author: HATCH, J.

text:
    Isaac Thompson, Resp’t, v. George F. Hicks et al., Individually, and as Sole Surviving Executors and Trustees, etc., App’lts.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’y 4, 1896.)

    1. Executors —Liability—De fault of coexecutob.
    Where the executor or trustee, sought to be charged, has received the funds of the estate and voluntarily delivers them over to an associate, or does any act by which they are brought under the sole control and management of the latter, where otherwise he would not have received them, such executor or trustee so delivering the funds is liable for any loss that may he sustained as a consequence of such act.
    2. Same.
    Where the decree on the final settlement recites that the schedule shows cash paid to the executor for the purchase of bonds and that he now holds it, such recitals do not have the force, nor are they intended to have, of relieving the coexecutors from responsibility in connection with the fund, or of thereafter preventing inquiry as to how this fund came into their associate’s hands, and they are not exonerated by showing that such associate had the money, unless they go further and show that he came by it under such circumstances as charge him alone, or that they had been guilty of no dereliction of duty respecting it.
    8. Judgment—Belief.
    Where all the facts are pleaded which entitle plaintiff to a recovery and the evidence is introduced without objection, the court is authorized to permit any judgment consistent with the complaint and embraced in the issue, thougli not in accordance with the prayer for relief.
    4. Pleading—Amendment.
    Where the amendment proposed does not change the cause of action or introduce a new cause of action, but only embraces a new allegation relating thereto, it is within the power of the court to allow it.
    Appeal from a judgment for plaintiff, entered upon the decision of the court without a jury, and from an order amending the complaint on the trial.
    David Wilcox, for app’lts; Charles L. Hubbel, for resp’t.
   HATCH, J.

—It appeared upon the trial that testatrix, Mary Jewett, died on January 31, 1887, leaving a last will and testament, whereby she constituted the defendants and one Benjamin K. True executors and trustees thereof. The will was duly admitted to probate, and said persons duly qualified as such executors. The questions that arise upon this appeal relate to the ninth clause of the will, which reads:

“Ninth* I give and bequeath to my executors and executrix, in trust, so much and such a sum of money as will enable them to invest the same (vphich they are hereby directed to do), and keep the same invested, and therefrom produce a net income of "sixty dollars per year, which sum I hereby give and bequeath to the colored man, Isaac Thompson, now living with me, and which sum I direct to be paid to him in quarterly payments during his natural life; and the principal sum so invested I give and bequeath to the herein mentioned Benjamin K. True and to Allen Prescott True, share and share alike, or, in case of the decease of either them before me, then to the survivor of them."

In the course of administration of the estate, the funds,-as received, were placed in bank to the credit of the estate, checks upon which were payable only when signed by two of the trustees. About May 9, 1887, it was determined by the trustees to invest the sum. of $1,500 for the purpose of securing payment of the annuity; and on that day the defendant George F. Hicks and True drew antj. signed a check, upon the estate account, for the sum of $1,500, and the same was delivered to True for the purchase of United States bonds. True never invested the money in any securities, but converted the same to his own use. He paid a part of the annuity irregularly, in small amounts, and died insolvent, about December, 1891. On October 30, 1888, a judicial settlement of the accounts of the executors was had before the surrogate of Richmond county. In the account as presented, the executors credited themselves with the sum of $1,500, and for the “amount set apart for annuity of Isaac Thompson as per Schedule E, 1st. Thereupon, the court entered a decree settling the accounts, and directed “ that the sum of fifteen hundred dollars mentioned in Schedule E,- 1st, of the account of said executors and executrix, as cash paid to Benjamin K. True, executor, for purchase of United States bonds, being the amount set apart for the purpose of raising the sum of sixty dollars per annum for Isaac Thompson, and now held by Benjamin K. True, be hereafter held by said executors and executrix as trustees under and pursuant to the trust created by the ninth clause of the will of said testatrix,, and that said sum be invested by them forthwith according to law, in the name of said executors and executrix, as such trustees, and kept invested in their names to answer the terms of said trust." Up to the time of entering this decree, neither of defendants has interested himself in the slightest to see that True executed the commission by investment of the funds intrusted to him. After the entry of the decree, defendant George F. Hicks, acting for himself and his co-executor, demanded the money of True or its investment, but did not produce compliance with either demand. About May 21, 1889, Thompson instituted proceedings to punish True for contempt for failure to comply with the decree directing him to invest the money. This seems not to have proceeded beyond an order to show cause and its service, and no adjudication was had thereon. The court below found that defendants and True had neglected to invest the zhoney and produce the annuity, and that the defendants were negligent in not calling True to account, and attending to the investment of • the money in the bonds, and adjudged that they be charged as trustees with the sum of $1,500; directed that said sum be forthwith invested so that it shall produce a net income of $60 per annum, which sum shall be paid to plaintiff during his natural life, in quarterly payments, beginning January 1, 1895; and that plaintiff have judgment for the unpaid annuities and costs, amounting in the aggregate to $389,35.

It thus appears from the evidence and findings that the money which was paid, to True came from the possession of the defendants, and was paid to him from the funds of the estate in pursuance of an agreement made by defendants so to do. The case is therefore brought within the rule that where the executor or trustee sought to be charged has received the funds of the estate, and voluntarily delivers them over to an associate, or does any act by which they were brought under the sole control and management of the latter, where otherwise he would not have received them, such executor or trustee so delivering the funds is liable for any loss that maybe sustained as a consequence of such act. Croft v. Williams, 88 N. Y. 384; Bruen v. Gillet, 115 id. 10; 23 St. Rep. 780. We find no case, upon the facts here presented, where this rule has been departed from. The evidence disclosed that True was a broker, and dealt in the securities in which it was proposed to invest the money. There was no reason or excuse for delay in making the investment, and it seems to have been expected that it would be done at once; yet, in the continual presence of this expectation, defendants did nothing, either by way of insistence or suggestion that True perform the obligation charged upon him and them, but remained perfectly passive in the matter, until aroused to action by the decree of the surrogate, nearly eighteen months later. Even then no decisive steps were taken. The cestui que trust was making his wants known crudely, but plainly, and with little light regarding his legal rights. True failed to pay the annuity promptly, sent one worthless check, and it was only by the most persistent effort that anything was forced from him. At some time, about this period, he must have been paid his fees as executor, amounting to $1,000; and this payment must have come through defendants, as it does not appear that any moneys of the ■estate were collected by True individually, and money could only be obtained from the bank on the signature of two. With this condition of ignorance on the part of the cestui que trust, and evidence of financial weakness on the part of True, defendants were called upon to exercise prudence, care, and diligence commensurate with known conditions for the protection of this fund. By no reasonable construction can we say that they did. On the contrary, there was a laxness and inattention to a plain duty, which led the court below to a finding of negligence in discharge of their trust, and we think this finding is supported by the evidence. It is sought to defeat this conclusion by the claim that the decree of the surrogate is conclusive respecting the delivery of the money to True, and exonerates defendants from liability on account thereof. By the Code of Civil Procedure (section 2742), a judicial settlement of accounts by a surrogate’s court is made conclusive of four things: First, that the items allowed to the accounting party for money paid to creditors, legatees, next of kin, necessary expenses and services, are correct; second, that the party has been charged with all interest on money embraced in the account for which he is legally chargeable; third, that the money charged as collected on debts stated in account is all that was collectible; fourth, that allowances for decrease and charge for increase in value of property were .correctly made. We find nothing here which settles conclusively that True alone was chargeable with this money. So far as the account appears, it does not show that True had the money, and defendants are simply credited with the sum set apart. The decree recites that the schedule shows cash paid to True for the purchase of bonds, and recites that he now holds it. But these recitals do not have the force, nor are they intended to have, of relieving defendants from responsibility in connection with the fund, or of thereafter preventing inquiry as to how this fund came in True’s hands, and nothing in the statute gives it such effect. The substantial effect of the decree is to charge defendants as trustees with the sum, and direct its investment to answer the terms of the trust. The force of this unexplained is to charge defendants with the fund. They are not to be exonerated by showing that True had the money, unless they go further, and show that he came by it - under such circumstances as charge him alone, or that they have been guilty of no dereliction of duty respecting it. In re Niles, 113 N. Y. 547 ; 23 St. Rep. 647 ; 1 Perry, Trusts, §§ 417-419 ; 1 Lewin, Trusts, §§ 263-266. If such be the fact, it is idle to say that the decree is conclusive of plaintiff’s right to show that in fact defendants are alone responsible for the money being in True’s hands.

