author: Andrews, Ch. J.

text:
    Susan B. Yerkes, App’lt, v. Charles McFadden, Sr., et al., Resp'ts.

      (Court of Appeals,

      Filed January 30, 1894.)

    Attachment—Joint debtobs.
    An attachment against the property of several defendants in an action on a joint liability, though the summons is served on but one of the defendants within the prescribed time, and no service is made or publication commenced against the other defendants, cannot be vacated as to the latter for that reason.
    Appeal from order of the general term of the supreme court in the fourth judicial deparment, made December 9. 1892, which reversed ah order of special term denying a motion by defendants to vacate an attachment.
    This action was brought against defendants, who were nonresidents, as co-partners, to recover rent due, etc., under a lease.
    On August 1, 1892, an order was obtained for service of the summons for publication, and on August 15, 1892, a warrant of attachment was procured and a levy made thereunder upon partnership property. The publication of the summons was commenced during the first week in August in two newspapers, and, as directed by the order, continued for six weeks in one of them, but in the other, by mistake of the printer, was discontinued after a publication for five weeks, but after an interval of two weeks, upon discovery of the mistake, it was renewed and directed to be continued for six weeks. On August 26, 1892, the summons was personally served upon one of the defendants, but no personal service was made on the other two.

      John M. Hoe, for app’lt; 0. P. Hurd, for resp’ts.
   Andrews, Ch. J.

We think the general term erred in vacating the attachment as to the two appellants in that court, although publication was not commenced against them within the prescribed period. The action was upon a joint liability of the three defendants. Personal service was made on the third defendant August 26, 1892, thirteen days after the warrant of attachment was granted, and the attachment was levied on the joint property of the firm. In an action against joint debtors service of summons on one authorizes judgment against all, which may be enforced by execution against the joint property, although the other defendants are not served, and do hot appear in the action. Code, §§ 1932 to 1935 inclusive; Sternberger v. Bernheimer, 121 N. Y., 194; 30 St. Rep., 751. The same rule applies in case of an attachment. Where an attachment issues against the property o£ several defendants in an action on a joint liability, it may be executed by a seizure of the joint property, and although the summons is served on but one of the defendants within the time prescribed, and no service is made or publication commenced against the other defendants, the attachment cannot be vacated as to them for that reason. The attachment and the lien continues, and if the plaintiff obtains judgment on the joint liability, the joint-property seized on the attachment may be sold on the execution. The right to seize the joint property on an attachment in an action against joint debtors, although the summons is served on one only, is the same as in case of an execution on a joint judgment under similar circumstances. Smith v. Orser, 42 N. Y. 132. The case of Staats v. Bristow, 73 N. Y. 264, has no bearing upon this question. There, in an action brought for a co-partnership debt an attachment was issued against the property of one of the co-partners only, on the ground that he was a non-resident, on which his interest in the co-partnership property was levied upon. The co-partnership at the time was insolvent. After the seizure on the attachment the firm made a general assignment for the benefit of creditors, and subsequently, on obtaining judgment in the attachment action, the interest of the attachment debtor in the firm property was sold on execution. An action was brought to determine the respective rights of the purchaser on the execution sale, and the assignee for creditors in the property, and it was held that the plaintiff acquired nothing by his levy and sale, because the interest of the attachment debtor in the property was nothing, as the firm was insolvent, and that the assignee acquired title to the corpus of the property under the assignment.

In this case the attachment was against the joint property, and if good as against one of the defendants, was good against all. The lien was not lost, nor could the attachment be vacated as against any of the defendants, there having been a valid service of the summons within the time prescribed by § 638 of the Code, upon one of the defendants.

The order of the general term should be reversed and the order of the special term affirmed, with costs.

All concur.

Ordered accordingly.

      Reversing 49 St. Rep., 918.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    Mary Ann Hawver, Resp’t, v. Edmund R. Bell et al., as Executors, etc., App’lts.

      (Court of Appeals,

      Filed January 30, 1894.)

      1. Evtobitce—Valuk.
    In an action for conversion, the price paid for the converted articles when new, where their age and condition are described, furnishes some evidence of their value at the time of their conversion.
    2. Appeal—Riest instance.
    Matters, which are not, by exceptions, presented for consideration as questions of law, cannot be raised, upon appeal, in the court of appeals.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order made July 2, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying a motion for a new trial.
    The action was originally brought against Calvin H. Bell; he having died during its pendency, the executors of his will were substituted as defendants.
    The nature of the opinion and the facts, so far as material, are stated in the opinion.

      John T. Shaw, for app’lt; T. F. Bush, for resp'ts.

       Affirming 46 St. Rep., 447.

   Earl, J.

The present defendants have been substituted in the place of their testator, against whom the action was originally commenced.

The action was brought to recover the value of certain personal property taken and sold by the testator, among which was an engine, thresher and cleaner. The testator took and sold the property, claiming the right to do so by virtue of a chattel mortgage. The plaintiff claimed that there had been no default in the mortgage, and that the note to secure which it was given was usurious and void. Upon the question of usury there was conflicting evidence. The testator claimed the right to seize and sell the property under what is called the safety clause in the mortgage, and there was conflicting evidence as to his right to proceed under that clause. The verdict of the jury in favor of the plaintiff settles the matters thus dependent upon conflicting evidence.

It appeared upon the trial that the engine, thresher and cleaner had been in the ownership and use of the plaintiff for several years before the seizure and sale by the testator, and that they had become considerably deteriorated by age and use. The plaintiff was permitted to prove, against the objection of the defendants, what these articles cost when new, and they now claim that such evidence was improperly received. The trial judge upon the trial, and in his charge to the jury,did not misapprehend the true rule of damages, and that is that the plaintiff was entitled to recover, if she proved her cause of action, the value of the property at the time of its conversion, with interest. The evidence was objected to “ as not establishing a proper rule of damages.” The judge ever-ruled the objection, saying that “it was some evidence of value,” and he did not at any stage of the trial rule that it furnished the measure or rule of damages. That the price paid for these articles when new furnished some evidence of their value at the time of their conversion, their age and condition being described, cannot be doubted.

The defendants are not now in a position to claim that there was not sufficient evidence of value to sustain the verdict, or that the damages awarded are excessive, because there are no exceptions presenting these matters for our consideration as questions of law. There was no motion to nonsuit the plaintiff. The true rule of damages was laid down-in the charge of the judge. The counsel for the defendants requested the judge to charge the jury “ that the purchase price of the engine and thresher is not the true rule of damages of the value of it,” and he responded : “ No, it is not, because there is no evidence that it has been deteriorated in value. It is only some evidence upon its value as a new and perfect machine.” There was no error here, and the law was correctly stated. To enable the defendants to get the benefit of the point their counsel now urges, they should, upon the trial, have moved for a nonsuit upon the ground that there was not adequate evidence of damages, or they should have raised the question by requesting the judge to charge the jury that the evidence of the purchase price-was not sufficient, standing alone, to show the value of the property at the time of its conversion, or they should have made some other request which presented the point to the mind of the judge.

We have considered the other exceptions to which our atienten has been called, and they are so clearly unfounded that they need no furthér attention now.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: O’Brien, J.

text:
    Margaret Kain, as Adm’rx, etc., App’lt, v. Patrick Larkin et al., Resp’ts.

      (Court of Appeals,

      Filed January 30, 1894.)

