text:
    Patrick Prendergast, Respondent, v. Noel B. Amory, Appellant, Impleaded, etc.
   Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Edward F. McManus, Appellant, v. Catherine A. McManus, Respondent.
   Judgment affirmed, with costs.


text:
    Joseph M. Valentine and others, v. Edward J. Knauer.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Anna M Knelles, Appellant, v. George Cook and others, Respondents.
   Judgment affirmed, with costs.


text:
    Austin S. Cushman, Appellant, v. Henry A. Mott, Respondent.
   Judgment affirmed, with costs.


text:
    John W. Miller v. E. Ellery Anderson.
   Judgment affirmed, with costs.


text:
    Jane Reilly, Executrix, etc., Respondent, v. The Mayor etc., of the City of New York, Appellant.
   Judgment affirmed, with costs.


text:
    Solomon Marx and another, Respondent, v. Charles Jones, Appellant, Impleaded with Bernard Spaulding. Same v. Same. Same v. Same. Same v. Same. Same v. Charles Jones, Appellant, Impleaded with Michael Brennan. Same v. Same.
   Judgments affirmed, with costs, in one case, and the disbursements in all.


text:
    Daniels W. Schoonmaker v. Carrie B Evans.
   Order affirmed, with ton dollars costs and disbursements, with the usual leave on payment of costs of demurrer in the court bel nv.


author: Per Curiam.

text:
    Charlotte F. Wells, Appellant, v. August Lachenmeyer, Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinion

Per Curiam.


text:
    Evan Jones, Appellant, v. Morgan Jones, Respondent.
   Judgment and orJor of allowance-reversed, with costs of this appeal, and stay of proceedings in the action ordered until the determination of the action pending between the plaintiff and John Jones.


text:
    Richard L. Roberts v. Morton R. Doremus.
   Judgment affirmed.


text:
    Frank S. Belton v. Alfrederick S. Hatch.
   Judgment affirmed, with leave to withdraw demurrer in the usual time ou the usual terms.


text:
    Richard V. Harnett and another. Appellants, v. William P. Barker and others, Respondent.
   Judgment reversed, new trial ordered, costs-to abide event.


text:
    I. Douglas Brown v. Maria E. Decker, as Executrix, etc.
   Order reversed and judgment opened so far as to allow the defendant to bring the issue to trial on payment, williin thirty clays, of the costs of the last trial and ten dollars costs of opposing motion and tlie disbursements upon the appeal. The judgment to stand as security for any futuro recovery.


text:
    William J. Chase v. Nelson Chase.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of Harlow M. Hoyt.
   Order affirmed.


text:
    Alexander V. Davidson. Sheriff, etc., Appellant, v. Cayetano Soria, Respondent.
   Order reversed, with ten dollars costs and disbursements, without prejudice to a new motion ou behalf of all the defendants enjoined.


text:
    William Keating, Appellant, v. The Tribune Association, Respondent.
   Order affirmed, with ten dollars costs and disbursements to respondent, to abide event.


text:
    Theresa Meyer, Appellant, v. Louis Meyer, Respondent.
   Order affirmed, without costs


text:
    Estelle S. Deane, Respondent, v. Robert E. Deane, Appellant.
   Judgment affirmed, with costs.


text:
    Theresa Lynch, Respondent, v. First National Bank of Jersey City, Appellant.
   Judgment affirmed.


text:
    Benjamin A. Willis, Appellant, v. Jacob Scholle, Respondent
   Judgment reversed, new trial ordered, c fete to abide event.


text:
    In the Matter of Charles R Purdy v. Orlando L. Stewart.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Morris Rosenthal, Respondent, v. Henry Benjamin, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Rollins Gold and Silver Mining Company, Appellant, v. John Q. A. Rollins, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    William L. Fraleigh, Respondent, v. George H. Pride and another, Appellants.
   Order reversed on the ground that the issue us to the release should be tried before accounting ordered.


text:
    Hat Sweat Manufacturing Company v. William H. Reinoehl.
   Order reversed, cause directed to be placed on preferred calendar on the ground that it is within the spirit of Rule 3Ü.


text:
    William Wallace, as Executor, etc., Respondent, v. The Rensselaer and Saratoga Railroad Company, Appellant
   Judgment affirmed.


text:
    The People of the State of New York v. Knickerbocker Life Insurance Company
   Order affirmed.


text:
    John Caslin, Appellant, v. James Roach, Respondent.
   Order affirmed, with ten dollars costs and disbursement.


text:
    Solomon M. Schwartz and others, Appellants, v. Joseph Hyman, Respondent.
   Judgment affirmed.


text:
    Frank Feldhusen, Respondent, v. Paul Weilbachen and another, Appellants.
   Order reversed, with ten dollars costs and disbursements.


text:
    Thomas Herbert, Appellant, v. Thomas E. Drake, Respondent.
   Judgment affirmed, with costs..


text:
    William G. Jones, Appellant, v. Ward H. Wakefield, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of Joseph P. Zelley.
   Order affirmed, without costs, and without prejudice to application by petition to require the receiver to pajr over the fund in his hands


author: Daniels, J.

text:
    The People of the State of New York, Respondent, v. Jennie Elmore, Appellant.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Manetta Sanford and others v. Joseph Crocheron.
   case ordered to be resubmitted by respondent furnishing points within ten days.


text:
    The People of the State of New York ex rel. Leon Van Heck v. New York Catholic Protectory.
   Motion for reargumeut granted.


text:
    James W. Whitney and others v. Adolphus Hoffstadt and others.
   Motion denied.


text:
    Netherland Trading Society v. Cornelius H. Delamater.
   Motion denied.


text:
    David W. Bruce, Respondent, v. Uriah Welsh, Appellant.
   Order affirmed, with ten dollars corts and disbursements. Opinion

Per Curiam.


author: Davis, P. j.,

text:
    Joseph S. Mayer, Respondent, v. Louis Schissel, Appellant.
   Order reversed, attachment vacated, with costs. Opinions by

Davis, P. j.,

and by Daniels, J., dissenting.


author: Barrett, J.

text:
    The People of the State of New York ex rel. Mary G. Pinkney v. The Board of Assessors.
   Order affirmed, without costs on opinion of

Barrett, J.


text:
    The People of the State of New York ex rel. Honry Woltman v. William R. Grace, Mayor, etc.
   Writ dismissed Opinion

Per Curiam.


text:
    Ann Mallach, Respondent, v. Edward A Ridley, Appellant.
   Motion denied, without costs.


text:
    In the Matter of the Application of the Commissioners of Public Parks relative to Rider avenue.
   Order affirmed on opinion of Lawrence, J., at Special Term.


text:
    Decisions Handed Down June 17, 1885.
    In the Matter of the Application of the Broadway Underground Connecting Railway for the appointment of Commissioners.
   Motion for taxation of the cost** of the t-ewnil commissioners by whom the report was mide granted, and ordered that the same be taxed at the sum of $1,000 to each of said co missioners for their respective costs, charges and expenses.


text:
    In the Matter of the Broadway Underground Connecting Railway Company.
   Ordered, that the Broadway Underground Connecting Railway Company pay the costs as taxed in this proceeding, by order bearing even date herewith, to wit: The sum of $1,000 to the several commissioners by whom the report was made, or their legal representatives, within thirty days after service of copy of order to be entered hereon, and that in default of such payment said commissioners, or their representatives, be at liberty to prosecute an action for the recovery thereof.


text:
    In the Matter of Katherine Kolb, deceased.
   Order modified by striking out the provision charging the appellant with costs of the appeal to the General Teim, on condition that the appellant stipulate within ten days to take no further appeal in the case.


text:
    Daniel Sanford, Respondent, v. Joseph Crocheron, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    In the Matter of the Petition of the New York Cable Railway Company.
   Motion on behalf of the New York Cable Railway Company for leave to file su jplementary affidavits in the several cases affected by motions to vacate the orders app .intiug commissioners, granted on payment of ten dollars costs of opposing such motion m each of the eleven cases; aud the motions to vacate the ordersappointing commissioners donied, on payment by the Cable Company of ten dollars costs of each motiou, together with such disbursements as have occurred, without prejudice to the rights of parties opposing :ho construction of the road to present any objections that may be made on the coming in of the report for confirmation.