It is further claimed that no power to amend the complaint existed in the court. It is true that the complaint was framed upon the theory of recovery for the annuities due and unpaid. Such is its prayer for relief. But all the facts were pleaded which entitled plaintiff to a recovery, and tile relief granted was fairly within the scope of the issue. The parties tried the action upon the theory that defendants were to be charged for the money sufficient to pay the annuity or to be relieved entirely. All the evidence was introduced without objection, and the court was authorized to permit any judgment consistent with the complaint and embraced in the issue. Code Civ. Proc. § 1207 ; Hale v. Bank, 49 N. Y. 626 ; Thacher v. Association, 46 Hun, 594.

The complaint alleged, in its seventh paragraph, that defendants had failed and neglected to invest the money or pay the annuity, and had illegally appropriated the money to their own use and benefit. This alleged negligence and the amendment allowed did not change the cause of action. It embraced .a new allegation of negligence, but did not bring in a new cause of action. It was therefore within the power of the court to allow it. Davis v. N. Y., L. E. & W. Railroad Co., 110 N. Y. 646; 17 St. Rep. 172. If it were otherwise, it does not appear that defendants objected to the order amending the complaint. The order recites that the application to amend was made upon the trial in order to conform it to the evidence and facts. For aught that appears, defendants consented to the amendment, and they cannot now be heard to object thereto.

While we reach the conclusion that the defendants are chargeable with the annuity secured to be paid by the terms of the will, we° think the judgment itself is unnecessarily onerous in compelíing the investment of this fund. The will provides for the payment of the annuity during plaintiff’s life, and upon his death the principal sum is to be divided between Benjamin K. True and Allen Prescott True, share and share alike. As between Benjamin K. True and these defendants, no claim can be made for his distributive share; and, so far as the present controversy is concerned, it is not necessary to determine, nor could it be from the present record, what the rights of Allen True are. It is sufficient now to provide for the payment of the annuity, and this may be done by a modification of the judgment providing that defendants give a suitable bond, secured by a mortgage, upon unincumbered real estate, for the payment of the annuity, in lieu of the investment of $1,500. This modification has the. sanction of authority. Earle v. Earle, 93 N. Y. 104.

Judgment appealed from should be modified as above, security to be approved by a justice of the supreme court, and, as modified, affirmed, with costs.

All concur.


source: Caselaw Access Project

author: VAN WYCK, C. J.

license: Public Domain

text:
    John F. Whelan et al., App’lts, v. Andrew J. Gorton, Resp’t.

      (New York City Court, General Term,

      Filed February 7, 1896.)

    1. Will—Production—Practice.
    Where, on the issue as to the validity of a gift by the testator, consisting of deposits in a savings bank, to the scrivener of his will, at the time of its execution, the only evidence in support of the gift was the testimony of a witness to the will and of the scrivener, the counsel for the party attacking the gift is entitled to the production of the alleged will, - for the purpose of cross-examining the witness as to the circumstances attending the drawing of the same, and to offer it in evidence if its contents go to show that testator did not make a gift.
    2. Same—Notice.
    Where an attorney has in his possession in court a paper admissible itt evidence, no notice on the part of the adverse party to produce it is necessary to its production.
    Appeal from a judgment in favor of defendant by the court without a jury.
    E. J. Dunphy, for app’lt; Goldsmith & Doherty, for resp’t.
   VAN WYCK, C. J.

—The plaintiffs, as administrators of one

O’Connor, deceased, sued the savings bank for funds deposited by deceased, and this defendant sought, and was allowed, to interplead instead of the bank, upon his claim that deceased, just before his death, had given and delivered to him the bank book containing these deposits. The record shows that this defendant had first brought action against the bank, making the same claim in that action that he does in this, and that, upon the trial of that first action, the fact was disclosed that the deceased had made what purported to be his will, which was witnessed by the plaintiff therein (the defendant herein). The record of the trial now under review shows as follows: Plaintiff’s Attorney : “Now, I call on counsel to produce an alleged will, spoken of by this witness [Miss King] on her direct examination, drawn by A. J. Gorton at that time, and signed by her.’.’ Defendant’s Attorney : “To which request •counsel remains mute.” Whereupon plaintiff’s attorney called as a witness the defendant’s attorney, and questioned him, as follows: Q. “Mr. Goldsmith, have you in your possession a paper testified, to by Miss King as having been drawn up by A. J. Gorton and signed b^y her ?” Defendant’s Attorney: “I object to it, as immaterial, irrelevant, and incompetent.” .“Objection sustained. Exception.” Q. “Has there been delivered to you by your client a paper purporting to be the will of O’Connor ?” “Same objection, ruling, and exception.” These rulings cannot be sustained, in view of the fact that Miss King was the sole witness as to the circumstances attending the dying O’Connor’s gift to Gorton, and she says that Gorton, at O’Connor’s request, at that .time drew up what purported to be O’Connor’s will, which was witnessed. It must be assumed that defendant’s counsel had this paper with him in court. The plaintiff had a right to have the paper if it was in court, in order that he might cross-examine Miss King as to the circumstances attending the drawing up of the same, and to offer it in evidence if its contents 'went to show that the deceased did not make the gift to Gorton. And, at folio 185, the witness was asked to state the contents of this paper purporting to be deceased’s will, but defendant objected, and was sustained. The defendant’s attorney contends, upon this appeal, that the record does not show that any proof of service of notice to produce this paper was made; but the record does not show that -he made such objection at trial, ■and, moreover, if the paper was in court (and it must be assumed that it was), no notice to produce was necessary. The record -shows other errors against plaintiff, which it is not necessary to discuss.

Judgment reversed, and new trial granted, with costs to appellants to abide the event. All concur.


author: FITZSIMONS, J.

text:
    Morris Feinstein, Resp’t,. v. Solomon Jacobs, App’lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    1. Landlord and tenant—Negligence.
    It is the fluty of the landlord to keep in a reasonably safe condition the stairs leading to the cellar in which was built a storehouse for the use of his tenants, and his failure to do so will render him liable to them for injuries sustained by them, provided they are ¿free from contributory negligence.
    3. Same.
    The tenant has a right to assume that the landlord fully performs the duty which the law casts on him, and he, therefore, has the right to use the stairs in question, and is not bound to carry with him a light while so doing.
    S. Same—Notice.
    In such case,, it is not for the tenant to show that the landlord has actual notice of the defective or broken step, but it is sufficient for him to show that such dangerous conditions existed for a reasonable length of time prior to the injury.

      4. Same—Damages.
    Where it appears, in an action to recover for personal injuries, that the tenant supported himself and family by his earnings as a peddler, he is entitled to receive a reasonable sum for the loss of such earnings, though no actual sum was fixed by his testimony.
    Appeal from a judgment in favor of plaintiff.
    A. H. Sarasohn, for pl’ff; Joel Krone, for def’t.
   FITZSIMONS, J.

—The plaintiff was injured by reason of a broken step in the stairs leading to the cellar in which was built a storehouse for the use of the tenants in the defendant’s house. It was the duty of the defendant to keep said stairs in a reasonably safe condition, and his failure to do so would leave him liable to his tenants for injuries sustained bv them, provided they were free from contributory negligence. The plaintiff had a right to assume that the defendant, as landlord, fully performed the duty just mentioned, which the law cast on him, and he therefore had the right to use the stairs in question, and was not bound to carry with him a light while so doing. Just as the landlord was not bound to furnish light, to tenants while they were using such stairs. It was, therefore, not negligence for the plaintiff to fail to carry with him a light, as contended for by the defendant, while passing over the stairs in question, nor was it for the plaintiff to show that the defendant had actual knowledge of the defective or broken step; and it was quite enough for him to show that such dangerous condition existed for á reasonable length of time prior to the injury to the plaintiff. Thus, defendant would have constructive notice of the existing dangerous condition of his premises,—all that it was necessary for him to have; and that such notice was furnished him is quite certain, because it appears that the step was broken for at least six months prior to the plaintiff’s injury, and that the defendant was the owner for at lease the three last months of that period, and surely long enough for him to have learned of the dangerous condition of his premises, of which he had at least constructive notice.

