come in question upon the trial. No certificate is filed in this ease, and we have only to inquire as to whether a claim of title arises upon the pleadings. The complaint alleges that the plaintiff is the owner of the real estate described therein; that the defendant constructed a covered sewer in and through the village, into which flows the surface water from the streets of the village, with other highly offensive deleterious matter, and that the entire contents of the sewer are thrown upon the premises of the plaintiff, causing a nuisance and damaging his property, by which he has suffered great damage. The answer admits that the defendant is a municipal corporation, denies all the other allegations of the complaint, and sets up a defense that the alleged sewer is a natural water course, and that the village has used it for upwards of thirty years, and claims title adverse to the plaintiff. The case of Kelly v. The New York and Manhattan JBeaeh Hallway Company (reported in 81 N. V., 233), was an action for trespass upon lands. The complaint alleged title and possession in the plaintiff. The defendant unlawfully entered upon the lands and deposited thereon large quantities of earth, sand and rubbish, for which the plaintiff claimed damages. The answer, among other things, specifically alleged that the plaintiff wás not and is not the owner in fee or in possession of the premises. In that case it was held that the title to real estate arose upon the pleadings, and that the plaintiff was entitled to recover costs, notwithstanding he had not recovered the amount of fifty dollars. This case appears to us to be in point and controlling upon the question.” * * *

      K. C. Beeman, for the appellant.

      Chas. H. Paddock, for the respondent.
   Opinion by

Haight, J.;

Hardin, J., concurred; Smith, P. J.f, not voting.

Order reversed, with ten dollars costs and disbursements.


author: Smith, P. J.

text:
    Thomas McCraith, Respondent, v. The National Mohawk Valley Bank, Appellant.

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

Smith, P. J.


author: Smith, P. J., and Hardin, J.;

text:
    John M. French, Jr., Appellant, v. Daniel W. Powers, Respondent.
   Judgment reversed and new trial ordered before another referee, costs to abide' event. Opinions by

Smith, P. J., and Hardin, J.;

Barker, J., dissenting.


author: Hardin, J.

text:
    Stephen B. Frost and others, Respondents, v. Leonard H. Earle and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Hardin, J.


text:
    In the Matter of the Petition of Hezekiah Allen for Leave to Resign his Trust, etc.
   Motion denied. Mem. by

Smith, P. J.


text:
    Martin S. Cuykendall v. Amos Douglass.
   Motion for reargument denied. — Mem. by

Hardin, J.


author: Barker, J.

text:
    The National Exchange Bank of Auburn, Plaintiff, v. Henry Ogden, Defendant, Impleaded, etc.

   New trial .ordered, costs to abide event. Opinion by

Barker, J.


text:
    Garry R. Brinkerhoff, Appellant, v. Lydia P. Vinton, Respondent.

   Order and judgment appealed from affirmed, with costé of appeal. Opinion by

Barker, J.


text:
    Henry W. Smith, Respondent, v. Benjamin F. Trimmer, Appellant.

   Judgment and orders affirmed. Opinion by

Barker, J.


text:
    William O. Leland and another, Respondents, v. Jacob Marshall, Appellant.

   Judgment of the County Court and that of the’ justice reversed Opinion by

Barker, J.


text:
    Christopher Delaney, Respondent, v. The Rome, Watertown and Ogdensburgh Railroad Company, Appellant.

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

Barker, J.


text:
    Charles S. Millington, Respondent, v. Welthy T. Dorn, Appellant.

   Judgment affirmed, with costs. Opinion by

Barker, J.


text:
    Robert T. McGeer, Appellant, v. Charles A. Kernan, Respondent.

   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Barker, J.


text:
    The People of the State of New York, Defendants in Error, v. William H. Carncross and another, Plaintiffs in Error.

   Judgment and conviction reversed and a new trial ordered in the Court of Sessions of Wayne county, to which court'the proceedings are remitted. Opinion by

Hardin, J.


text:
    Eureka Cast Steel Company, Respondent, v. Syracuse Chilled Plow Company, Appellant.

   Judgment reversed and a new trial ordered, before another referee, costs to abide event. Opinion by

Barker, J.


text:
    Almira Baker, Appellant, v. John L. Baker, Respondent.

   Judgment affirmed. Opinion by

Barker, J.


text:
    Kittie H. Stanley, Respondent, v. The City of Watertown, Appellant.

   Judgment and order affirmed.


text:
    Robert H. Crandall. Appellant, v. The Board of Education of Union Free School District No. 1 of the Town of Boonville, Respondent.

   Judgment affirmed.


author: Smith, P. j.

text:
    Philander Rewey, Respondent, v. Matthew Riley, Appellant.

   Judgment and order affirmed, with costs. Opinion bv

Smith, P. j.


author: Barree, J.

text:
    Thomas S. Hadlow, Respondent, v. William T. Barnes, Appellant.

   Judgment affirmed, with costs. Opinion by

Barree, J.


author: BARKER, J.

text:
    Nicholas Schweinsberg, Respondent, v. William H. Clark, Appellant.

   Judgment and order reversed, and new trial, ordered.in tbe Oneida County Court, costs to abide event. Opinion by

BARKER, J.


text:
    Horatio Moyer, Appellant, v. William W. Harwick, Respondent.
   Judgment affirmed on opinion of county jndge.


text:
    Obadiah Stephens, Appellant, v. Peter Cornell, Respondent.

   Motion for reargument granted.


text:
    Andrew Nagle v. Catharine Junker.
   Order reversed, with ten dollars costs and disbursements to be paid by Bissell and Hoffman. Opinion by

Hardin, J.;

Maoomber, J., not sitting.


author: Maoomber, J.

text:
    In the Matter of John Lansing, Receiver of Anna M. O’Dougherty.
   Order affirmed, with ten dollars costs and disbursements, payable out of the fund in the receiver’s hands. Opinion by

Maoomber, J.


text:
    Martha J. Parsons, as Executrix, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

   New trial ordered, costs to abide event. Opinion by

Smith, P. J.


text:
    William Tozer, as Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   Judgment and order affirmed. Opinion by

Hardin, J.


text:
    Peter Fish, Respondent, v. The National Marine Bank of Oswego, Appellant.

   Judgment affirmed. Opinion by

Maoomber, J.


text:
    Avery L. Smith and another, Appellants, v. James Knapp, Respondent.

   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Smith, P. J.


author: MacoMBEr, J.

text:
    Aveline Beer, Respondent, v. Augustus H. Sanger, Appellant.
   Judgment affirmed. Opinion by

MacoMBEr, J.


text:
    Chauncey Cramer, Respondent, v. John T. Lovejoy, Appellant.
   Judgment reversed and new trial ordered m Cayuga county, costs ' to abide event. Opinion by

Smith, P. J.


author: Maoomber. O.

text:
    Joseph Radel, Respondent, v. Matthew L. McMorran and others, Appellants.

   Judgment affirmed. Opinion by

Maoomber. O.


text:
    In the Matter of Elizabeth L. Ensign, as Executrix, etc., for an Order Requiring Martin S. Cuykendall, as Receiver, etc., to Refund Money, etc.
   Order reversed without prejudice to any subsequent proceedings or suit, without costs. Opinion by

Hardin, J.;

Macomber, J., not sitting.


text:
    Jewell M. Burgdorf, Respondent, v. Benjamin E. O’Dell, Appellant.
   Judgment and order reversed, and new trial ordered in Ontario County Court, costs to abide event. Opinion by

Smith, P. J.


author: SMITH, P". J.

text:
    Richard Brothers, Respondent, v. Philander W. Fobes, Appellant.

   Judgment affirmed. Opinion by

SMITH, P". J.


text:
    Charles N. Brown and others, Appellants, v. Norman W. Dodge and others, Respondents.

   The judgments in favor of' Fonda & Howard and Dodge, Miggs & Oo., respectively, reversed, and new trial as between them and the owner ordered in the Onondaga County Court, costs of this appeal to abide event. In all other respects the judgments are affirmed. Opinion by

Smith, P. J.


text:
    James J. O’Dea, Respondent, v. Mary O’Dea, Appellant.

