author: Daniels, J.:

text:
    CONSTANCE B. PRICE, Appellant, v. WALTER J. PRICE and Others, Respondents.

      Dower — when a woman is entitled to it although her mm'riage has been annulled on account of her husband homing had a formen' wife whiom he believed to be dead — 3 R. S. (6th ed.), 964, see. 14.
    July 1, 1865, in the State of New York, Walter W. Price married'the plaintiff. In April, 1839, he had married one Susannah Butler, who remained in England when he emigrated to this country. At the time of the second marriage Price did not know, nor for more than five successive years prior thereto had he known, that his first wife-was living, and the second marriage was contracted in good faith and with the full belief of both parties thereto that the former wife was dead. In 1874-Price obtained a judgment dissolving the marriage-with this plaintiff on the ground that his former wife was living and declaring it to be void from the time of the entry of the said judgment.
    In an action by the plaintiff to recover her dower in real estate owned by Price during the time their marriage-continued in force:

      Held, that she was entitled to recover it.
    Appeal from a judgment in favor of tbe defendants, entered upon the report of a referee.

      Charles Jones, Geo. U. Starr and Thomas Hoolcer, for the-appellant.

      Hughes <& Northup, for W. J. Price.

      James H. Marvin, for defendant Little.

      Bristow, Peet & Opd/ylce, for Frank N. Price and others.

      S. Brown, for Lillie M. Price.
   Daniels, J.:

The action was brought for the recovery of dower in real estate of which Walter W. Price was seized during his lifetime. He intermarried with the plaintiff on the 1st of Muly, 1865. He had been previously married on the 28d of April, 1839, to Susannah Butler, who remained in England upon his emigration to this country. More than five years had elapsed before his marriage with the plaintiff: since he had heard that his former wife was living. After his marriage with the plaintiff he continued to live and cohabit with her as his wife, until after the 20th of August, 1870. During that period two daughters were born to the parties, who are still living. In 1873, Walter W. Price commenced an action against the plaintiff to obtain the judgment of this court, dissolving his marriage with her and declaring it to be void, aiid that the two daughters should be declared to be legitimate and entitled to succeed to personal a.nd real estate, the same as though they had been born in lawful wedlock. Judgment was recovered in this action in April, 1871. It was found as a fact by the court, before which the trial took place and upon whose decision the judgment was entered, that on the 1st day of July, in the year 1865, in the city, county and State of New York, the plaintiff, Walter W. Price, and the defendant, Constance B. Price, were married ; that at the time of such marriage between the plaintiff and the defendant, the plaintiff, Walter W. Price, did not know, and for more than five successive years, prior thereto, did not know and had not known that his absent wife, the said Susannah, was living, and the said marriage between plaintiff and defendant was contracted in good faith and with the full belief of the parties thereto, both plaintiff and defendant, that the former wife of the plaintiff, the said Susannah, was dead. And as a conclusion of law from this fact the court held that the said marriage between the plaintiff, Walter W. Price, and the defendant, Constance B. Price, is void, but is void only from the time that its nullity is hereby pronounced, to wit, the date of the decree to be entered upon this decision. The judgment itself adjudged that the marriage between •the plaintiff, Walter W. Price, and the defendant, Constance B. Price, made and entered into by them on or about the first day of July, 1865, shall be and the same is hereby pronounced null and void, but the said marriage shall be, and is hereby declared void only from the time that its nullity is hereby pronounced, to wit, from and after the date of this judgment.

Tliis judgment was directed and recovered in this form by virtue of the provisions of the statute declaring that, if any person whose husband or wife shall have absented himself, or herself, for the space of five successive years, without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity shall be pronounced by a court of competent authority. (3 R. S. [6th ed.], 148, § 5.) While the preceding section declared certain specified marriages to be void, this marriage was saved from its operation and effect, and consequently was not designed by the statute to be characterized as a void marriage. In declaring and defining what marriages should be unlawful and punishable, an exception also was made of the marriage of any person whose preceding husband or wife should have been absent for five successive years without being known to such person within that time to be living. (3 R. S. [6th ed.], 964, § 14.)

These provisions by their language and effect sanction the marriage of these parties under the circumstances made to appear. It was at the time when it was solemnized a lawful marriage, and continued to be so to the time when its nullity was pronounced by the judgment already mentioned. From that time, and that time alone, did the marriage of these parties become void and cease to be operative. The judgment which was entered has been made conclusive evidence as to its effect. (3 R. S. [6th ed.], 155, § 50.) And it in no manner changed or disturbed the relations existing between these persons and arising out of their marriage, until the time when it was entered, and then it was wholly prospective in its effects. The statutes of the State were enacted in such a form upon this subject that they permitted this marriage lawfully to take place. The enactments proceeded manifestly upon the presumption that after the absence of five successive years without being heard of, the former wife might well be assumed to be dead and her husband at liberty to enter into another matrimonial relation in reliance upon that circumstance. They sanction such an act on his part, and the marriage which he entered into with the plaintiff was consequently a lawful marriage, and it continued to be so certainly until the time when it was discovered that the preceding wife was still living. And the judgment upon that discovery annulled the marital relations so formed only from the time when it was rendered and entered.

From the time of the plaintiff’s marriage to the entry of the judgment she consequently remained the lawful wife of Walter W. Price.

During that time he became the owner of valuable real estate, and it was for the recovery of her dower in that estate, that this action was prosecuted by her. At the time when hé acquired it she was under these provisions of the statute his wife, and after-wards remained so until the entry of the judgment prospectively only annulling the marriage, and these facts were sufficient in judgment of law to entitle her to dower in this estate. Upon this point the-case cannot be materially distinguished from that of Wait v. Wait (4 Comst., 95) where it was held that a wife who had obtained a divorce from her husband because of his adultery, was still entitled to dower in real property owned by him during the time the marriage continued in force. A different conclusion had been reached by the General Term of the Supreme Court. Wait v. Wait (4 Barb., 192.) That decision proceeded upon the conviction that the law required the wife to sustain that relation to the husband at the period of his decease to entitle her to dower in his real estate. This was combat-ted by a dissenting opinion of "Willard J., whose conclusions were sustained by the determination of the Court of Appeals. And in the same case that tribunal finally held, that inasmuch as the marriage remained operative and binding upon the parties to the time when die decree for the divorce was rendered, that the wife was not' deprived of her dower in the real property vested in the husband before the recovery of the decree. The decision was substantially based upon the ground that as the marriage was entirely binding upon the parties, up to the time when the decree was entered, the wife was entitled to be endowed in the property of the husband, the title to which he obtained before that time. The right, it was held, resulted from the circumstance that at the time of the acquisition of the estate, the plaintiff became vested with a contingent right to her dower depending only upon the fact of her surviving the person who was then her husband. And this rule seems to be as applicable to the case of the plaintiff, as it was to the wife in the case of Wait v. Wait. For her marriage was lawful at the time when her husband acquired the property in controversy.

No provisión inserted in the statutes has deprived her of this right. That cannot be held to be -done, even by implication, from the section declaring the children of a marriage contracted in good faith, with the full belief that the former husband or wife was dead, capable of inheriting from the party competent to contract (3 R.S. [6th ed.], 154, § 37) any more than the same result could be attributed to the case of a decree dissolving a marriage because of ■the misconduct of the husband, by reason of the provision in the statute declaring that the legitimacy of children born or begotten before the commission of the offense charged shall not be affected by the decree. (3 R. S. [6th ed.], 156, § 57.)

It has been urged that the common law deprives the wife of her dower in a case of the character of that in the present action. But that seems to be a misapprehension. For in those cases in which the ■common law deprived the wife of her dower because of a decree of divorce, the decree had the effect of annulling the marriage from the beginning. The result of that was to render the issue illegitimate and also deprive the wife of her dower. (1 Sliarswood’s Blackstone, 440.) The same subject was fully considered in the final decision of Wait v. Wait, and this view of the common law affecting this subject was maintained by the court. As that case was determined, it is only where the decree annuls the marriage from its solemnization that it can be attended with the effect of depriving the wife of her right to dower in the property owned by her husband during the existence and continuance of the marriage. For this reason the determination of the case of Boddington v. Clariat (L. R., 22 Ch. Div., 597) is not applicable to this case. There the annuity which was claimed was given by the will to the wife, so long as she should remain the widow of the testator, and as the marriage had been annulled by a decree previous to his decease, it was held that she did not become his widow and could not therefore claim the legacy. The right of the wife in this action is subjected to no such restriction, but arises out of the facts that her marriage was sustained by the statutes as legal at the time when the husband obtained the title to this property, and has never been declared to be otherwise by any judgment or proceeding whatever. On the contrary, the judgment which was entered, rendered the marriage void only from the time ■of its entry, and necessarily therefore assumed its validity as it was required to do up to that time. And that was sufficient to maintain the right of the plaintiff to recover in this action. She was the innocent party if there was culpability anywhere, and for the' fault ■or misconduct of her husband the law should not permit a forfeiture of her rights. Good morals as well as substantial justice also •combine in' favor of maintaining that right.

