author: Van Brunt, P. J.: Brady, J.: Daniels, J.

text:
    THE EMPIRE STATE TYPE FOUNDING COMPANY, Appellant, v. HUGH J. GRANT, Sheriff, etc., Respondent.

      Attachment — the interest of an equitable mortgagor cannot be enforced by replevin against the sheriff— the ml/ue of the chattel, at the time of the trial, without reference to the equitable mortgage, must be fixed by the report or decision — Code of Oivil Procedure, sec. 1726.
    In March, 1886, the plaintiff agreed to sell to one Tremelling two printing presses and a quantity of printers’ supplies for the price of $1,100, $500 to be paid in cash upon the completion of the delivery and the balance by giving a chattel mortgage on the property. While the plaintiff was making the delivery, which was not completed for some fifteen or sixteen days, Tremelling paid $250 on account of the $500 cash. After the delivery had been completed the plaintiff endeavored, bat without success, to find Tremelling, and on the following day learned that he had absconded, and that the defendant, the sheriff, had taken possession of the goods by virtue of an attachment issued against him.
    Upon the trial of this action, brought by the plaintiff to replevy the goods, the court directed a verdict in favor of the defendant.

      Held, that it did not err in so doing as the goods were sold on credit to the extent of the $500, which was not to be paid until the delivery was completed.
    That, although the vendor might have an equitable lien to the extent of the mortgage which was to have been given, yet the mortgagor was the owner and had an interest in the property upon which the sheriff could levy, and which justified him in taking possession of the property.
    Upon the trial the only evidence given as to the value of the property was the affidavit of the plaintiff, as to its value, made in the proceedings in which the property was replevied.

      Held, that the court did not err in directing the jury to assess the value of the property at the value stated in the affidavit. (Daniels, J., dissenting.)
    That its right so to do was not affected by the fact that the plaintiff had an equitable mortgage on the property, and that the sheriff could only sell the equity in the property owned by Tremelling. (Daniels, J,, dissenting.)
    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury rendered under direction of the court.

      George W. Stephens, for the appellant.

      W. Bourke Qockrcm, for the respondent.
   Van Brunt, P. J.:

íhis action was brought to recover the possession of a quantity of personal property which the defendant as sheriff claimed to hold under an attachment issued against the property of one Tremelling and which the plaintiff claimed was its property. It appears that in March, 1886, the plaintiff agreed to sell, to Tremelling, two printing presses and a quantity of printers’ supplies, for the price of $1,100 to be'paid for, $500 in cash upon the completion of the delivery and the balance by giving a chattel mortgage on the property. The plaintiff then commenced to make the delivery, and fifteen or sixteen days elapsed before the delivery was complete, it being necessary to set up the presses and shafting. When the delivery was about half completed Tremelling paid $250 on account of the $500 cash. After the delivery had been completed the plaintiff endeavored to find Tremelling, but without success, and on the following day learned that he had absconded and that the sheriff had taken possession of the goods by virtue of an attachment issued against Tremelling. Demand was then made upon the sheriff to surrender possession, and thereupon this action was commenced and the goods replevied by the coroner. Upon the trial of the case the court directed a verdict in favor of the defendant, and upon like direction the jury assessed the value of the property as of the amount stated in the affidavit upon replevin.

The question presented in this case is as to whether the title to the property passed to the vendee upon delivery, or whether there was an implication contained in the agreement testified to, that the title was not to pass until payment was made in the manner agreed upon. It is conceded that in the contract made there was no agreement but that the title should pass upon delivery and the rule applicable to cases of this description is, that the vendor by parting with the possession of his property loses all claim to a vendor’s lien unless there is an agreement between the parties preventing the passing of the title until the purchase-price has been paid.

It is urged upon the part of the plaintiff? that the jury had a right to infer that there was such an agreement from the nature of the contract of sale. This would be undoubtedly true were it not for the testimony of the witness who made the bargain and the only witness produced by the plaintiff. Upon being examined in regard to the terms of the contract, he was questioned as to what the general rule was upon the sale of goods of this description where the purchase-price was only paid in part, and his testimony was that the rule was to take a chattel mortgage upon the property to secure the payment of the balance. He was asked whether these goods were sold according to the general rule, and his reply was that they were. He was then asked“ Q, You didn’t make an exception in this case from any. other goods you sold on credit? A. No sir. Q. You sold your goods to him on credit the same as to anybody else ? A. Naturally. Q. Did you make any inquiries as to whether this gentleman was solvent ? A. I did.”

And he further testified that the inquiries which he made were satisfactory to his judgment. This evidence clearly shows that there was no intention upon the part of the vendor to retain tbe title of the goods until the purchase-price had been paid. They were sold on credit. It is true that the vendor intended that the credit should be a short one, but nevertheless there was no understanding between the parties or which could be predicated upon the agreement as testified to by this witness, that the title should not pass until the purchase-price had been paid. It may be all very true that the vendor had an equitable lien to the extent of the mortgage, and that the credit was not given to that extent, but above the mortgage Tremelling was the owner and had an interest in the goods upon which the sheriff could levy, and justified his taking possession of the property. Under these circumstances replevin would not lie, because the sheriff had the right to the possession of the goods in order to sell Tremelling’s interest therein subject to the lien of the equitable mortgage.

The objection that it was error on the part of the court to direct the jury to assess the value of the property at the price agreed to be paid therefor because no evidence of value had been given is not well taken. The affidavit upon the replevin was before the court, and was proved and sworn to by the plaintiff as to the value of the property, and this proof uncontradicted was sufficient to justify the direction of the court, it being an admission of the highest character. Nor was it error to assess the full value of the property because the plaintiff had an equitable mortgage thereon and all that the sheriff could sell was the equity in the property owned by Tremelling. Section 1726 of the Code provides that a verdict report or decision in an action for a chattel, where it awards to the prevailing party a chattel which has been replevied, must fix tbe value of the chattel at the time of the trial, except in the cases mentioned in section 1727, both of the subdivisions of which section are predicated upon the fact that the plaintiff is the general owner of the chattel, which was not the fact in the case at bar.

There seems to have been no error committe and the judgment appealed from should be affirmed, with costs.

Brady, J.:

The sheriff could lawfully levy upon the property in dispute and sell the interest of the debtor in it, subject to the plaintiff’s lien. I concur in this view, and that the judgment should be sustained to that end.

Daniels, J.

(dissenting):

The action was replevin to recover the possession of two printing presses, a quantity of type and other printers’ supplies, machinery and fixtures, sold and delivered by the plaintiff to Guy Tremelling in the early part of March, 1886. The sale was made pursuant to an agreement that $500 should be paid upon the purchase, in cash, and the residue, amounting to a still larger sum, should be secured by a chattel mortgage upon the property, and payable twenty-five dollars, or more, every month. The property was in part delivered, when the purchaser paid the sum of. $250 in cash upon it, and promised to pay a like sum shortly afterwards. The residue of the property sold was delivered, and when it was all in, the plaintiff’s president went to the office of Mr. Tremelling for the residue of the cash and the mortgage. Tremelling was not there, but was found to have absconded, and on the next day it was stated that the property had been attached by the sheriff, under an attachment issued in favor of William Scott against Tremelling. Upon these facts appearing through the evidence, the court directed a verdict for the defendant, assessing the value of the property at $1,100.95, as that was stated in the complaint. This direction of a verdict in favor of the defendant was probably regular, for the reason that the attaching creditor had the right under his attachment to seize and appropriate the interest of Tremelling in the property. And he had acquired an interest to the extent of $250, the amount paid by him on the purchase-price, and the partial delivery of the property by the plaintiff to him; and if the property had been worth more than the purchase price, the excess in value would be likewise 'available in favor of the attaching creditor. But as by the terms of the sale $250 was still to be paid in cash upon the price, and a mortgage given to secure the residue, the plaintiff was entitled to a lien upon the property as a security for the performance of these stipulations. They were conditional in their nature, requiring their performance before the absolute and unqualified title to the property would vest in the purchaser. (1 Pars, on Con. [6th ed.] 537, 538; Husted v. Ingraham, 75 N. Y., 251, 257.) And this lien, as long as it was not waived, would exist not only against the purchaser himself, but also against other persons not bona fide purchasers from him for value. (Comer v. Cunningham, 77 N. Y., 391.)

There was no waiver of this lien by any delay or credit being given to the purchaser, for the vendee sought him at his office to obtain the fulfilment of the agreement as soon as the property had been all delivered. And it would therefore be an unwarrantable construction to be placed upon his acts, to presume that he intended to dispense with the immediate performance of any part of the agreement by the purchaser. This lien of the vendor was a special property in the goods and it was the duty of the court to sustain it in his favor, and the plaintiff could not be deprived of it by the seizure of the pi’operty under an attachment for a debt owing by the purchaser. For under such process the creditor can seize no more than the title and interest of his debtor in the goods. And when the plaintiff failed to maintain the action for the recovery of the possession of the property, their assessed value in favor of the defendant as the representative of the attaching creditor should, for that reason, not have exceeded the value of the interest of the purchaser in the goods.

