author: Earl, Ch. J.

text:
    James Kent et al., Resp’ts, v. The Church of St. Michael, App’lt.

      (Court of Appeals,

      Filed November 29, 1892.)

    Vendor and purchaser—Title—Lost deed.
    Plaintiffs as executors of K. contracted in writing with defendant to convey good title to certain real estate, of which their testator had lost the deed, although he had paid for the same and been in possession for several years. The deed had been originally given by S., since deceased, and the plaintiffs brought an action against the trustees under the will of S., her three children and only heirs, and her grandchildren who were infants, and who took vested remainders in their parents’ share, liable to open and let in those after born, and asked that a good and sufficient deed be made of said premises, for which judgment was rendered, and the adults in their own names and the infant defendants by special guardian, executed such deed. Held, that this constituted a good and sufficient title, as tlie judgment was in a proper action and proper in form and would bind the after born grandchildren, if any, of S.
    Appeal from judgment of the supreme court; general term, second department, affirming judgment decreeing specific performance of a contract for the sale of land.

      John J. Delany, for app’lt; Everett Greene, for resp’ts.

       Affirming 44 St. Rep., 936.

   Earl, Ch. J.

The plaintiffs are. executors under the will of James Kent, deceased. The testator devised all his property to his executors as trustees, in trust to pay the net income thereof to his wife during her life, and he authorized and empowered them to sell any of his real estate. It is not questioned that a valid trust was thus created ; that the legal title to the real estate devised was vested in the trustees, and that they had a valid power of sale. _ In April, 1890, in the exercise of the power of sale, they entered into a written contract with the defendant by which they agreeE to convey to it certain real estate, of which they claimed their testator was seized at the time of his death, and they agreed to execute to it an executor’s deed on the second day of June thereafter, “ containing the usual covenants, and assuring to them the fee simple of the said premises free from all encumbrances.” At the time and place named in the contract it was ascertained that the testator had no record title to one-half of = the land contracted to be sold, and no deed to him for that half could be found. The defendant, therefore, refused to take a deed of that half of the land, but took a deed of the other half and paid therefor; and then another written contract was made between the parties, by which the plaintiffs, for the consideration named, should, within six months thereafter, convey to the defendant an indefeasible title, to the one-half of the land mentioned. The plaintiffs’ testator had in fact purchased that half of Helen L. E. Stewart and paid for it, and taken a deed* thereof which had not been recorded, and was lost. She had died, leaving a will in which she devised to trustees all her real estate, to be by them divided into three equal parts, directing them to pay the income of one part to each of her three children during the -lives of her children respectively, and after the death of any child, to pay over and “ divide the said share to and among his or her children then surviving, and the lawful issue-of any such child or children who may have died leaving issue, in equal proportions, per stirpes.”

After the -making of the second contract the plaintiffs commenced -an action in which they made defendants the trustees under the will of Mrs. Stewart, her three children and only heirs, and also her grandchildren, who were infants, alleging in their complaint that in October, 1877, Mrs. Stewart conveyed the land in question to James Kent by deed properly acknowledged; that at that tirtíe Kent paid to her substantially all the purchase price'and went into the possession of the land and remained in possession until November, 1886, when he died seized and possessed of the land in, fee simple absolute. They then alleged the will of James Kent; the death of Mrs. Stewart and her will; the contract of sale with the defendant and the loss of the deed from Mrs. Stewart unrecorded, and the fact that it could not be found after diligent search; their belief that it had been lost; that they and their testator had been in possession of the land for twelve years, claiming the same absolutely in fee, and that owing to the loss of the deed there is a cloud on the title to the land, and that thus the defendants have on,the record an unjust claim to the same, and they prayed judgment-that the defendants in that action execute and deliver to them a good and sufficient deed so as to vest and confirm the title to the land absolutely in them as the representatives of the estate of Kent, and for such other and further relief as the court should deem proper.

The defendants were all adults but the grandchildren, and for them a special guardian was appointed. The adults answered the complaint admitting the allegations thereof, and the infants, by their guardian, answered the complaint by putting in issue the allegations thereof, The action was brought to trial, and the facts alleged in the complaint were established and found, and judgment was given to the plaintiffs pursuant to the prayer of the complaint. In compliance with the judgment, the adult defendants, in their own names, and the infant defendants by their special guardian, executed a deed of the land to these plaintiffs and all the devisees and heirs at law of James Kent, deceased. The parties of the second part in that deed then united in executing a deed of the land to the defendant, and it refused to accept the same when tendered to it by the plaintiffs, on the ground that the title tendered was still defective.

Under the will of Mrs. Stewart her grandchildren took vested remainders in the shares of their parents, liable, however, to open and let in after born grandchildren. Thus the trustees, children and living grandchildren represented the entire estate' of Mrs. Stewart, subject, however, to the contingency that there might be after born grandchildren, and it was upon this contingency that the defendant based its objection to the title-tendered to it, the claim being that after born grandchildren would not be concluded by the judgment which had been rendered, and that their rights would not be affected by the deed given in pursuance of that judgment. The sole question for' our determination is whether that claim is well founded.

There is do doubt that if the defendants in the action brought by these plaintiffs against Mrs. Stewart’s executors, children and grandchildren, represented the whole title to her real estate, then the action was proper, and the conveyance given in pursuance of the judgment would carry a good title to the defendant. The deed from Mrs. Stewart by some accident had been lost after James Kent had paid for the land, and had been in possession of the same for many years, claiming title thereto, and on account of the loss his executors could not make a good record title to the land in pursuance of their contract with the defendant. Under such circumstances there can be no question that a court of equity had power and jurisdiction to relieve the persons who represented the grantee, and who in fact had title to this land, from the dilemma in which they were placed by the loss of the deed, by compelling Mrs. Stewart, if living, and after her death those who represented her title, to execute another deed. A purchaser under a valid contract of purchase, who has-performed the contract on his part, and is entitled to a deed from his vendor, can compel specific performance of his contract-by the delivery of the deed to him in pursuance thereof, and that-can be done in the exercise of the jurisdiction of a court of equity to compel the specific performance of contracts. But where the-contract hás been performed, and. the deed given, which the purchaser by some accident or misfortune has lost, so that he has no record title to the land which was conveyed to him, it is well settled that a court of equity will compel the vendor to execute another deed'so as to clothe the purchaser with the record title; and an action for that purpose is not dependent upon any provisions of the Code contained lu'§§ 1688, 1650 and 2345, to which our attention has been called. It has its sanction in the general jurisdiction of a court of equity.

Under such circumstances it would be inequitable for the vendor to retain the record title and to refuse to execute a new deed, and the purchaser can be relieved only by the execution of a new deed. Sugden on.Vendors, chap. 2, § 4, subd. 15 ; Adams Equity, 166, 337 ; Willard’s Eq., 52, 301; Cummings v. Coe, 10 Cal., 529. Therefore the judgment against the trustees and heirs of Mrs. Stewart was in a proper action and proper in form, and the question is whether it will bind the after born grandchildren, if any, of Mrs. Stewart. We think it will.

The trustees, children and grandchildren of Mrs. Stewart could not cut off or affect the title in the land of unborn grandchildren by any conveyance in pais. R. S., part 2, chap. 1, tit. 2, ai;t. 1, § 14. By such a conveyance they could convey no greater title than they had. The effect of such a conveyance was under consideration in Kilpatrick v. Barron, 125 N. Y., 751; 36 St. Rep., 15, and Harris v. Strodl, 132 N. Y., 392 ; 44 St. Rep., 433.

If the title to this land had actually been devolved under the will of Mrs. Stewart and an action was brought' to partition it, or to foreclose a mortgage upon it, or in some other way to change or extinguish the title, it would be the duty of the court to protect the rights of unborn grandchildren by setting apart land or the proceeds of the land to represent in some form their interests. Cheesman v. Thorne, 1 Ed. Ch., 629 ; Mead, v. Mitchell, 17 N. Y., 210; Brenoort v. Grace, 53 id., 245; Monarque v. Monarque, 80 id., 320.

Where an estate is vested in persons living, subject only to the contingency that persons may be born who will have an interest therein, the living, owners of the estate for all purposes of any litigation in reference thereto, and affecting the jurisdiction of the courts to deal with the same, represent the whole estate, and stand not only for themselves, but also for the persons unborn. This is a rule of convenience, and almost of necessity. The rights of persons unborn are sufficiently cared for if when the estate shall be sold under a regular and valid judgment, its proceeds take its place ahd, are secured in some way for such persons. Calvin on Parties, 48; Mitford’s Pleadings, 173 ; 2 Spenc. Eq. Jur., 707: 1 Smith’s Ch., 92; Story’s Eq. PL, §§ 144, 148; Wills v. Slade, 6 Ves., 498; Gaskell v. Gaskell, 6 Sim., 643; Nodine v. Greenfield, 7 Paige, 544.