The fact that the husband’s estate may in this manner be sub jeeted to the right of more than one person to dower in it cannot be allowed to operate to the prejudice of the plaintiff. That may very well be as the law is now administered in this State. For a wife obtaining a divorce from her husband will be entitled to dower in his estate, and so would another who might survive him who should be married to him afterwards in one of the other States or by the permission of the court in this State. In this manner not only two wives might lawfully claim dower, but if their number in a similiar manner should be still further increased, each of them would be permitted to assert and maintain the same claims.

That is not what the law considers for the determination of such .an action. The question is one merely of title, and where a valid marriage has been contracted and that has been afterwards terminated by an event subsequently arising, as this was by the discovery of the fact that the first wife was still living, the law will not deprive the second wife of her estate as dowress in the husband’s property. The effect of the discovery of the fact that the first wife was still living could be no further operative than to justify an annullment •of the second marriage after that time.

And that was the effect that was given to it by the judgment •recovered against the plaintiff. Upon the facts found by the referee her complaint should not have been dismissed, but her action should have been sustained. The judgment which was entered should therefore be modified, and a judgment entered, upon the facts found, for the recovery by the plaintiff of her dower in the property mentioned in the complaint. And she should also have the usual «costs of the appeal as well as the costs and allowances of her action.

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

Judgment reversed and judgment directed in favor of plaintiff as stated in opinion, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    THE EMIGRANT INDUSTRIAL SAVINGS BANK, Respondent, v. ISABELLA B. CLUTE, Appellant, Impleaded with MARKS COTTRELL and Others.

      Action to foreclose a mortgage — the validity of liens prior to the mortgage cannot he contested — right of the mortgagee to he subrogated to the place of a prior mortgagee whose mortgage has been paid, — power of the cowrt oven• the relief to he granted.

    In this action, brought to foreclose a mortgage, it appeared from the complaint and answers that the premises in controversy were .owned, in 1803, by one Thomas A. Hall, who, at that time, to secure a portion of the purchase-money thereof gave a mortgage for $6,000 to his grantor, Chamberlain. In 1864 Mrs. Clute recovered a judgment against him by the name of Thomas Hall, which was on February 4,1865, docketed against him by that name. October 3, 1867, an • execution was issued upon the judgment under which the premises were sold to Mrs. Clute, to whom a deed was delivered by the sheriff on February 17, 1869.
    June 19, 1866, Hall conveyed the premises to Jane B. Hyde, who assumed the payment of the Chamberlain mortgage, and subsequently paid it partly with her own money and in part with $5,500 borrowed from the Pearsalls, secured by a mortgage upon the premises given to them by her. Subsequently the land was conveyed to one Cottrell, subject to the Pearsalls’ mortgage, which'ho assumed and subsequently paid with money procured from the plaintiff, to whom he gave a new mortgage for $6,000. At the time the mortgages were given and the conveyances made, searches were made in 'the proper offices, but owing to the omissidn of the middle letter of Hall's name the judgment against him Was not found, nor did any of the parties have notice of its existence.

      Held, that although in this action, brought to foreclose the plaintiff’s mortgage, Mrs. Clute’s title could not be attacked or defeated, nor its priority contested, yet as the facts alleged showed that the plaintiff was equitably entitled to priority in the collection of her debt over Mrs. Clute, and to revive and enforce the, original mortgage, and as issues of fact had been joined by the service of answers, the court might properly try the action as an equitable one brought for that purpose and permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issues.
    Appeal from a judgment in favor of tbe plaintiff, recovered on trial at tbe Special Term.

      J. T. Qlute, for the appellant.

      Bwr-iholomew Skaats, for tbe respondent.
   Daniels, J.:

At tbe commencement of tbe trial of tbe action, tbe counsel for tbe appealing defendant moved to dismiss tbe complaint as to ber, for fclie reason that the question of the priority of the plaintiff’s right to collect its mortgage debt, over her right as a purchaser under an execution issued upon-the judgment, could not be tried in this action. She became the purchaser of the property and received a deed of it from the sheriff on or about the 17th of February, 1869. While the mortgage which was the basis of the plaintiff’s action was not executed until the 30th of January, 1871. Her counsel is entirely correct in the position taken by him that the priority of her title could neither be tried nor defeated in an action for the foreclosure of the mortgage .executed and delivered to the plaintiff, as she was not a party to that mortgage. For in a mere action of foreclosure, a title acquired prior to the execution of the mortgage can neither be contested nor defeated. This is the rule as it was settled previous to the adoption of the preseut system of practice (Eagle Fire Co. v. Lent, 6 Paige, 635), and it still continues to be the law. (Emigrant Industrial Savings Bank v. Goldman, 75 N. Y., 127.)

But the facts as they were alleged in the complaint presented a case upon which it could be well insisted that the plaintiff was equitably entitled to .priority in the collection of its debt over the title acquired by this defendant. And that such relief-was not demanded in the complaint was no.legal impediment in the way of awarding it in the action. For issues of fact were formed by the service of answers on the part of the contesting defendants, and by. section 1207 of the Code of Civil Procedure, where an answer has been served, the court may permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issue.

The facts as they were disclosed by the complaint and the answer showed that the premises in controversy were owned by Thomas A. Hall in November, 1868. To secure a portion of the purchase-price he executed and delivered a mortgage to Moses Chamberlain, his grantor, for the sum of $6,000; and this mortgage continued to be a lien upon the property when the judgment was recovered under which Mrs.' Clute acquired. her title. ’ This judgment was recovered in 1864 against Hall by the’ name of Thomas Hall. It was docketed in the county of New York on the 4th of February, 1865. An execution was issued upon it on the 3d of October, 1867, and under tliat execution the right, title and interest which Thomas Hall had in the premises on the 4th of February, I860, or at any time afterwards, was what was sold by the sheriff to Mrs. Olnte. The usual certificate of sale was filed, and the sheriff by his deed conveyed this interest to her on the 17th of February, 1869.

On the 19th of June, 1866, Thomas A. Hkll, the owner, conveyed the premises to Jane B. Hyde, who assumed to pay the mortgage given by Hall to Chamberlain, and on the 18th of August, 1866, she did pay it by using and applying for that purpose $800 of her own money, and $5,500 borrowed by her from Edward and PhebePearsall. ■To secure this loan a mortgage was at the same time executed and delivered by her upon the property to the persons loaning the money, and the mortgage given by Hall to Chamberlain was also at the same time delivered to them. The title to the land afterwards passed by various conveyances to Marks Cottrell. He received his deed on the 14th of September, 1867. The property continued in his hands, as it was in his grantor, subject to the mortgage given by Jane B. Hyde to EdYard and Phebe Pearsall, which he assumed and agreed to pay as part of the purchase money. The title remained in him in that manner until the mortgage was executed and delivered by him to the plaintiff in this action upon the loan of $6,000. This money was obtained and used to pay off the mortgage given by Jane B. Hyde to Edward and Phebe Pearsall, and at the time of such payment their mortgage was- taken up and surrendered to the' plaintiff. Neither of the parties' to these transactions had any actual knowledge of the recovery or docketing of this judgment against Hall. Searches were made of the title, but they were made as to the title of Thomas A. Hall only, and being made in that manner did not disclose judgments against Thomas Hall, and no actual infornjation was acquired of the existence of the judgment, its docket, or the'sale, and deed made under it, until after the time when Cottrell became the owner of the property. And even then, because of the omission of “the. initial letter in the name of the judgment debtor, the judgment was not deemed to be a legal incumbrance upon this property. And the mortgage upon it was taken by the plaintiff without any actual notice or information of the judgment, or the proceedings had under it, and in good faith.

These facts presented a cause of action in equity in no manner in conflict with the rule to which reference has already been made. And such an action could properly be prosecuted and the appealing defendant-be made a party to it, although its effect might be to subordinate her title to the mortgage lien existing against the property, prior to the time of the recovery of the judgment under which she derived that title. This would be an equitable cause of action to which she would be a necessary party. And if under the circumstances, the mortgage given by Hall to Chamberlain could be revived as a lien in favor of the plaintiff upon the property, it would be prior to her right and the court would be at liberty, and indeed it would be its duty, to order and direct a sale of the premises for the satisfaction of that debt, although the mortgage itself had been in form extinguished. For this was done in ignorance of the fact that the judgment had been recovered and docketed as a charge upon the property. In their dealings with it the parties acted in entire good faith, supposing no lien of this description to exist. And it was at the instance of the person whose title was bound for the payment of the original mortgage, that the money was advanced to, and used by her, by Edward and Pliebe Pearsall. The object was not to extinguish the lien or the debt upon the property, but to change the right to it from Chamberlain to the Pearsalls. That design is clearly indicated by the facts and the surrender and delivery of the original mortgage to them. And the same thing is true as to the payment of her mortgage with the money advanced by the plaintiff. The intention of the parties was still to subject the property to the same priority of right, and.it was evidently supposed that was accomplished by what appears to have transpired. In each instance the design was to secure to the lender of the money the same right as was vested in Chamberlain by the mortgage to him.

These rights vested primarily in the persons paying the respective mortgages, and if the action had beefi brought either by Jane B. Hyde or Marks Cottrell there can be no doubt, as the money was paid for the protection of- their respective titles to the property, that the original mortgage could properly be revived in favor of either of them. This right was an incident of the title and could be equitably asserted to maintain and protect -it; and when that title was mortgaged to secure the loan made for its preservation the parties to whom the mortgages were respectively given necessarily acquired the same right.

