author: Van Brunt, P. J.

text:
    Sophia F. Hillen, Individually and as Ex’rx, App’lt, v. Adrian Iselin et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Powers — Appointment by will.
    Testator devised a portion of his estate to trustees in trust for his daughter for her life, and after her death to be held in trust “ for such child or children of my said daughter, or his, her, or their descendant or descendants," as she should by will appoint. In case she- should fail to appoint, his will directed that if she should ‘' leave living at the time of her death any child or children, or any descendant or descendants of any child or children of hers who may have died in her lifetime,” then to remain in trust for such child or children. Held, that the power of appointment was not limited by the word “descendants” to those whose parents were dead.

      2. Same — Execution op — Perpetuities.
    Said daughter, in pursuance of the power given her by her father’s will,by her will appointed half the income of property left in trust for her, to be paid by trustees to her son and the rest to her daughter during their respective lives, and at the son’s death his half to go to his children living at such time. The son and daughter were in being at the original testator’s death. Held, that the rule in regard to perpetuities was not violated.
    3. Same.
    The provision of the original testator that the property after his daughter’s death was to be held in trust to and for such children or their descendants, in such proportions and for such estates therein in fee or for a life estate, and with such limitations and conditions as to his daughter might seem proper, did not show an intention to limit the period during which the vesting of the title should be suspended to the life of his daughter, but allowed her to appoint any or all descendants of such children, even if unborn at her death.
    Appeal by the plaintiff from a judgment of the special term in an action to obtain a judgment of the court declaring invalid and void the attempted execution by Mrs. Emily Hillen, by her will and codicils, of the power of appointment conferred upon her by the will of her father, Columbus O’Donnell.

      Carter & Ledyard (J. C. Carter and A. W. Machen, of counsel), for app’lt; Evarts, Choate & Beaman (J. H. Choate and R. M. McSherry, of counsel), for resp’ts.
   Van Brunt, P. J.

This action was brought by the plaintiff, individually and as ancillary executrix of the will of Thomas Hillen, late of Baltimore, Md., deceased, to obtain a construction of certain provisions of the will of Columbus O’Donnell, and of an appointment made thereunder by the will of Emily Hillen.The testator, O’Donnell, died in the year 1873, leaving a last will and testament bearing date the 27th day of August, 1866, which will was duly admitted to probate in Maryland on the 31st of May, 1873. By his will said O’Donnell devised four-twentieths of his residuary estate to certain trustees in trust during the life of his daughter, Emily Hillen, to pay the net income to her for her sole and separate use-; and by said will he further provided that after her death the property was “ to continue in, further trust, and be held by the said trustees and their successors to and for such child or children of my said daughter, Emily, or his, her or their descendant or descendants, and in such proportion, and for such estate and estates therein, either in fee or for a life estate, and with such limitations and conditions as my said daughter Emily may, by her last will and testament, or by any instrument in the nature of a last will and testament, notwithstanding any coverture she may be under, execute in the presence of three or more witnesses, name, limit and appoint to take the same.” In default of such appointment by his said daughter Emily, the testator by his will declared and directed “ that from and immediately after the decease of my said daughter Emily, the said trustees and their successors shall continue to have and to hold the said last-mentioned four-twentieth parts or shares of the said rest, residue and remainder of my estate as aforesaid, or the property, stock or funds of all kinds in which the same may be invested at the time of my .said daughter Emily’s decease, in trust for the uses and purposes following, that is to say:

“ First, in case my said daughter, Emily, shall leave living at her death any child or children, or any descendant or descendants of any child or children of hers who may have died in her lifetime, then in trust for any and every such child or children of my said daughter, Emily, and any and every such descendant or descendants of any child of hers living at her death, their heirs, executors, administrators, or assigns; if but one, to take the whole, and, if more than one, to be equally divided between them per stirpes, and not per capita, and such descendant or descendants to take only the part or share to which such child would have been entitled if then living.” Emily Hillen died in February, 1888, also a resident of and domiciled in Maryland. She left, her surviving, two children, Thomas Hillen and Emily McSherry, who were living at the time of the death of the testator, O’Donnell, and no descendant of any deceased child. Thomas Hillen married, and had one son, born during the lifetime of Emily Hillen, who is the defendant Thomas O’Donnell Hillen. Emily Hillen left a last will and testament, which has been duly admitted to probate, by which she attempted to execute the power of appointment conferred upon her by the will of the testator, O’Donnell, in the following words-:
“ (3) I give all the rest of my estate of every kind, including herein all the estate over which I have a power of appointment under my father’s will, to Adrian Iselin, of the city of New York,, and Richard Fisher, of the city of Baltimore, and the survivor of them, and the heirs, executors, administrators and assigns of such survivor, in trust to collect the rents, issues, and profits thereof, and pay all necessary expenses thereout, including a commission of two and one-half per cent to said trustees on the income, and to pay one-half part of the net income to my said son for and during the term of his natural life, and the other part to my daughter for and during the term of her natural life, without the power to my said son or daughter to contract any debt that may bind either the principal or said income, or to make any assignment thereof, or in any manner to draw upon or anticipate the same, and so that the same shall not be in any manner liable for his or her debts, contracts, or engagements, and shall be paid to him or her alone, and as fast only as it shall be received, and so that the share of my daughter shall be free from the power or control of her husband, for her sole use. (4) I empower my son as to his share, that is to say, one-half part of said rest of the estates, and also as to the other half part, also, in case of the death of my daughter without leaving a child or descendant living at her death, as hereinafter mentioned (and such power as to said other half part may be exercised whether he survive her or not), to appoint the remainder to and for such one or more child, children, descendant, and descendants of him, and in such proportion, and for such estate and estates therein, either in fee or for a less estate, and with such limitations and conditions as my said son may by his last will and testament name, limit, and appoint. (5), And upon default in the exercise of such power by my said son I give at his death his share, that is to say, one-half part of said rest of the estates, and the other half part also in case of the death of my said daughter without leaving a child or descendant living at her death, as hereinafter mentioned, to all the children and descendants of my said son, per stirpes, who are living at his death, free from further trust.”

Thomas Hillen, upon the death of his mother, denied the validity of the appointment, and claimed the said moiety as his own property by virtue of the devise in default of appointment contained in his grandfather’s will, and made a will devising it absolutely to his wife, Sophia F. Hillen, the plaintiff. He died in the year 1888, and his will has been duly admitted to probate. The ■ plaintiff brought this action for the purpose, among other things, of obtaining a judgment of the court declaring invalid and void the attempted execution by Mrs. Hillen in her said will of the power of appointment conferred upon her by the will of her father. The controversy thus presented is between the mother and the son, the mother claiming that by reason of the invalid execution of the power of appointment by Emily Hillen the property passed, under the will of O’Donnell, to her husband, Thomas Hillen, who, by his will, devised and bequeathed the same to her; whereas the defendants claim that the power of appointment was duly executed,' and that the title under it came to the infant defendant, her son.

It is conceded that the will is to be construed according to the laws of Maryland, but, as suggested by the respondents’ counsel, so far as the construction of the two clauses of the wills in question is concerned, as the facts appear in this case, the law of Maryland does not appear to differ from the law of New York, the difference between the laws of the two states being that in New York the power to suspend alienation is limited to two lives in being, whereas in Maryland the rule as to perpetuities is that the power of alienation may be suspended for any number of lives in being at the death of the testator, and for twenty-one years and a fraction of a year thereafter.