But here this land did not pass under the will of Mrs. Stewart. All that these plaintiffs asked in their suit against the trustees, children and grand-children of Mrs. Stewart,-was a judgment confirming the title to the land which she had conveyed to Mr. Kent. The living parties defendant in that action were all opposed in interest to the plaintiffs, and the grand-children belonged to and represented the class to which the unborn persons would belong. In such a case it is safe to permit the living to represent the unborn, and the unborn must be bound by the judgment confirming the title. There is no occasion for the court to make provision in the judgment for the persons not in esse, as they, by the adjudication of the court, never could have any interest in the land. The general rule that no person shall be bound by an adjudication in an action to which he is in no way a party has some exceptions, and does not inexorably apply to a case where at the time of the adjudication persons are not in esse who may be affected thereby. In Monarque v. Monarque, the parties had a vested title to the land sought to be partitioned, subject, however, to open and let in after born children. But no notice was taken of such after born children in the judgment, and no provision whatever was-made for them, and hence it was decided that sc good title could not be given to a purchaser under the sale made in pursuance of the judgment.- r It was held, in harmony with what I have herein stated that a judgment and sale in partition only concludes contingent interests of persons not in being when the judgment provides for and protects such interests by substituting the fund derived from the sale of the land in place of it and preserving the fund to the extent necessary to satisfy such interests. In that case there had been an action for the construction of the will by whidh the land was devolved, and to that action all the persons living who were interested were made parties, and -it was there decided that the provisions of the will giving interests to persons unborn were involved, and it was held in this court that that adjudication could not conclude or affect the persons not in esse for the reason thtit- the action was not a proper one for the construction of the will; that tjie court took jurisdiction of the action only by consent, and that, Therefore, its adjudication bound only those who consented, and could not bind persons not in being.

That case did not determine that in a proper action for the construction of a will persons not in esse could in no case be concluded by the judgment rendered therein. That they could be concluded I have no doubt if the parties to the action properly brought were vested with the whole title, subject merely to the contingency that it might open and let in persons thereafter to be born.

The adjudication in such a case, as well as that in the case brought by these plaintiffs .against the trustees, children and grand-children of Mrs. Stewart, is in the nature of an adjudication in rem and binds everybody.

Therefore the title tendered to the defendant was good and so free from any reasonable doubt that it should be compelled to perform its contract and take the title.

It is also objected on behalf of the defendant, that the plaintiffs were not ready and able to give a proper deed to it at the time stipulated in the second contract, to wit: within six months from the date of that contract. After the making of that contract, as the learned court found, the parties made a verbal agreement by which the defendant was to take possession of the land, and use, occupy and enjoy the same until such time as the record title of the plaintiffs could be perfected, paying as rent therefor interest at the rate of five per cent on the purchase price. Under that agreement the defendant took possession of the land and has continued in possession thereof, never having offered to surrender the same. These facts found by the trial court have support in the evidence, and we must take them as established and true, and they constitute in law a waiver of performance of the contract on plaintiffs’ part at the time stipulated. The defendant could not retain- possession of the land under the agreement and at the same time repudiate the agreement and refuse to take a deed tendered in pursuance thereof.

Our conclusion is that the judgment should be affirmed, with costs.

All concur, except Andrews, J., absent.


source: Caselaw Access Project

license: Public Domain

text:
    Jane C. Mack, Adm’rx, App’lt, v. John Colleran, Impl’d, Resp’t.

      (Court of Appeals,

      Filed November 29, 1892.)

    1. Mechanics’ lien—Payment.
    Defendant agreed to erect a block of buildings for K. for the aggregate price of $38,000, payable in stipulated instalments. Defendant subcontracted tlie work to A., who became liable to Mack for $1,317 worth of materials, of which A. paid him $114 and defendant paid him $500, leaving due $603 for whicn Mack filed a lien. A. had so far performed his contract that $5,000 would complete it and had actually earned $19,000 more than he had been paid, when defendant under the power reserved in the contract took the work away from A. and completed it himself so that a large sum became due to A. Held, that as there were no liens against the property at the time A. paid Mack $500, the latter violated no rights or equities in receiving it to apply upon an antecedent debt.
    2., Same. -
    Material men and workmen have no lien or equity in money due or paid under a building contract until they have filed their liens pursuant to the lien law.
    Appeal from judgment of the New York common pleas, general term, reversing judgment of general term of the city -court affirming judgment of trial term without a jury.

      Phillips & Avery and Frank M. Avery, for app’lt; William F. Pandel, for resp’t.

       Reversing 44 St. Rep., 636.

   Earl, Ch. J.

On the 12th day of December, 1889, the defendant Colleran agreed in writing "with Constantine Y. King to erect for, him upon his lots in the city of New York two buildings for the aggregate price of $38,000, to be paid to him by King in certain instalments as stipulated in the agreement. Among the stipulations in the agreement was the one usual in such agreements, that if the contractor should at any time refuse or neglect to supply a sufficiency of materials or workmen, the owner should have the power to provide materials and workmen to finish the buildings, the expense to be deducted from the contract price. Subsequently Oolleran sub-contracted the erection and completion of the buildings to the defendant Andrews, and he entered upon the execution of his contract. He procured of Mack certain materials used upon the buildings for which he became liable to pay him 01,217. Upon the sum Andrews paid him $114, and the defendant paid him $500, and there remained a balance due him of 0603. For this balance he filed a lien upon the buildings under the lien law applicable to the city of Hew York, and this action commenced in the. city court of Hew York is to enforce that lien, Oolleran, having given his bond under the law in lieu of the lien, is the only party defending the action. At the trial term judgment was given for the plaintiff. That judgment was affirmed upon defendant’s appeal to the general term of that court He then appealed to the general term of the Hew York common pleas, where the judgment was reversed anda new trial granted. The plaintiff then appealed to this'court.

As the order appealed from does not state that the judgment was reversed upon the facts, we must here assume that it was reversed for errors of law only, and questions of law only can be considered here. Code, § 1338.

The defendant assails the judgment upon several grounds. (1). He says that the plaintiff did not perform his contract with Andrews. As to this the trial judge found against him upon sufficient evidence.

(2) He claims that Andrews did not perform his contract with, the defendant. But, as the trial judge found upon sufficient evidence, after Andrews had so far performed his contract that $5,000 would carry it to completion, and he had actually earned $19,000 more than he had been paid, the defendant took the contract from him and undertook under the power reserved therein to perform the same and did perform the same, so that a large sum of money became due to Andrews. As to the performance of the contract and the money due to Andrews, the findings of the trial judge upon sufficient evidence are against the contention of the defendant, and the plaintiff’s lien attached to the money which thus became due to Andrews. Van Clief v. Van Vechten, 130 N. Y., 571: 42 St. Rep., 736.

(3) The final contention of the defendant is that Andrews paid Mack while he was engaged in furnishing the materials $500, and that all but $114 of that sum was applied upon a prior debt due from Andrews to him. His claim is that the money paid to Andrews upon his contract could not be devoted by him to the pay-

' ment of his debt to Mack which had no relation whatever to his contract. The court below sustained this claim and upon this ground, as appears from its opinion, reversed the judgment. As we have said, we must presume that the judgment was reversed for error of law, and hence we must be able to see in the record that as to this claim there was a question of law before that court. . But we look in vain for any such question in the record. There are no findings of fact or of law, and no requests for findings and no exceptions which present it, and without findings or requests to find, or exceptions the question of law is not before an appellate court for consideration.

But if we assume that the question of law is properly presented we are entirely clear that the court below fell into error in reference thereto. At the time of the payment of the $500 by Andrews to Mack there were no liens filed against the property and he had a perfect right to apply any part of that sum to the payment of the prior debt. When the money came into his hands it belonged to him absolutely and he could do with it what he pleased, and Mack violated the right or equities of no one in receiving it to apply upon his antecedent debt.

It is well settled that material men and workmen have no lien upon or equity in money due or paid under a building contract until they have filed their liens pursuant to the lien law. It would lead to great embarrassment, uncertainty and inconvenience if a person receiving money from a builder would have to ascertain whether he obtained it under a building contract before he could safely take it for property sold or apply it upon an antecedent debt justly due. The authorities in this court are against the defendant’s contention. Payne v. Wilson ( 74 N. Y., 348 ; McCorkle v. Herrman, 117 id., 297 ; 27 St. Rep., 333; Stevens v. Ogden, 130 N. Y., 182; 41 St Rep., 331.

Besides, in this case the evidence and the findings of the trial judge show that there was money enough earned by Andrews which became payable to him under his contract to satisfy Mack’s lien as well as all the other liens against the property. At least it does not appear that the defendant or any one else was harmed by the application of the money upon the prior debt of Mack, and thus no one’s equities were thereby violated.

We, therefore, conclude that the order appealed from should be reversed, and the judgment of the city court affirmed, with costs in this court and the court below.

All concur.


author: Andrews, J.

text:
    Louisa P. Chard et al., Adm’rs, Resp’ts, v. Horatio N. Holt et al., App’lts.

      (Court of Appeals,

      Filed November 29, 1892.)