    Pleading—Demurrer.
    A demurrer to a complaint on the ground that it does not state sufficient facts to constitute a cause of action, cannot be sustained simply by showing that facts are imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that material facts are only argumentatively alleged.

      Appeal from judgment of the general term of the supreme court, in the third judicial department, entered upon an order made November 22, 1892, which affirmed a judgment in favor of defendants entered upon an order dismissing the complaint on trial, and also affirmed an order denying a motion for a new trial.
    This was a judgment creditor’s action brought by plaintiff, as administratrix of David Kain, deceased, to have adjudged and declared fraudulent and void as to her intestate a transfer of certain real estate made by the defendant, Patrick Larkin, to his daughter, Mary E. Larkin, an infant.
    The material facts are stated in the opinion.

      G. B. Adams, for app’lt; F. A. Westbrook, for resp’ts.

       Reversing 49 St. Rep., 49.

   O’Brien, J.

At the trial of this action, upon the defendants’ motion, the court, without taking any proof, dismissed the complaint upon the ground that it did not state sufficient facts to constitute a cause of action. To this ruling and direction the plaintiff's counsel excepted, The appeal, therefore, presents but a single question, and that is whether, in law, the complaint was sufficient as a pleading to give the plaintiff a standing before the court sufficient to enable her to make out her case by proof if she could. The learned trial judge, as well as the general term, have apparently reached this conclusion upon the theory that this court, when the case was here on a former appeal, decided that sufficient facts had not been averred. Kain v. Larkin, 131 N. Y., 300; 43 St. Rep., 197. In this respect we think that the learned courts below have misapprehended the legal effect of that decision. A careful reading of the opinion of this court upon that appeal will show that we reversed the judgment then before us, rendered after a full trial, upon the ground that the facts and circumstances disclosed by the record, as it then appeared, did, not sustain the findings and conclusion of the court which set aside, as void, the conveyance and transfer attacked, and not because the complaint was defective. It is true, that in discussing the questions then before us, and in pointing out defects in the proof, it was remarked that certain facts had not been proved nor alleged, but it is nowhere intimated that the complaint was defective, or that the necessary facts could not have been proven under it at the trial. Our decision proceeded upon the ground that the proofs, not the pleading, were defective and insufficient. It will be sufficiently favorable to the defendants to consider the complaint as now before us upon a general demurrer upon the ground that it does not state facts sufficient to constitute a cause of action. In such a case the demurrer cannot be sustained unless it appears, admitting all the facts alleged, that no cause of action whatever is stated. The demurrer cannot be sustained simply by showing that facts are imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that material facts are only argumentatively averred. The pleading may be deficient in technical language or in logical statement, but, as against a demurrer or amotion of this character at the trial, the pleading will be deemed to allege whatever can be implied from its statements by fair and reasonable intendment. Zabriskie v. Smith, 13 N. Y., 330; Marie v. Garrison, 83 id. 14, 22; Sanders v. Soutter, 126 id., 193; 37 St. Rep., 1. The complaint in this case clearly avers the recovery of a judgment by the plaintiff against one of the defendants and the return of an execution issued thereon unsatisfied; that the judgment is still due; that after the cause of action accrued the defendant transferred his property which would be subject to the lien of an execution to his wife, daughter and brother by instruments particularly described, and that by the death of the wife and through a satisfaction of the mortgage on the real estate by the brother, and a deed to her by the plaintiff, all this property has become vested in and is now held by the daughter, who has been made a defendant, and has answered the complaint. The complaint then avers that the deed, mortgage and transfer of money in court to defendant’s credit to his wife, daughter and brother, were made without consideration, and with the intent to hinder, delay and defraud the plaintiff of her claim. The relief demanded is that the conveyances and transfer be set aside and declared void, and that a receiver be appointed for the purpose of applying the property to the payment of the judgment. For the purpose of the question now before us, we can assume that these facts all stand admitted upon the record, and when so admitted they establish a cause of action by a judgment creditor against the defendant in the execution, and his fraudulent grantees or transferees entitling him to equitable relief. A fraudulent intent on the part of the grantor and grantee is averred. The evidence necessary to support these allegations of a fraudulent intent may be, and usually is, made up of many different facts and circumstances, but it is not necessary to insert them in a pleading, and it is generally improper to do so. The pecuniary condition of the defendant at the time, the extent of his property, the part transferred and that retained, as well as the nature and extent of the plaintiff’s claim, which subsequently ripened into a judgment, were all facts bearing on the general allegation of fraud. The plaintiff could prove all these facts and circumstances under her complaint. The general allegation that a conveyance or transfer of property was made with the intent to hinder, delay and defraud creditors is broad and sweeping in its operation and effect. It involves many elements, and may, before it can be deemed established, require proof of many other facts and circumstances which may be given in evidence under the general charge, without inserting them in the pleading. We think that the plaintiff is entitled to an opportunity to prove her case, and supply, if she can, the defects in the proof pointed out by us in the review of the former judgment, and that the direction dismissing the complaint was erroneous.

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

All concur.


author: Finch, J.

text:
    In the Matter of the Revocation of the Last Will and Testament of Homer A. Nelson, Deceased.

      (Court of Appeals,

      Filed January 30, 1894.)

    1. Will—Execution.
    Where, beyond the presence of an attestation clause, the proof is that the will was read aloud in the hearing of testator and witnesses with at least the silent assent of all concerned to its statement of facts, there is some, and quite persuasive, evidence of the actual occurrence of the facts recited.
    2. Same.
    A request to the witnesses to sign is sufficient, if made by the person superintending the execution of the will in the hearing of the testator and with his silent permission and approval.
    3. Evidence—Will.
    Proof of testator's declarations and acts, occurring after the execution of the will, is admissible to show his knowledge of the testamentary character of the instrument and to dispel any possible claim or ■ mistake or imposition.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made December 12, 1892, which affirmed a decree of the surrogate’s court of the county of Dutchess, denying and dismissing a petition for the revocation of probate of the last will and testament of Homer A. Nelson, deceased, and ratifying and confirming the prior probate thereof.
    The facts, so far as materal, are stated in the opinion.

      Martin I. Townsend, for app’lts ; M Countryman, for resp’ts.

       Affirming 50 St. Rep., 936.

   Finch, J.

