author: Parker, J. Follett, J.,

text:
    The American Sugar Refining Company, Resp’t, v. Charles H. Fancher, as Assignee, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October, 1894.)

    1. Sale—Fraud—Rescission.
    A sale of goods, induced by fraud, is voidable at the vendor's option.
    2. Same.
    On discovering the fraud, he may rescind the contract and reclaim the goods from the fraudulent vendee.

      S. Same.
    He may also compel a return of tlie goods from an assignee for the benefit of creditors.
    4. Same—Bona eide purchasers.
    But it is not so, where the vendee, before the assignment, sells the goods to bona fide purchasers.
    5. Same—Trust.
    In such case, no trust in favor of the original vendor is impressed upon the proceeds in the hands of the vendee or his assignee.
    Appeal from a judgment entered on the report of a referee.

      Frederick /Seymour, for app’lt; Frederick li. Kellogg, for resp’t.
   Parker, J.

About a month before C. Burkhalter & Co. made a general assignment to this defendant for the benefit of creditors, the plaintiff sold and delivered to them on credit a quantity of sugar at the agreed price of $19,124.41. The sale was induced by false and fraudulent representations made by C. Burkhalter k Co. as to their solvency.

Twenty-six days after the execution of the general assignment, plaintiff served upon the assignee a notice in writing rescinding the sale on account of the fraud, and demanding a return of so much of the sugar as was then in the possession of the assignee, and that he account for and deliver to the plaintiff the proceeds of such goods as had been disposed of.

All of the sugar except $2,400 was, before the assignment, sold and delivered to the customers of the firm upon various terms of credit, which had not then expired, and that which remained unsold plaintiff obtained possession of, after serving the notice of re-' scission, through an action brought for the purpose. Thereafter this suit was commenced, which has resulted in a judgment against the defendant for $11,809.83, which is adjudged to be a “ first lien and charge upon any and all moneys and assets of every nature now or hereafter in the hands of the said defendant, formerly of the said firm of C. Burkhalter k Co.,” and the defendant is also directed to execute and deliver to the plaintiff instruments of assignment necessary to transfer all accounts and bills and claims receivable, representing any portions of the merchandise sold by plaintiff to C. Burkhalter k Co.

The learned referee, in presenting the reasons which led him to make a report in favor of the plaintiff, laid down certain propositions as a foundation for his argument which do not admit of dispute, viz., a sale of goods induced by fraud is voidable at the vendor’s option. On discovering the fraud he may rescind the contract and reclaim the goods from fraudulent vendee. As an assignee for the benefit of creditors is not a bona fide purchaser, but takes only the defeasible title of his assignor, the vendor may also compel a return of the goods from him.

It may be observed that the legal principles thus accurately stated were successfully invoked in the possessory action by means of which the plaintiff compelled a return of all the merchandise which Buckhalter & C >. had not sold prior to the assignment. But the sales actually made by Burkhalter k Co. were to bona fide purchasers, and the attempted rescission of the contract. did not, therefore, affect the title of such goods. This embarrassing fact was met with the assertion that the plaintiff nevertheless had the right to repudiate the contract to treat the proceeds as a substitute for the merchandise sold and to pursue them, whatever their form, into the hands of the fraudulent vendee, and fasten its equitable claim upon them.

' Our attention has not been called to any case which in terms either affirms or denies this position, and we are to inquire whether it is well grounded in principle. The respondent contends that notwithstanding the passing of the title to a purchaser for value and without notice, the fraudulent vendee is chargeable in equity with the proceeds as a constructive trustee for the benefit of the defrauded vendor. That the trust arises ex matefido out of the active fraud of Burkhalter & Co., and attaches to the property or its proceeds while in the hands of the vendee or his transferee with notice.

Whether the effect of the fraud was to create an enforceable trust we must inquire, for otherwise the fraud would not operate to secure the plaintiff any preference over the other creditors of Burkhalter & Co. “ The equitable doctrine that as between creditors equality is equity,, admits, so far as we know, of no exception founded on the greater supposed sacredness of one debt, or that it arose out of a violation of duty, or that its loss involves greater apparent hardship.” Cavin v. Gleason, 105 N. Y. 256; 7 St Rep. 13. In that case, the debtor took nearly all of a trust fund and paid his personal debts with it, and the court held, that as to the amount thus paid out, the trust creditor could have no preference. The doctrine of that case is applicable to this one and should, perhaps be allowed to dispose of it without other discussion. -Burkhalter&Co., upon the delivery of the sugar to them in pursuance of their contract with the plaintiff, became vested with the title and possession, notwithstanding the fraud, subject, however, to theright of the vendor to rescind the contract if it should so elect. Powers v. Benedict, 88 N. Y. 605; Goodwin v. Wertheimer, 99 id. 152; Wise v. Grant, 140 id. 593; 56 St. Rep. 496. Before the plaintiff concluded to rescind the contract, and reclaim the property, that portion of it hich is now the subject of controversy was, in the usual course of business, sold and delivered to various customers of the firm, who were purchasers for value and without notice. It was then too late for the plaintiff to reclaim the property. The title and possession had become vested in persons protected as a rule of necessity from the original vendor. “ A contrary, principle would endanger the security of commercial transactions and destroy that confidence upon which what is called the usual course of trade materially rests.” Root v. French, 13 Wend. 572.

Then came the hour of the general assignment, which found the plaintiff apparently content with the then existing relation of debtor and creditor.' By the instrument then executed, all of the debtor’s property passed to the assignee for administration and distribution. The proceeds of the sugar necessarily passed with the other assets of Burkhalter & Co. It was their sugar when sold. True, it might have been otherwise had the plaintiff elected to rescind the contract and reclaim the. property, but, as it did not do this, the vendees, in selling it, sold their own property, and the proceeds of' it belonged to thém when the assignment was made. Then the plaintiff’s relation to Burkhalter & Co., as to the sugar sold, was that of a contract creditor. The only difference between it and the other creditors being that fraud entered into the making of the contract between it and the common debtors. But this fraud did not entitle it to preference over the other creditors in the distribution of assets. Cavin v. Gleason, supra. The case would, we think, be well disposed of if discussion should be stopped at this point. But .the elaborate and careful argument-intended to make it clear that a trust in invitum was brought into existence by-the fraud of the Burkhalters, renders it entirely proper that the question be given some part at least of the consideration in the opinion which it received in the consultation of the court.

It is not out of place to say here that the courts have less generously charged debtors as trustees ex maleficio in cases of personal property than they have in real estate. Alexander, C. B., in Membram v. Macy, 13 Price, 749, said : “ The cases of compensation in equity I consider to have grown out of the jurisdiction of the courts of equity as exercised in respect to contracts for the purchase of real property where it is often ancilliary as incidentally necessary to effectuate decrees of specific performance;'’ "While the equitable remedy of following the proceeds of property doubtless arose in the manner suggested, it has been so extended as to include, in certain cases, the proceeds of personal property. To these cases a general reference will be made later, but for the present it may be said that they emphasize the fact to be that the courts have not extended the doctrine so generally over personal as over real estate. One reason for it is, suggested in one of the opinions in New Zealand Co. v. Watson, 7 Q. B. Div. 374. “I do not desire to find fault with the various intricacies and doctrines connected with trusts, but I should be very sorry to see them introduced into commercial transactions.”

The leading authors who have attempted anything like a full discussion- of the subject of trusts have, in their consideration trusts raised by construction of equity, without reference any intention of the parties, either expressed or presumed, and known as constructive trusts, have made- use of language, in a general discussion of the subject, broad enough, perhaps, to include the situation presented by this record. Mr. Perry, in his work on trusts (§ 166), says: “There is another class of trusts which arise from frauds committed by one. party upon another. Thus, if one party’ procures the legal title to property from another by frand, or misrepresentations or concealment, * * * equity will convert such party thus obtaining the property into a trustee.” And in Pomeroy’s Eq., Jurs., § 1053, it is said : “In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, * * * o which render, it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired * * * .” The same position is asserted and in substantially the same language in Bispham Eq., § 91; Bigelow on Fraud, 487 ; Story Eq. Jur., § 1263.

But when these authors undertake to support the general rule thus laid down by presenting the different classes of cases in which courts of equity have made use of the principle of a division between the legal estate in one and the equitable estate in another, to construct a trust where none was intended by.either party, they are obliged to, and do, cite cases growing out of transactions in real estate almost exclusively. A practical reason -for the distinction, in addition to that suggested by the quotation taken from the New Zealand Case, supra, may be found in the fact that when contracts relating to, or conveyances of, real estate have been procured through fraud, resort must be had to the courts to set aside the contracts orto cancel the deeds and reinvest the defrauded vendors with the title, whereas a sale and delivery of persona] property, vesting title and possession in a fraudulent vendee, may be rescinded by the vendor, whereupon the title is restored to him and the right accrues to recover possession of the goods.

While the cases cited by the text writers, as we have said, in the main involve questions relatiug to real estate, there are two classes of cases where the equitable doctrine of constructive trusts has been applied to personalty and the proceeds followed neither one of which, howevér, include a case like the one under consideration.

First. Where a person having possession of the property of another, towards whom he sustains a fiduciary relation, wrongfully disposes of it.

Second. Where there is an absence of title in the wrongdoer ab initio.

The first class extends to trustees, executors and administrators, directors of corporations, guardians, committee of lunatics, agents using money of their principals, partners using partnership funds, husbands purchasing property with money belonging to their wives, parents buying property of their children, guardians of their wards, trustees of the cestui que trusts, attorneys of their clients, and all persons who stand in fiduciary relations towards others. The following cases cited on this appeal are within this class: Holmes v. Gilman, 138 N. Y. 369; 52 St. Rep. 873; Kwatchbull v. Hallett, L. R. 13 Ch. Div. 896.

