text:
    Helen A. Babcock et al., individually and as trustees of Henry Adams, etc., App’lts, v. Oliver M. Arkenburgh, as testamentary guardian, etc., et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Stipulation by attobnies—Order in conformity to should not be GRANTED AGAINST OBJECTION OF CLIENTS.
    When an act is attempted to be performed by stipulation in the progress of an action, an order in conformity to it should not be granted against the objection of clients, except in rare instances, even though for their benefit, moie especially not where it draws on a fund in which they were interested.
    Appeal from an order of the special term.

      H. C. Adams, for app’lt; B. F. Little, for resp’t.
   Brady, J.

This is an appeal from an order made at the special term upon the motion of R. F. Little, Esq., as attorney for O. M. Arkenburgh, as guardian, .etc., directing the United States Trust Company to pay out of the fund on deposit therein to the credit of this action the sum of $537.49 to L. H. Arnold, Jr., attorney for the defendant Algernon S."Sullivan, and sum of $109.30 to Messrs Wheeler & Cortis, “attorneys for the plaintiffs herein.” The circumstances mider which this order was made were as follows:

One Henry Adams, a resident of the state of New Jersey, made a trust deed executed June 1, 1874, providing for the conveyance of his real and personal property to the plaintiffs in this action, as trustees, for the benefit of his children and others. On the 5th of July, 1881, Algernon S. Sullivan, as public administrator of the city of New York, commenced an action for the recovery of the personal estate of the deceased grantor, situated in the city of New York, on the ground that the trust deed was void. A demurrer interposed by the defendants to the complaint in that suit was overruled by the general term (30 Hun, 89). Other suits were also brought, having for their subject matter the property, real and personal, of said deceased Henry Adams. To prevent multiplicity of suits by way of interpleader, and on other grounds, the trustees, under the aforesaid deed of trust, brought the action in which this appeal is entitled, and which is still pending undetermined before B. F. Dunning, Esq., referee. They made the public administrator and all other parties interested in the estate defendants, and asked a final and complete determination of the rights of all parties interested in the aforesaid trust deed of Henry Adams, and, as incidental to such relief,' an injunction against the further prosecution ,of the action brought by Algernon S. Sullivan as public administrator. The motion for such an injunction was denied at special term. The plaintiffs appealed to the general term, and the order made below was reversed, Mr. Justice Daniels writing the opinion of the court. By the order which was entered upon the decision of the general term, the public administrator, who had by that time prosecuted the action brought by him to judgment, was allowed to enter the said judgment as security only, to secure whatever claim the plaintiffs therein might ultimately establish, or any of them. .

The opinion of Justice Daniels, sets forth the facts here outlined, and reference is made to the said opinion and to the order, for a correct understanding of the facts of the litigation up to this point.

This judgment was accordingly entered on the 9th day of January, 1886, and included in the amount thereof was ■the sum of $537.49, disbursements of said action.

The defendant, Oliver M. Arkenburgh, as general guardian of the infant defendant, appealed to the court of appeals from the aforesaid order of the general term, and the appeal was dismissed, with costs. Wheeler & Cortis, attorneys for the plaintiffs, accordingly entered a judgment against the said Arkenburgh as such guardian, for $109.20, costs of said appeal.'

On or about the 14th of April, 1886, the attorneys for all the parties to this action, with the sole exception of the defendant, Henry C. Adams, who appears in person, signed a stipulation providing for the payment, out of the fund in the united States Trust Company, of the aforesaid $537.49, disbursements taxed, and included in the judgment entered in the suit brought by the public administrator, and also for the payment of the judgment for $109.20, costs of the appeal taken to the court of appeals by the defendant Arkenburgh, from the order of the general term. Henry C. Adams having refused to sign the stipulation, a motion was made for an order, according to the terms thereof, which, though contested, was granted, and hence this appeal.

Upon the hearing affidavits of Mrs. Babcock, Edward L. Adams and Henry 0. Adams were read, thus presenting their opposition to the motion.

It is objected that, although the appeal purports in the notice to be taken by all of these persons, and Edward C. Babcock as well, nevertheless Henry C. Adams is in fact the only appellant. And this objection rests upon the proposition that Messrs. Wheeler & Cortiss are the attorneys of record of all except Henry C. Adams, and they cannot, therefore, be appellants in person while thus represented. The answer to this is that they are in hostility to their attorneys, who signed the stipulation mentioned, and may appear properly, therefore, as to this proceeding in person and appeal in the same way. Under the circumstances, however, this court would not decline to hear and dispose of the appeal.

The design of the stipulation, as averred by Messrs. Wheeler & Cortiss, was as to them to save their clients from the payment of the whole of the sum due for disbursements. And such appears to be the fact, and their good faith is not, it is thought, questioned. But their clients object, and thus refuse to avail themselves of the asserted advantage.

The proceedings resulting in the judgment obtained by Mr. Sullivan, and in which the expenditures were made, were retained as security only by the decision on appeal as shown by the order entered, as well as by the opinion of Judge Daniels. And this is the better position to leave it in under the circumstances disclosed in all respects, until the litigation which involves it shall have been decided, and to make no disposition of any funds prior to that time.

When any act is attempted by stipulation in a pending action and the clients object, an order in conformity to it, except in rare instances, should not be granted, even though it may be advantageous to them; and more particularly if it draw upon a fund in which they have an interest. This applies, under the circumstances, as well to the sum of $109.20 as to the other sum.

The result must be to reverse the order, but, under the circumstances disclosed, no costs, it is thought, should be awarded against the respondents.

Ordered accordingly.

Daniels, J., concurs._


source: Caselaw Access Project

author: Davis, P. J.

license: Public Domain

text:
    Peter Suan, Resp’t, v. George Caffe and Adele Maria Caffe, App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Mabried women—Power to form copartnership with her husband.
    Whether under the married woman act a husband and wife may form a copartnership and carry on business as copartners, quaere.

    Appeal from judgment entered on verdict of jury.

      Charles P. Crosby, for app’lts; Edmond Huerstel, for resp’t.
   Davis, P. J.

The only question presented by this case is whether, under the married woman acts of this state, husband and wife may form a copartnership and carry on business as copartners.

Upon this question a direct conflict exists in the decisions of this court in other departments. Kaufman v. Schoeffel (37 Hun, 140), Graff v. Kinney (37 Hun, 405); and conflicting decisions have been announced at special terms. The court of last resort has not definitely determined the question. In my individual opinion the decision in Kaufman v. Schoeffel (ubi supra), is a correct determination of the law, as I think the contrary ruling is adverse to the spirit and intention of the married woman acts which were to separate the estate of a married woman from that of her husband, and to completely establish its separate character'during overture, and not enable her to so commingle it in copartnership with him as to clothe him with the power and title which copartners possess in law. My brethren think, however, that the better mode of disposing of the appeal in this case is by affirming the judgment to enable a speedier final decision by the court of appeals. I assent to that view.

The judgment is, therefore, affirmed.


author: Brady, J.

text:
    People ex rel. Jose Ferrer, Ancillary Ex’r, App’lt, v. The Commissioners of Taxes and Assessments, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Taxation—Exemption from—Funds sent from without the state for INVESTMENT ARE EXEMPT—EXEMPTION NOT LOST BY DEATH OF OWNER.
    Under Laws 1851, chap. 176 and 1 R S., 389, 419, §§ 3, 5, agents o£ moneyed corporations or capitalists shall not be liable to taxation for any moneys in their possession or under their control, transmitted to them for the purpose of investment, and that any bond, mortgage, note, contract account or other demand belonging to any person not being a resident of the state, if sent here for collection or deposited here for the same purpose, shall be exempt from taxation. Seld, That this exemption was not lost by the death of the owner of money transmitted for investment.
    Appeal from an order of the special term directing judgment for the respondents on a certiorari.

      A. B. Cruikshank, for app’lt; George S. Coleman, for resp’t.
   Brady, J.

It appears from the record that William Maden, otherwise known as William Maden and Deacon, was in his lifetime, a capitalist who resided at Cardenas, in the Island of Cuba. He died in August, 1884, and, at the time of his death, there was deposited with Moses Taylor & Co., of this city, the sum of $106,224, which was by him placed in their custody for investment. He left a will appointing the relator, a resident of Cuba as it is understood, his executor, who qualified as such in Cuba and, in order to get possession of the money deposited here and already referred to, took out ancillary letters and thereupon demanded the money from Taylor & Co., who refused to pay it over. In the meantime the respondents in the discharge of what they conceived to be their duty, assessed the relator as executor, for the sum mentioned, as taxable personal property and on his application duly and properly made, refused to cancel the same.

The proceeding which was instituted to review the propriety of the tax imposed upon the relator, is regular in all respects, therefore, the abstract question of such propriety.