    Taxes—Notice to redeem—Estoppel—Laws 1879, chap. 229.
    Certain land in Chautauqua county upon which plaintiffs held a morf gage was sold for taxes of two different years, in 1885 and 1887, and the purchaser thereat conveyed his rights therein to defendant; within two years from the last sale ; plaintiffs filed notice that they were entitled tobe served with any notices required by law of the purchaser, and especially by the purchaser at the last mentioned sale. Defendant then served notice on them to redeem from the last sale; whereupon they paid the amount thereof to the county treasurer, and defendant received and retained the same. Held, that the lien of the mortgage was extinguished by the_ omission of the mortgagees ■ to redeem from the tax sale of 1885 within two years thereafter, and to file with the county treasurer within that time the notice specified in § 82 of chap. 427 of the Laws of 1855.
    Appeal from order of the supreme court, general term, fifth department, reversing judgment in. favor of dfefendants entered on the decision of the court at circuit in an action of ejectment tried, by consent, without a jury.

      Seward A, Simons, for app’lts; Thomas J. McKee, for resp’ts.

       Reversing 45 St. Rep., 52.

   Andrews, J.

The validity of the tax title of the defendant, Horatio 3ST. Holt, under the tax sale of October 27, 1885, for taxes assessed in 1884, on the premises in question (then owned by Amelia Holt) and under the deed from the county treasurer of Chautauqua county to Wilson, the purchaser (and grantor of Horatio J5T. Holt), executed pursuant to said sale October 28, 1887, and the nature and quality of the estate vested in Wilson under the deed, depends upon and is to be determined by the provisions of the act, chapter 229, of the Laws of 1879, entitled an “ Act in reference to the collection of taxes in the counties of Chautauqua and Cattaraugus.” That act establishes a complete system for the collection of taxes on resident and non-resident lands in the counties named therein.

The act, in addition to numerous specific provisions relating to the subject, by the 32d section incorporates by reference the provisions of the general law of the state relating to the assessment and collection of taxes, where no provision on the subject is made in the act, and among others, those relating “ to the effect of any such sale of land for taxes upon the lien of any mortgage thereon, the right of a mortgagee to redeem, the consequence of neglect to do so after notice, the lien of the mortgagee for the amount paid on such redemption.”

The main purpose of the act of 1879, referred to, was to eliminate the agency of the comptroller of the state in respect to the sale and conveyance of lands for unpaid taxes, and to substitute county agencies and make their authority complete and uniform in effecting and enforcing the collection of taxes in the counties mentioned. It therefore provides that any duty enjoined or any authority conferred on the comptroller by the general tax laws in respect to the collection of taxes and the sale of lands therefor shall be devolved, in respect to taxes in the counties of Cattaraugus and Chautauqua, upon the treasurers of these counties respectively, and that when any notice or other papers relating to taxes or tax sales, or proof of the service thereof, are by such general laws required or allowed to be filed in the comptroller’s office, they, may be filed with like effect in the offices of the treasurers of these counties. Section 82.

Upon the evidence, admissions and findings in the case, there seems to be no ground to question the regularity of the assess- ' merit of the tax of 1884, or the sale of October 27, 1885, and of the deed to Wilson of October 28, 1887, nor that the deed was duly and properly recorded May 14, 1888. By stipulation made on the trial it was admitted that the lands were' duly sold by the treasurer for the taxes of 1884, in compliance in all respects with the law of 1879 ; that the deed was executed to Wilson in compliance with the law, October 28, 1887, and was recorded May 14, 1888; that after the execution and delivery of the deed all acts and things required to be done or performed by Wilson and the treasurer, and each of them, in order to entitle the deed to he recorded, had been done and performed, including the making by 4he treasurer of the certificate prescribed by § 23 of the act of 1879, to the effect that the notice required to be served on occupants under § 20, had been served, and that there had been no redemption from the_sale.

Upon the facts so stipulated and under the statute it is indisputable that on the 14th of May, 1887, the day on which the deed to Wilson was recorded, he became vested as against Amelia Holt, the former owner of the premises, with an absolute title thereto, .and that she was thereby barred from any interest therein.

By the 13th section of the act of 1879, the owner or occupant of the land sold for taxes may redeem from the sale at any time within two years from the last day of sale. By the 14th section if no redemption is made within the two years, the treasurer is •to execute a deed to the purchaser. The deed was executed after that time, which by the 15th section is made presumptive evidence of the regularity of the sale, and of all prior proceedings from and including the assesment, and that all notices required by law to be given previous to the expiration of the two years were regular. But where the premises sold are occupied at the •expiration of the two years, the- right of redemption still remains, notwithstanding the execution of the deed, and can be only cut off by notice served by the grantee on the occupant, requiring him to redeem, and the occupant has six months to make such redemption after the grantee shall have filed in the office of the treasurer proof of service of the notice. § 20. By the same section, 20, it is provided that the tax deed shall not be recorded until ..after the expiration of the six months so allowed for redemption.

Reading these provisions of the statute in connection with the stipulation, the conclusion that Wilson on the recording of his deed aéquired an absolute title as against Amelia Holt does not admit of question. Wilson, the grantee, under the tax deed of -October 28, 1887, on the 14th of May, 1888, (the same day on which the deed was recorded) conveyed the premises to the defendant, Horatio N. Holt, who from that time has by himself .and his tenants been in exclusive possession of the same, “ claiming to ■own and hold the same under and by virtue of said deed from Wilson,” and was so in possession when this action was commenced by the plaintiffs to recover the possession of the premises. The plaintiffs claim title under a mortgage on the premises executed to the testator by Amelia Holt in June, 1872, duly recorded June 10, 1872, to secure a debt owing by her husband, Oeorge W. Holt, and others of $15,000, and under a judgment of foreclosure and sale in an action commenced for the foreclosure of the mortgage December 5, 1885. The mortgagor, Amelia Holt, and the representatives of Ohárlés and Elisha Ensign, who with George W. Holt bad joined in the bond accompanying the mortgage, were the only defendants in the action. Judgment of foreclosure was entered' August 29, 1889, and the premises were sold therein February 21, 1890, and conveyed to the plaintiffs, the purchasers on the sale.

This action was commenced in November, 1890. It will be convenient to consider in the first place the effect of the judgment of foreclosure and the sale and conveyance thereunder to the plaintiffs upon the title acquired by Wilson under the tax deed of October 28, 1887. It is obvious upon principle that the judgment in the foreclosure action was not an adjudication binding upon Wilson or his grantees, and that a sale thereunder, and the conveyance pursuant to the sale, did not operate to divest or impair the tax title. They were not made parties to the action. The, foreclosure was not instituted until after the tax sale of October 27, 1885. The tax of 1884, although subsequent in time to the execution of the mortgage, was, nevertheless, a paramount lien. The mere sale for the tax did, not, however, divest the lien of the mortgage. Whether the lien of the mortgage survived the execution of the tax deed, we shall hereafter consider. But as to Wilson and his grantee Holt, the most favorable view for the plaintiffs of their rights after judgment of foreclosure and the conveyance thereunder, is that the mortgage still remained a lien on the land and carried with it a right of redemption from the tax sale. But the grantee under the tax deed was in no way affected by the foreclosure proceedings to which he had not been made a party. The case of Becker v. Howard, 66 N. Y., 5, expressly adjudicated this principle, and the decision is plainly right.

It is not claimed that the plaintiffs ever redeemed from the tax sale of 1885, so that, even if the right of redemption still exists, the plaintiffs stand as mortgagees simply, without a title upon which they can maintain ejectment^ and especially they cannot maintain it against the defendant Holt

But we are of the opinion that the lien of the mortgage was extinguished by the omission of the mortgagees to redeem from the tax sale of 1885, within two years thereafter, and to file with the county treasurer within two years from the time of the tax sale the notice specified in § 82 of chapter 427 of the Laws of 1855. The act of 1855, §§ 76 to 82 inclusive, regulates the rights of mortgagees of land sold for taxes. The system was this: It was provided (§ 76) that no assessment or sale" for taxes should affect the lien of any mortgage duly recorded at the time of the sale, except as provided in the act. By § 77 it was made the duty of the purchaser at the tax sale to give the mortgagee notice, in substance, requiring him to pay the purchase money and interest within six months. By § 78, upon such payment being made, the sale was to be of no further effect, and the mortgagee acquired a lien on the land for the amount of such payment By § 79, failure of the mortgagee to make payment pursuant to the notice deprived him of the benefit of § 76, and the necessary implication is that his lien was from that time extinguished. It is not import-apt to notice §§ 80 and 81. By § 82 it was provided that the notice required to be served by the preceding five sections is required to be served only upon mortgagees who shall have filed within two years from the time of the tax sale, in the office of the comptroller, a notice containing a description of their mortgage and the premises it covers, giving their residence and post office address, and the section concludes, “ in case such mortgagee or other person shall omit or neglect to file such notice with the comptroller within the said two years, then said mortgagee or other person shall he barred from all claim to redemption by virtue of said mortgage, and the title of the purchaser shall become valid and effectual the same as if said mortgage had not existed.” ¡Not only was there no redemption by any person from the tax sale of 1885, but there is no suggestion in the record that the plaintiffs at any time filed the notice mentioned in the last clause of § 82. The case was tried upon a stipulation which stated that “the facts,not admitted by the pléadings are stipulated to be as follows.” It must be assumed, therefore, that the plaintiffs filed no notice under § 82. If that section was in force during the period from the assessment of the tax of 1884 until the proceedings were concluded by the execution and recording of the tax''deed in 1888, we see no escape from the conclusion that the lien of the mortgage was, by the failure of the plaintiffs to file the notice within the time limited, destroyed, and that the title under the tax deed was free therefrom. See Cromwell v. MacLean (Ct. Appeals), 34 St. Rep., 87; Bennett v. Peck, 28 Hun, 450.