This subject has frequently employed the consideration of the courts, and the principle is now well settled maintaining this right of substitution, or subrogation, in favor of the owner of the title where the payment may be made for its protection, and also for the benefit of’parties intervening at the instance and request of such owner and making the same payment. (Barnes v. Mott, 64 N. Y., 397; Cole v. Malcolm, 66 id., 363; Twombly v. Cassidy, 82 id., 155; Gans v. Thieme, 93 id., 225.)

This latter case includes all that can be necessary to sustain such an .action, for it was there held “ that a volunteer cannot acquire either an equitable lien or the right to subrogation.” * * * “but one who at the request of another advances his money to redeem, or even to pay off, a security in which that other has an interest, or to the discharge of which he is bound, is not of that character, and in the absence of an express agreement one would be implied, if necessary that it shall subsist for his use, and it will be so enforced.” (Id., 232.) This point was also considered in Clute v. Emmerich (26 Hun, 10), where the same conclusion was maintained, although the decision itself may not be absolutely controlling as' to the plaintiff’s rights, inasmuch as it was not a party to that action.. But the authorities abundantly sustain the proposition advanced that the original mortgage in an actioh of this description may be revived,and enforced for the benefit of parties after-wards advancing their money upon the faith and security of the title.

The cases of Kitchell v. Mudgett (37 Mich., 81) and Wade v. Beldmeir (40 Mo., 486) may not be entirely consistent with the existence of this right. But; if they are not, as the rule has been otherwise settled in this state, it must be followed in this action.

The defendant cannot deprive the plaintiff of this right to relief by her purchase under the execution, for she took only the title and interest which Hall had in the property at the time when the judgment under which she purchased was docketed, and that was a title subject to the mortgage indebtedness of Hall to Chamberlain. It has been urged that the purchase "of the property, and the application of the purchase-price upon the judgment, without paying it otherwise, vested her with the rights of a bona fide purchaser of the title and that she cannot be affected by an equity of this description.

Wood v. Chapin (3 Kernan, 509) has been cited and relied upon as sustaining this proposition, but while the point was discussed in one of the opinions, it was not definitely adopted or acted upon by the court. While in the case of Frost v. Yonkers Savings Bank (70 N. Y., 553) it was held in general terms, that “ a purchaser at an execution sale can get no better title than the judgment actually gives him. * * * He buys at his peril, and, if by any valid agreement the judgment has lost its apparent position as a lien upon real estate, his lien under his purchase is just that which the judgment creditor had.” (Id., 560.) Even if under the preceding case the purchaser under the execution could be held to be a bona fide purchaser, because of the payment of the expenses and fees attendant upon the sale, the right-so acquired would not extend beyond the amount of money so paid. (Huff v. Wagner, 63 Barb., 215; Weaver v. Barden, 49 N. Y., 286.) In no view could she wholly defeat the right of the plaintiff and its mortgagor, to have the original mortgage revived and enforced for its benefit and the payment of this mortgage indebtedness. The Court, therefore, rightly refused to dismiss the complaint on the motion made for that purpose.

Neither was the-appealing defendant entitled to have the answer •of the defendant, Adam Emmerich, stricken out of the case. He was a party to the action, and had a right to answer, although it was not strictly necessary for the preservation of his rights for him to do so. He controverted neither of the allegations contained in the plaintiff’s complaint. But by his answer assented to the judgment deemed to be appropriate in the case, and as the plaintiff’s complaint had more at large included the entire case, there was no necessity for the service of this answer. But at the same time, as long as the plaintiff itself had not objected to its service, the answer could not regularly be stricken out at the instance of this defendant, when the cause came on for trial at the Special Term. The appealing defendant may have good reasons for complaining of so much of the judgment as awarded costs to Emmerich, inasmuch as this answer was unnecessary, but she could not insist upon its being stricken from the case.

Neither could she defeat the right of the plaintiff to relief by the judgment recovered by her against Marks Cottrell, the mortgagor in the last mortgage. This judgment -was recovered’ for damages arising out of the wrongful withholding of the possession of the premises by Cottrell from the appealing defendant. The claim, upon which it was recovered finally and ultimately accrued on the 21st of October, 1871, which was after the execution and delivery of the mortgage to the plaintiff, and the judgment itself was not recovered until the 13th of February, 187o. This claim having' matured subsequently to the execution and delivery of the mortgage to the plaintiff, as well as the other mortgages, did not form the subject of set-off in the action. (Jordan v. National Shoe and Leather Bank, 74 N. Y., 467, 473, 474; Taylor v. Mayor, 82 id., 10, 16-19.)

But while the facts disclosing the plaintiff’s right to the revival and enforcement of the original mortgage against the property were set forth and contained in the pleadings, the action was not tried upon that theory. It seems to have been supposed that they entitled the plaintiff to enforce its own mortgage against the property as a lien superior to the right of the purchaser under the execution ; and that relief, and that only, has been -provided for by the judgment. In this respe'ct the case was erroneously determined, for if the plaintiff is only at liberty to enforce its 'own mortgage and to sell the property under it, then it must follow that the title previously acquired under the execution will be superior to that conveyed by the judgment, and neither the law nor the facts of the case will permit the court to secure to a purchaser under such a j udgment priority over the rights acquired under the execution sale. The theory upon which the judgment was directed and entered was fundamentally wrong as long as the purpose and intention was to secure priority over the title obtained under the execution. To do that, the action should be tried as an action to revive and enforce the original mortgage. If that cannot be done, then the plaintiff must sell the property subject to the title acquired under the execution. If it can be done, then the sale will take place under a. preceding incumbrance to which the title under the execution will be in all respects subordinate. As the, judgment has been entered, therefore, it cannot be sustained, and the only manner in which this right of priority can be secured to the plaintiff is by another trial of the action upon the theory already indicated; and as much as that was said in Clute v. Emmerich (supra) when that case was heard and decided.

The judgment from which the appeal has been taken should be reversed, with the usual costs and disbursements to the appellant to abide the event of the action, and a new trial of the issue should be directed.

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

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


text:
    ASA L. SHIPMAN, as Surviving Executor, etc., of DANIEL FANSHAW, Deceased, v. ISABELLA G. ROLLINS and Others, Appellants, and Others, Respondents.

      Will — gift to am, unincorporated association void — unlawful suspension of the vesting of the absolute title to personal property — right of one, nota party to am, action,, to avail himself of a decision made therein in his favoi\

    Due Fanshaw died February 20, 1860, leaving a will by which he directed his-executors to sell so much of his real estate as would be sufficient when invested in bonds and mortgages to produce an income of $1,500 a year, which was to be paid to his widow during her lifetime. He also devised to her the use and profits of certain other real estate. Upon her death the rest of this real estate was to be sold, and the fund in the hands of the executors, after deducting certain payments, was to be divided into eight equal parts. After disposing of certain of these portions the will proceeded: “ One other portion I give to the American and Foreign Christian Union;” and then in similar language the testator gave one portion to the New York Tract Society and two “ to the First Deformed Low Dutch Church that may be built after the year 1856, between the Fifth avenue and the East river and Seventy-ninth and Ninety-fifth streets.” At the time of .the testator’s death none of the aforesaid legatees-were incorporated, though all subsequently and prior to the death of the widow became so, and within that time the church described in the will was built within the prescribed districts.

      Held, that by the terms of the will the legacies given to the said societies vested, if at all, upon the death of the testator.
    That as the said societies were then unincorporated the legacies were void.
    That the gift to the church could not be sustained as there was no time specified within, which it should be built, and it therefore unlawfully suspended the vesting of the absolute title to the property.
    A portion of the interest of a legacy of $9,000, and the principal thereof after the death of three persons named in the will, was given to the Woman’s Hospital in the city of New Ypik. In an action, brought by the executor in 1862, the validity of this legacy was questioned' and affirmed by the court. The hospital was not a party to that action.

      JMd, that this did not prevent it from availing itself of the former decision in its favor, and that the validity of the legacy could not be again disputed by the executor.
    Appeal from a judgment, entered on the trial of this action at a Special Term.