Three grounds are suggested by the appellant, upon each of which it is claimed that the appointment made by Emily Hillen of her son’s share of the four-twentieths of the residuary estate of O’Donnell is void. The first ground is that children of a living child of Emily, the daughter of the testator, O'Donnell, were not objects of the power ; and this claim is based upon the phraseology of his will, which declares that his trustees shall at the death of Emily Hillen hold the said four-twentieths in trust “ for such child or children of my said daughter Emily, or his, her or their descendant or descendants,” as the said Emily shall by will appoint. And it is urged that the primary and proper meaning of “ descendants ” being “ issue of a deceased parent,” it was plainly the understanding of the testator that the word “ descendant ” necessarily imported the predecease of the ancestor; and other portions of the will, especially that providing for the disposition of the property in case of omission to exercise the power, are referred to for the purpose of supporting this contention. But we think that an examination of the latter clause referred to leads to an exactly opposite conclusion, and shows that the testator when he desired that a party should take in a representative capacity appreciated the fact that such representation was not secured by the use of the word “ descendant,” which would have been the case had he understood that when he used the word “descendant” it necessarily presupposed the decease of the ancestor. His language, in providing for the case of a default of appointment is :

“ In case my said, daughter Emily, shall leave living at the time of her death any child or children, or any descendant or descendants of any child or children of hers who may have died in her lifetime, then in trust for any and every such child,” etc.

Now, if the word “ descendant ” necessarily implied in the testator’s mind the predecease of the ancestor, why should he have imported into this clause the words," -who may have died in her lifetime? ” He used the word “ descendant ” in connection with the words “ child or children,” as be had done in the prior clause, and he spoke of the descendant living at the time of the death of his daughter; and yet, in order to limit the devise to the descendants of deceased children, he thought it necessary to add the words, “ who-may have died in her lifetime,” thus, to our minds, clearly indicating.that the testator did not understand, when he used the words “ descendant of a child,” that it was necessary that such child should be dead in order that such descendants should come within the class. In the clause conférring the power of appointment, where the testator does not intend to' limit the power to . take except among the. descendants of his daughter, Emily, he uses no such language. He gives her a power of appointment to a child or children, or his, her, or their descendant or descendants, and not as, in the subsequent clause, limiting the power of appointment to descendants whose ancestor is dead. In the case of Drake v. Drake, 48 St. Rep., 216, affirming 56 Hun, 590; 31 St. Rep., 921, the testator conferred the power to appoint certain property “ to all or any or either of my sisters, * * * or to all or any or either of the lawful issue of my said sisters, from and after the death ” of the donee of the power. The donee of the power having appointed to the children of the sisters to the exclusion of their living parents, it was contended that, while the term “ issue ” might include all descendants of the sisters, yet that they became objects of the power only at the death of their respective parents, so that an appointment could not be made to the sisters and their issue, or to parents and their children, who would be more remote descendants of the sisters, all being considered concurrently as members of the same class. The court, in construing this power, held that the word “ issue ” as employed meant all descendants of the sisters named, and that it embraced concurrently all members of the unconfined class “ lawful issue.” And we are unable to see why the language of the clause under discussion is not equally broad; and, indeed, taken in connection with the subsequent clause, providing for a default of appointment, the intention of the testator seems to be much more clear that he only meant to confine the power to the descendants of his daughter as a class, in whatever degree they might stand.

The next ground upon which the invalidity of the appointment is claimed is that the limitation made in the will of Emily Hillen is void under the rule against perpetuities. It is to be remembered that the will of the testator, O’Donnell, gave the property in question to trustees, in trust for Emily Hillen during her life, and on her death to such child or children, his, her, or their descendant or descendants, in such proportions, and for such estates, as the said Emily might appoint; and Emily by her will appoints two trustees, in trust to pay one-half of the net income to her son, Thomas Hillen, and the other half to her daughter, Emily McSherry, during their respective lives, and at the death of Thomas his half of the principal is directed to go to all the children of Thomas living at the time of his death, per stirpes. And the case of Routledge v. Dorril, 2 Ves. Jr., 358, is cited- by the appellant as an authority almost conclusive upon this point. In that case, by a marriage settlement, property had been settled in trust for the husband and wife .during their lives, - with power to the survivor to appoint to the children and grandchildren or issue of the intended marriage in such shares and proportions, and under such restrictions, limitations and conditions, and at such time and times, and in such manner and form, as such survivor should by deed or will direct and appoint. The wife, Elizabeth Dorril, survived her husband, and by her will appointed a part of the property to a daughter, Elizabeth E1 wards, for life, and after her death to all and every the child and children of Elizabeth Edwards by her then or any future husband in equal shares, proportions, if more than one. It was held that the appointment to the children of Elizabeth Edwards was wholly void, because some of the children of said Elizabeth Edwards were born after the death of the donee of the power. We do not see, however, that in the case cited there was any question as to the violation of the rule against perpetuities. The case was decided upon a different and distinct ground, namely, that the appointees under the power were required to be in existence when the appointment took place, namely, upon the death of the donee of the power. The language of the court was:

“ There is no doubt that under the words of the original power any issue of the intended marriage living at the death of the husband or wife would have been competent to receive a share; and there being three children of Elizabeth Edwards living at the death of Elizabeth Dorril, if she had appointed to them, without doubt they might have taken. But she has appointed to Mrs. Edwards for life, and instead of giving it to such of her children as should be living at the death of their grandmother, she has given it to all the children her daughter might have during her life. Those that may be born after the death of the grandmother cannot be included among those in whose favor the power may be executed ; and the question is whether those children who might have been, the proper objects shall take. At first I was of opinion that, as she might have appointed to the three children born before death, when she appointed to all, these three might be considered as the sole object; but upon considering it further, and particularly upon Jee v. Audley, 1 Cox, 324, I am of opinion that would be a forced construction, and that the grandmother, in affecting to give this to all the issues her daughter might have at any time, has transgressed the power, and, so far being ill executed, it is to be considered as not executed, and is totally void.”

It is evident that there was no question as to the suspension of the power of alienation, but as to whether in the attempt to exercise the power the donee had exceeded the authority conferred by the power. If the appointment as made by Emily Hillen to her son, Thomas, for life, and upon his death to his issue, had been incorporated in the will of the original testator, there would have been no violation of the rule against perpetuities, for the reason that the trust estates created by the joint operation of the wills of Columbus O'Donnell and Emily Hillen could not possibly continue for more than two lives in being at the death of the testator, namely, those of Emily and her son, Thomas, the estate vesting absolutely in the issue of Thomas upon his death. The case of Thomas v. Gregg (Md.), not yet officially reported, was entirely different from the case at bar.

In that case, John Gregg, of Baltimore, devised half of his estate to trustees in trust for his daughter, Mrs. Thomas, with power to her to appoint by will to any of her children or grandchildren, or to children of her sister. Mrs. Thomas, in the exercise of the power, made a will devising the property to her own children in equal shares, and directing that during the life of any child the share of such child should be held by trustees whom she directed to collect the rents, income and profits, and pay the net income to such child during his or her life. She died leaving three children, two of whom were born in the lifetime of her father. This appointment was held to violate the rule as to perpetuities, and to be wholly void. And why ? Simply because Mrs. Thomas attempted to have a portion of the estate held in trust during a life which was not in being at the time of the death of the original testator and grantor of the power. As has been already suggested, in the will and appointment under consideration no trust was created for the life of any person who was not in existence at the time of the death of the grantor of the power, and, therefore, there was no violation of the rule in regard to perpetuities.

But the question still remains: Could Mrs. Hillen, within the terms of the power, appoint to persons not in being at the time of her death? It is urged upon the part of the appellants that she could not, because the testator had selected one life as the limit of the period during which the vesting of the title should be suspended, which was the life of Emily Hillen, and any estate created by her under this power must be vested immediately upon her death or before ; that she had no power to reshape the testator’s limitations and recreate an estate which would not or might not vest until some period after her death ; that she might, in executing the power, create life estates with remainders, but these remainders must be vested at her death, and not then remain contingent ; that she could have given a life estate to Thomas, with remainder to his children living at her death, or to any other person living at her death, whereas, in her actual will, she limited a remainder after his death to all of his children, and this, it is claimed, she could not do. But we fail to see why she could not do it.

