text:
    May Ensign, Individually and as Adminitratrix, etc., App’lt, v. Nathaniel Jarvis et al., Resp’ts.

      (Court of Appeals,

      Filed October 8, 1895.)

    Principal and surety—Liability.
    Where a judgment in an action for divorce provides for the payment of a certain sum as alimony, and the discharge of a mortgage on property of the wife, and the defendant in the judgment, with his brother, gives a bond for its performance but, prior to the entry of such judgment and in anticipation thereof, the plaintiff and the defendant in the action for divorce join in a conveyance of other property of the wife to an attorney who, after the judgment was rendered, conveyed it, as security for the fulfillment of the bond, to a trustee upon the declaration of trust that the trustee should sell the property as soon as practicable, and that if the amount realized was more than the sum due on the bond, pay the excess to the surety thereon, and that, if the bond was paid or performed before the sale, he should convey the property to such surety or his representative, such property constitutes a primary fund to secure performance of the judgment and bond, and the surety cannot, upon the payment of the alimony and the exhaustion of the proceeds of the sale of such property in the payment of the mortgage, compel the trustee and the administratix with the will annexed of the principal in the bond to account for the full proceeds, on the theory that such principal is primarily liable for the discharge of such mortgage before the trust property can be used for that purpose.
    Appeal from a judgment of the general term of the fifth department of the supreme court, affirming a judgment dismissing the complaint.

      Adelberi Moot, for app’lt; Sherman S. Rogers, for resp’ts.

       Affirming 50 St. Rep. 937.

   Bartlett, J.

The complaint was dismissed by the special term in Erie county, and the judgment affirmed by the general term of the fifth department. This action was brought to compel defendants to account for the proceeds of the sale of certain real estate situated at Fremont, Ohio, alleged to have been held in trust for plaintiff’s testator, Charles Ensign. The facts are admitted and this appeal presents only questions of law.

Elisha W. Ensign (whose administratrix with the will annexed is a party) and his wife Jennie, prior to December, 1875, resided in the city of New York at No. 357 West Thirty-fourth street. The title of these premises, as, well also of those located at Fremont, Ohio, was vested in Jennie Ensign, the wife of Elisha. On the 13tb of December, 1875, the court of common pleas for the city and county of New York granted a judgment of absolute divorce in favor of Jennie Ensign against Elisha W. Ensign, and it was further adjudged that the defendant pay to the plaintiff as alimony twenty-five thousand dollars as follows, viz.: Twenty-five hundred dollars on entry of judgment, and twenty-five hundred dollars and interest semi-annually until the whole amount was paid; and that he also pay and discharge of record, within five years from date of judgment, A mortgage covering the premises No. 357 West Thirty-fourth street, on which there was due and unpaid the sum of thirteen thousand five hunred dollars, and that he also give to the plaintiff his bond, with security, for the performalice of the judgment. Thereupon the defendant and his brother, Charles Ensign, executed and delivered to the plaintiff the bond required by the judgment. A few days before the judgment for divorce was entered, and in anticipation of it, Elisha W. Ensign and wife conveyed to William 0. Traphagen of the city of New York, the attorney for plaintiff in the divorce suit, the premises situated at Fremont, Ohio. After the judgment for divorce was entered,Traphagen conveyed the premises toNathaniela Jarvis, Jr., and the latter executed a declaration of trust December 15th, 1875, acknowledging that he held the premises as security for tlie fulfillment of the bond given in pursuance of the judgment for divorce, and agreeing to sell the property so soon as he deemed it prudent and practicable; if at the time of the sale there w$is less due on the bond than the amount realized he was to pay the balance to Charles Ensign, and if the bond had been paid he was to pay to Charles Ensign the net proceeds of the sale. The trustee also agreed that if at any time before sale Elisha W. Ensign or Charles Ensign paid or fulfilled the bond he would convey the premises to Charles Ensign, or to his representatives or assigns. Elisha W. Ensign died in October, 1877, in possession of the Fremont premises, leaving a will, upon which letters testamentary issued to his brother, Charles Ensign. Elisha W. Ensign, in his lifetime, and Charles Ensign, as his executor, made various payments to Jennie Ensign on account of her alimony, and on the 30th of December, 1878, the full amount of $25,000 and interest had been paid. Charles Ensign died on the 3rd of December, 1880, in possession of the Fremont property as Elisha’s executor. On the 7th of January, 1881, the defendant Cornelia Hamilton was appointed administratrix with the will annexed of the estate of Elisha W. Ensign. On the 21st of February, 1882, Sherman S. Rogers, the attorney for Cornelia Hamilton, purchased and took an assignment of the bond and mortgage covering the Thirty-fourth street premises in the city of New York, there being then due thereon $7,298.81. On the 13th of March, 1888, the defendant Cornelia Hamilton entered into a contract for the sale of the Fremont property for $7,000, and prior to that time Mr. Rogers, or his partner, had secured from Mr. Jarvis, the trustee, and one Holt, as executor and trustee of the estate of Charles Ensign, quit-claim deeds of the premises to Mrs. Hamilton, which were to be held in escrow until the mortgage on the New York property was paid and discharged. In order to carry out the sale of the Fremont property by conveying the title to Mrs. Hamilton, Mr. Rogers, by special agreement, on the 31st of March, 1888, caused the New York mortgage to be discharged of record, although it was not in fact paid and could not be paid until the proceeds were received from the sale of the property. On the same day Jennie Ensign, the plaintiff in the divorce suit, delivered to Mr. Jarvis, the trustee, her consent to the cancellation of the bond to her by Elisha W. Ensign and Charles Ensign, and its delivery to Cornelia Hamilton as administratrix of the estate of Elisha. On the 5th of April, 1888, the sale of the Fremont property was consummated, Mrs. Hamilton made her deed to the purchaser, and the $7,000, proceeds of the sale, which was the full value of the premises, were received by Mr. Rogers and applied by him according to the previous agreement in payment of the New York mortgage. It was after this transaction had been thus construed and closed by the immediate parties in interest, or their legal representatives, that the' administratrix of the-estate of Charles Ensign, the surety on the bond, sought to compel Mr. Jarvis, the trustee, and Mrs. Hamilton individually and as administratrix of Elisha W. Ensign’s estate, to account to her for the entire proceeds realized on the sale of the Fremont property. The plaintiS’s main contention is based upon the proposition that Elisha W. Ensign and his estate rested under the obligation to extinguish the New York mortgage for the benefit of the Fremont property. The facts in this case create no such obligation; it is clear from the acts of the parties that Jennie Ensign, having secured an absolute divorce from her husband, was satisfied to receive $25,000 as alimony and the discharge of the mortgage covering her residence in the city of New York, on which there was unpaid the sum of $13,500. It is evident that the provisions of the judgment were well understood before it was actually entered, and that Jennie Ensign waswdlling to devote her Fremont property to securing the performance of the judgment in her favor. To this end she placed the -title in her attorney, and immediately after entry of the judgment it was conveyed to the trustee as security for the fulfillment of the bond given under the judgment. Charles Ensign had no interest in the Fremont real estate, and he appeared on the scene only as the surety of his brother, undertaking that the-latter would obey the decree of the court as to alimony and the payment of the mortgage on the New York property. It is evident that Jennie Ensign intended to constitute her Fremont property a primary fund to secure the performance of the bond executed to her by her husband and Charles Ensign. What her motives may have been is not disclosed by this record, but it is clear that she fully understood the situation, and consented that-her property might be used in carrying out the provisions of the judgment. This purpose is evidenced by the fact that she reserved no residuary interest under the declaration of trust. This-action on the part of Jennie Ensign was in the interest of Charles Ensign in the event Elisha W. Ensign failed to perform in full the covenants of his bond. This anticipated event happened, and the estate of Charles Ensign was relieved from liability to pay the balance due on the New York mortgage, and it was paid with the-proceeds realized on the sale of the Fremont property. ' The only interest that Charles Ensign ever had in the Fremont property was of an equitable nature to protect him as surety against the-liability assumed by -him when he signed his brother’s bond, and that -protection his estate has enjoyed. It is true that the declaration of trust provided that if-the trustee sold the property and realized more than was due upon the bond =the balance should be-paid to Charles Ensign. It also provided, in case of sale, if the bond had been paid the net proceeds should go to Charles; also, if the bond was paid before sale by Elisha or Charles the property should be conveyed to Charles. It suffices to say that neither of these contingencies happened, nor does the record disclose why these remote residuary interests were vested in Charles. It is apparent that Elisha’s arrangement with his divorced wife contemplated ■ that she should be satisfied with the provisions of the judgment, and that he was to have what remained of the Fremont property after its use as a primary fund under the surety trust. The residuary interest vested in Charles was evidently a private arrangement between the brothers, but there is nothing in the facts of this case to justify the appellant’s contention that Elisha in entering into a transaction to secure the performance of his obligations to his divorced wife, as required by the judgment, at the same time made an agreement with Charles which would secure to the latter the Fremont property free and clear. There is no phase of this case that directly or indirectly suggests such a result;, but, on the contrary, everything points to the use of the Fremont property as a primary fund. Charles Ensign never paid anything ' as surety, and his equitable rights in the property were extinguished when the trustee sold realizing no surplus. It is suggested by the appellant that the quit-claim deed of the Freemont property given by Holt, the executor and trustee of the estate of Charles Ensign, to Mrs. Hamilton and held by Mr. Rogers, or his partner in escrow, until the satisfaction of the New York mortgage was void for the reason that Holt had been removed as executor before the final delivery of the deed to Mrs. Hamilton. Charles Ensign had no legal title in the property, and his deed, or that of his trustee, was not required to convey the fee. It is not necessary to pass upon the validity of this deed. The legal title rested in Mr. Jarvis as trustee, and his deed to Mrs. Hamilton was authorized by the declaration of trust and vested the fee in her. The appellant makes, the further point that Mr. Rogers, having satisfied the New York mortgage while the deeds of Holt and Jarvis were still in escrow, and while he was acting as counsel for Mrs. Hamilton, the payment of the mortgage must be deemed as made at the request of Mrs. Hamilton as administratrix of Elisha Ensign’s estate, and thereupon the contingency arose which bound the trustee to convey the Fremont property to the plaintiff or account to her foi; the proceeds. The trial court found that, until Mr. Rogers received the proceeds of sale the mortgage in fact had not been paid although the satisfaction piece was recorded. The evidence sustains this finding and shows that the satisfaction of the mortgage, the cancellation and surrender of the bond, the vesting of the title in Mrs. Hamilton, the sale of the property and the payment of the proceeds to Mr. Rogers and his application of the same were all parts of one transaction. The trust seems to have been properly administered in an open and honorable manner by all concerned, and the provisions of the divorce judgment have been fully carried out.