   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Hardin, J.


author: Macomber, J.

text:
    Mason H. Place, Respondent, v. Gilbert E. Parsons, Appellant.
   Judgment of County Court reversed, and that of the • justice affirmed, with costs. Opinion by

Macomber, J.


text:
    Alexander McKinstry, Jr., Respondent, v. Guy Davis and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Smith, P. J.


text:
    John Wolff, Respondent, v. Oswego and Onondaga Insurance Company, Appellant.

   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Hardin, J.


author: Macomber, J,

text:
    Madison Cooper, Appellant, v. Thomas R. Langdon, Respondent.
   Order reversed. Opinion by

Macomber, J,


text:
    Hannah Van Alstine, Respondent, v. The Trustees of the Village of Clyde, Appellant.

   Judgment and order affirmed. Opinion by

Smith, P. J.


text:
    James V. Davis, Appellant, v. Arovestus P. Crandall, Respondent.

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

Hardin, J.


author: Haight, J.

text:
    William S. Little, Appellant, v. The City of Rochester, Respondent.

   —Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Haight, J.


author: Smith P. J.

text:
    George M. Chrysler, Respondent, v. Truman C. Gray, Appellant.

   J udgment and order reversed, and new trial ordered in the Jefferson County Court, costs to abide event. Opinion by

Smith P. J.


text:
    William J. Johnson, Commissioner, etc., Respondent, v. John Loveless, Appellant.

   Judgment affirmed, with costs. Opinion by

Smith, P. J.


text:
    Frank Guillaume, Respondent, v. The General Trans-Atlantic Company, Appellant.

   -Judgment affirmed.


author: Mr. Justice Meewin

text:
    Joshua Wadley and another, Respondents, v. George L. Munroe and another, Appellants.

   -Judgment affirmed on the opinion of

Mr. Justice Meewin

at the trial.


author: Haight, J.'

text:
    William E. Latimer, Appellant, v. Warner B. Lord, Respondent.

   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Haight, J.'


text:
    Frederick M. Evarts, Respondent, v. Ann E. Barton, Appellant.

   Judgment and order reversed, and new trial ordered, costs to abide event, unless the plaintiff stipulates to reduce the verdict and judgment by deducting therefrom the sum of $177.15, in which case the judgment as so modified and the order are affirmed, without costs of this appeal to either party. Opinion by

Hardin, J.


author: Haight, J. •

text:
    Amasa P. Hart, Respondent, v. Matthias Britton, Appellant.

   Judgment affirmed. Opinion by

Haight, J. •


text:
    Luther A. Wing, Plaintiff, v. Erastus Raplee, Defendant.

   New trial denied, and the judgment which was entered on the' verdict to stand as security, made absolute and affirmed. Opinion by

Hardin, J.


author: Smith, P. J.

text:
    Nathan Pakalinsky, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Order denying new trial affirmed. Opinion by

Smith, P. J.


author: Hardin, J.

text:
    Gardner Foster, Respondent, v. Rufus B. Bullock, Appellant.
   Judgment and order affirmed. Opinion by

Hardin, J.


text:
    Charles Winslow, Respondent, v. Frank Moore and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Smith, P. J.


text:
    Martin McCarty, Respondent, v. Francis Bogardus, Appellant.
   Judgment affirmed. Opinion by

Hardin, J.


text:
    Charles E. Crouse and others, Appellants, v. Henry Hessler and others, Respondents.

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

Haight, J.


text:
    Abraham Stern and another, Appellants, v. The Florence Sewing Machine Company, Respondent.

   Judgment affirmed. Opinion by

Smith, P. J.


text:
    John Burdick, Respondent, v. Ira Phillips, Appellant.

   Judgment reversed, with costs, and judgment ordered for defendant in the Oneida County Court. Opinion by

Hardin, J.


author: Merwin, J.,

text:
    George W. Moak, as Receiver, etc., Respondent, v. Nathan S. Hayes, Appellant.

   Judgment affirmed on opinion of

Merwin, J.,

at Special Term.


author: Smith, P. J.'

text:
    George Davis, Appellant, v. Leander W. Fiske, Respondent.

   Judgment affirmed. Opinion by

Smith, P. J.'


text:
    Andrew Probst, Respondent, v. Addison H. Delamater, Appellant.

   Judgment and order affirmed. Opinion by

Hardin, J.


text:
    Orrin Spencer, Appellant, v. Edwin F. Brown, Respondent.
   J udgment affirmed. Opinion by

Haight, J.


text:
    Charles D. Allen, Respondent, v. David Chapman, Appellant.

   J udgment affirmed. Opinion by

Haight, J.


text:
    Frederick Steffin, Respondent, v. Mary A. Lockwood and others, Appellants.

   —Judgment and order affirmed as to George Steffin ' and Mary A. Lockwood, with ■ costs, and leave given to them to answer on payment of costs of demurrer and appeal; and judgment and order reversed as to William H. Lockwood, with costs, and the demurrer as to him sustained, with costs of the demurrer, and. leave given to the plaintiff to amend his complaint on payment to William II. Lockwood of costs of appeal and demurrer. Opinion by

Hardin, J.


text:
    Henrietta H. Wright, Respondent, v. Bank of the Metropolis, Appellant.

   Judgment reversed and new trial ordered, costs to abide event, Opinion by

Haight, J.


text:
    John Carroll, Respondent, v. Ellen Carroll, Appellant.

   Judgment affirmed. Opinion by

Smith, P. J.


text:
    William H. Hersee and others, Appellants, v. Roderick D. Porter, Respondent.

   Judgment affirmed. Opinión by

Hardin, J.


text:
    George Williams and another, Appellants, v. Harrison Gilmore, Respondent.

   Judgment and order affirmed. Opinion by

Haight, J.


text:
    William F. Edington and another, Respondents, v. The Ætna Life Insurance Company, Appellant.
   Order affirmed. Opinion by

Smith, P. J.


text:
    Rebecca St. Helen, Appellant, v. William Townsend and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Hardin, J.


text:
    The Genesee Valley Railroad Company, Appellant, v. The Rochester and Pittsburgh Railroad Company, Respondent.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Juliette M. Boswell, Appellant, v. Nathaniel B. Ward, Respondent.

   Order modified by striking out twenty-eight dollars and ten-cents, and as modified affirmed, without costs of this appeal to either party. Opinion by

Hardin, J.


text:
    William Stevens, Respondent, v. James Stevens, Appellant.

   Judgment affirmed. Opinion by

Smith, P. J.


text:
    William Woodbury, Appellant, v. Orlin Colburn, Respondent.
   Judgment affirmed. Opinion by

Smith, P. J.


author: Per Curiam

text:
    James Derrick, Appellant, v. William B. Hubbell, Respondent, Impleaded, etc.

   Motín denied.

Per Curiam

opinion Sled with the clerk of Erie.


text:
    Mary Jane Desbrough v. George Desbrough.
   Motion for reargument denied. Motion to modify order of last General Term denied.


text:
    James F. Fox, Receiver, Respondent, v. Horace L. Hodge, Appellant.

   Motion denied. Leave given to respondent to withdraw his stipulation reducing the judgment.


text:
    In the Matter of Nathan O. Warren.
   Motion denied, with ten dollars costs.


text:
    Francis X. Myers, as Sheriff, etc., Respondent, v. James A. Becker, Appellant.

   Motion for Teargument denied. Leave granted to appeal to the Court of Appeals on the ground that a question of law is involved which ought to be reviewed by that court.


text:
    John S. Blandon, Respondent, v. Curtiss S. Moses, as Trustee, etc., Appellant.

   Motion for leave to appeal to the Court of Appeals denied.


author: Davis, P. J.:

text:
    OLIVER P. C. BILLINGS, as Receiver of the MARSHALL PACKING COMPANY, Respondent, v. ALANSON TRASK and GEORGE C. ROBINSON, Appellants.

      Corporations organized under chapt&i' 40, Laws of 1848 — liability of its officers under section 14 for loaning money to a stockholder — entries in the books of the company— competency of, as emdence against its officers — by whom, the liability must be enforced.

    Section 14 of chapter 40 of 1848 provides that “ no loan of money ” shall be made by an officer of a company organized under it to any stockholder thereof, and that if any such loan be made the officers who shall make it, or who shall assent thereto, shall be jointly and severally liable to the extent of such loan and interest for all the debts of the company contracted before the repayment of the sum so loaned.