The provisions of the Revised Statutes (1 R. S. [marg.], pages 389, 419, sections 3 and 5, Laws of 1851, chapter 176), declare that the agents of moneyed corporations or capitalists shall not be liable to taxation for any moneys in their possession or under their control, transmitted to them for the purpose of investment, and also, that any bond, mortgage, note, contract, account or other demand belonging to any person not being a resident of the state, if sent here for collection or deposited here for the same purpose, shall be exempt from taxation.

. In the case of Williams v. The Board of Supervisors (78 N. Y., 561) these statutes were under consideration and it was said that their provisions were clearly designed to afford to the foreign capitalist who invests his funds here, every conceivable protection. The court said ‘ His capital cannot be taxed while awaiting investment. If the securities are taken by him out of the state, he may with impunity send them back to an agent here for the collection of principal or interest. And if, instead of being removed from the state, they áre deposited here with an agent for collection, they are equally free. The capital is protected from taxation whether invested or uninvested, also whether the securities are taken away or remain here for collection. ”

“Nothing could be more plain,” said the court, “than the policy and purpose of these exemptions. They are clearly intended to further the trade and commerce of the state, and to encourage and even invite the sending of foreign capital here for investment.”

This unavoidable interpretation of the statutes referred to, their language, object and design being properly understood and carried out, disposes of the propriety of the taxation here complained of. There seems to be no appropriate answer, no presentation of any fact excepting the fund in question from the application of the rule thus pronounced. It is true that the respondents seek to sustain the validity of the tax by asserting that the fund is a demand or obligation due from Moses Taylor & Co., to the estate of which the relator is the executor, and as such is intangible ánd does not require and is not susceptible of physical possession.

.Assuming that to be so, the design of the testator in sending it here has not been changed. It was deposited for the purpose of investment, and for no other purpose, according to the record, there being nothing in the case to indicate that the testator hád changed the purpose or object in view. So far as' anything is disclosed on that subject, it appears that the relator, who was the executor of the depositor, came to this state from Cuba for the purpose of obtaining the necessary legal status to enable him to get possession of the money, and with the intention, in order to carry out the provisions of the will of the depositor, of investing at least $70,000 in bonds of the United States. And, under such circumstances, the observation of the court in Williams v. The Board of Supervisors (supra), and already quoted, is applicable, namely, “his capital cannot be taxed while awaiting investment.”

There can be no doubt, under all the facts and circumstances which control the question before us, that the fund of the taxation of which complaint is made, was sent here for investment, and left for investment, and was taxed while awaiting investment, and upon the erroneous theory that the death of the depositor made a change in its status. There is nothing to' indicate that—on the contrary, the evidence discloses that the intention of the testator was expressed even in his will, of investing a certain portion at least of the fund in United States securities.

Under these circumstances, we entertain no doubt that the fund was within the provisions of the statutes referred to, that the tax was illegal, and that the order appealed from should be reversed and the assessment directed to be cancelled. No costs, however, will be allowed to the appellant.

Davis, P. J., and Daniels, J., concur.


text:
    Nathaniel Hooper et al., Respt’s, v. C. McCulloch Beecher et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Pleadings—Allegations in the complaint not controverted by ANSWER ARE TAKEN AS ADMITTED FOR THE PURPOSES OP THE ACTION Code Civ. Pro., § 522.
    This action was brought to set aside an assignment for the benefit of creditors with preferences. The complaint alleged that the defendants B, J and B were copartners, doing business under a firm name; that plaintiff recovered judgment against the firm and issued execution thereon, which was returned unsatisfied;' that after contracting the debt on which the judgment was founded, said defendants assigned all their property to H. P. B in trust for the payment of their debts; it was further alleged that said assignment was made by the defendants B, J and B with the intent to delay, hinder and defraud their creditors. This last allegation was put in issue so far as it avers fraudulent intent by the a-swers, but the several allegations touching the making or execution of the assignment were not denied. Held, that under Code Civ. Pro., § 522, the allegations as to the making of the assignment by the several members of the firm being material and not controverted by the answer, must, for the purpose of the action, be taken as true, and that the court having found upon evidence offered that the assignment was not executed with the absent orratification of all the copartners, and the case having been disposed of upon that ground, judgment should be reversed.
    2. Assignment op firm property—General assignment for benefit OF CREDITORS.
    A sale or assignment of firm property may ordinarily be executed in the firm name by one of the partners, but when it is an assignment for the benefit of creditors it mustappearthattheseveral copartners assent to or ratify the execution of the instrument.
    Appeal from judgment of special term and from order denying motion for new trial on the ground of surprise.

      C. E. Tracy & J. V. B. Lewis, for app’lts; Franklin Bein, for resp’ts.
   Davis, P. J.

The motion for new trial on the ground of surprise was disposed of on conflicting affidavits relating to what occurred upon the trial, and upon the recollection of the justice who tried the case, as to what was said by himself in the course of the trial affecting the point in controversy between the counsel. Under such circumstances, we think we must regard the motion as rightly disposed of, and affirm the order. We think under the disposition made by the appeal from the judgment no costs of this appeal from the order should be granted.

The action was brought to set aside an assignment for the benefit of creditors, with preferences, alleged to have been made by the defendants Beecher, Johnson and Bailie to the defendant Henry Paine Bartlett. The complaint alleged that the defendants Beecher, Johnson and Bailie were copartners carrying on business in the city of New York under the firm name and style of Charles McCulloch Beecher & Co.; and after setting forth the recovery by plaintiffs of a judgment against said firm, and the issuing in due form of an execution thereon, and its return wholly unsatisfied, the complaint proceeded to allege as follows: “That after the contracting of the debt on which the aforesaid judgment was recovered, said, defendants Charles C. McCulloch Beecher, Prank R Johnson and Walter S. Bailie, on or about the 17th day of May, 1884, assigned all their property to the defendant Henry Paine Bartlett, in trust for the payment of their debts, which said assignment was recorded in the office of the clerk of the city and county of New York on the lfth day of May, 1884, and is made part of this complaint without setting forth the same at length.”

And after other allegations the complaint further averred “that the said assignment was made by the defendants Charles McCulloch Beecher, Prank E. Johnson and Walter S. Bailie with the intent to delay, hinder and defraud their creditors.”

• This last allegation, so far as it avers fraudulent intent, was put in issue by the answers of defendants; but the several allegations touching the making or execution of the assignment were admitted by not denying the same.

These pleadings presented an issue of fact upon the question of fraud, but on the question of the making, etc., of the assignment by the several members of the firm that material allegation of the complaint, not being controverted by the answer, “must, for the purposes of the action, be taken as true.” Code of Civil Pro., § 522. There was no issue on that question to be tried, and neither party was at liberty to controvert the admitted allegations of the complaint. The question of fraudulent intent, however, was not tried. The case seems to have gone off entirely on the question whether the several copartners of the firm executed or assented to the execution of the assignment.

It was in fact executed in the firm name by one of the copartners. That fact in itself was not important because a sale or assignment of firm property may be made in that form; but when it is made in the form of an assignment for the benefit of creditors, it must, under the authorities, appear that the several copartners assented to or ratified the execution of the instrument. Some evidence was given tending to show that the several partners did not assent to or ratify the execution of the assignment, but this evidence was objected to on the ground in substance that the .pleadings established the due .execution. The court held that the question was an open one, and received the evidence offered, and on such evidence found that the assignment was not executed with the assent or ratification of all the copai’tners. The case was disposed of upon that ground, and the issue of fact presented by the pleadings, to wit., the alleged fraudulent intent was not tried at all. This we think was an error fatal to the judgment. It is not important to consider whether or not the evidence given was sufficient to justify a finding that the several co-partners did assent to or ratify the assignment (though it might be argued with much force that that was the case). The defendants were not bound to meet such an issue, and have been deprived of the effect of the pleadings as controlled by section 522 of the Code, and which must be taken as true for the purposes of the action.

The judgment must, therefore, be reversed and a new trial granted with costs of this appeal to the defendant to abide the event of the action.

Daniels and Beady, JJ., concur.


author: Daniels, J.

text:
    Frederick N. Hamlin, Resp’t, v. Elisha R. Wheelock, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Contract—Consideration—What sufficient for a contract to PAT COMMISSIONS.
    One W, entered into an agreement with H, whereby W, agreed to pay to H, $2.50 on each and every 5,000 bushels of g ain purchased and sold, or sold and purchased in the course of W’s business to any customer or customers who should be introduced to him. by II, or by either of the persons so introduced. H, introduced ■ two customers. Held, that the act of introducing these customers to W, was a legal consideration for the agreement so as to entitle II, to the commissions upon the purchase and sale of grain by said customers. But that there was no consideration for the agreement to give commissions on transactions of persons introduc'd to W, by either of the dealers introduced to him by H, and as to them the agreement was nudum pactum.

    8. Same—When a beceipt mat be explained.
    Where a receipt in full was given upon the payment of a less amount than was due, through a misapprehension as to the fact. Held, that as there was no consideration for the statement that the amount paid was received in full that the receipt itself was no defense to an action for the amount then due in excess of the amount paid.
    . Appeal from an interlocutory judgment• tried before a referee.