The exception taken to the judge’s charge, we think, was too general; and, besides, it appears that the plaintiff, in his complaint, claims future damages, and his evidence shows that, at the trial, he suffered pain and was in bandages. So that it was reasonable to assume that such pains would continue for some time, at least, after the trial, and for which he was certainly entitled to damages. For loss of wages he was entitled to damages—at least nominal— as a matter of law; but, under the circumstances of this case, he was entitled to receive a reasonable sum for such loss of wages, because it appears that he was a peddler, and from such employment supported his family. The jury, relying on their common knowledge and experience, had the right to fix the damages sustained for such loss of wages, even though no actual sum was fixed by the plaintiff; and their finding should stand, unless it is apparent that they allowed an unreasonable amount of money, which cannot be claimed, in view of the fact that the verdict for all the damages sustained by the plaintiff is only the sum of $275. The judgment must be sustained, with costs.

All concur.


author: MCCARTHY, J.

text:
    Mary A. Stapleton et al., Resp’ts, v. Greenwich Insurance Company, App'lt.

      (New York City Court, General Term,

      Filed February 8, 1896.)

    Pleadings—Complaint—Insurance.
    The complaint, in an action on a fire policy on a building, should be dismissed where such policy contains a provision avoiding it if the building is or becomes “ vacant or unoccupied,” and remains so for ten days, and there is evidence that the building has been unoccupied for three months, with nothing in it during that time but a blanket, and no evidence to relieve the insured from the effect of the condition.
    Appeal from a judment in favor of plaintiff.
    Butler, Stillman & Hubbard, for app’l; Niles & Johnson, for resp’ts.
   MCCARTHY, J.

—This is an action upon a fire policy, and the defense is a breach of certain warranties contained in the same. The insurance was upon a dwelling, and the fire which caused the loss took place about three months after the last tenant permanently moved out. It is conceded that there was no furniture or other material except a blanket in the premises insured during all that time. Among the provisions contained in the policy was this one:

“ That if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and 'so to remain for ten days, the policy shall be void unless provided otherwise by agreement indorsed hereon or added to.’’

We think the trial justice should have dismissed the complaint at the close of plaintiffs’ case, and also at the close of the entire case. The testimony of Mary A. Stapelton and James D. Du Bois was insufficient, and did not relieve the plaintiffs from the effect of the condition, of the policy of insurance.

Earl J., in Herrman v. Insurance Co., 81 N. Y. 184, at page 188, says:

“ A dwelling house is unoccupied when no one lives therein, but is not then necessarily vacant. * * * To avoid the policy, the premises must not only be unoccupied, but also vacant. Force should be given to both words. This is not a casual contract drawn in haste, in which language has been carelessly used; but it is a form of contract used by the defendant in its business, probaby adopted with great deliberation, every word of which, as we may suppose, has been carefully weighed.”

These premises were both ufroceupied and vacant. Herrman v. Insurance Co., 85 N. Y. 162, 168, 169.

' Plaintiffs made a breach of a binding condition, and must abide the unfortunate consequences. This being material error, judgment must be reversed, and new trial granted, with costs to the appellant to abide the event.

All concur.


author: SCHUCHMAN, J.

text:
    Charles Schreiber, Resp’t, v. Driving Club of New York App’lt.

      (New York City Court, General Term,

      Filed February 7, 1896.)

    1. Appeal—New trial.
    An appeal from an order denying a motion for a new trial on all the grounds specified in section 599 of the Code, brings up for review the evidence adduced at the trial, but, though contradictory, if enough is contained therein to sustain the plaintiS’s cause of action, the verdict must be sustained.
    3, Negligehce—Surface water.
    The facts found by the jury were held to bring this case clearly within the law holding the proprietor liable for the damage caused by the increased flow of water.
    Appeal from a judgment entered on a verdict m favor of plaintiff, and from an order denying a motion for a new trial.
    Wm. G. McCrea, for app’lts; Thomas P. Byrne, for resp’t.
   SCHUCHMAN, J.

—This is an appeal from a judgment entered -on the verdict of a jury in favor of the plaintiff, and against the defendants,. No exception having been taken by either side to the charge of the court, it must be assumed to bo correct. Appellants’ attorney moved for a new trial on all the grounds specified in section 999 of the Code. Said motion was denied; an order was entered thereon; and an appeal was taken from said order. This brings, np for review the evidence adduced at the trial, and although contradictory, if enough is contained therein to sustain the plaintiff’s cause of action (the jury being the sole judges of the facts of the case), the verdict must be sustained.

-The plaintiff claims that while he was the lessee of some garden land between 164th and 165th street, west of Railroad avenue, of the city of New York, and while the defendants were the lessees of'Fleetwood race track, wh;ch adjoined his land on the north, the defendants, by their carelessness or negligence or some wrongful act on their part, in not keeping the drainage on their land in proper shape, order, or repair, and in digging superficial ditches on their land, wrongfully accumulated water in such large quantities that the existing drainage -could not carry it off, and thus threw it off on the plaintiff’s adjoining lands, flooding them, and destroying his garden seeds, etc., to his damage.

The evidence established that on May 2 and 3, 1893, there wes a heavy rainfall; that plaintiff’s lands were flooded and damaged thereby. The grounds of Fleetwood park in the northwest are. higher than in the south and southeast. There appear to be abont three acres of wet meadow land in the northwest thereof, which is drained by the open drain or trench into eight acres of low wet meadow lands in the south. There is also an old pond in the north, which was formerly drained by a stream known as “Low Ravine,” southward into the old mill brook, but now drained into the culvert,,which is of stone, two feetby two feet six inches, built in the southeastery part of said park, and connects with an eighteen-inch pipe, carrying the water off into Webster avenue sewer. In short, the drainage of the whole park is accomplished from its north and northeasterly upper lands to the sduth and southeasterly lower lands. The evidence shows that the defendants, at some.time, caused ditches to be dug in said park in order to drain the water from the upper part to the lower; that an old culvert in the park opposite Grand avenue, was stopped up; that thereby a large quantity of water was carried down to the point where another culvert built in the south part of the park connected with an eighteen-inch pipe near Webster avenue, which pipe carried the water over into the Webster avenue sewer; that this last mentioned culvert, being considerably larger than the eighteen-inch pipe with which it was connected, and carrying water from the east, and this additional water coming down from the upper western part, over these new made ditches, exhausted the capacity of the eighteen-inch pipe to carry off all the quantities of water accumulating, and caused it to overflow and run southerly upon plaintiff’s adjoining lowlands.

Mrs. Schreiber testifies:

“That on May 5th she went to see Mrs. Beile, at No. 1 Grand avenue, the first house next to the fence of Fleetwood park. She looked out a side window in Mrs. Biele’s house, and saw water in the park. The water was as the club house right opposite Mrs. Biele’s house. She saw a trench dug there. She showed me the trench. Tnere was water in the upper pond (which was near there). There was water in the trench. It was running. It was running down this way, into that ditch that got dug. That ditch was made so that the water could run down to the lower pond. It was a fresh-dug ditch. The ditch that was dug in the park ran from the track where the horses ran out of it down to the lower part of the ground. It ran right through the trench that got dug open.”

Maling testifies:

“I am an hotel keeper. In 1893 kept the club house in Fleet-wood park. Kept it till the end of. 1894. I saw one pond at the foot of the club house, which is at -the west side of Fleetwood park. I am only familiar with the upper -pond. The water in t the upper pond came from all over the hills, and some of it went into the sewer which is connected with the club house; and, when a heavy rainfall came, it overflowed and went into the pond under the track, into this upper pond. In this upper pond there was psome sort of a cesspool. In 1893, about the time'of the flooding of Schreiber’s garden, they -were digging a trench there. I saw them dig a trench. There is no pond there now. The water is ' drained off by this trench. I do no not recollect how long the trench was there; it was over a year. I know that the trench was dug in the spring of 1893. That was the only trench that was dug that I saw.”

Mr. Thompson testifies:

“I am a civil engineer, and am employed in the department of street improvements in the twenty-third and twenty-fourth wards, and had charge of the building of the Webster avenue sewer. I have been in Fleetwood park, and have heard an upper pond testified here to-day. That would appear to be this plot of ground at Grand avenue, if it were shut off by an elevated ground like the race track. If the water was dammed back it would necessitate the forming of that pond at that place, if the water accumulated there.”

Mr. Platz testified:

“I keep a hardware store and live at 161st street and Cortlandfc avenue. I was born in that neighborhood. Grand avenue is not quite the lowest point. I recollect the stream that flowed south there. I have seen the outside of Fleetwood park at Grand avenue, and have noticed an unused culvert that ran under the track. It is all stopped up now. That ran under the track into Grand avenue. On the other side of the track where the culvert, ran was the upper pond. I noticed the ditch that had been dug there. That trench ran from about the center of the upper pond to the track, and along the inside of the track down to the lower pond; and the pond opposite that, on Grand avenue, is where this unused culvert was stopped up. This culvert on Grand avenue is on the track property. I saw it inside the track fence. I could not see any culvert on the outside of the fence. It did come out before1 they filled up the avenue, but now it cannot, because the avenue is almost as high as the track is.”

