text:
    Letitia S. Ferris, Pl’ff, v. John M. Ferris et al., Def’ts.

      (Supreme Court, New York Special Term,

      Tiled November, 1894.)

    1. Will—Construction.
    The object in the construction of a will is to give effect to the testator’s intention; and, when the intention is clear, omissions will be supplied to accomplish that result.
    3. Same.
    The will, in this case, was held to give to the daughters of the testator the use of the estate for life or until marriage, remainder to his grandchildren living at such death or marriage, and a discretionary power of sale to the executors.
    Action for the construction of a clause in a last will and testament.

      F. J. Mather, for pl’ff; John B. Whiting, for adult def’ts; Harold M. Smith, guardian ad litem for infant def’ts; Hanson C. Gibson, guardian ad litem for infant def’ts.
   Ingraham, J.

This action is brought to construe the third clause of the last will and testament of Isaac Ferris. That clause is as follows : “ I give and bequeath to my daughters, Charlotte and Sarah, an equal interest in my house and lot, 108 East Twelfth street, if I sell the same, the avails to be theirs, by equal division, in the following way: The income to be theirs until marriage or decease. When one shall marry or die, the survivor to have the whole income. When both are married or deceased, then the principal to be divided equally among my grandchildren then living. (If I do not sell, I authorize my executors to sell at once if they deem best.)” ■

The intention of the testator is clear. His daughters, Charlotte and Sarah, were to have the use or rents of the house during their lives, and so long as they remained unmarried. Upon the death or marriage of either, the survivor or unmarried daughter, was to-have the sole use or rents of the house. Upon the marriage or death of both daughters, the house was to vest in the testator’s-grandchildren then (that is, on the death or marriage of the surviving unmarried daughter) living. In case of the sale of the house, either by the testator during his life, or by his executor after his death, the proceeds to take the place of the house, and the income realized therefrom was to go to the daughters, and upon their death or marriage, to the grandchildren. The will was drafted by one not familiar with the terms commonly used in instruments of this character,—presumably, by the testator himself,—and the distinction between a devise of a house and lot, if it should remain unsold, and of the proceeds of a sale, is not clearly expressed; but there is nothing to show that there was an intention to make a different disposition of the house from that made of the proceeds, and an examination of the whole will makes it clear that the testator intended to dispose of the whole estate. The absence of a residuary clause shows that he thought he had accomplished that result. The object that is always clearly before the court, in the construction of wills, is to give effect to the testator’s intention ; and, when the intention is clear, omissions will be supplied to accomplish that result. This intention is here clearly expressed, and I think the clause in question should have the construction above intended.

I also think the executors have a power of sale which was not limited by the words, “at once if they deem best.” It is a little difficult to ascertain what the testator intended by the use of these words. The absence of any attempt at punctuation in the clause in question prevents there being any effect given to the absence of a stop after the words “to sell; ” and the provision for the substitution of the proceeds in place of the house, in case the testator sold it during his life, shows that he had in mind the necessity that might arise in the future of the sale of the property in consequence of the location of the house, and the constant encroachment of business in the locality, and it was to meet such a necessity that the power of sale was given. The remainder over, being a contingent remainder, would prevent a sale, unless such a power was given by the will, and there could be no object in limiting the power so that it could only be exercised immediately upon the death of the testator. The intention evidently was to avoid a construction that would prevent the executors from exercising the power of sale immediately after his death, and during the continuance of the life estate.

I think, therefore, that the daughters took an estate in the premises, limited upon their lives, and upon their remaining unmarried, which, upon the marriage or death of both, was to vest in fee in the grandchildren of the testator in being at the termination of the life estate, share and share alike; the executors to have a discretionary power of sale; and upon the execution of the power the proceeds of the sale to stand in place of the house, and upon the termination of the life estate to be distributed among the grandchildren. Judgment is directed, construing the will accordingly. •


source: Caselaw Access Project

author: McAdam, J.

license: Public Domain

text:
    Matilda Weill, Pl’ff, v. The Metropolitan Railway Company et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed October, 1894.)

    Pleading—Amendment.
    The special term, has power to amend a complaint so as to supply an omission of an allegation as to continuing trespass, in an action to enjoin an elevated railway.
    Motion for leave to amend complaint.

      J. Kohler and W. H. O'Dwyer, for motion ; Davies, Short & Auerbach, with O. W. Gardiner, A. T. Stoutenburgh, and L. M. Berkeley, opposed.
   McAdam, J.

The action is against the Elevated Railway Company. The complaint attempted to set forth a cause of action in equity, and the prayer for relief is “ that the defendants be enjoined and restrained from maintaining their structure in front of the plaintiff's premises,” and for $10,000 damages. As a bill in equity, it is defective in omitting to allege that the trespass was of a continuing nature, so as to show affirmatively that the remedy at law was inadequate. When the cause was called for trial at the equity term, the defendants’ counsel pointed out the omission on -a motion to dismiss, whereupon the plaintiff’s attorney attempted to supply the defect by amendment, but the presiding judge directed that the application be made at special term, hence the present motion. The defendants insist that the motion attempts to transform an action at law into a suit in equity, and on this theory they deny the power of the court to grant the relief demanded. The cases relied on to support this objection hold that a plaintiff cannot amend by introducing new and independent causes of action, because (unlike a defendant) he has a complete remedy therefor by a new suit. Robertson v. Robertson, 9 Daly, 52; Van Syckels v. Perry, 3 Rob. (N. Y.) 622. So in Lane v. Beam, 19 Barb. 51, the plaintiff undertook to change his entire cause of action, and the court, in denying the application, said: “ The Code allows an amendment by correcting a mistake in the name of a party, or a mistake in any other respect. But here there was no mistake. There was a deliberate purpose in making the statement of the cause of action as it is.”

The present application is simply to supply a deficiency,—to make perfect the right to the equitable relief claimed. The avowed purpose here was injunctive relief, with damages as an incident thereof, and the omission of the allegation as to continuing trespass a mistake amendable, under the Code provisions. § 723. To amend ” is, as the term implies, to free from error or deficiency ; to correct an error; to supply a deficiency.” Bouv. Law Dict. No one can seriously question the power of the court at special term to grant liberty to amend and perfect what was previously set forth in an imperfect manner, Brown v. Leigh, 49 N. Y. at page 80; Wilson v. Smith, 39 St. Rep. 156; 14 N. Y. Supp. 628, and see 4 Wait Pr. 656, 657; and that is the extent of the relief applied for.

In Ireland v. Met. El. Railroad Co., 8 St. Rep. 127, and Marsh v. McNair, 40 Hun, at page 217, the court imposed, as a condition of allowing certain amendments, the payment of all the costs to date; but in those cases .the amendments were allowed after new trials had been awarded, and the relief granted was substantial, because it affected the costs of the appeals on which the party against whom the amendments were allowed had been successful. The present case is not so situated, and, as the amendment is formal merely, it will be allowed, on payment of $30 costs, and without prejudice to the proceedings already had. The amended complaint may be served with the order to be entered hereon, and the defendants will have 20 days thereafter within which to answer the same. Fink v. Man. Railroad Co., 29 St. Rep. 153; 8 N. Y. Supp. 327.


author: Pryor, J.

text:
    Lina St. Clair Di Messiah, Pl’ff, v. Catherine Gern, Def't.

      (New York Common Pleas, Equity Term,

      Filed October, 1894.)

    1. Insurance—Benevolent society.
    Where the charter of a benevolent society prescribes the class of persons to whom the benefit shall go on the death of a member, a designation of a beneficiary, not of that class, is nugatory.
    2. Same.
    In such case, the society cannot, by its by-laws, enlarge the class of beneficiaries prescribed by its charier.
    Action to determine conflicting claims to life insurance policy.

      John Fennel, for pl’ff; George F. Roesch and August P. Wagener, for def’t.
   Pryor, J.

The action is to determine the validity of conflicting claims to a fund in court. The order of interpleader adjudges that the controversy is about one and the same debt, and that the debt is due to one or the other of the parties in litigation. Which of these parties has the true title to the money is the question for decision. The Supreme Lodge of the Knights and Ladies o£ the Golden Star is a benevolent association, incorporated under and pursuant to the laws of New Jersey. By its certificate of incorporation, a principal object of the society is “to establish a benefit fund, from which, on satisfactory evidence of the death of a member of the order, a sum not exceeding two thousand dollars shall be paid the family, orphans or dependents, as the member may direct.” A by-law prescribes that “ each applicant for membership shall enter upon his application the name of the person to whom he desires the benefit shall be paid in case of death, subject, however, to sucli future disposal of the benefit as he may direct; and that any member may at any time surrender his benefit certificate, and a new certificate shall thereafter be issued, payable to such person as the member may direct.” Upon his admission into the order, in 1887, Charles Gern designated his wife, the defendant, as the beneficiary, and in his certificate of membership directed the bounty to be paid to her on his decease. Afterwards, in 1893, be procured a substitute certificate, in which he directed payment of the benefit to the plaintiff. She is not the “orphan” of Gern, nor of his “ family,” nor in any sense his “ dependent.” In his application he describes her simply as “friend.”

