text:
    William C. Bauer v. J. F. Betz.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    1. Supplementary proceedings—Code Civil Pro., § 2447.
    , Under section 2447 of Code of Civil Procedure, the court is authorized on the examination of a third party in proceedings supplementary to execution, to direct such person to pay over any money or property which he has in his hands belonging to the judgment-debtor when there is no substantial dispute touching the possession or ownership of the property.
    3. Same—Joint tort peasobs.
    Where as in this case two defendants were joint tort feasors, one of them cannot on his motion, compel his fellow to deliver up any property in his possession which was acquired by them both through their fraudulent and wrongful acts.
    Appeal from an order of the special term denying a motion made in behalf of the defendant to compel Henry Daily, Jr, to deliver to the receiver of the plaintiff appointed in. supplementary proceedings, $26,000 of United States government bonds in his hands which are claimed by the defendant to belong to the plaintiffs.

      >S. W. Fullerton, for resp’t, Henry Daily, Jr.; Samuel Untermyer, for the deft, and app’lt.
   Macomber, J.

The motion at special term was made under section 2447 of the Code of Civil Procedure by which the court is authorized on the examination of a third party in proceedings supplementary to execution to direct such person to pay over any money or property which he has in his hands belonging to the judgment-debtor where there is no substantial dispute touching the possession or ownership of the property.

In this action the defendant recovered a judgment against the plaintiff for $15,855.09. Upon the examination of Mr. Daily it appeared that he had in his possession $26,000 of the government bonds of the United States for which he had at one time given a receipt to the plaintiff by the terms of which, he was to deliver them at any time to the plaintiff or to the plaintiff’s wife. If this was the whole of the case, the question would be very simple and the order would follow almost'as a matter of course that Mr. Daily deliver the property over to the receiver of the judgment-debtor.

It appears, however, that some time prior to the making of this motion the defendant in this action brought an action against Bauer, and Daily and Moore charging them with having entered into a conspiracy pursuant to which Bauer made notes in a large sum in the name of the firm, many of which had been negotiated by the defendants and which had been taken up by Mr. Betz. That action resulted in a verdict against the defendants therein in the sum of about $50,000.

One of the items of evidence upon which the jury rendered a verdict against Daily in that action related to his connection with Bauer in appropriating the proceeds of the commercial paper of Bauer and Betz to the purchase of these identical United States bonds. The bonds must be considered only as a part of the property obtained by the defendants by their wrongful acts. The receipt which Mr. Daily had given to his conspirator Bauer, was long before this proceeding for his examination was instituted.

Immediately upon the rendition of the verdict and the entry of judgment thereon in the conspiracy case, which, as it appears, was effected mainly through the testimony of Bauer himself (and the amount of these bonds being clearly enough part of the amount which the jury found to be the damages sustained by Betz), there was no legal obligation* on the part of Daily to deliver the property to Bauer, notwithstanding the written receipt already referred to. The damages in that action were based upon the hypothesis that the defendants had by so much injured —not Bauer, nor the firm of Bauer & Betz, but Mr. Betz himself. The defendants were joint tort-feasors, and being such, neither of them could compel his fellow to deliver up any property in his possession which was acquired by them both through their fraudulent and wrongful acts.

Suppose, for instance, that Mr. Bauer should bring an action to compel Mr. Daily to carry out the agreement contained in the receipt. It would in my judgment be a perfect answer to say that the bonds were acquired through the wrongful act of both parties, and that a judgment had been procured against one of them, namely, Daily, through the instrumentality of Bauer himself. If any person has a moral or legal claim upon this property, it is the judgment creditor and not the judgment debtor in this action." There is no way of working out his rights, however, through or by means of the receivership established in a judgment recovered against Bauer. Nor can proceedings against this property be sustained under the section already mentioned for the reason, as has already been pointed out, that the statute is based wholly upon the assumption that the property to be ordered into the hands of the receiver should be, undisputably, th,e property of the judgment debtor. When Mr. Betz, by due process, calls for these bonds in his own right, and with a view of applying their value upon the judgment which he has recovered for the fraud which was perpetrated upon him, the order for their delivery will be timely.

The order should be affirmed, with ten dollars costs and disbursements.

Daniels and Brady, JJ., concur.


source: Caselaw Access Project

author: Brady, J. Daniels, J.

license: Public Domain

text:
    Rudolph Bohm, Resp’t, v. Michael Fay, Appl't.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    Specific performance—Title by adverse possession—When court WILL COMPEL PURCHASER TO TAKE SUCH TITLE.
    In an action to compel the specific performance of a contract for the purchase of real property, where the facts establish an adverse possession by J, B. S. and his grantees for a period of about fifty-five years, during which they have been in possession and paid taxes, etc., Held, a perfect title by adverse possession, and that the purchaser must take the property.
    Appeal from a judgment of the special term.

      Early & P^endergdst, for app’lt; Lewis Sanders, for resp’t.
   Brady, J.

This is an action to compel the specific performance of a contract for the purchase of the premises-known as No. 33j- -Stanton street in the city of New York. The plaintiff upon the trial proved the performance of all that he was called upon to do, and the defendant sought, by a resort to negative facts of ancient date, to relieve himself from the obligation of performing his part of the contract.

It appears that in 1184, Col. James De Lancey was the owner of a tract of land, including the premises in question, extending west from, as now known, Division- to-Houston street, and east from the Bowery to the East, river. By reason of ’ attainder his estate was forfeited and sold by commissioners appointed for that purpose.

It also appears that in August, 1181, the commissioners; conveyed to John.Delafield a parcel containing twenty lots, described on a map made by Evert Bancker, city surveyor, by the numbers 435 to 442, both inclusive, lying along the easterly side of First street, and the lots 441 to 458 lying-along the westerly side of Second street; bounded southerly by lots 432 and 459; westerly, partly by First street and partly by lots numbers 443 to 446; easterly by Second street and northerly partly by lot 443 and partly by Stanton street; each lot being 100 feet in length and twenty-five feet in breadth.

There is no deed on record from John Delafield to Abijah. Arden or to any one else. But he, as the owner of the-premises, conveyed to John Smith (known as John B. Smith), on the 29th of May, 1810, the premises in question here which were designated as number 450 on a map of' the De Lancey tract in part or in whole to which reference is made in the deed, and John Smith executed a purchase-money mortgage of the same date. That mortgage was not satisfied, however, until November 27, 1875, when it was discharged in a partition suit in reference to this and adjoining lands made by the Smith heirs and which was commenced in 1874.

Smith conveyed the premises to John Pell by deed dated May 1, 1818, and Pell and wife conveyed them to David Marsh on July 9, 1818, by deed which was recorded on the 29th of July, 1819. There is no conveyance, however, of any kind from Marsh to John B. Smith, of the particular lot in controversy and the register’s search fails to disclose the transfer of the premises by Marsh to any one. And the next conveyance directly effecting them is, therefore, the deed of John B. Smith to John M. Smith, dated July 17, 1823, and recorded on the 29th of the same month, and the trust deed by John M Smith to Thomas Jefferson Smith, dated September 14, 1848, and recorded on the same date.

The defendant sought to assail the title by the introduction of a map of the Delancey property, western part, copied from a map on file in the street commissioner’s office, by G-. E. Smith, city surveyor, 1831, showing lot 450-as fronting on Second, now Forsyth street. But, as properly said, “What the original map in the street commissioner’s office was, when made, for what purpose and from, what data, there is no evidence.”

The learned judge, in the consideration of this subject, said that there was no proof that the map which was introduced in evidence, called the Delancey map, was the map-referred to in the deeds of the premises in question, but that the description showed conclusively that the lots were differently -located.

It was conceded that there were some inconsistencies in the different lots conveyed, with reference to the maps referred to, but the learned justice saw no trouble whatever, taking them altogether, in determining exactly what was intended to be conveyed. It appears, however, as-stated" by him, that as early as 1828, John B. Smith conveyed the premisés in question to John M. Smith, and the evidence established the fact that since 1840 the grantees of Smith have been in the undisturbed possession of this property, no claims ever having been made by Marsh or any of his descendants to any part of the premises in question. In addition to which must be considered the fact that neither Marsh nor any of Ms descendants (if any existed) ever attempted to convey the property or to interfere with it in any way. And it also appears that ever since 1840 the taxes have been paid by Smith and his grantees.

It not unfrequently happens that a chain of title is broken by the absence of a deed, while the title itself is distm guished by long and continued possession, so long indeed that a conveyance is presumed to have been executed justifying the possession so obtained and continued. It'may also be said that there is reason to believe that there were two maps of the De Lancey estate from the evidence in the case, and for the reason that the map introduced in evidence appears to have been of the De Lancey property (western part). The facts of this case, therefore, establish an adverse possession from July 17, 1828, by John B. Smith and his grantees, that being the date on which his deed ap • pears to have been executed, a period of about fifty-five years, during which they have not only been in possession but have paid the- taxes, etc. And this view seems to meet all the objections interposed on the part of the defendants as a reason why they should not complete the purchase.

The facts present all the necessary elements, therefore, to perfect a title by adverse possession even if the chain of title be regarded as incomplete. And having arrived at that conclusion it follows that the judgment must be affirmed.

Daniels, J.

Without intrenching on the salutary rule that a purchaser will not be required to accept a doubtful title, this judgment seems to Le right. The authorities were examined in Ottinger v. Strasburger (33 Hun., 466), and this ride was considered to sanction an action for specific performance, where the leading facts were in principle similar to those appearing here. 1 agree therefore, to an affirmance of the judgment.