Mrs. Beile testifies:

“I live in Grand avenue, near Fleetwood park race track. My home is next to the fence, and I moved there in March, 1892. Mrs. Schreiber came to my house. I took her to the side window, and looked over into the race track with her. 1 showed her the water standing there. We saw the water-and the gutter. I saw a man digging that gutter, and, before that trench was dug, I think there was more water there; how much water I do not know; very much when the trench was dug. The ditch was there when Mrs. Schreiber came, and I saw the man digging it.”

Mr. Guión, witness for the defendant, testifies.

“I examined this portion where they claim that the ditch was dug. Á piece of laud is drained by that ditch. 1 noticed ditchesdug in the lower part of that tract of land, and did not display these ditches on the map, because Mr. McCrea said it was not necessary. There is a comparatively straight ditch running from the north side to the east end towards the culvert. It is about one foot deep. There is another straight ditch, yrhich strikes the first ditch as the arm of a ‘Y’ would strike the upright. This trench in the upper ground is twelve inches wide, and about two feet deep. This same ditch runs along down the inside of the track, and empties into that lower basin. The only ditch in dispute that I knew of was this ditch dug here in the upper part of the track.”

Mr. Moore testifies:

“The water began to run over to the east, and that suggested making a little ditch there,"and we did make a little ditch to get the water off; and when we got to the bottom of the ditch we made, we carried it a little further, and carried some more off; and we carried it that way until the water all worked off degrees. I recollect the old drain that is under the track at Grand avenue, and I don’t think it is stopped now. The track at Grand avenue is not on a level with the upper part. It is four feet higher.”

Thus, it is established conclusively by'the evidence of all the witnesses, as well on the part of the plaintiff as on the part, of the defendants, that the old culvert on the track land opposite Grand avenue was stopped, and that some new ditches were dug in order to drain the upper track land.

As to the overflow caused at the southerly side of the track at the point where the culvert connected with, the 18-inch pipe, and where the overflowing is asserted to have taken place, the evidence shows, in folio 53, that the water was coming out of that culvert, out from Fleetwood park, through a hole; and in folio 111, Mr. Devlin says:

“I recollect the morning of May 3, 1893, when Mr. Schreiber’s garden was flooded. I got there in the morning about half past six. I looked where the water was. coming from. It was coming from the outside of Fleetwood park fence, out of a hole. That hole looked asjf it was coming from Fleetwood park; that is, the culvert at the southeast corner of Fleetwood park; that is, the hole at the end of the culvert. [Exhibit D. shown witness.] The distance from the opening of this culvert to Schreiber’s land is ninety feet. There is a stream of water running through the track that drains the ravine, and there is another stream that flows into Fleetwood park below that, through a culvert that drains a piece of meadow land extending up to 169th street, where it meets Webster avenue. North of the track is a high bluff, and all that falls on that would naturally flow that way south, and through this culvert.”

Thus, it seems to be conclusively established that the water coming, in consequence of a heavy rainfall, from that whole race track down to the lowest southern part of it, was of such an enormous quantity that this culvert, which was of 2 feet and 6 inches where it connected with an 18-inch pipe, could not carry off all the flow of water, and naturally overflowed on plaintiff’s adjoining land, and caused the damage; and it is further conclusively shown that the defendants were at fault whéft they increased this enormous quantity by drainage, by digging extra ditches, and instead of allowing water to come through the trenches from the upper pond, in which the water from the upper three acres of wet meadow land congregated into the lower eight acres of meadow land, where the water could spread, it was, through these newly-dug ditches, carried down to this culvert, increasing the quantity of water, and causing the overflow. There was therefore evidence of a wrongful act committed on the part of the defendants, from which the jury could conclude that they contributed to the overflowing, and caused the damage. The jury were the sole judges of the facts in the case, and of the credibility of the witnesses, and the appellate court cannot interfere therewith. It is true that it does not affirmatively appear by as convincing evidence as might be that these ditches were dug prior to the 2d or 3d of May, 1893. The defendants claim they were dug within three or four days thereafter, but the act of the digging of the ditches and the damage done by the overflowing appear by the evidence to be so closely connected with each other that the jury had a right to infer that the damage was caused by theee newly-dug ditches. Upon the facts as found by the jury, the case comes clearly within the law holding the proprietor liable for the damage caused by the increased flow of the water. Noonan v. City of Albany, 79 N. Y 470.

The verdict should be sustained, and the judgment is affirmed, with costs.

All concur.


text:
    Thomas A. Havemeyer, Resp’t, v. Walter E. Switzer, App’lt.

      (New York City Court, General Term,

      Filed February 7, 1896.)

    Pleadings—Complaint—Lease.
    In an action brought on an express covenant to pay rent, the landlord need not allege in his complaint, or prove, that the tenant occupied or enjoyed the premises, or the ownership of the premises let.
    Appeal from a judgment in favor of plaintiff,
    Josiah T. Lovejoy, for app’lt; Allan Lee Smidt, for resp't.
   SCHUCHMAN, J.

— This is an appeal from a judgment entered on an order overruling the defendant's demurrer to plaintiff’s complaint as frivolous, and from said order. The action is brought on an express covenant to pay rent. In such an action, the plaintiff need not allege in his complaint, or prove, that defendant occupied or enjoyed the premises, or the ownership of the premises let. Gilhooley v. Washington, 4 N. Y. 217.

Otherwise in an action for use and occupation. Defendant claims that plaintiff should have alleged in his complaint a performance of all the conditions of the contract on his part, pursuant to section 533 of the Code, and citing Bogardus v. Insurance Co., 101 N. Y. 328; but he fails to perceive that there are no conditions of the contract set up in the complaint. The contract of letting and hiring, and the agreement to pay rent, merely, are set forth. The weak point in plaintiff’s complaint is the fact that the term is. not definitely stated, but with reasonable certainty it can be inferred therefrom that the term was for a year and commenced on May 1,1994.

Order and judgment appealed from affirmed, with costa


author: HERRICK, J.

text:
    Dora Snyder, App’lt, v. Peter E. Launt, Resp’t.

      (Supreme Court, Appellate Division, Third Department,

      Filed February 5, 1896.)

    Civil damage law—Notice.
    Before any person, whether licensed or unlicensed, can be held liable under the civil damage-act for selling or giving away liquor, notice must be served upon him, or, if he has a license, either upon him. personally or upon his agent.-
    Appeal from a judgment dismissing the complaint.
    I. L. Brayman, for app’lt; Marvins & Handford, for resp’t.
   HERRICK, J.

—This is an appeal from an order dismissing the-plaintiff’s complaint, and from a judgment entered thereon. The action is one under what is known as the “ Civil Damage Act.” The complaint, by appropriate allegations, sets forth the sale of intoxicating liquors by the defendant to plaintiff’s husband on the fourth day of November, 1893, whereby her husband became intoxicated, and injury resulted therefrom to the plaintiff. That such sale took place in the town of Walton, in the county of Delaware. And the plaintiff alleges that prior to such sale, at the annual town meeting held in the town of Walton for the year 1892, the town of Walton, and the electors thereof, by a vote of the majority, voted for local prohibition, and against granting-licenses for the sale of intoxicating liquors in said town. The same allegation is repeated in relation to the annual town meeting for the town of Walton held in February, in the year 1883. And the plaintiff alleges that neither of said votes has been reversed, and that no license for the sale of spirituous or intoxicating liquors has been issued to the defendant, nor any person or persons in the town of Walton, on the fourth day of Noveniber, 1892, or at any time six years prior thereto. The complaint was-dismissed, on the ground that there was no allegation in the complaint that any written notice was ever served upon the defendant not to sell liquor to the plaintiff’s husband. The plaintiff contends that there is no necessity for any such allegation in the complaint, or for the service of any such notice.

This action is founded upon chapter 646 of the Laws of 1873, and that statute makes no provision for the service of any notice.

In 1892, by chapter 401, entitled “An act to revise and -consolidate the laws regulating the sale of intoxicating liquors,” it was provided, by section 40, that:

“No recovery shall be had in any civil action brought to recover damages suffered by reason of the intoxication of any person against a person or persons who shall by selling or giving away any intoxicating drink, have caused such intoxication, unless one of the persons who might have such a cause of action, in case of damage, shall, prior to such sale or giving away, have given written notice to the person selling or giving away such intoxicating drink, forbidding such sale or giving away to the person whose intoxication shall have caused such damage.”