Brady, J., taking no part.


text:
    In the Matter of the New York Cable Railway Company.
   Motion to reopen the order and for reargument as to the route in the Broadway Boulevard. Denied with ten dollars costs.


author: Landon, J.,

text:
    Third Department,
    May Term, 1885.
    In the Matter of the Attorney General v. The Atlantic Mutual Life Insurance Company.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Landon, J.,

and by Learned, P. J.. dissenting.


author: Bockes, J.

text:
    Benjamin Reamer, Appellant, v. The Argus Company, Respondent.
   Order reversed, with ten dollars costs and printing disbursements, and motion granted, with ten dollars costs. Opinion by

Bockes, J.


author: Landon, J.

text:
    The People of the State of New York ex rel. The Board of Supervisors of the County of Ulster, Respondents, v. The Common Council of the City of Kingston, Appellants.
   Order affirmed, with costs. Opinion by

Landon, J.


author: Bockcs, J.

text:
    The People of the State of New York ex rel. Philip Hoffman, Appellant, v. George Bug and others, Assessors of the City of Kingston, in the County of Ulster, Respondents.
   Order affirmed, with costs. Opiuion by

Bockcs, J.


author: Learned, P. J

text:
    Eli W. La Bombarde, Respondent, v. Agricultural Insurance Company of Watertown, Appellant.
   Judgment reversed, new trial. granted, costs to abide event. Opinion by

Learned, P. J


text:
    Helen A. Weaver, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. Lorenzo J. Van Alstine, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


author: Learned, P. J.

text:
    Augusta A. Knight, Respondent, v. The President and Trustees of the Village of Bath-on-the-Hudson, Appellants.
   Judgment and order affirmed, with costs. Mem. by

Learned, P. J.


text:
    Mary McCall, as Administratrix, etc., of James McCall. Deceased, Respondent, v. Silas H. Witherbee and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Landon, J.


text:
    Isabella C. Hoag, as Administratrix, etc., of Rebecca M. C. Herrick, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Landon, J.,

and by Learned, P. J., dissenting.


text:
    Jared Webster, Respondent, v. Seth W. Nichols, as Executor, etc, of Eva H. Nichols, Deceased, Appellant.
   Judgment modified by striking out costs, and as modified affirmed, without costs. Opinion by

Landon, J.,

and by Learned, P. J., dissenting


author: Bockes, J.;

text:
    Mary Jane Peck, as Executrix and Devisee under the Will of Jesse Peck, Deceased. Appellant, v. David Cady Smith, as Executor, etc., of Eliza Peck, Deceased, Respondent.
   Judgment affirmed, with costs. Mem. by

Bockes, J.;

Landon, J.. not acting.


author: Bockes, .J.

text:
    The People of the State of New York, Respondent, v. Joseph C. Barnes, Appellant, Impleaded, etc.
   Judgmentafnrmed, with costs. Order for extra allowance affirmed, with ten dollars costs and printing disbursements. Opinion by

Bockes, .J.


author: Landon,J.

text:
    Peter Callanan, Respondent, v. John Morrell and Edward D. Terbell, Appellants.
   Judgment reversed, new trial granted, referee discharged, costs to abide event. Opinion by

Landon,J.


text:
    Amasa R Moore, Appellant, v. The Manufacturers’ National Bank of Troy and another, Respondents.
   Judgment affirmed on opinion of court below, witli costs.


text:
    Daniel Whipple, Respondent, v. William F. Smith, Appellant.
   Judgment affirmed, with costs Opinion by

Bockes, J.


text:
    First National Bank of Whitehall, N. Y., Respondent, v. William A. Griswold and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Landon, J.


text:
    Orange R. Young, Appellant, v. Charlton H. Davis, Respondent.
   Judgment of County Court reversed and that of justice affirmed, with costa. Mem. by

Learned, P. J.


text:
    Sarah E. Baucus, Appellant, v. James Barr, Alfred Worth and Robert Blair, Respondents, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


author: Peckham, J.

text:
    John J. Serviss, Respondent, v. Lucy McDonnell and others, Appellants.
   Judgment modified by reducing to one-third of principal and interest, with costs of circuit; extra allowance to be computed on reduced amount, as modified. Judgment affirmed, without costs of appeal. Opinion by

Peckham, J.


text:
    Joseph H. Griswold, Respondent, v. Minerva L. Davey and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Landon, J.


text:
    Lovina Somers, as Administratrix of Percival L. Somers, Deceased, Appellant, v. The Cedar Point Iron Company, Respondent.
   Jiidgmeut affirmed, with costs. Opinion’ by

Learned, P. J.


text:
    Henry T. Trevett and others, Respondents, v. Wesley Barnes and Edward Butler, Jr., Appellants.
   Judgment and order affirmed, with costs. Opinion by

Landon, J.


author: Learned, P. J,;

text:
    Edward Blanchard, Appellant, v. The Chateaugay Ore and Iron Company, Respondent.
   Judgment and order affirmed, with cost* Opinion by

Learned, P. J,;

Landon, J., nod acting.


author: Landon, J.;

text:
    Teunis W. Van Denburgh and another, Respondents, v. The Boston and Albany Railroad Company, Appellant.
   Judgment affirm-! i, with costs. Opinion by

Landon, J.;

Learned,. P. J., not acting.


text:
    Edwin Groat, Appellant, v. Henry Deal and Mary C. Green, Respondents.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Mary E. Plass, Appellant, v. George Brusie, Respondent, Impleaded, etc.
   Judgment affirmed, with costs Opinion by

Landon, J.


text:
    Earl H. May, Respondent, v. The City of Troy, Appellant.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Alma H. Banker, Respondent, v. Irving Snell and Thomas Scott, Appellants.
   Judgment affirmed, with costs. Opinion by

Landon, J.


text:
    Emory A. Chase and others, Executors, Respondents, v. William Belden, Appellant.
   Order modified as per opinion. Mem by

Landon, J.


text:
    Randall v. Randall.
   Motion to go to Court of Appeals denied.

Landon, J., not acting.


text:
    Silas Call, Respondent, v. George W. Slack, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Matthew Hale and another, Respondents, v. John Swinburne, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Lewis Brownell and others, Respondents. v. The National Bank of Gloversville and others, Appellants.
   Order affirmed, with ton dollars costs and printing disbursements.

Landon, J.. not acting.


text:
    Mary J. Adsit, Plaintiff v. Thomas W. Hull and another, defendants.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    James A. Butterfield, Appellant, v. James Duffy, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Water Commissioners of Amsterdam v. John C. Chalmers.
   Order affirmed, with ten doll&re costs and printing disbursements. Opinion by

Bockes, J.


author: Learned, P. J.,

text:
    Martha C. Durfee and another, Appellants, v. Daniel McCall, Trustee, etc., Respondent.
   Order reversed, with ten dollars costs and. printing disbursements, and motion granted. Opinion by

Learned, P. J.,

and by Bockes, J., dissenting.


text:
    Sarah H. Humphrey, Respondent, v. The City of Albany, Appellant.
   Order modified as directed in "opinion, costs to abide final event. Opinion by

Bockes, J.