      Seld, that to create the liability imposed by the statute there must have been “ a loan of money ” both in law and in fact, that is, an actual loan of money in such a form as to create an indebtedness and an absolute liability for its repayment by the borrower.
    A company organized under the said act agreed to buy from one of its stockholders certain patents which it purposed to use in its business. It agreed to pay therefor 1,000 shares of its stock, 050 shares to be preferred and the residue common stock. Before the transaction was completed it became necessary for the stockholder, one Marshall, to pay $5,000 to another party to perfect his title to one of the patents. It was thereupon agreed, and the treasurer wa3 directed, to pay to Marshall the sum of $5,000, reserving $10,000 of the preferred stock to be transferred to him; which stock was to be delivered to him thereafter whenever he should pay to the company the $5,000.

      Held, that this was not a loan of money to Marshall within the meaning of the statute.
    The transaction was entered on the books of the company as a loan to Marshall. Held, that even if such entry was admissible to establish the liability imposed by the statute upon the officers making or assenting to the transaction (which was doubtful), it was not conclusive but was subject to explanation and rebuttal.

      It seems, that as the liability created by the statute exists in favor of a certain class of creditors only, it can only be enforced by them and not by a receiver appointed, under article 2 of chapter 8 of part 3 of the Revised Statutes, upon the return unsatisfied of an execution issued upon a judgment recovered against the company.
    Appeal from a judgment in favor of tlie plaintiff, entered on the verdict of a jury and from am order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought against the” defendants as officers of the Marshall Packing Company, of which the plaintiff was receiver, for having participated in making a loan by said company to one W. C. Marshall, a stockholder thereof.

      I, H. Arnold, Jr., for the appellants.

      M. H. Ca/rdozo, for the respondent.
   Davis, P. J.:

This action is brought by the plaintiff as receiver of the Marshall Packing Company,, a corporation organized under chapter 40 of the Laws of 1848, and subsequent amendments thereto. * The plaintiff was appointed receiver by a judgment of this court under and pursuant to the provisions of article 2 of chapter 8 of part 3 of the Eevised Statutes, entitled Proceedings against Corporations in Equity.” (2 E. S., 461-466.) A judgment had been recovered against the company, and execution returned nulla bona. Whereupon a suit was instituted under the provisions of the statutes last above referred to, on the ground of the insolvency of the company, which resulted in the appointment of the plaintiff as such receiver. By the 14th section of chapter 40 of the Laws of '1848, under which the corporation was organized, it is enacted that no loan of money shall be made by an officer of the company to any stockholder thereof, and if any such loan shall be made, the officers who shall make it or who shall assent thereto, shall be jointly and severally liable to the extent of .such loan and interest for all the debts of the company contracted before the repayment of the sum so loaned. The receiver sues the defendants, as officers of. the Marshall Packing Company, for having participated in making a loan of money to ~W. C. Marshall, a stockholder of the company.

The liability created by the section, upon which the suit is brought, is purely a statutory one, and is in the nature of a penalty. It is clear that no right of action is given to the corporation by the statute. Nor is the liability to general creditors, for the statute declares that such officers shall be jointly and severally liable to the extent of such loan for “ all the debts of the company contracted before the repayment of the sum so loaned.” The creditors subsequent to repayment would therefore have no, interest in the liability. This statutory liability is given directly therefore to a specific class of creditors. It seems to us very doubtful whether the receiver is or can be vested with any right of action springing out of such a liability.

In Story v, Furman (25 N. Y., 214), in which case the receiver was appointed under the same statute as the pr.esent receiver, it is said that such receivership, by the terms of the statute, would be necessarily limited to the property and effects of the corporation. This clearly would not include personal liability of a stockholder for the payment of corporate debts after the corporate effects are exhausted, for such liability clearly cannot be deemed the property of the corporation. And in Mason v. Silk Manufacturing Company (27 Hun, 307), speaking of the liability of stockholders .created by this act, Mr. Justice .Daniels says : “ And from the manner in which these rights have been created, a receiver of the property and effects of the corporation can have no authority either to assert or enforce them. They are on the contrary, by express language, secured to the.creditors, who alone can enforce them by appropriate legal proceedings taken for that purpose.”

It is not easy to seé upon what grounds the action in this case can be maintained by the receiver. But we are not disposed to pass upon that question more definitely, because we think the case should be disposed of upon another ground. The action is brought for the alleged making by the defendants as officers of the company of a loan of money to W. C. Marshall.

It is clear that to establish a right of action under the statute on behalf of creditors, it is necessary to show that the transaction out of which it is claimed to have arisen, was both in law and in fact “ a loan of money ” ; and what is meant by those words is an actual-loan of money in such form as to create an indebtedness to be at some time repaid, so that a liability for repayment by the borrower is created. 'The evidence in this case failed to establish such a transaction. .It appears that Marshall was the owner, amongst other things, of various American and British patents which he proposed to sell and the company proposed to buy for the purpose of establishing its business. The terms' of sale and purchase as expressed in the agreement were in substance that Marshall should sell or transfer this property to the company and receive in full payment therefor 1,000 shares of the stock of the Marshall Packing Company, of which 250 should be prefered stock and 750 common stock. A formal agreement subscribed by the parties was entered into and various assignments of patents were made by Marshall to the company. But it turned out .before the consummation of the transaction by actual delivery of the property that it was necessary that Marshall, in order to secure a perfect title to one of the British patents, should pay to another party the sum of $5,000, and he therefore proposed that the company, instead of delivering to him the full amount of the preferred stock, should pay to him $5,000 in cash and retain $10,000 of the preferred stock to be delivered to him thereafter whenever he should pay the company the $5,000. Thereupon a resolution was adopted at a meeting of the board of directors in these words : “ Resolved, That the treasurer be and he hereby is authorized and instructed to pay to W. O. Marshall the sum of $5,000, reserving $10,000 of the preferred stock heretofore directed to be issued to the said Marshall under agreement for the purchase of his property.” Under this resolution the treasurer drew his check to Marshall for $5,000 and retained the $10,000 of preferred stock mentioned in the resolution. This transaction, as expressed in the resolution, is in no sense a loan. Marshall was under no obligation to repay the $5,000 and take the $10,000 shares of stock. He doubtless had an option or privilege to do so within some reasonable time, but an obligation, to pay the money was not created. The transaction, therefore, as expressed in the minutes of the corporation, and testified to by the witness Adams, was something altogether different from a loan. According to Adams’ testimony Marshall refused to go on with the arrangement unless the board would consent to j)ay him the $5,000 and grant him the privilege thereafter of taking the $10,000 in stock by paying the $5,000 in money back; but neither he nor the corporation seem to have regarded it as in any sense a loan, as in point of fact it was not, under the resolution of the board or according to the testimony of Adams or of Marshall.

It appeared however in the case that in one of the books of the company containing an account of the dealings between Marshall and the company, the treasurer entered this transaction as a loan to Marshall. lie himself testified, however, that it was so entered by mistake, and in substance, that it was not in fact a loan. That book was offered in evidence against these defendants. It is very doubtful whether it was’admissible as evidence at all, for while it is the general rule that the books of the company containing the transactions of the corporation are admissible in evidence in respect of such transactions against officers and members of the corporation, yet it is very doubtful whether that rule can be extended to make the private accounts with the individuals dealing with the corporation,- whether themselves stockholders or not, evidence of indebtedness to charge stockholders or officers with liability to penalties. This account was not one against the defendants, but against Marshall, and nothing .can be more certain than that if the entry in such a case is evidence at all against third parties, yet it is by no means conclusive. There was nothing to show that either the corporation or Marshall had ever treated the transaction as a loan. He was neither charged nor did he pay, interest upon the same, nor does it appear that he was ever called upon to pay the $5,000 as a loan.

A motion was made that the court direct a verdict for defendants on the ground that do loan was established. This motion was denied and an exception taken. The motion for a new trial, made after the verdict upon the judge’s minutes, was based upon the exceptions taken during the trial as. well as upon the ground that the verdict was against the weight of evidence. "We are of the opinion that the learned judge should have directed a verdict upon the evi deuce for the defendants, for notwithstanding the entry in the books, the documentary and oral evidence showed beyond a doubt that there wras in point of fact no such loan of money as is in the contemplation of the statute.

