author: BARRETT, J. RUMSEY, J. INGRAHAM, J.

text:
    Florence Gaston Collins, Resp’t, v. James L. Steuart, App’lt.
    (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Executor—Action against.
    i Where a decedent, who was a resident of another state and for whom an executor was appointed therein, had held, as agent for his wife, certain bonds, which he had pledged to a bank in New York and at the same time set aside certain securities of his own to indemnify her in case the bonds were forfeited, a suit will not lie in this state against the executor ¡individually to compel him to apply the securities which he had in his possession in this state, where they were brought into the state by plaintiff, and for the redemption of the bonds, and the appointment of a receiver.
    2. Sahib.
    Such object cannot be accomplished by the appointment of a receiver to take possession of the securities.
    3. Same—Equity—Foreign executors.
    In such case, the courts in this state will not take jurisdiction of an action to compel the executor to apply the securities in redemption,, and enjoin their removal, for purpose of administration, to the state from which they were taken.
    Appeal from a judgment for plaintiff entered on the report of a referee.
    Theodore H. Silkman, for app’lt ; Theron G. Strong, for resp’t.
   BARRETT, J.

—On the 5th of December, 1893, Walter S. Collins died. For about four years prior to his death he and his wife, the present plaintiff, lived at Englewood,. Bergen county, N. J. Mrs. Collins continued to live at Englewood for about five months after her husband’s death, when she came to New York to live. Mr. Collins left a will appointing his wife executrix, and the defendant, Steuart, executor. On the 17th day of January, 1894, this will was admitted to probate by the orphans’ court of Bergen county, N. J. The defendant had previously renounced as executor, and Mrs. Collins was appointed executrix. At the time of Mr, Collins’ death there was a tin box in the house at Englewood which contained certain securities. Mrs. Collins took possession of this tin box, and it was immediately removed by her relative and legal adviser, John W. Loveland, to the latter's office in New York city. This was with her acquiescence. The defendant also advised Mrs. Collins, and she acted upon his advice as well as upon Loveland’s. The tin box has never since been returned to New Jersey. It has been kept in this state, and here it still remains. An examination of the contents of the box was made, upon its removal heve, and three classes of securities were discovered: First, some securities which were in Mrs. Collins’ name; second, some securities which were attached to an instrument signed by Mr. Collins, and dated March 14, 1889; third, general securities in Collins’ name. After Mrs. Collins qualified, she found that her individual claims with regard to these securities were hostile to the estate, and thereupon she requested the defendant, as a personal favor to her, to withdraw his renunciation, qualify as executor, and permit her letters to be canceled. The defendant acceded to this request, and accordingly, upon the 21st day of March, 1894, her letters were revoked, his renunciation was canceled, and letters were issued to him. Thereupon the tin box and its contents were turned over to the defendant by Loveland at his office in this city. Nothing was done thereafter with regard to a settlement of the estate, and on the 18th of October, 1894, this action was commenced. In her original complaint the plaintiff averred that in the year 1884 she was the owner of certain bonds, mortgages, and shares of stock, which her husband took possession of as her agent; that he dealt with this property as his own, used it, intermingled it and its proceeds with his own property; that, with a single exception, its identity was lost; and that it could no longer be found, distinguished, or separated. Upon these averrments she claimed that she was entitled to take so much of her husband’s general property as would “be sufficient to repay the amount • and value of her property thus received by him.” She specified in this complaint the single exception to which reference has been made, namely, that she had traced seven of her bonds to the First National Bank of Staten Island, in this state, where they were pledged by her hiisband on the 14th day of March, 1889, for a loan of $6,000. She averred that the bank still holds these bonds as security for this loan. She also averred that Oil the day when the loan was made her husband set apart and pledged, under an instrument in writing, and delivered to himself, as her agent, certain securities, to secure her from loss in case her seven bonds should be forfeited by the nonpayment of the loan. But she claimed no equity, and asked no specific relief with regard to this trust instrument, or the specific securities therein referred to. She simply asked to be paid out of the estate at large. Upon the 12th day of November, 1894, the defendant interposed an answer to this complaint, admitting, upon information and belief, all its allegations, and submitting to such decree as the court might see proper to make. Five days later the defendant consented to a reference, and upon that consent the action was referred “to hear and, determine the same.” The referee reported that the securities which were found ini Mrs. Collins’ name had been delivered to her. He made no report upon the plaintiff's specific claim to reimbursement out of the estate generally, but confined himself to decreeing the application of Mr. Collins’ entire estate to the redemption of the seven bonds pledged with the Staten Island Bank. He directed that the stocks specifically pledged by the trust instrument of March 14, 1889, be sold first,-add the rest of the estate afterwards, or so much of it as might be necessary to effect the redemption was to remain in the hands of the receiver, subject to the order of the court.

As this report was a complete departure from the equity originally pleaded, the defendant consented that the complaint should be amended by averring the specific equity found by the referee, and by" a prayer that the particular securities “set apart and pledged” by Bollins to secure the plaintiff from loss by reason of his appropriation of the seven bonds, and so much of his estate generally as might be necessary, be sold and the proceeds applied to the redemption of the seven bonds. - The only consideration which we observe for this consent is the stipulation on the plaintiff’s part that the answer theretofore served—namely, the defendant’s confession of the bill — “ be taken and regarded as the defendant’s answer to the complaint as amended.” Upon this consent an order was made upon the 14th day of January, 1895,—the very day when the referee’s report was dated,—amending the complaint accordingly, and on the next day a decree was entered in accordance with the referee’s conclusions. The next step in the cause was upon the 12th day of February, 1895. A stipulation was then entered into between the parties, vacating the judgment permitting the defendant to withdraw his confession and answer anew, and referring any new issues to the original referee. Thereupon the defendant answered anew, denying substantially all the equities of the complaint, and alleging want of jurisdiction of the subject of the action; also, alleging that Collins’ Estate was insufficient to pay its debts, and that none of its debts had as yet been paid; also, setting up, as a defect of parties, that neither these creditors nor Collins children had been brought in. The case was tried before the referee upon these issues, and he again reported in the'plaintiff’s favor. The only difference between the first report and the second is that in .the first the receiver is required, after redeeming the seven bonds, to retain any surplus of property or money subject to the further order of the court, while in the second he is required to deliver such surplus to the defendant. This shows a complete abandonment of -the plaintiff’s original position, and the reduction of her claim to the application of the entire estate, not to repay the value of all the property originally received by her husband, but simply to redeem the seven bonds. We all agree that her original could not have been sustained in any jurisdiction.- We also agree that the referee’s report and the judgment thereon cannot be "sustained, so far as they direct the application of the estate generally to the redemption of the seven bonds. There is. not a particle of evidence that the securities found in the tin box were purchased with the plaintiff’s m >neys, or the proceeds of her property. Nor can such an inference be drawn from the undisputed facts. At the time when Mr. Collins received the plaintiff’s property from her mother, he had his own separate estate. That amounted, at the time of the marriage, to between sixty and seventy thousand dollars. He was in active business down to the time of his death. It would indeed be an extraordinary inference that securities in such a man’s possession in the year 1893 were purchased with the proceeds of any particular property received by him in the year 1884. The only question which we deemed important is whether the judgment should be sustained so far as it directs the application of the specific securities attached to what, for convenience, may be styled the “trust instrument” of March 14, 1889. The solution of that question depends, not merely upon the merit of the decision below, but upon further question whether the court should have exercised jurisdiction at all in the premises.

The case for the plaintiff, upon which the propriety of exercising the jurisdiction is pressed,- rests mainly upon the following facts: That she is now a resident of this state; that the defendant is within this state, having his,office and place of business here; and that the certificates of stock upon which she claims a lien are also within this state, and in the defendant’s possession here. . Upon these facts the learned referee finds that this action is properly brought against the defendant individually, for the relief claimed in the complaint, “notwithstanding the fact that the defendant has his residence in the state of New Jersey,” and had been appointed Collins’ executor by the Bergen county court, in that state, and notwithstanding the further fact that he claims to possess and hold, as such executor, the certificates of stock upon which the plaintiff’s lien is predicated. This latter claim is founded upon the undoubted fact that he does possess and hold these certificates as such executor. I-n one aspect of the case the question whether, upon these, facts, the courts of this state should assume jurisdiction over the foreign executor, to compel him to do his decedent’s equity with regard to the specific property in question is not, upon the record, properly before the court. The plaintiff has taken pains not to make the defendant a party as ex-ecetor. She makes no charge whatever against him in that capacity. Nor does she ask any relief against him as executor. She does not' aver that he has been requested, in that or any other capacity, to apply the securities in accordance with' his decedent's trust duty, or that he has refused. All that she avers against him is that he intends to do his executorial duty by returning the certificates of stock to the state where they were at the time of Collins’ death, and from which they were, with her .acquiesence, improperly removed by her attorney, relative, and friend, Loveland. The only suggestion in the complaint of even implied hostility to her claim on the defendant’s part is that he intends to administer the securities, in the regular way, through the orphans’ court of Bergen county, N. J. Tims, the strange equity of the plaintiff’s complaint — treated as a complaint against the defendant executorially—is his intention to rectify the original wrong whereby the res got into our jurisdiction, and his further intention, if so permitted by our courts, to administer the res in precisely the same manner as though the wrong had never been committed. These observations, however, are a deviation from the primary question, and that is as to the. character in which the defendant is sued.

We agree that the manner in which a defendant is named in the title of "an action is not conclusive as to its nature. The rule is that, if the averments in the complaint show that the cause of action devolves upon or exists against a party in his representative capacity, the action will have a representative character, despite the fact that the party sues or is sued -individually. Beers v. Shannon, 73 N. Y. 292 ; Patterson v. Copeland, 52 How. Prac. 560. Here, however, although the fapt of the defendant’s appointment as executor is incidentally stated in the complaint, and also, the fact that he claims to hold and possess the securities as executor, yet nothing is averred suggestive of a cause of action against him in that capacity. The ease, in fact, proceeded against him, throughout, as an individual. The referee’s report treats him as such, and grants the plaintiff relief, not as against the executor, but as against the individual, “ notwithstanding the fact that he has been appointed executor.” The judgment is equally precise, and in its first clause decrees that, “ upon the facts established by the evidence, the action is properly brought against the defendant, individually, in this court, for the relief claimed in the complaint.”