      George W." Van Slyck, for appl’t; John L. Branch, for resp’t.
   Daniels, J.

The interlocutory judgment directs an accounting of the purchases and sales of grain made by the defendant, to ascertain the amount payable to the plaintiff out of the proceeds of such sales, under an agreement alleged in the complaint, and found to have been proven by the referee. The evidence was in conflict as to the making and terms' of the' agreement, but it was sufficiently favorable to the plaintiff to support the referee in his conclusion that the agreement was made as the plaintiff’s testimony tended to. establish the fact to be. By this agreement, as it was found to have been proven, the defendant agreed to pay the plaintiff two dollars and fifty cents on each and every five thousand bushels of grain purchased and sold, or sold and purchased in the course of the defendant’s business, to any customer or customers who should be introduced to him by the plaintiff, or by either of the persons so introduced, and the accounting directed by the referee is as broad as this contract is found to have been' made between 'the parties.

The referee has also found upon proof, which was ample for that purpose, that the plaintiff did introduce to the defendant two persons who dealt with him in the purchase and sale of grain, and upon whose transactions the plaintiff was entitled to these commissions. For the act of introducing these customers to the defendant was a legal consideration to that extent for the agreement entered into by the plaintiff. It was an act of service -performed by the plaintiff, beneficial to the defendant, which the law will permit to operate as a legal consideration. White v. Drew, 56 How., 53. And the referee was right in directing an accounting to take place to ascertain the extent of the dealings of these parties with the defendant, upon which the plaintiff was entitled to recover his commission.

But as to the persons introduced to the defendant by either of the dealers introduced to him by the plaintiff, a very different case is presented, for no act of service whatever was performed by the plaintiff in their introduction to the defendant, or by which they were induced to deal with him in the course of his business. As to those individuals the plaintiff in no manner or way interfered. He performed no act, subjected himself to no inconvenience, and conferred no benefit upon the defendant, but whatever was done in the way of securing them as customers was done by other persons who were not acting for or in behalf of the plaintiff or at his instance. What they did was done independently of the plaintiff, and could not legally form a consideration for the payment by the defendant to him of this commission.

These persons became customers of the defendant of their own volition, influenced it is true, so far as an introduction could influence their action, by the persons introduced to the defendant by the plaintiff. But what took place was in no manner dependent upon the act, authority, direction, or concurrence of the plaintiff. And in that state of the relation of these parties the dealings of these customers with the defendant formed no consideration for an agreement on his part to pay to the plaintiff this commission. He conferred as to them no benefit upon the defendant, neither did he subject himself to any inconvenience, or injury, by reason of the fact that these persons were secured as customers for the defendant. And when that may be the fact no legal consideration will exist for the support of a promise of the description of that found by the referee, relating to the business of these customers with the defendant, who were • introduced to him not by the plaintiff, but by the persons he had introduced, acting solely and exclusively in obedience to their own inclinations. For to create a legal consideration which will support a promise there must be at least some benefit conferred upon the one party or some injury or inconvenience sustained by .the other. Ainsworth v. Backus 5 Hun, 415; Freeman v. Freeman, 43 N. Y., 34, 39.

Before the commencement of the action the plaintiff had received from the defendant the sum of $300 on account of the commissions, and upon the understanding that this was all he was entitled to out of these dealings of the defendant. This proved to be a misapprehension as the fact is found to have been known at the time to the defendant himself. The plaintiff acted under this misapprehension in giving the receipt. There was, as the referee has found the fact to be a larger amount due to the plaintiff than the sum he so received, and under .this state of facts the referee was right in concluding the receipt not to form a legal defense against the plaintiff’s action. It was open, as receipts usually are, to explanation, and by that which was given, it was made to appear that the plaintiff was not bound by it beyond the fact that it was evidence that he had received this sum of $300. There was no consideration whatever for the statement that it was received in full, and under the misapprehension existing which was known to the defendant not to be correct, he could not insist upon the receipt itself as a legal defense to the action. The judgment from which the appeal has been taken should be modified so far as to restrict, and Emit the accounting to the commissions arising out of the dealings with the defendant, of the persons introduced to him by the plaintiff and as so modified it should be affirmed, without costs to either of the parties.

Davis and Beady, JJ., concur.


text:
    Robinson Consolidated Mining Co., Resp’ts, v. William H. Craig et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Evidence—Proof of handwriting—What wild qualify a witness TO TESTIFY.
    A witness may testify to the handwriting of the person whose signature it is important to prove from having seen letters, hills or other documents purporting to be the handwriting of the party, and having afterwards personally communicated with him respecting them, or acted upon them as his, the person having known and acquiesced in such acts founded upon their supposed genuineness; or by such adoption of them into the ordinary business transact ons of life as induced a reasonable presumption of their being his own writings; it is not necessary, however, in order to qualify the witness that he should have seen the person write.
    2. Sureties—Liability of—Construction of clause in lease.
    Where defendants were sureties for the payment of royalties by their principal, the lease under which he operated stating a gross sum to be in arrears from him. Held, that the clause in the lease did not require such a construction as to obligate the, principal or his sureties to pay again a sum of money previously received by his lessor from him as shown by a receipt.
    8. Statement of facts—Formal correction of, furnishes no ground FOR RE-ARGUMENT.
    A formal correction of the statement of facts upon which a decision has been made, when it cannot change the result of the case, will form no legal ground for the rehearing of an appeal.
    Motion for a reargument of the appeal in this action.

      Edward S. Clinch, for resp’t; N. P. Hinman, for app’lt.
   Daniels, J.

The counsel for the respondent is correct in his statement that the decision which has been announced proceeded upon a misapprehension of the facts connected with the offer and rejection of the receipt. But this misapprehension did not result in any different direction from that which should be made for the disposition of the appeal. For as a matter of fact, the evidence which was given was sufficient to entitle the defendants to have the receipt received and read upon the trial. It was quite similar in its nature to that upon which the reports of the manager were allowed to be read as evidence against the defendants; and it showed such a familiarity with the handwriting of the agent whose name was attached to the receipt as to prove his signature. The evidence as to this fact was given by the vice-president of the company, who had observed the signature of Carpenter, who was the agent of the company at the mine, upon communications which were signed by him to, and acted upon by, the company. This witness had not seen Carpenter write, but that was not necessary to enable him to prove his handwriting, if he had become familiar with it in another manner; and that he had become so, appears from his evidence. His statement was that he “saw his signature to the communications, whatever they were, that accompanied the transmission of those moneys,” and the moneys he referred to were the royalties sent by Carpenter from time to time to the office of the company for the ores taken out of the mine by Mr. Greer, the lessee. The witness further testified that “the knowledge that I have is derived from haying received from Mr. Johnson the various communications from Mr. Carpenter to the company, which were usually handed to me, the date of the receipt, reading them over, and general knowledge of his handwriting.” This Mr. Johnson mentioned by the witness was the president of the company, and the communications which were received related to its business and were connected with the transmission of moneys to it, and were acted upon as the genuine statements of Mr. Carpenter, the agent. And that was sufficient within the rule applicable to proof of handwriting to enable the witness to acquire such familiarity with the signature of Carpenter as to enable him to identify and verify it. For that may be done by the witness acquiring a knowledge of the handwriting of another person by the inspection and examination of authentic documents of the description of those sent by Carpenter to the company. Upon this subject the rule is stated to be that the witness may testify to the handwriting of the person whose signature it is important to prove, “from having seen letters, bills, or other documents, pm-porting to be the handwriting of the party, and having afterwards personally communicated with him respecting them or acted upon them as his, the party having known and acquiesced in such acts founded upon their supposed genuineness; or by such adoption of them into the ordinary business transactions of life as induced a reasonable presumption of their being his own writings. Greenl. Ev. [7th ed.J, § 577. And this witness was by his testimony shown to be within this latter statement of the' rule. He was brought within what the court held to be the law in Johnson v. Daverne (19 Johns., 134).

Where the statement of it was approved, that “the admissibility of the evidence must depend upon whether there is a good reason to believe that the specimens from which the witness has derived his knowledge were written by the supposed writer of the paper in question,” and that has the sanction of the case of Rogers v. Ritter (12 Wall., 317). From this knowledge and experience of the handwriting of Carpenter, the witness further testified, “the signature to the paper shown me is his signature, to the best of my knowledge. I believe it is his.” And this, in the absence of any evidence tending to discredit the statement of the witness, sufficiently authenticated the receipt to entitle it to be read in evidence.

The objection that it was not admissible under the answer, but which does not appear to have been urged upon the trial, is without foundation. For by the second subdivision of the answer, the distinct allegation is made that the sum of $3,765.71, the precise amount mentioned in the receipt, was paid to the agent by the plaintiff on the 25th day of July, 1883, the day of the date of the receipt.