Macomber, J., concurs.


author: Daniels, J.

text:
    Charles E. Appleby, App’lt, v. The Mayor, etc., of the City of New York et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    Specific performance—Hew York (city of)—Right to land under water—Duty of comptroller to convey—Resolution permissive,' NOT MANDATORY.
    Where the owner of certain land extending to the high water line of the Hudson river applied as such owner to the commissioners of the sinking fund for a grant of the land under water in front of his land claiming a pre-emptive right under the law to acquire the title to this property. The said commissioners, after the receipt of the report as to the price to be charged from the proper officers: Resolved, “ That the comptroller be and he is hereby authorized to cause a grant to be issued to O. E. A. for the land under water (describing the land), and containing the usual covenants and conditions at fifty dollars per foot running measure.” Held, that the language of the resolution was not mandatory upon the comptroller, but was solely permissive That it created no such absolute duty upon the comptroller as would supply the legal foundation for an action to compel him to convey land. The Argus (Jo v. Mayor, etc., of Albany, 7 Lans., 264; affirmed 55 if. Y., 495, distinguished.
    Appeal from a judgment recovered on trial at the special term.

      Cecil Campbell Higgins, for appl’t; James C. Carter, for resp’ts.
   Daniels, J.

The plaintiff in April, 1869, was,» and since then has been, the owner of lands extending to the high water Ene of the Hudson river, between the northerly Ene of Fifty-sixth street and the southerly Ene of Fifty-eighth street, in the city of Hew York. As such owner he, in 1869, appEed to the commissioners of the sinking fund for a grant of the land under water in front of his lots. This appEcation was made upon the ground that he had the pre-emptive right under the law, as the owner of the upland, to acquire the title to this property. This appEcation was made under an ordinance of the city committing the qualified control of the disposition of the property on the water fronts to the commissioners of the sinking fund. Under the ordinance they were required to refer the matter of the sale to. the' comptroEer and street commissioner of the city, the powers of whose office at the time in controversy had been vested in the commissioner of the department of pubEc works, to ascertain from them by their report what sum of money should in their judgment be charged as the consideration for such grant. They did make this reference, and the officers to whom it was made, reported that the sum of fifty doEars per running foot should be charged as the consideration for the grant. This report was accepted, or approved, by the commissioners of the sinking fund, who adopted a resolution at a meeting held on the 18th of August, 1871, by which it was

“Resolved, That the comptroller be and he is hereby authorized to cause a grant to be issued to Charles E. Appleby for the land under water on the Horth river, in front of the upland owned by him, between Fifty-sixth and Fifty-eighth streets, extending to the exterior line of the city, as now fixed by law, and containing the usual covenants and conditions, at fifty doEars per foot, running measure.”

The comptroEer under this authority was appEed to from time to time by the plaintiff to cause the grant or conveyance of the property to be executed and deEvered to him, but that was declined and deferred for reasons which this officer regarded as rendering it his duty to withhold the conveyance. FinaEy, on the 19th of January, 1879, the plaintiff tendered to John Kelley, as the comptroller of the city, the amount of the price required to be paid for the land by this resolution. That was not received, and a refusal of the conveyance was at that time made by the comptroller. On the same day on which this resolution was adopted the sinking fund commissioners also

“Resolved, That no further grants of land under water be made, executed or delivered where the grant covers land under water in front of the land between high and low Water mark owned by the corporation, etc., of the city of New York until further order of the board. ”

But as this resolution seems to have been adopted prior in point of time to that under which, the plaintiff claims to-be entitled to a conveyance of the property, it did not restrain the action of the sinking fund commissioners. And beyond that they afterwards, and in February, 1872, consented that the plaintiff might take out the water grant from the city, upon his acceptance of additional terms qualifying and restraining the effect of the grant to be delivered. Those he did accept, and afterwards, repeatedly requested the execution and delivery of the conveyance to him. The disposition of the case consequently depends upon the effect of the resolution, under which it has been claimed that it became the duty of the comptroller to cause the grant to be executed and delivered. It has been urged in support of the judgment, that the provisions made by section 6 of chapter 574 of the Laws of 1871, enacted before the adoption of the resolution and creating and defining the powers and authority of the department of docks of the city, superseded the right of the public authorities to convey this, or other land, under water, upon either of the water fronts of the city. But it is not necessary to determine whether that objection is well founded or not. Neither is it requisite that it should be decided whether or not the plaintiff as the owner of the up-land was entitled to a preemptive right to acquire the title to this property, to the extent to which it has been claimed, or any part of iL That subject was fully considered in the case of The Mayor, etc. v. Hart (16 Hun., 380), and affirmed, 95 N. Y., 443.

But under the resolution which was finally adopted, and constitutes the basis of the plaintiff’s action, no absolute right to the acquirement of this property by the plaintiff was created. It proceeded no farther than to grant the authority to the comptroller to cause a conveyance of the property to be made. No mandatory language of any description was employed in it, but it was permissive solely in its effect. And that being its extent it created no such absolute duty upon the comptroller, as will supply the legal foundation for an action of this description, which in effect is a suit for the specific performance of an agreement for the sale of lands. No defect in the case arises out of any omission properly to authenticate the resolution by the officers adopting it, but the infirmity is caused by the language in which the resolution itself was adopted, committing to the comptroller the authority, and nothing beyond that, to cause the grant to be executed and delivered.

This resolution differs very substantially from that which was deemed sufficient to create a contract in The Argus Company v. Mayor, etc., of Albany (7 Lans., 264; affiming 55 N. Y., 495). For the proceedings there were of such a nature as to complete and consummate a contract for the employment of the plaintiff to render the services for which compensation was claimed in the action. The language there used included no discretion whatever, but it provided for the publication of the proceedings of the board in one daily paper at an expense mentioned in the resolution, and in which the advertising of the city was to be published at legal rates, and it then designated the plaintiff’s paper as the newspaper in which the publication should be made. And after the expiration of the period for which the employment was provided, it was renewed and extended by a further resolution as absolute and unqualified in its terms concerning the employment. There was reason, consequently, in that case for holding the resolutions, with their acceptance by the plaintiff, to create a contract which is not applicable to this controversy. For here the commissioners of the sinking fund entered into no agreement' entitling the plaintiff to a conveyance of this land. Indeed they had no authority to convey it themselves, but when they assented to the terms of the report made by the comp trofier and street commissioner, the comptroller was empowered to cause the grant to be issued. This was all the authority provided by the ordinance itself, and all which the resolution contained, and left the future action of the comptroller subject to his own volition, as that might be controlled by what he deemed to be just or expedient, regarding the interests of the city in the case. He concluded that the grant should not be made. The language of the ordinance was such as to confide a discretion to him. He exercised it against the plaintiff, considering the public interests to require that action on his part, as one of the officials of the city. And having determined against the grant, the plaintiff cannot accelerate his action or require him to act differently by the intervention of an equitable action. He has no absolute right certainly to the property. And if the power to convey it still exists, notwithstanding the legislation of 1871, it must be voluntarily exercised on the part of the city officials. Their favorable action cannot be compulsorily secured. As the plaintiff could not maintain the action at all, he was not injured by the exclusion of the evidence offered to show that he had actually improved the property. What he did in that respect was át his own risk, without any inducement held out to him to do so on the part of the city. The judgment on these grounds was right, and it should be affirmed, with costs.

Churchill and Brady, JJ., concur.


text:
    James Bostwick, App’lt, v. Matilda Brush, Adm’x, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October, 1886.)

    Executors and administrators—Parties—Code Civil Pro., § 1814.
    To bind the estate of a deceased party, or to authorize any decree for an account against the same, it is not sufficient that the person, who is the representative thereof, is a party to the suit. Such person must be made a party distinctly in his representative character. Fisher v. Bubbell, 65 Barb., 74, followed.
    Appeal from a judgment entered on the report of a referee.

      R. W. Keene, for app’lt; E. Luther Hamilton, for resp’t.
   Daniels, J.

The appellant presented a verified claim to the defendant as administratrix of the estate of Samuel Ogbourn, deceased. It was disputed by her, and by agreement, with the consent of the surrogate, it was referred to a referee. He reported in favor of the defendant, and the appeal has been brought from the judgment entered upon his report. No question has been made as to the regularity of the appeal, and for that reason the case may legally be determined upon its merits. The plaintiff was the guardian of the intestate, who became of age in July, 1819, and died on or about the 11th of February, 1882. His estate consisted of a bond and mortgage on real estate, which was delivered by the claimant to the administratrix, and it was for his commissions, expenses and advances, as general guardian that the action was brought. To sustain the claim reliance was placed upon a decree of the surrogate of Queens county, but this decree was not recovered in a proceeding to which the defendant was made a party as administratrix of the estate, as that was required for the purpose of charging her in that capacity under section 1814 of the Code of Civil Procedure. The petition for the accounting was against her individually as the only person interested in the estate of the intéstate, and the citation issued by the surrogate was to her individually and not as the administratrix of the estate. She did not appear as administratrix in the proceeding, but individually through another person applied for and obtained an adjournment of the hearing, at which time the decree was taken without any further interposition on her part. And this decree was held by the referee not to be sufficient to establish her liability 'to pay the plaintiff’s claim as administratrix. That point was previously considered in Fisher v. Hubbell (65 Barb., 74), where it was decided by the court that to bind the estate of a deceased party the proceeding must be against the personal representative as such. This was not such a proceeding, and as the defendant was in this proceeding proceeded against as administratrix the decree did not establish the right of the claimant to recover against her in that capacity.