Order to be settled by Bockes, J.


text:
    The Metropolitan Life Insurance Company Appellant, v. S. B. McCoy, Respondent, Impleaded, etc.
   Order reversed, with ten dollars costs and printing disbursements, and' motion denied. Mem. by

Landon, J.


text:
    William S. Douglas Appellant, v. James A. Stockwell. Respondent.
   The appeal from, the part of the order refusing judgment on. answer dismissed, with ten dollars costs. The rest of the order affirmed, with ten dollars costs and printing disbursements. Mem. by

Learned, P. J.


text:
    William H. Webster and others, Respondents, v. Michael T. Scanlon, Appellant.
   Judgment affirmed, with costs. Mem. by

Learned, P. J.


text:
    Visscher v. Andrews.
   Motion to correct order denied.


text:
    Alonzo Greene, Respondent, v. P. W. Hallenbeck and another, Appellants.
   Motion for . leave, etc., denied.


text:
    The Knickerbocker Ice Company Appellant, v. George S. Schultz and another, Respondents.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Margaret Van Schaack, Appellant, v. James Saunders. Respondent, Impleaded, etc.
   Appeal dismissed.


text:
    Gardner B Chapin, Appellant, v. Julia C. Chapin, Executrix, Respondent.
   Order affirmed with ten dollars costs and printing disbursements.


text:
    William H. Kimball, Respondent, v. Mary Leonard and others, Appellants.
   Judgment affirmed, with costs.


text:
    Michael Collins, Respondent, v. Solomon Fleischman, Appellant.
   Judgment affirmed, with costs.


text:
    Elizabeth Brickner, Respondent, v. Halstead Close, Appellant.
   Judgment affirmed, with costs.


text:
    Decisions Handed Down June 29, 1885.
    Mary Byrne. Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Landon, J.


text:
    Alexander M. Stewart, as Executor, etc, Appellant, v. Thomas Dupee, Respondent.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Stephen Brown, as Executor, etc., Respondent, v. George M. Crippen, Appellant.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Ellen Long, Respondent, v. Jane A. Heagany, Administratrix, etc., and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Landon, J.


text:
    Robert S. Coleman, Executor, etc, v. Elizabeth M. Rogers.
   Decree affirmed, with costs against appellant.


author: Bockes, J.,

text:
    Troy Laundry Machinery Company, Respondent, v. Alonzo P. Adams, Appellant.
   Judgment affirmed,with costs. Opinion by

Bockes, J.,

and by Learned, P. J., dissenting.


text:
    People ex rel. James T. Wyatt v. State Assessors.
   Determination of assessors affirmed, with fifty dollars and disbursements. Opinion by

Bockes, J.


author: Learned, P. J.;

text:
    Isaac McConihe, Respondent, v. Augustus Clark and others, Appellants.
   Judgment affirmed, with costs, to be collected out of sale of the property, and of appellants personally. Opinion by

Learned, P. J.;

Landon, J., not acting.


text:
    The People of the State of New York, Respondent, v. Frederick Grimm, Appellant.
   Judgment and conviction reversed. Opinion by

Bockes, J.


author: Learned, P J.

text:
    Fannie S. Petrie, as Administratrix, etc., Respondent, v. The Ogdensburgh and Lake Champlain Railroad Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Learned, P J.


text:
    John Cousins and others, Executors, etc., Appellants, v. Lewis Cairncross and others, Commissioners, etc., Respondents.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.


text:
    The People of the State of New York ex rel. The Superintendents of the Poor of the Town of Oswegatchie v. The Board of Supervisors of St. Lawrence County.
   Order affirmed, with costs and disbursements. Opinion by

Bockes, J.


text:
    Jacob Morris, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Bockes, J.


text:
    James J. O’Dea, Administrator, etc., Respondent, v. James A. Norcross and another, Appellants.
   Judgment and order reversed, new trial granted, costs to abide event. Opinion by

Bockes, J.


text:
    Austin J. Slade, Respondent, v. Barbara A. Cherry, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.;

Lanclon, J., dissenting.


author: Bockes and Landon, JJ.

text:
    Albert F. Mitchell, Respondent, v. George L. Weed, Appellant, Impleaded with others.
   Judgment affirmed, with costs. Opinions by

Bockes and Landon, JJ.


text:
    Henry B. Bagley, Appellant, v. Martin L. Kilmer and another, Respondents.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Isaac Sommers and another, Appellants, v. Oliver H. Brigham, Respondent.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Jennie E. Gardinier, as Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant
   Judgment and order affirmed, with costs. Opinion by

Bockes, J.;

Landon, J., not acting,


text:
    The Union Insurance Company of Philadelphia. Respondent, v. Melancthon Vandercook, Appellant.
   Judgment affirmed, with costs, without leave to plead over. Opinion by

Landon, J.


text:
    Daniel F. Keefe, Appellant, v. Hiram Holley, Respondent.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Mary Haley, Appellant, v. Mary Lavery and others, Respondents.
   Judgment affirmed ou opinion of Special Term.

Landon, J., not acting.


text:
    Ellen Urquhart, Respondent, v. City of Ogdensburgh, Appellant.
   Judgment affirmed, with costs. Opinion by

Bockes, J.,

and by Learned, P. J., dissenting.


author: BRADLEY, J. :

text:
    DOWAIN RICHARDS, Appellant, v. THE PITTS AGRICULTURAL WORKS, Respondent.

      Conversion — when the m&t'e silence of a party, when a demand, is made, does not establish it.

    A threshing machine, manufactured by the defendant, after having been delivered to the plaintiff, was for some reason restored to the defendant and placed in its warehouse in Buffalo. The defendant having thereafter notified the plaintiff that it should bring an action against him to recover the unpaid purchase-price, the plaintiff went, with his attorney, to the defendant’s place of business and paid the full amount thereof. The attorney then asked the person representing the defendant, to whom the payment had been made, “ where is his (plaintiff’s) threshing machine? ” and was answered, “ it is in our warehouse.” The attorney then said: “ Take notice, that in the name and in the behalf of Dowain Richards, of Brockport, N. Y. (the plaintiff), I demand of you the threshing machine and apparatus which you sold him, and he has this day paid you for, through me,” to which nothing was said in reply. The threshing machine was in the defendant’s building, at some distance from where the conversation was had, and required a team for its removal.
    Upon the trial of this action, brought to recover damages for a conversion of the machine, the defendant’s counsel requested the court to charge the jury that this conversation did not show such a demand and refusal as to warrant them in finding a conversion of the machine by the defendant, which request the court refused to comply with.

      Held, that it erred in so refusing.
    The cases where the silence of a person having possession of property, on demand being made therefor by the owner, is held to furnish evidence of a conversion collated and distinguished by Bbadley,J.

      Appeal from an order of the Monroe Special Term granting a motion made for a new trial on exceptions.
    The action was brought for the alleged conversion of a threshing machine. The machine had been manufactured by the defendant and delivered to the plaintiff, who resided in Monroe county. And for some reason or purpose the plaintiff returned it to the defendant at Buffalo, and the defendant put the machine into its warehouse there. Afterwards the defendant advised the plaintiff of its purpose to bring suit against him to recover the purchase-money remaining unpaid, and thereupon the plaintiff, with his attorney, went to Buffalo and at the defendant’s place of business tendered and the defendant received the amount due jn payment for the machine. And then the plaintiff, by his attorney, demanded of an agent of the defendant the machine. The evidence tends to prove that no reply was made to the demand, and that afterwards a further interview was had between the plaintiff and those representing the defendant.
    The plaintiff recovered a verdict and on the defendant’s motion for a new trial on the minutes, founded on exceptions, a new trial was granted. The plaintiff appealed from that order.