The court seems to have taken a different view of the rights of. the parties under the language of section 1726 of the Code of Civil Procedure, which has directed, generally, where the verdict awards to the prevailing party the chattel which has been replevied and afterwards delivered by the sheriff to the unsuccessful party, or to a person not a party, it must also, except in a case specified in the Dext section, fix the value of the chattel at the time of the trial. Tbe next section so referred to does not expressly include tbis case, although in its second subdivision, it proceeds upon a principle which will entitle the successful party to no more than the value of his interest in the property, where the defeated party also has a special property in the articles. But while the first section which has been mentioned directs the verdict, report or decision, to fix the value of the chattel at the time of the trial, it could not have been designed that it should be literally construed, but must have been intended to be adapted to the peculiar features of the cases arising under it. and to have expressed in greater brevity than it should have done, what the value of the chattel was designed to be, which is mentioned in the section. It may very well be satisfied by requiring the verdict, report or decision, to fix no more than the value of the interest of the successful party in the chattel, whateyer they may prove to be. It is not unfrequent that statutes are enacted with these elliptical defects. And this omission should be supplied in this instance by construction. For it cannot be supposed that the Legislature designed by this section to oblige the unsuccessful party not only to respond for the interest of his adversary in the property, but pay over to him the value of his own interest also. That would be excessively unjust, and while it may be within the letter of the statute, it should not be presumed to be within its spirit which it is well established must control its direction. The Revised Statutes provided in general and more flexible language what should be done upon the recovery of a verdict in an action of replevin. Where the plaintiff succeeded, he was declared to be entitled to a judgment for damages and costs, as well as for the delivery of the property to him, where that had not previously been made, or in default thereof to recover from the defendant the value of such goods and chattels as the same shall have been assessed by the jury on the trial, or upon the writ of inquiry. When the defendant recovered in such action he was entitled to a return of the goods and chattels replevied, and also the damages sustained by him by reason of the detention of such goods and chattels. (3 R. S. [6th ed.], 836, §§ 13, 16.)

The Code of Procedure in its enactment by section 277, seems to have been designed to group together the substance of these sections of the Revised Statutes, which in a case where the defendant recovered, it was declared that the judgment should be for a return of the property, or the value thereof, in case a return could not be had, and damages for taking and withholding the same. This provision as to the value of the property was as mandatory as that which is now contained in the Code of Civil Procedure, and a like rule was applied to the case of a successful plaintiff. The assessment in each case beyond the damages for detention was directed to be for the value of the property. Yet it has been held by the courts by •way of construing these several statutory provisions, that when the plaintiff recovered on a special title or interest in the property replevied, against the general owner, that the value to be assessed should be restricted to the value of that special interest. (Fitzhugh v. Wiman, 5 Seld., 559; Townsend v. Bargy, 57 N. Y., 665; Allen v. Judson, 71 id., 77.) It is true that this principle was not applied in Buck v. Remsen (34 N. Y., 383), but the point of its application was only passingly mentioned in the decision, and it is accordingly entitled to no special weight against these other cases. This rule has been very generally applied in controversies over the title to personal property, and actions for its conversion have, therefore, been considered to be within its control. (Parish v. Wheeler, 22 N. Y., 494, 511, 512.) It is not only just and equitable, but a different rule would be strikingly unjust, for it would have the effect of arbitrarily taking one person’s property,without any reason for it, and giving it to another. It is true that the cases which have been cited applied the rule only in favor of the plaintiff, but that does not deprive them of their effect as sustaining the application of an equally sound rule of law to the action when it may be determined in favor of the defendant, for the lights of the defendant, under the Revised Statutes and under the Code of Civil Procedure, were cared for and provided for by language similar in its effect. If the plaintiff recover the value to be assessed is, by the Code of Procedure, directed to be the value of the property, and if the defendant recovers it is still the same direction to assess the value of the property. And as the courts have heretofore applied this principle of construction to the cases of successful plaintiffs there is precisely the same reason for applying it to the case of a successful defendant, and the Code of Civil Procedure, using nearly the same language, should be construed in the same way. That will secure no other than a just result, which must have been within the intention of the legislature.

The plaintiff can derive no benefit from the omission in the proof that the notice mentioned in section 1725 of the Code of Civil Procedure was not proven to have been served by the defendant’s attorney, for no objection to its omission was tafeen during the trial, when proof of the fact might have been supplied if it had been important. The case was, on the contrary, tried upon the rights and interests of the respective parties in the property as they appeared and were supported by the evidence and the application of the law to such rights, and it is now too late to gain any advantage by the absence of proof of a compliance with this section. But as the assessment of- the value of the property was unwarranted by the proof beyond the interest or right which the sheriff had acquired in it under the attachment, which did not exceed the value of the interest of the purchaser, the judgment should be reversed and a new trial ordered, with costs to abide the event, unless within twenty days after notice of the decision the defendant stipulates to reduce that verdict to the sum of $250, with interest thereon from the commencement of the action and the additional allowance of costs should be reduced in a corresponding manner. If such stipulation shall be served, then the judgment as so reduced will be affirmed, without costs of the appeal to either party.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Van Brunt, P. J.: Daniels, J.:

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of the Executors of WILLIAM TILDEN, Deceased.

      Executors — construction of a clause in a u>ill providing for commissions differing from the legal ones — commissions on real estate pao'titioned — the settlement of an executor’s account is conclusive as against an application f os’ changes in the commi - sions allowed therein.
    A. testator authorized his executors to receive from his estate, in addition to their actual and necessary disbursements, and in lieu and exclusion of all other commissions and compensation, the following commissions, viz.: “ On • all sums to be received from said partners as my capital in said partnership, and on all interest and income on investments in the public debt of the United ' States or in county bonds, and on the proceeds of sale of real estate one ' per cent of the amount received, and on all sums received for personal property sold, or rents or the collection of debts owing to me, or for the income of other funds or investments, five per cent of the amount received.”

      Reid, that the executors were entitled to receive commissions at the rate of five per cent on moneys received by them from the United States, in payment of government bonds which were owned by the testator at the time of his death, as being a collection of a debt owing to him. (Daniels, J , dissenting.)
    That the executors were not entitled to any commissions upon the value of real estate which was partitioned among the four sons of the testator, by deeds in which the executors and widow joined as grantors with the sons; that such actual partition did not constitute a sale of the real estate.
    That the settlement of the accounts of executors being conclusive evidence against all the parties who were duly cited or appeared, it was not proper upon a second settlement in reference to further assets, which had come into their hands, to change the amount of commissions allowed on the first and prior settlement.
    Appeal from parts of a decree of tlie surrogate, entered upon the final accounting of tbe executors, refusing to allow commissions claimed by them.

      Joseph H. Qhoate, for the executors, appellants.

      W. tS. Mae Farlcme, for B. B. Tilden and E. P. Kennard, trustees, respondents.
   Van Brunt, P. J.:

It appears that since the death of the testator, in 1869, there have been six successive judicial settlements of the accounts of the executors covering the transactions during six successive periods. The decree on the fifth accounting was entered in June, 1885, and the decree on the sixth accounting was entered on the 6th of December, 1886, and from parts of the latter decree this appeal is taken. The executors received from the United States government during the period of the fifth accounting $65,000, in payment of government bonds which were owned by the testator at the time of his death, and were paid by the government during said period. Into the fifth accounting that item entered, and the executors charged and were allowed one per cent upon the amount so paid by the government. During the period of the sixth accounting the executors received from the United States government $25,000 under like circumstances, and the executors claimed five per cent as the commission on this $25,000 of United States bonds under the eighteenth clause of the will, which provides as follows: ■

“Eighteenth. In lieu and exclusion of all other commissions and compensation to my executors for performing their duties under this will, and in addition to their actual and necessary disbursements and expenses, I authorize them to receive from my estate the following commissions, namely: On all sums to be received from my said partners as my capital in said partnership, and on all interest and income on investments in the public debt of the United States, or in county bonds and on the proceeds of sales of real estate, one per cent of the amount received, and on all sums received for personal property sold, or rents or the collection of debts owing to me, or for the income of other funds or investments, five per cent of the amount received, and on all sums of money invested by them two per cent of the amount thereof, such commissions to be in full for such services, and the amount to he divided among my executors, from time to time, equitably, in proportion to their respective services.”

During the period covered by the fifth accounting, an agreement, was made between the four sons of the testator for a division among themselves, of certain real estate left by the testator, the youngest son having become of age. To carry out that agreement deeds of conveyance were made by the executors and Elmira S. Tilden, widow of the testator, three of the four heirs being grantors and the other heir being grantee, proper words being used to express the execution by the executors of the power of sale, the release by the widow of her dower and the partition between the said four heirs. The executors claimed commissions upon the valuation placed upon said real estate under the provisions of the said ■eighteenth clause of the will. The learned surrogate disallowed the commissions at the rate of five per cent upon the United States bonds, and also the claim for commissions upon the value of the real estate partitioned.

The provisions of the eighteenth clause of the will referred to . entitled the executors for the collection of debts owing to the testator to receive five per cent of the amount received as compensation. The United States bonds which were held by the testator at the time of his death were part and parcel of the interest bearing obligations of the United States, and formed part of the public debt. In the use of the word " debts ” by the testator in the clause referred to, no distinction is made in the character of the obligations or debts which might be owing to the testator. The language is that the executors are to be entitled to a commission of five per cent for the collection of debts owing to the testator. This language necessarily includes each and every obligation for the payment of money •which was held by the testator and which was subsequently collected by the executors. There is no meaning of the word t: debt ” which excludes the interest-bearing obligations of the United States or of the State. They were part and parcel of the public debt, and recognized as such by the statutes of the United States in reference thereto. The bonds of the United States were as much of a debt as the bonds of any corporation which issued its obligations for the payment of money, or as the obligations of any individual who issued his commercial paper payable at a future day. It would seem, therefore, that the money collected from the United States upon the payment of its obligations came within the provisions of the section referred to, and the executors were entitled to commissions thereon at the rate of five per cent.