Which of these certificates authenticates the right to the benefit ? The proof is clear and complete that plaintiff’s certificate originated in fraud. Pretending that a Mrs. Wagner proposed to change the destination of her benefit, shortly before bis death, Gern obtained from the lodge a blank form of application, which he filled in with a direction that a new certificate be issued to him, payable to Lina St. Clair Di Messiah; hence plaintiff’s certificate. It is said that the lodge alone may avail of this fraud, and that, by bringing the fund into court, it signifies its assent to a payment to the plaintiff. Plaintiff’s certificate is the sole muniment of her title, and, if that be invalidated, she has no claim to the money. By interpleading the parties, the lodge brings the lund into court for the one to whom it shall be adjudged. This, surely, is no waiver of the fraud, but is a submission of its effect to the decision of the court. Until the decease of a member of the society, his nominee has no right to the benefit; and hence it may be inferred that the fraud of Gern was of no detriment to the defendant. But, if the plaintiff’s certificate be nullified by the fraud, then, by the death of Gern, the defendant’s right is consummate, and conversely, if plaintiff’s certificate is valid, the defendant’s title is annihilated. If the effect of the fraud were merely to intercept an intended gratuity to the defendant, in a legal sense she would suffer no injury, Hutchins v. Hutchins, 7 Hill, 104; but the result of the fraud is the apparition of a rival right destructive of hers, and that competing right she may invalidate by proof of the fraud. It is not an answer to the argument that Gern might change the destination of his benefit at pleasure, since he could change it only by a prescribed method and means, and the means and method he employed were vitiated by his fraud. Were it necessary, therefore, to a decision in defendant’s favor, I should not hesitate to hold that plaintiff’s certificate is avoided by fraud in its inception, and the formal cancellation of defendant’s certificate of no effect. But, on another ground, defendant’s right to the fund is still more obvious and unimpeachable. “ The act of incorporation is to corporate bodies an enabling act. It gives to them all the power they possess. It enables them to contract, and, when it prescribes to them a mode of contracting, it must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated.” Marshall, O. J., in Head v. Ins. Co., 2 Cranch, 127, 169. Hence the fundamental principle that a corporation can exercise no power not communicated by its charter, nor in any other manner than as prescribed by its charter. How, by the certificate of incorporation of the Knights and Ladies of the Golden Star, participation in the benefit fund is restricted to the “ family, orphans, or dependents ” of members. True, the by-laws provided for the issue of a new certificate “ to such person as the member may direct; ” but the charter being the supreme law of the body, the bylaws must be taken in subordination to the paramount authority, and their provisions reconciled therewith; and any provision in the by-laws transcending the power imparted by the charter is ultra vires and void. Hence the only legitimate and the inevitable construction of the by-laws is that the person to be designated as a beneficiary must be of the class specified in the charter. The nomination of a person not of that class is nugatory. Massey v. Mutual Relief Society, 102 N. Y. 523, 530 ; cases collected in note to Association v. Stapp (Tex. Sup.; 14 S. W. 168) 19 Am. St. Rep. 786-790; Nibl. Mut. Ben. Soc. § 206; Black, Ben. Soc. § 311. Hot being of the family of Gern, the plaintiff cannot be the beneficiary of the fund, unless she were his “ dependent.” But of that relation to Gern no evidence was adduced, except such as might authorize the inference that she was his 'concubine, and such connection the law disdains to recognize as embraced within the term either of “ family ” or “ dependent” Keener v. Grand Lodge, 38 Mo. App. 543. The designation of plaintiff as the beneficiary was without effect, and the certificate under which she claims invalid as a muniment of title. Wendt v. Legion of Honor, 72 Iowa, 682. She has no right, therefore, to the fund in dispute. Still, it may be argued that, at all events, the futile designation of plaintiff as beneficiary suffices to nullify the nomination of defendant as the recipient of the money, to which the sufficient answer is that, by the law of the lodge, it is not the intent but the act of changing the destination of the benefit that replaces the original by the substituted beneficiary ; and here, as seen, has been no effectual appointment of the plaintiff. It follows, therefore, that the defendant’s certificate still subsists, and that she is yet the beneficiary of the fund.

Upon the supposition even that the designation of defendant has been annulled, and her certificate valueless, she might, nevertheless, be entitled to the benefit, especially in an action in which the only issue is whether she or the plaintiff has the better right. Hannigan v. Ingraham, 55 Hun, 257; 28 St. Rep. 530; Keener v. Grand Lodge, 38 Mo. App. 543; Arthur v. Association. 29 Ohio St. 557; Association v. Priest, 46 Mich. 429; Society v. Clendinen, 44 Md. 429; Bishop v. Grand Lodge, 112 N. Y. 627; 21 St. Rep. 811. The special authority adduced by the plaintiff in support of her right—Story v. Williamsburgh Masonic M. B. Association, 95 N. Y. 474—is essentially distinguishable from the case on trial. In the case cited the decision of the court proceeded on the ground that, by issuance of the certificate in favor of the plaintiff, the-defendant contracted to pay her. Here, Gem procured the certificate in favor of this plaintiff by imposition on the lodge, and fraud nullifies consent. Hor would even an intelligent and voluntary assent to the nomination of the plaintiff as beneficiary, being beyond the power of the corporation, avail to bind it to the exclusion of the defendant's prior and paramount right. Again, in the Story case,'the court said: “ Hor did the appropriation of the fund for her benefit contravene the policy or objects of the association. The plaintiff for sixteen years lived with Story as his wife. They had children dependent upon them for support. It was a case where it was the duty of Story to provide for them; and the provision he made through this insurance was in entire accord with the object of the defendant’s organization.”

For thirty years the defendant in the present action was the faithful wife of Charles Gem. She has borne him many children, and doubtless, by her industry and self-denial, she has assisted him in the accumulation of the means for the purchase of the endowment in question. Upon the evidence, it is apparent that, her youth and beauty gone, his affection departed with them, and that, by the destination of the bounty to the plaintiff, he intended a recompense of services odious in law and abhorrent to a society, of which the praiseworthy mission is the succor of the widow and the orphan. Between two such claimants, I am happy to be able to award the benefit to the defendant.

J udgment for the defendant, with costs.


author: Giegerich, J.

text:
    Harriet D. Hallett, Pl'ff, v. Theodore Hallett, Def't.

      (New York Common Pleas, Special Term,

      Piled November 12, 1894.)

    1. Pleading—Answer—Sham.
    The allegations of an answer, setting up the pendency of a former action, may be stricken out as sham, where such action had been regularly discontinued when the present action was begun.
    2. Trial—Discontinuance.
    An action, commenced by the assignor, may be discontinued by his assignee.
    Motion to strike out the answer as sham and frivolous.

      James W. Treadwell, for pl’ff; L. B. Bunnell, for deft.
   Giegerich, J.

This is a motion to strike out as sham and frivolous the answer in this action. The complaint is upon a promissory note made by the defendant to the order of one Emeline D. Hallett, who, it is alleged, transferred the same to the plaintiff on or about the 12th day of May, 1894. The answer does not deny any of the allegations of the complaint,'but merely sets up that on and prior to the 30th day of April, 1894, said Emeline D. Hallett was the owner and holder of said note, when an action was brought by her in this court against the defendant to recover the amount thereof, which action, it is alleged, is still pending, and which pendency the defendant pleads as a defense and bar to -any recovery by the plaintiff as against the defendant in this action. It appears conclusively from the papers submitted that the defendant never appeared, demurred, or answered in the action brought by said Emeline D. Hallett; that, after the commencement thereof, the cause of action was duly transferred and assigned to the plaintiff in this action by said Emeline D. Hallett, who subsequently died ; that no letters testamentary or of administration have been issued upon her estate, and that said note and cause of action form no part of the estate; that on the 6th day of September, 1894, upon the application of the present plaintiff in this, action, and upon proof of the facts above stated, this court made an order discontinuing said action, without costs, which order was duly entered with the clerk of this court, and a copy thereof, together with notice of entry, was personally served upon the defendant on the Tlth day of September, 1894 ; and that, subsequent to such discontinuance, the present action was commenced.

The defendant argues that the first action is still pending; but the authorities do not favor his contention. The note and cause of action having been transferred to the plaintiff, she became the “ successor in interest ” of the said Emeline B. Hallett. Higgins v. City of New York, 136 N. Y. 214; 49 St. Rep. 210. As the personal representatives of the latter had no interest in the same, the plaintiff, and not they, was entitled to revive the action, Coit v Campbell, 82 N. Y. 509, 516, 517; Higgins v. City of New York, supra; but she was not bound to continue the prosecution of the suit brought by her transferrer, and could discontinue the same, Banta v. Marcellus, 2 Barb. 373, without costs, especially as the defendant had never appeared therein. Smith v. While, 7 Hill, 520; Averill v. Patterson, 10 N. Y. 500, 502. It thus appearing beyond controversy that the first action had been -regularly discontinued when this action was begun, it is self-evident that the allegations of the answer as to the pendency of another action are unfounded in fact. Consequently, the same must be stricken out as sham. Clark v. Clark, 7 Rob. (N. Y.) 276; Roome v. Nicholson, 8 Abb Pr. (N. S.) 343.

Motion granted, with $10 costs.


text:
    John Zacharias, Pl’ff, v. Thomas H. French, Def’t.

      (New York Common Pleas, Special Term,

      Filed November 17, 1894.)

      1. Pleadings—Answer—Defenses.
    The same facts may he pleaded both as a complete and a partial defense, provided each is separately stated and numbered.
    2. Same—Denial.
    A denial and new matter cannot be united in the same paragraph of the answer.
    Motion that certain matter be stricken from the answer, and that defendant be required to state whether certain facts are relied on as a complete or as a partial defense.

