author: Davis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. REBECCA JONES, Appellant, v. ALEXANDER V. DAVIDSON, as Sheriff, etc., Respondent.
    Contempt— the refusal of a witness to answer questions may be punished either criminally or civilly— Code of Civil Procedure, sea. 8, sub. 5; sec. 14, sub. 5; seo. 2285 — length of the confinement —form of the commitment.

    The contumacious and unlawful refusal of a person who has been sworn as a witness, to answer any legal and proper interrogatory, may be punished criminally as á violation of subdivision 5 of section 8 of the Code of Civil Procedure, or civilly as a violation of subdivision 5 of section 14 thereof.
    The relator having been sworn as a witness in a proceeding pending in the Surrogate’s Court of New York, and having refused to answer certain questions put to her was committed to the county jail for a criminal contempt. The commitment, after reciting that the relator had been convicted by the Surrogate’s Court of contempt for a contumacious and unlawful refusal to answer certain legal and proper interrogatories propounded to her as a witness, directed that “she stand there committed, there to remain, charged with the said contempt as aforesaid, until she shall make answer to such legal and proper interrogatories as shall be propounded to her as a witness in this cause. ”

      Held, that the commitment was invalid; that the confinement should have been limited to the time when the witness was willing to answer the questions which had been actually propounded to her, and for a refusal to answer which she had been convicted of contempt.
    Although it is not necessary that the questions which the witness has refused to answer should be set out in hose verba in the commitment, yet it is the better practice to so set them out.
    Appeal from-an order of one of the justices of the Supreme Court, dismissing a writ of oertiora/ri and remanding the relator.

      Wm. H. Shepard, for the relator, appellant. ’

      Franklin Bartlett, for the respondent.
   Davis, P. J.:

The relator in this case was adjudged by- the Surrogate’s Court to be guilty of contempt in refusing to answer certain questions put to her after she had been sworn asa witness in a proceeding pending in that court for the probate of the last will and testament of Louis C. Hammersley, deceased. The contempt w.as committed in open court and the refusal of the witness to answer was contumacious- and unlawful. By the provisions of the Code of Civil Procedure* the relator’s misconduct could have been treated as a criminal contempt under section 8 of the Code, or as a contempt punishable civilly under section 14. Subdivision 5 of section 8 defines a contumacious and unlawful refusal to be sworn as a witness, or after being sworn to answer any legal and proper interrogatory as a criminal contempt, and subdivision 5 of section 14 defines a refusal to be sworn or to answer as a witness as a contempt that may be punishable civilly. It follows as a matter of course that a witness-guilty of this kind of contempt, to wit, a contumacious and unlawful refusal to answer any legal and proper question, renders himself liable to be punished either criminally or civilly in the discretion of the court. The sheriff in this case has returned the writ of commitment under which he holds the relator in custody. That recites an order of the surrogate which in substance convicted the relator of a criminal contempt, and undoubtedly justified proceedings to punish her by and under the civil proceedings provided by section 14, if the surrogate deemed that the better course. The relator having omitted to bring up by her cei't/iorari the order of the surrogate, no inference can be made or claimed that the order does-not fully sustain the recitals of the writ of commitment, and it is Our duty, therefore, to consider that the conviction of the relator of contempt in refusing to answer as a witness was in all respects legal and proper.

The only questions that arise upon the return relate to the extent and form of the punishment imposed by the order as recited in the commitment. They aré regulated and prescribed by section 2281, 2282,2283, 2284 and 2285 of the Code of Civil Procedure which confer power both to fine and imprison the convicted party. Section 2284 provides for the imposition of a fine where actual loss or injury is shown, sufficient to indemnify the (aggrieved party in a case where he has no action for his damages by law ; and where no actual loss or injury is shown, by the imposition of a fine not exceeding the complainant’s costs and expenses, and $250 in addition thereto. Section 2285 provides that “ where the misconduct proved consists of an omission to perform an act or duty which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it, and paid the fine imposed.” In such a case, the order and the warrant of commitment, if one is issued, must sjieciiy the act or duty to- be performed. In every other ease, when special provision is not otherwise made by law, the offender may be imprisoned for a reasonable time, not exceeding six months, and until the fine, if any, is paid; and the order and warrant of commitment, if any, must specify the amount of the fine and the duration of the imprisonment.

It is under this section that the warrant of commitment in this case was issued. Its recitals show that the relator was convicted, by the Surrogate’s Court, of' contempt, “for the contumacious and unlawful refusal of said Eebecca Jones, after being sworn as a witness in the said proceeding to answer the certain legal and proper interrogatories propounded to her as a witness * * * on the. 19th day of May, 1884,” and ordered that she be committed to the county jail for such contempt. It was not necessary, we think, to have recited the questions in hcee verba, either in the order or writ of commitment, though that would be the better practice. It was sufficient to-describe them as the questions propounded to her and which she refused to answer on that day, and to commit her until she should answer those questions, the refusal to answer which constituted her offense. Had the writ of commitment done this, we' should have been able to uphold it as a compliance with section 2285 of the Code; but, unfortunately, it does not. The recital from the order proceeds, after stating the conviction, in these words: “ And that she stand there committed, there to remain, charged with the said contempt, as aforesaid, until she shall make answer to such legal and proper interrogatories as shall be propounded to her as a witness in this cause.” And the mandate to the sheriff, based upon tbis recital, is, that he keep her safely and closely in his custody, in the common jail of the county of New York, until she shall purge herself of the contempt aforesaid, and make answer to such legal and proper interrogatories which may be propounded to her as a witness in the proceedings aforesaid.” Unfortunately, this recital aUd mandate do not comply with the requirement of the statute. The relator’s contempt consisted in her refusal to answer the questions actually propounded to her on the nineteenth of May, and not in refusing to answer such questions as may or shall be thereafter put to her as a witness in the proceeding. She was entitled at any moment to purge her contempt by paying her fine and going into court and answering ¿he questions which had been propounded and refused on that day. If she should then refuse to answer other proper questions, she would be guilty of a new contempt and might then again be punished, but she could not be adjudged guilty of that contempt until the exigency arose. The statute is explicit that where the contempt is an omission to perform an act or a duty which it is yet in the power of the' offender to perform, he shall be imprisoned, only until he has performed it. The act or duty of the relator in this case was to answer the questions propounded to and refused by her on the 19th day of May, 1884. It was yet in her power to perform that act or duty as the surrogate, we must assume, continued the casq for that purpose. The statute is also explicit that the order and the warrant of commitment “ must specify the act or duty to be performed and the sum to be paid,” so that by payment and performance of those specified things, the party convicted of the criminal contempt, can promptly terminate his imprisonment. But this writ of commitment is not of that character. The relator under -its mandate could not at any time pay her fine and demand to terminate her imprisonment by going before the surrogate and answering the questions she had refused to answer (though that was doubtless the intention) because the writ of commitment required, and the order as recited, also required that she should answer such legal and proper interrogatories as shall be propounded to her as a witness in this cause ” and make answers to such legal and proper interrogatories which may be propounded to her as a witness in the proceeding aforesaid.” Neither the process nor the order as recited gave ber the opportunity to purge her contempt and terminate her imprisonment, as the provisions of the Code prescribed, by doing the things she had refused to do ; that is simply to answer the questions actually put on the nineteenth of May.

In order to entitle her to her discharge according to the exigency of the writ she must under the order and writ not only answer the questions if propounded, in respect of which she is in contempt, but all other legal and proper interrogatories that shall ” or “ may ” be propounded to her, in respect of which she is not in contempt. There is no question but that the relator’s contempt was marked, obstinate and altogether without excuse. There is no call for any sympathy in her case. The learned surrogate doubtless treated her' will all the consideration due to her sex and condition, and gave her every opportunity to escape the consequences of her own folly. When it became his manifest duty to punish her singular and persistent obstinacy, he did so with a commendable firmness which deserves approbation. It is to be regretted that the process of commitment was not prepared for his signature with a closer observation of the requirements of the Code. While we feel constrained to hold that the writ is so far irregular as not to warrant the longer imprisonment of the relator, we are glad to say that there is nothing in the case that will prevent the witness from being brought again into court for examination and on a like refusal to testify, being subjected to whatever punishment is necessary to make her obedient to the primary duty under our government and laws of every good citizen when brought as a witness into a court of justice, which is to speak “ the truth, the whole truth and nothing but the truth,” touching the subject-matter of a controversy. If the power to compel this did not exist, then justice might be defeated in every effort to redress the wrongs and enforce the rights of litigants.

The order appealed from' must be reversed and an order entered discharging the relator from custody under the writ of commitment, but without costs.

DaNiels, J., concurred.

Present — Davis, P. J., and Daniels, J.

Order reversed and prisoner' discharged.


source: Caselaw Access Project

author: PbR CueiaM:

license: Public Domain

text:
    JACOB GLADKE and MORRIS J. GLADKE, Respondents, v. MOSES MASCHKE, Appellant.