It does not follow, however, that the executors can collect commissions at the rate of five per cent on the proceeds of the bonds included in the fifth accounting, in which they have charged and been allowed at the rate of one per cent for collection. The learned surrogate .has based his decision in reference to this matter upon the ground that this compensation provided for in the will in excess of that allowed by law, is looked upon as a legacy, and a legacy is not discharged until paid. But it does not seem to us that this is a correct view. The provisions in the will were intended to be as compensation for services rendered, to be in no respect a gift, but an authority to charge for their services a certain sum. It is sufficient to say that section 2742 of the Code of Civil Procedure provides that a settlement of the account of an executor is conclusive evidence against all the parties who were duly cited or appeared; that the items allowed to the accounting party for money paid to creditors, legatees and next of kin for necessary expenses and for services are correct. Therefore the decree entered upon the fifth accounting is conclusive evidence that the allowances therein made to the executors for their services were correct. As long as that decree stands, it is difficult to see upon what principle the executors can claim additional compensation for services rendered which are included in that accounting.

The next question relates to the exception taken to the action of the surrogate in refusing commissions upon the real estate partitioned. The sons of the testator were the owners of the fee of the real estate subject to certain powers given to the executors under the will. The executors had no power of division of the real estate. The sole power of division contained in the fourteenth clause related to the division of personal estate and the power of sale therein contained was to sell and convert into money or personal securities or in order to perform, fulfill and keep any contract, agreement or obligation that the testator might be under at the time of his decease. Therefore, as far as the real estate was concerned, the executors could only sell for the purpose of conversion into money or personal securities. This was not done. The real estate was not sold for the purpose of being converted into money or personal securities nor was it in fact sold at all. The owners of this real estate divided it amongst them selves under an agreement made between themselves, and in the carrying out of that agreement, the heirs executed the deed and the widow released her dower, the executors joining to convey any title they might have, which was none, and perhaps the only effect of their action being an estoppal upon any subsequent demand on their part to execute the power of sale contained in the will. The fact that for purposes of bookkeeping they entered the appraised prices of the real estate in their accounts does not . alter the legal aspects of the case. They did not sell for money; they received no money, and their conveyance added no weight to the partition which the owners of the fee made among themselves. This, therefore, being no execution of the power of sale Contained in the will, the executors are not entitled to commissions upon the appraised value of the real estate. The executors were, therefore, entitled to commissions at the rate of five per cent upon the $25,000 bonds were entitled to no additional commission upon the $65,000 embraced within the previous accounting, and were not entitled to commissions upon the real estate partitioned.

The order of the surrogate should be modified accordingly, and as modified affirmed, without costs of this appeal to either party.

Brady, J., concurred.

Daniels, J.:

I concur except as to the commissions on the United States bonds. They do not seem to be debts due or owing to the testator, in the sense in which he referred to debts owing to him in his will. That he did not understand these bonds to be debts owing to him, and therefore chargeable with commissions at the rate of five per cent, seems also to follow from the allowance of no more than a one per cent commission for collecting their coupons. The same' reason as would reduce the commission to one per cent on the coupons indicates the intention of the testator to have been that only a like commission should be reserved from the proceeds of the bonds. In all other respects I agree to the opinion of the presiding justice.

Order modified as directed in opinion, and affirmed as modified, without costs of appeal to either party.


author: Brady, J.:

text:
    NEWCOMB C. BARNEY and CARRINGTON H. RAYMOND, Respondents, v JOHN M. FORBES, Jr., Appellant.

      Statute of frmds — surrender of stolen bonds — sufficiency of, as the consideration for an agreement to pay the debt of another — original contract between newly contracting parties.

    One Mur, having pledged certain bonds with, the plaintiffs to secure his indebtedness to them, afterwards entered into the employment of the defendant’s firm and induced the defendant to write the following letter to the plaintiffs:
    “Messrs. Barney, Raymond & Co., 84 Broadway:

      “ Dear Sirs. — Mr. J. M Mur, being under engagement to Messrs. Russell & Co, as their head bookkeeper, will have $4,000 (Mexican) per annum as salary, and I will undertake that the agreement made by him to pay a certain amount to you each year shall be carried out until the indebtedness to your firm ¡s liquidated.
    “Yours, truly,
    “JOHN M. FORBES, Jr.”

      This letter, with one signed by Mur, stating that he had accepted a position in China in the house oí Messrs. Bussell & Co., that he would pay $8,000 a year upon his indebtedness, and asking that his bonds be released, was sent to the plaintiffs, who thereupon surrendered the bonds. Mur had declined to go to China until he could get these bonds, which in fact did not belong to him but had been improperly obtained possession of by him.
    Held, that the agreement of the defendant was not void within the statute of frauds, as the consideration therefor, the surrender of the bonds, clearly and distinctly appeared.
    That the promise was an original one arising out of a new and original consideration running between the newly contracting parties —the securing, in this case, of the services of Mur for the China house of which the defendant was a member.
    That the fact that the bonds were not owned by Mur did not show a failure of consideration, as the possession of the bonds gave the plaintiffs a quasi title to them and left the question of their right to retain them one which might be contested with possible success.
    Appeal from a judgment in favor of the plaintiffs entered on tbe verdict of a jury directed by the court.
    ,/. E. Ward, for the appellant.

      Henry 8. Bennett, for the respondents.
   Brady, J.:

On the 31st of August, 1882, one John H. Mur was indebted to the plaintiffs in the sum of $9,941.88 for advances made in the purchase of stocks, as security for which he deposited with them eight $1,000 first mortgage bonds of the Buffalo and Erie Railroad Company, which at the time mentioned were in their possession. The defendant was a member of Russell & Co., of Shanghai, China, and employed Mur to proceed to China and act as their bookkeeper. Mur said that he could not go until he obtained possession of the bonds which the plaintiffs held and which they refused to surrender unless the debt was paid. The result of that was an interview with Mr. Eorbes, who sent for Mr. Raymond, one of the plaintiffs, on the 29th of August, 1887. Mr. Raymond subsequently received a communication from Mr. Mur, dated August 31, 1882, and one from Mr. Eorbes, both of which he stated were sent to him by Mr. Eorbes. He was acquainted with the handwriting of Mr. Forbes, and the communication signed by him he said was in his handwriting. The communications thus received from the defendant and Mr. Mur are as follows:

“New Yobe, August 31, 1882.
“ Messrs. Baeuey, Raymond & Co., 84 Broadway.
“ Deae Síes.— Mr. J. M. Mur being under engagement to Messrs. Russell & Co., as their head bookkeeper, will have $4,000 (Mexican) per annum as salary, and I will undertake that the agreement made by him to pay a certain amount to you each year shall be carried out until the indebtedness to your firm is liquidated.
“Yours truly,
“JOHN M. FORBES, Jb.”
“ New Yoeic, August 31, 1882.
“ Messrs. Babney, Raymond & Co., JVew Yorlc:
“Deae Síes. —As you are aware I have accepted a position in China, in the house of Messrs. Russell & Co., at a salary of $4,000 per annum, and in order to liquidate my indebtedness to you of $9,941.88, as per account rendered yesterday, I now pledge to you to remit you from China the sum of $3,000 (three thousand dollars) per annum, in quarterly payments, until the said account is closed. There shall be no failure on my part, and I trust with this assurance and the letter inclosed that this arrangement will be satisfactory, and that you will release the bonds in question.
I am, dear sirs, very respectfully yours,
“J. M. MUR.”

On the receipt of these letters, the bonds wei’e surrendered by the plaintiffs. Mr. Raymond also testified that he had an interview with the defendant in August, 1885, at which time the defendant called upon him at his office in answer to several letters that he had written to him in regard to the claim against him, on which occasion he said that Mur had left their employment, and that although it was hard on him, he proposed to stand up to his guaranty. The bonds, it appeared, belonged to Oliphant & Co., and Mur never had any title to them. Indeed it may be inferred .that he had improperly obtained possession of them, which was doubtless the reason why he could not leave until they were surrendered. The defendant stated on his examination that he had no knowledge that thei-e were any bonds in the possession of the plaintiffs as bonds; but he did know that it was necessary for Mur to get possession of some securities in the hands of the plaintiffs before he could keep the engagement he had made with the firm of Russell & Co., in Shanghai, and although the defendant at first stated he would have nothing whatever to do with it, finally determined that he would and did by the letters which were written. The testimony of Mr. Forbes undoubtedly justified the conclusion that he knew there were securities in the hands of the plaintiffs which Mr. Mur desired to be surrendered, and that for the purpose of obtaining such surrender he wrote. the letter mentioned. Indeed, he said the reason given by Mr. Mur why he wanted those securties was (he said that he could not go away) that he owed this debt to Barney, Raymond & Co. with these securities in their hands. The understanding was that these securities had a certain value and they were unwilling to relinquish the securities unless they had some arrangement made with me that a part of his salary would be remitted. It was with that understanding that I wrote that letter.”