The defendants as sureties for the payment of the royalties, became bound only to the extent that Greer, their principal, was in default. Neither the language of the last lease, nor the obligation or guaranty entered into by the sureties, was designed to require any more than this on their, part. What they obligated themselves to do was to become sureties for the performance by Greer of the covenants and conditions expressed in the lease, to be kept and performed by him. And while it is true that the lease stated a gross sum still in arrear from Greer, it was not designed by it to impose upon him the obligation to pay more than he was owing, but merely to require payment from him of the sum that he was in arrear to the company. The clause contained in the lease does not require that it should be so construed as to obligate Greer, or his sureties, to pay again the smn of money if it had been previously received by the company from him, as the receipt tended to prove the fact to be. A reargument of the appeal, therefore, would be of no service to the respondent, for it would still result from this state of the case that the defendants should have another trial of the action to enable them to make proof of the payment of this sum of money, which it was admitted had not been credited to Greer by the company. A formal correction of the statement of facts under which the decision already announced was made, when that cannot change the result in the case, will form no legal ground for a rehearing of the appeal.

The motion should be denied, but without costs.

Beady, J., concurs._


author: Per Curiam.

text:
    Cornelius W. H. Elting, Resp’t, v. Charles Dayton, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Reference—Order appointing referee in county other than that TO WHICH THE PLACE OF TRIAL IS MOVED.
    Plaintiff, a resident of New York city, brought an action against another resident of that place, laying the place of trial in a distant district and county for the purpose of moving when issue was joined for a reference in that district, though defendant had in due form demanded a change of the place of trial to the proper county. Held, that such practice should not he approved, but that although the motion for reference was moved and granted at the same term at which the motion to change the place of trial was granted, it could not be said to be without jurisdiction, and that it not appearing that the referee was partial or incompetent for the duties of his office, and that the reference had proceeded for some time before the appeal was taken, the order should be affirmed.
    Appeal from an order, of reference and motion to dismiss appeal on the ground that it was not taken in time.

      Joseph F. Stier, for app’lt; A. Schoonmaker, for resp’t.
   Per Curiam.

On examination of the papers in this case, both of the appeal and of the motion to dismiss, we are of opinion that the issues of the case were properly referable, and that the order of reference should not be reversed. The practice adopted in the case is certainly not commendable. That a plaintiff resident in New York should sue another resident of the same city, laying the place of trial in a distant district and county for.the purpose of moving when issue is joined for reference in that district, notwithstanding the defendant is by law entitled to, and has, in due form, demanded a change of the place of trial to the proper county, is to seek an undue advantage and ought not to have been successful. But we are not prepared to hold that the order of reference was made without jurisdiction, although moved and granted at the same special term at which the motion to change the place of trial was' granted. The referee appointed was an attorney practicing in this city, and it does not appear that he is partial or not competent to try and determine the case. It appears also that the reference had proceeded before him for a considerable period before the appeal was taken. We think the order of reference should be affirmed, but under all circumstances without costs. The motion to dismiss the appeal should be denied. Whether it was taken in time' is in controversy between the attorneys for the respective parties; but as the order of reference was never completed by the naming of a referee till the last order nominating such referee was entered, we think an appeal from that order would bring up of course the question involved in the previous order.. The affidavit on the part of the appellant claims that the last order was not served till a time preceding the notice of appeal, which, if correct (as we are inclined to think it is), would bring the appeal within the prescribed period of the Code. The motion to dismiss should be denied, but without costs.


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    The Continental National Bank of the City of New York, Resp’t, v. Hermann Koehler, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Promissory notes—Defense to—Composition deed.
    In an action brought upon notes given in composition of the debts of a firm, the defense was that they were given in violation of the terms of the composition deed, one clause of which was as follows : “We, who have hereunto subscribed our names and affixed our seals creditors of D. M. K. and B. K., composing the firm of K. & K.” Held, That this limited the • effect of the instrument to those persons who should become parties to it, and did not render it indispensible to its validity that all the creditors should execute the paper.

    ' 3. Composition deed—What will not invalidate.
    The terms of the agreement provide that the debts should be compromised for fifty cents on the dollar. Held, that it was not invalidated by the fact that one of the creditors received less than that proportion.
    3. Same—Act of one of the creditors.

      Held, That the agreement was not invalidated by the fact that one of the creditors in receiving notes to the amount due it under the copiposition deed did not release its right to hold the indorsers liable for the residue.
    4 Same—Admissibility in evidence.
    After proof had been given that the notes in suit were for part of the excess over the amount mentioned in the agreement that instrument was offered in evidence. Held, that an exception to its exclusion was well taken.
    5. Same—Estoppel.
    The president of the'plaintiff subscribed the composition deed at its office with the apparent approval of one of its directors and through the agreement then made, expressed in part by the composition, the bank received the notes and endeavored to collect them. Held, That by this it sanctioned the act of the officers in obtaining the notes, and an objection to the authority of the president to sign the composition was untenable.
    Appeal from a judgment recovered on the verdict of a jury, and from an order denying a motion for a new trial.

      Frederick Smyth and JRenno Loewy, for app’lt; John L. Cadwalader, for resp’t.
   Daniels, J.

The verdict was directed for the plaintiff for the amount unpaid on two promissory notes made by D. H. Koehler and endorsed by the defendant. The •making; and endorsement of the notes was admitted by the pleadings, and the defense relied upon on the trial was that they had been given to the plaintiff: in violation of the terms of a compromise agreement made between the firm of David M. Koehler and Bernard Kepfur with their creditors, for the settlement and satisfaction of their debts, for the sum of fifty cents on the dollar. The evidence tended to establish the fact that these two notes formed part of a series of notes given for the entire indebtedness of the firm to the plaintiff, while the bank, through its president, had become a party to and executed the composition deed. The maker of the notes was sworn and examined as a witness upon the trial, and testified generally that all the creditors of the firm had become parties to and executed the composition deed, but upon his cross-examination his statement was that persons to whom small amounts might have been owing, in sums of five dollars or less, may not have signed the instrument. But his final evidence was, “there,might be some small creditors who did not sign this paper. I can’t say certainly; I don’t think there were any; as far as my recollection goes every person signed that paper; my, intention was that every one should have signed it, and. sign upon the same basis—fifty cents.” This evidence did ■ so far tend to establish the fact that all the firm creditors-had executed the instrument as to entitle the defendant to have that question submitted to the jury, if it should be considered important for the disposition of the case. But the instrument itself was not drawn in such a manner as to require all the creditors of the firm to execute or become parties to it. It was made to include, “We .who .have . hereunto subscribed our names and affixed our seals, creditors of David H. Koehler and Burnard Kepfur, composing the firm of Koehler & Kepfur.” This limited the effect of . the instrument to those persons who should become parties < to it, and did not render it indispensible to its validity, that the small creditors referred to by the witness should any of them have executed the paper. No portion of the instrument, either by express words or fair implication, required that all these small creditors should become parties to it, and in the form in which it was made it would not be invalid simply because small amounts of the description mentioned by the witness had not become bound in the composition. Van Borkelen v. Taylor, 62 N. Y., 105.

_ A further objection to the binding effect of the composition deed was made upon the settlement of a debt owing to the Importers and Traders’ National Bank of the city of New York. This debt was settled under the authority of Wellington & Kidder, who seem to have become responsible for the amount, and with their consent the bank did receive a composition relieving this firm from habihty to it. This was paid in money by an agent of the firm, and the payment amounted to $428.24 in compromise of their note1'of S8Y9.62, which was less than the fifty cents mentioned in the compromise agreement. No harm or prejudice came to the plaintiff from this transaction, neither could it have the effect of invalidating its obhgation to carry out the compromise, as it had agreed to do, for the sum of fifty cents on the dollar.

The same observations are substantially applicable to the settlement with the Park Bank. The witness testified that he paid-that bank the same as the rest of the creditors, but in the settlement the bank did not relinquish its right to look to the indorsers of the paper for the residue of the indebtedness. But as between the bank and the firm the settlement appears to have been made for the per centage mentioned in the compromise agreement. Upon this subject the witness swore “that we did not give the Park Bank more than fifty cents. They got fifty cents of the balance there was due them on all the notes and indorsements.” But if this bank, or the Importers and Traders’ Bank, had endeavored to take advantage of the situation of the firm, and thereby secure more favorable terms than the agreement provided for, it would not invalidate the agreement itself, but would be a fraud upon the other creditors which the law would not sanction or maintain.

There was no such default in payment by the debtors as entitled the plaintiff to disregard the terms of the compromise. The authorities referred to in support of this point do not maintain the right of the plaintiff, after receiving more than it was entitled by the terms of the agreement to receive, to allege any such default. They are in principle, as well as in their facts, distinguishable from this case, and relate to and define the obligations of the debtor to the creditor whom he may have failed to pay according to the terms fixed by the compromise agreement. Dolsen v. Arnold, 10 How., 528; Penniman v. Elliott, 27 Barb., 315; Fellows v. Stevens, 24 Wend., 294, 302; Babcock v. Dill, 43 Barb., 577.