The judgment dismissing the complaint on the merits should be affirmed, with costs. All concur.-


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    The People, Resp’t, v. Ashbel P. Fitch, as Comptroller, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 10, 1895.)

    Taxes—Insane poob.
    Chap. 565 of 1893, imposing a tax for support of the insane poor in the state hospitals, applies to property in the county of New York as well as in other parts of the state.
    Appeal from an order, directing a peremptory writ of mandamus to issue.

      Francis M. Scott and James M. Ward, for app’lt; Theodore F. Hancock, Atty. Gen. (John W. Hogan and 6r. 1). B. Hasbrouck, Dep. Atty. Gen., of counsel), for People.
   Putnam, J.

Section 1, ch. 565, Laws 1893, provides that:

“There shall be imposed for the fiscal year beginning on the first day of October, eighteen hundred and ninety-three, on each dollar of taxable real and personal property of this state, for the care, medical treatment, maintenance and transportation of the insane poor to state hospitals, the payment of officers’ salaries, the payment of employes’ wages and ordinary and incidental repairs in state hospitals, a tax of one-tliird of a mill, to be assessed, levied and collected by the annual assessment and collection of taxes for that year and paid by the several county treasurers into the treasury of this state to be held by the treasurer for application to the purpose herein specified.”

Under the'provisions of said statute the comptroller of the state called upon the city of New York to pay the sum of $608,279.87, —its share of the tax levied under the provisions of the act,— that sum being about forty-five per cent, of the whole amount to be raised. The authorities of the city declining to pay the tax in question, the attorney general obtained a writ of mandamus to be issued, to which the defendant having duly made a return, the issues thus raised were tried, and a verdict rendered in favor of plaintiff, by direction of the court, for $716,516.72,—the amount of the tax and interest. A peremptory mandamus was thereupon ordered to be issued. Defendant appeals to this court.

No question is raised by the learned counsel for appellant as to the power of the legislature, under the constitution, to impose the tax in question upon the taxable property in the city and county of New York. Nor does he object to the practice adopted by the attorney general, if in fact any tax is due and payable, under the act of 1893, from the city and county of New York. Nor does lie insist that the language of section 1, ch. 565, Laws 1893, if read alone, without reference to any other statute, would not imply a tax upon all the taxable property of the state, including that located in the said county of New York. But it is urged by the defendant that chapter 565, supra, is an amendment of chapter 214, Laws 1893, the title of the latter act being as follows :

“An act to appropriate money for the care, medical treatment, clothing, support, and transportation to state hospitals of the insane poor, under the provisions of chapter one hundred and twenty-six of the Laws of eighteen hundred and ninety.

Be therefore calls our attention to the principle established in Smith v. People, 47 N. Y. 330, 339, and kindred authorities,—■ that, in a case of doubt or of uncertainty as to the construction of a statute, acts “in pari materia, passed before or after, and whether repealed or unrepealed, may be referred to in order to ascertain the intent of the legislature in the use of particular terms,”—and urges that chapter 565, Laws 1893, should be read in connection with chapter 126, Laws 1890; that, as the last-named act does not apply to the city and county of New York, neither does the act of 1893, enacted to provide means to carry out the provisions of the act of 1890, although, by its terms, apparently providing for a tax upon all the taxable property of the state.

I am of the opinion that the position taken by the defendant cannot be sustained. The authorities upon which he relies are only applicable where there is a doubt or uncertainty as to the construction of a statute. They do not apply where the language used by the legislature is plain and unambiguous, and its meaning clear. The act of 1893 provided that:

“There shall be imposed for the fiscal year beginning the first day of October, eighteen hundred and ninety-three, on each dollar of taxable real and personal property of this state * * * a a tax of one-third of a mill * *

The defendant urges that the act in question should be construed as if, after the provision for the tax upon each dollar of taxable real and personal property of the state, it contained the words, “except such real and personal property as is situated in the city and county of New York.” We are not authorized to interpolate such a provision in the statute, for the reason above suggested,—that its language is plain, and it provides for a tax upon all the taxable property of the state, making no exception of property situated in the city and county of New York. If it had been the intention of the legislature to impose the tax in question upon a portion of the counties of the state, and to except another portion, containing nearly one-half of the taxable property of the state, we may properly assume that it would have so declared in the act. Hence the meaning of the words contained in the act cannot properly be changed or restricted by its title, or by reference to any other statute. In the language of McClusky v. Cromwell, 11 N. Y. 593, “it is not allowable to interpret what has no need of interpretation.” “When the language of a statute is apt, and the construction plain, the construction cannot be affected by the title. That can only be resorted to when the construction is doubtful or ambiguous.” In re Village of Middletown, 82 N. Y. 196. “Where the intent is plain, nothing is left to construction.” U. S. v. Fisher, 2 Cranch, 358, 385. So, also, it is said in Cooley, Const. Lim. p. 55.