It is insisted that the engagement of the defendants is void within the statute of frauds, inasmuch as no consideration is stated in the contract. It is not necessary to consider this proposition, as the consideration clearly and distinctly appears, which was the surrender of the securities. The letter of the defendant refers to the indebtedness of Mr. Mur, and the accompanying letter of Mur refers to the bonds, and expresses the hope that the agreement of the defendant, which was sent at the same time with his own letter, will be satisfactory, and that the bonds will be released. The statement of the defendant that his letter was written with reference to the bonds which were by him designated as securities was received and given without objection.

The consideration sufficiently appears by those two papers thus considered. Aside from that, however, the promise is an original one, and comes within the third class of cases enumerated in Leonard v. Vredenburgh (8 Johns., 29), viz.: where the promise to pay the debt of another arises out of some new and original consideration of benefit or harm running between the newly contracting parties. In this class of cases the subsisting liability of the original debtor is no objection to a recovery. And when the purpose of' the promise is to secure a benefit to the promissor by relieving his property from a lien, or securing or confirming his possession, the promise is original and not collateral, although a third person may be personally liable for the debt, and the promise may be in form a promise to pay such a debt and although the performance of the promise may result in discharging the debt. (See, also, Prime v. Koehler, 77 N. Y., 91, and cases cited; Ackley v. Parmenter, 98 id., 425.)

The facts as they have been detailed show that the services of Mur as bookkeeper had been secured for the China house of which the defendant was a member, and that having stated his inability to proceed thither on account of his indebtedness to the plaintiff, the written engagement was entered into for the purpose of enabling him to keep his contract with the defendant’s firm, and thus the promise was made for the benefit of the defendant. It must also be said that the contract resulted in harm to the plaintiffs, who gave up in consequence of the engagement the bonds which they held as security for Mur’s debt.

It is suggested that the bonds not having been owned by Mur, and the plaintiffs having no title to them, the surrender did not amount to any consideration whatever. But this is an erroneous proposition. The possession of the bonds gave the plaintiffs a quasi title to them, and left the question of their right to retain them one which might be contested, and successfully. Whatever interest they had in the bonds, whether legal or equitable, they abandoned by the surrender, and that was sufficient beyond doubt to create a circumstance to their prejudice. The exception to the exclusion of evidence showing the period during which Mur was in the employ of the defendant was not argued on the brief, and it is supposed was abandoned. It is sufficient to say, however, that from the character of the engagement made, the testimony was properly excluded as irrelevant.

For these reasons we think the judgment was right, and it should be affirmed, with costs.

Daniels, J., concurred.

Judgment affirmed, with costs.


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    HULDAH CLAPP, Plaintiff, v. ROBERT C. CLAPP, Individually and as Executor, etc., of HAWLEY D. CLAPP, Deceased, and Others, Defendants. (Claim of LEO C. DESSAR.)

      When compensation for services, rendered by dweation of an executor, can be collected out of the assets of the estate.

    Where the owner of a hotel, managing the business thereof during his lifetime, leaves a will directing that after his death it is to be carried on by his son and executor for the benefit of the estate of the deceased, and such business is so carried on after his decease, and services necessary to enable the son and exector to carry out the intention of the testator and beneficial to the estate are rendered by an attorney under a special agreement that the same are to be paid for out of the estate, and the son and executor is insolvent, an action will lie to enforce the payment for such services out of the assets of the estate.
    Appeal from an order confirming the report of a referee as to a claim of Leo C. Dessar against the above named defendant.

      Charles P. Crosby and Thomas B. Band, for Thomas B. Rand, receiver, appellant.

      S. C. Adams, for Leo C. Dessar, claimant, respondent.
   Brady, J.:

Mr. Dessar claiming a lien upon the lease of the Rossmore Hotel, an order of reference was made for the purpose of ascertaining the value of the services rendered by him upon which the claim rested. The services, it ivas asserted, were rendered for the estate of Hawley D. Clapp, deceased, who was the acting principal in the business which was conducted at the Rossmore Hotel in this city, which he carried on with his son Robert, the defendant, under the name of Hawley D. Clapp and son. By his last will and testament he declared that the business mentioned was his chief property, the success of which he was very desirous of securing; entertaining the conviction he said that if the business were conducted with system, carefulness and prudence, and with strict and faithful attention it might and would become a source of large future profit; and reposing great confidence in his son Robert, who was then his co-partner and whose knowledge and experience in hotel business he thought best qualified him among all his children for the trust, it was his wish that the Rossmore Hotel, upon his decease, should be conducted by him under the name of Hawley D. Clapp & Son for the benefit of all the family, and that he should have the sole management thereof, without the control of the other members of the family and without interference on their part other than such friendly advice and counsel as they might from time to time give, which he charged his son Robert to receive with kindness and respect. He suggested that if any difference of View should unfortunately arise between his son Robert and the other members of his family, his son Mortimer should be regarded as an umpire to adjust and settle such differences and that his decision and judgment in the matter should be concurred in and adopted by all the parties. He also states that while he gave the sole management of the hotel to his son Robert for the purpose of securing its better success by having one head until his brothers should be qualified to share it with him, he did not mean that his brothers might not resort to the courts for better protection to their interest, if, unfortunately, Robert should prove unfaithful to the trust and confidence thus reposed in him.

A reference to these provisions of the will is deemed necessary in order to sustain the claim made by Mr. Dessar, for the reason that he was employed after the death of the decedent, and his services, unless brought within the exception, would be subject to the rule, in the attempt to recover for them, to wit: That contracts of executors, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration as for services rendered moving between the promisee and the executors as promissors, are the personal contracts of the executors and do not bind the estate, notwithstanding the sendees rendered are such that the executors should properly have paid for the same from the estate and be allowed for the expenditure in the settlement of their accounts, the principle being that the executor may disburse and use the funds of the estate for purposes authorized by law, but may not bind the estate by an executory contract and thus incur a liability not founded upon the obligation of the testator. (Ferrin v. Myrick, 41 N. Y., 315; Austin v. Munro, 47 id., 360; New v. Nicoll, 73 id, 131; Application of Knapp, 85 id., 284.) The exception to the rule is stated in the case of New v. Nicoll (supra). It is that when the trustee is authorized to make expenditures and he has no trust funds, and the expenditure is necessary for the protection, reparation or safety of the trust estate, and he is not willing to make himself personally liable, he may by express agreement make the expenditure a charge upon the trust estate. And a further exception seems to be recognized in the text-books, that in case of the insolvency of the executor an equitable cause of action would probably be created 'against the estate where the services are rendered for its benefit. (Redf. on Sur. [2d ed.], 496.) It will have been observed that the design of the testator was the continuance of the business under the management of his son Robert; and it clearly appears from the testimony in the case, no evidence having been given on the part of the defense, that the services of Mr. Dessar were rendered to the estate, his employment having commenced soon after the testator’s death, and in reference to matters which, if not properly cared for by some professional person, would have involved the estate in great loss, if not in destruction. It is said for example on that subject, by Mr. Dessar, that in the suits which were brought against the estate, he must have saved it while acting as attorney at least $50,000, having given two years of almost uninterrupted devotion to it. It appears also that Robert C. Clapp is insolvent, and that when Mr. Dessar entered upon the discharge of his duties as the attorney for the estate, Robert C. Clapp explained to him that his affairs were complicated and that he could not be personally liable for the counsel fees in the matter, and that he would have to look entirely to the estate for payment, although he would, from time to time, make such payments as he could.

The record, therefore, presents these features: First. The continuance of the business by Robert C. Clapp, with all the incidents which were connected with that circumstance, involving, of course, the right to make such expenditures as were necessary to carry out the object of the testator. Second. The special agreement that the services should be paid for out of the estate. Third. The benefit to the estate resulting from the services rendered, and Fourth. The insolvency of the executor, Robert C. Clapp.

These elements would seem to be all that are requisite to bring the ease within the exception stated in New v. Nicoll, and also within the principle laid down in Redfield on Surrogates. It may be added that the referee found that Robert had no trust funds in his hands for the purpose of paying Mr. Dessar’s claim; but that the services rendered were necessary for the preservation of the trust estate, and that the contract made with him was acquiesced in and ratified by the other parties interested in the estate. It is true that as to the acquiescence of the other parties interested in the estate there is some contention. But there seems to be sufficient, perhaps, to justify that finding. At all events, there can be no doubt on the evidence that the estate was benefited by the professional exertions of Mr. Dessar, and that he should be remunerated by compensation, if it can be -secured to him by the application of any legal principle. It is said, however, that Mr. Dessar having commenced another action in the Superior Court, could not proceed with this; but the evidence shows that the action in the Superior Court was substantially abandoned. Mr. Dessar testified that all the arrangements were made for a discontinuance of that action, although no order to that effect had been entered, and this statement substantially disposed of the action in the Superior Court, without any formal order. It was virtually a discontinuance.

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

Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    CHARLES E. LYDECKER, as Receiver of the Property of EMMA BIRNEY, Appellant, v. ELIZA SMITH and Others, Respondents.

      Creditors’ suit — an order dweating a purchaser at a judicial sale to pay the damage resulting from Ms failu/re to complete the same, is a sufficient basis therefor.

    An order directing the purchaser at a judicial sale to pay an amount duly ascertained and determined by the court to be the damage resulting from the refusal of such purchaser to complete his purchase, is to be regarded as a judgment of the court for all the purposes of supplementary proceedings and a creditor’s action brought to set aside conveyances made by such purchaser in fraud of the rights of his creditors.
    Appeal from a judgment of the special term dismissing the complaint.