After this evidence had been given, and proof tending to establish the fact that the notes in suit were for part of the excess over the amount mentioned in the agreement, that instrument was offered in evidence, but it was objected to and excluded by the court, and the defendants’ counsel excepted to the ruling which the court then made. This exception was well taken. The instrument had been sufficiently proved to entitle it to be read in evidence in the case. It could not be rejected because of anything deposed to by the witness in the bankrupt proceeding, even if his affidavit made there should be held to be in conflict with his testimony upon this trial. It was still for the jury to say whether he had testified truthfully in this case, and whether the facts to which his evidence was directed were satisfactorily established by it, and if they were the defendant was entitled to maintain his defense.

The objection to the authority of the president of the bank to • subscribe the composition is not tenable. The business was done at its banking office with the apparent approval of one of its directors, and through the agreement then made, expressed in part by the composition, the bank received those notes, and by endeavoring to collect them it has sanctioned the act of its officers in obtaining them. The law will not permit it to do that, and at the same time repudiate the obligation through which this end was secured. The judgment in the case should be reversed, and the verdict set aside, and a new trial ordered, with costs to abide the event.

Davis, P. J., and Brady, J., concur.


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    William Fay, App’lt, v. Isaac N. Hebbard et al., Resp’ts.

      (Supreme Court, General Term. First Department,

      Filed December 30, 1886.)

    1. Attorneys—Not to buy clam—Code Crv. Pro. § 73.
    There is nothing in Code Civ. Pro., § 73, to prevent an attorney or counsellor from buying anything named in the act for any other intent, use, or purpose than that of bringing an action thereon. The purchase of a judgment for the purpose of collecting it as such by execution, or any other mode that simply enforces the judgment or its lien is not within the letter of the statute or its mischief.
    2. Same—Evidence—When admission by attorney not competent as EVIDENCE.
    An attorney is not competent to make admissions in conversation with third persons which will be evidence against a client as to the facts of his case.
    Appeal from judgment of special term, dismissing complaints.

      Abner C. Thomas, for app’lt; J. Tracy Langan, forresp’ts.
   Davis, P. J.

This action was brought by the plaintiff as assignee of a judgment, to have the judgment declared a lien on certain land of defendant Hebbard, by establishing that the conveyance to him of the land by the judgment debtor was a mortgage only to secure a debt of such judgment debtor and thereupon to redeem by paying off the mortgage on the lands and selling the same on the judgment. It was alleged as one of the defenses that the judgment had been bought and paid for by Abner 0. Thomas, the attorney of the plaintiff in the suit in which it had been recovered and title thereto taken in the plaintiff’s name for the purpose of bringing suit thereon for the benefit of Thomas.

It was admitted in the case that the plaintiff Mr. Fay, is a clerk and stenographer in the office and in the employ of Mr. Thomas. A witness was then called who testified that Mr. Thomas told him that the check which paid for the assignment was made by him payable to the order of Mr. Fay and endorsed by Mr. Fay.

This evidence was objected to as immaterial, and the objection was overruled and exception was taken. A motion to strike it out was also denied, and an exception was taken to the denial. The defendant in the judgment was called as a witness for defendants. He was asked if he had had any conversation with Mr. Thomas about the purchase of the judgment, and to state what was said in such conversation. This was objected to by plaintiff, and the objection overruled and an exception taken. There was nothing in the case to show that Thomas’ declarations were competent evidence against the plaintiff, for outside of those declarations nothing appeared that would justify this admission. An attorney is not competent to make admissions in conversation with third persons which will be evidence against a client as to the facts of his case. The plaintiff was not shown to be present at the conversation, and the mere incident that he was a clerk and. stenographer employed in his office did not subject him to the effect of any casual declaration of Thomas as evidence against him. ' There was not enough shown to justify the admission of the statement of Thomas as evidence against plaintiff. The exceptions were, therefore, well taken.

Without the declarations of Thomas there was nothing to warrant the court in finding that Thomas was the buyer of the judgment, and the plaintiff his mere agent, to enable him to purchase it in violation of the Statute. For this error a new trial must be granted.

But we doubt very much whether the purchase of a judgment to enforce an alleged lien upon property of a person not a party to the judgment is within the prohibition of the statute. The judgment-debtor is not sued upon the judgment. If it were brought by an attorney to use over against the judgment- debtor, as might have been done before the restrictions imposed by the Code or statute, the transaction- might well be held within the inhibition. But the purchase of a judgment for the purpose of collecting it as such by ■ execution-, or any other mode that simply enforces the judgment or its lien is not within the letter of the statute or itsmischief. Section 73 of the Code of Civ. Pro. provides that “An attorney or counsellor shall not directly or indirectly buy, or be in any manner interested in buying a bond or promissory note, bill of exchange, book debt or other thing in action, with the intent and for the purpose of bringing an action thereon.” There is nothing in this to prevent an attorney or counsellor from buying anything named in the act for any other intent, use or purpose than that of bringing an action thereon. If an attorney or counsellor buy a judgment with intent to sue the judgment-debtor thereon, we think it would be deemed “a thing in action ” within the meaning of the provision. It would be within the spirit of the law, and the mischief to be prevented; but it is quite another thing to buy a judgment with the intent to enforce it by execution against the judgment debtor, or by pursuing the lien it may have on his property in his own or anothers hands. To enforce such a lien of a judgment is not to bring an action thereon” within the meaning of the Code. Warner v. Paine, 3 Barb. Ch., 620; Brotherson v. Consaulus, 26 How. Pr., 213.

In this case the judgment-debtor is not made a party to the action, and it was not necessary that he should be. He cannot be harassed in costs nor annoyed by another suit on the cause of action merged in the judgment.

In Wetmore v. Hegeman the court of appeals say “ The aim of the statute was to prevent attorneys from purchasing for the express purpose of instituting suits thereon and thus harass debtors and making costs.” Wetmore v. Hegeman, 88 N. Y., 73.

In this case the plaintiff seeks only to ascertain how much is due the defendant on a mortgage of the judgment-debtor’s real estate, on which the judgment is an alleged lien, for the purpose of paying the' alleged mortgage and collecting the judgment out of the lands when redeemed from the mortgage.

We think the court erred in holding that there was legal evidence that the plaintiff bought the judgment for the attorney; and also in holding that such a purchase, if made by an attorney for the mere purpose of establishing and enforcing a lien of the judgment, was within the statute.

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

Brady, J., concurs in the result.


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    Hart Z. Norton et al., Resp’ts, v. Christopher B. Keogh, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Evidence—Parol evidence can be given to vary a contract to which THE PARTY IS A STRANGER.
    Where the plaintifls- in an. action for the value of certain work, labor and material performed and used upon the property of one K., commenced to do the -work, etc., under a written contract made between them and one B., who had said work in charge for K. But B. dyir:g when the work was only one-third done, K. thereupon took charge of the work and directed the plaintiffs to proceed with its performance, which they after-wards did. Held, that K. was entitled to prove an oral agreement which varied the written contract. That the rule excluding paroi evidence to add to, enlarge or restrict a written instrument does not apply to a person who is a stranger to the agreement.
    Appeal from a judgment recovered on the report of a referee.

      W. T. Birdsall, for app’lt; A. M. & G. Card, for resp’ts.
   Daniels, J.

The judgment was recovered for the amount of the plaintiffs’ bill for labor and materials as plumbers in eighteen houses erected upon the property of the defendant. They were not employed to do the plumbing by him or any person acting under his authority, but commenced the work under a written agreement made between them and Anson B. Birdsall, having it in charge, or being the person who was to perform it. He died after about one-third of the work" had been .done, and the defendant then took charge of it and directed the plaintiffs to proceed with its performance, which they afterwards did. By his answer it was stated that he assumed Birdsall’s obligations and rights under the agreement and became entitled to its benefits. But it was further stated in this part of the answer that the quantity, style, finish, workmanship, quality and all other matters pertaining to the plumbing and gas fitting were embodied in written specifications and plans submitted to and examined by the plaintiffs and forming the basis of their agreement with Birdsall. And upon the trial of the action they proposed by the cross-examination of the plaintiffs to prove these specifications. They were not referred to in the agreement itself, and when the proof was offered it was objected to by the plaintiffs “for the reason that the paper speaks for itself and is embodied in a written instrument, and any conversation that took place prior to that time would not now be admissible. It is illegal and improper.” This objection was sustained by the referee, and an exception was taken to the ruling by the defendant. And questions which were put to the witness following this exception designed to prove that they were specifications were excluded by the referee. The witness did, however, state that he never saw the papers shown him that he knew of, but that was not sufficient to correct the error in the preceding ruling if they were improperly made. And that they were improperly made results from the authorities defining the rule, under which the referee excluded the evidence, for the defendant was not stated in the agreement to be a party to it; neither did it in any manner refer to him, but he was a stranger to the agree ment, assuming its performance after the death of BirdsaE, upon the understanding mentioned by him that it proceeded upon and foEowed the acceptance of the specifications. And if that were the fact he was entitled to show it by the evidence proposed to be given on the trial, for the rule excluding paroi evidence to add to, enlarge or restrict a written instrument does not apply to a person who is a stranger to the agreement. Overseers, etc., v. Overseers, 10 Johns., 229; McMaster v. President, etc., 55 N. Y., 223; Brown v. Thurber, 77 id., 613.