This appeal is from an ‘affirmance by the general term of an order of the surrogate of Dutchess county refusing to revoke the probate of the last will of Homer A. Nelson. No question is raised as to the capacity of the testator or his freedom from any undue or improper influence, and the whole contest is over the inquiry whether the statutory requirements for the due execution of the will were all observed. That is a question of fact upon which the findings are conclusive unless it appears in the record that there is no evidence tending to sustain them, and our examination of the case must be directed to that inquiry. It may be narrowed still further. The will bears the signature of the testator and the attestation clause those of Baker and Keller, the two subscribing witnesses. There is not the least doubt of the genuineness of all these signatures. It is also certain that they were appended on the day of the execution of the will and before Keller left the room, for he says that Baker put the will in an envelope and took it away at the request of the testator, and at least twelve years thereafter, Baker having died, the will in its envelope was delivered to the testator, who opened the package and examined the instrument and receipted for it as his will. That the testator on March 3, 1878, which was the date of the attestation, knew perfectly that he was engaged in a testamentary act is evident not only from what occurred in his presence, but from his own later statement of the reason which induced him to make his will on that occasion. Baker knew the exact nature of the transaction, for he drew the will and superintended its execution. And Keller knew it, not only from what was said to him, but from his repeated description of the scene as a solemn occasion. The attestation clause was read aloud by Baker in the presence and hearing of the testator and Keller, so that the testator knew what it recited as emanating from him, and the witnesses what it declared as having occurred in their presence. To all that was thus represented to have been said or done by the testator he assented by the approval of silence, if nothing more, and the witnesses knowing its recitals certified to their truth by their signatures. The attestation clause is always some proof of the due execution of the will (Matter of Will of Cottrell, 95 N. Y., 339), and where beyond its presence the proof is that it was read aloud in the hearing of testator and witnesses with at least the silent assent of all concerned to its statement of facts, it cannot be denied that there is some, and quite persuasive evidence of the actual occurrence of the facts recited. When Baker read the statement, obviously speaking for the testator and in his behalf, that he had •signed, published and declared the instrument in question as and for and to be his last will and testament, his silent assent to the declaration, if he was so silent, furnished evidence of his concurrence and approval; evidence upon which the witness at once acted and without hesitation, and which is put beyond the possibility of mistake by the testator’s after recognition of the will as an existing, executed and completed instrument. If the attestation clause thus read and adopted had been full and perfect it would have served, in connection with the other proof, to have justified the probate; but it was not full and perfect, owing to the omission of one of the needed requirements, and it is about that one, omitted from the recital, probably by accident, that it is possible reasonably to contend that there was an utter failure of evidence.' That omission was of a request by the testator to the witnesses to sign the will as such, and is open to dispute, not only because so omitted, but because the surviving witness denies the fact. He admits, however, that Baker, in the presence of the testator, requested the witness to sign the will, but denies that the decedent in any manner assented, unless by silence, and takes from that some of its force by representing him as apparently inattentive. This witness was Judge Nelson’s coachman, who had been in his service for many years, but was disappointed in not "finding in the will some legacy for himself. His evidence as a witness was strongly contradicted by his own earlier statement to Mr. Lown that when he came into Judge Nelson’s room the latter said that he wanted him to witness his will. It is thus certain that either Baker, speaking in behalf of the testator, or the latter himself made that request, and it is much the most probable that it came from the testator. Somebody sent for the coachman with the view of making him a subscribing witness to the will. Mrs. Nelson was not at home, and Miss Laura Nelson was not present, and does not appear to have even been aware of what was transpiring. The summons came from the room where the testator and Baker were alone together, and must have been directed by the testator’s selection, or, at all events, with his assent, and when Keller came into the room it is quite certain that one of the two told him what he was wanted for. If it was Baker, as the witness testified, that was enough, for in doing ¡so he plainly acted for the testator with his assent and in pursuance of his selection. The request to sign is sufficient, if made by the person superintending the execution of the will, if in the hearing of the testator and with his silent permission and approval. That was held in Doe v. Roe, 2 Barb., 205, and again in Peck v. Carey, 27 N. Y., 9, and Gilbert v. Knox, 52 id., 128. Judge Nelson himself was a lawyer of eminence and ability, well knowing what was needed for the due execution of a will, and Baker was his partner and fully competent to perform the duty which he undertook, and it is not a reasonable supposition that they neglected any essential requirement. The accidental omission in the attestation might easily occur, and that it escaped the notice of both serves only to indicate the fatality which seems to attend the wills of distinguished lawyers.

The proof of Judge Nelson’s declarations and acts, occurring after the execution of the will, was admissible to show his knowledge of the testamentary character of the instrument and to dispel any possible claim of mistake or imposition. Similar evidence has often been received, and we can see no ground on which it should have been excluded.

Taking all the facts together, they warranted the findings of the surrogate, and leave no doubt in our own minds that the will was properly executed.

The judgment should be affirmed, with costs.

,A11 concur.

Judgment affirmed.


author: Bartlett, J.

text:
    Nellie Quinlan, an infant, by Guardian, etc., Resp’t., v. James H. Welch, App’lt.

      (Court of Appeals,

      Filed January 30, 1894.)

    1. Civil damage act.—Effect of act of 1893.
    The only effect of § 3, chap. 403 of 1893, is to amend chap. 646 of 1873, by requiring a certain notice in writing to be given before a cause of action can accrue.
    3. Same.
    A cause of action which accrues prior to such amendment is not affected thereby.
    3. Appeal. —First instance.
    A point, though presented by the proofs, if not raised on the trial and the attention of the court called to it, cannot be considered on appeal.

      Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made June 23, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      J, Arthur Corbin, for app'lt; F. W. & K F. Kruse, for resp’t.

      Affirming 53 St. Rep., 256.

   Bartlett, J.

The plaintiff, the infant child of Dennis Quinlan, deceased, brings this action under chapter 646 of the Laws of 1873, known as the Civil Damage Act,” to recover damages for her father’s death, caused, as alleged, by the sale of intoxicating liquors to him by one O’Leary, the tenant or occupant of premises owned by the defendant, James H. Welch. At the opening of the trial it was conceded that the store and premises in Clean, at which it is alleged that the intoxicating liquor was sold June 17, 1891, were then owned by the defendant, and that he rented them to O’Leary some time prior to that date, and knew that O’Leary was selling intoxicating liquors there on the 17th day of June, 1891.

The action was tried at the Cattaraugus circuit in September, 1892, and resulted in a verdict for plaintiff.

Dennis Quinlan, the deceased, lived at Portville; he was an industrious man, employed by the Portville Tanning Company as a skilled workman, and the sole support of his wife and family by day’s labor, he having no property; he arrived in the village of Olean on the afternoon of the 17th day of June, 1891, and with several companions visited the saloons of the town, the defendant’s premises among others, and drank heavily; the evening of that day he boarded a train to return home, and was at the time much intoxicated; he left the train at Weston early in the evening, and the next morning about eight o’clock his mutilated body was found on the railroad track midway between Weston and Portville.

It does not appear when the deceased met his death; he evidently attempted, during the night, to walk on the track from Weston to Portville.

The defendant moved for a nonsuit practically on two grounds, failure of proof and the absence of the notice required by chapter 403 of the Laws of 1892.

As to the alleged failure of proof, we are of opinion that there was sufficient evidence to submit to.the jury as to all the essential facts necessary to sustain this action under the Civil Damage Act of 1873, and the verdict is conclusive.

The defendant’s contention that chapter 403 of the Laws of 1892, is applicable to this case presents the principal point on this appeal

The second section of that act, which was passed April 30, 1892, reads as follows, viz.:

“ § 2. A recovery may be had in a civil action of the damages suffered by reason of the intoxication of any person from any person or persons who shall, by selling or giving away intoxicating drink, have caused such intoxication, or from any persons owning or renting or permitting the occupation of any building or premises wherein such selling or giving away shall have occurred, jointly with the person or persons selling or giving away, or severally, if the person or persons suffering such damages shall, previous to such selling or giving away, have given written notice to the licensee or his agents, or the person or persons so selling or giving away, forbidding such selling or giving away to the person whose intoxication shall have caused such damage, and not otherwise.”

It is insisted that this statute repealed by implication chapter 646 of the Laws of 1878, and that even if the legal effect was amendment and not repeal, the right of action, accruing to defendant in June, 1891, under the act of- 1873, and by virtue of which she had commenced this action, was taken away.

We regard both these propositions as unsound. The second section of chapter 403 of the Laws of 1892 does not cover the whole subject-matter of chapter 646, Laws of 1873, and its only effect is to amend the latter statute by requiring a certain notice in writing to be given before a cause of action can accrue.