Respondent strongly urges that the case of the Importers & Traders' Bank v. Peters, 123 N. Y. 272; 33 St. Rep. 182, supports this judgment. Everett Brothers, Gibson & Company deposited with the Exchange Bank at Norfolk a sight draft on M. & Co., of New York city, indorsed by the drawer in the form in which by agreement and custom of the parties drafts for collection only were to be indorsed. The bank forwarded the draft to the Importers & Traders’ Bank, who collected it and placed the proceeds to the credit of the Exchange Bank. Immediately thereafter the last named bank suspended payment, the fact being that it had been hopelessly insolvent for six months to the knowledge of all the managing directors. Both the receiver of the insolvent bank and Everett Brothers, Gribson & .Company, claimed the proceeds of the draft from the Importers & Traders’ Bank. The latter upon the grounds :■ First. That the Exchange Bank was their agent only for the purpose of collecting the draft. Second. That the agent had been guilty of fraud in not disclosing its insolvent condition. The trial court found in substance the facts to be as claimed. The judgment was affirmed at general term, and the court of appeals in its opinion says that there was some evidence to support the first proposition of fact and abundant evidence to support the .second. Under the rule which obtains in that court, therefore, both propositions of fact were necessarily treated as established. An express fiduciary relation between the bank and the drawer of the draft therefore existed. The drawer and the bank were principal and agent, not vendor and vendee. The Exchange Bank never had title to the draft. Everett Brothers & Gribson continued to be the owners of it down to the moment of its pay-. ment, when the proceeds were substituted in its place and the title thereto became vested in the original owner of the draft. This case, therefore, comes under the classes already referred to.

Newton v. Porter, 69 N. Y. 133, is within the second class. The plaintiff’s bonds were stolen and afterwards sold by the thief, and it was held that the plaintiff could follow the proceeds received by the thief into (the hands of a transferee with notice. The title to the bonds was of course never in the thief, and he never acquired from the owner any right to use them as his own. The plaintiff waived, not the theft, but the wrongful disposition of the bonds, adopting the thief’s act in disposing of them as his own act, and was, therefore, permitted to follow the proceeds.

Had the plaintiff rescinded the contract before the merchandise in question was disposed of, thus restoring to itself the title to it, and thereafter Burkhalter & Co. had disposed of it before the plaintiff could regain possession, a different question would be presented. Instead it waited until the persons having title and possession, and the absolute right of disposition of the merchandise as its own property, a right conferred upon them by the plaintiff’s own act, had disposed of it. Then, to obtain an advantage over the other creditors of the- insolvent firm, it asked the court to spell out a constructive trust as to the property sold before rescission—a request neither supported by authority nor, as we think, by the rules governing the raising of trusts by construction of equity. If the plaintiff’s position could be sustained, then it would be difficult to conceive of á case in which a vendor might not come into equity and follow the proceeds of merchandise because the original contract was tainted with fraud.

The court of appeals said, in Bosley v. Nat. Machine Co., 123 N. Y. 550-555; 34 St. Rep. 277: “It is not in every case of fraud that relief is to be administered in a court of equity; and it is a well settled rule that wherever a matter respects only a sale of personal chattels, and lies merely in damages, the remedy is at law only. If this had been a sale of a horse to' the plaintiff procured by fraud, it would not have been proper for her to resort to an equitable action for relief, because an action at law would furnish her an ample remedy and give her all the relief to which she could, under any circumstances, be entitled.”

The judgment should be reversed and'a new trial granted before another referee, with costs to the appellant to abide the event.

Van Brunt, P. J., concurs.

Follett, J.,

(dissenting)—I am unable to concur in the proposition that in case A is induced to sell goods to B by the fraud of the latter, who purchases with a preconceived design not to pay for them, and he sells the goods to others on credit—negotiable paper not being given for the price—and the sale is rescinded before the subsequent purchasers pay for the goods, that the price agreed to be paid cannot be reached by the defrauded vendor.

It seems to me that the prevailing opinion rests on two erroneous assumptions: (1) That the vendees of C. Burkhalter & Co. were purchasers in good faith and for value. (2) That the referee ordered a general judgment against the assets in the hands of thq assignee for the benefit of creditors.

The purchasers fromC. Burkhalter&Co. were not purchasers for value. The referee found : “And I further find that the said sales by Burkhalter & Co. were made to other customers upon terms of credit, some of which had not expired at the time of the making of the said general assignment.” This fact was stipulated on the trial, and it was stipulated that the avails of many of these credits came to the hands of the assignee. One who purchases on credit, and neither parts with anything nor gives negotiable paper for the price, does not become a purchaser for value until he pays the purchase price. Bump. Fr. Conv., 2d ed., 483, and cases cited ; Pom. Eq. Juris., 750, et seq., and cases cited.

The referee did not order a general judgment against the assets in the hands of the assignee for the benefit of creditors. He held that the assignee was liable to account to the plaintiff for “the proceeds of any such goods and merchandise, in whatsoever form such purchases may be, and to-the extent that such purchases can be traced and identified, as may have come or may hereafter come into his possession or control.” The interlocutory judgment followed the decision and ordered an accounting of the avails of the sugars sold on credit which came into the assignee’s hands. The plaintiff did not recover, nor did it seek to recover sums not directly traceable to the assignee’s hands and arising frorn the sales on credit. After the entry of the interlocutory judgment the litigants stipulated:

“II. It is further stipulated that the amount for which the said defendant, Charles H. Fancher, assignee, etc., is compelled to account to this plaintiff under the said interlocutory decree, equals in all the sum of $10,605.62, and that the amount of the final judgment to be entered against the said Charles H. Rancher thereunder equals the said sum.”

This stipulation was entered into to avoid the expense of an accounting, and upon the assumption that if the interlocutory judgment was right, the plaintiff was entitled to recover that sum.

The defendant having made this stipulation cannot now urge the form of the judgment as a ground for reversing it. I think the interlocutory judgment was right, and that it and the final judgment should be affirmed, with costs.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    John L. Douglass, App’lt, v. John F. Halstead, as Receiver, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October, 1894.)

    1. Brokers—Commissions.
    To entitle a brokér to commissions, he must be employed and must find a purchaser and produce him to his principal, ready and willing to purchase the real estate upon his terms.
    2. Same. -
    The findings of the referee' that the broker was not employed by the vendor and was not the procuring cause of the sale were held to be sufficiently supported by the evidence.
    Appeal from a judgment in favor of the defendant entered upon the report of a referee dismissing plaintiff’s claim on the merits, with costs.

      Ihomas F. Wentworth, for app’lt; Fh'anh D. Sturges, for resp’t.
   Parker, J.

The referee’s report, in pursuance of which the judgment now before this court was rendered, asserts, among its findings of fact, that the plaintiff Douglass was not the producing cause of the sale of certain premises, known as 153 Broadway, by the defendant to the Singer Manufacturing Company. And. further that the plaintiff Douglass was never employed by the defendant to sell the property.

It was for the usual commissions of a real estate broker for such sale that the claim was made upon the receiver of the Firemen’s Insurance Company, the denial of which eventuated in this procee'ding.

If these propositions of fact are well grounded, it follows that the judgment dismissing the claim was proper.

The appellant, however, insists that they are erroneous, because—

1st. “Against the weight of evidence,” and

2nd. “ Contrary to the law of the admitted facts.”

We should have some difficulty in understanding what is meant by the second proposition, but for the argument elsewhere in the appellant’s brief, intended to make it appear that this case is fairly within the rule of Lloyd v. Matthews, 51 N. Y. 124.

It is asserted that the material facts correspond with those in Lloyd's Case, or at least that the defendant’s testimony touching the matter of the employment of the broker was in each case the same in substance. After quoting from tbe opinion of the court reciting the testimony of the defendant in Lloyd's Case, the appellant continues: “ This statement tbe court held was sufficient to warrant the conclusion that he authorized them to find a purchaser, and to report to him for the purpose of consulting in reference to and agreeing on the terms of sale.”

As the position of the court is stated in the brief, it would seem that it had asserted that the facts referred to required the legal conclusion that the defendant had employed the broker to find a purchaser. We do not so understand the opinion. The clause quoted was but the finding of a discussion by the court intended to make it clear that the evidence in the case was such that there was presented a question of fact for the jury—whether the plaintiffs were employed by the defendant to make a sale of the property for which they claimed commissions. Starting out with this proposition the court followed it with a consideration of the testimony presented by both plaintiffs and defendant, and, therefore, when it concluded with the statement that certain evidence was sufficient to warrant the conclusion that defendant authorized plaintiffs to find a purchaser, it referred to the conclusion of fact which the jury had drawn from the evidence. For the trial court had submitted that question to them, and this part of the discussion was only for the purpose of making it clear that the court did not err in so doing.