It seems to us that an examination of the testator’s will shows that he did not intend that a single life should necessarily be the limit of the period during which the vesting of the title should be suspended as is claimed. His language is that the property shall be held in trust by the trustees during the life of his daughter, Emily Hillen, to pay the net income for her sole, and separate use, and after her death to be still held in trust to and for such child or children of his said daughter, Emily, or his or her or their descendant or descendants, and in such proportion, and for such estate and estates therein, in fee or for a life estate, and with such limitations and conditions as his said daughter might appoint. How, if it was the intention of the testator to limit the period during which the-vesting of the title should be suspended to the life of his daughter, what did he mean when he provided that she might appoint to any child or children, or his, or her or their descendant or descendants, for such estate and estates therein, either in fee or for life, with such limitations and conditions as to his daughter might seem proper? There seems to be an express power given within the limits of the law to add such limitations under the appointing power to the vesting of the estate as she might see fit; and it was not only not reshaping his limitations, but was carrying out a power which was expressly conferred upon her, the extent of which was only limited by the legal limitations imposed upon her action. It was the plain and evident intent of the testator that Emily Hillen, in the execution of this power, should have the right to suspend the vesting of the title to the same extent as he might have done by the provisions of his original will. How, it cannot be claimed for one moment, as already suggested, but what the testator might have devised this estate for "life to Emily, upon her death to her son Thomas, if he survived her, and upon his death to his children then living, whether in being at the time of the death of the testator or of the daughter or. not; in which case the children of Thomas, as born, would take vested remainders, subject to be divested by death before the termination of the intermediate estate, and also to open and let in children born subsequently. That is all that Emily Hillen did. She appointed the estate to her son during his life, and upon his death to all of his-children. Upon her death, therefore, her grandson took a vested remainder. If there had been any intention shown by the testator that the power of alienation should be limited to one life, and that of Emily, and that the estate should necessarily vest immediately upon her death, a different case might have been presented. But, on the contrary, by the express terms of the will, the testator gave to Emily the power to continue the limitation as long as the law would permit.

But it is claimed that as under the power Emily had a right to appoint to children of hers which were unborn at the time of the death of the testator, she could not impose any additional limitation, because as to unborn children any additional limitations would be void ; and, further, that the donor sought to make every child of Emily, whether born after his death or not, an object of Emily’s possible choice ; and Emily sought to make every child of Thomas a taker, and, therefore, postponed the vesting of their estates to the time of his death; and that these two things could not stand together in the testator’s will. It is undoubtedly true that among the objects of Emily’s possible choice were children unborn at the death of the testator. But in considering the ques-lion as to the validity of Emily’s action under this power of appointment it must be borne in mind that the power was to appoint to such members of the class mentioned in the testator’s will as Emily might see fit; and the validity of Emily’s action is not to be construed as if the appointment was to be among the members ■of a class, in which case each one must have had a substantial, if not necessarily an equal share. In other words, Emily had a right •to appoint the whole of her estate to such child or children, or his or her or their descendant or descendants, as she might •see fit.

She might select any one to the exclusion of every other one. ■Such being the case, when she made her selection, and in the execution of the power, she • only placed such limitation upon her Appointee as the original testator might have done had he made the same provisions in his will. She does not exceed the powers ■conferred upon her by law, and we can see no reason whatever why, under such a power of appointment, she could not appoint ■to one child.living at the death of testator, with limitations, and Appoint to another child, born after the death of the testator in fee; or that there is anything in this power which requires her to Appoint to each appointee the same estate. In other words, under-■the general language of this power the donee could do anything in the disposition of the estate which .the donor of the power might have done himself.

The third ground upon which this appointment is attacked is that it is a departure from the power in devising the property to trustees, and to trustees of Emily’s own selection, and differing from the trustees under her father’s will. If this appointment of trustees by her was unauthorized, it seems to be an unimportant consideration, because of the familiar rule that where a power has been executed equity will support the power so far as its execution was warranted,. and treat the excess as- void. As was said in the case of Alexander v. Alexander, 2 Ves. Sr., 644, where there is a complete execution of a power, and something ex abundanti added, which is improper, the execution shall be good, and only the excess void ; but where there is not a complete execution, where the boundaries between the excess and the execution are not distinguishable, it will be bad. In the case at bar the donee • of the power plainly designated to whom the beneficial interest in the estate should go; and if she was mistaken as to her power to appoint the means by which it should be transferred because of the provisions of her father’s will, her appointment as to the means of transfer may well be held void, and the beneficial interest still-remain intact. We are of opinion, therefore, that as the original testator could have done all that was done under the power conferred upon his daughter, no law has been violated, and there was a valid execution of the power by the daughter of the testator.

The judgment should, therefore, be affirmed, with costs.

O’Brien and Follett, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Stevens Voisin, App’lt, v. The Commercial Mutual Insurance Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    f. Insurance (marine) — Seaworthiness of vessel — Evidence.
    An officer of a ship testified that it had filled with, water without any cause known to him. The vessel was abandoned, and when picked up a large quantity of auger holes were found in her, and appeared to have been there some weeks. Held, competent to prove the existence of such holes on an issue of seaworthiness, and a presumption that they were bored, according to an alleged practice as to derelicts, for the purpose of getting the vessel out of the way, could not be indulged in by the court.
    2. Same — Proof of shipment.
    In an action on a marine insurance policy for goods alleged to have •been shipped on a certain vessel, evidence of a person who counted such goods as they were shipped on board such vessel, and who could recollect the number of bales from a shipping bill made by him, is sufficient to go to the jury on the question whether, in fact, the goods were shipped.
    3. Evidence — Admissions.
    Unqualified admissions made by_ an attorney, under § 735 of the Code, of the genuineness of a paper exhibited by the adverse' party, follow the cause through all its stages, and may be availed of at any period without some notice of withdrawal.
    Appeal from judgment entered on dismissal of complaint after trial at circuit.

      Mitchell & Mitchell (F. R. Coudert and William Mitchell, of counsel), for app’lt; Evarts, Choate & Beaman (T. Cleveland and Henry W. Wardon, of counsel), for resp’t.
   Van Brunt, P. J.

This action has previously been tried, 41 St. Rep., 884, and, a verdict having been rendered by the jury in favor of the plaintiff, the judgment entered upon such verdict was reversed by’the general term for errors committed upon that trial. Upon the retrial of the case, at the conclusion of the testimony of the plaintiff, a motion was made to dismiss the complaint upon the grounds: First, that no cause of action had been proved; second, that there was no proof of the performance of the condition of the policy requiring proof of loss and interest to be made before the loss is payable ; third, that there was no proof of the seaworthiness of the vessel sufficient to go to the jury; •fourth, that there was no proof of the shipment of the cargo insured sufficient to go to the jury ; fifth, that there was no proof of any such interest in the plaintiff as would enable him to maintain the action for his own benefit; and sixth, that there was a defect of parties, in that a partner of the plaintiff was not joined with the plaintiff. Upon the previous appeal some of these questions were determined, and the condition of the evidence in respect thereto has in ho wise been varied, and it is, therefore, not necessary, upon the decision of this appeal, to rediscuss the questions which were then disposed of. It was then held, in respect to the second, fifth and sixth grounds, taken upon the motion to dismiss, that they were not well taken ; and hence, the only questions now presented are that no cause of action has been proved, and that there was no proof of the seaworthiness of the vessel, nor of the shipment of the cargo insured, sufficient to goto the jury.

It is undoubtedly the rule that very slight evidence in respect to seaworthiness is sufficient to make out a prima facie case upon that issue; and this is necessarily the case from the fact that distinct, positive and clear evidence upon this point is frequently inaccessible, particularly after the loss of a vessel at sea. Upon the part- of the plaintiff the evidence of the second mate of the vessel was offered, tending to show that she had made a voyage from Cardiff to Vera Cruz, heavily laden with railroad iron, and that she did not leak more than ordinary vessels during that voyage. It is true he testified that she required to be pumped every four hours in good weather and every two hours in heavy weather, but the witness testified that she' did not leak more than vessels ordinarily do. She arrived at Vera Gruzin September, and lay there until January. From Vera Cruz she went to Tecolutla, where she lay about two months, and finally left there about the end of March. The policy in question is dated the 10th of March, and it is urged that this vessel, built mostly of spruce, had been left upwards of six months- in the waters of the Gulf of Mexico, unprotected by copper, and fully exposed to the action of worms; and that, therefore, there was plainly no proof of seaworthiness. But we are unable to determine, in the absence of evidence, whether any such conditions would be apt to affect the seaworthiness of this vessel or not. The evidence is that she had made a voyage, heavily laden, and was no more affected by wind and waves than vessels ordinarily are, from which fact the inference might be drawn' that she was in fair condition to prosecute an ocean voyage. Now, whether her lying in the waters of the Gulf of Mexico would naturally tend to affect her seaworthiness was a question which had to be established by evidence, and could not be proved by the assertions of counsel. In this respect thé case was in an entirely different position upon the trial- than it was when all the evidence was in upon the former trial. .