      8. H. Thayer, for the plaintiff.

      J. H. K. Blauvell, James K. Hill, Wing <& Shoudy and Alfred Roe, for the appellants. ■

      II. ■ P. Allen, Oha/rles H. Knox, 8. H. Thayer and John E. Parsons, for the respondents.
   Daniels, J.:

The action was brought by the plaintiff as surviving executor of the estate of Daniel Fanshaw, to obtain the direction and judgment of this court for the disposition of so much of the estate of the testator as' now remains undistributed and is ready for distribution. The testator died on the 20th of February, 1860, leaving a will with three codicils, which were aidmitted to probate by the Surrogate of the county of New Fork. Neither of the codicils require to be specially considered in the examination and decision of the points made in support of the appeal, for they arise upon the provisions and directions contained in the will itself. By the will the executors were directed to sell so_ much of the real estate of the testator, not specifically devised, as would be sufficient to produce an annual income of $1,500 by investing the proceeds in bonds and mortgages. This annuity was directed to be paid to the widow in semi-annual installments during the period of her natural life. The testator also devised to her for life the use, net income and profits of his residence and nineteen lots and gores of land connected therewith. Any part of the land whose proceeds should be required for the expenses of alterations, repairs, taxes, assessments or other exigencies was allowed to be sold by the executors for that purpose with the concurrence of the widow, and after the time of her decease what should be left of this real estate he authorized the executors to sell and add the proceeds of the sales to the amount invested to produce the widow’s annuity of $1,500 a year. From this fund they were directed to pay her funeral expenses and such debts as she might before have contracted, as well as all mortgages at that time standing against himself. What should remain after that of this fund, he directed to be divided info eight equal shares ; and it is as to the disposition of four of these shares that the principal controversy in the case has arisen. Qne of these shares was directed to be given to the American and Foreign Christian Union, another to the New York Tract Society and two others to the First Reformed Low Dutch Church which might be built after the year 1856, between the Fifth avenue, the East river, Seventy-ninth and Ninety-fifth streets in the city of New York. Neither of these societies was incorporated at the time of the' decease of the testator. The church was afterwards incorporated on the 15th of November, I860, the American and Eoreign Christian Union on the 13th of May, 1861, and the New York City Mission and Tract Society on or about the 19th of February, 1866.

As voluntary unincorporated associations they were at the time .the will went into effect incapable under the laws of this State of taking either of the shares bequeathed by this part of the testator’s will. ( White v. Howard, 46 N. Y., 144; Sherwood v. American Bible Society, 1 Keyes, 561, 567; Burrill v. Boardman, 43 N. Y., 254-260; Marx v. McGlynn, 88 id., 371, 376.) If the gift intended ■to be made of these legacies was immediate and therefore designed to become vested on the decease of the testator, then the directions contained in the will concerning them were inoperative and illegal, and the subsequent incorporation of the societies would not remove this illegality; for if these legacies were not effectually given on •account of the incapacity of the societies to take them, then the four-eighths of the fund designed to be given in this manner would remain undisposed of by means of these directions and would vest in the next of kin of the testator; and after having so vested their title could not be disturbed or divested by means of the subsequent :action of these societies or associations.

That tbe right to the enjoyment of these gifts was designed to become vested immediately on the decease of the testator seems to be warranted by the portions of the will including them, for they have been framed in language expressive of no other intention than that of a present unqualified bequest so far as the right to the shares were designed to be affected.

These clauses are in the following language: One other portion I give to the American and Foreign Christian Union formed in the city of New York in the year 1849. The interest to be expended yearly in donations of their publications among the Sabbath school libraries. One other portion I give to the New York, Tract Society, founded in the city of New York on the 19th day of February, 1827. The interest thereof to be expended each and every year in the purchase of the American Tract Society’s publications. Said works to be distributed among the most depraved part of the population of the city of New York. Two other portions, I give to the First Reformed Low Dutch Church that may be built, after the year 1856, between the Fifth avenue and the East river and .Seventy-ninth and Ninety-fifth street.

What was to be postponed was the division of the fund into shares and the payment of such shares to the societies for which they were respectively designed. That was deferred on account of the condition in which the estate was left by the will during the life of the widow. The object was to permit the enjoyment by her of that estate, and after her decease to secure the payment of the bequests to the respective legatees; and where that' may appear to be the object of the testator, by the language made use of to express his intention, it cannot be restrained or limited in its effect by the circumstance that the bequests are to be paid over at a future period of time and upon the termination of an intermediate estate. The rule upon this subject is that, “if the postponement of payment appear to have reference to the situation or convenience of the estate, as if land be devised to A. for life, remainder to B. in fee, charged with a legacy to O. payable at the death of A., the legacy will vest instanter.” Jarman on Wills (5th Am. ed.), 834, and note 1, whore it is said that “ where payment is deferred either on account of some interest in the subject being given to a person on whose death the gift is to take effect, or some difficulty attending the -collecting the testator’s effects, the bequest is considered as independent of the time named, and the legacy is vested at the death of the testator.” And this rule will only yield to an expression of a contrary intention on his part. But no such intention has been expressed in, or is to be implied from, the terms of this will. _ On this subject it was held by Denio, C. J., In the Matter of New York Public School (31 N. Y., 574, 589) that, “ the general, if not the universal rule is, that where there is a person in being in whom the estate in remainder would vest in possession, if the precedent estate .should immediately terminate, it is vested in interest, though it may not be certain that such person will be living or qualified to take at 'the actual cessation of the prior estate.” And in Betts v. Betts (4 Abb. N. C., 317, 387) the rule was again clearly repeated “ that when legacies are payable in the future without condition annexed or any expressed intention of the testator to ,the contrary, whether they are of personal property or of real estate, directed to be sold to discharge them, they vest at the death of the testator.” And Sweet v. Chase (2 Comst., 73); Loder v. Hatfield (71 N. Y., 92, 100); and Warner v. Durant (76 id., 133), maintain the same principle. Its application is not prevented by the circumstances that the fund for the payment of the legacy may be directed to be derived from both real and personal property, or from real estate, for the intermediate period devoted to the use, benefit or enjoyment of another person or persons. Upon this subject it was held in Manice v. Manice (43 N. Y., 303) that, “it mav belaid down as a general rule that where by a will, shares or interests in real or personal estate, to be ascertained by a division, are given, or where the real estate is •directed to be sold and the proceeds divided, the estate or interest of the devisee or legatee in the property to be divided or converted is a vested interest, before the conversion or division, and that limitations -over, to take effect in case of the death of those first designated prior to the division or sale, must be held to refer to the time appointed for the division or sale, and not to the period of their completion, unless the language of the will clearly and unequivocally expresses .an intention that the vesting shall be postponed until such completion.” * * * “A similiar rule is applied to gifts of shares •or legacies to be paid out of a fund or surplus, to be collected in or ascertained and divided, and in those cases the interests of the legatees are held to vest absolutely before the fund is collected, or the surplus ascertained, or,division actually made, and it is held that a limitation oyer, to take effect in case of the death of the legatee before he has received his share, does not take effect if the legatee lives to become entitled to it though he die before it has been, paid.” * '* * “And this rule was applied in its full force to the case of a mixed fund of realty and personalty.” (Id. 368, 369).

These authorities very clearly maintain the propriety of the construction already placed upon the portions of the testator’s will now in controversy in this action. Under the rule prescribed and supported by them the shares of this part of the testator’s estate directed to be.given to these societies would have vested immediately upon his decease, if they had been such bodies as under the laws could have taken these interests. But as they were only voluntary associations, and no valid trust for their benefit was in any form created, the legacies failed to vest on account of the legal incapacity of the societies to take them, and the right to the funds accordingly, as well as necessarily, vested in the next of kin of the testator living at the time of his decease. The directions given for the payment of these legacies differed from that which was sanctioned in Burrill v. Boardman, (supra) allowing the gilt to remain in abeyance until the corporation was formed which was designed to receive it, for the body was required to be incorporated .within a period of two years next after the decease of the testator, and before the expiration of two designated lives referred to for that purpose, while these directions provided for no such occurrence and were made depending upon no event whatever of that description.

If the bequest designed for the Reformed Low Dutch Church should be held to be contingent upon the event that a church edifice should be built after the year 1856, within the bounds mentioned by the testator, it would not promote the interests of this society. The society itself was formed as a voluntary association by the action of the testator and others in January, 1860. Before that he had been a member of another religious organization of the same order, located in Harlem, and known as “The Reformed Low Dutch Church of Harlem,” in the Ninth ward of the city -of New York; and from the fact of his joining this association, and the direction for the payment of these two shares to the eliureji mentioned by him, it is to be inferred that he took an active interest in the organization and prosperity of the now society. But at the time of his decease this society had neither built a church within the prescribed bounds, nor had it become incorporated as a religious corporation. It did complete a church edifice shortly after the decease of the testator. That was dedicated on the 25th April, 1860; but neither this completion, nor the subsequent' incorporation of the society, would entitle it to these shares, even if the gift was not designed to take effect until one or the other of these events should arrive, for there was no limited time within which the church was required tó be built; or if the phrase made use of was designed to refer to the incorporation Of the society, the time within which that should be made was in no manner indicated in the will. But it was left indefinite only to be terminated by the occurrence of the event which the testator contemplated, and that was- to take place after the year 1856. How soon after was a subject upon which no intimation was given. It might, therefore, be within the succeeding five years, as the fact itself was shown to have taken place, or under this indefinite language the event might not take place for 100 years, or any other longer assignable period of time; for that reason there was at least a possibility that this contingency would not arise within the lives of any two persons in being at the decease of the testator. And it was not limited in any form upon the lives of persons as that has been required by the statute to render such a limitation lawful. (2 R. S. [6th ed.], 1167, §§ 1, 2.) Burrill v. Boardman (supra, 259), where it. was held that “ the title to personal property must vest absolutely within two lives in being. A possibility of suspension beyond that for any time, however short, is fatal.” In any view which may be taken of the direction given for the payment of this bequest there was a possibility, if it is held to have been contingent, that the title to it would not become vested in the legatee by reason of the building of a church or the incorporation of the society within this prescribed period of two lives, and it must therefore be held to have been an unlawful direction within the rule just mentioned.

