author: Daly, 0. J.

text:
    Joseph H. Sulzbacher, Resp’t, v. J. Cawthra and Company, Limited, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Attachment—Affidavit.

      Where the affidavit of an attachment for damages for breach of. contract, shows the gross value of such contract for the unexpired term, an amendment by inserting the amount of net profits before and after the breach, is-within the provisions of section 723 of the Code, though by such amendment the plaintiff reduced the amount of his claim for damages.

      Appeal from an order granting a motion to amend a warrant of attachment, and denying a motion to reduce the amount of the warrant.

      Blumensteil & Hirsch, for app’lt; Charles Strauss, for resp’t.
   Daly, 0. J.

—By a written contract between the parties the plaintiff was appointed defendant’s sole agent in the United States to obtain orders for goods to be manufactured and shipped by defendant for the term of four years from February 13,1894, upon a commission of seven per cent, on the sales and half profit over its regular selling prices. Upon the breach of said contract, by defendant’s refusal, since February 15, 1895, to receive and fill orders obtained by plaintiff, he commenced, on June 7, 1895, an action to. recover (1) unpaid commissions earned, amounting to $716.37and (2) damages for the breach of the contract, amounting to $15,017.25. Plaintiff obtained a warrant of attachment against defendant as a foreign corporation in the sum of $15,733.42. Defendant moved to vacate the attachment upon the affidavits on which it was granted, but the court held that, although the warrant was issued in too large an amount, because the plaintiff’s estimate of his unliquidated damage was excessive, yet there was definite evidence of damage to the amount of the commissions earned; and the motion was denied, without prejudice to -an application to reduce the amount. The plaintiff immediately moved on affidavits to amend the warrant by reducing the amount to $8,948.24. The defendant also moved to reduce the attachment to $716.33. The plaintiff’s motion was granted, and defendant’s motion denied, and from the orders entered thereon defendant appeals, claiming (1) the court had no power, upon plaintiff’s application, to modify the warrant of attachment; (2) that no cause of action for $8,000," nor for any sum, for unliquidated damages, was disclosed in the new affidavit.

It is contended by defendant that applications to reduce an attachment can only be made by the. defendant or a subsequent lienor, and that the right of a plaintiff to sustain his attachment in any manner by new proofs is restricted to cases where the defendant applies on affidavit to vacate or modify the warrant. Code, §§ 682, 683. If the general power of amendment allowed by the Code (sections 723, 724), and inherent in the court applies to attachment proceedings, snch power is not restricted by the sections relied upon by defendant. The object of those provisions was to give a defendant and subsequent lienors the fullest protection against excessive as well as unauthorized attachments; section 682 conferring the right to make the application, and section 683 prescribing the practice upon it. They contain no provision excepting attachment proceedings from the general powers of amendment conferred by the Code, and no such exception is to be implied. Kibbe v. Wetmore, 31 Hun, 424. The power to amend attachment proceedings had been asserted long before the enactment of the sections in question, and an intention to take it from the court should have been clearly expressed. Under the old Code, giving the courts the power to amend any proceedings, correcting a mistake in any respect, and inserting all eg ,tians material to the case (Code Proc. "§ 178), it was held that ¡ 'n attachrirent, not being original process, as under the Eevised Si ktute, but a proceeding in the action, the warrant and the affidav ts on which it was granted might be amended like any other pr feeding; and so affidavits were received to supply defects in the original affidavits and . show facts authorizing the attachment. Furman v. Walter, 13 How. Prac. 348-359. See¡ also, Kiss m v. Marshall, 10 Abb. Prac. 426. The present Code is even ' more liberal in conferring the power of amendment. It not o' ly reenacts» the provisions of the former Code giving the court power to amend any proceeding by supplying material allegation j (section 723), but it expressly confers power to relieve a party from the consequences of a failure to strictly observe statutory'requirements, and provides that when his proceeding fails to confirm to a provision of the Code the court may permit an amende ent to conform it to such provision. Section 724. These sections confer ample power to amend proceedings to enforce any provisional remedy, as well as other proceedings, in an action, by su] plying omissions of material matter required by the Code. The ,mendment made at the special term in this case in no wise straiyed the power thus conferred. The plaintiff had set forth in his original affidavits very fully all the facts showing his contract,. ¡ ,nd the breach of it, and the gross amount actually earned under ,t; and in support of his claim for unliquidated damages stated thal he had “ maintained an office in the city of New York, and empoyed a number of salesmen, for the purpose of such agency for the defendant; and, based upon the amount of the sales efferted by plaintiff for defendant during the period of the performance of said contract, as well as his knowledge of the facts hereinbefore stated, deponent says that the value of said contract to the plaintiff for .the unexpired term thereof after the breach of the same by defendant as-aforesaid, to wit, two years, nine months, and fifteen days, is the sum of $15,017.05, in which sum this deponent has been damaged by reason of defendant’s breach of contract as above described.” This allegation was partly a conclusion and insufficient ( Westervelt v. Agrumaria Sicula, Societa Anonima de Transporti Marittimi, 58 Hun, 147; 83 St. Rep. 833), but the plaintiff’s new affidavit, taken in connection with the original affidavit, showed a net profit of $982.91 during the time he was actually permitted to perform under the contract after deducting his expenses, $810.18, from the gross amount of his earnings; and showed that, computing at that rate for the term the contract had to run, his expectation of profit was $8,231.87. This, added to the commissions actually earned, $716.33, makes a total of $8,948.20, which he asked by his motion to have inserted in the attachment, instead of the sum in which it was orginally issued. It thus appears that the only omission in the original affidavit was to make a formal computation of receipts for the whole period, and to specify and deduct the expenses therefrom, and the error was in claiming as damages the gross, and not the net, profits to be earned under the contract. A more meritorious case for amendment could hardly be conceived, as it simply supplied one factor in a simple computation, and reduced the claim to a proper amount. With this amendment, a prima facie case for unliquidated damages was made out for prospective profits under such a contract, and were recoverable as the value of the contract. Wakeman v. Manufacturing Co., 101 N. Y. 205. There was nothing speculative about these profits. They were computed upon actual experience in the performance of tire contract up to the time it was broken by defendant, and “ under such circumstances courts ought not to be too precise and exacting in regard to the evidences upon which to base a claim for damages resulting from loss of future profits.” Dart v. Laimbeer, 107 N. Y. 664; 12 St. Rep. 48.

■ The plaintiff’s motion for amendment of the attachment was therefore properly granted, and the defendant’s motion to reduce it to $716.33 was properly denied.

The orders appealed from should be affirmed, with costs and disbursements of appeal. But one bill of costs should be taxed, as the appeals were argued together.

All concur.


source: Caselaw Access Project

author: Pryor, J.

license: Public Domain

text:
    Charles F. Hart, Resp’t, v. Frank McSwegan et al. App’lts.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Trial—Striking out testimony.
    A refusal to grant a motion striking out the evidence on the ground that it is hearsay, is not error, where the informant of the witness afterwards verifies the fact, and the court is not requested to instruct the jury to disregard the evidence.
    Appeal from a judgment of the city court, affirming the judgment entered on the verdict in favor of the plaintiff.

      John Sidney Davenport, for app’lts ; Earnest Hall, for resp’t.
   Pryor, J.

In this action, for the value of labor and material, the controversy was upon the question whether the plaintiff could charge Hew York prices for work in Elizabethport, H. J., and for the expense of carrying and boarding his workmen in Elizabeth-port. The solution of the problem depended upon the mutual understanding of the parties, and this again, upon the circumstances of their negotiation. To the knowledge of defendant, plaintiff’s shop and men were in Hew York, yet he employed plaintiff to do the work in Elizabethport. It is hardly conceivable that he expected plaintiff to do the work for a less price than he got in Hew York, or to transport his men and support them at his own expense. This-expense was a necessary element in the value of the work. In elucidating the understanding of the parties upon the point, the custom of the business was a pertinent and significant fact. But, indeed, the defendant had notice, in the estimates furnished him, that he would be charged for the carriage and subsistence of the men; and, with this knowledge, he was content to engage the plaintiff to perform the work upon terms to be implied from the circumstances of the employment. Nay more; the estimate' gave the cost of the work as a greater sum than was actually charged,—excluding extras,—and still defendant ordered the work. How can he object to the amount? The value of the work was submitted to. the determination of the jury, and, after affirmance of the general term of the court below, their conclusion, upon sufficient proof, is obligatory with us.

Evidence of custom was not introduced to establish an express contract, but only to show a circumstance relevant to a term of the implied agrément, namely, the price defendant was to pay for the work. For the same purpose the parley between the parties and the estimates were competent proof. The exceptions to the admission of evidence are-.either founded on no specific objection, or else are to proof manifestly competent upon the propriety bf the charge for the work. If it was error to exclude evidence of wages -in Elizabethport, the error was obviated by subsequent reception of the proof. The reason for the ruling could not be a ground of exception. On cross-examination, defendant drew from a witness a fact which he stated' upon hearsay, whereupon defendant moved to strike out the evidence, The informant of the witness afterwards verified the fact. The court was not requested to instruct the jury to disregard the evidence. The refusal to strike out was not error. Platner v. Platner, 78 N. Y. 90, 101.