      A. A. Redfield, for the appellant.

      Abner G. Thomas and E. Terry, for the respondents.
   Brady, J.:

The plaintiff was appointed the receiver of the property of Emma Birney, an alleged judgment debtor, and this action was brought by him to set aside a conveyance which it was alleged was fraudulently made by her.

The proceedings supplementary against her were founded upon an order directing her to pay the expenses and deficiency occasioned by her omission to complete her purchase at a sale in a foreclosure suit, and which might be shown by a resale of the mortgaged premises. The direction to resell was duly máde, although the order confirming the referee’s report of the second sale appears to have been made ex parte, in that it was directed that execution might issue for the collection of the sum pronounced to be payable by Mrs. Birney on account of her failure to complete her purchase. The record does not show that any appeal was taken by Mrs. Birney from the order appointing the receiver or that any objection was urged against proceedings supplementary, founded upon the absence of any judgment warranting them. The objection urged successfully upon the trial herein was that there was no judgment existing against Mrs. Birney, inasmuch as she was not a party to the foreclosure-action, and the order made requiring her to pay the deficiency mentioned was a mandate only, to be enforced as such and not a judgment eo nomine. It was not, it was said, rendered in an action against her commenced by summons and was not based upon pleadings. It was a continuation of the foreclosure suit only, and as to her as a purchaser, although by becoming such she submitted herself to the jurisdiction of the court. (Requa v. Rea, 2 Paige, 339; Miller v. Collyer, 36 Barb., 250.) The power of the court to order a resale and to direct the payment of any deficiency is conceded. It is not questioned either that an execution may issue to enforce the payment commanded, but there, if the theory of the defendant’s counselbe accepted, the remedy ceases. Where an execution may issue no attachment to punish for contempt in not paying-money can be used. (Code Civ. Pro., § 14; Myers v. Becker, 95 N.Y., 493.) And it must follow that if, in contemplation of the execution, a conveyance be made with a fraudulent intent, no action can be maintained to invalidate it, inasmuch as there is no judgment existing based upon pleadings and the usual ceremonials to that end. This is supposed to be an erroneous view of the subject. The order of the court made in the foreclosure case arose out of a transaction with the court, and not with the plaintiff therein (Miller v. Collyer, supra), and the only issue that could arise would be as to the difference in amount between what was to be paid on the first and what was to be paid on the second sale, with the additional expenses. This was a matter of figures easily ascertained on the coming in of the referee’s report, and was herein determined without objection, and, indeed, so far as the record is concerned, without dispute. There was no necessity for pleadings in form or for a summons, because Mrs. Birney was already under the jurisdiction of the court in the action, and substantially consented to the order of resale by making no opposition. The plaintiff herein is still the quasi officer of the court in that case, having been appointed to collect its judgment, which could not be enforced by execution alone, and invested with all the power possessed by receivers kindred to himself, at least as long as the order appointing him remains undisturbed. The order directing Mrs. Birney to pay the sum named should be regarded for the purposes of its collection as a judgment in all respects. It lacks nothing of the essential requisites of such formula. She subjected herself to the jurisdiction of the court, purchased under its decree, violated her contract thereby made, was cited to answer, submitted to the citation, and was duly ordered to pay a sum in order to keep her faith with the court or its decree.

Bor these reasons there should be a new trial. It is not deemed necessary to consider in detail the objections to forms and not substance urged on the appeal, inasmuch as they were of no controlling-influence in the court below, in any respect the conclusion arrived at being predicate of the finding that no judgment had been entered, and inasmuch, also, as independently of that, they are of no sufficient value, considered either singly or grouped together, to interfere with the views herein expressed, or to sustain the judgment.

Daniels, J., concurred.

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


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    In the Matter of the Estate of FREEMAN J. FITHIAN, Deceased.

      Accounting by an executor of an executor — power of the surrogate to compel it.

    A surrogate has power under section 2606 of the Code of Civil Procedure, as amended by chapter 399 of 1884, to compel an executor of another executor to account for property received by the latter.
    The purpose of the amendment is to develope all that the executor of the executor knows or can learn about the trust estate and in reference to it.
    Its design is also to vest the power in the surrogate to enforce the delivery of the trust estate remaining.
    Appeal from an order of the surrogate directing that an amended account be filed.

      G. W. Ootterill, for Mary J. Clark, executrix, appellant.

      Horace Secor, Jr., for Harriet A. Eithian, petitioner, respondent.
   Brady, J.:

The question presented by this appeal is whether the surrogate has the power, under section 2606 of the Code, to compel an executor of another executor to account for property received by the latter. The learned surrogate has declared in the affirmative of this inquiry, and his conclusions are based upon the amendment of the section by chapter 399 of the Laws of 1884. He had prior to that change in a series of decisions held the negative, save to the extent that the representative of the deceased executor had come into possession of assets belonging to the trust estate. (See opinion herein and cases cited.)

The section, prior to the amendment, was as follows:

“Section 2606. Accounting by executor, etc., of deceased executor.
“ Where an executor, administrator, guardian or testamentary trustee dies, the Surrogate’s Court has the same jurisdiction upon the petition of his successor, or of a surviving executor, administrator or guardian, or of a creditor or person interested in the estate, or of a guardian’s ward, to compel the executor or administrator of the decedent to account for and deliver over any of the trust property which has come to his possession or is under his control which it would have as against the decedent if his letters had been revoked.”

J3y the amendment the words “ for and deliver over any of the trust property which has come to his possession or is under his control ” were not omitted, but transposed, as we see. This removed the limit or restriction which existed, and provided for a general accounting, such as might, under sections 2603, 2605, be enforced against an executor whose letters had been revoked — a general accounting, and not confined to the trust property which had come to his possession or under his control. The amendment contained other provisions, as follows: “With respect to the liability of sureties, in and for the purpose of maintaining an action upon the decedent’s official bond, a decree against his executor or administrator, rendered upon such an accounting, has the same effect as if an execution issued upon a surrogate’s decree against the property of decedent had been returned unsatisfied during decedent’s lifetime. So far as concerns the executor or administrator of decedent, such a decree is not within the provisions of section 2552 of this act. The Surrogate’s Court has also jurisdiction to compel the executor or administrator at any time to deliver over any of the trust property which has come to his possession or is under his control, and if the same is delivered over after a decree the court must allow such credit upon the decree as justice requires.”

The learned counsel for the appellant contends that they do not show an intention to require the executor to account for any property other than that received by him, and that the intention of the legislature, to be deduced from this and other sections, is to compel the delivery of such property at any time, even after a decree, and that but one decree only was contemplated by the section, which was a decree to deliver. There are, it is true, some reasons to support the contention, but the transposition of the words, to which particular attention has been called, seems to warrant the thought that it was intended to develop all that the representative executrix knew or could learn about the trust estate, and in reference to it, if circumstances demanded the exercise of the power, to compel the delivery of any part of it which has reached the hands of the representative executor, or is under his control, although not developed by the accounting, or until after a decree based upon such accounting. The design to enlarge the sphere of the accounting seems to be apparent from the context by which it is declared that so far as concerns the representative executor, the decree rendered upon such an accounting with respect to the liabilities of the sureties is not within the provisions of section 2552 of the Code, that is to say, shall not be conclusive evidence that there are sufficient assets in his hands to satisfy the sum which the decree directs him to pay, or for which the order permits the execution to issue. The surrogate may, upon the accounting, determine what the representative executor owes to the trust, but the decree shall hot be evidence conclusive that the representative executor has the assets to pay. It is, therefore, a proceeding in the nature of an investigation, based upon the proposition that the representative executor having succceeded to the property and papers of the decedent, whom he represents, must be in a condition to furnish the best information in regard to the trust estate. It does not impose any liability upon him beyond the property he has of the trust estate, and should not in the nature of the relation he holds to the decedent. Its design is also to invest the power in the surrogate to enforce the delivery of the trust estate remaining. This is the effect of the transposition of the words particularly noted and is a gift of authority. It is suggested that the view expressed by the surrogate is in contravention of the Revised Statutes, which declare that an executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, effects or rights of the testator of the first executor, or to take any charge or control thereof as such executor.” (3 R. S. [7th ed.], 2395, § 11.)

But, with great respect, it is thought this does not afEect the question which relates to existing things; not what is to be gathered in or received, but what was found of the trust estate and possession taken either formally or informally, and what is the condition of the estate as far as it may be known and disclosed. The law does not seek to create impossibilities, and when an account is sought all that can be required is what is known, not what may be conjectured. The provisions of the Revised Statutes prohibiting the interference of an executor of an executor with the unadmistered estate of the first executor (2 R. S., 71, §§ 11, 17; 3 R. S. [7th ed.] 2395; Id., 2292, § 60) are not inconsistent or in conflict with the authority conferred upon the surrogate, which is given, as already said, to secure the exposition of the trust estate, so far as it may be, and its delivery to the proper persons. Statutes creating summary remedies unknown theretofore are often regarded by practitioners as questionable in policy and uncertain in their construction and application; but this is the epoch of innovation, and all seeming incongruities in our legal system are sought to be remedied by legislation, which, gently blending with prevailing laws, produces greater harmony and simplicity in the administration of justice. The object in view thus suggested is not always accomplished, for sometimes confusion worse confounded is the outcome. The section under consideration is not free from criticism, but it is thought it works out the problem for which it was amended, and that its interpretation by the surrogate was correct.