Neither the bequest of the share to the American and Foreign Christian Hnion, nor New York Tract Society, or of the "two Shares to the First Reformed Low Dutch Church, can be sustained as legal dispositions of these portions of the testator’s estate. Upon his decease, therefore, the right to these portions of the fund became vested in the next of kin, as they do not appear otherwise to have been disposed of by the terms of the will or either of the codicils, and the widow having died in July, 1882, they should be directed to be distributed as the one-eighth is by the judgment which the testator by his will did not undertake to dispose of.

The-right of the Woman’s Hospital, in the city of New York, to a portion of the interest of a legacy of $9,000, and the payment of the principal after the decease of the testator’s sister-in-law and daughter-in-law, and a sister has also been drawn in question by the appeal. It was directed to be finally paid over after these three persons had -departed this life, and the right of the executor to pay it, and of the hospital association to receive it, is resisted upon the ground that the ultimate payment and vesting of the principal of the legacy were fixed for too remote a period to allow it to be lawfully done under the laws of the State. But it appeared that an action was brought by the executors soon after the decease of the testator, which was decided in 1862, in which the obligation of the executors to pay the legacy to the Woman’s Hospital Association was drawn in question, and the court then determined that it was a valid bequest to the -corporation which was formed by an act of the legislature passed on the 18th of April, 1857. This corporation or association was not made a party to the action, and for that omission it is objected that the judgment in that action is not obligatory upon the executor. The point taken is that as it would not have bound the hospital association, if the decision had been against the legality of the bequest, that it cannot take advantage of a decision made sustaining this bequest. But this result by no means follows, for the hospital association claims and endeavors to avail itself of the benefit of this decision. It practically comes in under the judgment and claims the benefit of this determination in its favor. This circumstance very materially distinguishes the position of the association from that in which it would stand if the decision had been adverse, and it objected to its effect because it had not been a party to the action in which the decision was made. The association would be án a condition to take the advantage of such an objection, but that is not the nature of its present relation to the controversy. For it has not only omitted to make any objection, but it has accepted the result of this determination. And as that is the position of the "WOman’s Hospital Association, the other parties to the action are not in a position in which they can object that the judgment was not binding upon it. The association has accepted its binding obligation as fully and completely as though it had been a party to the action. The other persons urging this objection in support of their .appeal were all of them parties to the suit in which this determination was made, and as between them the court having jurisdiction over them decided this to be a valid bequest; and from that circum. stance it follows that the Hospital Association became entitled to receive it. This judgment is conclusive upon the surviving executor who was one of the plaintiffs in the action, and also upon the next of kin of the testator who were made defendants in it. Between them-it was a direct adjudication upon a point presented to the court that this was a valid bequest to the association. It in effect operated upon so much of the estate in the hands of the executors as to render it their duty to hold it for the ultimate benefit of the association, and to pay it over according to the directions given for that purpose by the testator. This judgment is obligatory to this extent upon the surviving executor. And is not only an authority, but it renders it his duty, to pay over the bequest .as that was directed by the testator. And as the right of the legatee to receive it was adjudged against the persons now denying it, they cannot intercept the execution of the judgment by taking the objection which the law reserved alone to the Hospital Association itself, and that association has declined to make it, that it was not a party to the litigations in which this direction was given.

These observations also constitute an answer to the exceptions filed by the defendant, Daniel Fanshaw, denying the right of the surviving executor to credit for a portion of the interest paid upon this legacy to the Hospital Association. For as its right to the principal of the legacy itself must be maintained upon the effect the judgment already mentioned is entitled to have, the payment of the interest also requires to be sanctioned.

For the purpose of the distribution of the property it was directed by the testator to be converted into money. That conversion in the first instance for the creation of a fund to supply the annuity of $1,500 given to the widow, and finally for the sale of the real estate reserved for her benefit for life, after her decease. As to three of the eighths of that fund the directions given were in entire accordance with the law, and it was necessary that the real estate should be converted into money to dispose of those three-eighths as the testator had directed that to be done. That fully authorized the conversion of the real into personal estate and left a residue of five eighths to be distributed as personal estate. As to four of these eighths that cannot be done as it was directed by the will of the testator. But the fund created in this manner under his authority is to be distributed as that is required to be done by the laws of this State. The judgment from which the appeal has-been taken should be so far reversed as it directs the payment of the four eighths of the fund claimed by the American and Foreign Christian Union, the New York Tract Society, and the Reformed Dutch Church. A direction should be inserted or added for the distribution of these shares conformably to the views already expressed. In all other respects the judgment should be affirmed, with taxable costs payable out of the estate to the several parties represented upon the argument of the appeal.

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

Judgment modified as directed in opinion, and affirmed as modified, with costs to all parties appearing out of the estate.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. OTTO A. NUBELL, Appellant, v. THOMAS BYRNES and Others, Respondents.

      Fugitive from justice — duty of the governor upon the presentation of the demand and a copy of the indictment — he cannot pass upon the validity of the imMctmeni — right of the person arrested to compel his custodian to prove his identity with the p&rson indicted.

    Where a 'demand is made upon the governor of this State hy the governor of another State for the surrender of a fugitive from justice, and such demand is accompanied hy a copy of an indictment found in such other State charging the person demanded with having committed treason, felony or other crime, and the same is certified as authentic hy the governor making ,the demand, it is the duty of the governor of this State to issue a warrant for the arrest of the person demanded, and he has no authority to determine whether or not the charge is well founded, or whether or not the indictment is defective.

      People ex rel. Jourdan v. Donohue (84 N. Y., 438) followed; People ex rel. Lawrence v. Brady (56 N. Y., 183) distinguished.
    The fact that the indictment, of which a copy is annexed to the requisition, fails to give the full Christian names of the person demanded, and only states the initial letters thereof, does not justify a refusal to issue the warrant by the governor, or a discharge of the person demanded by the court, after he has been arrested thereunder.
    But where a person has been arrested upon a warrant issued hy the governor upon a requisition founded upon such an indictment, and in the warrant the initials only of the two first names of the alleged fugitive are given, such person is entitled upon the return to a writ of habeas corpus to deny that he is the person mentioned in the warrant; and upon such denial being made the burden of proving that he is the same person is thrown upon the party seeking to detain him in custody.
    Appeal from an order made at a Special Term dismissing a writ of habeas corpus and certiorari, and remanding the relator to the custody of the respondent.

      JSdww'd P. Wilder, for the appellant.

      Peter B. Olney, district attorney, for the respondents.
   Daniels, J.:

The relator was arrested npon a warrant, issued by tbe governor in conformity to a requisition made upon him by tbe governor of tbe State of Illinois, for tbe arrest and return to that State of O. A. Nubell, wbo there stood charged with the crime of conspiracy committed in the county of Cook in the State of Illinois. The warrant recited that it had been represented by tbe governor of tbe State of Illinois that Nubell bad been so charged; that be bad fled from justice in that State and taken refuge in tbe State of New York, and that tbe representations were accompanied by an indictment and affidavit, whereby tbe said O. A. Nubell is charged with the said crime, and with having fled from said State and taken refuge in tbe State of New York, which were certified by tbe governor of Dlinois to be duly authenticated. It was upon these representations and evidence that tbe warrant was issued by tbe executive of this State, upon which tbe relator was arrested and held. At tbe instance ,of his counsel, alleging the arrest and detention to be illegal, a writ of habeas corpus was issued and the relator brought before one of the justices of this court. A return was made to the writ setting forth that he was held in custody under the warrant issued by the governor of the State of New York. To this return a demurrer was interposed, which was overruled by the justice before whom the hearing took place, and the writ itself was dismissed, and it was from the order dismissing the writ that the appeal has been taken by the relator.

In support of the appeal it has been objected that the indictment itself set forth, no offense, and that it was fatally defective by reason of the fact that it was presented against Nubell by the initial letters of his Christian names without setting- forth either one of such names. "What the statements in the indictment may. have been, describing the charge of conspiracy contained in it, were not made a part of the proof, for the copy of the* indictment itself was not produced, but remained in the custody of the executive of the State, and all that can be known of its contents must be derived from the statements in the warrant, whose recitals set forth the fact that Nubell did stand charged with the crime of conspiracy, and that he was so charged by an indictment certified by the governor of Illinois to be duly authenticated. "What the particular nature of the conspiracy was, is not set forth, but it is to be inferred from the statements contained in the warrant, that the charge constituted a crime under the laws of the State of Illinois, and on evidence tending to pove the commission of the crime, the grand jury presenting the indictment, had concluded that the crime charged had been committed by Nubell the person named in the indictment. It is to be inferred from these facts that the case had been presented to the grand jury and the evidence produced in Bupport of the charge had been considered, that they had concluded that a crime had probably been committed, and liad embodied the result of their conviction upon this subject in the indictment, legally and formally charging Nubell with the commission of a crime under the laws of the State of Illinois. "What those laws may be upon the subject, has in no way been made to appear. Neither was it necessary that their provisions should be shown to support the application for the arrest and return of the person charged.