      J. D. Declcer, for the appellant.

      JE. O. Sprague, for the respondent.
   BRADLEY, J. :

The threshing machine was lawfully in the possession of the defendant and in its warehouse in the city of Buffalo, some little distance from its office and place of business. The plaintiff called at the defendant’s office and paid it the full amount of the purchase-money for the machine. And the evidence tends to prove that the plaintiff, by his attorney, then and there, and immediately after such payment, said to the person representing thé defendant, Where is his (plaintiff’s) threshing machine ? ” And was answered, it is in our warehouse.” Whereupon the attorney said to him : Take notice that in the name and in the behalf of Dowain Richards, of Brockport, N. Y., I demand of you the threshing machine and apparatus which you sold him and which he has this day paid you for .through me,” and that nothing was said in reply. The defendant’s counsel requested the court to charge the jury that this was not such demand •■and refusal as to warrant tbe jury in finding a conversion, wbicb was refused and exception taken.

Tbe only question bere is upon tbe exception. If tbe refusal to ■so charge was error tbe new trial was properly granted. The exer■cise of some dominion over property inconsistent with tbe right of the owner, or a denial of such right is requisite to constitute a conversion. Mere words are evidence of a conversion when they import a denial of tbe right of the owner to take or resume tbe possession of bis property, if the situation of tbe person using tbe words is such in respect to it as to enable him to interrupt tbe -owner in taking possession of or reclaiming bis property.

The machine belonged to the plaintiff and be was entitled to tbe possession of it at the time tbe demand was made and that fact was known to tbe defendant. What was the latter called upon to do when thus advised that the plaintiff wanted the property, and what was there in tbe circumstances of that occasion wbicb can be construed as evidence of denial of bis right to take it ? If the person representing tbe defendant bad said to tbe plaintiff’s attorney that be could not have tbe machine or bad said anything to the effect that be could have it on some condition only, wbicb tbe defendant -had no right to impose, evidence of conversion would have been furnished, or if tbe plaintiff bad asked that opportunity or the necessary ■facilities be furnished to enable him to obtain access to the property for the purposes of taking it away and had been refused, that would also have justified tbe conclusion of conversion. And there may be cases where an omission to reply to a demand for property with no act of delivery or indication of willingness that tbe owner take it, would be equivalent to a refusal and evidence of a conversion. That would be so if the party of whom the demand was made bad tbe property on bis person, or under bis then immediate personal control, so that be could and should band it over. But, bere was a threshing machine in the defendant’s building, some distance from tbe place where the demand was made, the removal of which required •a team. And there is nothing appearing here to show that tbe defendant was required to take it from the place where it was- and draw it to tbe plaintiff at any place, or to ship it to him by railroad. 'The right of the plaintiff was to take it at and from tbe place where it was. And all that was required of tbe defendant was to permit him to do it, Is the fact that nothing was said by the defendant when the demand was made, any evidence of interruption by the defendant to the exercise by the plaintiff of such right? The plaintiff, upon the question under consideration, is entitled to any inference which may legitimately be derived from what was and was not said, And if the transaction and conversation at the office of the defendant were such as to furnish any evidence of a refusal on the part of the latter to permit the plaintiff to take the property,, the exception is not supported.

This question depends mainly on the effect which may be given to the omission on the part of the defendant’s representative to-follow the demand by any remark in reply to it. In view of the circumstances of the occasion and of the character and situation of the property, it is difficult to see any significance, as evidence of refusal or denial of right of the plaintiff to take the property,- in such failure to respond to the demand so made.

The expression of nothing was no more a refusal than a consent, that the plaintiff take the property. The fact of conversion imports, a tortious act, and to justify the conclusion of liability of the defendant the evidence must tend to prove that it was a tort feasor. (1 Addison on Torts, 501; Canot v. Hughes, 2 Scott, 663; S. C., 2 Bing. [N. C.], 448.)

"When the possession is lawful the party having it must be placed in the wrong by some act which may be deemed a violation of the owners right of property, possession and control. This does not-depend upon “ manual act of resistance but may be evidenced by the assertion of claim of the right of dominion in exclusion or defiance of the right of the owner. (Bristol v. Burt, 7 Johns., 254.). And while a refusal to deliver on demand is not itself a conversion it may be evidence of the act of conversion. (1 Add. on Torts; Wilton v. Girdlestone, 5 Barn. & Ald., 847.) But to constitute such evidence the refusal must be under circumstances-such as to dispute or be a denial of the owner’s right of dominion over the property. (Canot v. Hughes, supra; Farrar v. Rollins, 37 Vt., 295.)

In this case the defendant received payment in full for the property and informed the plaintiff where it was. Nothing appears up to that time requiring a demand of the property. The title of the plaintiff and bis right to the possession were recognized. No reason appeared for denial by tlie defendant of his right to go and take it, and none to produce apprehension of any purpose to refuse permission to him to do .so. Tour property is in our warehouse, is the response to the inquiry made for the place where it was. No words were used which tended to interrupt his going to that place and taking it. This was the situation at the interview when the demand was made which elicited no answer. There was nothing for the defendant to do but to permit the plaintiff to go and get the property. Is this silence any evidence of refusal to allow him to do so ? The plaintiff did not in terms ask permission to take it from the warehouse, or for any order to do so. It is difficult, under the circumstances, to construe this failure of the defendant’s man then to speak, by inference, as a denial of the plaintiff’s right, or as any evidence of dominion or claim of dominion by the defendant over the property in exclusion of the plaintiff or inconsistent with his right to the immediate possession of the property. (Pattee v. Gilmore, 18 N. EL, 460 ; 45 Am. Dec., 385; Bristol v. Burt, 7 Johns., 254; Lockwood v. Bull, 1 Cow., 323; Mitchell v. Williams, 4 Hill, 13, 16; Monnot v. Ibert, 33 Barb., 24; Gillet v. Roberts, 57 N. Y., 28, 33.)

To support an action for conversion by evidence of demand and refusal, the refusal must be proved or what is equivalent to it in effect. It must import an unwillingness to permit the owner to take his property and a denial of his right to do so. Then the fact upon which the conversion depends may be inferred which is the assertion of a claim or right of dominion in exclusion of the right of the owner temporarily or otherwise. If it cannot be construed as a claim of right as against the owner to retain the property, there is no conversion. (Zachary v. Pace, 9 Ark., 212; 47 Am. Dec., 744.) The cases where silence of the person having possession of property on demand being made of him by the owner is held to constitute evidence of refusal are distinguishable from the one at bar.

The remark in Monnot v. Ibert (33 Barb., 26), that “ if a demand ís immediate and distinct, a silent retention of the goods will be sufficient,” is evidently good law in a case to which it would apply. And the same may be said of the remark that a mere non-compliance with the demand, after a reasonable time has been afforded for a delivery, would be tantamount to a refusal, and presumptive evi dence of a conversion.” (i Cow., 330; 4 Hill, 16.)

And in Durell v. Mosher (8 Johns., 445) the defendant having-taken some of the plaintiff’s sheep without the consent of the latter and promised to return them, his failure to do so was held to be-evidence of conversion. In Davies v. Nicholas (7 C. & P., 339), to the demand of the owner of his furniture in possession of the-defendant, the latter said he should do nothing but what the law required, and he did not then or afterwards deliver it up. Held,. evidence of conversion.

In Watkins v. Woolley (1 Grow., 69) the defendant had obtained a landau by purchase, and the plaintiff demanded it of him, and! although it did not appear that the defendant had expressly refused to deliver it up, it was held that the non-delivery, pursuant to the demand, was evidence of a conversion. If all the circumstances of that case are disclosed in the report of it, it is an extreme case in support of an action of trover. And as the demand was a written one addressed to the defendant, and left at his house, that ease is not in harmony with Pattee v. Gilmore (supra).