The first question, then is, can this action be maintained against the.defendant individually? It will be observed that, as an individual, Mr. Steuart is a mere, depositary of the securities. In that capacity he occupies no different position from a safe-deposit company. As such, no judgment can properly be rendered against him, except to deliver the property to whoever is legally entitled to it. He cannot be required to apply it equitably, in hostility to the legal title. That can only be required of the person having the legal title, or' his legal representatives. No duty to apply the property in accordance with a trust obligation is imposed upon a mere custodian—a person who happens to have the physical possession. The latter’s sole duty is to restore the property to the owner, or person having the legal title. When that duty is performed, equity can require the latter to do his contract or trust duty, or, if he be deceased, may require his legal representatives to perform such contract or trust duty. But it is apparent that where, for instance, a complaint sets out a trust duty on the part of A., who has the legel title to certain securities, and then avers that such securities are in the hands of one B., who is not the legal representative of A., no cause of action for the enforcement of the trust is alleged against B.; that is, in a complaint against B. alone, B. owes no duty to the cestui que trust. He stands in no privity, so far as the trust duty is concerned. with either trustee or cestui que trust. His sole duty is to hold the securities, and return them, upon demand, to the person from whom he received them. Yet a judgment is sought in this action, the effect of which will be the fulfillment of A.’s original trust obligation—an obligation to which the defendant, individually, is an entire stranger, and the duties of which are not, in his individual capacity, imposed upon him, directly or indirectly. This idea seems to have passed through the minds of'the plaint-ill’s advisers, and they have sought to obviate the difficulty by requiring a receiver to perform the trust duty. But this is not an action in rem. One would think, from the plaintiff’s attitude, that these securities were likened to a ship that could be libeled, and the trust duty enforced against the res. Mot so. If Mr. Collins were alive, the action would necessarily be against him, to compel the application of the securities in accordance with his trust duty. The party whose duty it is to execute the trust must be before the court, and the court must be in a position to render its judgment against him personally, to the effect that he perform such trust duty. In case of contumacy the court may well appoint a receiver to execute the judgment, but the receiver then becomes the right hand of the court, to effect the purposes which it had lawfully decreed against the trustee. Here the only charge made against the defendant is that he has the certificates of stock in his possession in this state, and nothing whatever is decreed against him, except that he deliver these certificates to a receiver. The reason for this short cut is obvious. The court could not make a decree against the defendant, requiring him to apply the securities in his hands, because he was under no duty to so apply them. His sole duty was to restore the securities to Collins’ representatives, and they alone could be required to apply such securities in execution of the specific lieu which the plaintiff claims. But these representatives, viewing the case as treated in the judgment and throughout, were not parties, and no decree could be made against them. The defendant, as an individual, certainly could not cut off their rights by failing to plead nonjoinder. He might cut off his own right to have such parties brought in as were necessary for his individual protection. But his failure to do so will surely not authorize the court to seize the property, and rob the estate of even a hearing with regard to it. Here, then, the court has made the extraordinary decree that its officer take the property out of the defendant’s possession, and do with it what the court has not required the defendant to do, and what it could not require him to do. The only judgment which the court could lawfully have rendered against this defendant, individually, was a judgment that he do with the securities that which he, as their naked possessor, was legally bound to do,—that, and nothing more. Against any other or different judgment he, as an individual, may justly complain. And, whether he complain or not, the court would be a party to the plunder of the unrepresented estate by sustaining such a monstrous judgment as the present. Treating the defendant as an individual, therefore, the court is practically acting ex parte. ^Finding the securities in the defendant’s hands, it takes them out of his hands, and itself takes possession of them. Then, without hearing any one who has a legal status to dispute the plaintiff’s claim, the court adjudicates that such claim is indisputable, that she has a specific lien upon the securities, that that lien is superior to the rights of the general creditors represented by the executor, and that it (thé court, not the defendant) will apply them for the plaintiff’s benefit.

If the action, however, should be treated as against the estate, still the court ought not here to exercise jurisdiction. The only property which the plaintiff had in this state at the time of her husband’s death was the seven bonds pledged to the Staten Inland Bank. She had a right to redeem these bonds upon payment of the sum for which they were held as security. She may also have had the right to require her husband’s executor to apply the specific securities set apart by the trust instrument, so far as they would go, to the payment of this sum. Doubtless, in a proper action against the Staten Island Bank for,the redemption of those seven bonds, the executor might have been made a party defendant, and required,, if the facts and the law justified it, to thus apply the specific securities in question. The court would have properly exercised jurisdiction over him, as an incident to its original jurisdiction against the Staten Island Bank. It would have done so whether he lived here or elsewhere; whether the specific securities to be applied were here or elsewhere. It would simply lay hold of him, if found here, and require him to aid in the redemption, as far as lay in his power, and as far as he might be equitable bound to so aid. But this is not such an action, and. the court should not exercise the jurisdiction independently. As an independent action, it stands upon the same footing as all actions in equity against foreign executors. The claim of a specific lien is nothing more or less than a claim against the estate to have specific property in the executor’s hands adjudged to-be subject to that lien. The rule with regard to the exercise of jurisdiction in equity over foreign executors is quite well settled, although its application has frequently been lacking in precision.

Apparently the first instance in which equity has asserted jurisdiction over a foreign representative is McNamara v. Dwyer, 7 Paige, 239, decided in 1838. The defendant was an administrator appointed in Ireland, had possessed himself of the personality of the estate, had brought it here, and was converting it to his own use. It was held that equity had power to make him account at the instance of a next of kin, without the necessity of taking out letters here. Chancellor Walworth decided that a suitor was not necessarily, and under all circumstances, confined to the'original forum. He said, “ Indeed, to suppose such was the law would lead to the conclusion that cases must frequently arise in which there would be a total failure of justice.” The law of the original forum was, however, held to apply both as to the distribution and liability generally. Brown v. Brown, 1 Barb. Ch. 189, was decided seven years after McNamara v. Dwyer, and by the same chancellor It was brought against Massachusetts executors by a residuary legatee who sought to make the defendants account for their administration of the estate, and obtain a decree for the payment of the surplus found to exist to himself and others entitled A demurrer to the bill was sustained by Vice Chancellor McCoun, who stated that the exceptional facts which justified tiie -exercise of jurisdiction in McNamara v. Dwyer did not exist. He said:

“ The complainant, in taking his share, must be left, at all events, to the operation of the lex loci, as to his rights; and, in my opinion, he must be left to pursue his remedy according to the lex fori, unless, indeed, he could show (which he has not done) that, by some act of the defendants in removing their persons or property from that jurisdiction, any remedy which he might undertake to pursue there would be fruitless.”

. In affii-ming this decree the chancellor put his decision upon the ground that the vice chancellor befoi'e whom the bill was filed had no jurisdiction; but he takes occasion to intimate, in the strongest manner, that the case is so different from McNamara v. Dwyer that the suit would lie at all. Referring to that case, he says:

“It is. sufficient to say that where this court interferes in special cases of that sort, or a similar character," it proceeds upon the principles that wherever there is a right there ought to be a remedy, either in this or some other tribunal.”

In other words, the court only interferes to prevent failure of justice.

Later cases—and they are numerous—rest primarily upon McNamara v. Dwyer. The. general rule resulting from a thoughtful consideration of all the cases is fairly stated by Mi\ Redfield in his work on Surrogates (5th Ed. p. 413), as follows:

“ They cannot be. prosecuted in a purely"legal action, but they are liable to an action in equity, under certain circumstances, and upon proper allegations, to prevent waste of property bought within the jurisdiction, and secure its application to the payment of the debts of the testator according to the law of the state whence they derived their authority. Their responsibility extends to assets shown to have been in their possession within this state, no matter where they have been received. And their character as foreign executors or administators'furnishes no objection to an action against them in a court of equity of this state in their character as trustees, e. g. where the alleged liability is not that of the decedent or his estate, but is predicated upon their own wi'ongful use or misapplication of trust funds which have come to their hands, or on a breach of contract made by them in their representative character.”

It may be that the rule is somewhat understated by the learned writer. A failure of j ustice might result from other misconduct on the part of the representative than misappropriation of assets,— notably, from a wrongful refusal to submit himself to the jurisdiction of the courts of the state who granted his letters. But, without misconductx>£ some sort, it is difficult, if not impossible, to see how a failure of justice could result. The rule is undoubtedly broad enough to cover any case where a failure of justice will result from the refusal to exercise jurisdiction. But this failure of justice must mean failure of the justice of the appropriate forum. It is the latter principle which underlies the rule, and which is the foundation of the jurisdiction asserted by the cases. The policy of the law is that estates of decedents shall be settled, as far as possible, in one forum, not in a number. It is only where facts appear showing that the original forum will be unable to perform the duty incumbent ppon it that the courts of this state will intervene. They do so to assist, not to embarrass, the original forum, and the facts must be adduced bringing the exception into play. That such a case is not made out by the proof of the presence of the representative here, with possession merely of the certificates representing the shares of stock, is shown in the most convincing manner by the present action. These certificates were not brought here by the defendant, but by Loveland, her friend and adviser. They were brought her even before the plaintiff became executrix of the estate, and while she was still living in New Jersey. The talk of exercising jurisdiction because they were “found” here is, under the circumstances, ludicrous. The plaintiff alleges in her complaint “that said defendant intends to take said property, as being the property of said Walter S. Collins, deceased, from the state of New York to the state of New Jersey, for the purpose of admininistration,” and has enjoined him from so doing. The invocation of the doctrine discussed to such a state of facts is grotesque. The court becomes the wrongdoer, prevents the defendant from doing his duty, and then assumes jurisdiction because of the wrong which it, and not the defendant, has committed. It is impossible for a failure of justice to result when there is not a hint against the plaintiff’s management of the assets, except that he is about to return them to the jurisdiction which has the right to them, for distribution according to law. If the plaintiff has a specfic lien upon the securities in question, she can enforce it in equity in New Jersey quite as readily as here. If the certificates had remained where they were at the time of Mr. Collins’ death, the plaintiff would have had to file her bill in the court of chancery of New Jersey to enforce her specific lien. There can be no failure of justice so long as she is not deprived o'f the right which she had at the time when her agent, without the slightest authority, committed the wrong of taking the certifi cates out of the original jurisdiction. She cannot deprive the court of chancery of New Jersey of its proper jurisdiction in the premises, nor can she successfully invoke our aid in that respect by wrongfully bringing the certificates into our jurisdiction, and by subsequently coming to live here. The sooner the wrong is remedied, and the certificates put back where the)' were at the time of Mr. Collins’ death, the better for the orderly and decent administration of justice, as well as for the orderly and convenient administration of decedent’s estates.