In this case the question of. fact as to whether there was an employment has been passed upon. It was the duty of the jury in Lloyd’s Case, said the court, to pass upon it. It was likewise the duty of the referee in this ease. And, after a careful reading of the testimony, we have come to the conclusion that the findings are sufficiently well sustained by the evidence to entitle them, under the rules which obtain in such cases, to stand unreversed by this court. Upon the question of employment there can be. no doubt but that the plaintiff made out a prima fade case. But Mr. Halstead, then the president of the defendant, now its receiver, gave an entirely different version of the two conversations had with plaintiff which it was claimed resulted in a contract of employment. His testimony was as follows:

‘At that interview Mr. Douglass came in the office, cam.e up to me and said, ‘ Mr. Halstead, is this property for sale ? ‘ I said, ‘ No, sir.’ He said, ‘ It can be bought, can’t it ? ’ ‘ "Well,’ I said, ‘ possibly.’ He said, ‘Well, if it was sold, how much would you ask'for it?’ I said, ‘Not less than $2,000,000.’ He said, ‘You would as leave I sell it for you as anybody?’ I said,. ‘ Mr. Douglass, the property is not offered for sale, and will not be put in anybody’s hands for sale.’ He said, ‘I will come in and see you again.’ I answered, ‘Don't come in unless you have a definite proposition to make.’ That. closed the interview. The next one was in the latter part of October or about the 1st of November; I could not fix the date exactly.; it was in the same year, 1889. It took place on a Wall Street Ferry boat. I was going to New York from Brooklyn. He was going to Brooklyn. We met about the chains of the boat. I was coming to New York, and Mr. Douglass was going to Brooklyn. He said, ‘Mr. Halstead, I am coming to see you about that property.’ I said, ‘ Don't come-unless you have a definite proposition to makej because! am very busy.’ He replied, ‘If you áre more busy than I, you are a busy man.’ I replied, ‘I am.’ He went over to Brooklyn; it was in the room of the ferry. I did not have any other interviews with Mr. Douglass on the subject. He did not bring a definite proposition to me for the purchase of the property. He never told me that he had a purchaser for the property. He never told me the name of the purchaser he had in view.

“ Q. I understand you to say these two comprised all the interviews you had with him on the subject prior to the sale of. the property? A. They did, in relation to this property.”

This testimony, if believed by the referee, as it appears to have been, was sufficient to support his finding, on the subject of employment.

The other finding, that Douglass was not the procuring cause of the sale of defendant's property to the Singer Manufacturing Company, is also adequately supported by the evidence. That the plaintiff conceived the idea of combining and selling to one party No. 153, owned by the defendant, and Nos. 151 and 149, owned by other parties, is not questioned. But the president of the Singer Manufacturing Company, with whom all negotiations were conducted, utterly refused to entertain the proposition, to buy either one of the properties, unless he could buy all three. The plaintiff made considerable effort to accomplish that result. He found that he could "buy two of the properties at figures which were- acceptable to the president of the Singer Manufacturing Company, provided the third property could be purchased on a proportionate basis. .The third property he could not buy. There was so many undivided interests in it, that it was not practicable to secure a contract of sale for it. It seemed to have been so situated, that the only way to accomplish a sale was the one ultimately adopted by one of the interested parties, who commenced a partition suit which finally resulted in a sale of the property.

Now it is apparent that during all this time the plaintiff did not bring to the defendant a purchaser. He could not do so because he had none. He had a party who might, in a certain contingency, become willing to purchase the property. Who this party was he did not inform the defendant or its president. In the meantime the president of the Singer Manufacturing Company, in a conversation. with a friend, informed him of his attempt to purchase all three properties, and the failure, owing to the inability of the real estate broker (this plaintiff) to find parties who could give a good title to one of the properties; and the friend replied that he knew a person who had the estate in charge, and probably could bring it about for him. And thus was started another attempt to acquire the three properties for the Singer Manufacturing Company, which in the end was successful. So while the idea originated with the plaintiff, and considerable work was done by him, he was compelled by force of circumstances to stop before reaching the point at which he aimed, while another, who originated nothing, but simply stumbled upon the plan, was enabled by a little labor to carry it into execution and receive all the commissions. While it is unfortunate for the plaintiff that he should have been “so near and yet so far ” from the accomplishment of his purpose, the fact remains that the evidence justified the determination of the referee, that the plaintiff did not at any time find a purchaser and produce him to his principal, ready and willing to purchase the real estate upon its terms. And thus much it was necessary for him to do, in order to recover. Gerding v. Haskins, 141 N. Y. 514; 57 St. Rep. 716.

The judgment should be affirmed, with costs.

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


author: Eollett, J.

text:
    Mary Elizabeth Palmer et al., App’lts, v. Emily L. Paret et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October, 1894.)

    1. Will—Construction—Equitable conversion.
    Where executors are not required to sell the real estate, but are permitted to sell it and divide the proceeds, or to divide the real estate among the devisees, there is no conversion of realty into personalty.
    1. Partition—Power oe sale—Bar.
    A power to sell realty is not an absolute bar to an action to partition it 3. Trial—Defect of parties—Dismissal.
    A defect of parties not pleaded is seldom a sufficient ground for dismissing an equity action.
    Appeal from a judgment' dismissing the complaint on the merits, with costs, entered on a decision of the special term.
    Rufus Story, a resident citizen of New Jersey, died October 6th, 1877, at Bergen' Point in that state, leaving Ursula Story, his widow, and Mary E. Palmer, Alice Rowland, Abbie S. Marshall and Emily L. Paret, daughters, his heirs and next of kin, He left a large personal estate and real estate situate in the states of New Jersey and New York. He left a last will and testament which was duly probated in New Jersey as a will of realty and personalty, and letters were issued thereon to Mary E. Palmer, Alice Rowland and Dwight P. Cruikshank. On the 12th of October the will was duly admitted to probate in this state and letters were issued thereon to said executors.
    The testator by the first clause of his will bequeathed to-his widow his household goods, furniture, horses and carriages; by the second clause he devised to her a life estate in his homestead ; by a third clause he directed that his executors invest $100,000, and pay the income thereof to his-widow during her life; and by the fourth clause he gave to his grandson, Rufus S. Paret, $5,000, less a policy of life insurance of $2.200, on his reaching the age of twenty-one years.
    The following are the fifth and sixth clauses of the will over the construction of which this litigation arises:

      “ Fifth. I give, devise and bequeath all the rest, residue and remainder of my estate, real as well as personal, of every name and nature and wheresoever situate, of which I shall die seized, possessed or entitled (and including, on the death of my wife, my said homestead mentioned in the second clause of my will and the investment directed to be made for her benefit by the third clause of my will) to my executrices and executors, the survivors and survivor of them, or to such of them as may qualify, and the survivors and survivor of them, in trust and to and for the uses and purposes following, that is to say:
    “ 1. That they sell, dispose of and convey the same at public or private sale, at such times arid on such terms as they in their, his or her discretion may think proper.
    “2. That they divide such real and personal estate, or the proceeds thereof, into four equal parts or shares; one of such shares for each of my daughters, Mary Elizabeth Palmer, Emily L. Paret, Alice Rowland and Abby Story.
    “That my executors convey, pay and assign the shares of my daughters, Mary Elizabeth Palmer, Alice Rowland and Abby Story, to them absolutely, and hold, retain, invest and keep invested the share of my daughter Emily L. Paret, and collect and receive, and pay or apply the rents, interest and income arising therefrom to the use of my said daughter during her life.
    “ Should any of my daughters die in my lifetime, or on the death of my daughter Emily L. Paret, I give, devise and bequeath the share the one so dying would have been entitled to, to her issue absolutely, and if none, then to my surviving daughters and to the issue of such of my daughters who may have died, such issue to take by representation.
    “ Sixth. I authorize and empower my executors to pay all the taxes and assessments which may be imposed upon my propertjr (including, during the life of my wife, my said homestead) until the division or sale thereof; also to pay all premiums of insurance and sums necessary to-keep the buildings (including those on my homestead during the life of my wife) in good repair, to lease or rent any of my real estate until such sale or division, and to make all divisions and-partitions of any real and personal estate, or the proceeds thereof; also to make, seal, execute, and deliver all necessary deeds or other instruments in writing, with or without seal, necessary in the premises.”
    By the second codicil to the testator’s will he provided :
    “ It is my will that the remainder of said share of my daughter Emily shall be held and invested and kept invested during her life by my executors and trustees, who shall collect and pay or apply the interest and income thereof to the use of my daughter Emily so long as she shall live, and if she be not living, or on her death, that my executors and trustees convey, pay and assign such residue of such share to her issue absolutely.”
    The widow accepted the provisions of the will in lieu of dower, and before this action was begun she died. The four daughters are living. Mrs. Paret lias nine children and three grandchildren. Mrs. Palmer has five children and five grandchildren. Mrs. Rowland has five children and no grandchildren. Mrs. Marshall has one child and no grandchildren. This action was begun May 8, 1891, to partition the real estate situate in this state left by the testator. The four daughters and their husbands and their descendants, and the husbands and wives of such as are married, are parties, to this action.
    Emily L. Paret and six of her children, who are adults, answer and contest the right of the plaintiffs to the partition. None of the other adult defendants answer, but the defendants who are minors answer by their guardians ad litem and submit their rights to the court.

      John K. Parsons, for app’lts; Louis. V. Booraem, Blade '& King, William B. Bristol and Herman W. Schmitz, for resp’ts.
   Eollett, J.

The learned counsel for the appellants insists that the legal title vested in the three daughters other than Mrs. Paret, and in the plaintiffs, as trustees for her; that they are-tenants in common and that an action to partition may be maintained. The learned counsel for the respondents insist that a valid trust was created ; that there was a conversion of the' realty into personalty out and out, and that the legal title to the entire estate is in the executors, as trustees, under the will.