Some evidence was given tending to establish an overpayment by the claimant of $117.62, but when, or under what circumstances, or why the alleged payment was made, was not proven upon the hearing and the evidence proposed to be given to prove it was excluded upon the objection of the claimant, and this part of the demand therefore failed to be so established as to entitle the claimant to its allowance by the decision of the referee. For the commissions, an accounting and settlement of the estate is a necessity. And as that can only be properly bad by making the administratrix a party to it, a new proceeding for that object requires to be instituted. As the case was tried, there was no legal evidence before the referee upon which the claimant could recover in the proceeding, and it was the duty of the referee to dismiss the proceeding as he did. But as the case was entirely devoid of evidence, neither the report nor the judgment should have determined this dismissal to have been on the merits. To that extent the decision is unsupported and the judgment should be modified by confirming it as a mere dismissal of the proceeding, and as so modified affirmed, without costs to either party.

Brady, J., concurs.


author: Macomber, J.

text:
    Ralph L. Anderton, Jr., Resp’t, v. Alfred Wolf, Impleaded with the New York Company, Limited, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    1. Pleading—Demurrer—Must specify the defect objected to—Code Civil Pro., § 490.
    A demurrer must as a whole fail where a portion of it, even though good, cannot he sustained unless the whole of that ground of the demurrer is properly taken.
    2. Same—When demurrer for defect of parties not good.
    In order to sustain a demurrer for a defect of parties it must appear that the party demurring has an interest in having the omitted parties joined or that he is prejudiced by the non-joinder

      8. Same—What must be stated nr demurrer eor mis-joinder—Code Civil Pro., §§ 484, 490.
    Where it is stated as a ground of demurrer that there are several and distinct causes of action set forth in the complaint, which do not effect the defendant, but it does not specify what they are; it alleges that several causes of action therein stated do not belong to any one of the sub-divisions of Code Civil Procedure, § 484, but it does not specify them; that legal and equitable actions not referring to the same person or subject-matter are included in the complaint; but does not mention wherein they are thus united or what are supposed to be equitable and what legal. Held, the demurrer was defective and must be overruled under Code Civil Procedure, § 490.
    4. Same—Action by a stockholder to prevent waste oe corporate BUNDS.
    Where the complaint alleged that a "certain defendant caused stock belonging to the defendant corporation to be transferred to other defendants and to be so dealt with by said defendants as to carry into effect a conspiracy to defraud the corporation of which plaintiff was a stockholder Held, on demurrer that sufficient was stated in the complaint to constitute a cause of action against the defendants, who are alleged to have received said stock for the purpose of carrying out the conspiracy.
    5, Corporation—when demand that oeeiceroe. commence suit, will be DISPENSED WITH.
    Where it is shown by proper allegations that the corporation isAinder the control of those who must be defendants in the suit by which alone the proper relief can be had, a demand that such action be brought is not required. Where a fraudulent breach of trust is shown and it is apparent on the face of the complaint that the corporation cannot move for the protection of the stockholders, then a stockholder may without a demand begin an action in his own behalf and in behalf of such as may join with him.
    Appeal from an interlocutory judgment entered upon an order overruling the appellants’ demurrer.
    The demurrer to the amended complaint is based, first, on the ground that there is a defect of parties defendant, in that it appears upon the face of the complaint that there are nine directors of the defendant company, three of whom, namely, Webber, Myers and Doty are not joined as defendants; that there are three inspectors of election, of whom only two are joined as defendants, and that certain promissory notes made by the defendant, Rudolph Aronson, which have been transferred by him, and the transferees or holders are not made parties.
    The second ground of the demurrer is that there are several distinct causes of action set forth in the complaint, and they severally do not affect this defendant, except one; that causes of action united in said amended complaint appearing upon the face thereof not belonging to any one of the subdivisions of section 484 of the Code of Civil Procedure, but, on the contrary, they do belong to different subdivisons thereof; that causes of action on claims not arising out of the same transaction or transactions not connected with the same subject of action, are included in the amended complaint, that legal and equitable actions not referring to the same persons or subject matter are united in the complaint.

      The third ground of the demurrer is that the amended complaint does not state facts sufficient to constitute a cause of action.
    The fourth ground is that the amended complaint, hr the paragraph relating to or stating a cause of action against the defendant Conroy does not state facts sufficient to constitute a cause of action against this defendant.
    The fifth ground of the demurrer is that the amended complaint, in the paragraph relating to or stating a cause of action against the defendants, Edward Aronson and Henry E. Smith, does not state facts sufficient to constitute a cause of action against these defendants.

      Franklin Bien, for app’lts; A. J. Dittenhoefer, for resp’t.
   Macomber, J.

The fifth and second grounds of the demurrer come respectively under subdivisions six and seven of section 488 of the Code of Civil Procedure, and the particular objection or defect relied upon is required (by § 490) to be specifically pointed out. In respect to this requirement of the Code the demurrer is wholly defective. As to the first ground of the demurrer, it does not appear upon the face of the complaint that there was a third inspector of election, nor does it appear therein who were the owners and transferees of promissory notes alleged to have been executed by the defendant Aronson. While, therefore, a different argument might have been based upon the demurrer which is addressed alone to the defect of parties defendant in respect to the non-joinder of the directors of the defendant corporation, yet the demurrer must, as a whole, fail because that portion of it, even though good, cannot be sustained unless the whole of that ground of the demurrer is properly taken; otherwise the court would have to sustain one ground of the demurrer in part, and overrule it in part, which is clearly not contemplated by the provisions of the Code of Civil Procedure. Moreover, what interest has this defendant in having the other defendants, for whose absence he has instituted this ground of the demurrer, brought into the case? In order to sustain a demurrer for a defect of parties it must appear that the party demurring has an interest in having the omitted parties joined, or that he is prejudiced by the non-joinder. Wooster v. Chamberlain, 28 Barb., 602; Littell v. Sayre, 7 Hun, 485; Moore v. Hegeman, 6 id., 290; Sanders v. Village of Yonkers, 63 N. Y., 489.

The second ground stated in the demurrer is also equally fatally defective. Here, too, the rule requires the objection and suposed defect to be particularly and specificafiy pointed out by the demurrer itself. This thing the demurrer has failed to do. It states that there are several and distinct causes of action set forth in the complaint which do not affect the defendant, but it does not specify what they are. It alleges that several causes of action therein stated do not belong to any one of the sub-divisions of section 484 of the Code of Civil Procedure, but it does not specify them. It also alleges that causes of action upon claims not arising out of the same transaction or transactions connected with the same subject of action are included in the complaint, but these, too, are not particularly pointed out. It also alleges that legal and equitable actions not referring to the same persons or subject-matter are united in the complaint, but wherein they are thus united, and what particular actions are supposed to be equitable and what legal, it does not mention.

The third, fourth and fifth grounds of the demurrer may be considered together, and may be treated as a proper form in which to raise the question that upon the face of the complaint it appears that the plaintiff has not stated facts sufficient to constitute a cause of action against the demurring defendant.' This ground of the demurrer wholly misapprehends the scope and legal bearings of the complaint. The complaint, which is quite elaborate, first mentions this defendant in sub-division 5& thereof, where it is alleged that on the 16th day of August, 1884, the defendant Rudolph Aronson “also caused to be transferred to. ' the defendants Isaac Dreyfuss, Albert Aronson, James H. Miller, Samuel Benzer and Alfred Wolf, the balance of the shares of stock held or claimed to have been held and owned by the said Rudolph Aronson.” Thereupon, it proceeds to allege that the defendants above named, acting in concert with the defendant Rudolph Aronson and the defendants in league with him, and for the purpose of aiding and assisting Rudolph Aronson and the other defendants in misappropriating the funds and stock of the defendant corporation as in the complaint set forth, accepted and received the said transfer of stock, and thereupon, as part of then-scheme and conspiracy to defraud the defendant corporation and its stockholders as in the complaint alleged, and aid and assist Rudolph Aronson to continue himself in power, these defendants; excepting Albert Aronson, executed and delivered to Rudolph Aronson proxies authorizing him to vote upon said stock at the September meeting, in such manner as said Rudolph Aronson desired. That these defendants, including Albert Aronson, had knowledge of the manner in which the shares of stock had been issued to . Rudolph Aronson, and that the validity thereof and the right of Rudolph Aronson to hold the same was about to be contested by stockholders of the company, and these defendants received the transfer of stock to them in view of the approaching annual stockholders meeting and election of directors thereat, and for the purpose of anticipating and evading an injunction restraining- Rudolph Aronson from voting at the election upon said stock, and that Rudolph Aronson, with these several defendants, conspired and colluded to accomplish that object. It further alleges that the transfers were colorable merely and were a sham and done for the purpose of aiding Eudolph Aronson in his general scheme of defrauding tho corporation. We have therefore, this defendant introduced in such a manner as to entitle the plaintiff to certain relief provided the facts therein alleged are true.

The action is brought by the plaintiff as one of the stockholders of the defendant company and is instituted in his own behalf and in behalf of all others similarly situated, and it is alleged (p. 64) that the defendant Eudolph Aron-son controlled the majority of the board of directors who are friendly to him, to aid and assist him in illegal acts spread out in the complaint and without whose consent or direction this action could not .be brought. The charge against the demurring defendant is only one of a series of alleged illegal and fraudulent acts of persons composing the majority of the board of directors of the corporation, by which the value of the stock and property of the corporation has been greatly injured, and if these acts are permitted to continue great loss will accrue to the plaintiff and to others similarly situated. It is not necessary to mention in detail the particular charges other than those already mentioned as against this demurring defendant, for the purposes of this decision.