      Attachment — when the action is one for a wrongful conversion of personal property— ■ ■ Oode of Oivil Procedure, sec. 635, sub. 3..
    The first cause oí action set forth in the complaint in this action was to recover damages occasioned by the sale of goods, which was induced by the false and fraudulent representations of the defendant. The second cause of action alleged that the defendant purchased the goods when insolvent, and with the intent to cheat and defraud the plaintiff, and not pay for them. It then alleged that the defendant had converted, the goods to his own use to the plaintiff’s damage.

      Meld, that the complaint set forth a cause of action for the “wrongful conversion of personal property,” within the meaning of subdivision 3 of section 635 of the Code of Civil Procedure, and that the action was one in which an attachment might issue.

      Bogart v. Dart (25 Hun, 395) followed; Wittner v. Von Minden (37 id., 234), criticised and doubted.
    Appeal from an order made at a Special Term denying a motion to vacate an attachment.
    The action was brought to recover the value of goods sold by plaintiff to the defendant. The complaint contained two counts :

      First. That the goods” were obtained by the defendant by means of fraud and misrepresentation.

      Secondly. That the goods were obtained by the defendant with the preconceived and fraudulent intent not to pay for the same, and that there had been a conversion of such goods by defendant.

      Alexander Thain, for the appellant.

      Jacob Schwartz, for the respondents.
   PbR CueiaM:

The application to vacate the attachment proceeded upon the ground - that one of the plaintiffs causes of action as they were set forth in the complaint, was for damages sustained by the sale and delivery of goods induced by false and fraudulent representations. But while this was the form of the statement first made in the complaint of the plaintiffs cause of action, it was followed by another statement plainly relating to the sale of the same goods, alleging. tbem to bare been purchased when the defendant was insolvent and unable to pay for them, and with the intent and design not to pay for the goods, but to cheat and defraud the plaintiffs out of their value. And following these allegations was the further allegation that the defendant had converted the goods and merchandise to his own use. By an affidavit upon which the attachment was issued, a conversion of the goods by the defendants was also'charged, and in the attachment itself the cause of action is stated to have been one for the wrongful conversion of personal property. . These statements, inasmuch as the demand was the same which was referred to in the first as it was in the second subdivision of the complaint, presented the case of an action for damages for the conversion of personal property, and within subdivision 2 of section 635 of the Code of Civil Procedure that entitled the plaintiffs to an attachment, inasmuch as the other grounds required by the Code for that purpose were established by affidavits. The case of Wittner v. Von Minden (27 Hun, 234), is therefore not an authority sustaining this appeal, and it may be,'inasmuch as subdivision 2 of section 3342 was not consideied in the decision of that case, that it has proceeded upon an erroneous theory of the law as that was construed in Bogart v. Dart (25 Hun, 395). The demand sustained in the plaintiffs’ favor was one for which an attachment could be issued, and the order denying the motion to vacate it should be affirmed, with ten dollars costs besides the disbursements.

Present Davis P. J., Beady and Daihels, JJ.

Order affirmed, with ten dollars costs and disbursements.


text:
    SOLOMON MARX and ELIZA GUGGENHEIMER, Respondents, v. BEBNARD SPAULDING and CHARLES JONES, Appellants, Impleaded with Others. [Four Cases.] SOLOMON MARX and ELIZA GUGGENHEIMER, Respondents, v. CHARLES JONES, Appellant, Impleaded with MICHAEL BRENNAN and Others. [Two Cases.]

      Supplementary proceedings — what return by the sheriff is requisite to their institution.

    An execution having been issued upon a judgment recovered against a defendant, the sheriff, shortly before the expiration of the sixty days within which it was to be returned, commenced to advertise for sale certain real property alleged ' to belong to the defendant. After the expiration of the sixty days, and prior to the day of sale, the sheriff made a return in which he stated that he had collected nothing under the execution, and had not found any personal property out of which the execution could be made, but that he had levied upon certain real estate and advertised the same for sale. Upon this return the plaintiff procured an order for the examination of the defendant in proceedings supplementary to execution.
    Held, that the return was not such as to justify the granting of the order.
    That the question as to whether or not the sheriff should not have made the return in the form required by law, should not be decided upon affidavits presented upon the application for the order.
    Appeal from an order denying a motion to vacate an order for the examination of defendants in proceedings supplementary to execution.
    The facts in the six above entitled cases are the same. The plaintiffs, wbo are the same in each case, beld six bonds secured by six mortgages upon real estate in the city of New York. Two of the bonds and mortgages were made by Michael Brennan, the defendant in the two Brennan cases, and the remaining four bonds and mortgages were made by Bernard Spaulding, the defendant in the four Spaulding cases. The defendant Jones assumed the payment of all these bonds and mortgages. The mortgages were foreclosed and resulted in deficiency judgments. The judgments against Spaulding and Jones in actions one, two, three and four, amount to about $22,000. The judgments against Brennan and Jones in actions one and two amount to about $11,000. Executions were issued upon each of these six judgments to' the sheriff of the county of New York, where all of these defendants reside. These executions were issued on October 20, 1884, and on December 19, 1884, the sixty-day limit allowed by the shertff within which to-return the executions expired. Within the sixty days allowed by the sheriff -within which to return the executions, and in December, 1884, the sheriff commenced to advertise for sale certain real property in which Jones, as was claimed by the plaintiffs, had no interest. Plaintiffs’ counsel then notified the sheriff that Jones had no-interest in the property, and that they did not desire this property advertised, but required the return of the executions. The sheriff refused to make a return, and thereupon a motion was made to punish him for contempt for his conduct with respect to the executions. The sheriff, on January thi^d, and prior to the day fixed for the sale of the real estate, made the following return:
    “ In pursuance of the demands of plaintiffs’ attorneys, I make the following return to the within execution : I have collected nothing under, and have not found any personal property out of which the said execution, or any part of the same, can be made; but I have thereunder levied upon the real estate mentioned in the annexed notice of sale, and have advertised the same for sale as in said notice provided. I have found no other property out of which to satisfy the same.” ' .
    Upon this return one of plaintiffs’ attorneys made an affidavit that the executions had been returned unsatisfied, and thereupon procured an order for the examination of the defendants. The defendants, on affidavits showing these facts, moved this court at Special Term to set aside said orders for their examinations, which motions were denied, with costs.
    A. Thmn, for the appellants.

      8. Untermeyer, for the respondents.
   "Bv the Couet,

Davis, P. J.:

We think the order should be reversed. The return was not such an one as justified the supplementary order. It is not enough to show that, upon the existing facts, it ought to have been such an one. The remedy was to require the sheriff to make the proper return, and if he refused, to move to compel him to do so on affidavits showing the facts now claimed to exist. Á creditor’s bill would not have been sustained in chancery upon such a return as was made in this case. The Code does not justify the proceedings where th'e execution has not been returned, for the reason that the sheriff has levied upon and is about to sell real estate of defendant. Nor ought the right to the supplementary order be made to depend upon the result of a controversy, upon motion to set it aside, upon conflicting affidavits on the question whether the sheriff should not have made the return required by law as the basis of the supplementary examination.

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

Present — Davis, P. J., and Daniels, J.

Order reversed, with ten dollars costs and disbursements.


author: DaNiels, J.: Davis, P. J.: Beady, J.

text:
    ALVIN D. PUFFER, Appellant, v. WALTER F. REEVE, Respondent.

      Conditional sale — right of the vendor to retalce the property on a breach of the conditions.

    June 27, 1876, the plaintiff delivered to one Bell a soda-water apparatus, and received from him a written instrument ty which Bell acknowledged that he had “hired, leased and received” the apparatus from the plaintiff for a term ending October 1, 1878, and by which he also promised and agreed to pay to the plaintiff or his assigns “ for the possession and reasonable use thereof for said term the sum of $1,152 as rent; to he paid, old apparatus, $452; balance in the installments set forth in the several notes given by me therefor.” The last of the notes fell due on June 1, 1878. The agreement provided that the property should not he removed, nor the interest of the lessee therein be transferred, without the written consent of the plaintiff. Upon the full payment of the several notes all claims and title to the said property on the part of the plaintiff were to cease and the whole title was to vest in the lessee as owner. Upon any breach of the provisions of the lease by the lessee the lease was to terminate and the plaintiff was to be .entitled to retake the property.

      'Held, that the title to the property remained in the plaintiff, and that upon a failure of the lessee to comply with the terms of the instrument the plaintiff was entitled to recover the possession thereof, even from one who had purchased it from Bell for a valuable consideration and without notice of the agreement. (Brady, X, dissenting.)