It is apparent that testator intended to .empower the executors, in their discretion, to convert his residuary estate, real and personal, into money, and pay one-fourth thereof to each of his daughters, Mary E. Palmer, Alice Rowland and Abby Story (now Marshall), and, as trustees, to hold the other fourth in trust during the life of Emily L. Paret, collect the income thereof and apply it to her use during her life, and, after her death, to pay it to her issue. However, the executors are not commanded tó convert the estate into money, but are authorized to divide it into four equal shares and “ convey, pay and assign the shares of my daughters, Mary Elizabeth Palmer, Alice Rowland and Abby Story, to them absolutely, to hold, retain, invest and keep invested the share of my daughter, Emily L. Paret, and collect, receive and pay or apply the rents, interest and income arising therefrom to the use of my said'daughter during her life.”

In the sixth clause the executors are empowered “ to make all divisions and partitions of any real and personal estate, or the proceeds thereof,” and “ to rent any of my real estate until the division or sale thereof,”, and to pay all taxes or premiums on policies of insurance until the property shall be divided or sold.

The executors are not directed to apply to any purpose all of the rents and income arising from the undivided estate, nor are they directed to apply one-fourth of the rents and income arising from the undivided estate to the use of Mrs. Paret, but the direction in respect to the application of “ rents, interest and income ” relates solely to that which shall arise after the division of the estate from her share held in trust. The language is “and hold, retain, invest and keep invested the share of my daughter, Emily L. Paret, and collect, receive and pay or apply the rents, interest and income arising there form to the use of my said daughter during her life.” It may be that the income of one-fourth being given for the support of Mrs. Paret that the executors could be compelled to apply some portion of the income of the undivided estate not exceeding one-fourth to her use in advance of a division and of the establishment of the trust estate. Under the statutes of this state the interests and the estates of the devisees under this will seem to be plain.

“ Sec. 55. Express trusts may be created for any or either of the following purposes:

1. To sell lands for the benefit of creditors;

“ 2. To sell, mortgage or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon;

“ 3. To receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter ’term, subject to the rules prescribed in the first article of this title;

“4. To receive the rents and profits of lands, and to accumulate the same, for the purposes and within the limits prescribed in the first article of this act.”

“Sec. 56. A devise of lands to executors or other trustees, to be sold or mortgaged, where the trustees are not always empowered to receive the rents and profits, shall vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to the heirs, or pass to the devisees of the tesfator, subject to the execution of the power.”

“Sec. 58. Where an express trust shall be created, for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions in relation to such powers, contained in the third article of this title.”

“ Sec. 59. In every case where the trust shall be valid as a power, the lands to which the trust relates shall remain in or descend to the persons otherwise entitled, subject to the execution of the trust as a power.”

An express trust is not created to sell or lease lands for the benefit of legatees, because there is no positive direction that the executors shall sell the lands, nor is there any direction that the lands be leased for the benefit of legatees; There is no trust under the third subdivision of § 55, because there is no direction to apply the rents and profits to the use of any person during the life of such person. In Cooke v. Platt, 98 N. Y. 35, the testator gave all of his estate to his executors absolutely, with “full power” to receive the rents, issues and profits, and to sell, mortgage and convey, in their discretion, upon trust, to divide it or its proceeds, after the payment of his debts, among his four children in equal proportion. It was held in that case: “The main purpose of the testator was to give his estate remaining, after payment of his debts, equally to his four children. He imposed upon his executors the duty of making the division, and this was the declared purpose of the trust. If there was nothing further in the will there could be no question. The statute does not authorize the creation of a trust for the partition of lands. But a power may be created for this purpose and the devise to the executors, though void as a trust, may be valid as a power to divide and distribute.” It was held that in order to establish' a valid trust under the first or second subdivision of § 55 that there must be an absolute and imperative direction to the executor to sell the land. In other words, it was held that unless the will ■converts the realty into personalty out and out, that no valid trust under the first or second subdivision of the section is established.

On the face of the will it is plain that the testator intended not to require his executors to sell the real estate, but to permit them to sell it and divide the proceeds, or to divide the.real estate among the devisees. Under such circumstances, there is not a conversion of the realty into personalty. Cooke v. Platt, 98 N. Y. 35; Scholle v. Scholle, 113 N. Y. 261; 23 St. Rep. 171; Clift v. Moses, 44 Hun, 312; 7 St. Rep. 691; S. C., 116 N. Y. 144; 26 St. Rep. 405. The court of chancery of New Jersey has decided that this will does .not convert the realty into personalty. Story v. Palmer, 46 N. J. Eq. 1.

In Morse v. Morse, 85 N. Y. 53, the will related to a farm of one hundred and fifty acres'which were incapable of being divided into six parcels of twenty-five acres each without substantially destroying the value of the property, and it was held, under the circumstances, that the testator must have intended that his land should be converted into money. There was not in that will, as in this, power given to the executors to divide the realty as such among the beneficiaries.

Whether a power to sell realty is an absolute legal bar to an action to partition has been considered and determined by this court in the negative, Mellen v. Banning, 72 Hun, 176; 55 St. Rep. 319, and we see no occasion for rediscussing the question.All of the beneficiaries except Mrs. Paret desire that the land be partitioned or sold as may be for the best interest of the devisees. Two of them are plaintiffs, and one is a defendant making no defense. The executors also desire that the land be partitioned or sold under the direction of the court. It is apparent that the sisters are not agreed as to the management or distribution of the estate, and it may not be unwise for these executors to ask that the property be sold or divided under the direction of the court rather than to assume to divide or sell it on their own judgment.

It would seem that Mrs. Paret’s interests would be best served by a partition of the realty, or a sale and division of the avails to the end that the trust for her benefit may be established, her income made reasonably eertain, and it be known what amount is to go to her issue on her death.

We think under the facts proven that the power of sale is not an equitable reason for denying a judicial partition or sale of the land.

It is urged that the executors as such are necessary parties to this action. That defect, if it be one, appears upon the face of the complaint, and not having been taken by demurrer or answer, is waived and cannot be insisted upon as matter of right. Code C. Pro., § 499. A defect of parties not pleaded is seldom a sufficient ground for dismissing an equity action, Pondir v. N. Y., L. E & W. R. R. Co., 72 Hun, 384; 55 St. Rep. 63, and in this case the question can be easily obviated by an amendment.

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

Yan Brunt, P. J., concurs in the result; Parker, J., concur.


author: Me Ad am, J.

text:
    Edward B. La Fetra, as Assignee, etc., Pl'ff, v. William A. Glover, Def’t.

      (New York Superior Court, Trial Term,

      Filed October, 1894.)

    1. Sale—Title.
    No one, unless furnished by the owner with the indicia, of title, can transfer to another a better title than he has himself. .
    Íí. Same—Pledge.
    Nor can one, who has no title whatever to the property, pledge it.
    3. Same—Act op 1884. .
    A pledgee is not a subsequent purchaser or mortgagee within the meaning of chap. 315 of 1884.
    Motion by, defendant for new trial on minutes.

      Geo. C. Comstock, for motion; John C. Bobinson, opposed.
   Me Ad am, J.

That “no one can transfer to another a better title than he has himself, is a maxim,” says Chancellor Kent, “alike of the.common and civil law, and a sale ex vi termini imports nothing more than that the bona fide purchaser succeeds to 'the rights of the vendor.” 2 Kent’s Com.3 24.

In this case the jury, by their verdict, found that Seale & Co., the owners of the diamond pin, did not sell it to the Baroness Blanc, but loaned it to her, with the liberty of purchasing same 'on payment of a stated price. She never availed herself of the privilege of buying, never did buy, and the pin remained the property of Seale & Co. Until it was transferred by their general assignment to the plaintiff.

The baroness had no title whatever to the property, and could not, therefore, convey.or pledge it; and the fact the defendant in good faith advanced $800 upon the pin gives him no greater right than the baroness herself had. The latter had a mere naked possession ; this has never been held to confer a power of disposition; and an unauthorized sale, although for a valuable consideration, and to one having no notice that another is the true owner, vests no title in the vendee. See authorities collated in Smith v. Clews, 114 N. Y. 190; 23 St. Rep. 166; Heilbronn v. McAleenan, 16 St. Rep. 957; Anderson v. McAleenan, 29 St. Rep. 406.

Plaintiff’s assignors never furnished the defendant with any indicia of title; nor have they-or he been estopped in any way from asserting title.

Though the goods were charged to the baroness, it was proved that the entries were made without instructions from the principals, who testified that they would not have sold on credit to a stranger, without security, such -goods as diamond ornaments. The jury evidently weighed these considerations in reaching a result. They found for plaintiff for the possession of the property, assessing its value at $1,409.70.

The defendant,- being a pledgee, was not “a subsequent purchaser .or mortgagee” within the meaning of the act of 1884, ch. 315, in reference to the filing of conditional sale agreements ; he was, therefore, entitled to no benefit thereunder. Canton S. & D. Co. v. Webb, 42 St. Rep. 187; 16 N. Y. Supp. 932.

The evidence sufficiently sustains the verdict, and, for the reasons stated, the motion for a new trial must be denied.


author: Pryor, J.

text:
    Ellen Banzer, Pl’ff, v. Adam Banzer et al., Def'ts.

      (New York Common Pleas, Equity Term,

      Filed October, 1894.)

    1. Husband and wine—-Entireties.
    An estate by entireties is created only by a conveyance to husband and wife.
    2. Same.
    A conveyance to the wife by the husband’s cotenant is inoperative to create such an estate.
    8. Will—Limitation ovek—Void.
    A limitation over upon a devise of the entire and absolute estate, with an express and unqualified power of disposition in the first taker, is void for repugnancy.

      James Kearney, for pl’ff; Edward W. iS. Johnston, for def’ts.
   Pryor, J.