Further than this, the facts show that defendant has colluded with "the plaintiff throughout. The plaintiff testified that she acted originally upon his advice as well as upon that of Loveland. The defendant himself testified that he withdrew his renunciation, and became executor, at Mrs. Collins’ -request, and as a personal favor to her. This was after he learned that Mrs. Collins would probably have to assume a position hostile to the estate, and bring suit. When the suit was brought he confessed the bill, as we have seen, and submitted to such judgment as the court should see proper to make. The defendant was called as a witness for the plaintiff upon the original hearing before the referee, but offered no evidence in his own behalf. After the entry of judgment he seems to have come to a realizing sense of what he had done, for the stipulation upon which the first decree was vacated recites that defendant had “raised” the question whether he was protected by said proceedings and judgment, and desired a further opportunity to plead and submit further proofs and arguments.” One of the conditions of the stipulation was significant, namely, that defendant should not remove the assets from the jurisdiction. The defendant’s offices were adjacent to Loveland’s (who acted for plaintiff in the probate of the will), and they had often talked over the matter in a friendly way. It was in Loveland’s office that the assets were turned over to the defendant upon his appointment as executor. Between March, 1894, when he received the assets, and January, 1895. when he was first enjoined from removing them, he allowed them to remain in Hew York, and made no effort to settle up the estate in Hew Jersey. It is hard to avoid the conclusion that, as far as in him lay, he was endeavoring to keep the estate where the plaintiff might have ready access to it, and the distributing court might not, and that the first indication of a change of purpose was due to an awakening fear that such a course might, despite-the judgment of a court of this state, subject him to serious liability. It would be a just ground of reproach against the courts of this state if they upheld a jurisdiction acquired as this has been. The courts of Hew Jersey would be justified in disregarding such a proceeding as this on the ground of want of jurisdiction, or in enjoining the prosecution of the action, as was done in a similar case. Hutton v. Hutton, 40 N. J. Eq. 461.

These considerations are applicable to any view which may be taken of the trust instrument. The legal title to the shares was not thereby given to Mrs. Collins, but, at the very outside, an equitable right to their application upon the happening of the contingency specified therein. The instrument assigns the shares to her “to secure her from loss in case the [seven] bonds shall be forfeited by the nonpayment” of Collins’s note given to the Staten Island Bank. And «"authorizes “the proper persons to make the transfer of said shares on the happening of the contingency” therein stated. There is no allegation that the contingency has happened, or that the bonds have been forfeited. The shares have never been transferred to the.plaintiff by the “proper persons, or at all. On the contrary, some of them have actually been trans-furred since Collins’ death to the defendant, as executor, and a new certificate issued to him. The rest remain in Collins’ nanm on the books of the various corporations. . Some of the certificates have disappeared entirely, e. g. the five shares of the Swan Lamp Company. Some are presumably shares in foreign corporations, and all of the certificates which were found attached to the instrument are dated months—some of them years—after the,date of the instrument itself. When they were actually attached to the instrument by Collins, it is, of course, impossible to say. The instrument was never delivered. The securities were never delivered. Collins' retained both the instrument and the certificates. The situs of the property was the domicile of the owner.. That situs was not changed by the removal of the pieces of paper which represented the property,—especially by their unauthorized removal. The delivery of the certificates to the plaintiff would not aid her. She could not have them transferred to her name without the aid of a court of equity in an action to which the executor, as well as the corporations, would be a necessary party. Even a purchaser from the receiver would be compelled to resort to a court of equity to secure the same relief, and in his action the executor, as well as the corporation, would be a necessary partjn It is apparent, therefore, that, however the trust instrument may be viewed;—whatever rights, legal or equitable, were by it conferred upon the plaintiff.—the estate must be heard before the shares can be transferred to her, or applied for her benefit. She comes into court here, claiming no legal right, but planting herself specifically on her equitable right to have the securities applied to the redemption of her bonds. The judgment proceeded upon that claim, and is limited to its recognition. It is that view of the case, and the judgment founded upon it, which we are called upon to review. Our conclusion is that the estate is entitled to a .day in court before it can be deprived of the shares in question ; that that day in court should be had in the jurisdiction where Collins lived and died, where his property was in fact, and where it had its legal situs, and where the will was probated and letters testamentary were issued. We are asked to retain jurisdiction, not to prevent a failure of justice, but to prevent the due and normal administration of justice in the proper forum.

The judgment should be reversed, and as, in the view which we have taken, no recovery could be had upon a new trial, the complaint should be dismissed; but, because of. the defendant’s course, without costs of the appeal, or of the court below.

VAN BRUNT, P. J., and WILLIAMS, J., concur.

RUMSEY, J.

(dissenting). —While conceding, as we must, that the judgment, in its present shape, cannot stand, I regret that I cannot agree with the majority of the court in the final disposition which is hr be made of this case. Pdo not think that the charges of fraud or collusion are fairly to be sustained by the evidence. It may properly be inferred, as I think, that this property was brought into this state merely for the purposes of convenience, and that when that was done Mrs. Collins had no other intention than to subject herself to the jurisdiction of the courts of New Jersey for the adjudication of her rights. She says—and there seems to be no reason to doubt the truth of what she says—that she renounced as executor, and that Steuart was appointed an l qualified, because of the inconvenience which would result if she, as executrix,, attempted to pursue her claim aga-inst the estala. When Steuart was appointed tiie Securities were within this stale, certainly by no act of his. It cannot be said that because he was willing that this claim, which is manifestly just should be adjudicated upon by the courts of this state, he was in collusion with plaintiff, or willing to defraud the estate of which he was executor. Disregarding the charges of fraud and collusion, it seems to me the case is a very simple one. The objection to maintaining the action arises from the fact that the estate, as such, is not represented. Without discussing the question whether it is necessary that the estate should be represented, it seems to me that that objection is not an inseparable one, for which the complaint should be dismissed. No objection that there was a defect of parties was taken by the defendant. So far as he is concerned, therefore, he has waived it. Code Civ. Proc. §§ 33, 498, 499. It can only ho taken advantage of when it is apparent that a complete adjudication as t'o the rights of the parties require that other persons should be brought in. The law says that when that appears the court must require other parties to be brought in, if that can be done. Code Civ. Proc. §452. That it can be done in this case, I lime no doubt, It is quite true that there is now in this state an executor of this estate appointed by our own courts, But the plaintiff, who is a creditor of the estate, and a large quantity of the assets of the estate, are within our jurisdiction. It is clearly within the power of the courts, upon the petition of a creditor, to appoint an ancillary administrator, who shall take possession of these assets, and hold them, subject to the jurisdiction of this court, until the claims of the domestic creditors shall be adjudicated. Dawes v. Head, 3 Pick. 127, 145 ; Harvey v. Richards, 1 Mason, 381, Fed. Cas. No. 6,184 ; Story, Confl. Laws, 715 et seq. This mode of proceeding is recognized as proper for the protection of our own citizens, and is frequently pursued. I think an opportunity should be given in this case for the plaintiff to do it. The principle laid down by the majority of the court is fárreaching, and, in my judgment, may be productive of great inconvenience. It cannot be limited merely becauseof the difficulty of applying it. It must control whether the property be in New Jersey or in India; wherever a civilized nation has courts for the adjudication of the rights of property. Within the principle which that sought to establish in this case, if the executor has been appointed by the courts of New Zealand, we would have no discretion, but must dismiss the complaint, and remit our own citizens to an application to the courts of that distant country to obtain those rights which the judicial machinery of this state is perfectly competent to give. I think that no such rule should be adopted, unless it is absolutely necessary, and it does not seem to me. that that necessity exists, in view of the facts of this case. For that reason I must dissent from so much of the judgment as dismisses the complaint.

INGRAHAM, J.

(dissenting). —I cannot concur in the disposition of this case by my associates. ' The opinion of the court states that the first question, “ then, is, can this action be maintained against the defendant individually? ” It seems to me that the first and only question in the case is, can this action be maintained to foreclose the "lien of the plaintiff o.n the securities mentioned in the transfer or pledge made by Collins, whereby he substituted these securities in place of the bonds of the plaintiff that he had misappropriated by pledging them as security for 1ns note? Assuming that by that transfer, or agreement to substitute, a lien was created in favor of the plaintiff in the securities, it seems to me clear that she has' the right to resort to a court of equity to foreclose that lien, and require the application of these securities to the redemption of her property pledged by Collins. The rule is, as stated in 18 Am. & Eng. Enc. Law, p. 667:

“Outside of agreement by the parties, and the operation of statute law, the right of the pledgee to foreclose tlie title of the pledgor is enforced by filing a bill in chancery, and having a judicial sale under a regular decree in foreclosure, or by selling without judicial process, upon giving reasonable notice to redeem.” f

And in Briggs v. Olliver, 68 N. Y. 339, Andrews, J., says:

“ In case of a pledge, the right of a pledgee to come into equity to obtain a decree for the sale of the pledge exists, although a valid sale may be made without judicial action or decree.”