      Appeal from a judgment in favor of the defendant, entered upon an order made at the trial dismissing the complaint upon the merits, and also from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover the possession of a soda-water apparatus which had been delivered by the plaintiff to one Bell in June, 1876. Upon the receipt of the apparatus Bell executed an instrument which provided, among other things, as follows :

      “ Know all men by these presents, that I, A. W. Bell, 957 Fulton street, of Brooklyn, State of New York, have hired, leased and received of A. D. Puffer, of Boston, Commonwealth of Massachusetts, for the term, to wit:-years,-months, ending October 1, 1878, subject to the conditions herein stated, the following described goods and chattels: * * * And 1 do promise and agree with the said A. D. Puffer, his representatives and assigns, to pay him or them, for the possession and reasonable use thereof for said term, the sum of eleven hundred and fifty-two dollars, as rent, to be paid, old apparatus, four hundred and fifty-two dollars, balance in the installments set forth in the several notes given by me therefor, as follows : * * * And it provided that said property hereby leased is not to be removed from the premises where now located, No. 957 Fulton street, in said Brooklyn, N. Y. ; nor the interest of the lessee under this lease to be transferred without the consent of said A. D. Puffer, in writing, thereto first obtained. And it is further provided that, upon the full payment of the several notes aforesaid, all claim and title to said property on part of said Puffer shall cease, and the whole title shall vest in said lessee as owner. But upon any breach of the provisions of this lease, especially upon failure by the said lessee to pay the several notes, or either of them, as they become due and payable, then this lease, and any and all claim or right on the part of said lessee under the same, or to the further use and possession of said property, shall be thereby terminated, and the said A. D. Puffer may thereafter at any. time enter the premises where said property may be and resume possession of the same without process of law or let or hindrance from the lessee; and such of the aforesaid notes as mature after said Puffer has resumed possession of said property shall be taken and held to be void, and returned to the lessee upon demand.”
    Bell subsequently sold the apparatus to one Crawford, who there" after sold it to W. H. Schieffelin & Co., who subsequently sold it to the defendant, who paid a valuable consideration therefor, and had no notice of any claim of title thereto on the part of the plaintiff. The notes given by Bell, the last of which fell due June 1, 1878, not having been paid, the plaintiff subsequently brought this action to recover the property.

      A. Steolcler, for the appellant.

      A. Simis, Jr., for the respondent.
   DaNiels, J.:

The delivery of the property by the plaintiff was not alone conditional, as it was in Comer v. Cunningham (77 N. Y., 391), but the title itself was conditional on the final and complete payment to be made by the purchaser. The transaction was no more than a conditional sale, the title remaining in the plaintiff until complete payment should extinguish the condition. That never was made, and the default entitled the plaintiff to recover the possession of the property under the authority of Ballard v. Burgett (40 N. Y., 814) and Austin v. Dye (46 id., 500.)

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

Davis, P. J.:

Upon the facts of this case, as shown by the evidence, there was no sale of the property with a conditional delivery, but an agreement to sell upon the performance of the conditions stipulated in the written instrument. The property meanwhile was to be held under the lease made between the parties, which entitled the lessee to possession and the right of use so long as he paid the stipulated installments of rent, but on default his right of possession arid use was at once to terminate, with full power on the part of plaintiff to retake possession. This instrument was not in the nature of a mortgage or mere security for the payment of installments to fall due on a purchase, and need not, therefore, be filed as a mortgage., -No title vested or could vest in the lessee till by the terms of the contract, by payment of the rent, the contract was to terminate by a transfer of title at that time.

I think the case is within the authorities cited by Justice Daiíiels, and not those relied upon by the defendant’s counsel. I think, therefore, that the judgment must be reversed, etc.

Beady, J.

(dissenting):

This action was brought to recover possession of a soda-water apparatus which was designated as the Druggist’s Pride.” The plaintiff by an instrument dated the 27th of June, 1876, delivered it to A. "W. Bell for $1,152, accepting in part payment an old apparatus for which a credit was given of $452, the balance to be paid in installments by several notes which were stated in the contract.

It was provided in the instrument that upon full payment of the several notes all claim and title to the property on the part, of the plaintiff should cease and the whole title vest in the lessee as owner; but upon a breach the possession of the property should terminate and that the plaintiff might enter the premises where the property might be and resume the possession of the same without process of law and without let or hindrance from the lessee. The amount due upon the notes was stated to be $'234.32, with interest, no part of which had been paid. Mr. Bell sold the apparatus to Mr. Cranford, who paid the plaintiff $150 on account of the debt due upon it. Cranford sold it to 'William 8. Schieffelin & Co., and they sold it to the defendant, of all of which the plaintiff had notice. The defendant purchased the apparatus for a valuable consideration and without any notice of any claim of title to it in the plaintiff.

The learned justice in the court below came to the conclusion that the legal rules applicable to the transactions between the different parties were enunciated in Hintermister v. Lane (27 Hun, 497) and the recent decision of the Court of Appeals in Comer v. Cunningham (77 N. Y., 391), and the cases cited in the opinion of the court in that case; and his judgment rests upon the proposition necessarily that this was a sale and purchase, and not a bailment of personal property with the privilege to the bailee to purchase. It cannot be distinguished from the case of Hintermister v. Lane (supra), in which a Swiss organ was leased, to be paid for by notes, the payment of which at maturity was to be a receipt in full against the instrument; and upon the further proposition enunciated, as evolved from an examination ofilhe cases in Comer v. Curmingham (supra), that where there is a sale and delivery, though the delivery between the parties is conditional, a tona fide purchaser from the Vendee obtains a good title.

It will have been observed that there was no arrangement between the original parties for the sale and purchase of the apparatus, that the vendee or lessee should pay anything for the use of it. In Austin v. Dye (46 N. Y., 500), the principle of the decision, which seems to be in conflict with the views' herein stated and those of Judge Lawbbnoe, was that one having possession of personal property .as bailee, with an executory and conditional agreement for its purchase, the condition not having been performed, could give no title to a purchaser, although the latter acted in good faith and parted with value without notice of a want of title. But, as said in Comer v. Cunningham (supra), in that case the vendee was to pay hire for the oxen until he should pay a specified sum, in a specified manner, in lumber, and then he was to become the owner. In this case it will have been observed, also, that the greater part of the sum agreed upon for the apparatus was paid, indeed, nearly half of it, at the time the contract was executed.

It is not necessary to examine any of the exceptions, for the reason that the judgment herein was pronounced upon the abstract proposition that. there was a sale and delivery of the property .under circumstances such as to shield an innocent purchaser without notice from any claim that might be asserted on the part of the plaintiff.

The views of Justice LawbeNoe are adopted and the judgment appealed from is affirmed, with costs.

Judgment reversed, new trial ordered, costs to abide event.


author: Beady, J.:

text:
    HENRY MILLER and JOHANNA MARIA DOROTHEA ELIZABETH MILLER, Plaintiffs, v. FRANCIS CARAGHER, Defendant.

      Will — devise of a remainder' to a son “ or Ms hews” — when it rests in the son.

    A testator by his will provided as follows: “I give and devise to my beloved wife Johanna M. D. B. all the rest and residue of my real estate as long as she shall remain unmarried and my widow, but on her decease or remarriage the remainder I give and bequeath to my son Henry or his hews."

      Held, that upon the death of the testator the son Henry took a vested estate in remainder, and that he and his mother could give a good title to the real estate.
    OontROTeRst submitted upon an agreed statement of facts under section 1279 of the Code of Civil Procedure.

      More, Arlington <& More, for the plaintiffs.
   Beady, J.:

On tbe'2d of February, 1885, the plaintiffs, one being the son and the other the widow of Franz Henry Miller, deceased, by an instrument in writing agreed to sell the premises described therein to the defendant. The plaintiffs, in pursuance of the'agreement, tendered a warranty deed with full covenants executed in due form, and also a bond and mortgage to be executed by the defendant in accordance with the agreement. He refused to comply with the contract upon the ground that the plaintiffs did not acquire by the will of Franz Henry Miller, deceased, an estate in fee simple in the premises proposed to be sold; that their estate in the property was merely contingent, and that neither of them acquired such an interest as to enable them to comply with the requirements of the contract by which they were bound to convey and assure to him an indefeasible estate in fee simple absolute in the premises. Thereupon it was agreed that this action should be commenced and submitted, upon the facts stated, for determination by this General Term.

The controversy arose upon the will of Franz Henry Miller, who died on or about the 16th of March, 1883. His will, which bears date the 25th day of May, 1869, and which was duly executed and attested, contained five clauses, as to the interpretation or construetion of tlie third of which a doubt is entertained by the defendant. The clause in question is as follows:

“I give and devise to my beloved wife, Johanna M. D. E., all the rest and residue of my real estate as long as she shall remain unmarried and my widow, but on her decease or remarriage the remainder I give and bequeath to my son Henry or his heirs.'’