The only available exception to the charge is “to that part, which says, 1H there was an agreement between the plaintiff and Mr. McSwegan that he might take New York laborers down there, and charge fifty cents an hour, he can charge it for New York laborers,’ ” to which the answer is that we discover no such proposition in the charge.

The judgment and order affirmed, with .costs.

All concur.


author: Pbyob, J. Daly, 0. J.

text:
    Richard Wayne Wilson, App’lt, v. Press Publishing Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    1. Trial—Dismissal of complaint.
    If, in any aspect, a complaint exhibits a right to any relief, it may not he dismissed on the opening, unless the opening concedes a fact fatal to the maintenance of the action.
    3. Bailment—Breach by bailee—Bight of possession.
    If one hire his services and goods to another for a determinate period- and during the period the other prevents performance of the,contract, the former is entitled, on demand, to the possession of his goods.
    3. Damages—Injury to business.
    If, by a wrongful act, operating as a proximate cause, one’s business be ruined by another, the latter is answerable in damages for the destruction of the business.
    Appeal from a judgment dismissing the complaint on the case.

      Clifford W. Hartridge, for app’lt; John M. Bowers, for resp’t.
   Pbyob, J.

Before the introduction of any evidence, the complaint was dismissed, on the ground that, upon its allegations and the opening, the plaintiff could not maintain the action; in other words, that no cause of action was exhibited to the court. A motion to dismiss a complaint for defect of substance is in the nature of a demurrer, and the sole question presented by such motion is whether the pleading sufficiently states a cause of action. Sheridan v. JacJcson, 72 N. Y. 170; Kley v. Healy, 127 id. 555, 560; 40 St. Rep. 215.

If the complaint show that the plaintiff is entitled to some relief, it is not'open to demurrer, because it states the facts inartiffcially and argumentatively, and combines different causes of action and demands an inappropriate judgment. Wetmore v. Porter, 92 N. Y. 76, 80; Sanders v. Soutter, 126 N. Y. 198; 37 St. Rep. 1.

As a against a demurrer, a complaint “will be deemed to allege what can, by reasonable and fair intendment, be implied from the alllegations.” Marie v. Garrison, 83 N. Y. 14. If, in any aspect the complaint reveal a right to any relief, the plaintiff will not be turned out of court for technical error in naming his action. Johnson v. Girdwood, 7 Misc. Rep.651; 58 St. Rep. 338; Id., 143 N.Y. 660; 63 St. Rep. 866. To warrant a dismissal on the opening, it must contain an admission fatal to the case (Stewart v. Hamilton, 3 Rob. [N. Y.] 672; 18 Abb. Prac. 298); and such admission will not be assumed on appeal, Kley v. Healy, 127 N. Y. 555, 559; 40 St. Rep. 215.

Construing the complaint and opening by the principles thus prescribed to us by imperative authority, we are unable to conclude that, from the facts stated, the plaintiff shows no title to relief. On the contrary, our clear conviction is that an actionable wrong is apparent upon the facts disclosed to the court. The complaint alleges that the plaintiff had conceived and developed into a profitable business a system of advertising agency; that to the operation of this system certain properties and instrumentalities, as well as his own personal services, were indispensable; that plaintiff agreed to hire that business, and those services, properties and instrumentalities, to the defendant for a period of one year; that for so letting his business, services and properties to the defendant, he was to be paid a salary and percentage of profits, and-to be furnished room in the defendant’s building; that, pursuant to the contract, he transferred his businesss, properties, and services to the defendant’s building, and there conducted the advertising agency as the employe of the defendant; that, before the expiration of the stipulated term of hiring, the defendant “without cause maliciously and forcibly entered and took possession of the rooms occupied by plaintiff, and took possession of the property of the plaintiff, to wit, certain books, papers, documents, furniture, and about §300 in money, and converted and disposed of the same to its use, and still unlawfully detains the same from the plaintiff, and had excluded the plaintiff and his employes from the occupancy of said rooms, and the use of said books, papers, documents, and money, and prevented him or them from using the same, and from the transaction of said business, as aforesaid ; ” that, by consequence, “the plaintiff has been deprived of the means of transacting his said business, and ever since has been, and now is, unable to transact the same, and his said business has been interrupted, if not wholly destroyed, to his damage $50,000; that plaintiff has demanded of the defendant possession of said office, and said books, papers, documents, furniture, and money, but defendant refused to deliver the same, or any part thereof; ” wherefore judgment is asked for the sum of $50,000 damages.

The fact that the defendant “ without cause,” i. e. wrongfully, maliciously, and forcibly, prevented the plaintiff from the transaction of the business he was hired to conduct, involves a breach of the contract on the part of the defendant, which authorized the plaintiff to treat it as at an end. Graves v. White, 87 N. Y. 463, 465. That the complaint exhibits an actionable wrong, with consequent damage, is a self-evident and indisputable proposition. But the contention is that, in his opening, the plaintiff abandoned the action for breach of contract, and stood exclusively upon the ground of injury to his property. The variance between the complaint and the proposed proof may be conceded, for argument; and had the defendant objected to the case as opened, because different from the action pleaded, upon that supposition, his present position would be impregnable. Not only, however, did he raise no question as to a discrepancy between the complaint and the case as opened, but he admitted their identity; moving to dismiss on the ground that “the action pleaded and set forth in the opening cannot be maintained.”

The defendant may not now be heard to say that the plaintiff . proposed to prove another cause of action than that presented by the complaint. Wells v. World's Dispensary M. Association, 120 N. Y. 630; 30 St. Rep. 909; Frear v. Sweet, 118 N. Y. 424 ; 29 St. Rep. 972. Indeed, the defendant assumes no such position, and his contention still is that the allegations of the complaint, as qualified by the opening, are insufficient to constitute any cause of action. In the opening the plaintiff disclaimed that the action is for his wrongful discharge, or upon contract, or for conversion; protesting in terms, and over and, over again, that the wrong of which he complained and- proposed to prove was injury to his property,—to his personal property and to his business.

The allegation of the complaint, we remember, is that the defendant wrongfully prevented the plaintiff from the prosecution of his business, in pursuance of the agreement, and the statement in the opening is that defendant “ arbitrarily terminated his arrangement ; ” that is, the contract with the plaintiff. What, then were plaintiff’s rights ? Upon the assumption, even, that the defendant was entitled to the possession of plaintiff’s properties pending performance of the contract, after termination of the defendant had no right to retain them.

The right of defendant to the possession of properties was only under the contract, and during the existence of the contract; and the moment the contract was determined, whether wrongfully or rightfully, the possession reverted to the plaintiff. The contract at an end, it was the duty of defendant to suffer plaintiff to resume possession of his properties, and the retention of them by defendant after demand was, upon the plainest principles, an actionable wrong, for which plaintiff is entitled to be recompensed in damages. No matter, though it appears in the opening that, ten months after action brought, some, if not all, of the goods were returned to plaintiff, the fact is effectual, not to defeat the action, but only to reduce the damages. People v. Bank of North America, 75 N. Y. 548; 2 Grreenl. Ev. § 276. Nay, more. Not only may plaintiff maintain the action for the unlawful detention of his goods, but, upon the allegation in the complaint (not withdrawn or restricted, but amplified, rather, in the opening) that by the wrongful and malicious termination of the contract, and seizure of his goods, his business was broken up, he may recover, to the full extent for the destruction of the business.

It is clear beyond rational controversy that, upon the face of his pleading and opening, the plaintiff is entitled to legal redress ; and hence the conclusion that the court erred in the dismissal of the complaint.

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

Bischoff, J., concurs.

Daly, 0. J.

(concurring).—The action which the plaintiff has brought for unlawful seizure and detention of his books and property, and for injury to his business, is the only one in which he could be adequately compensated for the actual damage he has sustained, if his allegations in that regard are substantiated. The action for the breach of his contract with the defendant would give him as damages the value of the contract, which was for only one year, while the damage actually done, as he claimed, is much more extensive; since the seizure and detention of his books and papers caused a disruption of a business which he had built up and maintained long before his connection with defendant, which he might prosecute indefinitely after those relations were at an end, and which might.be altogether destroyed, if interrupted by defendant in such a manner as to entail the loss of customers, trade and good will. As this form of action may be maintained, as pointed out by Judge Pryor, I concur for reversal and a new trial.


author: Fitzsimons, J.

text:
    Morris Schoenholtz, Resp’t, v. Third Avenue Railroad Company, App’lt.

      (New York City Court, General Term,

      Filed November 26, 1895.)

    Bailment—Injury to property.
    A bailee for hire, in an action by Mm to recover damages to the property caused by the carelessness of the defendant, may show the amount paid for the repair of the damage.
    Appeal from a judgment in favor of plaintiff.

      Hoadly, Luuierbach & Johnson, for app’lt; M. Strassman, for resp’t.
   Fitzsimons, J.