In this view of the case the judgment and order should be. reversed, and a new trial granted, costs to abide event.

Brady, J., concurred.

Present —• Davis, P. J., and Brady, J.

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


text:
    CHARLES STORRS and AUGUSTUS STORRS, Respondents, v. JAMES N. PLUMB, Appellant, Impleaded with ANDREW M. FANNING, Survivors, etc.

      Bankruptcy — the right of a creditor to sue the banlerupt revives immediately after-a judgment denying his application for a discharge — it is not suspended, by an. appeal by the bankrupt from the judgment denying his application.

    The right of a creditor of a bankrupt to maintain an action against him revives-immediately upon the rendition of a judgment by a United States District Court, denying the bankrupt’s application for a discharge, and the right to bring and maintain such action is not suspended by the fact that the bankrupt-has filed a petition to review the said judgment in the United States Circuit. . Court, and that the proceedings for such review are still pending.

      Musgrave.v. Sherwood (76 N. Y., 194), distinguished.
    ApIeal from a judgment in favor of the plaintiffs, entered by direction of the court upon a trial at circuit.

      J. H. Hayward, for the appellant.

      G. A. Seixas, for the respondents.
   Davis, P. J.:

All the questions presented on this appeal are disposed of by the-decision of this court in Rosenthal v. Plumb (25 Hun, 336), except one.

The question undisposed of related to the effect of a petition of review brought by the bankrupt to the United States Circuit Court, after the judgment of the District Court had been rendered refusing such bankrupt a discharge. This action was brought to recover an indebtedness of the appellant to the respondent. ,

The appellant pleaded as a defense the statute of limitations. In avoidance of this plea it was shown upon the trial that proceedings in bankruptcy against the appellant had been pending for a considerable period, during which the respondent’s right of action was, by operation of the bankruptcy act of. the United States, suspended until the decision of the District Court of the United States by which a discharge of the appellant in bankruptcy was refused. To this it was shown as an answer that after the judgment of the District Court, and in due time, the appellant filed his petition of review in the United States Circuit Court, and that the proceeding for such review was still pending; and he claimed, therefore, that the right to bring and maintain the action was thereby still suspended until the decision of the United States Circuit Court affirmed or reversed the judgment of the District Court. The power to grant or refuse a discharge in bankruptcy is, or rather was, by the bankruptcy act wholly vested in the District Court, and on filing a petition of review after judgment by that court the Circuit Court upon the hearing of such petition, certified simply to the District Court the result. If the result was an affirmance, that was the end of the proceeding. If it was a reversal, the District Court was then to proceed and determine the case according to the certified directions of the Circuit Court. (See U. S. Circuit Court Rules, p. 77; Clark v. Bininger, 3 B. R., 121, 122.) Notwithstanding this right of review by the appellate court, the judgment of the District Court was in every sense of the term a final one. The District Court had complete and full jurisdiction of the subject-matter, and of the person of the bankrupt, and power to render a final and conclusive judgment. That judgment continues to be ’final until in some mode of review known to the law it has been reversed; and an appeal from such a judgment does not affect the validity or effect of the judgment pending the appeal. (Fisher v. Hepburn, 48 N. Y., 41; Sixth Ave. R. R. v. Gilbert Elevated R. R. Co., 71 id., 430.) And unless its operation be stayed by some provision of statute or some order of the court its final and operative character continues at all times pending the review. The right of the respondents therefore to bring their action against the appellant revived immediately upon the rendition of the judgment of the District Court denying the discharge, and the statute which suspends such right of action, until the discharge is granted or denied, has reference to the judgment granting or refusing the same made, or to b.e made, by the District .Court. We are not cited to any provision of law or rules of the court which operate to extend the suspension of the right of action beyond the final judgment denying the discharge. We think therefore the learned judge at circuit-was correct in his ruling, and in directing a verdict for the respondent.

We are cited to the manuscript opinion of Lawrence, J., in Rosenthal v. Plumb, in which he held differently upon this question upon the authority of Musgrave v. Sherwood (76 N. Y., 194). But Musgrave v. Sherwood was determined upon the peculiarity of the proceeding sought to be had. Preliminary injunctions had been issued in the action. Upon the trial of the action at Special Term judgment was rendered dismissing the plaintiff’s complaint. The plaintiff served notice of appeal and duly executed, filed and served the proper undertaking required to perfect the appeal. While such appeal was pending the defendant moved for a reference to ascertain damages under the undertakings given by plaintiff on obtaining the injunctions. These undertakings provided for the payment to the defendant of such damages as he might sustain by reason of the injunctions if the court should finally decide that the plaintiff was not entitled thereto. This court and the Court of Appeals decided that such a reference should not be ordered pending an appeal of that character where all proceedings had been stayed by reason of the appeal and the lawful undertaking given thereon. The decision is not that the judgment appealed was not to be deemed a final one until the decision of the’ appellate court, but goes rather upon the inconvenience of allowing, while such an appeal was pending, an interlocutory proceeding likely to subject the parties to great expense and trouble which might be wholly unavailing if the judgment should be reversed. It may be added that the judgment in that case was reversed and a new trial ordered, which would, as a matter of course, have rendered all proceedings upon such a reference wholly nugatory.

The analogy between that case and the present is not so striking in its character as to lead us to regard the decision as controlling of the question involved here. There may, of course, be some embarrassment if the United States Circuit Court should reverse on review the judgment of the District Court in refusing the discharge. But. in that event the appellant would undoubtedly be at liberty to make his application to the’ court to stay proceedings in the action or upon the judgment, if one be recovered, until the decision of the District Court upon a rehearing;

■ But we do not think .that the appeal operated ger se to prevent the effect of the final judgment of the United States District Court; and upon.that point, as already stated, we think the order of the court was right.

The judgment should be affirmed.

Brady, J., concurred.

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

Judgment affirmed.


author: Beady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. ROBERT A. GUNN and Others, Appellants.

      Medical colleges — cannot be incorporated under chapter 319 of 1848 — chapter 367 of 1882 did not apply to colleges theretofore formed under the act of 1848.
    A medical college cannot be incorporated and organized under chapter 319 of 1848, and the acts amendatory thereof, providing for the formation of benevolent, charitable, scientific and missionary societies.

      People v. Ootltran (27 Hun, 344) followed.
    Chapter 367 of 1882, entitled “An act to restrict the formation of corporations under chapter 319 of 1848, * * * and to legalize the incorporation of certain societies organized thereunder, and to regulate the same, ” provided, in its second section, that ” all scientific and all literary colleges and universities organized under said acts which shall have reported to the said regents within the two years last past are hereby declared legally incorporated, and all degrees heretofore and hereafter conferred by them are declared valid.”
    Held, that the act related to scientific and literary colleges and universities, eo nomine, as distinguished from medical colleges, and that it was not intended to thereby legalize and declare duly incorporated medical colleges which had unlawfully attempted to organize under the said act of 1848, and which had made the said reports to the regents within the time mentioned in the act-.

      Appeal from an order sustaining a demurrer, interposed by the plaintiff to the second defense in the defendant’s answer, and from • a judgment in favor of the plaintiff, entered thereon.
    F. J. Fithicm, for the appellant.

      Edward G. Ripley, for the respondent.
   Beady, J.:

The action is in the nature of a quo warrmito, and brought pursuant to subdivision 3 of section 1948 of the Code of Civil Procedure. The charge is that the defendants are illegally acting as a corporation, under the name and style of “The United States Medical Gollege,” without authority, and are exercising privileges and franchises not granted to them by law.

■ It appears that in May, 1878, the defendants attempted, to incorporate themselves as a medical college under the name and style of “The United States Medical College,” and to that end filed a certificate of incorporation, approved by a justice of this court, in the county clerk’s office, under the act of 1848, for the formation of charitable, literary, scientific and benevolent societies (Laws of 1848, chap.- 319), and the acts amending the same, and in pursuance thereof established a so-called medical'college in the city of New York, and taught, or professed to teach, the science of medicine and to graduate matriculants with the degree of doctor of medicine, and to grant them diplomas conferring such degree.