In Dunlap v. Hunting (2 Denio, 643) there was sufficient evidence of demand and refusal to support the conclusion of conversion, and the judge, in the opinion, said: “ A bailee is not at liberty to be silent when a reasonable demand is made, though not' at the place for delivery,” and cites Higgins v. Emmons (5 Conn., 76; 13 Am. Dec., 41), which was an action on contract, by which the defendant had undertaken to deliver property on demand. The demand was made and the defendant neither answered or delivered the property. It was held that his silence was equivalent to a refusal and was a breach of the obligation he had assumed by the contract to deliver. In that case the right of action required only a breach of contract, and did not depend upon a tortious act of the defendant, and is distinguishable from the case at bar. And such was the case of Mason v. Briggs (16 Mass., 453), where it was held that no personal demand of the defendant was necessary; that having undertaken to deliver on demand he must at all times be ready to do so, and therefore in his absence from the State an unsuccessful demand made at his place of residence was effectual to charge him with breach and liability. When a party has made a contract to deliver property be has assumed the duty of affirmative action by way of performance, and his passive failure when required by its terms, whether on demand or at a specified time, may afford a breach and right of action. And the rule applicable to such case does not necessarily apply in support of a right of action for conversion of property which was lawfully in the possession of a partv sought to be charged. The former requires nothing more than a failure to perform the contract, while conversion of property is something more. In legal effect it is the assertion of a right or dominion inconsistent with that of the owner.

In Gillet v. Roberts the court say, “ that to constitute a conversion a manual talring is not necessary; but where words are relied upon, they must be uttered under such circumstances, in proximity to the property, as to show a defiance of the owner’s right, a determination to exercise dominion and control over the property and to exclude the owner from the exercise of his rights.”

There may be circumstances in respect to the relation assumed to property by the party having possession of it, attending the occasion of a demand by the owner, which may characterize omission to respond to the demand as evidence of refusal to deliver or to permit the owner to reclaim his property, but there seems nothing in the transaction in question to support any such understanding or to give such effect to the silence of the person through whom the demand was made of the defendant.'

Tailing it as a whole, as it occurred at the office, it affords no evidence of denial of the right of the plaintiff to take his property, or of a purpose to detain the property, or to interrupt him in taking it from the place where it then was.

If it may be said that he could not, without permission, rightfully go to the warehouse and take it, it is sufficient to add that he did' not ask such permission, nor was it denied to him. He was entitled to, and received, information where it was. He was not then prepared to get it. And he is not at liberty to assume, from what occurred at that time, that he was not at liberty to go and remove it from there. (Houghton v. Butler, 4 Durn. & E., 364.)

The consideration of the question presented by this exception does not involve the interview which took place later on the same day, at the hotel, between the parties, except so far as to see that it alone did not necessarily require a verdict for the plaintiff. The two interviews and the occurrences at both of them were properly to be considered and, probably, were taken into consideration by the jury as practically parts of the same transaction, but that did not deny to the defendant the right to- found a request to charge upon the effect of the one at the office alone.

There is a conflict of evidence as to the occurrences at the later interview. Substantially all of that which the plaintiff claims to be important for him in this action is in the testimony of his witnesses and is contradicted by that of the defendant’s witnesses. And in view of such conflict the defendant’s counsel was permitted, for the purpose of presenting the question by request to charge, to treat that interview as furnishing no aid to the one at the office although it was for the jury to determine what the truth was of the talk at the hotel. And we. do not here express any opinion as to the effect which might, in any view, be given to that conversation upon any question in the action.

If anything was said at the hotel that can be so construed, alone or with the prior one, as to show a refusal on the part of the defendant to deliver the property to the plaintiff or the imposition of a condition to the immediate delivery of the property to him, it would be a matter of evidence for the consideration of the jury upon the question of conversion. We express no views in respect to the construction which may be given in that respect to that conversation, or both together, or what effect may be given to the omission of the defendant subsequently to those interviews and before the commencement of this action to advise the plaintiff that they were ready to deliver or that he could take the machine. The exception to refusal to charge seems well taken. The motion for new trial was properly granted.

The order should be affirmed.

Smith, P. J., Baeeer and Haight, JJ., concurred.

Order affirmed, with costs to abide event.


author: Beadley, J.:

text:
    CROOKED LAKE NAVIGATION COMPANY, Plaintiff, v. THE KEUKA NAVIGATION COMPANY, Defendant.

      Tease taken by the director of a company — when the company cannot claim to be entitled to it — requisites of an adverse holding which will avoid a conveyance by one not in possession.

    The plaintiff "brought this action to recover the possession of certain land, claiming to be entitled to a leasehold estate therein by virtue of an assignment made in June, 1883, from the executrix of one Holmes, of a lease thereof owned by Holmes and expiring March 1, 1884. At the time Holmes acquired title to the lease in 1878, and until his death in 1879, he was the president, a director and the principal stockholder of a steam navigation company, which used the premises in carrying on its business, and paid the rent reserved by the lease until it failed in 1881. The interest of the company in the premises was sold to the defendant by the sheriff under an execution issued upon a judgment recovered against it, and a receiver of the company, appointed in a judgment-creditor’s action, thereafter sold to the defendant all the right, claim, property and demand which the company had therein. The defendant took possession of the premises under these conveyances, and has ever since that time occupied and used the same.

      Meld, that the facts proved did not show that the company had any interest in the lease acquired by Holmes.
    'That the holding of the premises by the defendant under the conveyances from the sheriff and the receiver, was not under such an adverse claim of title as to render void the assignment of the lease from the executor to the plaintiff.

      Mosher v. Tost (83 Barb., 277) distinguished.
    MotioN by the defendant for a new trial, on exceptions ordered to be beard at the General Term in the first instance.
    Th'e action was in ejectment, to recover certain premises situated at the outlet of Crooked lake or Keuka lake (as it is now called), in the village of Penn Yan, and used for a steamboat landing and for dock purposes. It appears that the title was in one "Wegener, who leased them to one Conklin for a term of years ending on the 1st day of March, 1884. And the latter afterwards, in April, 1878, leased them to Farley Holmes for the term of five years from the first day of March then next. . Holmes died in November, 1879, leaving his will, which was admitted to probate and record, and letters testamentary were issued to Jane Holmes, his widow, who was nominated as executrix by the will, and she afterwards, in June, 1888, as such, assigned the lease to one Halsey, who, in July following, assigned tbe lease to the plaintiff. The defendant took possession of the premises in January, 1881, and alleges a right to the possession paramount to that of the plaintiff. The further facts appear in the opinion. The plaintiff had a verdict.

      William 8. Oliver, for the plaintiff.

      Ralph T. Wood, for the defendant.
   Beadley, J.:

The plaintiff claims the right to the possession of the premises as lessee, for years, under the assignment to it of the Holmes lease,, which vests in the plaintiff that right unless its operation as a lease to Holmes has been in some manner defeated. The counsel for the defendant contends that plaintiff’s action is not supported because, first, Holmes, by reason of his relation to the Lake Keuka Steam Navigation Company at the time he took the lease and afterward, was disabled from taking and retaining any rights under it; that the beneficial interest was in that company and that the defendant in the manner hereafter mentioned acquired the rights of that company. Second. That at the time the assignment of the lease was made to the plaintiff, the premises were in the possession of the defendant claiming under a title adverse to that of the assignor of the lease and that the assignment was therefore void.

When he took the lease from Conklin, Holmes was a stockholder,, director and president of the Lake Keuka Steam Navigation Company, and was the owner of most of the capital stock of the company, and the premises were used by the company in operating steamboats on the lake until it ceased to do business. And the-rent from time to time due on the lease was paid by the treasurer of the company, who says he should not have paid it if Holmes-had not been the chief stockholder of the company.”

The Lake Keuka Steam Navigation Company became insolvent and in January, 1881, its property, including its interest in these-premises, was sold by virtue of an execution issued upon a judgment against it. And upon that sale that interest in the premises was purchased for the defendant and a bill of sale to that effect was-made by the sheriff to it. And in an action afterwards brought by a judgment creditor of that company against it a judgment was-recoyered appointing a receiver of its property and directing him to sell it at public sale. The receiver sold at private sale. all the right, claim,- property and demand,” which the Lake "Keuka Steam Navigation Company had in the premises, to the defendant in December, 1882, and gave to it a bill of sale to that effect. The defendant went into possession shortly after the execution sale in January, 1881, and has since continued to occupy the premises.