No demand was made upon the officers or directors of the corporation to bring an action of this description, and the question mainly discussed at the argument relates to a supposed barrier against the plaintiff’s further progress, inasmuch as such demand has not been made. The general rule doubtless is that before a stockholder can institute an action which the corporation itself is capable of beginning, but fails to begin, a demand must be made upon the corporation or its officers. Greaves v. Gouge, 69 N. Y., 154; Spencer v. Clark, gen. term, 1st dep’t, Oct. 1885. In the latter case, no demand had been made upon the trustees, neither did it appear that the affairs of the corporation were under the management of any board of officers or trustees indisposed to institute the suit required or make a defense to the mortgage which was then in controversy.

On the other hand, where it is shown by proper allegations that the corporation is mider the control of those who must be defendants in the suit by which alone the proper relief can be had, a demand that such action be brought is not required. Where a fraudulent breach of trust is shown, and it is apparent on the face of the complaint that the corporation cannot move even for the protection of the stockholders who are the cestui que trust of the corporation, then a stockholder may be permitted, without a demand, to seek in his own behalf and in behalf of such ■others as may join him in the action, to undo the fraudulent and unlawful acts of those who have perverted the uses and purposes of the corporation who have despoiled the stockholders of their property. Brewster v Hatch, 10 Abb., N. C., 406; Heath v. Erie Railroad Co., 8 Blatch., 347; The County of Tazewell v. Farmers’ Loan and Trust Co., 12 Fed. Rep., 752.

The interlocutory judgment overruling the defendant’s demurrer should be affirmed, with costs, with leave to the defendant to withdraw the same and answer upon payment of the costs of the demurrer.

Daniels and Brady, JJ., concur.


text:
    William Caswell, Resp’t, v. Nathaniel D. Putnam et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    Conversion — Unauthorized sale of stock — Sale without authority FROM THE OWNER CONSTITUTES A CONVERSION — OWNER MAY SUE FOR DAMASES OR TO RECOVER THE PROCEEDS OF THE SALE — NOT BOUND BY UNAUTHORIZED ACTS OF HIS BROKERS.
    Shares of stock were purchased hy defendants for plaintiff under an order communicated to them by their agent M. On July 81,1882, M., ordered them to sell the shares, which they did at a profit. This order was given without the knowledge or authority of plaintiff. Afterwards other purchases and sales of stock were made by defendants under the direction of M., without the knowledge or authority of plaintiff but in his name. March, 1884, plaintiff still supposing the shares he had directed to be purchased and which were in fact first purchased for him, were held by defendants directed them to sell the shares. They did sell that number of shares of the stock in compliance with the direction charging him therewith and rendered him an account stating therein all the dealings had in his name, which he disaffirmed except the one of July, 1882. Held, that plaintiff could affirm the unauthorized sale of July 81, 1882, and disaffirm all the other sales. That the order he gave for the sale of his shares in March was wholly inoperative, defendants having ceased to hold them for him. That his right of action had accrued, although it was without his knowledge, and it could not be afterwards divested by his order to sell what had been then disposed of.
    Appeal from a judgment on the report of a referee.. Wager Swayne, for appl’ts; Thomas Thacher, for resp’t.
   Daniels, J.

The action was for the amount realized by way of profit on the sale by the defendants as stockholders . of one hundred shares of the stock of the Union Pacific Railroad Company. The shares were purchased by the defendants for the plaintiff under an order communicated to them by their agent William G. Morgan. On the 31st day of July, 1883, he ordered them to sell the shares, which they did, obtaining the advance thereby on the cost which the plaintiff has been adjudged entitled to recover. This order was given without the knowledge or authority of the plaintiff. And the shares being at the time his property, the sale made of them was in judgment of law a conversion of the shares, although the defendants made it m good faith, supposing that the plaintiff had authorized it. For any disposition of another’s property without his authority or consent is a conversion of it by the person or persons disposing of it. Boyce v. Brockway, 31 N. Y , 490; Spraights v. Hawley, 39 id., 441.

By this conversion of the shares the defendants turned the property into money. And to redress the wrong which the defendants were chargeable with by making this change in the property, the plaintiff had an election of remedies. He could either bring an action for the conversion or for the proceeds of the shares, as so much money received for his use, by the defendants. Strong v. Mechanics Bank, 45 N. Y., 718; Abbott v. Blossom, 66 Barb., 353; Taussig v. Hart, 58 N. Y., 425; Comstock v. Hier, 73 id., 269.

And the latter seems to have been the course adopted in the action, as the recovery was measured by the amount the plaintiff was entitled to out of the proceeds of the sale.

After the time when this sale took place other purchases and sales of stock were made by the defendants under the directions of their agent Morgan, without the knowledge or authority of the plaintiff, but in his name. And he in March, 1884, still supposing and believing that the shares he had ordered to be purchased, and which in fact were purchased for him, were held for him by the defendants, directed them to sell the shares, and they did sell that number of Union Pacific shares in compliance with that direction, charging him with the loss resulting from the sale. They also rendered him an account, stating the dealings in stocks had through them in his name, but which he, with the exception of the sale made on the last day of July, disaffirmed after the facts came to his knowledge. The defendants have denied his right to do that, insisting that he should either affirm or disaffirm these dealings in toto. And authorities have been cited by the learned counsel for the defendants maintaining that to be the law applicable to the dealings of a principal with his agents. But this case is not within that legal rule. For the only dealings had between the plaintiff and defendants was their purchase of the one hundred shares of stock for him which they sold without his authority on the 31st day of July, 1883. And it is wholly out of that dealing and sale that Ms legal rights and their obligations have arisen. What was after-wards done while it was m his name were not dealings with the plaintiff, but with their own agent, who for that purpose fraudulently made use of the plaintiff’s name. It was not a wrong which he was in any manner connected with or responsible for. But it was the wrong of the defendant’s own agent, perpetrated by him on them, and for the consequences of which he alone is legally liable to indemnify them. The plaintiff was in no way, either in fact or law, privy to these dealings, and in no way affected by them. The order he gave for the sale of his shares in March was wholly inoperative, for the reason that the defendants had long before that time ceased to hold those shares for him. Their rights and obligations had then become fixed. His right of action had accrued, although it was without his knowledge. And it could not be afterwards divested by his order to sell what had then been disposed of and was beyond the power or control of the defendants, nor by the unauthorized and fraudulent acts of the defendant’s own agent, having no power whatever to represent the plaintiff. McKnight v. Dunlop, 1 Seld., 537, 544.

These facts furnished no legal defence to the action, and the judgment should be affirmed.

Brady, J., concurs.


text:
    Henry De Graaf, Res’pt v. Jacob F. Wyckoff, App’t.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    1. Bills and notes—When endorser entitled to accounting .for value OP BONDS DEPOSITED AS SECURITY AND WRONGLY SURRENDERED.
    This action was brought to obtain an accounting for forty railroad bonds issued by the U. and P. V. R. R. Co,, of $1,000 each, delivered to the'defend ant as security for the payment of five prammissory notes made by one Scofield and endorsed by plaintiff, amounting in the aggregate of $20,000. These notes were made and endorsed for the use of said Scofield, and the bonds were deposited in pursuance to an agreement between Scofield and plaintiff for the ultimate benefit of plaintiff as endorser. Afterward plaintiff consented that forty first mortgage bonds of the W. and J. V. R. R. Co., with the value of which he was acquainted, be substituted in place of the like number of U. and P. Y. R. R. Co. bonds held by defendant to secure the loan made to Scofield on the five notes. But in place of these bonds which, by the authority of the plaintiff, the defendant was to receive upon the surrender of the U. and P. Y. R. R. bonds, he received what was in effect second mortgage bonds, issued on a consolidated road formed in part of the W. and J. Y. R R„ which bonds were worthless. These notes were renewed and a second series of notes given, which, when they became due, at the request of the plaintiff, their endorser, the defendant took up from the bank which had discounted them for his, defendant’s, benefit. This was done on the promise of plaintiff to give defendant his notes for a like amount. But plaintiff, discovering that defendant had received bonds from Scofield different from those authorized by him to be taken upon surrendering the U. and P. Y. R. R. Co., declined to make and deliver the notes as agreed. An action was brought by the defendant herein as plaintiff against the plaintiff herein as defend ant for damages, in not making and delivering said notes as 'agreed, which resulted in a judgment in favor of the plaintiff (the defendant herein) for the amount of the notes, with interest Held, that the defendant being aware of the fact that plaintiff was entitled to the benefit and advantage of the forty U. and P.‘ V. R. R. bonds, and having surrendered said bonds without complying with the authority under which that alone could be done, became liable for the loss plaintiff sustained through that surrender. That the recovery, however, should not exceed what was the then value of the forty W. and J. Y. R. R. bonds, which plaintiff had authorized to be substituted for the forty U. and P. Y. R. R. bonds, with interest.
    2 Same—When a former action not a bar.

      Held, that the former action was not a bar to this action; that the two agreements were distinct and independent; that the judgment in the former action did not pass upon the point involved in the present suit.
    3’. Same—When parties in present action estopped from setting tjp FORMER JUDGMENT AS BAR.
    The present plaintiff, as defendant in the former action, set up by way of defense this misappropriation of the bonds, but that defense was excluded upon the objection of the plaintiff in that action. Held, that defendant is estopped from insisting that the subject-matter of this action was barred by the judgment in the other suit.