The defendants set up their incorporation under the act of 1848, and alleged that for more than two years before the passage of the act of the legislature on the 29th of June, 1882, they duly reported to the Begents of the University of the State of New York as a medical college and literary and scientific institution, and claimed that by virtue of the provisions of acts of the legislature in the complaint stated, and in the act of 1882 (chap. 367), they were duly incorporated and authorized to perform all and singular the corporate acts in the complaint complained of.

In the case of The People v. George W. Cothran and others (27 Hun, 344), it was held that the act of 1848, already mentioned, did not provide for or authorize the incorporation of medical colleges to give instruction in. the art of medicine and surgery, for a compensation to be received, by them, and to issue and grant diplomas to graduates. This decision of a General Term sustained the judgment of Judge Barker, who delivered an exhaustive opinion on the subject, which is to be found in the Buffalo Medical and Surgical Journal for September, 1881. The learned justice at the Special Term in this case also delivered an elaborate opinion, in which he declared that it had already been determined that, under the act of 1848 and the amendments thereto, a medical college could not be oi’ganized, and that that judgment disposed of the demurrer adversely to the defendants herein, unless, as claimed by the learned counsel, their corporate existence was recognized and legalized by the act of 1882. (See Laws of that year, chap. 367.) The learned justice then proceeded to consider the effect of the act of 1882, and determined that the incorporation was not legalized by it. In this view we concur.

When the act of 1882 was passed it had already been declared the law of the State, by the decision to which reference has been made, that there could be no incorporation of a medical college under the act of 1848 and its amendments. The act of 1882 was entitled, “An act to restrict the formation of corporations * * * and to legalize the incorporation of certain societies organized thereunder, and to regulate the same.” The word employed by the legislature, it will be noticed, is “ societies,” and section 2 which affects the latter element is as follows:

“All scientific and all literary colleges and universities, organized under said acts, which shall have reported to said regents within the two years last past, are hereby declared legally incorporated, and all degrees heretofore, and hereafter conferred by them are declared valid and all such colleges and universities shall be subject * * * to the same control and visitation of said regents as colleges and universities chartered by said regents.”

This is a declaration on the part of the legislature not that a medical college organized under the act of 1848 and its amendments shall be declared legally incorporated, but that all scientific and literary colleges organized under such acts shall be declared legally incorporated, and this means, of course, those embraced within the provisions of, and legally organized under, the acts. The legislature certainly did not intend, as the language employed clearly indicates, to declare a college to be legally incorporated under tbe provisions of tbe act of 1848, which a court of competent jurisdiction had declared to have been unlawfully organized. It related to all scientific and literary colleges and universities eo nomine and as contra-distinguished from medical colleges. If the design of the legislature had been to include medical colleges, language indicating that purpose would have been employed, and the absence of such phraseology is a conclusive argument that it was not intended, more particularly when the legislature must be presumed.to liave been advised of and therefore to know that a medical college organized under the act of 1848 was unauthorized by its provisions or the provisions of any of its amendments.

For these reasons, without entering into any more elaborate discussion and notwithstanding the very able and exhaustive brief on the part of the appellants, it is considered to be the duty of this court to affirm the judgment appealed from.

The courts of this State ■ cannot be too scrupulous in examining the asserted right of any college to graduate matriculants with the degree of doctor of medicine, and to grant them diplomas conferring such degree. The high and responsible duties of a doctor of medicine, relating as they do to suffering humanity and life itself, and requiring for their proper discharge a high order of culture, experience and capacity, there should not be the slightest doubt about the .due and legal incorporation of every college or society assuming the power to confer upon him the necessary degree and thus enable him to practice as a physician and surgeon.

Judgment affirmed, with costs.

Navis, P. J., and Daniels, J., concurred.

So ordered.


author: Daniels, J.:

text:
    LUCIUS B. WARNER, as Assignee, etc., Appellant, v. EDWARD S. JAFFRAY and Others, Respondents.

      General assignment — tile of the assignee to personal property of the assignoi' situated in another State — rights of attaching creditors thereto.

    March 1, 1881, one Weld, at Jamestown, in Chautauqua county in the State of New York} executed and delivered to the plaintiff a general assignment for .the benefit of creditors, which was recorded in the office of the clerk of that'county at eight a. M. on March second. It was recorded in the office of the recorder of deeds of Crawford county, Pennsylvania, on the eighteenth, and in the office of the recorder of deeds of Warren county, Pennsylvania, on the nineteenth of that month. On March 1, 1881, after the delivery, hut before the recording of the assignment, the defendants, residents of this State, obtained attachments in actions commenced by them in the Courts of Common Pleas of Crawford and Warren counties, Pennsylvania, and under such attachments seized the .goods and merchandise which the assignor had in those counties where he had maintained stores for carrying on a mercantile business.
    A statute of Pennsylvania provides that whenever an assignment for the benefit of creditors shall be made by any person residing out of.tlie State “such assignment may be recorded iu any county Where such estate, real and personal, may be, and take effect from its date, provided that no dona fide purchaser, mortgagee or creditor having a lien thereon before the recording in the same county, and not having had previous actual notice thereof, shall be affected or prejudiced.”

      Held, that the defendants acquired a valid lien upon the goods seized under the •attachments, and could not be enjoined from proceeding under them in an action brought against them in this State by the assignee,
    Appeal from a judgment in favor of the defendants, entered on the report of a referee.

      A. J. Vtmderpoel, for the appellant.

      William Allen Butler, for the respondents.
   Daniels, J.:

The plaintiff brought this action as assignee^ under • a general assignment made to him by De Forest Weld for tbe benefit of his creditors, for the'purpose of enjoining and restraining the defendants from proceeding under attachments issued in actions commenced in the Courts of Common Pleas for the counties of Crawford and Warren, in the State of Pennsylvania, for the recovery of about $60,000.

The assignment to the plaintiff was executed by the debtor on the 1st of March, 1881, at Jamestown-in Chautauqua county and State of New York, and it was recorded in the office of the clerk of that county at eight o’clock in the morning on. the 2d of March, 1881. But it was not recorded in the office of the recorder of deeds of Crawford county, Pennsylvania, until the eighteenth of the same month, nor in the office of the recorder of deeds of Warren county until the nineteenth of that month. On the 1st day of March, 1881, after the assignment had in fact been delivered, but before it was recorded even in Chautauqua county, the defendants obtained attachments in the actions commenced by them in the Courts of Common Pleas of Crawford and Warren counties in the State of Pennsylvania, and under such attachments attached and seized the goods and merchandise which the debtor had in these counties where he hadpnaintained stores for carrying on the mercantile business. The defendants were residents and citizens of the State of New York, and because of that fact it was insisted by the plaintiff that their, right to proceed against the debtor’s property had been divested by the assignment before their seizure of the property under the attachments. This position was taken mainly under the authority of Van Buskirk v. Warren (2 Keyes, 119), which in the principle decided by it, was similar to the cases of Bigelow v. Baldwin (1 Gray, 245); Rhode Island Bank v. Danforth (14 id., 123) and Thurston v. Rosenfield (42 Mo., 474). The latter case is identical-in principle with that of Van Buskirk v. Warren, for they concur in holding that a citizen and resident of the State in which the assignment may have been made and delivered cannot afterwards, by means of an attachment, obtain priority over the title of the assignee under a general assignment even where it may be in contravention of the laws of the State in which the attachment is issued, if as a matter of fact it conformed to and 'was legal under the laws of the State in which it was executed by the debtor and in which'the creditor himself also resided. But the case of Yan Buskirk was, after its decision by the Court of Appeals, removed to the Supreme Court of the United States, and it was there reversed, for the reason that the principle upon which it had proceeded was deemed to be unsound.. (Green v. Van Buskirk, 7 Wall., 139.)

And that case has been since considered to be a proper exposition of tbe law, both by the Court of Appeals of this State, and the Supreme Court of the United States. (Edgerly v. Bush, 81 N. Y., 199.)

In the decision of this case it was conceded that “Another State may make provision by statute in respect to personal property actually within its jurisdiction. Though a transfer of personal property, valid by the law of the domicile, is’valid everywhere as a general principle, there is to be excepted that territory in which it is situated and where a different law has been set up, when it is necessary for the purpose of justice that the actual situs of the thing be examined.” (Id., 203, 204.) And Hervey v. Rhode Island Locomotive Works (93 U. S., 664, 671, 672) followed in the line of the same principle.