In a suit for partition the case is this : John Maier and Michal Banzer were tenants in common ; Maier conveyed his undivided moiety to Susanna, the wife of Banzer; then Banzer executed a will disposing of his property in these words: “First after all my lawful debts are paid and discharged I give aud bequeath to my beloved wife, Susanna Banzer, all my real and personal estate now at present and hereafter in my possession; my real estate consisting at present of a part of a house known by the number 220 West Thirty-second street, Twentieth Ward, so as described in the deed of said house; and my personal estate, and whatever belonging to me at my dead ; whatsoever and wheresoever, of wat nature, kind and quality soever may be, that she shall have undisputed right, to do and dispose, acording her own judgment, that after her, dead, my beloved children • or their executor, administrator shall di vite the same chair and chair alike,” under and by virtue of the last clause, not otherwise, the plaintiff claims as co-tenant with the defendants.

Counsel for the defendants objects that Michael and Susanna Banzer were tenants bv the entirety, and if such indeed was their estate it could not be the subject of partition. 4 Kent’s Comm. 363; Hardenbergh v. Hardenbergh, 5 Hals. N. J. 42; Thornton v. Thornton, 3 Rand. Ta. 179; Code of Civ. Proc., § 1532. But the position is untenable.

It is only by a conveyance to husband and wife that they take as tenants by the entirety. Steltz v. Shreck, 128 N. Y. 263; 40 St. Rep. 267; Miner v. Brown, 133 N. Y. 309; 45 St. Rep. 188; Wright v. Sadler, 20 N. Y. 320, 323; Hulet v. Inlow, 26 Am. Rep. 64, and note; Bramberry’s Appeal, 36 Am. St. Rep. 64, and note; Den v. Hardenbergh, 18 Am. Dec. 383, note.

If a man and woman holding an estate as co-tenants marry, they will continue to be joint tenants or tenants in common as before marriage. Moody v. Moody, Amb. 649; McDermott v. French, 15 N. J. Enq. 80, 4 Kent, 363.

John Maier conveyed to the wife; not to husband and wife. Taking but the interest of Maier, Susanna Banzer became co-tenant with her husband, Jooss v. Fey, 129 N. Y. 17; 41 St. Rep. 211, as such was seized only of her grantor’s estate, arid of that in several and distinct freehold. 4 Kent, 367. The husband continued owner merely of his original- share, and no privity of estate subsisted between him and his co-tenant wife. 4 Kent, 368.

If marriage between joint tenants or tenants in common be inoperative to create an estate by entireties, a fortiori does such effect not follow a conveyance to the wife alone by the husband’s co-tenant.

Plaintiff’s counsel contends, however, that by virtue of the limitation over in the will of Michael Banzer, she is a co-tenant with the defendants, and so entitled to partition. If co-tenant at all, she is co-tenant only of Michael Banzer’s moiety ; for it was. of his own interest merely that he was capable of disposing — the other moiety being the property of Susanna Banzer.

Upon the construction of the will before me, the conclusion is clear that the entire and absolute estate in Michael’s moiety, without limitation over, passed by the devise to Susanna Banzer.

If the supposed limitation be inapplicable to the realty, then the gift and devise merely would" convey it in fee simple absolute; much more when coupled with an express and unrestricted power of alienation. Foose v. Whitmore, 82 N. Y. 405, 407.

Conceding, however, that the supposed limitation applies as well to the real as to the personal property—a position strenuously contested by the defendants—the deduction is still inevitable.

Bearing in mind that the will is obviously the composition of an illiterate layman, we observe that, without reservation or qualification, it gives and bequeaths all his property to Susanna Banzer, with the right to do with it and dispose of it according to her own judgment—an absolute and beneficial power of disposition.

*■ The precise question presented, therefore, for our determination is, whether an executory devise can be made to depend on the non-execution by the first taker of an absolute beneficial disposing power vested in him by the will creating the limitation; or, in other words, whether there can be a valid executory devise where the executory limitation is conjoined with an absolute power in the primary devisee to defeat and cut off the future estate or interest by alienation of the entire fee in his lifetime, and whether it makes any difference as to the rights of the ulterior devisee, whether the power has or has not been exercised. This question is answered by an unbroken line of authorities in this state, and the almost uniform course of decision elsewhere, against the validity of such a limitation.” Andrews, J., in Van Horne v. Campbell, 100 N. Y. 287, 294; see, also, Campbell v. Beaumont, 91 N. Y. 464; Clarke v. Leupp, 88 N. Y. 228; Buckland v. Gallup, 22 Wk. Dig. 23; Griswold v. Warner, 51 Hun, 12; 20 St. Rep. 430; Rood v. Watson, 54 Hun, 85; 26 St. Rep. 487; Roseboom v. Roseboom, 81 N. Y. 356; Foose v. Whitmore, 82 N. Y. 405; Hermance v. Mead, 18 Abb. N. C. 90; Matter of Le Fevre, 5 Dem. 24.

In the masterly opinion of Judge Andrews, the limitation under criticism is discriminated from a valid executory devise by the decisive test, that here “ is interposed between the primary and secondary limitation a disposing power whereby the first taker was entitled to dispose of the whole fee for her own benefit, and thereby cut off and defeat the ulterior limitation." 100 N. Y. 293.

My conclusion is, that the limitation is invalid for repugnancy to the previous devise of the entire and absolute estáte. And, since the only claim of interest in the property by the plaintiff is by virtue of that limitation, it results that the complaint must be dismissed on the merits. .

Judgment accordingly, with costs.


author: Pryor,'J.

text:
    Job E. Hedges, as Receiver, etc., Pl’ff, v. John Polhemus et al., Def'ts.

      (New York Common Pleas, Equity Term,

      Filed October, 1894.)

    1. Chattel mortgage—Reservation—Void.
    A reservation in a chattel mortgage of the use, by the mortgagor, of consumable mortgaged property avoids the mortgage in toto Against creditors.
    2. Same—Possession.
    The taking possession by the mortgagee does not validate such mortgage. 8. Same—Right op creditors.
    A creditor can enforce his right the moment he perfects his lien by judgment and execution.
    4. Same—Receiver.
    A receiver in supplementary proceedings may avoid the mortgage in behalf of the creditor he represents.

      Charles M. Earle, for pl’ff; James Parker, for def’ts.
   Pryor,'J.

On behalf of creditors, plaintiff, a receiver in supplementary proceedings, challenges the validity of a chattel mortgage on the ground that it reserves to the mortgagor, not only the possession but the “use” of the things mortgaged.

Of these things the use of which is permitted to the mortgagor, some are-necessarily consumed by the use; e. g., “cash in hand,” for the restitution of which no provision is made; “paper, envelopes, stationery, etc.” As to these, indisputably, the mortgage is void. Hangen v. Hachemeister, 114 N. Y. 566; 24 St. Rep. 526; Brackett v. Harvey, 91 N. Y. 214. And if void in part it is void in toto. Russell v. Winne, 37 N. Y. 591.

Assuming the mortgage invalid as to creditors, still the mortgagee contends that his title is un impeach able, because he got possession and disposed of the goods in payment of his debt before the creditors were in a position to attack the mortgage.

If the infirmity in the mortgage were merely that it were not accompanied by possession, then a supply of the defect before the lien of creditors attached might be available to the .mortgagee. But here the fact that vitiates the mortgage is what the law characterizes and condemns as fraud in itself, not simply evidence of fraud; and since the possession and sale by the mortgagee were under and by virtue of the mortgage, in law a void instrument, it is clear to demonstration that, as against pursuing creditors, he acquired the things mortgaged by no valid title. The mortgage was void ab initio, and so incapable of cure or confirmation. Mandeville v. Avery, 124 N. Y. 376, 385; 36 St. Rep. 338; Karst v. Gane, 136 N. Y. 316, 325; 49 St. Rep. 740.

True, the creditor could not assert his right against the mortgage until armed with proper process; but the right nevertheless existed, and was• susceptible of enforcement the moment he perfected his lien by judgment and execution. Karst v. Gane, 136 N. Y. 316; 49 St. Rep. 740.

That the plaintiff may impeach the mortgage is settled beyond controversy. Mandeville v. Avery, 124 N. Y. 376, 385; 36 St. Rep. 338.

Indeed, the adjudications in that case are quite conclusive on all the points in dispute between these litigants.

Judgment for plaintiff, with costs.


text:
    In the Matter of the Assignment of Morris Ginsberg.

      (New York Common Fleas, Special Term,

      Filed September, 1894.)

    1. Assignment for creditors—Receiver
    A receiver under a superior court judgment, vacating the assigment for fraud, is entitled to so much of the fund in the hands of the assignee as is requisite to satisfy the judgment.
    2. Same—Accounting—Bar.
    An accounting under such judgment is no bar to a compulsory accounting by the assignee in the common pleas.
    3. Same—Surety.
    If the assignee is found in default upon such latter accounting, his surety may be prosecuted, but only for the benefit of creditors claiming under the assignment.

      Chas. J. Patterson, for motion; George Carlton Comstock and Franklin Bien,, for creditors, opposed.
   Pryor, J.

On tbe removal of an assignee for the benefit of creditors a substitute was appointed, and to this successor the assignee was directed to deliver the fund in his possession, and enjoined from otherwise disposing of it. The order provided also that the deposed assignee should account. Meanwhile, however, in several suits by different creditors, in the superor court, judgments had been entered vacating the assignment as fraudulent and void ; appointing a receiver of all the assigned property and requiring the assignee to turn it over to him, and naming a. referee to audit the accounts of the assignee.