Section 41 of chapter 401 reads as follows ;

“ Hothing herein except section thirty-one, shall in any manner apply to any town vfhere the majority of voters have voted for or hereafter vote for local prohibition until such town shall reverse by vote such local prohibition.”. 1

Section 31 makes the sale of liquors without a license a misdemeanor, and the plaintiff’s contention is that, section 41 having made all the sections of chapter 401 excepting section 31 inapplicable to towns which have voted for local prohibition,' and the town of Walton (where the defendant resides, and sold the liquor to plaintiff's husband) having voted for local prohibition, and not having reversed that vote, section 40, requiring notice to be given, docs not apply to persons selling liquor within the town of Walton. If the legislature had stopped at the enactment of chapter 401, I should hold that the plaintiff’s contention was correct; but in the same year, by chapter 403, entitled “An act in relation to excise," which was signed and became a law one hour after chapter 401 became a law, the legislature provided as follows:

“A recovery may be had in a civil action, of the damages suffered by reason of the intoxication of any person, from any person or persons who shall by selling or giving away intoxicating drink, have caused such intoxication, or from any persons owning or renting or permitting the occupation of any building or premises wherein such or giving away shall have occurred, jointly with the person or persons selling or giving away, or severally, if the person or persons suffering such damage, shall previous to such selling or giving away, have written notice to the licensee or his agents or the person or persons so selling or giving away forbidding such selling or giving away to the person whose intoxication shall have caused such damage, and not otherwise.”

The plaintiff’s contention is that the notice required is only to he served upon those persons who have a license for the sale of liquors or their agents; that the words “ or the person or persons,” following after the words “licensee or his agents,” are limited in their meaning by the prior words, and the words “ person or persons ” are to be construed in the same sense as the words “licensee or his agents,”—that is, to persons who are lawfully selling liquors in pursuance of a license. And he invokes the rule of “noscitur a sociis.”

I do not think that that rule can be applied in this case. It does not seem to me that when the legislature, in section 2 of chapter 403, used the words “ person or persons,” it intended to limit their meaning and restrict their application to those defined by the previous words, “licensee or his agents.” Such a construction renders the words “ person and- persons ” useless. It is to be presumed that the legislature had some meaning in using the words they did, and that none of them were used without a definite meaning and intent. In Quinlan v. Welch, 141 N. Y. 158-164; 56 St. Rep. 630, it was held that the effect of section 2 of chapter 403 of the Laws of 1892 was to increase the number of persons upon whom notice might be served. I think that the true meaning and intent of the law is that, before any person, whether licensed or unlicensed, can be held liable under the civil damage law for selling or giving away liquor, notice must be served upon him, or, if he has a license, either upon him personally or upon his agent.

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

All concur.


author: MERWIN, J.

text:
    William H. Conde et al., Resp’ts, v. Jeanette C. Hall et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Corporations—Stockholder—Liability.
    A stockholder’s liability for a corporate indebtedness is discharged only pro tanto by the compromise and satisfaction of a prior judgment against the trustee of the corporation for the same indebtedness.
    3. Same—Evidence—Res gestae.
    In such action, a letter, explaining the compromise of the judgment, is admissible in an action as res gestae when such compromise is urged as a defense.
    Appeal from a judgment in favor of plaintiff.
    Lansing, Lansing & Jones, for app’lts; Elon R. Brown and Rogers & Atwell, for resp’ts.
   MERWIN, J.

—In this action, the plaintiffs, as judgment creditors of the defendant Zell R. Hall, based on a liability existing prior to February, 1892, sought to set aside, as fraudulent and void as to creditors, a conveyance of real estate made by said defendant to the defendant Jeanette C. Hall, and bearing date February 25,1892. The main issue at the trial was whether the deed was made and received with an intent to hinder, delay, and defraud the creditors of Zell R. Hall. It was found by the court that such was the intent of the debtor, and that the grantee received the deed with the knowledge of such intent, and for the purpose of aiding and co-operating with the debtor in the execution of such intent. A careful consideration of the evidence leads us to the conclusion that the evidence is sufficient to sustain these findings, and that there is no sufficient reason apparent for this court to disturb them. The appellants claim that the deed was given as security for advances made or to be made.' Under the findings above referred to, the deed cannot stand as security. Baldwin v. Short, 125 N. Y. 553 ; 36 St. Rep. 138.

The defendants claimed at the trial, and do here, that the plaintiff’s debts and judgments are paid. The plaintiffs had debts against the Gifford Manufacturing Company, a manufacturing corporation organized under chapter 40 of the Laws of 1848. Zell R. Hall was a stockholder in thai company, and the judgments recovered by plaintiffs against him were based on his liability as a stockholder in case the whole amount of the capital stock has not been paid in. Laws 1848, c. 40, § 10. One Munson was a trustee of the corporation, and the plaintiffs also recovered judgments against him for the amount of their debts upon his liability, under section 15 of the act of 1848, for making a false report as trustee. The judgments against Munson were afterwards compromised and were satisfied by the filing of a satisfaction piece in the usual form. The special term applied upon the judgments against Hall the amount realized by the plaintiffs on the compromise with „ Munson, and declined to hold that the satisfaction of the Munson judgments operated to satisfy the Hall judgments. Ho payment • in any other way is claimed. This question of payment is fully discussed by Mr. Justice YAHH in the opinion delivered by him at special term, and it need not here be further considered. We agree with the special term that the compromise and satisfaction of the Munson judgments did not satisfy the Hall judgments, and that Hall received all he was entitled to when the court applied on the judgments against him the proceeds of the compromise witli Munson. See Whittemore v. Judd L. & S. Oil Co., 124 N. Y. 565 ; 36 St. Rep. 881.

The defendants claim error was committed in receiving in evidence a letter from Munson on the subject of the compromise. The defendants claimed the benefit of the satisfaction on record of the Munson judgments. The plaintiffs had a right to show the circumstances under which it was given and the arrangement in fact made with Munson. The letter was a part of the transaction that resulted in the compromise and satisfaction, and, on that ground, was properly received. The judgment must, we think, be sustained.

All concur.

Judgment affirmed, with costs.

The opinion of Mr. Justice YAHH at special term isas follows :

I have found as a fact that defendant Zell E. Hall, on the 25th. of February, 1892, conveyed his interest in the Doolittle & Hall Block, situate in the city of Watertown, to his mother, Jeanette C. Hall, with the intention of keeping the same from his creditors and securing to himself the beneficial enjoyment thereof, and that she accepted the conveyance for the purpose of co-operating with him, and aiding him in carrying such intention into effect. It is the not unusual case of a man who, apprehending that a large, and, in his view, unjust, claim was about to be enforced against him, endeavored, by conveying to a relative whom he could trust implicitly, to place his property beyond the reach of creditors, and yet to continue to enjoy it himself. This the law does not tolerate, for the courts cannot classify their judgments, or hold that one is more sacred chan another. The effort to avoid the payment of a judgment that is harsh in its effect when enforced, as in the case of one recovered for a penalty or against a surety, is just as fraudulent in the eye of the law as if directed against a claim for groceries, clothing, or borrowed money. The law does not distinguish between'debts by looking at their origin any further than to see that they are valid, but lends its aid to collect all alike from the property of the debtor; and any effort on his part to so dispose of his property as to hinder, delay, or prevent his ■creditors from reaching it is forbidden by statute, and condemned by the common law. The conveyance in question, therefore, although given to avoid the payment of what was regarded as an inequitable liability, must be set aside, unless the judgments upon which this action is founded have been paid, as alleged in the answer.