“In the case of all written laws, it is the intent of the lawgiver that is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that language has been used with sufficient precision to convey it, and, unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain except to.enforce it. ‘Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction.’ ”

See also, People, ex rel. Bockes v. Wemple, 115 N. Y. 302, 307, 308; 26 St. Rep. 330, where the same doctrine is laid down in the opinion of GrRAY, J.

Under the well-established doctrine enunicated in the above and many' other authorities, I am unable to see how section 1, ch. 565, Laws 1893, can be construed in such a manner as to exempt the taxable property situated in the city and county of Mew York from taxation thereunder. As suggested, the language of the act is not obscure, and it plainly imposed a tax on all the property of the state, making no exception in favor of any portion thereof.

Defendant assumes that under chapter 126, Laws 1890, property situated in the city and county of Mew York was not taxable to raise funds to carry out its provisions, and he says:

“The title of the act of 1893 is ‘An act to appropriate money for the care, medical treatment, clothing, support and transportation of the insane poor, under the provisions of chapter 126, of the Laws of 1890.’ Thus, by its very title, the legislature tied together the act of 1890 and the act of 1893. The latter is but the supplement of the other. They cannot be read apart. They must be read together. ‘Under provisions of chapter 126 of the Laws of 1890,’ says the act of 1893. ‘The provisions of this act shall not apply to or include the counties of Mew York, Kings and Monroe,’ says the act of 1890.”

If the act of 1890 did exempt property in said counties from future taxation, as assumed by defendant, there would be much force in his position. But the act con ains no such exemption. It provides for a state board to take charge of the insane, insane asylums, and enlargement thereof; for a division of the state into asylum districts, sending patients from county to state asylums and their maintenance therein by the state. It further provides that the cost and expense of buildings and equipments; of the transportation of the insane to the state asylums; of the custody, care, maintenance, treatment, and clothing of such insane patients in said asylums,—and other expenses, shall be paid by the treasurer of the state, on the warrant of the comptroller, out of any moneys appropriaced to carry out the provisions of the act. After the provisions for districting the state, enlargements of the hospitals, removal of the indigent insane thereto, the annual report to the comptroller by the state commissioners of lunacy and managers of state asylums of the probable cost and expense of carrying out the provisions of the act, and the enactment that the state shall bear the expense, section 13 provides that:

“The foregoing provisions of this act shall not apply to or include the counties of Mew York, Kings or Monroe, nor embrace the state asylum for insane criminals at Auburn, nor the state asylum for insane criminals at Matteawan, nor the state asylum for insane criminals on Ward’s Island, in New York city, on any of them, except as provided in the succeeding section of this act, nor shall it be constrned to affect those provisions of existing statues by which the three counties aforesaid are now permitted to send their acute and chronic insane to the state asylums.”

The sections of the act preceding section 13, supra, make no provision as to how the state shall thereafter raise the money necessary for the maintenance of the insane. The act is silent in that regard. It provides that the pauper and indigent insane of the state, except those in the three counties of New York, Kings and Monroe, shall be wards of, and supported by, the state. But it was left to future legislation to provide money to pay the expenses that should be incurred by the state for the maintenance of the pauper and indigent insane. I do not think that the language of the act justifies the assumption of defendant that its provisions indicate an intention on the part of the legislature that, in raising funds for the care of the pauper and indigent insane, the taxable real and personal property situated in the city and county of New York should be exempt from future taxation. The legislature did not intend, by section 13, supra, to affect the provisions of the act making indigent insane of the other counties wards of the state,—of the whole state,—under the care and charge of the state, and to be maintained by it. The members of the legislature from the counties of New York, Kings, and Monroe, have the same right to act, to vote, on any measure relating to the care and maintenance ■of the indigent insane, as legislators from other parts of the state. The pauper and indigent insane to be provided for under the statute, as wards of the state, are as much wards of that portion thereof included in the said Counties as of the other parts thereof. How money should be raised to support these wards of the state was left open for future action by the legislature. It may be that it was unjust to compel the city and county of New York, while taking the whole charge and care of its own insane, to also pay a tax to help support the insane of the other counties -of the state. But the statue under consideration is plain and unambiguous, and it is not claimed to be unconstitutional. Our business is to construe it, not to pass upon the justice or injustice or wisdom of its provisions. We are not authorized to change the plain language of the statute in order to make it conform to our ideas of justice and equity. If we possessed legislative power, we might enact a different act than the one we are called upon to construe. We might deem that the county of New' York, having the right, under section 13 of the act of 1890, to use the state asylums for its acute and chronic insane, should properly and equitably pay some part of the expenses of keeping up the state insane asylums, but not a tax equal in amount to that imposed on the other counties of the states. But, as we have seen, we are only called upon to interpret the act, and it makes no provisions for exempting the city and county of New York from the payment of a tax equal to that imposed on the other counties of the state.

This view, leads to an affirmance of the order and judgment, except that part thereof charging the defendant with interest I think the position taken by appellant in regard to interest is correct. He should only have been charged with interest on the balance remaining unpaid at the expiration of thirty days from the 1st of May. Laws 1855, chap. 427.

The judgment should be corrected in this regard, and, as modified, affirmed, without costs to either party.

Herrick, J., concurs; Mayham, P. J., not acting.


author: Beekman, J.

text:
    James Ridgway, as Receiver, etc., Pl’ff, v. Samuel Symons, as Receiver, etc., Def't.

      (Supreme Court, New York Special Term,

      Filed September 10, 1895.)

    Costs—Security for—Receiver.
    A receiver will be required to give security for costs in an action brought by him, only where it appears, not only that he is without funds applicable to the payment of costs, but also that the action has been brought in bad faith, or heedlessly, or without reasonable prospect of success.
    Motion to vacate an order requiring plaintiff to give security for costs.

      Gilbert B. Hawes, for pl’ff; Goldfogle & Cohen, for def’t.
   Beekman, J.

This is a motion to vacate an order requiring the plaintiff to give security for costs. The order was made ex parte. The granting of such an order against a receiver rests in the discretion of the court, and the power will be exercised, under well-settled principles, only where it appears, not only that the receiver is without funds applicable to the payment of costs, but also that the action has been brought in bad faith, or heedlessly, or without reasonable prospect of success. Bennett v. Goble, 43 Hun, 354; 6 St. Rep. 862; Rutherford v. Town of Madrid, 77 Hun, 545; 60 St. Rep. 391; Hale v. Mason, 86 Hun, 499; 67 St. Rep. 535. The plaintiff has brought this action by permission of the court. The charge that he has done so to harass and annoy the defendant is hardly sufficient upon which to base a finding of bad faith, in the absence of satisfactory evidence to that effect. Nor am I prepared to bold, upon the papers submitted to me, that the plaintiff has no reasonable prospect of success in the action. In view of the above considerations, the order should not have been granted.