The referee reports a considerable sum in the hands of the .assignee ; and this sum specifically he is adjudged by final decree in the superior court to pay to the receiver.

Under the pressure of these contradictory requirements, the assignee petitions the court to vacate the order removing him, in so far as it directs him to deliver the estate to his successor, enjoins him from interfering with it, and compels him to account.

The principle is fundamental in the jurisprudence of this country, and indispensable in the administration of justice, that “ where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court. * * * Neither can one take property from the possession of the other by replevin or other process ; for this would produce a conflict extremely embarrassing to the administration of justice.” Peek v. Jenness, 7 How., U. S. 618, 624-5.

This principle — that the tribunal first acquiring jurisdiction shall retain it — has been applied to determine the inconsistent pretensions of creditors by judgment and the administrator of an estate in a court of insolvency, in a controversy between trustees in chancery, and judgment creditors seeking remedy by executory process, and in other instances of clashing contentions between concurrent judicatories. Taylor v. Carryl, 20 How., U. S. 583, 596-7; Williams v. Benedict, 8 id. 107; Schuehle v. Reiman, 86 N. Y. 270.

When the suits in the superior court were instituted the court of common pleas already had jurisdiction of Ginsberg’s assignment, of the accounting by his assignee and of the distribution of his estate among creditors.

True, the judgments in the superior court have conclusively established the invalidity of the assignments as to the creditors impeaching it, Hammond v. Hudson River I. & M. Co., 20 Barb. 378, 381; but. no farther, and it still stands as to all other creditors. Bishop on Assignments, 228. The effect of the judgments invalidating the assignment is not enlarged by the fact that the suits which issued in the judgments purported to be in behalf of all other creditors who should come in, because the plaintiffs.in those suits could renounce .the benefit of the assignment only for themselves, and the creditors opposing this motion expressly elect to confirm it.

. The assignment proceeding, therefore, still remains in the court of common pleas, with all the incidents of such proceeding, in-eluding an accounting by. the deposed assignee and the distribution of the fund from the assigned estate, if any be available for the purpose, among creditors abiding by the assignment. Heywood v. Thacher, 47 St. Rep. 1; 19 N. Y. Supp. 321, 322. The adjudications cited hold nothing to the contrary of the proposition.

But, the assignment being void as to the creditors who have-succeeded in impeaching it, tney have a right, as against creditors claiming under the assignment, to the satisfaction of their judgments out of the fund in the hands of the assignee. As to so much of that fund as is requisjte to satisfy those judgments, the assignee holds it wrongfully, and not by virtue of the assignment. He must, therefore, pay over to the -receiver in the superior court the aggregate amount of those judgments, if so much be in his hands; and if not, then whatever he holds.

The accounting of the assignee in this court will proceed to a conclusion; and if he be found in default the surety may be prosecuted upon his' bond, but only for the benefit of creditors claiming under the assignment. Creditors repudiating the assignment can of course take nothing by virtue of the assignment. Not being beneficiaries of the trust, they cannot be damnified by i.ts maladministration.

An order pursuant to this opinion will be entered, on notice.


author: Finch, J.

text:
    Thomas Harvey, App’lt, v. Giles S. Brisbin et al., Resp’ts.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Deed—Construction.
    A conveyance to fatlier by children, who were entitled under a will to .the proceeds of the sale of certain land directed to be sold, of their interest and income in the trust fund, was held to convey no interest in the land.
    2. Same—Curtesy.
    Curtesy in land inherited by a wife, subject to a power of sale, is defeated by the execution of the power.
    Appeal from a judgment of the general term of the third department of the supreme court, affirming a judgment for defendants.

      B. F. Bullard, for app’lt; L. G. Pike and G. A. Waldron, for resp’ts.

       Affirming, 20 St. Rep. 702.

   Finch, J.

It was suggested in the appellant’s brief, though scarcely argued at the bar, that Giles was tenant by the curtesy of his wife’s land. But, on one theory of the will, she was not seized at all; and, on the other, she took only the nominal fee, subject with all its incidents to be defeated by the power of sale which has been executed with that effect; and besides, as the general term suggests, the purchaser under that sale is not a party here, and the right of the tenant by the curtesy is a legal right to be enforced against the claimant in possession. 'What I have said is equally true if the trust as to Matilda’s half ended at her death, or the trust power as to that moiety became incapable of execution after that date, as the general term opinion seems to indicate. That is one of the possible constructions; but in' that event the legal estate in a moiety of the land devolved upon the children. They never conveyed that to Giles, nor any part of it. They transferred only an interest in a supposed trust fund, which never was constituted, and never came into existence. I have not sought to construe a will not put before us, and do not determine what theory of it is correct; but, assuming all possible and suggested modes of interpretation, it is enough that none of them give the plaintiff a right which upon his complaint it is possible to enforce. The judgment should be affirmed, with costs.

All concur. Judgment affirmed.


author: Per Curiam.

text:
    Francisco A. Pellas, Resp’t, v. Thornton N. Motley et al., App’lts.

      (Court of Appeals,

      Filed October 9, 1894.)

      1. Appeal—Court op appeals.
    Findings of fact, affirmed by tbe general term, will not be reviewed in tbe court of appeals.
    2. Same—First instance.
    Issues, not made in tbe pleadings or raised at tbe trial, will not be considered on appeal.
    Appeal from a judgment of the general term of the first department of the supreme court, affirming a judgment for plaintiff.

      JD. M. Porter and Alfred K Pette, for app’lts; Henry Major, for resp’t.

      Modifying and affirming, 46 St. Rep. 91.

   Per Curiam.

Upon the facts found by the court, the plaintiff is entitled to relief. The defense to the action was based upon alleged false representations alleged to have been made by plaintiff to defendants Motley and Macauley, by means of which they were induced to enter into the contract in question. Those representations related to the condition of the property to be sold by the plaintiff, to its value, and to the extent of the concession granted by the republic of Nicaragua to the plaintiff, and which was to be assigned to the above named defendants. The plaintiff denied making these alleged representations. Whether he made them or not was the issue which was tried before the court. It was sharply contested, and evidence was given on both sides ; and the trial court, upon a careful consideration of all of it, has found that the plaintiff did not make the representations, and that the defendants were not induced to enter into the contract by reason thereof. This finding has been carefully reviewed by the general term of the supreme court, and has been approved by that tribunal, and it is, of course, conclusivé upon us. The defendants did not base their defense upon any alleged inability to give a good title to any part of the real estate by the plaintiff. The matter of defective title is an afterthought, and has neither been set up in defendants’ answer, tried by the court, nor found by it to exist as a fact. The course of the trial, as evidenced by the record before us, shows this to be true. The issue upon which evidence was given was in regard to the alleged false representations as above set forth. Upon the issue thus formed, the finding has been in favor of the plaintiff, and we cannot disturb it on the merits. There is, however, a technical difficulty regarding the form of the judgment, which should be corrected. All that the defendant Flannagan had to do with the matter was to receive and keep the certificate of deposit for $5,000, upon the agreement to deliver it up upon the joint order of plaintiff and defendant Motley, and the bank has simply promised to pay $5',000 upon the presentation to it of the certificate of deposit. The money has been deposited with the bank by defendant Motley and others, to be paid upon the return of the certificate, as stated. It is this $5,000 which has thus been deposited that plaintiff is entitled to recover under the terms of the contract. The judgment should therefore direct that the defendant Motley shall forthwith deliver to plaintiff a written order addressed to defendant Flannagan, directing him to deliver to plaintiff the certificate of deposit, and defendant Flannagan, upon receipt of such order, shall deliver the certificate to the plaintiff. The judgment must further direct that the defendant bank shall, upon the presentation and delivery of the certificate by the plaintiff, indorsed by him, pay to him the sum of $5,000. As neither Flannagan nor the bank has heretofore been in default, no costs should be imposed upon them. The defendants Motley and Macauley wrongfully refused to carry out their agreement, and they should pay interest on the $5,000 from the day demand was made upon them for an order directing the bank to pay the certificate of deposit to the plaintiff, and they should also pay the costs of this action. The judgment must be modified in accordance with the terms of the foregoing opinion, and, as modified, it should be affirmed, with costs as against defendants Motley and Macauley.

All concur, except Andrews, Ch. J., not sitting.

Judgment accordingly.


author: Yeoman, J.

text:
    Mary Ellison, Pl’ff, v. Anson C. Allen et al., Def’ts.

      (Supreme Court, Monroe Special Term,

      Filed October 10, 1894.)

    1. Municipal corporations—Park commissioners—Power.
    The park commissioners of the city of Rochester have no power arbitrarily to remove trees in the street.
    2. ’Same—Judicial question.
    The question as to whether the action of the commissioners encroaches upon private rights, is a judicial one.
    Motion to dissolve temporary injunction.

      A. J. Rodenbeclc, City Att’y, for motion ; Jacob Spahn, opposed.
   Yeoman, J.

The plaintiff owns real estate upon East Main street, in the city of Rochester, which extends to the middle of the street. There are on this street, between the sidewalk and 'curb, shade trees which have been growing there for twenty-five years and upwards. The common council of the defendant the city of Rochester is about to change its method of lighting that street by electricity, and this change necessitates setting new poles to support the lamps, which will hang much lower than those at present in use. The common council is, by the city charter, (§ 40, subd. 83), empowered to “provide for and regulate the lighting of streets and alleys and the protection and safety of public lamps.” It also has general charge of the streets of the city. Charter, §§ 168-216. Chapter 393 of the Laws of 1894 is as follows: “In addition to the powers hereinbefore"conferred, said park commissioners (of the city of Rochester) shall have the care, maintenance and control of all the public parks and public squares within the city of Rochester, and shall have the power to plant, set out, protect and preserve shade trees in the streets, parks, squares, avenues and alleys of the said city, and to cause such trees to be removed, pruned and trimmed whenever required for their protection, or for public convenience and comfort, and no person, corporation or any officer, department or agent of said city shall hereafter remove, trim, prune, cut down or in any way interfere with shade trees in the streets, parks, squares, avenues and alleys of said city, without first procuring a written consent from said park commissioners, or such officers or committee as may bo designated by them.”