Ordered accordingly, but as the question is new only the disbursements of the appeal are allowed to the respondent.

Yan Brunt, P. J., and Daniels, J., concurred.

Order affirmed, with the disbursements to the respondent.

       Rollins, S.— The will of this decedent, who died on August 4,1884, named Lemuel B. Clark as its executor. Mr. Clark was granted letters testamentary on October 15,1884. He died on June 9, 1886, having rendered no account of his administration. He left a will of which his widow, Mary J. Clark, is executrix. She qualified as such on July 7, 1886. On the succeeding day a proceeding was instituted in this court by Mrs. Harriet J Fithian, widow of the testator and beneficiary under his will, for an order requiring Mrs. Clark, as executrix of her late husband’s estate, to render and settle his account as Mr. Fithian’s executor. On October 14, 1886, the respondent filed an account, the scope and character whereof are indicated by its opening sentence, which is as follows: “I, Mary J. Clark, executrix of Lemuel B. Clark, deceased, who was himself executor of Freeman J. Fithian, deceased, do hereby account for all money and other property received by me as sueh executrix belonging to the estate of the said Freeman J. Fithian, deceased.
      It is insisted on behalf of the petitioner that by virtue of section 2606 of the Code of Civil Procedure (and it is upon that section that the present proceeding is founded) she is entitled to an accounting from this respondent, not only as regards all money and property of the testator’s estate which have come to the respondent’s hands, but also as regards all such money and property as came at any time to the hands of the respondent’s late husband.
      I had occasion, in several reported cases which arose before the enactment of chapter 899 of the Laws of 1884, to consider the extent of the surrogate’s authority to require the executor or administrator of a decedent A, who had acted in his lifetime as the executor or administrator of a decedent B, to account for A’s dealings with B’s estate. (Le Count v. Le Count, 1 Dem., 29; Maze v. Brown, 2 id., 217; Murray v. Vanderpoel, Id., 311; Bunnell v. Ranney, Id., 327.)
      In the cases just cited it was held that such accounting could be insisted upon only to the extent that the representative of the deceased executor or administrator had come into possession of assets belonging to the estate of such deceased executor’s or administrator’s decedent. These limitations were removed by the act of 1884 above referred to, and section 2606 was so amended as to provide that “where an executor, administrator, guardian or testamentary trustee dies, the Surrogate’s Court has the same jurisdiction, upon the petition of his successor, * * * to compel the executor or administrator of the decedent (that is, of such deceased executor or administrator) to account which it would have against the decedent (such deceased executor or administrator meaning) if his letters have been revoked by a surrogate’s decree.”
      Now, in the present case, if this respondent’s testator were alive he could be required, even though his letters testamentary had been revoked, to account for his entire administration of this estate. And such an account is precisely what may be required of his executrix, i. e., an account of her husband’s administration from the day of his appointment until his death. The only important practical change effected by the act of 1884 is one that relates purely to methods of procedure. But for that act the course which any person interested as legatee in the estate of this decedent would be obliged to pursue, in bringing about an adjustment of the claims of such estate upon the estate of the testator’s deceased executor, Clark, would have been that which is pointed out in the cases above cited. The new statute has provided a shorter and simpler method of adjustment. I must, therefore, sustain the petitioner’s objection that the account of the respondent is, on its face, incomplete. It may he amended, and after amendment the petitioner will be allowed to file new objections..


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    THE WORTHINGTON BRICK COMPANY, Appellant, v. WILLIAM BULL and Others, Executors and Trustees Under Last Will and Testament of HENRY R. WORTHINGTON, Deceased, and Others, Respondents, and HENRY F. WORTHINGTON, Executor and Trustee, etc., and Individually, Appellant.

      What papers, facts and surrounding circumstances, arre not sufficient to establish the existence of a contract to convey land.

    A son, with pecuniary assistance from his father, was engaged in the brick business carried on upon land belonging to them both. The business proving' unremunerative a certificate of incorporation of the “Worthington Brick Company,” signed by the father and son and one Burt, was duly filed. The capital stock of the corporation was fixed at $50,000; its busines^was stated in the certificate to be carried on at the place where the business had been carried on by the son. The son and his wife conveyed their half of the land to the company, and this action was brought to compel a specific performance from the father’s executors of an alleged agreement by which the father and son were to convey to the company the aforesaid land in consideration of the $50,000 of stock to be divided between them.
    In support of this alleged agreement it was shown that a deed from the father and son and their wives to the plaintifE was prepared; was found after the father’s death among his papers in an envelope, indorsed in his handwriting, “ Worthington Brick Company,” upon which deed, in the father’s handwriting, opposite to the respective seals, appeared in pencil the initials of the names of the father and son, namely, “H. K. W.,”— “Mrs.,” — “H.
    F. W.,” — “Mrs.,” respectively; that the company was and had been in the actual possession of the land in question, carrying on its business thereon; that the whole capital stock, except one share, was issued to the father and son, and appeared to have little, if anything, to represent it other than the land and the implements used thereon.

      Held, that the court below properly dismissed the complaint upon the ground that the evidence, and the different facts and circumstances collectively considered, did not establish a contract either verbal or otherwise.
    That some instrument, subscribed by the testator agreeing to transfer his interest in the brick-yard to the plaintiff, notwithstanding his intention to convey did in reality exist, was essential to the completion of the contract.
    Appeal from a judgment entered at Special Term dismissing the complaint.

      Addison If. Bv/rt, for the plaintifE, appellant.

      John A. Bryam,, for the defendant, appellant.

      W. A. Jenner, for William L. Bull and others, respondents.
   Brady, J.:

This action was brought to compel the specific performance of an agreement between the testator, Henry R. Worthington, and his son, Henry, and the plaintiff’s corporation. The complaint alleged that the plaintiff was incorporated on the 1st of March, 1880, by the filing of a certificate signed by the Worthingtons just mentioned and Addison M. Burt, a lawyer; that the father and son were the owners as tenants in common of certain lands on which there was a brick-yard at South River, where for several years the son had carried on brick making and was the owner of certain personal property there located; that shortly before the formation of the company they determined that they would organize the same for the purpose of continuing the business, and that the real estate at South River should be conveyed to the corporation for the consideration of the entire amount of capital stock which was tobe equally divided between them; that, on the third of March of the same year, the plaintiff agreed to purchase from the Worthingtons, upon the terms mentioned, and that Mr. Burt was requested by the parties to prepare a deed by which the real and personal property should be transferred to the plaintiffs for the consideration already mentioned; thaf a deed was drawn, but through some inadvertence was not executed, although it was found after his death amongst the papers of the testator in an envelope which was addressed “Worthington Brick Company; ” that nothing was done by either the father or the son indicating a desire or purpose to rescind the agreement; that the father left a will which was duly admitted to probate, whereby the executors were given a power of sale; that, in pursuance of this agreement between the Worthingtons and plaintiff, the son and his wife conveyed their half of the brick property to the plaintiff, and that the latter, through' its proper officers, demanded from the executors a conveyance of the other half.

This statement sufficiently developes the character of the complaint and the allegations on which the claim is founded. The answer denied all these allegations excepting the ownership in common, and excepting, also, that Mr. Burt was the lawyer of the testator at the death of the deceased, and it contained also a denial of the will as set forth in the complaint, and as a separate defense averred that if there was any agreement as to a sale it was void under the statute of frauds; that if it ever existed it was rescinded, and further that there was an entire want of consideration. The evidence upon the trial established the facts that the son had conducted the business mentioned at South River, assisted pecuniarily by his father; that the business was not remunerative; that the company was organized as alleged in the complaint, the capital stock being stated at $50,000; that a deed was prepared, dated March 3, 1880, from Henry R. Worthington, deceased, and his wife, and H. W. Worthington, the son and his wife, to the plaintiff, of the property at South River, which had four seals, and in the ■ testator’s handwriting in lead pencil, opposite the first seal, was written “ H. R. W.; ” opposite the second seal, “ Mrs.; ” opposite the third, “IT. F. W.opposite the fourth, “Mrs.,” which deed was found in an envelope indorsed in the handwriting of the testator, “Worthington Brick Company.”

In the eleventh clause of the will of the testator it was recited that, whereas he owned one-half of the brick property at South River, New Jersey, then occupied by his son Harry, who was the owner of the other half, it was his will that he should be allowed to purchase the testator’s half, if he should so desire, at a fair and reasonable valuation and on easy terms of payment; and further that, whereas he had, from time to time, advanced to his son a large part of the money used in the purchase and improvement of his property at South River, and in the support and maintenance of his family, he directed that Harry should pay or secure to he paid to his executors, for the benefit of the estate, two-thirds of the value of his undivided share of the property at South River, said value to be ascertained by proper appraisement and valuation at the time of his death, or as speedily as possible thereafter, unless his son Harry should prefer to surrender and convey all the property free from incumbrances to his executors as part of his estate, in which case the son was to have and receive his equal share of the residuary estate, subject to the deduction only of the sum of $10,000, as thereinbefore provided. But in the event of his not accepting the proposition and declining to pay the two-thirds of the value of the testator’s undivided half of the property, and should refuse to convey the same to his executors as provided, then it was his will and desire and he directed that the sum of $25,000 should be deducted from the share of his estate to which his son would otherwise be entitled under the provisions of his will, in addition to the sum 'of $10,000 to be deducted from such share as therein provided, and his will also contained the following: “ And I further state that although a far larger amount of my money has been spent in the effort to develop a business at South River than I have directed to be charged against my son Harry, or to be deducted from his portion of my estate, such expenditure was made by me, voluntarily, with a view to establish him in a business which has not thus far been remunerative. While, therefore, I look to him to pay a reasonable sum for what is left there of tangible property, I do not expect him to pay the expenses of unprofitable experiments and wasted investments made with my approval and by express sanction.”