Section 82 was in force during the period referred to. By § 1, chapter 255, of the Laws of 1862, § 82 of the act of 1855 was repealed by direct enactment referring to the section. But § 1 of chapter 280 of the Laws of 1870, in turn repealed “section one of chapter two hundred and fifty-five of the ¡Laws of eighteen hundred and sixty-two,” and this repeal of the repealing act of 1862 by the act of 1870 restored the original § 82 of the act of 1855, Mayor v. Broadway, 97 N. Y., 275, and it remained a part of -.the general law from 1870 to 1889, when by chapter 563 of the Laws of that year, § 1 of the act of 1870 was itself repealed. This was subsequent to the time when the title of the purchasers on the tax sale had become absolute and freed from the lien of the mortgage. Having regard therefore to the title claimed by the plaintiffs under’the foreclosure sale, and the title of the defendant Holt under the tax sale of 1885, the defendants’ title was paramount and the plaintiffs were not entitled to maintain their action.

But hitherto no mention has been made of another claim upon which the plaintiffs insist that the defendant Holt is estopped from setting up his title under the tax deed of October 28, 1887. It' appears from the facts stipulated that in 1886 another tax was assessed against the premises, under which on ¡November 23, 1887, the treasurer sold the land to Wilson, the purchaser on the sale of 1885, for the sum of $216 and executed to him a certificate of such sale as required by the act of 1879. January 17, 1888, Wilson assigned this certificate to the defendant Horatio H. Holt, the same person to whom he afterwards, May 14, 1888, deeded the premises under his title derived under the tax sale of 1885. ¡November 11, 1889, the plaintiffs filed in the office of the county treasurer an instrument in writing directed “to whom it may concern,” describing their mortgage and containing the particulars specified in § 82 of the act of 1855, and reciting the recovery of the judgment in the foreclosure action on the 29th of August, 1879, and containing among other things the following: “And you will further take notice that the undersigned claim that as such personal representatives of Rufus 0. Palmer, deceased, the said mortgagee, they are entitled to be served with any notice required by any provision of the statute in such case made and provided, by the purchaser or purchasers of said premises at any sale heretofore made by the treasurer of said county for taxes. And particularly with any "such notice required to be given by such purchaser or purchasers at the sale of said premises by said treasurer, made on the 23d day of November, 1887, for the taxes of 1886, requiring the undersigned as the personal representatives of the saidc. mortgagee to pay the amount of purchase money at said sale,” etc.

On or about December 17, 1889, the defendant Horatio N. Holt served on the plaintiffs and filed in the office of the treasurer an instrument in writing entitled “ In the matter of the sale of certain property iii the village of Westfield, etc., formerly owned by Mrs. George W. Holt, for the satisfaction of taxes on the 23d day of •November, in the year 1887.” The writing then gave notice that the property (describing it) had been sold for taxes November 23, 1887, to Wilson for the consideration mentioned in the conveyance (certificate) of $233.25 ; that the conveyance (certificate) had been assigned to Horatio N. Holt, of No. 1 Broadway, N. Y., •on or about December 17, 1887; that a deed of the premises had been executed by the treasurer to Holt, December 3, 1889; that unless the consideration money, with interest, etc., shall be paid into the treasury of the county within six months, etc., the conveyance would become absolute, and “you and all persons interested in said land ” will be forever barred, etc. The notice concluded as follows: “ And you will further take notice that a redemption as above specified has regard to and relates only to the sale above specified, and can have no effect upon any previous sales heretofore completed and perfected under the law.”

January 25, 1890, the plaintiffs paid to the treasurer $358.50, pursuant to the instrument served on them by the defendant Holt, and January 29, 1890, the treasurer paid over the same to Holt, who received it and since treated the money as his own. At the time the money was paid by the plaintiffs to the treasurer, he executed to them a certificate that the money was paid on a redemption from the sale of November 23, 1887. It is admitted "by the stipulation that the plaintiffs did not actually know of the sale of 1885, or of the deed to Wilson thereunder, until subsequent to the entry of judgment of foreclosure of the mortgage, August 29, 1889, but that they had such notice prior to their filing in the treasurer’s office the notice filed by them November 11, 1889, to which referencedias been made.

The general term reversed the judgment of the trial court dismissing the complaint on the ground that upon the facts above stated the defendant Holt was estopped from setting up his title under the tax sale of 1885, and that his rights under that sale '“were entirely surrendered in the recognition by him of the right which the plaintiffs had to redeem under the tax sale made ¡November 23, 1887, for the unpaid taxes of 1886." We are of opinion that this conclusion cannot be supported and that there was no estoppel created by the circumstances relied upon which is available to defeat and subvert the unquestionably absolute title vested in Holt, freed from the mortgage, at the time he served upon the plaintiffs the notice of ¡December .17, 1889. It is contended that when Holt took the deed from Wilson, May 15, 1888, he then holding by assignment"from Wilson the certificate given on the second sale of 1887, the title under his absolute deed merged in the right he held under the tax sale certificate of 1887, and that in some way this certificate given on a sale after the deed on the first sale had been executed, extinguished Holts title under that deed and changed his ‘ interest from that°of absolute owner to that of holder of a tax certificate under the second sale. We do not comprehend how such a result could follow.

If the doctrine of merger applied at all, the natural result would be that the second sale, and the right under the certificate merged in Holt’s title under the deed and was thereby extinguished. But it is certainly not unusual for the owner of a tax title to buy in under a subsequent tax sale and to take a deed thereunder to strengthen and confirm his original title. It may be that when the proceedings are perfected by the execution of a deed and the expiration of any right of redemption, the last title, if the tax proceedings were regular, will be the real title. But we see no reason why Holt could not stand upon both his deed and his certifi- ■ cote under the sale of 1887.

There may be cases where the court, to overreach a fraud, may apply the doctrine of merger, Gould v. Day, 94 U. S., 405, where the owner buys on a tax sale.

When the defendant served the notice of December 17, 1889, he was advised by the notice filed by the plaintiffs that they claimed under their mortgage the right' to redeem from the sale of 1887, and they undoubtedly had this right. The tax laws entitle the “ owner or any other person ” to redeem from a tax sale. The plaintiffs had a right to redeem from the sale of 1887, so as to prevent the sale ripening into an absolute title by conveyance, and thereby put themselves in a position to question the tax title under the sale of 1885,- and to assert and establish, if they could, that their mortgage was not cut off by the proceedings thereunder. They knew of the sale of 1885, and that a deed had been executed to the purchaser, before they filed their notice or paid any * money on redemption from the sale of 1887. The defendant Holt in his notice expressly notified the plaintiffs that a redemption by them from the sale of 1887 would not affect “ any previous sales heretofore perfected and completed under the act.” The plaintiffs acied with their eyes open to the situation, and whether they acted advisedly or not, they were not induced to act by any concealment or fraud on the part of the defendant. They had already lost their lien and we percieve no ground for invoking and applying the doctrine of equitable estoppel to defeat the legal title to the land vested in Holt, and the attempt to apply it in this case to accomplish what we may suppose to be justice between the parties, would establish a dangerous precedent. See Trenton Banking Co. v. Duncan, 86 N. Y., 221; Thompson v. Simpson, 128 id., 270; 40 St. Rep., 164, and cases cited.

It was held in Cooper v. Bushley, 72 Pa. St., 252, that where the holder of a title under a prior tax sale becomes the purchaser of the premises at a subsequent sale, and the former owner redeems from the latter and the purchaser accepts the redemption money, that he is not estopped from claiming title under the former sale and that his title under it is not divested by the redemption of the latter.

We are of opinion that the order of the general term should be reversed, and the judgment dismissing the complaint should be affirmed.

We do not consider whether the plaintiffs have a lien for or a remedy to recover back the money paid by them on the redemption from the sale of 1887.

Order reversed and judgment dismissing complaint affirmed, with costs.

All concur.


author: Gray, J.

text:
    Charles Ulrich, App’lt, v. Edward Ulrich, Ex’r, Respt.

      (Court of Appeals,

      Filed November 29, 1892.)