The evidence shows that the plaintiff hired the wagon damaged. He therefore had a special property in the same. That being so, and it having been damaged by the carelessness of the defendant, the plaintiff had the right to recover; to have the damage repaired, and charge the expense thereof to the defendant. So the trial justice was right in allowing plaintiff to prove what he had to pay to have such damage repaired. That is the only exception taken to the admission or exclusion of testh many. The only exception to the judge’s charge is based upon that part of the charge which directs the jury to find for plaintiff for such repairs, the amount being $23.50, in case they rendered a verdict in his favor. All the rest of the exceptions are taken to certain requests which plaintiff requested the court to charge in his favor, and also because of the refusal of the court to charge certain requests of the defendant. The judge’s charge, in our opinion, submitted to the jury fully and fairly the law of the case. It appears to us that it was very mudh in defendant’s favor because of the fact, apparently, that plaintiff’s counsel deemed it his duty to submit twenty-eight requests to -charge. Many' of them were substantially embraced in the judge’s charge. The defendant submitted seventeen such requests. Many of them also were included in the judge’s charge. A careful reading of these forty-five requests-convinces us that the main object counsel had in view in their submission was to entrap the trial justice, and to obtain something which they were unable to secure during the submission of the evidence or against the judge’s charge, viz. a good exception. Such a practice should not be encouraged. As before stated, the judge’s charge contained all the law that it was necessary for the jury to know, so far as this case was concerned ; and counsel were certainly satisfied with it, because no substantial objection was taken to it; and counsel, in all fairness, should have rested there. Every request that was charged in plaintiff’s favor and at his suggestion was excepted to by the defendant’s counsel, and every request that the justice refused to charge as requested by the defendant was excepted to, as well as any modification of such requests; but none of the exceptions so taken, in our judgment, should entitle defendant to a new trial.

The judgment must be affirmed, with costs.


author: Follett, J.

text:
    In the Matter of the Application of the Board of Street Opening and Improvement Relative to the Opening of 136th Street.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Municipal corporation—Street opening—Procedure.
    Where a petition alleges that the petitioners have accordingly directed that upon a date to be hereafter more fully specified, not less than six months after the filing of the oaths of the commissioners, the title to each and every piece and parcel of land lying within the lines of said street shall be vested in the mayor, aldermen and commonalty of the city of New York, and such allegation is inserted in the order appointing the commis* sioners, it is a full compliance with section 956, chapter 410 of 1882, as amended by chapter 660 of 1893.
    2. Same—Powers.
    The statute is designed to prohibit individuals from opening streets crossing their property as a matter of private enterprise, and does not restrict the exclusive power, conferred by section 955 of the Consolidation Act on the board of street opening and improvement in the matter of laying out streets.
    Appeal from an order, appointing commissioners of estimate and assessment.

      James A. Deering, for app’lt; Henry De Forest Baldwin, for resp’t, city of New York.
   Follett, J.

The principal question involved in this appeal is whether the “ board of street opening and improvement ” is authorized by section 955 of the Consolidation Act to lay out new streets without the approbation and permission of the common council, granted pursuant to section 94 of that act. Upon this question the reasoning and conclusion of the learned judge at special term is satisfactory, and we are quite willing to adopt his opinion on this question.

The learned counsel for the appellant urges that it does not appear in the application for the appointment of commissioners that the corporation counsel had been requested by the board of street opening and improvement to institute these proceedings.

At folio 22 of the petition we find the following allegation:

“ That they (the petitioners) have duly requested the counsel to the corporation to take proceedings in the name of the mayor, aldermen, and commonalty of said city to acquire title to the lands required for the opening and extending of One Hundred and Thirty-sixth street (although not yet named by proper authority), -from Amsterdam avenue to the Boulevard, in the Twelfth ward of the city of New York.”

At folio 29 of the petition is the following allegation:

“ And your petitioners further show that on or about the 2d day of January, 1895, they requested the counsel to the corporation, in writing, to take proceedings in the name of the mayor, aldermen, and commonalty of the city of New York to acquire title for the use of the public to the land required for the opening and extending of One Hundred and Thirty-sixth street (although not yet named by proper authority), from Amsterdam avenue go the Boulevard, in the Twelfth ward of the city of New York, and for that purpose to make application to the supreme court in the first judicial district for the appointment of commissioners of estimate and assessment in the manner now provided by law.”

These allegations seem to us quite sufficient.

It is also urged that the proceedings are irregular because a u fixed or specified time ” is not named when the city shall become seised in fee of the lands sought to be acquired.

Section 956 of the’Consolidation Act; as amended by chapter ' 660 of the Laws of 1898, provides that, when lands are taken upon which there are no buildings, the date when the title is to be acquired shall be fixed and. specified; but it provides that, where there are buildings upon the lands to be acquired, the time fixed shall be “ upon a day not less than six months from the date ef the filing of such oath ” (referring to the oaths of the commissioners of estimate and assessment).

At folio 25 of the petition we find the following allegation:

“ That they (the petitioners) have accordingly directed that upon a date to be hereafter more fully specified, not less than six months after the filing of the oaths of the commissioners of estimate and assessment who may be appointed by the supreme court in proceedings for the acquisition of title to said street, the title to each and every piece or parcel of land lying within the lines of said One Hundred and Thirty-sixth street .(although not yet named by proper authority), from Amsterdam avenue to the Boulevard, in the Twelfth ward of the city of New York, so to be opened, and so required, and hereinbefore particularly described and set forth,'shall be vested in the mayor, aldermen, and commonalty of the city of New York.”

At folio 105 the allegation above quoted is inserted in the order appointing commissioners. This seems to be a complete compliance with the provisions of the statute.

The order should be affirmed, with costs.

All concur.


author: Van Brunt, P. J_

text:
    Annie Naughton et al., as Executors, etc., Resp’ts, v. Ann Vion et al., Def’ts, Bridget M. Dooley, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    Judgment—Relief.
    Where a judgment has been entered for relief to which the plaintiff, by his allegations, has shown himself to be entitled, the judgment is not void because he does not demand such relief. So, adjudgment of foreclosure rendered by default was held not to be void because the prayer of the complaint did not ask that the equity of redemption of the then owner of the fee be barred and foreclosed, where such owner purchased subsequent to the giving of the mortgage, was made a party, and was duly served with the summons, and the allegations of the complaint were sufficient to entitle plaintiff to the relief granted.
    Appeal from an interlocutory judgment in favor of plaintiff.

      D. McClure, for app’lt; A. L. Brown, for resp’t.
   Van Brunt, P. J_

In February, 1874, one James Naughton being the owner of the premises in question, mortgaged the same to one James Dooley, to secure the payment of $33,250. After Naughton had made the mortgage, he conveyed the premises covered by the mortgage to John E. Naughton, who, in turn, conveyed them to Eliza Naughion. Dooley assigned the bond and mortgage to a man by the name of Wallace, who commenced an action to foreclose said mortgage. At this time Eliza Naughton was the owner of the fee. She was made a party defendant to the foreclosure suit, and was served with the summons, together with a notice of the object of the action. She did not appear in the action. Thereafter such proceedings were had that a judgment of foreclosure and sale was entered, which, among other things, adjudged that the defendants and all petsons claiming under them, or any or either of them, after the filing of such notice of pendency of the action, be forever barred -and foreclosed. Under this judgment a sale was had, upon which the plaintiff in that action bought the property, and the defendants in this suit claim through him. Eliza Naughton, the owner of the equity of redemption at the time of the foreclosure, died in October, 1891, leaving a last will and testament, which was duly admitted to probate by the surrogate’s court of the county of New York, by which will her residuary estate was devised to her son, John É. Naughton, and her daughter, Annie Naughton, as trustees upon certain trusts. These trustees bring the present action to redeem, basing their right to such relief upon the ground that the prayer of the complaint in the foreclosure suit did not ask that the equity of redemption of Eliza Naughton should be barred and foreclosed, and that the judgment which was entered in that action, being for other relief, not prayed for in the complaint, is void so far as it cuts off the right to redeem of Mrs. Naughton. The plaintiff succeeded in the action, and, from the interlocutory judgment thereupon entered, this appeal is taken. The complaint is in the usual form of foreclosure action, and alleges that Eliza Naughton had or claimed to have some interest in or lien upon said mortgaged premises, or some part thereof, which interest or lien, if any, had accrued subsequently to the lien of said mortgage. The complaint demanded judgment that the defendant James Naughton (the person who conveyed the fee to John E. Naughton) and all persons claiming under him, subsequent to the commencement of this action; might be barred and foreclosed, etc., and did not ask relief barring and foreclosing his grantees.

It is claimed, as already stated, that the judgment of foreclosure and sale barring these parties was irregular and void, upon the ground that, the parties being in default, a judgment more favorable to the plaintiffs than that demanded in the complaint could not be had. It may be true that the judgment was irregular, but, it was not void; and, if it was not void, this action cannot be maintained. None of the cases cited upon the part of the respondents hold that such a judgment is void. It is true that it is held that judgment will not be permitted upon default for more than is asked for in the complaint,- and, upon motion in the action in which such a judgment has been entered, such judgment will be set aside where justice requires it. But in no case has'it been held that where a judgment has been entered for relief to which the plaintiff, by his allegations, has shown himself to be entitled, the judgment is void because he did not demand such relief. It is clear that if, after the service of the summons and notice of object of action in this suit upon the owner of the equity of redemption, the plaintiff had discovered the omission in the prayer of his complaint, upon an ex parte application the court would have had the right to have cured the defect. And that such right, exists even after judgment seems to be established by the case of Hogan v. Hoyt, 37 N. Y. 300. In that case a decree of foreclosure was entered appointing a referee to sell. Instead of the sale being made by the referee, it was made by the sheriff.. This discrepancy having been discovered upon an examination of the title by a proposed' purchaser, a motion was made to amend the decree by striking out the name of the referee and inserting that of the sheriff, by whom the sale was actually made. Such motion was granted by the special term, affirmed by 'the general term and by the court of appeals. In the case of Hatch v. Bank, 78 N. Y. 487, after the plaintiffs, had recovered a judgment, and it was satisfied, a motion was made to vacate the judgment, which was done, and new causes of action allowed to be added, although, by so doing, the statute of limitations was avoided. The case of Ladd v. Stevenson, 112 N. Y. 325; 20 St. Rep. 746, lays down the broad principles that pleadings and proceedings may be amended, entirely independent of the Code, where the furtherance of justice requires it; that it is an inherent power in the court, which it Would-be quite unfortunate if it did not possess to the .fullest extent. The judgment in question in the case at bar, therefore, being capable of amendment, was not void, and is a bar to the maintenance of the present action.