      W. R Benjamin, for pl’ff; I. M. Dittenhoefer, for def’t.
   Giegerich, J.

This action is brought to recover damages for the expulsion of the plaintiff from the theater of the defendant without cause. The answer denies all the material allegations of the complaint, except the ownership of the theater by the defendant, and sets up the following affirmative defenses : “ (5) As and for a second and complete as well as partial answer and defense, this defendant alleges, upon information and belief, that at the time claimed by the plaintiff in his complaint to have purchased the license for himself and wife to witness the performance given at the Garden Theater on the 22d day of May, 1893, the license and privilege to witness the performance at the said theater on said evening was a revocable license; and the said license and privilege for said evening, if ever granted to the plaintiff or his wife, to witness the performance on said' 22d of May, 1893, was duly and regularly revoked, and there was duly and regularly tendered and offered to the plaintiff the sum claimed by him to have been paid for said license, and thereupon all rights of the plaintiff and his said wife to witness the said performance, or to remain in said theater, ceased and terminated. (6) As and for a third and further and separate/answer, and complete as well as partial defense, this defendant, reiterating and reasserting each and every allegation and denial hereinbefore contained, further alleges, on information and belief, that only such request was made to the plaintiff to leave the said theater as was proper and necessary, and was made after the revocation of any license plaintiff claimed to have to remain in said theater, or witness said performance."

The plaintiff now moves that the defendant be required to state in his answer whether the so-called second and third separate defenses thereof are each relied upon and intended as a complete or as a partial defense to the complaint, and to strike out from the so-called separate answer the words, “ reiterating and reasserting •each and every allegation and denial hereinbefore contained,” and for such other and further relief as may be proper in the premises.

One of the chief grounds urged by the plaintiff in support of the first branch of the motion is that the question whether the facts set forth, respectively, in paragraphs 5 and 6 above, constitute a complete defense, cannot be tested by demurrer in the form now pleaded, since the same would be overruled if the facts stated were good in mitigation of damages. No authority directly in point is cited by either side; but considerations of convenience and orderly pleading require that the defenses should be separately stated and numbered, and relied upon, respectively, as -complete and partial defenses. Pom. Code Def. (3d ed.) § 690, p. 756. This is in harmony with the provisions of § 507 of the Code of Civil Procedure, which provide that: “ A defendant may set forth, in his answer, as many defenses or counterclaims, or both, as he has. * * * Bach defense or counterclaim must be separately stated and numbered.”

I do not perceive why, under modern rules of pleading, the defendant may not count upon the same facts both as a complete and a partial defense. A defendant may put his defense upon separate, and even inconsistent, grounds. Goodwin v. Wertheimer, 99 N. Y. 157. And he may plead several pleas to distinct parts of the same count. Longworthy v. Knapp, 4 Abb. Pr. 115, 117; Steph. Pl. 269. It seems to follow that the same facts may be pleaded both as a complete and a partial defense, provided each defense is separately stated and numbered. These views lead to the denial of that branch of the motion under consideration, provided the defendant shall separately state and number the defenses set forth in paragraphs numbered 5 and 6 of the answer. The granting of which relief, although not specifically prayed for, nevertheless finds ample justification in the concluding sentence of the notice of motion herein. Van Slyke v. Hyatt, 46 N. Y. 259, 264; Myers v. Rosenback, 7 Misc. Rep. 560; 58 St. Rep, 513; affirmed, 9 Misc. Rep. 89; 59 St. Rep. 699.

As to the motion to strike out the words, “ reiterating and reasserting each and every allegation and denial hereinbefore contained,” the following remarks of Prof. Pomerov in his work on 6Code Bemedies (3d ed., at page 756, and § 690), are directly in "point, viz.: “ It is elementary that a defense of new matter should be pleaded; and as new matter must, of necessity, be a distinct defense from a denial, it follows that it cannot properly be associated or mingled up with denials, general or specific, in one paragraph or plea.”

Consequently, the words “ and denial,” in the last phrase quoted, must be stricken out. To hold otherwise would enable the defendant to nullify the provisions of § 494 of the Code of Civil Procedure, which allow a demurrer to a defense consisting of new matter, contained in the answer. De Witt v. Brill, 6 Misc. Rep. 44; 56 St. Rep. 616. Except as above indicated, the motion is denied, with $10 costs to the plaintiff, to abide the event.


author: Ehrlich, G. J.

text:
    Bertha Kaufman, Resp’t, v. D. Percy Morgan, Impleaded, etc., App’lt.

      (New York City Court, General Term,

      Filed October 23, 1894.)

    Appeal—Harmless error.
    A defendant, against whom the jury have found a verdict, is not prejudiced by a failure to find as to the liability of his co-defendant, where his liability is several and not joint with that of such co-defendant.
    Appeal from a judgment in favor of plaintiff entered on a verdict.

      Parsons, Shepard & Ogden, for app’lt; L. J. Morrission, for resp’t.
   Ehrlich, G. J.

There was evidence in the case to show that the defendant Morgan, at the time of the injury to the goods, was n possession and control of the warehouse. He attempted to defend upon the ground that his possession was in an official capacity, but the plaintiff denies that she had any knowledge or notice of any such representative character. The questions were fairly submitted to the jury, which returned a verdict in favor of the plaintiff for $325. The facts proved warranted a verdict against Morgan individually, for his liability was several, and not joint with that of the co-defendant. The trial judge might, and perhaps ought, to have sent the jury back for the purpose of passing on the liability of the warehouse company, that the issue as to it might have been disposed of; but this is matter of which the appellant, Morgan, cannot complain. As we find no force in the" exceptions, and no error requiring a new trial, the judgment appealed from must be affirmed, with.costs.

All concur.


author: Newburger, J.

text:
    Ruth A. Wallace, Resp’t, v. Terral C. Dimmony, Jr., App’lt.

      (New York City Court, General Term,

      Filed October 23, 1894)

    Landlord and tenant—Surrender.
    The defense, in an action for rent, that the landlord accepted a third person as a tenafit is not sxiatained, where the evidence did not show any surrender of the original lease, but did show that such third person refused to make a new lease.
    Appeal from a judgment in favor of the plaintiff.

      John J Adams, for app’lt; John H. Miller, for resp’t.
   Newburger, J.

This action is for 10 months’ rent due under a lease. -The defendant admits the making of the lease, but claims to have sold his business to a corporation who took possession of the premises, and that the plaintiff accepted said corporatian as a tenant. At the close of the defendant’s case the trial justice directed a verdict for the plaintiff, to which defendant duly excepted. There is no evidence in the case showing any surrender of the original lease. The evidence clearly shows that the corporation refused to make a new lease. The direction was a proper one, and the judgment must be affirmed, with costs.


author: Ehrlich, C. J.

text:
    Charles H. Reiher, as Assignee, etc., App’lt, v. Edward Moellner et al., Resp’ts.

      (New York City Court, General Term,

      Filed October 23, 1894.)

    Pleadings—Answer—Condition precedent.
    An answer, which admits the contract sued on, alleges facts constituting a condition precedent and denies its performance, is sufficient.
    Appeal from an order overruling a demurrer to the answer.

      Qeorge L. Hoffman, for app’lt; Blumenstiel & Hirsch, for resp’ts.
   Ehrlich, C. J.

The action is on a covenant whereby the defendants agreed to hold Steuerwald & Moltz harmless from any judgment that might be awarded against them in an action then pending by one Bernstein, and, in case such, suit was determined adversely to that firm, to pay the judgment obtained. The eighth paragraph of the answer admits the agreement, but alleges that it was therein provided that Steuerwald & Moltz would permit the firm of Blumenstiel & Hirsch to defend said action at all times during the entire existence of the same; that, prior to the time when the action was reached for trial, Steuerwald & Moltz violated the agreement,, by refusing to allow Blumenstiel & Hirsch to continue as the attorneys for the defendants, and required that firm to deliver the papers to other attorneys; that Blumenstiel & Hirsch were thereafter prevented from performing the services contemplated by the indemnity.

If, as stated in the answer, the promise to indemnify was upon condition that Blumenstiel & Hirsch should be allowed to defend the action, that provision was a condition precedent to liability; and, when Steuerwald & Moltz refused to comply with it, the defendants were absolved from liability. So that neither Steuerwald & Moltz nor the plaintiff, as their assignee, has any cause of action. For these reasons, the court below properly overruled the demurrer, and the order appealed from must therefore be affirmed, with costs. All concur.


author: Fitzsimons, J.

text:
    Harris Lyons, Resp’t, v. Julius Miller, App’lt.

      (New York City Court, General Term,

      Filed October 23, 1894.)

    Pleadings—-Variance.
    Evidence of a surrender and acceptance of the demised premises in August is not admissible under an averment of such surrender in September.
    Appeal from a judgment in favor of plaintiff.

      H Joseph, for pl’ff; A. H. Berriclc, for def’t.
   Fitzsimons, J.

The answer alleges that in the month of September, 1893, the defendant surrendered and the plaintiff accepted the demised premises. This allegation the defendant’s proof entirely failed to sustain. Testimony tending to show an acceptance and surrender in August was properly excluded. The proof must follow the allegation; otherwise it is inadmissible. The judgment must be affirmed, with costs.


text:
    Bridget McCabe, App’lt, v. Frederick H. Kastens, Resp’t.

      (New York City Court, General Term,

      Filed October 23, 1894.)

    Negligence—Notice.
    An owner, if he has no actual or constructive knowledge of the defective condition of his premises, is not liable for injuries caused thereby.
    Appeal from a judgment dismissing the complaint.

      J. A. O' Gorman, for app’lt; O. F. Holm, for appellee.
   Fitzsimons, J.

The testimony submitted by the plaintiff fails to establish that the defendant kept his premises in a dangerous condition. The plaintiff’s own testimony shows that the way was only worn and ragged. She saw its conditions, and apparently deemed it safe to travel over. If her judgment was wrong, and she was injured thereby, she has only herself to blame. • Besides, it is necessary for the plaintiff, in cases of this kind, to show that the landlord had actual notice of the dangerous conditions of his premises, or that the dangerous condition existed for a reasonable length of time. This her testimony failed to show; therefore the complaint was properly dismissed.


author: Lewis, J.

text:
    Frederick W. Skinner et al., App’lts, v. George W. Hannon, as Sheriff, etc., et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed November 13, 1894.)