The property seized under the attachment was tangible in its nature, and capable therefore, as a matter of fact, of having a local situs different and distinct from that of the residence of its owner. In this respect it was within the reasoning and conclusion of People v. Gardner (51 Barb., 352), which held that personal property in fact located in another State was not taxable as against the owner, although he resided within this State. And this was followed in People ex rel. Jefferson v. Smith (24 Hun, 492), where the same rules were again invoked by the same relator, and the latter determination has since been affirmed, though not reported, by the. Court of Appeals.

Under the controlling principle of these authorities, it was within the power of the legislature of the State of Pennsylvania to declare and control the effect of such an assignment executed within this-State, so far as it included this description of property situated in the State of Pennsylvania, and this authority had been exercised by the legislature before the execution and delivery of this assignment. The statute upon that subject is in the following terms:

“ Section 1. Whenever any person making an assignment of his or her estate, situated in this commonwealth, for the benefit of creditors, shall be resident out of this State, such assignment may be recorded in any county where such estate, real and personal, may be, and take effect from its date, provided that no bona fidepurchaser, mortgagee or creditor, having a lien thereon before the-recording in the same county, and,, not having had previous actual notice thereof, shall be affected or prejudiced.”

It was the expressed object of this act to define and declare the effect of an assignment made in another State upon property actually located and situated in the State of Pennsylvania. And it was not allowed to take effect against a tona fide purchaser, mortgagee ,or creditor, having a lien upon such property before it was recorded in the same county, unless the party claiming in hostility to it had actual previous notice of it. No exception was made excluding creditors residing in other States from .the benefit of the provisions of this statute, and no reason therefore can be deduced from its terms for subjecting it to any exception of that description. It was, on the contrary, the evident purpose and design of the legislature to make the provision entirely general and comprehensive, including all proceedings which might' be authorized to be taken under the authority of the courts', of the State,' for the purpose of acquiring a lien upon the property and appropriating it to the payment of the debts of the assignor.

■ That the defendants were tona fide creditors of the assignor having no actual notice, at the tim.e they acquired their lien under the attachments, of the assignment, are facts which have been established upon the trial of this action. And it is not claimed that the evidence sustaining them -was not sufficient to justify the conclusion which was drawn from it by the learned referee before whom the trial was had. Theip proceedings therefore must be regarded as having been instituted and carried on in good faith for the purpose of enforcing tthe obligations which the assignor had incurred to them by the preceding sale and delivery of goods and merchandise to him. As such creditors they had .the right to proceed as they did against their debtor’s property in the courts of the State of Pennsylvania.

And if an application had been made there to set the attachments aside, it is clear that the application would not have been sustained. For in Philson v. Barnes (50 Penn., 230) it was held that process by way of an attachment would be sustained in favor of a non-' resident creditor against the title of an assignee who had not complied with the requirements of the statute of that State so as to render the assignment legal and regular. And a similar legal principle was maintained in this State in Hibernia National Bank v. Lacombe (84 N. Y., 367), where it was held in general terms that when a party is once properly in court, and accepted as a suitor, neither the law nor court administering the law will admit any distinction between the citizen of its own State and that of another. Before the law and in its tribunals there can be no preference of one over the other.” (Id., 385.)

And this principle has been still more recently considered and applied by the General Term of this department in the unreported cases of Plimpton v. Bigelow and Claflin v. Frenkel. And under it the courts do not seem to possess the power of depriving citizen creditors of this State of the remedy by attachment, prescribed for the collection of debts by another State in terms so broad as to be property held applicable to all parties formally applying for the aid and assistance of the courts possessing the authority which appears to have been invested in the courts in which these attachments were issued. As the laws of -Pennsylvania have been construed, the defendants had-the right to institute and carry on these proceedings in the courts of that State. They were entirely legal and proper, and it would seem therefore to follow from the Constitution and laws of the United States that they must also be so regarded and sustained in the courts of this as well as all other States. Por these were judicial proceedings which, in their orderly prosecution, may result in judgments under which the debtor’s property will be appropriated to the payment of the defendants debts. And as such they are within the provision declaring that, “ full faith and credit’ shall be given in each State to the public acts, records and judicial proceedings of every other State.” (U. S. Const., art. 4, § 1.)

And congress, in subordination to this constitutional declaration, has prescribed the manner in which the records and judicial proceedings of the courts of the States shall be attested and authenticated, and it has to that end been provided that, the said records and judicial proceedings so authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken.” (U. S. E. S.,170,, § 905.)

The manifest object and purpose of these constitutional and legislative provisions was to secure to judicial proceedings the same force and effect in other States that they have in the State where they may be pending and carried on. And 'such was the view taken of the effect of these provisions in Green v. Van Buskirk (supra), for it was there considered that the citizen of another State had the same ■right to have his judicial proceedings sustained as did a citizen of the State in which the proceedings were pending. Upon this subject it was said, in the course of the opinion, that the right, under the Constitution of the United States and the law of congress, which Green invoked to his aid, is not at all affected by the question of citizenship. We cannot see why if Illinois, in the spirit of enlightened legislation, concedes to the, citizens of other States equal privileges with her own in her foreign attachment laws that the judgment against the personal estate, located in her limits, of a non- ■ resident debtor, which a citizen of New York lawfully obtained there, should have a different effect given to it under the provisions of the Constitution and the law', of /congress, because the debtor against whose property it was recovered happened also' to be a citizen of New York.” (7 Wall., 151.)’ This construction is clearly sustained by the Constitution and - the act of congress, and no good reason stands in the way of applying it in support of the proceedings taken by the defendants, and by which, through their diligence, they have acquired a superior right, to' so much of the debtor’s' property as was seized by them, over the assignment to the plaintiff, which at the time of such seizure was not valid against them under, or supported by the laws of the State of Pennsylvania. The- effect of this construction will be to secure to the judicial proceedings of one State in all the others the same uniform validity and authority which they may have acquired under the laws of the State in which they are. pending. And that it is a wholesome and convenient general principle cannot be denied, and for that reason it has been carefully entrenched in the provisions of the Federal Constitution. And it carries out the policy of another provision declaring that,

“ the citizen of each State shall be entitled to all privileges and immunities of citizens in the several States.” (U. S. Const., art. 4, § 2.)

It is not necessary that the point should be considered whether the assignment upon its delivery,-and before it was recorded, operated as a transfer of the title of the debtor’s property. For whether it did or not under the circumstances of this case, as they are affected by the' laws of the 'State of Pennsylvania, the defendants made a lawful seizure of their debtor’s property under their attachments. For these reasons, as well as those assigned by the learned referee, the judgment in the case was right, and should be affirmed, with costs.

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

Judgment affirmed, with costs.


author:
Brady, J.:
      Daniels, J.:

text:
    MARY E. C. THEBAUD, Appellant, v. JULIA M. SCHEMERHORN and Others, Respondents.

      Trust for the benefit of a married woman — right to have the property conveyed to her— 1849, chap. 375, sec. 2 — to what cases it is a/ppUcahle.

    On October 27, 1857, the plaintiff, being seized as tenant in common with her sister of certain real estate, and being about to marry one Clark, made a marriage settlement whereby she conveyed to two trustees all her estate, both real and personal, in trust, to apply the rents and income thereof to her use during her natural life, and upon her decease to convey, assign and deliver the same in such way and manner as she should by her last will and testament appoint; and in default of such appointment, and in case her husband was then dead, then to convey, assign and deliver the same to such person or persons, and in the same manner, shares and proportions as the said estate would have descended if said conveyance had'not been made.
    The instrument recited that it was intended to place all the property of the plaintiff in trust for her sole and separate use and benefit, free from all debts of her husband, and of any future husband, and of and from his management and control. Clark married the plaintiff and died in 1862. In 1865 the plaintiff married one Thebaud, who is still living. She has two children, one by the first marriage of full age, one by the second a minor.
    In March, 1872, she applied, under chapter 375 of 1849, to a justice of the Supreme Court and procured from him a certificate stating that she had sufficient capacity to manage and control her property, and authorizing the surviving trustee to convey it to her for her sole and separate use and benefit. Thereafter and in 1872 the surviving trustee duly conveyed to her, her heirs and assigns, all the said trust estate.