It sustains the agreement when reduced to writing and subscribed by the party against the effect of such evidence when offered by him, or in favor of others standing in privity with him. But such was not the relation of the defendant to this agreement, for this term “privity ” has been defined in law to include only mutual or successive relationships to the same rights of property. 1 Greenleaf on Evid. (7th ed.),_§ 189. And it was so considered and understood in the-case of Campbell v. Hall (16 N. Y., 575).

What the defendant was entitled under his answer to prove was, that he had adopted and assumed BirdsaE’s agreement so far as it had been made upon the basis of the written specifications proposed to be proved. And if he had made such proof then the plaintiffs would be entitled to recover in the action only as their work was done in conformity to the specifications. And where they had failed in that respect they might very well be hable in damages for their omission or defective work to the defendant.

The subsequent proceedings upon the trial were not such as to obviate the effect of the ruhngs made as to this proof by the referee. And because of these ruhngs and others made concerning evidence received by him not free from ■difficulty, the judgment should be reversed and a new trial ordered, with costs to abide the event.

Davis and Brady, JJ., concur.


author: Daniels, J. Brady, J. Davis, P. J.

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    John A. Kernochan, App’lts, v. Angeline A. Murray, et al., executors, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Guaranty—Construction of.
    Where a firm guaranteed the payment of a dividend of seven per cent per annum upon stock issued by a company as long as held by a party, and that they would make good to the party all deficit from the account: Meld, that the guaranty was a personal contract, and that no recovery could be had against the personal representatives of the surviving member of the guarantor for dividends accruing and becoming payable since his death.

      Alpeal from a judgment recovered on trial at the circuit.

      Jacob F. Miller, for app’lt; Sidney V. Lowell, for resp’ts.
   Daniels, J.

The action i—The s upon a guaranty executed and delivered to the plaintiff by De Mill & Co., by which they agreed with him:

“In consideration of your having purchased, upon my •representation as to their value, forty shares of the capital stock of the Albemarle Swamp Land Company, and of one dollar to me in hand paid, I do hereby guarantee that you shall receive, as long as you hold said stock, dividends equal to seven per cent per annum, or I will make good to you all deficit from such account.
“DE MILL & CO.
“New York, August 21, 1871.”

The company failed to pay dividends upon the stock, and an action was previously brought to recover such dividends as should have been paid and were within the agreement contained in the guaranty, and had accrued during the lifetime of the survivor of the firm of De Mill & Co. In that action a recovery was held to be legal for the seven per cent mentioned in the guaranty against the executors of this surviving member of the firm. But the decision then made does not control this controversy, for the dividends forming this cause of action accrued and became payable after the decease of the surviving member of the firm, and the court at the trial, considering the guaranty to be a personal contract and obligation, directed the verdict in favor of the defendants. And whether this direction, for this or any other reason, was legally right, is the only point now required to be decided for the disposition of the appeal.'

The obligations of the guarantors are to be determined by the language employed in the written guaranty. 1 And as ’ the persons subscribing it were sureties for the company whose stock was sold, their agreement is to be strictly construed, or in other words, it is not to be extended by a construction carrying it beyond the language made use of in it, and the clear, or reasonable, implications arising out of the same. Walsh v. Bailie, 10 John. 180; Miller v. Stewart, 9 Wheaton, 681; United States v. Boyd, 15 Peters, 187.

Under this rule, considering at the same time the language of the guaranty, the point arises whether the persons executing it intended to obligate themselves to pay the dividends which the company should fail to pay upon the stock beyond the periods of their own lives or the life of the survivor, for in contracts of guaranty and suretyship the intention of the parties, as it may. be disclosed by the language employed, is to govern the éxtént of the liability. By one clause contained in this guaranty, if that stood alone by itself, the design would be indicated of securing to the plaintiff the advantage of the agreement as long as he should hold the stock purchased by him, but the next succeeding and concluding clause of the guaranty restrains the obligation intended to be assumed by the guarantors, for the payment or payments to be made by them. For according to this language, if the plaintiff failed to receive or secure the dividends, all that the guarantors agreed to do was personally to make good to him all deficit from such amount.

They and they alone, were the persons, who agreed to make the payments, and from that circumstance it is to be assumed that they did not intend to extend the obligations of the guaranty beyond their own lives or the life of the survivor of the two. A contract somewhat similar in principle to this was considered in Dickinson v. Calahan (7 Harris [Penn.], 227). • That was a contract for the delivery of lumber, which the court held to be personal and not to impose any legal obligation for its performance after the decease of the person making it. In Blands Admr. v. Ulmstead (11 id., 316), the same principle was followed, and so it was in Quains Appeal (10 id., 570), where it was held that the liability to pay a ground rent was personal, and did not extend beyond the life of the convenator and this was followed in Williams Appeal (47 Pa., 283). A point more nearly connected with the present controversy was examined in Harriss v. Fawcett (Law R., 15 Eq. Oases, 311), in which the conclusion was reached that the guarantor, or surety, was not liable after his own decease, for advances made to the principal debtor, and this was affirmed in L. R., 8 Oh. Appeals, 866. The subject was very fully considered in these cases and the liability of the guarantor deemed to terminate with his decease, especially as knowledge of that fact, had been acquired by the creditor. A similar decision was made in Coulthart v. Clementson (L. R., 5 Queens Bench Div., 42). The subject was also examined in Hauck v. Craighead (67 N. Y., 433), where the liability of the representatives of a deceased surety was considered by the court, and very strong language was made use of declaratory of what was deemed to be the legal rule applicable to such a case. For it was there said: “If Pike was a mere surety for Harrison then by the death of the surety his estate was absolutely discharged from all liability upon the joint obligation both at law and in equity, and no action could be maintained against his representatives either severally or jointly with Harrison.” Id., 436. And as much as that was also said in Risley v. Brown (id., 160).

• This case, in its controlling aspects, differs from those of Bradley v. Burwell (3 Denio, 61), Green v. Young (8 Greenl. [Me.], 14), and White's Exrs. v. Com. (39 Penn., 167), and the others relied upon in support of the appeal. For by the terms of the obligations themselves, then disposed of, the liability was extended over a fixed period without any qualification reducing it. And being fixed in this manner, the only authority the courts had was to carry the liability into effect, as it was made by the parties. This was also the nature of the obligation in Lloyds v. Harper (Law Reports, 16 Ch. Div., 290), where the liability of the surety was extended over the full period during which his son should continue to be an underwriting member of the association. They differ from the present case in the circumstance that what was to be done under the guaranty was to be done by the guarantors themselves, and for only periodically recurring liabilities. The contract was personal by the clear implication of the language made use of in framing the guaranty. And having been made in this manner, as the liability of the guarantor is not to be extended. by construction, no case was made out for the recovery of the dividends forming the present right of action. While the decisions made are not altogether harmonious, they preponderated in favor of this result.

Other points have been made in support of the appeal, chiefly, however, relating to the effect of the preceding litigation between these parties. They do not require to be considered as long as the executors are not liable to make the payments now claimed from them, according to the terms of this guaranty.

The judgment appears to be legally sustained, and it should be affirmed.

Brady, J.

I concur on decision in case of Kernochan v. Murray, heretofore decided.

Davis, P. J.

(dissenting).—The contract sued upon is not a guarantee of the contract of the Swamp Land Company, but an original and independent one. The relation of principal and surety did not exist between the company and DeMill & Co., but the undertaking was made for their own benefit for a consideration paid to and received by themselves.

In my judgment, the principle that relieves the representatives of sureties under circumstances similar to those p-g-isting in this case has no application to original contracts like this entered into by the makers for their own advantage and benefit.

The question in this case was not really involved in the former case decided by this court. That was an action to recover for dividends accruing before the death of the makers of the contract and although the opinion contains observations which would seem to cover the question now involved/ it cannot be regarded as judicially disposed of. I think the judgment should be reversed.


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    People ex rel. Sigmund Neustadt, as ex’r and trustee of the estate of Adolph Hallgarten, deceased, v. Michael Coleman et al., commissioners of taxes, etc., of the city of New York.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Taxes and assessments—Commissioners can correct assessments by STRIKING OUT NAMES—EXECUTOR LIABLE TO BE TAXED EOR ALL PROPERTY LOCATED WHERE HE RESIDES AND UNDER HIS CONTROL.
    Upon certiorari to review the legality of an assessment made against the relator and two others as executors, etc., for the personal estate of relator’s testator, it was shown by the affidavit of the relator that two of the three executors resided out of Hew York county, but it was not denied that the property itself, concerning which the assessment was made, was located in the city of Hew York and under the control of the executor, the relator herein, who resided in Hew York city. The property consisted of railroad bonds registered in the name of all three executors, money loaned on bond and mortgage taken in the names of all three as executors, etc,, and other registered bonds which still stood in the name of the testator: Held, that under the power given by section 820, chapter 410, Laws 1882, the commissioners were authorized to correct the assessment by striking out the names of the two non-resident executors; that the relatrr being the resident executor, was properly assessed for the full amount of the property. See 1 Revised Statutes (6th ed.), p. 934, § 5.
    Writ of certiorari to review the legality of an assessment made against the relator for the personal estate of the testator, amounting to the sum of $375,000.