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

All concur.


text:
    Kate Ryan, as Administratrix, etc., Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    Municipal corporations—Officers—Discharq-e.
    Where plaintiff’s intestate, while employed by the New York aqeduct commissioners as an inspector, was reported by the engineer in charge for intoxication, inattention and unfitness, and, by direction of the commissioners, his resignation was demanded, and from that time he rendered no service and applied for no further pay, though he applied at different times for reinstatement, the demand for his resignation was in effect his discharge, and his employment ceased from that time.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      James T. Malone, for app'lt; L. K Warren, for resp’t.
   Follett, J.

This action was begun July 15,1891, to recover the arrears of salary alleged to be due the plaintiff from the defendant, By chapter 490, Laws 1883 (amended by chapters 377, Laws 1886,'196, Laws 1887, and 584, Laws 1888),—an act to supply the city of New York with an increased supply of water, —it was provided that certain officers of the city and certain persons named in the act should be “Aqueduct Commissioners,” and empowered to carry the provisions óf the act into effect. By the thirtieth section of -the act it is provided :

“ The work and materials called for by said contract shall be done and furnished under the direction and supervision, and subject to the inspection of the aqueduct commissioners, their engineers, supervisors and inspectors.’

By the thirty-first section it is provided:

“ The salaries and compensation of the persons employed, as provided for in this act, to prepare the necessary surveys, plans and estimates, and to direct, supervise and inspect the work required to be done under the provisions of this act, * * * shall be paid by the comptroller of the city of New York, on the certification of the said aqueduct commissioners, or of such person or persons as may be designated by them.”

By the fortieth section it is provided:

“ Sec. 40, No person shall be appointed by the said aqueduct commissioners as inspector or superintendent, who shall not be certified by at least three members of the commission to be competent and fit for the duties of the position for which he is an applicant and experienced in the subject matter of the employment.”

These are only provisions in the act relating to the employment and compensation of the employes of the aqueduct commissioners. June 8, 1887, the plaintiff’s intestate, by a resolution of the aqueduct commissioners, was employed or appointed as an “ inspector of masonry,” and June 10, 1887, be filed an oath of office with the aqueduct commissioners, and July 21, 1887, he entered upon his duties. For July, he was paid for eleven days’ service; in August, he was paid for twenty-eight days; in September, for a month’s service; and in October he was paid for service up to the 24th,—at the rate of $120 per month. The plaintiff, for the purpose1 of establishing her cause of action, introduced a letter of the division engineer, dated October 25, 1887, addressed to the chief engineer, in which it is stated that yesterday morning, October 24, 1887, William Eyan reported for duty, about ten a. m., considerably intoxicated; that he was reprimanded, and told that he was to be suspended; and that Ryan replied that if he was going to do it, he had better do it at once, as he wanted to go to the city for a week. It was also stated in this letter that Eyan was otherwise insubordinate, and that he had caused considerable trouble while on duty when under the influence of liquor. The letter further stated that he was of no use on the work. Upon the receipt of this letter the chief engineer asked that the resignation of Eyan be demanded. At a meeting of the aqueduct commissioners held October 26, 1887, a resolution was adopted directing the chief engineer to ask for the resignation of Ryan. Upon this resolution the chief engineer, on the 27th of October, 1887, directed the division engineer to require that “ the resignation of Inspector William Ryan be demanded forthwith.” On the next day the division engineer delivered to William Ryan a letter referring to the action of the commissioners on the 26th of October, which concluded as follows: “ I hereby call upon you for your resignation forthwith.” It does not appear that, after October 24, 1887, William Ryan ever performed any service as an inspector of masonry, or that he ever offered to perform such service, but it does appear that on many occasions subsequent to the date mentioned he applied to be “ reinstated ” as an inspector of masonry, which was never complied with. Neither does it appear that William Ryan ever received or asked for a certificate for work done, as provided by the portion of section 31 above quoted. The employes of the aqueduct commissioners are not the employes of the city, but an independent body. December 19, 1889, the following letter was written and delivered to Ryan :

“New York, Dec. 19, 1889.

“ William Ryan, Esq., One Hundred and Tenth Street and Boulevard—Dear Sir : At a stated meeting of the aqueduct commissioners, held on the 18th instant, it appearing that your services would be no longer required as an inspector of masonry, you are dismissed from the service of said commissioners.

“Respectfully, John Sheehan, Secretary.”

Upon this evidence the learned trial judge submitted to the jury the question whether the commissioners and Ryan understood that the action taken amounted to a discharge, The jury decided this question in favor of the plaintiff, and rendered a verdict for $4,-126.20, which was based on the theory that Ryan was entitled to-compensation at the rate of $120 per month from October 24, 1887, to December 19,1889, the date of his formal discharge. Assuming, as we must, that Ryan was an “officer” (Emmitt v. City of New York, 128 N. Y. 117; 38 St. Rep. 907; Myers v. City of New York, 69 Hun, 291; 53 St. Rep. 233, we are of the opinion that this-verdict is contrary to the evidence. From the nature of the charge preferred against Ryan, that he was incompetent by reason of intoxication and insubordination, it must have been understood by him, ag well as by the commissioners, that the demand for his resignation was tantamount to a discharge. From this time to the date of the formal discharge, which was, evidently induced by certain decisions which had been made, Ryan performed no service for the commissioners, and, so far as it appears, he did not report at the work as ready-and willing to serve in the capacity in which he had previously been employed. Under the act, inspectors of masonry do not seem to be entitled to any greater consideration than laborers, or any of the other employes of the commissioners. There is no period of service fixed by the statute, and their employment is for such time as the commissioners may deem wise. There was no conflict in the evidence, and we think the jury erred in the inference which it drew therefrom, and that the trial court erred in denying the defendant’s motion for a new trial, made on the minutes, upon the ground that the verdict was contrary to the evidence.

The judgment and order are reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.


author: Van Brunt,.P. J. Parker, J.,

text:
    George S. Clay et al., App’lts, v. Lucretia M. Wood et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    WIlls—Construction.
    Where the testator, after making specific devises' and bequests to his wife and others, gives the residue of his estate to his wife and to her heirs, executors, administrators and assigns forever, and the will further provided: “And it is my desire and request that my said wife do sustain, provide for and educate L., the daughter of my said adopted daughter J., and it is my further desire and request that my wife do make the said L., J., and my nephews and nieces joint heirs, after her death, in the said estate which by this will I have bequeathed to my said wife,” the widow takes the property absolutely, and the provision of her husband’s will imposes no limitation on her estate and creates no trust in favor of the persons named therein.
    Appeal from a judgment dismissing the complaint.
    The facts are stated by Mr. Justice Parker as follows:
    William W. Clay died on the 21st of October, 1875, leaving a last will dated May 24, 1859. By the said will the testator devised and bequeathed his property as follows: First. He directed Ms debts and funeral and testamentary expenses to be paid, among which debts was included the mortgage then a lien on his house and lot Ho. 23 West Thirty-first street, New York city, provided it should not be paid before his death. Second. He gave to his wife the said house and lot, and the household furniture, etc., contained in the house, and also the sum of $20,000, which sum was to be paid before any legacies thereinafter bequeathed. Third. He bequeathed to his two brothers, Caleb S. Clay and to his sister, Lucinda S. Clay, each the sum of $5,000. Fourth. He gave to his nephew William W. Clay, Jr., the son of his brother George Clay, $1,000, and one share of stock in a library association; to his nephew Edmund P. Clay, the son of his brother Caleb S. Clay, $500; and to his adopted daughter, Mrs. Josephine M. Wood, $3,000. He then provided, in case his estate was insufficient to pay these legacies in full after the payment of his debts, funeral expenses, and legacies to his wife, that these legacies should be reduced proportionately, and that in no case should they be a lien or charge upon the house and lot or household goods. The fifth clause, which occasions the controversy in this case, is as follows: “ Fifth. All the rest, residue, and remainder of my estate, real, personal, and mixed, of which I shall or may die seised and possessed, or to which I shall be entitled at the time of my decease, after paying my debts and funeral expenses and testamentary expenses, and the legacies above bequeathed. I do give, devise, and bequeath to my beloved wife, Lucretia M. Clay, and to her heirs, executors, administrators and assigns forever. And it is my desire and request that my said wife do sustain, provide for, and educate Lucretia M. Wood, the daughter of my said adopted daughter, Josephine M. Wood. And it is my further desire and request that my wife do make the said Lucretia M. Wood, Josephine M. Wood, and my nephews and nieces, the children of my brothers, Caleb S. Clay and George Clay, joint heirs, after her death,, in the said estate which by this will I have-bequeathed to my said wife.” Shortly after the death of William W. Olay, his widow, Lucretia M. Clay, made her will, by which she undertook to give all of the property to persons other than the children of Caleb S. Clay and George Clay. . After the death of - Lucretia M. Clay, and the probate of her will, this action was brought to obtain a judicial construction of the will of William W. Clay, deceased, late of the city and county of New York, and for an accounting of the personal property bequeathed therein, and partition thereof, and for an account of the rents and profits, and partition of the real estate devised therein. 0

      Johh F. Dillon, for app’lts; James L. Bishop, for resp’ts.
   Van Brunt,.P. J.