Neither the Constitution nor the act of congress under which the proceedings have been taken, require that those laws shall be brought to the attention of the authorities of tbe State in which the accused person may have taken refuge.

These are not subjects which have been committed to the consideration of the authorities of the State, but ai-e subjects necessarily committed to the consideration and disposition of the judicial authorities of the State in which the ipdictment has been found.

This was clearly the design and intention of the Constitution of the United States, and of the act of congress enacted to carry the provision made upon this subject into practical effect. What the Constitution has required, and all that it has required, to authorize proceedings of this description, is that the person proceeded against, shall be charged in another State with treason, felony, or other crime, and that he shall have fled from justice, and shall be found in the other State. In these events it has been made imperative that the, person charged shall on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime. (Const. U. S., art. 4, § 2, sub. 3.) This provision does not confer upon the authorities of the State in which the person may be found the power to try or determine the question whether the charge may have been legally well founded or not. But that was left to be determined by the authorities of the State having jurisdiction of the crime. All that this provision has required to authorize the return of the alleged fugitive is, that he shall be the person who has been charged, and that a criminal charge shall have been made against him. When these facts may be made to appear, then on demand of the executive authority of the State from which the person has fled, the Constitution has declared that he shall be delivered up to be removed to the State having jurisdiction of the crime. And effect was given to this provision of the Constitution by an early enactment of congress for that purpose. (1U. S. Statutes at Large, 302). And since then the same enactment has been inserted as section 5278 in the United States Revised Statutes. By this section it has been enacted that “ whenever the executive authority of any State or territory demands any person as a fugitive from justice, of the executive authority of any State or territory to which such person has fled, and produces a copy of an indictment found, or an affidavit made, before a magistrate of any State or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or territory to which such person has fled, to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. ”

This section was enacted in such terms as to require the executive of the State, in which the alleged fugitive may have taken refuge, to cause him to be arrested and secured, upon the criminal charge being authenticated by a copy of the indictment which has been found.

That is all the evidence of the crime which the executive under the law has the right to demand. "When the copy of the indictment certified to be authentic by the governor of the State from whence the person charged is shown to have fled, is presented, it is made the absolute duty of the executive to whom this proof shall be made, to cause the arrest of the individual so charged.

He is vested with no authority to examine into the charge, or the sufficiency of the indictment, but has been required to act solely upon the facts; that the charge has been embodied in the indictment found by the constituted authorities, and a copy of the indictment has been presented to him properly authenticated. This subject was considered by the Supreme Court of the United States, In the Matter of Commonwealth of Kentucky v. William Dennison, Governor of the State of Ohio (24 How. [U. S.], 66). The charge there was, as the indictment set it forth, that Willis Lago had committed a crime by assisting a slave to escape from the State of Kentucky. The accused was alleged to have fled to and taken refuge within the State of Ohio, and the executive of the State of Kentucky demanded his extradition and return from the governor of the State of Ohio. This was not deemed to set forth a criminal offense as the law was understood in the State of Ohio, and an order or direction for the removal of the accused and his return to the State of Kentucky was refused. An application was thereupon made to the Supreme Court requiring the governor of the State of Ohio to show cause why a mandamus should not be issued, commanding him to cause the accused to be delivered up and removed to the State of Kentucky, having jurisdiction over the crime with which he had been charged. The order was refused for the reason that the court did not consider its jurisdiction to be so extended, as to require performance of this duty through the means of the writ of mandamus. But in the considerations of the case the chief justice, in his opinion, declared the view of the court to be that the duty had been imposed upon the executive of the State of Ohio under the Constitution and the act of congress, to cause the arrest and return of the fugitive. Upon this subject it was said that, “it will be observed that the judicial acts which are necessary to authorize the demand are plainly specified in the act of congress; and the certificate of the Executive authority is made conclusive as to their verity, when presented to the Executive of the State where the fugitive is found. He has no right to look behind them, or to question them, or to look into the character of the crime specified in this judicial proceeding.

“ The duty which he is to perform is, as we have already said, merely ministerial — that is, to cause the party to be arrested and delivei’ed to the agent or authority of the State where the crime was committed. It is said in the argument that the Executive officer upon whom this demand is made, must have a discretionary executive power, because he must inquire and decide who is the person demanded. But this certainly is not a discretionary duty upon which he is to exercise any judgment, but is a mere ministerial duty — that is, to do the act required to be done by him, and such as every marshal and sheriff must perform when process either criminal or civil is placed in his hands to be served on the person named in it. And it never has been supposed that this duty involved any discretionary power, or made him anything more than a mere ministerial officer; and such is the position and character of the Executive of the State under this law, when the demand is made upon him, and the requisite evidence produced. The Governor has only to issue his warrant to an agent or officer to arrest the party named in the demand.” (Id., 106, 107.)

These views are clearly in accordance with the language of the Constitution and the act of congress, and they deprive the executive of all discretion over the subject committed in this manner to his action. When the indictment has been found charging a criminal offense, and that has been certified to the executive of the State to which the fugitive is shown to have fled, the imperative duty is at once created to cause his arrest and his return ; and its performance cannot be declined because the executive on whom the demand may be made, may consider the criminal charge not to be well founded or not to have been stated with the clearness or precision required by the law or practice of his own State. Substantially the same was the view of the Court of Appeals of this State in People ex. rel. Jourdan v. Donahue (84 N. Y., 438). A somewhat different course was sanctioned and followed in People ex rel. Lawrence v. Brady (56 N. Y., 183), where the person charged was relieved from his arrest by habeas corpus practically upon the ground that the facts contained in the affidavits were not sufficient to create a crime as the law had been understood and administered in this State. But as that case proceeded simply upon the effect of the affidavits produced, it may be regarded as distinguishable from these other authorities. It certainly does not require, and would not justify a refusal to exercise the authority provided for, simply because the courts of this State, ór the executive himself, might consider that the conspiracy charged by the indictment was not a criminal offense. Whether it may be or not, must depend upon the laws of the •State of Illinois, under which the indictment has been found, and the administration of those laws by its tribunals.

The proceeding has also been resisted as unlawful because of the omission to give the Christian names of the person charged with the offense in the indictment. But the courts of this State would not be justified in discharging the person from arrest on account of this omission. It may be a fully authorized mode of proceeding under the laws of the State of Illinois to charge a person with the commission of a crime in this manner. The presumption is in favor of the regularity of the indictment. It has so far passed the ordeal of the authorities of the State, and been acted upon and accepted in this form, and these acts are evidence of its regularity. It is not for the authorities of this State to determine the manner in which the State of Illinois shall conduct its legal proceedings» That is a matter committed entirely to the authorities of that State. Upon this subject it was said in Commonwealth of Kentucky v. Denison (supra, 107): “Kentucky has an undoubted right to regulate the forms of pleading and process in her own courts, in criminal as well as civil cases, and is not bound to conform to those of any other State. And whether the charge against Lago is legally and sufficiently laid in this indictment according to the laws of Kentucky, is a judicial question to be decided by the courts of the State, and not by the Executive authority of the State of Ohio.”

It may possibly be that this was an irregular mode of proceeding, but whether it was or not was not for the executive of this State to decide, neither has its courts authority to review that point. For as the indictment has been found, and properly certified, as the facts are stated in the warrant, that is all that can be required under the Constitution and the statute to authorize the arrest and return of the person charged, by the courts of this State.

An indictment is not necessarily to be declared inoperative, or void, even under the strict rules of the common law, because of its omission to designate the individual charged by the full Christian name.

He may be indicted, as the accused has been in this instance, by giving the initials of his Christian name, and upon such an-indictment he may be legally convicted and punishe 1.

This was held by the Court of Appeals of South Carolina, in City Council v. King (4 McCord, 487), where the court held the remedy of the accused to be that only of a plea in abatement. And if he failed to take the objection in that manner, that his right to insist upon it would afterwards be waived. A similiar ruling was made in Smith v. State (8 Ohio, 294). There the accused was named in the indictment W. E. Smith, and it was held that he could not object to the informality after pleading not guilty.

In the course of the opinion of "Wood, J., it was said: “ In 2 Hawkins’ C. 23, § 125, it is said,'if there be no addition, or a wrong one, the defendant can take advantage of it by plea in abatement only, and Hawkins is sustained by 1st Siderfine, page 247, Rex v. Warren, and by 2 Inst., 670; and it is further said, if he pleads over he thereby waives all objections to the indictment on that account. So if there be no Christian name, or a wrong one, or no surname, or a wrong one, the defendant can take advantage of it by plea in abatement only, and if he plead over, he waives the objection.” (Id., 276.) And the same general principle was declared in Commonwealth v. Dedham (16 Mass., 141, 146), State v. Burnell (29 Wis., 435, 438), and it was also considered to be the only manner in which a misnomer could be taken advantage of in Salisbury v. Gillett (3 Ill. [2 Scam.], 290) and in Carpenter v. State (8 Mo., 291.)