    Parent and child—Services by child—Presumption as to agreement TO PAY FOR.
    In an action by plaintiff against the executors of his mother’s will to recover for services rendered to her at her request by plaintiff and his wife, the judge charged the jury that “ as a general rule children are bound to care for their parents in their old age, and filial affection should prompt children to do so. The consequence is that the presumption of law is against such a claim as has been advanced in this action.” Held, error; that there is no presumption of law against the maintenance of such a claim.
    (Andrews, Pinch and O’Brien, JJ., dissent.)
    Appeal from judgment of the New York superior court, affirming judgment in favor of defendant.

      Nelson Smith, for app’lt; Edward W. S. Johnston, for resp’t.

       Reversing 42 St. Rep., 216.

   Gray, J.

The plaintiff brought this action against the executor of his mother’s will to recover from her estate the value of services which he alleged had been rendered by himself and his wife to his mother at her request. A jury rendered a verdict for the defendant, and the only question which demands our consideration, upon the plaintiff’s appeal from a judgment affirming the defendant’s recovery arises upon the exception of the plaintiff to a part of the trial judge’s charge. After stating what the action was for, the trial judge said: “As a general rule children are

bound to care for their parents in their old age and filial affection should prompt children to do so. The consequence is that the presumption of law is against such a claim as has been advanced in this action.” The plaintiff excepted to this portion of the charge and insists that it was an erroneous instruction to the jury. The trial judge, it is true, continued by charging that “ if the plaintiff has overcome the presumption by proof and has clearly shown that the services sought to be recovered for were rendered by himself and his wife pursuant to his mother’s express promise * * * the plaintiff is entitled to recover.

Under the facts of the case, as they had appeared in the evidence, the charge relating to the obligations of children, and as to the legal presumption, was such as possibly to convey to the minds of the jurors an erroneous understanding of the law. It may well be that the trial judge had before his own mind the moral aspect of the case and did not intend that his observations should have any other weight with the jury than as moral reflections; but the nature of the case, the sequence of the remarks and the stage of the case, or the circumstances under which uttered, were such as, in my judgment, to require us to grant a new trial.

There is no presumption of law against the maintenance of such a claim. If the plaintiff had established to the satisfaction of the jury the existence of an agreement between his parent and himself, under which he and his wife were to attend upon and to care for her and she was to pay for such services, he was entitled to their verdict as much as he would be upon any other valid claim.

A presumption has been defined to be a rule of law that courts and judges shall draw a particular inference from particular facts, or from particular evidence, unless and until the truth of the inference is disproved. Stephen's Dig. Law of Evid., chapter 1, article 1.

No presumption existed here as a presumption of law. The right to draw any presumption as to the fact of an agreement having been made from the other fact of the relationship between the parties was within the exclusive province of the jury. Justice v. Lang, 52 N. Y., 323. There is no rule of law which compels an inference, from the fact of such a relationship, against the existence of an agreement by the parent to compensate the child for services to be rendered.

The law does presume, where there is no proof of a contract under which the services were performed, that there was no promise or agreement to pay for them; that is, that they were gratuitous. That is the general rule. So far as the relation of parent and child is concerned, it is quite as competent for the parent to contract with his adult child for support and care, and a claim for the compensation due thereunder is quite as valid, as it would 'be in any other case between individuals.

The liability of a child to support its parents who are infirm, destitute or aged, was created in England and here by statute. The statute in that respect created duties unknown to the common law. Reeves’ Dom. Relations, 284, 1 Blacks. Com., 448; Edwards v. Davis, 16 Johns., 281. Had the trial judge confined his observations to the suggestion that filial affection should prompt children to take care of their parents in their old age, I should find no reason for criticising the correctness of his charge. But the state of the case was such as that, with the moral sense alert, and naturally quick to respond to impressions adverse to the plaintiff’s claim, the jury would readily attach great weight to all expressions of the judge presiding at the trial which cast a doubt upon the validity of the claim. In every case, to determine whether the error pointed out has been such as to prejudice the' party, the court may consider the nature of the case, and how delicately the scales were balanced between the parties. Here the plaintiff had shown by the evidence of his wife that, after the death of her husband, the testatrix, who was very old and feeble, told plaintiff and his wife to stay on with her, and that she would pay them for the work they did; that she gave as a reason her helpless condition; that they remained with her until her death, and during that time performed many more or less important services in nursing and caring for her, and.that she repeatedly said she would pay them, without mentioning any amount. Her evidence was more or less corroborated by that of witnesses who variously testified to hearing the old woman state that she made the plaintiff and his wife stay with and take care of her, and that she would pay them ; or that she would “ make it all right with them.” In opposition, the defense gave evidence to show that plaintiff and wife received their board and lodging; that the deceased was an active woman, and not dependent upon others for services, or in need of care; that plaintiff was a shiftless fellow, and would occasionally drink to excess, and that under the will of deceased plaintiff received an equal interest in her estate with the other children. When the evidence was all in, and the case ready to be sent to the jury for their verdict, while the plaintiff’s evidence of an agreement that they should remain and care for the deceased, and that their services were to be paid for, was uncontradicted by direct evidence, it was seriously attacked by evidence of facts which, if it did not make the agreement appear an improbable one, yet was of such a nature as might justify the jury in discrediting the evidence for the plaintiff.

On the one side was positive evidence, which, if believed, entitled plaintiff to a verdict. According to the evidence given for the plaintiff, there were no rambling expressions of a sense of obligation ; or of promises to make compensation by testamentary provisions. There was a request to remain and an agreement to pay for the work to be done. On the other side, there was circumstantial evidence negativing, or tending to negative, the making of the alleged agreement; which the jury were at liberty to accept and upon which they could base a verdict for the defendant. In that condition of things, the'just balance of their minds might be disturbed and their judgment easily led by any suggestion from the trial judge which seemed to militate against the legality of plaintiff’s claim and which would seem to accord with an aversion of the moral sense. It appeal's from the record that at the conclusion of the evidence but little time was left, and that the trial judge hastened, as he said, to “finish the case this evening,” and he made a very brief charge, in which he left it to the jury to say whether the plaintiff had “ made out a case which meets every requirement of the law as he had laid it down.” He had in mind, I do not doubt at all, that he had previously merely commented upon the obligation from child to parent, as such ex-. ists in nature, and not as having led them to believe that any rule of law stood in the way of such a claim in such cases. But I am constrained to the belief that prejudice may have been worked to the plaintiffs case by the observations of the trial judge. He had observed that it was “ a general rule that children are bound to take care of their parents in their old age,” and that “ the consequence ” of that rule and of the promptings of filial affection VfaS thciv IjLJ.O presumption of law was against such a claim as had been advanced in this action.” Both, statements were incorrect as legal propositions; for, of course, there is no such general rule of law ; nor such a presumption. Coming from the lips of the judge, from whom they were to take the law applicable to the case, can we, and should we, say that they had no influence upon the minds of the jury; or that, if they did have, the error was cured by the subsequent instruction to the effect that “ if the plaintiff had overcome the presumption by proof ” he might recover. I think not. This was essentially a case for decision by a jury upon the evidence before them ; as they believed the facts and weighed the probabilities. They might well have understood that there was a rule of law, which amounted to a presumption, against the validity of such a contract and claim, and the plaintiff should, therefore, have a new trial; in which a verdict may be reached without the possible influence of an erroneous idea leading to its formation.

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

All concur, except Andrews, Finch and O’Brien, JJ., dissenting.


author: Fitzsimons, J.

text:
    Oliver H. Perry, Resp’t, v. The Erie Transfer Co., App’lt.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    Jurisdiction—Contract made out of state by non-residents.
    The parties hereto, who were residents of New Jersey, made a contract in that state by which plaintiff was to furnish defendant with trucks and horses as needed. In an action therefor there was no evidence that the price was to be paid in this state. Held, that the contract having been made in New Jersey, its breach must have occurred there, and that the court improperly denied a motion to dismiss for want of jurisdiction.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      Andrew Wesley Kent, for app’lt; Strong & Cadwalader, for resp’t
   Fitzsimons, J.

The plaintiff is a resident of New Jersey. The defendant is a New Jersey corporation having an office in this city.

The plaintiff, who is a truckman, contracted with defendant in his office in Jersey City to furnish defendant with horses and trucks as required.

The principal part of the trucking was done in this city.

Plaintiff sues for trucking done in the months of September and October, 1890.

Defendant submitted no testimony, and by direction of the ■court the jury rendered a verdict for plaintiff for $281.98.

At the close of plaintiff’s case defendant moved to dismiss the complaint, on the ground that the court had no jurisdiction; that the plaintiff could not maintain the action because he was a nonresident and the defendant a foreign corporation; that plaintiff had not shown that the contract of hire was made in New York, or that there was any agreement that the price should be paid in New York city; which motion was denied.

In denying this motion, we think that the trial justice erred. The contract of hiring was entered into in Jersey City, and the defendant was not bound to pay for such hiring in this city, not having contracted to pay here. Therefore, it seems to us clear that the contract having been made in New Jersey, and its breach, if any, must have occurred there, and the plaintiff and the defendant both being residents of that state, that this court has no jurisdiction of this action, it not being included in ■§ 1780 of the Code •of Civil Procedure.