The question presented therefore is, can the plaintiffs, being the "widow and son of the testator mentioned in the third clause, give a good title under the will % , The widow is gifted with a life estate as long as she shall remain unmarried, and on her decease or remarriage the premises are given to his son Henry or his heirs. We have not been favored with any points on behalf of the defendant, or any explanation of the views entertained by him or his attorney, whoever he may be, but suppose that it is the word “ or ” after the word “ Henry,” that occasions the doubt. It is not supposed for a moment that if the word were “ and ” instead of or,” there would be any question presented. The case of Moore v. Lyons (25 Wend., 119), which is approved in the case of Embury v. Sheldon (68 N. Y., 227), and also Livingston v. Greene (52 id., 118), and Kerr v. Bryan (18 N. Y. Weekly Digest, 569), establish rules of. construction by which Henry was vested with the fee upon the death of his father. As said by Chancellor Kent, in Moore v. Lyons (p. 143): “A remainder is not to be considered as contingent in any case where it may be construed to be vested consistently with the intention of the testator. The adverbs of time, therefore, such as when, then, after, from and after, etc., in a devise of a remainder limited upon a particular estate determinable on an event which must necessarily happen, are construed to relate merely to the time of the enjoyment of the estate and not to the time of its vesting in interest.”

The clause in this will, however, as we have seen, is, but on her decease or remarriage, the remainder I give and bequeath to my son Henry or his heirs,” and by which the testator meant that the estate was to vest upon his death, but was not to be enjoyed in possession until the- death or remarriage of his widow. And this seems to be a recognized rule of construction in the cases already mentioned. It is to be noted in considering this question, as suggested by Chancellor Walworth, in Moore v. Lyons, that in the construction of wills in reference to the resting of estates, it is a well settled principle tbat the law favors the resting of estates, unless the intention be unequivocally expressed to the contrary. Here the testator intended, upon the decease of bis widow or upon ber remarriage, tbat Henry should have the estate if lie survived him, and if not, then bis heirs should have the estate upon the happening of either one of these contingencies. The word “ or,” to which reference has been made and in the connection m which it is placed, evidently referred to and was intended to provide against the death of Henry prior to the testator. In other words, be meant to vest the estate in Henry if be should survive him, and if not in his heirs. This is the rule of construction established by the cases already mentioned.

In the case of Kerr v. Bryan (supra), by bis will the testator gave all the residue of bis estate to bis daughter Anna, and to her heirs forever. By a codicil it was provided tbat in case of the decease of his daughter Anna, all tbat be bad devised and bequeathed to ber should go to ber children then living, share and share alike, and to them and their assigns forever. And it was insisted tbat under the codicil the daughter took only a life estate. It was held, however, that the words in the codicil, “ in case of the decease of my daughter ” referred to ber death prior to tbat of the testator, but outliving the testator tbat she took the estate in fee. This case is in point. No doubt, however, is entertained tbat the testator intended to vest bis estate in bis son Henry if be survived him, the possession to follow upon the death of bis widow or upon ber remarriage, and none, either, that under the rules of construction of kindred provisions an estate in fee vested in him, and therefore tbat the union of the widow and Henry in the conveyance will confer an absolute estate in fee simple under the provisions in the will considered.

The plaintiffs are entitled to judgment.

Davis, P. J., concurred.

Judgment for plaintiffs.


author: Daniels, J.:

text:
    MOSES BROWN and Others, Appellants, v. PETER BOWE, Respondent.

      Sale of personal property — when the title passes to a consignee on delivery of it to a ea/rrier —attaching creditor cannot defend by showing title in a stranger.

    In 1880 one Day, wiio was engaged in carrying on business in Indiana, became so embarrassed as to be unable to continue in business. On November sixth he packed the goods sought to be recovered in this action in packages, addressed to the plaintiffs at New York, and delivered them to a railroad company, which gave him a bill of lading therefor by which it agreed to deliver the goods to the plaintiffs at New York. On November 8,1880, Day posted a letter to the plaintiffs, which contained a bill of sale of the goods executed on November sixth, together with the bill of lading, and directed the plaintiffs to apply the value of the goods as set forth in the invoice upon his indebtedness to them. The next day Day made a general assignment. The plaintiffs received the letter on the tenth and notified the agents of the company in New York of their claim and right to the goods. On November thirteenth the goods were seized by the defendant under an attachment issued in an action brought against Day.
    In an action, brought by the plaintiffs to recover the possession of the goods:

      Held, that they were entitled to recover.
    That even if the title acquired by the assignee was superior to that of the plaintiffs, the defendant could not set up the assignee’s title as he did not claim under it.

      It seems, that the plaintiffs’ title was good even as against the assignee. (Daniels, J.)
    Appeal from a judgment in favor of the defendant, entered upon a referee’s report.

      F. G. Reed, for the appellant.

      Melville H. Regensbwrger, for the respondent.
   Daniels, J.:

The action was brought to recover the possession of goods alleged to bave been owned by the plaintiffs and unlawfully taken by the defendant from their possession. The defendant denied the plaintiffs’ title to the property and the wrongful taking thereof, and then averred that the goods were taken by him as sheriff of the county of New York, under a warrant of attachment issued in favor of Raphael Bachman and others against George H. Day, directing him to attach and safely keep so much of the property of Day as would satisfy the demand mentioned in the attachment, and it was averred that the goods were at the time of their seizure the property of Day who- was the defendant named in the attachment. It appeared in the course of the trial, and the facts were so found by the referee, that Day had been engaged in business as a merchant in the State of Indiana, and had become indebted to the plaintiffs in the sum of $1,285 for goods sold and delivered by them to him. His circumstances had become such as to prevent him from continuing his business and on the 6th of November, 1880, he packed the goods in suit, and addressed them by marks on the outside of the packages, to the plaintiffs, and deposited them with the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, at Indianapolis, for the plaintiffs, and the company received such goods. The railroad company thereupon issued a bill of lading to Day, by which it acknowledged the receipt of the goods, and agreed to deliver them to the plaintiffs at the city of New York, by way of the New York Central and Hudson River Railroad Company. On the 8th day of November, 1880, Day inclosed the bill of lading with a bill of sale of the goods in a letter directed to the plaintiffs at the ciiy of New York, and deposited the same in the post-office at Indianapolis so addre'ssed. The invoice or bill of sale was executed on the 6th of Noveinber, 1880, and a letter accompanying the invoice and the bill of lading, informed the plaintiffs that the merchandise had been shipped for, and was intended as payment of their account against Day the consignor, and he thereby intended to transfer the goods to the plaintiffs at the prices mentioned by him in the invoice in payment of his indebtedness to them. The letter with the invoice and bill of lading was received by the plaintiffs on the 10th of November, 1880, who thereupon entered the merchandise set forth' in the invoice as stock on hand to arrive, and repeatedly called at the office of the New York Central and Hudson River Railroad Company to obtain the goods, and informed the company’s agents of their claim and right thereto. After that, and on the 13th day'of November, 1880, the attachment was issued under which these goods were seized and taken from the railway company by the defendant. It was also proved that, on the day following the mailing of the bill of lading and invoice to the plaintiffs, Day made a general assignment for the benefit of his creditors, and upon this state of facts the referee concluded that the plaintiffs were not entitled to maintain the action, and directed judgment in favor of -the defendants.

But by the delivery of the goods to the railway company to be carried and delivered to the plaintiffs, and the taking of the bill of lading for their benefit by Bay, and mailing it to them with the invoice or bill of sale, the company became the bailee of the goods for the plaintiffs’ use and benefit. The intention of Bay was thereby to transfer to and vest in the plaintiffs the title to the goods; and when he placed them in the possession of the railway company, to carry that intention into effect, and mailed the invoice and bill of lading to the plaintiffs, his right to and authority over the property were for the time being at an end, and the title vested in the plain tiffs, subject only to their refusal to accept the consignment when the facts came to their knowledge. A point quite similar in its legal effect to this was considered in Walley v. Montgomery (3 East, 585), where great stress was placed upon the invoice as a document, which would, with the other attendant circumstances, transfer the title to the property shipped to the consignee. The facts of that case so nearly resemble the one now before the court as to render it a very substantial authority in the way of sustaining the plaintiffs’ title to the property, upon what transpired up to and including the mailing of the letter, with the invoice and bill of lading by Bay to them. And a similar principle seems to have been followed in Anderson v. Clark (2 Bing., 20). Under circumstances not materially dissimilar, the point was likewise considered in Sturtevant v. Orser (24 N. Y., 538). In that case the goods, which were the subject of the action, had been sold and delivered by the plaintiffs and received by their vendee. The complete title to the property had consequently vested in him ; and after retaining them in his possession for a considerable period of time, during which he was their legal owner, he discovered the fact that he was in an insolvent condition and thereupon deposited the goods with a third person for the benefit of the plaintiffs; and they were held entitled to recover them in preference to a party afterwards seizing them before any actual acceptance of the goods took place on the part of the plaintiffs. The fact distinguishing that case from the ■one now before the court -is, that the goods which were then in •controversy were the identical goods sold by the plaintiffs themselves. But it should not be allowed to produce any legal distinction between that and the present case, for the reason that the title to them had become as completely vested in the vendee a.s had the title in Day to the goods.in controversy in this action. They were his property, as much so as the goods now in suit, at the time when they were put up and deposited for the benefit of the plaintiffs. And the principle upon which the title of the plaintiffs could be there maintained would seem to be as applicable and controlling in the present case as it was there held to be. But it is not requisite to go as far as this fot the disposition of this case. For before the attaching creditor, in whose behalf the defendant acted, took 'any proceeding for the collection of their debt the plaintiffs had received information of what had transpired in the shipment of the goods to them, and the forwarding of the bill of lading and invoice, and had actually accepted and assented to what Day had done to transfer the title to them. From that time they became the complete and absolute owners of the property, as against attachments afterwards issued in behalf of any of Day’s creditors. That was the case as it was presented to the referee; and upon that state of facts no reason appears to exist for doubting that the plaintiffs had acquired the title to the goods before the issuing of,, or their seizure under, the attachment; and that upon such acceptance the delivery to the carrier became a delivery to the plaintiffs. Even within the case of Rodgers v. Phillips (40 N. Y., 519), which depended upon the effect to be given to the statute of frauds, the title was vested in the plaintiffs before the goodsÉ were seized by the defendant.