But there is another objection which affects its validity. The application was necessarily made under section 3271 of the Code of Civil Procedure. An order under that section must be made bv the court. It cannot be made by a judge. Code Civ. Proc. § 3272. The order in question was not a court order, and was,, therefore, invalid.

Motion granted, with costs to abide the event.


text:
    Ellen J. Orr, Pl’ff, v. Mary W. Currie, Def't.

      (Supreme Court, New York Special Term,

      Filed September 5, 1895.)

    1. Summons—Service—Publication—Recital in order.
    Where the affidavit for the service of a summons by publication is entirely barren in its statement of facts, so that it becomes a matter of pure speculation as to the grounds upon which the applicant bases his claim to-the order, the recital or finding of the judge cannot be accepted as a sufficient support for his order.
    2. Same.
    Such orders should be sustained if the papers, upon which they are founded, contain any evidence from which it may fairly be inferred that the case is one within the statute.
    3. Same—Affidavit—Insufficient.
    An affidavit for such order, which does not state that the plaintiff cannot make the service within the state “after due diligence,” is insufficient-,.
    Motion to set aside an order, granting leave to serve a summons by publication.

      Glarence D. GruiJcshank, for pl’ff; John J. Adams, for def’t.
   Beekman, J.

This is a motion to set aside an order of publication- of the summons, on the ground of the insufficiency of the affidavit. The affidavit reads as follows:

“ That heretofore, and on the 24th day of June, 1895, an attachment was issued against the defendant, as a non-resident of the state of Mew York, upon an action for breach of contract, other than a contract to marry, as is more particularly stated in the verified complaint hereto annexed; that defendant resides at 440 Maple avenue, Elizabeth, Mew Jersey, is of full age, and that plaintiff will be unable to make personal service of a summons upon said defendant; that the sources of my information and the gisounds of my belief are correspondence had with defendant from her said residence in Mew Jersey, and -from conversations had with the son and representative of the defendant: that the summons was duly issued herein, but, bjr reason of the non-residence of the defendant, as aforesaid, has not been served; that no previous application for an order of publication has been made herein.”

It is contended on behalf of the defendant that the affidavit was absolutely barren of any proof from which the learned justice who granted the order could conclude that the plaintiff would be unable, with due diligence, to make personal service of the.summons upon the defendant, as the order recites. The rule undoubtedly is that such a recital in the order is a judicial finding, and is, therefore, to be supported if there is any evidence, evert though it be slight, from which an inference might fairly be drawn that due diligence, or, as it has been phrased, “ordinary and suitable diligence,” considering the facts and circumstances peculiar to the case, has been employed. But where the affidavit is entirely barren in its statements of facts, so that it becomes a matter of pure speculation as to the grounds upon which the applicant bases his claim to the order, the recital or finding of the judge cannot be accepted as a sufficient support for his order. The proceeding is a jurisdictional one, through which the property rights of those beyond the jurisdiction of the court are to be affected, and the statutory basis for the order must appear upon the record, to give it vitality.

The courts have gone very far in their efforts to support such -orders, and the rule seems to be that they should be sustained if the papers upon which' they are founded contain any evidence from which it may fairly be inferred that the case is one within the statute. The rule is a reasonable one; at least, it is one which I have attempted to follow in my efforts to uphold the order in question. I have, however, been forced to the conclusion that the affidavit in this case does not respond to the test of even this mild principle, and that the order resting upon it is, therefore, fatally defective. It will be observed that the only fact relevant to the point of the objection which it states is “that defendant resides at -440 Maple avenue, Elizabeth, New Jersey, is of full age, and that plaintiff will be unable to make personal service of a summons upon said defendant.” It will be noticed that the affiant does not •state that he will be unable to make the service “after due diligence," in the words of the statute. Had he done so, this case would have come nearer to that óf Kennedy v. Trust Co., 101 N. Y. 487, in which the court says (page 489, 101 N. Y.):

“The statement as to due diligence is not absolutely an allegation of a conclusion of law, or an opinion, but, in connection with what follows, a statement of facts which tend to establish that due •diligence has been used.”

In that case, as the opinion shows, the affidavit stated that the ■defendants “cannot, after due diligencé, be found within this state,” they being residents of. other states, as therein named, and “that the summons herein was duly issued for said defendants, but cannot be personally served upon them by reason of such nonresidence.” The comment of the court upon this Is as follows :

“Here is a clear statement that the defendants are nonresidents of the state, and reside in other and distant states, and that the summons which has been issued cannot be served by reason-thereof. * * * The allegation as to nonresidence is preceded by the statement that the defendants cannot, after due diligence, be found within this state, which, taken in connection with the subsequent averment as to nonresidence, may be considered, we think, as a statement either that an attempt has been made to find the defendants, or, at least, that they are so remotely located out ■of the state, and have such a fixed residence there, that it would be impossible, after due diligence, to find them within the state, for the purpose of serving the summons on them.”

An examination, however, of the affidavit under consideration, will immediately disclose the fact that it falls far short of the facts upon which the reasoning in the above quoted case rests. There is no averment of “due diligence.” The statement is “that the plaintiff will be unable to make personal service of a summons •upon said defendant." The gravity of this omission is demonstrated in the case of McCracken v. Flanagan, 127 N. Y. 493; 40 St. Rep. 180, where the court says (page 496, 127 N. Y., and 40 St. Rep. 180) that, if due diligence was to be inferred from the statement that the defendant cannot be found within the state, “the legislature would doubtless have been satisfied to h-ave the affidavit state that the defendant cannot be found within the state, and not have superadded thereto the phrase ‘after due diligence.’ ” Furthermore, the inferences which were considered allowance in the case of Kennedy v. Trust Co., supra, from the fact that the residence of the party proceeded against was in a distant state, find no place in the case under consideration, where the defendant is alleged to reside in a border state, at a place close to the boundary, and where hundreds reside who daily transact their business within the city of New York. Carleton v. Carleton, 85 N. Y. 313.

I have examined the other cases to which I have been referred by the counsel for the plaintiff, and in each of them the affidavit expressly states, not only that the defendants reside in some other state, but also .that they are actually there at the time. Lockwood v. Brantly, 31 Hun, 155; Chase v. Lawson, 36 id. 221; Jerome v. Flagg, 48 id. 331; 15 St. Rep. 827. Nor is the plaintiff helped by the allegation, in the affidavit under consideration, “that the sources of his information and the grounds of his belief are correspondence had with the defendant from her said residence in New Jersey, and from conversations had with the son and representative of the defendant.” What was written and what was said do not appear, and the court is without the slightest information of the facts themselves, upon which to determine whether service •could or could not be had with the exercise of due diligence. The whole clause has the effect, and only the effect, of making the previous averment of the affidavit on information and belief.

As was said by Mr. Justice Van Bkunt in the case of Ladenburg v. Bank, 87 Hun, 269; 67 St. Rep. 466; (at page 275, 87 Hun, and 67 St. Rep. 470:

“Where a party alleges upon information and belief, and states that the sources of his information are certain writings, the court is entitled to know what the writings are, in order to see whether the affiant is justified in his belief or not.”

The court must be satisfied upon the facts, and not because the plaintiff is satisfied by reason of facts which he does not disclose.