The subsequent evidence would- undoubtedly tend to show- of itself that the vessel was unseaworthy, for the reason that, although no heavy weather was encountered upon the voyage from Tecolutla, yet the vessel sprang a leak, and had to be' abandoned. The second mate said that on this voyage they did not have anything more than fresh gales of wind; high seas running sometimes, but nothing extreme; there was nothing more than common in a fresh gale of wind ; that they had some rough weather, some fine weather, some strong winds, some head winds, and some stormy weather; and that he did not know what caused the vessel to leak. A day or two before the ship was abandoned they had quite a fresh gale of wind, and then it moderated, and it was after the gale moderated that the leak was discovered. Subsequently the ship was picked up at sea and taken into Norfolk. This evidence, unexplained, might justify the jury in finding that at the time she left Tecolutla the ship was not seaworthy. Evidence was offered by a person who had experience as a navigator to show that when she was examined at Norfolk a large quantity of auger holes were found in her, and that, in his opinion, they had been there for some time, some weeks; and this evidence was offered to show the reason why the vessel had filled with water when there had been no cause known to the witness who was an officer of the ship. Upon motion of the counsel for the defendant this evidence was stricken out, and an exception taken. It seems to us that it was competent for the plaintiff to show the condition in which this vessel was found after she had been abandoned; and that the assumption by the learned court that this evidence was incompetent, upon the ground that it is matter of common experience that captains frequently bore holes in derelicts for the purpose of getting them out of the way, was not well founded, as no such violent presumption was to be indulged in, by the court at least, whatever right might have been the province of the jury upon the whole of the evidence. With this evidence before the court, there would seem to have been some evidence tending to show the seaworthiness of the vessel at the time of the issuance of the policy, and some explanation given of the reason why she filled with water, as is the undisputed evidence. There was, therefore, a question to be determined by the jury upon this point.

The claim that there was no proof of the shipment of the cargo insured sufficient to go to the jury, does not seem to have been well founded; and in connection with the proof upon that point competent evidence seems to have been excluded. The witness Malpion testified: “ I counted the packages shipped on board the L. E. Gann, in January and February, 1882 ; but as to the weight, I did not weigh them, as I had nothing to do with the weight. I counted the bales of rice and the bags of coffee, as well as the bales of rags and cases of zinc, and the packages of bones. I recollect the number of packages by the Exhibit F, shown me upon my direct examinationwhich seems to have been the witness’ bill for the shipping and lading of the merchandise therein mentioned upon the bark L. E. Cann. This evidence is certainly as strong as that which was presented in Palmer v. Insurance Co., 116 N. Y., 599; 27 St. Rep., 675, in which case it was held that, while the evidence in respect to the cargo was not as clear and satisfactory as the court could wish, still enough appeared in the case to sustain the submission of the question to the jury.

Attention is also called to the exclusion of certain evidence, namely, the bills of lading; such exclusion being upon the ground that there was no proof as to by whom they were signed. It appeared that upon the previous trial there was a distinct admission that the papers in question were signed by the master of the L. B. Gann; and, notwithstanding this admission, made unqualifiedly and unreservedly upon the previous trial, the court excluded the papers, apparently upon the ground that they had not been properly proven. This, we think, was clearly error. The admission given was not for the purposes of the previous trial only. It was a broad, plain admission, which, under the provisions of the Code, the plaintiff had a right to ask the counsel for the defendant to make before the trial. Section 735, Code Civil Pro., provides that the attorney of a party may, at any time before the trial, exhibit to the attorney for the adverse party a paper material to the action, and request a written admission of its genuineness. If the admission is not given within four days of the request, and the paper is proved or admitted upon the trial, the expenses incurred by the party exhibiting, it in order to prove its genuineness must be ascertained at the trial, and paid by the party refusing admission unless it appears that there was a. good reason for the refusal. How, in the case at bar, upon the previous trial the counsel for the defendant was requested to admit the genuineness of these papers, and such admission was -taken in open court, and entered upon the minutes without qualification or reservation, and was made for the express purpose of dispensing with formal proof upon the trial; and we think that without at least some notice of the withdrawal of this admission, the counsel for the plaintiff had a right to rely thereon upon any subsequent trial, and was entitled to read the papers in evidence,, if they were competent had they been proved. Admissions of this kind, unless specially restricted, are admissions in. the cause, and which follow it through all its stages, and may be availed of. at any subsequent period.

The point has been raised as to the exclusion of the papers to which the witness Malpion referred in his testimony for the purpose of refreshing his memory ; but it will be seen upon an examination of this testimony that no error was committed in their exclusion, for the reason that the testimony does not come up t.o the rule laid down in the case of Nat. Ulster Co. Bank v. Madden, 114 N. Y., 284; 23 St. Rep., 220, it being said in that case :

‘‘ It has uniformly been held admissible'for the witness to refer to the original entries in respect to the facts which he is called upon to testify, and if he verifies, their correctness, and is unable to recollect such facts independently of such entries, they may be read in evidence.”

In the case at bar there is no evidence upon the part of the witness that, after reference to these papers, he was unable to recollect the facts. His testimony simply was that, “ as I cannot remember the quantity of the goods shipped and the quantity of each kind of goods, Í refer to the exhibits, which are both true;” and then he went on and told the quantity of the goods, but he nowhere stated that after an examination of those papers he was unable to recollect the facts therein contained, and hence one element necessary to make such papers competent evidence of themselves was absent.

We have examined the other exceptions to which attention has been called, but do not deem that any of them needs special mention. It would seem, therefore, for the reasons heretofore stated, that the learned court erred in taking the case from the jury and dismissing the complaint, and that the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

O’Brien and Follett, JJ., concur.


author: O’Brien, J.

text:
    Marion L. Carroll et al., Pl’ffs, v. The New York Life Insurance & Trust Co., Def’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Deed — W babease.
    Where the owners of bulkhead property, which had been wrongfully taken possession of by a city, elect to abandon their claim to the property in specie, and change their demand into one for damages for its appropriation, thereby electing to take a pecuniary consideration, and recover judgment accordingly, a trust deed of the property, subsequently executed by them, does not invest the grantee with any right to, the money paid in satisfaction of such judgment.
    Submission of controversy as to the rights of plaintiffs in respect to their claim for wharfage.

      Ogden & Beekman, for pl’ffs; Emmet & Robinson (R. S. Emmet, of counsel), for def’t.
   O’Brien, J.