He did not proceed under the authority of the assignment and is not entitled to claim any benefit from its execution and delivery. At the time when he seized the property it was in the possession of the railway company as the bailee of the plaintiffs, and through their title they were in the constructive possession. His seizure and removal of the goods were wrongful, and as he proceeded under a •distinct and independent authority, and not under the assignment, he cannot rely upon that instrument for the purpose of protecting himself against liability to the plaintiffs in this action. This point, where the action is brought to recover for the unlawful or wrongful taking from the possession of tlie plaintiff, was considered in Stowell v. Otis (71 N. Y., 36), and it was held by the court that title out of the plaintiffs, and in another party, could neither be relied upon or proved by way of defense to the action. But even if it could, still under the authorities first referred to, the plaintiffs would seem to ¡have a superior title to the goods over the assignee himself claiming them under the general assignment executed after they had been deposited with the railway company and the bill of lading and invoice had been mailed to the plaintiffs, intending thereby to vest them with the title to the goods. The act was one which was for their benefit, and their assent to what Day had done in their behalf is to be presumed, until, as a matter of fact, i.t should appear to have been declined. No indisposition to receive the goods on the terms proposed by Day was ever manifested by the plaintiffs, and the title which had for the time being vested in them, under their deposit with the carrier, and the mailing of the bill of lading and invoice finally became absolute and complete, and protected the goods against their seizure by the defendant in this action.

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

Davis, P. J., concurred.

. Present — Davis, P. J., and Daotels, J.

Judgment reversed, new trial ordered, costs to abide event.


author: DANIELS, J.:

text:
    FRANCIS E. BURROWS, Respondent, v. CHARLES M. DICKINSON, Appellant.

      Referee’s report — when set aside "because of Mas and prejudice upon the part of the referee — what will excuse delay in maleing the motion.

    This was an application to set aside the report of a referee upon the ground that he had become biased or improperly influenced against the defendant before the final decision of the action. It appeared that the referee, from time to time as the trial proceeded, importuned the defendant to aid him in securing an appointment to an office from the governor, and believed that the defendant could by earnestly exerting himself secure it for him; that these importunities continued to be addressed or suggested after the submission of the case and until near the time of its decision; and there'was reasonable cause to believe that the prejudice was occasioned by the failure of the defendant to answer the last letter from the referee, which was written shortly before the oase was decided.

      Held, that the report should be set aside.
    The report was made on May 11,1880. The motion to set aside the report was made in February, 1884. It was shown by the affidavits that the defendant had intended to appeal from the judgment, and was therefore compelled to have a case made and settled by the referee; that both the defendant and his counsel deemed it injudicious and dangerous to institute proceedings to set aside the report until the case had been settled, and that this application was made as soon as it could be after such settlement had been made.

      Held, that these facts furnished a sufficient excuse for the delay.
    Appeal from an order made at a Special Term denying a motion io set aside the report of a referee.

      D. S. Richards, for the appellant.

      E. H. Benin, for the respondent.
   DANIELS, J.:

The motion to set aside the report was presented upon two grounds, that of newly discovered evidence, and the alleged fact that the referee had become biased or improperly influenced against the defendant before the final decision of the action. Further objections were made in the moving papers to him as a suitable or proper referee, which do not require to be considered. For as they were known to the defendant before the trial commenced, and he then failed to apply for relief because of those objections, he waived his right and afterwards was by his own act deprived of all that ground of complaint on his part. But as to the alleged fact that the referee was biased against him, no such answer can be made to the application. For that does not appear to have become developed, until after the action- was fully submitted to the referee for his decision. The bias or influence arose as a matter of fact out of the disappointed expectation of the referee that the defendant would aid him in securing an appointment from the governor of the State of New York. That he desired this appointment is very clearly proved by the affidavits upon which the motion was heard, and this desire continued and was made the subject of interviews daring the progress of the trial, and the defendant failed to exert himself in favor of tlie referee, for the reason that he deemed him to be an improper person for the official appointment, but that was not disclosed to the referee, but the reason assigned for his indisposition to act seems to have been the pendency of the trial in this action. That was the circumstance on which the defendant endeavored to excuse himself without the offense to the referee, which he apprehended .would be created by an unqualified refusal to assist him in bis, application, and that continued until the hearing had been completed and the cause was submitted to the referee for his decision. At that time there is reason for believing that the referee expressed his convictions in the case to be favorable to the defendant, but afterwards a change apparently took place on account of the failure of the defendant to comply with his solicitations to aid him in his application for the official appointment, and that change has been supposed to have resulted in the decision of the case against the defendant. This has been unqualifiedly denied in the affidavit made by the referee. But the statements made by the defendant have been very strongly corroborated in an affidavit made by his counsel, and also by a letter written by the referee to the defendant after the case had been in fact submitted to him for his decision. The trial was commenced on the 2d of December, 1879, and it continued through about twenty different sittings, and the first report of the referee, which determined the issues in the action, was made on the 11th of May, 1880. Between the time of the final submission of the case and the making of the report the referee addressed and sent this letter to the defendant:

Law Office of George Beoker,

New York, April 22, 1880.

O. M. DiokiNSON, Esq.:

Dear Sir. — I leave to-night for Pittsburg, Pa., on a case involving $10,000. I may be absent a week. On my return I will send you copy of brief, etc., as requested.

Yours truly,

GEORGE BECKER.

P. S. Senator Halbert in here yesterday. He has exhausted himself with the governor.

If ahy of my friends would personally go to Albany and make a dead set with the governor I would get that place. I know I would from what I hear from there, but I have not had time or inclination to go there myself, and it would not be as well as for some one else.

Any one who would do it will be recompensed. I only wish to hold the place a short time as an advertisement, etc. It’s going to be Grant- against Tilden as it now loolts.”

Which fully confirms the statement that the referee was anxious to secure this official appointment, and looked to the defendant as a person through 'whose agency it probably might be obtained. It was evidently written as a last appeal, and as no response was made to it by the defendant, it may very well have created in the mind of the referee such a state of disappointment as decidedly to prejudice him against the defendant on account of his failure to exert himself, as it was expected he should, in the referee’s behalf.

The letter is very decisive as evidence in confirmation of what is stated by the defendant to have been the nature of the interviews alleged to have taken place between himself and the referee during the progress of the trial of the action, and also that the subject of these interviews was the aid and assistance solicited by the referee from the defendant in favor of his application to the governor for‘official appointment, and as that was finally withheld it may very well and very naturally have resulted in prejudicing the mind of the referee against the defendant, who in this manner had disappointed his anxious and earnest expectations. If it were not for this letter the denials of the referee might be accepted either as an accurate relation of the facts or as subjecting the statement of the defendant to too much doubt to be rendered the foundation of a conclusion adverse to the referee. But the letter is plainly of such a character as fully to confirm the statements made by the defendant concerning these interviews, and it indicates the existence of at least a final hope, or expectation, that the defendant would still yield and by his personal interposition with the governor aid the referee in securing his appointment.

This was the relation which the referee voluntarily placed himself in with the defendant. It was done with the expectation of securing substantial benefit, by means of his solicited exertion, and it was certainly very improper for the referee having this action before him to have placed himself in that situation. The influence and effect would be expected to be favorable to the defendant if he complied with the request of the referee, and id that manner prejudicial to the plaintiff, while if he declined to aid the referee in his application, the omission would be unfavorable to the defendant, tending to exasperate the mind of the referee through his disappointment, and to prejudice him against the man who had failed to meet his expectations, by serving him in the matter deemed to be ■exceedingly important to his standing and position. Whether the defendant acted or not, it would tend to swerve the mind of the referee from the just determination of the controversy submitted to him by the evidence, and the law will not permit a person exercising judicial authority to place himself in such a position. It require's, on the contrary, the most complete impartiality, and the avoidance of even the appearance of such relations as would bias the judgment or swerve in the slightest degree the action of the referee. It was his duty to maintain himself as far as that possibly might be done in a state of completeTmpartiality, as well as independence of each of the’ parties. For by no other course would he be expected to give that proper degrée of weight or effect to the evidence which is always required for the just disposition of legal controversies.