I do not understand it-to be questioned but that plaintiff had such a cause of action, and that such a cause of action is transitory, not dependent upon the residence of- the parties. The plaintiff is a resident of this state, and the stock upon which the lien exists is within the jurisdiction of the court. The plaintiff having a plain right to commence an action to foreclose her lien upon the property, she makes the person in whose custody the property is, who claims to own it as a foreign executor, a party-defendant. The owner of the property, who created the lien, is dead. He cannot be made a party to the action. His title to the property has vested in the defendant, his executor, under letters issued by a foreign state, and this title to the property is set forth in the complaint; and defendant’s appointment as the foreign executor, and the claim under which he holds the property, are alleged." The pleadings themselves clearly show the title he claims, and under which he threatens to remove the property from the state, and to compel the plaintiff to resort to a foreign tribunal to enforce her right in the property over which she has a lien.

It seems to me that it is entirely immaterial whether or not the defendant is described in the summons as the executor of Collins. The fact that he is in possession of the property, that he claims'to own it and the right to dispose of it, and that such claim arises because of the grant of letters of administration in a foreign state, to me is a plain statement of his title to the property and his interest therein. The cause of action having existed in favor of the plaintiff; the plaintiff having made a party to the action all persons interested, or claiming an interest, in the property ; the plaintiff being a resident of this state ; the property being within this state; the defendant being engaged in business here, and having been served with process in the state,—I can see no reason why the court should refuse to entertain the action, and to give the plaintiff the relief to which it is conceded she is entitled. The opinion of the court holds that she is bound 'to go to the state in which this defendant was appointed executor, and obtain there the relief to which she is entitled. Upon what principle, however, can a resident of this state be refused relief because a foreign state has appointed an executor who has an interest in the property sought to be affected by the decree ? The fact that this foreign state adjoins our state is not material. The court would be bound to follow the same course if the decedent had been a resident of Australia, Africa, or Asia ; and thus a citizen and resident of this state would be compelled to resort to a court of any foreign country of which the deceased happened to be a resident, to enforce a lien on securities in his favor created in this state, and when the property subjected to this lien is located here, and the court has jurisdiction over the person of the individual in whom the legal title is vested. Such a rule, I believe, has never before been enforced in any court. The general rule that letters testamentary or of administration give no authority to sue or be sued in a jurisdiction other than that in which the letters were granted is not disputed. The right, however, of such a foreign executor or trustee to resort to the courts of another jurisdiction, in which property belonging to the estate of which he is executor or trustee is located, to recover possession of such property, is well settled ; and in such an action he does not sue in his representative capacity, but in his own right, as the legal owner of the property. It might be necessary for him, upon the trial of such an action, to prove the will, and put it in evidence, for the purpose of showing his title, but it would not have 'been necessary for him to have the will admitted to probate in this state. See Toronto General Trust Co. v. Chicago, B. & Q. R. Co., 123 N. Y. 45; 33 St. Rep. 78. His right to sue depends upon his being the legal owner of the property, the title to which has vested in him by virtue of the decree of the foreign court granting the administration. Now, what is the position here ? The plaintiff has a lien upon certain specific property in this state; said property being held by the defendant, who has the legal title in consequence of the grant of letters testamentary by the courts of New Jersey. The plaintiff, having an equitable lien upon such property, comes into the courts of this state, making the defendant, the legal owner of the property, a party to the action, and asking for the enforcement of such lien. If this property had been in the possession of the plaintiff, the defendant could have sued her to recover possession, upon the principle stated in the case above cited, as the legal owner of the property, not as executor of the estate. The position being reversed, and the defendant, as such legal owner, being in possession of the property, and claiming to own it, with power to maintain, as such owner, an action in the courts of this state to recover its possession, why is he not the proper and only necessary party in an action to enforce a lien upon such specific property and have it applied to the satisfaction of such a lien ? The distinction between this cause of action and the cause of action by which a claim against the estate generally’is sought to be enforced seems to me clear; and while I agree with my associates that an action against the estate, to recover a claim against it, cannot be maintained here, in the absence of ancillary letters issued in this state, I think the cause of action that asked for the enforcement of this equitable lien upon this specific property was properly brought, and that the defendant was a proper party defendant individually; and certainly, as there is no objection in the answer to the nonjoinder of the representative of the estate, the objection that such representative is not a party to the action lias been waived. The result of the principle adopted by the majority of the court is. this: We will allow a nonresident executor to come into the courts of this state, and recover possession of property, the legal title to which was vested in the testator, without requiring him'to receive authority to act from the courts of this state. He having thus obtained such" possession as owner we refuse to allow one of our own citizens to enforce a lien which she has upon such property, sending her to the foreign jurisdiction under which the the executor was appointed. In other words the title which the executor acquired by the issue of letters testamentary is sufficient to enable him to sue in the courts of this state for the recovery of the property which had belonged to his testator, but is not sufficient to subject him to an action by which it is sought to recover from him such property. From this I dissent.

I am of the opinion, therefore, that the judgment should be modified by directing that the property -mentioned in the third clause of the judgment, which is described in the instrument of March 14, 1888, be sold, and the proceeds thereof applied towards the payment of Collins’ note to the bank, and that the balance of the property described in the complaint be delivered to the defendant.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Frederick N. Blanc, Resp’t, v. Tennessee Coal, Iron and Railroad Company, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Judgment—Jurisdiction.
    Attachment suits partake of the nature of suits in rem and are distinctly such when they proceed without jurisdiction having been acquired of the person of the debtor.

      2. Same.
    The laws of a state, for the purpose of attachment proceedings, may fix the situs of the debt at the domicile of the person owing such debt, but no court can acquire jurisdiction in attachment proceedings unless the res was either actually or constructively within the jurisdiction of the court issuing- the attachment.
    3. Same.
    Jurisdiction is not acquired in an attachment suit, where the owner of the debt being a resident of another state than that in» which the suit is brought and no service has been had. on him, and the debtor is a corporation of a third stale, though such corporation has officers within 'the state in which the suit is brought, on whom service is had.
    Motion for a new trial on exceptions, order to be heard in the first instance at the general term.
    The action was brought to recover the purchase price of goods sold and delivered by the Litofuge Manufacturing Company, a New York corporation, to the defendant, a Tennessee corporation between December 1,1891, and February 27, 1863, at an agreed price in the aggregate of $693. The defense was, in substance, that July 5, 1892, the defendant was indebted to the Litofuge Company, for a portion of the goods sold and delivered, in the sum of $551.25, and the Litofuge Company had then made no assignment thereof; that on that day the suit was begun in the state of Alabama by the plaintiff’s wife against the Litofuge Company and this defendant, to recover $46,511.01 upon a judgment recovered by her against the Litofuge Company, February 4, 1891, in the state of New York; and that on that day a writ of attachment was issued in such Alabama suit, and levied on such indebtedness by this defendant to the Litofuge Company, and thereafter this defendant, by the decree in that suit, was compelled to and did pay to the plaintiff in such Alabama suit the amount of such indebtedness,—$551.25. Upon the trial of this action, it was admitted that the goods were sold and delivered as alleged, the delivery being in the state of Alabama; and that in or about the month of July, 1892, the portion of the claim that had then accrued was assigned by the Litofuge Company to P. A. J. Blanc; and that after the whole claim had accrued, and before this action was commenced, April 11, 1892, it was assigned by such former assignee and the Litofuge Company to this plaintiff; and that the defendant appeared in this action April 12,1892. The defendant put in evidence a record of the Alabama suit, from which it appeared, among other things, that the suit was begun and the attachment therein was levied upon this claim July 5, 1892; that the papers were served upon this defendant, the Tennessee corporation, which appeared therein and answered August 3, 1892; that judgment therein was rendered April 15, 1893, and was satisfied May 17, 1893, by the defendant herein paying the amount of the debt attached,—$551.52. Defendant also gave evidence that its principle office was in Nashville, and that it also had offices and works in Alabama; that the principal business of the company was conducted in Alabama; where a number of its offices were, and where its principal mining and manufacturing business was carried on; that it also had a railroad and extensive* mines and blast furnaces in the state of Alabama. It also appeared that^the plaintiff in the Alabama suit was a resident of the state of New York until the month of August, 1892. It was conceded that the plaintiff in the this action would testify, if he were present at the trial, that he was in 1892 and 1893 president and treasurer of the Litofuge Company, and one Elliott was its secretary, and they were the only officers of the company ; and that they never personally or officially received any papers in the Alabama suit, or any notice thereof, nor saw any notice in the newspapers, nor had any knowledges information that the Alabama action had been brought. Plaintiff offered to prove substantially these facts by Elliott himself, but this evidence was objected to by the defendant, and was excluded by the court, under plaintiff’s objection. The court directed a verdict for the balance of the claim after deducting the $551.25 attached and recovered in the Alabama suit, and ordered that the exceptions be heard in the first instance in this court. •
    A. J. Dittenhoefer and David Gerber, for pl’ff ; J. M. Graham and Frank H. Pratt, for def’t.
   WILLIAMS, J.