    1. Ejectment—Judgment.
    Where a judgment in ejectment awards the plaintiff an undivided interest, an execution issued thereon, giving him the entire possession, will be set aside.
    2. Same—Restitution.
    In such case, it is within the inherent power of the supreme court, as court of equity, to order restitution to defendant.
    Appeal from an order vacating a preliminary injunction and directing the sheriff to execute a special term order theretofore made.

      John Van Voorhis, for app’lts; Edward Harris, for resp’ts.
   Lewis, J.

An action was brought in this court by one Falding W. Skinner against the defendant Odenbach, to recover the possession of the undivided two-fifths of a parcel of land in the county of Monroe, upon which the defendant had constructed an hotel. The action was duly referred, and the referee made his report in favor of the plaintiff. Immediately upon the receipt of the report, and without notice to the defendant, the plaintiff caused to be entered a judgment in said action adjudging that he was entitled to the possession of an undivided two-fifths of said premises; and he at once caused to be issued and directed to the sheriff of Monroe county, an execution, directing him to put the plaintiff into possession of the whole of said premises. The judgment was entered and the execution issued on the 3d day of May, 1894. The sheriff, armed with this process, assumed to and did remove the defendant from the premises, and placed the plaintiff in said execution in possession thereof; leaving, however, the furniture of jihe defendant in the hotel. The plaintiffs in this action, claiming to be the owners of an undivided two-fifths of the said property, accompanied the sheriff and the plaintiff Falding W. Skinner to the premises, and entered thereon in company with the sheriff, and thereupon asserted and claimed that they were in lawful possession, to the exclusion of the defendant. As soon as Odenbach learned of the entry of the judgment, he caused an appeal to be taken therefrom, and gave the undertaking required in such cases, with sufficient sureties, and, upon due notice, obtained an order of the special term, vacating and setting aside said execution and directing that the plaintiff, his agents and servants, and each and every person, other than the defendant, who may have taken or who may be in possession of said premises, or any part thereof, to immediately vacate the same, and permit the defendant to occupy them unmolested pending the appeal taken to the general term, and restraining the sheriff from taking further proceedings under the execution pending such appeal, and directed him forthwith to reinstate the defendant in possession of the premises, and remove therefrom each and every person, other than the defendant, who might be in possession of the same, or any part thereof. An appeal was taken by the plaintiff from said order, but in no manner was the execution thereof stayed. The defendant sought to regain possession of the property under this order. The plaintiffs in this action still remained in the hotel, and refused to surrender possession thereof; and thereupon they commenced this action to restrain the defendants from, in any manner, attempting to regain possession of the property, and obtained from the special county judge of Monroe county an order in said action restraining the defendants or their agents from, in any manner, interfering with the plaintiffs’ possession of the premises. At a special term of this court, held in connection with a circuit in the county of Monroe, an order was granted, upon due notice, vacating and setting aside said order made by said special county judge, and from the order thus made this appeal was taken. The order further directed the sheriff to fully execute an order theretofore granted in the ejectment action, and restrained the plaintiffs and their attorneys from, in any manner, interfering with the execution of that order.

The principal question presented by this appeal is whether the court had the power to include the provision in said order relating to the dispossessing of the plaintiffs in this action. The order was granted upon the return of an order to show cause, which recited that it was granted upon the affidavits of the defendant and his counsel, Edward Harris, and all the papers and proceedings referred to in the affidavit, both in this action and those used upon the motion in the ejectment action. It was stated in the affidavit of the defendant that the only possession the plaintiffs obtained of the premises they got by means of the execution aforesaid, and by the acts of the sheriff thereunder. This was not denied by the plaintiffs’ affidavit. The court had the right to assume from these facts that the plaintiffs’ possession was obtained by their accompanying the sheriff when he went with the execution to place the plaintiff therein in possession of the premises, and they entered the premises by the consent of the sheriff, and under his protection. The defendant, being in possession of the property, claiming to be the owner thereof, was entitled to remain, notwithstanding the judgment, for that, as we have seen, was for but the undivided two-fifths of the premises. The execution was irregular in so far as it directed the sheriff to put the plaintiff in possession of the entire property. While, as joint owner with the defendant, he had the right to enter upon the possession of the property by virtue of his judgment, the defendant had an equal right to the possession. The defendant having been unlawfully deprived of the possession of the premises by an officer of the court, who had assumed to. act under a process of the court which was thereafter set aside, so much of the order as directed the sheriff to reinstate the plaintiff in the possession of the property was unquestionably proper. It would be strange, indeed, if a court was powerless to restore to the defendant that which he had been deprived of in such manner. Had his undertaking been given before the sheriff had placed the plaintiff in possession of the property, he would have been entitled to retain possession during the pendency of the appeal. Code Civ. Pro. § 1331. It may be true that there is no provision of the Code, or rule of court, expressly providing for the granting of the order for restoring possession to the defendant, but it does not follow that the court had no power or jurisdiction to grant the order. All the practice is not contained in the Code and rules. The court possesses inherent power to adopt a practice or grant a remedy to meet the exigencies of a particular case, and thus give effect to the provision of the Code. Stricker v. Wakeman, 13 Abb. Pr. 85. The common law and chancery practice is not abolished. Mutual Life Ins. Co. v. Bigler, 79 N. Y. 571; Granger v. Craig, 85 id. 619; Hastings v. McKinley, 8 How. Pr. 175. Section 1311 of the Code provides for the discharge of a levy on personal property. Where a judgment is set aside for any reason, the court will award restitution, under the common-law practice. Adams Ej. § 225, and notes. The court of chancery assumed the power to supersede executions and discharge levies, and restore property to the appellant. Clark v. Clark, 7 Paige, 607. In the latter case the defendant had appealed, and given an undertaking, but on account of an informality it did not stay the execution, and the plaintiff issued an execution, and levied; and upon the bond being perfected the court of chancery superseded the levy, and directed the sheriff to restore the property to the plaintiff, and this was done in the absence of any express provision of the statute or rules authorizing it, the court assuming the right under its equitable power over its own process.

The supreme court now possesses all the powers formerly exercised by the old supreme court and the court of chancery. Section 1311 of the Code does not confer any new powers upon the court, considered as a court of equity; hence, no argument can be dérived from it that it impliedly prohibits the court from exercising a similar power in respect to land. Instances are numerous where the courts have applied equitable principles and rules to purely legal actions, and the fact that the common-law courts disclaim the power to act in such cases is no reason why the court is prevented from exercising its equity powers.

The plaintiffs in this action, having obtained possession in the manner they did, and, in effect, forcibly ejecting the defendant from the possession of the property, illegally assuming to avail themselves of the authority of a process which gave no such authority, the special term, having jurisdiction of the parties, did not, we think, exceed its equitable powers when it directed the sheriff to reinstate the defendant in the possession of the property, and remove the plaintiffs therefrom. Courts of equity, in exercising their equity jurisdiction over the executions of writs of possession, sometimes award a writ of restitution where a defendant, or even a stranger, has been wrongfully evicted under a writ. Sedg. & W. Tr. Title Land, § 60. The writ of assistance is the equitable equivalent of the common-law writ of ejectment. Id. 548. The courts of general jurisdiction have an inherent supervisory power over their process, and may quash, stay or set aside an execution whenever it is necessary to prevent or correct abuse thereof, according to the justice or equity of each particular case. 7 Am. & Eng. Enc. Law, 148. When the process of the court has been abused, and no innocent party has obtained rights under it, the court, in setting it aside, may restore what has been wrongfully seized thereunder. Campau v. Coats, 17 Mich. 235. In this case, however, judgment was set aside. The same doctrine was held in Keith v. Wilson, 3 Metc. (Ky.) 204.

While we have no hesitation in holding that the order, so far as it set aside the injunction order, and directed the sheriff to reinstate the defendant in possession of the property, was properly granted, it is not so clear that the court had power to direct the removal from the premises of the plaintiffs. Entertaining the motion and granting the order at a special term held in connection with a circuit was a matter in the discretion of the court. Falding W. Skinner not being a party to the action in which the order appealed from was granted, the court did not have jurisdiction to direct his removal.

#The order appealed from should be so modified as to limit its operations to the vacation of the injunction, and the restitution of the defendant to the possession of the undivided three-fifths of the premises; and, as so modified, it should be affirmed without cost of the appeal to either party.

All concur.


author: Van Brunt, P. J.

text:
    Carlo Scotti et al., as Administrators, etc., App’lts, v. George Behsmann et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    NegliGence—Contributory.
    Where a person has been placed, without any fault or negligence on his. own part, in a situation of peril, it does not make him guilty of contributory negligence if he does not do exactly the right thing in order to avoid, the danger.
    Appeal from a judgment dismissing the complaint.

      W. K. Hall, for app’lts; J. A. Hodge, Jr., for resp’ts.
   Van Brunt, P. J.

This action was brought to recover damages for the killing of the deceased by a vehicle belonging to the-defendants. The deceased was a boy nine years old. He was-proceeding, with others, up First avenue, in the neighborhood of One Hundred and Third or One Hundred and Fourth street, and,, the party desiring to cross the street in their progress along the-avenue, the boy went ahead of the rest, and was upon the crosswalk, crossing the street, when some of the others saw a cart coming through the avenue, which, without giving any warning, suddenly turned around the corner of One Hundred and Fourth street, going on a little trot, the boy being about two or three feet away from the cart. He was called to, and started ahead in front of the horses, and! was struck and killed. Upon this state of the evidence, the court dismissed the complaint. This, we think, was-error. The deceased was going along the avenue, and crossing at the crosswalk. He had no reason to anticipate that any vehicle-upon the avenue would turn suddenly across the walk without, giving any warning. It is claimed, however, that the evidence-shows that when the deceased was called to he ran in front of the-horses, and it was because of this the accident happened. But it is apparent that the vehicle was right upon him when his attention was called to it, and that this was a spasmodic effort to preserve himself from a situation of danger, in which he had been-placed without any fault or negligence upon his own part; and, if he did not do exactly the right thing in order to avoid the danger, that does not make him guilty of contributory negligence. It-was the duty of the driver of this vehicle, when turning around this corner, to have given those people who were crossing the street some opportunity of escape from a vehicle which they had no reason to suppose was going to interfere with them. It was the duty of the driver, under these circumstances, to see that the crosswalks were clear before he turned into the street, and not to ruthlessly ride down any pedestrian who might be happening to be pursuing his course along the avenue at the intersection of the street.

The judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.


author: Follett, J.

text:
    August Von Hermanni, Resp’t, v. Adam Wagner et al., as Executors, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894 )

    1. Executors, etc.—Disputed claim—Reference.
    Section. 2718 of the Code does not give power to the referee to authorize amendments.
    2. Same.
    A claim for commissions on the sale of a house for testator was held not to be supported by the evidence.
    Appeal from a judgment rendered in favor of the claimant.

      John H. Hull, for app’lts; Charles Schwiclc, for resp’t
   Follett, J.

For several years prior to December 7, 1891, Adam Schepp owned No. 151 First avenue, in the city of New York, a part of which had been leased to and occupied by George Kiiauer since May 1, 1885. On the 7th of December, 1891, Schepp and Knauer entered into written contract, whereby the former sold and the latter purchased the premises for $31,700. December 28, 1891, Schepp died, leaving a will, which was duly probated January 28, 1892, and letters testamentary thereon were duly issued to the appellants. On the 16th of February, 1892, the respondent presented to the executors a verified claim, of which the following is a copy, except the verification:

“ The Estate of Adam Schepp, deceased, to August Yon Hermanni: To commission of one per cent, on sale of house, No. 151 First avenue, New York city, sold for $31,500.
“August Yon Hermanni,
“315 Claimant."’

The executors rejected the claim, and offered to refer; and thereupon a referee was agreed upon, who was approved by the surrogate’s court, and an order was entered in this court appointing the person agreed on as a referee, “to hear and determine the matter in controversy mentioned in the said agreement.” A copy of the claim as presented was incorporated in the agreement to refer. The claimant proved on the trial that he was a real-estate broker, but failed to show that he had negotiated a sale between the vendor and the vendee, or that he had brought them together for the purpose of effecting a sale. The purchaser was called by the claimant as a witness, and testified that the negotiations which resulted in the contract were conducted between himself and the testator, and were concluded at the testator’s house. The claimant drew from this witness the following: “Q. By Mr. Schwick: Did Mr. Schepp ever say anything to you about having given this property to Mr. Hermanni to sell? A. After I bought the house, he spoke to me about Mr. Hermanni. Mr. Schepp said: * There is a party in Tenth street who claims the commission. I gave him the house for sale for about eight days, and the time over when I bought it.’ I know now that Mr. Hermanni is a real-estate agent, but I did not know it before. Mr. Hermanni offered me the property for sale. I saw him once in my store, as far as I can remember. I think it was in November, 1891, just before I bought it; about a month beforeIbought.it. I cannot remember that I ever saw Mr. Hermanni looking at the property with other people. I am not sure that he did not bring people there to look at it. I knew Mr. Schepp about seven years before I bought the property.”

The claimant, to support his case, called Ludwig Hebei, who testified: “ He (Schepp) said ‘ that Mr. Hermanni, of Tenth street, called and claimed the commission for the house.’ Mr. Schepp also said to me 1 that he had. given Mr. Hermanni the house for sale, for one week only, but he did not bring any customer, and I don’t think he is entitled to commission.’ If any one comes and asks whether the house isisold, we should say nothing. , That is all he told me.”

This is the only testimony given which tends to support the claim that the respondent was employed by the testator to sell the premises, and it appears that the time within which he was authorized to make the sale was limited to a week or ten days, and it further appears that the sale was not effected within the time limited. The claimant utterly failed to show that a sale was effected within the time during which he was authorized to make the sale, and he also failed to show he conducted any negotiations which resulted in the sale, or in bringing the seller and buyer together, and therefore failed to make a case for the recovery of commissions as a broker. The claimant, appreciating the weakness of his case in this respect, attempted to establish a right to recover upon the theory that the testator employed him, not to make a sale, but to procure persons to go to the premises, measure them, and look at them, for the purpose of inducing Knauer to believe that they were intending to purchase. Two or three persons were called by the claimant who testified that, at his request, they went in front of the premises, measured the width of the property by pacing it, and looked up at the building, but did not enter it; in other words, that they acted as decoys. The purchaser testified that he did not see these witnesses in front of his premises, and so they could not have caused him to believe that the property was likely to be sold to others. The evidence upon this issue is shadowy and unsatisfactory, and the witnesses who gave it do not give a commendable account of themselves. Again, the verified claim presented, is not for procuring persons to act as decoys for the purpose of deceiving the occupant of the premises, and thereby induce him to buy, but it is for commissions rendered as a “real-estate broker,” which term has a settled and well-understood meaning. It was held, Eldred v. Eames, 115 N. Y. 401; 26 St. Rep. 277, that a referee appointed to hear a disputed claim under the Revised Statutes had no authority to authorize it to be amended on the trial. The section of the Code under which this reference was ordered, and which is a substitute for the Revised Statutes, does not seem to give power to the referee to authorize amendments. The executors had a verified claim before them for particular services, which they agreed to refer, which agreement was approved by the surrogate’s court. Had a different claim been presented, the executors might not have rejected it; and, if rejected, they might have refused to refer it; and, if they had agreed to refer it, the surrogate’s court might not have approved of the agreement. The objection that the claimant could not recover for services performed, if he performed any, in procuring persons to go in front of the premises, and act as though they intended to purchase, was raised on the trial, and overruled. We think that the claimant failed to establish the validity of the claim presented, and that the judgment must be reversed, and a new trial ordered before a referee to be appointed by this court with costs to the appellants to abide the event.

All concur.


author: Ingraham, J.

text:
    Continental Trust Company, as Administrator, etc., Pl’ff, v. Henry Nobel, Def’t.

      (Supreme Court, New York Special Term,

      Filed November, 1894.)

    1. Partnership—Survivor—Accounting.
    When the surviving partner fails to close up the firm business, he is accountable for all profits made with the firm property up to the time of a final decree dissolving the copartnership and directing an accounting.
    2. Pleading—Demurrer—Defect of parties.
    Where a defect of parties appears on the face of the complaint the objection, if not taken by demurrer, is waived.
    Action for a partnership accounting.

      Luden Birdseye, for pl’ff; Christian (?. Moritz and Henry Hoyt, for def’t.
   Ingraham, J.

Since the decision of the general term of this court in Knox v. Nobel, in which the validity of the appointment of the testator’s widow as administratrix was in question, it is settled that the act of the surrogate in issuing letters to the widow was void, as she was then a minor, and that any contract made by her as administratrix, so far as it attempted to bind the estate of her husband was also void. See 77 Hun, 282; 59 St. Rep. 387.

The letters that the surrogate issued which attempted to appoint testator’s widow as administratrix, being void, there was no representative of the estate, with whom the defendant could deal, or make any contract that would bind the estate. The bill of sale that he received from the widow was therefore an absolute nullity, so far as the estate was concerned; and the plaintiff, having been duly appointed administrator, and being in a position to enforce the rights and obligations of the estate, is clearly entitled to require the defendant, as surviving partner, to account for the co-partnership property in his hands.

It is not necessary that I should pass upon the question as to whether or not Nobel had knowledge of the fact that the widow was a minor, and that the letters issued to her were void, or that he procured her appointment as administratrix for the purpose of defrauding the estate of her husband. It is a little difficult to understand how the defendant, who was the testator’s partner, could have been ignorant of the fact that the widow, who was at that time under 19 years of age, was an infant. But, assuming that he had knowledge of that fact, it is not at all clear that he knew that an infant could not be appointed administratrix. And as the legal rights of the estate would not be materially affected by his knowledge of that fact, or his knowledge of the legal effect of the appointment of an infant as administratrix, is it not necessary in this action to protect the estate that that question should be determined.

Upon the death of the plaintiff’s testator it was the duty of the surviving partner at once to close up the business, reduce the estate to cash, pay the debts, and divide the balance remaining; but, where the surviving partner fails to perform this duty, he is held accountable for all profits made with the copartnership property up to the time of a final decree dissolving the copartnership and directing an accounting. Thus the rule is stated in 17 Am. & Eng. Enc Law, p. 1166: “And, if the surviving partner continues the trade or business with the partnership stock, it is at his own risk; and he will be liable, at the option of the representatives of the deceased partner, to account for the profits made thereby, or to be charged with the interest upon the deceased partner’s share of the surplus, besides bearing all the losses.”

In this case the estate of the deceased partner has elected to require the surviving partner to account for the profits made from the copartnership property, and the plaintiff is entitled to such a judgment The defendant, of course, would be entitled to be credited with all the debts of the estate that he had paid, including funeral expenses, as well as the disbursements made by him in carrying on the business, and to be charged with all the receipts from the business, including the value of the copartnership property at the present time. All renewals of leases of the hotel made since the death of the plaintiff’s testator are to be considered as belonging to the copartnership. See Mitchell v. Reed, 61 N. Y. 123.