The certificate of incorporation declared that the objects for which the company was formed were the manufacture and dealing in common bricks, fire bricks, tiles, drain pipes, sewer pipes and other articles made of clay, and that the name of the town and county in which the operations of the company were to be carried on was the city and county of New York, where the principal offices of the company would be, but part of its business was to be carried on at South River in the State of New Jersey. And it was further declared that the number of the trustees of the company should be three and that the names of those who should manage its concerns for the first year were Henry R. Worthington, M. B. Worthington and Addison M. Burt. The capital stock, as already stated, being put at $50,000, divided into 2,000 shares at twenty-five dollars each.

It is not pretended that any contract for the sale of the testator’s interest in the brick yard was subscribed or signed or that the deed was delivered, but it is insisted, on behalf of the plaintiff, that upon the facts stated there is abundant evidence of an agreement on the part of the father and son to transfer the property mentioned, to the company, one-half of which had already been transferred by the son. The learned justice in the court below thought the evidence did not amount to a contract either verbal or otherwise, and that one could not be formed from the different facts and circumstances collectively considered, and therefore dismissed the complaint.

The discussion of the plaintiff’s right in the brief submitted on its behalf assumed a very wide range and embraces a great many doctrines and principles, some of which, may be justly invoked for the plaintiff’s benefit. It will not be questioned that a contract for the sale of land binding upon the party charged may be eliminated from papers other than one directly in itself stating the terms and conditions of the contract. It is said by Browne on the Statute of Frauds, section 346, as a deduction from the numerous authorities, that a writing relating to the transaction may be sufficient, however informal; a letter, a receipt of money, a bill of parcels, or a stated account in which the vendor charges himself with the price, or the return of the sheriff upon an execution or the vote of a corporation entered on their minutes, signed by their clerk, may be a sufficient memorandum and it is said in section 346, as a result of a history of the question, that it is often the case that the terms of the contract are not all contained in any one paper and the question then arises as stated by him under what circumstances two or more papers can be offered in evidence as constituting the memorandum, one only, or all being signed, as the case may be. It is sufficient, if when taken together, a contract is made out and there may be an identification of the documents where there is an offer and acceptance by parol evidence. (Raubitschek v. Blank, 80 N. Y., 482, and cases cited.)

In this case, as we have seen, the business was conducted by the son, the father advancing money and lending his aid to its successful establishment; that the business was not remunerative; that the organization of the plaintiff as a corporation was projected by the father and son in connection with Mr. Burt; that the capital stock was $50,000, represented by 2,000 shares at twenty-five dollars each; that the father and son and Mr. Burt were the trustees; that the business was conducted in part on the lands which it was alleged were, by aggreement, to be conveyed to the corporation; that there was comparatively little to represent the capital stock of $50,000 unless the land were embraced ; that a deed was prepared, found amongst the papers of the testator in an envelope marked “Worthington Brick Company,” the consideration of which was said to be $50,000, and that the testator had indicated by pencil marks the places at which he and his wife, and his son and his wife, were to sign the instrument. We have, therefore, two papers, one of them the certificate of incorporation and the other the unexecuted deed bearing upon the question of transfer, surrounded by facts and circumstances which lead to the conclusion that the conveyance of the land was contemplated and agreed upon, but not consumated during the life of the testator, for what reason does not appear. There is no pretense that the corporation did not continue in the possession of the property up to the time of the decease of the testator. There is, however, a link wanting in the chain of facts and circumstances which would seem to be essential to the completion of the contract, and that is some instrument subscribed by the testator agreeing to transfer his interest in the brick-yard to the plaintiff, notwithstanding that the intention to convey did in reality exist, if we regard the scheme of the plaintiffs’ incorporation,' from its commencement down to the moment when the deed went into the possession of the testator, who was one of the trustees of the company, and was by him so marked as to indicate an intention to execute it. This would seem to be particularly so for the reason that he and his son were made by the deed the recipients of the entire capital stock except, perhaps, one share to Mr. Burt, to enable him to act as trustee and also for thé reason that there would be very little else to represent the capital stock, and it being the evident intention to pay in the amount of the stock as required by law by the transfer of the land itself, which, with the implements used, and the other personal property on the land, went to make up the entire amount of the capital stock. The certificate of incorporation must be regarded as a part of the arrangement by which the contract was indicated, and in which it -is distinctly stated that a part of the business was to ■ be conducted at South River, the locus in quo contained in the deed itself found in the possession of the’trustee who was to sign it and in an envelope indorsed by him in the name of the company, thus expressing that it was a transaction of the company and undoubtedly for its benefit, and which, having been done by the testator himself, would doubtless be a sufficient signing within the adjudicated cases cited on the subject of signature, prior to the change in the statute of frauds, and which, it was very well established, might be in any part of the contract or instrument, in the body or at the foot, or elsewhere, so long as it appears to have been placed there by his sanction. (Merritt v. Clason, 12 Johns., 102; Clason v. Bailey, 14 id.,-484; JBrowne on Statute of Frauds, § 416, and cases.) But the rale was changed by the substitution of the word “ subscribed,” and which, as determined by adjudication, means signing at the end or bottom of the contract. (Davis v. Shields, 26 Wend., 351; Vielie v. Osgood, 8 Barb., 132; James v. Patten, 6 N. Y., [2 Seld.] 9.) Giving to the plaintiff, therefore, all it can claim, there was no execution of a contract to convey, however impressive the array of facts may be of an intention to- do that act. The making of initials opposite the seals, or at the places where-the signatures were to be made, was not a subscription in any sense under the latter rule created by the authorities last cited, although it would seem to be conclusive evidence of an intention to sign. If there were any papers subscribed by the testator which expressed, when united or combined, a contract to sell containing the terms thereof, even though presented in shreds and patches, it might be woven out, but this essential pre-requisite does not exist. The appellant, in the consideration of the case, sé'ems to have been influenced by the earlier rule as to signatures and the English cases on the subject, which are not in harmony with our statute. Much time has been devoted to the examination of the appeal, but it has been found impossible to demonstrate the error which is supposed to have been committed in the court below. The judgment must, therefore, be affirmed, with costs.

Daniels, J., concurred in the result.

Judgment affirmed, with costs.


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    RICHARD S. ROBERTS and Others, Appellants, v. AUGUSTUS BRANDIES and MATTHEW SHAFFER, Respondents.

      The giving of (he notes ofathvrd person in satisfaction of a judgment, (hough for less than the amount due (hereon, operates as an accord and satisfaction — effect of the receipt of principal on (he right to collect interest.

    The plaintiffs having recovered judgment against the defendants for $578.72, and nearly ten years interest having accrued thereon, accepted from the defend- . ants $260 in cash and three promissory notes of a firm, which was not the judgment debtor, for $100 each, which were paid at maturity, in full satisfac ■ tion of the judgment.
    In an action, brought to enforce the judgment on the ground that the acceptance of a sum less than the amount due thereon could not operate as a satisfaclionthereof:

      Reid, that the giving of the notes of a third person operated as an accord and satisfaction and discharge of the judgment debt.
    That, as the cash payment and notes exceeded in amount the judgment, aside from the costs and interest, the receipt of the principal sum due was a har to any claim for interest thereon.
    Appeal from judgment entered on the verdict of a jury in favor of the defendants.

      Q. S. P. Stillman, for the appellants.

      Thornton, Earle dc Kiendl, for the respondents.
   Brady, J.:

The plaintiffs recovered judgment against the defendants in the State of New Jersey for $578.72 which was still unpaid in the year 1882 and nearly ten years’ interest had accrued. In that year one Morehouse was authorized by the plaintiffs to settle and collect the judgment. In pursuance of the authority thus reposed in him he accepted from the defendants $260 in cash and three promissory notes of $100 each, at six, twelve and eighteen months, which were sent to and received by the plaintiffs. On receipt of the money and the notes, Morehouse gave to defendants a receipt to Brandies & Oo. for notes and the sum of money paid, in which it was stated that when the notes were paid they were to be in full satisfaction of the judgment recovered by the plaintiffs against Brandies and Shaffer, and that such judgment would be canceled of record. The three notes given by the defendants were paid, and it appears that after the payment of these notes the defendants Brandies applied for the satisfaction piece of the judgment, which was not at first refused, but subsequently refused upon the ground, it would seem, that Morehouse had no authority to make the compromise which ho had, or accept a smaller sum than the judgment.

There appears to be but one exception in the case presented for our consideration and that was taken to proof of the transaction between the defendant Brandies and the plaintiffs’ attorney More-house, upon the ground that no agreement could be made for the vacating or discharging the judgment without showing that it was paid in full. The authority of Morehouse was denied by the plaintiffs, but this question was submitted to the jury upon the evidence in relation to it, which was conflicting, and decided against the plaintiffs as the verdict indicates. The amount of the judgment with the interest added being in excess of the amount accepted in full satisfaction of the debt, the question really jn'esented in this case is, whether that payment thus made was a discharge of the debt.