It appears from the submission that on the 29th September, 1876, and for many years prior thereto, the plaintiffs were owners of the wharf and bulkhead on the westerly side of West street, in front of certain lots of land belonging to them on the easterly side of said street, and of the rights of wharfage arising from the said wharf and bulkhead, and that on September 29, 1876, the city of New York, by its department of docks, wrongfully took possession of said bulkhead and commenced to fill in with solid filling the space between the same and the new exterior line, thereby excluding the plaintiffs from the possession and enjoyment of the said wharf and bulkhead. Thereupon, and on the 1st of February, 1877, an action was commenced by the plaintiffs in this court, against the city and the department of docks, to recover possession of the wharf and bulkhead, and of the plaintiffs’ easements therein, and for an injunction, but the city continued to fill in the space in question, and by May 23, 1878, had entirely appropriated the plaintiffs’ rights and easements in the said bulkhead, and deprived them of the possession thereof, and destroyed such easements. Thereafter, on February 6, 1878, and on the trial of the action, on the 29th of May, 1878, two stipulations were entered into between the parties, reciting the fact of the filling in of such space, and providing that, in the event of the plaintiffs being entitled to judgment, the question of their damages by reason of the acts of the defendant, and the question of the value of the plaintiffs’ premises, were to be reserved and ascertained as the court •should direct. The plaintiffs were finally successful in the court of appeals, and a judgment on the remittitur was on the 12th day of •October, 1883, entered in accordance with the terms of the stipulation. By an interlocutory order or j udgment, a reference, was accordingly ordered to take proof of the value of plaintiff’s property, and of the damages sustained by plaintiffs in being deprived- of their bulkhead rights; and it was finally adjudged, upon the report of the referee, that the plaintiffs should recover from the city of New York, for principal and interest, the sum • of $81,400, being. “ the value of the premises-at the, time of appropriation of the said property by the mayor,” etc., “ to wit, the 23d day of May, 1878.” It was by such judgment directed that upon receiving such payment the plaintiffs should execute to the city a deed of their interest in the bulkhead and rights in question. A deed was -accordingly prepared by the plaintiffs, and in addition thereto the city required a release from the defendant trust company of any interest which the latter might have in the property-, as trustee, under certain deeds of trust executed by the plaintiffs to such trust company on January 20, 1885, and the 19th of November, 1886, conveying to the trust company, upon the trusts therein set forth, certain real and personal property particularly described. Included in such conveyances were the lands formerly owned by John Jacob Astor,, and which,- under his will, passed to the plaintiffs, appurtenant to or part of which were, as originally devised, the wharf and bulkhead, and plaintiffs’ easements therein, which were involved in the litigation, with the city, and out of which the amount of money which is now the subject of dispute herein arose. The separate deeds of trust made by each of the plaintiffs, of -the property owned by them, to the defendant contain the same provisions and conditions, calling for the application of the entire income, after the payment of necessary charges for "'taxes and administration, to plaintiffs for life, and upon- the death of the life tenant the trust was to cease and determine, and the property to go to such persons or corporations as the life tenant, by last will and testament, should direct; and providing, further, in the event of intestacy, for a transfer to the children of the life tenant, -if such thére were, and in the event of no children, the trust estate to go to the right heirs of the life tenant according to the statutes of descents and distributions of the state of New York.

The fund being on deposit with the trust company to abide a decision, we are asked to determine the questions submitted, which are .as follows : (1) Are the plaintiffs entitled to the said moneys so recovered by them, and deposited.in the trust company ? (2) Did any right or claim to said moneys pass to, or vest in, the said defendant, the New York Life Insurance & Trust Company, by virtue of the aforesaid deeds of trust ? (3) Is the defendant, as trustee under said deeds of-trust, entitled to hold or retain the said moneys, or any part thereof ? These three can be reduced to the single question whether the bulkhead rights formerly owned by the plaintiffs, or their claim against the city for the value of such rights, were included in the deeds of trust to the defendant.

Such bulkhead rights are included in the property which, under the will of Astor, passed to the plaintiffs; and in the deeds of trust to defendant, describing this particular property in question by metes and bounds, there was added to the description these words: Together with all the right and title of John Jacob Astor, deceased, to the land and lands under water in front of said premises.” Notwithstanding the force and weight to be attached to such language, it is insisted that the defendant can have no claim to the moneys in' question because the plaintiffs, by force of their stipulations with the city, abandoned their claim to the property in specie, and changed their demand into one for damages for its appropriation ; that thereby they elected to take a pecuniary consideration from the city for the property, instead of the property itself; and that the legal effect of this was that the city became possessed of the property in question as of the date of its appropriation, viz.: May 23, Í878, and, therefore, the title of the plaintiffs was divested as of that date, and simultaneously the claim of the plaintiffs became one for its value, and thus an interest which had been real estate thereupon became transmuted into personal property. We' are of opinion that this position of the plaintiffs should be sustained. It is true, as noticed, that the deeds from plaintiffs to the defendant, in terms, convey more than the lots fronting on West street; and, if the bulkhead rights had existed at the time of the execution of these deeds, there can be no doubt that they would" have passed to the defendant.

If, however, the bulkhead rights had then ceased to exist, and the claim for their value had been substituted, the language used in the deeds would not have been appropriate to vest in the defendant the damages recoverable in the action. Such a right would be a chose in action, and unquestionably, in character, personal property; and such property and rights would not be appropriately described by the words, “ land or lands under water.” The record, notably the interlocutory judgment and the stipulations, shows that the bulkhead rights were destroyed by the act of the city long prior to the execution of the deeds of trust, and the plaintiffs, therefore, had no property of that description to convey. What was left to them was a claim for damages, which they were to recover in lieu of any bulkhead rights which, in 1878, they may have possessed. Whatever doubt' might otherwise arise as to the character of their claim prior to the decision by the court of appeals, it was settled by the judgment entered upon the remittitur in 1883, prior to the deeds of trust to the defendant, which judgment provided that the plaintiffs should recover against the city for the damages suffered by them by reason of the acts of the city in unlawfully appropriating their property ; such damages to be ascertained in the manner the court should direct, in accordance with the stipulation between the parties, and which formed a part of the judgment roll. Viewed in the light of the stipulations and the judgment, we think that the position of the parties may be well likened to that of persons who had entered into an executory contract for the sale of lands. It has been frequently held that the effect of such an executory contract is to change the position of the seller, leaving him, instead of a title to the lands proposed to be sold, simply a claim to the amount stipulated to be paid. Such claim, being personal property, would not be appropriately described by the words, “ land or lands under water,” which were the words used here. Or if we have resort to another illustration furnished by the numerous decisions in elevated railroad cases, it will afford another argument to support the plaintiffs’ contention. In those cases wherein the elevated railroads had unlawfully entered into possession of the property of others, and had destroyed easements appurtenant to such property, and where a possessory action had been brought, as here, asking for an injunction to restrain the unlawful interference with the plaintiffs’ rights and easements, we think it clear, if in such an action the parties should stipulate to substitute a claim for damages, or if, by the judgment, damages were a ¡warded in lieu of a decree restoring the rights and easements to the plaintiffs, and enjoining the railroad from trespassing thereon, that the effect of such a stipulation or such a judgment would be to change the character of the rights involved in the action from an interest which had been real estate into a claim for damages, which would be personal property. Here the effect of the stipulations and of the judgment was to finally determine the transfer of the easements 'and bulkhead rights as of the date of May 28, 1878, and the right of the plaintiffs was thereafter to receive a money compensation therefor as of the same date. It being, therefore, reasonably free from doubt that the bulkhead rights owned by the plaintiffs were destroyed, and a claim for damages substituted, prior to the trust deeds to the-defendant, the plaintiffs, not having such bulkhead rights, could not, at the date of the deeds to the trust company, have conveyed them. The personal property given to the defendant by plaintiffs was particularly described, and did not include such claim for damages, or any claim involved in the suit between the plaintiffs and the city ; and the case submitted shows that the defendant’s claim is based solely upon the force and effect to be given to the words in the deed already adverted to, at the end of the description of the lots on West street, “ together with all the right and title of John Jacob Astor, deceased, to the land and lands under water in front of said premises.” Among the statements agreed upon in the case submitted we find the following:

“ That the said trust company has never claimed nor considered, nor did the said Marion L. Carroll or Anne L. Langdon ever consider or intend, that the said trust company, by reason of such conveyances by them to it, should acquire any right, title or interest in any rights of plaintiffs in said bulkhead or in the said easements, or in their claim for damages against the mayor, aider-men and commonalty of the city of New York, by reason of any of the matters aforesaid, and that the said trust company has never taken any part in said action against said mayor, aldermen and commonalty of the city of New York, and the board of the department of docks, nor been substituted or made any claim to be substituted as plaintiffs therein since the creation of said-trusts, but that said action was conducted from the commencement. thereof until the final judgment therein by the said plaintiffs, only.” . , .