The answer sets up as a defense that there is a defect of parties defendant, in that the widow is not joined as a party to this action ; and this presents a more serious question, especially in view of the allegations of the answer and complaint, whereby it appears that this defendant paid to the widow $6,500 for an assignment by her, presuming to act as administratrix, of the share of the plaintiff’s testator in the copartnership. I think, however, that that defense fails, because whatever defect of parties there was appeared on the face of the complaint, and the defendant should have taken that objection by demurrer (see Code, § 498), and by § 499, where the objection appears on the face of the complaint, and is not taken by demurrer, it is waived. The defendant, however, alleges, as an equitable defense, that he is entitled to be credited in the accounting with the amount that he paid to the infant, which has been received and retained by her. Under the statute of distribution the widow would be entitled to a third of the testator’s personal estate, and thus would be entitled absolutely to one-third of the amount realized upon the sale of this copartnership property. She has received from the defendant the sum of $6,500, and that has been retained by her. And I think it clear that the defendant is entitled, on an accounting, to a -credit for the amount that he paid to her, not exceeding, however, her interest in her husband’s estate. This is clearly within the principle established by the court of appeals in the case of Wuesthoff v. Germania L. Ins. Co., 107 N. Y. 592; 12 St. Rep. 825. But to determine that question the presence of the widow, as a party to the action, is necessary; and, although the defense that there is a defect of parties defendant is waived by not demurring to the complaint, the court has power, under § 452 of the Code, where a complete determination of the controversy cannot be had without the presence of the other parties, to direct them to be brought in. Before the entry of the interlocutory judgment, I shall direct the widow to be made a party to this action; and upon her being brought in and made such a party, she having the right to be heard, and presenting no valid objection, I would direct an interlocutory judgment requiring the defendant to account for the co-partnership property in his hands.

The plaintiff also applies for the appointment of a receiver of the copartnership property. I am somewhat reluctant to appoint such receiver at the present time, as it would entail large expenses upon the parties, and would seem to me to be' unnecessary until after the accounting. I am disposed, therefore, to deny the application for a receiver in the interlocutory judgment; the judgment to contain, however, a provision enjoining the defendant from disposing of any of the copartnership property, except in the usual and ordinary course of carrying on the business of closing up the copartnership. The order directing the widow to be made a party defendant to this action is to be settled on notice; further proceedings in the action, including the entry of the interlocutory judgment, to be stayed until such order has been complied with.

Several questions as to the admissibility of the testimony taken under the commission were reserved. Objections to the following interrogatories to John J. Stewart are overruled : Second interrogatory ; fourth interrogatory. The last clause of the answer to the fourth interrogatory is stricken out, viz., “ Mr. Nobel objected to the employment of any other lawyer than Mr. Glass.” Fifth interrogatory: The motion to strike, out the answer to the interrogatory is denied. Sixth interrogatory: Except that clause in the answer of the sixth interrogatory, “It was the first time we had ever seen Mr. Glass,” is stricken out. The objections to the following interrogatories are sustained, and the answers stricken out: Third, seventh and eighth. The objections to the ninth and last interrogatories are overruled.

Objections as to the interrogatories to be administered to Annie L. Stewart: The objection to the third interrogatory is sustained, and the answer stricken out. The objection to the fourth interrogatory is overruled, and the words, “ They agreed upon Glass, I think,” in the answer to that interrogatory, stricken out. The objection. to the fifth interrogatory is overruled; but all after the phrase, “ I have already answered that in the question' before,” in the answer to the fifth interrogatory, is stricken out. The objection to the sixth interrogatory is overruled, but the following portions of the answer are stricken out: “ I know that Nobel got very excited that time before; ” “My daughter was much excited, because she had been waiting on her husband all through his sickness, and it made her very nervous.” And the last clause in the answer, commencing, “ My daughter and Mr. Niesterman’s brother were always good friends.” The answer to the seventh interrogatory is stricken out. The motion to strike out any portion of the answer to the eighth interrogatory is denied, and the objection to the ninth interrogatory is overruled. The answer to the last interrogatory is stricken out.


author: O’Brien, J.

text:
    George Ropes, Resp’t, v. William H. Arnold, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

      1. Evidence.—Parol.
    In an action upon a written contract not under seal, extrinsic evidence may be given to show that it was made on behalf of parties other than those whose names appear in, or are signed to, the instrument, and to charge such other parties.
    2. Same.
    Oral evidence of the negotiations between the parties is admissible, where the writing does not cover or purport to cover the whole agreement, or is not between the parties to the action or those with whom they are in privy.
    Appeal from a judgment in favor of plaintiff, entered on a verdict directed by the court.

      George A. Black, for app’lt; George S. Hamlin, for resp’t.
   O’Brien, J.

The action was brought against the members of the firm of Arnold, Hines & Co. and the members of the firm of Herron & Spencer to recover damages for refusal to perform a written contract to receive and pay for a quantity of dates alleged to have been sold to the two firms jointly. ■ The defense was that the dates were purchased, not by Arnold, Hines & Co., but by Herron & Spencer. Evidence to sustain the complaint was offered, and after the plaintiff rested the defendant, without offering any testimony, moved to dismiss the complaint on its face, and also upon the evidence, which motions were denied, and exceptions taken. Prior to these motions, the plaintiff had asked for a direction in his favor, and after the denials of the motions to dismiss the complaint the defendant asked for a direction in his favor, which latter was denied, and an exception taken, the plaintiff’s motion was granted, and a verdict was directed in favor of the plaintiff. No motion for a new trial was made, and no order denying such motion entered, the appeal being from the judgment, which, under the authorities, presents for review simply the exceptions taken upon the trial.

The exceptions that are urged with most force are those taken to the refusal to dismiss, both upon the complaint and subsequently upon the evidence ; the claims advanced being that there was a variance between the pleading and the proof, and that there was á total failure upon the evidence to prove the cause of action. In support of the plaintiff’s allegation that the defendants, including the firm of Arnold, Hines & Co., entered into an agreement in writing, a contract was produced, signed by Herron & Spencer. This, however, was supplemented by the testimony of plaintiff's witness Herron that after an arrangement made between the firms for a joint transaction in dates he purchased for account of both, signing such contract, however, by his own firm name. It being conceded that there was a contract in writing, the question is, under the pleadings, whether it could be shown that other persons than those appearing to sign the contract were parties thereto. This question we do not regard as new, it having been held in many cases that in an action upon a written contract not under seal extrinsic evidence may be given to show that a contract was made on behalf of parties other than those whose names appear in or are signed to the instrument, and to charge such other parties. Dykers v. Townsend, 24 N. Y. 61; Coleman v. Bank of Elmira, 53 N. Y. 388; Briggs v. Partridge, 64 N. Y. 362; Nicoll v. Burke, 78 N. Y. 581. As said in Dylcers v. Townsend, supra: “It seems to have been too long and too well settled that an action can be maintained against a principal upon a contract for the sale of goods made by an agent in his own name, to be now changed, whatever we may have thought of it as an original question.”

The court therefore was correct in its ruling in refusing to dismiss the complaint upon this ground.

It appears that in addition to the testimony of Herron the correspondence between his firm and that of the appellant’s was produced, and upon this evidence both parties, without asking to have any question submitted to the jury, requested a direction in their favor. As said in Johnston v. Trask, 40 Hun, 417: “ The defendants having made no request to submit any question of fact to the jury, and having moved for the direction of a verdict in their favor, they consented that the court should pass upon whatever disputable inference of fact might be deduced from the testimony. They therefore cannot be heard to complain if the court, as will be presumed on appeal, resolved such inferences so as most strongly to support the verdict directed.”

Sqp, also, Dillon v. Cockcroft,, 90 N. Y. 650; Gregory v. Mayor, etc., 113 N. Y. 421; 22 St. Rep. 703.

There being evidence tending to support the plaintiff’s version, even though susceptible of different inferences, we have no right to resolve these in defendants’ favor, but must, under well-settled rules of law, draw them most favorably to sustaining the direction made by the court, where such direction has been made at the request of both parties for a direction in their favor.

It is insisted, however, that error was committed in the reception of evidence relating to the oral negotiations between Arnold, Hines & Go. and Herron & Spencer, because these were all merged in the contract in writing between them, evidenced by three letters, and that paroi evidence thereof was inadmissible. The plaintiff correctly answers this objection "by urging that the letter referred to was not produced, nor was it shown that it contained the terms of the verbal agreement, and that oral evidence, therefore., was admissible. Afterwards, when the letter was put in evidence, no motion was made to strike out the oral. Again, the letters referred to, when próduced, did not cover or purport to cover the whole agreement, and in order to disclose fully the terms of the original agreement oral evidence was necessary, and, under the authorities, admissible. Chapin v. Dobson, 78 N. Y. 75. And further, that the written agreement was not between the parties to this action, or those with whom they were in privy, the rule forbidding oral evidence of an agreement in writing applying only to parties or their privies. Coleman v. Bank of Elmira, 53 N. Y. 388. The other exceptions, being clearly untenable, need not be discussed. We think that the judgment should be affirmed, with costs.