And that was the course of practice followed in Gerrish v. State (53 Ala., 476). The other cases relied upon in support of the appeal decided by the Supreme Court of the State of Illinois, are-in no respect at variance with this practice. Where the party sued or proceeded against is misnamed, or his name is defectively given, the mode prescribed for taking advantage of the defect is by plea or answer; and in reply to that it may be alleged and shown that the party' has usually designated himself by the name in which he may have been charged, and that will form a legal answer to the objection. (City Council v. King, supra, 489; 2 Hale, 238.) What was urged and said upon this subject on the motion to quash the indictment against Dorsey, forms no substantial exception to this rule, for the proceedings there were wholly before the court in which the indictment was pending, as it of course would be, if it were put in a more formal shape by plea in abatement. In either case the tribunal to correct the informality, is that in which the indictment shall be pending. It appertains to its1 proper jurisdiction over the subject matter of the case, and cannot be a legal ground for the discharge of the accused from arrest in a proceeding of this character. That results not only from the authorities but also from the Constitution and laws of the United States prescribing and regulating this mode of proceeding. They have reserved no such authority either to the executive or the tribunals of this State. But when the indictment has been found, although it might be regarded as defective as the criminal law is administered in this State, the executive is required to act upon it when a copy properly authenticated has been presented to him, leaving it, as the law clearly does, tó the courts of the other State to determine, the legal effect or regularity of the proceedings. This intent is further manifest by section 5279 of the United States Revised Statutes. Bor it is provided that “any agent so appointed who receives the fugitive into his custody shall be empowered to transport him to the State or territory from which he has fled. And every person who by force sets at liberty or rescues the fugitive from such agent, while so transporting him, shall be fined not more than $300, or imprisoned not more than one year.” The law has created a specific and well defined proceeding by which the provision of the Constitution on this subject is to be carried into effect; and when the provisions of the Federal Statute appear to have been formally complied with, the courts of this State are not authorized to interpose and release the person arrested because their views, or mode of criminal procedure, may not have been complied with in the State in which the indictment has been found. The proceeding is wholly statutory, and when the provisions of the statute have been observed, the governor is imperatively required to cause the arrest of the person charged and deliver him'up to be returned to the State in which the criminal charge may be pending against him. And no court has the power to interfere and prevent the exercise of this authority, when the steps required to be taken have been followed in the case and brought to its attention. If the indictment is to be quashed, or in any other manner defeated or set aside, that is to be done by the action of the tribunal in which it may be pending. The subject is exclusively for its consideration and all the authorities require that the accused shall be taken before that tribunal for its action in the premises.

The cases in which the arrest of persons has .been considered unauthorized, by reason of differences in their names, are not applicable to this proceeding ; for it is governed wholly by the Federal Constitution and statute. They have prescribed the practice and mode of proceeding, and the execution of the statute cannot be defeated because the courts acting under the authority of the common law might find it necessary to observe and follow a different rule.

The question in this class of cases must be whether the Federal law has been complied with, and where that may appear to have been done, the courts cannot defeat its operations merely because a different mode of proceeding would be considered essential for the arrest of persons charged with crime under the laws of this State.

But while the warrant of the governor appears to 'have been authorized, as that was required to be done by the Federal statute, it did not follow that the relator could be arrested under it. It issued for the arrest of O. A. Nubell, and it cannot certainly be said that it would authorize the arrest of Otto A. Nubell. For the person known by the latter name cannot surely be said from the identity of a part of the name, to be the individual known by the name, of O. A. Nubell. That was necessarily a matter of proof.

The relator has the right to controvert the fact that he was the-person mentioned -in the warrant as O. A. Nubell, and by his objections to the' return of the writ of habeas corpus, he did in effect present that objection.

"Wliat should then have been done, if the facts would justify it, was the answer that Otto A. Nubell and O. A. Nubell were one and the same individual, and that consequently the relator was the person intended to he arrested and returned by virtue of the executive warrant. This was an issue either party had the right to present and to have a judicial determination of his identity with the person whose arrest was authorized by the warrant. And by section 2039 of the Code of Civil Procedure the court was not only empowered, but required to make that investigation. That was not done, but the demurrer was overruled and the writ of habeas corpus dismissed.

This direction requires to be corrected. The order should be reversed and an order entered sustaining the demurrer, with liberty to the respondents to amend their return by adding the statements, and establishing the fact by proof, that the relator is the same person named in the warrant under which he is now held in custody. And in case that proof shall he made, then it will follow of course that the writ should be dismissed and the relator returned to the State of Illinois.

Davis, P. J. and Beady, J., concurred.

Order dismissing writ of habeas corpus reversed, relator returned to custody under the execution warrant, and hearing directed to proceed as to identity of relator with the person named in the warrant.

In case such identity shall be established, the relator to be then delivered, as directed by the warrant, to the State of Illinois. If it shall not be established then the relator to be discharged from custody.


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    JOHN HURD, Appellant, v. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Respondent.

      Undertaking on appeal — when the guaranty of a corporation will he accepted in the place of sureties —1881, chap. 486 — Code of 0ml Procedure, secs. 1834, 812.
    Chapter 486 of 1881, impowering any surrogate, judge, sheriff, district attorney or other officer, having authority, or required to approve of the sufficiency of any bond or undertaking, to accept, in his discretion, a bond and undertaking, and approve the same, whenever its conditions are guaranteed by a company duly organized or authorized to do business under the laws of this State, and guaranty the fidelity of persons holding positions of public or private trust, and vesting such corporation with fúll power to guaranty such bonds and undertaking — authorizes such a corporation, to sign, in place of sureties on undertakings given upon an appeal from a judgment to the ('ourt of Appeals, and to guaranty the performance of the covenants and conditions thereof.
    This act so far modifies section 1334 of the Code of Civil Procedure, requiring two sureties to such an undertaking, as to dispense with them when a guaranty of this description is given.
    When such a guaranty is given, the respondent should be allowed to examine the officers of the company as to its ability to enter into and make it.
    Appeal from an order allowing and accepting tbe guaranty of the Fidelity and Casualty Company of New York, as bail upon an undertaking given on an appeal from a judgment to the Court of Appeals.

      I. B. Bonndl, for the appellant.

      Thos. 8. Moore, for the respondent.
   Daniels, J.:

The undertaking is in the form prescribed by the Code of Civil Procedure, on an appeal from a judgment to the Court of Appeals. It was given and executed by the defendant in its corporate capacity, and added to or indorsed upon it was a guaranty of the Fidelity and Casualty Company of New York, by which it guaranteed the performance of the covenants and conditions of the within bond. This guaranty was taken under the authority of chapter 486 of the Laws of 1881, by which any surrogate, judge, sheriff, district attorney or any other officer, having authority or required to approve of the sufficiency of any bond or undertaking, may in his discretion accept a bond and undertaking and approve the same, whenever its conditions are guaranteed by a company duly organized or authorized to do business under the laws of this State, and guaranty the fidelity of persons holding positions of public or private trust, and vesting such corporation with full power to guaranty such bonds and undertakings. This language was clearly so broad as to include the undertaking given upon the appeal in this action; and as the company was a corporation having authority to, guaranty the fidelity of persons holding positions of public or private trust, it was by this act empowered to make the guaranty it did of this undertaking. The act has been objected to as not being sufficiently broad in its title to justify the enactment. It is entitled an “ act to facilitate the giving of bonds required by law.” But as, bonds and undertakings are to a very great extent understood to be convertible terms, the title of the act was not materially deficient. But if it had been it would be of no importance, for the reason that the act is neither a private nor a local law.

The power and ability of the company to act in this capacity was made the subject of investigation by the General Term of this department, and as it appeared to be incorporated under the general laws of the State, and authorized to transact business by way of guaranteeing the fidelity of persons holding positions of public or private trust, this authority to guaranty bonds or undertakings subject to judicial approval was found to exist, and it was accepted as competent for that purpose.

This act has necessarily so far modified the provisions of the Code of Civil Procedure requiring two sureties in such an undertaking, as to dispense with them when a guaranty of this description may be given. That was clearly its object' as to all bonds and undertakings. It was to substitute the guaranty of the bond in place of the liability and obligation of the sureties otherwise required by law.

The court refused to permit the plaintiff to examine the officer of the company as to its ability to enter into and make the guaranty. This we think was erroneous. When the specific objection • was Qvérruled further proceedings should have been taken to examine the officers on behalf of the respondent, if he so desired, and thereupon the court should have approved or disapproved of the undertaking. •

The order should be modified accordingly, and as so modified affirmed, without costs. —

Davis, P. J., and Beady, J., concurred.

Order modified as directed in opinion, and as so modified affirmed,, without costs.


author: Daniels, J. :

text:
    GEORGE G. HALLOCK AND ALICE A. HALLOCK, as Executors, etc., of GEORGE G. HALLOCK, Deceased, and SELIG BARANSKI, Appellants, v. RACHEL SCHEYER and EMANUEL SCHEYER, Respondents.

      Obstruction of a sidewalk by sign-boxes — when they constitute a nuisa/nce — right of an adjoining owner to restrain it— right of the lessor to join with the tenant in the action.

    The defendants who occupied a store on Grand street, in the city of New York, adjoining that of the plaintiff Baranski, placed a show case, sign and fence extending from their store out upon the sidewalk in such a manner and to such a height as to obstruct the light and obscure the view of the plaintiff’s show windows, thereby tending to exclude his customers from it, and to injure his-business.