. . This, undoubtedly, is a practical construction of the terms of the trust deeds, placed thereon by the acts of the parties, to which some force should always be attached; and such construction is favorable to the plaintiffs’ view, that the claim against the city, which was substituted for the interest they formerly had in the lands, antedated the deeds to the trust company, and was not included therein. We think that, upon the submitted case, the question should be answered favorably to the plaintiffs, who, in accordance with the terms of the submission, should have judgment in their favor against the defendant for the sum of $83,582.08 and interest.

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


author: Van Brunt,. P. J.

text:
    Peter Balen, Resp’t, v. Emma L. Jacquelin, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Will — Vested remainder.
    Testator devised to Ms wife, for her life, “ the income, rents and profits of all my real estate," and, after her death, all his real estate to his two children and a grandcMld, one-third to each. Held, that the fee vested in the three cMldren at the death of the testator.

      it. Partition — Pleading—Possession.
    In an action of partition, an allegation in the complaint that plaintiff and defendants are seized and possessed of the land is a sufficient allegation of possession on the part of plaintiff.
    3. Same.
    An allegation that the defendants have received all the rents, issues and profits from the real estate, and have neglected and refused to the plaintiff his share, is no allegation that they claim under a title hostile to the plaintiff.
    . Appeal from interlocutory judgment overruling demurrer to the complaint

      Forster & Speir (H. A. Forster, of counsel), for app’lt; Bostwick, Morrell & Bates (C. F. Bostwick, of counsel), for resp’t.
   Van Brunt,. P. J.

This is an action to partition certain real estate, in which the plaintiff claims to be seized of one-ninth share, as tenant in common, by inheritance from his deceased daughter, Mary E. Balen; and the question involved in this action is whether the said Mary E. Balen, having died before the determination of a precedent life estate, could transmit by inheritance that portion of the estate of which, if she had been living at the termination of the life estate, she would have been entitled to possession. We might very well leave the determination of this question upon this appeal to the grounds stated in the opinion of the court below, but there is one circumstance which seems to indicate so plainly the intention of the testator that we think we ought to call attention to the same. It is one of the prevailing principles in the construction of wills that the intention of the testator is to govern, and, therefore, as no two wills are exactly alike, and the surroundings of testators are always different, the interpretation given to provisions in one will affords but little aid in the construction of the provisions of another will, except so far as certain meanings have been given to'certain terms and phrases in particular connections. By the third clause of the will the testator gave, devised and bequeathed to his wife, for and during the period of her natural life, “the income, rents and profits of all my real estate ; ” and by the tenth clause, at and after the decease of his wife, he gave, devised and bequeathed to his two daughters, naming them, and to the children of his deceased daughter, Mary E. Balen, all his real estate, one-third to each of his said two daughters, and the remaining third part thereof to the children of his deceased daughter, to he held, owned and enjoyed by them, respectively, and by their respective heirs and assigns forever. It is to be observed that, by the terms of this will, only the rent, issues and profits of the real estate were devised to the wife of the testator.

He, therefore, evidently intended that the fee should be vested in some other person than his wife, even during her life, subject to her right to the rent, income, and profits thereof; and in view of the subsequent provisions of the will, giving the complete enjoyment of this real estate to the persons named in the tenth clause, after the decease of his wife, he evidently intended that such fee should vest at his death in those persons, to be held by them, respectively, and by their respective heirs and assigns, forever. There evidently was no intention upon the part of the testator to defer the complete vesting of the entire title of this real estate beyond his own death, and that he did not intend that the' absolute title of any portion of this real estate should be held in abeyance during the lifetime of his wife. The appellant’s claim that the devise to the children of his deceased daughter was a devise to a class, the extent of which class could only be determined by the death of his wife, seems to be contrary to the whole scope of the will. It is evident that the testator intended by the devise in question to invest the children of his deceased daughter with precisely the same title that he vested in his surviving daughters; and it will not be claimed but what the daughters living at the death of the testator took an absolute remainder, which could be transmitted by conveyance or by inheritance, and which could not be divested by death during the period of the wife’s life. This being the intention of the testator, and there being no indication that he intended that the estate should descend differently, we can see no reason why the plaintiff, upon the death of his daughter, did not take the interest claimed by inheritance.

It is also claimed that the complaint in this action was defective, because there was no sufficient allegation of possession upon the part of the plaintiff ; "but we think that the allegations in the ninth clause of the complaint are amply sufficient to meet the requirements of the Code. In that it is alleged that the plaintiff and the defendants are seized and possessed of all those certain lots and pieces of land, etc. The allegation that the defendants have received all the rents, issues, and profits from said real estate, and have neglected and refused to the plaintiff his share, is no allegation that they claim under a title hostile to the plaintiff. We think, therefore, that the judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concur.


text:
    William H. Thomas et al., App’lts, v. Henry A. Dickinson et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Fraud — Sale.
    Where, by fraudulent representations of solvency, a sale of goods is induced, a right of action accrues on the discovery of the fraud, and, since the'seller is entitled to nominal damages at least, he need not wait to bring his action until a note given by the purchaser for the price has matured.
    2. Same — Damages.
    In such case, where the note matured during the trial, was not paid, and was tendered back, the seller is entitled to recover as damages the value of the property obtained.
    Appeal from a judgment entered upon the decision of the court in a case tried at circuit without a jury.

      A. Walker Otis, for app’lts; Franklin Bien, for resp’ts.
   O’Brien, J.

Upon this appeal questions of law are alone to be considered, bringing up, as it does, for review only th.e judgment roll and exceptions. The case contains no evidence, but we must presume that there was sufficient to support the findings of fact; and upon such findings the questions presented are as to whether the conclusions of law from such facts were right The complaint alleges that in April, 1890, the defendants, with intent to deceive and defraud plaintiffs, by inducing the latter to sell them goods on credit, falsely and fraudulently represented to them that they (defendants) were solvent; that the defendant Dickinson was worth $50,000; that the wife of Dickinson had an interest in the business of defendants, and was worth $200,000 ; and that plaintiffs, relying upon such representations, were induced to deliver to the defendants, on credit, merchandise of the value of $1,696.82; that said representations were false, to the knowledge of the defendants, and were relied on by the plaintiffs, to their damage of $1,696.82. The answer alleged that the merchandise was sold on a credit, which had not expired at the commencement of the action. In support of such defense it appeared upon the trial that the goods were sold on a credit of four months from April 28, 1890, for which defendants gave the plaintiffs their promissory note, which was due August 31, 1890. This action was begun July 31, 1890, and, with the exception of the single allegation that Mrs. Dickinson was not worth $200,000, the trial judge found all the foregoing facts in plaintiff’s favor; and, in addition, he found that the promissory note, being in possession of the plaintiffs, was, subsequent to the commencement of the action, tendered back to the defendants, which the latter refused to receive, and that upon the trial the plaintiffs again tendered back the promissory note, and met with a like refusal. Notwithstanding a judgment was ordered for the defendants, upon the ground that the plaintiffs, at the time of the commencement of the action, had suffered no damage from false representations, because the note had not then matured.

Upon the former appeal in this case, taken from a judgment upon a verdict directed in favor of the plaintiffs, and in which the facts were that the offer to return the note had not been made either before or at the time of trial, the judgment was on this ground reversed, for the reasons stated in the opinion of this court, to be found in 47 St. Rep., 209. As therein said :

“A person defrauded by another may resort to one of three remedies: First, he may, before suing, restore or offer to restore what he has received from the other party, elect to rescind the contract, and sue' at law for whatever he has parted with, or he may, secondly, without restoring or offering to restore what he has received, sue in equity for a rescission, in which case he must allege in his complaint his willingness to restore, as a condition for being permitted to rescind, and must in fact restore or offer to restore before or at the trial; or he may, in the third place, stand upon the contract, making no offer to rescind it, and sue for the damages which he has suffered by the fraud of the other party in inducing him to enter into the contract; and this latter remedy is that which the plaintiffs claim to have pursued. But the difficulty with the plaintiffs’ case is that until it is ascertained whether or not the note in question which has been given in payment of the goods will be paid, it cannot be ascertained as to whether the plaintiffs have or will suffer any damage by reason of the alleged false representations; and the-further principiéis lost sight of that the holder of the note is the only one who can enforce1 any liability against the defendants. If the plaintiffs have transferred the note, and it is in the hands of a third person, they certainly have sustained no damage by reason of the false representations. If any cause- of action exists, it is in favor of the holder of the notes, and not the plaintiffs, unless they are such holders; and it is because of this principle that the rule has obtained that no matter what the action is, whether' for rescission of the contract, or for damages, because of the fraud of the other party in inducing them to enter into the contract, if a note has been given, it must be returned, as the defendants are not required to pay damages for the fraud and pay the debt also.”