—It is claimed by the plaintiff in this action that no jurisdiction was acquired by the Alabama court in the attachment suit which renders the judgment in that suit binding upon this plaintiff, and deprives him of the right to recover the $551.25 which was paid by the defendant pursuant to that judgment. This claim is based mainly upon two grounds: First, that no jurisdiction was acquired of the debt attached; second, that no jurisdiction was acquired of the debtor in the attachment suit, the Litofuge Company, which was in form made a defendant in that suit. It must be assumed that, at the time the Alabama suit was commenced and the debt was attached, the debt was owned by the Litofuge Company. There is no proof that, prior to such suit and attachment, the debt had been assigned to the first assignee thereof, P. A. J. Blanc. The owner and the party owing the debt were therefore in form made parties to that suit. The judgment shows that service was made upon the person owing the debt, the Tennessee Company, and it appeared and answered, and thus submitted itself to the jurisdiction of that court. The record does not, however, show that any service was made upon the owner of the debt, the Litofuge Company. The plaintiff offered evidence tending to show affirmatively that no such service was made, but this evidence was excluded as immaterial. It seems to us, therefore, that we must assume no service of any kind was made upon the Litofuge Company. If, therefore, jurisdiction was obtained in that suit at all, so as to bind the Litofuge Company, it must be upon the theory that the court acquired jurisdiction of the debt, so as to bind the owner thereof. Attachment suits partake of the nature of suits in rem, and are distinctly such when they proceed without jurisdiction having been acquired of the person of the debtor in the attachment suit. The debtor in the attachment suit in the Alabama case was the Litofuge Company. The distinction. must be kept in mind here that while, as to the debt sought to be attached, the Litofuge Company was the creditor and the Tennessee Company was the debtor, yet, so far as the attachment suit was concerned, the plaintiff in that suit was the creditor and the Litofuge Company was the debtor, and that the property sought to be attached was the debt owing to the attachment debtor by the Tennessee Company.

In Douglass v. Phoenix Insurance Co., 138 N. Y. 209 ; 52 St. Rep. 164, Douglass had a claim against the insurance company for a loss by fire. Douglass was a resident of the state of New York, and the insurance company was a domestic corporation, organized, under the laws of the state of New York, and the claim accrued in the state of New York. Douglass brought an action upon the claim against the insurance company in the state"of New York. The insurance company set up, in bar of a recovery in that action, that, in the state of Massachusetts, an action had been, commenced by the creditors of. Douglass against him and the insurance company, and in such action Douglass’ claim bad been attached, and was held "for the payment of his debt, and that there was service in Massachusetts upon the agent of the insurance company. It was not claimed that there was personal service upon Douglass in the state of Massachusetts. There was service upon the insurance company by serving upon its agent in the state of Massachusetts; and there was service by publication upon Douglass pursuant to the laws of Massachusetts. Douglass did not appear or answer in that action. On demurrer to the answer of the insurance company in the action in this state, the court held that the Massachusetts action and the attachment proceeding were not a bar to the Douglass action in this state, saying, among other things, that while property might be subjected to seizure and sale for the debts of the owner of the property by means of appropriate judicial proceedings, provided due process of law should precede such appropriation, and while a state might authorize the seizure and sale of property within its jurisdiction for the pajunent of the debts of a nonresident, yet no state could subject property out of its jurisdiction to its laws ; that it was a fundamental rule that in attachment proceedings the res must be within the jurisdiction of the court issuing the process, in order to confer jurisdiction ; and that while, as to movables, their seieure under attachment would show that their actual situs was within the jurisdiction, yet in respect to intangible interests, such as debts, the general rule was that the situs was at the domicile of the person to whom the debt was owing. The court further said that the attachment laws of our own and of other states recognized the right of attachment creditors of nonresident attachment debtors to •collect a debt owing to such attachment debtors by a person within the jurisdiction where the attachment issued, and that to this extent the principle had been sanctioned that the laws of a state, for the purpose of attachment proceedings, might fix the situs of the debt at the domicile of the person owing such debt, but that no court could acquire jurisdiction in attachment proceedings unless the res was either actually or constructively within the jurisdiction of the court issuing the attachment. The court then held that the domicile of the insurance company owing the debt in that case was not in Massachusetts, but in New York state, saying that the rule was that a domestic corporation at all times had its exclusive residence and domicile in the jurisdiction of its origin, and that it could not be garnished in another jurisdiction for debts owing by it to persons residing in another jurisdiction, so as to make the attachment effectual against persons owing the debts, in the absence of the jurisdiction over the persons of the owners of the debts.

In Plimpton v. Bigelow, 98 N. Y. 592, the plaintiffs were residents of Massachusetts, and the defendant was a resident of Pennsylvania. The action was brought in the state of New York, upon promissory notes, and an attachment was issued. The sheriff undertook to levy the attachment upon 439 shares of stock in a Pennsylvania corporation. The court vacated the levy, holding that shares of stock in a foreign corporation belonging to a nonresident defendant could not be attached in this state; that the res was not within this state; and, although it appeared that the corporation had offices and did business in this state, yet the court said:

“We regard the principle to be too firmly settled by repeated adjudications of the federal 'and state courts to admit of further controversy, that a corporation has its domicile and residence alone within the bounds of the sovereignty which created it, and that it is incapable of passing personally beyond that jurisdiction.”

We do not see that it is necessary to go beyond the authority of these two cases to determine the right of the parties in this action. No jurisdiction was acquired of the person of the Litofuge Company, the owner of the indebtedness sought to be attached. The only claim that can be made is that jurisdiction was acquired of the indebtedness itself, so as to enable plaintiff in that suit to attach and hold the indebtedness as being the property of the Litofuge Company. There was certainly as much jurisdiction of the person of Douglass in the Massachusetts case as of the Litofuge Company in the Alabama case. There was no personal service or appearance in either case. There was, at most, only such service by publication as the laws of these states provided for in actions partaking of the nature of suits in rem. Under the authorities cited above, attachment could only be levied upon this indebtedness if it was within the jurisdiction of the Alabama court, if its situs was in Alabama. The situs of the indebtedness could only be at the domicile of the Litofuge Company, in thé state of New York, or that of this defendant, in Tennessee. The domicile of the defendant was not in Alabama. Although it had offices and did business there, its domicile could only be in Tennessee, the sovereignty which created the corporation.

Other questions are raised by the plaintiff, as to the validity of the Alabama judgment, and the effect to be given to it in this state; but, if we are right in the suggestions already made, it is unnecessary to-go further to determine that the verdict ordered by the trial court in this case was erroneous.

The exceptions of the plaintiff should therefore be sustained, and the motion for a new trial should be granted, with costs to the appellant to abide event.

All concur.


author: BARRETT. J.

text:
    Hannah Springer, App’lt, v. Robert E. Westcott, as President, etc., Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed February 6, 1896.)

    1. Express companies—Trunk—Presumption.
    Where, on Sept. 14, 1889, the plaintiff took the afternoon train upon the New York Central Railroad from Troy to New York, at the same time checked her trunk to New York and delivered it in good order to the railroad company and, upon her way, gave her check to defendant’s agent, with instructions to deliver the trunk at an indicated address, took the usual receipt therefor, arrived at New York after eight on the same evening, and heard nothing further from her trunk until Sept. 17, 1889, when it was delivered to her, soiled, broken and empty, the presumption is that the trunk continued in good condition while it remained in the possession of the railroad company.
    3. Same.
    The burden of proof is upon the express fcompany to show how it came to deliver the trunk in its damaged and valueless condition.
    8. Same.
    An express company, when it receives a passenger’s check, should not deliver it up to the railroad company without first getting the baggage.
    4. Same.
    A traveler, after the delivery to him of his trunk in a damaged condition by the express company, is not required to go back over the entire route, and prove that the railroad company had not, but that the express company had, robbed him.
    8. Same.
    In case there was an outside robbery, the burden is upon the express company to show that such robbery happened prior to the receipt of the trunk.
    Appeal from a judgment entered on a verdict directed for defendant.
    B. F. Einstein, for app’lt ; Austen G. Fox, for resp’t.
   BARRETT. J.

—Upon Saturday, the 14th of September, 1889, the plaintiff took the afternoon train upon the New York Central Railroad from Trov to this citju At the same time she checked her trunk to New York, and delivered it in good order to the railroad company. She arrived here after eight o’clock on the same evening. In the train, upon her way here, she gave her check to the defendant’s agent, with instructions to deliver the trunk at an indicated address, and took the usual receipt therefor. She heard nothing fruther from the trunk until the following Tuesday, when it was delivered to her, soild, broken, and empty. It had upon it at this time the defendant’s usual label. Upon these facts the plaintiff rested. She thus made out a prima facie case. The defendant properly looked upon it in the same light, for he made no motion to dismiss the complaint. The presumption was that the trunk continued in good condition while it remained in the possession of the railroad company. Smith v. Railroad Co., 43 Barb. 228, 229, affirmed 41 N. Y. 620, aud cited with approval; Canfield v. Railroad Co., 75 N. Y. 148. The burden was upon the defendant of showing how he came to deliver the trunk in its damaged and valueless condition.. His claim is that he did not receive the trunk from the railroad company upon the arrival of the train ; that he saw nothing of it until the following Monday evening or Tuesday morning, when it was brought to the railroad company’s baggage room by the driver of another express company; that it was then in its damaged and valueless condition; and that thereupon he delivered it in that condition. The defendant’s evidence was by no means conclusive upon these heads. He did not show when he delivered the check to the railroad company. If he delivered it upon Saturday night, the presumption was that.he thereupon obtained possession of the trunk in good order. If he then gave the check to the company, he should at least have, shown that, notwithstanding that fact, he did not actually receive the trunk. In that case he should have also shown how he came to give up the check without receiving the trunk; for certainly the defendant must — as he does — admit that when he receives a passenger's check he does not deliver it up to the railroad company without first getting the baggage. Without that admission, the exclusion of the question put to the defendant’s messenger tending to prove the latter fact was clearly error. In the absence, therefore, of any evidence as to when the check was delivered to the company, it must be assumed that it was delivered, and the trunk thereupon received, in the ordinary course of business, namely, upon the arrival of the plaintiff’s train, upon Saturday evening, or at least" upon the arrival of the train following. What transpired upon Monday night or Tuesday morning is also left in doubt. The driver of Dodd’s express was not called as a witness, nor was the person who actually received the trunk from him. The defendant’s agent, who was examined, left it uncertain whether he testified of his own knowledge or from hearsay. He says that he saw the driver of Dodd’s express, and saw the trunk; and that when he first saw the trunk upon Tuesday morning it had the defendant’s express stamp on it. Npon the other hand, he said that he was not present when the trunk was received, and that its delivery “ was reported ” to him. When the trunk was actually received is also in doubt. The agent testified at one time that he saw it on Monday night (the 16.th) for the first time. “That,” he added, “ was the time that the trunk was brought there by Dodd’s express.” At another time he testified that he was not present when the trunk was received on the morning of the 17th (Tuesday). The fact is, there was no legal evidence that the trunk was stolen, or that it was brought back to the railroad depot by Dodd’s express,’ or by any one.