The proposition that the payment of a lesser sum cannot be a satisfaction for a greater one seems to have originated in Pinnell's Case (Cokes Rep., pt. 5, p. 117), wherein it was so solved by the whole court, although it was said that the giving of a horse, hawk or robe, etc., in payment was a good accord and satisfaction. This adjudication was followed by Cumber v. Wayne (1 Strange, 426) and a series of cases, all resting upon the doctrine of that case. It has since been questioned and indeed it may be said, assailed and very slight reasons for departing from it accepted, as the history of the doctrine would demonstrate, if time were taken to follow the various adjudications bearing upon the subject. In the Court of Queen’s Bench, however, in Beer v. Foakes, decided in the Queen’s Bench Division in 1883, it was said that the decision in Cumber v. Wayne depended upon a mere technicality, and further, that judges had long tried to escape from the doctrine' which was a reproach to English law, namely, that a creditor may not make a valid agreement to take in payment a smaller sum than the amount of his debt. ITpon appeal, however, the conclusions at which the learned judge arrived were reversed and it was held that the plaintiff’s right was the same as if no agreement of compromise had ever existed and this judgment on appeal to the, House of Lords was affirmed. (See Foakes v. Beer, 9 App. Cases, 605.) The' cases of Pinnell and Cumber against Wavne were referred to, and although the house of lords considered themselves bound by the rule established in the Pinnell case and enforced it, nevertheless it is apparent that it did not meet with their approval, and as suggested in the opinions, slight reasons were regarded as sufficient for a departure from its rigor when the opportunity presented itself. The same spirit has prevailed in this State where it has been held that although the payment of a lesser cannot discharge a greater sum, yet the same amount could in a new form; such for example as an indorsed note which is paid, or a chattel which is accepted in payment, be sufficient for the purpose of discharging the debt, as either would be good as an accord and satisfastion. In this case there was a new consideration. In Douglass v. White (3 Barb., Chan., 624), it was held that if the defendant, in addition to an agreement to pay a part of the debt, gives the plaintiff anything which in judgment of law can be considered a benefit, and the creditor accepts it as a satisfaction of the whole liability, it is a good accord and satisfaction. In Boyd & Suydam v. Hitchcock (20 Johns., 76), it appears that three indorsed promissory notes were given by the debtor for a part of his debt and accepted in satisfaction of the whole debt, and the court held that there was a beneficial interest acquired and a valuable consideration received by the plaintiff, which created a valid discharge on the principle of accord and satisfaction. To the same effect are Kellogg v. Richards (14 Wend., 116); Frisbie v. Larned (21 id., 450); Howard v. Norton (65 Barb., 167); see, also, Pardee v. Wood (8 Hun, 584). In this case it appears" that. when efforts were first made by Morehouse to collect the judgment, the defendant Brandies, with whom the entire transaction was conducted and consummated, had no means and was working on pay, but the negotiations, nevertheless, resulted in the giving of the money paid and the notes, the defendant Brandies stating that he thought he could borrow the money. As it has been observed, the notes which were given in satisfaction of the judgment were signed “ A. Brandies & Co.,” and which appears to be a different firm iron} that against which the judgment was obtained.

This circumstance brings the compromise within the principle cited, and particularly that of Boyd & Suydam v. Hitchcock (supra). It is said in these adjudications that very slight new considerations are regarded as sufficient to overcome the rulé established by the case of Pinnell, and it is for this reason that the acceptance of a note indorsed by a third party, or any new liability given, has been regarded as sufficient to accomplish that object. There is another element which affects the question, and that is that the payment made was in excess of the judgment, aside from the costs and interest, and it has been held that interest being recoverable as damages for non-payment of principal, the receipt of the principal due to the creditor is a bar to any claim for interest thereon. (Cutter v. Mayor, etc., 92 N. Y., 166; Jacot v. Emmett, 11 Paige, 142, and Hamilton v. Van Rensselaer, 43 N. Y., 244.)

For these reasons we think the judgment should be affirmed, with costs.

Yan Brunt, P. J,, and Daniels, J., concurred.

Judgment affirmed, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BENJAMIN J. HILL, Appellant.

      A statute making the possession of an article conclusive evidence of an intent to sell the same, in an action for a penalty, is constitutional — 1885, chap. 183, sec. 8.
    Section 8 of chapter 183 of 1885, providing that “ if any person shall coat, powder or color with annatto, or any coloring matter whatever, butterine or oleomargarine, * * * or shall have the same in his possession, or shall sell or offer for sale or have in his possession, any of the said products which shall he colored or coated in semblance of or to resemble butter or cheese, it shall be conclusive evidence of an intent to sell the same for butter or cheese,” is constitutional.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the circuit.

      Albert Reyna/ud, for the appellant.

      William R. Quin and Edward B. Thomas, for the respondent.
   Brady, J.:

This action was brought to recover the penalty provided for in section 19 of chapter 183 of the Laws of 1885. That statute, by its eighth section, declares that no one shall make or keep, with intent to sell for butter, or sell with like intent, any substance resembling butter, unless made from pure unadulterated milk or cream. The penalty imposed is $500. The proof was that the substance sold by the defendant was oleaginous, not produced from milk or cream, but made in whole or in part from- animal fats or oils, and not produced from unadulterated milk or cream, and was colored so as to resemble butter, tbe product of tbe dairy.

Section 8 of tbe act mentioned declares that if any person shall coat, powder or color with annatto, or any coloring matter whatever, butterine or oleomargarine, or any compounds of tbe same, or any product or manufacture made in whole or in part from animal fats or animal or vegetable oils, not produced from unadulterated milks or cream, whereby the said product, manufacture or compound shall be made to resemble butter or cheese, the product of the dairy, or shall have the same in his possession, or shall sell or offer for sale, or have in his possession any of the said products which shall be colored or coated in semblance of or to resemble butter or cheese, it shall be conclusive evidence of an intent to sell the same for butter or cheese, the product of the dairy. And section 19 provides that for a violation of the section just mentioned he shall, in addition to the fines and penalties prescribed for each offense, forfeit and pay a penalty of $500.

The plaintiff established the possession and sale of the prohibited article, and presented a case in all respects in compliance with the statute relating to the subject. The defendant sought to show that he did not know the nature of the product, and did not intend to sell the same for butter; but the court, to use the language of the case, felt bound to hold the color clause and conclusive evidence clause of the section (section 8), to be constitutional, and to be conclusive of any question of innocent intent or ignorance of fact on the part of defendant.

The question presented, therefore, is whether or not the provisions of section 8, by which the possession of the colored substance is made conclusive evidence of an intent to sell the same for butter, is constitutional. All the propositions submitted on behalf of the defendant, and all the points presented upon the trial and upon the argument led to this result. The Court of Appeals have very recently, in fact during the last month, in the case of People v. Arensberg, treating the subject e converso, said: It cannot be claimed that the producers of butter, made from animal fats or oils, have any constitutional right to resoi’t to devices for the purpose of making their product resemble in appearance the more expensive article known as dairy butter,- or that it is beyond the power of the legislature to enact such laws as they may deem necessary to prevent the simulated article being put upon the market in such a form and manner as to be calculated to deceive. The coloring of oleomargarine so as to resemble butter, the product of the dairy, it was shown upon the trial was calculated to deceive, and the conclusive evidence clause already referred to must be regarded as designed to prevent such deception. The principle, it may be added, which must govern this case is enunciated in the case of Phelps v. Racey (60 N. Y., 10), in which it is said that the legislature may pass many laws, the effect of which is to impair or even destroy the right of property, and that private interest must yield to the public advantage; and further, that all legislative powers not restrained by express or implied provisions of the Constitution may be exercised. The question involved in that case related to the preservation of game and it was said that the measure best adapted to that end was for the legislature to determine and courts would not review its discretion. If the regulations operated in any respect unjustly or oppressively, the proper remedy must be applied by that body, and that although some of the provisions of the act might seem to one unversed in the mysteries of the subject, to be unnecessarily stringent and severe, the court could not say that those involved in that action were foreign to the object sought to be attained, or outside of the wide discretion vested in the legislature.

The object in view in passing statutes so stringent in their nature as those in reference to oleomargarine was to protect, by all possible safeguards, any imposition upon the public by the sale of that manufacture for butter, against which it can readily be understood a multitude of provisions might be enacted affecting the right of property and changing the rules of evidence. The effect of the provision making the possession of colored oleomargarine conclusive evidence of an intent to sell it for butter, the product of the dairy, is to impose upon the dealer the obligation of ascertaining whether or not it has been colored so as to resemble butter, the addition of the coloring matter being in itself an element of fraud, and the manufacture, therefore, when coloring matter is introduced, being a fraud per se. When the protection of the public is involved, from a fraud that may be perpetrated,' the action of the legislature is discretionary as to the rules by which the mischief may be avoided, unless in conflict with some declared and plain provision of the Constitution. Considered as an abstract proposition, it does not seem to be oppressive to require írom a dealer in an article calculated to deceive the utmost protection against such a result,' and to subject him to penalties for neglect or omission of his duty in this respect. His transactions are with the public, and should be, at all times, marked by good faith, whether connected with oleomargarine or any other subject, and in exacting of him such scrutiny as to the article of oleomargarine as to prevent a wrong is neither unjust, oppressive nor unconstitutional.

For these reasons, we think, the jndgment appealed from should be affirmed.

Van Bhunt, P. J., and Daniels, J., concurred.

Judgment affirmed.