I cannot concur in the conclusion arrived at by Mr. Justice Parker iii this case. It seems clear to me'that it was not the intention of the testator to limit the estate which he had given, devised, and bequeathed to his wife in such absolute and unmistakable terms by anything that, was subsequently contained in the will. It seems to me idle to suppose that the testator in one breath should give to his wife all the rest, residue, and remainder of his estate, and to her heirs, executors, administrators, and assigns forever, and then, in the very next sentence, say that she should have only a life estate therein. The words do not require any such inconsistent action upon the part of testator, and, in my judgment, such a limitation upon the estate given to the wife would be contrary to his intentions. In the very next sentence after having given to his wife all the residue of the estate as absolutely as it was possible for language to do so, using words of succession, which were not at all necessary, giving it to her heirs, executors, administrators, and assigns forever, he says: “And it is my desire and request that my said wife do sustain, provide for, and educate Lucretia M. Wood, the - daughter of my said adopted daughter, Josephine M. Wood. And it is my further desire and request that my wife do make the said Lucretia M. Wood, Josephine M. Wood, and my nephew and nieces, the children of-my brothers,"Caleb S. Clay and George Clay, joint heirs, after her death, in the said estate which by this will I have bequeathed to my said wife;” thus, in the very last words of the clause, declaring that he had given the estate to his wife. How can such language be construed to be a limitation upon an absolute gift? It is a request. He wished her to do it, but he did not intend to impose any obligation upon her so to do, unless she saw fit to comply with his desire and request. He did not intend to give these nephews and nieces a vested interest in this estate. He put the title in his wife, and then he says: “When you get through with it, I would like to have you give it to the nephews and nieces.” The testator did not give it to them. He did not intend to -give it to them. He only made the request that his wife should do so, evidently intending to give her the option, if she saw fit, not to make such disposition of her estate, because it was hers,—he said it was to be hers after his death; and it is the wife who is to give it,—a thing which the testator never attempted to do. In re Hamilton (1895) 2 Ch. 370.

The judgment should be affirmed, with costs.

Follett, J., concurs.

Parker, J.,

(dissenting).—I think both the argument and the decision of the court in Phillips v. Phillips, 112 N. Y. 197; 20 St. Rep. 301, calls for a reversal of the judgment. In that case the testator’s will gave to his wife all of his property, real and personal, named her as executrix, and then proceeded as follows:

“If she find it always convenient to pay my sister Caroline Buck the sum of $300 a year, and also to give my brother Edwin W., during his life, interest on $10,000 (or $700 a year), I wish it to be done.”

The widow paid to the brother the annuity for a single year, and then stopped, not because sh.e was unable or because it was convenient for her to pay, but because she chose not to pay. “The real intention,” said the. court, “of the testator was one of two things. He meant to make the annuities to his brother and sister dependent upon the existence of a specific fact, or upon the choice and will of his devisee. It they rest upon th§ former, the\r become a gift from him; if upon the latter, they have no existence outside of the choice of the widow.” Whether the use of the word “wish,” in the connection in which it was used, was sufficiently imperative or unequivocal to master the discretion involved in the absolute ownership previously given, or to rise to the level of a request or suggestion, was said by the court to be the leading proposition involved. As the primary question in every casé is the intention of the testator, it was said that the use of the words “I wish” or “I desire” is by no means conclusive. They raise the question, but do not decide it. Its decision must depend upon these words considered in connection with the whole will. 'That the word “wish” is frequently used by a testator as equivalent to a command was asserted by the court,—an assertion followed by an argument to proue that it was in such sense that the testator used it. In course of it, the court, after referring to the fact that the testator did not intend to make payment of the annuities dependent upon the choice of his wife, but upon her ability to pay if not convenient to her, said.

“Given that ability, he says, ‘I wish it to be done.’ The words are not, T wish her to do it,’ or ‘1 hope she will feel it to be her duty,’ or T trust she will see the propriety of such payment to be made,’ but, ‘I, the testator, dealing with my own bounty to her, I wish it to be done. It is my wish, not hers, that I put behind the annuities.’ ”

When, in the course of the argument, the court came to consider the effect of precatory words in wills, it said:

“It-is perfectly well settled that what are denominated ‘precatory words;’ when expressive of a wish or desire, may, in given instances, create a trust or impose a charge. Without a detailed consideration of the cases, it is quite clear that, as a general rule, they turn upon one important and vital inquiry; and that is whether the alleged bequest is so definite as to amount and subject-matter as to be capable of execution by the court, or whether it so depends upon the discretion of the general devisee as to be incapable of execution without superseding that discretion. In the latter case there can neither be a trust nor a charge, while in the former there may be, and will be, if such appears to have been the testamentary intention.”

I have thus fully- referred to the decision in the Phillips' Case that it may more readily appear, as we proceed in the examination of the will before us, on what we found the conclusion that both the argument and the decision, when applied to the language of this will, call for a determination that upon the death of Lucretia M. Clay so mubh of the estate as remained became vested in Josephine M. Wood, Lucretia M. Wood, and the children of Caleb S. Clay and George Clay, share and share alike. There are points of difference.between the two wills, which will be referred to later on, because they are substantial and entitled to consideration; but, in the main, the argument which found favor with the court Phillips' Case seems to us alike appicable and controlling in this case. In this case the testator, after using language adequate to vest in his wife the residuary estate, continued;

“And it is my desire and request that my said wife do sustain, provide for, and educate Lucretia M. Wood, the daughter of my said adopted daughter, Josephine M. Wood; and it is my further desire and request that my wife do make the said Lucretia M.. Wood, Josephine M. Wood, and my nephews and nieces, the children of my brothers, Caleb S.-Clay and George Clay, joint heirs, after her death, in the said estate which by this will I have bequeathed to my said wife.”

The determination in Phillips' Case that the use of the word “wish” is sufficient to raise the question whether the testator intended to control and direct the disposition intended necessarily determines that the word “desire,” employed in this will, accomplishes the same result. Indeed, the court said in that case that the words “I wish” or “I desire” have that effect. But, if the word “desire” had not been mentioned by the court, the holding that the word “wish” is sufficient for the purpose was necessarily equivalent to a decision that the word “desire" effectuates the same thing, for the words are synonymous. In Wabster’s International Dictionary it is said that “I wish you to do this” is a milder form of command than “I desire you to do this.” In Webster’s Unabridged Dictionary it is said;

“A man desires his friend to write often. A merchant desires his clerk to be more careful in the future. In the latter case, from the relations of the parties, 1 desire ’ is a stronger word than ‘ request.’ It implies a command or injunction."

In view of the decision in Phillips' case, there is no necessity to consider the relations existing between these parties,' for the purpose of reaching a determination that the word “desire” is sufficiently strong to present the question whether the testator intended by this language to control and direct the disposition of his property in the manner suggested in his will, for it is already determined, as we have said. But, as the relations which the parties bore to each other are proper to be considered in determining the meaning which the testator intended should be given to the word “desire,” it should be borne in mind when considering the will in its entirety.

Before examining the will for the purpose of ascertaining whether, as a whole, it indicates a settled purpose on the part of the testator to do that which the use of the word “ desire ” suggests, it will be well to have in mind what persons, if any, were so related to the testator as would naturally entitle them to consideration by him in the disposition of his estate. He had no living ancestors or descendants but he had a sister and brothers who had children; and be had an adopted daughter, who was the mother of a young child, who was named after testator’s wife.

These near relatives and the adopted daughter and her child appear to have been the subject of careful consideration by the testator when he came to decide how to dispose of his property. His wife either stood first in his affections, or else he regarded it his duty primarily to assure to her such comfort as a reasonable amount o£ property would afford; so he provided that, after payment of debts and funeral expenses, his wife should have the house and lot in which they lived, and all the household furniture and contents, together with the sum of $20,000, which sum was to be paid before any of the other legacies by the will bequeathed.

By the next clause he gave to his sister and brothers the sum of $5,000 each.

By the fourth provision he gave $1,000 to a son of his brother, George Olay, $500 to a son of his other brother, Caleb S. Olay, and $3,000 to his adopted daughter. To avoid any possibility of these legacies being a charge upon the real estate devised to his wife, he provided that if his estate should prove insufficient to pay all of the legacies in full, in addition to the devise and bequest to his wife, such legacies should be reduced proportionably.