The referee failed to maintain this impartial relation to the parties to this controversy, and there is reason for believing, therefore, although he himself may not have discovered that to have been the condition of his mind, that he became biased against the deffendant after the action had been submitted for his decision, and before he finally made his report, and that this bias may have resulted in injustice to the defendant, and under the.- authorities that would ordinarily entitle him, as a matter of right, to have the report set aside, and another trial of the action ordered. (Stebbins v. Brown, 65 Barb., 272; Livermore v. Bainbridge, 44 How., 357; affirmed by this G-enenal Term, 47 id., 350.) While the authorities relied upon in support of the order, present a sufficient answer to the application, so far as it has been based upon other facts, they do not meet this aspect of the case. They relate, on the other hand, to misconduct on the part of the referee, known and understood during the progress of the trial, and then of a nature to be complete and consummated. Where that may be its description, after the discovery of the fact, proceeding with the trial will, in judgment of law, deprive a party having this knowledge of the right afterwards to move to set aside the report of the referee. (Carroll v. Lufkins, 29 Hun, 17; Valienti v. Bryan, 66 How., 302; Fudickar v. Guardian Mutual Insurance Co., 62 N. Y., 392, are cases of this description.)

The misconduct in those cases complained of was not only known but it was entirely complete before the trial was ended or the case was submitted to the referee for his decision. While in the present case it continued from time to time during the trial, and finally presented itself by way of a last appeal through the letter which was written less than twenty days before the report itself was made; and it was by the failure of the defendant, to respond, as it seems to have been expected he would, to the appeal made by this letter, that the referee probably became prejudiced and improperly influenced.

There was, therefore, no such acquiescence in the further progress of the trial as there was in these cases, after the discovery of the fact that the referee had placed himself in such an attitude to the defendant as might prevent him from making a just disposition of the controversy, according to the evidence. But that was finally caused by the omission of the defendant to meet the expectation of the referee as it was disclosed in the letter; and when consciousness of that fact settled upon his mind this bias was probably created, and speedily afterwards resulted in the making of this report.

The defendant was engaged in the publication of a newspaper at Binghamton, and that the referee was looking to him for favors is further indicated by his indorsement on the postal card written in November, 1879, in which he requests the defendant to give him a notice. And this was declined by a letter written on the ninth of the same month by which the defendant made the following reply:

EDITORIAL ROOMS JDaILY AND WEEKLY REPUBLICAN,

(Personal.) Binghamton, November 9, 1879.

George BeoKer, Esq.:

Eriend BeoKer. — I have not lost sight of your business card suggesting a notice. I have deferred it for these reasons: You have been appointed referee in a suit between E. E. Burrows and myself. I find some one 'here makes it their business to beep Mr. B. posted of everything I do. If I now say anything of you it will doubtless go to him and I fear will be regarded as an attempt to influence you in my behalf, or at least it will excite suspicion. If agreeable to you, therefore, I will defer the matter until this law-suit is ended, when I shall take pleasure in saying some pleasant things of your ability, experience, etc.

Yours,

CHAS. M. DICKINSON.

Which he states was written to excuse himself for not commending the referee in his paper, and to avoid giving him offense, by reason of the omission during the pendency of the trial.

The correspondence is a further indication that the referee was convinced that the defendant was in a position to render him valuable aid and assistance, and that he was appealing to him to secure such advantages, and it further corroborates the correctness of the conclusions concerning the truthfulness of the defendant’s statements of the interviews which took place between himself and the referee while this action was before him.

The motion to set aside the report, upon this as well as upon the other grounds, was not made until February, 1884, and this long intervening delay has been relied upon as an answer to the application ; and in ordinary motions it would probably be so regarded. But as this misconduct has deprived the defendant of a fair and impartial disposition of the action, according to the evidence, the intervening delay should not be permitted to be attended with that result, unless that should be found to be inevitably necessary. For upon all occasions the court should be exceedingly careful to prevent legal controversies from being influenced in their determination in this manner, and to avoid the existence of relations between the referee and either of the parties, which must probably result either in injustice to himself or other parties to the controversy. No slight circumstances should prevent the correction of abuses of this description, but all that can be reasonably accomplished should be done to preserve and maintain the impartial administration of the law. In this case that end may yet be secured without affording encouragement to unreasonable delays, upon the facts which have been presented by way of excusing an earlier application to set aside the report of the referee. From these facts it appears that the defendant designed, as he did afterwards, to appeal from the judgment entered upon the report of the referee. For that purpose a case was required to be made setting forth the evidence and the proceedings upon the trial. And as the evidence was taken by the referee himself, it was deemed not only injudicious but dangerous on the part of the defendant and his counsel to institute proceedings to set aside the report of the referee on the ground of misconduct on his part, until the settlement of the case could be completed, and a very considerable degree of delay seems to have intervened before that could be secured, and when that was done proceedings were at once set on foot to make this application, and the papers with notice of the motion are stated to have been served as early as that could be done, after the other end had been secured by the settlement and filing of the case, and the defendant had been relieved in that manner from all further authority over him on the part of the referee. These facts though to a certain extent qualified by statements made in the affidavits, produced on behalf of the plaintiff, still remain reasonably well establshed in the case, and they should be attended with the effect of excusing an earlier application, made by way of motion to set aside the report of the referee. No injustice has been caused by this delay to the plaintiff in the action, for he has not been prevented by means of it from collecting his judgment. Neither has the financial condition of the defendant been changed, and no doubt of his future responsibility has been suggested in the papers. Besides that, the motion does not appear to have been denied because of any improper delay on the part of the defendant in bringing it on, but for the reason that apparently the grounds upon which it was made were not sufficiently sustained by the affidavits. That, however, was an erroneous view to be taken of their effect. For they did establish the fact beyond reasonable grounds of controversy, that the referee from time to time, as the trial progressed, importuned the defendant to aid him in securing this official appointment, and believed that it could be secured in that manner, if the defendant would earnestly exert himself to bring about that end. And these importunities continued to be addressed or suggested until near the time of the decision of the action, and it was only when the defendant failed to return a response to the final letter of the referee, that he probably became disappointed in his expectations and had his mind prejudiced by that circumstance against the person through whose failure to act this disappointment had been created.

The newly discovered evidence was not sufficient to warrant an order setting aside the referee’s report. But this misconduct was certainly such as to require the interposition of the court, not only for the protection of the parties to this litigation, but more especially to secure the independent and impartial administration of the law. If that should be dispensed with in this case, it would operate as a direct encouragement to referees, who may be so inclined, to secure advantages and benefits to themselves by the position in which they may be placed, when invested with legal authority to dispose of the important rights so often submitted to their consideration. Even the appearance of improper influence and bias must be avoided. If it is not, the confidence of the public in this mode of providing for the determination of a large class of legal controversies, will be utterly subverted and destroyed, and injustice will likewise be promoted through the neglect, if not by means of the direct countenance and approval of the courts themselves. That is only to be prevented by vindicating the right of the parties to an impartial and independent trial when their legal controversy may, in any form, be brought before judicial tribunals for determination.

The order from which the appeal has been taken should be reversed, with the usual costs and disbursements, and an order should be entered setting aside both the interlocutory as well as the final report, which was made on the 14th of January, 1881, and ordering a. new trial of the action to take place before another referee to be named in the order.

Davis, P. J., concurred.

Present — Davis, P. J., and Daniels, J.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.


text:
    NEW YORK INFANT ASYLUM, Appellant, v. THEODORE ROOSEVELT and THEODORE KANE GIBBS, Respondents.

      Libel — bill of partiaula/i's of damages — when, the plaintiff will be compelled to furnish one.

    In this action, brought by the plaintiff, a charitable corporation, to recover damages for a libel alleged to have been published by the defendants, the complaint alleged, among other things, that by reason of the publication persons, who otherwise would have done so, had ceased and refused to contribute or make donations to it. Two of these persons were named in the complaint, and others were referred to as John Doe and Richard Roe and others whose names were unknown to the plaintiff.