      4. Same—Evidence—What excluded by failure to plead payment.
    It was proper to exclude the evidence tending to show that the second series of notes had been given upon a new discount, or that the first series had been in fact paid, for the pleadings in the action had settled the manner in which the second series had been obtained, and no defense of payment was alleged.
    Appeal from a judgment recovered on trial at the special term.

      Cephas Brainard, for app’lt; James It. Marvin and Abram Kling, Resp’t.
   Daniels, J.

The object of the action was to obtain an accounting for forty railroad bonds of $1,000 each issued by the Utah & Pleasant Valley Railway Company and delivered to the defendant, as security for the payment of five promissory notes made by Charles W. Schofield and endorsed by the plaintiff, amounting in the aggregate to to the sum of $20,000. The notes were made aná endorsed for the benefit of Scofield, and after their making and endorsement, were at his instance discounted by the defendant. They were endorsed by the plaintiff for the use of Schofield under an agreement that they should be secured by the deposit of these railway mortgage bonds. And that the defendant understood the endorsement of the notes by the plaintiff to be for the benefit and use of Scofield who made them, is not only to be inferred from the transaction through which the defendant received the notes, but also from the form of the notes themselves, for they were made payable to the order of the plaintiff. And as they were in the possession of Scofield, the maker, after the endorsements placed upon them by the plaintiff, that was a circumstance pointing directly to the fact that the- plaintiff had endorsed them for the benefit of Scofield and to enable him to usé them in his own transactions. An agreement was made by Scofield with the plaintiff at the time when the notes were endorsed and received providing for the use_ which was made of them; that is, that they should be discounted by the defendant, and that the forty bonds of the Utah and Pleasant Valley Railroad Company should be deposited with them, as security for their payment. When these notes became due, others in a similar form, but payable to the order of Scofield, were made and endorsed in like manner, and delivered 'to the defendant. These notes were alleged in the complaint to have been given to renew the preceding notes, and that allegation was admitted by the defendant’s answer. When the first notes were received by the defendant he executed, and delivered an instrument in the following form:

“Received of H. P. De Graaf, Esq., through C. W. Scofield, Esq., forty U. and P. V. bonds ($1,000 each), as collateral to C. W. Scofield’s notes for $40,000.
October 11, 1879.
“ J. F. WYCKOFF.
“Indorsed by H. P. De Graaf.”

The above note or notes is total $20,000, as follows:

October 6.
C. W. S., “Ind.” himself, and H. P. D. G., due February 6........ $3,500
“ “ “ “ 3,000
“ " “ “ 3,500
“ “ “ “ 5,000
“ “ “ “ 5,000
Forty bonds as collateral. $20,000

And from that it distinctly appears that the security created by the deposit of the bonds, was for the ultimate benefit of the plaintiff as endorser upon the notes. And that in fact carried out the stipulations made by Scofield, with the plaintiff, that if he failed to pay the notes at maturity, ana the endorser should be called upon to pay them, in that event the plaintiff as endorser should receive the bonds and sell the same for the best price he might obtain at the time, and with the proceeds pay the notes, and in case of deficiency Scofield further agreed to pay the same at once. After that, and before the first series of notes matured, at the instance and for the benefit of Scofield, the plaintiff wrote and transmitted through Scofield to the defendant the following letter:

New York, December 30, 1879.
J. F. Wyckoff, Esq. :
Dear Sir—You have my consent to substitute forty first mortgage bonds of the Wasatch and Jordan Valley Railway Company bonds, instead of the forty bonds you now hold of the Utah and Pleasant Valley Railway Company on loan to C. W. Scofield, of $20,000, with my endorsement.
Yours,
H. P. DE GRAAF.

Under which the bonds were delivered by the defendant, to Scofield, and forty other bonds of the denomination of' one thousand dollars each, with seven per cent, interest, were received by the defendant. But these forty substituted bonds were not the first mortgage bonds of the Wasatch and Jordan Valley Railway Company, but they were bonds issued by the company of that name, and stated upon their face to be secured by a first mortgage-“upon the whole of the railroad fine from Bingham Precinct, and thence by way of Sandy Station to Granite, thence to Alta, in Little Cottonwood, Canon, and also from. Granite to Big Cottonwood, Canon, all in Salt Lake-county,” in the territory of Utah. Those bonds were issued on or about the 1st of May, 1879, and were seemed by a mortgage upon this property, while the first mortgage bonds of the Wasatch and Jordan Valley Railroad Company were issued in the year 1873, for the sum of $500 each, payable with interest at the rate of nine per cent, and such bonds were outstanding, and by means of the collateral mortgage were a first hen upon the Wasatch and Jordan Valley Railroad. And that these bonds had been so issued and were outstanding was a fact which it appears from the evidence of the defendant was at the time known to him. This was shown by his own cross-examination as a witness, and also by an affidavit made by him to obtain the arrest of Scofield for inducing him to receive these substituted bonds in place of those which he surrendered. Upon that subject nis statement was that: “I said to Mr. Scofield: Some months ago I had from you, of the denomination of $500, some bonds of the Wasatch and Jordan Valley Railroad Company, which I understood were first mortgage bonds. How do you say that these that you now offer me are first mortgage bonds?” His answer was: “I have made a pool for the bonds of the old issue, and as fast as any of these ones which I now offer you are put out I retire a corresponding amount of the others, so that these are first mortgage bonds.” He further deposed and stated in the affidavit that he found out subsequently that Schofield never had pooled the original bonds as he represented he had, and that the mortgage given to secure them was being foreclosed. And he stated that this “previous issue was really the only first mortgage bonds the Wasatch road had issued.” In place of these bonds, which by the authority of the plaintiff the defendant was to receive upon the surrender of the Utah and Pleasant Valley Railroad bonds, he received what'was in substance and effect a second mortgage bpnd issued upon a consolidated road formed in part by the original Wasatch and Jordan Valley Railroad. This consolidation was made with the Bingham, Canon and Campfloyd Railroad, and an extension was added to that. But at the time of the consolidation a preceding first mortgage to secure bonds had been created upon the Bingham, Canon and Campfloyd Road. And the only portion of the railroad first mortgaged to secure the series of bonds received by the defendant in place of the Utah and Pleasant Valley Railway bonds, was that which was added to the road of the Wasatch and Jordan Valley Railroad, and the road of the Bingham, Canon and Campfloyd Railroad, and these bonds were stated to have been substantially worthless.

Before the second series of notes became due, the plaintiff, as their endorser, requested the defendant to take them up from banks which had discounted them for his benefit. And to induce the defendant to take up the second series of notes, a further agreement was made with him which he has stated in the course of his evidence in the following language:

Mr. De Graaf said he was indorser on a large amount of Mr. Scofield’s paper, and unless he was accommodated by those who held it, he would have to fail inevitably, and appealed to me to provide money to take up those notes, and said he would give his own notes at four months if I would do so; the first note was coming due the .next day; I agreéd, notwithstanding the shortness of the time, to provide this $20,000, to take up these notes, on his pledge and agreement to give me his own notes for four months for that amount, with interest; accordingly I did thereafter go to the bank and pay those notes ■ at their respective maturity, and advanced the money myself for that purpose. And that substantially appears to have been the nature of the agreement made at that time between tüese parties. Before the notes were made which the defendant under this agreement was entitled to receive, the plaintiff discovered the fact that the bonds which had been substituted for those of the Utah and Pleasant Valley Railroad Company were not the first mortgage bonds of the Wasatch and Jordan Valley Railroad Company, but were forty of the series of bonds which in substance and effect were but second mortgage bonds. And on that account he seems to have declined to make and deliver to the defendant the notes mentioned in this agreement. And because of the refusal, an action was brought by the defendant against the plaintiff, in the court of common pleas of the county of New York, to recover the amount paid and advanced by him to take up the second series of notes, which, the former had procured to be discounted, and upon the trial of that action a verdict was recovered for the amount of the notes in favor of this defendant and against the plaintiff. This was set aside by the general term upon exceptions ordered to be there heard in the first instance, but from that determination an appeal was taken to the court of appeals, where the decision of the general term was reversed, and judgment was ordered for the present defendant upon the verdict. Wyckoff v. De Graaff, 98 N, Y., 134.

And after the recovery this action was brought by the plaintiff, who was defendant in that action, to compel the plaintiff in that action, who is the defendant in this suit, to account for the value of the bonds which he had surrendered, without receiving those which according to the letter of the plaintiff were to have been substituted in their place. During its pendency the plaintiff paid into the hands of the chamberlain of the city and county of New York the amount of the judgment so recovered against him, with interest thereon to the credit of the action in which the recovery was secured, pursuant to an order made by this court on the 2d of April, 1885. And by the judgment, which proceeded upon the facts which had been stated, the defendant was held liable to account for the bonds surrendered by him to an amount not exceeding that which was due upon the judgment recovered by him against the plaintiff.

Under the circumstances which have been proved, it is clear that the plaintiff was entitled to the benefit and advantage of the forty bonds of the Utah and Pleasant Valley Railroad Company delivered to the defendant to secure the notes. It is not important to determine whether in strictness he was a surety merely upon the notes, for as the facts were made to appear, he was entitled to have the bonds, used and appropriated either by himself or the defendant, for the payment of the indebtedness created by the notes. And of that fact the defendant was clearly aware, according to his own evidence and the receipt of the 11th of October, 1879, as well as from the letter of the 30th of the following December, written to him by the plaintiff. And he having surrendered the bonds without complying with the authority under which that alone could be done, became liable legally to the plaintiff for the loss and injury sustained by him through that surrender, Humphrey v Hayes, 94 N. Y., 594; Grow v. Garlock, 97 id., 81; National Exchange Bank, etc., v. Silliman, 65 id., 475.