Whether a subsequent statute repeals a prior one, in the absence of express words, depends upon the intention of the legislature. Anderson v. Anderson, 112 N. Y., 111; 20 St. Rep., 344.

While this intent is sufficiently manifest in the case at bar, upon the reading of the subsequent statute, our attention has been called to the fact that on the same day chapter 403 of Laws 1892,was approved by the governor April 30th, 1892, and one hour before such approval, the executive approved chapter 401 of the Laws of 1892, known “ as an act to revise and consolidate the laws regulating the sale of intoxicating liquors.”

Section 40 of this act clearly recognizes the action created by chapter 646 of the Laws of 1873, and provides no recovery shall be had “ unless one of the persons who might have such a cause of action * * * "hall, prior to such sale or giving away, have given written notice to the person selling or giving away such intoxicating drink, forbidding such sale,” etc.

The subsequent act (Ghap-ter 403, Laws of 1892), which became law an hour after the above statute, is entitled “An act in relation to excise,” and provides in the first section for the appointment of the clerks of excise boards, and the second section deals with the subject of notice as contained in chapter 401, Laws of 1892, section 40, already quoted, and provides- the notice shall be" given “ to the licensee or his agents, or the person or persons so selling or giving away,” etc., thus increasing the number of persons to whom notice may be given. It also extends the application of the notice to actions against persons owning or renting or permitting the occupation of premises where the offense occurred, which was not covered by said section 40. It is quite clear that the later statute was intended to supply omissions in the early one, and that both are to be read as amendatory of chapter 646, Laws of 1873, and not as repealing it by implication.

The defendant, however, insists that treating chapter 403 of Laws of 1892, as amending chapter 646, Laws of 1873, its effect was to deprive plaintiff of her cause of action, which accrued in June, 1891.

The Civil Damage Act of 1873 is not a penal statute, but creates a cause of action for damages which was unknown to the common law.

This court held in Volans v. Owens, 74 N. Y., 530, that “the primary purpose of the legislature in giving a right of action for an injury of this character was the protection of the dependent and helpless."

The repeal of a penal statute discharges offenses committed before such repeal aud proceedings based thereon. 1 Hale’s Pleas of the Crown, 291; Hartung v. People, 22 N. Y., 99, 100; Curtis v. Leavitt, 15 id., 229; Butler v. Palmer, 1 Hill, 324. This statute of 1873 being in no sense penal it falls within the rule which has long existed and was recognized by this court in Matter of Miller, 110 N. Y., 216; 18 St. Rep., 226.

The question presented in that case was whether a beneficiary who had become liable to pay a tax under the Collateral Inheritance Act of 1885 (Ch. 483) was released from the payment thereof by chapter 713, Laws of 1887, which was enacted before payment of said tax and under the terms of which the tax was not imposed.

Judge Danforth, at page 223, says:

“ The surrogate and the supreme court, however, thought the case made by the petitioner should be decided as if the act of 1887 had not been passed, and we are of that opinion. The rule is considered settled in this state that neither original statutes nor amendments have any retroactive force, unless in exceptional cases as the legislature so declare.” Dash v. Van Kleeck, 7 Johns., 477; Sanford v. Bennett, 24 N. Y., 20; People ex rel. Newcomb v. McCall, 94 id., 587-590. In the latter case Judge Earl says, at page 590: “ It is a general rule often reiterated and laid down in reported decisions that laws should be so construed as to be prospective and not retrospective in their operations unless they are specially made applicable to past transactions and to such as are still pending.” We, therefore, hold that plaintiffs cause of action was not affected by either chap. 401 or 403 of the Laws of 1892.

There only remains to be considered a point raised by defendant for the first time at the general term to the effect that plaintiff having been born after her father’s death could not maintain this action.

It appeared by the testimony of the widow of Dennis Quinlan that the infant plaintiff was born on the 18th of June, 1891, and the witness adds, “the day after her father was killed.” This latter statement was inference or inadvertence, as there is no proof whether the father met his death on the evening of June 17th or the morning of June 18, 1891.

This point is, therefore, not presented under the proofs, as it is possible the deceased met his death after midnight of the 17th of June, 1891, and it does not appear at what hour on the 18th of June, 1891, the plaintiff was born.

It is not necessary, however, to decide whether the point is presented under the proofs as the defendant should have raised it at the circuit on his motion for nonsuit if he desired its consideration here. •

This court has repeatedly held that a motion for a nonsuit or to dismiss the complaint to be effectual must specify the defects supposed to exist. Binsse v. Wood, 37 N. Y., 532; Thayer v. Marsh, 76 id., 340; Sterrett v. Third Nat. Bank of Buffalo, 122 id., 659; 34 St. Rep., 241.

The reason of the rule is obvious, as it affords an opportunity to supply additional proof where it is possible.

After a careful consideration of this case we are of opinion that the judgment and order appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Peckham, J.

text:
    In the Matter of the Probate of the Last Will and Testament of George A. Bartholick, Deceased.

      (Court of Appeals,

      Filed January 30, 1894.)

      1. Appeal—Surrogate.
    Where, in an order of the general term reversing, on the facts, a decree of the surrogate admitting a will to probate and directing a trial by jury, an error of law is made, it can be corrected by appeal.
    3. Same.
    Such order cannot be reviewed by the court of appeals on appeal from a subsequent order of the general term, affirming a decree of the surrogate adjudging the will to be wholly invalid and revoking the former probate.
    3. Will—Probate.
    The provision of section 3633 of the Code applies equally to wills of real and of personal property.
    4. Same.
    Where the surrogate becomes satisfied and finds that the testator had no mental capacity to make a will, and that the instrument offered for probate was obtained by fraud and undue influence, he has the right wholly to refuse to probate such instrument, even though the contestant is interested only as an heir at law.
    5. Same.
    Where the action of the surrogate is valid in refusing probate of the will for any purpose, his reasons for so doing are not material.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon, an order made January 18, 1893, which affirmed a decree of the surrogate’s court of Monroe county denying probate to the last will and testament of George A. Bartholick, deceased.
    George A. Bartholick died in Monroe county in July, 1888, leaving an alleged will which related to real and personal estate. Charles ¡Flaherty was named as a legatee in and as one of the executors of the will. The testator left him surviving his widow, Julia A. Bartholick, a brother, Joshua Bartholick, and a granddaughter of a deceased sister, being his grandniece, Mrs. Luisita B. Kirley. These were all the persons entitled as heirs at law or next of kin to any share in the estate of the testator.
    The executor presented the will for probate to the surrogate of Monroe county, and the above-named parties were duly cited and appeared. Mrs. Kirley filed objections to the probate of the will, and charged fraud, undue influence .and mental incapacity. All the others acquiesced in its probate. The surrogate decided in favor of the proponent, and the will was, in March, 1889, proved as a will of real and personal estate. Mrs. Kirley alone appealed to the general term'of the supreme court, and in the body of the notice of appeal she is described as one of the heirs at law of the deceased, but she appealed “ from the decree entered herein on the 18th day of March, 1889, and from each and every part thereof.’’ In January, 1891, the general term reversed the judgment of the surrogate admitting the will to probate, and stated that it was reversed on a question of fact, and granted a new trial to be had before a jury upon the questions (1) whether the testator was of unsound mind'when the will was executed, and (2) whether the will was procured by undue influence, circumvention, fraud or deceit.
    These questions were then tried before a jury, who answered them both in the affirmative, and upon evidence which is admitted to have been sufficient to justify the finding that the instrument was procured by fraud and undue influence on the part of the executor and another person, who was also named as a legatee in the instrument. The papers were then certified to the surrogate, and a proposed decree was presented in which the proponent desired to have inserted such language as would confine the decree of the surrogate then to be entered to a refusal to admit the will to probate as a will of real estate only, leaving the probate of the will to stand as a will of personalty. The surrogate, however, entered a decree adjudging and decreeing that the will dated June, 1888, was invalid and of no effect, and revoking and setting aside the former record and probate of the instrument.
    The surrogate added at the foot of his decree (not to form a part of it, but to be filed with the papers at the request of counsel for proponent) a statement that he entered the decree in the form mentioned because the supreme court had reversed the former decree entered by the surrogate without limiting the reversal to the probate of the will as a will of real estate, in which the contestant, a grandniece, was alone interested, and he considered he was, therefore, precluded from limiting the decree to the real estate only, as requested by counsel. The counsel for proponent filed exceptions to the decree as entered, and then appealed to the general term, where the decree was affirmed, and the proponent now appeals to this court.