The evidence did not require the conclusion that the Lake Keuka Steam Navigation Company had any interest in the premises. The lease was taken by Holmes individually, and he was under no disability arising out of his relation to the company which defeated his right to become such lessee. He was its president and a managing agent or trustee and could legally do nothing affecting the company inconsistent with such relation which was that of trust and confidence. He could not deal with its property for his personal advantage nor deal witlr it for such purpose. He could not sell and become the purchaser of its property and retain it as his own. This property was not that of the company, and nothing appears tending to prove that he obtained the lease under circumstances which required him to assume the relation of trustee for his company in respect to it, or which would permit the retention of it by him as his property to impute to him any bad faith or breach of confidence or duty. The manner which the rent was paid did not require the inference that he had taken it for, or surrendered it to, the company. (Twin, Lick. O. Co. v. Marbury, 91 U. S., 587.) It is said that he owned $49,000 of the $50,000 of capital stock. The company had the use of the premises, and no significance is necessarily imputed against Holmes’ title by the payment from the funds of the company of the actual expense of the retention of the use of the property, as it does not appear to be unreasonable in amount. The question at the trial was treated as one of law, and it is not necessary now to inquire whether its determination involved any question of fact. (Barnes v. Perine, 12 N. Y., 18.) It follows that the insolvent corporation had no interest in the premises, and that the defendant acquired none by its purchases at the execution sale and from the receiver.

The question arises whether the plaintiff took anything by the assignment to it of the lease, for the plaintiff must stand on the strength of its own title. And. if the defendant was in possession, claiming, the premises under a title adverse to that afforded by the lease, the plaintiff acquired no right as assignee to support the action. (1 R. S., 739, § 147.)

To bring the defense -within this statute, the claim must be under some specific title. It is not necessary that such title be valid, but the color of title must purport to convey a freehold estate, and adverse to that under which the plaintiff asserts its right to the possession. (Crary v. Goodmam, 22 N. Y,, 170; Higinbotham v. Stoddard, 72 id., 94; Dawley v. Brown, 79 id., 390 ; Fish v. Fish, 39 Barb., 513; Chalmers v. Wright, 5 Robt., 713; Stoddard v. Whiting, 46 N. Y., 627; Gross v. Welwood, 90 id., 638.) The sale by the sheriff on the execution does not purport to have been of any estate or interest in the land. And if it had, no advei'se possession could have been taken under it until the time for redemption had expired and the sheriff’s deed had been taken. The bill of sale made by the ■receiver to the defendant does not purport to convey the fee or any freehold estate. He could not transfer to the defendant any greater interest than the company of whose property he was receiver had, and the defendant can claim no other right than that of holding under that company. (Hetzel v. Barber, 69 N. Y., 9, 10.) And if it held in subordination to the legal title no right was given by the sale in hostility to that title. The evidence tends to prove that the company was in under Holmes either as tenant or by license, and it could not by any conveyance create a color of title in another adverse to the title under which Holmes and the plaintiff through him held. (Jackson v. Davis, 5 Cow., 123; Learned v. Tallmadge, 26 Barb., 444, 454; Whiting v. Edmunds, 94 N. Y., 309, 314.) The relation of a lessee for a term of years does not permit him or any one holding under him, or by virtue of such right, to create color of title in another adverse to that under which he holds (Bedell v. Shaw, 59 N. Y., 46), nor can a grantee of a life estate do so in'such wise as to give his conveyance the character required to produce adverse possession during the term. Although in such case it may afford the right to claim adverse possession after the termination of the life estate, in support of such right in the grantee, which would be effectual on the expiration of twenty years after that time, for reasons applicable to the grant of a life estate which do not apply to a lease for years, (Sands v. Hughes, 53 N. Y., 287; Christie v. Gage, 71 id., 189.)

There seems to have been no possession of the defendant under claim of title adverse to that under which the plaintiff’s assignor held, or adverse to the interest he held at the time of the assignment of the lease to it, within the meaning of the statute.

The case of Mosher v. Yost (33 Barb., 277), cited by the defendant’s counsel, does not support his contention. There was a grant of a life estate goer autre vie. The lessee died during the life of the cestui gue vie, and thereupon his son went into possession, claiming to be the owner by gift from his father. The son conveyed his interest and assigned the lease to the defendants, and the plaintiffs claiming under a deed afterwards made by the administrators of the father’s estate, brought ejectment, and were defeated on the ground that, as the court held that the deed to the plaintiff came within the statute before referred to and was void. The lessee had by the grant a freehold estate during his life, and at common law it retained that character, although it did not go to his heirs by descent otherwise than as special occupants. It was early treated by the law as a sort of “ derelict, to be seized upon by the first occupant who chose to appropriate it.” It still being a freehold, could not go to the executors; but by the statute (29 Car., II) it went to the heirs of the tenant as special occupants. (1 Wash, on Real Prop., marg. pp. 93, 153; Atkinson v. Baker, 4 Durnf. & E., 229.)

It was not at common law deemed devisable ; but by our statute it was made so, and if not devised, went to the executor or administrator for distribution as personal eatate. (Laws of 1813, chap. 23 ; 1 R. L., 365, §4.) And afterwards it was provided that on the death of such tenant the estate should be deemed a chattel real (1 R. S., 722, § 6), and go to the executors or administrators as personal assets. (2 R. S., 82, § 6; Gillis v. Brown, 5 Cow., 388; Reynolds v. Collin, 3 Hill, 441.)

But by the result given to Mosher v. Yost it was there necessarily held that the quality of the estate remained the same as at common law, except for the purposes of its disposition as assets of the deceased tenant. And in that view the occupant was enabled to make his deed effectually purport to convey a freehold estate, so as to give color of title adverse to the plaintiff’s grantor under tbe claim of which the defendant’s possession was supported, and the grant to the plaintiff was, by force of the statute, void. That case is distinguished from this in the character of the estate. The interest involved here was an estate for years which is a chattel real. At common law is was personal estate and by our statute it goes to the executors and administrators. At the common law the tenant for years was not deemed'seized of the land nor vested with an estate in it. He acquired by the lease a right of entry, and when he entered he was not, in the legal sense, possessed of the land but of the term for years. The seisin of the freehold remained in the lessor, and the possession of the lessee was that of the owner of the freehold. But by statute the lessee for years takes an interest treated by designation and for some purposes as an estate in land. (1 R. S., 722, § 1; Averill v. Taylor, 8 N. Y., 44, 52.) Before the time of Henry YII an action of ejectment could not be sustained by the lessee to recover the term, but since then it might in England and maybe in this State. (1 Wash. Real Prop., 291; Goodtitle v. Tombs, 3 Wilson, 121; Gardner v. Keteltas, 3 Hill, 332; Whitney v. Allaire, 1 N. Y., 311.) The transfer of such an interest or estate, or a deed purporting to convey less than a freehold, cannot furnish a color of title adverse to the owner, so as to support the possession under claim of title to it within the meaning of the statute against champerty before mentioned.

We have given attention to and considered all the exceptions appearing in the record. None of them seem to be well taken. The defendant’s counsel suggests that the judgment entered in the action is not in' conformity with the verdict. No question arises here in that respect. The only right to judgment is that given by the verdict, and to such only as it permits.

The motion for a new trial should be denied and judgment ordered for the plaintiff on the verdict.

Smith, P. J., Barker and Haight, JJ"., concurred.

Motion for new trial denied, and judgment ordered for the plaintiff on the verdict.


author: Beadlev, J.:

text:
    In the Matter of the Proof of the Will of ALBERT H. LAPHAM.