All concur.


text:
    Morris C. Mengis, Resp’t, v. Fifth Avenue Railway Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)
    1. Pleading s—Pro op .
    The objection that the judgment rendered is not within the issues, will not be sustained, unless the evidence, supporting such judgment, was objected to as not being relevant to any issue raised by the pleadings.
    2. Evidence—Documentary—Resolution.
    A written resolution of the board of trustees of a corporation, and not its substance, must be proved.
    3. Contracts—Construction.
    A provision that a contract may be cancelled if not performed in a certain time,and the parties absolved from liability to each other, applies only to executory parts thereof, and does not authorize the recovery of moneys which have been paid under it.
    Appeal from a judgment in favor of plaintiff.
    In 1885 the Fifth Avenue Railway Company was incorporated under the laws of this state, with an authorized capital stock of $2,500,000, divided into shares of $100 each, for the purpose of constructing and operating a surface railroad in Fifth avenue and in other streets in the city of New York. A contract in writing was entered into between the plaintiff and the corporation on the 15th of September, 1885, which was modified by a written contract entered into between the parties October 30, 1885, by which the plaintiff agreed to construct the road of the corporation for $2,436,000 of its stock and $1,000.000 of its first mortgage bonds. The contract contains the following, among other, provisions:
    “That he [Morris C. Mengis] will promptly proceed to obtain, at his own cost, all rights of way and necessary consents from the proper authorities and the property holders along the line of said railroad, and will in all respects comply with the legal require-merits as to securing such rights and consents, and all provisions of law as to the building and completing of said road. * * * The party of the first part [Mengis] will, until the completion of said road, defray the current administrative expenses of said party of the second part [corporation] incident to its proper management, including salaries, office rent, employment of counsel, legal expenses, stationery, cost of printing securities, and all other ordinary expenses of such a corporation, but not exceeding in all the sum of twenty thousand dollars per annum. * * * While this contract shall remain in force the said party of the second part [corporation] will not issue or agree to issue to any person or persons or company, or for any purpose whatever, any stock or bonds or other securities in addition to the stock and bonds hereby agreed to be issued to the said party of the first part [Hinges], excepting the one hundred and forty shares of said capital stock now subscribed for, unless otherwise first agreed to by the party hereto of the first part [Mengis] in writing, and except that said party of the second part [corporation] may issue the five hundred shares of stock reserved in the treasury at any time after the payment of the first installment has been made to said party of the first part [Mengis] as herein provided, nor shall said capital stock be increased without the like consent of the said party of the first part [Mengis], * * * That in case said party of the first part [Mengis] shall fail to obtain the necessary rights, privileges, and authority, and shall fail to build and complete said road within five years from the date hereof, then the said party of the second part [corporation] shall have the right and option to cancel this agreement, and thereupon both parties shall be absolved from any liability thereunder to one another. * * * ”
    The construction of the corporation’s road has never been authorized, and no part of it has been built. The defendant Alfrederick S. Hatch has been a director of the corporation since its organization, and in September, 1885, the plaintiff entered into an arrangement with him by which he agreed to act as trustee for the plaintiff. Shortly afterwards the plaintiff sold to various persons options to subscribe at par for a portion of the stock of the railway to which the plaintiff would become entitled under the terms of the contract. The sums received upon the sale of these options were deposited by the plaintiff with the defendant Hatch, who was then a member of the banking firm of A S. Hatch & Co. The defendant Hatch opened an account with the firm of A S. Hatch & Co. in the name of “A. S. Hatch, in trust for M. C. Mengis.” Between September 15, 1885, and November 17,1885, the plaintiff received from the sale of privileges for the purchase of shares $10,950, which he turned over to Hatch, who deposited it to the credit of said account. In October, 1885,.the plaintiff authorized Hatch to pay to the corporation $5,000, and charge it to the said account, which was paid October 8,1885. On the 17th of November, 1885, the plaintiff authorized the corporation to sell the right to purchase such shares as he might become entitled to at the rate of ten dollars per share, and deposit the sums received with the defendant Hatch. Acting upon this authority, the corporation sold the right to subscribe for a certain number of shares, realizing $13,320,- which was credited to the trust account, thus making the total sum credited to said account and arising from the sale of privileges $24,270. From this sum Hatch paid to the plaintiff $13,760, leaving $10,510 to the credit of the accobnt. February 6, 1886, Hatch, as trustee, by the authority of the plaintiff, paid to the corporation from said account $5,000, and February 8, 1886, a further sum of $5,000, leaving still to the credit of the account $510. On the 28th of June, 1886, Hatch, who was then treasurer of the defendant, purchased, with the money so received from the plaintiff, nine bonds of the par value of $1,000 each, for which he paid $9,993.75, and had them registered in the names of himself and of defendant William H. Lee, as trustees, which left in the hands of the defendant Hatch $6.25. Hatch received the interest paid on the bonds from time to time, amounting to $810, which, with the $6.25, stood to the credit of the corporation with the firm of A. S. Hatch & Co. In 1887'the defendant Hatch made an assignment for the benefit of his creditors, but prior to the execution thereof he transferred said nine, bonds to Isaac B. Mewcombe and William H. Lee, in whose names they were registered as trustees. Between January 1 and April 23, 1890, Mewcombe and Lee sold three of the bonds, and paid the proceeds arising from the sale to the corporation. Thereafter, and before the trial of this action, Mewcombe and Lee received interest upon the bonds amounting to $1,980, of which they paid $1,107.60 to the corporation, leaving in their haúds $872.31. For a long time before this action was begun the plaintiff and the corporation have treated the construction agreement as abandoned.
    This action was brought to recover the bonds held by the trustees, Mewcombe and Lee, the $872.31 in their hands, the $510 in in the hands of Hatch, and the amount in the hands of the corporation. By the first clause in the judgment the defendants Mewcombe and Lee are ordered to assign six of the mortgage bonds to the plaintiff. By the second clause in the judgment the defendants Mewcombe and Lee are ordered to pay to the plaintiff $872.31 and all other sums which they may have received as interest on the bonds, after deducting the costs in this action of May, Lee, and Mewcombe. By the third clause the plaintiff recovers of Hatch $510, and by the fourth clause he recovers of the corporation $816.25.

      James J. Allen, for app’lts; Lewis L. Delafield, for resp’t.
   Follett, J.

The corporation appeals from the first, second and fourth clauses of the judgment, and Alfrederick S. Hatch from the third clause thereof. Mo other defendant appeals. The corporation urges that the judgment against it is not “ consistent with the case made by the complaint, and embraced within the issue,” as required by § 1207 of the Code of Civil Procedure. The construction contract of September 15, 1885, the contract amendatory thereof of October 30, 1885, and the contract of Movember 17, 1885, by which the corporation was authorized and undertook to sell options to purchase shares which the plaintiff was to become entitled to receive under his contract, are set forth in the complaint. It is also alleged that the corporation sold options to purchase many shares of stock, and received a large sum of money in cash, which was paid over to Lewis May and Alfrederick S. Hatch, pursuant to the terms of the contract of November 17, 1885, which fund was subsequently transferred to Lee and Newcombe, who were directors of the corporation. It is also alleged that the plaintiff is ignorant of the amount received for options so sold, and that all - of the defendants are liable to account for and pay to the plaintiff the moneys received by them. The corporation alleges in its answer that it was agreed that the construction contract was not to be delivered to the plaintiff until $10,000 were paid over to it, to be expended in payment of the administrative expenses referred to in the contract; but that afterwards, on the 8th of October, 1885, a resolution was adopted by the defendant’s directors that the contract be delivered to the plaintiff upon the payment by him of $5,000, and on receiving an agreement from him that half of any money thereafter received for the sale of options should be paid to the treasurer of the corporation, until $10,000 should have been fully paid. That thereafter plaintiff paid to the treasurer of the corporation $10,000 received from the sale of options. It also alleges that it has expended more than the sum of $10,000 in paying the expenses of administering the affairs of the corporation. Other defenses are set up which were not established before the referee, and which need not be referred to. Upon the application of the plaintiff the corporation was required to furnish a bill of particulars of the sums which it had paid out in administering the affairs of the corporation, which it refused to serve, and by an order of the court was precluded from giving evidence of the various items expended. Under this state of the pleadings it seems very clear that the issue as to how much the corporation had received, and how much of the sum remained unexpended and in its hands or in the hands of its officers or of the trustees, was clearly presented, and that the recovery against it was consistent with the case made by the complaint, and embraced within the issue. Besides, the evidence of the amount of money and bonds in the possession or under the control of the corporation was not objected to on the ground that it was not relevant to any issue raised by the pleadings. The only objection that evidence offered by. the plaintiff was inadmissible ynder the pleadings is found at folio 442, and relates to a violation by the corporation of its agreement not to sell shares without the consent of the plaintiff.

On the trial, the corporation, by its counsel, offered to prove the substance of the resolution of its board of directors adopted on the 12th of September, 1885. This was objected to by the plaintiff’s counsel, and the referee ruled that the offer was improper, and that the defendant should offer the resolution, and have it marked for identification, in case it was rejected. The resolution was not produced, and the referee was quite right in refusing to rule upon the offer. The resolution was concededly in writing, and if the defendant desired to offer it in evidence it should have produced it, and, if rejected, should have had it marked for identification, and incorporated in the case, so that the appellate court could determine whether it was competent.

By the sixteenth finding it is found that the $5,000 paid by Hatch from the trust account to the treasurer of the corporation was for the sole purpose of securing the payment by the plaintiff of the administrative and other expenses which he was required to pay by the terms of his contract. It is urged that this finding is contrary to the weight of evidence. Over this issue there was a sharp conflict in the evidence, and we think that the finding of the referee is amply sustained by the testimony, and that the finding that this sum was paid to the corporation as a bonus for awarding the contract to the plaintiff has little support in the evidence. The sixteenth finding being well founded, the fifth conclusion of law, that such part of the $5,000 as was not expended by the corporation in the payment of administrative expenses belongs to the plaintiff, necessarily follows. The referee found (third finding of fact) that it was provided by the construction agreement that, should the plaintiff fail to build the road within five years, the corporation should have the right to cancel the contract, and thereupon both parties should be absolved from any liability thereunder to each other; and he also found that for some years both parties to the contract had treated the construction agreement as abandoned. It is urged that these findings are destructive of the right of the-plaintiff to require the defendant to account for sums of money which it had received from him, but had not expended pursuant to the terms under which they were received. This provision relates to the executory parts of the construction contract, and not to moneys received by the corporation under the contract of November 17, 1885. There is no provision in- the contract that, in case the plaintiff paid into the hands of the corporation a larger sum than was necessary for the payment of administrative expenses, he should forfeit them in case the construction of the road should become impossible by reason of the refusal of the authorities of the city to grant permission for its construction; and there is nothing in these findings inconsistent with the right to recover from the corporation the sums of money which he had paid over to it, and which it had not expended, pursuant to the contracts.