Other language is used in the opinion relating to plaintiffs’ right to maintain an action of this kind, in effect holding that, until it was ascertained whether the note in question would be paid or not, the defendants would be under no liability to the plaintiffs for damages to the full extent of the debt for the fraud. It will thus be seen that the reversal of the former judgment was placed distinctly upon the ground that a noté had been given for the goods purchased of the plaintiffs, which, so far as it was made to appear, might have been transferred by the plaintiffs to a third party, and upon which the defendants might have been liable though they should pay the judgment, which included the full value of the goods delivered. That the defendants should not be subjected to this double liability was, therefore, correctly determined by this court upon the former appeal. Upon the retrial, though it then appeared that the note, which, at maturity, had not been paid, was still in the possession of the plaintiffs, and was tendered back, this was regarded by the trial judge as not controlling, and, upon the ground that the action was commenced before the maturity of the note, the complaint was dismissed. It may be that sentences in the opinion on the former appeal, disconnected from the context, might give the impression that the action was prematurely brought, and, therefore, that no recovery could be had ; but it must be remembered that, in saying that “ the former action could not be maintained,” the language of this court, as shown by the context, was applied to the theory upon which the action was formerly tried, and which, upon the facts then appearing, resulted in a verdict for the full amount in plaintiffs’ favor, notwithstanding the existence of an outstanding note, which had not been tendered back, and upon which the defendants would be liable.

The question now presented is, was the action prematurely brought or was it essential for the maintenance of the action that the plaintiffs should have waited until the maturity of the note? This is to be determined by consideration of what plaintiffs’ right of action was, and when it accrued, without regard for the present to the question of damages. The fraud was committed when the defendants, upon false representations, obtained the plaintiffs’ goods, in April, 1890, and we think that the plaintiffs’ cause of action then accrued. It is true that a note had been given upon which the defendants were liable, and until the maturity of the note the plaintiffs could not, in any event, have recovered more than nominal damages. The question whether they should have recovered more than nominal damages would necessarily depend upon the evidence presented on the trial. This is illustrated by what occurred upon the first trial of this case, where, it appearing that the note was outstanding, a direction in plaintiffs’ favor for the full amount of the goods delivered was properly reversed. Or, to take another illustration, let us assume that a four months open credit had been given, not evidenced by any note or writing ; would the right to maintain the action for fraud be premature if brought before the expiration of the credit? We think, under all the authorities, that such a view cannot prevail; for it must be kept in mind that the cause of action is for the fraud, and it arose immediately upon the perpetration thereof, and that the cause of action itself for the fraud is something separate and distinct from the amount of damages that may be recovered by reason thereof. It is true that the old rule at common law would only permit damages which had accrued at the time of the commencement of the action ; and if this rule still prevailed, upon the remedy elected by plaintiffs, the note not being due at the time of the commencement of the action, the fact that subsequently it was not paid, or an offer to return it upon the trial, could not be used to enhance damages. This rule, however, no longer prevails, either in England or in this state. In an early case in the United States supreme court, which was an action brought against an attorney for neglect, it was held : “ When the attorney was chargeable with negligence, his contract was violated, and the action might have been sustained immediately. Perhaps, in that event, no more than nominal damages may be proved, and no more recovered; but, on the other hand, it is perfectly clear that the proof of actual damages may extend to facts that occur and grow out of the injury, even up to the day of the verdict. Wilcox v. Plummer's Ex'rs, 4 Pet., 172, 180. See, also, Sedg. Dam., ed. 1891, § 85.

In Everson v. Powers, 89 N. Y., 527, which was an action brought by an employe for damages for his wrongful discharge, wherein the point was made that the plaintiff could recover only damages which had accrued at the commencement of the action, the court said : “ The plaintiff’s cause of action arose at the time of the breach of the contract, and he was then entitled to sue and recover such actual damages as the evidence upon the trial showed he had sustained by the defendant’s breach. It is the breach, and not the time of complaining of it, which gives the damage.”

And in Behrman v. Linde, 15 St. Rep., 129, which was an action for breach of contract, the presiding justice of this court, writing the opinion, says: “ It was further claimed that the plaintiffs could not recover damages that had not been sustained at the time of the commencement of this action. It is clear that this objection is not well taken. The contract having been broken at the time of the commencement of the action, the plaintiffs had a right to recover all the damages which they had sustained up to the time of trial. ”

So with respect to the fraud here upon its perpetration, and the receipt of the plaintiffs’ property as the result thereof, a cause of action, at least for nominal damages, arose ; and this right was not impaired or destroyed by the plaintiffs’ taking, under the facts here appearing, the note of the defendants, because it was found as a fact that, relying upon the false representations, they were induced to receive the note from the defendants. The credit extended, as evidenced by the note, was therefore abrogated: and while it is true that as long as the note was outstanding, and before it was returned to the defendants, no recovery for the value of the goods could be had in an action such as this, still where, as here, upon the trial, proof was offered showing that subsequent to the commencement of the action the note was not paid, and was offered to be returned upon the trial, we think that this entitled the plaintiffs to recover as damages for the fraud the value of the goods obtained by the defendants. Our decision upon the former appeal was placed upon the ground that no recovery for the value of the goods thus obtained could be had without producing and tendering back the note upon or before the trial; and a reading of the opinion will show that our attention was directed against allowing a recovery for the value of the goods, and permitting an outstanding liability upon the note to exist at the same time, upon which latter, if the former judgment were paid, the defendants would have been liable. We think, however, that where, as here, it has been found that the defendants were guilty of fraud in obtaining the property of the plaintiffs, although they accepted a note therefor, they were entitled to maintain the action for the fraud, their right of action having accrued immediately upon the discovery of such fraud ; and that, when, upon the trial, they tendered back the note, they were entitled to recover as damages the value of the property obtained from them. For these reasons we are of opinion that the conclusion reached by the learned trial judge upon the facts found by him was erroneous, and that the judgment appealed from should be reversed, and a new trial ordered, with costs and disbursements to plaintiffs to abide the event.

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


text:
    David H. Carroll, Resp’t, v. John Pettit, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Brokers — Commissions—Evidence.
    In an action by a real estate broker to recover commissions claimed on the ground that defendant, his principal, surreptitiously approached and concluded a sale with a person with whom he was negotiating, a letter written by plaintiff to the purchaser’s agent, and introduced by him to show what he did towards securing a purchaser, is for such purpose admissible in evidence, and is not rendered incompetent because it incidentally corroborates the testimony of plaintiff upon a material fact as tO' the date of an interview between the parties
    2. Same.
    Where a real estate broker has succeeded in partly consummating a sale, and his principal intervenes, continues the negotiations himself, and sells the property to the person with whom the broker was negotiating, the broker is entitled to his commissions.
    Appeal from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial, in an action to recover brokers’ commissions on the sale of real estate.

      Evarts, Choate & Beaman (Treadwell Cleveland and Henry W. Hardon, of counsel), for app’lt: George V. N. Baldwin, for resp’t.
   O’Brien, J.

This was an action by a real estate broker, against the defendant, to recover a commission claimed to be due upon a sale of defendant’s real estate. The complaint alleged, and evidence was offered tending to support, the employment of plaintiff by the defendant, under which the former undertook the sale of the property, and procured a purchaser, and that while in the midst of the negotiations, and when they had almost reached a favorable conclusion, the defendant, learning through plaintiff of the person who contemplated purchasing, surreptitiously approached such purchaser, and concluded the sale so procured by the plaintiff, without the latter’s knowledge. On the part of the ■defendant the defenses were that the plaintiff was not employed, and that the defendant made the sale himself.