The defendant also relies upon certain documentary evidence tending to show, as he contends, that the trunk was missing upon the night when it should have arrived, and also upon subsequent d iys. The evidence consisted of what are called waybills, upon which it was the duty of the defendant’s agent to put a blue star opposite the description of any piece of baggage which was missing. This agent placed a blue star opposite the plaintiff’s name, and the description of her baggage, upon these waybills. He testified that this meant that the particular piece of baggage was “ short.” Even this respect his testimony was not entirely clear, for he also stated that the star “is put there to show there is some trouble in regard to the piece of baggage. It is either short, or not delivered, or something of that kind." But, even if it meant “short,” and nothing else, he testified that the blue mark was made without any personal search. He told many confusing stories on this head, claiming that he made a search either upon Saturday night or Sunday; but after a close cross-examination he in terms retracted all that he had said in that regard, and admitted that, so far as his recollection served him, the first time he made personal search for the trunk was upon Monday morning (the 16th). We do not think that under these circumstances the marks upon the waybills can have the conclusive effe'ct claimed for them by the defendant. They really do not substantially alter the situation. The defendant had the plaintiff’s check, and could only secure the trunk upon the surrender of this check to the railroad company. He did secure possession of the trunk, presumably upon the surrender of the check; and it was for him to show when that surrender occurred. He having secured possession of the trunk, as evidenced by its delivery to the plaintiff, the jury could properly have inferred, in the absence of evidence to the contrary, that such possession was secured in the ordinary course of business. It was not for the plaintiff to account for the delay in the delivery of the trunk, nor for the condition in which it was when so delivered. The presumption that its originally good condition continued while it was in the possession of the railroad company was intensified by its exceptionally bad condition when delivered by the defendant. Trunks may be opened and rifled on a baggage car, but they are not readily covered with mud and filth there. The jury might well have found upon all the testimony, under appropriate instructions as to the presumptions, that the trunk was received by the defendant in the regular course of business in the same condition in which it was when checked at Troy, and that after this receipt it was, without apparent reason or evidential explanation, delivered to the plaintiff in its damaged and valueless condition. We cannot conceive upon what principle or view of the evidence the case was withdrawn from the jury. The plaintiff was undoubtedly bound to prove delivery of the trunk to the defendant in its original condition. But she did so prima facie when she proved that, after securing her check for the purpose of obtaining possession of the trunk from the railroad company, such possession was obtained, as evidenced by the delivery to her. As the presumption was that the railroad company delivered the trunk to the defendant in the same condition in which it was when checked, the burden was upon the defendant of rebutting that presumption by competent and1 satisfactory proof. It would be an extraordinary rule which would require a traveler, after the delivery to him, under such circumstances, of his trunk in a damaged state, to go back over the entire route, and prove that the railroad company had not robbed him, and that the express company had. If there was an outside robbery, surely the burden was upon the defendant to show that the robbery happened prior to his receipt of the trunk. It is impossible to say that the defendant here so clearly established the latter fact, or so conclusively rebutted the presumptions arising from his delivery of the trunk after the receipt of the plaintiff’s check, as to warrant the withdrawal of the case from the jury.

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

All concur.


author: LAWRENCE, J.

text:
    Donald B. Toucey, as Trustee, Pl’ff, v. Edward H. Schell et al., as Executors, etc., Def’ts.

      (Supreme Court, New York Special Term,

      Filed December, 1895.)

    1. Pleadings—Complaint—Demurrer.
    The objection that there is a defect of parties plaintiff or defendant, where it appears upon the face of the complaint, must be taken by demurrer.
    2. Parties—Bond. 1
    Where a bond is several and not joint, or joint and several, a separate action can be maintained against each surety on his separate liability, without joining the other sureties as parties defendant.
    3. Same—Construction.
    Where a several bond, which binds the principal in the penal sum of $170,000, and the sureties severally in penal sums aggregating the same amount, conditioned that the principal should pay over all moneys which came into his hands as trustee, the recovery against a surety is not limited to a proportional amount of the principal of the trust fund, or of the trustee’s default, but to the penal sum for which he binds himself.
    4. Same—Contribution.
    In such case, where there are several distinct bonds, with several and distinct penalties, contribution between the sureties is in proportion to the penalties of their respective bonds, and a surety has a'right of action against the others for contribution. So held, as to the executors of a surety on a trustee’s bond where the payments were made by him to the beneficiary after she and the surety knew of the trustee’s default, and were made and received in discharge pro tanto of the surety’s liability.
    Action by Donald B. Toucey, trustee, against Edward H. Schell and others, executors of Edward Schell, deceased, on a bond.
    O. P. Buel, for pl’ff; Evarts, Choate & Beaman (Joseph H. Choate and William V. Rowe, of counsel), for deft’s.
   LAWRENCE, J.

—The testator, in his lifetime, together with John A. Foley, Daniel B. Allen, Arthur M. Foley, and Elizabeth Foley, executed a several bond, by which he and the other persons became severally bound to Louise P. W. Foley (wife of John A. Foley), Charles E. Heartt, and Harold Heartt, infant children of said Louise P. W. Foley, and unto whomsoever else it may concern, the said John A. Foley in the penal sum of $170,000, the said Daniel P. Allen in the penal sum of $100,000, the said Edward Schell in the penal sum of $30,000, and the said Arthur M. Foley in the penal sum of $10,000, an'd the said Elizabeth Foley in the sum of $30,000. The bond is dated May 29, 1880, and recites that the said John A. Foley is about to be appointed trustee to execute the unexecuted trusts created by the will of Charles S. Heartt, deceased. The condition of the bond is that the said John A. Foley shall in all respects faithfully execute said trust, and shall duly and faithfully care for and pay over all sums of money and securities which may come to his hands as such trustee, and shall duly account for and with respect to said trust and all, said sums of money and securities whenever thereunto duly required. It is stated that at the time of the execution of this bond the value of the trust estate was about $85,000, and it will be observed that the penalty of the bond was exactly in double that amount. John A. Foley accepted the trust, and was thereafter found to have converted the whole of the principal of the trust estate to his own use prior to the 1st day of January, 1884, the principal then amounting to the sum of $86,063, together with the income of said trust estate, amounting to $32,273.62; making a total defalcation of $118,336.62. He was thereupon, by order of this court dated April 2,1894, removed, and the plaintiff was substituted as the trustee in his place and stead. The action is brought by the plaintiff, as such trustee, to recover from the executors of the will of Edward Schell the full amount of the penal sum of $30,000, with interest thereon from the commencement of this action.

The defendants, in their answer, allege that Daniel B. Allen and Arthur M Foley and the legal representatives of Elizabeth Foley, who is now deceased, who were the cosureties with Mr. Schell, should have been made parties defendant in this action. They further allege, as a separate and distinct defense, that when the said John A. Foley became trustee of said trust the capital of the trust estate amounted to about $85,000, but did not exceed that sum, and that it was understood and agreed by and between said Louise P. W. Foley and said John A. Foley and the sureties upon said bond that the said Daniel B. Allen, Edward Schell, Arthur M. Foley, and Elizabeth Foley should become sureties to the beneficiaries of the trust to the amount of the capital of the trust estate, and should be severally bound as follows : The said Daniel B. Allen in the sum of $50,000, the said Arthur M. Foley in the sum of $5,000, the said Elizabeth Foley in the sum of $15,000, and the said Edward Schell in the sum of $15,000, amounting in the aggregate to the value of said trust estate, or $85,000; that, as was the custom in such cases, said bond was drawn in the penal sum of double the amount to be secured by said sureties, respectively, and that the said Edward Schell, deceased, was thus made liable under said bond in the penal sum of $30,000, to secure that portion of the capital of said trust estate for which he had become surety, to wit, fifteen-eighty-fifths of said capital of said trust es-es late, or $15,000 ; and that the limit of the liability of Edward Schell, deceased, and of these defendants, upon said bond, is that proportion of the total liability of all the sureties on said bond, not to exceed in any event the said penal sum of $30,000 ; and that the actual liability of said Edward Schell, deceased, and of these defendants, if any, is now much less than said sum of $30,000, The defendants also set up as a separate and distinct defense, and by way of counterclaim, that after it had become known to Louise P. W. Foley, the beneficiary of the trust mentioned in the complaint, and the saici Edward Schell, deceased, that said John A. Foley had disposed of said trust property, whereby a liability upon said bond had been incurred,'said Edward Schell, deceased, in his lifetime, at the request of the said Louise P. W. Eoley, paid over to her semi-annually for several years the sum of $750, it being the understanding between them that such payments were made and received in discharge and satisfaction, so far they went, of any liability of said Edward Schell, deceased, upon said bond; that said payments amount in the aggregate to the sum of $7,496.15, which sum was received and applied by Louise P. W. Eoley in lieu of so much of the net income of the trust estate secured to. her under said trust.

I think that the point that the other sureties are not made parties defendant cannot be sustained. The objection that there is a defect of parties plaintiff or defendant, where it appears upon the face of the complaint, as in this case (if such defect exists), must, under section 488 of the Code of Civil Procedure, be taken bv demurrer. Besides as the bond is several, and not joint, or joint and several, I think that a seprrate action can be maintained against each surety on his separate liability, without joining the other sureties as parties defendant. See Code Civ. Proc. § 454; 1 Rum. Prac. 123; Field v. Van Cott, 5 Daly, 308.