      George A. Strong, for relator; George S. Coleman, for commissioners.
   Daniels, J.

After the assessment was made by the commissioners, assessing the executors for personal property to the amount of $375,000, an application was made in their behalf for the correction of the assessment. This was supported by the affidavit of two of the executors, stating that John Duer, one of the three executors, resided in the county of Richmond, in this state, and Julia Hallgarten, another, resided in Hamburg, in Germany. It was not denied in either of the affidavits that the property itself, concerning which the assessment was made, was located in. the city of New York, but for the reason that two of the executors resided out of the city and county of New York, it was urged before the commissioners that no assessment on account of this property could be made by them. In support of the application it was stated in the affidavit of the relator that “ part of said property consists of railroad bonds registered in the name of all three of the executors; another part consists of moneys which have been loaned upon bond and mortgage taken in the names of all three executors as trustees, and the remainder consists of bonds which were registered in the name of Adolph Hallgarten during his life-time, and have never been changed. All of the above-mentioned securities are kept in a safé deposit vault, in a box or safe, rented by said Adolph Hallgarten during his life-time and still standing in his name, but the rent of which since his death has been paid by his executors.” And because he was the only executor residing in the city of New York, the objection was taken that no assessment whatever could be made on account of this property, or if it could be, that his one-third interest in it as executor, amounting to the sum of $125,000, should be the extreme limit of the assessment. The commissioners held adversely to these objections, and that the assessment could not be reduced in amount, but that it should be corrected by striking out the names of the two executors not residing in the county of New York, and remain as an assessment for the full amount against the relator.

Authorities have been relied upon in support of, the position that the commissioners could not change the assessment by striking out the names of the two non-resident executors and allowing it to stand against the relator alone,

• but these authorities are not controlling over the controversy. For in the case of Clark v. Norton (49 N. Y., 243), the assessment was held to be illegal because of the addition ' of the name of a person as owner of the real estate after the period for inserting that in the roll had expired. And . upon a like want of authority the case of Westfall v. Preston (49 N. Y., 349), was decided; a similar want of authority was presented in Overing v. Foote (65 N. Y., 263). And in Stewart v. Chrysler (100 N. Y., 378), the assessment itself , was not made to the person against whom the law provided that should be done. While in People v. Forest (96 N. Y., 544), the assessment was increased from $4,000 to $40,000, after the time in which the power to make the increase could by law be exercised. In the present case, the commissioners acted within the time allowed for that purpose by the statute, and their decision should be sustained if their action is not to be held to have been illegal in some other respect. The case of Stinson v. Boston (125 Mass., 348) is also inapplicable to this case, for it was decided upon the effect of a statute of the state of Massachusetts, excluding the power to assess the owners of shares of ships and vessels, in the place where the other business of the partners was carried on, when they themselves resided elsewhere. And in Mayor, etc., of Baltimore v. Sterling (29 Md., 48) the law failed to indicate or direct how the two trustees not residing in the place where the assessment was made should be respectively assessed. In Hardy v. Yarmouth (6 Allen, 277), the decision also proceeded upon a statute of the state of Massachusetts, providing for the assessment of the estate of the testator only in the town where he resided, until notice should be given of the names of the persons to whom it had been distributed, as parties in interest; while the case of State v. Matthews, cited as reported in 10 Ohio State, 437, has not been found because of the inaccuracy of the reference. Neither one of these authorities from the reports of other states arose under any such provision of law as the legislature of this state has1 prescribed for the assessment of personal property.

The law as it has been here enacted, and was in force at the time when the assessment in controversy was made, has provided that “Every person shall be assessed in the town or ward where he resided when the assessment is made, for all personal estate owned by him, including all. personal estate in his possession, or under his control as agent, trustee, guardian, executor or administrator; and in no case shall property so held under either of these trusts be assessed against any other person.” 1 Eev. St. (6th ed.), 934, § 5.

What this statute has directed is that the executor to be assessed shall reside in the town or ward where the assessment is made, and shall be possessed of the personal estate forming the subject of the assessment. The relator has not denied that his residence subjected him to assessment under the direction contained in ,this statute and the laws specially applicable to the city of New York. Neither does it appear that any part of th$ property for which he has been assessed was not in his possession. What he has denied is that it was not in his possession or under his control “any more than it is in the possession and under the control of my co-executors, as will appear by the following facts,” being those already extracted. It is to be assumed, therefore, as that seems to have been done on the hearing before the commissioners, that the personal estate was at the time in the city of New York where this executor resided and that the assessment could lawfully be made by them, provided the relator can be held to be a person having the control or possession of this personal estate. And that he can be held to have had the possession or control within the significance of these terms appears to follow from the title vested in him as an executor. For “if a man appoints several executors they are deemed in law but as one person representing the testator, and therefore the acts done by one of them which relate either to the delivery, gift, sale, payment, possession or release of the testator’s goods are deemed the acts of all, for they have a joint and entire authority.” Murray v. Blatchford, 7 Wend., 583, 617; 4 Bacon Abr. (3d ed.), 1860, pp. 37, 38.

And where there may be two or more executors, and one of them shall die, the survivors become vested with the title to the personal estate. And this is upon the same principle already mentioned, that if there be several executors, they are regarded in the law as one person. They have a joint and entire interest in the effects of the testator, including chattels real, and in case of death such interest vests in the survivor. 1 Williams on Ex’rs (6th Am. ed.), 286; 2d id., 980. And this has been embodied in a statutory provision of this state. 3 R. S. (6th ed.), 83, § 59. And for all practical purposes it vests in each of the executors a title similar to that vested in joint tenants. Each may discharge debts due to the estate by receiving payment (People v. Keyser, 28 N. Y., 226), or release real estate from the Ben of an incumbrance. Stuyvesant v. Hall, 2 Barb. Ch., 151. The title of a joint tenant has been declared to extend to the whole of the property jointly held, and his possession to be that of the entirety as well of every parcel as of the whole (4 Kent Com. [7th ed.], 375), and the relator was vested with this title and possession, over the personal estate of the testator, which the commissioners assessed for as to that he was a trustee for the next of kin, holding it in trust for their benefit. Perry on Trusts (2d ed.), 94; 2 Story Eq. Jur., § 1208. And he is designated a trustee in the section of the statute previously quoted declaratory of the power of the commissioners over the assessment. And it is quite well settled that trustees are in equity regarded as joint tenants. Id., § 343.

These principles, sanctioned as they are by the authorities, vested the relator with the title in trust to this property. And as it was in his possession, or under his control, and he himself was liable to assessment as resident of the city of New York, the commissioners were right in making the assessment of it to him, for under the statute it could be made to no other person. The executor Duer had not the possession of the personal estate where he resided, neither had the executrix Hallgarten. And it follows that if the relator could not be assessed, then this property will escape taxation. When the proceedings were before them, as they were upon his application, and also on the application of the executor Duer, and it was made to appear to the commissioners that the assessment should be against the relator alone, they were authorized to correct the assessment in that respect by striking out the names of the two other executors. For by section 820 of chap. 410 of the Laws of 1882, very general authority has been given to the commissioners to correct their assessments. It has not been restricted to a mere reduction of the amount of the assessment, but if in the judgment of the commissioners “the assessment is erroneous, they shall cause the same to be corrected, and fix the amount of such assessment as they believe to be just,” etc. The authority delegated to them was to correct errors appearing to have intervened in the assessment, and as this assessment was shown to be erroneous by including in it the names of the non-resident executors, those names were very properly stricken out of the assessment. By making this change, neither the assessment itself nor the liability of the relator was in any manner increased. It was still for the same amount, and whether he himself shall be required to pay the tax, or it may be paid by him in conjunction with the other two executors, will make not the slightest difference to the estate. For whoever may pay it, it will either be paid out of the funds of the estate committed to the charge of the executors, or the executor paying it will reimburse himself out of those funds. If that correction had not been made by the assessors themselves this court could have made the correction under section 2141 of the Code of Civil Procedure upon the hearing of the writ of certiorari. And that would have left the assessment as the commissioners did leave it for their final action, and the court certainly could do no more than the commissioners should themselves do to correct an error in their proceeding. The assessment which was made was accordingly right, and it should be affirmed, with costs.

Davis and Brady. JJ., concur.