The plaintiff is mistaken in his statement that the allegations in his complaint to the effect that it was expressly or implicitly agreed that the defendant should pay for said hiring in the city of New York is not denied; on the contrary, the defendant’s answer positively denies that allegation, and therefore plaintiff was required to prove the same, that being a material allegation, which he failed to do.

The complaint should have been dismissed. Judgment is therefore reversed, and complaint dismissed, with costs.

Newburger, J., concurs.


text:
    W. Newton Collins et al., Resp’ts, v. The North Side Publishing Co., App’lt.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    Pleading—Answer.
    An answer alleging that defendant “ has no knowledge or information
    sufficient to form a belief as to the truth of all the other allegations contained in the complaint,” is bad, and not authorized by the Code.
    Appeal from order granting motion for judgment on the pleadings on the ground that the answer was frivolous.

      William G. McCrea, for app’lt; Douglas & Minton, for resp’ts.
   Fitzsimons, J.

This is an action for the price of printing inks amounting to $178.66, all unpaid except $31.25, which was paid by advertising done for plaintiffs.

The plaintiffs demand judgment for $147.41.

The answer admits incorporation of defendant and then further answering :

“Alleges that it has no knowledge or information sufficient to form a belief as to the truth of all the other allegations contained in said complaint.”

Plaintiffs moved for judgment on the pleadings, which was granted on the ground that the answer was frivolous. . From the order entered thereon this appeal is taken.

The Code, § 500, requires an answer to contain “a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.”

The answer of the defendant herein clearly does not controvert each material allegation of the complaint, as required by the Code.

It only alleges that the defendant has no knowledge or information sufficient to form a belief as to the truth of aU such allegations. Under such a form of pleading the defendant might have knowledge of all the allegations of a complaint except one and yet his answer would be literally correct

Such a conjunctive denial is bad and not authorized by the Code.

If a defendant has knowledge or information of the material allegations of the complaint, the Code requires him to deny each allegation controverted by him, and the fact that he claims to have no knowledge or information sufficient to form a belief does not relieve him from saying so concerning each and every allegation which he so wishes to controvert. I think that the proper form of a denial such as the defendant adopted should read:

“ The defendant alleges that he has no knowledge or information sufficient to form a belief as to the truth of each allegation contained in the complaint.

The order appealed from is affirmed, with costs.

ÜSTewberger, J., concurs; Ehrlich, Ch. J., concurs in result


text:
    Frank Lugar, App’lt, v. Joe A. Swayze, Resp’t.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    1. Married women—Contract.

      While a married woman may make contracts and become liable thereunder as if she were a, feme sole, she is not so liable where she contracts as a married woman and not in her individual capacity.
    2. Same.
    Defendant, who occupied a community flat with her husband, employed plaintiff to paint and decorate it. An estimate was made in her name and the work performed in accordance therewith, and plaintiff received therefor the husband’s note, which was not paid, and plaintiff recovered judgment thereon. Neld, that the facts tended to show that defendant contracted as a married woman; that plaintiff recognized her as such and looked to the husband as his debtor, and that he could not hold defendant liable.
    Appeal from judgment in favor of defendant.

      William Douglas Moore, for app’lt; Fullerton & Rushmore, for resp’t.
   Fitzsimons, J.

The plaintiff is a painter and decorator. _

_ The defendant is a married woman. She applied to plaintiff to paint and decorate a flat occupied by her.

A written estimate was made out in her name by plaintiff and agreed to ; the work was done according to the terms thereof.

Plaintiff’s dealings were had solely with defendant She spoke of the flat as her flat.

After the work was finished the plaintiff demanded payment from defendant, by mail, several times.

In response to his last request he received the promissory note of defendant’s husband, which was not paid at its maturity.

Plaintiff sued him thereon and recovered judgment thereon in Hew'Jersey.

The flat is one known, I believe, as a community flat, owned by its occupant usually.

It does not appear in this case that the defendant was owner of the flat in which these repairs were done.

A married woman may make contracts and she is liable thereunder just as if she were £ feme sole, it is true: but such is not the case where she contracts as a married woman and not in her individual capacity.

In matters concerning the repair or management of her husband’s household or premises, when acting in the capacity of a married woman, she is only the agent of her husband and cannot be held as a principal; all the common law disabilities apply to contracts of that character, and in reference to such contracts her liability is not any greater to-day than it was prior to the passage of the acts which removed her disability to make contracts.

The acceptance of defendant’s husband’s note and subsequent suit and judgment thereon, I think, indicate that plaintiff intended to give credit to him and not to defendant personally, and is conclusive against plaintiff. McCausland v. King, 26 N. W. Rep., 836. In fact, the case has abundant evidence showing that plaintiff recognized defendant as a married woman, and dealt with her as such and apparently looked to the husband as his debtor.

I do not think that it was necessary in this case for defendant to plead coverture or payment by acceptance of her husband’s note, the theory of her defense being that her husband was plaintiff’s debtor and not herself; but so as to avoid the force of such objection, in case it has any, the pleadings are hereby amended so as to conform to the proof if so desired by defendant.

We think that the judgment should be affirmed.

Judgment affirmed, with costs.

Ehrlich, Oh. J., concurs in result.


author: Ehrlich, Ch. J,

text:
    Louisa Carlson, Resp’t, v. Maria Louisa Winterson, App’lt

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    Appeal—Case.
    Where the case on appeal does not disclose any order denying a motion for a- new trial, hut merely contains a statement of a motion to set aside the verdict, the court will not review any question of fact, but merely look to see if any errors of law were committed.
    Appeal from judgment entered on a verdict of the jury in favor of plaintiff.

      E. F. Bullard, for app’lt; H. M. Hitchings, for resp’t.
   Ehrlich, Ch. J,

The case on appeal does not disclose any order denying the motion for a new trial.

The statement in the case of a motion to set aside the verdict is not equivalent to an order.

In view of this fact, the court will not review any questions of fact, but merely look to see if any errors of law were committed. Code, § 1477; Boos v. World M. L. I. Co., 4 Hun, 133; 64 N. Y.t 236, 242 ; Ehrman v. Rothschild, 23 Hun, 273 ; Matthews v. Meyberg, 63 N. Y., 656 ; Coakley v. Mahar, 36 Hun, 159; Hinman v. Stillwell, 34 id., 178; Thurber v. Harlem B., M. & F. R. R. Co., 60 N. Y, 326, 328.

We have failed to discover any error in admitting or excluding evidence, or in passing on the requests to charge.

Some of the propositions were correct as abstract principles, but inapplicable to the state of the proofs presented.

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

Fitzsimons and Newburger, JJ., concur.


text:
    August Marschall et al., Resp’ts, v. The Eisen Vineyard Co., App’lt.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    Contract—Telegrams.
    Telegrams which, taken together, contain all the essential elements of & contract, viz: parties, consideration, subject matter and assent, are sufficient to establish a legal contract.
    Appeal from judgment in favor of plaintiffs.

      Douglas & Minton, for app’lt; Rose & Putzel, for resp’t.
   Fitzsimons, J.

The telegrams which appear in the appeal book establish a legal contract for the sale by defendant, and the purchase by plaintiff, of a car load of sherry wine; taken together the telegrams contain all the essential elements of a contract, viz: parties., consideration, subject matter and assent. Therefore I say that they establish a legal contract

The testimony further shows a violation by defendant of said contract and of its refusal to carry out the same because the wine was sold to some other person.

The plaintiffs’ damages because of such violation is clearly established, and the judgment rendered, four hundred seventy-five dollars ($475.00) is fully justified by the testimony submitted, and is, therefore, affirmed, with costs.

Ehrlich, Gh. J., and Newburger, J., concur.


author: Per Curiam.

text:
    Timothy Carpenter, Resp’t, v. George Y. Carpenter, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Contract—Breach—Damages.
    In an action for breach of a contract by which, in consideration of services to be performed, defendant agreed to board and maintain the plaintiff for the remainder of his life, the court admitted testimony as to the value of plaintiff’s services; and under the charge plaintiff was permitted to recover the value of such services over the value of his maintenance

      while he remained with defendant. Held, error; that the proper measure of damage in such case was the expense of his support which defendant failed to furnish before the commencement of the action, and the prospective expense for such maintenance during the balance of plaintiff’s life.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    Action for damages for breach of a contract to support the plaintiff for the remainder of his life, in consideration of such work as he could do. After plaintiff had worked for defendant for nine years, defendant refused to furnish him further with a home, and ordered him to leave.
    The court charged that plaintiff was not entitled to recover what it will cost to maintain him during the balance of his life, but whatever his services are worth.

      S. M. Richards (T. F. Hamilton, of counsel) for app’lt; H. P. Pendrich (J. W. Houghton, of counsel) for resp’t.
   Per Curiam.

We think the rule of damages adopted below wrong. Plaintiff having lived with and been maintained by defendant for about nine years, under a verbal contract, by which the latter, in consideration of the services to be performed by the former, was to board and maintain him during the remainder of his life, on a subsequent breach of the contract was suffered to recover the value of his services over the value of the maintenance furnished for the whole period he had lived with defendant.