      J. W. Slebbins, forapp’lt; J. A. Stull, for resp’t, Kirley; George F. Yeoman, for resp’ts, Allen et al.

      Affirming 50 St. Rep., 938.

   Peckham, J.

In providing for the distribution of the personal estates of intestates the statute prohibits any representation among collaterals after brothers’ and sisters’ children. 2 R. S., 96, § 75, subdiv. 11. It is, therefore, claimed that Mrs. Kirley had no right to appeal from the first decree of the surrogate, so far as that decree admitted the instrument to probate as a will of personal property. In fact she did not appeal from the whole decree. We' do ,not think it necessary, in this case, to go back of the reversal by the general term of the decree of the surrogate admitting the will to probate and directing the trial of the issues ot fact by a jury. The general term had jurisdiction of the case by virtue of the appeal. If the court acted erroneously in reversing the probate of the instrument as a will of personal property, it did not act without jurisdiction, and its order, even though erroneous in that respect, was not void. At the worst it was an error of law, and if inadvertent merely the proponent could have moved in that court to correct the form of the decree by limiting it to real es-' tate, or in either event he could have appealed to this court. Although we cannot review an order of the general term reversing on the facts a decree of the surrogate admitting a will to probate and directing a trial by jury, yet, if in such an order an error of law is made, that error can be corrected by appeal. Sutton v. Ray, 72 N. Y., 482; Burger v. Burger, 111 id., 523; 20 St. Rep., 105.

Having gone down and tried the whole case before the jury,and the surrogate having entered the decree upon that verdict, refusing probate of the instrument, and the general term having affirmed it, the proponent cannot on this appeal from the last order of the general term review its first order under a claim that it is an intermediate one, necessarily affecting the order last appealed from. Matter of Will of Budlong, 126 N. Y., 423 ; 38 St. Rep., 436. The section of the Code pertaining to appeals from surrogates’ decrees, § 2571, has the same purpose as those sections (§§ 1316, 1317) which relate to appeals from orders and judgments in other courts. Having jurisdiction the supreme court reversed the whole decree of the surrogate on questions of fact and directed the trial of the issues by jury. The criticisms of counsel upon the reasons given by the general term for a reversal are not material. The court does reverse the surrogate’s decree upon a question of fact. It says so in its order of reversal. We are concluded by it.

Coming down to the trial before the jury we find the result of that trial to be in favor of the contestant. With the answers of the j ury to the questions propounded, the parties appeared before the surrogate and he was then called upon to enter the appropriate decree. These answers show that the will was procured by fraud, undue influence and deceit on the part of the executor and another person also a legatee, and that at the time of the execution thereof the testator was of unsound mind and memory and was incapable of making a will. The finding of the jury, standing as it did in full force, was the exact equivalent to a finding by the surrogate to the same effect. Upon such a finding based upon evidence legally taken has the surrogate any legal right to admit a will to probate for any purpose ? The statute directs that the surrogate before admitting a will to probate must inquire particularly into all the facts and circumstances and must be satisfied of the genuineness of the will and the validity of its execution. Code of 0. P., § 2622. The same proof is required in regard to wills of both real and personal estate upon the question stated in the above section. When the question is properly raised by a party having the right to raise it in some capacity, and where, upon the investigation which succeeds, the surrogate becomes satisfied and finds that the testator had not mental capacity to make a will, and that the instrument offered for probate was obtained by fraud and undue influence, we think the surrogate has the right, and that it is his duty, to wholly refuse to probate such an instrument, even though the contestant who prosecutes the controversy is only interested as an heir at law and is not one of the next of kin. The finding necessarily shows that no will was ever executed according to law, and the surrogate is not obliged to stultify himself by admitting the will to probate as a will of personal property only, because of the absence of some one contesting such probate as next of kin. There was a valid contest by one who had a legal standing in court, and upon that contest the fact appeared that the alleged testator was incapable of making any will, on the ground of mental incapacity. The surrogate’s duty under the statute is to inquire and become satisfied of the existence of the necessary facts, and having that right and duty, if he become satisfied and finds as herein stated, he ought to refuse probate of the instrument for any purpose.

This is not the same as the case of In re Kellum, dec'd, 50 N. Y., 298. There the will relating to both real and personal estate had been duly admitted to probate, and as a will of personal estate the probate was conclusive. The surrogate’s judgment had never been reversed. But by the provisions of the Revised Statutes, 2 R. S., 61, §§ 30 to 39, the next of kin were permitted within one year after the probate to contest the validity of the will as a will of personal property. It was held by this court that the statute applied in the case of a will which related to both real and personal property, and that the next of kin might within the year contest such will as one of personal property while the probate of the instrument as a will of real property would stand unaffected by such contest or its result. The terms of the statute limited the contest to one regarding the will as relating to personal estate only, and hence the probate already duly made and existing as relating to real estate was not to be affected. In this case the supreme court set aside and reversed the whole decree, and the surrogate, upon a proper contest prosecuted by one having a standing in court and an interest to be affected, has now found the proposed will was not duly executed, and even when the contest is made by an heir at law only, the finding of the surrogate prevents the probate of the instrument as a valid will for any purpose whatever. The fact that there is contained in the record here a memorandum of the surrogate showing his reason for limiting his decree to a refustal to admit the will to probate as one relating to real estate only, is of no importance. The action of the surrogate was valid in refusing probate to the will for any purpose, and his reasons are not material.

The judgment of the general term should, therefore, be affirmed, with costs against the proponent personally.

All concur.

Judgment affirmed.


text:
    Terence McCracken, Resp’t, v. William C. Flanagan et al., App’lts.

      (Court of Appeals,

      Filed January 30, 1894.)

    1. Execution—Void judgment.
    A sale of land on execution, issued upon a void judgment against the owner, in no way affects his title.
    2. Same—Deed—Title.
    A subsequent conveyance by him is just as effectual as though the judgment had never in form been entered.
    3. Same—Notice.
    Notice to the grantee, when he took the conveyance, that the execution purchaser claimed title under the sale, does not operate as an estoppel.
    4. Appeal—Former.
    Where the facts upon the second, are precisely as they were upon the first, trial, the parties are concluded by the decision on the prior appeal.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made February 13, 1893, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      Thomas J. McKee, for app’lts; Eugene 8. Ives, for resp’t.