Under the principle settled by these authorities the defendant did incur a liability to the plaintiff to indemnify him against the effect of this unauthorized act.

It has, however, been insisted that the judgment which was recovered in the court of common pleas was a bar to the present action brought by the plaintiff. But from the nature of the agreement alleged in the complaint as the foundation of that action, and as it has been stated by the defendant in the course of his examination as a witness upon the trial of this suit, it is quite evident that the question of the defendant’s liability for the misappropriation of the bonds, was not included in that suit as it was presented by the plaintiff. For that was. a separate and distinct transaction, preceding the making of the agreement upon which the suit in the court of common pleas proceeded and was tried, and relating to a different subject matter. The agreement of the defendant under which the bonds of the Utah and Pleasant Valley Railway Company were received included no more than the obligation of the defendant to hold and use those bonds for the reimbursement of himself and the protection of the plaintiff' as indorser upon the notes, and that agreement was changed no further than to permit the defendant to receive in place of such bonds forty of the Wasatch and Jordan Valley Railway Company’s first mortgage bonds, while the agreement upon which the action proceeded in the court of common pleas was that the plaintiff would reimburse the defendant for the moneys he might advance in taking up the second series of the notes, and would make and deliver his own notes to the defendant payable in four months for that amount, with interest. The two agreements were distinct and independent, and a recovery by the defendant for the non-performance of that which was made under which the notes were taken up, by no possibility could include the failure of the defendant to comply with the authority given to him for the surrender and substitution of the bonds. The judgment in the action in the court of common pleas did not pass upon the point on which the present suit is dependent, and it is not therefore a bar to the prosecution of this action. Sweet v. Tuttle, 14 N. Y., 465.

The present plaintiff in the action in the court of common pleas did set up by way of defence this misappropriation of the bonds, but that defense was excluded upon the objection of the plaintiff in that action. And after obtaining its exclusion in that manner, he cannot with any legal propriety, insist upon it that the subject-matter in this action was barred by the judgment in the other suit. If the objection had not been taken by him it might have been there tried as a counter-claim, as it was set up in the answer. But having taken the objection and excluded the contest entirely from the consideration of the court of common pleas, he is not now at liberty to assert that the controversy in this action could, or should have been there tried and disposed of.

In its essential facts the case is quite similar to that of Bennett v. Cook (45 N. Y., 268), where the right to maintain such an action was sanctioned and sustained by the court.

A large number of exceptions were taken during the trial to the rulings of the court under which evidence was received and rejected. Those relating to the right of the plaintiff to prove the agreement between himself and Scofield and the defendant, and the effect of the judgment in the court of common pleas, have all now been considered. An exception was taken to oral evidence given by the plaintiff to establish the fact that an execution issued upon a judgment recovered by him against the defendant, had been returned unsatisfied. • The object of this evidence was to prove so far as that fact might be considered important, the defendant’s insolvency, and-it was pertinent to that object; and even if the objection should have been sustained that the judgment and execution should be produced as the best evidence, that will confer no legal benefit upon the defendant, for the judgment and execution were afterwards produced and proved upon the trial.

This evidence tended to establish the fact of the defendant’s insolvency, and it was not so far overcome by his own testimony as to render it the duty of the court to find the fact otherwise than it did, and that was that the defendant was insolvent. It has been insisted that this proof should not have been received, as there was no allegation of fact of his insolvency in the complaint. But while that is true, the proof of the fact did not mislead the defendant in the least degree, and the court could, therefore, very well disregard the objection. The evidence of the plaintiff concerning the value of the first mortgage bonds of the Wasatch and Jordan Valley Bailroad is not liable to the objection now relied upon in support of the appeal. His statement was that there was no market value for the bonds, but they were worth from eighty to ninety per cent. That was stated as a fact within his knowledge, and it may have very well been so from his familiarity with the bonds and the railway enterprise brought in controversy in this action. There was no objection taken to this evidence, but a motion was made to strike it out without the assignment of any reason whatever indicating that it should not have been received. It was pertinent to the case, and, as the statement appeared to be within the knowledge of the witness, it could not have been stricken out by the court. The evidence which it was proposed to give to show the understanding of the defendant, and also of Scofield, as to what bonds should be, or might be, substituted, was legally excluded, for the transaction was reasonably clear and the obligations of the parties were well defined by the written instruments which were made to affect it, and the understanding of those instruments by either of these persons was not competent as any indication of the construction which should be placed upon them. So it was proper to exclude the evidence tending to show that the second series of,notes had been given upon a new discount, or that the first series had in fact been paid, for the pleadings in the action had settled the manner in which the second series of notes had been obtained, and no defense of payment was alleged. The court was requested to change the pleadings in this respect, but declined to do so, and, under the circumstances, that refusal does not seem to have been improper. Some other objections were also presented during the trial, but neither of them are worthy of any special consideration. They were properly disposed of at the time when were made.

By the judgment in the action, the plaintiff was permitted to recover so much of the value of the forty first mortgage bonds of the Utah and Pleasant Valley Eailway Company as would extinguish the amount of the judgment recovered against him by the defendant in the court of common pleas. But to that extent the recovery does not seem to be warranted by the facts, for the first mortgage bonds of the Wasatch and Jordan Valley Eailway Company amounted to no mpre than the sum of $500 each, aggregating for the forty which the defendant was permitted to substitute for those surrendered by him the sum of $20,000. The injury which resulted to the plaintiff by the surrender of the forty bonds of the Utah and Pleasant Valley Eailway Company was no more than the amount of the security he had, been deprived of by the omission of the defendant to receive forty-five $100 bonds of the Wasatch and Jordan Valley Eailway Company, and they were worth no more, according to his own evidence, than the sum of from eighty to ninety per cent, although by his cross-examination it was shown that sale had been made as high as par, and that is the valuation which, by the decision of the court at the trial, has been given to them. Their value has not been stated with any greater definiteness than that of the plaintiff in his evidence as a witness upon the trial, and that is that they were worth from, eighty to ninety per cent of their par value, and had sold for over eighty per cent and as high as par. His valuation is the utmost loss sustained by the plaintiff by the failure of the defendant to comply with his authority for the surrender and substitution of the bonds. As to the residue of the amount of the bonds given up, they were legally surrendered both by the authority of himself and of Schofield, the other party to the transaction, and that surrender was made prior to any assignment, of his interest in the bonds to the plaintiff.

It was stated in the defendant’s affidavit, which has already been referred to, that a foreclosure had been made of the mortgage to secure the original bonds of the Wasatch and Jordan Valley Railway Company, realizing as he believed about thirty cents on a dollar, but that* circumstance was entitled to no controlling effect in the action by way of defence, for the proceeds could not by any possibility be received by the plaintiff. The case as it was before the court should have been disposed of according to the valuation placed upon these bonds, excluding the excess over them in the valuation of the bonds which the defendant without authority had surrendered. In this respect the judgment should be reduced. As the facts have been found, the plaintiff cannot certainly be held entitled to recover more" than eighty per cent of the value of the Wasatch and Jordan Valley Railway Company’s bonds, and that valuation will reduce the defendant’s liability to the sum of $16,000, with interest upon it from the 30th day of December, 1879. The judgment should therefore be reversed and a new trial ordered, with costs to abide the event, unless within twenty days after notice of the decision the plaintiff shall stipulate to reduce the judgment to this extent, and the allowance made in a corresponding manner. If that stipulation shall be given, then the judgment as so modified should be affirmed, without costs of the appeal to either party.

Brady, J., concurs.


text:
    Patrick Cleary, Resp’t, v. Gamaliel R. Christie, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    1. Contempt—Fictitious sureties in an undertaking on appear—Code Civ. Pro., § 14, subd. 2.
    Where the sureties to an undertaking on appeal are clearly shown to be fictitious persons, and the party putting in such sureties testified that he had nothing to do with the procuring of the sureties, hut left it entirely in the hands of his attorney and at the time paid said attorney fifty dollars which he was told by said attorney was to be divided equally between the two sureties, while the attorney denied that he procured the sureties or received the fifty dollars, hut said he took the persons brought by the party before the notary. Held, that if the acts performed by the attorney were done under such circumstances as that the party had reason to believe they were irregular he must be held to all the consequences flowing therefrom.
    2. Same—Practice—Form op order for contempt—What it must contain—Code Civ. Pro., § 2281.
    Where the material part of the order for punishment was “ordered and adjudged that said defendant C. is hereby adjudged guilty of contempt of court in putting in such false or fictitious bail or sureties, and it is hereby ordered and adjudged that the sheriff of said county of New York arrest and commit to prison, in his county, said C., and that he be kept imprisoned until he pay or cause to be paid to said sheriff for said plaintiff or his attorney the full amount of said judgment,” etc. Held, that the order was void because it did not contain any adjudication or decision that the person for whose benefit the fine had been imposed had in truth and fact been prejudiced by the unlawful proceedings complained of or that the court could see that he might have been so prejudiced. The order should have been in pursuance of section 8281.
    Appeal from an order of the special term adjudging the appellant guilty of contempt, and directing his imprisonment until he should pay to the plaintiff the sum - of $162.50, which was the amount of the judgments previously obtained against him by the respondent, with ten dollars costs of motion.