During said period the work done by plaintiff was paid for as provided in the contract, by his board and maintenance.

During two years, or about that period, prior to the commencement of the action, defendant failed to board and maintain plaintiff pursuant to the contract. The rule of damages in such a case, under such a contract, is well settled. Plaintiff was entitled to recover the expense of his support which defendant had failed to furnish as provided by the contract before the commencement of the action, and the prospective expense for such maintenance during the balance of his life. Shaffer v. Lee, 8 Barb., 412; Schell v. Plumb, 55 N. Y., 592.

We think this one of those instances of the submission of a case to the jury on an erroneous theory, where, although no exception was taken to the charge, a new trial should be granted. Whitaker v. D. & H Canal Co., 22 St. Rep., 409.

But on the trial the appellant did object to evidence offered to show the value of respondent’s services at the time he lived with appellant, “ as not the proper measure of damages." The court overruled the objection, and an exception was taken. We think the court erred in so ruling, for the reasons above stated. We have read carefully respondent’s supplemental brief, but are of opinion that said evidence as to the value of respondent’s services under the complaint, and the theory adopted by the plaintiff and the court on the trial, was incompetent for any purpose.

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

Mayham, P. J., and Herrick, J., concur.


author: Putnam, J.

text:
    Hiland H. Chapin, Resp’t, v. A. V. Pratt, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Accord and satisfaction—Proof of agency.
    Proof by the alleged agent that he was specially authorized to make a. specific offer which was refused, without more, is insufficient to show authority in such agent to make a different settlement.
    2. Same—Evidence.
    Proof of a rescission of contract or of an accord and satisfaction is not admissible under a general denial. Such defenses should be pleaded as affirmative defenses.
    Appeal from judgment of the Washington county court, entered upon report of referee in favor of plaintiff.-
    Acfcion upon a check made by defendant to the order of one-Agnes M. Huggins, and endorsed by her to plaintiff. The answér was a general denial.
    The following is the opinion of the referee;
    A. D. Arnold, Referee.-—-This action is brought to recover $65 and interest from June 27, 1888, on a check given by defendant to Agnes M. Huggins, and by her assigned to plaintiff.
    The answer is a general denial.
    On June 23, 1888, defendant and Thomas Ryan, an officer, went to the home of William J. Huggins, in the town of Easton, to take a cow that Ryan had previously levied on to satisfy a judgment of about $22 in favor of defendant and against said Huggins. They met Huggins, and after some conversation, defendant agreed to take $15 in full settlement of the judgment, and Huggins agreed to go to Port Edward within a week and pay the $15. As defendant and Ryan were about leaving, Huggins said that they had a horse there that belonged to his wife that they were going to sell and asked them to look at the horse. They went to the barn and Huggins led out the horse, and Ryan asked him how much he asked for it, and he said $100, and Ryan said,. “ We will give you $75.” Huggins said that the colt was not his, and that they would have to see his wife before they purchased. They went to the house, Huggins had a conversation with his wife, and then said that they would take $80, which offer was refused by defendant and Ryan. As they were driving away, Mrs. Huggins said, ‘ If you will take the horse for $80 you may take out the $15.” Defendant and Ryan considered the matter a moment, and then said that they would do it, and defendant went into the house and gave Mrs. Huggins his check on the First National-Bank of Fort Edward for $65, and took the horse. After their return to Fort Edward, and on the same day defendant wrote Huggins as follows : “We find that the horse that we purchased of you and your wife, to-day, is not as represented. You better drive over here at once and fix the matter up with us, for we do not want any such horse and will stop the payment of that check.”'
    The check was deposited by Mrs. Huggins in the First National Bank of Greenwich for collection, and after passing through three banks was presented at the First National Bank of Fort Edward on the 27th June, 1888, for payment, which was refused, and the. check was then and there duly protested. On June 29, 1888, Mr. Huggins came to Fort Edward and saw defendant, and they had considerable conversation as to whether the horse was as represented at the time of the sale. Defendant testified that he told Huggins that he would give him $40 for the check and keep the horse, or he would give him the horse if he (Huggins) would give, him back the check and $20 in money. Huggins said his wife authorized him to come and pay defendant $10 and give him back the check and bring the horse. “ I insisted on having $20; he replied that he had no authority to give me more than $10 and the check back for the horse, and that his wife would rather he would bring the horse back than to sell it the other way and •allow me to keep it.” Huggins left and -returned on the following Monday and had another conversation with defendant, which defendant details as follows: “ Huggins said that he was authorized to give me $15 and the check, and bring back the horse, and that he could not do anything different; finally, I told him that if Eyan was satisfied, if he (Huggins) would give me eighteen dollars and the check, he could have the horse back, and he replied that he was authorized to pay only fifteen dollars and the check for the horse back; but that he would pay the three dollars out of his own pocket rather than have any trouble.” They then saw Eyan, and he consented to defendant’s arrangement, and they all went to the barn where the horse was. Huggins led out the horse, and paid defendant eighteen dollars in bills, and led the horse away, defendant counted the money and started for the depot, and on his way ■discovered that he did not get his check, and went back and looked for Huggins, but found he was gone. Huggins testified that he did not agree to give up the check, but only to give defendant eighteen dollars for the horse.
    Plaintiff purchased the check from Mrs. Huggins on July 7, 1888, with full knowledge of its having been protested.
    At the close of the evidence plaintiff’s attorney made the following motions:
    “ Plaintiff moves that all evidence given by Mr. William J. Huggins to the effect that he was instructed by his wife to make any contract concerning this horse with A. Y. Pratt, or that he was to act as agent for his wife in regard to any contract concerning this horse, or that he is the agent for his wife, be stricken out, ■on the ground that it is improper and incompetent, and because agency cannot be proved by the statement of the alleged agent, but must come from the acts or the express words of the principal, .and not through the alleged agent.”
    Decision reserved by consent.
    “ Plaintiff moves that all evidence given by witnesses for the defendant of statements which they say were made by William J. Huggins as to his authority to act as agent for his wife, or that he ■was agent for his wife in transactions concerning this check and this horse, be stricken out on the same grounds as stated in the .above motion.”
    Decision reserved by consent.

      If the above evidence is competent to prove the agency, or there is other evidence of agency, there is no doubt in my mind that the defendant is entitled to judgment. All the circumstances in the case point unmistakably in that direction. Should the motion to strike out be granted ? Was the evidence as to agency competent'? All the witnesses agree that William J. Huggins stated to defendant, on each of his visits at Fort Edward, that he was there under authority from his wife, Agnes M. Huggins, to settle with defendant; and all the evidence of Huggins’ authority or agency came from his declaration on those occasions.
    It is a well settled principle of law that agency cannot be-proved simply by the acts or declarations of the alleged agent. Marvin v. Wilber,^5% ¡N. Y., 270; Scott v. Stevenson, 3 Hun, 352.
    There must be other proof. Is there such proof ? If so, the acts and declarations of Huggins were competent.
    The only evidence in the case that Mrs. Huggins knew that her husband was holding himself out to the world as her agent, was in the interview at her home on June 23, 1888. And defendant testifies: “I do not remember whether I stated that when Ryan offered Huggins the seventy-five dollars he replied that he hadn’t any authority to sell the horse for less than $100. Huggins went to the house and talked with his wife and then came back to us and said they would take eighty dollars for the horse. We refused. We got into our wagon to drive away and she .spoke up and said,
    1 If you will take the horse at eighty dollars you may take out the fifteen dollars.’ ” Here was evidence only of a special agency. Huggins claiming that under his authority that he could not sell the colt for less than $100. That he then consulted his wife, in defendant’s presence, and offered the colt for eighty dollars. That finally Mrs. Huggins told them what they could have the colt for, and her offer was accepted and the check given to her. And this is the only evidence which in any way connects the alleged principal and agent Judge Selden, in Gould v. The Town of Sterling, 23 ¡N. Y., 465, says: “ ¡No representation of the agent, as to the fact of his agency or as to the extent of his power, is of any force to charge his principal. But, it being shown by other evidence that the agency existed, and that the act done was within the general scope of the power, the principal is bound by the representation as to any essential facts known to the agent, but which the party dealnig with him had no certain means of ascertaining.”
    The only authority which Huggins had to act for his wife was to sell the colt for $100, which was afterwards modified to eighty dollars. There was no proof that Huggins was general agent for his wife, and, therefore, no inference can be drawn that his subsequent acts and declarations, at Fort Edward, were -within his power as general agent. Had he been shown to have been her general agent, then his subsequent acts and declarations at Fort Edward would be entirely in accord with his previous actions. A special authority to sell is not a special authority to buy or to-settle a misunderstanding arising on a sale. There is no proof-that Mrs. Huggins ever saw the colt after June 23, 1888.. ¡Neither is there any proof that she ever heard of the trade made on July 2, 1888. Hence, there can be no ratification of Huggins’ acts and declarations of July 2, 1888. I can find no proof of any authority for Mr. Huggins to act for his wife, outside of the evidence which is objected to, and therefore, must grant the motion to strike out said evidence.
    There being no evidence of any settlement on the part of Mrs. Huggins and defendant, or payment of the check to her or her agent, the plaintiff is entitled to recover.