Upon a careful consideration of the whole affidavit in this case, I find myself unable, upon the authorities, to reach any other conclusion than that it is radically deficient. Had it contained a statement of facts which would sustain the conclusion that the defendant could not, after due diligence, be served within the state, or, possibly, if upon the meager statement presented, the averment had been that the plaintiff would not be able so to serve the defendant, after due diligence, the order would have been sustainable; but. in the absence of either of these conditions, the affidavit, even under the most favorable of the decisions which may be regarded as authorities, fails to support the order. It follows that the order must be vacated. Motion granted, with $10 costs.


author: Stover, J.

text:
    William Hyde Simonson, as Trustee, etc., Pl’ff, v. George A. Waller et al., Def'ts.

      (Supreme Court, New York Special Term,

      Filed September, 1895.)

    1. Will—Construction.
    The rule that words of survivorship and gifts over on the death of the primary beneficiaiy are to be construed as referring to the survivorship at the death of the testator, unless a contrary intent appears, is not applicable where it is evident from the will itself that the testator divested his heirs and next of kin of all estate or rights which, but for the will, they might ‘ have had.
    3. Same—"Vesting.
    Where one class of beneficiaries is to take the entire estate upon the happening of one contingency, and upon the happening of another contingency the estate goes to another class, there is not sufficient certainty to create a vested estate, either present or contingent, in such beneficiaries, in the subject of the testamentary disposition.
    3. Decedent’s estate—Distribution.
    Th"e rule limiting the distribution of estates of personalty to the children of brothers and sisters of decedent, has no application, where the decedent was a resident of another country and his property situated there; in such case, the estate will be distributed by our courts according to the laws of the decedent’s domicle, so long as such law is not contrary to the public policy of this state.
    Action by William Hyde Simonson, as trustee, against George A-Waller, and others to obtain a construction of the will of James Shaw Taylor, deceased.

      Sidney H. Stewart, for pl’ff; Theodore N- Melvin, for def’ts Waller ; Blach & King, for def’ts Lord ; Butler, Stillman & Hubbardt for def’t Atkinson.
   Stover, J.

James Shaw Taylor died June 9, 1862, being at the time a resident of and domiciled in the kingdom of Great Britain. He left a last will and testament, dated November 5, 1861, which was duly proven in the court of probate in England, and the same is filed and recorded in the surrogate’s office in the city and county of New York. The original trustees—some of them at least—never qualified, and the plaintiff was duly appointed trustee under said will. The said James Shaw Taylor left, him surviving, Amelia Hannah Taylor, mentioned in said will, at the time of his death an infant and unmarried, and no-other child or children or descendants of such. Three sisters of the testator, Lavina Waller, Sarah Taylor, and Mary Lord, also-survived the testator. By the will, provision was made for an annuity of ¿61,200 to his wife during her life, and for an annuity of ¿6100 to his mother-in-law during her life. A specific legacy of ¿62,000 was given to his daughter, Amelia Hannah, if and when she should attain the age of twenty-one years, or previously marry. He also gave to his trustees two several legacies of £2,000 —one to be held in trust and the income to be ' paid to his sister Sarah ;• the other to be held in trust, and the income to be paid to bis sister Lavina Waller, during her life. There were other specific legacies which are not necessary to be noticed in the discussion of this case. His trustees were directed to sell, convey, and turn into money all his estate; and he further directed that, the residue and the interest and income of his estate be invested, in trust, for all my children, or any child, who, being sons or a son, shall attain the age of twenty-one years, or a daughter, shall attain that age or marry.” The portion of his daughter Amelia Hannah, who, as he declared, was his then only child, was to be held in trust, the trustees to pay the income to her during her life, and after her death to hold the same, and the income thereof, in trust for all of her children living at her decease, and for the issue then living of any other child or children who shall then be dead; all such children, objects of this present trust, to take in equal shares, as tenants in common,” etc. And, further:

“ But if there shall be no child of mine living at my decease, who, being a son, shall attain the, age of twenty-one years, or beingia daughter, shall attain that age, or marry, then from and after my decease, and such default or failure of my issue as lastly aforesaid, the trustee or trustees for the time being of this, my will, shall hold all the said trust moneys, and the investments for the time being representing the same, and the interest and annual income thereof, or so much thereof respectively as shall not have been applied or become vested, under any of the directions,.trusts, or provisions of this my last will, upon and for such and the same trusts and purposes, and with and subject to such and the same powers and provisions, in all respects as hereinbefore declared and contained of, and concerning the legacy of 2,000 pounds hereinbefore bequeathed upon trust for the benefit of my said sister Lavina Waller, and such her children or child as aforesaid,” etc.

The provision as to the bequest to Lavina Waller is as above stated,- viz. “ from and after the decease of said Lavina Waller, the trustees are to hold the same legacy and investments for the time being, representing the same, and the interest and income thereof, in trust for all the children or any child of my said sister, who, being sons or son, shall attain the age of twenty-one years, or being daughters or daughter, shall attain that age or marry, and, if more than one, in equal shares.”

Lavina Waller a sister of the testator, died in August, 1885, leaving, her surviving, certain of the defendants herein, her only children, all of whom are over the age of twenty-one years, and residents of and domiciled in the city of New Yoik, and no descendants of a deceased child. Amelia Hannah Taylor, the daughter and only child of the said testator, attained the age of twenty-one years, and on October 22, 1868, was married to the defendant Joseph Beauman Atkinson. There was never any issue of the said Amelia Hannah Taylor, who died on February 11, 1882, leaving, her surviving, her husband, the said Atkinson. ’ Sarah Taylor, a sister of the testator, died before the commencement of this action, without any issue. Mary Lord, a sister of said James Shaw Taylor, died before the commencement of this action, leaving, her surviving, certain children, defendants herein, and grandchildren, also defendants in this action. Amelia Hannah Taylor Atkinson left a last will and testament, whereby she gave all of her estate and property to her husband, and constituted him sole executor of her will.

It is claimed on behalf of the defendant Atkinson, the husband of Amelia Hannah Taylor, that, by the death of his wife after attaining the age of twenty-one years, the whole residuary estate passed to Amelia Hannah, her heirs, executors, etc., with full power of disposal, and that, by the law of marriage and under the will, all of the estate became vested in him. On behalf of the Waller heirs it is claimed that Amelia Hannah Taylor took but a life estate, and that it was the intention of the testator that the residuary estate should go, upon failure of issue in Amelia Hannah, to the children of Lavina Waller, under the provisions of the will. The descendants of Mary Lord claim that the interest of Amelia Hannah Taylor was that of a life tenant, and that there was an intestacy, upon the death of Amelia Hannah, as to that portion of the estate which was held in trust for her and her children. There is no dispute as to the facts, and the testimony taken upon the trial was purely formal. The will itself is quite minute in its disposition of the estate, the provisions being drawn with great particularity, and technical language used, explicity covering each contingency provided for by the will. There is no express provision in case of the death of Amelia Hannah after attaining the age of twenty one' years, or marrying, but it will be noticed that the language of the testator is:

“ If there shall be no child of mine living at my decease, who, being a son, shall attain the age of twenty-one years, or, being a daughter, shall attain that age, or marry, then from and after my decease, and such default or failure of my issue, as lastly aforesaid, the trustee or trustees for the time being of this my will, shall hold all the said trust moneys, * * * upon the same trusts and purposes, and with and subject to such and the same powers and provisions, in all respect as hereinbefore declared and contained of, and concerning the legacy of 2,000 pounds herein-before bequeathed upon trust for the benefit of my said sister Lavina Waller.”