      Witt — bequest subject to a trust— legatees presumed to take as tenants in common— when a trust does not unlawfully suspend the, absolute ownership of money.

    A testator, by a will whicli contained a general residuary clause, gave and bequeathed to Ms aunt “Ellen S. Wilcoxen for the exclusive benefit of her four children the sum of $2,000, the interest and principal (if necessary) to be used for their education.”

      Eeld, that the title to the fund was vested in the four children, in equal shares, subject to the execution of the trust, which would terminate as to each share when the owner thereof was educated, or attained the age of twenty-one years.
    That there was no unlawful suspension of the absolute ownership of the fund.
    Appeal from a decree of tbe surrogate of Wayne county, admitting to probate tbe will of Albert H. Lapbam, deceased.
    On tbe 15tb day of May, 1883, tbe testator made a will by wbicb: First. He gave to bis brother George H. Lapbam $4,000. Then followed tbe following provision: “Second. I give and bequeath to my aunt Ellen S. Wilcoxen; for the exclusive benefit of her four children, tbe sum of two thousand dollars, the interest and principal (if necessary) to be used for their education.”
    And after giving some other specific legacies be gives “.all the rest, residue and remainder” of bis estate to Maude Lapbam, daughter of George H., “ on her arriving at tbe age of twenty-one years, said sum to be properly invested and the use thereof used for her education,” and nominated Charles B. Iierendeen to be executor.
    The probate of the will was contested by George P. Lapham, the appellant, the only heir and next of kin of the testator.

      H. Jd. Durfee, for George P. Lapham, heir-at-law, etc., appellant.

      J. H. Camp, for the executor, respondent.

      Q. Wilooxen, for Ellen S. Wilcoxen, trustee and guardian ad litem for the infants.
   Beadlev, J.:

On the part of the contestant and appellant it is contended, first, that the will was not properly executed in that there was no publication of it by the testator; second, that the provision giving to Ellen S. "Wilcoxen $2,000 for the exclusive benefit of her four children, etc., suspended the absolute ownership of the subject of the bequest for a longer period than during the continuance of two lives in being at the death of the testator, and was void. There is no question relating to his competency to make a will. He died the day following its execution. The contention that there was a failure of publication of the will is not supported. The two witnesses were present and saw him execute it. And at the time of his subscribing the instrument Hr. Hill, who was present assisting him, asked the testator if he wanted the two persons who subscribed as witnesses, naming them, to sign as witnesses to your last will,” and he answered yes.” And thereupon in his presence they subscribed their’ names as witnesses. The instrument he held in his hand. And the talk with and by him about their signing as witnesses, in which the words “ last will ” were so used, had reference to it as his will, and was sufficient to constitute both request for them to so subscribe and a publication of the instrument as his last will and testament. The important fact, and that which is requisite for that purpose, is that the testator understands that he subscribes the instrument as his will, and makes known to the witnesses that he intends it to take effect as such. And any communication made by him. to that effect is sufficient. The manner of doing it is not so important. It must come from him and may be communicated by word- or sign without the aid of inquiry or in response to it. Tlie statute was clearly complied with in the respect in question. (Lane v. Lane, 95 N. Y., 494.)

The more difficult question is that of construction of the second clause of the will. If it be construed to vest the title to the $2,000 in Ellen S. Wilcoxen, as trustee, to remain there as an entirety until the purpose of the trust as to all of the children was executed, that is to say, until the period for the contemplated education of all of them terminated, it would operate as an unlawful suspension of the absolute ownership of the fund within, the meaning of the statute, and render the bequest void. (1 K. S., 773, § 1.)

The testator evidently intended to dispose of all his property by his, will, and to include in the residuary clause only what remained exclusive of that in the earlier provisions of it mentioned, and by its terms disposed of. And it is apparent that he did not design in any event to include within the residuum the $2,000, or any part of it mentioned in the second clause. And, as a rule, effect will be given to the intention of a testator, if the provisions of his will are such as to permit it, without violation of law. This fund was given to Mrs. Wilcoxen for the exchisive benefit of her four children. The use, by her, of the principal of it is not permitted, except so far as it may be necessary by reason of the deficiency of the interest to pay the expenses of their education, and except so far as their right to the principal of the fund is limited it must be deemed' to be theirs, because, assuming that there is a trust created by the bequest, it must be limited in time as well as purpose.

The contention on the part of the coiitestant, that the phrase “ for the exclusive benefit of her four children ” is but a limitation upon the right of Mrs. Wilcoxen, does not seem to be justified by the design of the testator. While it may properly be construed to have that effect, it also goes further and expresses the purpose that the children should have the benefit of it entirely. And in that view it must be deemed that the title vests in the four children subject to the execution of the trust, which exists and continues for no purpose other than to apply the interest and so much of the principal as may be necessary for their education.

It must also be assumed that the time will arrive when the permitted expenditure for their contemplated education will cease. And when such time is reached the execution of the trust will be accomplished, and the dominion of Mrs. Wilcoxen as trustee will then necessarily terminate; and the beneficiaries personally, or through their guardians (if then minors), will take the fund remaining. The clause in question is imperfect in terms. It expresses no direction to hand over to the children in any event, nor does it designate any definite time when that shall be done ; but the direction and time to do so are fairly implied and regulated in point of time by the termination of the education in view, which time, if not before, may be deemed to expire when they shall arrive at the age of twenty-one years. The question arises whether the bequest to the children is such as to make them joint owners or tenants in common, because if it be the former the entire fund would, by its terms, be holden bj the trustee until the trust is fully executed, and the survivors of them would take if the bequest in that view were valid, while if they take as tenants in common the effect would be to vest in them in severalty. The provision contains no words of severance, nor does it of survivorship to denote joint tenancy.

The imperfection of the clause in respect to the final disposition of the fund, which it clearly indicates shall go the children, may be taken into consideration in aid of the purpose of the testator to make it effectual rather than to wholly defeat it. To treat it as a bequest to the children jointly, subject to the trust (assuming that the provision in terms creates a trust), might defeat the operation of the second clause of the will; and if construction requires it that must be the consequence.

This question of joint tenancy and tenancy in common, as applied to personal property coming by bequest to two or more persons, without anything appearing in the will to indicate survi-vorship or severalty, is perhaps not clearly settled in this State. In England in such case they would be deemed to take as joint tenants. (Morley v. Bird, 3 Ves., 628; Crooke v. De Vandes, 9 id., 197; Bustard v. Saunders, 7 Beav., 92.) If there are any words to indicate severance, or that the legatees are to take at different times, the rule there is otherwise. (Woodgate v. Unwin, 4 Simons, 129.)

The English doctrine was followed by the surrogate in Putnam v. Putnam (4 Bradf., 308), which was substantially disapproved in Blanchard v. Blanchard (4 Hun, 287, 289; affirmed, 70 N. Y., 615), and in Lane v. Brown (20 Hun, 382, 387). In the latter case the court say that the same rule in that respect is applicable in this State, as that applied to grant or devise of real property by the provisions of the 1st Revised Statutes, 727, § 44, and in support of that proposition cites Manice v. Manice (43 N. Y., 382), and other cases. And in Everitt v. Everitt (29 N. Y., 71), Hefio, J., referred to that statute in support of the proposition that bequests constitute the legatees tenants in common, and that they take distributively and not jointly, although in that case the question did not necessarily arise because the will contained words which might be treated as those of severance. But in this country the policy and tendency is favorable to severalty in the ownership and enjoyment of property, both real and personal, and such effect will ordinarily be given to rights and interests in respect to it, unless a purpose to vest or bold it jointly is fairly indicated or required by •construction, or by business relation or association for such purposes, while that in England, in view of its institutions, and especially its proprietary system, is towards the consolidation and perpetuation of property and estates in aid of the contrary presumption.