      Meld, that the case was within the provisions of the second section of the said act authorizing a'Conveyance to be made in such a case, and that by the conveyance from the trustee she acquired a valid title in fee to the said lands.

      McWhort&t' v. Agnew (6 Paige, 111) followed; Douglass v. Gruger (80 N. Y., 15), distinguished.

      Appeal by the plaintiff from a judgment of the Special Term, dismissing the complaint.
    The action was brought for a partition of real estate situate in the city of Ntw York. The plaintiff, wife of Paul L. Thebaud, and the defendant, Julia EL, wife of George S. Schermerhorn, are sisters, the only lawful issue and. heirs-at-law of "William N. Gilbert, late of the said city, deceased, and of Elizabeth Caroline Schermerhorn, his wife, deceased.
    William N. Gilbert died on or about the 7th day of July, 1850, seized in fee and possessed of two Of the parcels of land described in the complaint (among others], having previously duly executed his last will and testament, whereby he devised all his real estate.to his said two children in fee, equally to be divided between them, share and share alike. The mother of the plaintiff died in August, 1849, intestate, seized in fee and possessed of the remaining two parcels of land described in the complaint.
    The plaintiff being thus constituted the owner in fee of an undivided half part of the premises in question as tenant in common with her sister, and in view of an intended marriage with Charles Henry Clarke, since deceased, made a marriage settlement, dated the 27th day of October, 1857, between herself of the first part, James T. Gilbert and John C. Corp, trustees, of the second part, and Charles Henry Clark of the third part, whereby she conveyed to the parties of the second part all her estate, real and personal, upon trust, among other things, to apply the rents and income thereof to the use of the party of the first part during her natural life, and upon her decease, to convey, assign, transfer and deliver said trust estate, real and personal, in such way and manner as the said party of the first part, by her last will and testament, or appointment or instrument in writing in the nature ©f a last will and testament, should devise, bequeath or appoint, and in case the party of the first part should neglect or omit to make and execute such last will or appointment, then to convey, assign, transfer and deliver said trust estate, real and personal, to such person or persons, and in the same manner, shares and proportions as the said estate would have descended if said conveyance had not been made; provided, that if her husband was then living he should have one-half of the income of the trust estate during his life.

      The said Charles Henry Clark died on the 20th of March, 1862. On the 5th day of June, 1865, the plaintiff intermarried with Paul 1. Thebaud. James T. Gilbert, one of the trustees, having died in March, 18,68, John C. Corp, the surviving trustee, continued in possession of the trust estate till March 29,1872. On the 8th day -of March, 1872, the plaintiff made an application, under the provisions of the act of 1819 (chap. 375, p. 528), to Hon. D. P. Ingraham, a justice of the Supreme Court, for his certificate of the facts required by said act for the purpose of obtaining, the surrender of the trust estate and the resignation of said trustee. The second section of that act provides as follows:

      “ Section 2. Any person who may hold, or who may hereafter hold, as trustee for any married woman, any real or personal estate or other property under any deed of conveyance or otherwise, on the written request of such married woman, accompanied by a certificate of a justice of the Supreme Court, that he has examined the condition and situation of the property, and made due inquiry into the capacity of such married woman to manage and control the same, may convey to such married woman, by deed or otherwise, all or any portion of such property, or the rents, issues or profits thereof, for her sole and separate use and benefit.”
    The said justice having duly made such examination and inquiry, made his certificate in due form in the words following :
    NEW YORK SUPREME COURT.
    IN THE MATTER OF The Petition of MARY ELIZABETH . CAROLINE THEBAUD, Formerly GILBERT, to Assume Control of Her Property, now held by a Trustee.
    I, Daniel P. Ingraham, a justice of the Supreme Court of the State of New York, do hereby certify that I have examined the condition and situation of the property set forth in the petition of Mary Elizabeth Caroline Thebaud, formerly Mary Elizabeth Caroline' Gilbert, and have made due inquiry into the capacity of said petitioner to manage and control her property, and find that she has sufficient capacity to manage and control her said property, and that John C.

      Corp, the surviving trustee named in the deed of trust annexed to and forming part of said petition, nlay convey to said petitioner the property now held by him as trustee under said conveyance, for her sole and separate use and benefit.
    D. P. ING-RAHAM,

      March 8, 1872. P. J.

    Whereupon, by request of the plaintiff, by deed dated 29th of March, 1872, the surviving trustee duly conveyed to the plaintiff, her heirs and assigns, all the said trust estate, including ■ the undivided half of the lands and premises described in the complaint, together with other property.
    The plaintiff and the defendant Mrs. Sehemerhorn have, ever since the said surrender of the trust estate, been in possession of 'the said premises, and in the receipt of the rents and profits thereof.
    It was admitted that the plaintiff has two children living, one the issue of her first marriage, who is of full age, and the other the issue of the second marriage, who is a minor.
    The plaintiff and her sister have sold and conveyed all the rest of the lands not described in the complaint.
    These facts appeared by the uncontroverted allegations of the complaint, and by stipulations read on the trial.

      T. James Glover, for the appellant.

      Edwin M. Felt, for the respondent.
   Brady, J.:

The learned justice in the court below regarded the. important question herein as one arising from the passage of the enabling statutes of 1848 and 1849 in reference to married women, and' determined that the provisions of the act of 1849, under which Judge Ingraham acted, did not embrace a trust created by a beneficiary, and had no application therefore to a trust of the character of that to be considered herein, although created by, such beneficiary after the passage of such enabling acts.

He said on the subject: The legislation of 1848 freed her from her peculiar disabilities, and if,'in, face of this • wholesome provision in her favor, a married woman deliberately creates a valid trust upon her property, it must be regarded as the act of any other person and she must abide its consequences.”

He also determined that the trust was still in existence and that a contingent remainder depended upon it which would vest upon !the death of the cestui que trust, if she failed to limit the right of I succession.

And he further held that the trustees had no legal power to extinguish the trust, and therefore the reconveyance which was made under the order of Judge Ingraham, if effectual for -any purpose, was impressed with the trust.

And he further held that the plaintiff had no status in an action for partition; that she was neither a joint tenant nor tenant in common having an estate of inheritance or for life or for years in the premises in question.

The learned justice referred to the case of McWhorter v. Agnew (6 Paige, 111) which he said involved a similar trust which was correct. It appeared in that case that the huéband and oné of the trustees died, leaving the plaintiff and a new trustee surviving. They united in a petition to the chancellor for leave to the surviving trustee to account with the plaintiff in regard to the trust, and for permission to convey to her the trust property and praying that he might thereupon be discharged from the trust. An order to that effect was accordingly entered, and the trust property was conveyed to the complainant. The defendant who had made a contract for the purchase of the property, was advised that the real estate forming the corpus of the trust was inalienable during the life of the complainant and only alienable at her death by will. But he agreed to perform his contract of purchase, if the court would declare that the complainant had a good and valid title. The complainant, it appeared in that case, was the possessor in fee of the real estate which formed the subject of the trust, and it also appeared that the trust deed'was executed in 1818. The deed had characteristics very similar to those which mark the trust deed executed by the plaintiff. The court said that upon the death of her husband and the reconveyance to the complainant of the legal estate, her right to dispose of an absolute interest in the property in fee resulted from her absolute ownership. In other words the exercise of the right was no longer dependent upon the mere power reserved to her in the deed of settlement.

And the court further said: “ The object of the deed of settlement was not to deprive the complainant of the control of her property in case of the death of her husband during her life, but merely to preserve the same for her use and to enable her to dispose of it by will, if she should die during her coverture.;” and further that the whole object of the trust was therefore at an end by the death of her husband; and the object of the trust having ceased to exist, she was entitled in equity to a reconveyance of the legal estate from the trustee. And upon such conveyance the power to appoint the inheritance by will was merged in the legal estate, both at law and in equity.