       Affirming 51 St. Rep., 545.

   Earl, J.

This is an action of ejectment to recover certain land situated in the county of Westchester. This action has been twice tried. On the first trial there was judgment for the defendants, which was affirmed at the general term. Upon further appeal to the court of appeals it was reversed, and a new trial was granted. The action was again brought to trial before a judge without a jury, and was submitted by both sides upon facts stipulated.

The plaintiff bases his title upon the following facts: Henry Kahle was seized in fee and possessed of the lands on the first day of December, 1867. On the 17th day of May, 1869, he conveyed the land to the plaintiff and Patrick Mc-Cracken. Patrick McCracken died leaving a will by which he devised his interest in the land to the plaintiff, and thus the plaintiff claims to have become the sole owner of the land. The defendants base their claim of title to the land upon the following facts: In January, 1867, an action was commenced in the supreme court by Lawrence Cartan and others against Henry Kahle, for the collection of a debt claimed to be due them from him. In that action a warrant of attachment was issued to the sheriff of Westchester county, who levied upon the land in question. At the sanie time notice of the pendency of the action and of the issuing of a warrant of attachment therein describing the land attached was filed in the office of the clerk of the county of Westchester. Kahle did not appear in that action. The summons was served upon him by publication and mailing, and not personally, without the state, in pursuance of an order granted upon an affidavit, copies of which affidavit and order are found in this record. In May, 1867, judgment was entered in the action against Kahle for upwards of $1,100, and an execution was issued upon that judgment to the sheriff of Westchester county, and in pursuance thereof he sold the land to Lawrence Cartan on the 23d day of July, 1867, and filed his certificate of the sale in the office of the clerk of the county of Westchester, on the 8th day of October, 1867. Thereafter the sheriff executed and delivered to Cartan his deed of the premises bearing date January 25, 1869, and recorded in the office of the register of the county of Westchester on the 18th day of April, 1870. Afterwards Cartan, on the 17th day of July, 1871, conveyed the land to Edward A. Flanagan, and he entered upon and took possession of it. On the 27th day of November, 1871, Flanagan conveyed the land to the defendants in this action, who thereupon entered upon and took possession of it, and have since been in continued and undisputed possession thereof.

Upon the prior appeal to this court the case came to argument in the second division, and its opinion is to be found in 127 N.Y., 493; 40 St. Rep., 180. It was there held that the affidavit upon which was granted the order of publication of the summons in the action of Cartan and others against Kahle, was insufficient to give the judge jurisdiction to make the order; that the judgment entered against Kahle by default, and the deed upon the sale of his property under that judgment were void, and that, therefore, the defendants in this action, claiming under that deed, had no title whatever to the land in dispute.

The facts upon the tidal now under review are precisely the same as they were upon the first trial, and, therefore, the parties are concluded by the prior decision. The1 precise question as to the defendants’ title was there decided which is now involved here. The court having held that the judgment was void, it had vitality for no purpose and could be assailed by any person who had an interest to assail it, or who could be affected by it. The judgment and. the sale under it in no way affected Kahle’s title, and his subsequent conveyance of the land was just as effectual as if the judgment had never in form been entered against him. We do not deem it proper to review the grounds of the former decision, and we rest our judgment thereon. It may be true that the plaintiff took his title to the land with notice of the claim of title made by the defendants and their grantors. But that no tice does not operate as an estoppel against him. He found this land in the ownership, and, as we must assume, in the possession of Kahle, and knowing that the judgment and deed under which the defendants claimed title were void, he had a right to take a conveyance of the land, and he thereby obtained a good title to it.

The further claim is made that the deed from Kahle to the plaintiff and his co-grantee was void because at the time of its execution the land was in the adverse possession of Cartan, the sheriff’s grantee, who claimed title thereto. The difficulty with this contention is that there is nothing in the case to show that at the date of the deed under which the plaintiff claims, Cartan or any other person was in possession of the land, claiming to own the same. The record does not show that the land was in the actual possession of any one until more than two years after the deed, under which the plaintiff claims, was executed by Kahle.

We are, therefore, unable to see the least ground for this appeal, and the judgment should be affirmed, with costs.

All concur. '

Judgment affirmed.


text:
    Adaline Matson et al., Resp’ts, v. Louise J. Abbey, as Admr’x, etc., App’lt.

      (Court of Appeals,

      Filed January 30, 1894.)

      1. Costs—Executors, etc.
    Costs cannot be awarded against an executor or administrator without a certificate of the trial judge showing the facts upon which such an award must be based.
    2.
    The conclusions of the general term stated and concurred in.
    Appeal from judgment of the general term of the supreme court in the third judicial department entered upon an order made July 8, 1893, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at circuit without a jury.
    This action was brought to recover $2,000, the amount of a policy of insurance upon the life of Austin Matson, Jr., with interest.
    The policy was procured by the father of the insured and was -payable to him, his executors or assigns. He died December 1, 1864, and by his will devised and bequeathed the whole of his estate to his executors in trust, and directed them to apply the rents and income to the support of his widow and his daughter Emily, during life or until the death of the widow, the principal then to be divided between his children. He also directed that the yearly premium on said policy should be paid by his executors in case the insured did not pay it, such payments to be charged as advancements upon his share. The son died February 19, 1866, and the policy was thereupon collected by the executors of the father.
    The widow of the testator died June 15, 1891, and defendant was, on July 13, 1891, appointed administratrix with the will annexed. On January 27, 1869, the children and devisees of Austin Matson, Sr., by a sealed conveyance, assigned all their interest in the moneys collected on the policy aforesaid to the plaintiffs, the widow and children of'Austin Matson, Jr. It was shown on the trial" that defendant, as administratrix, received of personal estate $8,534.26, and no debts against the estate were alleged or proven. Prior to the commencement of this action a demand was made by the plaintiffs from defendant for the sum of $2,000 out of the estate of Austin Matson, Sr., so assigned to the plaintiffs, and payment was refused.
    Further facts are stated in the opinion.

      A. T. Clearwater, for app’lt; Martin I. Townsend, for resp’ts.

       Modifying 53 St. Rep., 794.

   Finch, J.

We adopt the opinion of the general term upon the main questions involved in this appeal, deeming it unnecessary to repeat the reasons very fully and correctly assigned. That court held that there was a valid gift of the right to the fund realized upon the life policy by force of the delivery of the assignment or deed of gift; that it could not be revoked, but vested in the donees subject to the life interest of the widow; that the cause of action matured at her death, and so was not barred by the statute of limitations; and that the action, if not necessary, was at least proper and not prematurely brought. We concur in those conclusions which settle in favor of the plaintiffs the substantial points of the controversy.

But there is a minor question relating to the award of costs against the administratrix which, we think, was wrongly decided. Such costs were awarded without any certificate or finding of the trial judge showing the facts upon which the award was founded. The Code (§ 1835) forbids the allowance of costs in an action brought against an executor or administrator in his representative capacity except as prescribed in the next section. That permits such an award where it appears that the claim was duly presented, that its payment was unreasonably resisted or rejected, or that there was a refusal to refer. Since these facts in whole or in part depend upon circumstances outside of the litigation and not within its issues, the section further provided that the facts must be certified by the judge or referee before whom the trial was had. Such a certificate is, therefore, the necessary basis of the award, and without it the facts cannot fully appear. The evidence on the trial and its result may be taken into account, but cannot serve without the prescribed certificate. That was asserted as the correct rule of practice in Wray v. Halliday, 3 Month. L. Bul., 98, and we concur in the opinion. The obvious purposes of the two sections of the Oode referred to can only be fully accomplished in that way.