The conclusion, therefore, seems to be presented that the four •children are vested, subject to the execution of the trust, with the title to the fund as tenants in common, and being so their interests may be deemed equal and held by them in severalty. And as a consequence each will be entitled to take his share when the period arrives that' the trust is executed as to him. ' In that view there is no unlawful suspension of the absolute ownership of the fund. (Tucker v. Bishop, 16 N. Y., 402; Savage v. Burnham, 17 id., 561; Everitt v. Everitt, 29 id., 39; Stevenson v. Lesley, 70 id., 512, modifying and affirming 9 Hun, 637; Monarque v. Monarque, 80 N. Y., 320, 324.) It follows that the second clause of the will is valid and that the decree should be affirmed, with costs.

Smith, P. J., Paekee and Haight, JJ., concurred.

Decree of surrogate affirmed, with costs.


author: Bbadlet, J.:

text:
    JOHN L. STEWART, as Executor, etc., of ANGUS McDONALD, Deceased, Plaintiff, v. JENNIE HAMILTON, Defendant.

      Wül — when a poww' to sell real estate will be implied\ — restrictions on the time of sale.

    By the first clause of the will of the plaintiff’s testator he gave and bequeathed to his executors all his property, both real and personal, of every name and nature, in trust for the purposes thereinafter named. He then gave legacies to various persons, and then directed the residue of his estate to be divided equally among certain persons named. The will then provided: “I enjoin my executors not to sell any of the real estate under three years, unless sold to advantage. Sold on time if to advantage.”

      Held, that an implied power to sell real estate was conferred upon his executors.

      That the clause enjoining a sale for three years was not intended to suspend the power of alienation, hut merely to allow the executors to hold the real estate-for that time if they thought best.
    CONTROVERSY presented upon a case agreed upon and submitted without process.
    Angus McDonald died February 10, 1884, leaving his will, which, was duly proven and admitted to probate, and letters testamentary thereunder were issued to the plaintiff. The first clause of the will! is as follows: '‘After all my debts are paid and discharged I give and bequeath to my executors hereinafter named all my property, both real and personal, of every name and nature, in trust for the following purposes.” By the second clause he directs the executors to put up a tombstone on Mt. Hope with Alexander McLeod’s and. Roderick’s inscriptions on it, and to cost not less than $1,000;: by the third clause to purchase a lot on Mt. Hope for poor Scotch unable to buy for themselves at a cost of from $200 to $300. Then followed bequests of legacies to a large number of persons-respectively, and to and for several charitable and other purposes-particularly mentioned, and thereafter the following provision: “ The-residue of my estate, if any, to be divided equally as follows: Donald Campbell, Montebello, Canada; Alexander McLeod, Detroit; John McLeod, Buffalo; Norman McLeod; Isle of Skye, Scotland; Mrs. Leslie Dalsie, Inverness, Scotland. ,J also bequeath to John McLeod all my furniture, clothing, watch. I enjoin my executors-not to sell any of the real estate under three years unless sold to-advantage. Sold on time if to advantage.”
    The testator never married. His only heirs-at-law were Alexander McLeod, Norman McLeod, John McLeod and Mrs. Leslie Dalsie. He left personal property not exceeding $500, and real property of the value of about $32,000. On the 20th day of February, 1885, the plaintiff as his executor made with the defendant a contract in writing whereby he agreed to sell to her, and she agreed to purchase, certain real property situate in the city of Rochester, N. Y., of which the testator died seized, for $14,800, payable on the 1st day of March, 1885, and he agreed to convey the same to her on payment of the purchase-money. The defendant refused to perform the contract on her part on the alleged ground that the will does not give-to the executor any power to sell the decedent’s real estate or to-make tbe contract referred to. This contract of sale is advantageous to the interests of the estate.
    The questions submitted are: 1. Does the will authorize the executor to sell the real property of which he died seized ? 2. Does the will authorize the execution of the contract made with the defendant? If either of those questions is determined in the affirmative, judgment is to go against the defendant requiring her to perform the contract, with costs; and if in the negative, she is to have judgment relieving her from its performance and costs. The testator was a layman and wrote the will himself. The other person named in it as an executor renounced.

      George D. Forsyth, for the plaintiff.

      Anson MoNab, for the defendant.
   Bbadlet, J.:

The will does not in express terms affirmatively direct or empower the executor to sell his real estate. But, in view of the purposes of the devise to the executors and the provisions of the will, the power to sell is clearly implied and as effectually as if directly expressed. (Morton v. Morton, 8 Barb., 18, 20; Livingston v. Murray, 39 How., 102; Mower v. Orr, 7 Hare, 473; Mandlebaum v. McDonell, 29 Mich., 78; S. C., 18 Am. R., 61.)

The devise to the executors was in trust to sell for the benefit of legatees, and vested title for the purposes of the execution of the trust, which the plaintiff took as sole executor. (1 R. S., 728, § 55, sub. 2 ; Id., 729, § 60.) It is contended by the learned counsel for the defendant, that treating the devise as a purpose on the part of the testator to create a trust it is void, because by the terms of the will the absolute power of alienation is suspended in violation of the statute. (1R. S., 723, § 15.) And this proposition^ founded on the provision of the will by which the testator says: “ I enjoin my executors not to sell any of the real estate under three years, unless sold to advantage ; sold on time to advantage.” If this provision has the effect to deny to the executor the right to exercise any power of sale during the period of three years, it comes within the inhibition of the statute, and renders the devise void as a trust. But it does not seem to import any such purpose or intent of the testator, or to be entitled to such construction. B j its terms it does not. prohibit the exercise of power of sale during that or any term. The language may be construed as a qualification of the power, in so far as to require that a sale made within that time be to advantage,, which always attends the power given to sell property held in trust. The matter of advantageous sale is wholly in the judgment of the executor. Iiis action in that respect is not necessarily dependent upon judicial advice or direction of the court. There may have-been a purpose in this provision not inconsistent with the unrestrained and immediate exercise by the executor of the power of sale, and in which may be found the intention of the testator in giving that provision to the will.

While he did not intend to deny to the executors the power to sell within three years, it may fairly be assumed that he did intend to enable them, during that time, to exercise their discretion unembarrassed by any pressure on the part of the beneficiaries to produce a sale and conversion of the real property into money. And this is further evinced by the permission given to sell on time, if sales to advantage required it. The unqualified power to sell, unless expressly dependent on the will of the grantee, is imperative, and the trustee may be compelled by the beneficiaries through the courts to execute it. (1. B.. S., 734, § 96; Hotchkiss v. Elting, 36 Barb., 46; Arnold v. Gilbert, 5 id., 198; Selden v. Vermilyea, 1 id., 58; Moncreif v. Boss, 50 N. Y., 431-436; Van Boskerdc v. Herrick, 65 Barb., 250.) The intent of the decedent evidently was that the execution of the power of sale should depend upon the will or discretion of the executors during the three years, and that they be governed by their judgment in respect to the advisability of doing it, having in view the benefit to the estate by advantageous sales.

This construction is justified by the provisions of the will and effectuates the apparent intention represented by them of the testator. And although the estate is vested in the executor only for the purpose of that which may be denominated an express trust (1 R. S., 729, § 62; Id., 730, § 67), the power of sale is as broad as the requirement of proceeds of the property for the execution of the will.

These views, if correct, dispose of all the questions necessarily presented by the ease submitted for the purposes of the relief required. It is deemed unnecessary to consider any other questions raised or to make any advisory suggestions in respect to matters not legitimately here for determination. It follows that the executor had power of sale and to make the contract in question with the defendant. And that the plaintiff is entitled to judgment requiring the defendant to perform the contract on her part, with costs.

SMITH, P. J., BARKER and Haight, JJ., concurred.

Judgment ordered requiring the defendant to perform the contract on her part, with costs.