These commissioners have taken action to remove said trees, in order that the light from those lamps may not be obstructed by them. This action is brought to restrain such removal, and the injunction in question restrains the same until judgment in the action. These trees are a part of the real estate, and are the property of the plaintiff. 1 Rev. St. 525, §§ 126, 127; Village of Lancaster v. Richardson, 4 Lans. 136; Highway Law, §§ 43, 44, 156 (Laws 1890, chap. 568.) But, like the soil, they are subject to the right which the public has to the use of this portion of the plaintiff’s real estate for street purposes. Smith v. Washington City, 20 How. 146. The legislature can give to the common council of the city of Rochester, or to the park commissioners, authority to act for the public in the exercise of this right. Dill. Mun. Corp. §§ 683, 656, note; Id. 680, and note. All the rights in this land which are vested in the public are superior to the plaintiff’s rights. There can be no question but that lighting the streets by electricity is a proper street use. Johnson v. Thomson-Houston Electric Co.. 54 Hun, 469; 28 St. Rep. 295; Witcher v. Holland Waterworks Co., 66 Hun, 619; 48 St. Rep. 196; Electric Construction Co. v. Heffernan, 34 St. Rep. 436; 12 N. Y. Supp. 336; Consumers’ Gas & Electric Light Co. v. Congress Spring Co., 61 Hun, 133; 39 St. Rep. 703. Consequently the plaintiff’s rights in the property are subject to the public right to do those things upon the street which are fairly necessary or expedient for that purpose. “ Whether the municipal corporation holds the fee of the street or not, the true doctrine is that the municipal authorities may, under the usual powers given to them, do all acts appropriate or incidental to the beneficial use of the street by the public, of which, when not done in an improper and negligent manner, the adjoining fee holder cannot complain." Dill. Munn. Corp. § 688. Upon the other hand, the agents of the public cannot arbitrarily do whatever they may choose between the street boundaries, to the prejudice of the owner. They cannot arbitrarily cut down those trees. The plaintiff is entitled to maintain them there, unless some proper street use requires their removal, or they are condemned for a public use, and paid for. State v. Mayor, etc., N. J. Sup. 28 Atl. 1039; Wellman v. Dickey, 78 Me. 29; 2 Atl. 133; Bills v. Belknap, 36 Iowa, 583; Everett v. City of Council Bluffs, 46 id. 66.

The question is therefore presented, does this proposed use of the street make the removal of these trees fairly necessary or expedient? And the further question, who is to determine this question? When the legislature, or any subordinate body to which it has delegated that power, determines that a street shall be put to a further public use, that decision is a legislative act, and cannot be interfered with by the courts, unless it encroaches upon private rights without giving compensation; and the same is true as to the manner in which it is provided the use shall be enjoyed or preparation for it be made. The body is “ in this respect endowed with legislative sovereignty. The exercise of that sovereignty has no limit, so long as it is within the objects and trusts for which the power is conferred. An ordinance regulating a street is a legislative act, entirely beyond the control of the judicial power of the state.” Milhau v. Sharp, 17 Barb. 438. It is said by Judge Comstock, in Davis v. Mayor, etc., 14 N. Y. 531: “We have nothing to do with the comparative advantages and disadvantages merely of the proposed change in the street. Those were considerations peculiarly addressed to the knowledge and judgment of the local goverment charged with the care of all tbe streets in the city. I should regard it as a usurpation by courts of power which does not belong to them, if they undertake to control the municipal authority in this respect.” Cooley, Const. Lim. 250-253; Macy v. City of Indianapolis, 17 Ind. 267; McCormack v. Patchen, 53 Mo. 33.

■ The question as to whether or not the action of the body .doés encroach upon private rights is a judicial one. It is, in this case, a question as to whether or not the defendants are attempting to take from the plaintiff more than the easement under which they claim covers; in other words, it is a question whetheror not the destruction of those trees is reasonably necessary or expedient for the proper enjoyment by the public of this system of lighting the streets. If the plaintiff’s claim is well founded, it is a proper subject for injunctive relief; the injury would be irreparable. Dill. Mun. Corp. § 663, note. The papers before me do not, in mj' judgment, establish that the destruction of these trees is so necessary or expedient as to give the municipal authorities the right to remove them. . In fact the papers furnish very little legitimate evidence upon that subject. They do not state facts from which a court can form an independent judgment, but consist mainly of expressions of opinions which are made at variance. It is therefore right that the injunction should stand until the facts can be fully investigated upon the trial. It is perhaps proper to assume, as 1 have done in the foregoing statement, that the authorities in charge of lighting the streets desire the removal of those trees as a part of their plan of operation. This does not, however, appear from the papers, excejit by inference, if at all. It would seem rather that the park commissioners had been put in motion by citizens residing in the vicinity of the trees in question.

The motion should be denied, with $10 costs.


text:
    Ida S. Harrison, Resp’t, v. Union Trust Company of New York et al., App’lts. Aaron R. Stevens et al., Resp’ts, v. Same, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)
    1. Judgment—Amendment.
    An order, amending a judgment of foreclosure after the sale but before its consummation, is not void.
    2. ' Mortgage—Foreclosure—Sale.
    A bondholder may sue to compel the mortgage trustee to execute a deed to the purchaser at the foreclosure sale.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.

      Miller, Peclcham & Dixon ( Wheeler H. Peclcham, of counsel), for app’lts; Campbell & Paige (K W. Paige, of counsel), for resp’t.
   Per Curiam.

The demurred admits the allegations- in the complaint that in the action brought by Aaron R. Stevens against James C. Hall and others, in which defendant the Union Trust Company of New York, the mortgagee in the mortgage sought to be foreclosed, was a party defendant, judgment was entered on November 10, 1891, and the order for the amendment thereof on April 5, 1892 ; that a copy of said judgment and order for the amendment were served on the trust company on May 20, 1892, after the foreclosure sale, but before the consummation thereof; that the trust company had refused to obey the direction contained in the amended judgment, unless upon payment of $5,000. Until the sale, was consummated, and the order confirming it entered, the Stevens action was pending before the court; and we are of the opinion that any order made by such court for an amendment of the judgment, although erroneous and improperly granted, cannot, in this action, be treated as void. It was an order made in an action in which defendant was a party. The court had jurisdiction of the parties and the subject-matter of the action. Tf the order in question was erroneous, the remedy of the trust company was by motion to vacate it. Stannard v. Hubbell, 123 N. Y. 520, 526, 527; 34 St. Rep. 413; Audubon v. Excelsior Ins. Co., 27 N. Y. 221. Having acquiesced in the judgment as amended, it is not for the trust company, in this action, to claim thfit such amended judgment is void. We are not prepared to hold that the order in question was improperly or erroneously granted, if we could properly consider that question in this action. See Union Trust Co. v. Olmsted, 102 N. Y. 729; 2 St. Rep. 506; Muller v. Dows, 94 U. S. 444, 449, 450. But, as above suggested, the order of the supreme court in the Stevens action for the amendment of the judgment should not be reviewed in this action. Therefore, when this action was commenced, a judgment in an action in the supreme court, in which the Union Trust Company of New York was a party, for the foreclosure of the mortgage in question, .required the trust company to execute a conveyance to the purchaser at the mortgage sale. It has refused to do so. Hence it is plain that the trust has not been fully executed, and also that the declination of the trust company to obey the order of the court to execute a conveyance affords a ground for its removal as trustee; at least a court on trial may deem such refusal of defendant to execute a deed, in connection with other facts stated, in the complaint, sufficient to justify s,uch a removal.

We are also of the opinion that plaintiff, as owner of the bonds secured by the mortgage sought to be foreclosed in the Stevens action, and entitled to her pro rata part of the proceeds thereof, had a sufficient interest to maintain the action. She is interested in having the sale consummated. In fact the bondholders secured by the mortgage in question are the only persons interested. The purchaser at the mortgage sale, although, perhaps, a proper, was not a necessary, party; and, as no objection was made in the demurrer to the complaint on the ground of a defect of parties, the omission of such purchaser as a party defendant does not prevent the maintenance of the action.

Without considering other questions involved, we think the judgment in the case should be affirmed, with costs. The appellant desiring to submit the question involved to the court of appeals, the certificate provided for by subdivision 4, § 190, of the Code of Civil Procedure, will be granted. The same disposition should be made of the similar case of Aaron R. Stevens and Andrew A. Douglass v. The Union Trust Company of New York and others.