      Held, that it was proper for the court to grant an order requiring the plaintiff to furnish a bill of particulars stating the names of the persons who, by reason of the matters alleged in the complaint, had ceased or refused to make contributions to or for the benefit of the plaintiff.
    Appeal from two orders requiring the service by the plaintiff of a bill of particulars.
    This action was brought to recover damages for an alleged libel. The plaintiff is a charitable corporation which is supported by an. income derived from the city of New York and contributions of persons charitably disposed. The original complaint, after setting forth" the alleged libel, stated “ that by reason of the promises the plaintiff has been injured in its reputation and credit to its damage $50,000.” To this the defendants demurred on the ground, among others, that the complaint did not state facts sufficient to constitute a cause of action. Thereupon the plaintiff served an amended complaint in which the allegations in respect to damage, after setting forth the alleged libel, are as follows: “ That by reason thereof, a number of persons, viz., J. Fisher, Charles Parke (whose real first name is unknown to plaintiff), and John Doe and Richard Roe, and others, whose names are unknown to plaintiff, who had theretofore been accustomed to contribute and donate sums of money to the plaintiff, ceased to have confidence in its management, and ceased and refused to contribute and donate any further sums of money to the plaintiff, and the plaintiff was thereby deprived of their contributions and donations, and of the money which it would otherwise have received from said persons on a continuance of their confidence in its management, and the plaintiff was otherwise damaged in its reputation, to its damage $50,000.”
    The defendants moved that the plaintiff deliver a bill of particulars, specifying the names of the persons who ceased to contribute to its funds by reason of the matters set forth in the complaint, etc. After argument the court made an order directing the plaintiff to furnish a statement in writing, under oath, of the names of the persons who, by reason of the matters in the complaint alleged, ceased or refused to contribute or donate any further sums of money to the plaintiff. And it was further ordered that the plaintiff be precluded from giving evidence on the trial that any persons ceased or refused to contribute any further sums of money to the plaintiff, except those named in said bill of particulars.

      Leceister Holme, for the appellant.

      Jones & Roosevelt and Gheramdi Damn, for the respondents.
   Daniels, J.:

The object of the action is to recover damages for a libel alleged to have been published by the defendants, of and concerning the plaintiff’s management. In the complaint it has been alleged that by means of the publication, persons have declined to make charitable donations to it, which it otherwise would have received. Two of these persons are named in the complaint, and others are referred to as John Doe and Richard Roe, and others whose names are unkn'own to the plaintiff. By the orders from which the appeals have been taken, the plaintiff has been required to serve a bill of particulars or a statement of the names of the persons who have for this reason declined to make contributions to or for the benefit of the plaintiff. This is the extent to which the orders have proceeded, and they seem to have been warranted by the manner in which this portion of the complaint has been framed. If the plaintiff has been deprived of charitable donations by means of the publication alleged to hp,ve been libelous, and its officers have knowledge of the existence of that fact, they may fairly be presumed to know who the individuals are who have declined to make such donations; and if they do, a reasonable understanding of the case to be made against the defendants, at the trial, requires that information of the names of these persons should previously be given to the defendants.

The rules prescribing what such a pleading as this complaint should be, require that this information shall be ’given to the defendants. That was considered in Hartley v. Herring (8 Durn. & East, 130), where it was held that the declaration should state the names of the customers whose patronage had been withdrawn from the plaintiff by reason of a slanderous publication. This complaint has not complied with that rule, except as to the two persons, Fisher and Parke, whose names seem to have been given, as far as they were known, and to remedy the deficiency in this respect the orders requiring the names of the persons referred to, to be given, were regularly made. If the plaintiff expects to be able to make proof of the fact, that persons have withheld charitable donations from it because of this publication, the defendants are entitled to know who those persons are in order to be prepared to meet that part of the case as far as they may be able to do so by proof upon the trial.

The orders which have been made require no more than that from the plaintiff, and as they seem to have supplied only the defect existing in this respect in the complaint, they were rightly made. They should be affirmed together, with ten dollars costs besides disbursements, to abide the -event.

Davis, P. J., concurred.

Present — Davis, P. J., and Daniels, J.

Orders affirmed, with ten dollars costs and disbursements to abide the event.


text:
    JULIUS FORSTMAN and Others, Appellants, v. RUTH A. SCHULTING, Executrix, etc., of HERMAN SCHULTING, Deceased, Respondent.

      Agreement that an attorney shall sha/re in the recoven'y — right of the attorney to ' proceed after a settlement between the parties.

    Where an agreement has heen made between a plaintiff and his attorney by which the latter is to receive a share of the recovery and his costs and allowances, in lieu of all charges for his services, his interest in the action cannot be affected by any compromise that may be made between the plaintiff and defendant; and in case a settlement be made, by them the attorney is entitled to proceed with the action without first obtaining leave so to do from the court.

      Wilkins v. Baker (24 Hun, 24), and Pickard v. Tencer (10 Weekly Dig., 271), followed; Gfoddard v.- Trenbath (24 Hun, 182), overruled.
    Appeal from an order staying the plaintiffs’ proceedings in this action.
    After a judgment in favor of the defendant had been entered upon the trial of this action the costs were paid by the plaintiffs. Subsequently, the defendant having died, the plaintiffs procured his executrix to be substituted in his place, and appealed to the General Term from the judgment against them. The General Term first affirmed the judgment and then ordered a reargument.

      William Watson, for the appellants.

      O. Bainbridge Smith, for the respondent.
   Daniels, J.:

The stay was ordered for the reason that the costs recovered against the plaintiffs in the action had been paid, accompanied by an agreement on their part that no further proceedings would be taken in the action. But as this agreement was not the result of any compromise, but voluntarily entered into, it was not binding upon them or their attorney. The defendant relinquished nothing on account of it, but received the entire amount which had become due, and there was consequently no consideration for the agreement.

A contract was entered into with the attorney by the plaintiffs, through which he was to be allowed one-tenth of the recovery, together with the costs and allowances in the action. And he was at the time of the order proceeding with the action to secure his compensation under this agreement. And of the right to do that the plaintiffs could not deprive him by the agreement affirmed to have been made. His claim for compensation was in no manner considered or satisfied and was not extinguished by the agreement which, as a matter of fact, -was founded on no consideration. As the agreement for his employment is stated to have been made it did not obligate the attorney to pay out any disbursements in the progress of the litigation, and his conclusion that he was not at liberty to call on them to reimburse him did not, therefore, render the agreement an unlawful one. It was a conclusion not required or supported by the agreement itself.

It was held, as the counsel for the respondent has claimed, in Goddard v. Trenbath (24 Hun, 182), that an attorney would not be at liberty after the settlement of the litigation to proceed with it for the recovery of his own compensation without leave of the court first being obtained. But this decision is directly opposed to Wilkins v. Baker (24 Hun, 24) and Pickard v. Yencer (10 Week. Dig., 271). These two decisions are most entitled to be regarded as controlling and securing the attorney the right to proceed with the litigation for the collection of his compensation.

When the order was made he was about to bring on the hearing of the appeal in this action which had been directed to be reargued by the court, and the defendant should not in this stage of the litigation have interposed to prevent him from doing that by this order staying his proceedings.

The order should be reversed, with the usual costs and disbursements and the motion denied.

Davis, P. J., concurred.

Present — Davis, P. J., and Daniels, J.

Order reversed, with ten dollars costs and disbursements and motion denied.


text:
    MARY CAMPBELL, as Administratrix, etc., of JAMES CAMPBELL, Deceased, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Negligence — when a railroad should provide by rules for the proper protection of

    While the plaintiffs intestate was assisting in unloading gravel from one of the defendant’s cars the person in charge of the work signaled the engineer to back the train, and thereupon the engineer did back it without giving any notice or warning that he intended so to do. The intestate was thrown from the car and killed. Upon the trial the plaintiff offered to prove that the defendant was guilty of negligence in not having adopted a proper system for warning its employees of an intended movement of the cars.

      Held, that the court erred in rejecting the evidence.
    Appeal from a judgment in favor of the defendant, entered upon an order dismissing J;he plaintiff’s complaint at the circuit.

      P. do D. Mitchell, for the appellant.

      Frcmle Loomis, for the respondent.
   Daniels, J.:

The intestate was upon one of the cars of a gravel train to assist in unloading gravel, when the accident happened by which he was thrown from the car and killed. The person who was in charge of the work signaled the'engineer to back the train, which he did without warning or notice that any change in its position was intended to be made. And the deceased having no intimation that any change in the location of the train was to be made, was not on his guard or prepared for such change. And to charge the defendant with liability for the death of the intestate the plaintiff offered “ to show that there was negligence here in not having a proper system of warning these men.” This was objected to on the part of the defendant, and the evidence offered was excluded, to which the counsel for the plaintiff excepted. The offer was to prove that the defendant had been negligent by failing to provide some rule or regulation which should be observed for the security and safety of the men employed before the train should be moved. And the court cannot say that the plaintiff would, have failed to make the proof if the evidence, in the power of the plaintiff to produce, had been received. The rule, on the contrary, is that it must be presumed that evidence offered and rejected would be given if the ruling had placed the party offering it at liberty to give it. And if it had been given, then negligence on the part of the defendant might have been shown, which probably caused the death of the intestate. By the offer the plaintiff undertook to make proof to this extent, which as there was no evidence on which the, court could hold the intestate to have been careless, would have justified the submission of the action to the jury. It was the duty of the defendant to guard the intestate against such perils as might have been avoided by the observance of ordinary diligence on its part, and not carelessly to omit to provide rules which faithfully carried out would insure safety. (Sheehan v. N. Y. Central and Hudson River R. R. Co., 91 N. Y., 332, 338, 339.) And it was the design of the evidence which was offered, to show that the defendant had failed to observe this duty. The judgment should be reversed and a new trial ordered, with costs to abide the event.