Amelia Hannah was living at the decease of the testator. She attained the age of twenty-one years, and married. So that the contingency upon which the trust in favor of the children of Lavina Waller was established never occurred. But it is contended, on behalf of the heirs of Lavina Waller, that intestacy as to this is to be prevented, and that the intention of the testator was that, upon failure of issue in Amelia Hannah, his estate should go to the children of Lavina Waller. I do not think that this contention can be upheld. The testator has explicitly limited the interest of Amelia Hannah to a life estate, by express words placing it beyond her power to affect the, same in anticipation, and by carefully worded provisions limited her interest to the use and enjoyment of the income during her life. The testator may have anticipated that other children would be born after the making of the will, and would survive him. He may have intended, in that event, and the failure of issue in Amelia Hannah, that they should be the beneficiaries of his estate. That he intended that the issue and descendants of Amelia Hannah should enjoy the estate after his death is clear, and is clearly expressed within the instrument. If any other disposition was intended, it is fair and reasonable to assume that the testator would as carefully have provided for that contingency. He has anticipated that Amelia Hannah might marry, and while carefully preventing her use of the principal of the estate, limiting her entirely to the enjoyment of the income of it, he has failed to provide for any investiture of his estate, or any portion of it, in the husband who might survive Amelia Hannah. He has anticipated that Lavina Waller might survive him, and that the trust made for her benefit might be determined in the lifetime of Amelia Hannah, and, as to that particular legacy, he has provided that, after the decease of Lavina Waller, the legacy should be held for the benefit of her children. But, with all of the particularity a.nd attention of detail, he has not provided for the contingency which has actually happened, viz., the decease of Amelia Hannah without issue, after attaining the age of twenty-one years and marrying. What disposition the testator might have intended to make is not known. It is not important to discuss what he might have done under the circumstances. His intention is to be gathered from the instrument itself. He has not provided for a contingency which has actually happened. Whether it was pointed out to him that there would be an intestacy upon the happening of the contingency which has actually occured does not appear, but, as has been stated in another case, if his attention had been called to his failure to provide for such contingency, he might have made such provision as he desired; but, having made no provision, it must be presumed that he intended to leave that contingency to be dealt with when it might arise.

It appearing, then, that there is an intestacy as to this portion of the trust estate, who is entitled to succeed to it ? Amelia Han-, nah, at the decease of the testator, was his only heir and next of kin entitled to succeed to his estate. Were the provisions of the will such as to vest in her the entire estate, and then limit it in certain contingencies, it might be said that the investiture took place upon the decease of the testator, and that, while the enjoyment of the estate was postponed, yet the investing took place, and the rights of the parties became fixed, at the death of the testator. This, under a well-known rule of interpretation, that words of survivorship and gifts over on the death of the primary beneficiary are to be construed as referring to the survivorship at the death of the testator, unless a contrary intent appears. But I do not think the will under consideration is suspectible of such construction, for the reason that it is evident from the will itself that the testator divested his heirs and next of kin of all estate or rights which, but for the will, they might have had. The estate is conveyed to trustees. There is an express limitation upon the power of any of the beneficiaries, each of whom might be, under certain contingencies, his surviving next of kin, and the remaining estate left to be disposed of by his trustees. So that there is no such joinder of the legal and equitable estate as could be said to work an investiture, nor was there such right, to the use and enjoyment of it as, coupled with a power of disposition, could be said to have conferred a vested right to the residuary estate. So that Amelia Hannah took no title whatever to the estate, nor could there be any possible investiture in her during her life; but the entire estate was given to the trustees, and the trust was to continue during the life of Amelia Hannah, and no title or interest in the principal of the estate at any time vested or could vest in her. It is clear that the testator intended that his daughter should have no share of the principal of the estate, and, necessarily, that she should not have the power of disposition, but that her entirednterest therein was limited to the right to receive from the trustees the income during her life. It seems to me to be illogical to construe this instrument so that, •despite the inattention of the testator as above expressed, the ■daughter should have the right to dispose of the estate by will; for, if such had been the intention of the testator, who had provided with so great particularity for contingincies, he would, undoubtedly, have inserted a power of appointment. Howland v. Clendenin, 134 N. Y. 305; 47 St. Rep. 751, and cases cited. And I apprehend the rule to be correctly stated in this form: That where the instrument creates an estate in the beneficiary, but thereafter limits it, or qualifies it as to the mode of enjoyment, in case of a particular contingency, upon the failure of the contingency, the gift becomes absolute. And the reason is clear. But where there is an entire failure to vest an estate, as in this case, where the entire estate is vested in another direction, one class talcing upon the happening of one contingency, and upon the happening of another contingency the estate going to another class, it would seem that there is not sufficient certainty to create a vested estate, either present or contingent, in the estate of such beneficiaries, in the subject of the testamentary disposition.

Amelia Hannah, then, having no interest, dying without issue, the estate, under the ruling in Savage v. Burnham, 17 N. Y. 562, should go to the next of kin of the testator, surviving at the time. As we have seen, the entire legal estate was in the trustees until a lapse occurred. As was held in the case of Savage v. Burnham:

The equitable interests were all in abeyance until they should become vested according to the will, or until they should lapse and go in a course of descent or distribution. The devolution, therefore, of the share of Thomas, upon the next of kin of the testator, must be deemed to have taken place at the time the share 'lapsed, and not at the testator’s death. This avoids the incongruity, which has been suggested, of Thomas taking, as one of the testator’s next of kin, a portion of a share lapsed by his own death.”

Thomas, in the case of Savage v. Burnham, was the son of the testator, whose share became payable to him on his attaining the age of twenty-one years. He died before attaining this age, intestate, unmarried, and without issue. It was held that his share never vested, and lapsed into the residuary estate.

The language of the testator in disposing of the remainder of his estate is such that he says, substantially, “ It is my intention that my daughter, Amelia Hannah, shall only have the right to receive from the trustees the use and income thereof so long as she lives ; and I do not intend that she shall, in any event, share in my estate to an extent beyond such right, and, unless she has issue surviving her, I do not intend that she or her heirs shall any longer have the estate.” He has, therefore, directed that, “ from and after her decease the trustees shall hold the same portion, and the interest and income thereof, in trust for all her children living at her decease, and for the issue then living of any other child or children who shall then be dead, all such children and issue of objects of this present trust, as tenants in common;” thereby excluding, in any event, his daughter, Amelia Hannah. But as to the other contingent beneficiaries under his will, no such limitation is expressed,- and had any other child, son or daughter, survived him, the express limitation upon the disposition of his or her share of the estate would not apply. So that it must be said that it was the intention of the testator that Amelia Hannah should, in no event, share in his estate beyond the right to receive the income of the trust estate-; and, under the ruling which would give effect to the intention of the testator, I can see no reason why the intention to exclude should not be given as full effect in disposing of the property of the testator as any other contained in the will. And if a portion of his estate is not disposed of, and as to such portion he has become intestate, it must be said that it must be distributed to the next ■of kin, his daughter being excluded; the vesting of the residuary estate being postponed, as in Savage v. Burnham, until the time of the lapse of this share, and not taking effect at the testator’s death.

But the argument is presented, and urged with a great deal of force, that Amelia Hannah, being the sole and only next of kin of the testator, takes her estate as such, and that it is only subject to be defeated by the contingencies which are provided for by the will. But I think this contention is not consistent, nor can it be made to harmonize, with the other provisions of the will. It is certainly incongruous to say that Amelia Hannah in her lifetime, in the enjoyment of the estate under a will which contains a manifest intention to limit her interest to a life interest, and holding under such instrument during her entire lifetime, never having been actually vested with any other or further estate than that, has, by her death, so enlarged her estate that she may dispose of it by will, and may do what was the manifest intention of the testator to prevent, viz., carry it entirely out of the family of the testator, and exclude his collateral relations from enjoyment of it, or that the event which terminated her interest has created in her a greater estate than she had during her lifetime.