      Miller & Savage, for the res’pt; Howe & Hwnmell, for the app’lt.
   Macomber, J.

The proceedings instituted against the defendant are based upon subdivision two of section fourteen of the Code of Civil Procedure, which gives the court power to punish by fine and imprisonment or either, a party to the action or special proceeding for putting in fictitious bail or fictitious surety.

After the judgment had been obtained by the plaintiff against the defendant, and simultaneously with the appeal by the defendant, therefrom, an undertaking in the usual form was served upon the respondent’s attorneys. The sureties to this undertaking (Carl Pfuffer and Anton Miller), are clearly shown to be fictitious persons, having no known place of residence or even of existence so far as this cause discloses the fact, and consequently the party putting in such sureties upon appeal is amenable tti the punishment provided for it by the Code of Civil Procedure. Inasmuch as throughout the affidavits and the testimony taken before the referee, it is undisputed that these supposed sureties are mere myths, the principal question for the consideration of this court is whether or not the defendant took such a personal and active part in procuring the execution of the undertaking as to render himself amenable to the punishment of the statute. The defendant testifies positively that he had nothing to do with the procuring of the sureties, but that he left that matter entirely in the hands of his attorney who voluntarily offered to procure them, and the defendant at the time paid his attorney the sum of fifty dollars, which, as he was told by the attorney, was to be equally divided between the two sureties. The notary public before whom the acknowledgement and affidavits were made, testifies that it was the attorney and not the party that brought the supposed sureties before him, and it was upon the introduction of the attorney alone that he made the usual certificate of acknowledgement to the undertaking by which he certified that the parties making the acknowledgement were personally known to him. He says that that part of the certificate was based entirely upon the representation made to him by the defendant’s attorney. This testimony, if true, goes far to show that if any mistake has been made by the plaintiff in instituting these proceedings, it is in the omission to join as a party thereto the former attorney of record of the defendant. But lie is not a party and no order that can be made in this proceeding can affect him in a legal aspect. It is due to the attorney to say, however, that in his testimony he denies1 that he procured the sureties or that he received the fifty dollars from the defendant therefor; he does admit substantially that he did take the men before the notary public and that the notary’s action was based upon what he, the attorney, told him. He further testifies that the defendant personally brought to him the persons who executed the undertaking in the name of Carl Pfuffer and Anton Miller. Confessedly, whatever was done in the premises was for the benefit of the defendant himself. He has reaped the advantage of having the case against him stayed upon appeal for a considerable length of time. He has profited by the acts done in his behalf, even though they were undertaken exclusively by his agent. But in order to hold the defendant for the contempt, it must be shown that he either personally participated in the unlawful proceeding or that he authorized or had knowledge of it. This is sufficiently shown by the testimony of his former attorney of record. But aside from such evidence, if the acts performed by the attorney were done under such circumstances as that the defendant had reason to believe they were irregular, he must be held to all of the consequences flowing therefrom.

The case is not devoid of circumstances and inferences from the whole testimony which connect the defendant actively with the fraud so perpetrated upon the court aside from the positive allegations of the attorney. While he claims to have been able to furnish bail from among his list of acquaintances, he cheerfully submitted to the exaction of fifty dollars, according to his own testimony, to be paid to some persons to him unknown, to enable him to avoid the unpleasantness of calling upon his acquaintances for aid. The names of the proposed sureties, as he says, were not given him, nor then occupations or residences. Under these circumstances, any man of ordinary intelligence, if entirely honest, would have surmised that some subterfuge or irregularity was to be resorted to in order to effect what he so much desired, namely, a stay of proceedings upon the judgment against him. The slight corroboration oí actual knowledge of the defendant in these proceedings is found in the fact testified to by him that he was told by his attorney, shortly after the putting in of this fictitious bail, that the case had been tied up for aught he knew for twenty years to come. Nor is this all;' the defendant testified that after the dismissal of the appeal, his attorney requested him to say to any persons who should make inquiries about the sureties upon the undertaking, that he did not know anything about them, but they were provided by a friend of his for his accommodation inasmuch as he, the defendant, lived in the state of New Jersey at the time. The defendant made no objection to this and seemed to have acquiesced in the suggestion and recommendation of his counsel, and that, too, under such circumstances as show that he was not wholly unacquainted with the original scheme and fraudulent purpose of putting in fictitious bail.

While, therefore, the defendant’s own testimony makes out a strong case against his former attorney, and goes far to show, if true, that all of the parties who were concerned in the deceit are not before the court, yet, other facts and circumstances in the case, and proper inferences therefrom show, as the referee has found as matter of fact, that the contempt was committed by the defendant. These considerations would lead to an affirmance of the order, provided it was drawn and entered in accordance with the facts established and in pursuance of the somewhat rigid provisions of the statute. The offense, as it has been described, is not a criminal contempt; its punishment is determined by sundry subsequent sections of the Code, beginning with section 2266. The order should have provided for the punishment of the defendant in pursuance of section 2281, which is as follows: “If it is determined that the accused has committed the offense charged, _ and that it was calculated to or actually did defeat, impair, impede or prejudice the rights or remedies of the party to an action or special proceeding brought in the court or before the judge or referee, the court, judge or referee must make a final order accordingly, and directing that he be punished by fine or imprisonment, or both, as the nature of the case requires,” etc. We find on examination of the order appealed from, that the defendant is convicted in reality of only the contempt of court in putting in a false and fictitious bail or sureties. In the absence of an adjudication that such acts impaired or impeded the rights of the plaintiff,' the punishment could not be so severe as has been imposed by the special term upon the defendant. But there is no adjudication that the acts were calculated to or actually did defeat, impair, impede or prejudice the plaintiff’s rights. It is true that there were sufficient facts before the court to enable such an adjudication to be made, but it has not been made, not even inferentially. The material part of the order is as follows: “Ordered and adjudged that said defendant Gamaliel R. Christie is hereby adjudged guilty of contempt of court in putting in such false or fictitious bail or sureties. And it is hereby ordered and adjudged that the sheriff of said county of New York arrest and commit to prison, in his county, said Gamaliel R. Christie, aiid that he be kept imprisoned until he shall pay or cause to be paid to said sheriff, for said plaintiff or his attorneys, the full amount of said judgment for seven hundred and twenty and eighty-hundredths dollars ($120 80-100), with interest from its entry, June 16, 1884, and also the amount of the said judgment for costs on the dismissal of the appeal for forty-one and seventy-hundredth dollars ($4110-100) entered May 14, 1885, with interest and aise ten dollars costs of this motion.”

It is evident that there was some inadvertence in the preparation of the terms of this order, but we have no power to correct it on this appeal; on the contrary, though reluctantly, we feel constrained to reverse the same, leaving the plaintiff to proceed as he may be advised, for it is essential to the -validity of an order which undertakes to recompense the party injured in this manner by the imposition of a fine that an adjudication or a decision appear that the person for whose benefit the fine has been imposed has in truth and fact been prejudiced by the unlawful proceedings complained of or that the court can see that he might have been so prejudiced. Clark v. Veninger, 75 N. Y., 344; Sandford v. Sandford, 24 N. Y. Week. Dig., 208.

The order appealed from is reversed, but without costs.

Brady and Daniels, JJ., concur.


text:
    Nelson Merrill, Resp’t, v. The Farmers’ Loan and Trust Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    1. Trustee op railroad mortgage—Duty of as to bondholders— When liable to one injured by his neglect of duty.
    Where the trustee under a railway mortgage given to secure the payment of bonds, fails to discharge the duties assumed by him, and the enforcement of the security is voluntarily handed over by him to the control and management of interested parties, although they may own the greater part of the bonds secured by the mortgage: Held, that the trustee becomes liable to the parties sustaining loss through the abdication of his duties and authority. Affirming decision in this case on previous appeal, reported 24 Hun, 297.
    2. Same—Damage must be proved.
    The plaintiff, as owner of the bonds secured by the mortgage, must establish by evidence the amount and extent of the loss approximately, and also the fact that he has actually suffered loss by the act of the trustee.
    Appeal from a judgment on the verdict of a jury, and from an order denying a motion for a new trial.

      Herbert B. Turner, for app’lt; Abel E. Blackmar, for resp’t.
   Daniels, J.

This action has been previously before this court on an appeal from a judgment dismissing the plaintiff’s complaint. The material facts affecting the liability of the defendant, have not been essentially changed by the evidence produced upon the second trial, and a re-examinatian of the case has confirmed the conclusion .that the rule previously applied to determine the defendant’s liability was not over stated, in the decision which has already been made and is reported in 24 Hun., 297. Trusts under railway mortgages, as the one created in this case was, are of very great importance, and care prudence, diligence, and fidelity, are required in the discharge of the duties created by them, on the part of the trustee. These duties are not so faithfully observed as to require the least relaxation in the application of the principle upon which that decision was made. They are for the benefit usually of a large number of persons receiving, dealing in, and holding, the bonds secured by the mortgage. And those persons are required as a general rule to depend upon the diligence arid faithfulness of the trustee for the protection of their interests. Where this duty is not observed, but the enforcement of the security is voluntarily handed over to the control and management of interested parties, although they may own the greater part of the bonds secured by the mortgage, the minority have good legal ground for complaint, when their interests in this manner shall be found to have been sacrificed by those to whom the business may have been committed by the trustee. This should not be permitted to be done, and it is not to be sanctioned or excused even though the agents themselves if they were disinterested would have been proper persons to be selected by the trustee to carry the trust into final effect. Where the trustee fails to discharge the duties assumed by it, in this manner, it fails to observe even that reasonable degree of diligence, mentioned in the mortgage given to the defendant upon the railroad and property of the Milwaukee and Belvit Railroad Company. And for that failure it necessarily, as well as legally, becomes liable to the parties sustaining loss through the abdication of its duties and authority.