The judgments in question against Zell R. Hall were recovered in an omnibus action, and are evidenced by the same judgment roll as certain other judgments for different amounts recovered at the same time and by the same plaintiffs-against one Henry S. Munson. Before the commencement of this action, the judgments against Mr. Munson were satisfied by the filing of a satisfaction piece in the usual form, and the claim of payment is founded on the common-law rule that, if two persons are jointly or jointly and severally liable for the same debt, an unconditional release of one releases the other also. Lord v. Tiffany, 98 N. Y. 412; Breslin v. Peck, 38 Hun, 623. The judgments against Mr. Munson were not paid in full, but were compromised at about fifty cents on the dollar. They were founded upon the penal liability imposed by section 15 of the general manufacturing act of 1848, for making a false report as a trustee of an insolvent corporation known as the Clifford Manufacturing Company. Laws 1848, c. 40, § 15 ; Veeder v. Baker, 83 N. Y. 156. The judgments against Mr. Hall wore founded on a liability contractual in its nature, imposed by section 10 of the same act, upon a stockholder holding stock in such a corporation when the whole amount of the capital stock has not bee'n paid in. Corning v. McCullough. 1 N. Y. 47 ; Flash v. Conn, 109 U. S. 371. The measure of damages if not the same under both of said sections, as under section 15 it embraces all the debts of the corporation, while under section 10 only debts to the amount of the stock held by each stockholder can be enforced against him. While payment of all the debts of the corporation would relieve from liability under either section, the debts owing to tfie plaintiffs by said company were not compromised, but only their claims against Mr. Munson for the statutory liability under section 15. Although the existence of a debt against the corporation was necessary in order to make either Mr. Hall or Mr. Munson liable, neither was under the same liability, either in nature or extent, as the other, for one was liable as a stockholder and the other as a director. They were not jointly or severally liable for the same tiling. They could have been sued separately, but if sued jointly, under one section only, there could have been a recovery against one only. As was-said by the court of appeals in Farnsworth v. Wood, 91 N. Y. 308, 314, “ the liability of stockholders under the, act of 1848 is a several individual liability of each stockholder, directly to such of the creditors as have complied with the requisite conditions precedent.” Section 10 makes all the officers of the corporation who knowingly sign a false report liable jointly and severally for all the debts of the company contracted while they are stockholders or officers thereof. As there was no recovery against Mr. Hall under this section, he is not liable jointly and severally with Mr. Munson on the judgment recovered against the latter thereunder. Section 15 makes all the stockholders severally liable to the amount of stock held by each until all the capital is paid in. Mr. Munson was not, while Mr. Hall was, held liable under this section. The liability of each, therefore, was several, personal, and exclusive. Neither'had any legal interest in the liability of the other, and the release of one did not release the other. The release of Mr. Munson did not release Mr. Hall; but, while this is true, it is also true that the amount paid by Mr. Munson to the plaintiffs in order to obtain his discharge must be applied on their respective debts against the •corporation; and the remainder only, with costs, if any, can be •enforced against Mr. Hall." It is the indebtedness of the corporation to the respective plaintiffs that is the measure of liability under the statute, and, as that indebtedness is reduced, the liability is reduced in proportion. The distinction between the cause •of liability and the measure of liability should not be lost sight of. The cause of liability is a violation of the statute, but the measure of liability is the -indebtedness of the corporation, with certain limitations.

There must be judgment for the plaintiffs, upon the basis thus pointed out, and findings and a decree may be prepared accordingly, and, if not agreed upon as to form, they may be settled before me upon a notice of two days.


text:
    Charles E. Webb, App’lt, v. Nellie C. Staves, Impleaded, etc., Resp’t.

      (Supreme Court, Appellate Division, Third Department,

      Filed Feb. 3, 1896.)

    1. Fraudulent conveyances—Action to set aside.
    In an action, in the nature Of a judgment,creditor’s action to reach the property of the judgment debtor, or its proceeds, and have it applied in satisfaction of the judgment creditor’s claim, the judgment creditor can take the same proceedings against personal, that lie can real, property, and it makes no difference whether the conveyance by which the debtor lias disposed, „or attempted to dispose, of his property is void because fraudulently made, or void for any other reason, so long as it is void against the proceeding creditor.

      %. Same—Appropriate relief.
    If the judgment creditor, in such action, fails to ask for the apnropriate relief, is is no reason why he should be denied all relief.
    :S. Equity—Judgment.
    The rule that, when equity has obtained jurisdiction of the parties and the subject-matter of the action, it may adapt the relief to the exigencies of the case, even to the extent of rendering a personal judgment, in order to prevent a failure of justice, applies when the general basis of fact upon which equitable relief is sought has been made out, but for some reason it becomes impractible to grant such relief, or where it would be insufficient.

      Appeal from a judgment in favor of defendant.
    James H. Bain, for app’lt.
   HERRICK, J.

—The facts in this case are undisputed. On the 11th day of April, 1894, the defendant Wilkins executed and delivered to the plaintiff his certain promissory note; dated that day, for $50, payable in eight months after the date thereof, the same being given in part payment of the purchase price of a pop-corn wagon and appurtenances, purchased by the defendant Wilkins from the plaintiff. On the 25th day of April, 1895, the plaintiff recovered judgment, in an action upon such promissory note, for the sum of $71.17, damages and costs; and execution was issued thereon, on the 27th day of April, 1895, and was returned wholly unsatisfied, before the commencement of this action. On the 5th of April, 1894, the defendant Wilkins executed and delivered to one John H. Sanborn a chattel mortgage upon the said pop corn wagon and appurtenances, to secure the sum of $75. Such chattel mortgage was not filed in the town clerk’s office until September 4, 1894, and the mortgaged property remained in the possession of the defendant Wilkins until March 80, 1895. Sanborn died intestate, September 5, 1894, and letters of administration were duly issued to defendant Nellie 0. Staves, on the 8th day of November, 1894. On the 80th day of March, 1895, the defendant Staves took possession of said pop-corn wagon and appurtenances, and claims the same as administratrix, under the chattel mortgage given to Sanborn. It is admitted that the defendant Wilkins, at the time of the commencement of this action, and of the trial thereof, had no other property out of which the plaintiff’s judgment could be collected. It is argued that the value of the pop-corn wagon and appurtenances is the sum of $71.70. The plaintiff commenced this action, setting forth the giving of such note, the obtaining of the judgment thereon, the issue and return of the execution unsatisfied, the execution and delivery of the chattel mortgage, and the nonfiling thereof; and asked judgment against the defendants, declaring the chattel mortgage void and of no effect, and that the defendant Staves be adjudged to pay plaintiff the value of said pop-corn wagon, fixtures and appurtenances, or so much thereof as will be necessary to pay the fall amount of the judgment recovered by the plaintiff against the defendant Wilkins, with interest and costs thereon, together with the cost of this action, and for such other relief as may be just. The case was tried by the court without a jury, the facts being found as herein above stated. Judgment was rendered in favor of the defendant, from which judgment the plaintiff appeals to this court.

That the chattel mortgage in the case was void as against the plaintiff does not seem to have been questioned. The only question that arises is as to whether the plaintiff has taken the proper legal steps to enforce his rights against the property, the possession of which has been taken under a mortgage which, as to the plaintiff, is void. The trial court proceeded upon the theory that it was necessary, to procure the appointment of a receiver before com" mencing the action citing the case of Stephens v. Perrine, 143 N. Y. 476 ; 62 St. Rep. 843. That case only went to the extent of deciding that a receiver can maintain an action of this nature. It did not decide that a receiver must necessarily be appointed, before an action could be commenced to reach the mortgaged property or the proceeds thereof. Judgment creditors’ actions, brought by judgment creditors in person, to set aside conveyances of real estate alleged to have been fraudently made, are quite common. The cases of Kain v. Larkin, 141 N. Y. 144 ; 56 St. Rep. 675 ; Kitchen v. Lowery, 127 N. Y. 53 ; 37 St. Rep. 327 ; Erickson v. Quinn, 47 N. Y. 410, and Haswell v. Lincks, 87 N. Y. 637, are examples of actions of that character. I can seen no distinction in principle between actions brought to recover the possession of real estate where the conveyance thereof is claimed to be void, and actions brought to recover the possession of personal property, or the proceeds thereof, for the same reason. Neither can any distinction be made, upon principle, between cases where the transfer is void because fraudulently made, and those where the transfer is void because the instrument has not been placed on file. In the case of Stephens v. Perrine, supra, in passing upon the point as to whether a receiver in supplementary proceedings could maintain such an action, the court said :

“It has been decided by this court that such a receiver can maintain an action of this nature where the assignment or mortgage is void on the ground that it was executed for the purpose of defrauding creditors, and we think the same principle reaches the case where the mortgage is void because it was not filed and there was no change of possession. We see no distinction between the two cases so far as this question is concerned. The mortgage, as already stated, is equally void in both cases.”