It seems to me that the testator had the right to say that, in any event whatsoever, the estate of Amelia Hannah was to be such as he had limited it to under the will, and that this court ought not to undertake to defeat the manifest intention of the testator, and carry his property where he evidently never intended it should go.

The case of Mayer v. Townsend, 3 Beav. 443, where a somewhat similar question was sought to be presented, cannot be considered an authority against the views above expressed, for the court said: “I apprehend there would be a great deal to say on that point, but it does not arise.” In that case there was an absolute gift, with a limitation afterwards put upon it, and, as has been frequently held in those cases, the nonhappening of the contingency would permit the first absolute gift to stand. But as we have seen before, this is not such a case. This is a case of the granting of an estate to the trustees, with the right in the beneficiary to receive the benefits of the trust only, and the vesting was neither necessary to her enjoyment nor was it given to her, but, upon the contrary, as we have seen, the vesting in her was carefully prevented.

The interest of Amelia Hannah is terminated by her death, and .upon that event, whatever interest she may have had in the estate wholly ceased.

Giving the construction above stated, the remainder was contingent, and, the class and persons who would take being uncertain, the period of distribution would be postponed until the happening of any event which might terminate the trust; and, as it has actually occurred, such event is the death of Amelia Hannah without issue, she being the sole surviving child of the testator.

It is urged that certain children of Mrs. Smith, who was a niece of the testator, are not entitled to share in his estate, under the rule which limits the distribution of estates of personalty to the brothers’ and sisters’ children; but it will be borne in mind that the estate is to be distributed under the law of the domicle. The testator being a resident of Great Britain, and his property being situated there, his property will be distributed in accordance with the laws of distribution of that country, so long as such law is not contrary to the public policy of this state. The prohibition applies to domestic wills, which are, by their terms, to be executed here. Dammert v. Osborn, 140 N. Y. 30; 55 St. Rep. 586.

From the views above expressed, it would follow that the entire legal estate was vested in trustees under the will; that Amelia Hannah took no vested interest or estate beyond the right to receive from the trustee the income of the residuary estate during . her life; that the estate of the testator is to be distributed among those persons who are the testator’s heirs and next of kin, upon the death of Amelia Hannah, and that the estate is held by the trustees for the benefit of such next of kin of the testator as were surviving at the death of Amelia Hannah; that the provision of the statue of New York excluding collateral- relatives beyond brothers’ and sisters’ children does not apply to the collateral relatives of the testator.


author: Giegerich, J.

text:
    Frederick or Fritz Berthold, Pl’ff, v. Moses K. Wallach, Def’t.

      (New York Common Pleas, Special Term,

      Filed September 4, 1895.)

    Ho lid ays—Motion.
    A motion, returnable at chambers on a holiday, stands over, in the absence of a judge, till the next day.
    Motion to compel the claimant under a mechanic’s lien to commence an action, or, in default thereof, that the lien be vacated and cancelled of record.

      Dittenhoefer, Q-erber & James, for motion.
   Giegerich, J.

The notice of motion was made returnable at chambers upon the 2d day of September, 1895, which was a legal holiday, being the first Monday of September, known as “ Labor Day.” Laws 1892, chap. 677, § 24. With regard to the transaction of business “ in public offices ” such a day is assimilated in nature to Sunday (Id. chap. 681, § 41); but while the courts cannot sit for the purpose of hearing motions upon Sunday (Code Civ. Proc. § 6), and a notice returnable upon that day is void, (Insurance Co. v. Hicks, 7 Abb. Prac. 204), yet it has been held that statutes similar to that above cited, as to public offices,” do not have bearing upon the courts. People ex rel. Vil. of Fulton v. Supervisors of Oswego, 50 Hun, 105; 19 St. Rep. 24; People v. Kearney, 47 Hun, 129; 13 St. Rep; 246; reversed upon another point, 110 N. Y. 188; 17 St. Rep. 165. While it is the custom of the court to adjourn upon the days enumerated in the act of 1892 as holidays (chap. 677, § 24), yet the legal effect of a public holiday is a matter resting entirely upon the statute; and I am constrained to hold that the first Monday of September is not a dies non with regard to the return of process, and that, in the absence of a judge at chambers, a motion, such as that before me, stands over, as of course, until the next day. Mathis v. Vail, 10 How. Prac. 458.

Motion granted.


author: Gaynor, J.

text:
    General Synod of Reformed Church, Pl’ff, v. Florinda O’Brien et al., Def’ts.

      (Supreme Court, Kings Special Term,

      Filed August, 1895.)

    1. Estoppel—Deed.
    Where a widow, in violation of her duty as guardian in socage of her children, permits to be sold under a mortgage and purchases in her own name, the land held by her as such guardian, and in which she has a, dower interest, and then mortgages the land and afterwards conveys it by warranty deed to one of her sons, “subject to all mortgages and liens now on said premises,” the son, by accepting such deed, is not estopped from denying that the mortgage executed by his mother is a lien on his share of the premises, which he held in common.
    2. Guardian and ward—Trustee.
    A mother who, through neglect of her duties as guardian in socage of her children to apply the rents of mortgaged premises on the mortgage, or, otherwise, suffers a foreclosure to occur, cannot get title against her wards through the sale caused by such breach of trust.

      Action by the General Synod of the Reformed church against Florinda O’Brien and others to foreclose a mortgage. The land was sold under a judgment of foreclosure, and the purchaser moves for an order putting him in possession.

      A. P. Bates, for motion ; H. F: Koepke, opposed.
   Gaynor, J.

Upon the father’s death intestate, the title to the land became vested in his nine children, as tenants in common, subject to the mortgage and to the widow’s dower. One of the children was by a former marriage. The widow took possession of the property, and thereby became charged with the relation of guardian in socage to her said eight children, who were all infants. One of her said children afterwards dying, she became vested with a life estate in such child’s share. The widow’s duty as guardian in socage was to apply the rents to the interest upon the mortgage, and, even beyond that, to prevent the foreclosure of the mortgage. 2 Rev. St. p. 153, § 20. It should be presumed on this motion that she failed in this duty, for the mortgage was foreclosed, and the fact cannot be appropriately litigated herein. At the sale she became the purchaser, individually. It is true she had an undivided interest to protect, but it seems that did not make her free to purchase for herself. Knolls v. Barnhardt, 71 N. Y. 474; Scholle v. Scholle, 101 id. 167. Where a trust relation is inconsistent with an individual interest of the trustee, the former is deemed paramount. A trustee can have no duty to himself inconsistent with his trust duty. Here wards have the right to elect to take the benefit of the purchase. But, leaving that question for future decision in any action brought to adjust the rights between the parties, it remains that if the widow, through neglect of her duties as guardian in socage to apply the rents on the mortgage or otherwise, suffered the foreclosure to occur, she could not get title against her wards through the sale caused by such breach of trust. Carpenter v. Carpenter, 131 N. Y. 101; 42 St. Rep. 718.