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    Gottleib Weber, App’lt, v. Nathan Manne, impl’d, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

      1. Replevin—Undertaking por return op property to dependant— Code op Civ. Pro., §§ 1698-1704.
    In an action to recover possession of personal property a schedule of the articles claimed was annexed to plaintiff’s affidavit; the sheriff took possession of part or all of the articles, and defendant required possession of so much of the property as had been replevied by the sheriff, and to entitle himself to such return presented an undertaking executed by himself and two sureties in double the amount of value of all the property. This undertaking, without any evidence that such was the fact, recited that plaintiff had caused a part only of the property to be replevied, and that defendant required a return to him of the chattels so replevied, and restricted tlie-liabilily of the parties executing the undertaking to the value of the chattels so replevied. Meld, that under Code Civil Procedure, section 1698, where the value of separate articles has not been stated in the affidavit, but a gross value placed on the whole, the entire value is to he deemed that of the part replevied, in proceedings to procure a return thei eof to the defendant.
    2. Same—What not considered material error—-Extent of liability of sureties.

      Held, that the recital in the undertaking that only part of the chattels had been replevied was not a material error, for whatever amount of the property was replevied by the sheriñ, the persons executing the undertaking would he liable to plaintiff in event of liis success in the action, and that this was the extent of the liability of the sureties in case the undertaking complied exactly in form with the Code requirements.
    Appeal from an order approving the form of an undertaking given on behalf of the respondent in an action of replevin.

      Abram Kling, for app’lt; Richard M. Henry, for resp’t.
   Daniels, J.

The action was brought to recover the possession of a large number of articles, a schedule of which was annexed to the affidavit of the plaintiff. The sheriff took possession of a part or all of the articles, and this defendant required a return of so much of the property as had been replevied by the sheriff; and to entitle himself to that return an undertaking was presented executed by himself and two sureties in the sum of $2,830:64. This was double the amount of the actual value of all the property as it was stated in the affidavit made by the plaintiff. And it was all in that respect which the defendant was obligated to do to entitle himself to the return of the property according to section 1698 of the Code of Civil Procedure. For by that section even if the whole of the property mentioned in the affidavit has not been replevied when the value of the different articles has not been stated, but a gross value placed upon them all, the entire value mentioned in the affidavit is to be deemed the value of the part replevied in the proceedings to procure a return thereof to the defendant. But this undertaking, without any evidence that such was the fact, recited that the plaintiff had caused a part only of the property to be replevied and that the defendant, executing or giving the undertaking, required a return to him of the part of the chattels so replevied. And because of this recital and the restriction of the liability of the parties executing the undertaking to the value of the chattels, so replevied, it was objected to as not in compliance with what the law had required for this purpose. And this objection seems to have been well taken, for as no separate value was given to either of the articles, the undertaking on behalf of the defendant both by sections 1698 and 1704, was required to be for double the value stated in the affidavit, of all the chattels. The former of these sections is clearly expressed to this effect and there is no ambiguity in the latter, for it has required by subd. 2 of sec. 1704, that the undertaking shall be to the effect that the persons executing it, are bound in a specified sum, not less than twice the value of the chattel as stated in the affidavit of the plaintiff, for delivery thereof to the plaintiff, if that shall be adjudged, etc., and accordingly the undertaking should have been in the usual form for this amount. And that would impose no unlawful burden either upon the defendant, or his sureties, for they would in no event be liable for more than the value of the chattels replevied, the possession of which should be secured by means of the undertaking. That is the effect of this section. It provides first to entitle the defendant to a return that he shall serve upon the sheriff a notice that he requires a return of the chattels replevied, and to obtain that return where a separate valuation has not been placed on different articles, the undertaking in double the value mentioned in the plaintiff’s affidavit has been made indispensably necessary; but at the same time, the extent of the liability is limited to the value of the property obtained under it, and it is that of the chattels replevied.

But the additional statement in the undertaking that only a part of the chattels had been replevied, cud not qualify the liability of the persons executing it. For whatever the chattels might be that were replevied, and the return of which should be secured by means of the undertaking, the sureties will be liable only for then-value, in case the plaintiff succeeds in maintaining Ms-, right to the recovery of their possession, and they would be liable to no more than that if no statement had been-made in the undertaking asserting the fact to be that only a part of the chattels had been replevied. The law has not. been framed in such a manner as to impose on the sureties any larger measure of liability than this in any event. . It is for the value of the chattels replevied that they may be made liable, and for no liability beyond that. The case of Diossy v. Morgan (74 N. Y., 11)] which arose and was decided under the preceding Code, is not in conflict with this construction, for all that was held there was that the persons executing the undertaking were estopped from denying that the property had been replevied and was in the possession of the sheriff. What that property was, or its value, the sureties were not held by this case to be estopped from proving as a matter of fact on the trial of an action brought against them on their undertaking.

The recitals in the undertaking that only a part of the property had been replevied cannot, therefore, be held to prejudice the plaintiff, for whatever amount of the property was replevied by the sheriff the persons executing the undertaking would be liable to the plaintiff, if he succeeds maintaining his action, and that is all that the sureties in the undertaking could be made liable for if it had been made out precisely in the form in which it should have been by these sections of the Code. The order from which the appeal has been taken should be affirmed, but as there was this defect in the undertaking, now considered not to be material, it should be without costs.

Davis, P. J., and Brady, J., concur.


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    John I. Tilton, App’lt, v. Susan M. Vail, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Tenants in common—Who abe—Unity of intebest not necessaby to obeate belation.
    Tenants in common are such as hold by several and distinct titles, but by unity of possession, and, therefore, one may hold his part in fee simple, and the other in tail or for life. There need be no unity of interest to create the relation.
    3. Partition—Code Crv. Pbo., § 1533—Tenant by the couktesy may maintain.
    J. R. Y. died- leaving him surviving a widow and several children, om of whom intermarried with plaintiff, had issue and died. In an actioi brought by this plaintiff for partition of lands left by J. R. Y.: Held, tho plaintiff as tenant by the courtesy could maintain the action under the pr< visions of Code Civ. Pro., § 1533.
    Appeal from an order denying a motion for a refereno to take proof of title.

      Wm. C. Beecher, for app’lt; Alexander Thain, for resp’i
   Brady, J.

This action was brought for the partition real estate situate in this city.

Joshua R. Vail died seized of the premises in Januar 1871, leaving him surviving his widow Susan M. Vail, h: son John R. Vail, and his daughters Adelina M. Vail a: Lilla B. Vail. Lilia, on the 15th of December, 1881, inte: married with the plaintiff. On the 30th of June, 1884, s' gave birth to a male child who lived only for a day, a: she died upon the 8th of July following, and intestafc leaving her mother, sister, brother and the plainti] surviving.

The complaint avers that the plaintiff and defendant a: tenants in common in possession, which is admitted, ar it is also admitted that the former is entitled to an esta] in the premises as tenant by the curtesy in the undivid one-third part which his wife Lilla B. Tilton took subje to the dower right of the defendant Susam M. Vail, a: incumbrances, if any. But the defendants, by answi although admitting the facts which have been stated, stil upon information and belief, claim that the plaintiff has J such interest in the premises as entitles him to mainti the action. And this view was sustained by the learn] justice to whom application was made for an order of reference to take proof of title, and who denied it upon the ground that the plaintiff could not maintain the action, and which is stated without elaboration by the learned justice.

Prior to the enactment of the Code Procedure, it was declared in a series of cases that a tenant by the courtesy could maintain an action for partition. Riker v. Drake, 4 Edw. Ch., 668; Sears v. Hyer, 1 Paige, 483, 486; Freeman on Co-tenancy and Partition, § 456; 5 Waite’s Practice, 30. The Code, by section 1532, provides that “Where two or more persons hold and are in possession of real property, as joint tenants or as tenants in common, in which either of them has an estate of inheritance for life or for years, any one or more of them may maintain an action for the partition of the property, according to the respective rights of the persons interested therein.” And the proposition is at once suggested that if the plaintiff is a .tenant in common in possession he is within the purview?" of ¡this statute.

Tenants in common are such as hold by several and disItinct titles, but by unity of possession, and, therefore, one may hold his part in fee simple and the other in tail or for [life. There is no necessity for unity of interest. Chase’s IBIackstone, 368. Or, to express it differently, tenants in Icommon are such as have a unity of possession, but a disItinct and several title to their shares. Williams on Beal Property, 136. To the same effect see McCall on Beal Property, 133, § 21.

The plaintiff, in consequence of Ms life estate, being a ¡tenant in common and in possession in common "with others if the premises of which partition is sought, under the Section just referred to seems to have an undoubted right to maintain the action.

There are other sections of the Code which may be said to bear upon this subject, but it is not necessary to consider them, inasmuch as it might lead to confusion. The section referred to is broad and comprehensive, and seems |o be unanswerable.

For these reasons the order appealed from must be Reversed, with ten dollars costs and disbursements to abide xe event.

Davis, P. esult. J., concurs, and Daniels, J., concurs in the