As to the.second defense, to wit, that the defendant’s testator and tire other sureties, under an agreement between them and Mr. and Mrs. Foley, were to become sureties to the beneficiary to the extent only of one half of the expressed penalties in the bond, it is to be observed that on the trial no evidence was offered to prove any such agreement. A resort must be had to the bond for the purpose of ascertaining whether, upon a fair interpretation and construction thereof, such an agreement can be implied. A pe-' rusal of the bond satisfies me that no such implication can arise. The sureties did not'limit their liability to the principal of the estate, nor to the sum of $85,000, but each surety limited his liability to the obligees of the bond to the sum therein stated, and in the case of the defendant’s testator to the sum of $30,000. “A penalty,” in the language of Chief Justice Marshall, in Tayloe v. Sandiford, 7 Wheat. 17, “is to cover the damages which the party in whose favor the stipulation is made may have sustained from the breach of contract by the opposite party.’’ In case, therefore, the aggregate default or damage equals or exceeds the penalty fixed in the bond, the obligor is liable in the amount of the penalty expressed in the bond.

rl'h§ argument which is advanced by the defendants’ counsel, that under the pecubar phraseology of this bond the defendants would not have a right of action against the other sureties on the bond for contribution, I do not think is sound. See the leading Case of Deering v. Earle of Winchelsea, 2 Bos. & P. 270, which holds that if A. B. & C. become bound as sureties for D. in three separate bonds, and any one of them be compelled to pay the whole debt of the principal, the two others are compellable to contribute in proportion to the penalties of their respective bonds. In that case there were three several bonds, each in the penalty of £4,000. The principal became indebted to the crown, and there was a deficiency after his estate had been applied to the liquidation of the debt. The whole of this deficiency was collected from the plaintiff, who sued the sureties upon the other two bonds, asking contribution, and the court held .that the sureties in the other bonds were liable to him See, also the same case in 1 White & T. Lead. Cas. Eq. 115, 120, and cases cited in note. Armitage v. Pulver, 37 N. Y. 494, also holds that where there are several distinct bonds, with several and distinct penalties, contribution between the sureties is in proportion to thé penalties of their respective bonds. I am, however, of the opinion that under the third defense in the defendants’ answer they are entitled to be credited upon the express liability of $30,000 with the sum of $7,496.15, the amount paid by Mr. Schell to Mrs. Foley, the existing beneficiary of the trust. The liability of Mr. Schell was limited by the express terms of the bond to $30,000, and under the provisions of the Code of Civil Procedure his representatives are entitled to set up that payment as an equitable defense to this action.

The order made by this court upon the removal of Foley as trustee, respecting the division of the moneys which may come into the hands of the substituted trustee as between Mrs. Folely and her children, cannot effect the parties to this action, for the reason that they were not parties to and were not heard in that proceeding.

To recapitulate, I am of the opinion that under the terms of the bond Mr. Schell’s representatives are liable in the sum of $30,000, and from that sum must be deducted the sum of $7,496.15, paid by him in his lifetime to Louise P. W. Foley, before the appointment of the present plaintiff as trustee, leaving a balance of $22,-503.85, upon which the plaintiff’s are entitled to interest from the 2d day of April, 1894, the date of the order removing the said Foley as trustee.

Ordered accordingly.


author: INGRAHAM, J.

text:
    William Welsh, App’lt, v. Johh Murray et al., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

      1. Keg-liqeítce—Proof.
    To entitle the plaintiff to recovery in an action for personal injuries, where there is no contractual relation between the parties, it is nec'i ssary to allege and prove that the defendant was negligent in some duty that he owed to the plaintiff.
    2. Same—Res ipsa loquitur.
    Where, in an action for personal injuries, it appears that defendant was building a sewer in a street and used in such work a movable derrick, with a boom, and plaintiff was employed by a street railway company to keep its tracks clear, and, while attempting to move the boom from out the way of an approaching car, was injured by the falling of the derrick, the mere fact that the derrick fell is not sufficient, under the doctrine of res ipsa loquitur, to show that defendant was negligent so as to render him liable.
    3. Same.
    Such rule is applicable where an express duty exists to maintain a structure in such a condition that persons lawfully using a public street or highway shall not be injured.

      4. Same.
    The testimony of a witness as the condition of the wires of the derrick by which it was held up, when examined by him some time after the injury and after its removal from the place in which it fell, is inadmissible.
    Motion for a new trial on exceptions, ordered to be heard in the first instance at general term.
    L. J. Morrison, for pl’ff; Charles O. Nadal, for def’ts.
   INGRAHAM, J.

—We do not think there is any evidence upon which the jury could have found that the defendants were negligent. Plaintiff seems to have been employed by the Third Avenue Eailroad Company to keep the track of the company clear, and if a car was coming down, to watch and hold on to the boom of a derrick being used by the defendants, or one of them, in the' construction of a sewer on Third avenue, and see that it did not catch a car and break it. This boom was used to take stuff out of the sewer, and come across and dump the stuff between the two tracks. This is the plaintiff’s account of his employment. He Was on this duty from November, 1890, to J une, 1891, when in some way he was injured. The following is his account of the injurey:

“On June 4th, 1891, I remember I was hit on the head first, and then 1 can’t tell anything else. When I came to myself, I don’t know whether I was on the track or in a hospital.”

On cross-examination he testified :

“I was shoving the boom around when the derrick fell on me; was pushing it out of the way of the car that was coming down the grade. 1 was shoving the boom around, and it came down. I was handling the derrick when it came down. I am sure my shoving the boom did not help the rope to break. I. shoved it rttany times before, and it never fell.”

Gfreenwald, another witness, sworn for plaintiff, testified that on June 4, 1891, he went up to this place, and saw the mast of the derrick lying on the track, and Welsh w_as lying there injured. He said he did not know how it fell; was not there when it happened. This.witness further testified that he did not know much about the construction of derricks, but that this derrick was held in place by four wire ropes; that the ropes that held the derrick up were lying down with the derrick; that, “ when the derrick was lying down, the ropes were lying on the ground too.” The witness further testified that he had sent Welsh up to this place, and gave him instructions to look out for the work, but did not give him instructions to stand up close to the derrick.

There was no contractual relation between the defendants and this plaintiff. The defendants were constructing a sewer under a contract made with the city of New York, and were thus rightfully in the street, the plaintiff being employed by the railroad company to see that the track was kept clear, and to warm an approaching car if the track was obstructed by the work; and to entitle the plaintiff to recover in this action, it was necessary to ' allege and prove that the defendants were in some way negligent in some duty that they owed to the plaintiff. To plaintiff not being in the defendants’ employ, there was no duty to provide the plaintiff with proper tools and appliances with which to do work thar plaintiff was employed to do. The only evidence that we have that there was any negligence is that the plaintiff, while pushing the boom of the derrick, was struck by something, and that, after the injury, the derrick was down upon the street. We .are not told what it was that struck the plaintiff, whether the plaintiff was injured inconsequence of the boom’s falling or the derrick falling, or what it was that struck him, but the simple fact is that the plaintiff was struck by something, and that, after that, the derrick was down in the street.

We do not think that this is a case in which the maxim, “Res ipsa loquitur,” was applicable. That rule has been applied in cases where an express duty exists to maintain a structure in such a condition that persons lawfully using a public street or highway shall not be injured. This is stated by the presiding justice in the case of Morris v. Strobel & Wilken Co., 81 Hun, 3; 62 St. Rep. 572, as follows:

“The principle stated was that whenever it is a defendant's duty to use reasonable care to keep a bridge or other structure or premises in a proper condition as respects persons passing'along the highway, and these are out of condition, and an accident happens, it is incumbent upon him to show that he used that reasonable care and diligence which he was bound to use, and that the absence of that care may fairly be presumed from the fact that there was the defect from which the accident had arisen.”

It is clear that this case does not come within this principle. The defendants here were using a derrick to construct a sewer under a contract with the city of New York. The plaintiff was not using the street as a highway, but was watching the very work that the defendants were engaged in doing. The derrick in question was not a permanent structure erected upon or adjoining the street, but a structure of a temporary nature; its use requiring that it should be constantly removed, and applied in a different position as the work progressed. And the fact that such an appliance, in some unexplained way, struck the plaintiff, is no evidence that there was any negligence on the part of the defendants in placing jhe derrick, or using it as it was used. The mere fact that Murray had told the witness to shove the boom around, and to give a hand U help the man tha* was pulling the tack rope, does not change the relation between the plaintiff and the defendants. It was at most a mere licence to the plaintiff to assist the defendants’ tnen clearing the track; and it is not alleged that Murray told the plaintiff to shove this boom around at the time tiiat he was injured. It seems that at the time a car was coming, and the plaintiff was shoving the boom around, to push it out of the way of the car. He thus voluntarily placed himself in a position under the derrick; and there being no evidence that the derrick was improperly used, or that the act happened because of any negligent act of the defendants, there was no evidence to justify the jury in finding that the defendants were negligent.

The exclusion by the court of the testimony of the witness dynes upon cross-examination was not error. The witness did not examine the derrick until in the afternoon of the day that the plaintiff was injured, after the derrick had been moved from the position in which it fell; and the question as to what he then found out, or as to whether he then observed the ropes of the derrick, was entirely immaterial.

We think the complaint was properly dismissed. The exceptions should be overruled, and judgment directed for defendants, with costs.