Then follows the fifth clause, by which he gave all of the rest and remainder of his property to his wife, which also contains the provision hereinbefore quoted, in which he stated it to be his desire that his wife should sustain, provide for and educate Lucretia M. Wood, and that his.wile should make the adopted daughter and her daughter, and his nephews and nieces, children of his brothers, joint heirs, after her death, in the estate bequeathed to his wife by the will. He thus clearly marked out the objects of his bounty. And it is impossible to read the will without coming to the conclusion that he fully intended to provide adequately for the maintenance and comfort of his wife, and that his immediate relations, together with his adopted daughter and her child should be benefited so far as possible, consistent with his primary scheme of assuring a reasonable competence to her. This result he sought to accomplish by devising and bequeathing to her a certain amount of his estate, and giving to his brothers and sister and adopted daughter fixed amounts, and providing for the turning over by his wife of that which should remain of his estate to the persons described at her death. The argument in Phillips' Case to show that the provision for the brother and sister in that case was not meant to be dependent upon the controlled choice of the wife seems to us clearly applicable to this one. There is nothing in the language employed which suggests any discretion on the part of his wife. She was not authorized to make selection between two classes, to add other persons to the class named, or to give more to some members of the class than to others. On the contrary, the will, in effect, declared it to be the testator's wish that the persons who should constitute the class at the time of the death of testator’s wife should share equally in the estate remaining. It may be further observed, in this connection that the language employed fulfills all the conditions adequate to create a trust by precatory words:

(1) Because there is no hint of a discretion to be exercised by the wife. On the contrary, they exclude any idea of option on her part to make other disposition of the estate remaining than suggested by the testator.

(2) The property which the testator desired should be disposed of in the manner stated is definitely pointed out as “the said estate which by this will I have bequeathed to my wife.”

(3) The persons who are intended as beneficiaries of the testator’s bounty are clearly pointed out namely, nephews and nieces-of the testator, together with his adopted daughter and her child.. There was also, present an additional circumstance, always considered by the court, and to which reference has already been made, namely, the relation and situation of the testator towards-those whom he apparently desired to benefit. His scheme for the disposition of his property was, undoubtedly, as we have seen from the examination of the whole will, to give something to his brothers and sister, who, in the ordinary course of nature, would pass away shortly before or after the death of his wife, to provide for his wife amply during her life, and to secure such of the property as should remain to his relatives and adopted daughter and her child. I think it very clear that such was his purpose, and having reached that conclusion, the authority to which reference has so frequently been made requires us to hold that the words-employed in the fifth paragraph of the will, considered in connection with the entire instrument, created a trust in respect to so much of the property devised and bequeathed by the second and fifth paragraphs as should not be used by the widow during life.

The respect in which there is a marked difference between this will and the one in Phillips' Case, and which the respondent urges is of such a character as to call for an affirmance of the judgment, will now be considered. In this will the testator, in the second paragraph, followed the devise and bequest with the words, “her heirs and assigns forever; ” and the gift of the residuary estate, by the fifth paragraph, was followed by the words “ her heirs, executors, administrators, and assigns forever.” Had these words been omitted it would be difficult to find any foundation whatever for a claim that this case should not be controlled by the rule in Phillips' Case and of Colton v. Colton, 127 U. S. 300. In considering this conceded difference in form, it may be said, in the first place, that without the use of these words the language employed was sufficient to vest the estate in the testator’s wife. Their use did not enlarge the estate devised to her. Without them, and in the absence of the clause containing the precatory words, the entire residuary estate, as well as the real estate devised by the second clause, would have vested in her; and therefore, so far as the vesting of the estate is concerned, the result of the language used in this case is precisely the same as in Phillips’ Case. There, although these words were not used, the court held that the language employed was sufficient to vest absolutely the estate in the testator’s wife. To sustain respondent’s contention of an effective distinction between the two wills in this respect, some other ground for it must be found than that the residuary clause vested the estate in Mrs. Clay because of the words, “ and her heirs, executors, administrators, and assigns forever; ” for the language used in Phillips' Case was sufficient to accomplish the same result. Such a ground is not furnished by the suggestion that the devise and bequest to the wife, in the legal and technical form to convey the legal estate in fee, cannot be followed by an imposition upon the holder of such legal estate of a trust in respect to the whole or any part thereof, because of repugnancy or inconsistency. There can only be repugnancy in respect to estates of the same character. Where there is a disposition of the whole legal estate in fee, followed by an attempt to create a remainder in fee, the*last disposition is repugnant. But there is no repugnancy when the testator gives the legal estate in fee, and then imposes a duty upon the holder of the legal estate which constitutes in law, a trust. Had the testator devised and bequeathed to his wife, and to her heirs and assigns forever, a house and lot (describing them), but in trust, nevertheless, for the following purposes, to wit: to sustain, provide for, and educate Lucretia M. Wood, “ the daughter of my adopted daughter, Josephine M. Wood,” and upon the further trust, “ that my wife do make the said Lucretia M. Wood, Josephine M. Wood, and my nephews and nieces, children of my brothers, Caleb S. Clay, and George Clay, joint, heirs, after her death, in the said estate which by the will I have bequeathed to my said wife,” it would not be contended that a trust was not created by words apt and sufficient. In such a case it would not be questioned but the use of the phrase, “ heirs and assigns forever,” was intended as words of limitation, marking out the legal estate, and not as indicating any disposition of the beneficial interest. As used in this will, their legal effect is not different, if, from the whole will, it appears that the testator intended to direct his wife to make over the estate remaining at her death to the persons described in his will. In construing this will, therefore, these words seem only to be of importance in arriving at the intention of the testator. Did he intend by their use that not only the legal estate, but the beneficial interest as well, should vest absolutely in his wife ? Unquestionably, he intended to and did vest the legal estate in her; but in view of the exact and definite expression of the desire of the testator as set forth in the fifth paragraph of his will, considered in connection with the whole scheme of the will, and in the light of the authorities to which we have referred, it seems quite clear that they were used as words of limitation marking out the legal estate, and nothing more. That being the case, the expression of the testator’s desire was just as effectual to impose a trust on the real estate granted to Mrs. Clay as if testator had used the most apt and technical language known to the law for the purpose of expressing the testator’s intention to create such a trust. “ It is one of the fixed rules of equitable construction that there is no magic in particular words, and any expression that shows unequivocally the intention of the parties to create a trust will have the same effect.” Hill, Trustees, (2d Am. ed.) 83. The construction which I have suggested should be given to the will, and which seems to be warranted and required by the argument and decision in Phillips Case, makes the testator’s wife the trustee of the beneficial interest of the estate remaining at the time of her death for the persons described in the concluding paragraph of the fifth clause. This conclusion works out the wish of the testator as expressed in his will, and is just. It was his property, to dispose of as he chose. He undertook, by his will,— which is nothing but his wish expressed in writing, and attested as required by statute,— to make disposition of it. The person whom he trusted to execute his wishes does not attempt to carry them out. On the contrary, in violation of the confidence bestowed upon her,-—a confidence justified by the marriage rotation,—she attempted by her own will, and before the testator’s will was even probated, to exclude from participation in his bounty his blood relations. Her conduct was flagrantly disloyal, and'shocking to the moral sense; and it is fortunate that this attempted wrong can be prevented through the- application of those rules which courts of equity are allowed and required to enforce for the purpose of giving effect to the intention and desire of a testator, when not in conflict with some positive rule of law or public policy. The trustee failed to execute the trust reposed in her. She attempted to make disposition of the property, it is true, but the attempt was to make an unauthorized disposition of it, and therefore her act was illegal and of none effect. As the trust remained unexecuted upon her death, the estate remaining became at once vested in the cestuis qui trustent by operation of law. Watkins v. Reynolds, 123 N. Y. 211; 33 St. Rep. 173.

I advise a reversal of the judgment.


author: Brown, P. J.

text:
    Freeport Bank, Resp’t, v. George Hagemeyer et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Usury—What constitutes.
    Where the defendants made a note for the accommodation of the payee the proceeds of which were to be applied on outstanding notes of the payee, which were indorsed by defendants, and the payee placed the notes, in the hands of another party to he discounted, agreeing that he should retain one-half of the proceeds until maturity, and the latter party placed the notes in the hands of another person, agreeing that the latter should retain twenty-five per cent, of the proceeds for the same period, the transaction is a loan from the latter person to the defendants and the note void for usury.
    Appeal from a judgment entered on a verdict directed by the court in favor of plaintiff.

      William G. Beecher, for app’lt; George Wallace, for resp’t.
   Brown, P. J.