Upon the first question, as to the employment of the plaintiff by ■defendant, the evidence was sufficient to justify the conclusion reached by the jury. The serious question, however, presented upon this appeal is, assuming such employment, did the defendant interfere with the negotiations undertaken by the plaintiff in his behalf, and thus unlawfully prevent the plaintiff from performing the contract of employment ? The evidence shows that plaintiff did not effect the sale; and his right to compensation must depend, not upon his having performed his contract, but upon the conclusion to be reached, on the testimony, whether .such performance was prevented by the action of the defendant. No ■question arises but that all the details in regard to the leases, amount •of mortgages, and the time when due, were furnished by the defendant to the plaintiff, and by the latter to the purchaser; and it is equally beyond dispute that, without having terminated in any way the plaintiff’s employment, and while the negotiations were pending, the property was sold by the defendant to the very purchaser to whom it had been offered, and who had been induced to consider the property by the plaintiff. The contract itself was made on the 20th of December, subsequent to an interview on the same day which the plaintiff claims he had with the defendant, and at which interview, as claimed, the defendant obtained the name of the purchaser. The defendant denied this interview of the 20th, placing it some days prior to that date; but the letter from the plaintiff to the manager or agent of the purchaser confirms plaintiff’s version, that an interview did take place between plaintiff and defendant on the 20th. This letter was objected to, and it has been strenuously insisted upon this appeal that its admission was an error so great as to call for a reversal of the judgment. That it had considerable bearing upon the conclusion of the jury as to the credibility of the two statements made, respectively, by the plaintiff and defendant, there can be no doubt, and if its admission was erroneous the verdict should not be permitted to stand. The ground of error assigned with respect to this letter is that it was incompetent because written by the plaintiff to a third person, and that it could not be resorted to for the purpose of showing that the testimony •of plaintiff on the stand was corroborated by a former statement to the same effect made to the purchaser. If the letter was admitted for this reason alone, we should be inclined to agree with the defendant; but we think that in his argument the appellant overlooks the fact that it was competent, as part of the res gestee, for plaintiff to show what he did under his employment towards procuring a purchaser. And this letter, written, as it was, to the •manager of the purchaser, the very person who represented- the purchaser in the negotiations with the broker, was just as comjpetent as proof of the efforts made as it would have been for the plaintiff to have personally testified to what he did under the ■contract of employment. The letter, therefore, being competent for one reason, is not rendered incompetent because it incidentally ■corroborates the testimony of plaintiff upon a material fact as to the date of the interview between the parties.

The plaintiff testified that at this interview he read to the defendant the letter received from the purchaser’s agent, in which the name of the purchaser appeared; and from this it was claimed that the defendant obtained knowledge of the purchaser. The defendant insisted that such knowledge was derived through his son, and from an examination of the Real Estate Record, and in this he was supported by the testimony of his son; and were there no other facts in the case bearing upon the good faith of the defendant in personally conducting the negotiations, we think that the basis for a recovery would have been slight. In other words, while the plaintiff’s testimony was susceptible of the view that the knowledge of the purchaser was thus obtained from the letter which he claims he received from the manager of the purchaser, and which he testified was read, still, the contrary evidence showing that prior to that time the knowledge was derived from another source, corroborated as it was by the testimony of the son, would have a tendency to preponderate in defendant’s favor. Assuming, however, that, entirely independent of the plaintiff, the defendant had from an examination of the Real Estate Record obtained the name of the purchaser, because the latter had recently purchased the property adjoining, still, if on the 20th the defendant obtained from the plaintiff knowledge that the person whom the broker had secured as a proposed purchaser was the same person of whom he had learned from the Real Estate Record, the defendant owed some duty to the plaintiff, of either terminating the agency, or notifying him that he intended personally to conduct future negotiations. But, apart from this, the testimony shows that the plaintiff’s work had been fruitful, not only in directing the purchaser’s attention to the property, but in affording him information as to incumbrances thereon, and as to the price at which i,t could be obtained, which rendered it in all probability alone possible for the defendant, within a space of a few hours, to consummate the sale.

As to what occurred upon reaching the purchaser’s office, defendant thus testifies : “ At Mr. Stokes’ office I saw Mr. Elliman. I agreed with him upon the price for this property.” And though he further testified that he never heard of Mr. Carroll, in connection with Mr. Stokes as the purchaser, until almost the actual signing of that contract, it is made evident, not only by his testimony, but by the testimony of Mr. Elliman, the manager for Mr. Stokes, and the person who conducted the negotiation, that Mr. Elliman himself told the defendant that Carroll had presented the property to them, and “ that he was, perhaps, entitled to a commission.” We think, upon this evidence, it was properly a question to submit to the jury, as to whether or not plaintiff, not only by the negotiations with the defendant, in obtaining from him a reduction of the original price that he asked for the property, but also in getting the purchaser to favorably consider it, had brought the negotiations to a point where they would undoubtedly have resulted in a contract, when the defendant personally took up the negotiations, and, with the advantage he had obtained from the plaintiff’s work, succeeded in selling the property. This question, and the rule of law applicable thereto, were clearly and fully presented to the jury by the charge of the trial judge. In addition to stating the general rule that there can be no recovery on the part of a broker unless he shows, to the satisfaction of the jury, that he brought the parties together’, and was the procuring cause of the sale, he-then presented the limitation or exception to this rule in the following language: “ It is claimed in this case that the exception has been ¡oroven, and the whole theory of the plaintiff is that performance of duty which, under ordinary circumstances, would be required of a broker, was prevented by the interference of the defendant himself. If that, be so, and if, on the facts of this case, you find that Carroll was prevented from going on with the transaction, and that Pettit took it from him, deprived him of the benefit of it, took it out of his hands, knew that he was doing so, put himself in the place of the broker, knowingly acquired to himself the benefit of the-services of the broker, and thus terminated the action of the broker so that he could go no further, then the case presents that exception which was relied upon by the plaintiff as being the foundation of the action which he has now brought.”

There being sufficient evidence in the case to present this question, all that remains is to determine whether this rule of law laid down by the trial judge was correct He, in effect, charged that when a principal intervenes, and interferes with the prosecution of the employment on the part of the broker, an exception is created to the general rule of law, and that the broker is not compelled to prove a complete performance on his part, but that he may recover his commissions in the same way as though he had completely performed his undertaking. This statement of the law we regard as supported by many cases; and, were it a new question, we fail to see why it is not a just measure of the duty which the principal owes to the agent whom he has employed for any specific purpose. A well-considered case, in which all the principles applicable to the obligations "of principals and brokers are clearly defined, is that of Sibbald v. Iron Co., 83 N. Y., 384, from the opinion in which we quote, upon the question here presented: “ Usually the broker is entitled to a fair and reasonable opportunity to perform his obligation, subject, of course, to the-right of the seller to sell independently. But, that having been granted him, the right of the principal to terminate his authority is absolute and unrestricted, excepting only that he may not do it in bad faith, and as a mere device to escape the payment of the broker’s commissions. Thus, if, in the midst of negotiations instituted by the broker, and which were plainly and evidently approaching success, the seller should revoke the authority of the broker, with a view of concluding a bargain without his aid, and avoiding the payment of commissions about to be earned, it might well be said that the due performance of his obligation -by the broker was purposely prevented by the principal. But if the latter acts in good faith, not seeking to escape the payment of commissions, but moved fairly by a view of his own interest, he has the absolute right, before a bargain is made, while negotiations remain unsuccessful, before commissions are earned, to revoke the broker’s authority; and the latter cannot thereafter claim compensation for a sale made by the principal, even though it be to a customer with whom the broker unsuccessfully negotiated, and even though, to some extent, the seller might justly be said to have availed himself of the fruits of the broker’s labor.”

We think that the evidence warranted the submission of the question to the jury, as was done by the court, and that we should not intrench upon their province in disturbing a conclusion reached by them upon disputed evidence, where the preponderance the other way was not so great as to have justified a direction of a verdict for the defendant. We are of opinion, therefore, that the judgment appealed from should be affirmed, with costs and disbursements.

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