All concur.


author: Herrick, J.

text:
    Citizens’ National Bank of Saratoga Springs, Resp’t, v. Charles H. Hodges et al., App’lts. John P. B. Haberlin, Resp’t, v. Edward A. Hodges et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

    1. Pleadings—Complaint.—Fraudulent conveyances.
    An averment that an execution against defendant was issued to the county of his residence and returned unsatisfied, is sufficient without a specific statement that the execution was against his property.
    2. Same.
    Nor need the complaint allege that plaintiffs were remediless because defendants had disposed of all their property.
    3. Same.
    The complaint, in this case, was held to state a cause of action to set aside a conveyance as fraudulent.
    Appeal from an interlocutory judgment, overruling demurrers to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

      J. W Grane, for app’lts; J). K. Wing, for resp’ts.
   Herrick, J.

It seems to me that the case of Kain v. Larkin, 141 N. Y.144; 56 St. Rep. 675, disposes of these cases. That case has been twice to the court of appeals, and the complaint therein been subjected to the keenest scrutiny; and, if that complaint is sufficient, it seems to me that those in the cases now before us must be. The complaints in these cases are much more full and complete in their allegations than was the complaint in the case of Kain v. Larkin. Both allege the ownership and possession of property by some of the defendants, and that, while so owning and in possession of such property, they became indebted to the plaintiffs; that the plaintiffs recovered judgments against them; that executions were issued upon such judgments, and returned wholly unsatisfied and unpaid ; • and that the judgments remain wholly unpaid and unsatisfied. They allege that, after contracting such several debts, the defendants conveyed away their property to others of the'defendants; that upon one piece of property a mortgage was given; and allege that the several deeds a,nd mortgages and assignments of mortgages were, and each of them was, made, given, and executed without any actual consideration, or for a fictitious consideration, and with the intent on the part of the persons so conveying and mortgaging to hinder, delay, and defraud creditors, and with the intent to secrete and dispose of such property. It also sets forth the execution of a general assignment for the benefit of creditors, and alleges that such assignment was made with the intent to hinder, delay, and defraud the defendants’ creditors, and with the intent and purpose of subsequently acquiring title to such assigned property for much less than its full value; that is, nominally in the name of some other person, but really and actually for the benefit of the defendants, through a sale by the assignee. After making the specific allegations of the transfer and mortgage of the real estate, the complaints allege that the debtor defendants, with the like fraudulent intent and purpose, have transferred and disposed of all their personal property, and property of every kind subject to levy and sale under execution, so that neither of them has any property, or the title thereto, out of which plaintiffs’ said judgments and executions against them can be satisfied; and allege that, unless defendants’ said property, can be reached to compel the payment of such judgments, the same must remain unpaid, and the plaintiffs will be wholly remediless. These allegations, it seems to me, are sufficient. In the case of Kain v. Larkin the court said: “ The complaint in this case clearly avers the recovery of a judgment by the plaintiff against one of the defendants, and the return of an execution issued thereon unsatisfied; that the jndgment is still due ; that alter the cause of action accrued the defendant transferred his property which would be subject to the lien of an execution to his wife, daughter, and brother, by instruments particularly described; and that by the death of the wife, and through a satisfaction of the mortgage on the real estate by the brother, and a deed to her by the plaintiff, all this property has become vested in an dis now held by the daughter, who lias been made a defendant, and has answered the complaint. The complaint then avers that the deed, mortgage, and transfer of money in bank to defendant’s credit to his wife, daughter, and brother were made without consideration, and with the intent to hinder, delay, and defraud the plaintiff of her claim.”

It will be seen from this resume of the complaint in that case by the court that, as I have before stated, such complaint was much more meager than the ones we have now under consideration. It is claimed that there is no allegation in the complaint in the first entitled action that the plaintiff has exhausted its remedy by execution; that there is no allegation that an execution has been issued against the property of the defendants; that the complaint does not show what kind of an execution was issued; and it is claimed that it should appear from the complaint that an execution has been issued against the defendants’ property. After setting forth the recovery of several judgments entered and docketed in the Saratoga county clerk’s office, the complaint then states: “ That thereafter, and on the same day, an-execution upon each of said judgments was duly issued to the sheriff of said Sara-toga county, where said defendants then resided and vet reside, which executions were thereafter, and before the cpmmencement of this action,- duly returned by said sheriff unsatisfied, and said judgments still remain wholly unpaid and unsatisfied.”

Under such an allegation it seems to me that evidence can be given showing both the kind of an execution issued and against whom it was issued,—whether against one or all of the defendants. An inspection of the record in the case of Kain v. Larkin shows that the complaint sets forth the issuing of an execution in that case, in the following language: “An execution on said judgment was duly issued and delivered to the sheriff of. the county of Ulster, where Patrick Larkin resided and yet resides, and that the said sheriff has duly returned said execution wholly unsatisfied, and the said judgment remains wholly unpaid.”

It will be seen that the language is very similar to'that used in the complaint in this case, and that it does not allege the issuing of an execution against property.

Another criticism of the complaints now before us is that they do not show that the defendants have transferred all their property, so that they are wholly without means of satisfying the plaintiffs’ judgments. An inspection of the complaint in the case of Kain v. Larkin shows that there is no such allegation in that case, whereas in these cases we have now under consideration there is the following allegation: “That said defendants, Hodges and Trim have with the like fraudulent intent and purpose transferred, delivered, and disposed of all their personal property, and property of every’kind subject to levy and sale under execution, so that neither of them has any property, or the title thereto, out of which plaintiffs’ said judgments and executions against them can be satisfied.”

The other defendants being the assignees and grantees named in the several instruments by which Hodges and Trim disposed of their property, it seenis to me that the allegation is sufficiently broad to admit proof under it showing that they had disposed of all their property, and necessarily shows that the plaintiffs would be prevented by any ordinary process of law from recovering their claims against them. But under the case of Kain v. Larlcin it 'does not seem necessary to allege that the plaintiffs are remediless because the defendants have disposed of all their property: “A fraudulent intent on the part of the grantor and grantee is averred. The evidence necessary to support these allegations of a fraudulent intent may be, and usually is, made up of many different ifacts and circumstances; but it is not necessary to insert them in a pleading, and it is generally improper to do so. The pecuniary condition of the defendant at the time, the extent of his property, the part transferred and that retained, as well as the nature and extent of the plaintiff’s claim, which subsequently ripened into a judgment, were all facts bearing on the general allegation of fraud. The plaintiff could prove all these facts and circumstances under her complaint. The general allegation that a conveyance or transfer of property was made with the intent to hinder, delay, and defraud creditors is broad and sweeping in its operations and affect. It involves many elements, and may, before it can be deemed established, require proof of many other facts and circumstances, which may be given in evidence under the general charge, without inserting them in the pleading.”

The judgment appealed from should be affirmed, with costs.

All concur.


text:
    Helen Matthews, App’lt, v. Horace Matthews, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

    Trial—Dismissal of complaint.
    A complaint will not be dismissed if sufficient to sustain a recovery for a part of the relief demanded.
    Appeal from a judgment in favor of defendant.

      McLaughlin & JRowe, for app’lt; A. W. Boynton, for resp’t.
   Per Curiam.

The former judgment obtained in this action by the plaintiff was reversed by the court of appeals (133 N. Y. 679; 45 St. Rep. 842,) on the ground that the complaint did not set forth an equitable cause of action, and the evidence produced on the trial did not show that the plaintiff should be awarded a judgment for a specific performance. That court held that the cause of action alleged in the complaint was a legal one,—not for a specific performance,—and hence the allowance to the plaintiff of the value of the property agreed to be conveyed by the defendant as damages was erroneous. But in the opinion of Judge Finch he states that the plaintiff was entitled to recover the value of her services, when the defendant asserted the invalidity of the parol contract; and, possibly, in her own right,'and as assignee of her husband, she might be entitled to recover other damages. On the last trial the court below decided that plaintiff could' not recover for her services, because of the want of appropriate allegations in the complaint. While it is true that, unless the com-' plaint shall be amended, the plaintiff cannot recover the greater part of the damages she may be entitled to, yet we think that under the allegations set forth therein she was entitled to a judgment for a small sum for her services and the services of her husband. The first cause' of action in the complaint states the facts of the transaction between plaintiff, her husband, and defendant, and alleges “that, after taking possession of said real estate, and while in the occupation thereof, as hereinbefore stated, this plaintiff and the said Henry Matthews made valuable and permanent improvements upon the same, to their cost and expense of $100.” At the end of the complaint the plaintiff demands judgment against the defendant for the sum of $2,500. "We are unable to see why, under the allegations so contained in the first count of the complaint, plaintiff was not entitled to recover for the improvements put on the defendant’s place by her and' her husband while in occupation thereof under the parol contract There was evidence showing the amount of labor performed by plaintiff and her husband in making said improvements, and the value thereof, which does not appear to have been contradicted. The allegations in the complaint we think sufficient to allow plaintiff to recover for the value .of the labor in making improvements as proved on the trial, or at least plaintiff was entitled to a finding of the trial judge in that regard. The evidence also seems to show the conversion by defendant of certain crops belonging to the plaintiff, as alleged in the third cause of action stated in the complaint. We think, therefore, that the learned trial judge inadvertently overlooked the fact that, under the pleadings aud evidence given on the trial, plaintiff was entitled to recover a small sum for services in making'repairs which were set forth in the complaint and for crops converted by the defendant, and that hence the judgment should be reversed, and a new trial granted.

The court of appeals haying held that the cause of-action set out in the complaint is not equitable, or one for a specific- performance, and that the facts proved did not entitle plaintiff to that relief, shé should be entitled to recover the value of services and board of defendant, and for labor performed and expenses incurred in pursuance of the verbal contract, less the value of the use of the premises. Stanton v. Miller, 14 Hun, 383; 79 N. Y. 620. Under the allegations contained in the complaint, however, unless amended, plaintiff will probably be unable to recover the greater part of such damages as she may actually have, sustained. . But, as above suggested, we think she was, under the pleadings and proofs, entitled to recover a small sum,—the value of services in making permanent improvements .arid óf crops converted by defendant. Judgment reversed, and a new trial granted; costs to abide the event.