The judgment rendered by the trial court should, therefore, be modified by striking out the aw.ard of costs in the trial court, and? as modified, should be affirmed, with costs to the plaintiffs in this court. The costs awarded on appeal to the general term we do not disturb.

All concur..

Judgment accordingly.


text:
    In the Matter of the Estate of Archibald Johnston, Deceased. William T. A. Hart, Adm’r, etc., App’lt; Hugh Langan et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December, 1893.)

    1. Administrators, etc—Liability.
    An administrator will be charged personally with the value of property improvidently sold.
    3. Same—Duty to sue.
    An administrator is under no obligation to bring an action which he cannot successfully maintain, to avoid a transfer voluntary on its face.
    Appeal from decree of the surrogate entered on report of referee.

      George L. Terry, for app’lt; William C. Reddy, for resp’ts.
   O’Brien, J.

It appears that on February 24, 1886, Archibald Johnston, deceased, was the owner of a two-eights interest in a leasehold, and that on that day he assigned to his wife, through one Harris as an intermediary, one-half of his interest, being one-eighth of the leasehold. He died August 31, 1887, and in February, 1888, the other one-eighth was sold by the administrators to one James Kenney for the consideration of $110.

With respect to this sale to Kenney, the referee held that it was improvidently made and in violation of their duty as administrators, and that the administrator Hart should be personally charged with the value thereof, with interest. With respect to the assignment by the testator to Harris, and by Harris to Mrs. Johnson, the referee held that it was for a valuable consideration and valid. The surrogate confirmed so much of the report of the referee as held the administrator Hart chargeable with the value of the leasehold interest sold to Kenney, and also charged him with the costs, and refused to allow the administrators any commissions; and in the conclusion thus reached we concur, for the reasons which are clearly set forth in the opinion of the referee, and in the interlocutory and final decrees of the surrogate.

This leaves us to a consideration as to whether the view of the referee or that of the surrogate should prevail respecting the one-eighth interest assigned to Harris and bv Harris to Mrs. Johnston, and by the latter, for a valuable consideration, assigned to the administrator Hart individually.

Upon a former appeal it appeared that Johnson, for years prior to his decease, was insolvent, and that the administrators had knowledge of his insolvency. It further appeared that in 1886 he conveyed to one Harris one-eighth interest in the leasehold estate, which Harris, upon the same day, conveyed to the wife of said Johnston, and that the consideration expressed in such assignment was alike, viz.: the nominal sum of one dollar. Upon these facts appearing it was held that it was the duty of the administrators to take legal proceedings to recover the property, upon the ground that it had been disposed of in fraud of the creditors of the intestate, and that they having refused to do so, it was error in the surrogate’s court to discharge them as administrators. Matter of Hart, 60 Hun, 516; 39 St. Rep., 521.

Upon this new proceeding before the referee additional evidence was offered, tending to show that, although the nominal consideration of one dollar was expressed in the assignment, Mrs. Johnston paid her husband $2,000 out of moneys which she stated she had obtained upon a mortgage of $8,000 on property owned by her. That $2,000 by check of the person from whom the loan was obtained, she gave to her husband, subsequently receiving the assignment in question. In addition, the. administrator Hart testified that Mrs. Johnston, shortly after the death of her husband, had informed hitn that she had paid, this consideration; and this testimony is supported by that given by Mrs. Johnston, who says that she did so tell the administrator Hart, and the latter states that thereupon he applied to counsel and was told that it was not his duty to attempt to set aside the Harris and Johnston assignments.

The referee thought, as is apparent, that the former decision, if these facts were supported, would not be applicable, because they are entirely different from those appearing upon the former appeal. The referee was not inclined to give much weight to the statement of Mrs. Johnston that she had loaned the $2,000, placing his decision upon the ground that the administrator was not liable for the reason “ that the counsel for the administrator advised him to bring no action after Mrs. Johnston had declared that she paid value for the assignment.” The learned surrogate seemed to think that little weight should be given to this conclusion ; otherwise, the report would have been in this, as in other, respects, confirmed.

We think, however, that the conclusion reached by the referee might have been placed upon both grounds; and without referring again to the one upon which he placed his decision, which appears in his opinion, let us for a moment consider the effect of the testimony now presented upon the question of whether it was the duty of the administrators to bring suit, or whether or not the creditors could successfully assail Mrs. Johnston’s statement that she was a purchaser for value.

Having regard to the price, viz., $1,500, at which she sold the interest to the administrator Hart, and the sale of the entire property for $6,300, as made in the partition suit, it must be assumed that $2,000 was full value for one-eiglith interest in this leasehold, which she testifies she loaned to her husband, subsequently receiving the assignment. Assuming, nevertheless, that it was the duty of the administrator to sue, we think that if it can be shown that in such an action he could not have prevailed, in the light of all that now appears, it would be extending the liability of an administrator beyond that fixed by law to hold him responsible for not having brought a suit which he could not successfully maintain.

Had he brought such a suit, he would have been met by testimony such as was produced before the referee in this case, of Mrs. Johnston asserting that she had loaned her husband $2,000, which was the consideration for the subsequent assignment to her of the leasehold interest. She testified to the sources from which she received this money and gave the date thereof. Her testimony is that she paid $2,000 in check, which, upon cross-examination, she stated was obtained by mortgaging her house on Fourth or Park avenue to one Buchanan Winthrop for $8,000, and that out of this $8,000 the $2,000 was paid. Upon Mr. Winthrop’s examination it appeared that he had made a loan, which was secured by the bond and mortgage of Mrs. Johnston and her husband upon her house, but that in payment thereof he gave one check to Edward S. Dakin, which money was undoubtedly paid,subsequently to Mrs. Johnston, but in what checks or in what way does not appear. It does appear, however, from Mr. Winthrop’s statement, that this payment was made on the 21st day of December, 1881. And, by a bank book of Mrs. Johnston’s husband, it would appear that upon the same day he deposited in the Bank of the Metropolis the sum of $1,889.52 — or almost $2,000. The fact, therefore, that the husband and wife on that day raised a mortgage, and the further fact appearing that the husband was insolvent, renders this deposit of the intestate to some extent confirmatory of the inference that could be drawn that this $1,889.52 was given to him by his wife.

Ilowever, without regarding this as conclusive evidence, we think it clearly appears that had the testimony been elicited in an action brought by the administrator against Mrs. Johnston to set aside the assignment to her, standing as it does upon the record uncontradicted, it could not have supported the burden of proof which would have been upon the plaintiff of showing that the assignment to Mrs. Johnston was without consideration, and, therefore, void as against creditors of her insolvent husband.

Upon this new testimony elicited and for reasons given, in addition to those assigned by the referee, we think that the modification made in the report of the referee in respect to this interest, should be reversed, and that the referee’s report as presented should be confirmed, and the interlocutory and final decree of the surrogate, in all other respects, affirmed, without costs to either party upon this appeal.

Yan Brunt, P. J., and Follett, J., concur.


author: Abbott, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Matthew H. Ellis, as Adm’r, etc., of Georgiana Hurd, Deceased.

      (Surrogate’s Court, Kings County,

      Filed December, 1893.))