All concur.


text:
    Robert H. A. Adams v. Eliza J. Arkenburgh.
    Sup. Ct., App. D., 1 D.,
    March 13, 1896.
   No opinion. Judgment affirmed with costs, on opinion in Allen v. Arkenburgh.


text:
    American Surety Co., Resp’t, v. Moses R. Crow, App’lt.
    Sup. Ct., App. D., 1 D.,
    April 24, 1896.
   No opinion. Order affirmed, with §10 costs and disbursements.


author: PER CURIAM.

text:
    Max Bambrrger, App’lt, v. Manhattan Ry. Co., Resp’t.
    Sup. Ct., App. Div., 1 D.,
    April 17, 1896.
    W. W. Badger, for app’lt; Davies, Short & Townsend, for resp’t.
   PER CURIAM.

—The facts in this case are not in all respects the same as they were in the Otten Case, lately decided by this court (37 N. Y. Supp. 982) ; but the principle upon which the reversal in the latter case proceeded is applicable to these facts. The variations are not sufficiently important to affect the result. The judgment should therefore be reversed, and a new trial granted, with costs to the appellant to abide the event.


text:
    Bank of the Metropolis v. Eberhard Faber.
    Sup. Ct., App. D., 1 D.,
    March 6, 1896.
   No opinion. Motion granted.


text:
    Bank of the Metropolis v. Eberhard Faber. Holmes Booth & Hayden v. Same. Leonard et al. v. Same.
    Sup. Ct., App. D., 1 D.,
    April 10, 1896.
   No opinion. Motion granted.


text:
    George S. Bentley, Resp’t, v. Brooklyn El. Ry. Co., App’lt.
    Sup. Ct., App. D., 2 D.,
    May 8, 1896.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Henry Boedicker et al., v. Westchester Fire Ins. Co.
    Sup. Ct., App. D., 1 D.,
    April 24, 1896.
   No opinion. Motion denied, on payment of $10 costs. Motion may be renewed at May term.


text:
    Honora Bolster, App’lt, v. Mayor, etc., of City of New York, Resp’t.
    Sup. Ct., App. D., 1 D.,
    April 24, 1896.
    J. B. Hands, for app’lt ; T. Connoly, for resp’t.
   PER CURIAM.

—This case is within the principle of Foley v. Mayor, etc., 1 App. Div. 586; 37 N. Y. Supp. 465, and should be affirmed on the authority of that case. In that case, as in this, the plaintiff had been examined under the authority of section 123 of the consolidation act; but the parol notice given at the time of that examination was not thought to be sufficient notice of the intention to sue, to permit a recovery. The same rule must he applied here. Judgment affirmed, with costs.


text:
    In re Brook Ave.
    Sup. Ct., App. D., 1 D.,
    March 13, 1896.
   No opinion. Motion denied.


text:
    John V. Brush, App’lt, v. Long Island R. Co., Resp’t.
    Sup. Ct., App. D., 2D.,
    April 28, 1896.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    James Burbridge, Resp’t, v. William H. Kilgannon et al., App’lts.
    N. Y. C. C.,
    January 28, 1896.
   No opinion. Motion for reargument denied.


text:
    Isabella M. Burnon, Resp’t, v. D. G. Burton Co., App’lt (twenty-two cases).
    Sup.Ct., App. D., 2 D.,
    April 28, 1896.
   No opinion. Order modified by reducing the amount specified in the orderto the sum of $945.45. So modified, the order is affirmed, with costs. Alt concur.


text:
    Sarah Agnes Butcher, Resp’t, v. Atlantic Ave. R. Co., App’lt.
    Sup. Ct., App. D., 2 D.,
    April 21, 1896.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Charles L. Camman, Jr. v. John B. Dewsnap.
    Sup. Ct., App. D., 1 D.,
    March 6, 1896.
   No opinion. Motion granted, with $10 costs.


text:
    In re George W. McCann.
    Sup. Ct., App. D., 2 D.,
    April 21, 1896.
   No opinion. Motion granted, and order signed.


text:
    William C. Chambers Resp’t, v. James H. Lancaster et al., App’lts.
    Sup. Ct., App. D., 2 D.,
    April 21, 1896.
   No opinion. Motion granted, and order resettled, and filed with the clerk..


text:
    Henrietta Church, Resp’t, v. Thomas H. Slade et al., App’lts.
    Sup. Ct., App. D., 3 D.,
    April 14, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    Catherine Collins, Resp’t, v. Mart Callaghan, App’lt.
    Sup. Ct., App. D., 2 D.,
    April 7, 1895.
   No opinion. Final judgment, so far as appealed from, and interlocutory - judgment, affirmed, with costs. All concur, except CULLEN, J., not sitting.


text:
    Samuel H. Comstock, Resp’t, v. William H. Foose, App’lt.
    Sup. Ct., App. D., 2 D.,
    May 8, 1896.
   No opinion. Judgment affirmed, with costs. All concur, except CULLEN,. J., not sitting.


text:
    Ellen M. B. Connoly, Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct., App. D., 1 D.,
    March 20, 1896.
    A. O. Townsend, for app’lts ; H. A. Forster, for resp’t.
   No opinion. Judgment modified by reducing the fee damage to $3,750 and/ the rental damage to $375 a year,- and, as so modified, affirmed, without costs.


text:
    John J. E. Conroy, App’lt, v. Eugene F. C. Conroy et al., Resp’ts.
    Sup. Ct., App. D., 2 D.,
    May 8, 1896.

   No opinion. Order affirmed, with $10 costs and disbursements. All concur..


text:
    Robert B. Corey v. Electric Const. Co.
    Sup. Ct., App. D., 1 D.,
    March 20, 1896.
   No opinion. Motion denied.


author: ADAMS, J.

text:
    Kittle Crosby, Resp’t, v. New York Cent. & H. R. R. Co., App’lt.
    Sup. Ct., App. D., 4 D.,
    April, 1896.
    Hiscock & Doheny, for app’lt ; Ceylon H. Lewis, for resp’t.
   ADAMS, J.

—This case appears to have been twice tried. Upon tiie first-trial a nonsuit was directed, which was set aside by the general term of the-Fourth department, and a new trial ordered. Upon the second trial, the case was submitted to the jury, and resulted in a verdict for the plaintiff. The only question to which our attention has been directed upon this appeal relates to the contributory negligence of the plaintiff’s intestate. We are unable to discover that the evidence upon the second trial varies in any appreciable degree-from that which was offered upon the former trial, so far as this question is-concerned ; nor does the appellant’s counsel make any such contention upon the argument. In view, therefore, of the decision of the general term, it cannot be said that any error was committed by the learned trial justice in submitting this question to the jury. Judgment and order appealed from affirmed^ with costs, upon the motion of Hardin, P. J., delivered at the general term,, and reported in 88 Hun, 196 ; 34 N. Y. Supp. 714.


text:
    Anthony Croveno, Resp’t, v. Atlantic Ave. R. Co. of Brooklyn, App’lt.
    Sup. Ct., App, D., 2 D,
    May 8, 1896.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Annie E. Crumbie, Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct., App. D., 1 D.,
    March 20, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Catherine M. Daley, Resp’t, v. Lyman E’ Warren et al., App’lts.
    N. Y. C. P.,
    November, 1895.
   No opinion. Order affirmed.


text:
    William G. Davies et al. v. Francis A. Clark.
    Sup. Ct., App. D., 1 D.,
    March 20, 1896.
   No opinion. Motion denied.


text:
    William G. Davies et al. v. Fnancis A. Clark.
    Sup. Ct., App. D., 1 D.,
    April 24, 1896.
   No opinion. Motion denied.


text:
    Mary A. D. De Balaine, Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct., 1 D.,
    March 20, 1896.
   No opinion. Judgment modified by reducing the fee damage to §3,500 and the rental damage to §350 a year, and, as so modified, affirmed, without costs.


text:
    Bartley Delaney, Resp’t, v. Steinway R. Co. of Long Island City, App’lt.
    Sup. Ct., App. D., 2 D.,
    April 21, 1896.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Joseph Donlon, App’lt, v. Coney Island & B. R. Co., Resp’t.
    Sup. Ct., App. D., 2 D.,
    April 28, 1896.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Thomas C. Doremus v. Francis L. Eames.
    Sup. Ct., App. D., 1 D.,
    May 1, 1896.
   No opinion. Motion granted, with §10 costs.


text:
    Frederick Eder, Resp't, v. William McMahon, App’lt.
    N. Y. C. P.,
    November, 1895.
   No opinion. Order affirmed.


text:
    Alwin Eisert, Resp’t, v. William H. Brandt, App’lt.
    N. Y. C. P.,
    November, 1895.
   No opinion. Appeal dismissed.


text:
    In re Eliza Eisner (four cases).
    Sup. Ct., App. D., 1 D.,
    March 20, 1896.
   No opinion. Motions denied.


text:
    Eleventh Ward Bank, App’lt, v. John Powers, Resp’t.
    Sup. Ct., App. D., 1 D.,
    April 24, 1896.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Equitable Life Ins. Co. of United States, App’lt, v. Isabella F. Judson et al., Resp’ts.
    Sup. Ct., App. D., 1 D.,
    March 20, 1896.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Farmers’ Nat. Bank of Annapolis v. Clarence H. Venner et al.
    Sup. Ct., App. D., 1 D.,
    March 13, 1896.
   No opinion. Motion granted.


text:
    Edward D. Farrell, Resp’t, v. Manhattan Ry. Co. et al., Appl’ts.
    Sup. Ct., App. D., 1 D.,
    May 1, 1896.
   No opinion. Judgment affirmed, with costs.


text:
    Patrick H. Fay, Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct., App. D., 1 D.,
    March 20, 1896.
    Brainard Tolles, for app’lts; E. W. Tyler, for resp’t.
   PER CURIAM.

—We are all of the opinion that the evidence in this case is entirely insufficient to sustain the decision and judgment, A new trial must be awarded, because the evidence is not of such a character as would justify a modification. The weight of evidence is so greatly in favor of the defendants that we must either dismiss the complaint or award a new trial. As the plaintiff may be able to make out a stronger case upon another hearing, the latter course should be adopted. The judgment will therefore be reversed, and a new trial ordered, with costs to the appellants to abide the event.