      Robert Armstrong, Jr.„ for app’lt; Gibson & Van Kirk (C. C. Van Kirk, of counsel), for resp’t.
   Putnam, J.

The check in suit was given for a valuable consideration, and plaintiff, as endorsee, properly obtained judgment thereon, unless the defense asserted by defendant of rescission of contract, or accord and satisfaction, was established on the trial. The burden was upon the defendant to establish such defense. He claimed that the alleged settlement was made between William J. Huggins, as agent of the defendant, and himself. It was for the defendant to show the authority of the agent, and he was bound to show an express authority, no general agency being shown. Messmore v. Haulenbeek, 15 Hun, 494.

The only testimony produced by the defendant to show such agency was that of William J. Huggins himself. He testified ■on that subject, in substance, as follows: “I came to Port Edward at the request of my wife; she instructed me to go there and offer them eighteen dollars, or ten dollars, I should say; she would throw off ten dollars on the check, or she would give them ten dollars and return the check; my wife would throw off ten dollars on the check if they would pay the lien, or she would give them ten dollars and take back the colt and send them the check.” This is the only evidence in the case on the subject of the authority of William J. Huggins. It shows a special agency to offer ten dollars, take back the horse and return the check. This offer was not accepted, and the agent was not shown to have any authority to make any different settlement of the matter, and hence the arrangement, in fact, made between William J. Huggins and defendant was not binding on Mrs. Huggins. It appears that Huggins did not have the check in his possession, and it is not shown that Mrs. Huggins ever received back the horse; hence there is no question of ratification involved in the case.

I conclude that defendant failed to show the authority of the agent Huggins to make the settlement alleged as a defense. Therefore, the defendant was not injured by the error of the referee, if it was an error, in striking out the testimony of Huggins as to the instructions given him by his wife.

But again I, think the referee was right in striking out the testimony referred to, although not for the reason stated by him. The answer was merely a general denial, and under that pleading the defendant could not properly prove a rescission of the contract or an accord and satisfaction. Such rescission or accord, like the defense of payment, should be pleaded as an affirmative defense. Potter v. Gates, 29 St. Rep., 662; McKyring v. Bull, 16 N. Y., 297.

The plaintiff on the trial and by motion to strike out objected to evidence tending to show this defense on the ground that such testimony was incompetent under the answer. Hence the referee did not err in striking out said testimony and his conclusion should be sustained, although for a different reason than that stated by him. The evidence in question being properly stricken from the case, no testimony remained showing the agency of William J. Huggins of any kind.

The judgment .should be affirmed, with costs.

Mayham, P. J., concurs; Herrick, J.—I concur on ground last stated in the opinion.


author: Putnam; J.

text:
    The People ex rel. The Eickemeyer-Field Co. et al., App’lts, v. Frank Rice, Secretary of State, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Corporation's— Organization tax—Consolidation.
    The word two as contained in chapter 608, Laws 1893, must he deemed to mean two or more, and not two only, and the statute applies on the consolidation of more than two corporations.
    Appeal from order denying application for peremptory mandamus to compel the secretary of state to file articles of association of the relators.

      Smith & Dougherty (J Hampden Dougherty, of counsel), for app’lts; Simon W. Rosendale, atty. gen., for resp’t.
   Putnam; J.

The relators, the Eickemeyer Pield Company, The Eickemeyer Dynamo Company, and the Yonkers Machine Company, three corporations duly incorporated under the laws of this state subsequent to 1886, who had each, on filing a certificate of organization in the office of the secretary of state, paid the tax required by chap. 143 of the Laws of 1886, on or about June 13, 1892, agreed to consolidate into one corporation, The Eickemeyer Pield Manufacturing Company, also one of the relators. On presenting to the secretary of state the papers showing such consolidation, he declined to file the same until the fees as required by the act of 1886 and amendments thereto were first paid. At the time of the consolidation in question chap. 668 of the Laws of 1892, amending chap. 143 of the Laws of 1886, was in force, § 1 of said act containing the following provision :

“In case of the consolidation of two corporations into a new corporation, said new corporation shall be required to pay the tax hereinbefore provided for only upon the amount of its capital stock in excess of the aggregate amount of capital stock of said two corporations upon which said tax shall have heretofore been paid, and no more.”

The state insists, and the court below held, that the above quoted provision of the act of 1892 does not apply to a case like this, of the consolidation of three corporations. That the statute should be construed to mean two only, and not two or more.

The word “ two,” as in ordinary use, is sometimes intended to mean only two, and sometimes two or more. Instances are cited by respondent where the word should have the former meaning and the appellant calls our attention to cases where the word two as used is evidently intended to mean two or more.

The question before us to be determined is, what meaning should be given to said word as used in the above quoted provision of the act of 1892 ?

The rules to be followed in the construction of statutes are well settled. It is held that “ the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute, as well as other circumstances. A strict and literal interpretation is not always to be adhere^ to, and where the case is brought within the intention of the makers of the statute it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of a statute which are to be regarded in its interpretation. * * * A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the lawmakers.” People ex rel. Wood v. Lacombe, 99 N.Y., 49 ; Smith v. The People, 47 id., 336 ; McKuskcie v. Hendrickson, 128id., 558; 40St. Rep., 619.

Applying the above doctrine to the case before us, it is to be presumed that the intent of-the legislature in enacting the above quoted provision contained in chap. 688 of the Laws of 1892, was to prevent a liability on the part of a corporation which had paid the tax required by the act of 1886, on a consolidation with another corporation which had also paid said tax, to again pay the same tax. The object of the law was to prevent a double taxation. To hold, therefore, that on consolidation of two companies the new corporation was not required to pay a tax under the act of 1886, while on the consolidation of three or more the tax could be legally imposed, would result in making the statute unreasonable and absurd, and in not carrying out what may be ¡^resumed to be the intent of the legislature in enacting it. If on consolidation of two companies the tax under the act is not required to be paid, there is no reason why the same exemption from taxation should not follow the combination of three or more corporations.

I think, therefore, that under the rule laid down as to the construction of statutes in the above quoted authorities, the word two as contained in the above quoted provision of the act of 1892 should be deemed to mean two or more, in order to carry out the apparent purpose of the legislature.

To give this construction of the law we are not compelled to go beyond the letter of the statute, as is sometimes done; we are merely giving to the word “ two ” a meaning often given to it as in common use. The meaning of the word as used in the statute is doubtful, and in such a case it is proper to resort to the intent of the lawmakers in order to determine the sense in which the word was used. Chamberlain v. The Western Trans. Co., 44 N. Y., 309 ; People v. City of Buffalo, 57 Hun, 582; 33 St. Rep., 323 ; Donaldson v. Wood, 22 Wend., 397.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the mandamus asked for by "the relators granted, with fifty dollars costs and disbursements.

Herrick, J., concurs.


text:
    The People ex rel. Mason Springsted, Resp’t, v. The Board of Trustees of the Village of Cobleskill, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Certiorari—Code Civ. Pro., § 2125.
    The provisions of § 2125 of the Code, limiting the time within which a certiorari may be granted, apply to a certiorari brought on the ground of lack of jurisdiction, as well as if brought on any other ground.
    Appeal from order awarding to relator a writ of certiorari to review a certain assessment made'by the board of trustees. The assessment in question was made for a local improvement, and was finally confirmed and levied on December 28, 1891. The order granting the writ was granted April 30, 1892.
    Relator claims that the board has no jurisdiction to make an assessment, as to him, because he had no land fronting upon or coming up to the street in question, but only a right of way therein.

      Charles H. Holmes, for app’lt; L. W. Baxter, for resp’t.
   Per Curiam.

There is but one question in this case. The order awarding a writ of certiorari, from which the appeal is taken, was not granted within four months after the assessment sought to be reviewed was confirmed and levied by the board of trustees of 4he village of Cobleskill, as required by provisions of § 2125 of the Civil Code.

The respondent insists that the assessment in question being void, never became binding or final as to him. That in fact, there being no jurisdiction, there was no assessment. That there was no record. And hence, that the provisions of § 2125, supra, do not apply.

This is not an open question. In People ex rel. Cook et al. v. Hildreth et al., 126 N. Y, 360 ; 37 St. Rep., 393, the question of jurisdiction was raised, as will be seen by examining the points of counsel. In fact that was the only subject discussed by counsel except the question as to the four months limitation.

The court held that said four months limitation was a bar, thus determining the question involved in this case. As decided by the court of appeals in the case cited, one of the offices of the writ of certiorari under § 2140 of the Civil Code is to inquire into the jurisdiction of the body or officer making the determination which is the subject of review, and it is difficult to see why the provisions of § 2125, supra, do not apply to a certiorari brought on the ground of a lack of jurisdiction, as well as if brought on any other ground.

The order should he reversed, with costs and printing, and the motion denied, with costs.

Herrick, J., concurs.