    Surrogate’s court—Referee’s fees.
    The surrogate has power to direct and enforce the payment of referee’s fees in his court out of the funds of the estate.
   Abbott, S.

The executor filed his account in this proceeding May 5, 1892. Objections thereto were filed, and a reference was ordered June 27, 1892. There were several hearings before the referee, and about 200 pages of testimony taken. The reference was closed, and the referee prepared his report, which was unsatisfactory to all parties, and no one would take it up. On January 11, 1893, the referee filed his report in this court within sixty days from the final submission of the case. Nearly a year has elapsed, since the filing of the report, and no steps have been taken by anyone towards the confirmation or modification of the same, and the fees of the referee remain wholly unpaid. This is an application by the referee for an, order taking his fees and directing the accounting executor to pay the same as taxed. The question whether the surrogate has power to make such an order seems to be entirely novel.

Section 2546 of the Code provides that the surrogate may appoint a referee in certain special proceedings, whose power and compensation (see also § 2566) shall be the same as a referee appointed by the supreme court for the trial of an issue of fact in an action. The fees of a referee appointed under this section, therefore, are limited to those of a referee appointed by the supreme court. It has been held that where a referee appointed by the supreme court is unable to collect his fees, his only remedy is by action. Geib v. Topping, 83 N. Y., 46. It is claimed, however, that the rule laid down in Attorney-General v. Continental Life Insurance Co., 93 N. Y., 45-47, modifies the rule enunciated in Geib v. Topping, supra, and should apply to the fees of a referee on an executor’s account, as well as to those of a referee on a receiver’s account, the powers and duties of both officers being quite analogous. The same learned judge wrote the opinions in both the cases quoted above, and I think he intended to make a distinction as to the payment of the fees of a referee dependent upon the subject matter of the reference. An ordinary action in a •court of record is a controversy between individuals to adjust their private rights as between themselves. There is no fund in court to be distributed, nor any interest or jurisdiction in the matter except to determine the dispute according to the forms of law, and have judgment recorded. The successful litigant collects, if he can, the damages, costs and disbursements so awarded to him. [f he cannot, it is his private misfortune, as to which the court awarding judgment has no responsibility and no concern.

In an accounting proceeding in the surrogate’s court the situation, power and duty of the court are quite different. The accounting executor is an officer over whom it has general supervision and control. Code, § 2472, subd. 3. It is his duty as such officer to manage, pay out and distribute the personalty according to the will of the testator and as directed or approved by the court that, by its letters testamentary, has authorized him so to do. For the purpose of such distribution the fund is in court, and there the executor seeks the final approval of his acts, with directions as to the distribution of the funds remaining and his discharge from the responsibility of his office. To ascertain the facts in the matter, the court appoints another as its officer, i. e., a referee, and being furnished with his report, approves or disapproves of the conduct of its accounting officer. Such a distinction as the foregoing must have entered Judge Rapallo’s mind when he said, in Attorney-General v. Continental Life Insurance Co., supra. “ Ordinarily a referee must look for his fees to the party who takes up the report, and not to the adverse party. Geib v. Topping, 88 N. Y., 46. In this case the party in whose favor the report was made being a receiver appointed by the court, whose legal expenses are properly payable out of the fund, the court had power, in the first instance, to order the referee’s fees paid directly out of the fund.”

I think the analogy between a receiver and an executor or administrator is sufficiently complete to apply the rule last laid down. Both are officers of a court which holds a fund as to which both must account, and from which, before distribution, the proper charges of each must be deducted. An appraiser, like a referee, is appointed by the surrogate’s court to aid it in certain directions. Section 2565 provides that his fees shall be taxed by the surrogate and paid by the executor or administrator. I think the same principle applies to the fees of a referee. This is not a question of a disputed claim against an executor, but simply the enforcing by the surrogate of the collection of part of the fees of his court. If the surrogate has the power to appoint a referee it would seem that such power could carry with it the right to direct the, compensation. Surrogate Rollins (Re Kraus, 4 Dem., 271) says: “ If the referee shall see fit to file his report without exacting his fees, provisions may be made in the decree or order that may thereafter be entered in this proceeding for the payment of those fees by such of the parties hereto as may be found justly chargeable therefor.”

There was a stipulation between the parties entered on the minutes that the referee should be allowed a fair compensation beyond the statutory fees, but the precise rate was not fixed. This stipulation is now repudiated. In such ease the court has no power to grant more than the statutory compensation. This sort of practice, however, was aptly characterized by Judge Gray in Griggs v. Day, 135 N. Y., 469, where he says, at page 472 (48 St. Rep., 470): “In the present case the defendants have sought to escape upon a purely technical objection from the effect of a written stipulation, which it was their duty to recognize, and which the promptings of a moral and honorable sense should have impelled them to abide by.”

I will tax the referee’s fees at ninety-six dollars, and he may present an order directing the executor to pay them forthwith, and also the fees of the stenographer, amounting to $160.95; in all the sum of $256.95.


author: Ehrlich, Oh. J.

text:
    Catharine B. Strakosch, Resp’t, v. Josiah R. Wray, as Treasurer of the Eleventh International Christian Endeavor Convention, App’lt.

      (New York City Court, General Term,

      Filed December, 1893.)

    Damages—Boarding-house beeper.
    The true measure of damages by a boarding house keeper against those engaging board and lodging, and not taking the agreed accommodations, is not what the parties agreed to pay, but what the former lost in consequence of the breach.
    Appeal from judgment entered on verdict in favor of plaintiff.

      Goeller & Warren, for app’lt; Julius Lehmann, for resp’t.
   Ehrlich, Oh. J.

The plaintiff, a boarding house keeper, agreed to furnish board and lodging to forty-five persons, to be sent to her house by the committee of the Eleventh International Christian Endeavor Convention, of which the defendant was treasurer. The members of the committee resolved themselves into an organization answering the description, under our Code, of a joint stock association. Code, § 1919; Ebbinghauser v. Worth Club, 4 Abb. N. C., 300: Clancy v. Terhune, 1 Ct. Ct., 239; Cohu v. Borst, 36 Hun, 562. The committee assumed charge of everything connected with the enterprise, and made all contracts required to give efficiency to the movement. The undertaking was a laudable one, capable of beneficial results. The plaintiff gave credit to the committee, and made her contract on the faith of the responsibility of its members. She might have been more exacting by requiring some one to agree to be responsible for the contract, but, considering the high character of the people with whom she was dealing, in all probability deemed this precaution unnecessary.

The claim seems to be a meritorious one, and ought to be discharged in a practical manner by its payment. If the plaintiff cannot recover in the form in which the recovery has been allowed, we fail to see how she is to obtain redress for the wrong. The only serious objection we find to the recovery is the measure of damages applied. The plaintiff was entitled to the actual loss resulting from the breach, and nothing more. The trial judge should have allowed the questions put at folio 115, and should have charged as requested bv the defendant’s counsel at folio 146.

The true measure of damages by a boarding house keeper against those engaging board and lodging, and not taking the agreed accommodations, is not what the parties agreed to pay, but what the plaintiff lost in consequence of the breach. Lydecker v. Valentine, 71 Hun, 94; 54 St. Rep., 13; Wetmore v. Jaffray, 9 Hun, 140 ; Larabette v. Wendt, 11 id., 432; Reich v. McCrea, 13 N. Y. Supp., 650 ; 37 St. Rep., 620; Wilson v. Martin, 1 Den., 602.

For this error the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.

Hewburger, J., concurs.