I proceed, then, upon the theory that, in an action in the nature of a judgment creditor’s action to reach the property of the judgment debtor, or its proceeds, and have it applied in satisfaction of the judgment creditor’s claim, the judgment creditor can take the same proceedings against personal property that he can against? real, and that it makes no difference whether the conveyance by which the debtor has disposed, or attempted to dispose, of his property; is void because fraudulently made, or void for any other reason, so long as it is void as against the proceeding creditor. What then area judgment creditor’s remedies in such cases? In the case of Erickson v. Quinn, 15 Abb. Prac. (N. S.) 166, Judge Allen, in speaking for the court of appeals, said:

“The judgment creditors of O’Malley, in pursuing their remedy against lands alleged to have been fraudulently conveyed, had the choice of three proceedings: First, they might have sold' the-premises by execution on the judgment, and left the purchaser, after, his title should become perfect by a deed from the sheriff, to contest the validity of the defendant’s title, in an action of ejectment; or, secondly, they might have issued their execution, and brought their action to remove the fraudulent obstruction, and awaited the result of the action before selling the property; or, thirdly, they had the right, upon the return of the execution unsatisfied, to bring an action in the nature of a creditors’ bill, to have the conveyance to the defendant adjudged fraudulent as against their judgment, and the lands sold by a receiver or other officer of the court, and the proceeds applied to the satisfaction of the judgment, as equitable interests and things in nature of a judgment debtor are reached and applied to the satisfaction of judgments against them.”

- I do not think that, because the plaintiff asked for a money judgment against the defendant, he should have been turned out of court without any relief. The facts proved upon the trial show that he was entitled to resort to the pop-corn wagon and its appurtenances in satisfaction of the judgment obtained by him; and if he failed to ask for the appropriate relief, it was no reason why he should be denied all relief. In Murtha v. Curley, 90 N. Y. 372-377, it appeared that the defendant Doyle was indebted to the plaintiff in the sum of $500, to the defendant Curley the sum of $500, and to one other person the sum of $300. The defendant Doyle was the owner of a large amount of personal property, worth about $3,500, upon which he gave the defendant Curley a mortgage for the nominal amount of $3,100, which mortgage was kept, by renewals or new mortgages, from the year 1872 until the year 1878, at which time the defendant Curley foreclosed the last mortgage given to him, although there was nothing actually due thereon at the time, and converted the proceeds of the property to his own use. In 1878, the plaintiff recovered judgment upon his demand against Doyle, and an execution was issued thereon, and returned unsatisfied, wherepon the plaintiff brought his action, asking that such mortgage be declared fraudulent and void, and that the defendants be compelled to pay him the amount of his judgment, with interest thereon, besides the costs of the action. Upon the trial, it was found that the mortgages were fraudulent and void as against the plainiiff, and were made with the intent to hinder, delay, and defraud him in the collection of his claim, and that, by reason thereof, he suffered damage to the amount of his judgment. Judgment was rendered against tlie defendants for the amount of the judgment, .with interest and costs. Upon an appeal to the court of appeals, the court said :

“ The facts alleged show that the mortgages wore void as to the plaintiff, and the only relief the plaintiff needed was that Curley should pay him out of the money received by him from the debtor’s property, or to the extent of the value of such property taken and converted by him. Hence, there can be no reasonable objection to the judgment prayed for. Even if the prayer for judgment was defective for equitable relief, an answer having been interposed, the plaintiff could have any relief ‘consistent with the case made by the complaint, and embraced within the issue.’ Code, § 1207. Under our present system of practice, a plaintiff is not to be turned out of court, when an answer has been interposed, because he has prayed for too much or too little, or for wrong relief. * * * Under the circumstances of this case, judgment for the recovery of the precise sum of money claimed was'the proper judgment; and the form of the judgment does not stamp this as a legal, rather than equitable, action. A court of equity adapts its relief to the exigencies of the case in hand. It may restrain or compel the defendant; it may appoint.a receiver, or order an accounting; it may compel specific performance, or order the delivery to the plaintiff of specific real or personal property; or it may order a sum of money to be paid to the plaintiff, and give him a personal judgment therefor. * "x" * The plaintiff was a vigilant creditor, and- had priority over other creditors, if there were any. But there appears to have been but one other ■creditor of Doyle, and that one Fitzsimmons, and his claim was apparently barred by the statute of limitations. Besides, the property was sufficient to pay the plaintiff, Fitzsimmons, and Uurley. Under such circumstances, all the relief that the plaintiff needed was to compel Curley to pay him." There was no property to be sold. He had converted it; and had the proceeds. Ho receiver was needed, and there were no accounts to be taken or stated. The judgment ordered was therefore proper.”

The only substantial difference between that case and the case at bar is that in the one case the property has been sold and the defendant had the proceeds, and in this case the defendant Staves has, or bad at the time of the commencement of this action, the-property still in her possession.

In the case of Valentine v. Richardt, 126 N. Y. 272; 37 St. Rep. 12, the plaintiff was an infant and sole heir at law of his mother, Catherine Valentine. During her lifetime, by fraud and undue influence, she had been induced to convey her property, without consideration, to the defendant Richardt. He, in turn, sold it to the defendant Austin. Austin executed a mortgage upon it-to the defendant Lunt. The plaintiff brought an action to set such conveyances and mortgages aside, and the relief demanded was that the conveyances by the plaintiff’s mother to Richardt, and by him to Mrs. Austin, and by Mrs. Austin mortgaged to Mrs. Lunt, be declared void and canceled, “ and for such further or different judgment as maybe just.” Upon the trial, the court found, in effect, that the defendant Richardt had procured the conveyance from the plaintiff’s mother by fraud and undue influence, and without consideration; that the defendant Austin, however. was a bona fide purchaser for value, without notice, and entitled to hold the property as against the plaintiff; and the'4 court, instead of setting aside the conveyance, as prayed for, gave the plaintiff a money judgment against the defendant Richardt, upon the principle that, the deed to the defendant Richard having been procured by fraud and undue influence, the title to the land, as between the plaintiff and his mother, remained in her, and descended to the plaintiff at her death, and that the plaintiff had the right to call upon Richardt to restore such property to him; but that, the defendant Richardt having, by his own act, in conveying the land to a purchaser in good faith, and without notice, prevented the plaintiff from recovering the land, it was just and equitable that he should restore to the plaintiff an equivalent in money, not as damages, bnt as a substitute for the land itself. Upon appeal, the court of appeals affirmed the judgment, holding that the court could render any judgment in the case consistent with the facts stated in the complaint and embraced in the issue, stating that:

“ It is a familiar principle that a court of equity, having obtained jurisdiction of the parties and the subject-matter of an action, may adapt its relief to the exigencies of the case. It may give to the plaintiff a money judgment simply, when that form of relief becomes necessary in order to prevent a failure of justice, and when it is for- any .reason impracticable to grant the specific-relief demanded:”

Where an answer has been served, a trial had, and essential-facts proved and found by the court, plaintiffs are entitled to any relief consistent with the case made by their complaint, and embraced within the issue. Rogers v. N. Y. & Texas Land Co., 134 N. Y. 197-219; 48 St. Rep. 263. In this case an answer was interposed, and upon the trial the court found sufficient facts to show that the plaintiff was entitled to have the property which had been taken applied in extinguishment of his judgment debt. And we think the trial court should have given a judgment that was appropriate for that purpose.

“ The jurisdiction of equity depends upon the position of the plaintiff and the relief to which he is entitled at the time the suit is brought. The measure of the relief is adapted to the situation at the time of the decree.” Van Allen v. N. Y. E. Railroad Co., 144 N. Y. 174-179; 63 St. Rep. 82.

The appointmént of a receiver to take possession of the property, sell it, and apply it in extinguishment of the plaintiff’s-judgment, would be an appropriate remedy-in an action of this kind; I do not say the only remedy, if it appeared at the time of the trial, that the property was still in the defendant’s possession. If it appeared that possession of the property had been parted with, a judgment against such defendant for the amount of the proceeds, or the value of the property to the extent of the plaintiff’s judgment, with interest and costs, would be proper, thus adapting the remedy to the situation of affairs at the time of the trial.