But while the facts in this case were such as would well render the defendant legally liable for any loss sustained by the plaintiff as the owner of the bond secured by the mortgage, it was still necessary, before a recovery in the action could be had, that the amount and extent of this loss should be estabhshed by evidence reasonably approximating it, so that it might be fixed and determined by the jury. As the case was before presented, the facts waranted the inference that material loss had been sustained by the plaintiff through the failure of the defendant itself to institute and carry on the foreclosure of the mortgage and secure the sale of the mortgaged property. But, upon the last trial of the action, no evidence was given tending to show that a more favorable disposition of the property could have been made than that which was made under the agreement and management of the interested bondholders having charge of the foreclosure of the mortgage. On the contrary it was made to appear by the witness, William Mullens, whose deposition was read as a part of the plaintiff’s case, that the property of the railroad company had become substantially valueless at the time when the sale took place, and that this had been more fully demonstrated by its subsequent history. About $300,000 had been invested in the grading and preparation of the road bed, but it was finally abandoned, and never has been completed or used as a railroad. This evidence had the direct tendency to establish the fad? that the plaintiff was subjected to no material loss by the manner in which the foreclostire was carried on and the sale was made. For it appeared that no substantial advantage had been secured for the $20,000 which was the bid made for the property, and the company itself had evidently gone into a state or insolvency. The case seems to have been submitted to the jury for them to determine the amount of damages sustained by the plaintiff, upon the fact that this sum of money had been invested in the improvement of the property for the purposes of a railroad. But that, as the other ■ evidence shows, could not be relied upon as any indication that the plaintiff had been subjected to loss by the manner in which the sale had actually taken place. It is true that as against the defendant, after it had put the mortgage out of its hands and control, the strictest evidence of loss should not be required, but some evidence at least should have been given by the plaintiff to establish the fact that the property could have been sold on better terms if the defendant had itself managed the proceedings, and impartially, for the benefit of all bondholders, secured the making of the sale. Proof that the property was of a larger value would have had a tendency to fulfill this legal requirement, but even that evidence was not produced, but it was shown so far as the proof was given in the case that it was of less value than the sum bid for it under the combination of the interested parties having control of the proceedings. As the evidence stood in the case the jury should not have been left at liberty, as they were, to conjecture or speculate upon the question of the plaintiff’s loss, and arbitrarily determine, as that must have been done, the amount they should render as their verdict for the plaintiff in the action. The verdict which they did render is wholly unsupported, and the judgment and order should be reversed, and a new trial directed, with costs to abide the result.

Brady and Ohürohill, JJ., concur.


author: Magomber, J.

text:
    Mutual Life Insurance Co. of New York, Thomas A. Davies and Reuben Cudlipp, App’lts, v. Russell Sage, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October, 15, 1886.)

    1 Taxes assessments—New York (city of)—Assessments for local improvements—Laws of 1813, chap. 86, § 175—No personal liability imposed upon owner whose name does not appear on rolls.
    In 1869 the plaintiff Davies, being then owner of certain premises in New York city, mortgaged them to the Mutual Life Insurance Company, the plaintiff, to secure the mortgagor’s bond. Subsequently, other mortgages were made to sundry persons which ultimately came into the hands of defendant Sage, who foreclosed the same, buying in the property at the sale and taking the deed to himself, which was recorded on the 17th of February, 1876. The owner of the prior mortgage was not made a party to that action. On the 29th of December, 1876, an assessment for boulevard improvements was confirmed against the property in question, but the name of the defendant Sage was not inserted in the assessment record, The Mutual Life Insurance Company foreclosed its mortgage on April 5, 1877, making defendant Sage a party defendant therein, and obtained a deficiency judgment against plaintiffs Davies and Cudlipp. The insurance company paid the amount of those assessments -for boulevard improvements May 25, 1877. Held, that though the assessment under Laws of 1813, chap. 86, section 175, was good and sufficient to bind the real estate, yet it created no personal liability which could be enforced against the owner, unless his name appeared upon the assessmei t roll or lists.

      2. Rights of one voluntarily paying an assessment.
    A party cannot obtain by voluntarily paying an assessment a greater right than the city itself had against the owner of the property assessed. Mutual Life Insurance Company v Sage, 28 Hun, 595, distinguished.
    Appeal from a judgment of the special term dismissing the complaint upon the trial,

      Julien T. Davies and Edwin Coffin, for app’lts; D, T. Worden and A. J. Vanderpoel, for resp’t.
   Magomber, J.

In the year 1869, the plaintiff, Thomas A. Davies, being then the owner of certain premises in the city of New York, mortgaged. them to the plaintiff, the Mutual Life Insurance Company, to secure the mortgagor’s bonds in the sum of $44,000. Subsequently other mortgages were made by the owner to sundry persons, which ultimately came into the_hands of the defendant Sage, who foreclosed the same, buying in the property at the sale had therein under the judgment of foreclosure, taking the deed to himself which was recorded on the 17 th day of February, 1876.

The owner of the prior mortgage was not made a party to that action. On the 29th day of December following, an assessment for boulevard improvements was confirmed against the property in question, but the name of the defendant Sage was not inserted in the assessment record. The Mutual Life Insurance Company, subsequently, and on the 5th day of April, 1877, foreclosed its mortgage, making the defendant Sage a party defendant therein, and upon a sale of the premises under this judgment a deficiency was adjudged against the plaintiffs Davies and Cudlipp. The insurance company on the 25th day of May, 1877, paid the amount of these assessments for boulevard improvements, amounting to the sum of $22,896.63 for which, sum this action is brought together with a large amount of back taxes.

In the judgment in the action in which the defendant Sage was plaintiff the clause was inserted requiring the referee to deduct from the amount received upon the sale and to pay out of such moneys after deducting his own fees and expenses any lien or hens upon the premises so sold at the time of such sale for taxes and assessments.

Upon the former appeal in this action (28 Hun, 595), it was held that no recovery could be had by the plaintiffs against the defendant for any portion of the taxes which had been paid by them, but that the claim for the payment of the assessment for the boulevard improvements rested upon different considerations, and as the facts were then disclosed, the court was of the opinion that the plaintiffs could recover therefor. Upon the second trial it was made to appear, as it had not upon the previous trial, that the defendant Sage’s name nowhere appeared in the assessment books of the city, and it is substantially for that reason that the trial court has again dismissed the complaint. It is contended by the counsel for the defendant- and as we think correctly, that though the assessment under the act of 1813, was good and sufficient to bind the-real estate, yet it created no personal liability which could be enforced against the owner. The 175 th section of that act provides that the assessment be made among owners or occupants of the houses or lots.

It is difficult to perceive under the rules regulating the-imposition of assessment of land for local improvements which have been long well established, how a personal liability can be made out against the owner or occupant unless-his name appear upon the assessment roll or lists. The-subsequent legislation (chap. 410, Laws of 1867), as well as-(chap. 326, Laws of 1840), which seem to confirm this view, has at least a legislative interpretation of the then existing-law. Section 5 of the Laws of 1867, is a provision based on the assumption that prior thereto all such assessments would be held void, which did not contain the name of the-owner or owners of the land. ‘‘"No tax or assessment shall be void in consequence of the name of the rightful" owner or owners of any real estate in said city not being inserted in the assessment rolls or lists, but in such case no tax shall, be collected except from real estate so assessed.

In Haight v The Mayor (99 N. Y., 280), it is in substance stated that the owners name is immaterial to the-validity of an assessment and is material only for the purpose of imposing upon him a personal liability. But the-case in that action did not arise under the act of 1813. In Platt v. Stuart (8 Barb., 493), which was an assessment under the act of 1813, it was held that the assessment which was noted as being against the estate of Garrison Stuart was-void because it did not disclose the name of the owner or occupant, but that decision would not apply to the opening of streets under the act of 1813. See also Mann v. The City of Utica, 44 How. P. R., 334; Whitney v. Thomas, 23 N. Y., 285; DuBois v. Webster, 7 Hun., 373; Chapman v. The City of Brooklyn, 40 N. Y., 372; Newell v. Wheeler, 48 id., 486; Trowbridge v. Horan, 78 id., 439.

The argument of the learned counsel for the plaintiffs is-that the rights of his clients are not worked out through the doctrine of subrogation to the rights of the city but rest on the act of 1813 which gives as he claims in plain words, a right of action against the rightful owner by any person who shall have paid the assessment. But this argument falls vitally inasmuch as it assumes that a personal liability of a party may be created by a voluntary act of another* person alone a proposition wMch the statute did not contemplate and to which we cannot give our assent. A party cannot obtain, by voluntarily paying an assessment a greater right than the city itself had against the owner of the property assessed.

Therefore, when the plaintiff paid the amount of the assessment for the boulevard improvements which were made upon the land at the time that the defendant was the owner of it, they did no more than to reheve the land of the Hen of the assessment ostensibly for their own benefit. They could not thereby create a personal liability against the defendant where none had before existed.

Had the city itself possessed the right to pursue the defendant personally for the collection of the tax, the case would be essentially different.

The judgment should be affirmed, with costs.

Daniels and Brady, JJ., concur.