— This action was brought to recover upon a promissory note for $2,500, made by the appellants to the order of W. H. Chew, and payable four months after date. The defense was usury. It appeared by uncontradicted testimony that the note was made by the appellants and delivered to Chew in order that he might have it discounted, and the proceeds applied to the payment of notes made by the firm of Chew & Sadie, and indorsed by the appellants. Chew delivered the note to one Charles C. Cokefair upon the agreement that he was to procure its discount and pay to Chew in cash one-half of the proceeds, less six per cent. The other half Cokefair was to retain and use, and at maturity he was to repay the one-half receivéd by him. Coke-fair delivered the note to one Kendall, under an agreement with him that he was to procure it to be discounted, and retain twenty-five per cent, of the proceeds after taking out the discount, and at the maturity thereof to pay the one-quarter of the note received by him. Kendall paid to Cokefair seventy-five ner cent of the note, less the discount. Thereafter the plaintiff discounted the note for one Chellborg, and paid to him $2,434.79, which amount represented the face of the note less six per cent, discount and two per cent, charged for the cost of collection. The trial court held that the agreements testified to were not usurious, and directed a verdict for the plaintiff. I am unable to agree with this conclusion. If the agreements themselves did not conclusively establish usury, they were of such a remarkable character that the jury should have been permitted to determine whether they were made in good faith or as a mere cover to escape the effect of the usury law. But, as I understood the testimony, the agreement with Kendal! was usurious. The note was not a valid obligation in the hands of Chew. He could not have maintained an action upon-it against the appellants. It was accommodation paper, and its sale was merely a loan of money; the purchaser being the lender and the seller the borrower. Claflin v. Boorum, 122 N. Y. 385; 33 St. Rep. 640. The first one to advance money on the note was Kendall. It had no legal inception when sold to him, and the transaction, therefore, was a loan by Kendall to the defendants, through the agency of Cokefair and Chew. If that violated the statute, the note was rendered absolutely void, and no subsequent transaction could make it valid. Claflin v. Boorum, supra, and cases cited. Cokefair testified as follows in reference to this agreement:

“ A. Mr. Kendall was to retain twenty-five per cent, of the proceeds of the note, after taking out the discount. Q. Twenty-five per cent, in addition to the discount ? A. In addition to the discount. And he was to hold himself responsible for the payment of that twenty-five per cent, when the note carne due. Q. And that arrangement had been made by you with him before the delivery of this note to him ? A. Simultaneously at or before the delivery of the note. Q. Dó you mean that he was to have twenty-five cent., and that he was to make the twenty-five per cent, good when the note was taken up? A. Yes, sir. He was to get the benefit of the advance of twenty-five per cent, of the note, and I got seventy-five per cent.; and when the note became due he was to pay the twenty-five per cent.”

That is, Kendall was to pay at maturity, not twenty-five .per cent, of the note, but twenty-five per cent, of the proceeds of the discount. In other .words, he was to repay just what he received, thus leaving the interest to be paid by the makers. Thus Coke-fair was to pay fifty dollars for the loan of $1,837.50 for four months, or nearly nine per cent. This was plainly usurious.

In the case of Bank v. Hoyt, 32 N. Y. 119, it was held that an arrangement by which one seeking a discount at a bank is required to obtain a discount of paper amounting to $1,500 to secure the application to the use of $1,000 of the proceeds without the right to use the remainder thereof, except in payment of the paper discounted when it shall become due, renders the transaction usurious and void. The facts of that case are quite similar to the case before us.

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

All concur.


author: Brown, P. J. Pratt, J.

text:
    Jane Weir, Resp’t, v. Ætna Insurance Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Insubance—Reasonable doubt.
    Where, in an action on a Are insurance policy, the answer alleges that the fire which caused the loss originated through the act, design or procurement of the plaintiff, and the evidence offered to establish this defense is sufficient to permit the jury to find that the fire was the result of the act or procurement of the plaintiff, the company is not required to prove the commission -of the offense beyond all • reasonable doubt as required in a criminal proceeding, but the jury must find for the party in whose favor the evidence preponderates.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Benno Loewy, for app’lt; G. H. & J. A. Young & Terry, for resp't.
   Brown, P. J.

This action was brought to recover upon a policy of fire insurance issued by the defendant upon the plaintiff’s stock and fixtures in a store occupied by her at Hew Rochelle. •Among other defenses, the answer alleged that the fire which caused the loss originated through the act, design, or procurement of the plaintiff, and the evidence offered to establish this defense was sufficient to permit the jury to have found that the fire was the result of the act or procurement of the plaintiff. The defendant’s counsel requested the court to charge the jury that, to sustain the defense, the company was not required to prove commission of the offense beyond all reasonable doubt, as required in a criminal proceeding, but that it was the duty of the jury to find for the party in whose favor the evidence preponderated. This request was refused, and the defendant took an exception.

Prior to making the request, the court had charged the jury as follows:

“ I say to you, gentlemen, that if, under the evidence in this -case, you are satisfied that this woman has made a false claim, has been guilty of fraud, has exaggerated her claim, has sworn falsely as to the value of the property, she cannot recover. Now, she must not set fire to this property herself, even though it was full of goods, and there was no other fraud about it. You see at once that there could be no living in a society where a person assured could set fire to the property, and then go to the insurance company and get money for it. That would not do. But it is provided in the policy that any fraud vitiates it; and I say to you that it is a fraud of the most extensive, far-reaching description for a woman to set fire to her own property. If this plaintiff set fire to this property, if she incited or permitted another to do it, beyond her immediate knowledge, she cannot recover one cent, no matter what her injury was.”

The request correctly stated the law, People v. Briggs, 114 N. Y. 56; 22 St. Rep. 317; and as the jury had not been instructed as to the burden of proof, nor as to the quality and degree of testimony, which it was essential for the defendant to produce in order to establish the defense, we are of the opinion that it was entitled to have the jury instructed as required. The court’s refusal to charge this request was therefore an error, for which the judgment must be reversed, and a new trial granted, with costs to abide the event.

Dyxman, J., concurs.

Pratt, J.

(dissenting).—Both parties appointed appraisers, and a time was set for their meeting. Plaintiff’s appraiser attended, and waited a reasonable time. When defendant’s appraiser appeared, later in the day, it is conceded by all parties that he did nothing towards appointing a future meeting; and one witness testifies that, when his attention was called to that matter, he said “ his time was too precious.” He made an estimate of loss in company with plaintiff, and made an agreement to settle, which defendant repudiated. On these facts, the circuit judge left it to the jury to say whether defendant had waived its right to a joint appraisal. The jury found such a waiver, we think correctly.

We think the jury were right in finding the company waived their right to replace the goods. M'ore than six weeks elapsed after the notice of loss before plaintiff disposed of the goods. Plaintiff could not be held to wait indefinitely for defendant to replace, or give notice of an intention to do so.

An objection is now urged to the admission of the proofs of loss. They were produced by the company upon notice, and defendant’s counsel insisted that, having thus procured and examined them, plaintiff was bound to put them in evidence. Plaintiff consented, and the court ordered them in evidence. Later, defendant claimed the admission was error. If so, it was not one óf which defendant could cómplain. No motion was made to strike out of .the proofs. Moreover, an examination of the record shows that the only use made of the proofs was a memorandum by which to refresh the memory of the witnesses by whom the proofs were prepared, for which purpose they were competent. Howard v. McDonough, 77 N. Y. 592. The amount of the Verdict is no greater than warranted by the evidence.


author: Mayham, P. J.

text:
    Edward H. Monihan, Resp’t, v. Thomas Liddle, as Sheriff, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Appeal—Findings.
    A judgment will be affirmed where the evidence fully sustains the conclusions of the referee, both of fact and law.
    Appeal from a judgment in favor of plaintiff.

      Robert J. Sanson, for app’lt; W. Barlow Dunlap, for resp’t.
   Mayham, P. J.

The complaint in this action charges the defendant, as sheriff, with wrongful taking and wrongful detaining from the possession of the plaintiff a large quantity of boots and shoes and store fixtures belonging to the plaintiff, of the value of $800. The defendant, in his answer, denies the wrongful taking or detaining of the chattels described in the plaintiff’s complaint, and sets up by way of defense the recovery of a judgment in the supreme court in favor of the P. Cox Shoe Manufacturing Company for the sum of $646.04 against one Miles Cooling, and the docketing of that judgment in Montgomery county, where the goods were alleged to have been converted ; the issuing of an execution upon the same against the property of Cooling, in whose possession the goods alleged to have been taken were; and that said property was seized and held under and by virtue of such execution. On the trial of this issue before the referee it was stipulated in open court between the parties that the value of the goods was $610, that the allegations of the answer relating to the recovery-of a judgment and the issuing of an execution thereon were true, and that the goods claimed in the action of replevin were the same goods taken by defendant under such execution. It appears from the case that on the 11th of August, 1893, Cooling, the defendant in the judgment and execution, was the owner and in the possession of the stock of boots and'shoesand of the fixtures in the store No. "65 East Main Street, Amsterdam, N Y., and -at that time the plaintiff, Monihan, was an accommodation indorser on Cooling’s notes in the bank for $2,360; that such notes were payable to the order of Bridget Cooling, and indorsed by her .as the first indorser and by Monihan as the second indorser. The case discloses that Bridget Cooling had no property except a life estate in a house, and that prior to the 11th of August Bridget Cooling had mortgaged her interest in the house for $800. On that day Cooling executed a bill of sale of the goods and fixtures in the store of Monihan, the appellant, who thereupon agreed, as the referee finds, to assume and pay notes indorsed by him, in the Earners’ National Bank, for $1,560, and a note held by one Ehmer for $100, and to assume and pay $117 rent due Mrs. Parr. The goods at that time were valued at $1,300, and there is evidence in case that Moni ban’s agreement to assume these liabilities was in writing. The referee finds that immediately upon the execution of che conveyance of the goods and fixtures by the bill of sale the plaintiff took possession of the same, and continued in possession up to the 17th day of January, 189-1, when the goods were seized by the defendant on executions against Cooling. Upon an examination of the evidence in this case, we think it sufficient to support these findings of the referee as findings of fact. There seems to be no controversy in the evidence that Monilian actually assumed, and subsequently actually paid, the obligations, which were just debts to Cooling, to the amount specified in the findings of the referee. The evidence discloses that, at the time Cooling executed this bill of sale and transferred the property to Monilian, he was entirely insolvent, and that he owed other debts to other individuals and firms aside from his indebtedness to Monihan. And it is insisted on the part of the appellant that his transfer of these goods to Monihan was in fraud of the rights of other creditors and that it was done for the purpose of hindering and delaying the other creditors of Cooling in the collection of their just debts. But the referee finds and, we think, upon sufficient evidence, that there was a good and valid consideration for the transfer, and at the time of the transfer of these goods to Monihan they were not sufficient to pay Cooling’s indebtedness to Monihan; and that Monihan, on taking possession of them, insured them in his own name, placed in the store other goods, increasing the stock, took out a lease in his own name for the store in which the goods were being sold, and in all respects conducted the business as his own. On the other hand, it is insisted that Cooling conducted the business in the same manner as he had conducted it before, and that there was no actual and continued change of the possession of the goods, such as is required by the statute of frauds to pass the title as against the creditors of Cooling. Under the evidence in this, case we think it was a question of fact for the referee to determine in whose possession the goods actually were, and, having found that they were in the possession of Monihan from the time of the sale to him until the levy by the defendant, that finding, as a question of fact, cannot be disturbed on this appeal. On the-whole case, we think the evidence fully sustains the conclusions of the referee, both of fact and law, and that the judgment must be affirmed. Judgment affirmed with costs.