      Meld,, that such acts upon the part of the defendants constituted a nuisance, injuriously affecting the business of the plaintiff, and that the latter was-entitled to maintain an action to. restrain its further continuance.

      It seems, that in such-an action the tenant may join the executors of his deceased, lessor as parties plaintiffs.
    Appeal from an order made at a Special Term denying a motion for an injunction.

      Benjamin H. Baylis, for the appellants.

      Bogart dé Hathaway, for the respondents.
   Daniels, J. :

The plaintiff Baranski and the defendants are occupants of adjoining stores upon Grand street, and partially engaged in the same line of business. It has been shown by the complaint, and sustained by the affidavits, that the defendants have placed a show case, sign and fence, extending from their store out upon the sidewalk in such a manner, and to such a height, as to obstruct the light and obscure the view of Baranski’s show window and of his store,. thereby tending to exclude his customers from it, and to injure his business. The show case and sign together are stated to be of the height of about eight and one-half feet, and they together with their effect are described in the complaint and also in the affidavits in the following manner:

V. That heretofore, and for many months last past, the said defendants have daily and every day, except Sundays, illegally and improperly placed, erected and maintained, and with like unlawful purpose, object and effect, still continue to so daily place and maintain in front of said premises No. 398 Grand street, so occupied by them as aforesaid, a large structure or show case, and also a solid board fence or barrier projecting beyond the front wall of said last named premises, and nearly on a line between the same and No. 400 Grand street, by which ease and fence or barrier the public, and especially purchasers of such goods, wares and merchandise as are sold and offered' for sale by the plaintiff Baranski, are largely prevented from seeing the show windows and goods exposed for sale by said plaintiff Bai’anski, when approaching his premises from a westerly direction, and also that by the said barrier or fence the light is to a great extent excluded from the show windows of said plaintiff.

That said show case is about seven feet in height by nearly four feet square, and that upon the top thereof the defendants placed a sign, which extends eighteen inches above the said show case, making the entire height of said show case and sign eight and one-half feet or thereabouts; that they have placed the same out and beyond the stoop line of their said premises, and that said solid board fence or barrier is of the height of six feet and upwards, by about three feet in width, and is placed against the front wall of said premises No. 398 Grand street, and so that the same shuts off a very considerable quantity of light from deponent’s show windows, fróm which the said fence barrier is distant only about one foot.

The affidavit made by the defendant Emanuel Scheyer in opposition to the motion, does not very materially detract from the strength or accuracy of these statements, and the case was therefore left substantially as it was set forth in the complaint and the accompanying affidavits.

These statements were sufficient to establish the creation of a nuisance injuriously affecting the business of tbe plaintiff Baranski, and as the defendants bad been requested to remove it, and refused to do so, a cause of action for an injunction was disclosed in tbe case. For an injunction may issue to restrain a nuisance, as tbe remedy in equity is more adequate and better adapted to reach the justice of tbe case than a mere action at law for tbe recovery of damages. (Bemis v. Upham, 13 Pick., 169; Davis v. Mayor, etc., 4 Kern., 506, 526.) It is evident from tbe case that a suit for damages would be ineffectual because of the inability to produce evidence of their extent, and if tbe tenant was confined to such an action for bis redress, it would require to be constantly repeated on account of tbe daily recurrence of tbe obstruction. It is an unlawful use of so much of tbe sidewalk as is occupied by it, and the tenant has just cause of complaint on account of its interference with bis occupancy and enjoyment of the store leased to him.

Tbe action was not defective because the executors of the lessor were also made parties. (Hilliard on Injunctions [3d ed.], 332.) They bad an interest in securing tbe rental value of the property, and as such cannot be regarded as entire strangers to tbe controversy. For a continuance of the obstruction must to a certain extent reduce tbe value of tbe occupancy of tbe property. But if they were not proper parties, as long as tbe tenant himself is a plaintiff in tbe action and has a well grounded cause of complaint, be may maintain it for tbe relief be may be able to secure, although tbe complaint in tbe end may be dismissed as to the executors. Tbe fact that they may have been joined as unnecessary parties in tbe action forms no legal impediment in bis way to that redress which tbe nature of tbe case indicates him to be entitled to claim.

Tbe order should be reversed and tbe motion for an injunction should be granted, upon tbe usual undertaking being given, in tbe sum of $400, and tbe plaintiffs should be awarded their costs and •disbursements on this appeal.

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

Order reversed and tbe motion for an injunction granted, upon tbe usual undertaking being given, in tbe sum of $400, and tbe plaintiffs awarded their costs and disbursements on this appeal.


text:
    JAMES O’SHEA, Respondent, v. HENRY KOHN, Appellant.

      Sunday laws — when the validity of a sale of meat, on Sunday, cannot he disputed ■ hy the purchaser — undertalcing upon arrest — the plaintiff may sign it with the sureties — Code of Qimil Procedure, see. 559.
    In an action brought to recover damages sustained by the plaintiff because of his having been induced to sell meat to the defendant by reason of fraudulent representations made by the latter, an order for the arrest of the defendant was made.

      Held, that the fact that beef was sold on Sunday presented no reason for vacating the order.
    That the fact that the plaintiff had received and still held a worthless check of the defendant was no answer to the action, as the check could be surrendered on the trial.
    Where an undertaking, given upon procuring an order of arrest, is duly signed by two sureties, as required by section 559 of the Code of Civil Procedure, it is not invalidated by the fact that the plaintiff himself also subscribed it.
    Appeal from an order made at a Special Term, denying a motion to vacate an order of arrest.

      Ira Leo Bamberger, for the appellant.

      loms Cohen, for the respondent.
   Daniels, J.:

The motion was made because of the alleged insufficiency of the-affidavits on which the order was founded. The action was brought to recover the price of a quantity of beef delivered on the 10th of February, 1884. This beef, together with preceding' deliveries, was shown by the affidavit of John Annett, who acted as the plaintiff’s agent in his business, to have been obtained by the defendant upon the representations that he was one of the firm of Block & Kohn, doing business at No. 22 Fulton row, West Washington market. He was not a member of this firm, but the agent, believing that he was, delivered the beef to him. It further appeared that the firm itself was dissolved about three weeks before the sale in controversy was made, and that.fact was concealed by the defendant from the plaintiffs agent. The defendant himself was insolvent, and a check afterwards given by him for the price of the beef, was refused pay ■ ment by the bank on which it was drawn for tbe want of funds. The firm itself was in good credit, and the beef was delivered upon the sole reliance that the representation made was true, and it would not have been delivered if it had not been for these facts. These statements were sufficient to make out a-fraudulent purchase of the beef, and it was no answer to the right of the plaintiff to maintain such an action that a worthless check of the defendant had after-wards been given for the purchase-price. The plaintiff will be at liberty to surrender this check upon the trial, and in that manner relieve himself from all responsibility arising out of its possession.

When the complaint shall be served, allegations containing statements of these facts will set forth a cause of action for the fraudulent purchase of the plaintiff’s property, and the right to damages for its value. If they shall be established upon the trial, they will authorize a recovery to that extent in such an action. The rules upon this subject are so well settled as to require no authority to establish this conclusion. .

It is also objected in support of the appeal, that the day on which the beef is stated to have been sold was Sunday, and for that reason it is insisted that no action can be maintained for the recovery of its value. But the law has not yet extended so far as to permit a person by means of false representations to obtain the. goods or property of another and escape liability upon the fact that the wrong was perpetrated on Sunday. The Code of Criminal Procedure has been extended no farther than to prohibit the public selling, or offering or exposing for sale publicly, on Sunday certain commodities mentioned in it. (Penal Code, § 261.)

From this prohibition meats, milk and fish have been excepted and have been allowed to be sold at any time before nine o’clock in the morning. And it is not to be inferred from anything contained in the affidavit that this sale was not within this exception. The cases relied upon also fail to sustain this objection. In Northrup v. Foot (14 Wend., 248), the point arose under the law of the State of Connecticut, prohibiting any secular business, work or labor, which was. broader than any law upon the same subject enacted in this State. In Watts v. Van Ness (1 Hill, 76), the claim was for work, ing on Sunday in plain violation of the restraints of the statute, and in Smith v. Wilcox (24 N. Y., 353), it arose upon-a contract for tlm publication of an advertisement in a newspaper to be issued and sold on Sunday, which was considered to be a violation of the statute prohibiting servile labor or work on that day. These cases are all distinguishable from the present one which, as already stated, may very well be within the exceptions contained in the statute itself.

The order of arrest contained all it was required that it should by section 561 of the Code of Civil Procedure. In no respect was it substantially defective. There were also two sureties in the undertaking which fully satisfied the requirement made by section 559 of the. Code of Civil Procedure, although it was also subscribed by the plaintiff himself, who in that manner became a party to it. The case of Morss v. Hasbrouck (10 Abb. N C., 407), merely held that the party himself could not be one of the two sureties, but did not exclude him from becoming a party to the undertaking when in all other respects it appeared to conform to all that the law prescribed.

'The order from which the appeal has been taken should be affirmed, with the usual costs and disbursements.

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

Order affirmed, with ten dollars costs and disbursements.