The present foreclosure action was of a mortgage given by the widow after she took title, as aforesaid, under the former forecloure. The said child by the former wife had become of age before that foreclosure, and as no trust relation then existed between her and the widow, the widow acquired her interest thereby. It follows that the widow’s mortgage covered her dower interest, her life estate in the share of her deceased child, and the share of the said child by the former wife. Some time after making such mortgage, the widow made what purported tobe a warranty deed of conveyance of the entire property to her son Keran, the same being in so many words, “subject to all mortgages and liens now on said premises;” and for that reason he was made a party defendant to this action. It is claimed that his acceptance of such conveyance made the said mortgage a lien upon his share or paramount to his title thereto. This seems not so. His mother had a right to execute the mortgage, but it could cover only her interest ; and his acceptance of the said conveyance could not enlarge the interest of the mortgagee. There is no foundation for an estoppel against him in favor of the mortgagee. There is no privity between them, and his acceptance of the deed in no way induced or affected the mortgagee. Hor was his acceptance of the conveyance an unequivocal ratification of the act of his mother in purchasing individually. On the contrary, such acceptance is consistent with an intention on his part to claim that she purchased in part as his trustee, and that the mortgagee got no lien except upon her individual interest. He purchased subject to her mortgage on the premises, whatever the lien of it was. He did not thereby extend the lien. Wor can the mortgagee be treated on this motion as having acted in good faith and without notice. The record of the first foreclosure showed the interests and probable relation of the widow and children, and that was enough to put any one dealing with the title upon notice. Kirsch v. Tozier, 143 N. Y. 390; 62 St. Rep. 439.

The said son having an apparent interest in the premises which is prior to the mortgage, and being in possession thereunder, the motion for an order putting the purchaser into that possession must be denied ; but as the purchaser is at least a tenant in common, with right to the possession, of two undivided ninths, the motion is granted to that extent; the order to be entered not res adjudicata in respect to the rights or interests of either party in an action that may be brought.

Ordered accordingly.


author: Bischoff, J.

text:
    George Maitland et al., Pl’ffs, v. Henry P. Drew et al., Deft’s.

      (New York Common Pleas, General Term,

      Filed September, 1895.)

    1. Patents—Royalties.
    In an action to recover royalties under a patent, a defense that plaintiff represented that the patent was valid, whereas it was void, and thereafter, by a judgment of the United States circuit court of appeals, it was de-' Glared that said patent was invalid, without alleging that defendant gave notice that he repudiated the contract, is insufficient.
    2. Same.
    A licensee of a patent, under a royalty contract, cannot proceed with the manufacture and sale of the patented articles and afterwards resist a claim-for the royalties upon the ground that the patent was invalid, unless he had given notice of his intention to repudiate the contract, or the patent had been judicially declared void prior to accrual of such royalties.
    3. Pleadings—Answer—Defense.
    A defense, which refers to no other allegation of the answer for its support, must stand or fall as pleaded.
    Action by George Maitland and others against Henry P. Drew and others to recover royalties under a patent. Plaintiff’s demur to the separate defenses of counterclaims.

      A. Walker Otis, for pl’ffs; Charles Myers, for def’ts.
   Bischoff, J.

To an action for royalties alleged to have become due under the license of certain patent rights to the defendants, the latter, by answer, after certain admissions and denials, interposed two separate defenses and a counterclaim, and to these the plaintiffs demur. The contract between the parties was entered into on or about November 1, 1891, and the royalties in suit are based upon sales of the patented articles by the licensees for a period from October 1, 1893, to January 1, 1895, amounting to $450 for such period.

The first separate defense proceeds upon the allegations that the contract of license was induced through the representation that the patents, under which the royalties in suit accrued, were valid, whereas such patents were void, “and thereafter, by a judgment by the United States circuit court of appeals, it was declared that the said letters patent * * * were invalid,” etc. The second separate defense simply sets forth the fact that the patents were void at the time when the contract was made. The counterclaim is for the recovery back of royalties actually paid by defendants to plaintiffs prior to the date when the patents were declared void. It is well settled that a license of a patent, under a royalty contract, cannot proceed with the manufacture and sale of the articles patented, and afterwards resist a claim for the royalties upon the ground that the patent was invalid, unless he bad given notice of his intention to repudiate the contract, or the patent had been judicially declared void prior to the accrual of such royalties, in which latter case the notice is unnecessary (Marston v. Swett, 82 N. Y. 534); and proof of the actual annulment of the patent is very material upon the question of the amount of royalties due the licensor (Id.). Neither in their defenses nor counterclaim do these defendants allege the giving of notice of repudiation at any time, and only in the first defense is the adjudication declaring the patent void alluded to. But here we have merely the averment that, the adjudication was made after the date of the contract, and nothing appears wherefrom it may be inferred that this event took place prior to the accrual of all the royalties, or of any. Proof of the date of this judicial act might have considerable bearing upon the issue of the amount due the plaintiffs under the contract if the issue were properly raised, but, failing an allegation of such date, proof would be required that it might be shown whether or not the matter constituted a defense. Time, when material to the statement, must be pleaded. People v. Ryder, 12 N. Y. 436. As to substance, the allegations of a pleading are to be taken strictly against the pleader, although liberality as to form obtains under the Code; and it is not to be assumed that the date in question was prior to the 1st of January, 1895, in support of the defense. I have no judicial knowledge of the judgments of the federal courts. The demurrer to this defense is to be sustained.

The second defense refers to no other allegation of tire answer for its support. Hence it must stand or fall as pleaded (Boyd v. McDonald, 32 St. Rep. 484; Hammond v. Earle, 58 How. Prac. 426); and it is insufficient in that there is no averment of notice of repudiation, nor an allegation that the patent was made invalid by judicial decree or official revocation. Marston v. Swett, 66 N. Y. 206; 82 id. 534; Saltus v. Belford Co., 133 id. 499; 45 St. Rep. 872; Skinner v. Walter A. Wood M. & R. Machine Co., 140 N. Y. 217; 55 St. Rep. 568.

So, too, of the counterclaim. The payments sought to be recovered back are alleged to have been made previous to the adjudication declaring the patents void, and therefore the defendants can make no claim to them. They received what they paid for, —the right to privileges under what the parties at the time took to be valid patents. Cases supra.

Demurrer sustained, with costs. Leave to the defendant to amend upon payment of costs within twenty days.

Ordered accordingly.


author: Gildersleeve, J.

text:
    Jane A. Patton, Plaintiff, v. David H. Patton, Defendant.

      (New York Superior Court, Special Term,

      Filed August, 1895.)

    ■Separation—A lemony and counsel fees.
    In an action for a separation in the Superior Court of the City of New York, an allowance for alimony and counsel fees will not be granted.
    Action by Jane A. Patton against David H. Patton for a separation. Plaintiff moves for an allowance for alimony and counsel fees.

      August C. Nanz, for motion ; Asa A. Ailing, opposed.
   Gildersleeve, J.

It has been the practice of this court, for some time past, to decline to entertain motions for alimony and counsel fees in suits for a separation. In Ruopp v. Ruopp, 35 N. Y. Supp. 251, Judge McAdam wrote as follows:

“Support may be summarily coerced through the police courts. These tribunals have the coercive process,—short, sÉarp, and decisive,—corps'of officers, and the power of commitment, of a much more summary character than that possessed by any court of record. It was intentionally made so by the legislature, and plaintiff ought to avail herself of these facilities.”

This ruling has been repeatedly followed by the judges of this •court, and in the present case I feel constrained to adhere to former precedents. The motion for alimony and counsel fees is denied, without prej udice to police remedies.

No costs.

Motion denied, without costs.