Brady, J., concurred.

Present — Brady, P. J., and Daniels, J.

Judgment reversed, new trial ordered, costs to abide event.


text:
    JAMES P. CONNER and Others, Executors, etc., Respondents, v. WILLIAM REEVES and Others, Appellants.

      Bond indemnifying a sheriff for making a levy — construction of its conditions — effect upon the sureties of a judgment recovered against the shmiff by his consent.

    This action was brought against the sureties upon an undertaking given, to indemnify the sheriff when making a levy under an execution upon property alleged to belong to the judgment debtor named therein. The undertaking was conditioned that if the obligors should well and truly save, keep and bear harmless and indemnify the said William O. Conner, and all persons aiding and assisting him in the premises from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments, etc., that should arise or be brought against him for or by reason of the levy, or of any sale made thereunder of any property which lie should judge belonged to the judgment debtor, then the obligation to be void, else to remain in full force and virtue. After the property had been seized a judgment for the value thereof was recovered by the true owner against the sheriff.

      5eld, that as the defendants had entered into an absolute agreement to protect the sheriff against any judgment that might be recovered, they were concluded by the judgment which had been recovered against him although they had no notice of the action.
    That it was not necessary for the sheriff to show that he had paid the judgment which had been so recovered.

      Johnson v. Gilbert (9 Hun, 469) followed; Thomas v. Hubbell (15 N. Y,, 405), distinguished.
    That in the absence of any charge of collusion or fraud, the effect of the judgment so recovered was not impaired by reason of the fact that it was entered by consent given in open court.
    Appeal by tlie 'defendants from a judgment recovered on the verdict of a jury and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      Edward I). McCarthy, for the appellants.

      Henry Thompson, for the respondents.
   Daniels, J.:

The verdict was recovered for the amount of a judgment in favor of Gustavus ICahrs against the plaintiffs’ testator, who was at that time sheriff of the city and county of New York. An execution had been issued to him in favor of Joseph Dubee against F. Fischer, upon a judgment which had been recovered for the sum of $149.66, by which the sheriff was directed to satisfy the judgment out of the goods and chattels and property of the defendant Fischer. And it seems to have been apprehended that the property designed to be levied upon might turn out to be owned by some other person thapi the defendant in the action, and to protect the sheriff against liability for levying upon and selling the property as that of the defendant in the execution, a bond was executed and delivered to the sheriff by the plaintiff in the execution and the two defendants who have now appealed from the judgment in this action. This bond was conditioned, that if the above bounden obligors shall well and truly save, keep and bear harmless and indemnify the said William C. Conner, and all and every person and persons aiding and assisting him in the premises, of and from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments, attachments, fines, special proceedings and executions that shall or may at any time arise, come, accrue or happen to be brought against him, them or any of them, for or by reason of the levying, attaching and making sale under or by virtue of such execution .of all or any personal property which he or they shall or may judge to belong to the said judgment debtor, or for or by reason of entering any shop, store, building or other premises, for the taking of any such personal property, or for or by reason of the defense of any action or proceeding which maybe so brought against him, them or any of them, then this obligation to be void, else to remain in full force and virtue. And after the sheriff had taken and disposed of the property, an action was brought against him in the Court of Common Pleas by Kahrs, claiming to be its owner, for the recovery of its value, and in that action a judgment was^ recovered in his favor for the sum of $500, including the costs. The two defendants who appealed from the judgment had no notice of the suit brought by Kahrs against the sheriff, and knew nothing of the proceedings in it until after the judgment had been recovered, and for that reason it has been objected that they did not become liable under the condition ,of the bond to pay the sheriff the amount so recovered. Put the bond was conditioned to save, keep and bear harmless and indemnify the sheriff from all liability, costs, counsel fees, expenses, suits, actions and judgments against him, for or by reason of levying and making sale of the property under the execution, which he or any person aiding or assisting him, should judge to belong to the judgment debtor. To bind them to the observance of this condition, notice of the proceedings against the sheriff was not required, for they had entered into an absolute and unqualified obligation to protect the sheriff against liability and judgment, although they themselves should not be informed of the proceedings taken against him. They bound themselves absolutely to keep him harmless (from any judgment which might be recovered against him for the seizure and sale of the property under the execution. And having bound themselves in that manner, they were concluded by the regular recovery of a judgment against him, although they had no notice of the proceedings in the action, resulting in its recovery. (Bancroft v. Winspear, 44 Barb., 209; Gilbert v. Wiman, 1 Comst., 550, 554, 555; Bridgeport Ins. Co. v. Wilson, 34 N. Y., 275, 280, 281.)

. It did not appear as a matter of fact that the sheriff had paid the judgment which had been recovered against him for the seizure and sale of the property. But that under this obligation was not required to be shown. For the condition of the bond in no manner made the liability of the obligors dependent upon the fact of payment. They had assumed to protect the sheriff against liability and against judgment, without requiring that either the liability or the judgment should be discharged before he could proceed against them on the bond for his indemnity. This point was considered and so held in Johnson v. Gilbert (9 Nun, 469), and directly results from the obligation which the obligors entered into by their bond. In this as well as the other respect considered, the case differs essentially from that of Thomas v. Hubbell (15 N. Y., 405), and is controlled by a different principle as that has already been stated.

The judgment against the sheriff did not result from an actual trial of the action brought for the value of the property sold by him under the execution, but from the consent of the counsel for the plaintiff in that action, and of the sheriff, and of Dubee the plaintiff in the execution. By that consent it was agreed in open court that judgment should be taken in favor of the plaintiffs for $400 damages and $100 costs, and the objection has been urged to this judgment recovered in this manner, that it was not such a< judgment as was intended by the condition contained in the bond. But it was not alleged on the part of the defendants now appealing that this judgment had been fraudulently or conclusively allowed to be entered against the sheriff. Neither does the evidence of what took place justify the conclusion that it was of that character. For before the consent was secured for its recovery Mr. Greensward was consulted concerning the propriety of allowing the judgment to be taken, with the understanding that he represented the other obligors in the bond and was authorized to act for them in what took place resulting in the judgment, and he directed the counsel for the sheriff, as they were not able to obtain witnesses upon whose evidence the plaintiffs’ title to the property could be contested, to 6ee wbat settlement be conld make with him in the action. And pursuant to that direction the adjustment followed by the judgment was made as the best that could be done for the determination of the action against the sheriff. By the other evidence in the case the fact was proved that Greensward was not authorized to represent these two defendants in that manner, or to consent in their behalf to the recovery of the judgment. But while that is the effect of the proof, the fact that he was consulted upon the understanding that he was the counsel for these two defendants, and added his advice as to what he deemed proper should be done, is a circumstance indicating that the consent given for the recovery of the judgment was made in good faith believing that to be the best that could be done for all the parties concerned, as the case appeared to be presented by the facts which were at the time accessible to the parties and their counsel. And that together with the other evidence entirely repels the conclusion that this judgment was either fraudulently or collusively permitted to be entered against the sheriff. The evidence on the contrary fully warrants the inference that the judgment was allowed to be taken in good faith as the most advantageous disposition which could be made of the pending action against the sheriff. And as that was the fact the defendants by the condition of their bond became liable to indemnify and save the sheriff harmless from this judgment. For, as a general legal proposition, the rule has been settled where the effect of the bond is that the sureties shall be bound by the result of an action brought against the sheriff, that they will be bound when the judgment has been recovered in good faith and without collusion or fraud. (Riddle v. Baker, 13 Cal., 295, 306; Binsse v. Wood, 37 N. Y., 526, 531; Cutter v. Evans, 115 Mass., 27.) Consent alone to the recovery of the judgment when it may be given in good faith, and as the best alternative which can be adopted will not render a judgment collusive. For that purpose the consent must appear to have been induced by the intention to concede away what the parties giving it understand, or have reason to believe to be the just or legal rights of others, or they must be actuated by bad faith at least intending to concede what the facts render it their legal duty to prevent. The proof produced upon the trial of this action wholly fails to sustain the' fact that the parties or their counsel were induced to consent to the recovery of this judgment in this manner. It sustained the fact on the other hand that what they did they not only considered, but had good reason to believe was for the best interests of all the parties, either directly or indirectly concerned in the proceedings, and in this view notice in writing of what had transpired and of Dubee’s hopes to pay the judgment itself was at once given to one of these two sureties in the bond, and that is an additional circumstance tending to remove any possible suspicion that bad faith entered in the least degree into the recovery of this judgment. The judge presiding at the trial was justified in directing a verdict as he did for the plaintiffs, and the judgment and order denying the motion for a new trial should be affirmed.

Davis, P. J., concurred.

Present — Davis, P. J., and Daniels, J.

Judgment and order affirmed.