The rule that, when equity has obtained jurisdiction of the parties and the subject-matter of the action, it may adapt the relief to the exigencies of the case, even to the extent of rendering a personal judgment, in order to prevent a failure of justice, applies when the general basis of fact upon which equitable relief was sought has been made out, but for some reason it becomes impracticable to grant such relief, or where it would be insufficient. When facts are made out which brings the case within the general jurisdiction of equity, the court will not allow the case to fall because the specific relief prayed for is no longer practicable, but in such a case, as a substitute for the relief demanded, will award an equivalent in damages, thus ending the controversy, instead of sending the parties to a court of law for that purpose. Dudley v. Congregation, 138 N. Y. 451-459 ; 53 St. Rep. 19. Here, the general basis of fact upon which equitable relief was sought has been made out, and the plaintiff is entitled to some relief at the hands of the court. The essential facts, that to me seem to entitle the plaintiff to some relief, were agreed upon by the parties by stipulation, and found by the trial court, and this court is asked" upon this appeal to render judgment for the plaintiff upon such facts, instead of reversing the judgment and granting a new trial. As have seen, in equity, the measure of relief is adapted to the situation of affairs at the time of the decree. We cannot know what the appropriate remedy is at this time. The defendant may have parted with the property to a bona fide purchaser since the trial, or it may have been destroyed, so that, if a receiver should be appointed by this court, there would be nothing for him to receive. The judgment is therefore reversed, and a new trial granted, so that the plaintiff may be given that relief which shall .appear to the court at that time appropriate, and sufficient to enforce his rights to have the property in question, its proceeds, or value used in extinguishment of his judgment; with costs of this

All concur.


author: WARD, J.

text:
    De Witt C. Hoover, Resp’t, v. Rochester Printing Company, App’lt.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed Feb'ry 7, 1896.)

    1. Motions and orders—Pendency.
    The court should not entertain and dispose of a motion, while another motion for the same purpose, previously made, is still pending undetermined, in the same court.
    S. Same—'Withdrawal.
    The plaintiff cannot countermand or withdraw the former motion without payment of costs, or without the consent of the court.
    Appeal from an order, striking out portions of the answer to the amended complaint,
    John Van Vooris & Son, for app’lt ; Jacob Spahn, for resp’t.
   WARD, J.

—This is an action brought to recover damages for libel alleged to have been published by the defendant (appellant) herein; alleged libel being, in effect, that the plaintiff had been indicted upon the charge of intimidating witnesses. The answer of the defendant first denied each and every allegation of the complaint, and for a second and separate answer and defense, the defendant “repeats the denial hereinbefore contained,” and further alleged a justification of the alleged libel A third answer, by way of mitigation, first repeated all of the denials before contained. It appears, uncontradicted, from the motion papers, that the plaintiff noticed a motion for the 26th of August, at the Monroe special term, to strike out the denials contained in the second and third answers. Defendant appeared, and objected to the motion for the reason that no grounds of motion were stated in the notice of motion. The motion was thereupon submitted to the court, and the court took the papers. This motion is pending, undetermined, without permission to make a new motion for the same relief. Subsequently the plaintiff noticed this motion for the 30th of September, 1895, before the same special term, for the same relief demanded in the former notice of motion, and further stated, in the notice, that the plaintiff thereby withdrew the former motion, noticed for August 26th, on the ground that, by inadvertence, the plaintiff omitted to state the grounds upon which the said motion-was made; stating, as a ground of this latter motion, that the plea of a general denial, mingled with a plea in mitigation or justification, is unauthorized by the Code or the practice of the court in actions for libel. The special term granted this latter motion, and made an order striking out the denials in the said answer, and from that order the appeal herein is taken.

The learned counsel for the appellant presents a single point that the court should not have entertained and disposed of this motion while the other motion for the same purpose was pending in the same court undetermined- The plaintiff could not countermand or withdraw the former motion without payment of costs, or without the consent of the court, neither of which had occurred. We see no escape from this contention. The practice adopted by ( the plaintiff cannot be sanctioned. But for the pendency of this ‘ former motion, the court may have been justified in striking out these denials. It is unnecessary to pass upon that question. The objection urged is fatal, and the order sliould be reversed, with $10 costs and disbursements.

Order reversed, with $10 costs and disbursements, with preju- . dice to the right of plaintiff to make a new motion, upon discontinuing the motion noticed for August special term.

All concur.


author: PER CURIAM.

text:
    In the Matter of the Petition of Benjamin C. Miller to Sell Real Estate of Helen E. Vick for the Payment of Debts.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed Feb’y 7, 1896.)

    Executors—Sale of real estate—Petition.
    Under section 2474 of the Code, a motion to dismiss a proceeding for the sale of real estate for the payment of debts on the ground of insufficient showing of facts in the petition is properly denied, where it appears that no-final order directing such sale has been made.
    Appeal from an order, denying a motion by the heirs of decedent to dismiss the proceeding.
    P. M. French, for app’lt; W. E. Davis, for resp’t.
   PER CURIAM.

— The surrogate’s court has made no final order directing a sale of the decedent’s real estate for the payment of debts. This is an appeal from an order denying a special motion made by the heirs of the decedent to dismiss this proceeding. When the case is heard in surrogate’s court it may be shown that all of the facts which the appellant asserts should, have been alleged in the petition actually exist, and so the case will be brought within section 2474 of the Code of Civil Procedure, and then the surrogate’s court may, if it is deemed proper,, permit the amendment of the petition.

Order affirmed, with §10 costs and disbursements.


text:
    Lillie Bennett, by Guardian, etc., Resp’t, v. Brooklyn Heights Railroad Company, App’lt.

      {Supreme Court, Appellate Division, Second Department,

      Filed Feb. 4, 1896.)

    1. Negligence—Railroad—Child.
    In' an action by a child eight years old, against an electric street railroad company, for injuries occasioned by being" run over by defendant’s car, the question whether plaintiff was sui juris is for the jury.
    2. Same.
    The verdict, in this case, was held, under the facts and circumstances, not to he against the weight of evidence.
    3. Negligence—Evidence.
    In such action, the conduct of the motorman prior to the accident is. proper to be considered by the jury.
    4. Damages—Excessive.
    Where, in an action, by a child eight years old, for personal injuries, if ■ appeals that her face was cut open, resulting in a permanent scar, that she will always be unable to masticate food on one side of her mouth, that her collar bone and four ribs were broken-, and that there was an injury to her pelvis, a verdict for $6,000 was held not to be excessive
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    Morris & Whitehouse, for app’lt ; Coudert Bros., for resp’t.
   PER CURIAM.

—This action is to recover damages for injuries sustained by the plaintiff, a child aged eight years, from being run down by the defendant’s trolley car. We think that the facts bring the action within the case of Stone v. D. D. Railroad Co., 115 N. Y. 104; 23 St. Rep. 551, and that the motion to dismiss the complaint was therefore properly denied. The opinion in that case clearly points out the difference between the care to be taken in crossing a steam railroad and in crossing a street railroad, and the distinction between a case like the present and that passed on in Wendell v. Railroad Co., 91 N. Y. 421. It is also an authority that the question whether the plaintiff was non sui juris or not was properly one for the jury.

The exception (at folio 355) to the court’s refusal to charge was not well taken. The request excluded consideration of the conduct of the motorman prior to the occurrance of the accident. If it was not intended to so limit it, then the question was already covered by the previous charge, and it was unnecessary to repeat it. The exception to the refusal to charge at folio 351 is also without foundation. The request was subject to the same criticism as made on the request heretofore mentioned, and also to the further objection that it excluded consideration of the question whether the plaintiff was non sui juris or not.

We are asked to set aside the verdict on the further grounds that it was against the weight of evidence, and the damages ex-' cessive. The evidence to support the plaintiff’s claim was almost exclusively that of one Emerich, who testified that he was in the track, and in front of the car of the defendant; that the motorman rang the bell for the witness to turn out of the track, but that he failed to turn out until he found a place where the pavement was good; that the motorman, angry at the witnesses’ delay, as the car shot past his wagon, turned towards him and shook his fist, that at this time he ran down the plaintiff. On defen dan d’s part, the motorman testified that no such occurrence took place, and that the witness Emerich, with his wagon, was at the scene of the accident. In this he was corroborated by a policeman riding on the car. Several other witnesses, passengers on the car, testified that they did not witness the occurrence which Emerich relates. Their testimony dois not absolutely deny its occurrence. Emerich seems to be a reputable man, carrying on business as a manufacturer of dumb waiters and elevators in the city of Brooklyn, and gave his address and place of business. If his story is incorrect, his testimony is a piece of deliberate perjury made out of whole cloth. In such a case, it was for the jury, who saw the witnesses and observed their manner and demeanor on the stand, to say which of the witnesses they believed told the truth.

The plaintiff had her cut open, which has resulted in a scar which will permanently disfigure her. Another result of that injury is that she will always be unable to masticate her food on that side of her mouth. Besides that, her collar bone and four ribs were broken, and there was an injury to the pelvis. For such injuries we do not think this verdict can be termed excessive.

The judgment and order denying the motion for a new trial, ■ appealed from, should be affirmed, with costs.