All concur.


author: Per Curiam.

text:
    Nathaniel Jarvis, Jr., App’lt, v. Sarah Lynch, as Executrix, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Boundaries—Waters.
    A description made by commissioners appointed in a proceeding to acquire land for city purposes, which gives as one of its boundaries the Harlem river, does not necessarily include premises lying between high and low water mark.
    3. Evidence—Title.
    Recitals cf ownership in proceedings by commissioners to appropriate land for city purposes, or to assess damages on property for the expense of -opening streets, do not constitute a judicial determination,, binding upon all parties and their privies, that the persons named have title to the property assessed.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Anderson Price, for pl’ff ; O liarles E. Miller, for def’t.
   Per Curiam.

This action, which is one of ejectment to re-' cover possession of premises consisting of a block of land in the city of New York, bound by 155th and 156th streets, Eighth avenue, and• Exterior street, along the Harlem river, has been, twice tried. The first trial resulted in a dismissal of the complaint, and the judgment entered thereon was affirmed upon- appeal to this court, upon the ground that it was impossible to determine from the description in the deeds and grants through which plaintiff claimed titled whether they affected the premises in controversy. The evidence satisfactorily establishes that these premises formerly lay between high-water and low-water mark of the Harlem river, and the defendant insists, upon the authority of Mayor, etc., v. Hart, 95 N. Y. 448, that the title thereto did not pass to the freeholders and inhabitants of Harlem by the Nichols patent of 1666, as claimed by the plaintiff, but, instead, that title thereto became vested in the mayor, aldermen, and commonalty of the city of New York by the Dongan charter of 1686; and it may be observed in passing that the argument in that case strongly supports the defendant’s contention, although there is present that opportunity for distinction between the cases which was pointed out by this court on the former appeal. . Passing to the question whether the deeds put in evidence by the plaintiff'located the property with sufficient accuracy to enable a court or jury to determine whether it is described by the words of the complaint, we observe that the plaintiff has not overcome the defects in the proof which were pointed out by this court on the former appeal. Upon this trial he claims title through precisely the same deeds or grants, and none other. Assumiug that the title to the premises in controversy‘passed 'by the Nichols patent of 1666 to the freeholders and inhabitants of Harlem, and that such property can be located with sufficient accuracy in the several mesne conveyances between and including the deed from the freeholders and inhabitants of Harlem to Barent- Waldron and the deed from John Myer to Abraham Myer, in 1743, still the plaintiff falls far short of the proof requisite to maintain his action, for the subsequent conveyances do not contain such a description of the premises in question as make it possible to locate them as a part of the property described in the grants. The plaintiff testified that he received as a part of his muniments of title an unrecorded deed from Abraham Myer to Arent Myer, dated March 21, 1746, and an effort was made to prove it as a lost instrument, and to show that the premises described therein were the same as in the deed •of 1743 from John Myer to Abraham Myer. We have examined the folios to which counsel referred as proof of his assertion that the lost deed was admitted in evidence, and it seems to us not to .sustain his position. It is true that the plaintiff testified that he had had such a deed, and that it was mislaid, and, upon being ■shown a memorandum, he testified that it was copied from his memorandum book, which contained a copy of the deed. The memorandum being handed to him by his counsel with a request that he read it, an objection was interposed by the counsel for the defendant, and the court said: “You have, according to-Mr. Jarvis’ testimony, a copy of the original deed in his record book, still in his possession. Why not bring that down?” This suggestion of the court seems to have been acquiesced in, for the plaintiff at once proceeded to inquire of him with reference to other papers which were subsequently put in evidence, and we have not been able to find that the subject was again referred to. But, if it can be assumed that the testimony elicted from the plaintiff while his counsel vyas attempting to lay a foundation for the introduction of secondary evidence constituted sufficient proof of the instrument as a lost deed, and established that it contained •a description like that in the deed from John to Abraham Myer, then the fact is that from the date of such deed—March, 1746-—• every instrument, whether of will or deed, through which plaintiff ■claims title, was without such a description . as to enable a court or jury to say that the premises in question were described therein. As each of such instruments was referred to on the former appeal, their future consideration is not needful.

The plaintiff introduced in evidence the proceeding for the opening of Eighth avenue, which was confirmed in the year 1816. The commissioners’ report states:

“ That the said Baron Bussing is also seized in fee of and in certain .lands and premises easterly of and adjoining to the last above described piece or parcel of land, which said last-mentioned adjoining lands and premises are situated in the Ninth ward of the said city of New York, and are bound northwesterly in front by the last above described piece or parcel of land, northwesterly by Harlem river, .aforesaid, southeasterly by the center line between the said Eighth avenue and the Seventh avenue, and southwesterly by lands and premises now or lately belonging to the ■above-named Cadwallader D. Golden.”

In considering what value, if any, this evidehce has, it may be •observed :

1. That, in the absence of measurements, it is difficult, to say the least, to determine whether any part of the premises in controversy was included within this description. At some period of time this property was situated between high and low water mark, and the city of New York, prior to the conveyance under which the defendant claims title, claimed to be the owner of all the land between high and low water mark on the Harlem river, under the Dongan charter. So a description made by the commissioners appointed in a proceeding to acquire land for -city purposes, which gives as one of its boundaries the Harlem river, cannot be said to necessarily include premises lying between high and low water mark.

While the effect of such proceedings is to vest in the city the title to lands taken for the purpose of a street, it has no other effect. The commissioners appointed by the court in such cases endeavor to obtain the names of the owners of the property taken ; but, if this cannot be accomplished, the city may nevertheless acquire title to the property upon compliance with the provision of the statute authorizing the making of an award for damages to unknown owners.

The other feature of the proceeding relates to the assessment upon property benefited to defray the expense of the opening of the street. While the names of the owners of the property are usually given, the assessment, nevertheless, is upon the property benefited, not upon the individual. And any suggestion that such action upon the part of the commissioners amounted to a judicial determination, binding upon all parties and privies, that the persons named have title to the property assessed, is too absurd for serious consideration. Id this trial, as on the former one, the plaintiff introduced evidence of alleged acts of possession on the part of Aaron Bussing, for the purpose of proving seisin of plaintiff’s grantors. For that purpose, as was said on the former appeal, the evidence was of no value, in the absence of evidence of title in Bussing. It is also claimed that the evidence of possession introduced on the- part of the plaintiff covered such a period of time as requires a grant to be presumed. We do not understand that it can be given that effect. The premises were never fenced in or cultivated, nor were they ever capable of cultivation, prior to the time when defendant filled in the -property at great labor and expense. It does appear from the testimony of the plaintiff that one of the devisees of Aaron Bussing, during a period of years, occasionally gave permission to parties to cut grass on it. The interviews occurred, according to the plaintiff, at the residence of the devisee, nearly half a mile from the premises in controversy, and when he gave permission for the cutting the uncle pointed towards the river and in the direction of the meadow. How much, if any, of the land in controversy was included in such “ pointing out ” by the uncle, it is not easy to determine. It seems quite clear that the witness had a very indefinite recollection on the subject, for, according to his testimony, the period of time during whiph he knew grass to be cut extended down to 1869, .whereas it further appeared from his testimony that upon his return from a visit to South America, in 1856, he found the property filled in. If it satisfactorily appeared that the cutting of grass was upon the uroperty in question, it would not be of sufficient value to authorize a presumption of a grant Price v. Brown, 101 N. Y. 369. "We do not think the proof on this trial requires any different disposition of the case than was made on the former appeal.

' The exceptions should be overruled, and judgment ordered for the defendant, with costs.