The appeal on the part of Hatch is based upon the refusal of the referee to find that he had rendered services to the plaintiff equal in value to the sum of $510 retained by him, and for which a judgment was recovered. The referee found that the plaintiff agreed to pay Biatch a reasonable compensation for his services as trustee, but that the reasonable value of such services over and above the value of an option given by the plaintiff to Hatch did not appear from the evidence. Hatch ceased to be a trustee in 1887, and we think that the refusal of the referee to find that the services rendered by him previous to that date were of greater value than the option given him and the profits derived from the use of the deposits in his hands and in the hands of the firm was justified by the evidence.

The judgment should be affirmed, with costs.

All concur.


text:
    Maximilian Toch, Individually and as Administrator, etc., App’lt and Resp’t, v. Jacob B. Toch, Individually and as Executor, etc. et al., Resp’ts and App’lts, Impleaded with Henry M. Toch, Individually and as Executor, etc., Resp’t.

      (,Supreme Court, General Term, First Department,

      Filed, November 16, 1894.)

    1. Executor, etc.—Assets.
    An administrator, with the will annexed cannot recover, the assets of his estate from the estate of a deceased executor who was the sole residuary-legatee and devisee, unless he shows that it is necessary for the due administration of the estate.
    2. Will—Legatee—Election.
    A legatee has the right to elect whether he will accept the provisions in the will of a deceased executor, in satisfaction of a legacy bequeathed to him by a will, of which such deceased was the executor.
    3. Same—Abatement.
    When articles of personal property are specifically bequeathed, they are not to be resorted to for the payment of debts, unless the property not specifically devised or bequeathed, is insufficient for that purpose.
    4. Same—Charge on land.
    Where the testator directs his executors to pay certain legacies and authorizes them to sell real estate “for the purpose of carrying out any and all provisions” contained in his will, such legacies are charged on testator’s land.
    Appeal from a judgment, entered on a decision that certain legacies were equitable liens and chargeable on the real estate, and that the land should be sold for the payment of such legacies. This action was brought for the purpose of charging certain real estate with the payment of eight legacies of $1,000 each, bequeathed by Bernard Toch to his eight nephews and nieces, children of Moses Toch, and to„ compel Henry M. Toch and Jacob B. Toch, as executors of Bernard Toch, to account to the plaintiff, as administrator of Moses Toch with his will annexed, for $9,000, the value of certain personal property, and for $5,000, the amount received by said executors from the Mutual Life Insurance Company on policy No. 104,721, issued upon the life of Bernard Toch, payable to Moses and Leopold Toch, which, May 9, 1892, was assigned by the executors of Leopold Toch to Moses Toch, and by his executor, Bernard Toch, was assigned, October 10, 1894, to said Bernard Toch, and that said sums, amounting to $14,000, be charged on said real estate. Moses Toch died April 27, 1884, leaving a last will, which was probated August 19, 1884, and letters testamentary were issued thereon to Bernard Toch. The testator bequeathed $25,000 to his executor, in trust, to invest, and pay the income therefrom to his widow during life or until she remarried, which was in lieu of dower. He bequeathed to each of 'his eight children who should attain the age of 24 years $1,000 each, to be paid to each child on his or her twenty-fourth birthday. He provided that, in case any child should die before becoming 24 years of age, the sum bequeathed to such child should become part of the residue of his estate. The residue of his estate he bequeathed to his brother Bernard Toch. He left eight children, all of whom are now living, and several of whom have become 24 years of age. Bernard Toch never inventoried or settled the estate of. his deceased brother. Whether testator left debts, and, if he did, whether they have been paid, does not appear. It appears that he left an estate of at least $40,000, $9,000 of which was personalty, and about $5,000 in a policy of life insurance. Bernard Toch died April 14,1886, leaving a will, which was probated May 21, 1886, and letters testamentary were issued thereon to Henry M. Toch and Jacob B. Toch. On the 8th of October, 1886, the plaintiff was duly appointed the administrator of the estate of Moses Toch with his will annexed. The executors have never filed an inventory of the estate, nor have they rendered any account as executors. Whether Bernard Toch left debts, and, if so, whether they have been paid, does not appear, except it appears that the eight legacies bequeathed by his brother Moses to his children have not been paid. Bernard Toch left personalty of the value of $15,750, all of which he specifically bequeathed, except a cash item of $375, and it has been distributed to the specific legatees, pursuant to the will. When Moses Toch died, he and Bernard Toch were seized in fee simple of real estate which is described in the complaint, each owning an undivided half thereof. Bernard Toch died seized of these premises, which are worth more than $75,000, one-half of which he acquired as the residuary devisee and legatee under the will of Moses Toch. This is the real estate upon which the eight legacies are charged by the judgment. The eight legacies were charged upon the real estate as prayed in the complaint; and from this part of the judgment Jacob B. Toch and Lucas Toch, two of the defendants, appeal. The court refused to require the executors of Bernard Toch to account for the $14,000 arising as above stated, from which part of the judgment-the plaintiff appeals.

      M. L. Townsend for pl’ff; Treadwell Cleveland for def’ts Jacob B. Toch and Lucas Toch; Louis Wertheimer for def’t Henry M. Toch.
   Follett, J.

This action is in equity to recover the assets of the estate of Moses Toch in the hands of the executors of Bernard Toch, who was the sole executor and residuary legatee and devisee of Moses Toch, and to charge the payment of certain legacies given by the will of Bernard Toch on his real estate. To establish the plaintiff’s right to recover assets in his representative capacity, he was bound to show that their recovery was necessary for the due administration of the estate of which he was administrator. The payment of all the legacies given by the will of Moses Toch is secured by the provision of the judgment charging their equivalents on Bernard Toch’s realty, pursuant to the provisions of his will; and no attempt was made to show that there were unpaid creditors of Bernard Toch, or that there were unpaid expenses of administration. It seems to us that the plaintiff failed to establish any right of recovery in his representative capacity. Walton v. Walton, 1 Keyes, 15; 4 Abb. Dec. 512, more fully reported in 2 Abb. Pr. (N. S.) 428, is not an authority for the plaintiff’s contention on this appeal that he has the absolute right to recover the assets which passed from Moses Toch to Bernard Toch. By the opinion delivered in the supreme court in that case it appears that there were unadministrated assets in the hands of the defendants, and that there were ,unpaid legacies. These two facts established the plaintiff’s right to recover in that action. In the case at bar there were no unpaid legacies, and, so far as it appears, no debts. No equitable result would be reached by permitting the plaintiff to recover the, $14,000 for the sole purpose of paying that sum back, on final settlement of the estate of Moses Toch, to the executors of Bernard Toch. Undoubtedly, if the plaintiff and his brothers and sisters had elected not to accept of the legacies in the will of Bernard Toch in satisfaction of those in the will of Moses Toch, he would have been entitled, in his representative capacity, to have recovered sufficient assets from the executors of Bernard Toch to pay those legacies; but these legatees had the right to elect, and they have elected, to accept of the provisions in the will of Bernard Toch in satisfaction of the legacies bequeathed to them in the will of their father. By asking in this action to have the legacies bequeathed to them in the will of Bernard Toch charged upon his real estate, they have elected not to regard the $8,000 as a debt due from the estate of Bernard to the estate of their father, and by the judgment they have secured the payment of those legacies. The plaintiff recovered in this action all that he was entitled to, and his appeal cannot prevail.

One of the executors of Bernard Toch and one of the beneficiaries under his will appeal from the judgment on the ground that the court erred in charging the eight legacies given by the will of Bernard Toch upon his realty. It is urged that the evidence of an intention to charge them upon the realty was insufficient to justify the conclusion drawn by the court. This contention cannot prevail. It is found as a fact—and the finding is not challenged—that Bernard Toch left personalty of the value of $15,750, the items of which are found. All of these items, except a cash item of $875, were specifically bequeathed to certain legatees, and those items have been distributed to the legatees. This left but $375 to pay the debts of Bernard Toch, if he left any, and the expenses of administering his estate. It is clear that the legacies bequeathed by the will of Bernard Toch must necessarily be paid out of the realty. When articles of personal property are specifically bequeathed, they'are not to be resorted to for the payment of debts, unless the property not specifically devised or bequeathed is insufficient for that purpose. If a testator bequeaths a picture, a particular bond, and a sum of money deposited in a bank to three legatees, these items are not to be taken for the payment of debts, unless the remainder of the estate is found insufficient. The will of Bernard Toch gives to his executors power to sell or mortgage all of his realty, except Nos. 293 and 295 East Tenth street, for the purpose of administering his estate. Moses Toch died April 27, 1884, and October 24, 1884, Bernard Toch executed his will, by which he provided for the payment out of his own estate of the legacies bequeathed by Moses to his children, and by his will he specifically bequeathed all of his personalty except $375. Bernard died April 14, 1886, and no-change appears to have occurred, between the date of his will and the date of his death, in the quantity or character of his personalty. The condition of Bernard's estate and the provisions of his-will indicate an intention on his part to charge his realty with the payment of the legacies to Moses’ children. He had just acquired one-half of his realty through the will of Moses, and justice and good faith required that the payment of those legacies should be secured; and every act of Bernard’s shows that he intended to deal justly by his nephews and nieces, and in strict accordance with the trust reposed in him by his brother. On the-question as to whether Bernard intended to charge his realty with the payment of those legacies, the opinion of the learned judge at. special term is satisfactory, and further discussion is unnecessary.

The judgment should be affirmed, without costs to any party..

All concur.