This case, it is thought, is an authority for sustaining the plaintiffs action, for the reason that the object of the settlement was precisely the same as in the case just cited, and’ the conveyance to her of the trust estate by the trustee, under *and by virtue of the authority conferred upon him for that purpose by Judge Ingraham, in accordance with the act of 1849, re-established the fee in her and her original and absolute ownership. The difference between these two cases in favor of the plaintiff arises from the fact that the deed of settlement signed by her was executed in 1857, and therefore subsequent to the act of 1849, which secured to her by its provisions the possession of her property, absolutely and free from any control of her husband over it, and from any liability for his debts. The only control to be apprehended, with such a statute existing, was that which would result from the influence of the husband over his wife, and by which she might be induced to give him full power and authority to make such disposition of the property as he might think best.

The learned judge also referred to the case of Douglas v. Cruger (80 N. Y., 15), and by which he says: The Court of Appeals refused to sanction the extinguishment of a trust somewhat analogous to the one under consideration. In that case the beneficiary was a ward in Chancery, and upon her petition to the chancellor by her next friend, the marriage and settlement were approved, and the conveyance to the trustee was directed to be executed upon the solemnization of the marriage. This was in 1837. Subsequently in November, 1848, and on the certificate and order of a justice of the Supreme Court, the trustee executed a deed purporting to convey to the beneficiary, who was the defendant in that case, in fee simple absolute, all the right, title and interest in the land which had been conveyed to him upon trust. Thereafter and in 1857, she and her husband executed a mortgage, which was sought to be foreclosed in. that action. There were children living who were the issue of the marriage. On behalf of the plaintiff, it was claimed that the trust was extinguished. The court said that the trust was not extinguished, and that upon the death of the trustee in 1868, it vested, by virtue of the statute, in the Supreme Court. And the court, in the course of the opinion delivered, said: “The Supreme Court has not the power to destroy a valid trust. The purpose of the statute was to make these trust estates and trust interests indestructible and absolutely inalienable during the existence of the trust.”

And it was further said : “ It is claimed, however, that the court had authority to sanction this conveyance under the act for the more effectual protection of the property of married women, passed in 1848,” which it was said contained nothing conferring such authority. • The court further said: “ In the act on the same subject, passed in. 1849 (chap. 375, Laws of that year) there was a provision conferring such authority upon a justice of the Supreme Court, but,” the court said,. “ the.conveyance by the trustee in this case was prior to the passage of the last named act, and that act cannot, therefore, be invoked to uphold it.” This case is certainly an authority for the proposition that the statute of 1849 does confer authority upon the Supreme- Court to direct the conveyance by a trustee to the cestui que trust. The Court of Appeals, so far as anything is said on the subject, clearly indicates that the act of 1849 confers such authority, but hold that it was not applicable in that case for the reason that the trust deed was executed prior to its passage. The effect of the act of 1849 (supra), and the proceeding under it resulting in the order made by Justice-Ingraham, and the conveyance by the trustee to the plaintiff under and by virtue of the order which he made in the premises, all of which was done by competent power and jurisdiction conferred upon the Supreme Court for that purpose, establishes, it would seem beyond question, the right of the plaintiff to maintain the action for partition, as a joint owner in fee of the pieces of land described in tbe complaint wbicb had been tbe subject of a trust deed, but wbicb was relieved from its covenants, and tbe fee of tbe real estate covered by it reinvested in ber.

It may be. said that the case of Douglas v. Cruger is in conflict with the case of McWhorter v. Agnew, but it is not; the facts are different. As we have seen in tbe case of McWhorter v. Agnew, tbe husband died prior to tbe wife, and in tbe case of Douglas v. Cruger be was living at tbe time of tbe transfer to ber by virtue of tbe order of the court, and seems from tbe case to have been one of tbe defendants in that action. Tbe distinction between tbe two cases indeed is quite apparent from this statement of tbe court, viz.: “ It was-suggested upon tbe argument that this trust to Mrs. Oruger is void because not for ber life. It is a trust for tbe joint lives of herself and ber husband. If she dies first it terminates with ber death. If be dies first it terminates with his death.” Tbe husband of tbe plaintiff in this action having died, rhe trust terminated with bis death ; and hence tbe distinction between this case and that of Douglas v. Cruger, and its harmony with tbe case of McWhorter v. Agnew. In one case tbe trust bad ceased by tbe death of the husband, and in tbe other it bad not.

It may be said„further that there was nothing in tbe trust deed itself wbicb prevented tbe proceedings referred to. Indeéd tbe reliance of tbe respondents in this case is upop a preamble, wbicb is as follows:

And whereas, .it is the object, true intent and meaning of these presents, to place and vest all tbe said real estate and property of tbe said Mary Elizabeth Caroline Gilbert in trust for ber sole and separate use and benefit, notwithstanding ber coverture, so as at all times hereafter, during tbe lifetime of said Mary Elizabeth Caroline Gilbert, to be free and exempt from tbe present and future debts, liabilities and responsibilities of tbe said party of tbe third part, or of any other future husband, and of and from bis management and control, and to be secured to tbe uses and trusts hereinafter mentioned,” in connection with tbe provisions of tbe third clause in tbe deed.

An examination of tbe deed itself will show that tbe trusts were therein distinctly stated, and that they relate exclusively to tbe ■parties named in it, i. e., the plaintiff, the trustees and her intended husband, and that the trusts do not embrace, as supposed, any right or interest of any future husband, whatever may have been the intention or object which prompted the execution .of the instrument. The provisions in it securing to the intended husband independent individual interests in the estate, depended upon her death prior to his; and if he died before her, as said in the case of McWhorter v. Agnew and in Douglas v. Gruger (supra), the whole object of the trust was at an end. There is nothing in the third clause in any way in conflict with this view, which, as will be seen, merely provides that upon the plaintiff’s neglect or omission to make and execute a last will and testament, or appointment, or instrument in the nature of a last will and testament, or if she shall make or execute the same imperfectly and insufficiently, then, at and upon her decease the trust estate then remaining in the hands of the trustees, or the survivor of them,/ shall be conveyed, assigned, transferred, made over, paid and delivered to such person or persons, and in the same manner, shares and proportions as the said estate would have descended and' passed if the deed had not been made; that is to say, should descend to her heii^.

As very properly observed by the counsel for the appellant, there is no trust estate for anybody after the life estate,, in case of’ the, death of the contemplated husband prior to that of the plaintiff. It is a direction to transfer and deliver, and to transfer and deliver according to the law of descent, which is nothing more than a declaration of what would necessarily happen if the plaintiff continued to be the owner of the property and, dying intestate, left' persons capable of taking it by descent.

Having arrived at the conclusion that under the act of 1849 and the order made in pursuance of it, the estate of the plaintiff, 'which was the subject of the trust deed, was reinvested in her in fee simple, it is unnecessary to consider any other question in the ease, if there be any, remaining undisposed of pertinent to this controversy.

For these reasons it is thought the judgment should be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., concurred.

Daniels, J.:

The language in which section 2 of chapter 375 of the Laws of 1849 was framed is so broad that it may reasonably be construed as including the deed made by the plaintiff to her trustees. For it was applied to cases in which real or personal estate or property should be held in trust “under any deed of conveyance,” which would clearly include a deed made by the person afterwards intended to be benefited by the trust. No phraseology could well be broader or more comprehensively selected. It is without exception. And as none can be implied from any other portion of the act, it should be construed as including the deed executed by the plaintiff, by which her interest in the estate was conveyed to the trustees.

The fact that she' reserved to herself a general power of appointment of the fee of the estate, did not render the statute inapplicable to this trust, for the power was not restrained in its exercise to any specified person or class of persons. It was of the most general and unqualified description, and her right or authority to make use of the power could be in no manner abridged or affected by a reconveyance of the fee to her. Afterwards, as well as during the continuance of the trust, her power over the estate was the same, for she could still devise it to whomsoever she cho^e, and in default of a devise it would descend -to her heirs, as that was declared to be her intention by the plain language of the deed.

The case, therefore, was within the principle settled by McWhorter v. Agnew (6 Paige, 111). The trust there was created, and, as it was held, lawfully extinguished before the Revised Statutes were enacted, and when the court was at liberty to exercise an authority similar to-that conferred by the act of 1849.- The fact that there was a general pbwer of appointment reserved, was considered not to stand in the way of the termination of the trust. (Id., 116.) And no reason is perceived why such a general power should now prevent the policy of the statute, so plainly expressed, from being carried into effect in the present case. The judgment was erroneous and should be reversed.

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